The demobilization is a farce.It's a way of quieting down the system and returning again, starting over from another side.
-Demobilized paramilitary fighter, April 2005.
Colombia's right-wing paramilitary groups are immeasurably powerful.Through drug trafficking and other illegal businesses, they have amassed enormous wealth.They have taken over vast expanses of the country's territory to use for coca cultivation or as strategic corridors through which they can move drugs and weapons.In recent years, they have succeeded in expelling left-wing guerrillas and strengthening their own control of many parts of the country.And thanks to this power, they now exert a very high degree of political influence, both locally and nationally.
Paramilitaries accrued their power and influence by force."It is stipulated that there are borders and you have to win people's respect, and so we had to kill people to show that you could not come in or go out of certain areas," a demobilized paramilitary told Human Rights Watch."It was not a fight for Colombia.It was a drug trafficking war," said a former squad commander, discussing his experience as a paramilitary.
Considered terrorist organizations by the United States and Europe, over the last two decades paramilitaries have killed thousands of civilians; tortured, kidnapped, and stolen from tens of thousands more; and threatened and otherwise disrupted the lives of literally hundreds of thousands of Colombians, with almost no consequences for the perpetrators.To the contrary, paramilitaries have historically enjoyed the collaboration, support, and toleration of units of the Colombian security forces, a fact that has led many to refer to the paramilitaries as a "sixth division" of the army.Today, paramilitaries have made major gains in consolidating this impunity, along with their economic and political power, with the collusion of the Colombian government.
Two years ago, paramilitary commanders initiated demobilization negotiations with the administration of President lvaro Uribe in the hope that they could obtain a deal that would allow them to avoid extradition and potentially lengthy prison terms in the United States for drug trafficking.Since the start of negotiations, thousands of paramilitaries have started to turn in weapons and enter government reintegration programs.This trend accelerated towards the end of 2004, when five paramilitary blocks entered the demobilization process by turning in weapons. The process is poised to accelerate much more rapidly: on June 21, 2005, the Colombian Congress approved a demobilization law that gives paramilitaries almost everything they want.
The Colombian government has mounted an enormous media and diplomatic campaign to build up domestic and international support for its law, with visits from President Uribe and senior officials to Europe and the United States.President Uribe has been defending the law as a compromise between competing goals of justice and peace, stating that his goal is to "reach peace without impunity; apply justice without surrender."
But while a genuine demobilization of paramilitaries is obviously an important objective, the process as currently structured is unlikely to achieve its aims.To the contrary, it is likely to compound the country's problems.
Under the newly approved law, which is theoretically applicable to both guerrillas and paramilitaries, the government will drastically reduce terms for investigation of these groups' crimes and grant enormous sentence reductions to members responsible for atrocities. It will also give up its leverage-the threat of extradition-over their commanders, but it will demand almost nothing in exchange.
The new law does not ensure that paramilitaries confess their crimes, disclose information about how their groups operate, or turn over their illegally acquired wealth.Nothing in the law effectively disbands these mafia-like groups.Disarmed troops can be easily replaced through new recruitment and promises of high pay.Commanders convicted of atrocities or other serious crimes, such as drug trafficking, will get away with sentences little longer than two years, probably in agricultural colonies.When they reenter society, their wealth, political power, and criminal networks will be intact.
As detailed in this report, the government's record to date gives no reassurance that the defects in the new law will be overcome.To the contrary, the new law merely codifies many aspects of the approach the government has been applying in recent demobilizations. This report, which is the first to document the government's practices in recent demobilizations, drawing on interviews with recently demobilized paramilitaries, shows that such demobilizations have yielded virtually no truth or reparation for victims and have failed to hold most paramilitaries accountable for atrocities. With the economic power of these groups intact, they remain capable of continued violence even while their forces have partially disarmed. Their already substantial political control, backed by intimidation and bribery, is not only intact but also gaining new vigor.
This dismal record is the logical outcome of the Colombian government's ineffective and poorly conceived and implemented demobilization policies.In implementing the demobilizations, the government focuses almost exclusively on disarming and giving benefits to paramilitary troops.But it does not make a real effort to determine whether these troops are responsible for serious crimes, to uncover the truth about past abuses, or to provide reparation to victims.And it completely ignores the difficult-yet crucial-problem of how to dismantle the underlying structures and financial power of these groups.
The current demobilization process in Colombia is not comparable to the demobilization of other armed groups after conflicts elsewhere in the world.Elsewhere, "successful" demobilizations have usually been conducted in the context of a political transition from conflict to peace, in which disarming fighters was an important symbol and step to secure the peace.
But in Colombia there is not merely a risk that conflict will be reignited; conflict is ongoing.And the country's paramilitaries and guerrillas are far more than a collection of armed individuals fighting for a political cause.They are extremely sophisticated and powerful mafia-like organizations, largely motivated by profit.The paramilitaries have well-entrenched networks that increasingly exert local political control through threats and extortion, and they continue to have close ties with units of the Colombian security forces, which the Colombian government has yet to make meaningful progress in breaking.
In this context, simply disarming paramilitary or guerrilla troops will do little, if anything, to put an end to the violence and abuses of these groups.As long as these groups keep their wealth and power intact, it will be very easy for them to purchase new guns, and replace demobilized fighters with new recruits.
To be effective, demobilization of Colombia's paramilitaries must advance the larger goal of dismantling the political power, underlying criminal structure, and wealth of these groups. To put an end to their activity, the government needs effective tools to find and seize their wealth and investigate the financing streams and criminal networks with which they may hire new killers.Recent developments described here confirm that the Uribe government has not even sought these tools, let alone put them to use.
At the same time, the demobilization process has profound implications for human rights.The deal offered to the paramilitaries in the June 2005 law (and which is, presumably, applicable to the guerrillas as well) will have a direct impact on accountability for abuses, insofar as it severely limits the scope of investigations and offers dramatically reduced sentences for individuals responsible for atrocities. The Colombian government has obligations under international law to provide effective remedies-including thorough investigation, prosecution, and punishment of perpetrators, truth, and reparation-to victims of rights violations.Current demobilization practices and laws make it virtually impossible for the government to provide such remedies in most cases.
This report is based on interviews with numerous demobilized paramilitaries, officials from various branches of the Colombian government, and victims of paramilitary atrocities, among others, conducted in the Colombian cities of Medelln, Cali, Montera, and Bogot between March and May of 2005.The report also uses copies of recordings of negotiations between Colombia's High Commissioner for Peace and the paramilitary leadership, leaked to the media in September 2004.
The Government's Record to Date
Recently demobilized paramilitaries who spoke with Human Rights Watch openly described their own and their group's involvement in serious crimes, including massacres, killings, kidnappings, and extortion.None of them had been arrested for those crimes, or even questioned about them.
Over five thousand paramilitaries have participated in "collective demobilization" ceremonies so far.Of these, as of April 2005, only twenty-five had been detained for atrocities committed before the demobilization.As of June, another fifty-five who did not demobilize had voluntarily gone to Santa Fe de Ralito, a specially designated zone where they would be protected from arrest while the government drafted legislation that would allow them to receive sentence reductions for their crimes.The Attorney General's office claims that it is still conducting background checks on most of the demobilized paramilitaries.However, given the government's lack of information about most paramilitary crimes, it is unlikely that many of them will be found to have a record of atrocities.
Demobilized paramilitaries have not confessed the truth about what they did, and have not disclosed substantial information about their groups' criminal networks, illegal activities, sources of financing, or assets.Their victims have yet to receive any form of reparation.
Paramilitaries have repeatedly flouted the cease-fire declaration they made at the start of negotiations, without suffering serious adverse consequences. To the contrary, a top commander is being allowed to go through the demobilization process and receive all attendant benefits despite having allegedly ordered the assassination of a Congressman as recently as April 2005.
Moreover, paramilitary groups continue to exercise enormous influence in areas where demobilizations have happened.In Medelln, for example, it is clear that members of the demobilized Cacique Nutibara Block continue to have control, backed by force, over much of the city. This group is not at present committing widespread atrocities, in large part because it already defeated the city's other armed groups.However, commanders continue to exert authority in many neighborhoods.We received reports of continued use of threats and extortion by paramilitaries in the city, a fact that is troubling in light of demobilized paramilitaries' increasing organized involvement in local politics.Mid-level paramilitary commanders in Medelln are free, receiving benefits, and, in one case, running for national political office.Elsewhere, there are signs that demobilizations of blocks have been only partial, or that new paramilitary groups are filling the void left by the old ones.
Meanwhile, there is no sign that the process has touched the economic power of paramilitary groups.Several demobilized paramilitaries described their work protecting coca fields and cocaine processing labs, and told us that they were sure their commanders were hiding assets.But so far, paramilitary commanders have made only one symbolic turnover of assets to the government.
Nearly all demobilized paramilitaries with whom we spoke told us that an important reason they joined their groups was because the groups pay a relatively high monthly salary.Paramilitary groups have retained their capacity to pay such high salaries, and recruitment has continued despite the demobilization process.
Implementation of Demobilizations
Why has the demobilization process to date been so ineffective?From the beginning, the government has failed to put in place policies and mechanisms that would allow it to uncover useful information about these groups, their crimes, and assets, to hold their members accountable for abuses, and to truly dismantle their structure and power.
The following are some of the most glaring examples of government failures:
- The government does not require paramilitaries to disclose their aliases before demobilizing.Thus, it is impossible to match up names of demobilizing paramilitaries with the many open cases in which the perpetrator is identified only by his alias.
- The government does not keep a record of which weapons were turned in by each individual in demobilization ceremonies.As a result, even if the weapons subsequently are tested to determine whether they were used in a particular crime (so far, this has not happened) they could not be matched up with the individuals who used them.
- The Office of the Attorney General does not include members of the Human Rights Unit (which handles the most sensitive cases against paramilitaries for atrocities) in the team of prosecutors who interview demobilizing individuals.
- In interviews with demobilizing paramilitaries, the Office of the Attorney General does not systematically ask specific questions about their involvement in or knowledge about the atrocities attributable to their groups, the group's financing streams, assets, and supporters, or the group's criminal operations.
- The system for monitoring demobilized paramilitaries is not designed to ensure that they are not still participating in paramilitary or other illegal activities.
- The central government does not give local and regional authorities sufficient information to conduct close monitoring of demobilized paramilitaries in their jurisdictions.As a result, it is extremely difficult to know the extent to which any demobilized individual is still involved in paramilitary activity.
- The government has not put in place any policies to prevent recruitment into paramilitary groups.Thus, it is very easy for the groups to replace demobilized troops by simply recruiting new members with promises of high salaries.
The OAS Mission in Colombia
The Organization of American States (OAS) established a Mission to Support the Peace Process in Colombia (the "OAS Mission") in February 2004 to provide technical support to the verification of the ceasefire and cessation of hostilities, demobilization, disarmament, and reintegration initiatives in Colombia.
The OAS Mission is supposed to act in a manner consistent with the international human rights obligations of the OAS member states.But in practice, the Mission has played a highly questionable role, serving primarily as a rubber stamp for the actions taken by the Colombian government.Throughout, the OAS Mission has been completely silent about the problems with the process.To the contrary, it has frequently made statements in favor of the government's handling of demobilizations, even dismissing international concerns.As a result, the OAS Mission has helped to give the process a veneer of international legitimacy that it does not deserve.
But even setting aside the OAS Mission's failure to publicly address the serious problems of the demobilization process, there is no reason to believe that the OAS Mission is playing a useful role as a monitor of the process.
OAS Mission representatives accompany Colombian government officials as they carry out their own tasks, make lists of the weapons paramilitaries choose to turn over (without keeping a record of who turned them in), and are stationed at reference centers for the demobilized to observe the reintegration process.
In all these tasks, the OAS Mission's role is mostly passive: to be present and accompany existing government institutions as they implement their own demobilization policies.The OAS Mission does not behave like an independent observer, nor does it apply international standards to evaluate the government's policies.It simply accepts the policies and helps the government implement them.
Nor is there any indication that the OAS Mission has played a useful and distinct role in the verification of the cease-fire declared by the paramilitary groups.The OAS Mission receives reports of cease-fire violations through various sources.But it is far from clear what the OAS Mission does with these reports.In meetings with Human Rights Watch, Mission officials could not describe the criteria and procedures they used to determine what constituted a cease-fire violation.The Mission does not promptly verify all violations of which they receive reports.And even when the OAS Mission does verify a violation, it does not publicly denounce it, or even report it to the OAS Permanent Council.Rather, it merely attempts "to dissuade" the paramilitaries from committing violations-a practice of questionable effectiveness, and one on which the OAS Mission has reported little to the OAS Permanent Council.
Future of the Demobilization Process
The legal framework recently approved by the Colombian Congress to grant sentence reductions and other benefits to paramilitaries responsible for atrocities only aggravates the implementation problems outlined above.This law, misleadingly referred to as the "Justice and Peace Law," gives extremely generous benefits to members of armed groups, including the opportunity to shield themselves from extradition, at the expense of justice for the victims of serious rights abuses.At the same time, the law fails to establish effective mechanisms to ensure the dismantling of these powerful, mafia-like groups.In particular, the law presents the following major problems:
- Investigation and prosecution of abuses is greatly restricted: Prosecutors are required to bring all charges against members within 36 hours of taking their statements, and complete their investigations within the next 60 days.The overwhelming majority, who will probably not be charged, will receive a pardon for their membership in the group.These deadlines are completely unrealistic.Thus, very few members of groups will be charged; even fewer will be tried, and nearly all will escape justice.
- Individuals responsible for serious crimes can receive enormous sentence reductions simply by accepting charges:Paramilitary members can have their sentences reduced-however heinous the offense, however many innocent civilians they might have killed-by just "accepting" charges.Reduced sentences are nominally set at five to eight years.But in practice, perpetrators of serious crimes could serve a single reduced sentence of little more than two years for all their crimes, probably on agricultural colonies instead of prisons.
- The law gives paramilitaries no incentives to confess or disclose information on rights violations:The law does not condition sentence reductions on a full and truthful confession.Demobilized members of paramilitary groups receive greatly reduced sentences even if they refuse to talk about their criminal networks, or their group's structure and assets.
- Groups can keep their illegal wealth: The law says members should turn over their illegal assets.But the requirement is toothless: even if members are later found to have withheld most of their illegal wealth, they can keep their sentence reductions.Once granted, sentence reductions are locked in.
- Commanders receive sentence reductions regardless of whether they ensure that their forces end abuses:Commanders do not have to ensure their troops' full demobilization, compliance with the cease-fire, or cessation of criminal activities.
- The government gives up its leverage, including the threat of extradition, over commanders and their groups: By admitting their involvement in all the crimes for which their extradition has been requested, commanders can trigger a prosecution for those crimes in Colombia under the demobilization law.And by accepting the charges, they can ensure that they receive a greatly reduced sentence for those crimes.Double jeopardy would then apply to bar their extradition to other countries.
In short, under this law the demobilization process will seriously damage respect for human rights, the rule of law, and efforts to bring justice to Colombia's victims of abuses, without making real progress towards peace.Without confession, real incentives for the disclosure of information, turnover of illegally acquired assets, and serious investigation of these groups' criminal networks, it will be virtually impossible for the Colombian government to actually dismantle these groups' structures.Once commanders have shielded themselves from extradition, Colombia will have lost the leverage that brought these groups to the negotiating table in the first place.
The problems identified here will be equally serious if the law is eventually applied to guerrillas: as currently drafted, the law will simply allow members of these groups to obtain enormous benefits without having to really give up their power.
The law has yet to be reviewed by Colombia's Constitutional Court, and it is possible that it will be overturned due to the negative impact it has on victims' rights.Yet it may take several months for the Court to review the law.In the meantime, the Colombian government is likely to move quickly to implement its demobilization law, thus ensuring acquittals or sentencing benefits for many persons responsible for atrocities.Because the Court's rulings are not usually retroactive, such benefits may be permanent.
To the Colombian Government:
- Suspend implementation of the demobilization law until the following amendments have been made to the law:
a.Eliminate provisions that (1) require prosecutors to bring charges within 36 hours after receiving statements from demobilized individuals and (2) limit the time for investigation to 60 days after charges are brought.Such drastic limitations virtually ensure that the vast majority of those responsible for serious crimes will never be charged, much less convicted.
b.In exchange for sentence reductions, paramilitary commanders should be required to give a full and truthful confession and to fully disclose their knowledge of their groups' operational structure, sources of financing, and illegally acquired assets. Otherwise, it will be practically impossible for the government to obtain the necessary information to uncover the truth about atrocities and dismantle these groups.
c.The law should provide that paramilitaries will lose all their sentencing benefits if they are found to have deliberately concealed or lied to the authorities about their crimes, operations, and finances, or to have kept illegally acquired assets. This provision is necessary to ensure that the requirements of turnover of assets, confession, and disclosure of information are meaningful.
d.Top paramilitary commanders should be barred from receiving sentencing benefits through "individual" demobilizations until the troops they command fully demobilize and cease engaging in the most serious crimes, termed "atrocities" under Colombian law. This provision is essential to ensure the credibility of the process.
e.The time paramilitary leaders have spent negotiating should not be considered as time served on their sentences.
- In addition to amending the law (an essential prerequisite for a genuine demobilization), the government should put in place the following policies:
a.Require that the list the government compiles of individuals who wish to receive demobilization benefits include all names and aliases, rank, area of operation, and date of entry into the group for each person who wishes to receive benefits.
b.Make a record identifying the individual who possessed each weapon that is turned in as part of the demobilization process.
c.Check and certify that the weapons turned in by each demobilized person are in working order.
d.Include members of the Human Rights Unit of the Office of the Attorney General in the team of prosecutors who interview demobilizing individuals so that they can more effectively question demobilizing individuals about their potential involvement in atrocities, and so that the Unit can obtain information from demobilizing paramilitaries about its ongoing investigations of paramilitary crimes.
e.In interviews with demobilizing paramilitaries, the Office of the Attorney General should systematically ask detailed questions about their involvement in or knowledge about the atrocities that were committed in their group's area of operation, the location of bodies and kidnapping victims, as well as the group's financing streams, assets, supporters, and structure.
f.Thoroughly review each demobilizing paramilitary's background, including by reference to his aliases, to determine whether he was involved in atrocities or should be questioned in connection with ongoing investigations.
g.Thoroughly review all open cases for abuses that may be attributable to paramilitaries, to determine whether demobilizing individuals should be prosecuted or questioned further in connection with those investigations.
h.Bar members from receiving benefits for demobilization if they have committed atrocities in violation of the cease-fire declaration.
i.Establish rigorous monitoring systems for each demobilized paramilitary, involving local as well as national law enforcement officials, to ensure not only that they are receiving benefits, but also that they are not still engaged in paramilitary activities.The system should include input from a broad cross-section of members of the communities where the demobilized persons reside, as well as from organizations and entities that receive complaints about abuses.
j.Establish and aggressively implement new policies designed to collect information about, find, and seize the illegal assets of the demobilized groups and their members.
k.Establish and implement new policies designed to prevent recruitment of adults by paramilitary or other armed groups.
To the Member States of the OAS:
Withdraw the OAS Mission to Support the Peace Process in Colombia until such time as the Colombian government amends the demobilization law and its practices in accordance with the recommendations set forth above.
Firmly express to the Colombian government their opposition to the terms of the demobilization law and the government's practices in implementing demobilizations.
To International Donors to Colombia and the OAS Mission:
Condition any support for the demobilization process on amendments to the demobilization law and the Colombian government's policies for implementation in accordance with the recommendations set forth above.
Withdraw their support for the OAS Mission to Support the Peace Process in Colombia until such time as the Colombian government amends the demobilization law and its practices in accordance with the recommendations set forth above.
Firmly express to the Colombian government their opposition to the terms of the demobilization law and the government's practices in implementing demobilizations.
To the United States Government:
Condition any support for the demobilization process on amendments to the demobilization law and the Colombian government's policies in accordance with the recommendations set forth above.
Colombia's paramilitaries are no ordinary armed group fighting in self-defense or for a political cause.As confirmed by demobilized paramilitaries themselves, these groups are powerful mafia-like organizations.Much of their membership is composed of young men recruited with promises of high salaries, and they are well funded through drug trafficking and other criminal activities.They exert enormous and increasing political control, backed by the threat-frequently acted upon-of force.
Profits from Drugs and Crime
In May 2005 investigators from the Colombian judicial police (Direccin Central de Polica Judicial or DIJIN) found fifteen tons of cocaine loaded on yachts in the Colombian state of Nario.The cocaine belonged to several different owners, including both the guerrillas of the Revolutionary Armed Forces of Colombia-People's Army (Fuerzas Armadas Revolucionarias de Colombia-Ejrcito del Pueblo, or FARC-EP) and paramilitary groups.Another ton of cocaine, belonging to the paramilitary block Libertadores del Sur and valued at roughly U.S.$30 million, was found the following week at the same location.
The drug business is a major source of funding for many if not all paramilitary blocks, and it is extremely profitable.Colombia's General Comptroller estimates that drug traffickers now control 48 percent of the best lands in the country.Several paramilitary commanders were deeply involved in drug trafficking even before they joined or started paramilitary groups.
As a result, paramilitary activity in some regions is not so much directed at fighting guerrillas as at obtaining control over valuable areas.In recent years paramilitary groups have engaged in combat against one another because of the business.And there have been reports, such as that described above, suggesting that paramilitaries even work alongside the FARC-EP in some drug trafficking operations.
In interviews, demobilized paramilitary members told Human Rights Watch about their involvement in the drug business, and how it affected their armed actions.One young man who had been a squad commander said:
On the plains we had to look for chemicals.We charged the farmers who were processing the coca a tax [vacuna] of 30, 40, 50 percent.Lately, we had gotten into a fight with the Buitragos [commanders of another paramilitary group] to take over a zone.It was not a fight for Colombia. It was a drug trafficking war.
The paramilitaries "wanted to get the guerrillas off the land because of the coca.They said that it was to liberate the people, but it's for the coca," said another member.
In the region of Norte de Santander, one man told us, his group made money through the coca crops that they had on land that they had "recovered" from guerrillas.
Paramilitary groups' involvement in the drug business frequently goes beyond simply taxing growers, and includes processing and direct trafficking.One paramilitary who had been part of the Central Bolivar Block described his tasks as "buying the coca, guarding the area, and looking for guerrillas."The local commanders would "buy the coca base from the farmers, refine it, and send it to the bosses."
"In Casanare some commanders have laboratories.Boyaca is one of the places that is best suited for crystallizationIt's very lucrative," said a former member of the Peasant Self-Defense Forces of Casanare and Boyaca (Autodefensas Campesinas del Casanare y Boyaca or ACC).
A paramilitary who had operated in the Catatumbo Block told us that, because he had handled chemicals in a previous job, once he joined the paramilitary block he was sent to provide security in drug processing labs and to "participate, as a chemist, in the elaboration of coca paste."
Aside from the drug business, paramilitaries have also traditionally financed their operations through contributions from wealthy persons.One demobilized paramilitary who had operated in the departments of Catatumbo and Cordoba said that "a majority of the money came from the large farming capitalists.They paid us as though we were their security guards."
The forced taking of property and land are also common, a fact that has contributed to Colombia having one of the highest rates of internal displacement in the world.And, according to reliable investigative reports, paramilitaries have been closely associated with numerous other mafia-like businesses, including the sale of stolen gasoline, smuggling of contraband, and the provision of credit at usurious interest rates.Through extortion, they have managed not only to make money, but also to assert control over entire sectors of local economies, such as the transportation sector in Valledupar.
Political Control and Corruption
Paramilitary groups in Colombia have enormous political power, at many levels.Locally, paramilitaries frequently supplant the state, charging taxes for "security," regulating economic activity, and controlling even the smallest details of citizens' everyday life, such as their attire-a phenomenon that residents of Medelln described in interviews with Human Rights Watch.
Increasingly, paramilitaries also exert control over who holds political office.By threatening and even killing candidates they do not like, paramilitaries are able to make sure that their favorites run unopposed.Colombian prosecutors recently ordered the arrest of paramilitary commander "Don Berna" for having allegedly ordered the April 10, 2005 assassinations of Colombian Congressman Orlando Bentez, his sister and his driver, after Benitez refused to follow Don Berna's order that he stop campaigning in the region.
According to top paramilitary commander Vicente Castao Gil, about 35 percent of the Colombia's national Congress consists of paramilitaries' "friends," and "by the next election, [the paramilitaries] will have increased that percentage."Another AUC leader, Ivan Roberto Duque (a.k.a. "Ernesto Baez), has recognized that "for many years [the paramilitaries] have intervened in politics, intimately and permanently penetrated local and regional political processes, and built structures of regional and local politics."
Their close relationships with local politicians and government officials have allowed paramilitaries to make money off government operations.Thus, for example, the paramilitary commander known as "Jorge 40" recently admitted to mounting complex schemes in collusion with local authorities to divert funds from Colombia's health system.
Local governments frequently handle enormous sums of money, particularly in regions where mining or the oil and gas business result in significant royalties for the governments.Yet, as has been documented in audits, such royalties have in several recent cases vanished through their investment in irregular contracts and "atomization" of the funds.
Perhaps more importantly, by increasing their political influence paramilitaries can not only make financial gains, but also position themselves to better protect their economic and legal interests, and continue their illegal businesses undisturbed.One widely cited recent study concludes that paramilitaries are essentially enormous mafias whose main objective "is to achieve the monopoly over a set of activities that are susceptible to the control of organized crime, such as wholesale food markets, racketeering, drug trafficking, and, as a superior goal, the appropriation of political power in the cities."
Ivan Roberto Duque has said that his organization will not disappear as a result of the demobilization process, but that instead he wants to "legitimize the AUC's power and build it into a big political movement."Indeed, in recent years paramilitaries have even shown an interest in holding public office.In Medellin, demobilized commander Giovanni Marin is reportedly running for a seat in the national chamber of deputies.
In this context, it is understandable that some Colombian politicians have expressed concern that, unless the demobilization process effectively dismantles these groups' underlying structures, Colombian democracy will be "subordinated" to paramilitaries' interests.
High Pay for the Troops
The profits from the drug trade and other criminal activity allow paramilitary groups to easily recruit troops among the many poor and unemployed in Colombia.Demobilized members of paramilitary groups give a wide array of personal reasons for joining the groups, ranging from their own forcible recruitment as children to their fascination with firearms.However, the one reason we heard most frequently was that they simply wanted a job, and the paramilitaries paid better than most.
Paramilitary troops are highly paid for their "work."Salaries vary by rank and paramilitary front, but several demobilized paramilitaries from different blocks said that their salaries started at around 360,000 pesos a month and rose rapidly over time.One young man described the Centauros Block's salary structure:
"The troops made 360,000.Squad commanders made a little more.The nurses make 500,000," said the man, who had worked as a hired assassin before joining the paramilitaries."The second in charge makes over one million.Block commanders make thirty, forty, fifty million, and also have land, coca crops, things like that."
A member of the North Block (commanded by "Jorge 40") said this was "a good block" because it paid him 500,000 pesos per month.
These salaries are higher than Colombia's gross national income per capita, and often higher than the minimum wage, which is not available to many poor Colombians.In addition to receiving salaries, most paramilitaries receive food, shelter, medical care, weapons, and uniforms.
The importance of money as a factor motivating entry into paramilitary groups is borne out by a survey conducted by the office of the Mayor of Medelln: 23 percent of those surveyed stated that their primary reason for joining the Cacique Nutibara Block was economic need.For nearly all those we interviewed, the high pay offered by paramilitaries was a powerful incentive to join the group.
According to one member, "people go into the Self-Defense forces because of the money and because of culture, because they belong to paramilitary towns."Another noted "most of the people who joined our group were young men who were looking for work."
"If there had been employment, nobody would have gone to the organization," said a former member of the Crdoba front.
Paramilitaries have a well-known and lengthy record of spine-chilling atrocities including massacres, killings, forced disappearances, and kidnappings.Many of their top commanders are wanted in Colombia for serious crimes.
Atrocities, which under Colombian law are generally understood to encompass all serious violations of international human rights and humanitarian law, are frequently perpetrated even within the group itself, to punish members who disobey orders, or to train new recruits.A former paramilitary who had deserted explained:
I learned how hard it was because I remember what they did to one of our group, a young girl of fourteen who did not show up for practice and she was wrapped in burlap bags, tied up with barbed wire and burned alive. I remember her screaming and trying to get out of the bags, and with each stretch, her skin got hurt with the barbed wire.We had to set fire to the girl.We were about fifty completing the [paramilitary training] course.We were just following orders.
Other demobilized paramilitaries tried to explain their groups' atrocities:"Because you have a power over the civilian population, you have to make the civilian population obey," one demobilized man told us.If the civilians did not obey, he explained, they would be punished with forced labor.If they still did not obey, "other decisions would be taken."We heard a similar explanation from a former member of the Catatumbo Block, who said that "it is stipulated that there are borders and you have to win people's respect, and so we had to kill people to show that you could not come in or go out of certain areas."
A man who had operated in the Catatumbo region tried to justify his involvement in massacres by arguing that "the organization didn't do it because we felt like it; we did it for the farmers themselves.I don't consider it a massacre.I consider it defending a community."
"Sometimes civilians who worked with the paracos [the paramilitaries] by giving information and doing favors died," said a traumatized young man who had been forcibly recruited into the group and subsequently deserted."They sometimes talked about things they shouldn't have, and they were killed.As for people who were associated with the guerrillas, [the paramilitaries] killed even their families."He explained that, when his group arrived at a "guerrilla town," their commander would announce that those who had links to the guerrillas had to leave.If they did not, they would have to suffer the consequences.But, he said, "I never knew how they went about investigating them.A lot of innocent people die out there."
Paramilitaries have often worked closely with Colombian military units, and have committed abuses in collusion with those units.The existence of such links has been extensively documented in past Human Rights Watch reports.Today there continue to be credible reports of military-paramilitary links in various parts of the country.
In interviews, several demobilized paramilitaries confirmed that they had had a close working relationship with military units."In some areas, we did work with the army," said one demobilized paramilitary."This was coordinated at a high level, that of a colonel or battalion commander We did not work mixed together.Sometimes not even the soldiers themselves knew.[The paramilitaries] would be on one side of the road and the [soldiers] on the other side."
We heard almost identical statements from a person who had been in the Cundinamarca Block: "We worked jointly.We would coordinate, we would be on one side and the army on the other."
In some cases, paramilitaries draw troops from the military.One man told us "when I was in the military, we would move around together" with the paramilitaries.After serving in the army for several years, he joined the Central Bolivar Block (Bloque Central Bolivar or BCB): "Those who had not served in the military were rejected by the BCB."
The Catatumbo Block, a demobilized member told us, "always knew where the army was we coordinated to not face each other."In fact, he said, the group's practice when they caught a guerrilla was that "if he was wounded and could not walk we would kill him, but if he could walk we would give him to the army after we got information out of him."
Military units have also been reported to side with one paramilitary group against another.Former paramilitaries who had operated in the regions of Meta and Casanare, either as members of the Centauros Block or of the ACC, consistently told us that the military had recently been working in conjunction with the Centauros Block to fight the ACC.As a result, we were told, the ACC has been decimated, while the Centauros Block has finally asserted control over much of the region. In June 2005, the Colombian government announced that it had started to prepare for the Centauros Block to go through the demobilization process.
Throughout its negotiations with the paramilitaries, the government has taken a remarkably weak position.Paramilitaries have repeatedly violated their 2002 cease-fire declaration, which the government had initially set as a pre-condition for talks, yet they have not yet suffered any significant adverse consequence.To the contrary, the government has bent over backwards to accede to paramilitary commanders' demands.
Human Rights Watch obtained copies of secret recordings of several hours of negotiations between Colombia's High Commissioner for Peace, Luis Carlos Restrepo, and a group of paramilitary commanders.These recordings were initially leaked to the media and partially published by the newsmagazine Semana in September 2004.
The recordings cover approximately four hours of discussions, and are not necessarily representative of the entirety of the negotiations.Nonetheless, they do tend to undermine some of the government's statements about its conduct in the negotiations, and illustrate the government's general weakness at the negotiating table and its failure to hold paramilitaries to their commitments.
A serious example of this is the government's handling of the cease-fire issue during the recorded meeting.In public, when observers have pointed out cease-fire violations, the government has repeatedly stated that "every time that the AUC violates the cease-fire not only do we respond militarily, but we also make them pay politically at the [negotiating] table for what they do."On the recordings, however, it is the paramilitary commanders who raise the issue of cease-fire violations, not to apologize for them, but as a warning to the government of what may happen if they do not get what they want.
Some of the most serious issues in the process-such as what would happen with commanders' massive illegally acquired wealth and their criminal businesses-are not addressed at all in the four hours of recordings.
In interviews with Human Rights Watch, Restrepo stated that he did not "negotiate" with the paramilitaries."I don't like the word 'negotiation,'" he told us, "I like the word 'grace'-I am a theologian."He claimed that even in the recordings, he never negotiated the content of the law.Instead, he explained the law to the commanders with a "pedagogical" focus.The goal, he explained, is to "stimulate them to have acts of good faith with society.It's not about what I give you and what you give me."
Restrepo's description appears to be more or less accurate.In the recordings, Restrepo spends a great deal of time explaining the benefits that the government will provide to paramilitaries.But it is striking how little he talks about what the government would like to see in exchange for those benefits.The closest Restrepo comes to making a demand of the paramilitaries is his suggestion that the commanders help the process move forward by demobilizing some blocks before the end of the year and his statement that the demobilizations of blocks cannot be partial, as happened in 2003 with the Cacique Nutibara Block.
Restrepo does not once touch upon the groups' vast wealth, or say that they will have to disclose their assets and dismantle their criminal networks as a condition for benefits.To the contrary, the discussion is limited to the question of whether the paramilitaries will disarm their troops, without even mentioning the paramilitaries' criminal and financial structures.
In implementing demobilizations to date, the government has acted in a manner consistent with the approach suggested by the recordings: it has focused solely on disarming troops, without addressing in any way the wealth, criminal networks, and local political control that allow paramilitary groups to continue to operate and that will allow them to replenish their forces into the foreseeable future.
So far, there have been twelve demobilizations of paramilitary blocks in the context of the ongoing negotiations.The first, of the Cacique Nutibara Block (Bloque Cacique Nutibara or BCN) and the smaller Ortega Self-Defense Forces (Autodefensas de Ortega) occurred in late 2003.Ten more blocks demobilized starting in November 2004, and the government has announced that several additional blocks are starting or are scheduled to start the demobilization process in coming weeks.
In implementing these demobilizations of whole blocks (known as "collective demobilizations"), the government applied pre-existing laws originally designed to encourage desertion from armed groups: Laws 418 of 1997 and 782 of 2002, and their modifications and regulations.These laws provide that members of armed groups may receive pardons for their political crimes, but they bar persons who have committed atrocities from receiving pardons.The laws also provide for a series of economic, health, and educational benefits to be afforded to those who demobilize.Since 2002, 7,150 paramilitaries and guerrillas have participated in "individual demobilization" programs under this set of laws.
Legally, the only difference between a collective and an individual demobilization is that to receive benefits, a person seeking to demobilize individually must first receive certification from an inter-institutional government committee, the Comit Operativo de Dejacin de Armas (CODA), of his membership in an illegal armed group and his will to abandon it.This requirement was eliminated by decree for purposes of the collective demobilizations; instead, membership in an illegal armed group is established through the person's inclusion on a list that the group's spokespersons are supposed to give to Colombia's Office of the High Commissioner for Peace.
Steps in a Collective Demobilization
A typical collective demobilization occurs in the following way:
First, top paramilitary commanders give the Office of the High Commissioner for Peace a list of the people in their block who are demobilizing.According to the Commissioner, his office checks this list with the Ministry of Defense to make sure it matches their estimates of the number of people in each block.
The people on the list are moved to a "concentration zone" (a geographical area designated by the government), where they are asked to fill out surveys about their interests, health, socio-economic background, and education level.Representatives of the Technical Investigative Body (Cuerpo Tcnico de Investigacin or CTI), a branch of the police, take their fingerprints, dental records, and photographs, which are later used to determine whether they have criminal records.The government registrar (Registradura) gives them new government I.D.s if they do not have them.The government also gives out a card that identifies them as demobilized persons entitled to receive benefits for demobilization.
Subsequently, there is a demobilization ceremony in which each paramilitary hands over a weapon to representatives of the government.Representatives from the Mission to Support the Peace Process of the Organization of American States are present at the ceremony, and verify the transfer of weapons.
After the demobilization ceremony, each paramilitary is allowed to return to the place of his or her choice.From then on, they are in touch with a government "reference center," a regional office under the authority of the Ministry of Interior that is supposed to monitor and assist the demobilized persons in the process of reincorporation into society.As of April 2005, there were eight reference centers located in different parts of the country.
Once associated with a reference center, paramilitaries can start receiving benefits, including health care, shelter, clothing for themselves and their families, education or vocational training, psychological assistance, and support in finding jobs or developing government-financed "productive projects."These benefits are not provided directly by the Ministry of Interior; instead the Ministry's Reincorporation Program is charged with seeing that these benefits are provided through third parties and other government entities.Some of the demobilized paramilitaries can also receive a monthly stipend.
Also at the reference center, the Attorney General's office schedules sessions at which all the demobilized paramilitaries in the region are asked to give statements to prosecutors about their involvement in the paramilitary group (this is known as the "spontaneous declaration" or version libre).This statement, in which the individual acknowledges his membership in the paramilitary group and states his desire to demobilize, allows the Attorney General's office to initiate legal proceedings against him for the crime of "agreement to commit a crime" (or concierto para delinquir, the crime traditionally attributed to paramilitaries for their membership in paramilitary groups).Subsequently, assuming he has not been convicted of any other crime and is not being investigated for atrocities, the Attorney General's office grants him a pardon for agreement to commit a crime.
Those who are wanted for atrocities cannot receive complete pardons under Law 782.So far, these persons have been allowed to wait in a specially designated zone in Santa Fe de Ralito while the government drafted legislation that would offer them sentencing benefits.Under the new legal framework for demobilization, these persons must be charged within thirty-six hours of their spontaneous declarations, and the investigations against them must be completed within the following sixty days.After the sixty days, they will either be tried or, if they accept the charges against them, they will receive generous sentence reductions.
Failures in Implementation of Collective Demobilizations
Demobilizations to date have suffered from legal defects and flaws in implementation that make it virtually impossible to conduct serious and thorough investigations of atrocities and to dismantle paramilitary structures.
The following are some of the most serious problems we documented in the government's implementation of demobilizations to date:
Failure to Request Aliases
The government has not insisted that demobilizing paramilitaries provide their aliases at any point in the process, even though aliases are often the only way in which perpetrators are identified in criminal investigations.The government's failure thus makes it impossible to link many paramilitaries to atrocities they may have committed.
One demobilized paramilitary, for example, willingly gave Human Rights Watch his alias-"Anaconda"-but he said that he never gave it to the government because he was never asked about it.
Even though the government collects demobilizing persons' photographs, fingerprints, and dental records, it does not collect their aliases because, according to the High Commissioner for Peace, the identification is "an administrative, civil identification."
Failure to Maintain a Record of Arms Possession
The government does not keep a record of which weapons are turned in by which paramilitary.As a result, even if a particular weapon subsequently is found to have been used in a particular atrocity (so far, the government is not conducting the requisite forensic testing), it could not be matched up with the person who used it.
A representative from the OAS Mission in Colombia told us that the reason neither the Colombian authorities nor the OAS Mission keep a record of the owners of each weapon is that it would be pointless, because all the paramilitaries share their weapons.But this explanation was flatly contradicted by demobilized paramilitaries themselves, who consistently and emphatically told us that they "never" shared weapons.As described by one demobilized member of the Catatumbo Block, each man is responsible for keeping and taking care of his own weapons:"I had the same weapons all the time.Nobody touches your weapons, you keep them very clean and sleep with them.You do not share them."
Failure to Include Prosecutors from the Human Rights Unit in the Team of Prosecutors Questioning Demobilized Paramilitaries
As already noted, before finally granting a pardon to a demobilizing paramilitary, the Attorney General's office takes brief statements, known as "spontaneous declarations," from each person.
In December 2004, the Attorney General's office created a team of prosecutors that would be charged with traveling to government reference centers throughout the country to take demobilized paramilitaries' spontaneous declarations.The team is composed of eleven prosecutors from various specialized units of the Attorney General's office, including the Antiterrorism, Antinarcotics, Asset Laundering, and Anti-kidnapping Units.However, in a glaring omission, the team does not include prosecutors from the Human Rights Unit.
The stated reason for this exclusion is that the Attorney General's office treats the question of whether demobilized paramilitaries can receive benefits as a matter that is unrelated to the Human Rights Unit's investigations.Ramiro Marin, the prosecutor who has been in charge of coordinating the involvement of the Attorney General's office in the demobilization process, told Human Rights Watch that "Law 782 [the law governing the recent demobilizations] is not focused so much on penal action but rather on the contemplation of benefits."Therefore, he explained, the team of prosecutors is focused exclusively on whether or not benefits can be granted to the demobilized paramilitaries.The Human Rights Unit, in contrast, is kept out of the team so that it can continue its investigations independently, without having to develop a "double legal personality."
But given that the Human Rights Unit is in charge of most major investigations of paramilitary atrocities, it would seem more than reasonable to involve at least some members of the Unit in the process of interviewing demobilized paramilitaries.Prosecutors from the Unit have expertise that could allow them to question demobilized paramilitaries more effectively about their potential involvement in atrocities, which could preclude them from receiving benefits.Moreover, the Unit itself has an interest in obtaining information from demobilized paramilitaries about the many investigations it is handling.
Failure to Ask Questions About Past Crimes or the Groups' Operations and Assets
When giving a spontaneous declaration, demobilized paramilitaries are under no obligation to answer any of the investigators' questions."The spontaneous declaration is the statement [the demobilized paramilitary] wants to make," according to Elba Beatriz Silva, head of the Human Rights Unit of the Office of the Attorney General."Those who demobilize have no incentive to tell the truth."
The purpose of the spontaneous declaration is a purely technical one: to allow the Attorney General's office to formally document the paramilitary's membership in the group, and thus open an official investigation of him for the crime of agreement to commit a crime (which all paramilitaries have presumably committed by virtue of their membership in the group).This, in turn, allows the Attorney General's office to give the paramilitary the benefit of a pardon for that crime.
If it were serious about dismantling paramilitaries' complex networks, the government could structure the spontaneous declaration to collect valuable information about the group's crimes, operations, and assets, evidence which might be helpful in ongoing investigations or eventual efforts to recover illegally acquired assets.For example, in the demobilization of a particular block, it would make sense for the Attorney General's office to assemble a list of questions concerning atrocities and other serious crimes committed in that block's area of operation, to determine whether those who are demobilizing know anything about those crimes.This is not, however, happening in practice.
Paramilitaries are not systematically asked whether they participated in or witnessed atrocities or other criminal activity, what assets they own and how they acquired them, or whether they know anything about the location of drug crops or assets illegally acquired by their commanders.Nor are they asked questions about specific cases.In one copy of a spontaneous declaration obtained by Human Rights Watch, a demobilizing paramilitary belonging to the Bananero Block stated that he had been a paramilitary for twelve years and had the rank of "group commander."Although this man probably possessed a great deal of information about the group's operations, past crimes, and assets, he was not asked a single question about these subjects.
According to representatives of the Attorney General's office, the questions asked in a spontaneous declaration vary case by case, but there are six "fundamental questions:" To which block did you belong?When did you join?Who was your commander?Where did you operate?What was your role in the organization?And, why did you demobilize?Additional questions are only asked if the member spontaneously admits his participation in criminal activity.However, this is a rare occurrence: "it may have happened two or three times."
As Prosecutor Marin acknowledged, "this process does not help the investigations at all."
Interestingly, the conduct of these interviews contrasts sharply with the policies applied to interviews of deserters who are entering individual demobilization programs.According to the Vice-Minister of Defense, persons who try to go through the individual demobilization process are subjected to a "serious military interrogation" in which the goal is to "prevent terrorist activity, find war material, and complete judicial investigations."In general, he compared the questioning to the sort of approach U.S. law enforcement might take with a Racketeer Influenced and Corrupt Organizations (RICO) case.Deserters are subjected to "several" interrogations, "both by the military and the police, as many times as is necessary."Among other questions, deserters are asked how they were recruited, what the criminal structure of their group was, where they held kidnapping victims, whether they know about certain facts that they might be able to clarify, whether they know about drug trafficking, and whether they worked with people in the armed forces.Not one of these is a part of the standard list of questions asked of paramilitaries who are participating in collective demobilizations.
Superficial Checks of Demobilized Paramilitaries' Backgrounds
According to Law 782, members of armed groups are barred from receiving benefits for demobilization if they are "responsible" for the commission of atrocities.
Marin claims that he does not know how the background checks were conducted for the demobilization of the Cacique Nutibara Block, which occurred prior to his involvement in the demobilization process.However, he says that since he was put in charge of the demobilizations, background checks have been conducted in the following manner:first, the office is to check whether the paramilitary is barred from receiving benefits because he shows up on their computer system as having been convicted or being wanted for atrocities.Then, the office is supposed to have members of the CTI conduct a more thorough check of the case-files in each national unit of the Attorney General's office, to determine whether any demobilized person should be questioned further or investigated in connection with open cases.
The effectiveness of this process is, however, questionable given that, according to Ramiro Marin, as of April 2005 it had not caused the Attorney General's office to conduct a single follow-up interview with any demobilized paramilitary.Unfortunately, Human Rights Watch was unable to interview the members of the CTI charged with conducting these checks, because Marin refused to put us in touch with them, stating: "I am the one who has to answer for that."
Inadequate Monitoring of Demobilized Paramilitaries
The national system for monitoring demobilized persons suffers from serious deficiencies, largely because of its limited focus.The International Organization on Migration (IOM), which designed the system, called the Tracking, Monitoring and Evaluation System (TMES), with funding from USAID, has stated: "[t]he System is designed to support the successful reincorporation into society of demobilized combatants through the continuous monitoring and assessment of their performance in the reincorporation program."However, the system is not designed to find out whether the demobilized paramilitary is still involved in criminal activities or is still a part of a paramilitary structure.
So far, the system has been fully implemented only in the city of Medelln.There, the system depends on eleven "coordinators" (psychologists, social workers, and others) and forty "monitors"-themselves demobilized paramilitaries who are selected as monitors due to their leadership skills.In practice, this means that in at least some cases the monitors are in fact former local paramilitary commanders.
The system consists primarily of collecting information about demobilized paramilitaries via surveys of the demobilized member himself, his family members, service providers (employers or instructors), and community members.The surveys ask questions about a wide variety of issues, including the individual's satisfaction with the program, drug use, sexual activity, family life, participation in politics, attendance and performance at work or school, and the community's perceptions.The coordinators are also supposed to conduct interviews with demobilized persons.The information obtained from these various sources is kept together in a computerized database.
Those who show signs that they are at "risk" (e.g., because they are frequently absent from work or school) are supposed to be given special attention through mentoring, workshops, follow-up phone calls, and other measures.
This system may serve its stated objective of assessing the demobilized individual's performance in and perceptions of the reincorporation program.However, the system is not designed to detect whether he is still involved in paramilitary groups or is otherwise engaged in illegal activities.It does not include mechanisms for the receipt of complaints about the demobilized persons or population as a whole.Nor is it linked with other entities (e.g., local NGOs, law enforcement) that would be likely to receive such complaints.Although the system includes a survey of community members, that survey is distributed only to a select group.At most, as explained by Diego Beltrand of IOM, the system might as a side benefit serve to give authorities some indications that "something is going on."
A demobilized paramilitary could also simply drop out of the system entirely.In that case he would stop receiving benefits.However, he has no obligation to stay in touch with the government on a regular basis.
Aside from the TMES, Restrepo told us that the local police know the demobilized paramilitaries, meet with them periodically, and also monitor crime levels in areas where demobilized people live.As explained below, however, it is unclear how thoroughly this aspect of monitoring is being done.
Failure to Share Information with Local Authorities
Monitoring has been hindered by the reluctance of the Office of the High Commissioner for Peace to share information about demobilized paramilitaries with local authorities.In Valle del Cauca, for example, government officials at both the departmental and municipal levels complained that they had no idea who or where the demobilized paramilitaries were.As a result, it was very difficult for them to know whether that population was, in fact, still engaged in paramilitary activities.
At one reference center, a policeman told us that he was supposed to be in touch with demobilized paramilitaries in his area, but he was not able to do so because several months after the demobilization he still had not received the list of those people he should be monitoring.
Moiss Gngora, the director of the Cali reference center, noted that "municipal and departmental authorities do not receive lists [of demobilized paramilitaries] because these are normal people The idea is to remove the stigma of being a 'reinserted' person.[T]he legal system has already said [their status] has been resolved."
But the failure to communicate with local authorities could eventually result in serious monitoring difficulties, particularly with respect to paramilitary blocks whose members are dispersed.Unlike in Medelln, where most members of the Cacique Nutibara Block stayed after the demobilization, in other parts of the country demobilized paramilitaries are widely dispersed.Thus, regular monitoring will depend on local authorities' involvement.
Inadequate Policies to Prevent Recruitment
The government has yet to put into place policies to prevent new recruitment into paramilitary groups.Thus, even while many troops are demobilizing, paramilitary groups could easily be recruiting new troops from the same large pool of impoverished, poorly educated young men from which those now being demobilized were originally drawn. The promise of a regular and relatively high salary is as likely to draw new recruits now as it was five or ten years ago. Demobilization, as it is currently structured, does nothing to address this problem.
While the government has policies aimed at preventing recruitment of children into illegal armed groups, it lacks "a strong policy of prevention of recruitment of adults," as one official at the Office of the High Commissioner for Peace put it.
So far, over five thousand persons have participated in "collective demobilizations" of paramilitary groups.As of April 2005, only twenty-five of them were under investigation or had been convicted for atrocities committed before the demobilization.
The Attorney General's office claims that only members of the Cacique Nutibara Block have already received pardons and that it is still in the process of checking its files to determine whether any of the paramilitaries who demobilized in the 2004 and 2005 demobilizations are being, or should be, investigated.Because the initial background checks for outstanding convictions or pending investigations were performed early on in the process, however, paramilitaries from these groups would be barred from receiving benefits only if new evidence has come to light in the intervening period and such information is identified when the Attorney General's office checks the files.
Given how little information is being collected about paramilitary crimes through the spontaneous declarations, it is hard to see how cross-checking of files will yield any additional results.Marin himself concedes that so far the cross-checking has not resulted in a single follow-up interview with a demobilized paramilitary.
The small percentage of demobilized paramilitaries that have been barred from receiving benefits because of their involvement in atrocities so far (less than 1 percent of the total demobilized population, and less than three percent of the demobilized membership of the BCN) is shocking when one considers the number of atrocities that have been attributed to paramilitary groups over the last decade.According to the Colombian Commission of Jurists, paramilitaries have killed over 12,999 persons in Colombia since 1996 alone-this number does not include kidnappings, acts of torture and extortion, forced displacement, and other serious crimes committed by members of these groups.
The small percentage denied benefits is also striking in light of demobilized paramilitaries' own statements in interviews.In fact, most of the demobilized paramilitaries Human Rights Watch interviewed admitted their involvement in massacres, killings, kidnappings, and/or extortion.Yet none of them had been charged or detained for those crimes, or even seriously questioned about their own or their commanders' responsibility.
For example, two demobilized members of the BCN acknowledged in interviews that they had killed civilians, although they could not estimate how many.One also recognized that, along with others, he had sometimes abducted people he considered "subversives" and had "taken information out of them by force."
But both of them had already had their legal situation "resolved" (i.e., they had received their pardons for membership in the group).They knew that a few other members of their group had been arrested for preexisting crimes, but they said that "it was because of bad luck that they were caught."To their minds, it was "unjust because they had turned in their weapons" too.
Another paramilitary who had operated in the Cordoba Block under the command of Salvatore Mancuso, admitted his involvement in massacres and gruesome killings of civilians he viewed as supportive of guerrillas: "These were people who felt powerful and were friends of the guerrillas."As for children who were killed, he felt that "in any war, there are times that innocents payA bullet does not ask where it is going."Although he usually used firearms, "sometimes you killed them with the machete because you didn't have anything else left."However, he said the government had given him a certificate stating that he did not have any legal problems.
Demobilized members of the Catatumbo and Cundinamarca Blocks also told us about their own and their groups' involvement in killings and torture.One told us that "if we found collaborators we killed them.We also killed child combatants."Another said that "we tortured people who became guerrillas or collaborated with other narcotraffickers."
In Medelln, we spoke with several men who claimed to have been mid-level commanders of the BCN, just below the group's top commander, Don Berna.But at the time of the interviews, none of them had cases pending against them; they were now heading the "Democracy Corporation" (Corporacin Democracia), a non-profit association of all the demobilized members of the BCN.One of them, Giovanni Marin, is campaigning for a seat in the Colombian Chamber of Deputies.
Truth and Reparation
So far, the demobilization process has yielded very little progress in terms of truth or reparation for victims of paramilitary atrocities.Demobilizing paramilitaries have not confessed their past crimes, or voluntarily disclosed any meaningful amount of information to the authorities that would have helped clarify the facts about those crimes.Without such information, most cases of paramilitary atrocities as well as other crimes such as drug trafficking are likely to remain unsolved.
In turn, without progress in investigations, it is impossible to determine who should pay reparations to victims.It may also be difficult to determine who is a victim of a paramilitary crime, and therefore entitled to reparations.So far, there has been no significant progress with respect to reparations.
Of the twelve paramilitary blocks to have demobilized so far, the only one to turn over any assets to the government has been the Catatumbo Block, which turned over some land, ten motorboats, forty-five mules, and eleven vehicles.That property is supposedly being returned to its original owners, if it was stolen; however, no payment has been made in reparation to the victims of the many paramilitary atrocities in the Catatumbo region, or elsewhere in the country.
This record with respect to reparations and truth reflects how little attention is being paid to victims in the process as a whole.As noted by Colombia's General Accounting Office, it is also "troubling that while the funds destined by the government in 2000-2003 to fully take care of an entire displaced family were on average $5.5 million pesos [around U.S. $2,000], the funds directed at demobilizing and fully reintegrating a member of an armed group on average were $19.5 million pesos [around U.S. $9,000], a fact that makes evident the differentiation in the way the State's policies work with respect to victims and perpetrators." 
Lasting Peace and Dismantling of Paramilitary Structures
The government likes to present the demobilizations that have been conducted so far as tremendous successes that are resulting in a genuine and lasting peace.But while the demobilization process has disarmed some paramilitary troops, it has failed to touch the massive wealth that fuels paramilitary groups' activities.Nor is there any sign that the demobilizations have done anything to interfere with paramilitaries' illegal businesses or the political and economic control they exert over much of the country.And given that their wealth remains intact, the groups will be able easily to replace the demobilized troops with new recruits, and old weapons with new.
Paramilitaries have repeatedly committed abuses in breach of the cease-fire declaration they made in December 2002.According to a September 2004 report by the Public Advocate that covered only eleven of the country's thirty-two departments, in the first eight months of the year there had been 342 paramilitary violations of international humanitarian law in breach of the cease-fire, including massacres, forced disappearances, and kidnappings.A separate report by the Public Advocate for the department of Tolima (which had not been included in the broader report) stated that during that same period, paramilitaries had presumably committed at least 177 violations in Tolima alone.There were 133 targeted assassinations, five massacres, thirty-three forced disappearances, and seven acts of extreme cruelty to victims.According to one Colombian organization, as recently as June 2005 the paramilitaries were holding 509 people hostage.
The government itself recognizes that there have been numerous cease-fire violations, but argues that the cease-fire has nonetheless resulted in a significant reduction in the number of atrocities committed by paramilitaries.While official statistics show a decrease in some major indicators atrocities committed by both paramilitaries and guerrillas, the start of this trend does not coincide with the cease-fire declaration or with the start of demobilization negotiations.
There are numerous factors that may have contributed to the decrease in official indicators of abuses, including a change in tactics by Colombia's armed groups, the consolidation of paramilitary control in some areas, and a strategic retreat by the guerrillas in response to an increase in military action against them.And it is far from clear how long the decreases will last.
In Medelln, for example, homicide rates have been dropping steadily in recent years, going from 3721 in 2002 to 2013 in 2003, and 1177 in 2004.The drop began before the BCN's demobilization, and coincides with the BCN's consolidation of its control over the city after the defeat of most of the guerrillas and competing paramilitary groups (such as the Metro Block) in the city.BCN commanders themselves told us that they had brought peace to the city by taking it over.
In May 2005, the U.N. High Commissioner for Human Rights, Louise Arbour, visited Colombia and raised concerns about the paramilitaries' continued cease-fire violations.President Uribe responded publicly by arguing that every time a paramilitary group violates the cease-fire, the government combats it.
However, the government has yet to make public any concrete examples of ways in which it has enforced the cease-fire.To the contrary, despite their repeated cease-fire violations, paramilitaries have consistently been able to avoid accountability.
The most flagrant case of such impunity is that of the notorious paramilitary commander Don Berna.In late May, Colombian prosecutors ordered the arrest of Don Berna for the April 10 assassinations of Colombian Congressman Orlando Bentez, his sister, and his driver, on a road near Santa Fe de Ralito.Don Berna had allegedly ordered the assassinations after Benitez refused to stop campaigning in the region.
Announcing that the peace process could not become a "paradise of impunity" and that Berna's alleged crime constituted a cease-fire violation, President Uribe authorized an enormous operation in which hundreds of security forces entered Ralito to arrest Don Berna.Don Berna evaded arrest for two days, finally turning himself in on May 27, 2005.
Despite Don Berna's alleged responsibility for three atrocities in breach of the cease-fire, however, Colombian authorities subsequently announced that Don Berna would be allowed to demobilize and, presumably, receive all attendant benefits.
Continued Paramilitary Control
There are signs that powerful paramilitary structures have remained intact even after the demobilizations of the various blocks.
One revealing fact is that during their spontaneous declarations (which have in some cases occurred months after the demobilization ceremonies) at the reference centers, the demobilized paramilitaries have not requested public defenders to represent them.Instead, according to government officials, the demobilized paramilitaries have consistently been represented by the same handful of lawyers, apparently hired by their former commanders.
In Medelln, BCN commanders continue to exert a great deal of authority in many neighborhoods through their non-profit association, the "Democracy Corporation" (or Corporacin Democracia), and through the monitoring process itself (in at least some cases, low-level commanders were selected as "peace coordinators" due to their leadership skills).There have been reliable reports that members of the Democracy Corporation are taking advantage of their position to start illegal businesses, in which they take others' land and sell or rent to displaced people.While leaders of the Democracy Corporation have stated that all they are doing is "social work," people who spoke with Human Rights Watch claimed to have been threatened and abused by demobilized paramilitaries in the city for refusing to follow orders or resisting extortion.
In interviews, the heads of the Democracy Corporation admitted that they were still in touch with their top commander, Don Berna.And, in an example that some have described as a model for other parts of the country, the Democracy Corporation is, under the guidance and overarching leadership of Don Berna, increasingly involved in politics, both at a local level and through campaigns for national public office.
Don Berna, in turn, appears to exert extraordinary power in the city, where many believe that the reduction in crime levels is a direct result of Berna's orders.After authorities ordered Don Berna arrested for the assassination of Congressman Benitez, bus transportation was paralyzed in Medelln, reportedly because drivers were threatened by Berna's men.
Outside of Medelln there have also been reports of continued paramilitary activity in regions where paramilitaries have demobilized.For example, in Valle del Cauca, where the Calima Block demobilized, Human Rights Watch received reports from residents of the towns of Calima Darien and Florida (areas that had been under the control of the Calima Block) that paramilitaries, apparently from the Calima Block, were still committing abuses there.Law enforcement and other government authorities, as well as the office of the U.N. High Commissioner for Human Rights in Cali, had received similar reports.
A serious problem with the demobilizations is the lack of clarity about the membership of paramilitary groups, and whether the demobilizations of those groups have been complete.
This issue gained a great deal of public attention in connection with the demobilization of the BCN.After that demobilization, there were reports that common criminals had posed as paramilitaries, and in recordings of the negotiation leaked to the media, Restrepo stated that the Medelln demobilization had been an "embarrassment."According to Medelln's Mayor, Sergio Fajardo, this is inaccurate: the city is full of different types of criminal organizations, including gangs, but the paramilitaries had incorporated those gangs into their structure.
Whether or not non-paramilitaries participated in the Medelln demobilization, we did receive reports that members of the BCN had remained active in the area.A demobilized low-level commander told us that not all the troops under his command were allowed to demobilize because his commanders had given him only forty slots to fill with demobilized troops.
Very recently, the Colombian government announced that 800 men from the Hroes de Granada, a little-known paramilitary block reportedly formed two years ago near Medellin, also under Don Berna's command, had started the demobilization process.According to news reports, the block includes four hundred men from the so-called "Envigado Office," a highly sophisticated network of assassins and criminals that Don Berna inherited from Pablo Escobar, and that has not traditionally been considered a paramilitary group.The start of the demobilization was preceded by allegations that Don Berna was recruiting people to pose as paramilitaries for purposes of demobilization, and was offering them salaries of 360,000 pesos on top of the stipend they would receive as demobilized individuals.
It is also possible that in some areas the vacuum left by demobilizing paramilitaries is being filled by other, in some cases new, paramilitary groups.One demobilized man told us that he believed the groups had a strategy to replace the demobilized blocks with new ones: "I once worked with the Calima Block I saw the day they turned themselves in.I had worked with about 200 men but none of them was at the negotiation.I think they have remained active."In April and May there were reports of new paramilitary groups being formed in Valle del Cauca and in the Catatumbo region.
Some demobilized paramilitaries suggested that a partial demobilization might be the goal of the paramilitary leadership: "Those of us who are not big commanders will demobilize.But aside from Mancuso there is another one who will not demobilize and will take over the reins of the business," said one.
A former senior member of the Catatumbo Block told us that his group had intentionally left a portion of its troops active.According to another demobilized paramilitary, the demobilization process is "a farce.It's a way of quieting down the system and returning again, starting over from another side."
Wealth and New Recruitment
Beyond the question of what happens with the troops, what may turn out to be more important is the question of what happens with the commanders' and the groups' wealth.The new demobilization law provides that to be eligible for demobilization benefits, paramilitary groups must turn over assets resulting from illegal activity.However, the law fails to include any penalties if it is later discovered that paramilitary groups or commanders withheld substantial portions of their illegally acquired wealth.As long as paramilitary groups hold on to their wealth and sources of financing, they will be able to entice new troops to join.
So far the only paramilitary block to turn in any assets to the government is the Catatumbo Block, and members of that block did not turn over any cash.
Several demobilized paramilitaries told us that they were certain their commanders were hiding assets: "If one is going to demobilize, one doesn't leave the assets in one's own name.One builds front companies," said one demobilized paramilitary who said his group was involved in drug processing."They can give that land to other people they trust," said another.
One man elaborated further, telling us that the paramilitary commanders would never let go of their illegal businesses because if they did, "how will they finance themselves?"In his view, "the demobilization process is a way to try to clean the biggest guys, [and] move all their money into legality.They have a lot of it because it's a big business.There is a system: they enter a farm, kill or throw out a rancher, and that farm is then transferred to a hardliner.To discover that is very complicated.When they enter legality [by demobilizing], they are going to say that they already had that land from before."
It is also doubtful that paramilitary groups have been turning over all their weapons.Several demobilized paramilitaries told us that they had more than one weapon, and in some cases they had three or more.But in the demobilizations that have been conducted so far, on average each member turned over about one weapon.And one demobilized man from the Catatumbo Block directly admitted to us that "the weapons were not all turned over."
Paramilitary groups have continued to recruit new troops.In at least some cases, paramilitaries are even recruiting from the ranks of the demobilized.A demobilized man in Bogot told us that "there are people from the guerrillas who [after deserting] have joined the AUC.On the corner [outside the reference center] they are recruiting for the self-defense forces.They are paying 400,000 pesos. They have also gone to the shelters to recruit." Another told us that he had been approached "several times" by recruiters, and that "many" of the people who had demobilized with him had rejoined armed groups.Such statements have been corroborated by news reports about other demobilized persons, who claim that the people who are trying to recruit them are also purchasing new weapons.
In February of 2004 the Organization of American States (OAS) established a Mission to Support the Peace Process in Colombia ("OAS Mission").The purpose of the OAS Mission is to "enable the OAS to provide technical support to the verification of the ceasefire and cessation of hostilities, demobilization, disarmament, and reintegration initiatives" in Colombia.
In its authorizing resolution, the OAS Permanent Council emphasized "the importance of the principles of truth, justice, accountability, and reparation to victims in laying the foundations for lasting peace in Colombia."It also specifically resolved "to ensure that the role of the OAS is fully consistent with the obligations of its member states with respect to the effective exercise of human rights and international humanitarian law, and to invite the Inter-American Commission on Human Rights to provide advice to the Mission."
In practice, however, the OAS Mission has played a highly questionable role, serving primarily as a rubber stamp for the actions taken by the Colombian government.Throughout, the OAS Mission has been silent about the problems with the process, and as a result, has helped to give the process a veneer of international legitimacy.
According to mission officials, the OAS Mission is not allowed to publicly give its opinion about the problems with the process because it has no reporting function.In the words of one official, "I envy Fruhling [the head of the Office of the U.N. High Commissioner for Human Rights in Colombia] because he has a reporting function."Also, mission officials claim that they are not responsible for determining whether the legal framework they are working with is consistent with international standards.Instead, "that is what the Inter-American Commission on Human Rights is for."
This explanation is puzzling because the OAS Mission has actually made a number of statements in favor of the government's handling of demobilizations, even dismissing international concerns.And it continued to do so despite the Inter-American Commission on Human Rights' strong criticism of the process.
In recent days, the Inter-American Commission has publicly criticized the demobilization law approved by the Colombian Congress for its failure to include adequate mechanisms to protect victims' rights to truth, justice and reparation.It remains unclear what action the Permanent Council will take with respect to the OAS Mission in light of the Inter-American Commission's analysis.
But even putting aside the OAS Mission's failure to publicly uphold these international standards on victims' rights, there is no indication that the OAS Mission is playing a useful role in the verification of the demobilization process.
In its reports to the OAS, the OAS Mission states that it verifies the lists of demobilized combatants, as well as the weapons that are turned over by paramilitaries going through the process.But neither the government nor the OAS Mission has independent information about who all the members of each group are, or what weapons they own.So their "verification" appears limited to making a list of the weapons that the groups choose to turn over, and making sure that the persons who say they are going to demobilize are the same ones who in fact go through the ceremony.Beyond that, representatives of the OAS Mission are present during the destruction of explosives, and frequently assist the Office of the High Commissioner for Peace in carrying out tasks (for example, transporting those who have signed up to demobilize to the place where the demobilization ceremony will take place).
The OAS Mission has representatives stationed at the various reference centers for demobilized persons to verify the reintegration process.It also supposedly does work with communities affected by violence, although in its own words, "the work of the Mission was basically to develop awareness activities regarding the mandate and the process of a return to civilian life and assisting the Office of the High Commissioner in promoting the transition to institutionalism."
In all these tasks, the OAS Mission's role is mainly to be present and accompany existing government institutions as they implement their own demobilization policies.The OAS Mission does not behave like an independent observer, nor does it apply international standards to evaluate the government's policies.It simply accepts the policies and helps the government implement them.
The OAS Mission has not even played a useful and distinct role in the verification of the cease-fire declared by the paramilitary groups.To the contrary, the OAS Mission has been practically invisible on this issue.In interviews, officials from the OAS Mission acknowledged that the paramilitaries have not fully complied with the cease-fire and said that "from the first day, the OAS has made clear" that it is impossible to fully verify the cease-fire without a complete "concentration" or gathering of all paramilitary troops in a single region within Colombia.As a result, they view their mission as "trying to make them fulfill the cease-fire, with the understanding that it cannot be done without a concentration."
The OAS Mission receives reports of cease-fire violations through various sources.Those sources have included, in recent months, the Public Advocate's office and a Colombian NGO called the Security and Democracy Foundation. In addition, OAS Mission representatives are members, alongside government officials and the AUC itself, of a Verification Committee that is supposed to receive complaints of cease-fire violations.
However, it is far from clear what the OAS Mission does with reports of cease-fire violations.Mission officials claim that they verify those violations by opening an "investigation," interviewing the people who filed the complaints and others who might have relevant information.But in meetings with Human Rights Watch, Mission officials could not describe the criteria and procedures they used to determine what constituted a cease-fire violation.
Nor does the Mission, apparently, promptly verify all violations of which they receive reports.The Public Advocate's office has been submitting reports to the Mission every month, but the Mission does not systematically follow up on the reports with the office.
According to the OAS Mission, the verification process "is intended not only to establish concrete cases of violations of the cessation of hostilities but also to discourage violations and thus improve on the commitment undertaken by the AUC."But even when the OAS Mission does verify a violation, it does not publicly denounce it, or even report it to the OAS Permanent Council.Rather, all the OAS Mission does with its information about cease-fire violations is to try "to dissuade" the paramilitaries from committing violations through the Verification Committee.
OAS Mission officials claim that this dissuasion work has, in some cases, prevented mass displacement and other abuses.However, it is impossible to determine the extent to which the dissuasion is effective or is even occurring, given that the OAS Mission has not publicly spoken about this work.Aside from a few instances it described superficially in its Third Report, the OAS Mission has not reported on this work to the Permanent Council.
The Colombian government has announced that it hopes to conduct demobilizations of all remaining paramilitary blocks by the end of 2005.The problems with the implementation of recent demobilizations have yet to be addressed in any way, and will almost certainly continue to plague upcoming demobilizations.
The resistance of the Colombian government to conducting demobilizations in a serious and effective manner is reflected not only in its record to date but also in the debate over the demobilization law that the Colombian Congress recently approved.
When confronted with serious proposals for mechanisms to dismantle paramilitary groups, the government repeatedly dismissed them, usually making broad metaphysical statements that failed to address the issue.For example, an oft-repeated mantra of the government has been that the goal of the process is to reach "peace without impunity" and "justice without surrender."Frequently, the government has also engaged in personal attacks against politicians and others who criticized its approach to demobilization.Even politicians with strong pro-Uribe credentials, such as Congresswoman Gina Parody, have been accused of being disloyal because of their opposition to the law and their support for an alternate proposal.
The government has argued that those who oppose the law are either politically motivated or poorly informed: the law, they say, furthers victims' rights to truth, justice, and reparation.Thus, officials point to provisions in the law stating that victims have these rights.They also point to the fact that the law does not provide for a complete amnesty for atrocities; that it provides for courts, trials, and punishment; and that it establishes a National Commission of Reparation and Reconciliation that is supposed to monitor the process to ensure victims' rights are protected.
But appearances are deceptive.A closer analysis of the law shows that under the surface, it does not include the necessary mechanisms to make victims' rights effective, and to guarantee confessions, serious investigation, and reparation in most cases of abuse.Nor does the law include the necessary mechanisms to ensure a genuine and lasting demobilization and dismantling of paramilitaries' mafia-like structures.
In the months leading up to its approval, many persons, both within Colombia, and outside, including the U.N. High Commissioner for Human Rights, the Inter-American Commission for Human Rights, several U.S. Senators from both sides of the aisle, and non-governmental organizations, pointed out serious deficiencies in the demobilization law.Human Rights Watch representatives met repeatedly with President Uribe and senior Colombian officials to discuss our concerns over the law.
But none of these concerns were ever addressed with anything more than cosmetic changes.And rather than correcting any of the glaring problems in the existing demobilization process, the new law aggravates them. A detailed analysis is presented below.
Investigation and Prosecution of Crimes and Abuses is Greatly Restricted
The initial procedure for demobilization remains largely unchanged.The process begins with the government giving the names of those who are to demobilize to the Attorney General's office.Subsequently, each individual gives a spontaneous declaration.
However, the law introduces drastic reductions in the time prosecutors have to investigate and bring charges against demobilized persons.Under the law, the Attorney General's office will have only thirty-sixhours after receiving the spontaneous declaration from each paramilitary to bring charges against him for any crimes in which he may be "reasonably inferred" to have participated, based either on the spontaneous declaration or on any other evidence investigators may have, even if investigations are still at an early stage.
If no charges are brought within thirty-six hours, the paramilitary is off the hook:he will be able to fall within the framework of Law 782, receive a pardon for agreement to commit a crime, and start receiving economic benefits.
If charges are brought, then within the next sixty days "or earlier, if possible," prosecutors are required to complete their investigations and bring the cases to trial.Under ordinary circumstances, it is virtually unheard of for criminal investigations in Colombia to be completed within such short terms. In the context of massive demobilizations, in which hundreds of paramilitaries could be giving their spontaneous declarations at the same time, it is unlikely that even the most cursory of investigations of their crimes will be conducted.
To the contrary, charges will probably be brought only against those paramilitaries who are already under investigation.And unless those investigations are already at an advanced stage by the time of their demobilization, or the paramilitary chooses to confess during his spontaneous declaration, there is a serious risk that the prosecutions will end in acquittals.
Moreover, this expedited process may allow paramilitaries to receive acquittals or sentence reductions very quickly, before Colombia's Constitutional Court has even had a chance to rule on the law's constitutionality.
The government has yet to offer any public justification for these extreme limitations on investigations of known atrocities.
A Single Reduced Sentence as low as Two or Three Years Applies to All "Accepted" Charges
Even in cases where prosecutors happen to have a solid case already prepared, or where the defendant happens to confess, those responsible-however heinous the offense, however many innocent civilians they might have killed-can avoid meaningful punishment by simply "accepting the charges" against them.These people will be able receive reduced sentences set, in theory, at five to eight years.The sentences for all their different crimes are not served consecutively, but are instead "accumulated."Thus, the defendant only has to serve a single reduced sentence of five to eight years for all the crimes he committed as a member of the group.
Even if additional charges are brought after sentencing, the paramilitary can avoid any significant increase in his sentence by simply "accepting" the new charges.In that case, he would receive another reduced sentence for the new charges, which might be increased by twenty percent (i.e., approximately another year and a half) depending on the gravity of the charges.This new reduced sentence would be "accumulated" with the previous sentence, so that the total time served on all sentences would never exceed eight years.
Moreover, while in theory the reduced sentence is supposed to be between five and eight years, in practice the time served could be much lower. The law provides that eighteen months of the time paramilitaries spend in a concentration zone (i.e., negotiating in Ralito) "shall be computed as time served."Also, there is a line of judicial constitutional interpretation that holds that all prisoners should be allowed to receive generally available sentence reductions, including reductions of nearly one third of their sentences for work and study, which could allow them to reduce their sentences by up to one third.As a result, they could in practice serve as little as two to three years for the totality of their crimes.
The law provides that membership in a paramilitary group counts as "sedition," a political crime for which extradition is unconstitutionaland for which defendants cannot be barred from holding public office.
In addition, all crimes committed in furtherance of paramilitaries' political goals could also be considered "political."In Colombia, crimes can be tried jointly and considered "connected" whenever the defendant is charged with "the commission of several crimes, when some have been performed with the goal of facilitating the execution or seeking the impunity of others; or in furtherance or as a consequence of the other."Thus, to the extent that paramilitaries' drug trafficking and other crimes are found by courts to have been committed in furtherance of their objectives as paramilitaries,paramilitaries' convictions for those crimes will not bar them from holding public office.
Inclusion of this provision in the law was one of the most important demands of the paramilitary leadership, and was the subject of significant controversy before its approval.
Opportunity to Avoid Extradition
The United States has sought the extradition of several paramilitary commanders, including Salvatore Mancuso, "Jorge 40," and Don Berna, for drug trafficking crimes.One of the primary goals of paramilitary leaders in negotiating with the Colombian government has been to find a way to protect themselves from extradition to the United States.
Currently, under Colombian law, extradition of Colombian nationals is only possible for non-political crimes committed after 1997.In the 1980s the Colombian Constitutional Court held that the U.S.-Colombia treaty on extradition was inapplicable because of procedural defects in its signature.And the 1991 Constitution strictly prohibited all extradition of Colombian nationals.This prohibition was only partially lifted through a 1997 amendment to the Constitution, which stated that Colombian nationals could be extradited for non-political crimes committed abroad after 1997.
The demobilization law does not explicitly bar paramilitaries' extradition.However, the law gives paramilitaries tools to shield themselves from extradition to the United States.
As part of the demobilization process, paramilitaries may be charged with crimes for which their extradition has been requested.To the extent that they are acquitted or serve reduced sentences for those crimes, paramilitaries will be able to assert the defense of non bis in idem (known as "double jeopardy" in common law jurisdictions) toavoid extradition to the United States.
Article 29 of the Colombian Constitution provides that all citizens have a right to "not be tried twice for the same act."In other words, if a citizen is tried and acquitted or convicted in Colombia for one act, he cannot be tried again for that same act (even if the charges are different).The Colombian Constitutional Court has held that, under Article 29, extradition is not possible "when the person requested by the authorities of another State is fulfilling a sentence for the same criminal acts to which the request makes reference."
Paramilitaries who wish to avoid extradition can (and will probably be advised by their lawyers to) admit all the criminal acts they have committed in the United States during their spontaneous declaration.Such an admission would immediately trigger a prosecution and trial in Colombia.Once a paramilitary commander is serving a reduced sentence in Colombia for the crimes he committed in the United States, the prohibition on double jeopardy in Art. 29 of the Colombian Constitution will bar his extradition on any charges based on the same acts for which he is serving a reduced sentence. And the reduced sentences under the demobilization law would be far preferable to lengthy prison sentences in the United States.This protection from extradition would apply to many paramilitary commanders, and could easily extend to so-called "pure" drug traffickers, who joined or formed paramilitary groups for the sole purpose of receiving benefits.
Although it is not necessary, paramilitaries may also be protected from extradition through the exercise of presidential discretion.For an extradition request to be granted in Colombia, the Supreme Court must first approve it.However, even after the Court's approval, the President retains the discretional authority to grant or deny the request.With respect to demobilized paramilitary leaders, President Uribe has stated that it may be necessary "in some cases to suspend the extradition."
Full and Truthful Confession is not a Condition to Get Sentence Reductions
As already described, the law requires paramilitaries to give a spontaneous declaration to the authorities in which they "will" describe their "participation in criminal acts."However, the declaration is an unsworn statement in which there is no obligation to tell the truth.A full and truthful confession is not required.
The government has made two arguments against conditioning sentence reductions on a full and truthful confession.First, according to Restrepo, benefits cannot be conditioned on confession because that would violate defendants' constitutional rights against self-incrimination as interpreted by the Constitutional Court.In fact, however, this is a misinterpretation of the holding of the Constitutional Court. The single decision on which Restrepo bases this claim deals with the question of what constitutes a coercive environment for interrogation, but does not hold that conditioning benefits on truthful confession would be problematic in any way.
Restrepo has also argued that to condition benefits on confession would be equivalent to "confession under torture, something very typical of physical duress in the times of the inquisition as well as under dictatorships."For this reason, Restrepo claims that it is enough and plenty, for purposes of establishing the truth, if paramilitaries merely "accept the charges" against them, without disclosing any information about their involvement in the atrocities or other crimes in question.Beyond that, he believes no further investigation is really necessary.
But to condition benefits on a full and truthful confession is a common practice in many countries, such as the United States, where confession is a standard part of a plea bargain. It does not necessarily have to be a coercive element, particularly where the defendant understands there is no compulsion to do so and that he may instead defend himself in court against any and all charges-a possibility under the law.Without some inducement to encourage paramilitary members to provide a full and truthful account of the facts, there will be little that investigators can do to make headway against the impunity of these highly organized criminal gangs.
The government claims that Article 25 of the law creates an effective incentive for disclosure of all crimes.In fact, it does not.As previously described, Article 25 states that if after receiving sentence reductions, or after receiving benefits under Law 782, a defendant is charged with new crimes he can still receive reduced sentences by accepting the charges.Judges may impose a twenty percent increase on the new reduced sentence, but the new sentences are accumulated with the old ones, so it is very unlikely that the defendant will ever serve more than eight years.Even if the twenty percent increase could go over eight years, it would translate into at most another year and a half.This is not a meaningful penalty or incentive for disclosure of crimes.
In the overwhelming majority of cases, even those involving commanders, demobilizing persons' incentive will be to disclose as little as possible during their spontaneous declarations, in the hope that the Attorney General's office will not have enough information to bring any charges, and that they will be able to pass, undetected, into the framework of Law 782.This is illustrated by a recently published interview with Daniel Angel, considered to be the second in command of the Office of Envigado, immediately under Don Berna.In the interview, Angel, who has started the demobilization process, is asked what crimes he will admit.He responds that "[t]he Attorney General's office will determine with what it is going to charge us."
No Incentives to Ensure Turnover of All Illegal Assets and Disclosure of Information about the Group's Structure and Finances
The law states under the title "requirements of eligibility" that for a demobilized person "to accede to" sentence reductions "the assets resulting from illegal activity must be turned over."It also states that those who participate in individual demobilizations (but not collective demobilizations) must "deliver information or collaborate with the dismantling of the group to which he belonged."
These are initial requirementsto become eligible for sentence reductions.However, the law does not include a section on revocation of benefits.Thus, once they have gone through the process and received their sentencing reductions, those reductions are locked in.Paramilitaries can keep their sentence reductions even if they are later found to have withheld assets or information, or even to have lied to authorities with respect to the group's structure, financing streams, assets, and operations.As a result, these conditions are toothless.
Nor is there any other applicable sanction for lying to the authorities about the group's operations, or failing to turn over all illegal assets.The sanctions for perjury do not apply because paramilitaries' spontaneous declarations are not sworn statements.
According to officials from the Office of the High Commissioner for Peace, the government does not need to deal with paramilitaries' assets through the demobilization law because it can just continue to apply existing law that provides for forfeiture of illegal assets.But this is beside the point: the government does not know what or where paramilitaries' assets are, and because of paramilitaries' complex systems for hiding assets (often through third parties) it will be virtually impossible for the government to find and seize them on its own.If the government is going to give the paramilitaries such generous benefits, then the burden should be on the paramilitaries themselves to disclose and turn over their illegal assets.
Unless the law includes real incentives for demobilized members to turn over illegally acquired assets and disclose what they know about the group, the group's criminal networks, financing streams, and assets will almost certainly remain intact.As a result, the state will have failed in its obligations to give effect to victims' rights to reparation and society's right to know the truth about these groups' abuses.And the process will almost certainly fail to dismantle these groups and result in a real and lasting peace.
Commanders Can Receive Sentence Reductions without Ensuring their Forces' Cessation of Abuses
Under the law, leaders of paramilitary groups can receive sentence reductions even if their group continues engaging in criminal activities and atrocities.The law draws no distinction between leaders and "members" of paramilitary groups-they can each receive the same benefits by demobilizing "individually," regardless of whether their group demobilizes.
Restrepo told us that he did not understand why Colombian Senator Rafael Pardo and others were criticizing this aspect of the law, because "[i]f they already demobilized, why do you need to ask for a cease-fire?"
The importance of conditioning benefits for leaders on their groups' cease-fire and cessation of criminal activities is that otherwise, leaders may demobilize alone, while their groups remain active.Alternatively, leaders may leave portions of their group operating and engaging in hostilities.To ensure that the demobilization is real and lasting it is crucial that leaders' benefits be conditioned on their groups' compliance with the cease-fire and cessation of criminal activities.
Colombia is a party to numerous international human rights treaties relevant to the current paramilitary demobilization process.These treaties require Colombia to give effect to the right to an effective remedy for the abuses committed by armed groups. Among the remedies required are prompt, thorough, independent, and impartial investigation, prosecution, and punishment of those responsible for abuses, effective guarantees of non-repetition, compensation to victims, and measures that uphold the right of victims and the community to know the truth about the abuses.
The American Convention on Human Rights, for example, states that every person has "the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties."This obligation to provide an effective remedy extends not only to abuses committed by agents of the state, but also to abuses committed by private parties and members of armed groups.
In turn, an effective remedy incorporates obligations to thoroughly investigate, prosecute, and punish those responsible for violations.As held by the Inter-American Court of Human Rights, "the State has the obligation to use all the legal means at its disposal to combat [impunity], since impunity fosters chronic recidivism of human rights violations, and total defenselessness of victims and their relatives."
The recent report of Independent Expert Diane Orentlicher, appointed by U.N. Secretary General Kofi Annan to update the United Nations principles on combating impunity, provides valuable guidance on interpreting the rights implicated in ensuring a remedy and reparations for the most serious violations of human rights.One injunction under the updated set of principles produced by Orentlicher ("Updated Principles") is the duty of a state to "adopt and enforce safeguards against any abuse of rules such as those pertaining to prescription, amnesty, right to asylum, refusal to extradite, non bis in idem, due obedience, official immunities, repentance, the jurisdiction of military courts and the irremovability of judges that fosters or contributes to impunity."The Updated Principles provide that even in cases where they are intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesties and other measures of clemency may not be granted to perpetrators until the State has fulfilled its obligations with respect to thorough investigations of violations, prosecution, trial, and punishment.
Of particular relevance to Colombia's demobilization process, the Updated Principles state:
The fact that an individual has previously been tried in connection with a serious crime under international law shall not prevent his or her prosecution with respect to the same conduct if the purpose of the previous proceeding was to shield the person concerned from criminal responsibility, or if those proceedings otherwise were not conducted independently or impartially and were conducted in a manner that, under the circumstances was inconsistent with an intent to bring the person concerned to justice.
States are increasingly understood to have obligations to take measures to give effect to society's and victims' "right to know" or right to truth."Recent developments in international jurisprudence and State practice have strongly affirmed both the individual and the collective dimensions of the right to know, although the contours of this right have been delineated somewhat differently by various treaty bodies."
Finally, Colombia has an obligation to provide for reparation to victims of gross violations of international human rights and humanitarian law, in proportion to the gravity of the violation.
President Uribe and other senior Colombian officials have been touring Europe and the United States to seek governments' political and financial support for their demobilization law.
In Europe, the response has been lukewarm, though both the Spanish and British governments have indicated a willingness to become involved in verification of the process through the European Union.The member states of the OAS have yet to speak to the issue.
In the United States, responses have been mixed.Several Senators both Republican and Democrat have taken a strong and clear position: support depends on Colombia's correcting serious problems in the law, and actually destroying the structure and power of these armed groups.The U.S. Ambassador to Colombia, however, has made statements in favor of the law.
As demonstrated by this report, the government's record and practices so far should not inspire any confidence that the problems in the new law will be overcome in implementation.To the contrary, there is every indication that this process is serving primarily the interests of paramilitary commanders and doing little to advance peace or justice.And once the law has been implemented, and sentence reductions granted, it will be too late for the Colombian government to correct its mistakes and recover its leverage over the paramilitary leadership.
We therefore urge the Colombian government to take immediate action to reform its demobilization law and policies.And we urge other countries and international institutions to abstain from lending their credibility to this process.To do so would be to turn themselves into tools of drug traffickers and killers, and accomplices to a process that undermines human rights, justice, and the already weak rule of law in Colombia.
The report was edited by Joanne Mariner, Deputy Director of the Americas Division of Human Rights Watch.Dinah Pokempner provided international law guidance.Americas Division Executive Director Jos Miguel Vivanco and Deputy Program Director Joe Saunders also made editorial contributions.Americas Division Associate Jennifer Nagle, Andrea Holley, Veronica Matushaj, and Fitzroy Hepkins provided invaluable production assistance.
Human Rights Watch is grateful to the many persons who assisted us in the course of our field research, many of whom asked not to be named for security reasons.
Recent Human Rights Watch Reports on Colombia
Letting Paramilitaries Off the Hook, 2005
You'll Learn Not to Cry:Child Combatants in Colombia, 2003
A Wrong Turn:The Record of the Colombian Attorney General's Office, 2002
The "Sixth Division":Military-Paramilitary Ties and U.S. Policy in Colombia, 2001
Beyond Negotiation:International Humanitarian Law and Its Application to the Conduct of the FARC-EP
The Ties That Bind:Colombia and Military-Paramilitary Links, 2000
War Without Quarter:Colombia and International Humanitarian Law, 1998
Colombia's Killer Networks:The Military-Paramilitary Partnership and the United States, 1996