Plan Colombia and Beyond

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March 10, 2005

Jail for paramilitaries but not guerrillas?

After weeks of often acrimonious discussions, the Uribe government and the pro-Uribe bloc in Colombia’s Congress have agreed on legislation to govern what might happen to paramilitary leaders who negotiate their demobilization but are guilty of gross human rights violations. The legislation is softer on the paramilitaries than the principal alternative bill, introduced a few weeks ago by another group of legislators led by former Defense Minister and normally pro-Uribe Senator Rafael Pardo, which in particular seeks to do more to dismantle paramilitary networks.

Like the Pardo bill, however, the “official” government legislation does include some time in prison for paramilitary human-rights offenders. While Pardo calls for terms of five to ten years, the Uribista bill would impose terms of five to eight years. The government bill, however, would also allow terms to be reduced by up to one-fifth for good behavior, and would let negotiators count toward their sentence up to eighteen months of time spent in the Ralito demilitarized zone. Under this regime, then, it is possible that the perpetrators of massacres and forced displacements could spend as little as 2 ½ years in jail (5-year minimum sentence minus 1 year for good behavior minus 1 ½ years spent in Ralito).

Nonetheless, at least all viable legislative proposals include some jail time, something that was not contemplated in the Colombian government’s first legislative proposal [MS Word file] (introduced in August 2003 and so lenient that the congress didn’t even bother to debate it) and something that most paramilitary leaders still insist is unacceptable.

Fifteen years ago yesterday, Colombia’s M-19 guerrillas signed a peace agreement with the Colombian government, which allowed its members to enter political life with a full amnesty for all past offenses. Amnesty was also the rule for other armed groups that demobilized in the early 1990s in Colombia (EPL, PRT, CRS, Quintín Lamé), as well as in Central America. None of these groups’ members spent a day in jail after demobilizing.

Why, then, is the paramilitary process different? Why do most agree that Don Berna, Jorge 40 and Salvatore Mancuso should spend at least a token period in jail – in all cases, too small a period to fit the crime – for their human rights abuses?

This question has been asked surprisingly infrequently, so there is no ready-made, prepackaged answer. This leaves a big opening for characters like Fernando Londoño, President Uribe’s first Interior-Justice Minister and now a prolific right-wing columnist.

In all of these cases [of past peace processes] guns were turned in, amnesties and pardons were granted, ex-combatants were accepted into society and the state financed employment projects. But now, none of this is possible. Punishment, not peace, is what is important. Not pardon, but reparations for victims. Not forgetting, but collective memory. Why? Simply because before, the groups in question were leftists, supported by international socialism, and now the groups are rightists hated by international socialism.

Londoño, as usual, gets it completely wrong. Rightist groups have also benefited from amnesty during the past fifteen years (the Nicaraguan Contras, for instance, or the Tangüeros paramilitary bloc run by Fidel Castaño, Carlos’s brother, in Colombia during the 1980s). It’s not a left or right issue.

There are several far more compelling reasons that, when taken together, explain why even most of Colombia’s ruling establishment believes that AUC leaders must spend at least some time in a jail cell.

1.      These negotiations are taking place between a government and a pro-government group. Unlike a peace process between longtime enemies, both sides in these talks share a very strong interest in sweeping the same past abuses under the rug, minimizing the importance of the worst violations, and avoiding reforms to the status quo. The paramilitaries want as much “forgiving and forgetting” as possible in order to avoid jail, to keep from losing most of their assets, and to be able to keep their violent power bases intact in some form. The government, and the ruling class from which it draws most of its leadership, has no desire to reveal the role that officials, military officers, and wealthy individuals played in establishing and training paramilitaries, facilitating or willfully ignoring massacres, or supporting the groups financially along with some of the country’s worst drug figures. Those without a seat at the table, then, reasonably believe that they must pressure for an agreement that holds the worst violators accountable in some way – and at least some time in jail is an indicator that accountability is being taken seriously.

2.      The scale of the abuses committed matters. While this is probably the weakest of the reasons presented here, it still carries some weight: the paramilitaries simply committed many, many times more abuses than the M-19 or the other groups that demobilized fifteen years ago. As murderous as guerrillas have been over the years, the paramilitaries have dominated statistical categories like massacres, extrajudicial killings, disappearances, displacement, and torture – at times by ratios of as high as three to one over the anti-government fighters. This does not excuse guerrillas, who dominated other categories like kidnapping, attacks on populations and destruction of infrastructure. But it does make it harder to give the paramilitaries the same deal that the M-19 got in 1990.

3.      International norms have changed since 1990. When the M-19 and other groups demobilized fifteen years ago, few disputed that the abuses they committed were “political crimes” that could be pardoned in exchange for pledges to demobilize and to seek reconciliation with society. Since then, two things have happened. First, September 11 caused a blurring of the line between “political crimes” that can be forgiven, and “terrorism” that must be punished. For the moment, there is no international standard for discerning which is which. Second, the establishment of an International Criminal Court (to which Colombia is a signatory) and efforts of judges like Baltasar Garzón have made it at least conceivable that war crimes amnestied by a national government are still punishable in a higher, international jurisdiction. Both of these new ways of viewing war crimes make peace negotiations trickier to navigate, and the paramilitary talks are one of the first to take place in this new environment.

4.      President Uribe’s pre-conditions for talks make these dialogues look like surrender negotiations. In order to start the talks, President Uribe required the paramilitaries to declare a unilateral cease-fire, which armed groups normally do not agree to do unless they are near defeat on the battlefield. Meanwhile, the Uribe government’s repeated rhetoric insists that no “armed conflict” exists in Colombia, merely a terrorist menace – which means that an M-19-style negotiation of political reforms would be preposterous. What is left to discuss, then, but the terms of the AUC’s surrender? Under those circumstances, it makes perfect sense to be discussing imprisonment for war criminals.

5.      By putting them out of circulation for a few years, jail time will make it harder for paramilitary leaders to maintain their networks of criminality and violent social control. If ex-leaders of the M-19 had decided to devote themselves to narcotrafficking and other crime, while keeping their ex-fighters armed and on call to carry out threats and killings when needed, few doubt that the Colombian security forces would have worked assiduously to break up these networks. There is more reason to doubt, though, that we might see a similar will to break up paramilitary networks: the paramilitaries have already made inroads into local government in many parts of the country, and enjoy the support of powerful sectors of society, including powerful sectors of the security forces. Instead of crossing one’s fingers and hoping that the paramilitaries’ structures disintegrate on their own, much can be accomplished by keeping the groups’ leaders in jail cells, where it will be much harder for them to ensure that their followers do their bidding. (“Jail cell,” obviously, cannot mean the kind of arrangement that allowed Pablo Escobar and the Rodríguez Orejuela brothers to continue to run their cocaine empires from prison.)

Would these five reasons have put leaders of the M-19 in jail if they were negotiating today (or the FMLN in El Salvador, or Nicaragua’s Contras)? Probably not, in fact; only point three, regarding international norms, would have been applicable to those cases. Will these reasons require jail time for FARC and ELN leaders after an eventual peace process? Maybe, though it’s still less likely than in the case of the paramilitaries.

The FARC and ELN are still subject to new international norms, and the scale of their atrocities, though somewhat less than that of the paramilitaries’, is still horrifying enough. These two reasons alone may be enough to create pressure to put guerrilla leaders behind bars for a few years after reaching an agreement.

However, the other three reasons do not apply. As a future negotiation with guerrillas would be a dialogue between enemies, not friends, both sides would have an interest in shedding maximum light on the other’s past abuses. If both sides in such a process are actively sweeping the past out from under the rug, making truth commissions and full confessions more likely and forcing guerrilla leaders to acknowledge the blood that is on their hands, there might be less of a public demand for jail as an accountability mechanism.

For the foreseeable future, any talks with guerrillas would not at all resemble surrender negotiations. Unless the battlefield situation shifts dramatically, it is hard to imagine guerrillas agreeing to a cease-fire anytime soon, much less accepting the Uribe government’s idea that they have no political claims and are mere “terrorists.” If the negotiations encompass more than just surrender terms, the prospect of jail will be less.

Finally, it’s easy to imagine the Colombian government doing much more to stamp out criminal networks run by ex-guerrillas, whose action against economic elites would be predatory, than those run by ex-paramilitaries, who would be in league with corrupt sectors of the elite. Jail time would make little difference to the effort to dismantle post-conflict guerrilla networks.

Notice that the words “leftist” and “right-wing” did not come up at all in this discussion. Mr. Londoño is wrong – ideology has nothing to do with it. Some jail time is virtually inevitable for top paramilitary leaders because the AUC talks are fundamentally different from most other peace negotiations.

Posted by isacson at March 10, 2005 09:44 AM

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Posted by: jcg at March 10, 2005 10:42 AM

Posted by: David Holiday at March 11, 2005 12:03 AM

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