I’m rarely confused with JosÃ© 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 Ãlvaro 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:
[JosÃ© 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.
JosÃ© 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 AndrÃ©s PeÃ±ate 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 JosÃ© 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 mÃ¡s importante no es cuÃ¡ntos aÃ±os deben quedar en la cÃ¡rcel los acusados. El tema de la cÃ¡rcel tambiÃ©n complicarÃa cualquier futuro diÃ¡logo con los grupos guerrilleros. Lo importante es que se desmonte el poder que los narco-mafias y el paramilitarismo han tenido, desde hace dÃ©cadas, sobre el estado colombiano. Puede ser que la mejor manera de lograr ese desmonte serÃa excarcelar a los congresistas, oficiales y militares detenidos, una vez que revelen todo que saben – hasta el Ãºltimo 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 posiciÃ³n estatal en el futuro. Y deben ceder todos sus bienes ilegalmente adquiridos y pagar generosas reparaciones a sus vÃctimas, aunque sean vÃctimas indirectas. Si todo esto se cumpla, el pago de una pena en la cÃ¡rcel no importarÃ¡ tanto. (Al menos por el momento – la experiencia de paÃses 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 MapiripÃ¡n massacre, and will not be in jail for more than eight years. Gen. Jaime UscÃ¡tegui 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 JosÃ© Miguel Vivanco again: if you see us together, look closely – I’m a bit shorter than he is.