Lisa Haugaard, Latin America Working Group / June 2008
The Other Half of the Truth explores the limited opportunities for truth, justice and reparations available to victims of paramilitary violence through the official process established by the Colombian government following the demobilization agreement with paramilitary forces. Then the report highlights the often heroic efforts by diverse actors—human rights activists, journalists, prosecutors, Supreme Court judges, a few politicians, and especially victims—to wring, if not yet reparations and justice, at least a little more truth from the process. Their quest for the truth is an unfinished story, but it is an inspirational tale.
The full report is available in English at:
http://www.lawg.org/docs/the_other_half_of_the_truth.pdf
and in Spanish at:
http://www.lawg.org/docs/la_cara_oculta.pdf .
The Official Process
The Colombian government reached a peace agreement in 2003 with the paramilitary umbrella group Autodefensas Unidas de Colombia (AUC). In July 2005, Colombia’s Congress approved Law 975. This “Justice and Peace” law allowed most paramilitaries to demobilize without penalty while establishing reduced penalties for those who had committed serious crimes. The maximum term, even for crimes against humanity, was eight years. The Justice and Peace law was harshly criticized by rights groups, who warned that it would bring “neither justice nor peace.” Underlying these criticisms was the deadly serious suspicion that the demobilization was a sham, and that paramilitaries would continue to kill, traffic drugs and displace people from their lands. The demand for a more rigorous justice stemmed not just from an abstract notion of justice but from fear that without it, violence would inexorably grind on.
Colombian human rights groups challenged the law’s constitutionality. The Constitutional Court ruled the law constitutional in July 2006 but laid out important guidelines for its application. The court extended the time prosecutors had to investigate ex-combatants’ crimes, established incentives for truth by withdrawing benefits if applicants lied, and expanded victims’ access to the proceedings.
How successful has the Justice and Peace process been so far in fulfilling, as it promised to do, “the rights of the victims to truth, justice and reparation”?
Truth. The lack of an independent truth commission severely restricts opportunities for truth. The National Commission for Reparations and Reconciliation (CNRR) is charged with producing a report on “the reasons why the armed groups started up and evolved,” but while this could result in an insightful report, it is a limited project by a handful of scholars. The CNRR’s presidentially-appointed members lack the independence and credibility brought by a UN-sponsored truth commission. The absence of a truth commission limits the potential to unmask connections between paramilitaries and government officials, politicians, and security forces.
The government squandered the first opportunity provided by the law to glean information about paramilitary operations—the intake proceedings, the only moment at which all the demobilized were interviewed. Untrained prosecutors used a questionnaire poorly designed to elicit specifics regarding crimes. The vast majority of paramilitaries, therefore, simply walked away without confessing to abuses or providing information on their group’s structure and criminal activities.
The second chance at the truth is through the confessions by paramilitaries who, having committed serious crimes, seek to earn a reduced penalty. Victims’ participation in these hearings is limited by lack of information, the hearing rules, and fear. Hearings are held only in a few locations, and many victims are unaware of their rights or of the timing of hearings. Even for those who do participate, access to the proceedings is constrained. Sitting in a separate room from the prosecutor and the paramilitary, they can not ask direct questions, but submit questions in advance. The government ombudsman’s office, charged with providing victims with legal advice, has not managed to provide adequate access to counsel. Some hearings turned into ugly spectacles in which the perpetrator was surrounded by his own cheering section while the victims were relegated to the sidelines. Still, some parts of the awful truth began to emerge.
At least 15 victims seeking justice through the Justice and Peace process were killed, while another 200 were threatened, according to the CNRR (as of September 2007). The widely publicized murder of Yolanda Izquierdo after testifying in Salvatore Mancuso’s hearing struck fear into victims’ hearts. Although the government finally produced a witness protection plan in late 2007 in response to a court order, threats and attacks continued in 2008, many bearing the name of the Aguilas Negras. Victims’ associations were broken into and their registries of victims stolen. The government failed to effectively investigate any of these crimes—and even failed to wholeheartedly denounce them.
Finally, the U.S. and Colombian governments’ decision to extradite paramilitary leadership dealt a blow to the Justice and Peace process. Suddenly, the ringleaders were shipped out of the country, and their hearings were suspended. In the United States these mob bosses would face justice for drug trafficking — but not for the thousands of people they had murdered. No specific arrangements had been worked out in advance for how victims and prosecutors would have access to paramilitary bosses now scattered over five U.S. cities. Colombian prosecutors, human rights groups and victims were left without answers.
Justice. While Justice and Peace offers more possibilities to bring perpetrators to justice than many peace processes, rights groups argue that punishment is minimal even for crimes against humanity, and implementation is flawed. The vast majority demobilized without penalty. Only those against whom there were charges, or who believed their crimes would be discovered, sought reduced sentences — a total of 3,127 paramilitaries.
Just 23 prosecutors in the Attorney General’s Justice and Peace unit, hampered by the small number of investigations of paramilitaries prior to demobilization, are responsible for handling these prosecutions. Moreover, most of the 3,127 paramilitaries who sought reduced sentences appear to have abandoned the process. As of December 2007, 941 of the 1,057 depositions that the Attorney General´s office had begun receiving were closed because the ex-combatants did not ratify their willingness to receive the law’s benefits; and not a single indictment was issued, according to the UN High Commissioner for Human Rights’ Colombia office. Even paramilitaries who originally thought their crimes meant they should apply for benefits are now banking on the justice system’s inefficiency, betting that they will not be prosecuted. Finally, the extradition of leaders could result in longer jailtime than these leaders would have received under the Justice and Peace law, but will likely complicate efforts to achieve justice for human rights crimes or to unveil the connections between paramilitaries, politicians and security forces.
Reparations. While the law has created some limited opportunities for truth and justice, reparations have gone nowhere. “Reparations” in this context means not only compensation for suffering, but return of stolen land. Paramilitaries must disclose illegally obtained assets, which are channelled into a National Reparations Fund. But even paramilitaries believed to have acquired vast riches through violence, extortion, and drug trafficking pled poverty. Just the following has been turned over to the Reparations Fund: 21 rural plots (5,439 hectares); 7 urban lots; clothing; 4,666 head of cattle and horses; 8 vehicles; 2 helicopters; 739 million pesos; 70 pairs of shoes, and a television in bad repair.
Recognizing that the reparations scheme was at a standstill, the Colombian government issued a decree for “administrative” reparations. The government will provide reparations directly rather than through the courts, funded by the government’s budget rather than paramilitaries’ ill-gotten gains. This may shake loose some economic reparations for struggling victims. But this solution appears to accept that paramilitaries will not return the million of hectares of land they stole. The Uribe Administration has been resistant to include return of or compensation for stolen land as part of reparations. Victims groups, backed by the Constitutional Court and Inspector General, argued forcefully that restitution must include land for Colombia’s 4 million displaced. While the government agreed to make displaced persons eligible for reparations, it made few efforts to even identify, much less return, land obtained by violence.
In February 2008, the Congress passed a bill with executive branch support making it easier to legalize land held in someone’s possession for more than five years. In a more peaceful context a proposal to legalize small farmers’ land would be progressive. But in wartime Colombia, the five years coincide with the period of paramilitary expulsion of small farmers, Afro-Colombian and indigenous people from their lands. Given ex-paramilitaries’ power advantage over poor farmers, this law could help them legalize their ill-gotten gains. Three years after the passage of the Justice and Peace law, virtually no rparations have been made, and almost no land has been returned.
The Right to “Never Again.” Colombian rights groups claim that one other fundamental right is far from satisfied by the Justice and Peace law: the right to “non-repetition,” a guarantee that the abuses will never again take place. Paramilitary power is still far from broken. OAS monitors document the emergence of some 22 illegal armed groups, as the paramilitaries “recycled” into new, smaller but still deadly units. The groups, believed to range from 3,000 to 9,000 members, are taking over drug trade routes and extortion rackets. While many of these new or recycled groups focus on criminal activities, some, like the “Black Eagles,” continue the practice of threatening union, human rights and community leaders. Some continue to receive support from Colombian soldiers and police.
From the start of the ceasefire agreement in December 2002 until June 30, 2007, the Colombian Commission of Jurists documents 3,530 killings and disappearances by paramilitaries (outside of combat). These abuses, while trending downward, indicate many have not demobilized. Guerrillas, who have not “demobilized,” were responsible for 1,805 killings and disappearances of civilians during a similar period (July 2002-June 2007). Paramilitaries during a ceasefire and demobilization killed and disappeared nearly twice the number of civilians as guerrillas still in active combat.
The Drivers for More Truth, More Justice
But this is just the official “Justice and Peace” process. Outside that process, diverse, remarkable, heroic efforts were unleashed by the tantalizing prospect of achieving truth and justice after a period of horrific violence. By the end of 2007, Semana columnist María Teresa Ronderos could say, “Like rabbits out of a magician’s hat came the names of businessmen, military and other accomplices of the paramilitary barbarie…. This year will pass down in history as the one in which we began to discover the truth.”
Victims groups, vociferously denouncing the official process, began to carry out their own truth sessions and mock trials, launching hearings even in San Onofre, a paramilitary-controlled town in which paramilitaries had created extermination camps where victims were taken to be tortured, killed and buried in mass graves. These efforts peaked in a nationwide demonstration against paramilitary violence on March 6, following a February 4th march against FARC kidnapping. The “tale of two marches” exposed like a raw nerve the different ways in which victims of violence by the guerrillas and paramilitaries were created by Colombian society, government and media. The government, having embraced the anti-FARC march, refused to endorse the anti-paramilitary march, and a top presidential advisor on national radio associated the march organizers with the FARC. March organizers, union leaders, and victims faced a wave of death threats and violence the like of which they had not endured in many years—but continued pressing for truth and justice.
Human rights groups were determined to expose the ways in which the Justice and Peace law could allow war criminals to escape justice. Their undaunted work helped pave the way for the Constitutional Court’s ruling improving the law’s application and set the basis for future challenges in the international arena. The Colombian government’s Inspector General office (Procuraduría General) during this period used the means in its power to prod the branches of government towards greater respect for the rights of victims of violence. Catholic and Protestant churches, working with victims associations, universities and NGOs, built peace and reconciliation networks in the country’s most conflicted areas, pursuing initiatives to unearth the truth. Colombia’s main daily, El Tiempo, published a devastating series on mass graves, while independent TV producer Hollman Morris documented victims’ struggles for justice.
A dynamic combination of a few outspoken politicians, the Supreme Court and some determined Colombian journalists and investigators exposed the parapolitics scandal, or “Paragate.” It did not emerge from the Justice and Peace process, although once the scandal began to unfold, the Justice and Peace hearings contributed leads. Senator Gustavo Petro of the Polo Democrático Alternativo party in 2005 began denouncing publicly that at least a third of congressional seats were held by politicians who had struck secret deals with the paramilitaries, while centrist politician Senator Rafael Pardo persistently called attention to the paramilitary hold over politics.
But only once the Supreme Court began investigating the links between the paramilitaries and the politicians did Paragate come fully to light. It was these investigations—and the image of powerful politicians hauled into court—more than any consequences from the Justice and Peace law, that awakened Colombian society to how deeply their politicians were connected to paramilitary violence. The Supreme Court’s investigations and parallel journalistic investigations by some of Colombia’s major media, which had previously barely covered the story, along with investigations by independent thinktanks like Corporación Nuevo Arco Iris and Indepaz, began to reinforce each other. The court’s investigations ultimately resulted in the arrest of dozens of members of the Congress, local and regional politicians, the majority linked to the ruling party or its coalition partners. Today, 63 politicians are under investigation, charged or convicted of paramilitary collaboration. While President Uribe fully funded the Supreme Court during this period, he used his “bully pulpit” to discourage investigations and intimidate the courts, lambasting Supreme Court judges publicly and bringing libel charges against the court’s chief justice.
The full scope of what will be revealed regarding the paramilitaries’ connections to government officials, politicians, landowners and the armed forces is not yet known. It is a volatile moment. Important actors within Colombia—starting with the victims, but joined by human rights groups, journalists, judges, politicians, prosecutors, churches—are running new risks to open the box of locked secrets. The Uribe Administration is navigating a demobilization process which includes a measure of truth and justice. Yet at the same time, it is trying to use its influence to prevent the full truth from being revealed. But the forces driving forward the truth are gathering steam, and they will not all be silenced.
A Map for U.S. Policy: Towards Supporting Truth and Justice
How can U.S. policy be more supportive of truth, justice, and meaningful reparations for victims of paramilitary violence — and all victims?
The drivers for truth and justice are not outside Colombia—they are within. Victims bravely demanding justice; indigenous and Afro-Colombian groups organizing for the return of land; human rights defenders accompanying communities at risk; Supreme and Constitutional Court judges faithfully interpreting the law; dedicated staff within the offices of the Attorney General, Inspector General, and Ombudsman; the small band of politicians who decried Paragate; determined journalists…. U.S. policy can choose to support these voices. This support can and should include funding to improve justice and protect and assist victims, but words—U.S. diplomatic efforts—are equally or more important.
Changes made by the Congress in 2007 to increase assistance for the rule of law and victims are steps in the right direction, and many of the aid programs recommended here have been begun. But these directions must be strengthened, and they must be supported by the highest-level diplomatic message. Finally, the desire of the administration for a trade agreement must not overshadow its diplomacy for democracy and human rights. If the U.S. government devotes its best efforts to a publicity campaign that sells Colombia as a marvelous success story, a strong human rights message can not be heard.
1. Support and protect victims and human rights defenders
– The State Department and embassy should visibly demonstrate that the U.S. government stands behind victims and defenders as they struggle for justice. This should include incorporating statements of support into speeches; speaking publicly when defenders and victims receive death threats; and visiting groups’ offices and attending events.
– The State Department, embassy, and Congress should insist that threats and attacks against defenders and victims, and break ins of their offices, are effectively investigated and prosecuted, and should press for results in specific cases. The U.S. government should encourage the Colombian government to enforce directives that prohibit government officials from making denigrating statements regarding human rights defenders.
– The U.S. government should continue funding the Ministry of the Interior’s protection program for human rights defenders and unionists, but also advocate for program improvements; and should urge the Colombian government to effectively implement its plan to protect victims testifying in the Justice and Peace hearings.
– The U.S. government should increase funding for legal representation of victims in the Justice and Peace process and other efforts for justice, and encourage the Ombudsman’s office to improve attention to victims. USAID should fund radio and TV campaigns on human rights groups’ activities, victims’ rights, and workers’ right to organize.
2. Urge the Colombian government to fully implement the Justice and Peace law regarding investigations and prosecutions of paramilitary abusers
– The State Department and embassy should use diplomatic leverage to encourage effective investigations and prosecutions of paramilitary leaders under the Justice and Peace law.
– The U.S. government should ensure that Colombian prosecutors and investigators, including Supreme Court investigators pursuing politicians’ collaboration with paramilitaries and Justice and Peace and human rights unit prosecutors, as well as victims and their representatives, have full access to the extradited paramilitary leaders. The Department of Justice (DOJ) should ensure there are incentives for extradited leaders to reveal human rights crimes, connections with government and security force officials, and illegally obtained assets, particularly land; and that no plea bargains with extradited leaders prevent such disclosures. The U.S. government has the obligation to ensure that this controversial decision to extradite paramilitary leadership does not jeopardize prosecutions for human rights crimes or the rights of victims to truth, justice and reparations.
– The Justice and State departments should urge the Colombian government to investigate and prosecute paramilitaries’ financial backers and increase aid to track financial networks.
– The U.S. government should show support for Supreme Court efforts to investigate and prosecute politicians who collaborated with paramilitaries, including by making statements supporting the independence of the judiciary.
– The U.S. government should continue to fund exhumations, but encourage this to lead to the identification of remains. U.S. aid should support the creation of a registry of the missing and “disappeared,”and DOJ should encourage government agencies to collaborate with relatives of the disappeared in creating and using this registry to identify remains.
– The U.S. government should advocate for strong, continued mandates for and provide funding for international agencies such as the UN High Commissioner for Human Rights, the International Labor Organization and the OAS demobilization monitoring mission.
3. Insist upon marked progress to return land to and improve services for displaced persons
– The State Department and Embassy should urge the Colombian government to insist upon full disclosure and return of illegally held land by demobilizing excombatants who wish to obtain benefits under the Justice and Peace law. The State Department and USAID should urge the Colombian government to carry out a systematic review of land that has been lost by internally displaced persons. USAID should fund this review as well as efforts by the Inspector General’s office to encourage government agencies to identify and return land.
– USAID should carefully implement the guidelines it has developed to ensure that U.S. funding does not support any project on land obtained by violence.
– The U.S. government should expand programs for emergency assistance for refugees and IDPs and for long-term programs for durable solutions, encouraging the Colombian government to abide by Constitutional Court rulings regarding its obligations to the displaced. Aid programs should help IDPs and refugees know and exercise their rights.
4. Encourage efforts to ensure the guarantee of “never again”
– The U.S. government should publicly comment on the failure to demobilize and emergence of new groups of paramilitaries, carefully documenting this in the State Department’s annual human rights report, and insisting that the Colombian government investigate, prosecute and combat new and demobilized groups. Underplaying the problem of continued paramilitary violence only contributes to its persistence.
– The State and Defense departments should insist that the Colombian armed forces’ human rights record improve. Congress should continue to hold up military aid subject to human rights conditions until extrajudicial executions of civilians by the army end and cases move systematically into civilian courts, achieving convictions of soldiers and officers, including intellectual authors. Prosecutions of high-level officials who aided paramilitary groups must take place if this kind of collusion is to end. The armed forces should be urged to respect the collective land and customs of indigenous and Afro-Colombian communities.
– The State Department and USAID should encourage the Colombian government to improve the protection of communities at risk of violence, including by insisting that the Colombian government improve implementation of the “early warning system,” making its reports public, so that justice and security agencies are forced to respond.
