The comments below address the concerns of Human Rights Watch in connection with the US-Colombia Free Trade Agreement (FTA) and the protection of fundamental rights of workers in Colombia. The comments respond to, but may also go beyond, questions 2 and 3 in the Office of the US Trade Representative's Request for Comments on the US-Colombia Free Trade Agreement, published in the Federal Register on July 29, 2009.

As explained below, Human Rights Watch considers that the United States should continue to delay consideration of the FTA until Colombia has met a number of basic conditions.

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. As described below, in Colombia, those conditions are far from being met due to ongoing violence against trade unionists, widespread impunity for that violence, and a broader human rights context that makes it difficult for workers to exercise their rights.

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 the overwhelming impunity for anti-union violence. But those steps are limited and incomplete, and in other areas (such as the rate of violence), Colombia has been sliding back. Also, the progress made on impunity has been won only with the possibility of FTA rejection on the table. If the US government were to prematurely seek approval of the FTA, the progress made could rapidly be undone. Nor would the threat of fines or sanctions for violating FTA labor requirements provide anywhere near the incentive for change that the fear of accord denial offers.

Meanwhile, the government has yet to address effectively the rise of successor groups to the paramilitaries that are threatening trade unionists, the influence of paramilitary groups in the political system, continuing stigmatization of unionists, and the Army's disturbing practice of extrajudicial executions of civilians. All of these problems contribute to anti-union violence and to the persistence of a climate that chills the exercise of workers' rights.

Worse yet, in recent months, new threats to workers' rights have come to light. In particular, Human Rights Watch is concerned over the revelations of extensive illegal wiretapping and surveillance of trade unionists and others by the National Intelligence Service, which answers directly to Colombia's president. Investigations of that wiretapping so far have been incomplete and inadequate, and prestigious news media have reported that the wiretapping continues to this day, in spite of the investigations.

The US government should delay consideration of the FTA until Colombia shows concrete and sustained results in addressing these and other problems affecting the rights of trade unionists, as outlined below.

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.

Below, we offer some background on Colombia's human rights situation and explain the various ways in which trade unionists' rights are specifically affected. We then describe steps Colombia should take to address the plight of trade unionists and the broader human rights context that prevents trade unionists from exercising their fundamental rights.

Overview of Human Rights in Colombia

For decades, Colombia has been embroiled in a brutal internal armed conflict involving left-wing guerrillas from the Revolutionary Armed Forces of Colombia (FARC) and National Liberation Army (ELN), paramilitary death squads (previously known as the United Self-Defense Forces of Colombia, or AUC), and the Colombian armed forces. The guerrillas and paramilitaries are on the US list of Foreign Terrorist Organizations. For years, the paramilitaries have been deeply involved in drug trafficking. I It is believed that the guerrillas increasingly profit from drugs as well. All the armed groups commit abuses against civilians. Tens of thousands have been killed, forcibly "disappeared," kidnapped, raped, or tortured. More than 3 million Colombians (out of a population of about 40 million) have been forced to flee their homes. Colombia has the second-largest population of internally displaced persons in the world after Sudan. To this day, Colombia presents widespread human rights abuses, including extrajudicial executions of civilians, enforced disappearances, kidnappings, use of child soldiers and antipersonnel landmines, extortion, and threats.

The Colombian government often points to drops in certain major indicators of violence in recent years as signs of progress on human rights. The rates of kidnappings, homicides, and massacres are, in fact, significantly down compared to the peaks they reached around 2002, which is a positive development.

In part the change reflects the fact that the Colombian armed forces pushed the abusive FARC guerrillas out of major cities and away from highways where they were kidnapping civilians and committing other highly visible abuses.

But the numbers also changed because, after a bloody expansion campaign marked by frequent massacres of civilians, drug-running paramilitary mafias (which have historically collaborated closely with senior officers and units of the Colombian military) consolidated their control over large swaths of the country. Having taken control, paramilitaries have later maintained it primarily through threats and targeted killings. The paramilitaries also heavily infiltrated the political system, rigging elections and buying or threatening candidates to secure an enormous degree of influence in local, regional, and national governments. Today, more than 80 members of Congress-almost all belonging to President Álvaro Uribe's coalition-are under criminal investigation or have been convicted for allegedly collaborating with the paramilitaries. The Uribe administration has repeatedly taken steps to undermine the investigations and discredit the Supreme Court justices who have taken the lead in starting the investigations.

Meanwhile, other indicators of abuse have remained constant or have been trending up. The rate of alleged executions of civilians by the Army has skyrocketed in recent years. The FARC has continued using child soldiers and committing killings in more remote areas, and has significantly ramped up its use of antipersonnel landmines. And the rate of internal displacement is now close to its 2002 peak, with 380,000 persons becoming newly displaced in 2008, according to reliable statistics compiled by the Consultancy for Human Rights and Displacement (Consultoría para los derechos humanos y el desplazamiento or CODHES), the main NGO in Colombia monitoring displacement.

Violence against 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. The paramilitaries have historically operated with the toleration and sometimes even collaboration of members of the Armed Forces, as well as politicians and powerful financial backers.

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, more than 2,700 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. 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.

The rate of threats against trade unionists has also gone up in the last year. According to the ENS, in 2007, 250 trade unionists reported receiving threats. In 2008, the numbers jumped dramatically, to 498 threats. Of those, 265 are listed as having come from paramilitary groups, while 220 came from unidentified actors.[1] The government does not keep track of the rate of threats.

As of June 30, the ENS reports at least 21 killings of trade unionists in 2009.

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.[2]

Setting aside the statistical discussion, it is 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 in 2008 how a unionist was forcibly "disappeared," burned with acid and killed after he participated in protests against paramilitary violence in March 2008.[3] 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 of Colombia reports that from 2000 to July 20, 2009, there have been 207 convictions in 154 cases of anti-union violence. Of these, 185 convictions are for homicides, while 22 are listed as being for other crimes.[4]

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 75, in 2008.[5]

Yet approximately 95%of the more than 2,700 trade unionist killings recorded by the ENS remain unsolved.

Also, as Human Rights Watch explained in a November 20, 2008 letter to the Speaker of the House of Representatives Nancy Pelosi, Education and Labor Committee Chairman George Miller, and House Ways and Means Committee Chairman Charles Rangel,[6] there are 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 July 20, 2009, the specialized prosecutors unit is only reviewing a total of 1,354 cases involving 1,590 victims of anti-union violence. They have only located the physical case files in 1,146 of these cases. The cases under review include 647 cases involving the killings of 859 victims, as well as 289 cases involving threats.

In other words, the Attorney General's office is reviewing fewer than half of the more than 2,700 killings reported by the ENS and only a tiny percentage of the threats.

When Human Rights Watch met with representatives of the Office of the Attorney General, we 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.

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.[7]

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 75 convictions obtained in 2008 (in 58 cases), 50 were reached pursuant to plea bargains. The Office states that 22 of the convictions were reached pursuant to plea bargains given to Justice and Peace Law participants.[8]

The statements in these cases are often general. For example, paramilitary commanders like Ever Veloza (also known as "HH") have admitted having command 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.

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 members of 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 at the time) belonged to paramilitary groups. (Since then, the office has ceased reporting on the groups to which the convicted individuals belong.)

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, as documented in several Human Rights Watch publications, the demobilization process implemented by the Uribe administration was seriously flawed.[9] While the AUC paramilitary coalition formally no longer exists, in practice, the paramilitaries' mafia-like networks have continued operating.

In fact, there is substantial evidence that AUC commanders engaged in fraud in the demobilizations and deliberately kept key portions of their groups active. For example, in the demobilization of the Northern Block of the AUC, there is evidence (including instant messages retrieved from a computer belonging to a Northern Block member), that AUC leader Rodrigo Tovar (also known as "Jorge 40") ordered his subordinates to keep the core of his group active, and to recruit civilians to pose as paramilitaries for the purposes of demobilization.

In the aftermath of the demobilization process, many supposedly "new" groups closely linked to the paramilitaries have appeared and are rapidly growing throughout the country. While the government labels them "gangs", the National Police reported in meetings with Human Rights Watch that the leaders of these successor groups to the paramilitaries are almost all mid-level or even senior AUC commanders (some of whom supposedly demobilized but later continued engaging in the same activities). The Police reports there are 8 such groups with more than 4,000 members and that in recent months they have been rapidly increasing their areas of operation. Estimates by non-governmental organizations, such as the Corporación Nuevo Arco Iris, run as high as 10,000 members (which is close to the standard estimates of AUC memberships before the "demobilization").

These successor groups operate in a similar fashion to the various AUC blocks, engaging in threats, targeted killings, and forced displacement of civilians. As a result, violence in many regions is increasing: for example, after dropping substantially for years, violence in

Medellín has shot up, with murders jumping from 771 in 2007 to 1044 in 2008-a 35% increase, largely due to the activities of new groups. In the first six months of 2009 there were 889 homicides-almost double the number of killings in the first six months of last year.

There are good reasons to believe that these successor groups to the paramilitaries pose a serious threat to trade unionists. In fact, according to the ENS, the bulk of the threats received by unionists in 2008 have been signed by groups purporting to be paramilitaries, such as the Black Eagles.

The strength of the new groups can be directly traced to the failure of the demobilization process, which never addressed the key question of how to identify and prosecute the underlying sources of support of paramilitary groups-their financing streams: drug trafficking and extortion, as well as support from powerful economic backers (which have benefited from the paramilitaries' land takings and forced displacement of civilians) and collaborators in the military and political system. On the contrary, when some institutions of justice in Colombia-including, most notably, the Colombian Supreme Court-have attempted to investigate links between politicians and paramilitaries, President Uribe has publicly attacked them.

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. More than eighty members of the Congress, including approximately 35% of the Senate, are under investigation or have been convicted of allegedly 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 Human Rights Watch documented in a report released in October 2008, the administration of President Uribe is squandering much of the opportunity to truly dismantle paramilitaries' mafias.[10] 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, as described in the report, the Uribe administration has repeatedly launched public personal attacks on the Supreme Court and its members in what looks like a concerted campaign to smear and discredit the Court. Uribe's main political coalition in Congress, the "U" party, also recently proposed a bill to remove the parapolitics cases from the jurisdiction of the Supreme Court.

The Uribe administration 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 members of congress who are investigated or convicted with other politicians who were elected in the same manner.

The successor groups to the paramilitaries have sought to maintain the close relationships with state officials that allowed the AUC to operate with impunity for so many years. For example, the chief prosecutor of Medellín (and the brother of Colombia's Minister of Interior and Justice) has come under investigation after evidence came to light that he was working closely with leaders of the successor groups, to protect them from prosecution.

In another example, as documented in our report, in mid-2008, Antonio Lopez (also known as "Job"), a supposedly demobilized AUC leader who remained active in Medellín, visited the Presidential Palace and met with several of President Uribe's closest advisors, to offer them supposed evidence to smear Justice Iván Velásquez, the lead investigator of the "parapolitics" scandal. Semana also revealed recordings of what appeared to be conversations between Job and one of Uribe's advisors. Job was assassinated shortly after the meeting, and the circumstances surrounding the meeting and Job's relationship with Uribe's advisors remain murky.

Similarly, Human Rights Watch has received multiple reports of toleration of the new groups by members of Colombia's security forces in different regions around the country.

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.

National Intelligence Service's Alleged Involvement in Illegal Surveillance, Wiretapping, and Killings of Trade Unionists

In February 2009 Colombia's leading newsmagazine, Semana, reported that the Colombian intelligence service (the Departamento Administrativo de Seguridad or DAS), which answers directly to President Uribe, has for years been engaging in extensive illegal phone tapping, email interception, and surveillance of a wide array of persons viewed as opponents or critics of the Uribe administration, including trade unionists.

The Office of the Attorney General initiated an investigation of the surveillance, but before it entered DAS offices to collect evidence, DAS agents had removed numerous boxes of potential evidence (images of the agents removing the boxes were recorded on security cameras).[11]

Yet the investigation by the Attorney General's office has uncovered a great deal of material showing that the DAS was systematically used to obtain information about the Supreme Court justices investigating paramilitary infiltration in the political system, journalists, human rights defenders, major political figures in the opposition, and trade unionists. Human Rights Watch has viewed much of the evidence, which includes DAS orders to conduct surveillance for the purposes of "offensive intelligence." This is true, for example, of one 2005 DAS memo summarizing a meeting in which senior DAS officials ordered surveillance of Human Rights Watch's Americas Director, José Miguel Vivanco.

Records collected from the DAS in the course of the investigation indicate that major trade unions, including Fensuagro (an agrarian workers' union), the United Worders' Confederation (Confederacion Unitaria de Trabajadores or CUT, the largest coalition of unions in the country), Asonal Judicial (the justice sector workers' union), Sinaltrainal-Coca-Cola, and others, were targeted for surveillance.

The fact that trade unions were targeted is particularly disturbing because it is the DAS itself that is usually tasked with providing protection to trade unionists under threat, pursuant to the Colombian Ministry of Interior's protection program for union leaders. In this context, it is understandably extremely difficult for threatened unionists to feel comfortable seeking protection from the DAS.

In fact, the DAS may be implicated in killings of trade unionists. President Uribe's first head of the DAS, Jorge 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. However, the case has finally reached the Supreme Court level, and Noguera's trial is set to begin in October 2009.

When the investigation began, President Uribe repeatedly made statements defending Noguera (after Noguera's departure from the DAS, Uribe named him consul in Milan). Recently, Rafael Garcia, who worked closely with Noguera in the DAS and who has provided extensive testimony in numerous investigations of paramilitary infiltration in the political system, claimed in media interviews that President Uribe knew of Noguera's alleged illegal activities.[12] President Uribe has denied knowledge of illegal surveillance by the DAS.[13]

Unfortunately, there are serious reasons to be concerned that the investigations by the Office of the Attorney General are inadequate to uncover the extent of DAS criminal activities, or to identify and hold accountable all those responsible.

Semana recently reported (in the annexed article) that the Office of the Attorney General has inexplicably focused almost exclusively on surveillance carried out in 2002-2005 (during Noguera's tenure as head of the DAS) despite evidence that the DAS had continued to engage in systematic surveillance for years afterwards. The new interim Attorney General has recently accepted resignations from the two prosecutors who were conducting the DAS investigation. It remains unclear whether the next prosecutors assigned to the case will address this and other problems in the investigation.

Meanwhile, according to reports in Semana, the illegal surveillance by the DAS has continued. For example, Semana reported, the DAS had been intercepting the calls of Supreme Court Justice Iván Velásquez through the end of August 2009. Velásquez is the lead investigator of the "parapolitics" scandal. Semana even published excerpts from an alleged intercepted audio from one of Velasquez's calls with a US Department of Justice official.[14]

Until a credible, independent, thorough investigation is completed, the surveillance ceases, and those responsible for the illegal surveillance are held accountable, trade unionists will have good reasons to fear the DAS and, by extension, to distrust the government.

Stigmatization of Union Activity

The DAS scandal compounds an already serious problem that may contribute to the ongoing violence against trade unionists and impunity: the fact that high-level Colombian officials have repeatedly stigmatized legitimate union activity as a cover for the abusive left-wing guerrillas. President Uribe has in the past dismissed international concerns over the violence, describing the unionists as "a bunch of criminals dressed up as unionists."[15]

More recently, President Uribe earlier this year suggested that those who criticize his government's human rights record abroad, or oppose the FTA, belong to a sort of "intellectual block" of the FARC guerrillas.[16]

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.

In the context of the DAS scandals, the Uribe administration's repeated stigmatization of trade unionists, and its efforts to undermine investigations of paramilitary influence in the political system, the government's stated commitments to the protection of workers' rights become very difficult for anyone to believe.

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. As documented by the United Nations High Commissioner for Human Rights, many human rights organizations, and most recently, the UN Special Rapporteur on Extrajudicial Executions, army members, under pressure to show results, take civilians from their homes or workplaces, kill them, and then dress them up as combatants killed in action to increase their body count.

The alleged executions have been occurring throughout the country and involve multiple army brigades. The Attorney General's Office is reported to be investigating more than 1,000 such cases involving more than 1,700 victims in recent years.

For years, President Uribe publicly denied the problem existed and accused the human rights groups reporting these killings of helping the guerrillas in a campaign to discredit the military. After a major media scandal in September 2008 over the executions of several young men from Soacha, a low-income neighborhood of Bogotá, Uribe dismissed 27 members of the military, including three generals. There have been several more dismissals since then. But President Uribe continues to claim that these are only a few isolated cases, emphasizing that there are only "22 proven cases" and charging that there are hundreds of "false allegations."

Army commander Mario Montoya, who had been the subject of allegations linking him to abuses and paramilitaries, resigned in November 2008 right after the Soacha scandal. Uribe appointed him as ambassador to the Dominican Republic. Montoya's replacement and reported protégé, General Oscar Gonzalez Peña, commanded the 4th Brigade of the Army when it had one of the worst records of extrajudicial executions in the country.

The UN Special Rapporteur on Extrajudicial Executions visited Colombia in June. In preliminary findings, he noted that "[t]he sheer number of cases, their geographic spread, and the diversity of military units implicated, indicate that these killings were carried out in a more or less systematic fashion by significant elements within the military." He pointed out that the Colombian military justice system contributes to the problem by obstructing the transfer of human rights cases to the ordinary justice system. His final report will address these and other issues, including possible incentives to members of the military that contribute to the killings.

The executions, which the Special Rapporteur described as "cold-blooded, premeditated murder of innocent civilians for profit," stand out as one of the most serious abusive practices by state agents we have documented in Latin America in recent years.

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. 12% of the killings recorded by the ENS in 2008 were believed to have been committed by state actors.

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.

Steps Colombia Should Take Before Consideration of the US-Colombia Free Trade Agreement

The United States should make clear that, given the serious crisis of legitimacy in the current Colombian Congress as well as the evidence of ongoing illegal surveillance by the DAS, the Free Trade Agreement cannot be considered until after:

(1) The Colombian Congress has been meaningfully reformed to remove paramilitary influence, or until the current Colombian Congress has ended its term in 2010.

(2) A credible and thorough investigation of the DAS surveillance scandals has been completed, and those responsible have been held to account.

(3) Colombia has met 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 more than 2,700 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 should 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 mafia-like paramilitary structures 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 (and their accomplices) that have appeared in the wake of the supposed demobilization of the AUC paramilitaries.
  • Thoroughly and credibly investigating and holding accountable those responsible, including persons at the highest level of government, for authorizing, ordering, and carrying out illegal surveillance of trade unionists and others through the DAS or other state entities.
  • 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.

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, the United States 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 United States 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 Supreme Court-that are conducting investigations of paramilitaries' networks (including paramilitaries' accomplices in the military and political system). The United States should suspend any assistance to the DAS, while providing support to institutions conducting investigations of the intelligence agency. 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-including workers' fundamental rights-are not just words, but rather basic values that have real consequences for US policy.

ANNEX: Translation of "Incredible...they're still intercepting," Semana, August 29, 2009, http://www.semana.com/noticias-nacion/increible-siguen-chuzando/127960.aspx.

Towards the end of February, the foundations of the Administrative Department of Security (DAS) [the national intelligence service] shook when it was made public that the intelligence agency was illegally intercepting and monitoring Supreme Court judges, journalists, NGOs, and opposition party members.

The investigation by Semana unleashed a scandal of great proportions. The surprising part is that even though they were now in the eye of the hurricane, things not only did not change, but they have actually gotten worse. The interceptions and surveillance of members of the Court, journalists, politicians, and some lawyers continue. And, as if that weren't enough, they have extended the monitoring to some presidential candidates and, recently, members of Congress. "What has been happening in recent weeks, what is of interest to us? Simple: the referendum. We need to know where they stand and what the politicians are thinking," one of the people in charge of the surveillance said to Semana while showing some of his work. Some of the methods used include monitoring by active or retired detectives, the use of vehicles posing as taxis or as telecommunications providers, and the use of interception equipment that's not part of the official inventory.

"Some of the equipment with which [the DAS] is working was hidden from the offices of the Attorney General and Inspector General during the investigation of the phone tapping. In the last couple of weeks some of the equipment that was outside [the city] arrived in Bogota so it could be used to monitor members of Congress regarding their vote on the referendum," one of the people in charge of the work said to Semana, though he refused to reveal to whom the illegal tapes were provided. And the evidence indicates that the workings of Congress regarding the [president's] reelection are not the DAS' only concern.

For, while there's thunder in politics, the skies in the justice sector aren't clear either. Some of the members of the Supreme Court are occupying a lot of the intelligence agency's time and attention. Semana obtained dozens of recent tapes proving this. One of their principal "objectives"-as they call them now; though previously the reports referred to them as "targets"-is the star investigator of the para-politics scandals, Justice Ivan Velásquez.

In many of the interceptions, which were recorded just within the past three weeks, some of which Semana abstains from publishing due to their strictly personal content, Velásquez discusses everyday topics with his wife and children. In others, he talks about labor issues with other members of the Court and with investigators of the [Attorney General's investigative branch] who are handling important cases (see side box). Of equal concern is the fact that the intercepted communications include his conversations with his security team coordinating transportation, trips, or other movements.

There are also some conversations with lawyers, public prosecutors, and journalists. As if this weren't enough, the phone tapping included conversations between Velásquez and James Faulkner, an important official of the United States Justice Department who is posted in the American Embassy in Bogota, in which they discuss issues related to extraditions, justice, and document exchanges.

Although Velásquez is one of the principal "objectives," his is not an isolated case in the chapter involving the Supreme Court. "After February's scandal, everything stopped for a few days while the storm passed. When the way things were going became apparent and it became clear that the Attorney General's office and the Inspector General's office were only focusing on the older cases of interception, we resumed our work. Adjustments were made, and the difference is that now the work is done better and discreetly," said one of the DAS agents in charge of these missions, who admitted that they tapped the phone lines of those investigating them in the offices of the Attorney General and the Inspector General.

Semana had access to the voluminous files of the public prosecutors in charge of the investigation of the phone-tapping by the DAS. It is clear from the files that the investigators' inquiries have focused on acts committed during the period of Jorge Noguera [in 2004-2005], but subsequent administrations [of the DAS] are practically nonexistent in the investigation. For the 11 officials and ex-officials detained for this case one month ago, the most promising accusations by the prosecutors regard acts committed between 2002 and part of 2005. Until now, the authorities have ignored evidence of subsequent acts. "Although some ended up paying for it, not all of them are there, not the most important ones. But this [inital prosecution] calmed things down and allowed the work to continue," explained one of the detectives. In a surprising decision, last Friday the [acting] Attorney General Guillermo Mendoza accepted the resignation of the two prosecutors heading the phone-tapping investigation.

Sources said that this kind of illegal activity continued in the DAS in part because of the understanding that only a few of those responsible for the phone-tapping would end up paying a judicial or political cost.

To minimize the risk of leaving evidence of the new interceptions, the DAS reactivated some of its external networks. These were mainly ex-DAS officials who had left the agency, for different reasons, but who continue to carry out "special projects" for the agency.

"We received direct orders from the DAS. Although we are not on the payroll nor do we appear [on official documents] we give an account number and [the money] is deposited there depending on the mission. If we need vehicles, equipment, or any kind of support, they will also supply that," explained a former detective who is part of the parallel intelligence networks of the DAS. "We have a liaison, who is usually someone from the local chapter and that person tells us whom to monitor. We do the work and once it's done, we contact the liaison again and turn in the results, which could be videos, pictures, reports or recordings of intercepted communications, depending on the objective," said the ex-official, who still has his detective's certificate. "I've been assigned to monitor many personalities like the auditor Julio Cesar Turbay, [conservative senator] German Vargas, and also people from NGOs. They almost never tell us why we should monitor them, and one doesn't ask. The less you know, the longer you live. One simply does it and turns in the report to the DAS liaison," he concluded.

All of this shows that little has changed in the DAS, despite the phone-tapping scandal. What's worse, new irregularities are appearing in the maximum intelligence agency attached to the presidency.

In the first place, some of those who had direct responsibility for the scandal, for example, ended up "landing on their feet" due to a series of administrative decisions by the current DAS director, Felipe Muñoz.

Some of the appointments are surprising. Muñoz named Capt. José Alexis Mahecha as Chief of Intelligence of the organization. A controversial appointment, to say the least. When Mahecha worked as the section chief of the DAS of Santander, he was implicated in a scandal for illegal monitoring and interceptions against board members of the newspaper Vanguardia Liberal. The case, publicly reported by that Santander paper, occurred in February of 2006 and was managed discreetly by the DAS of Bogota at the time. The decision was simply to transfer the official.

It is difficult to understand why, right as the DAS is in the eye of the hurricane for the phone-tapping scandal, they decided to name such a questionable person as the Chief of Intelligence. One week ago, after a few months in this position and after the DAS realized that the Mahecha case could come to the public's attention, Muñoz relieved him of his position and replaced him with Jaime Polanco, one of Munoz's advisors, who has some theoretical experience in intelligence, but not much practical experience.

A second irregularity was detected in the statements taken by the investigators from the Office of the Inspector General. Many officials acknowledged that the DAS had more equipment than they were reporting, much of it located in other cities. The law enforcement authorities never had access to that gear, nor to vehicles outfitted with special equipment to perform interceptions and to monitor, which when the scandal broke in February were hidden in the detectives' academy of the DAS of Aquimindia in Cota, on the outskirts of Bogota (see photos).

The fact that members of the DAS continue engaged in their practices of spying on those whom they consider to be contrarian or dangerous, such as the members of the Court, and that in recent weeks they have spied on members of Congress to measure loyalties and weaknesses regarding the vote on the referendum makes it clear that this entity is more akin to a political police than to a strategic intelligence agency.

The innumerable attempts to reform the DAS, the appointment of people with little knowledge of the agency or intelligence work, the public announcements in recent months that add up to nothing more than cosmetic reforms, show that there is little desire to correct its course.

SIDE COLUMNS:

The same as before

Some of the DAS reforms don't go beyond name-changes.

In a press release from April 28 of this year, the DAS announced, among other things, that they would "eliminate the National and International Observation Group (Goni), which depends on the General Directorate of Intelligence." The Goni was a group created shortly after Jorge Noguera left the DAS, to replace the so-called G-3, and it was made up of several subgroups, named Phoenix, Condor, Falcon, and Solomon. The principal objective of those groups was to carry out intelligence work for the DAS, which compromised certain strategic aspects for the country, which Semana knows but abstains from revealing since they deal with matters of national security.

The problem is that some of those groups alternated those legitimate intelligence tasks for the defense of the State and were taken off course to do surveillance and activities that had nothing to do with the original objective. And while it has been two months since Muñoz announced that this group no longer existed due to the phone-tapping scandal, the reality is very different.

The Goni group was simply renamed the External Counterintelligence Group (Gcoe). Semana has many DAS documents labeled secret, confidential, and classified, which show that this group and its members are practically the same as those that have been a part of it for years.

Another document, from May 26 of this year, states that Muñoz didn't just continue these groups, but he also ordered the execution of another project entitled "Orion One", whose details Semana cannot divulge because they deal with affairs of the State.

The "objective"

Assistant Justice Iván Velásquez is one of the members of the Supreme Court who continues to be one of the principal targets of the DAS.

Semana gained access to dozens of illegal recordings of Velásquez. The audios, which were recorded within the last three weeks, are evidence that the magistrate is constantly monitored, even in different cities, since, according to the sources, the equipment used, which is generally installed in vehicles, must be located relatively close to the official in order to intercept his calls. Many of the conversations are with his children and his wife. Others are with other members of the Court, investigators who work with him, members of his security unit. Semana reveals some of these, and another conversation which is supposedly confidential between the star investigator of para-politics and James Faulkner, an important official of the United States Jusitce Department assigned to the US Embassy in Bogota.


[1] National Labor School, "Chart on Violations against Life, Liberty and Wellbeing against Trade Unionists: Killings, Threats and Disappearances by Author," 2002-2009.

[2] Claudia Lopez, "Sindicalismo y Libre Comercio," El Tiempo, Feb. 2009, http://www.eltiempo.com/opinion/columnistas/claudialpez/sindicalismo-y-l... (accessed Sep. 15, 2009).

[3] Simon Romero, "Union Killings Peril Trade Pact with Colombia," New York Times, Apr. 14, 2008, http://www.nytimes.com/2008/04/14/world/americas/14colombia.html?_r=1&pa... (accessed Sep. 15, 2009).

[4]Office of the Attorney General of Colombia, Human Rights Unit, Subunit on Crimes against Trade Unionists, "Case No. 1787 Progress Report," July 20, 2009.

[5]Ibid.

[6]Letter from Kenneth Roth, Executive Director of Human Rights Watch, to Speaker of the House of Representatives Nancy Pelosi, Education and Labor Committee Chairman George Miller, and House Ways and Means Committee Chairman Charles Rangel, Nov. 20, 2008, https://www.hrw.org/en/news/2008/11/20/letter-speaker-nancy-pelosi-colomb....

[7]Justice and Peace Law, Colombian Law 975 of July 25, 2005.

[8]Office of the Attorney General of Colombia, Human Rights Unit, Subunit on Crimes against Trade Unionists, "Case No. 1787 Progress Report," July 20, 2009.

[9]Human Rights Watch, Colombia - Smoke and Mirrors: Colombia's demobilization of paramilitary groups, vol. 17, no. 3(B), August 2005, https://www.hrw.org/reports/2005/colombia0805; Colombia - Breaking the Grip: Obstacles to Justice for Paramilitary Mafias in Colombia, October 2008, https://www.hrw.org/en/reports/2008/10/16/breaking-grip-0.

[10]Human Rights Watch, Breaking the Grip: Obstacles to Justice for Paramilitary Mafias in Colombia, October 2008.

[11]Office of the Attorney General of Colombia, Field Investigator's Report to Dr. Yezid Lozano Puentes, 8th Delegated Prosecutor before the Supreme Court, Case no. 110016000686200900002, April 3, 2009.

[12]"Las declaraciones completas de Rafael García," Noticias Uno, September 6, 2009, http://www.noticiasuno.com/notas/el-regalo-de-la-semana18.html.

[13]"Yo también soy víctima de esta infamia: Uribe," El Espectador, February 23, 2009, http://www.elespectador.com/articulo120570-yo-tambien-soy-victima-de-est....

[14]"Incredible...they're still intercepting," Semana, August 29, 2009, http://www.semana.com/noticias-nacion/increible-siguen-chuzando/127960.aspx (English translation is annexed).

[15]"Uribe Arremetio Contra Director de Human Rights Watch," El Espectador, Nov. 1, 2008, http://www.elespectador.com/noticias/politica/articulo87407-uribe-arreme... (accessed Sept. 14, 2009).

[16]Transcript of speech given by President Uribe, "Bloque intelectual de las Farc," Semana, February 9, 2009, http://www.semana.com/Documentos.aspx?Frase=bloque%20intelectual&IdSecci... "‘No vamos a permitir que el ‘bloque intelectual de las Farc' nos desoriente,'" El Espectador, February 7, 2009, http://www.elespectador.com/noticias/politica/articulo115889-no-vamos-pe....