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Letter to the US Senate

I am writing you regarding the paramilitary leaders who the Colombian government extradited last week to the United States. That these criminal bosses will finally face real justice is a positive development. If managed correctly, it could also represent an important step towards dismantling the paramilitary groups responsible for much of the violence against trade unionists in Colombia. While other steps are still needed to address the high level of anti-union violence and break these groups’ power in Colombia, the extradition validates Congress’s decision to delay ratification of the US-Colombia Free Trade Agreement until the country shows concrete, substantial and sustained results in addressing these problems.

Human Rights Watch has been calling on the Colombian government for years to use the option of extradition effectively and to send to the United States top level commanders who are not meeting their commitments under the “demobilization” process that is currently underway in Colombia. We welcome the prospect that some of the worst human rights violators in Colombia’s recent history could now face serious jail time in the United States for some of their drug crimes. It means that they will no longer be able to manage their nefarious organizations or continue ordering criminal acts. It also means they can no longer look forward to regaining their freedom in just a few years on extremely lax terms – which might well have happened had they stayed in Colombia.

At the same time, while we have long called for the extradition of these men, we do have concerns about the Colombian government’s motivations in doing so at this precise moment. President Alvaro Uribe has said that he extradited these commanders because they were not meeting the terms of the Justice and Peace Law. In fact, during the initial period after they formally entered the “demobilization” process – some three years ago – when they were clearly refusing to meet their commitments, Uribe ignored calls for their extradition. The decision to extradite came only after some had actually started to cooperate – and others announced plans to do so – by beginning to talk to Colombian investigators about their links with Colombian military and government officials, including generals and politicians close to the president. Many Colombians suspect that Uribe sent these men now to the United States to stop them from naming more names. If this is true, the impact of the extradition is likely to be the opposite of what we all hope – instead of encouraging lower level commanders to cooperate with Colombian investigators, it will give them a powerful incentive to be silent.

The view that the extradition could potentially have a negative impact on investigations in Colombia is shared by many of the leading authorities on the country’s “demobilization” process. Colombia’s Inspector General and the President of the country’s National Commission on Reparations and Reconciliation have both stated that it could undermine the investigations already underway in Colombia into paramilitary atrocities. Similarly, the Office of the UN High Commissioner for Human Rights has expressed concern “that the extraditions might weaken the possibilities for advancing, in a timely and effective manner, the fight against impunity for grave human rights violations.” The Inter-American Commission on Human Rights has stated that the extradition “impedes the investigation and prosecution of such grave crimes” and “interferes with efforts to determine links between agents of the State and these paramilitary leaders.”

We believe that the United States has a critical role to play in ensuring that the extradition does not in fact undermine efforts to dismantle paramilitary groups and promote accountability for atrocities in Colombia. Toward that end, we wrote Attorney General Michael B. Mukasey last Friday, May 16, to recommend four crucial steps that we believe the Justice Department should take as it pursues the prosecution of these mafia bosses. These steps include:

    1. Creating meaningful legal incentives for the paramilitary leaders to fully disclose information about their atrocities and name any government officials who may have facilitated their criminal activity;
    2. Exploring all possible avenues for holding them accountable not only for their drug trafficking crimes but also their human rights abuses in Colombia – including, specifically, acts of torture, which is a crime under federal law (18 USC section 2340A), prosecutable in the United States, even when committed abroad by foreign nationals;
    3. Ensuring that federal prosecutors who handle these cases familiarize themselves fully with the vast array of relevant evidence that Colombian police investigators, prosecutors, and judges have accumulated in recent years regarding paramilitary crimes; and
    4. Collaborating actively with the efforts of Colombian justice officials who are investigating paramilitary networks in Colombia, by sharing relevant information wherever possible and granting them access to paramilitary leaders in US custody.

The US Congress could also help by encouraging the Bush administration to make good on its promise to facilitate cooperation between US and Colombian justice authorities investigating these paramilitary leaders’ crimes.

Most important, Congress should continue to delay ratification of the Free Trade Agreement with Colombia. As Human Rights Watch has repeatedly noted, any free trade agreement should be based on respect for fundamental human rights, particularly the rights of the workers producing the goods to be traded. Colombia still does not meet that standard due to the high levels of violence against trade unionists, the near-total impunity for that violence, and the government’s failure to fully dismantle the paramilitary groups that are primarily responsible for that violence. (While the rate of killings of trade unionists dropped in 2007, it remains extremely high and has increased considerably in 2008.) The extradition of paramilitary commanders, while clearly an important blow to their groups' command structures, is not by itself enough to ensure the full dismantlement of these complex and well-financed organizations or to ensure accountability for violence against trade unionists. On the contrary, the extradition may make it more difficult to uncover the truth about paramilitaries' accomplices given that the extradited commanders now have less incentive to cooperate with Colombian investigations.

Accordingly, we believe the Congress should continue to delay approval of the accord until the Colombian government shows concrete, significant, and sustained results over a reasonable period of time in addressing these serious problems. Specifically, it should require, among other steps, that the Colombian government obtain a substantial number of well-grounded convictions of perpetrators of violence against trade unionists; hold accountable paramilitaries’ accomplices in the political system and military, their financial backers, and the mid-level commanders who may continue running their organizations and threatening trade unionists; identify and seize assets that paramilitaries hold through front men or third parties (instead of targeting only directly-held assets) and return them to their rightful owners; and put in place effective measures to protect victims and witnesses against paramilitaries and their accomplices. (One important witness against politicians linked to paramilitaries was reportedly killed in recent days.)

Whether the extradition last week has a positive impact on human rights in Colombia will ultimately depend on the actions of the Colombian government itself. The promise of a future trade agreement remains the most powerful incentive the United States can offer to persuade the Colombian government to advance efforts to dismantle the country’s paramilitary mafias and hold their leaders and accomplices accountable.

Thank you for your attention to this important matter.

Sincerely,

/s/
José Miguel Vivanco
Americas Director
Human Rights Watch

/s/
Tom Malinowski
Washington Advocacy Director
Human Rights Watch

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