Reducing the incidence of massacres in colombia

Reducing the Incidence of Massacres in Colombia

Lilian P. Coral Hela Mahgerefteh Heather Ward UCLA School of Public Policy and Social Research Department of Policy Studies

Prepared for Tim Rieser Foreign Relations Assistant to Senator Patrick Leahy (D-VT)

The views expressed in this paper do not represent the views of the University of California, Los Angeles School of Public Policy and Social Research.

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Acknowledgements

This study is the culmination of three months of hard work. From the beginning we knew that this topic would be a challenge. Nonetheless, we chose it because it provided us the opportunity to have an impact on one of the worst human rights situations of the modern era.

Our achievement is undoubtedly due to the assistance of several individuals who offered us their unlimited time and knowledge. We would like to extend a warm thanks to: Paul Paz y Mino – Colombia Specialist, Amnesty International Tim Rieser – Foreign Relations Assistant, Senator Patrick Leahy (D-VT) Scott Wilson – Foreign Correspondent, The Washington Post In addition, there were countless legislative assistants, State Department officials, reporters, and activists who lent us their time.

Thank you all for your assistance.

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Table of Contents I. Executive Summary

pg. 5

II. Introduction

pg. 8

i. ii. iii.

Why Colombia Matters History of the Leahy Law and Country Specific Conditions Reducing the Incidence of Massacres

III. Implementing Human Rights Conditionalities in Colombia i. ii.

pg. 15

Government of Colombia U.S. Department of State

IV. Strengthening Human Rights Conditions on U.S. Assistance

pg. 33

V. Early Warning System

pg. 36

i. ii. iii. iv.

Steps in the Current EWS/CIAT Process Placing Pressure on the Colombian Government An Action Plan for Senator Leahy Desirable Long Term Action

VI. Conclusion

pg. 48

VII. Appendix

pg. 49

VIII. Works Cited

pg. 73

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Executive Summary Massacres, displacements and kidnappings are frequent occurrence in Colombia. According to the Colombian Commission of Jurists (CCJ), between July 2002 and June 2003 over 730 persons died in politically motivated massacres 1 . This paper provides Senator Patrick Leahy (D-VT) with a recommendation for how to reduce the incidence of massacres in Colombia. Senator Leahy has taken a leading role in advocating for enhanced protection of human rights in Colombia. In 1996, Senator Leahy introduced a provision, later known as the “Leahy Law,” in the Foreign Appropriations Act (FOAA), which placed human rights conditions on the disbursal of U.S. military aid and assistance to Colombia. In 1999, he championed the creation of Country Specific Conditions (CSCs) for Colombia in the FOAA, which condition U.S. aid to Colombia on the nation’s ongoing efforts to systematically improve its human rights situation. The CSCs state that the Government of Colombia cannot receive funds until it has demonstrated that it is working to suspend, investigate and prosecute members of the Armed Forces that have committed human rights abuses. The Armed Forces must also sever their links to and dismantle paramilitary units.

Despite the existence of the Leahy Law and the CSCs, massacres and internal violence continue to ravage the Colombian landscape. Our analysis of the Leahy Law and CSCs reveals that these two mechanisms were destined to fail. Our research identifies two primary reasons for the failure of human rights conditionalities: (1) compliance failures by the Government of Colombia and (2) enforcement failures by the U.S. Department of State.

The onus of complying with the Leahy Law and Country Specific Conditions in Colombia lies upon the Government of Colombia.

However, the Colombian government has consistently

demonstrated an unwillingness to comply with these conditions and address human rights abuses and massacre prevention. Further, investigative and prosecutorial breakdowns have prevented meaningful attempts to comply with the conditionalities. In addition, the conditions themselves have not provided the needed impetus for change. The Leahy Law and the CSCs neither place 1

“Colombia: Country Reports on Human Rights Practices - 2003. ” U.S. Department of State, Bureau of Democracy, Human Rights, and Labor. 25 February 2004. <http://www.state.gov/g/drl/rls/hrrpt/2003/27891.htm>.

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adequate pressure on the Colombian government, nor do they sufficiently encourage preventative action.

The U.S. Department of States is responsible for ensuring that the Leahy Law and CSC are properly enforced. However, the fact that the conditionalities often clash with the U.S.’ national security interests in Colombia gives the U.S. Department of State an incentive not enforce the conditionalities to their fullest extent. The Bush Administration and the Republican majority in Congress, highly value Colombia as a strategic ally in the “War on Drugs” and the “War on Terror,” and have demonstrated an unwillingness to deny aid to Colombia’s Armed Forces.

Unfortunately, there is no quick fix for these problems. It could be implied that it is necessary to alter and strengthen the legislation. However, our research has indicated that as a result of the current political climate and the Republican majority in Congress, any attempt to do so at the time would give the opponents of human rights conditionalities an opportunity to further weaken the existing legislation. Given this environment, we believe that Senator Leahy’s best option for reducing the incidence of massacres in Colombia is to devote his personal resources to increased publicity of the Early Warning System.

The Early Warning System The Early Warning System was established in 2001 to mitigate the impact of violence on the Colombian people. The system encourages preventative action on the part of the Colombian Government to prevent massacres and save lives. The Colombian Government currently directs limited attention to this system because it is not pressured to do. We believe that increased U.S. focus on the Government of Colombia’s inadequate response to EWS alerts has the capacity to dramatically impact the human rights situation in Colombia.

The EWS is directed to forward-

looking preventative action; as such it can save lives immediately. Increased attention on the EWS can also serve to demonstrate the magnitude of the human rights problem and the Colombian government’s inaction. Heightened visibility of EWS alerts and responses will make it impossible for the Colombian Government to conceal the fact that it is allowing massacres to occur unimpeded.

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An Action Plan for Senator Leahy We recommend that Senator Leahy use his personal power and resources to publicly pressure the Colombian government to respond to EWS alerts and prevent massacres form occurring.

Senator Leahy (and his allies) can make it difficult for the Colombian government to ignore EWS alerts by taking the following steps: •

Generate publicity and create pressure on the Colombian government by discussing EWS alerts, responses and preventable massacres on the Senate and House floors

•

Coordinate with the media to publicize EWS alerts and massacres

•

Coordinate with the U.S. Embassy in Bogotá to pressure the Government of Colombia to respond to EWS alerts and prevent massacres

•

Coordinate information sharing with NGOs

•

Form visible partnerships with Senators and Congressmen who are sympathetic to human rights issues to demonstrate to Colombia the U.S.’ interest in massacre prevention

In the long-term, Senator Leahy should try to: •

Push for a reorganization of the existing EWS structure

•

Incorporate an EWS-related condition into the CSC

In conclusion, we believe that increased publicity can serve as a mechanism to place pressure on the Colombian government to respond to EWS alerts and reduce the incidence of massacres in Colombia. According to our research, this recommendation will have minimal costs for Senator Leahy and yield high benefits

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Introduction “In the cool hours before sunrise on January 17, 50 members of the United Self-Defense Forces of Colombia marched into this village of avocado farmers. Only the barking of dogs, unaccustomed to the blackness brought by a rare power outage, disturbed the mountain silence. For an hour, under the direction of a woman known as Comandante Beatriz, the paramilitary troops pulled men from their homes, starting with 37-year-old Jaime Merino and his three field workers. They assembled them into two groups above the main square and across from the rudimentary health center. Then, one by one, they killed the men by crushing their heads with heavy stones and a sledgehammer. When it was over, 24 men lay dead in pools of blood. Two more were found later in shallow graves. As the troops left, they set fire to the village2 .” (Chengue Massacre, 2001)

Colombia is a nation plagued with internal violence. Its citizens are vulnerable to organized crime and guerilla warfare. Although the former has been internationally recognized, guerilla warfare has failed to generate the same amount of action. In 2003, the internal conflict between the Colombian government and guerilla groups led to the deaths of 3,000 to 4,000 civilians 3 .

Massacres, displacement and kidnappings stemming from the nation’s civil war are a frequent occurrence in Colombia. According to the Colombian Commission of Jurists (CCJ), at least 1,781 political murders and extrajudicial killings occurred during the first 9 months of 2003 4 .

Colombia’s current crisis is the result of more than fifty years of political instability, further exacerbated by drug production and trafficking. The origin of the conflict dates back to the late 1940s and La Violencia, a term used to refer to a period of intense internal conflict between Colombia’s two primary political parties. This conflict, which lasted until the 1960s, was particularly chaotic in the countryside. More than 200,000 people were killed as a result of the conflict.

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Wilson, Scott. “Chronicle of a Massacre Foretold; Colombian Villagers Implicate Army in Paramilitary Strike.”

The Washington Post, 28 January 2001.

3 Country Reports on Human Rights Practices: Colombia 2003. Released by the Bureau of Democracy, Human Rights, and Labor, U.S. Department of State 25 February, 2004 <http://www.state.gov/g/drl/rls/hrrpt/2003/27891.htm> 4 “Colombia: Country Reports on Human Rights Practices - 2003.”

U.S. Department of State, Bureau of Democracy, Human Rights, and Labor. 25 February 2004. <http://www.state.gov/g/drl/rls/hrrpt/2003/27891.htm>.

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La Violencia ended with a power-sharing agreement, The National Front, between Liberals and Conservatives, which excluded third parties (See Appendix 4 for further history). This resolution ignited to the creation of current guerilla groups (the FARC and the ELN). In response to the systematic violence of these irregular armed groups, local landowners promoted the creation of local self-defense, or paramilitary, groups. As a result of the fact that neither of these factions represents a state party to the Geneva Conventions, the Laws of War are not recognized in Colombia’s internal armed conflict. In other words, innocent civilians are not afforded the protection they are entitled to. Consequently, almost 4,500 people were killed in politically motivated massacres between 1999 and 2003 (See Appendix 11 for graph). This is one of the reasons why Colombia has garnered the title of “homicide capital of the world.” However, in comparison to the violent struggles of other Latin American countries, Colombia has appeared to be relatively stable.

Although Colombia’s internal conflict is worrisome for its regional allies, historically most attention has been focused on the country’s other problem, illicit drug production. Colombia supplies 90 percent of the cocaine that enters the U.S. market. It is also an important supplier of heroin and marijuana 5 . The United States provides extensive military assistance to Colombia in an effort to end the illicit production of cocaine, heroin, and marijuana. In 2003, Colombia was the fifth largest recipient of U.S. aid. Over the past five years the U.S. has provided nearly $3 billion dollars of assistance to Colombia 6 . Most of this aid is disbursed to Colombia’s military, which is in charge of dismantling domestic drug networks and eradicating coca and poppy fields.

The nature of U.S.-Colombia relations has primarily centered on the eradication of drugs. This relationship was altered when both guerilla and paramilitary groups began using the drug trade as a new form of revenue. As a result, the U.S. has broadened the use of military assistance to include combating illegal armed groups in Colombia. The United States has committed itself to ensuring that the Colombian government retains control of the country by eliminating illegal armed groups and drug production and trafficking. Therefore, the United States’ relationship

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“Colombia.” The CIA World Factbook, 2003. <http://www.cia.gov/cia/publications/factbook/geos/co.html>.

“Colombia’s Oil Sector – An Overview,” Trade in the Americas, American Friends Service Committee <http://www.afsc.org/colombiaoil/oil_1.htm>.

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with Colombia is marked by two primary issues: (1) the “War on Drugs” and (2) internal stability, both of which have had an immense impact on human rights.

The deterioration of human rights protection in Colombia is associated with the increased militarization of the country. U.S. assistance to Colombia has predominantly consisted of military aid, for reasons previously mentioned. Unfortunately, evidence has emerged showing how U.S. assistance in the form of training and weapons has been used by certain units in the Colombian government to aid and abet paramilitary groups. Links between Colombia’s armed forces and paramilitary groups seem natural considering they share the same objective, to eliminate Colombia’s guerillas. To the detriment of civilians, this association has often meant the disregard of basic human rights, in particular the right to life.

Paramilitary groups generally target civilian populations, which they feel sympathize with the FARC or the ELN. Massacres, the killing of 3 or more individuals in the same geographic location within a 24 hour period, is the preferred method of killing for the AUC, Colombia’s largest paramilitary group 7 . Military assistance in massacres has usually consisted of logistics and/or protection. Massacre patterns indicate that military checkpoints are being used to enclose geographic locations targeted by paramilitary groups. This encircling allows the AUC to enter towns and commit massacres without intervention. Efforts to address this pattern of state violence have varied.

History of the Leahy Law and Country Specific Conditions In 1995, Amnesty International launched an international campaign titled “Colombia: Myth and Reality8 .” The campaign shed light on the human rights situation in Colombia and advocated for greater international support for the protection of human rights. It marked the first time that Amnesty International had called for complete cutoff of U.S. military aid to any country9 . As part of the campaign, Amnesty International rallied other human rights organizations including

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Human Rights Watch World Report 2003: Colombia <http://www.hrw.org/wr2k3/ americas4.html>.

Interview: Paul Paz y Mino, Colombia Specialist, Amnesty International, February 18, 2004.

9 Interview: Paul Paz y Mino, Colombia Specialist, Amnesty International, February 18, 2004.

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Human Rights Watch (HRW), the Washington Office on Latin America (WOLA), and the Latin America Working Group (LAWG) to advocate for U.S. legislation aimed at preventing the dispersion of funds to units accused, or implicated, of violating human rights 10 . Senator Patrick Leahy (D-VT), concerned with the escalating human rights situation in Colombia, took the lead role in supporting the creation of such legislation.

In 1996, Senator Leahy introduced a

provision in the Foreign Operations Appropriations Act, which placed human rights conditions on the disbursal of military aid 11 . Despite strong opposition by Republican Senators who argued that human rights concerns impeded the “War on Drugs,” this legislation passed as an amendment to the Foreign Operations Appropriations Act (FOAA) of fiscal year 1997 (P.L. 104208). As a result of his sponsorship, this legislation came to be known as the “Leahy Law” (See Appendix 1) 12 .

Since 1997, the Leahy Law has been included and expanded in the FOAA. The original version of the Leahy Law applied to U.S. counter-drug assistance controlled by the State Department’s Bureau for International Narcotics and Law Enforcement 13 . From the beginning, the Leahy Law faced implementation struggles. Limited action was taken by the U.S. Embassy in Colombia to enforce the law. Subsequently, human rights activists pressed the State Department to ask its embassy in Bogotá to report the measures being taken to enforce the law14 . As a result, the U.S. embassy hired more personnel and started vetting units in response to this pressure 15 . In fiscal year 1998, Congress broadened the Leahy Law to apply to all security assistance funded through the FOAA 16 .

In 1999, in response to growing concern over U.S. training of foreign militaries involved in human rights abuses, the Leahy Law was attached to training programs authorized by the Department of Defense Appropriations bill, through which most of U.S. military assistance to 10

Interview: Paul Paz y Mino, Colombia Specialist, Amnesty International, February 18, 2004.

Human Rights Watch Report 1998: VIII: “The Role of the International Community.” <http://www.hrw.org/reports98/colombia/Colom989-08.htm> 12 Ibid.

13 Reed, Carmen. “Ensuring Human Rights with the Leahy Law.” Presbyterian Washington Office, 2000. <http://www.pcusa.org/washington/issuenet/latin-000200.htm> 14 Interview: Paul Paz y Mino, Colombia Specialist, Amnesty International, February 5, 2004.

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Latin America is funded 17 . The version of the Leahy Law applied to the Defense Appropriations bill differs from the provision in the FOAA. The Defense Department version applies only to training. The Defense Appropriations bill also includes a waiver provision that allows the Secretary of Defense to override the Leahy Law when “required by extraordinary circumstances” (i.e. national security) 18 .

Prior to 2000, the Leahy Law was the primary mechanism used to block aid to violators of human rights in Colombia. However, the human rights and funding situation changed in 2000 with the passage of Plan Colombia. Colombian President Pastrana Arango championed Plan Colombia as a means to achieve four major objectives: (1) to promote the peace process; (2) to combat the narcotics industry; (3) to strengthen the Colombia economy and (4) to strengthen democracy in Colombia 19 . The United States, which viewed the Colombian drug trade as a threat to its own national security, actively supported this plan and committed itself to providing Colombia with $1.3 billion in assistance 20 .

The bulk of the aid given under Plan Colombia was distributed to the Colombian Armed Forces.

With this escalation of military aid, U.S. donor practices became subject to more scrutiny.

NGOs were concerned that the increase in military aid would trigger additional massacres and gross violations of human rights. This concern led to the creation of a new mechanism of human rights conditionality, the Country Specific Conditions for Colombia. NGOs urged the creation of these conditions as a way to strengthen and complement the existing Leahy Law. The Leahy Law did not address the systematic factors underlying Colombia’s human rights problems. For example, military – paramilitary collusion was responsible for much of the internal violence, which ravaged the Colombian landscape, however, the language of the Leahy Law did not necessarily ensure that this collusion would be addressed.

In contrast, Country Specific

Conditions (CSCs) were designed to bring about systematic change in Colombia’s overall human 15

Interview: Paul Paz y Mino, Colombia Specialist, Amnesty International, February 5, 2004.

Reed, Carmen. “Ensuring Human Rights with the Leahy Law.” Presbyterian Washington Office, 2000. <http://www.pcusa.org/washington/issuenet/latin-000200.htm> 17 Reed, Carmen. “Ensuring Human Rights with the Leahy Law.” Presbyterian Washington Office, 2000. <http://www.pcusa.org/washington/issuenet/latin-000200.htm> 18 Ibid.

19 McCafferty, Barry R. Address. The Atlantic Council of the United States 28 Nov. 2000.

20 Ibid.

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rights situation. The CSCs required that “the Colombian government break ties between its military and illegal paramilitary groups, suspend officers implicated in abuses, actively pursue and arrest paramilitary leaders, and restore order to regions beset by guerrilla and paramilitary violence 21 .”

Reducing the Incidence of Massacres In June 2001, the U.S. Agency for International Development (USAID) and the National Ombudsman’s Office of Colombia established an Early Warning System (EWS) to mitigate the impact of violence on the Colombian people 22 . The EWS was designed to institutionalize citizen alerts and to respond to alerts of impending violence, in order to prevent violence against Colombia’s civilian population. Three years after its implementation, the EWS still faces some important challenges. Nonetheless, it is the sole preventative program instituted by Colombia and the U.S. and should be persuasively utilized by Senator Leahy to draw attention to Colombia’s human rights situation and bring about coordinated pressure on the U.S. Department of State and the Colombian government to comply with the Leahy Law and CSCs.

As more light is shed on the situation it will become important for the Senator to note the challenges of the current EWS and possible solutions. These challenges include poor coordination between the National Ombudsman and CIAT, the response bodies of the EWS, which has limited effective utilization of the Early Warning System. Consequently, the system suffers from the following ailments: Ø It often fails to respond in a timely manner to alerts Ø Risk assessments are not prioritized in accordance to what is most pressing Ø It lacks adequate follow-up procedures to alerts once they have been issued Ø The Ombudsman’s Office lacks sufficient funds to make it possible to establish an effective presence in all of Colombia’s municipalities

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“Colombia: Flawed Certification Squanders U.S. Leverage: U.S. Aid Released Despite Evidence of Colombia’s Failure to Meet Conditions” Human Rights Watch Jan. 23, 2004. <http://hrw.org/english/docs/2004/01/23/colomb6990.htm>.

22 “Briefer on the Early Warning System (EWS) supported under the “Prevention” component of AID’s Human Rights Program.” USAID.

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Despite these challenges, the Early Warning System has great potential to be an effective tool at saving lives. In the short-run the EWS can serve to shed light on (1) the unwillingness of the Colombian government to comply with human rights conditionalities, and (2) the State Departmentâ&#x20AC;&#x2122;s minimal enforcement of human rights conditionalities. Since the Early Warning System is not conditioned to U.S. military funds, it will not hamper U.S.â&#x20AC;&#x2122; objectives in Colombia. Instead, it can serve as the main mechanism by which concerned legislators and citizens can ensure the prevention of human rights violations in Colombia.

This report is divided into two sections. In Section One we discuss the implementation of the Leahy Law and the Country Specific Conditions, two of the most utilized mechanisms of human rights conditionality in Colombia, and analyze why these mechanisms have not been successful.

This analysis is performed through a comprehensive evaluation of the processes taken by the U.S. Department of State and Government of Colombia (GOC) to comply with the legislation.

In Section Two we discuss a public awareness campaign for the Early Warning System. This discussion will also include modifications needed to increase the effectiveness of the EWS at preventing human rights violations.

This analysis is based on personal interviews with Colombian and International NGOs, journalists, congressional staffers, U.S. Embassy officials in BogotĂĄ, the U.S. Department of State, and officials in the Colombian government. We also conducted extensive secondary source research focusing primarily on recent journal articles, congressional hearing transcripts, and governmental and NGO websites.

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Implementing Human Rights Conditionalities in Colombia Government of Colombia The protection of human rights in Colombia is highly

Relevant Statistics

constrained by the country’s internal conflict. The growth of Colombia’s two main guerilla groups, the FARC and

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the ELN, has intensified the internal struggle for democratic stability. Colombia’s citizens are caught in the middle of this struggle and are afforded little

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protection, as the government focuses on regaining control of the country. Further complicating the issue is

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FARC and AUC involvement in the drug trade. The objectives of the “War on Drugs” and Colombia’s “War on Terror” have thus converged. This convergence was

v

explicitly made in the 2002 Supplemental Aid request, when the Bush Administration formally lifted restrictions

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More than 40,000 Colombians have been killed in the last decade of political violence in the country.

Since 1995, over 1,500 trade union leaders have been killed in Colombia In the last decade, more than 200 journalists have been assassinated in Colombia More than 95 percent of crimes in Colombia are never prosecuted.

Colombia is rated as the homicide capital of the

that prevented the Colombian security forces from using U.S. funding to combat illegal armed groups.

The U.S.’ aid policies toward Colombia have reinforced the commitment to ending the War on Drugs and achieving internal stability. In the distribution of U.S. assistance to Colombia, 83% of U.S. assistance is marked for Colombia’s security personnel (See Appendix 3). This unbalanced aid distribution has led to the militarization of Colombia. However, this militarized environment clashes with the promotion of human rights, and thus compliance with the Leahy Law and Country Specific Conditions.

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As the U.S. has increased its focus on a military response to drugs and terrorism, domestic political support for Colombia’s prosecutorial agencies has diminished. This focus is problematic when we consider that implementation of the Leahy Law and CSCs relies on having an effective investigative mechanism and an impartial judiciary in Colombia. In order to comply with the Leahy Law and Country Specific Conditions Colombia must: Ø Ensure that no U.S. funds are being disbursed to military or police units that have been accused of committing gross violations of human rights, including extra-judicial killings, or to have aided or abetted paramilitary organizations Ø Ensure that security members and/or units accused of human rights violations are vigorously investigated and prosecuted Ø Ensure that the Armed Forces cooperate with civilian prosecutors and judicial authorities Ø Progressively sever links between the Armed Forces and paramilitary organizations at the command, battalion, and brigade levels Ø Dismantle paramilitary networks

The latter two address Colombia’s persistent ties with the AUC, the country’s largest right-wing paramilitary group. “The military has issued guidance with regards to former service members who join the AUC while maintaining connection with active duty soldiers 23 .” In effect, it has attempted to restrict access to military facilities, and has increased base and force protection measures24 . These actions are aimed at decreasing the possibility that former members of the Armed Forces, which have joined the AUC, do not solicit the help of current members in committing crimes. The effectiveness of these measures is hard to discern. Attention on AUC massacres has led to changes in their killing patterns. Human Rights Watch reports that the reduction in AUC massacres is the result of single killings and the dumping of bodies in different locations, thereby avoiding the legal definition of a massacre. Consequently, attention on military-paramilitary collusion has had a twofold effect. While it has led to greater action by the

23 24

State Department Justification on Human Rights Conditions, July 2003.

Ibid.

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Colombian government, it has also led to more subtle methods of killing that add to the complexity of the human rights problem.

In addressing the core elements of human rights conditionality, mainly the denial of U.S. assistance to units that have violated human rights, the Colombian government has made various structural changes. These modifications have attempted to comply with the Leahy Law and CSCs by instituting the following procedural steps to investigate and prosecute security members accused of committing gross violations of human rights:

Step 1: Initial complaints are received and investigated by the Procuraduria, or Inspector General’s Office 25 Step 2: Credible complaints are passed on to the Fiscalia, or Attorney General’s Office, which is responsible for the criminal investigation and prosecution of accused military personnel26 Step 3: Cases found to be credible by the Fiscalia are then forwarded to the Armed Forces, who are to “suspend personnel upon 1) receipt of an order for preventive detention and 2) at the request of the Fiscalia 27 ” Step 4: These cases are also made known to the U.S. Embassy in Bogotá, during vetting procedures28

This process relies on the capacity of the individual agencies to enforce the protection of human rights. Unfortunately, in Colombia we find agencies with various institutional problems stemming from the larger sociopolitical context. In addressing the internal conflict, the Colombian government has preferred increasing its military capacity as opposed to implementing a progressive social policy. This has resulted in greater funding to the Armed Forces, and less support for civil institutions. Thus, the following agencies (the Procuraduria, the Fiscalia, and the Judiciary), despite being charged with the formidable task of ensuring the protection of human rights, have found little governmental support.

25

State Department Country Report on Human Rights Practices, 2002.

State Department Justification on Human Rights Conditions, July 2003.

27 Ibid.

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The Prosecuting Agencies Colombia has two main prosecuting agencies designed to deal with abuses by state security personnel:

I. Procuraduria Headed by the Procurador General29 , the Procuraduria, or Inspector General’s office, is in charge of investigating allegations of misconduct by public employees 30 . The Procuraduria is thus responsible for conducting disciplinary investigations of security personnel and imposing administrative sanctions upon the discovery of credible evidence 31 . Sanctions can include letters of reprimand, suspension, dismissal, and permanent bans from public office 32 . Additionally, the Inspector General has the authority to suspend personnel during the “investigation of gross misconduct, 33 ” an action rarely taken.

The Procuraduria’s Disciplinary Delegate for the Defense of Human Rights refers cases involving human rights violations to the Attorney General’s office for criminal investigation34 . It also plays a limited role in military investigations and/or the prosecution human rights violations.

When military legal authorities open a case involving military personnel the Procuraduria is notified and given regular updates35 .

28

US Human Rights Vetting in Colombia (Appendix 4. US Human Rights Vetting, The Sixth Division HRW Report, 2001): <http://www.hrw.org/reports/2001/colombia/app4.htm>.

29 Dr. Edgardo Maya Villazón is the current Inspector General.

30 State Department Country Report on Human Rights Practices, 2002.

31 Ibid.

32 State Department Justification on Human Rights Conditions, 2003 and State Department Country Report on Human Rights Practices, 2002.

33 State Department Justification on Human Rights Conditions, 2003.

34 Ibid.

35 State Department Justification on Human Rights Conditions, 2003.

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Being a key government agency has afforded the Procuraduria the responsibility of ensuring that government employees do not violate human rights. In order to fulfill its role, the Procuraduria has to be able to conduct investigations with the fewest possible obstacles.

II. Fiscalia The Attorney General’s Office 36 , or the Fiscalia, is responsible for ensuring that criminal offenses are being investigated and evidence is presented against those accused, which can include military personnel37 . In order to maintain the independence of the Fiscalia, the Colombian government chose to have it function separately from the judicial and executive branches of government 38 . The agency has regional and local offices 39 to meet the needs of the citizenry.

The Human Rights Unit of the Fiscalia was established in 1995 40 to deal with the investigation and prosecution of human rights abuses 41 . Initially, the unit consisted of prosecutors and investigators from the CIT [Cuerpo Tecnico de Investigacion], or Technical Investigations Unit 42 . It is now a department with more than 160 prosecutors, investigators, and technicians who investigate and prosecute human rights cases 43 . As the main prosecuting department, the Human Rights Unit has been the source of great criticism. Many internal and external observers believe it is an epicenter of impunity within the Colombian government.

Investigative Limitations

36

Luis Camilo Osorio is Colombia’s current Attorney General.

State Department Country Report on Human Rights Practices, 2002.

38 Ibid.

39 Ibid.

40 Human Rights Watch, “A Wrong Turn: The Record of the Colombian Attorney General’s Office,” November 2002.

41 Ibid.

42 Ibid.

43 State Department Justification on Human Rights Conditions, July 2003.

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The Procuraduria and the Human Rights Unit of the Fiscalia suffer from similar limitations as a result of the unstable political environment. The investigative capacity of the Procuraduria and the Fiscalia has been limited by: Ø A lack of criminal authority of the Procuraduria Ø A two-month limit on human rights investigations of security personnel Ø A lack of cooperation from the Armed Forces Ø An inability to protect human rights prosecutors Ø Backlog Ø A lack of resources

Ø

The Fiscalia’s human rights investigators depend on superiors for case approval

Lack of criminal authority of the Procuraduria Although the Procuraduria can take disciplinary action and sanction or suspend security members, the repercussions of an administrative sanction are less severe than that of a criminal sanction. For this reason, it is unclear how effective administrative sanctions can be at deterring security members from committing human rights violations. Additionally, the Procuraduria’s most significant disciplinary tool, suspension, is rarely used.

Two-month limit on human rights investigations of security personnel The Law of Security and National Defense, passed in 2001, changed the time limit on human rights investigations from six to two months as a means of addressing the enormous backlog of human rights cases. The change in time limit has had a negative effect on human rights investigations because investigators are often slowed by various external factors related with military cooperation.

Lack of cooperation from the Armed Forces In the past the Armed Forces have prevented investigators from the Fiscalia and the Procuraduria from gaining access to information on cases involving military personnel44 .

44

International Commission of Jurists, “Colombia – Attacks on Justice, 2002,” August 27, 2002.

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There have also been instances where security members have forewarned paramilitary members of plans to carry out arrests 45 .

Inability to protect human rights prosecutors The Fiscalia and the Procuraduria lack the ability to protect their human rights prosecutors.

El Tiempo, Colombia’s leading newspaper, has reported that between January 2000 and November 2002, 196 members of the Attorney General’s office received serious threats 46 .

The security problem is exacerbated by the Attorney General’s public critique of the way in which investigators handle cases and his insinuation that human rights prosecutors are colluding with guerillas 47 .

Backlog Despite the fact that the Human Rights Unit was created to only handle human rights cases, it must often investigate non-related cases 48 . This has lead to excessive workloads, which affects the Unit’s efficiency when dealing with human rights cases 49 .

Limited resources The Human Rights Units does not have sufficient resources to investigate human rights violations. The HRU relies on external funding from USAID to fund its operations. Since 2002, USAID has provided the HRU with $26.5 million dollars.

These funds are not

sufficient to adequately support 160 prosecutors, investigators, and technicians, as well as 11 satellite offices outside of Bogotá.

Human rights investigators depend on superiors for case approval According to interviews done by Human Rights Watch, prosecutors are often told to consult with the Attorney General before proceeding with cases against military officials 50 . In 45

Ibid.

Human Rights Watch, “A Wrong Turn: The Record of the Colombian Attorney General’s Office,” November 2002.

47 Ibid.

48 Ibid.

49 Ibid.

50 Human Rights Watch, “A Wrong Turn: The Record of the Colombian Attorney General’s Office,” November 2002.

46

21

addition, the routine change of personnel, as administrations change, reduces the impartiality of prosecutors. Those who lack security of tenure fear dismissal and find it difficult to act independently from their superiors 51 .

Judicial System In order to stimulate and encourage the prosecution of human rights abuses, a strong judiciary must be in place to process cases (See Appendix 9). In Colombia, human rights cases can be tried in both the military and civilian judicial systems, depending on the legal definition of the crime. If the crime is constitutionally defined as an “act related to service,” then the individual must be tried in a military court. Unfortunately, certain human rights abuses like torture, forced disappearance, genocide, extrajudicial executions, rape, sexual abuse, and unlawful searches, are militarily defined as acts related to service. This is true in spite of the fact that a presidential directive was issued in 2000, which “raised to the category of law a 1997 Constitutional Court ruling that defines all serious violations of human rights as being unrelated to military service 52 .”

This directive can be interpreted as an attempt to eliminate the judicial impunity of human rights violators. Nonetheless, this exception continues to undermine Colombia’s dual judiciary.

Military Judiciary A part of the Ministry of Defense, the Military Justice System functions under the auspices of the executive branch53 . The military judiciary is designed to investigate, prosecute, and try active duty military and police personnel for crimes “related to acts of military service 54 .” Once a case enters the military judicial system, cases must be completed in a timely manner. An investigation

51

International Commission of Jurists, “Colombia – Attacks on Justice, 2002,” August 27, 2002.

State Department Country Report on Human Rights Practices, 2002.

53 Ibid.

54 Ibid.

52

22

must be completed within 180 days if there are more than two suspects, otherwise it should take 60 days or less. At this point the case must be brought to trial within two months 55 .

Civilian Judiciary The civilian judiciary is composed of four jurisdictional branches, the civil, administrative, constitutional, and special56 . While the smallest towns have a single “all-purpose” judge, most lower and municipal courts will have a judge, court clerk, and some administrative personnel57 .

Similar to the military judicial system, the civilian courts have an established timeframe to investigate and prosecute cases. Preliminary investigations cannot exceed 180 working days and if evidence is found then the case can move into the “formal investigation stage 58 .” At this point, prosecutors have 360 working days to file formal charges 59 . Once formal charges are filed, the government has 35 working days to bring the case to trial60 .

Judicial Limitations Ideally, the military and civil judicial systems are meant to work together effectively to deter security members from committing abuses. But, there are various obstacles that impede them from working together, and promote a culture of impunity. These are: Ø Backlogs

55

Ibid.

State Department Country Report on Human Rights Practices, 2002.

57 Ibid 58 Ibid.

59 Ibid 60 Ibid 56

23

Ø Human rights cases being tried in military courts in defiance of constitutional rule

Ø Limited resources

Backlogs Backlogs occur due to the fact that an understaffed judiciary is not only responsible for all the human rights cases and criminal offences of the armed actors, but also issues rulings related to the internal armed conflict and the country’s organized crime problem61 . The enormity of the problem reached a peak in 1999 there were 3,069,000 in backlog62 . As of October 2003, the civilian judiciary--including the criminal justice system--suffered from a backlog of at least 102,000 cases63 . According to the Supreme Council of the Judiciary, “every year a judge should decide 3,000 cases, but, currently, judges are only able to adjudicate some 600 cases 64 .”

Defiance of constitutional rule requiring that human rights cases be tried in civilian courts The Constitutional Court has ruled that “judging a military officer allegedly responsible for humanitarian law and human rights violations within the military judiciary [amounts] to a grossly illegal proceeding65 .” Nonetheless, the “military judiciary has generally refused to transfer cases of human rights violations involving high-ranking officers to civilian jurisdiction66 .” In order to seize jurisdiction over serious human rights violations, the military courts have continued to rely on the idea of a service-related act, and in some cases they have begun to assign different legal names to the unlawful acts in question67 .

Limited Resources While limited resources can be attributed to the general economic state of the country, some responsibility must be placed on the government. It is the responsibility of the Colombian state to ensure that it has well functioning institutions, or be actively taking steps to achieve this.

61

Ibid International Commission of Jurists, “Colombia – Attacks on Justice, 2002,” August 27, 2002.

63 U.S. State Department Country Report on Human Rights Practices – Colombia, 2003.

64 International Commission of Jurists, “Colombia – Attacks on Justice, 2002,” August 27, 2002.

65 Ibid.

66 Ibid.

62

24

Addressing Impunity The structural limitations of Colombia’s investigative and judicial agencies are difficult to address externally. Human rights conditionalities on U.S. assistance have tried to address Colombia’s weaknesses by leveraging aid in order to force compliance. But in order to leverage aid, the threat that aid will be cut off must be credible. Therefore, stringent enforcement is essential to ensuring compliance with human rights conditionalities. Unfortunately, the agency designed to enforce these conditionalities, the U.S. Department of State, is also plagued with problems.

U.S. Department of State The U.S. government has attempted to reconcile Colombia’s strategic importance and dismal human rights record by instituting mechanisms designed to promote the protection of human rights. Human rights have been addressed through two variants of human rights conditionality, the Leahy Law and the Country Specific Conditions for Colombia. However, these mechanisms have been undermined by a number of factors. An analysis of the U.S. Department of State’s implementation of each human rights mechanism reveals how the U.S.’ national security concerns have allowed national security objectives to supercede human rights concerns. The U.S. has consistently prioritized its desire to fund Colombia’s war on drugs and terrorism over its desire to ensure that human rights are being respected. The U.S. has an incentive to maintain aid to Colombia, even in light of known human rights violations, because of its desire to pursue certain national security objectives. Most notably, the State Department has been unwilling to enforce the law in instances where U.S. objectives might be harmed. Consequently, violations by key brigades in the Colombian Armed Forces have been overlooked. In addition, these mechanisms have been further diminished by various institutional and organizational constraints.

Leahy Law 67

Ibid.

25

The Leahy Law states that no military funds made available under the Foreign Appropriations Act can be provided to any unit of the security forces of a foreign country if the Secretary of State has credible evidence that such unit has committed a gross violation of human rights 68 .

Funds can only be disbursed if the Secretary of State makes the determination that the government of the foreign country is taking effective measures to bring the responsible members of the security force unit to justice. In order to enforce the Leahy Law, the U.S. Department of State must objectively screen foreign military units scheduled to receive U.S. training and assistance. It must also cut off aid in instances where credible evidence demonstrates a unit has committed a gross violation of human rights.

Implementation of the Leahy Law in Colombia Colombia is in many ways a unique case when it comes to implementation of the Leahy Law. Due to the fact that human rights violations are of great concern in Colombia, the U.S. Embassy in Bogotá has instituted a more formal processes compared to other posts. In order to ensure that U.S. military assistance and training to Colombia is not directed towards security forces that have violated human rights, the U.S. Embassy in Bogotá has instituted a multi-stage human rights vetting process. The vetting procedure is employed for both the Foreign Appropriations and Defense Appropriations versions of the Leahy Law.. However, this vetting process does not guarantee that aid will not be given to members of the Colombian security forces who have violated human rights.

The effectiveness of the vetting process is constrained by a number of factors.

The most

prominent factor is the unwillingness of embassy and State Department officials to comply with the mechanism when national security objectives are impacted. Embassy officials have admitted that the Leahy Law is applied in a subjective manner 69 . According to an official at the U.S. Embassy in Bogotá, the vetting process primarily denies aid and assistance to low-level officials.

There have been very few instances where aid has been denied to high-ranking officials or to brigades within the Colombian Armed Forces.

68

69

S.1426 Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2004.

Human Rights Watch World Report 2002: Colombia.” <www.hrw.org/wr2k2/americas4.html>.

26

Although the Leahy Law went into effect in 1997, the first case of aid suspension on human rights grounds did not occur until 2002. Aid was suspended to the First Air Combat Command as a result of their involvement in the Santo Domingo Massacre. The Santo Domingo Massacre occurred on December 13, 1998. During a clash between the Colombian Air Force and the FARC, a rocket launched from a military helicopter killed eight civilians. Although the military tried to cover up the incident, government investigators in the Colombian inspector general’s office determined that rockets launched from a helicopter assigned to the First Air Combat Command were responsible for the deaths 70 . Government investigators “concluded that the pilots should have known that they were attacking civilians, not guerillas”

71

In spite of the evidence that the First Air Combat Command was implicated in the massacres, the U.S. Government did not suspend their aid until 2002, four years after the massacre took place.

The suspension of aid was prompted by a massive public awareness campaign led by human rights NGOS. Consequently, “the U.S. [suspended] delivery of [a percentage] of the $2 million in fuel that it annually sends to the Colombian air force to combat drug trafficking. The U.S. also [stopped] training pilots from the air force command unit 72 .”

In addition to the U.S.’ national security interests, effective implementation of the Leahy Law is also hampered by a number of organizational and institutional problems, including: (1) the vagueness of the guidance issued to posts/ embassies by the State Department; (2) information and resource constraints; and (3) Colombia’s security situation.

Vagueness of the guidance issued to posts/ embassies by the State Department The text of the Leahy Law does not specify the specific processes and procedures, which should be undertaken by the U.S. Department of State. Instead, it gives the State Department discretion in establishing an oversight and monitoring process. The State Department provides its embassies and posts with general guidance on how to comply with the Leahy Law (See 70

“Colombia: Aid Suspension Decision Welcomed.” Human Rights Watch 21 November 2002 <http://www.hrw.org/press/2002/11/colombia112102.htm>.

71 Miller, T. Christian. “Cut off of aid a sign to Bogotá.” LA Times. 14 January 2003.

72 Ibid.

27

Appendix 6). Although all embassies receive identical guidance from the State Department in Washington, implementation and oversight of the guidance can differ among embassies 73 . The vagueness of the guidance allows each embassy to develop policies and institute procedures to implement the Leahy Law based on their understanding of what is required, U.S. goals, and the enforcement constraints each embassy faces74 . This flexibility allows the State Department to modify its policies according to changing national security objectives and can thus limit the demands that the State Department places on nations, such as Colombia, which it considers to be a strategic allies.

Information and resource constraints Effective implementation of the Leahy Law is inhibited by informational and resource constraints faced by the U.S. Embassy in Bogotá. The Human Rights Division, a sub-section of the Political Section of the U.S. Embassy in Bogotá is entrusted with conducting and monitoring the vetting process 75 . Two individuals within the four-member Human Rights Division work full-time on the vetting process, supervised by the Deputy Director of the Political Section76 .

The limited personnel assigned to this process means that the vetting process cannot be as comprehensive as it needs to be to ensure that not aid is denied to units which have violated human rights. It is nearly impossible for these two officers to be aware of the totality of the human rights situation in Colombia and the actions takes by all of the units and individual who receive U.S. assistance and training. The sheer quantity of aid given to Colombia reflects this difficulty. In 2003, the Colombian Armed Forces received $605 million dollars in aid and assistance. Comprehensive vetting would require these two officers to ensure that none of this money is given to individuals with poor human rights records.

Human Rights officers in the U.S. Embassy in Bogotá are also constrained by their reliance on external sources, like the Government of Colombia, NGOs and the media, for the information necessary to conduct the vetting process. The Human Rights officers in the Embassy in Bogotá

73

“Military Training: Management and Oversight of Joint Combined Exchange Training.”

GAO/NSIAD 99-173. July 1999.

74 Ibid.

75 Interview: Kiersten Stiansen, Human Rights Officer, U.S. Embassy Bogotá. 4 February 2004.

76 .Ibid.

28

must navigate through the information provided by the various sources and come to a determination concerning what is and is not credible evidence of a violation of human rights.

This analysis is quite complicated because these sources have different institutional biases and often provide conflicting views of a particular situation or incident. For example, the Colombian government solely bases its data on information reported to government authorities. This tends to lead to an underreporting of human rights violations 77 .

In contrast, Colombia’s most

prominent NGOs rely primarily on citizen complaints and press reports that satisfy the particular NGO’s standard of credibility, which results in the over reporting of violations 78 .

Colombia’s security situation The security situation in Colombia makes it almost impossible for embassy officials to conduct on-site investigations. The majority of massacres and violations of human rights occur in the countryside where paramilitary and guerilla forces are engaged in ongoing conflict. Traveling to such regions would place the lives of embassy officials in jeopardy. On the rare occasions when embassy staff are able to visit sites where massacres have occurred, the security situation requires that they be accompanied by members of the Colombian Armed Forces79 . The presence of military escorts presents an impediment to the ability of the officials to interview local residents and observers.

Locals are typically unwilling to converse openly with embassy

officials in the presence of the Armed Forces. Their silence is the result of fear about militaryparamilitary linkages and concern that their openness might trigger harmful repercussions.

77 78

“A Closer Look at Human Rights Statistics.” U.S. Department of State Embassy in Bogotá. 10 October 2003.

“A Closer Look at Human Rights Statistics.” U.S. Department of State Embassy in Bogotá. 10 October 2003.

29

Country Specific Conditions

“Although the Secretary has determined that the efforts of the Government of Colombia and the Colombian Armed Forces’ justify certification at this time, the U.S. and Colombian governments recognize that the Colombian Government and Armed Forces need to do more to protect human rights and to sever military-paramilitary ties.”

State Department Memorandum of Justification on Human Rights Conditions, July 8, 2003 “The U.S. certification suggests that the Bush Administration sees the defense of human rights as a matter of paperwork, not concrete action. It also demonstrates how readily the administration sacrifices human rights concerns to other interest.”

Jose Miguel Vivanco, Executive Director of Human Rights Watch’s America’s Division 80

In 2000, the U.S. Congress included Country Specific Conditions for Colombia in the Foreign Appropriations Act to encourage the Colombian government to take additional efforts to improve the nation’s human rights situation. The CSCs conditioned U.S. military aid and assistance to Colombia on the nation’s ongoing efforts to systematically improve its human rights situation.

The conditions state that the Government of Colombia cannot receive funds until it has demonstrated that it is working to suspend, investigate and prosecute members of the Armed Forces that have committed human rights abuses. The CSCs also require the Armed Forces to sever their links to and dismantle paramilitary groups.

Congress entrusted the U.S. Department of State with the responsibility of ensuring that Colombia complies with the CSCs. Prior to the delivery of aid, the Secretary of State must 79 80

Interview: Kiersten Stiansen, Human Rights Officer, U.S. Embassy Bogotá. 4 February 2004.

“Colombia: Flawed Certification Squanders U.S. Leverage.” 23 January 2004.

30

certify that the Government and Armed Forces of Colombia have met these conditions. The Secretary of State issues a certification twice a year, indicating whether he believes that Colombia has complied with the CSCs.

The Secretary makes his determination based on

evidence provided by the Government of Colombia, non-governmental human rights organizations, and Embassy in Bogotá (See Appendix 8)81 .

Unfortunately, U.S. national security objectives in Colombia have constrained the Country Specific Conditions from being enforced to their maximum extent. The U.S. Government has demonstrated that even when presented with compelling evidence of human rights violations perpetrated by the Armed Forces it will still certify Colombia. The Bush Administration has never let the existence of CSCs prevent it from giving military aid to Colombia. The Bush Administration and the Republican majority in Congress have consistently demonstrated that U.S. national security objectives supercede human rights concerns. On one occasion in 2002, the United States temporarily suspended funds to Colombia in an attempt to reinforce the message that it expected the Colombia Government to make significant improvements to the human rights situation82 . However, the suspension only lasted a few weeks due to the U.S.’ greater desire to pursue the objectives of funding Colombia’s War on Drugs. U.S. national security objectives have consistently undermined enforcement of the CSCs.

The certification process that occurs in accordance with the Country Specific Conditions itself indicates a desire to give preference to national security objectives. The certification process suffers from a number of flaws: •

It is backward looking

•

It is biased towards approval

•

It undervalues NGO concerns

The certification process is backward looking

<http://www.hrw.org/english/docs/2004/01/03/colomb6990.htm>.

81 Ibid.

82 Human Rights Watch World Report 2003: Colombia <http://www.hrw.org wr2k3/americas4.html >.

31

The CSC certification is a backward looking process. Funds are granted based on the actions that Colombia has taken over the previous six-month period. Thus certification fails to place significant pressure on promoting forward-looking, preventative action. In order to enforce the legislation, the State Department must only demonstrate that the Colombian government has taken steps to address or improve the human rights situation. As a result, the totality of the human rights situation in Colombia is never addressed. Ideally, the Colombian government should be required to provide comprehensive information on each condition and how it has been complied with. This information should be collected and tracked on a yearly basis in order to objectively evaluate the progress that the Government of Colombia is making.

Certification is biased towards approval The U.S. Embassy in Bogotá relies on the Colombian government to provide evidence of its own compliance with the CSC conditions. In order to identify examples that demonstrate that the Colombian Government and Armed Forces have taken steps to comply with the mandated conditions, embassy officials in Bogotá mainly communicate with various elements of the Government of Colombia, including the civilian court system and the Defense Ministry’s Human Rights Unit. Consequently, the certification process is biased towards approval. Ideally, this process should be much more balanced, giving equal weight to the analysis of non-governmental agencies and the Colombian Government.

NGO concerns are under-valued While the certification process requires that State Department officials meet with representatives of internationally recognized human rights organizations, the information provided by these organizations is rarely considered in the final decision. These groups provide State Department officials with documented evidence of human rights violations perpetrated by the Colombian Armed Forces, yet the certification of Colombia still occurs. Greater emphasis should be placed on NGO and UNHCHR information in order to generate a more independent evaluation of Colombian Government performance.

In order for the conditionalities to have an impact on Colombia’s human rights problem, pressure must come from the U.S. government. Given that the State Department has been unable to

32

provide this pressure, it is important to look towards other methods of raising awareness on Colombiaâ&#x20AC;&#x2122;s human rights problem and thereby increase the pressure to comply with human rights conditionalities.

Strengthening Human Rights Conditions on U.S. Assistance U.S. national security concerns, weak enforcement practices, and institutional organization have severely limited the effectiveness of the Leahy Law and CSCs at preventing massacres from occurring. In addition, neither mechanism places sufficient pressure on the Colombian Government and Armed Forces to alter or improve their human rights practices. Unfortunately, there is no a quick fix for these problems. Our research has indicated two potential means by which the legislation could be strengthened: (1) changing the language of the legislation and/or (2) increasing the transparency of U.S. military training practices. Unfortunately, neither option is politically feasible at this time.

Change the language of the law The problems in enforcement and compliance of the Leahy and CSC imply that it is necessary to alter the legislation to make the repercussions of noncompliance more explicit. However, our research has indicated that as a result of the current political climate and the Republican majority in Congress, any attempt to alter the language of the legislation at this time would be adverse.

Attempts at changing the legislation would give the opponents of human rights conditionalities an opportunity to further weaken or in the worst-case scenario weaken the existing legislation.

Increase the transparency of U.S. military training practices Another alternative that can be used to strengthen the Leahy Law and CSCs is to increase the transparency of U.S. military training practices and arms transfers in Colombia by declassifying

33

important documents such as the Foreign Military Training Report (FMTR) and End Use Monitoring (EUM) Reports.

Foreign Military Training Report (FMTR) Congress began to require a FMTR in 1998.

It was added as a permanent annual

requirement to the 1999 Foreign Operations Appropriations Act 83 . This measure was designed to increase the transparency of U.S. military practices abroad. The FMTR includes “the purpose and operational benefits to the U.S. of each training program, the location of the training, the number of personnel being trained and the cost of the training activities 84 .”

The FMTR is an important mechanism, which gives Congress the ability to ensure that the U.S.’ foreign military training programs in Colombia comply with the Leahy Law and CSCs. Unfortunately, over the years the report has become increasingly classified. This has led to an overall decline in the transparency of U.S. military training activities. Declassifying the FMTR would allow third party actors, such as human rights organizations, the ability to oversee U.S. training operations and ensure that Colombian security personnel that have violated human rights are not trained. Unfortunately, this is not a viable option at this time, as it is subject to the current political environment that has proven to classify more documents in its fight against terrorism.

EUM End use monitoring programs (EUM) allows the U.S. to supervise and “prevent [the] misuse or illicit transfer of items or services 85 .” The EUM reports provide Congress a 83

“Training: Findings and Recommendations.” Just the Facts. 2 September 2003. <http://www.ciponline.org/facts/traifind.htm>.

84 Garcia, Victoria. “U.S. Foreign Military Training: A Shift in Focus” CDI Terrorist Project. 8 April 2002. <http://www.cdi.org/terrorism/militraining-pr.cfm>.

85 Chapter 8: End Use Monitoring. Department of Defense 5105.38-M, 3 October 3 2003. <http://www.dsca.mil/samm/Chapter%208%20End-use%20Monitoring%20(EUM).pdf>.

34

means to oversee that weapons and equipment are not being used by the Colombian Armed Forces toward unintended purposes such as committing human rights violations.

Unfortunately, similar to the FMTR, End Use Monitoring reports have become more classified over the years. In addition, the EUM often relies upon the host country records to determine whether conditions are being properly complied with86 .

The current

political climate will make any attempt to declassify EUM reports impossible.

Unfortunately, the alternatives discussed above cannot be feasibly implemented at this time.

However, it is important to note that even if these alternatives were implemented, it is not clear how much impact they would have on massacre prevention. Although language changes and declassification of the EUM and FMTR could strengthen the Leahy Law and the CSC, these modifications would still fail to address core problems of enforcement and compliance, which limit the effectiveness of each conditionality. The fact that these conditionalities neither include a component of preventative action, nor do they place sufficient pressure on the Colombian government limits their ability to prevent massacres. The FMTR and EUM, like Leahy and CSC, are backwards looking and do not place pressure on the Colombian government. We believe that Senator Leahy should devote his personal resources to avenues, which can increase the pressure placed on the Colombian Government and Armed Forces to prevent massacres and promote human rights.

86

Stohl, Rachel. â&#x20AC;&#x153;End-Use Monitoring Program in Shamblesâ&#x20AC;? Center for Defense Information: Arms Trade. Sept. 8, 2000. <http://www.cdi.org/friendlyversion/printversion.cfm?documentID=495>.

35

The Early Warning System

“The people of Bellavista buried their dead on Sunday and Monday, wrapping them in plastic bags and putting them in two large holes, and waited for the military to arrive…Despite warnings that a battle was imminent, the Colombian military did not arrive in the area until Tuesday. …What awaited them was a scene of devastation, starting at the church. Packets of diapers, a child's purple sandal, mattresses and sheets lay in a welter of overturned pews, pots, pans and burned newspapers near the church’ ruined altar. Dried blood stained the nave, covered by sunlight streaming through the ruined roof87 .”

(Bellavista Massacre, 2002)

We believe that Senator Leahy’s best option for reducing the incidence of massacres in Colombia is to devote his personal resources to increased publicity of the Colombian Early Warning System.

Research indicates that early warning systems can serve as an effective

mechanism for deterring human rights abuses. Colombia’s EWS was created in June 2001 by the U.S. Agency for International Development (USAID) and the National Ombudsman Office to mitigate the impact of violence on the Colombian people.

The system encourages

preventative action on the part of the Colombian Government to prevent massacres and save lives 88 . The EWS was originally run and managed exclusively by the National Ombudsman’s Office. In November 2002, the “Inter-Institutional Committee for Early Warning” [CIAT] was created to evaluate and issue recommendations based on the risk assessments provided by the National Ombudsman’s Office 89 .

The CIAT includes representatives from the Ministry of

Interior and Justice, the Vice President’s Office, the National Police, and the Army90 . The EWS is currently operated through the coordination of the National Ombudsman Office and CIAT. 87

Wilson, Scott. “No Sanctuary From Colombian War; Army Was Absent During Massacre at Village Church.”

The Washington Post 9 May 2001.

88 “Briefer on the Early Warning System (EWS) supported under the “Prevention” component of AID’s Human Rights Program.” USAID. 89 Ibid.

90 Ibid.

36

Although the EWS allows the Colombian Government to anticipate and prevent massacres, numerous avertable massacres occur in the Colombian countryside each year. In May 2002 in the town of Bellavista in the Department of Choco, 119 people were killed, 95 were wounded, and approximately 40 were declared missing as a result of local conflict between Colombia’s guerilla rebels and paramilitary groups. Reports indicate that the Bellavista massacre could have been prevented (or at least minimized). The government allowed the conflict to continue for more than a week before it decided to intervene. In addition, despite the fact that paramilitary and guerilla forces amassed an estimate 1,400 troops outside the town, the Colombian Armed Forces made no efforts to intervene 91 . Massacres such as the one in Bellavista are a reoccurring aspect of life in the conflict-ridden Colombian countryside. What makes these deaths even more tragic is that the Early Warning System is designed to prevent such murders from occurring.

Steps in the Current EWS/CIAT Process An early warning system is typically designed to perform four primary functions: collect information; analyze information; formulate response recommendations; and communicate with decision makers92 . The EWS is triggered when local groups or individual notice signs of an impending massacre. Colombian NGOs and local Colombian authorities have identified certain signs that can indicate that a massacre is going to happen. For example, military checkpoints blocking the entrance and exit of civilians into a town, is a common sign of an oncoming paramilitary massacre. Other indicators of impending violence include: “the arrival of unknown armed men, graffiti, intimidation of individuals and increased crime 93 .”

In response to these

signs a multi-step investigation and response process begins (See Appendix 10).

91

Wilson, Scott. “No Sanctuary From Colombian War; Army Was Absent During Massacre at Village Church.”

The Washington Post 9 May 2001.

92 Schmeidl, Susanne and Eugenia Piza Lopez. “Gender Conflict and Early Warning: A Framework for Action.”

June 2002. <http://www.international-alert.org/women/Ewgender.pdf>.

93 Franco, Adolfo A. Hearing of the Senate Foreign Relations Committee “Challenges for U.S. Policy Toward Colombia” 29 October 2003.

37

Step 1: A citizen or local group notifies the Regional Ombudsman’s office by calling the emergency hotline, writing a letter or email, or going to the office in person94 .

Step 2: Upon receipt of notification, the Regional Ombudsman surveys the scene of the potential conflict and assesses whether there is a credible risk 95 .

Step 3: The Regional Ombudsman’s Office produces a report detailing the risk based on key institutional criteria and sends it to the National Ombudsman’s office 96 .

Step 4: The complaint is re-evaluated at the national level and when credible evidence is found, passed to the CIAT97 .

Step 5: The CIAT cross-references the EWS risk assessment with its own intelligence information98 .

Step 6: The CIAT issues a response to the local authorities requesting they take some type of action. The CIAT has three levels of response to EWS risk assessments:

Ø

§

Recommend an alert

§

Recommend continued monitoring of the situation

§

Recommend no alert 99

If an alert or further monitoring is recommended, “in most cases the local governor will convene a security-council meeting to examine the recommendation and take appropriate action100 .”

94

Ibid.

“Briefer on the Early Warning System (EWS) supported under the “Prevention” component of AID’s Human Rights Program.” US AID. 96 Defensoria del Pueblo Informational Brochure 97 Franco, Adolfo A. Hearing of the Senate Foreign Relations Committee “Challenges for U.S. Policy Toward Colombia” 29 October 2003.

98 “Briefer on the Early Warning System (EWS) supported under the “Prevention” component of AID’s Human Rights Program.” US AID. 99 Ibid 100 Ibid 95

38

The numerous steps involved clearly demonstrate that the EWS is a slow bureaucratic process.

According to USAID, although the CIAT is supposed to respond to an alert within 24 hours, actual responses have taken up to 42 days 101 . According to the Colombian government, only 38% of all EWS alerts issued have been responded to 102 . Although these statistics indicate that the system is ineffective, we believe that the EWS system has the potential of reducing the incidence of massacres in Colombia.

Placing Pressure on the Colombian Government "What is clear is that the government and [the military] knew about the evidence of a possible massacre and did nothing," said a municipal official in Ovejas, who like many interviewed in the aftermath of the slaughter requested anonymity for fear of reprisal. "The military seemed to clear out of the zone."

(Chengue Massacre, 2001)

We believe that increased U.S. focus on the Government of Colombia’s inadequate response to EWS alerts has the capacity to dramatically impact the human rights situation in Colombia.

Increased visibility of EWS alerts and responses will make it impossible for the Colombian Government to conceal the fact that they are allowing massacres to occur unimpeded. The Colombian Government currently directs limited attention to responding to EWS alerts because it is not pressured to do so. The EWS currently lacks a component designed to address the Colombian Government’s response to alerts.

A public awareness campaign designed around the EWS can generate pressure to stimulate a change in the behavior of the Colombian Government. Raising public awareness about the EWS can act, as a means to apply pressure on the Colombian Government to address the nation’s human right situation is ways that Leahy/CSC have thus far been unable to do. In addition, the EWS faces the additional benefit of not being a hindrance to U.S. efforts in the “War on Drugs.”

The Early Warning System, unlike the Leahy Law and CSC, is not conditioned on U.S. military

101

Ibid Annual report on human rights and international humanitarian law 2003 <http://www.derechoshumanos.gov.co/modules.php?Name=informacion&file=article&sid=165>.

102

39

funds. Therefore, it is unhampered by the U.S.’ desire to finance the Colombian Armed Forces and their role in the war on drugs and war on terror.

An Action Plan for Senator Leahy

We recommend that Senator Leahy use his personal power and resources to pressure the Colombian Government to respond to EWS alerts and prevent massacres form occurring. By regularly bringing to the attention of Congress preventable massacres such as the one perpetrated in Bellavista, it will become impossible for Colombia to maintain the pretense that it is addressing the human rights situation to the best of its ability.

A public campaign that focuses on the EWS will serve a number of key objectives: •

Demonstrate to the Colombian Government the U.S.’ commitment to implementing the system effectively

•

Hold the Colombian government accountable for failures in the system

•

Increase the transparency of the Colombian Government and Armed Forces’ responses to alerts

•

Raise awareness about the EWS and human rights among members of Congress and the public-at-large

Senator Leahy (and his allies) can make it very difficult for the Colombian Government to ignore EWS alerts by taking the following steps: •

Discuss EWS alerts, responses and preventable massacres on the Senate and House floors Senator Leahy (and his allies) can generate publicity and create pressure on the Colombian government by discussing EWS alerts, responses and preventable massacres on the Senate and House floors. Senator Leahy should address the Senate floor with a provocative speech when he learns about credible warnings of a massacre and anticipates that the Colombian government will not intervene to prevent the

40

massacre. The key to altering Colombia’s behavior is to consistently highlight their actions and their unwillingness to intervene. The Senate floor is a powerful podium from which to call attention to Colombia’s inaction.

If the massacre takes place

despite Senator Leahy’s speech, he should return to the floor and report this. If the government acts to prevent a massacre, he should praise this behavior.

The Senator should complement his speeches with a bi-annual briefing. Twice a year, the Senator should give a speech summarizing and highlighting the Colombian government’s progress. This should be a highly publicized media event •

Coordinate with the media to publicize EWS alerts and massacres The press can play an important role in helping Leahy broaden the audience for his EWS campaign. Senator Leahy’s press secretary should work closely with major media outlets to publicize Leahy’s public statements on the EWS and the Colombian government’s failures to prevent massacres. Senator Leahy’s press secretary can also provide the media with video clips, pictures and press releases received from or prepared by NGOs. Key reporters who already follow the human rights situation in Colombia include:

•

•

Scott Wilson at the Washington Post,

•

Juan Forero at the New York Times

Coordinate with the U.S. Embassy in Bogotá to pressure the Government of Colombia to respond to EWS alerts and prevent massacres The Senator or a staff member should keep in close contact with embassy officials in Bogotá. As a courtesy, the U.S. Embassy should be contacted two to three days before Senator Leahy makes a Colombia-related statement on the Senate floor. The embassy should call the Colombian government to inform them of the upcoming speech. This will provide the Colombian government with an opportunity to take action.

•

Coordinate information sharing with NGOs

41

Colombian NGOs can provide Senator Leahy with information about EWS alerts and responses. They can also provide Senator Leahy with videos and pictures of massacres to utilize in his speeches and to provide to the press. Key NGOs to collaborate with include: •

Centro de Investigacion y Educacion Popular (CINEP)

•

Colombian Commission of Jurists (CCJ)

•

Consultoria para los Derechos Humanos y el Desplazamiento (CODHES)

International NGOS can provide talking points about the situation in Colombia, which are then distributed to members of Congress. INGOs also have the resources to engage in grassroots campaigns highlighting the Colombian government’s response to EWS alerts. Key NGOs to collaborate with include:

•

•

Amnesty International – Paul Paz y Mino

•

Human Rights Watch – Robin Kirk

•

Latin America Working Group – Lisa Haguaard

•

Washington Office on Latin America – John Walsh

•

Center for International Policy (CIP) – Adam Isaacson

Form visible partnerships with Senators and Congressmen who are sympathetic to human rights issues, demonstrating to Colombia the U.S.’ interest in massacre prevention Senator Leahy can leverage his power to raise awareness about the EWS by coordinating with sympathetic members of Congress. These legislators should be encouraged to make speeches regarding Colombia’s human rights situation and speak out against Colombia’s failure to respond to EWS alerts and prevent massacres.

Potential legislators to collaborate with include: •

Representative Conyers (D-MI)

•

Representative McGovern (D-MA)

•

Representative Schakowsky (D-IL)

•

Representative Skelton (D-MO)

•

Representative Farr (D-CA) 42

Congressional awareness/support can also be raised by planning congressional delegations to Colombia so that the EWS response system can be observed.

Additionally, the Congressional Human Rights Caucus should be utilized as a forum for discussing the EWS and the human rights situation in Colombia.

Potential Costs

In conclusion, we believe that increased publicity can serve as a mechanism to place pressure on the Colombian government to respond to EWS alerts and reduce the incidence of massacres in Colombia. According to our research, this recommendation will have minimal costs for Senator Leahy. Potential costs include: •

Personal time

•

Staff time

•

Political costs

We believe that Senator Leahy and his staff will only have to devote minimal additional time to this campaign. The Senator and his staff will be able to rely on an existing NGO network for information about massacres and EWS alerts. In addition, the Senator’s key foreign policy aide already closely follows human rights issues in Colombia, as such; this new focus will not substantially deviate from his current responsibilities.

We anticipate that Senator Leahy will have to devote approximately four to five hours per month to this campaign. This time will be allocated to: speaking about this issue on the Senate floor, giving interviews and briefings to the press, and contacting the U.S. Embassy in Bogotá.

Senator Leahy must decide for himself if there are any political risks involved in engaging in this campaign. Our research indicates that there is general support within Congress regarding the EWS system. However, taking on this campaign could potentially leave the Senator open to criticism from Republicans who may argue that he overvalues human rights concerns in Colombia and undervalues U.S. national security interests.

43

Desirable Long Term Action A public awareness campaign is only the first step in preventing massacres in Colombia. In the long term, Senator Leahy should try to (1) push for a reorganization of the existing EWS structure that will address its weaknesses and (2) incorporate an EWS-related condition into the Country Specific Conditions.

Addressing the Weaknesses in the Current EWS Structure Although the EWS is a valuable tool for minimizing the effect of conflict on the civilian population, it suffers from some key weaknesses, which would ideally be addressed in order for the system to achieve its maximum potential. The Early Warning System currently utilized in Colombia suffers from a number of problems in the following categories: Ø Ombudsman /CIAT coordination Ø CIAT response to risk assessment Ø Assessment/ evaluation Ø Budget/ resource needs Ø Public awareness

Ombudsman /CIAT coordination Poor coordination between the National Ombudsman and CIAT has limited effective utilization of the Early Warning System.

Under the current process, recommendations made by the

National Ombudsman must be approved by the CIAT; this creates an unnecessary level of bureaucracy in the decision-making process and elongates the time that passes before an alert is responded to.

Solution: The CIAT should be dissolved. A military attaché in the National Office can take responsibility for ensuring that an appropriate armed response is identified.

CIAT response to risk assessment

44

The CIAT must evaluate the risk assessment prepared by the National Ombudsman’s Office and coordinate the actions that must be taken in response to a particular alert. However, the CIAT has often failed to respond in a timely manner. Originally, the CIAT had agreed to respond to EWS risk assessments within 24 hours. Unfortunately, actual responses have taken up to 42 days to occur 103 . In many cases, the CIAT has failed to generate any response 104 .

Solution: The Office of the Ombudsman should have sole responsibility for receiving, analyzing and responding to risks. The Ombudsman must implement and observe clear criteria for how and when a risk must be responded to.

This will increase the

accountability of the system overall.

Assessment / Evaluation There is an inadequate follow-up procedure to alerts once they have been issued 105 . The Early Warning System currently in place does not have clear evaluative mechanism in place.

Solution: All documentation corresponding to alerts should be compiled and inputted into a comprehensive database for continuous internal monitoring.

This information

should be utilized as a self-evaluation tool.

Quarterly meetings should be held between the regional and national offices to discuss the performance of the system. Analysts should also hold bi-monthly meetings with local actors in order to institutionalize a process of discussion regarding the general situation in the locality. The Regional Office of the Ombudsman should use the bi-monthly reports in their general risk assessment process.

Yearly evaluations should be held that utilize existing conflict/peace-related activities and actors in Colombia. Relevant actors include: the Organization of American States; the 103

“Briefer on the Early Warning System (EWS) supported under the “Prevention” component of AID’s Human Rights Program.” US AID. 104 “Report of the United Nations High Commissioner for Human Rights on the human rights situation in Colombia” 17 February 2004.

105 “Report of the United Nations High Commissioner for Human Rights on the human rights situation in Colombia” 17 February 2004.

45

Inter-American Commission on Human Rights; UNHCHR Office in Colombia; Amnesty International; Catholic Relief Services; USAID; Vice-President of Colombia; Ministry of Interior and Justice, Colombia and the U.S. Embassy in Bogotá.

Budget / resource needs National Ombudsman: The Ombudsman’s Office lacks sufficient funds to make it possible to establish an effective presence in all of Colombia’s municipalities. Insufficient funds limit the ability to properly respond to human rights alerts. The Ombudsman’s office is very dependent on international funding in order to complete its desired objectives 106 .

Colombian Government and Armed Forces: The Colombian government does not have the capacity to respond to all alerts. The Colombian Armed Forces are over-extended, and as a result fail to prioritize the importance of early warning responses.

Solution: The Colombian Government should endow the EWS with additional resources.

Consequently, it should create a brigade dedicated to EWS response. This action would demonstrate the government’s dedication to strengthening the EWS. Such a brigade could be created from a vetted group of soldiers and would be trained to deal with EWS alerts. Units of the brigade could be discharged to regions in Colombia that have suffered the greatest levels of conflict. When necessary, the brigade could work in concert with locally deployed members of the Colombian Armed Forces.

Colombian public awareness The Colombia public needs to be made aware of the EWS program because the program depends on their participation to report signs of imminent conflict. Failure to raise public awareness among the Colombian people is detrimental to the effective utilization of the system.

Solution: Public participation can be fostered in a number of ways:

106

“Report of the United Nations High Commissioner for Human Rights on the human rights situation in Colombia” 17 February 2004.

46

•

Local associations including NGOs, churches and neighborhood associations should be asked to publicize the EWS and the hotline number.

•

The international NGO community can help to publicize the Early Warning System through newsletters, websites and electronic listservs.

•

Weekly new broadcasts (television, print, and radio) should highlight the Early Warning System and its ability to impact the human rights situation in Colombia. These broadcasts should emphasize the National Ombudsman’s Office EWS hotline number.

The severity of the problem that exists in the current Early Warning System clearly indicates that a reorganization of the system is necessary to fully maximize its usefulness. In the long-term, Senator Leahy should promote the restructuring of the EWS/CIAT system. The restructuring should focus on dissolving the CIAT and giving the Office of the Ombudsman sole responsibility for receiving, analyzing and recommending the responses to risks. Given that the EWS does not constrain U.S. national security objectives in the War on Drugs it is unlikely that there will be significant opposition in Congress with regards to such a restructuring. The Government of Colombia will present the greatest obstacle in trying to achieve this change.

Add the EWS to Country Specific Conditions Adding the EWS to the CSCs can serve as a way to exert further pressure on the Colombian government and can ensure that massacre prevention is considered a priority with regards to U.S. objectives in Colombia. The EWS would also add a forward-looking component to a system that is currently retrospective and perversely encourages minimum compliance.

Further research

should look into how one can effectively measure an appropriate response rate for the EWS, and how this could be integrated into the language of the legislation.

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Conclusion As the U.S. and Colombia have moved forward in their respective struggles against drugs and terror, the protection of human rights has taken a secondary role. While the U.S. has attempted to mitigate this problem by enacting the Leahy Law and Country Specific Conditions, it has often failed in its efforts. Conditioning U.S. military aid to Colombia on compliance with human rights legislation is not the key to overcoming the collision between the U.S.’ competing interests.

A system such as the USAID-sponsored Early Warning System can overcome the obstacle of competing interests because it is unhindered by the U.S.’ national security objectives in Colombia. The Early Warning System’s potential to save civilian lives can be maximized via a strategic public awareness campaign. The successful implementation of such a campaign will be dependent upon Senator Leahy’s efforts to coordinate with congressional allies who are sympathetic to human rights, as well as NGOs and the media, in order to raise awareness of the system and the deficiencies in it.

In the long term, Senator Leahy should pressure the Colombian government to make improvements to the Early Warning System. Dissolving the CIAT, establishing clear response criteria for the Ombudsman’s office, creating a comprehensive database to document alerts, instituting quarterly meetings between the Regional and National offices, creating an EWS brigade, and raising public awareness among the Colombian people will all help to further enhance the effectiveness of the EWS.

Although there is no panacea to the human rights situation in Colombia, hope is not lost. There are effective ways of strengthening current programs such as the EWS to achieve success in protecting human rights. A willingness to accomplish this is the first step.

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Appendix

1. The Leahy Law

pg. 50

2. Country Specific Conditions on Colombia

pg. 51

3. Figure 1: U.S. Aid to Colombian (1997-2003)

pg. 53

4. History of Colombia

pg. 54

5. Congressional Oversight

pg. 57

6. U.S. State Department Guidance for the Leahy Law

pg. 59

7. The Vetting Procedure

pg. 61

8. Country Specific Condition Certification Process

pg. 63

9. The Colombian Judicial System

pg. 65

10. Early Warning System Management Structure

pg. 71

11. Incidence of Massacres (1999-2003)

pg. 72

49

S.1426

Appendix 1:Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2004 â&#x20AC;&#x153;The Leahy Lawâ&#x20AC;?

LIMITATION ON ASSISTANCE TO SECURITY FORCES SEC. 653. None of the funds made available by this Act may be provided to any unit of the security forces of a foreign country if the Secretary of State has credible evidence that such unit has committed gross violations of human rights, unless the Secretary determines and reports to the Committees on Appropriations that the government of such country is taking effective measures to bring the responsible members of the security forces unit to justice: Provided, That nothing in this section shall be construed to withhold funds made available by this Act from any unit of the security forces of a foreign country not credibly alleged to be involved in gross violations of human rights: Provided further, That in the event that funds are withheld from any unit pursuant to this section, the Secretary of State shall promptly inform the foreign government of the basis for such action and shall, to the maximum extent practicable, assist the foreign government in taking effective measures to bring the responsible members of the security forces to justice.

Leahy Law in Defense Appropriations Act SEC. 8100-(a) PROHIBITION-None of the funds made available by this Act may be used to support any training program involving a unit of the security forces of a foreign country if the Secretary of Defense has received credible information from the Department of State that the unit has committed a gross violation of human right, unless all necessary steps have been taken. (b) MONITORING-The Secretary of Defense, in consultation with the Secretary of State, shall ensure that prior to a decision to conduct any training program referred to in subsection (a), full consideration is given to all credible information available to the Department of State relating to human rights violations by foreign security forces. (c) WAIVER-The Secretary of Defense, after consultation with the Secretary of State, may waive the prohibition in subsection (a) if he determines that such a waiver is required by extraordinary circumstances.

50

S.1426

Appendix 2: Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2004 â&#x20AC;&#x153;Country Specific Conditionsâ&#x20AC;?

COLOMBIA SEC. 664. (a) DETERMINATION AND CERTIFICATION REQUIREDNotwithstanding any other provision of law, funds appropriated by this Act that are available for assistance for the Colombian Armed Forces, may be made available as follows: (1) Up to 50 percent of such funds may be obligated prior to a determination and certification by the Secretary of State pursuant to paragraph (2).

(2) Up to 25 percent of such funds may be obligated only after the Secretary of State certifies and reports to the appropriate congressional committees that: (A) The Commander General of the Colombian Armed Forces is suspending from the Armed Forces those members, of whatever rank, who, according to the Minister of Defense or the Procuraduria General de la Nacion, have been credibly alleged to have committed gross violations of human rights, including extra-judicial killings, or to have aided or abetted paramilitary organizations.

(B) The Colombian Government is vigorously investigating and prosecuting those members of the Colombian Armed Forces, of whatever rank, who have been credibly alleged to have committed gross violations of human rights, including extra-judicial killings, or to have aided or abetted paramilitary organizations, and is promptly punishing those members of the Colombian Armed Forces found to have committed such violations of human rights or to have aided or abetted paramilitary organizations.

(C) The Colombian Armed Forces have made substantial progress in cooperating with civilian prosecutors and judicial authorities in such cases (including providing requested information, such as the identity of persons suspended from the Armed Forces and the nature and cause of the suspension, and access to witnesses, relevant military documents, and other requested information).

(D) The Colombian Armed Forces have made substantial progress in severing links (including denying access to military intelligence, vehicles,

51

and other equipment or supplies, and ceasing other forms of active or tacit cooperation) at the command, battalion, and brigade levels, with paramilitary organizations, especially in regions where these organizations have a significant presence.

(E) The Colombian Armed Forces are dismantling paramilitary leadership and financial networks by arresting commanders and financial backers, especially in regions where these networks have a significant presence.

(3) The balance of such funds may be obligated after July 31, 2004, if the Secretary of State certifies and reports to the appropriate congressional committees, after such date, that the Colombian Armed Forces are continuing to meet the conditions contained in paragraph (2) and are conducting vigorous operations to restore government authority and respect for human rights in areas under the effective control of paramilitary and guerrilla organizations. (b) CONSULTATIVE PROCESS- At least 10 days prior to making the certifications required by subsection (a), the Secretary of State shall consult with internationally recognized human rights organizations regarding progress in meeting the conditions contained in that subsection. (c) DEFINITIONS- In this section: (1) AIDED OR ABETTED- The term `aided or abetted' means to provide any support to paramilitary groups, including taking actions which allow, facilitate, or otherwise foster the activities of such groups.

(2) PARAMILITARY GROUPS- The term `paramilitary groups' means illegal self-defense groups and illegal security cooperatives.

52

Appendix 3: U.S. Aid to Colombia (1997-2003)

Source: Center for International Policy, “The ‘War on Drugs’ meets the ‘War on Terror,’” February 2003.

53

Appendix 4: History of Colombia107 Colombia’s current crisis is the result of more than fifty years of political instability, further exacerbated by drug production and trafficking. One of the nation’s primary internal obstacles results from the long lasting conflict, which has endured between the nation’s two political parties. The conflict between these two parties has altered and shaped the structural organization of the state. Colombia’s two primary political parties, the Conservatives and the Liberals, have been responsible for over seven decades of internal violence and conflict. The Conservatives and the Liberals have been an active part of the Colombian political system for over 150 years.

These two parties trace their history back to 1850.

Beginning in the 1850s these two parties became the foundation of the nation’s representative government. Members of the Conservative and Liberal parties served as members of Congress, local city council and departmental assemblies 108 . Although the Conservatives and Liberals played an important role in the nation’s internal structural development, interaction and conflict between the two groups has contributed to much of the nation’s internal violence and strife during the 20th Century.

La Violencia, a period of intense internal conflict between Colombia’s two primary political parties characterizes the internal conflict, which has ruptured the nation. This period of conflict between Liberals and Conservatives, which lasted from the late 40s to the 1960s, was particularly chaotic in the countryside. It was difficult for Colombia’s state institutions to maintain a solid foundation during this period. “Democratic institutions ceased to operate” and the security forces became heavily politicized 109 . Impunity was rampant as the judiciary was ineffective, and arbitrary violence took over110 .” The nation as a whole was largely traumatized by violence and many of Colombia’s state institutions became ineffective.

La Violencia was followed by a power sharing arrangement known as the National Front. This structure was devised as a way to mitigate the violence perpetrated by the Liberals and Conservatives. The National Front lasted for the sixteen year period from 1958 to 1974. It mandated that “Liberals and Conservatives alternate the Presidency while seats in Congress and other representative bodies were allocated equally between them in an electoral system that excluded the participation of third minority parties111 .” Under this arrangement the two political parties also established a method for joint control over the judiciary and bureaucracy. The twoparty structure continued to characterize Colombia throughout the 1960s and into the 1970s.

The stability created under the National Front allowed for the strengthening of various elements of Colombian society. Although the National Front was terminated in the 1970s, it positively impacted Colombian society into the succeeding decades. The stability generated under the 107

Ward, Heather. “Colombia’s State and Civil Institutions.” 13 December 2003.

Carbó, Eduardo Posada. “Colombian Institutions: On the Paradox of Weakness” <http://www.ideaspaz.org>.

109 Ibid.

110 Ibid.

111 Ibid.

108

54

power-sharing agreement benefited overall social conditions in a number of ways. For example, income distribution became more uniform and poverty indicators improved throughout the 1970s. However, in spite of the improvements and institutional strengthening that were initiated under the National Front, conflict between the two political parties remained an indelible part of Colombian society for the next decade and a half.

Until 1991 and the creation of a new constitution, the Conservative and Liberal parties continued to be responsible for, or in some way linked to, local violence. Although the National Front had alleviated violence to a certain extent, it was not strong enough to temper all of the violence inherent in the relations between the two oppositional parties. Colombia’s political and institutional organizational structure played a significant role in this divide. Until the 1991 Constitution, the Colombia’s political structure and state institutions were organized in a manner that generated violence. Coatsworth explains, “Until the 1991 constitution, 20th-century Colombia operated under rules that gave the president of the country the right to appoint all local and state executives. Local and state legislatures, however, had to be elected every two years.

The result was a lethal combination of mayors and governors from Bogotá facing noisy and disruptive local legislatures 112 .” The divisive nature of Colombia’s system of political representation generated conflict between the Liberals and Conservatives and undermined the strength of the nation’s political institutions. The adaptation of a new constitution in 1991 lessened the stress placed on Colombia’s political institutions. The constitution “democratized local and state government by making mayors and governors subject to election for the first time in more than a century113 .”

Although the 1991 Constitution represented a significant step in lessening the tension in Colombia’s political system, it was not sufficient to rectify all of the nation’s internal problems.

The Constitution was unsuccessful for two principal reasons: “First, by the time the constitution was adopted, the Drug Wars of the late 1980s had nearly destroyed the country’s judicial and law enforcement institutions. Second, the Colombian government had lost credibility as a partner in peace talks with armed guerillas 114 .”

The election of Cesar Gaviria Trujillo in May of 1990 and the inception of the new Constitution, in July 1991, brought about drastic change in Colombia. One of the more notable additions to the constitution was the prohibition of the extradition of Colombian citizens 115 . This was undoubtedly due to the threat that extradition posed to the country. Many feared that continued extraditions would lead to greater social violence on the part of the drug cartels. Therefore, Gaviria accepted the prohibition of extradition. In an offer of goodwill toward drug traffickers, he also “lifted the state of siege and offered amnesty to drug traffickers who turned themselves in116 .” Once again, he wished to create a safe environment for the majority of citizens, all the while trying to establish some sort of legitimate order.

112

Coatsworth, John H. “Roots of Violence in Colombia: Armed Actors and Beyond” <http://drclas.fas.harvard.edu/publications/revista/colombia/coatsworth.html >.

113 Ibid.

114 Ibid.

115 U.S. Library of Congress :<http://lcweb2.loc.gov/frd/cs/cotoc.html>.

116 Ibid.

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Unfortunately, drugs and violence characterized much of the mid and late 1990s. One crucial moment in recent history, was the killing of Pablo Escobar, the leader of the Medellin cartel, by security forces in December of 1993 117 . This environment of drugs and violence carried on through to the administration of Ernesto Samper Pizano, who was elected June 1994 118 . From the beginning, top officials alleged that Samper knowingly accepted campaign contributions from the Cali cartel in exchange for leniency on all drug-related criminal proceedings 119 . Although, President Samper denied the allegations, in February of 1996 Colombia’s chief prosecutor indicted him on “fraud, accepting illegal drug money to fund his campaign, and obstruction of justice 120 .” Soon thereafter, the US declared Colombia uncooperative in the war on drugs, and in March 1996 decertified the Colombia thus disqualifying it from “receiving most forms of U.S. economic assistance 121 .”

At the same time, insurgency violence intensified. Colombia’s volatility in the 1990s became an important issue for a U.S. Congress not only concerned with the inflow of drugs but also stability in the Western Hemisphere.

117

U.S. Library of Congress :<http://lcweb2.loc.gov/frd/cs/cotoc.html>.

Ibid 119 Ibid 120 Ibid 121 Ibid 118

56

Appendix 5: Congressional Oversight

Every year, Congress includes the Leahy provision in the Defense and Foreign Appropriations Acts and the Colombia Country Specific Conditions in the Foreign Operations Appropriations Act. Congress must rely upon the State Department and the Government of Colombia to use their utmost ability to enforce the human rights mechanisms and accurately report their compliance.

To ensure that proper implementation occurs, Congress relies on third parties such as NGOs to bring forth problems with implementation. Constituentsâ&#x20AC;&#x2122; needs, personal agendas, and the desire for reelection constrain legislators from dedicating their efforts to the mechanismsâ&#x20AC;&#x2122; implementation. Consequently, the participation of third party actors is important, since Congress cannot act upon a violation that it is not aware of.

Congress utilizes NGO testimony and reports to ensure that the State Department is providing an accurate picture of the situation on ground. The main mechanism through which third party actors voice their concerns about enforcement of the Leahy Law and CSC is by testifying at congressional hearings 122 . Hearings provide an important forum whereby actors can update Congress on the human rights situation in Colombia, and bring forth accusations of gross violations of human rights to their attention123 . The most prominent arena in which this occurs are the subcommittee mark up hearings of the FOAA in the House and Senate.

In addition to testifying at hearings, the third party actors utilize other methods to bring up violations of human rights to Congressâ&#x20AC;&#x2122; attention. Such actions may include writing persuasive letters, publishing annual reports, sending out action alerts, writing articles in newspapers, magazines, and journals and/or utilizing the media to publicize certain issues or incidents.

Congress can also address concerns in the committee report of the FOAA124 . The information provided by NGOs, affords Congress the opportunity to apply political pressure, either publicly or privately, on the State Department, and Government of Colombia to comply with the law125 .

This pressure can be exerted in a variety of ways. Members of Congress most often write letters to the State Department and Colombian government expressing their concerns with the enforcement of the Leahy Law and CSC 126 . Other times, members of Congress meet with or call the Secretary of State, U.S. Ambassador to Colombia or the Colombian President.

The most powerful way for Congress to express its dissatisfaction with implementation is to withhold funds. This method has rarely been exercised due to a lack of political will. There are a 122

Interview: Eric Olson, Colombia Advocacy Director, Amnesty International 29 January 29, 2004.

Ibid.

124 Interview: Peter Clark, U.S. Office on Colombia, 21 January 2004.

125 Ibid.

126 Ibid.

123

57

few reasons that account for this inclination. The first being, that withholding funds is tantamount to saying that the State Department has incorrectly certified Colombia 127 .

Additionally, support for the withholding of funds is limited due to the U.S.’ current “War on Drugs.” Many senators and congressmen feel that while the protection of human rights is important, the “War on Drugs” and its various national security implications have a greater priority. Lastly, since the U.S. President dictates the foreign policy agenda, his administration sets the tone for the stringency of implementation of the law128 .

127 128

Interview: Tim Rieser, Foreign Relations Aide, Senator Patrick Leahy, 13 January 2004.

Interview: Paul Paz y Mino, Colombia Specialist, Amnesty International, February 5, 2004.

58

Appendix 6: U.S. State Department Guidance for the Leahy Law In order to establish a universal format whereby the Leahy Law can be implemented, the State Department has established formal written guidelines outlining the steps that should be taken in overseeing and implementing the Leahy Law. This guidance is transmitted to each embassy (or post) through written cables.

Since the inception of the Leahy Law, the guidance has been revised to address the concerns of State Department employees and the general practicality of implementation. A State Department cable of January 31, 2003 entitled “Revised guidance regarding Leahy amendments and U.S. foreign assistance” details the most current instructions provided to U.S. posts. The guidance instructs the post to “keep in mind two overriding policy concerns” in their implementation of the Leahy Law: • “U.S. assistance provided under the FOAA – whether in the form of fund, other assistance or training – should not be provided to units of foreign security forces that have engaged in gross violations of human rights, and DOD funding should not be provided for training involving such units; and • The United States should seek ways to leverage its assistance and training to encourage host nation governments to prevent such violations accountable to their actions, including by bringing such persons to justice. 129 ” The revised guidance details the steps and processes that U.S. Embassies and the Department of State must take in complying with the Leahy Law. The first major section of the guidance addresses incident-related reporting requirements. The guidance states that when the post becomes aware of an incident that could be considered credible information of a gross violation of human rights, regardless of the source of information, the post should notify the Department by cable 130 . The guidance instructs the post that it should “to the extent practicable, identify the unit that has allegedly committed the violation of human rights and include post’s view of whether it rises to the level of being a gross violation and whether it believes the information is credible 131 ” Upon receipt of the incident report, an internal review of the incident in question will be conducted by the regional bureau, INR, and the Bureau of Democracy, Human Rights and

129

“Revised Guidance Regarding Leahy Amendments and U.S. Foreign Assistance.” U.S. Department of State. 31 January 2003.

130 Ibid.

131 Ibid.

59

Labor 132 . One individual from each bureau must review and clear each case133 . A review leads to 3 primary outcomes 134 : • The incident is determined not to be credible.

• The incident is determined to be credible.

• Further review is necessary If the incident is determined to be credible, aid or assistance is granted. If the review determines that the incident is credible, the regional bureau will prepare a memorandum for decision by the Secretary 135 . If the Secretary determines that the incident is credible, the regional bureau will generally advise the post to deliver a demarche, or a diplomatic initiative to the host government 136 .

If the review determines that further evaluation of the incident is necessary, the U.S. State Department is heavily reliant on the regional bureau137 . The guidance contains an important instruction regarding what to do in the event of an uncertainty regarding the credibility of evidence, it states: “While the Department retains authority for all final decisions regarding specific cases – including the “credibility” of evidence of gross violations –it must rely, at least in the first instance on post’s judgment in reviewing and assessing available information for its reliability and the credibility of its sources. In cases of uncertainty, the regional bureau will “resolve questions or concerns on a case-by-case basis and, as appropriate, with DOD or other relevant agencies”138.

132

“Revised Guidance Regarding Leahy Amendments and U.S. Foreign Assistance.” U.S. Department of State. 31 January 2003.

133 Interview: Joseph Bracken, U.S. Department of State, Bureau of International Organizational Affairs. 23 February 2004.

134 “Revised Guidance Regarding Leahy Amendments and U.S. Foreign Assistance.” U.S. Department of State. 31 January 2003.

135 Ibid.

136 Ibid.

137 Ibid.

138 Ibid.

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Appendix 7: The Vetting Procedure Step 1: The U.S. Embassy in Bogotá submits a list naming potential recipients of us aid or assistance to the Colombian Defense Ministry.

Step 2: The Colombian Defense Ministry checks to see if candidates for assistance or training have formal charges against them in Colombia's courts or filed by the Internal Affairs agency. Candidates who fall into either of these categories are not eligible to receive assistance or training 139 .

Step 3: The Colombian Defense Ministry submits a list of those eligible under the aforementioned criteria to the U.S. Military Group. The U.S. Military Group is the office within the U.S. Embassy in Bogotá that includes Pentagon and Armed Force personnel responsible for administering military aid and training 140 Step 4: The Military Group reviews the list for credible allegations of human rights violations 141 Step 5: The Human Rights Division of the Political Section of the Embassy reviews the list of names. This review occurs simultaneously with the review conducted by the Military Group. The review conducted by the Human Rights Division is of a more comprehensive nature than that conduced by the Military Group. The Human Rights Division checks the list of names against information gathered from official sources in the Colombian Attorney General and Internal Affairs agency offices. It also considers information found in reports published by human rights and other nongovernmental organizations, press clips, and information gathered by the CIA 142 . o The Embassy maintains a database to assist in the vetting process. Within the database a record of who has been vetted is kept. The human rights officers in charge of the vetting process log info from the press and NGO reports into the database 143 .

Step 6A: If there is no information about an individual in the database they are assumed to be clear and are thus eligible to receive aid or training 144

139

The “Sixth Division”: Military-paramilitary Ties and U.S. Policy in Colombia Human Rights Watch Report October 2001. < http://www.hrw.org/reports/2001/colombia/1.htm >.

140 Ibid.

141 Ibid.

142 Ibid.

143 Interview: Kiersten Stiansen Human Rights Embassy, US Embassy Bogotá. 4 February 2004.

144 Ibid.

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Step 6B: If the U.S. Embassy in Bogotá questions the credibility of an incident or allegation, the case will be sent to Washington for a secondary review. An intra-agency committee made up of the Bureau of Western Hemisphere Affairs, the Department of Democracy and Human Rights and the Bureau of Intelligence and Research compares the names of alleged violators with other information they have gathered, and make a final determination145 . According to an Embassy official, the Embassy and Washington have largely the same information, nevertheless a secondary review in Washington helps to ensure that aid is not given to known human rights violators 146 .

Step 6C: When credible allegations of human rights are identified the guidance indicates that it is the responsibility of the Embassy to notify the State Department in Washington by cable. However, the U.S. Embassy in Colombia employs a process which deviates from these instructions. If the Embassy believes that an incident is credible it often stops the vetting process and makes a determination to deny aid or assistance without corresponding with Washington147 .

145

The “Sixth Division”: Military-paramilitary Ties and U.S. Policy in Colombia Human Rights Watch Report October 2001. < http://www.hrw.org/reports/2001/colombia/1.htm>.

146 Interview: Kiersten Stiansen Human Rights Embassy, US Embassy Bogotá. 4 February 2004.

147 Ibid.

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Appendix 8: The Country Specific Condition Certification Process In 2000, the U.S. Congress mandated human rights conditions on U.S. military aid and assistance to Colombia. The State Department is charged by the U.S. Congress with certifying that the Colombian Government and Armed Forces have taken necessary steps to improve the protection of human rights. The Secretary of State issues a bi-annual certification indicating compliance with the congressionally mandated country specific conditions. According to the State Department, the Secretary's determination of certification is based “on a thorough, careful evaluation of the conditions in U.S. law and the relevant actions and policies of the Government of Colombia and the Colombian Armed Forces 148 .” The certification process has faced some significant changes since its inception. When the Country Specific Conditions for Colombia went into effect, the President of the United States had the ability to waive the certification process under national security concerns. On August 22, 2000, President Clinton waived the human rights conditions on aid and assistance because of pressing national security concerns 149 .

Currently only 25 percent of U.S. aid to Colombia is subject to the certification process.

Colombia has been certified 8 times since Congress imposed specific human rights conditions on Colombia. The U.S.’s most recent certifications to Colombia occurred in January 2004 and July 2003150 . On January 21, 2004, Secretary of State Colin Powell certified to Congress, “that the Colombian government and Armed Forces are complying with criteria related to human rights and severing ties to paramilitary groups”151 . The Secretary's January 21 determination [enabled] the final 12.5 percent to be obligated. 152 The Secretary’s decision to either certify or de-certify is accompanied by a memorandum of justification. In order to prepare the text of the memorandum, Embassy officials in Bogotá communicate with various elements of the Government of Colombia, including the civilian court system and the Defense Ministry’s Human Rights Unit in order to identify examples that demonstrate that the Colombian government and Armed Forces have taken steps to comply with the mandated conditions 153 . The memorandum, itself, is not meant to be a comprehensive account of human rights related practices and is much more limited in nature than the yearly Human Rights Report. Our interview of a State Department official in the U.S. Embassy in Bogotá revealed that the Human Rights Division does not seem to be particularly focused on the preparation of the memorandum of justification. 154 148

Interview: Kiersten Stiansen Human Rights Embassy, US Embassy Bogotá. 4 February 2004.

“Human Rights Watch World Report 2001: Colombia.” <http://hrw.org/wr2k1/americas/colombia3.html>.

150 Boucher, Richard. “Powell Certifies that Colombia Complying with Human Rights Criteria.” Department of State Statement to the Press. 23 January 2004.

151 Ibid.

152 Ibid.

153 Interview: Kiersten Stiansen Human Rights Embassy, US Embassy Bogotá. 4 February 2004.

154 Ibid.

149

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As part of the certification process senior State Department principals meet with representatives of internationally recognized human rights organizations including Amnesty international and Human Rights Watch. Although the human rights groups are involved in the certification process they typically disagree with the end result. Following each certification Amnesty, HRW and WOLA have published critiques of the certification and provided instances where the Government of Colombia and Armed Forces have not complied with the CSC criteria.

With regards to the January 2004 certification, Jose Miguel Vivanco, Executive Director of Human Rights Watch’s Americas Division stated, “The U.S. certification suggests that the Bush Administration sees the defense of human rights as a matter of paperwork, not concrete action. It also demonstrates how readily the administration sacrifices human rights concerns to other interest”155 . However, from a human rights NGO viewpoint the certification process does have certain benefits. The certification process is an opportunity for the NGO to ‘lobby’ the State Department. Through their participation in the certification process, human rights groups are able to argue their case and raise the profile of the human rights situation in Colombia.

155

“Colombia: Flawed Certification Squanders U.S. Leverage.” 23 January 2004. <http://www.hrw.org/english/docs/2004/01/03/colomb6990.htm>.

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Appendix 9: The Colombian Judicial System A crucial element to promoting and protecting human rights is a strong judiciary. It is not enough to be able to investigate cases. The process must have an effective system in place to punish those guilty of committing human rights violations. Like most countries, Colombia has both a military and civilian judicial system. But unlike most countries, the two Colombian systems converge when dealing with human rights violations. The convergence of the two requires a thorough understanding of each system in order for an evaluation to be done.

Military Justice System The history of Colombian military courts is marked by the continuing state of violence that the nation has been under since the end of “La Violencia”. As the state went in and out of state of emergencies, issues regarding the role of military courts came to the forefront. Consequently, “the powers of the military courts were considerably extended 156 .” As the years have progressed and the statute addressing military courts has changed, what has been at the heart of the debate has been the jurisdiction of military courts in the processing of cases of human rights violations.

Historically, military code has given jurisdiction to military courts for ordinary offenses during wartime 157 . It has stipulated that in times of peace, ordinary offenses committed by security personnel are to be tried under the civilian judiciary158 . Similarly, Decree No. 1426 of 1954 stated that “all offenses committed by members of the Police Forces on active service” [are] subject to the jurisdiction of the military courts 159 . Consequent changes to the Code have specifically granted these privileges to members of the National Police 160 .

Military Code has evolved with regards to human rights. In 1988, as a result of the latest Military Criminal Code, “typical gross human rights violations committed against civilians were classed as offences for which the military courts were to have sole jurisdiction161 .” One of the biggest critics of this finding was the Procuraduria, which felt that “military criminal justice [had] been very ineffective in bringing to trial and sentencing violators of human rights from among the ranks of the State defense and security bodies 162 .” Some of the stated reasons for this inefficiency, was the ‘esprit de corps’ that encouraged concealment, “made investigations difficult, planted obstacles throughout the proceeding and ended up preventing justice from being done 163 .” Nonetheless, this remained the case until 1999, when the latest Military Criminal Code attempted to make the system more impartial and removed some types of gross human rights violations from the jurisdiction of the military courts 164 . Leading up to the 1999 reform, there had been important changes, like the provision of a definition for “service-related” acts 165 .

156

International Commission of Jurists, “Military Jurisdiction and International Law: Military Courts and Gross Human Rights Violations, Vol. 1 (part II), (pg. 223).

157 Ibid (pg. 222).

158 Ibid.

159 Ibid (pg. 223).

160 Ibid (pg. 224).

161 Ibid (pg. 230).

162 Ibid (pg. 231).

163 Ibid.

164 Ibid (pg. 239).

165 Ibid (pg. 233).

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Although this definition also included the mention of torture, forced disappearances, and genocide, as offences to be considered service-related 166 , it did create the space for a debate.

Once that was created, the issue became whether or not military courts are equipped and impartial enough to try cases of human rights violations. Additionally, the problem regarding which crimes would be considered part of service or not was also debated. It is somewhat questionable to assume to torture can be considered an act related to service. But, when you consider the nature of the conflict in Colombia, and what can constitute as torture, the lines are blurred. It is unquestionable that the end to impunity in Colombia has to be rooted in the country’s judicial system, whether it be judicial or civilian.

A part of the Ministry of Defense, the Military Justice system functions under the auspices of the executive branch167 . In 2000, the military code was amended and resulted in two important changes: ∗ Military prosecutors would now report directly to the director of the military justice system as opposed to local unit commanders 168 ∗ The Director of the military justice system would report directly to the civilian minister of defense 169 The military justice system is made up of 40 military trial courts and a Superior Military Tribunal, which serves as the court of appeals for all cases tried in the military justice system170 .

The civilian Supreme Court serves as a second court of appeals for cases in which sentences of 6 years or more in prison are imposed 171 .

Once a case enters the military judicial system, cases must be completed in a timely manner. An investigation must be completed within 60 days, at which point the case must be brought to trial within two months 172 . Similar to the civilian system, defendants are considered innocent until proven guilty and have the right to an attorney173 . Generally defendants pay for their own defense 174 . Military trials are open to representatives of the civilian system175 .

In the military judicial system there are three basic components: the Supreme Military Tribunal, the military trial judges, and the military examining magistrates. These bodies are made up individuals that are current or retired members of the security forces.

166

International Commission of Jurists, “Military Jurisdiction and International Law: Military Courts and Gross Human Rights Violations, Vol. 1 (part II), (pg. 234).

167 State Department Country Report on Human Rights Practices, 2002.

168 Ibid.

169 Ibid.

170 Ibid 171 Ibid.

172 Ibid.

173 Ibid.

174 Ibid.

175 Ibid.

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Supreme Military Tribunal: The SMT is headed by the General Commander of the Armed Forces and 15 judges appointed by the executive 176 . It is required that the judges be qualified lawyers and have previously held the position of judge or prosecutor within the military justice system177 .

The SMT is responsible for hearing applications of appeal or first review of judgments handed by other military courts 178 . This permanent court was made a subject of the Supreme Court, by the 1988 Code reform, which said that the Supreme Court would be the trial court for proceedings against judges from SMT and the high command of armed forces 179 . In that same reform, it was established that the SMT would be the trial court for military examining magistrates and judge advocates 180 .

Military Trial Judges: This position is carried out by the highest ranking official within each division of the armed services, as well as the highest ranking officials from each unit within the various divisions 181 . Jurisdiction is decided by the rank of the officer facing trial, the unit to which he/she belongs to, and the unit with territorial jurisdiction over the place where the offence was committed 182 . The 1988 reform allows the Joint Chief of Staff, director of military or police training colleges and other senior officers in leadership positions to be trial judges183 . Additionally, it was decided that military trial judges would also assume the duties of the oral courts martial184 .

Military Examining Magistrates: This position can be held by any member of the security forces appointed by the SMT or a military trial judge 185 . The individual has to be a lawyer and “have been a judge or prosecutor within the ordinary criminal justice system, a judge advocate, a professor of law at a university or to have completed a special course of study in military law 186 .”

Civilian Justice System Given that most of the oversight of human rights cases is given to civilian courts, it is important to note that it is a separate and independent branch of government 187 . It is composed of four jurisdictional branches, the civil, administrative, constitutional, and special188 . The civil circuit is the largest of the four and handles criminal, civil, labor, agrarian, and domestic cases involving 176

International Commission of Jurists, “Military Jurisdiction and International Law: Military Courts and Gross Human Rights Violations, Vol. 1 (part II), (pg. 225).

177 Ibid (pg. 225).

178 Ibid.

179 Ibid (pg. 229).

180 Ibid.

181 Ibid (pg. 225).

182 Ibid.

183 Ibid (pg. 229).

184 Ibid (pg. 229).

185 International Commission of Jurists, “Military Jurisdiction and International Law: Military Courts and Gross Human Rights Violations, Vol. 1 (part II), (pg. 226).

186 Ibid (pg. 226).

187 Ibid.

188 Ibid.

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non-military personnel189 . This branch has 31 judicial districts and a superior tribunal that serves as each district’s court of appeals 190 . In total, the civil circuit of the civilian justice system has 436 magistrates distributed according to the population of each district 191 . While the smallest towns have a single “all-purpose” judge, most lower and municipal courts will have a judge, court clerk, and some administrative personnel192 .

For cases relating to human rights, most of the activity takes place within the specialized circuit courts and the Supreme Court. The specialized courts deal with cases involving crimes “designated as grave threats to the administration of justice 193 .” This includes narcotics trafficking, terrorism, paramilitarism, torture, and money laundering194 . The Supreme Court, in addition to hearing appeals from lower courts, oversees trials involving the President, cabinet members, heads of independent government agencies, admirals and generals, and magistrates of the Supreme Court, Council of State, Constitutional Court, and CSJ 195 .

Similar to the military judicial system, the civilian courts have an established timeframe to investigate and prosecute cases. Preliminary investigations cannot exceed [60] working days and if evidence is found then the case can move into the “formal investigation stage 196 .” At this point, prosecutors have 360 working days to file formal charges 197 . Once formal charges are filed, the government has 35 working days to bring the case to trial198 . These trials are open to the public, but unlike U.S. courts, there are no juries, just a judge who questions the witness directly and issues a final verdict 199 .

Colombia’s criminal judiciary suffers from two major ailments, its inability to exert its power, and a general lack of resources. These two deficiencies have led to other systematic problems and a general “widespread distrust of the judiciary200 .” The central problem facing the Colombian criminal judiciary is its failure to establish and enforce the rule of law and thereby end the prevailing culture of impunity. One such example is the continual defiance of Constitutional law that stipulated that the criminal justice system has jurisdiction over human rights abuses perpetrated by members of the security forces. The Constitutional Court has ruled that “judging a military officer allegedly responsible for humanitarian law and human rights violations within the military judiciary [amounts] to a grossly illegal proceeding201 .” Granted, the “military judiciary has generally refused to transfer cases of human rights violations involving

189

Human Rights Watch, “A Wrong Turn: The Record of the Colombian Attorney General’s Office,” November 2002.

190 Ibid.

191 Human Rights Watch, “A Wrong Turn: The Record of the Colombian Attorney General’s Office,” November 2002.

192 Ibid.

193 Ibid.

194 Ibid.

195 Ibid.

196 Ibid.

197 Ibid.

198 Ibid.

199 Ibid.

200 International Commission of Jurists, “Colombia – Attacks on Justice, 2002,” August 27, 2002.

201 Ibid.

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high-ranking officers to civilian jurisdiction202 .” Nonetheless, the Constitutional Court, being part of the civilian judiciary system should be much more authoritative and demanding of military compliance. In failing to do so, the Constitutional Court and the civilian judiciary have fed the culture of impunity that is rampant in Colombia.

Part of the reason for the civilian judiciary’s timidity has been the judges themselves. It is noted by the International Commission of Jurists that Colombia has “failed to establish a coherent judicial system and therefore many of the judicial officers do not enjoy security of tenure 203 .” It can be argued that the lack of job security has made judges not only susceptible to political influence204 , but has also inhibited their ability to decide cases on their mere merits. It is reported that between February 2000 and November 2001, at least 64 judges, lawyers and prosecutors were victims of attacks 205 .

Additionally, the system in which judicial officers work in is said to respond to conjectures and not the structural problems facing the country206 . Thus, we find that the criminal policy delineated by the state is not directed towards fighting impunity or grave offenses of human rights, but rather towards criminalizing poverty207 . This is seen in the various ways through which due process is restricted to those accused. The issue is further complicated by reports that affirm that the penal system is selective, and that it is the security forces that determine, generally, what constitutes a punishable crime 208 . Taking this into account, and considering that public prosecutors grant greater credibility to the versions of the security force than to those of the defendant, in criminal proceedings, it is questionable how objective these prosecutors and judges can be when it comes to the criminal proceedings of security members accused of violating human rights.

The judiciary is further weakened when we consider how much power is given to the prosecutor in the investigatory stage of the proceedings. The Colombian penal process concentrates most of the jurisdictional function in the investigation phase209 . This means that the public prosecutor is able to exert a lot of power. It is in this search for truth, that a debate is generated and exhausted.

The product of this “debate” is what leads to the judicial phase. Meaning, that if the investigation leads to conclusive evidence, then the case goes on to the judiciary phase, where conviction is formalized. The ICJ notes how most of the cases that arrive at the judiciary stage lead to conviction. This process takes a lot of power away from judges and removes any oversight capacity to ensure that human rights cases are properly investigated. These constraints have demoralized the judiciary system and put into jeopardy the state’s ability to prosecute human rights abuses.

202

Ibid.

Ibid 204 Ibid.

205 Ibid.

206 UNHCHR, “Evaluation of the Ordinary Civil Penal Program of the Public Defender’s Office,” <http://www.hchr.org.co/documentoseinformes/informes/tematicos/XV-CONCLUSIONES.doc>.

207 Ibid.

208 Ibid.

209 UNHCHR, “Evaluation of the Ordinary Civil Penal Program of the Public Defender’s Office,” <http://www.hchr.org.co/documentoseinformes/informes/tematicos/XV-CONCLUSIONES.doc>.

203

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Power, or the lack thereof, is only one of the problems hurting the judiciary. Another important issues, is the lack of resources available. Money is an important factor for the Colombian judiciary. In 2000, it is estimated that the judiciary received a mere 4.6% of the state’s total budget210 . Undoubtedly, this low percentage has been partly responsible for the extraordinary backlog that exists within the criminal system. According to the Supreme Council of the Judiciary, “every year a judge should decide 3,000 cases, but, currently, judges are only able to adjudicate some 600 cases 211 .” Undoubtedly, an increase in the number of judges would assist in reducing the backlog of cases. An estimate provided by the ICJ, reports that in mid-’99 there were 3,069,000 in backlog212 . The problem is that an understaffed judiciary is not only responsible for all the human rights cases and criminal offences of armed actors, but it’s also responsible for dealing with issues related to the internal armed conflict and the country’s organized crime problem213 . Without the proper economic resources, the judiciary will always find itself behind. This backlog will continue to dispense the idea that human rights cases are not important and are not going to be properly dealt with. Consequently, it will make it impossible to promote the protection of human rights by security agents because the deterrent of criminal prosecution is not there.

210

International Commission of Jurists, “Colombia – Attacks on Justice, 2002,” August 27, 2002.

Ibid.

212 Ibid.

213 Ibid.

211

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Appendix 10: Current Early Warning System Management Structure

Inter-institutional Committee for Early Warning (CIAT)

Ministry of Interior and Justice

Armed Forces

National Police

Vice President’s Office on Human Rights

Early Warning System (EWS)

National Ombudsman’s Office

Regional Ombudsman’s Office x

Regional Ombudsman’s Office x

Churches, Neighborhood Councils, Mayors, and local police, inform the proper authorities about credible paramilitary threats and massacres taking place.

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Appendix 11: Incidence of Massacres (1999-2003)

Massacres ('99-'03) Source: Presidential Human Rigths Program

# of Reported Massacres

1600 1400 1200 1000

Other* ELN

800

FARC

600

AUC Unknown

400 200 0 1999

2000

2001

2002

2003

Source: Colombia's National Police - Criminal Investigation Center.

Processed by: Observatory of the Presidential Human Rights Program, Vice President of the Republic <http://www.derechoshumanos.gov.co/observatorio/indicadores/diciembre/masacresdic.pdf>.

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Works Cited Annual Report on Human Rights and International Humanitarian < http://www.derechoshumanos.gov.co/modules.php?name=informacion&file=article&sid =167>.

Boucher, Richard. “Powell Certifies that Colombia Complying with Human Rights Criteria.”

Department of State Statement to the Press. 23 January 2004.

Carbó, Eduardo Posada. “Colombian Institutions: On the Paradox of Weakness” <http://www.ideaspaz.org>.

Coatsworth, John H. “Roots of Violence in Colombia: Armed Actors and Beyond.”

Franco, Adolfo A. Hearing of the Senate Foreign Relations Committee “Challenges for U.S. Policy Toward Colombia” 29 October 2003.

Gordon, Catherine, “Stop the Militarization of Colombia”, July 2003.

O’Grady, Mary Anastasia, “Cooking the Human Rights Books in Colombia” The Wall Street Journal -The Americas.

McCafferty, Barry R. Address. The Atlantic Council of the United States 28 Nov. 2000.

Miller, T. Christian. “Cut off of aid a sign to Bogotá.” The Los Angeles Times, 14 January 2003.

Miller, T. Christian, “Incidents May Link Colombian Army to Paramilitary Squads” The Los Angeles Times, September 15, 2002.

Reed, Carmen. “Ensuring Human Rights with the Leahy Law.” Presbyterian Washington Office, 2000. <http://www.pcusa.org/washington/issuenet/latin-000200.htm>.

Schmeidl, Susanne and Eugenia Piza Lopez. “Gender Conflict and Early Warning: A Framework for Action,” June 2002. <http://www.internationalalert.org/women/Ewgender.pdf>.

Wilson, Scott. “Chronicle of a Massacre Foretold; Colombian Villagers Implicate Army in Paramilitary Strike.” The Washington Post, 28 January 2001.

Wilson, Scott. “No Sanctuary From Colombian War; Army Was Absent During Massacre at Village Church.” The Washington Post, 9 May 2001.

“A Closer Look at Human Rights Statistics.” U.S. Department of State Embassy in Bogotá.

10 October 2003.

73

“Briefer on the Early Warning System (EWS) supported under the “Prevention” component of AID’s Human Rights Program.” USAID. “Bush Gives Oxy a Hand in Escalating Colombia’s War,” Drillbits & Tailings, Volume 7, Number 2, February 28, 2002.

“Colombian Army Accused of Bloodbath in Arauca” ILPS Online August 6, 2002.

“Colombia – Attacks on Justice 2002”, International Commission of Jurists, August 27, 2002.

“Colombia: Aid Suspension Decision Welcomed.” 21 November 2002. <http://www.hrw.org/press/2002/11/colombia112102.htm>.

“Colombia: Flawed Certification Squanders U.S. Leverage: U.S. Aid Released Despite Evidence of Colombia’s Failure to Meet Conditions” Human Rights Watch, 23 January 2004. <http://hrw.org/english/docs/2004/01/23/colomb6990.htm> “Colombia’s Oil Sector – An Overview,” American Friends Service Committee - Trade in the Americas <http://www.afsc.org/colombiaoil/oil_1.htm>.

“Colombia.” The CIA World Factbook, 2003 <http://www.cia.gov/cia/publications/factbook/geos/co.html>.

Country Reports on Human Rights Practices: Colombia ,2003, Released by the Bureau of Democracy, Human Rights, and Labor, U.S. Department of State 25 February, 2004 <http://www.state.gov/g/drl/rls/hrrpt/2003/27891.htm> Country Reports on Human Rights Practices: Colombia, 2002.

Country Reports on Human Rights Practices: Colombia, 2001.

Defensoria del Pueblo Informational Brochure.

Human Rights Watch Report 1998: VIII: “The Role of the International Community.” < http://www.hrw.org/reports98/colombia/Colom989-08.htm> “Human Rights Watch World Report 2001: Colombia. <http://hrw.org/ wr2k1/americas/ colombia3.html>.

Human Rights Watch World Report 2002: Colombia.” <www.hrw.org/wr2k2/americas4.html>.

Human Rights Watch World Report 2003: Colombia <http://www.hrw.org/wr2k3/ americas4.html>.

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“Military Jurisdiction and International Law: Military Courts and Gross HR violations, Vol. 1(part II), International Commission of Jurists, <http://www.icj.org/IMG/pdf/Trib._mil._ENG-_part_II.pdf> “Military Training: Management and Oversight of Joint Combined Exchange Training.”

GAO/NSIAD 99-173. July 1999.

“Revised Guidance Regarding Leahy Amendments and U.S. Foreign Assistance.” U.S. Department of State. 31 January 2003.

State Department Justification on Human Rights Conditions, July 8, 2003.

“The ‘War on Drugs’ Meets the ‘War on Terror,’” Center for International Policy, February 2003.

The Sixth Division: Military-paramilitary Ties and U.S. Policy in Colombia.” Human Rights Watch Report:IV. U.S. Policy. <http://www.hrw.org/reports/2001/colombia/4.htm#N_305>.

US Library of Congress – History of Colombia : <http://lcweb2.loc.gov/frd/cs/cotoc.html> UNCHR – Colombia Report 2002 <http://www.hchr.org.co/documentoseinformes/informes/tematicos/XVCONCLUSIONES.doc>, 15 April 2002>.

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Interviews Arnson, Cindy, Latin America Specialist, Woodrow Wilson Center, 1 February 2004.

Bracken, Joseph, US Department of State, Bureau of International Organizational Affairs. 23 February 2004.

Clark, Peter, U.S. Office on Colombia, 21 January 2004.

Hunter, Jess, U.S. Office on Colombia, 5 January 2004.

Johnston, David, Colombia Desk Officer, USAID, 18 March 2004.

Libreros, Daniel, Early Warning System Analyst, Colombia National Ombudsmanâ&#x20AC;&#x2122;s Office, 11 March 2004.

Lippert, Mark, Foreign Relations Aide to Senator Patrick Leahy, 22 January 2004.

McGraw, Chris, Amnesty International, 27 January 2004.

Olson, Eric, Colombia Advocacy Director, Amnesty International 29 January 29, 2004.

Paz y Mino, Paul, Colombia Specialist, Amnesty International, February 5, 2004.

Paz y Mino, Paul, Colombia Specialist, Amnesty International, February 18, 2004.

Rieser, Tim, Foreign Relations Aide, Senator Patrick Leahy, 13 January 2004.

Samuels, John, Legislative Director for Rep. Jan Schakowsky, 30, January, 2004.

Stiansen, Kiersten, Human Rights Officer, U.S. Embassy in Bogota, 6 February 2004.

Vaicius, Ingrid, Associate, Center for International Policy, 19 March 2004.

Walters, Danika, Department of Human Rights and Labor, U.S. Department of State, 3 March 2004.

Wilson, Scott, Foreign Correspondent, The Washington Post, 26 January 2004.

Former WOLA Colombia Specialist, Washington Office on Latin America, 4 February 2004.

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