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December 07, 2004

Paramilitary Talks (5): Justice, victims' rights and accountability

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 "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 Lucío, recently 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," 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 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 (Procuraduría) 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 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 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 Medellín 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 Bolívar Bloc, in a 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

Posted by isacson at December 7, 2004 06:47 PM

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Posted by: jcg at December 7, 2004 07:19 PM

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