Paramilitary groups have cut a bloody swath through Colombia in the more than
twenty years since landowners, drug traffickers, and the Colombian military
began setting up so-called "self-defense groups." Since the 1980s,
paramilitaries have killed tens of thousands and forced hundreds of thousands
from their homes. During most of this period, the violence they committed against
civilians – massacres and extrajudicial killings, torture and forced displacement
– far exceeded the leftist guerrillas’ own horrific record.
As we watch the government-paramilitary talks proceed, we must recognize a
very uncomfortable fact. Any agreement that results is going to include some
impunity for mass murderers. This is plain, simple and unavoidable. By offering
to negotiate with any illegal armed group, a government implicitly guarantees
that it will not submit its leaders or members to ordinary justice, and offers
a degree of impunity to induce them to lay down their arms.
Santa Fe de Ralito isn’t Nuremberg, after all, nor is it the site of negotiations
with a group that has all but surrendered. No matter what a final agreement
looks like – even with a fair amount of "naming names," admissions
of guilt and generous reparations – individual paramilitaries who ordered or
took part in the deaths of dozens (or even hundreds) of civilians, people who
committed "crimes against humanity" normally punishable with life
imprisonment, will almost definitely be out of jail and living in polite society
within ten years of its signing.
That level of impunity is awfully hard to accept, even when given a fashionable
name like "
target="_blank">transitional justice." But it has happened in many countries
that have settled civil conflicts through negotiation over the past couple of
decades, from Central America to sub-Saharan Africa to East Timor.
Unlike these past peace processes, though, Colombia’s talks with the paramilitaries
are taking place between two parties that are far from sworn enemies. The Colombian
state sponsored or tolerated paramilitaries for many years; though official
policy is now to treat the paramilitaries as adversaries, most AUC leaders continue
to insist that they are pro-government. Both sides share an interest in papering
over the paramilitaries’ past abuses and the government collusion or omission
that allowed many to happen. As a vocal advocate of "forgetting,"
AUC advisor Carlos Alonso LucÃo, recently
target="_blank">argued in Colombia’s Semana magazine, "We should
be more concerned with those living in the present and future than with the
dead from the past."
No justice, no peace?
Most supporters of the Uribe government’s peace talks argue that insisting
on proportional justice will make peace unattainable. "I’m disturbed by
this strain of humanitarian fundamentalism,"
target="_blank">wrote Eduardo Pizarro, a noted Colombian political scientist
and brother of assassinated former M-19 chief Carlos Pizarro, in October. "Its
demands are so great that it could keep us from reaching peace. Should the peace
efforts fail, they and their intolerant attitudes will have an enormous responsibility
for the thousands who would die in the coming years."
This belief underlay the Uribe government’s original "alternative punishments"
bill, introduced in Colombia’s congress in August 2003. This legislation, which
went nowhere, would have required only light and symbolic penalties, along with
financial reparations, for serious crimes. (It is worth noting that many of
the bill’s opponents in fact support the idea of negotiating with paramilitaries.
They are concerned, however, that any law that emerges will set a precedent:
the same weak standards could later be applied to guerrilla leaders following
a future peace process.)
On the other end of the debate is much of Colombia’s human rights community,
which essentially argues "no justice, no peace." A peace deal that
fails to punish the perpetrators and do right by the paramilitaries’ victims,
the argument goes, will only prolong a generations-old cycle of revenge, violence
and warlordism. Many contend that an agreement that allows paramilitary leaders
to remain free will fail to dismantle their structures of command, finance and
support, allowing the phenomenon of paramilitarism to persist. (A few argue
that paramilitaries deserve to be treated differently than guerrillas; since
they acted on behalf of the state, they contend, their crimes should be subject
to the same punishment as those committed by soldiers.)
The "no justice, no peace" argument is a strong one. Colombia has
been through many “forgive and forget†peace agreements that have forced people
to live alongside their loved ones’ and leaders’ amnestied killers, or to watch
those who stole their land and property simply get away with it.
This argument’s principal weakness, though, is its inoperability. Common sense
and the historical record tell us that armed-group leaders do not willingly
turn themselves in and go to jail for long periods. They only do so if they
face a far worse alternative: military defeat. Yet neither the paramilitaries
nor the guerrillas are likely to be defeated militarily anytime soon. To insist
on zero impunity, then, is to condemn Colombia – which has a poor record of
fighting paramilitaries anyway – to many more years of fighting. The fighting
would have to drag on until armed-group leaders see no choice but to submit
to life imprisonment (and possible extradition to the United States).
The point of this long discussion: in our view, a foreign government need not
insist on zero impunity as a precondition for its support of the paramilitary
peace talks. However, would-be supporters must take care not to back a process
that grants amnesty too liberally.
Searching for a compromise
Can a balance be struck between these two extremes? While it is hard enough
for donor nations to determine what threshold must be reached to merit support,
Colombians themselves are debating the issue intensely. The paramilitaries and
the Uribe government (with its original "alternative punishment" legislation)
have indicated that, if left to their own devices, they would favor a very liberal
amnesty deal. Much of the rest of Colombian society – particularly victims’
groups, human rights groups, and key members of Congress – has kept that from
happening by demanding far greater justice and accountability.
As Colombians search for a compromise, there is currently no legal framework
to deal with armed-group members who willingly demobilize but are accused of
committing crimes against humanity. Those paramilitaries who demobilize – as
many as 3,000 are expected between now and December 31 – are covered by existing
law ("Law 782" and "Decree 128") governing individual deserters.
Under these provisions, those who have no outstanding arrest warrants for serious
crimes are automatically amnestied and enter government "reinsertion"
programs. (Semana
target="_blank">notes that if any rank-and-file paramilitary fighter "committed
a crime against humanity but faces no arrest warrant or judicial process, he
can simply hide this information and go home.")
Those who do face charges of committing serious crimes will find themselves
in a legal limbo once they demobilize. While they will not go into Colombia’s
criminal justice system and face life imprisonment, there is still no law in
place to determine what will happen to them. For now, these "unpardonables"
must congregate in the Ralito demilitarized zone while they wait for Colombia’s
congress to agree on an "alternative punishments" law.
Opposition from many in Congress, including pro-Uribe legislators, has so far
torpedoed two "alternative punishments" bills introduced by Uribe
and his high commissioner for peace, Luis Carlos Restrepo: the lenient August
2003 version and a somewhat more stringent April 2004 bill. Neither bill even
came to a vote.
The Pardo "Truth, Justice and Reparations" bill
A new bill that comes closer to an acceptable "midpoint" is nearing
introduction in Colombia’s congress. This time, the legislation is not coming
from the Uribe government, but from opponents of the earlier bills. Former defense
minister and pro-Uribe Senator Rafael Pardo has joined with a diverse group
of legislators (among them Wilson Borja, a former labor leader and leftist congressman
who suffered a paramilitary assassination attempt in 2000) on what they call
a "Truth, Justice and Reparations" law.
The proposed law, like the Uribe government’s April 2004 submission, would
grant amnesty to all who are not accused of crimes against humanity. Those who
face more serious charges would be subject to at least five, and probably closer
to ten, years in prison, followed by parole. (The maximum penalty in Colombia’s
normal judicial system is forty years.)
The bill would create several special units to deal with demobilizations. A
Prosecutor for Truth, Justice and Reparations would investigate and prosecute
accused paramilitary members, who would be judged and sentenced by a special
nine-member Tribunal for Truth, Justice and Reparations. A special unit of the
government internal-affairs branch (ProcuradurÃa) would help victims
in the exercise of their rights.
A National Reparations Council would maintain a fund to compensate victims.
The fund would come from fines charged to paramilitaries and from the sale or
return of ill-gotten assets seized from paramilitary members. The bill makes
clear that demobilizing paramilitary members must account for and give up all
stolen assets, including the thousands of acres of land they appropriated by
displacing peasants; if found to be keeping these assets, they would cease to
benefit from the law’s lighter punishments.
Reparations to victims would include not just the return of stolen assets but
payments for pain and suffering, psychological harm, lost opportunities (such
as inability to attend school), and "damage to reputation and dignity."
As in the recent
target="_blank">arrangement for Chilean torture victims, the government would
assume responsibility for payments even if funds supplied by former paramilitaries
are not sufficient.
The bill would guarantee victims’ "right to the truth" about what
happened. While no "truth and reconciliation commission" is contemplated,
the bill would require the government to maintain an archive of all cases and
guarantee public access.
Compared to the two previous "alternative punishments" bills, the
proposed legislation would make a more serious effort to dismantle paramilitary
structures. Upon demobilizing, all paramilitaries would have to provide a thorough
accounting of their background in the organization, their stolen land and other
assets, and their understanding of the group’s command and financial structures.
Those found to be hiding information would be transferred to the criminal justice
system to face stiffer sentencing.
The Pardo bill, written with input from mainstream Colombian NGOs like the
Fundación Social and Fundación Ideas para la Paz, has gained the stated
target="_blank">support of such critical voices as José Miguel Vivanco, the
Americas director of Human Rights Watch.
Though a dramatic improvement, though, the bill could use some improvements.
One of the most glaring omissions is the failure to hold accountable those who
participated in paramiltiarism and aided serious crimes, but need not demobilize
– especially the military officers who facilitated the groups’ growth and activities,
and the landowners, drug dealers and other wealthy individuals who contributed
funds. While many of their names may appear in the public archive of cases,
they will not stand accused or even named by an impartial truth and reconciliation
commission.
Meanwhile, the commitment to have the government pay reparations could become
a huge "unfunded mandate" requiring the state to cough up millions
of dollars each year from a budget that is already deeply in deficit. At the
same time – as shown by the decade-old effort to untangle the true holdings
of MedellÃn and Cali cartel leaders – it will be very hard to verify that paramilitary
members have truly given up all of their stolen assets, dismantled their command
structures, and broken up their networks of drug trafficking and death-squad
activity. The bill will have to provide a long mandate, a big budget, and extensive
security protections for employees of the proposed Prosecutor for Truth, Justice
and Reparations. Finally, the idea of ten years or less in jail may not satisfy
many victims, though victims’ groups have yet to offer a public evaluation of
the proposed bill.
In fact, the legislation’s most vocal opponents have been the paramilitaries
and, to a lesser extent, the Colombian government. The AUC’s muscular Central
BolÃvar Bloc, in a
target="_blank">statement full of veiled threats against Wilson Borja, rejected
the bill as "a series of mortal traps set against peace, into which no
organization outside the law would allow itself to fall."
For its part, the Uribe government favors a law covering demobilization on
an individual basis, not the collective demobilization foreseen in the Pardo
bill. This means that the government does not wish to require those demobilizing
to reveal the details of their organization’s command and support structures.
The government would not require commanders who demobilize to guarantee that
their entire blocs demobilize as well. The government also opposes the creation
of a separate tribunal to judge crimes, preferring to keep this function under
its control in the executive branch. It also opposes the idea of denying the
bill’s protections to paramilitaries who fail to comply fully with their commitments.
It is not clear why the government would reject such common-sense provisions
that aim to dissolve paramilitary structures permanently. The upshot, however,
is that agreement is unlikely before the Colombian Congress ends its session
in about a week and a half; legislative debate will have to wait at least until
March.
Conditions for donor-nation support
The Pardo bill – if it goes anywhere – represents a big step forward compared
to what came before. Is it not quite enough, though, to assuage would-be donor
countries’ concerns about human rights, victims’ rights and the need to do away
with paramilitarism once and for all. To merit significant international support,
the talks should meet the following minimum requirements, some of which the
Pardo bill does address.
- The agreement must seek to dismantle paramilitary structures, not just
demobilize individuals. A peace process is a waste of time if it leaves
paramilitaries controlling territory through fear, violence and criminality
– even if out of uniform, without the AUC label, and not based at rural camps.
Paramilitarism is becoming a significant political and economic force in Colombia,
and undoing it will not be easy. The structures of territorial control, and
the lucrative linkages to the drug trade, are unlikely to disappear without
a concerted, well-funded, and well-protected government effort to eradicate
them. This means requiring demobilizing paramilitaries – at risk of losing
their benefits – to reveal the nature of their organizations’ structures and
assets. It also means giving the government the resources and tools it needs
to verify that paramilitary activity truly stops. - The agreement must involve victims in the design of an appropriate settlement.
A negotiation between two groups with a history of collusion is extremely
suspect if victims and their organizations are denied meaningful opportunities
to participate and if their concerns are clearly ignored by the resulting
agreement. - At a bare minimum, the agreement must require paramilitary human rights
abusers to make a public admission of their crimes and to return all of their
ill-gotten assets. Beyond this bare minimum, jail sentences, financial
reparations, and prohibitions from holding public office would lend a great
deal more credibility to the process. The land issue is of critical importance:
the Colombian human rights group CODHES estimates that 4.7 million hectares
of agricultural land (11.75 million acres, about the size of Vermont and New
Hampshire combined) have been abandoned due to illegal armed-group activity.
A peace process that ends up legalizing stolen landholdings would be worse
than none at all, as it would virtually guarantee a future explosion of violence. - The agreement must not let the paramilitaries’ material supporters remain
unnamed (or, ideally, unpunished). - The agreement must include a financial plan, indicating how much resources
will be available for such costly commitments as reparations, demobilization
and verifying the commitment to dismantle paramilitarism. This plan should
make clear how much is expected to come from foreign donors. - The agreement should make clear that ex-paramilitaries will not be admitted
into the Colombian armed forces while the conflict continues. As long
as fighting against the FARC and ELN persists, "recycling" paramilitaries
into the security forces is a recipe for trouble. Demobilized paramilitaries
who join the security forces would find themselves carrying out the same mission
they performed before: fighting guerrillas (and, perhaps, those whom they
feel are guerrilla collaborators). The likelihood of abuses would greatly
increase. After years of alleged military-paramilitary collusion, merging
the military with former paramilitaries would severely damage the credibility
of the Colombian armed forces, which have been endeavoring to portray themselves
as professional and respectful of human rights. The same prohibition should
apply to inclusion of ex-paramilitaries in other security structures, such
as the Uribe government’s network of paid informants or the "peasant
soldiers" program.
Coming soon: (6) Extradition and the U.S. role
December 7th, 2004 at 7:19 pm
Most of those conditions are obviously common sense, but the main problem remains…putting all that into practice. The “Pardo bill” isn’t perfect, obviously, but it’s definitely the best concrete proposal on the table right now, with a degree of support from sectors outside the Colombian government (NGOs, etc).
It would be great if the Colombian Congress managed to pass that bill or at least one that substantially retained its main aspects (which, since even some pro-Uribe people are backing this, might not be as difficult as it seems…we’ll see), but the ultimate usefulness of that depends on whether the Uribe administration is willing to be a bit more forceful towards the paramilitaries sitting at the table than it has currently been, instead of being mostly preoccupied with the later’s possible reaction (which can’t be ignored, but definitely shouldn’t be as important as it seems to be).
Also, according to EL TIEMPO apparently congresswoman Piedad Cordoba wants to propose a bill of her own, though I don’t think it has even a snowball’s chance in hell of passing (which Pardo’s does have, at least).
December 13th, 2004 at 12:22 pm
Apparently the paramilitaries themselves, as could be somewhat expected, disagree rather strongly with both bills. Guess it’s back to square one, maybe…