Testimony of Maria McFarland Sánchez-Moreno, Esq.
Senior 
Americas Researcher, Human Rights Watch
February 12, 2009 Hearing on Examining Workers' Rights and Violence against Labor Union Leaders in Colombia
United States House of Representatives
Committee on Education and Labor

Mr. Chairman, Committee members:

I am honored to appear before you today. Thank you for your invitation to address the situation of workers' rights and violence against trade unionists in Colombia.

I am the Senior Americas Researcher at Human Rights Watch, where I have been covering Colombia for several years.  I frequently travel throughout different regions of the country to conduct research and interviews with a wide array of sources, and I have written numerous reports and public documents about the horrific abuses committed by left-wing guerrillas, paramilitary groups, as well as the armed forces in Colombia.

Despite the rosy picture of the human rights situation that is often painted by Colombian government officials, Colombia to this day presents widespread human rights abuses, including extrajudicial executions of civilians, enforced disappearances, kidnappings, use of child soldiers and antipersonnel landmines, extortion and threats.  More than 3 million Colombians are internally displaced, having been forced to flee their homes due to the violence. 

Violence against Trade Unionists

One of the issues I monitor closely in Colombia is the plight of Colombia's trade unionists.  Over the last couple of decades, Colombia's unions have suffered extreme violence, mostly at the hands of right-wing paramilitary groups that have deliberately targeted unions.

In fact, Colombia has the highest rate of trade unionist killings in the world. According to the National Labor School (Escuela Nacional Sindical or ENS), Colombia's leading organization monitoring labor rights, 2,694 unionists have been killed since 1986, the year the ENS started recording the rate of killings. In addition, some 4,200 unionists have reported receiving threats.

The rate of yearly killings has fluctuated over time, increasing dramatically in the 1990s, when paramilitary groups were rapidly expanding throughout the country, and then dropping again between 2001 and 2007.

This reduction may be explained by many factors, including the consolidation of paramilitary control in many regions of Colombia starting around 2002, as well as the establishment of a protection program-partly funded and supported by the United States-for threatened union leaders.

But according to statistics maintained by ENS after dropping to 39 in 2007, the number of killings of trade unionists has increased once again, to 49 in 2008.  This represents a 25% increase in the number of killings compared to 2007.  Of those killed in 2008, 16 were union leaders.  In addition, the ENS recorded 485 threats against trade unionists in 2008, almost twice the number-246-recorded the previous year.

The national government also recorded a substantial increase in trade unionist killings in 2008, going up from 26 in 2007 to 38 in 2008.  The official statistics are lower than the ENS numbers because of differing definitions of who counts as a trade unionist, among other reasons.  The Office of the Attorney General of Colombia (the Fiscalía), however, uses numbers that are closer to the ENS's, reporting 42 trade unionist homicides in 2008.

Some commentators-including the Washington Post's editorial page-have sought to downplay the gravity of the problem by arguing that it is safer to be "in a union than to be an ordinary citizen," noting that the rate of unionist killings is lower than the national homicide rate. But this rhetorical claim compares apples and oranges: the supposedly "ordinary" citizen includes many people at unusually high risk of being killed, including drug traffickers, criminals, and people living in combat zones, which skew statistical results.  The national homicide rate (33 per 100,000 in 2008) is exactly the same for all these people as it is for civilians in the safest neighborhood in the capital, Bogota. 

Such loose comparisons fluctuate easily: for example, as explained recently by Colombian political analyst Claudia López, if instead of looking at the rate of unionist killings, one looks at the rate of killings of union leaders for 2008, one finds that the homicide rate for union leaders in 2008 was approximately 48 per 100,000.  In other words, union leaders are about 50% more likely to be killed than the supposedly "ordinary" citizen.  López also points out that just looking at raw numbers, one finds that in 2002, 2003, and 2004, more trade unionists than police officers were killed each year in Colombia.

Setting aside the statistical discussion, it's important to bear in mind that trade unionists are not random victims who are being killed accidentally or in crossfire.

While some of the killings are attributable to the military, guerrillas, or common crime, by far the largest share of the killings -based on the information compiled by the Office of the Attorney General as well as analyses by the ENS-are attributable to paramilitaries, who view labor organizing as a threat to their interests, and who stigmatize unionists as guerrilla collaborators. For example, the New York Times described in one article last year how a unionist was forcibly "disappeared," burned with acid and killed after he participated in protests against paramilitary violence in March 2008. Such targeted killings-unlike common crime-have a profound chilling effect on workers' ability to exercise their rights.

Impunity

An important factor perpetuating the violence is the overwhelming impunity in these cases.  The Office of the Attorney General reports that from 2001 to this day, there have been 171 convictions in 130 cases of anti-union violence.  Of these, 151 convictions are for homicides, while 20 are listed as being for other crimes.   

This number reflects a substantial increase in yearly convictions starting in 2007, when the Attorney General's office established a specialized group of prosecutors to reopen many of the uninvestigated cases.  Between 2002 and 2006 the rate of convictions fluctuated between 7 and 12 per year.  Then, in 2007, they jumped to 44, and they went up again, to 76, in 2008. 

Yet as the Colombian Commission of Jurists, a prominent Colombian human rights group, pointed out in a letter to Chairman Miller this week, 96 per cent of all trade unionist killings remain unsolved.  At the current rate of convictions, it would take approximately 37 years for the prosecutors to get through the backlog.

Also, as we explained in a November 20, 2008 letter to Speaker Nancy Pelosi (which I would like to submit for the record), there are serious reasons to be concerned about the sustainability of this increase:

1.       The specialized prosecutors are not investigating the majority of reported cases.

The Office of the Attorney General reports that as of January 20, 2009 the specialized prosecutors unit is only reviewing a total of 1,302 cases involving 1,544 victims of anti-union violence.  They have only located the physical case files in 1,104 of these cases.  The cases under review include 610 cases involving the killings of 816 victims, as well as 289 cases involving threats.

In other words, the Attorney General's office is reviewing less than one third of the 2,695 killings reported by the ENS and only a tiny percentage of the threats. 

When I met with representatives of the Office of the Attorney General last November, I asked what they planned to do with the thousands of other reported cases of threats and killings.  They gave multiple explanations:

First, the Office said that the specialized group was only looking at the cases that had already been reported to the International Labor Organization (ILO) at the time the specialized group was created.  But the ENS and trade unions later submitted all information they have on all 2,685 cases recorded as of May 2008 to the ILO. It makes no sense to exclude many cases from investigation just based on the date on which they were reported to the ILO.

Second, the Office said they had decided not to expand the number of cases assigned to the specialized prosecutors simply because they do not have the resources to handle that many cases. Thus, the remaining cases would be assigned to ordinary prosecutors who may be spread out around the country, who will not be focused specifically on anti-union violence and are more vulnerable to pressure or threats. This explanation is surprising in light of the vast resources the US Congress has already assigned to the Human Rights Unit, precisely to strengthen these sorts of investigations. It is also not a good reason to simply exclude more than half the cases from the specialized prosecutors' workload, rather than organizing and prioritizing them in a useful manner.

Third, the Office said that many of the cases had been inaccurately reported as trade unionist killings.  According to the Office, in some cases the victims were not union members or had been killed for non-union-related reasons. Yet when Human Rights Watch asked the Office for a list of all the cases that the specialized group was investigating, as well as the list of cases that they had decided not to investigate because they did not really involve unionist killings, they refused to provide such a list. The Office has also refused to provide such lists to union representatives, making it impossible to have a meaningful discussion about the basis on which they are excluding many cases from investigation.

2.       Many convictions involve paramilitaries in the Justice and Peace process.

One factor that appears to have contributed to the increase in convictions is that some paramilitary commanders participating in what is known as the "Justice and Peace" process have been accepting responsibility for unionist killings. But this means that once the Justice and Peace process is over, the rate of convictions is likely to quickly drop off. Also, the convictions in these cases often do little to further truth or justice.

Under the "Justice and Peace Law," paramilitaries known to be responsible for atrocities are given an opportunity to admit all their crimes. In exchange, they are set to receive a single reduced sentence of five to eight years, rather than the much longer sentences-up to 40 years, in some cases-that would normally be ordered in individual cases of trade unionist assassinations.

The law began to be applied in 2007, around the same time as the convictions for unionist killings started to go up. Based on Human Rights Watch's review of several of the rulings in these cases, as well as the statements of persons close to the investigations, a substantial share of the convictions in unionist cases are of paramilitaries who are participating in the Justice and Peace Law process.  According to the Office of the Attorney General, of the 76 convictions obtained in 2008 (in 57 cases), 50 were reached pursuant to plea bargains.  The Office states that six of the convictions were obtained with "information from" the Justice and Peace Law process, but it does not specify how many of the convicted persons are Justice and Peace Law participants.  In our review of a portion of the 2008 sentences, we found that a substantially larger number than six were convictions of Justice and Peace Law participants.  The Office of the Attorney General also states that it has already prepared plea bargains for 75 individuals in the Justice and Peace Law process. 

The statements in these cases are often general.  For example, paramilitary commanders like Ever Veloza (also known as "HH") have admitted having commanded responsibility for thousands of killings, including unionist killings. But they often do not describe the circumstances surrounding the killings or identify other accomplices or participants in the crime. As a result, these convictions often do little to establish the truth about the killings.

3.       Lack of progress in high-profile cases

In some of the most high-profile cases of unionist killings there has been little progress.

One example is the investigation of the former head of the National Intelligence service, Jorge Noguera.  Noguera has been under investigation since 2005 for allegedly cooperating closely with paramilitary groups, including by giving sensitive information about trade unionists and others under government protection to paramilitaries who later targeted and killed some of the protected persons.  The Noguera investigations have moved slowly and have repeatedly been delayed due to procedural errors.  At this time, Noguera is under arrest pursuant to a December order by the Attorney General that found probable cause to hold him for collaborating with paramilitaries.  Investigations for his alleged involvement in trade unionist killings have shown little signs of progress.

Similarly, in the murder of labor leader Luciano Romero, despite a court order to investigate potential involvement of the Nestle Corporation in the killings, the Office of the Attorney General has failed to move any such investigation forward.  When I interviewed officials from the Office in November, they told me that they had not pursued the investigation of Nestle because they disagreed with the judge.

Stigmatization of Union Activity

High-level officials continue to stigmatize legitimate union activity as a cover for the abusive left-wing guerrillas. Colombian President Álvaro Uribe has in the past dismissed international concerns over the violence, describing the unionists as "a bunch of criminals dressed up as unionists."

More recently, President Uribe has just last week suggested that those who criticize his government's human rights record abroad, or oppose the US-Colombia Free Trade Agreement, belong to a sort of "intellectual block" of the Revolutionary Armed Forces of Colombia (FARC) guerrillas.

Such statements put unionists and human rights defenders at grave risk, suggesting that the violence against them might be justified and that accountability for the killings may not be a priority for the government.

Paramilitary Violence

Most trade unionist killings have never been investigated, so it is impossible to know exactly who is responsible and why all the killings have been committed.  What is clear is that in many cases, the killers have been mafia-like paramilitary groups, who have admitted to deliberately persecuting unions.

As of March 2008, the Office of the Attorney General reported that of all the persons convicted in unionist killings, 73 (the largest share) belonged to paramilitary groups.

As a result, to address the violence against unionists in a sustained manner, it is crucial that the Colombian government effectively dismantle the paramilitary groups that have historically posed the greatest threat to unions.

Uribe administration officials often dismiss concerns about paramilitary violence by claiming that the paramilitaries are now "extinct" thanks to the government's demobilization program. But while more than 30,000 individuals supposedly demobilized, Colombian prosecutors have turned up evidence that many of them were not paramilitaries at all, but civilians recruited to pose as paramilitaries. Law enforcement authorities never investigated most of them.

Meanwhile, scores of "new" groups closely linked to the paramilitaries and composed of thousands of members are operating all over the country.

A recent report by the Colombian organization Nuevo Arco Iris estimates, based on official data, that there are 21 of these armed groups operating in 246 municipalities around the country, and that they could be composed of over 10,000 members.

These groups are engaging in extortion, killings, forced displacement, and drug trafficking-just like their predecessors. Several foreign embassies in Bogota, the Organization of American States' mission verifying the demobilization, and dozens of human rights defenders have reported receiving threats from the new groups since 2007. 

In Medellín, where the homicide rate had been dropping substantially for years, violence has shot up, with murders jumping from 771 in 2007 to 1044 in 2008-a 35% increase, largely due to the activities of these new groups.  The former head of the prosecutor's office in the city, who is also the brother of Colombia's Interior and Justice Minister, is now under investigation for alleged links to these groups.

The new groups are also contributing to a rise in internal displacement.  In fact, starting in 2004, around the same time paramilitaries supposedly started to demobilize, the rate of internal displacement in the country began steadily rising.  The Colombian organization CODHES, which monitors internal displacement, has reported that 270,675 people had become internally displaced in just the first six months of last year-a 41% increase in displacement over the first six months of 2007.  It is still collecting data on the second half of 2008.  In a large share of these cases, the victims report being displaced by new armed groups that operate in the regions that were historically under paramilitary control. 

There are good reasons to believe that these new armed groups pose a serious threat to trade unionists.  In fact, the bulk of the threats received by unionists last year have been signed by groups purporting to be paramilitaries, such as the Black Eagles.  And the regions where the most cases of anti-union violence were registered in 2008 are the same regions where the new armed groups are most active.  These include, for example, Santander, Norte de Santander, Magdalena, and the coffee-growing states of Quindío, Risaralda and Caldas.

Paramilitary Infiltration of Colombia's Democratic Institutions

Colombia's democracy today faces a serious threat due to paramilitary infiltration of key institutions like the Colombian Congress, which is now undergoing a major crisis of legitimacy, one that is unprecedented not only in Colombia but in all of Latin America.  Seventy-four members of the Congress - including approximately 35% of the Senate - are under investigation or have been convicted for rigging elections or collaborating with paramilitaries.  Nearly all the congresspersons under investigation are members of President Uribe's coalition. 

The fact that these investigations are occurring at all is of historic importance. But these gains are still tentative and fragile. They are the result of a fortuitous combination of factors, including the independence and courage of a select group of judges and prosecutors, a Constitutional Court ruling that created incentives for paramilitary commanders to disclose some of the truth about their crimes, the actions of Colombian civil society and a handful of journalists, and international pressure on the Colombian government.

And unfortunately, as we documented in a report we released in October 2008, entitled "Breaking the Grip? Obstacles to Justice for Paramilitary Mafias in Colombia" (which I would like to submit for the record) the administration of President Uribe is squandering much of the opportunity to truly dismantle paramilitaries' mafias. While there has been progress in some areas, some of the administration's actions are undermining the investigations that have the best chance of making a difference.

Of greatest concern, the Uribe administration has repeatedly launched public personal attacks on the Supreme Court and its members in what increasingly looks like a concerted campaign to smear and discredit the Court. 

It has also opposed and effectively blocked meaningful efforts to reform the Congress to eliminate paramilitary influence.  In particular, Uribe blocked an effort to apply what is known as the "empty chair reform" to current members of Congress.  That reform would have sanctioned political parties linked to paramilitaries, barring them from simply replacing the congresspersons who are investigated or convicted with other politicians who were elected in the same manner.

What is at stake here is Colombia's future: whether its institutions will be able to break free of the control of those who have relied on organized crime and often horrific human rights abuses to secure power, and whether they will be able to fulfill their constitutional roles unhindered by fear, violence, and fraud.

Also at stake is the future of labor rights in the country.  As long as important Colombian institutions remain under the influence of paramilitaries who have persecuted trade unionists, it will be impossible for union members to freely exercise their rights.

Extrajudicial executions by the Army

In recent years there has been a substantial rise in the number of extrajudicial killings of civilians attributed to the Colombian Army. Under pressure to demonstrate operational results by increasing their body count, army members apparently take civilians from their homes or workplaces, kill them, and then dress them up to claim them as combatants killed in action. The Attorney General's Office is currently investigating cases involving more than a thousand victims of such extrajudicial executions dating back to mid-2003.

While most of these cases do not involve trade unionists, an increasingly significant share of trade unionist killings are believed to be attributable to state actors.  Twelve per cent of the killings recorded by the ENS in 2008 were believed to have been committed by state actors.

One significant case involves the military's killing of three trade unionists in the region of Arauca in 2003.  Unfortunately, while lower level soldiers have been convicted of the killings, prosecutors appear to have made little progress in investigating the potential responsibility of military officers up the chain of command. 

More broadly, the large number of extrajudicial executions being attributed to the Army has contributed to the broader climate of intimidation that severely affects union activity. And the government's commitment to contain anti-union violence cannot be taken seriously so long as its security forces appear to be engaged in widespread executions of civilians.

The Defense Ministry has issued directives indicating that such killings are impermissible. But such directives have been regularly undermined by statements from high government officials, including President Uribe, who until recently accused human rights defenders who reported these killings of colluding with the guerrillas in an orchestrated campaign to discredit the military.

Since October of last year, after a major scandal over the military's alleged execution of several young men from the capital of Bogota, the Uribe administration has started to more explicitly acknowledge the problem and has dismissed several soldiers and officers from some military units in connection with some of the most well known killings. However, it is crucial that these dismissals be followed by effective criminal investigations, prosecution, and punishment of those responsible for executions-including commanding officers who may have allowed or encouraged them-that have been reported on a regular basis all over the country. It is too early at this time to determine whether such punishment will occur. 

It is also crucial that the government review and reform military policies, such as its rewards and promotions system, that may be creating incentives to produce false results by executing civilians.

Colombia is not meeting international labor standards

Anti-union violence is so pervasive in Colombia, that it is impossible for workers to fully exercise their rights.  This is a fundamental problem that must be confronted head-on if workers' rights are ever to be respected in that country.

But violence is not the only problem affecting labor rights in Colombia.  Colombia's labor law itself also falls short of international standards, as reported repeatedly by the International Labor Organization (ILO) in its annual review of Colombia. The Colombian government has attempted to downplay the shortcomings, asserting in a 2008 embassy publication that legal reforms passed in 2000, combined with additional "legislative, regulatory and judicial opinions during the Uribe Administration" have eliminated "most" of the inconsistencies between Colombian labor law and ILO norms.  But that same year, the ILO Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts) noted in its own 2008 report that glaring problems remain. The problems criticized by the ILO include obstacles to trade union registration, violations of workers' rights to strike, and the use of cooperatives to undermine workers' right to organize.

Human Rights and the US-Colombia Free Trade Agreement

Human Rights Watch takes no position on free trade per se.  But we believe any free trade agreement should be premised on respect for fundamental human rights, especially the rights of the workers producing the goods to be traded.  In Colombia, those conditions are far from being met.  That's why we have called on Congress to delay consideration of the US-Colombia Free Trade Agreement (FTA) at this time, until Colombia shows concrete and sustained results in addressing the violence against trade unionists, impunity for that violence, and the broader human rights context that makes it difficult for workers to exercise their rights.

Without concrete and sustained results in addressing these basic problems, ongoing anti-union violence, impunity and human rights abuses would, as President Barack Obama has noted, make a "mockery" of labor protections in the agreement. Colombia should be in compliance with such protections before the accord takes effect, as has generally been demanded with FTA commercial provisions.

We believe that the US Congress's decision to delay consideration of the FTA has put pressure on the Colombian government to take some initial steps to address these issues.  As previously described, the Office of the Attorney General has established a specialized group of prosecutors to investigate some of the country's thousands of unsolved cases of trade unionist killings, and the group has obtained an increase in convictions. Yet this progress is still fragile and incomplete, and there are many reasons (as previously described) to be concerned about the sustainability of this effort.  And in other areas (such as the rate of violence), Colombia has been sliding back this year. Meanwhile, the government has yet to address the rise of successor groups to the paramilitaries, the influence of these groups in the political system, continuing stigmatization of unionists, and the Army's disturbing practice of extrajudicial executions of civilians.

Among other steps, Colombia should be required to meet concrete benchmarks in the following areas:

  • Demonstrating a sustained and meaningful increase in well-grounded convictions of perpetrators of anti-union violence. These should include convictions in a sufficient number of the 2,695 killings of trade unionists reported since 1986 to show a significant shift in the long-term pattern of impunity. The convictions should be based on more than the mere admissions of guilt by paramilitary commanders participating in the "Justice and Peace" process, as these confessions often do little to establish the truth about the killings or accountability for the perpetrators. To achieve this goal, there are many steps Colombia has yet to take. For example, it must ensure that the specialized prosecutors for labor union cases handle all the reported cases, not just the reduced number they are currently investigating.
  • Dismantling the paramilitary groups that pose the greatest threat to unions, by holding accountable paramilitaries and their accomplices in the military, political system, and business sectors; confiscating paramilitaries' illegally obtained assets and returning stolen lands to their rightful owners; and actively investigating and confronting new or never demobilized paramilitary groups that have appeared in the wake of the supposed demobilization of the AUC paramilitaries.
  • Ensuring accountability for the extrajudicial executions of civilians that the Army has allegedly been committing by the hundreds in recent years. It is crucial that the government response go beyond mere internal investigations and dismissals of officers to also include criminal investigations, prosecutions, and appropriate punishment, as well as the reform of policies that may create incentives for such executions.

In any case, Congress should make clear that, given the serious crisis of legitimacy in the current Colombian Congress, the Free Trade Agreement should not be considered until the Colombian Congress has been meaningfully reformed to remove paramilitary influence, or until after the current Colombian Congress ends its term in 2010.  The United States should urge the Uribe administration to promptly take the necessary measures to clean up its political system.  Such measures include approving political and electoral reforms to sanction the political parties that have, in past elections, allowed paramilitaries to infiltrate them.  In particular, political parties should lose any seats held by congresspersons who are convicted or resign due to investigations for collaborating with paramilitaries. The Uribe administration should provide full support to criminal investigations of public officials, ceasing its attacks on the courts and investigators handling the parapolitics investigations.

The United States can take several additional steps to maximize the effectiveness of this principled approach to the Colombia FTA.

First, it should make clear that the delay in the Colombia FTA does not reflect political or anti-trade agendas.  Given Colombia's specific labor rights and human rights situation, the Colombia FTA should not be bundled with the Panama FTA or any other free trade agreement.

Second, the US should substantially increase assistance to the institutions on the front lines of this fight. This means not only supporting the specialized group of prosecutors investigating trade unionist killings, but more broadly increasing aid to institutions-including the Attorney General's Office and Supreme Court-that are conducting investigations of paramilitaries' past crimes and networks (including paramilitaries' accomplices in the military and political system). The United States should also increase aid to institutions and organizations-such as the Ombudsman's Office's Early Warning System, as well as civil society groups-that monitor the actions of armed groups, including the new paramilitary groups, and play a key role in preventing human rights abuses around the country.

Given what is at stake for Colombia-the success or failure of a generational struggle to break the hold of brutal mafias over the country's political life, and in turn the ability of Colombia's workers to exercise their rights without fear of being threatened or killed-and given the Uribe government's reluctance to engage in that struggle except when under pressure to do so, the United States should not seek FTA ratification prematurely or in exchange for partial measures. The Uribe government recognizes that change has come to Washington and senses that it will have to demonstrate greater progress if there is to be any chance for the FTA. The United States should seize this opportunity by standing firm on the need for fundamental changes in Colombia, and providing support to achieve those changes.

Colombia still has a lot of work to do before the FTA should be considered. By continuing to delay the deal's approval, the United States will show that human rights are not just words, but rather basic values that have real consequences for US policy.