I am writing to express Human Rights Watch’s grave concern over your proposal to set free or reduce the prison terms of politicians currently under investigation for various crimes in collaboration with paramilitaries, as well as the measures you are taking to set free members of the FARC guerrillas who are currently serving prison terms for their crimes.
I am writing to express Human Rights Watch's grave concern over your proposal to set free or reduce the prison terms of politicians currently under investigation for various crimes in collaboration with paramilitaries, as well as the measures you are taking to set free members of the FARC guerrillas who are currently serving prison terms for their crimes.
You have offered broad justifications for these measures. However, as we explain below, these measures are in fact inconsistent with the goals you purport to be seeking. Instead, these measures are likely to promote a culture of impunity and cover-up, leaving the power of paramilitary and guerrilla groups intact.
I. The release of paramilitary collaborators
The Colombian Supreme Court has made great strides in recent months in investigating politicians for engaging in criminal activity in collusion with paramilitary groups. For the first time, we are starting to see some of the truth come to light about paramilitaries' mafia–like networks, including their infiltration of the political system. After years of impunity, the institutions of justice are finally sending the message that those who engage in fraud, illegally manipulate the electoral process, and put Colombia’s democracy at the service of criminal interests, will be sanctioned.
This progress is being made thanks to the hard work and courage of a few judges, prosecutors, and members of the news media, who are taking on enormous personal risks to defend democracy and the rule of law.
At this critical juncture, your government should be providing full support to the investigations being conducted by the Supreme Court and Attorney General’s office.
Instead, after saying many times both in Colombia and the United States that you support justice, you recently announced a proposal to release from prison all politicians linked to paramilitaries, so long as they confess and are not responsible for atrocities. With respect to those who have committed atrocities, we understand that you intend to allow them to apply for sentence reductions under the Justice and Peace Law.
While you have not yet made public the precise terms of your proposal, you and officials from your government have sought to justify the release of the politicians by invoking the need for “truth,” proportionality in sentencing, and the importance of ensuring that Colombia’s “tragedy” is not repeated in the future.
However, if the objectives here are to further truth and justice, and to ensure non–repetition of abuse, the measures you are proposing defeat those purposes. Your proposal would in fact undermine current efforts to uncover the truth and ensure accountability and a real dismantlement of Colombia’s paramilitary groups.
- 1) The best way to further the truth and dismantle paramilitary networks is to support, not disrupt, ongoing investigations by courts and prosecutors
The most effective means of establishing the truth about paramilitary activity and influence is through thorough investigations under ordinary criminal law. Indeed, the progress that Colombia has made so far in uncovering the truth has been thanks precisely to criminal investigations. The evidence that prosecutors and courts turn up is the most reliable safeguard against cover–up, fraudulent testimony, and obstruction of justice by those under investigation.
Similarly, the best way to ensure an effective dismantlement of paramilitaries’ political and financial networks is by supporting thorough investigations of those networks, seizure of illegal assets, and punishment of those responsible for crimes.
Your offer to allow these politicians to avoid serving time in prison will do nothing to advance the investigations. On the contrary, by establishing new, unnecessary, procedures tailored especially for paramilitaries’ collaborators you risk disrupting and undermining ongoing investigations that for the first time are producing results.
It is true that sentence reductions can be a useful tool for securing the cooperation of criminal suspects. But Colombia’s courts and prosecutors already have the option of engaging in plea bargaining. Therefore, there is no reason to offer the politicians any greater benefits than what is already provided for under ordinary law.
- 2) The principle of proportionality does not apply because these politicians never demobilized
The Justice and Peace Law allows paramilitary commanders to receive dramatically reduced sentences for all their crimes, which include some of the most horrific atrocities ever committed in Colombia as well as narcotrafficking. However, this is an exceptional law that is supposed to be based on a fundamental premise: the demobilization of the individual seeking benefits.
The politicians have never participated in a demobilization program. Therefore, they are not eligible to apply for the sentence reductions under the Justice and Peace Law. And the relevant standard to measure proportionality in their sentencing is ordinary criminal law.
It is important to note that these individuals had an opportunity to participate in the demobilization program when your government was compiling the list of persons who were seeking benefits under the Justice and Peace Law. But they chose not take it. It is only now that they are being caught, and finally face the possibility of being held accountable, that they are seeking a way out.
- 3) Impunity undercuts deterrence and leads to repetition of abuses and crimes
A major factor contributing to the growth of paramilitary power, and the widespread human rights violations and corruption in Colombia, is the fact that those responsible are rarely fully investigated or prosecuted. Perpetrators almost always go free, with the knowledge that regardless of what new crimes they commit, it is likely that they will never be punished.
By proposing to let the politicians who collaborated with paramilitaries off the hook, precisely when we are starting to see a glimmer of hope for accountability in these cases, you are compounding the problem of impunity. You are sending the message that, for those who profit from violence, abuses, corruption, and fraud, there will always be some way to avoid accountability. You are, in other words, unilaterally surrendering the state’s ability to deter abuses and corruption through the threat of criminal prosecution.
- 4) Politicians and others who chose to collaborate with paramilitaries are not victims
You and other government officials have suggested that paramilitaries’ collaborators were themselves victims, who had no choice but to work with paramilitaries, because they were “abandoned” by the state.
It is true that millions of Colombians have suffered abuses at the hands of different actors in Colombia’s internal armed conflict. Paramilitaries and guerrillas regularly engage in extortion and often use the threat of violence to make people comply with their demands.
However, politicians who benefited from fraudulent elections, bribes, and the extermination of their political opponents by paramilitaries, military officials who used paramilitaries to do “dirty work,” and financial backers who profited from paramilitaries’ criminal activities, are not victims. To suggest that they are merely trivializes the profound suffering of the many real victims of paramilitary violence, as well as the hard work and sacrifices of the prosecutors, judges, and officials who have struggled to defend Colombia’s democracy from paramilitary power.
II. The unilateral release of FARC members
You have recently taken steps to unilaterally release members of the FARC guerrillas who have been convicted and are serving prison sentences for their crimes. We are very concerned about several aspects of your decision:
- 1) Persons responsible for crimes against humanity and war crimes, including hostage-taking, must not be released
Many FARC members who are currently in prison are serving sentences for crimes against humanity and serious violations of the laws of war or war crimes, such as hostage–taking, murder, enforced disappearances, and recruitment of child combatants. Your government has an obligation under international law, including the Rome Statute of the International Criminal Court, to hold accountable those responsible for crimes against humanity and war crimes. Therefore, it is imperative that Colombia honor its international legal obligations and refrain from pardoning or granting sentence reductions to any individual convicted of these heinous crimes.
- 2) A unilateral release would send dangerous messages to the FARC
The guerrilla organization to which these individuals belong, the FARC, engages in hostage–taking as a regular practice, and has sought to use its hostages to pressure the government into acceding to its demands. It has repeatedly shown itself to have a profound disregard for the lives and wellbeing of civilians and hostages. Its leaders have also shown a lack of seriousness and credibility in past negotiations with the government.
By releasing members of the FARC from prison, you will be sending this ruthless group the very dangerous message that hostage–taking pays. Rather than encouraging them to negotiate, you risk emboldening them to commit further atrocities.
- 3) Imprisoned FARC members should not receive demobilization benefits
The members of the FARC who you are releasing from prison did not demobilize when they had the opportunity to do so, before they were arrested. As in the case of the politicians who collaborated with paramilitaries, there is no good reason to grant them pardons or other demobilization benefits after they have been caught and convicted.
- 4) The release of imprisoned FARC members responsible for crimes undermines the rule of law
The members of the FARC who you are releasing were convicted thanks to the hard work and sacrifices of investigators, prosecutors, and judges. In a country where impunity is the norm, these are among the few cases where the institutions of justice appear to have worked. By releasing these individuals before they have served out their sentences, your government will reinforce the message that perpetrators of crimes are rarely, if ever, going to be punished, and that even members of the FARC can always find a way to avoid full accountability.
When justifying these measures, you have repeatedly said they are necessary to overcome “the tragedy” that consumes Colombia. But it is Colombia’s civilian victims—the millions of displaced people, the relatives of the forcibly disappeared, the child combatants, the kidnapping victims, and the murdered trade unionists, journalists, and human rights defenders—who have borne the brunt of this tragedy. For years, those responsible for these atrocities have gone free, able to continue profiting from the suffering of others. This impunity is, itself, a central component of the Colombian tragedy, compounding the suffering of the victims while emboldening the perpetrators to commit further abuses. By perpetuating this impunity, your proposed measures will only contribute to the tragedy, rather than resolve it.
Many people, judges, and prosecutors in Colombia are struggling, despite great difficulties, to build a more peaceful, prosperous democracy, where human rights and the rule of law are respected. We urge you to take effective steps to further these goals, by abandoning these ill–conceived proposals and measures, and instead supporting investigations and accountability for those individuals who have engaged in abuses and corruption.
José Miguel Vivanco