“Defining a Balance” or Pardoning the Unpardonable?
Colombia’s Government Pushes Amnesty for Paramilitaries
By CIP Intern Kathryn Williams
November 10, 2003

On July 15, 2003, the paramilitary group’s leadership signed the “Santa Fe de Ralito Accord,” which aims for the demobilization of the AUC’s almost 13,000 troops, at an estimated cost of $208 million, by late December 2005. [2] The Uribe government expects the process to remove one of the war’s main actors: a profusion of anti-guerrilla vigilantes, occasionally operating with the security forces’ support, that human rights organizations blame for a majority of non-combatant killings during the past decade. 

Justice and reparation – perhaps more than demobilization and reintegration – will be the Uribe government’s greatest challenge in its talks with the paramilitaries and any other armed groups. During the course of the conflict, the Colombian government has proven either unable or unwilling to put enough military pressure on the paramilitaries to bring their leaders to justice. If paramilitary leaders do not go to prison after turning in their weapons – which appears unlikely – any resulting accord will include a degree of impunity.The challenge is to find a formula that can bring the peaceful and verifiable dismantling of paramilitarism, while preventing another cycle of revenge by assigning responsibility to perpetrators and providing adequate compensation to victims.

The Uribe government’s idea of where that balance lies became clear on August 21. Believing, as his Minister of the Interior and Justice, Fernando Londoño, told El Tiempo in January of 2003, that “any peace process brings with it impunity,” President Uribe presented for Congressional consideration a bill proposing alternative punishments for armed groups. [3] Bill number 85 of 2003, currently before Colombia’s Senate, would offer “conditional freedom” to members of armed groups who have committed atrocities and human rights abuses but have since ceased hostilities and made “social reparations” contributing to peace.  Luis Carlos Restrepo, Colombia’s High Commissioner for Peace (chief negotiator), described the gist of the alternative penalty bill to the Medellín daily El Colombiano in July 2003: “The rank-and-file men, who took up arms to be part of a self-defense group, committed the crime of sedition, they have interfered temporarily with the constitutional and legal order. With our proposal, this punishable act can be amnestied or pardonable, and we might offer it to a large number of self-defense groups.” [4]

Terms of the “Alternative Penalty” Bill

Eligibility and Conditional Freedom

In order for a member of any armed group to be eligible for amnesty, formally referred to as the “conditional suspension of the execution of punishment,” the bill specifies several prerequisites, the first of which is a declared ceasefire and active participation in the peace process. [5] As well as being obligated to refrain from committing any further crimes, the guilty party would be prohibited from crossing national borders. He or she would be unable to leave the country without judicial permission (something he or she might be unlikely to do anyway, given the possibility of extradition to the International Criminal Court), would be required to inform the court of all changes of residence and would have to appear regularly before the court authority that oversees his or her compliance with the bill’s requirements. This “trial period” of court supervision would last between one and five years and would be under the jurisdiction of the presiding judge, with help from Colombia’s National Penitentiary and Prison Institute (INPEC).

Verification and Definitive Freedom

At the end of the trial supervision period, definitive freedom would be granted only with the verification of a special commission, created by the national government andresponsible for monitoring ex-combatants. Article 8 of the bill delegates the determination of this commission’s “integration, structure and function” to the President. [6]   It makes no stipulations on the commission’s makeup or what sectors of society the commission would represent, for example, non-governmental organizations, Congress or the military.  There is also no mention of an international or UN role in the verification process.

If, during the trial period, the Verification Commission observes that obligations have not been fulfilled, then all suspension of penalties would be revoked and the guilty party would be subject to the full weight of the law. If the Verification Commission approves definitive freedom, then the guilty party would be subject to several alternatives to prison. For example, individuals receiving alternative penalty benefits would be barred from exercising public functions or running for elected office for ten years. They would forfeit the right to bear or transport arms for ten years. (No more explicit reference is made to verification of demobilization). Implicated foreigners would be expelled from Colombia, while, for ten years, nationals would be restricted from leaving court-specified geographic regions (without previous judicial approval) and, for twenty years, would be forbidden to reside in or return to the location where their crimes were committed. In addition, all forms of communication between guilty parties and victims or victims’ families would be prohibited for ten years. 

Reparation

In a very vague and abstract way the bill stresses reparation for victims and victims’ families. It promotes guilty parties’ active participation or assistance in social organizations that promote individual and social recovery, as well as financial and/or land contributions to such organizations. In addition, the national government would set up a Reparation Fund for victims. Human rights groups in Colombia hope that, under these articles of the bill, confiscated land acquired illegally by paramilitaries would be redistributed to some of the 2.8 million Colombians forcibly displaced by violence since 1985. [7]   Forced displacement has left millions of acres of farmland, an estimated 40 percent of all cultivable land in Colombia, in paramilitary possession. [8]   As it stands, however, the bill makes no mention of either a return of or compensation for land stolen by paramilitaries to displaced individuals.

The bill would require beneficiaries’ active cooperation in the demobilization process and collaboration in intelligence gathering aimed at disbanding other armed groups.  As a small step toward accountability, the bill also proposes public admissions of guilt as well as active and “effective collaboration toward the illumination of deeds which occurred during the conflict.” [9] Bill 85’s final article deals rather perfunctorily with the issue of when benefits would go into effect – immediately upon its passing through Congress and signing by President Uribe.  As an October 3, 2003 Washington Post article points out, it is unusual to offer amnesty at the inception of a peace process, as an incentive to draw armed groups to the table rather than a part of final negotiations. [10]

Domestic and International Reactions

The proposed legislation, dubbed by a Chicago Tribune editorial “Colombia’s Pact with the Devils,” has come under domestic and international fire. [11]   Continuation of peace talks and eligibility for alternative penalties supposedly depend on the AUC’s cessation of hostilities.  However, numerous reports show that the paramilitaries repeatedly break their pledge of a cease-fire.  Just two days after the signing of the “Santa Fe Accord,” a group of suspected AUC members attacked a police unit, killing two officers. [12]   Civilians continue to be terrorized.  In the first six months of 2003, paramilitaries were responsible for the deaths of 603 civilian non-combatants. [13]   Recently, members of the Popular Feminist Organization (OFP) in northern Colombia have blamed paramilitary fighters for the October 16 shooting of a local women’s rights activist. [14]  

Reparations and impunity

The fairly nebulous language on reparation and social service worries the bill’s opponents, who believe it “lacks operational precision.” [15] Human rights groups are profoundly disturbed by the prospect of perpetrators of crimes against humanity exonerated after making public admissions of guilt, paying hours of community service or paying fines that hardly put a dent in their ill-gotten fortunes. “You turn in a farm and that compensates for a massacre?” an incredulous Senator Rafael Pardo, known as a strong supporter of President Uribe, asked El Tiempo, Colombia’s leading newspaper. [16] A statement issued by the Colombia Field Office of the UN High Commissioner for Human Rights (UNHCHR) sharply criticizes the bill’s lack of proportionality. [17]  

The very real fear is that disproportionately light “alternative penalties” will send the message to Colombia’s armed groups that human rights abuses and violence directed at civilian populations will be tolerated or pardoned. This has happened too often in the past – and Colombia’s continuing cycles of violence and revenge are a direct result.  A September letter initiated by U.S. Rep. Tom Lantos (D- California), the ranking Democrat on the House International Relations Committee, expressed dismay over the alternative penalty bill’s possible consequences. “We believe that such an exchange would amount to impunity for serious human rights violations and would erode the rule of law in Colombia, encourage further violence, and establish an undesirable template for future negotiations with guerillas,” read the letter, which was signed by fifty-six members of Congress. [18] “The incoherence of the message that massacres, tortures, genocide and displacement will only be symbolically punished is grave,” noted former Colombian Human Rights Ombudsman Eduardo Cifuentes. [19] The UNHCHR report, likewise, disapprovingly argues that the bill “opens the door to impunity” by allowing “those responsible not to serve a single day in prison.” [20] “It is necessary,” the statement warns, “to evaluate very carefully the latent and real impact of [the granting of] such benefits, with the goal of avoiding that they become stimulating factors for the prolongation of the internal armed conflict.” [21] The Lantos letter and the UN statements reiterate the stance taken in the Final Declaration of the July 2003 London meeting of international donors, which urged the Uribe government “to take effective action against impunity and collusion especially with paramilitary groups.” [22]  

Many already regard the degree of impunity in Colombia as alarming. Analyst  Efrén Ariza, cited  cited in the International Crisis Group’s September 2003 report on the paramilitary talks, observes, “perhaps there is no other word that better defines the Colombian experience than impunity: lack of punishment, investigation and justice.” [23] Indeed, 97 percent of violent crimes in Colombia go unpunished, according to a statistic cited in numerous publications since the mid-1990’s, including the State Department’s human rights reports. The ICG report attributes this high degree of impunity to “overburdening of the judicial system but also fear, pressure, and threats or direct attacks on investigators, attorneys and judges by criminals and armed groups.” [24]

Meanwhile, allegations continue to circulate of widespread military collaboration with, toleration of, or unwillingness to confront paramilitary groups. Only a rough ten percent of all confrontations initiated by government security forces are against paramilitaries – and this is a significant improvement even since the late 1990s. In the first six months of 2003, 791 guerillas compared to 120 paramilitaries were killed in combat against authorities. [25] The military’s reason for this is, of course, that guerrillas attack them while paramilitaries do not. But the overall context remains one in which, as a civilian government officer in conflictive Putumayo department recently remarked, “the military and paramilitaries play volleyball and soccer together.” [26]

International Accountability

The bill contains no mention of accountability to international law; however, an online guide to the bill, published by the Colombian President’s office, reminds its readers that “the jurisdiction of the International Criminal Court extends to Colombia with respect only to actions which occurred after November 1, 2002 and only to crimes against humanity and genocide, not with respect to crimes of war.” [27] It adds that the International Court intervenes only when the State cannot or will not make investigations or judgments in accordance with international standards, a role Uribe sees his government as capable of fulfilling.  Not mentioned in the President’s Office’s guide, but also relevant to the question of international accountability, is the fact that President Uribe’s predecessor, Andrés Pastrana, reportedly in consultation with his successor, on August 5, 20002, invoked Article 124 of the Rome Statute.  This clause allows signatories to delay implementation of jurisdiction of the International Criminal Court for seven years.  If the AUC is demobilized by 2009, four years after they pledge to be demobilized under the “Santa Fe Accord,” then their war crimes will never fall under the jurisdiction of the ICC.

However, while it is unlikely that any Colombian paramilitary leader will face an international court, some still face drug trafficking charges in the United States. The U.S. Department of Justice maintains extradition orders on three top AUC officials, including Carlos Castaño and Salvatore Mancuso, who are accused of sending tons of cocaine to the United States. What most worries U.S. officials about a bill they officially see as an “internal Colombian matter,” is the distinct possibility that an amnesty will allow Colombian drug traffickers to launder illegal fortunes and avoid prison terms. [28] In an October interview, Rep. Lantos told PBS,“There are some things on which we cannot compromise. The key drug lords cannot escape going to prison for long terms by paying cash to their victims.’” [29]   In a November 4 meeting with five legislative sponsors of the bill, U.S. Ambassador to Colombia, William Wood, again insisted that the alternative penalty bill not be used by narcotraffickers to evade justice.

An unnamed “Western diplomat” cited in the September 15, 2003 New York Times claimed knowledge that several drug traffickers were already buying their way into the paramilitary structure in the hope of reaping the alternative penalty bill’s benefits. “What is happening here,” the diplomat said, ”is the biggest legal money laundering and narco-profiting operation ever seen.” [30] As currently conceived, the “alternative penalties” bill does not explicitly mention drugs, the drug trade or drug money, despite the fact that almost all of Colombia’s drug trade is controlled by armed groups, with the AUC alone controlling an estimated 40 percent. (A revised draft of the bill is expected to incorporate U.S. proposals concerning amnesty and drug traffickers). [31]

Amnesty Precedents

Defenders of the alternative punishment bill, such as the author of an October 3 Washington Post editorial, point to successful amnesty concessions in countries like South Africa and El Salvador. [32] However, critics answer, the amnesties in these two countries followed negotiations, rather than preceding or taking place in the middle of them, as the Colombian version proposes. The UNHCHR report criticizes the bill for permitting the state to amnesty those “who have not even started to fulfill imposed sentences for the commission of atrocious crimes.” The bill does not go so far as to stipulate the dissolution of armed groups as a prerequisite for granting of benefits; it only requires “active and effective collaboration in the demobilization of armed organizations at the margins of the law.” [33]

At the same time, amnesties in other countries like South Africa and El Salvador were offered to political groups in opposition to the government.  The Colombian paramilitaries are neither a group with a clear political agenda nor a force in opposition to the State. A law passed in January 2003 permits the Colombian government to negotiate with non-political armed groups. However, the fact that paramilitaries have historically furthered the counter-insurgent objectives of the Colombian government and military, albeit illegally, makes the amnesty bill look like a “Get Out of Jail Free” card not just for paramilitary leaders, but for military personnel and other wealthy and powerful individuals who have supported them. An article by the database project of several Colombian NGOs derides the “consecrating [of] self-amnesty and self-pardon for crimes executed over three decades by paramilitaries who have been promoted, tolerated, sponsored and pampered by the Colombian State.” [34] It condemns the bill as “simply the state pardoning its own crimes, a situation which suggests profound levels of perversion.” [35]

Truth and Reconciliation Commission

Another glaring omission in the bill is the lack of a Truth and Reconciliation Commission or a similar mechanism for documenting and authoritatively assigning responsibility for war crimes and human rights abuses. Such a mechanism would assign responsibility not just for trigger-pullers but for the paramilitary leaders who ordered abuses, the military personnel who tolerated or abetted them, and the civilians who funded them.

Bill 85 provides for the creation of a Verification Commission, whose main job would be to monitor and report on amnestied individuals’ compliance with the conditions of their freedom. This same commission, “with the goal of guaranteeing the right of the victims to the truth and to guard against the forgetting of the collective memory,” would also be in charge of archiving information on crimes committed by beneficiaries of the alternative penalty bill. [36] While the Commission must “guarantee the public access to the archives of the cases that come to their awareness,” there is no mention of a published report or public declaration connecting specific crimes to specific people. [37] This is far short of the public accountability many victims and their families wish to see enforced for perpetrators of massacres, torture and political assassination.

Conclusion

The international criticism has put Uribe on the defensive about the proposed legislation. In September 30 statements to the UN General Assembly in New York, Uribe defended the bill as “defining a balance between the need for justice and the need to save innocent lives. … There are moments that call for adjusting the justice and peace equation in order to reach a consolidated peace.” [38]   The bill’s statement of objectives identifies it as a necessary response to “overcome a narrow conceptualization of justice which centers on punishing the guilty.” [39] Peace negotiator Luis Carlos Restrepo, as well as Minister of Justice and Interior Fernando Londoño, have appealed for a modern Colombian justice system that dictates reparation rather than retribution.

Recognizing that “the draft has caused national and international controversy,” Uribe welcomed discussion and even revision in his comments before the UN General Assembly, saying his government seeks the “broadest possible consensus.” He staunchly stands, however, by his call for a “definitive peace.” [40] At a meeting with a group of nineteen congressmen on October 6, the Colombian Government reiterated its interest that the bill be approved by Congress. [41]   In early November, the bill passed through committee to be debated by the Senate.

Colombia’s High Commissioner for Peace has explained, “What we have is a negotiating table, not an accord of cooperation with justice.” [42] And the continuing fear is that, if approved in the Colombian Congress without substantial changes, Uribe’s alternative penalty bill will sacrifice the latter for the former.

[1] Cambio, 27 August 2001, as quoted in “Colombia: Negotiating with the Paramilitaries.” ICG Latin America

Report. International Crisis Group. 16 September 2003, p. 1.

[2] ICG Report, p. 28.

[3] El Tiempo, 12 January 2003, p. 1/3, as quoted in ICG Report , p. 21.

[4] "Gobierno cree en acuerdo." El Colombiano, 17 July 2003.

<http://www.elcolombiano.terra.com.co/hoy/ntd005.htm

[5] Article 2 of Law No. 085 of the Senate of the Republic of Colombia.

[6] Paragraph 1, Article 8 of Law No. 085.

[7] “Colombians Displaced by Violence Need Protection.” Colombia Steering Committee.

<http://ciponline.org/colombia/0306idpw.pdf>

[8] Isacson, Adam.  “Peace talks with the paramilitaries: four conditions for U.S. support.”  Center for

International Policy, 10 December 2002.  < http://ciponline.org/colombia/02121001.htm>

[9] Article 6 of Law No. 085.

[10] “Colombia’s Peace Bargain.” The Washington Post, 3 October 2003, p. A22.

[11] “Colombia’s Pact with the Devils.” The Chicago Tribune, 18 September 2003, p. 26.

[12] “Army impeding paramilitary demobilization.”  The Panama News, 15 October 2003, reprinted from Colombia

Week. <http://www.thepanamanews.com/pn/v_09/issue_13/news_02.html>

[13] CINEP y Justicia y Paz, Banco de Datos de Derechos Humanos y Violencia Politica en Colombia, Noche y

                Niebla, No. 27, 2003. <http://www.nocheyniebla.org/27/index.html>

[14] “Suspected Colombia Rebels Kill Activist.” The Guardian Unlimited, 18 October 2003. Associated Press.

Yahoo! News. <http://www.guardian.co.uk/worldlatest/story/0,1280,-3277488,00.html>

[15] ICG Report, p. 26.

[16] Forero, Juan. “Colombia Plans to Ease Penalties for Right-Wing Death Squads.” The New York Times, 15

September 2003, A7.

[17] “Observaciones al Proyecto de Ley Estatutaria que trata sobre la reincorporacíon de miembros de grupos

armados.” Oficina de Alto Comisionado de las Naciones Unidas para los Derechos Humanos (UNHCHR), 28 August 2003. <http://www.hchr.org.co/publico/comunicados/2003/comunicados2003.php3?cod=25&cat=16>

[18] Lantos, Tom, Rep. Letter to Álvaro Uribe, 26 September 2003. House Committee on International

Relations. U.S. 108^th Congress, Washington D.C.

[19] El Mundo, 23 August 2003, p. A7, as quoted in “Colombia: a paradise for those who commit crimes against

humanity.” Noche y Niebla. Banco de Datos de Derechos Humanos y Violencia Politica en Colombia. 9 September 2003. <http://www.nocheyniebla.org/boletin/seg_politica_imp_ing02.htm>

[20] UNHCHR Report.

[21] UNHCHR Report.

[22] London Declaration, Final Declaration approved by government participants to the London Meeting on

International Support for Colombia, 10 July 2003.

<http://www.ciponline.org/colombia/030710dono2.htm>

[23] Ariza, Efrén. “Evolución de la impunidad en Colombia 2000-20002,” unpublished document. Bogotá, 2003,

as quoted in ICG Report, p. 24.

[24] ICG Report, p. 24.

[25] “Mindefensa exalta labor de la Fuerza Pública en recuperacíon de la seguridad.” Sistema de Informacíon de

la Defensa Nacional. Colombian Ministry of Defense. 1 July 2003. <http://www.mindefensa.gov.co/fuerza/fuerzanotnal20030701balance_operacional_1er_semestre.html>

[26] Cryan, Philip. “The War on Human Rights in Colombia.” Counterpunch, 11 October.

<http://www.counterpunch.org/cryan10112003.html>

[27] “ABC del Proyecto de Ley para Reincorporacíon de Personas al Margen de la Ley.” Centro de Noticias del

Estado, Presidencia de la República. 21 August 2003. <http://www.presidencia.gov.co/cne/2003/agosto/21/09212003.htm>

[28] Cryan.

[29] “Colombia’s Struggle.” Transcript of Interview. NewsHour with Jim Lehrer. PBS. MacNeil/Lehrer

Productions. 6 October 2003. <http://www.pbs.org/newshour/bb/latin_america/july-dec03/colombia_10-06.html>

[30] Forero.

[31] Cryan.

[32] “Colombia’s Peace Bargain.”

[33] Article 6 of Law No. 085.

[34] Noche y Niebla, 9 September 2003.

[35] Noche y Niebla, 9 September 2003.

[36] Article 9 of Law No. 085.

[37] Article 9 of Law No. 085.

[38] Statementby H.E. Mr. Álvaro Uribe Velez, President of Colombia, before the 58^th Session of the United

Nations General Assembly, New York. 30 September 2003.

[39] Statement of Objectives for Law No. 085 of the Senate of the Republic of Colombia, p. 2, as quoted in

Noche y Niebla, 9 September 2003.

[40] Uribe’s Statements before the U.N. General Assembly.

[41] “Uribe insiste en aprobacíon de proyecto sobre penas alternas.” La Prensa. Panama, 8 October 2003.

[42] “Gobierno cree en acuerdo.”