Colombian Vice-President Francisco Santos and Foreign Minister Carolina Barco are in Washington right now, trying to win U.S. support for the paramilitary demobilization process despite last monthâ€™s passage of an extremely lenient law for dealing with former AUC leaders (the so-called â€œJustice and Peaceâ€ law).
Santos is clearly frustrated by the reception heâ€™s getting here. On his way out of a meeting with the State Department yesterday afternoon, he told reporters that he blames the non-governmental organizations (like us) who have been opposing U.S. support for the process since the law was passed. â€œNo doubt led by JosÃ© Miguel Vivanco of Human Rights Watch, they are on a crusade that seems jihadist to us, an obtuse and misguided attitude, and we will say that to them tomorrow when we meet with them.â€
I donâ€™t know which charge I find more insulting: the idea that we are on some sort of ideological â€œholy war,â€ or the notion that we are being led by Human Rights Watch!
The meeting Santos mentions â€“ which takes place in a couple of hours â€“ should be interesting. In order to prepare, weâ€™ve been closely studying the new â€œJustice and Peaceâ€ law and the many criticisms that have been leveled against it. We drafted this response (PDF format) to a letter the Colombian government had sent last week to the U.S. Congress (PDF format).
Weâ€™re not on a jihad, Mr. Vice-President. Nor, for that matter, are the UN High Commissioner for Human Rights and the OAS Inter-American Human Rights Commission. Our opposition to U.S. support for the paramilitary process is based on rational thought, not ideology.
This brief thought experiment should help explain why we feel our view is eminently reasonable. Walk through these four hypothetical scenarios, all of which could easily play out several times as the â€œJustice and Peaceâ€ law is implemented.
Scenario 1. Letâ€™s say Iâ€™m fourth-in-command of the AUCâ€™s â€œHÃ©roes de DÃ³ndequieraâ€ Bloc. Over the years, Iâ€™ve ordered and participated in several massacres and extrajudicial killings. I have several cattle ranches and African palm plantations that Iâ€™ve stolen by displacing their former occupants, and I keep them in othersâ€™ names.
- When I demobilize, Iâ€™m required to confess to what I did wrong. In the hope of getting the most minimal sentence â€“ five years, minus up to 18 months spent negotiating, or 3 Â½ years â€“ and of being liable for the smallest amount of reparations, I leave out of my statement several massacres, killings, tortures, displacements, and illegally obtained assets.
- Government prosecutors have only 36 hours to decide whether I should be charged for the crimes to which I confessed. The â€œJustice and Peaceâ€ law authorized a team of only 20 prosecutors, however, and they are incredibly overburdened. In 36 hours, they must decide whom to pursue among the 700 members of my paramilitary bloc that demobilized today. And theyâ€™re already busy with the cases of thousands more who demobilized in the past two months. My top leadership made a brilliant decision when they chose to accelerate the pace of demobilizations; while it played really well in the media, it also overwhelmed the small team of prosecutors, thus assuring that more of us would slip through the cracks.
- I am to be charged for the crimes for which I confessed. Letâ€™s say that â€“ perhaps because Iâ€™m a high-ranking commander â€“ the prosecutors claim that I might be responsible for several other cases of murders and stolen property. I have two choices:
- I can lie and say that I had forgotten to disclose these additional incidents when I confessed. The â€œJustice and Peaceâ€ law states that if I deliberately left these out of my original confession, my right to a light sentence is stripped away, and I must go into Colombiaâ€™s criminal justice system. But the prosecutors and investigators have no way of proving that my lack of disclosure was intentional; I left no written record of my intention to deceive, nor did I mention to anyone that I deliberately left anything out. The â€œJustice and Peaceâ€ law says that if I recognize that I committed the newly revealed crimes too, I can add them to my confession, and at worst a few months are added to my sentence. (Of course, any victims of those additional crimes can now sue me for reparations.)
- I can deny any responsibility for these additional crimes. If I do, my case is added to the already large caseload of one of the 20 prosecutors, who assigns it to one of 150 investigators (the amount authorized by the â€œJustice and Peaceâ€ law) who is already trying to look into the background of several other recently demobilized paramilitaries. Though they are working day and night, they can uncover little new information about their many assigned cases before the 60-day deadline mandated by the â€œJustice and Peaceâ€ law. In the past, Colombia has seen very, very few examples of human-rights investigations that are successfully concluded within only 60 days. I stand an excellent chance of avoiding being found responsible for these unconfessed crimes â€“ though at any time, I may confess, say it was unintentional, and remain eligible for a lighter sentence.
- The 60 days are up. I turn myself in to the authorities to begin serving my sentence. They give me six years, which is really 4 Â½ years because I claim that I spent eighteen months in the zone where negotiations were taking place. (Even if I didnâ€™t, they cannot prove that I wasnâ€™t there.) I donâ€™t go to a normal prison, but instead enjoy comfortable house arrest, along with many of my former companions, at a rural estate in a zone that the AUC has long controlled.
- I still have most of my stolen lands, and I still havenâ€™t been officially connected to many massacres and killings. I must give up the illegally obtained assets to which I confessed ownership, and these are used to pay reparations to victims of the crimes to which I confessed. I get to keep the rest.
Scenario 2. Letâ€™s say Iâ€™m in charge of the Bloque de los Libertadores de Fulano. I command 300 men active in ten municipalities. My bloc controls the local drug trade, is guaranteed a share of all local-government contracts, and no local politician rules without my permission.
- When I confess, neither I nor my men are required to reveal anything we know about our command, support and financing networks, or the structure of our organization. Although many members of Colombiaâ€™s Congress had sought to add this requirement to the â€œJustice and Peaceâ€ law, they were defeated by the pro-government majority.
- As a result, my control over local politics and drug activity is undiminished. Though I no longer command an army of 300 heavily armed, camouflage-clad men headquartered in rural encampments, I still have dozens, if not hundreds, of hired killers a cell-phone call away. Even from the rural estate where I am serving my short sentence, I can do drug business and keep out competitors, guarantee that I get a percentage of government contracts, persuade unapproved political candidates not to run for office, intimidate union leaders and human rights defenders, and order â€œsocial cleansingâ€ campaigns against street children, petty criminals, and drug addicts in slum areas.
While there is no shortage of mayors, military officers and judges in the zone where my unit operated, I still maintain de facto control. My paramilitary unit has not been dismantled, it has just taken a new form.
- What of the wealthy local landowners and businessmen who helped to found my paramilitary unit, and who willingly supported it? What of the military officers who aided and abetted my unit, even after 1989 when it was declared illegal? Neither I nor my men are required to mention them in our confession. They will not only go unpunished â€“ they will go unnamed.
Scenario 3. Letâ€™s say I was displaced after a massacre killed my wife and child. I left behind my 5 hectares of plantains and cattle pasture six years ago, and have been living on the outskirts of Cartagena ever since.
- I know the name of the paramilitary comandante who ordered the operation that killed my family members, and who now controls my land. However, he has not confessed to the crime that took my family and land away. The prosecutors and investigators were unable to uncover anything new in just 60 days. And a third-party figurehead, believed to be close to the comandante, now occupies the land that was mine.
- According to the â€œJustice and Peaceâ€ law, I have little or no means of securing reparations. Crimes for which nobody has admitted responsibility, or been found guilty, are not subject to reparations. I may never get my old land back.
- Even if the comandante admitted to the massacre that led to my displacement, the â€œJustice and Peaceâ€ law does not make him liable for reparations unless I take the proactive step of suing for them. I am a powerless individual from the slums of Cartagena, and he is a powerful ex-comandante who is still believed to control the zone where I used to live. Though suing for reparations may anger the ex-comandante, the â€œJustice and Peaceâ€ law does not require the government to provide me with extra security measures. I would have to be quite brave to proceed with my petition for reparations.
Scenario 4. I was a prominent drug trafficker whose name had long appeared on the U.S. Treasury Departmentâ€™s list of â€œSpecially Designated Nationals.â€ In the hope of avoiding prosecution and extradition, I joined the AUC in 2002, paying millions for the right to call myself Comandante so-and-so and to be the titular commander of a 200-man bloc of fighters. In 2004, a Miami court indicts me on charges of shipping tons of cocaine to the United States.
- During most of its transit through Colombiaâ€™s Congress, the â€œJustice and Peaceâ€ bill included a provision would have disqualified me and other paramilitary leaders who had dealt drugs before joining the AUC, thus forcing me to face Colombiaâ€™s criminal-justice system or even extradition to the United States. Luckily for me, this provision was quietly removed from the bill shortly before final approval. Either way, though, the AUC leadership would probably have stuck up for me, insisting that I had been a clandestine member of the group long before 2002.
- The â€œJustice and Peaceâ€ law claims that, as a member of the paramilitaries, I have committed sedition, which is a â€œpolitical crime.â€ Under Colombiaâ€™s constitution, political crimes are not subject to extradition.
- My well-paid lawyers and I argue that my past narcotrafficking was fundraising for the paramilitary cause, and thus intimately connected to the political crime of paramilitarism (sedition). Since the â€œJustice and Peaceâ€ law does not define which crimes are subject to the lighter sentences, my drug-running is admitted as a â€œconnectedâ€ crime, and applied toward my five-to-eight-year sentence.
- Once I have served my light sentence at a rural estate within Colombia, I cannot be extradited to the United States for my past narcotrafficking â€“ to do so would be double jeopardy (punishing me twice for the same crime).
It is our view that no people of good will can abide by results such as these, and no foreign government should support a process that makes these outcomes likely. Is that attitude â€œobtuse and misguided?â€ We certainly donâ€™t think so, Mr. Vice-President.