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21Sep05

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Paramilitarism, demobilization and politics.

On behalf of the Office of the United Nations High Commissioner for Human Rights in Colombia, I would like to thank the organizers of this forum for their invitation to take part in one of their panels. The Office has noted the important remarks made by the Attorney General of the Nation, Dr. Mario Iguarán Arana, with respect to the scope of Law 975 of 2005.

As in other cases, the Office submitted comments to the successive drafts of the law presented to Congress concerning the reintegration of illegal armed groups. In making these comments the Office has worked within the framework of its mandate. Indeed, in accordance with the agreement entered into between the Government of Colombia and the Organization of the United Nations concerning its establishment in Colombia, the Office has the competence to "ensure that all draft human rights legislation is consistent with international human rights instruments" |1|.

The Office recalls that in its last report concerning Colombia, for the year 2004, submitted to the Commission for Human Rights last April, the UN High Commissioner, Dr. Louise Arbour, recommended to the Government and to Congress, with reference to the negotiations between the State and the illegal armed groups, the establishment of "a legal framework with appropriate mechanisms that fully recognise and guarantee the rights to truth, justice and reparation for the victims"|2|.

In March of this year, noting the submission of the list of amendments to the draft which three months later would become Law 975 of 2005, the Office commented that along with the list there had been introduced "various changes to the text of the draft law notified by the Government in the recent meeting of the International Co-ordination and Co-operation Table for Colombia, which took place on the 3rdand 4th February in the city of Cartagena" and stated that the majority of these changes appeared unadvisable given that they did not "conform to international principles and norms on the right of victims of serious crimes in accordance with international law" |3|.

The Office's comments concerning the said draft were related to:

    1. The objective and the scope of application of the said law;.

    2. The regulation of the investigation and trial of members of illegal armed groups and the benefits under criminal law which could be available to them.

    3. The reform of article 468 of the Criminal Code, the law in which the crime of sedition is defined.

    4. The legal definitions of the right to truth, the right to justice and the right to reparation.

    5. The matters which are not included in the list of amendments.

Today, almost two months after Law 975 of 2005 has been promulgated, the Office repeats its position, which is that this law does not contain those essential elements advisable to establish a transitional justice which, as an instrument for obtaining a sustainable peace, achieves two objectives at the same time. The first of these is to offer benefits so that the illegal armed groups will demobilise and cease hostilities. The second is to adequately guarantee the rights of the victims of the terrible crimes committed by the members of these groups.

Amongst the principles and laws of international standing with which the terms of Law 975 of 2004 appear to be incompatible, we can mention |4|:

  • Those which impose on the State the obligation to investigate serious violations of Human Rights and war crimes and to prevent the continuing commission of these criminal acts.

  • Those which impose on the State the obligation to adopt within its internal regime restrictive measures with respect to amnesty, pardon and other mechanisms which extinguish penalties, where the granting of these benefit the authors of serious violations of Human Rights or serious violations of international humanitarian law.

  • Those which impose on the State the obligation to demobilise and dismantle parastatal armed groups.

  • Those which impose on the State the obligation to recognise and guarantee to all persons the right to an effective remedy which protects their fundamental rights when these have been violated or threatened.

  • Those which recognise that the victims of serious crimes under international law have a right to know the truth with respect to the events which occurred during the perpetration of such aberrant crimes as well as the circumstances and the motivation which led to their perpetration.

  • Those which recognise that those victims have a right to ensure that the perpetrators of these crimes are subject to due criminal process in accordance with the democratic principles of equality before the law and just retribution.

  • Those which recognise that such victims have a right to demand and obtain compensation for the damages they have suffered by means of individual and general measures (restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition).

The principal comments of the Office concerning Law 975 can be summarised as follows |5|:

  • 1st. The law does not clearly encourage the achievement of collective agreements between the Government and the illegal armed groups to ensure that the latter definitively agree to cease their attacks, abandon their weapons, avoid armed conflict and effectively dismantle their illegal structures. The fair and appropriate means of doing so would have been to offer incentives for the collective demobilisation of the groups and their blocs, as this is the only effective way to overcome the armed conflict and to conclude agreements designed to achieve peace. Instead of this, the law that has been passed affords the same treatment to collective demobilisation -based on firm and comprehensive agreements- as to individual demobilisation, produced without either agreement or cessation of hostilities. As a result, it improperly opens the door to the possibility that some murderers may individually receive generous judicial benefits without requiring corresponding assurances from them.

  • 2nd. The law contains no reference either to the internal armed conflict or to international humanitarian law. As a consequence, the definition of crimes punishable by the so-called "alternative penalty" is not clear, and the lack of clarity could mean that persons involved in serious forms of common crime, such as narco-trafficking, become the recipients of this type of penalty.

  • 3rd. The law makes paramilitarism a political crime and thus allows members of illegal armed groups to benefit from amnesties or pardons, measures which lead to forgetting or forgiveness of the criminal behaviour.

  • 4th. The law is absolutely silent about the prosecution of public officials who as co-authors, instigators or accomplices took part in the crimes committed by the members of the paramilitary groups.

  • 5th. The law does not provide sufficient effective mechanisms to achieve full clarification of the facts and the establishment of the truth. Without these mechanisms it is impossible to achieve complete justice or to guarantee the victims sufficient, effective, rapid reparation proportionate to the seriousness of the crime and the type of damage suffered.

  • 6th. The law does not guarantee that the State and its institutions will provide the pro-active support which the victims are entitled to expect and receive. Nor does it adequately deal with the specific situation of certain victims (eg children, women, members of indigenous and Afro-Colombian communities).

  • 7th. The law does not require the full confession of crimes as a result of which its implementation will not guarantee the satisfaction of the right to the truth; nor will it create conditions enabling the State to assume the task of dismantling the illegal structures which the armed groups have set up over a period of many years and in the most diverse areas of national life.

  • 8th .The law makes reparation of property and remedies dependent upon whatever the perpetrators in their discretion declare and submit; it places on the victims the burden of achieving compensation for redress, and deals inadequately with the State's obligation to provide reparation, not only when it is a direct obligation of the State but also when those who have been prosecuted are unable or unwilling to comply with individual measures pertaining restitution, compensation and rehabilitation.

The Office would comment that Law 975 of 2005, with its lacunae and silences, may contribute to the strengthening of impunity. As the Office has repeatedly stated, impunity has seven serious consequences |6|:

  • 1. It tends to encourage the repetition of serious crimes.
  • 2. It can generate more violence as it opens the way to personal revenge.
  • 3. It causes serious damage to the social perception of justice and truth.
  • 4. It breaches important principles and norms of international human rights law and international humanitarian law.
  • 5. It constitutes an obstacle to the achievement of genuine and lasting peace.
  • 6. It unacceptably dilutes the line between the tolerable and the intolerable.
  • 7. It impedes the establishment of the idea of reconciliation.

When States become Parties to the instruments of Human Rights and international humanitarian law they become obliged, with respect to those acts which constitute serious violations of human rights and serious breaches of the laws and customs of war, to investigate conduct which is punishable, to bring its perpetrators and participants to trial, to impose appropriate penalties on them and to guarantee the victims just reparation. In this sense, the fact that violators of Human Rights and war criminals are able to elude the legal consequences of their criminal behaviour must be seen as a breach of the State's duty to protect and promote the fundamental rights of the person by effective measures to combat impunity.

In the performance of its mandate, the Office will observe how Law 975 of 2005 is applied by the Colombian authorities responsible for its implementation, and the Office will pass to the national authorities complaints which are presented to it concerning violations of Human Rights committed in the performance of the legal processes provided therein.

To make its task of observation more efficient, the Office has notified the Procurator General's Office, the Superior Council of the Judiciary and the Attorney General's Office of a series of considerations respectfully submitted in the form of questions concerning the provisions which these institutions will adopt in the exercise of their respective powers pursuant to Law 975.

Amongst these questions the following can be mentioned:

  • Which departments of Government will be responsible to compile and submit the list of those persons who will be potential beneficiaries of the provisions of the law?
  • Which state authorities will certify the performance of each of the requirements for eligibility and in what period of time?
  • What is to be understood by the dismantling of an armed group established outside the law?
  • How is the State planning to prepare an account of the total assets which are the product of illegal activities by the persons prosecuted?
  • What will be the content of the compromise agreement to be signed by a demobilised individual in front of the Government?
  • Where will the accused be accommodated during the investigation?
  • What actions are envisaged to properly take into consideration factors such as the age, gender and health of the victims?
  • What instructions will be given to the prosecutors to ensure that interrogations are conducted properly?
  • What criterion will be applied to the cumulation of alternative sentences when the commission of other punishable acts by a demobilised individual come to light after a sentence has already been imposed?
  • What kind of training is envisaged for the officials of the judiciary and the attorney general's office who will be responsible to carry out the functions provided in the law?

The framing of these questions make it clear that a careful and objective analysis of Law 975 of 2005 poses significant doubts and concerns.

I will conclude by citing a statement contained in the Set of Principles for the protection and promotion of Human Rights through action to combat impunity presented to the Commission on Human Rights in 1998: "There can be no just and lasting reconciliation without an effective response to the need for justice; as a factor of reconciliation, forgiveness, insofar as it is a private act, implies that the victim must know the perpetrator of the violations and that the latter has been in a position to show repentance."|7|.

[Source: Speech of Mr. Amerigo Incalcaterra, Director in charge of the Colombian Office of the UN High Commissioner for Human Rights at the Forum "Paramilitarism, demobilization and policy" Bogotá, 21 September 2005]

Documentation note: Non official translation into English from the original version in Spanish prepared by Equipo Nizkor.

Notes:

1. Agreement on the establishment of an Office of the United Nations High Commissioner for Human Rights in Colombia, Geneva 29 November 1996, V,7,a). [Back]

2. United Nations Commission on Human Rights, Report of the High Commissioner for Human Rights on the human rights situation in Colombia, E/CN.4/2005/10, 28 February 2005, para. 142. [Back]

3. United Nations Office of the High Commissioner for Human Rights in Colombia, Communication DRP/175/05, 30 March 2005. [Back]

4. See International Covenant on Civil and Political Rights, arts. 2 and 14; See American Convention on Human Rights, arts. 8 and 25; see Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 12,13 and 14; See Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, art. 4; See Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions, Principles 9 and 16; See also Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity; and Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights and humanitarian law. [Back]

5. United Nations Office of the High Commissioner for Human Rights in Colombia Press Communique: Considerations on the "Justice and Peace" Law, Bogotá, 27 June 2005. [Back]

6. See United Nations Office of the High Commissioner for Human Rights in Colombia. International Truth and Justice Seminar on peace processes or transition to democracy: Memorias, Bogotá June 2003, pp15-17; See United Nations Office of the High Commissioner for Human Rights in Colombia, Statement by Mr. Michael Fruhling, Director of United Nations Office of the High Commissioner for Human Rights in Colombia in the III National Congress on Reconciliation. Challenges for the administration of Justice in Colombia faced with reconciliation Bogotá, D. C. 25 May 2005. [Back]

7. United Nations Commission on Human Rights, Set of Principles for the protection and promotion of Human Rights through action to combat impunity, principle 19 . [Back]

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