I write to express Human Rights Watch’s deep concern about recent developments in the demobilization process, and to present recommendations regarding the regulations for Law 975 of 2005 (the “Justice and Peace Law”).
First, we were very surprised and troubled by reports that you have apparently offered the benefits of Law 975 to 38 people— including commanders and members of the FARC and ELN, as well as a common criminal—who are currently serving lengthy prison sentences for atrocities such as kidnappings and assassinations.
Colombia suffers today, as it has for decades, from extremely high rates of impunity in cases involving violations of human rights and international humanitarian law. In turn, this impunity has had a very negative impact on the rule of law, to the point that armed groups believe that they can ignore Colombian and international law without having to fear punishment.
To confront this problem, significant efforts have been made, at both the international and national levels, to support and improve the effectiveness of the Attorney General’s Office and other entities involved in the administration of justice in Colombia. In this respect, the arrests and convictions of members of armed groups responsible for abuses are important steps forward.
Under these circumstances, to allow FARC and ELN members who are serving sentences for atrocities to transform their current sentences into reduced sentences of five to eight years under Law 975 would be inexplicable. Their groups are not participating in a demobilization process, and these individuals have very little to offer in exchange for these substantial sentence reductions. The application of Law 975 to people who have already been arrested and are serving sentences would undermine the progress that, with great sacrifice, has been achieved, and it would erode the rule of law.
Accordingly, we urge you to reconsider your decision to include these 38 individuals on the list of members of armed groups who can receive benefits under Law 975. We also urge you to make clear that persons who are already serving sentences cannot have those sentences replaced with five- to eight- year alternative sentences.
On a separate point, we wish to reiterate our concern over a subject of great importance in the current negotiations with paramilitary leaders: the requests for their extradition. The principal leverage that the Colombian government has over a significant part of the commanders of armed groups –both paramilitaries and guerrillas –is the threat of extradition to the United States. However, you have stated on several occasions that, as long as the commanders of these groups participate and act in good faith in a peace process, the government will suspend any orders for their extradition.
Extradition can be a very valuable instrument to achieve results in this process, but this depends on the will that your administration shows to use this mechanism in an effective and credible manner. If a paramilitary commander whose extradition has been suspended does not fully and in good faith fulfill his commitments, the government should immediately reactivate his extradition order (along with any arrest warrant that may have been suspended).
We also urge you to adopt the appropriate measures to preserve the option of extradition throughout this process. The government should not allow commanders to take advantage of the procedures established in Law 975, for example, to protect themselves from extradition by invoking, at the relevant time, the principle of non bis in idem (double jeopardy).
Finally, we take this opportunity to enclose a document listing recommendations with respect to the regulatory decree that the government is drafting to implement Law 975.
As is publicly known, Human Rights Watch maintains serious objections to Law 975, especially due to its lack of effective mechanisms to achieve a genuine demobilization and dismantlement of armed groups. At the same time, the Law does not satisfy international standards about truth, justice, and reparation for victims.
To correct these serious flaws, the appropriate thing to do would be to substantially amend the Law. However, it is clear that the government plans to apply the Law without making the necessary changes. Taking this into account, we wish to present some proposals that could – if adopted by your government – mitigate some of the worst effects of Law 975 and increase the chances of advancing towards peace in Colombia.
We appreciate your attention to these important matters.
José Miguel Vivanco
Cc: Mr. Francisco Santos, Vice President of Colombia
Dr. Luis Carlos Restrepo, High Commissioner for Peace of Colombia
Dr. Sabas Pretelt de la Vega, Minister of Interior and Justice of Colombia
Dr. Mario Iguarán, Attorney General of Colombia
Dr. Edgardo Maya, Inspector General of Colombia
His Excellency Andrés Pastrana, Ambassador of Colombia in the United States
Nicholas Burns, U.S. Undersecretary of State for Political Affairs
Mary Lee Warren, U.S. Deputy Assistant Attorney General
Ambassador William Wood, U.S. Ambassador in Colombia
Attachment: Human Rights Watch Recommendations for the Regulatory Decree for Law 975 of 2005.