Drug Trafficking as a “Connected Political Crime”

Paramilitary leader “Julián Bolívar” won a vastly reduced sentence for his past drug trafficking, though he awaits a decision on extradition to the United States.

President Juan Manuel Santos caused a stir this week when he told an interviewer from Colombia’s RCN Radio network that the country would have to alter its laws to benefit FARC members who have trafficked drugs.

“For us to be able to apply justice in a more effective way will require broadening that concept of ‘political crimes,’ above all ‘connected crimes.’ Today it is too restrictive, and if we at least want to commute or pardon sentences, or in some way to legalize, thousands of FARC combatants, we’re going to have to be a little more flexible in the application of that concept.”

Colombia’s prosecutor-general [fiscal general], Eduardo Montealegre, agreed.

“It’s absolutely possible that narcotrafficking might be considered a crime connected with political crime, since ‘connectedness’ means something has a relation to something else, and it’s beyond discussion that in the Colombian armed conflict, narcotrafficking has been used in the guerrillas’ armed struggle.”

Their point is that negotiations with the FARC guerrillas will not succeed if, upon demobilizing, FARC leaders will face jail or even extradition to the United States because of their past involvement in the drug trade. Guerrillas simply won’t demobilize. It would seem apparent, then, that Colombia will have to offer ex-guerrillas reduced or waived penalties for past drug trafficking.

But many in Colombia are not prepared to accept that. Internal-Affairs Chief [Procurador] Alejandro Ordóñez alleged that calling narcotrafficking a “connected political crime” would “disguise criminals as politicians” and “shield FARC leaders from their status as capos” in the drug trade. Former President Álvaro Uribe, the talks’ most prominent critic, tweeted, “How could it be that they are going to classify as a political crime with altruistic motives an activity like narcotrafficking, which for many years in Colombia has only systematically financed horrors and atrocities?”

(Uribe is guilty of some hypocrisy here. In 2005, his administration introduced a legislative provision that would have classified paramilitary groups’ activities, including narcotrafficking, as “sedition”—a political crime.)

This week’s debate raised a question that remains unsettled in Colombia, where for decades illegal armed groups with political goals have supported themselves by participating in the drug trade. When it comes time for these groups’ members to demobilize, how should the legal system deal with their drug trafficking crimes? Can they be considered “connected” to the political crime of rebellion, or must they be considered separately as criminal offenses?

Colombia has already wrestled with these questions since the middle of the last decade, when thousands of paramilitary leaders demobilized via the so-called “Justice and Peace” process. The case of paramilitary leader “Julián Bolívar” is illustrative, if not emblematic, of the need for greater clarity.

Rodrigo Pérez Alzate, alias “Julian Bolívar,” was the terror of Colombia’s Magdalena Medio region at the beginning of the 2000s. He oversaw the paramilitaries’ bloody takeover of the oil-refining city of Barrancabermeja.

Pérez demobilized in 2005 as part of the “Justice and Peace” arrangement, which would give him a reduced prison sentence in exchange for a full confession of his crimes and reparations to victims. In 2006, Pérez was transferred to prison and his case slowly went to trial. In September 2013, the Justice and Peace Tribunal sentenced him to eight years imprisonment—most of which Pérez had already served—for a long list of human rights crimes.

It was less clear, though, whether Pérez’s sentence would cover a different set of crimes: drug trafficking. “Julián Bolívar,” and men under his command, supported their paramilitary organization by trafficking cocaine, and laundering the money they gained from these activities. Judicial investigators estimate that the unit Pérez commanded—the Bolívar Central Bloc’s Southern Front—received 80 percent of its income from the drug trade. Though Pérez received a reduced sentence for human rights crimes, might he face longer time in prison for drug-trafficking crimes?

In September 2013, the Justice and Peace Tribunal said “yes”—Pérez would have to be tried separately for involvement in the drug trade. The paramilitary leader appealed.

In April 2014, he won. Colombia’s Supreme Court (Criminal Chamber) said “no,” Pérez’s drug trafficking crimes were “connected” to his political crime—that of belonging to an illegal paramilitary organization. In the Court’s view, “Julián Bolívar” was a paramilitary leader first, and a drug trafficker second. His actions “did not have narcotrafficking as their ‘north’ [principal purpose], though they did support themselves through it as a means to strengthen the criminal structure,” the court found.

Today, Rodrigo Pérez Alzate is nearly free. He has served his eight years in prison for human rights crimes, as well as for drug-trafficking crimes considered to be “connected” to the paramilitary cause. His release has been slowed, though, by a U.S. extradition request, which awaits a Colombian Supreme Court decision, as there is no clear non-extradition guarantee in the “Justice and Peace” process.

Colombia’s courts have worked hard to determine which paramilitary leaders benefiting from light “Justice and Peace” sentences are actually paramilitary leaders, and not drug traffickers who bought their way into paramilitary structures in the hope of having their crimes legalized. The Supreme Court ejected two other putative paramilitary leaders from the “Justice and Peace” process (Francisco Javier Zuluaga Lindo, alias “Gordolindo”, and Miguel Ángel Mejía Múnera, alias “The Twin”) after finding that they—unlike “Julián Bolívar”—were not “pure” paramilitaries.

The court has decided that those who are more “illegal armed group member” than “narcotrafficker” can have their narcotrafficking either pardoned or rolled into their existing, lighter, sentences for human rights crimes.

But the process for doing this has been messy, requiring numerous deliberations and appeals for each case, and leaving unclear how to handle extradition requests from the U.S. government. Applied to dozens or hundreds of cases of illegal armed-group leaders, this case-by-case process gets exponentially messier. It doesn’t scale.

FARC leaders, nearly all of whom face drug trafficking charges, are not going to agree to demobilize under these circumstances. The current offer—“your drug trafficking crimes and extradition will be determined on a case-by-case basis through years-long judicial processes”—is far from compelling.

The guerrillas will want stronger guarantees, on the premise that it is easy to distinguish between a longtime guerrilla leader and a “pure” narcotrafficker. (That line was much blurrier with the paramilitaries.) President Santos’s statements indicate he is trying to provide those guarantees, adjusting the law in a way that provides clarity. That eventual law will be enabling legislation within the Legal Framework for Peace, a constitutional amendment approved in 2012.

Then, the challenge will be to avoid adjusting the law so broadly that all narcotrafficking gets classified as a “political crime.” The world won’t stand for a Colombian law that allows organized crime figures, including those who have done business with the FARC, to receive leniency because of a law designed to deal with guerrillas’ past crimes.

Designing that sort of law is up to Colombia’s Congress and courts, with input from the executive branch, the peace negotiators, and from countries like the United States that have a strong interest in holding drug traffickers to account but also have a strong interest in seeing Colombia at peace.

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