León Valencia: ELN cease-fire likely by July The CPI reports on world military aid
May 242007

I’m rarely confused with José Miguel Vivanco, the Americas director for Human Rights Watch, but it happened today.

This morning’s edition of Colombia’s most-circulated newspaper, El Tiempo, led with the reaction to a controversial suggestion from President Álvaro Uribe. On Wednesday morning, Uribe said that politicians accused of helping paramilitaries, but not responsible for serious human-rights crimes, should not have to serve prison terms. El Tiempo reported:

[José Miguel] Vivanco said from Washington that the most important point is that the power of “narco-mafias and paramilitarism” be dismantled. “It could be that the best way to achieve this dismantlement might be to release the detained congresspeople, officials and military officers, once they reveal all that they know about the para-mafioso networks in which they participated, and the identities of their allies in the government,” he explained.

José Miguel Vivanco didn’t say that. He likely disagrees with it. I didn’t talk to him today – I spent my day on Capitol Hill. (Incidentally, we ran into Vice President Francisco Santos there, in the basement of the Longworth House Office Building. He – along with DAS Director Andrés Peñate and Colombian embassy officials – were lobbying so vigorously that, even though it was 3:30 PM, they hadn’t had lunch yet. They were forced to eat from vending machines.)

But I bet José Miguel is angry, because I said that, not him. El Tiempo ran a rectification later this morning. The article now reads, “President Uribe’s proposal was not well-received by the opposition, but the director [of programs] of the Center for International Policy, Adam Isackson [sic.], did not dismiss it.” Great.

Why, then, did I say that it would be all right to let paramilitary collaborators out of jail? Here is what I sent to El Tiempo yesterday after they requested a paragraph on the subject. Spanish first, then English.

Lo más importante no es cuántos años deben quedar en la cárcel los acusados. El tema de la cárcel también complicaría cualquier futuro diálogo con los grupos guerrilleros. Lo importante es que se desmonte el poder que los narco-mafias y el paramilitarismo han tenido, desde hace décadas, sobre el estado colombiano. Puede ser que la mejor manera de lograr ese desmonte sería excarcelar a los congresistas, oficiales y militares detenidos, una vez que revelen todo que saben – hasta el último detalle – sobre las redes para-mafiosas en que participaban, y la identidad de sus aliados en el estado.

La verdad tiene que revelarse, con nombres. Los implicados deben ser inhabilitados de ejercer cualquier posición estatal en el futuro. Y deben ceder todos sus bienes ilegalmente adquiridos y pagar generosas reparaciones a sus víctimas, aunque sean víctimas indirectas. Si todo esto se cumpla, el pago de una pena en la cárcel no importará tanto. (Al menos por el momento – la experiencia de países como Argentina muestra que el clamor para la justicia puede volver a escucharse.)

The most important thing is not how many years the accused should be imprisoned. The issue of jail time will also complicate any future dialogue with guerrilla groups. The important thing is the dismantlement of the power that narco-mafias and paramilitarism have had for decades over Colombia’s state. It could be that the best way to achieve this dismantlement might be to release the detained congresspeople, officials and military officers, once they reveal all that they know – to the smallest detail – about the para-mafioso networks in which they participated, and the identities of their allies in the government.

They must reveal the truth, with names. Those implicated must be prohibited from holding any public office in the future. They should lose all of their illegally acquired assets and pay generous reparations to their victims, even if they are indirect victims. If all of this happens, jail time will not matter as much. (At least for now – the experience of countries like Argentina shows that the clamor for justice can come back and be heard again.)

I stand by this for three reasons.

1. Insisting on jail time will complicate talks with guerrillas. The ELN and FARC – and any people who supported them – do not intend to go to jail at the end of a future peace process. If this is expected of them, it will be impossible to bring the guerrillas to the negotiating table for anything but surrender terms. Since neither group is anywhere near surrender, to insist on jail time is to delay the start of a peace process and to prolong the fighting.

2. The issue of jail time is being used to distract from the more important issue of dismantling paramilitary groups. Uribe government officials – and, often, President Uribe himself – routinely caricature the critics of the paramilitary process as a bunch of zealots fixated on throwing paramilitaries and their supporters in jail. “How can they call us ’soft’ on the paramilitaries,” the refrain goes, “when almost the entire paramilitary leadership is in a maximum-security prison?”

This misses the point completely. The main thing that should worry us about the paramilitary process is that, if Colombia’s judicial system proves unable to do its job, the AUC leadership and its supporters will come out of the process just as rich and powerful as they went into it. Perhaps more.

The process needs the threat of long, long jail terms for those who hide the truth, keep their stolen goods, fail to make amends to victims and continue to break the law. But for those who cooperate with the authorities, give them what they need to dismantle paramilitary networks, give back assets and pay reparations, jail time need not be a requirement.

3. Is six to eight years much of a punishment anyway? The paramilitaries and their supporters are implicated in gruesome, disgusting, evil crimes. Yet the Justice and Peace law only metes out a maximum of eight years in jail. Even the main alternative to the Justice and Peace law in 2005 – a bill proposed by Sen. Rafael Pardo and backed by most major human rights groups – foresaw a maximum of only ten years in jail.

This raises another question. Salvatore Mancuso planned and ordered the 1997 Mapiripán massacre, and will not be in jail for more than eight years. Gen. Jaime Uscátegui refused to act to stop the massacre, and he may be looking at forty years. Does this make sense?

Let’s be clear: everyone who ends up in prison for “para-politics” should stay in jail until (a) it’s determined that they were not planning or ordering serious crimes, and (b) they tell everything they know about their networks, give up their illegal assets and pay reparations. Once (a) and (b) are fulfilled, though, President Uribe’s proposal makes some sense.

This is a thorny debate, and I’ll be interested in reading any comments.

And just so that nobody confuses me with José Miguel Vivanco again: if you see us together, look closely – I’m a bit shorter than he is.

7 Responses to “Para-politicians out of jail? Perhaps, but not yet”

  1. o-lu Says:

    Hello Adam,

    Seguramente viste que tus consideraciones no fueron ponderadas por el diario El Tiempo. En este caso solo les intereso presentar las cosas en blanco y negro y presentar tu reflexion como un simple “visto bueno” de USA (que en la precipitacion, atribuyeron al “terrorista” Vivanco).

    Personalmente me parece absolutamente inadecuado que en este momento se ventile este tipo de propuestas, y menos aun por parte del propio presidente! Es un golpe frentero a la ya fragil justicia colombiana, como bien lo analiza Camilo:

  2. jcg Says:

    Not much of a chance of seeing either of you in real life, but I’ll keep that in mind. :P

    o-lu, I would beg to differ on a few points. First off, it is Uribe, not EL TIEMPO, who at certain times has implied that Vivanco or others are either terrorists or terrorist supporters. I don’t believe it is accurate nor prudent to make any blanket assumptions about the reasons for the newspaper’s errata at this moment.

    That aside, I believe that some relevant points have been raised and that they merit further discussion. While Uribe’s proposal may be at least partially the result of political convenience and other personal reasons, that doesn’t mean that it is inherently a blow against Colombian justice. Senator Petro has also made similar overtures as part of a “great national accord for truth”, if I recall correctly, even if the details have been vague.

    There are obviously dangers involved, But if any such proposal were to be applied under the conditions highlighted by Adam at the end of his post, it would definitely tend to make some sense.

    We are now facing the consequences of the government’s vast improvisation and simplification of the process with the paramilitaries. Perhaps it originally assumed that there would be no parapolitical revelations of note, though I can’t saythat for sure, but the fact is that it really didn’t take into consideration what to do with those who have participated or collaborated with paramilitary activities in one way or another, once the J&P hearings started.

    I agree that those politicians who have stained their hands with blood, for example by ordering assassinations and massacres of their political opponents, shouldn’t be subject to any benefits at all but, in fact, should serve long sentences. The proposal shouldn’t apply to them. No way.

    Yet it is relatively reasonable to grant some leniency to those who didn’t commit any serious crimes other than tolerance, knowledge or general support of a criminal enterprise, in exchange for confession and cooperation: in short, information that helps condemn those who are far more intimately implicated in those activities and barbarities, both past and present.

    The idea is to dismantle paramilitarism as a criminal enterprise, by exposing its ties and condemning its most brutal leaders, both uniformed and otherwise. Not to fill already overloaded jails. Adam’s point about what is and isn’t expected by the FARC and ELN also demonstrates that jail time is not the main element, even if it’s the one that raises the most public applause (in a certain way).

    However, even under such a scheme, they should still lose their political rights and they should at least receive explicit condemnation, in some public way, shape or form. Their identities shouldn’t be protected and they should be subject to incarceration if they omit information or participate in any further criminal activities.

    Of course, it’s relatively easy to say this. Finding the precise legal and political mechanisms to make such a proposal both viable and effective is entirely another matter. Without a real national consensus within Colombia, such a proposal is bound to fail. It needs to be designed and implemented as a result of a national accord, not merely as an imposition by the government. Hopefully both sides are eventually able to realize that.

  3. Camilo Says:

    Hi Adam, it is almost clear at this very moment that the only way to go straight forward in the paragate case is with any sort of political accord.

    Not just because in the meantime we would face a judiciary system collapse, and probably a governance crisis, but because -as you say- this situation will be a precedent for a future negotiation with the guerrillas.

    The problem is that there is enough evidence that the president’s closest circle is contaminated with the paramilitary doctrine.

    It is necessary that the international community and voices like yours evaluate the convenience to facilitate a dialogue between the Colombian government and the political opposition about the paragate, and the “dismantlement of the power that narco-mafias and paramilitarism have had for decades over Colombia’s state.”. Otherwise, the president’s initiative to amnesty the parapoliticos will become just a big case of impunity.

    The president is gambling with his popularity, but many people in Colombia don’t have confidence on the honesty of his words.

    This is a very risky game, where the government -as you know- has demonstrated a low standard of transparency.

  4. o-lu Says:

    JCG, de acuerdo, lo del “terrorista” era declaracion textual de Uribe, segun esta misma fuente presencial (Adam). Quiza no quedo claro en el comentario anterior, pero valga para aclarar que El Tiempo no necesariamente es malintencionado o poco profesional en la presentacion de las noticias (como se oye a menudo en circulos criticos de izquierda), de hecho el cubrimiento sobre la politica de USA (por Gomez Masseri) es un ejemplo de periodismo fidedigno. (Seguramente hay en ese periodico pugnas de intereses, mas y menos proclives al gobierno).

    La declaracion de Uribe me parece tanto mas impropia cuanto proviene de un hombre que representa al sector que se ha beneficiado de un sistema clientelista erigido con base en la eliminacion fisica de los oponentes. No puede Uribe aducir ningun tipo de desinterés en este tema. Que se llegue a él por consenso social después de un proceso, es otro asunto, pero entre tanto me parece una salida del “pactismo”, una salida ilegal y peligrosa, porque sienta un precedente nefasto del manejo del crimen, del manejo de la justicia y del manejo del poder.

  5. Adam Isacson Says:

    I’ve received nearly two dozen responses from this post. The majority, however, have been emailed directly to me. (Come on people, this is a blog, you’re supposed to comment.)

    Among those who do not share my position, this one – from a colleague who wishes to remain anonymous – was the most thoughtful and compelling.

    The debate about criminal sanctions is, as you say, a thorny one.  A few thoughts:

    1. Amnesties for grave violations of human rights and international humanitarian law are simply off the table.  The Colombian government understands this, and based on my (admittedly limited) discussions with people close to the ELN process, the ELN appears to understand it too.  If the FARC ever get serious about peace, they’ll have to come around as well.  If nothing else, they’ll be interested in shielding themselves from ICC prosecutions.  And as long as the guerilla groups understand that the government’s hands are completely tied on the issue, I don’t really buy the idea that insistence on jail time is the sticking point in any potential peace negotiation.

    2. I agree that when dealing with people who have participated in illegal armed groups without being complicit in grave crimes, dismantling criminal structures and uncovering the truth may take priority over jail time.  However, the usual justification for reducing or eliminating criminal sanctions – that guaranteeing peace, truth, reparations is only possible by sacrificing some justice – doesn’t really apply to the parapolítica scandal.  The criminal process has a produced a flood of revelations regarding relations between State authorities and paramilitary groups.  And – in contrast with the paramilitaries themselves – there’s no risk of the politicians returning the monte and mounting an armed campaign.  The reparations issue hasn’t been touched, but it likely wouldn’t be touched under Uribe’s proposal either.  So, interfering in the criminal process hardly seems necessary at this point to accomplish any broader goals.  To the contrary, the specter of an amnesty decree is likely to weaken the hands of the Supreme Court and the Fiscalía as they continue their (thus far effective) investigations.

    3. The Mancuso-Uscátegui issue you raise is an interesting one.  The same comparison could be drawn between paramilitaries and politicians who committed the crime of “concierto para delinquir” but are not shown to be complicit in grave human rights violations.  While the politicians face lengthy investigations and jail time, the paramilitaries demobilized under Decree 128 and received a pardon without so much as confessing what they knew about the activities of their criminal organizations.  Uribe’s proposal strikes me as a sort of Decree 128 for State officials.  I think there are a couple of problems with this.  First, though I share some of your discomfort with the idea that two people can serve radically different prison terms for committing the same crime, I do believe there is a particular flagrance to crimes committed by agents of the State and that this a legitimate aggravating factor in establishing criminal sanctions.  In this regard, though Decree 128’s pardon for “concierto para delinquir” may be, on its face, permissible, an equivalent pardon for State agents seems much harder to justify.  Second, one of the great failings of Decree 128 has been its failure to extract any meaningful information (about everything from mass graves to paramilitary financing) from the demobilized paramilitaries who are benefiting from its provisions.  (Nor does the decree make any allowance for reparations.)  Knowing what we know about the implementation of both Decree 128 and Law 975, I would be very skeptical about the government’s ability to design a procedure whereby truth is effectively exchanged for justice.  To the contrary, I think the evidence so far turns the traditional argument for reduced prison terms on its head; the ordinary criminal procedure applied in the parapolitica investigations has been far more effective at uncovering the truth than the special procedures established by Law 975 and Decree 128.

    I get the sense this debate is just starting, so I’m sure we’ll have plenty of opportunity to continue the discussion.

  6. Ivan Nicholls Says:

    Alvaro Uribe’s father, Fabio Ochoa (the father)and Uribe himself belonged to the “negociantes de bestias” culture (horses dealers) based basically on the capacity to lie in order to sell a horse. They represented a second class “antioqueño”, “el vivo”, “el pícaro”. Among their rules was never recognizing you were lying. Another one was to confuse completely the buyer. They used to speak a lot in order to do that. They always respected the rich because they needed them not just to sell but to avoid jail, sometimes.

    I have thought this in relation with the latest intervention of President Uribe. Colombians are very confused. You have to be an especialist or a Colombian politician to understand what he pretends now. He wants to gains confidence from democrats, to regain some credibilility from the narcos and the paramilitares, he needs to stop “el destape” because it is getting to close to his family and to himself. Thus, he is lying more than ever and he is confusing almost everybody.

    Maybe the idea of liberating prisoners is not so bad. But we can not buy the horse if it implies to buy the silence of the “paramilitares”, which seems the inmediate goal of Uribe. Specially in a country where the justice does not work. I believe we have to do an effort to show the Colombians and especilly the international community all the dirty tricks used by the Colombian president. We need to obstruct the repetition of the impunity history of the last fifty years.

    We need to expose the lies of Uribe and the only way to do it is to let the paramilitares speak. Uribe wants to pay for their silence.

  7. jcg Says:

    Honestly speaking, Mr. Nicholls, while that’s a possible conclusion and if that were the case you’d have my full support, I think you’re making too many deductions from assumptions that are far from clear at this point in time.

    This doesn’t mean that some of your assumptions can’t be right, because they may well be, but for now it’s a bit too early to go that far.

    Personally, I can’t say what are all the absolute “truths” and “lies” about subjects that are still mostly in the dark and susceptible to questions and other interpretations beyond the above.

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