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VII. Future Demobilizations

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.”¹²⁵  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.¹²⁶  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.¹²⁷ 

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.¹²⁸  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.¹²⁹

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.¹³⁰  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.¹³¹

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.¹³²

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.¹³³  These people will be able receive reduced sentences set, in theory, at five to eight years.¹³⁴  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.¹³⁵ 

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.¹³⁶  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.¹³⁷

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.”¹³⁸  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.¹³⁹  As a result, they could in practice serve as little as two to three years for the totality of their crimes.¹⁴⁰ 

Political Status

The law provides that membership in a paramilitary group counts as “sedition,”¹⁴¹ a political crime for which extradition is unconstitutional¹⁴² and for which defendants cannot be barred from holding public office.¹⁴³

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.”¹⁴⁴  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.¹⁴⁵

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.¹⁴⁶

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.¹⁴⁷

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 1997.¹⁴⁸

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.”¹⁴⁹ 

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.¹⁵⁰  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.¹⁵¹  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.¹⁵² 

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.”¹⁵³

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.”¹⁵⁴  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.¹⁵⁵  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.¹⁵⁶ 

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.”¹⁵⁷  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.¹⁵⁸  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.¹⁵⁹  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.¹⁶⁰  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.”¹⁶¹ 

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.”¹⁶²  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.”¹⁶³

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.¹⁶⁴

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.¹⁶⁵  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.¹⁶⁶  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?”¹⁶⁷

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.