Whether the United States or other donors should fund the Colombian governmentâ€™s negotiations with paramilitary groups depends heavily on what kind of law the Colombian Congress passes to govern these negotiations and the groupsâ€™ demobilization.
Will this law include accountability for past human-rights crimes? Will it allow narcotraffickers to win amnesty by disguising themselves as paramilitaries? Will it allow victims to get back what was stolen from them? Will it actually dismantle paramilitarism, or will it allow paramilitary leaders to remain in command of powerful mafias and death squads?
The relevant committees in Colombiaâ€™s Senate and House of Representatives are considering the Uribe governmentâ€™s draft law (known as the â€œJustice and Peaceâ€ bill). Our position â€“ and that of most of the U.S. and Colombian human rights communities, as well as victimsâ€™ groups and even some business coalitions (see this consensus document) â€“ is that this bill is too weak. It allows jail terms of as little as 2 Â½ years for crimes against humanity. It does not require confession of crimes as a requirement for leniency, and thus will make dismantlement of paramilitaries more difficult. It fails to prevent narcotraffickers from escaping punishment for sending drugs overseas.
As it stands now, says Michael FrÃ¼hling, who heads the UN High Commissioner for Human Rightsâ€™ BogotÃ¡ field office, â€œIt seems that too little of the advice we have provided so far has been taken into accountâ€ in the development of the Uribe government bill. â€œIt runs the risk of becoming a legal framework that is incompatible with the rights to truth, justice and reparations.â€
A coalition of representatives and senators, led by a former defense minister, Sen. Rafael Pardo, has been promoting a more strongly worded bill [MS Word format]. Many observers had hoped this bill would either pass or have a strong influence on the law that does get approved. Their hopes are being dashed.
The debate in the committees has been acrimonious, but so far the Uribe government has proven able to line up legislative majorities on behalf of its weaker law. On point after point, the tougher Pardo bill is getting steamrolled in committee. After a string of losses on Monday, Rep. Gina Parody, a co-sponsor of the Pardo bill, told reporters that â€œour bill has been defeated.â€
One of the most stinging losses was a rejection of a Pardo provision that would have required demobilizing paramilitaries to confess their crimes and reveal what they know about their command and support networks. Without this information, it will not only be difficult to reveal the truth about past massacres, displacements and other abuses, it will also be harder to gain the knowledge necessary to dismantle paramilitary structures. While the Uribe government bill requires demobilizing paramilitaries to reveal what they know about their own involvement in crimes against humanity, it includes no punishments for those later found to have been lying or deliberately omitting information.
Another loss, suffered yesterday, should particularly bother drug warriors in the U.S. government and Congress. Legislators in both committees failed to remove the so-called â€œnarcomicoâ€ (roughly, â€œnarco-loopholeâ€): a provision in the Uribe governmentâ€™s bill that could allow narcotraffickers among the paramilitaries to avoid punishment for their drug activity, to keep most of their assets, and to be exempt from extradition to the United States.
Article 64 of the â€œJustice and Peaceâ€ law would define paramilitarism â€“ an attempt to supplant the state, not oppose it â€“ as â€œsedition,â€ thus making it a political crime. Colombiaâ€™s constitution says that those guilty of political crimes cannot be extradited. Article 20 of the Uribe government bill would make crimes â€œconnectedâ€ to paramilitary activity â€“ such as narcotrafficking â€“ fit under the same umbrella, essentially making paramilitary narcotrafficking a non-extraditable political crime as well.
According to Sen. Rodrigo Rivera, a key opponent of the narcomico, â€œBy giving them this status as political criminals, that is, those who commit sedition, their extradition for other crimes, such as narcotrafficking, is blocked, because the National Constitution prohibits extradition of political criminals.â€ Adds columnist MarÃa Isabel Rueda, â€œA door could be opening for narcotraffickers to launder their fortunes and, because they are supposedly carrying a â€˜politicalâ€™ flag, they could be pardoned by this law.â€
The justification for the narcomico is that both guerrillas and paramilitaries have become heavily involved in narcotrafficking in order to pay for their weapons and fighters. But the past few years has witnessed a parade of â€œnewâ€ paramilitary leaders who have precious little experience fighting guerrillas â€“ and in fact may be doing occasional narco business with the FARC. Individuals with long histories in Colombiaâ€™s drug underworld, facing U.S. indictment for shipping cocaine to the United States â€“ such as Diego Fernando Murillo (â€œDon Bernaâ€), Victor Manuel MejÃa (â€œEl Mellizoâ€), Francisco Javier Zuluaga (â€œGordolindoâ€), Guillermo PÃ©rez (â€œPablo Sevillanoâ€) and others â€“ have bought or intimidated their way into the paramilitary leadership, where they now masquerade as comandantes in the hope of winning amnesty and keeping their illegal wealth.
Yesterday, Sen. GermÃ¡n Vargas Lleras (a grandson of a former president, considered a leading figure on Colombiaâ€™s right, who lost his pinky finger to a FARC package-bomb a few years ago) introduced an amendment that sought to distinguish between the old-guard paramilitaries and the newly arrived narcos. The amendment had two parts. The first, which the Uribe government supported, would have excluded from the billâ€™s lighter jail terms any paramilitary leader who had engaged in narcotrafficking before joining the paramilitaries. The second, which the Uribe government opposed, would have declared ineligible any paramilitary leader who had enriched himself illegally while a member of the paramilitaries.
Even this attempt to exclude the drug lords failed, in both committees. The votes were close, though: nine to eight in the Senate, and 14 to 11 in the House.
Though the majorities were slim, the persistence of the narcomico makes it more possible than ever that some of Colombiaâ€™s most notorious narcotraffickers will evade prosecution and extradition â€“ and maybe even get to keep much of their narco assets â€“ just by donning a uniform and calling themselves â€œcomandante.â€ According to Vargas Lleras, his legislative loss â€œcould open the door â€¦ for the â€˜parasâ€™â€™ illegal fortunes to be laundered.â€ Added Sen. Rivera, â€œWe have just approved the narcosâ€™ inclusion within this law. Now all they have to do is confess in order to gain benefits [like drastically reduced sentences.]â€
Colombiaâ€™s most-circulated newspaper, El Tiempo, put it well in a March 11 editorial.
It is healthy and necessary to â€¦ find solutions that can demobilize the complex marriage between paramilitaries and narcotrafficking. But one thing is to recognize the need to put the issue on the table and another thing â€“ unacceptable â€“ is that narcotraffickers escape through the back door thanks to a poorly made law. The narcosâ€™ lawyers, who know the halls of Congress well, must be sharpening their tools.â€
All is not yet completely lost. There is a slim chance that the narcomico, the lack of confessions, and other weak provisions in the â€œJustice and Peaceâ€ law can still be turned back when Colombiaâ€™s full Congress debates the law. This is pretty unlikely, though, as President Uribe and his peace negotiator, Luis Carlos Restrepo, have lined up solid majorities on behalf of this too-lenient law.
If the law passes in something like its current form, the paramilitary talks will not meet the standards of truth, justice, reparations and dismantlement necessary for financial support â€“ either from the United States or from any other international donor. As the law stands now, it carries too great a risk that demobilized paramilitary leaders will get to keep much of their illegal assets and continue to lead powerful political-mafia networks.
Postscript as of April 7:As this post was being added on Wednesday, Sen. Vargas Lleras won a partial victory, when the Uribe government granted its approval to include his anti-narco language in the case of individual demobilizations (such as deserters). However, the provision still does not apply in the case of collective demobilizations, which is probably the loophole through which the paramilitary leaders with long histories in the drug trade will still hope to pass.