Since our last report on January 9, WOLA received the following cases of concern.
February 7, 2020
Since our last report on January 9, WOLA received the following cases of concern.
February 7, 2020
President Duque lays the ceremonial first brick in what will be a “Museum of Memory” honoring conflict victims. Some victims’ groups protest outside against Duque’s appointed director of the governmental Center for Historical Memory, Dario Acevedo (left), who in the past held the common right-wing view of denying the existence of an armed conflict.
February 5, 2020
January 27, 2020
January 27, 2020
Abuses including murder, forced labor, child recruitment, and rape are often committed as part of the groups’ strategy to control the social, political, and economic life of Arauca and Apure. Impunity for such abuses is the rule.
January 22, 2020
Reporters who broke some of Semana’s big recent stories about human rights abuse and corruption in Colombia’s Army tell of terrifying threats, surveillance, and communications intercepts.
January 18, 2020
The UN High Commissioner’s Colombia field office provides its estimate of human rights defenders murdered in 2019, indirectly contradicting the Duque government’s claims of a 25% decrease in such killings. (Link at hchr.org.co)
January 14, 2020
In a blockbuster scoop, the Colombian newsmagazine reveals that Army intelligence units have been hacking the communications of, following, and even threatening, Supreme Court justices, opposition politicians, human rights defenders, military whistleblowers—and even Semana’s own reporters.
January 13, 2020
A summary of the cases of concern WOLA received since November 2019 until the present.
January 10, 2020
A paramilitary group tracing its lineage back to extradited leader Hernán Giraldo is responsible for the murder of two environmentalists in the Sierra Nevada de Santa Marta region.
January 6, 2020
“Boys, girls, and adolescents in indigenous reserves and Afro-Colombian community councils are those most pursued” by the ELN and the Gulf Clan paramilitaries in Chocó.
January 5, 2020
A report to the UN Human Rights Council analyzing the risks faced by human rights defenders and social leaders in Colombia, and the Colombian government’s efforts to protect them. (Link at undocs.org)
December 26, 2019
WOLA’s Defense Oversight Director Adam Isacson talks about Colombia with WOLA Andes Program Director Gimena Sánchez-Garzoli. She explains Colombia’s four-week-old wave of social protests, the continuing challenge of peace accord implementation, and efforts to protect social leaders. Isacson and Sánchez-Garzoli talk about what they saw and heard during October field research in the historically conflictive, and still very tense, regions of Arauca and Chocó.
December 17, 2019
A May 18 New York Times article revealed an alarming shift in how Colombia’s army, under leadership that took over last December, is measuring “success” in its operations.
The article got a lot of attention because of the human rights angle, especially the possibility of a return to “false positive” extrajudicial killings. And indeed, in the runup to the Times piece, Colombian media outlets had begun relaying reports of military personnel being more aggressive with civilians.
But the danger, and the counterproductivity, of this new policy go beyond human rights. The changes at the top indicate a return to “body counts” as the Colombian military’s main measure of success.
That’s a failed and discredited approach, which most of us thought had long been buried. But the right-wing government of President Iván Duque has dug it up. With a new cohort of commanders who rose during the “false positives” period, the old ways have come roaring back. Times reporter Nick Casey relayed what he heard from military officers who came forward to voice concern:
[A] major shift took place, they say, when [Army Commander] General [Nicacio] Martínez called a meeting of his top officers in January, a month after assuming command of the army.
… After a break, the commanders returned to tables where they found a form waiting for each one of them, the officers said. The form had the title “Goal Setting 2019” at the top and a place for each commander to sign at the bottom.
The form asked commanders to list the “arithmetic sum of surrenders, captures and deaths” of various armed groups for the previous year in one column, and then provide a goal for the following year.
Some of the commanders seemed confused — until they were instructed to double their numbers this year, the officers said.
In the post-peace accord period, Colombia’s military has identified several internal enemies as national security threats: the ELN guerrillas, FARC dissidents, the “Gulf Clan” paramilitary network, and smaller, regional groups. Together, they total over 10,000 fighters, plus support networks.
But when Colombia’s forces take out a leader, kill several fighters in combat, or convince some to demobilize, nothing really happens. The territories where these groups operate continue to be ungoverned.
Roads are scarce, and paved roads are unheard of. So are land titles. There is probably no connection to the electrical grid. Post-primary schools are distant. Residents report going months or years without seeing a non-uniformed representative of national or local government. The idea of going to the judicial system to resolve a dispute is beyond laughable: many municipalities (counties) have neither judges nor prosecutors.
In that environment, a military unit that comes in seeking high body counts comes away with two results. First, a terrorized population whose distrust of government is greater than before. And second, new armed groups—or other elements of the same armed groups—filling in the vacuum and taking over the territory’s illicit economy. Within weeks, a new commander, a new group or groups, or several warring factions are profiting the same as before from drug production and transshipment, illegal mining, fuel trafficking, extortion, and other income streams. A high “body count” changes little on the ground.
Militaries have known this for a while. For situations like rural Colombia’s, they’ve discarded “body counts” some time ago, and developed a whole field called “stability operations.” Here’s what the U.S. Army’s Stability Operations manual says about how security forces should measure “success”:
Throughout U.S. history, the Army has learned that military force alone cannot secure sustainable peace. A comprehensive approach is required, as well as in-depth understanding of an operational environment. Stability ultimately aims to establish conditions the local populace regards as legitimate, acceptable, and predictable. Stabilization is a process in which personnel identify and mitigate underlying sources of instability to establish the conditions for long-term stability. Therefore, stability tasks focus on identifying and targeting the root causes of instability and building the capacity of local institutions.
Instead of asking “how many enemies did we take out,” then, the question is more like “can the government do what a government is supposed to do in the territory, and does the population feel that this is a good thing that is making their lives better?”
For too long, Colombia’s military measured its success with body counts. This culminated, most tragically, in the “false positives” scandal that broke in 2008. It turned out that soldiers, seeking to earn rewards and be viewed as successful in a “body count” climate, ended up killing thousands of innocent civilians, at times buying the cadavers from paramilitaries and criminals.
The measures of success started changing in the late ‘00s, near the end of then-President Álvaro Uribe’s second term. Defense Minister Juan Manuel Santos and Vice-Minister Sergio Jaramillo, working with David Petraeus-era U.S. military officers who’d been burned by the failures of the Iraq war, moved toward the second way of measuring success. They developed “territorial consolidation” metrics based on violence indicators, government presence, and the population’s access to basic goods. “Consolidation of territorial control,” read a 2007 Defense Ministry document,
shall be understood as a scenario in which the security provided by the security forces guarantees that the state may make public order prevail, and allow all institutions to function freely and permanently, so that citizens may fully exercise their rights.
They didn’t quite succeed at that: after some notable initial gains, the “Consolidation” effort petered out by 2013 or so for lack of political support, and the civilian part of the government usually failed to show up behind the soldiers. Still, as president, Santos named armed forces chief Gen. Alberto Mejía, who developed a new military doctrine putting many of these new success measures at its core, including in the Army’s 2017 “stabilization” manual:
The objective of stability is to reduce the level of violence; toward that goal the military forces carry out operations mainly characterized by supporting the functioning of government, economic, and social institutions, and general adherence to local law as, rules, and norms of behavior.
Then, together with Jaramillo as peace commissioner, Santos negotiated a peace accord committing the government, once again, to try to “enter” the countryside, often for the first time. This comes through most strongly in the 2016 FARC peace accords’ first chapter on “rural reform.”
[N]ational plans financed and promoted by the state must be set up with a view to achieving the comprehensive rural development that will provide public services and goods, such as for education, health, recreation, infrastructure, technical assistance, food and nutrition, inter alia, which promote well-being and a dignified way of life for the rural population – girls, boys, men and women.
A military commander seeking success metrics like these would be measuring miles of road paved, children able to attend school, hectares of land titled, and poll data showing perceptions that the government has become more responsive and accountable. The commander would NOT be asked to fill in forms indicating how many fighters the unit would kill or otherwise “neutralize” in the coming year.
It’s not at all clear why Colombia’s Defense Ministry would want to take such a big step backward. A partial explanation could be Colombia now having a right-populist government that, because it represents large landholders’ interests, doesn’t place a priority on reforming rural areas. Perhaps, too, the Colombian military’s Southern Command counterparts have stopped communicating the “stability operations” vision, as the U.S. Defense Department’s current strategy now emphasizes great-power conflict over “small wars.”
But that’s not enough to explain this misstep. It could be something much simpler. Maybe the new high command just lacks imagination, and wants to go back to doing what they know—whether it works or not.
June 2, 2019
Arrested FARC leader Seusis Pausias Hernández alias Jesús Santrich remains in Bogotá’s La Picota prison, where he is continuing a hunger strike that began after his April 9 arrest. He agreed to receive medical attention, but only from “trusted personnel.”
Colombia’s judicial system—both the transitional system set up by the FARC peace accord and the regular criminal system—are awaiting a formal request for Santrich’s extradition from the U.S. Justice Department’s Southern District of New York. That is where Santrich was indicted on April 4 to face charges of conspiring with Mexican traffickers to send 10 tons of cocaine to the United States.
The Colombian investigative website La Silla Vacía reported that three people with whom the site consulted,
(a journalist who has covered narcotrafficking for decades, an investigator who is an expert on the issue, and a lawyer who used to defend narcos), said that upon viewing the evidence, they were convinced that the case is not a fake setup.
… What they do believe is that it looks like “entrapment” by the DEA, which over several months put together an operation with undercover agents in order to catch someone in the act who believed he was negotiating with narcos.
Santrich’s closest ally in the FARC leadership, Iván Márquez, told an interviewer that until the jailed ex-guerrilla leader is freed, Márquez will not take his seat in Colombia’s Senate. (The peace accord gives the FARC five seats in each chamber of Colombia’s Congress for eight years, starting when the new session begins in July.) “How can I go on July 20 and be a senator… when they could go and tell me I’m a narcotrafficker? …What I’m saying is very hard because it means the failure of the peace process in Colombia.”
Márquez, who was the FARC’s lead negotiator in the Havana peace talks and is often referred to as the group’s number-two leader, was elected to Congress and served briefly during a failed 1980s FARC process. He left Bogotá in mid-April, relocating to a former demobilization site in a rural zone of his native department of Caquetá. If Márquez does not serve in the Senate, his seat will go to Israel Alberto Zúniga alias Benkos Biojó, the former commander of the FARC’s 34th front in Chocó and Urabá.
Márquez’s angry statements about the Santrich situation contrast with calls from other top FARC leaders, who have called for calm. “The moment we signed the accord, we accepted the constitution and the laws,” reads a statement from top FARC leader Timoleón Jiménez, “and it is our duty to act according to them. Whoever does not should prepare for the consequences, and it would be difficult for them to ask the [FARC] party’s solidarity.” A source in the FARC told El Tiempo of “alarm” within the organization about apparent divergence between the group’s hardliners, like Márquez, and moderates.
A key hardliner, Hernán Darío Velásquez alias “El Paisa,” abandoned the Caquetá demobilization site where he was living (Miravalle, the same site where Márquez is now), conditioning his return on Santrich’s freedom. During the conflict, Velásquez headed one of the FARC’s most deadly and powerful units, the Teófilo Forero Column active in south-central Colombia and occasionally in cities. According to La Silla Vacía, this unit carried out the 2003 El Nogal bomb attack in Bogotá, which killed 36 people; the 2001 kidnapping of 12 from a building in Neiva, the capital of Huila; the 2003 “house bomb” that killed 6 in Neiva; the 2000 assassination of congressman Diego Turbay; the 2002 airplane hijacking and kidnapping of a senator that triggered the end of the 1998-2002 peace process; and the 2012 bomb in Bogotá targeting former interior minister Fernando Londoño.
Interior Minister Guillermo Rivera pointed out that “El Paisa” is free to leave anytime. “The Territorial Training and Reincorporation Spaces are not a prison. People can come and go freely.” This is true at least until they are called to stand trial for war crimes in the new transitional justice system, the Special Jurisdiction for Peace.
“Alias ‘El Paisa’ was always resistant to the peace process,” Angela Olaya and James Bargent of the Colombian Organized Crime Observatory told La Silla. “It wouldn’t be strange if he finally dropped out of the process.”
“Of course he is in the process,” Iván Márquez told an interviewer.
Don’t you see how he’s working? I’m going to take his place while I’m here [at the demobilization site]. …I would like to keep seeing “Paisa” in this situation, and not in another, not in a confrontation. He isn’t thinking of war, he’s not thinking about being a dissident. He’s thinking of Santrich being freed and in resources coming to finance productive projects.
On April 20 and over the following weekend, Colombian authorities arrested between 33 and 42 individuals, including social leaders and former municipal officials, in the southwestern department of Nariño and the city of Cali. The Prosecutor-General’s office (Fiscalía) is charging many with being part of the ELN or its support network. Some have been released for lack of evidence.
Perhaps the best known of the arrested was Harold Montúfar, who served between 2004 and 2007 as mayor of Samaniego municipality in Nariño. One of several former Samaniego mayors or officials arrested, Montúfar was known as an active promoter of peace during, and since, his tenure. Samaniego has long been an ELN stronghold, and is notorious throughout the country for the large number of guerrilla-laid landmines scattered throughout its territory. Montufar has led efforts to make humanitarian demining possible, an effort that requires dialogue with local ELN leaders. In addition, he promoted a Local Peace Pact that brought important reductions in violence to the Samaniego region. Montúfar had traveled to Quito, where the government’s peace negotiations with the ELN until recently were taking place, to promote the idea of reviving the Pact.
“Activists who know Montúfar’s social and political trajectory” told Verdad Abierta “that at least since 2000, authorities have tried to link him to the ELN guerrillas.” Samaniego priest Jhon Fredy Bolívar told La Silla Vacía,
“Here anybody who doesn’t have a link to those people [the ELN] can’t live in Samaniego, because they enter houses, demand things, take food and basic goods, it’s part of the dynamic of the conflict we’re living through. Farmers, church, officials, everyone ends up getting tied to the conflict in some way because you help, or if you don’t help you must prepare for the consequences.”
Montúfar was freed later in the week.
Still in custody is Sara Quiñones, a leader of the Alto Mira y Frontera Community Council, an Afro-Colombian community settlement in Tumaco, Nariño, along the Ecuador border. She was arrested in Cali, where she had been taking refuge from death threats, along with her mother, Tulia Marys Valencia, who was also arrested. The Fiscalía accused Quiñones of being an ELN member since 2013, “in charge of financial tasks directed at subversive activities and narco-trafficking.” It accused her mother of being a presumed “guerrilla militia member” since 2013 “who has used her social work to carry out intelligence and recruitment tasks.”
Quiñones’s and Valencia’s arrests come just weeks after the Inter-American Human Rights Commission, on March 11, ordered protective measures for Quiñones and other members of the Alto Mira y Frontera leadership. Verdad Abierta reports that they are now being subject to cruel treatment.
Those present at this judicial hearing expressed their concern about the poor treatment that Sara Quiñones and her mother are receiving: “They’re strong, but they want to break them with the conditions. While some women are placed in a jail in the south that is newer with better conditions, they ended up in a station in the center of Cali, the most disgusting of all.”
The chief of the Fiscalía’s organized crime unit, Claudia Carrasquilla—who has a past record of going after paramilitary organizations—responded to questions with tough talk, as Verdad Abierta reported.
“It’s an investigation that had been ongoing in the Organized Crime Directorate against the ELN’s Southwestern War Front, in which it was evident that some former public officials and leaders were possibly at the ELN’s service, above all in the management of support networks and finances,” Carrasquilla explained.
“We knew that this was a complex process, that was going to generate what it is generating, the disagreement of the majority of human rights collectives, precisely because the majority of the arrest orders went against that type of people. But we wanted to go very strong, with very compelling elements, to be able to try them.”
The Black Communities Process (PCN), a grouping of Afro-Colombian organizations especially active in the Pacific region, condemned the arrests of Quiñones and Valencia as “judicial false positives.” PCN leader Charo Mina told Contagio Radio, “It’s a criminalization process, and it’s what we’re used to seeing from the Fiscalía, showing its opposition to the ELN dialogues.”
The transitional justice system set up by the peace accords to try war crimes, the Special Jurisdiction for Peace (JEP), took another step toward being able to function fully. The last piece of legislation needed to establish it is now before Congress. Justice Minister Enrique Gil Botero presented a 76-article bill, drafted with input from the new system’s judges, that would become the JEP’s Procedural Law.
This is the third piece of needed legislation. Colombia’s Congress approved the first, a constitutional amendment, in May 2017, and it received Constitutional Court approval in November. The second, the statutory law governing the JEP’s functioning, passed the Congress in late November and the Constitutional Court is still reviewing it. Congress will also have to pass the new bill—which is far from guaranteed before the next session begins on July 20—and it will probably have to undergo court review.
These long delays occur while 6,094 former guerrillas, 1,792 current and former armed-forces members, 44 former civilian officials, and 6 private citizens await judgement in the JEP for alleged involvement in serious human rights crimes. Still, even without all laws in place, the JEP has been able to start working, getting established and beginning written reviews of case files. It has stumbled in recent weeks, though, as internal disagreements over structure and procedure turned nasty, resulting in the April exit of tribunal administrator Nestor Raul Correa.
Comuna (Ward) 13, a complex of poor neighborhoods on Medellín’s western edge, became nationally known in 2002 when recently elected president Álvaro Uribe ordered an intense military offensive there against guerrilla militia groups. Operations Mariscal and Orion ejected the militias (essentially, guerrilla-tied gangs) with significant loss of life, only to end up replacing them with paramilitary-tied gangs, some of whom participated in the operations alongside the troops.
The Army was back in Comuna 13 this week, amid a crime wave. 300 soldiers are patrolling the neighborhoods in an effort to weaken violent gangs that residents call “combos” and local officials call “ODINs” (Organizaciones Delincuenciales Integradas al Narcotráfico, Narcotrafficking-Linked Criminal Organizations). Fighting between gangs in recent days had killed four people, confined people to their houses, and shuttered schools.
El Espectador explains the complicated situation:
As Medellín Security Secretary Andrés Felipe Tobón explained it, two illegal groups are present in the Comuna: La Agonía and El Coco, which have not only occupied territory for years, but are also aligned with two other larger, more powerful armed structures: the ODIN Caicedo and the ODIN Robledo. Carlos Pesebre formed part of the second group, and until recently it was under the command of Cristian Camilo Mazo Castañeda, alias Sombra, who was captured last Saturday in El Peñol municipality. As a result, the authorities’ conclusion is that the fighting this week responds—in large part—to ODIN Caicedo taking advantage of the momentary lack of leadership in ODIN Robledo to attack its structures.
Transportation companies—which are routinely extorted by gangs—have been especially targeted. A public bus was set on fire in the Calasanz neighborhood. Medellín Mayor Federico Gutiérrez blamed “Juancito,” the 45-year-old leader of the “Betanía” combo, for the threats and attacks on bus companies.
Authorities dismissed as fake several flyers circulating in parts of the city declaring a curfew enforced by the “Gaitanistas,” one of the names used by the Urabeños neo-paramilitary group. Still, residents of the marginal neighborhoods tell reporters that they are restricting their movements.
Medellín Police commander Gen. Óscar Gómez Heredia told El Colombiano that his force has 320 men patrolling the neighborhoods, in addition to the soldiers. But a reporting team from the Medellín daily wrote, “We passed through eight neighborhoods of Comuna 13 yesterday morning. In all of the zone, El Colombiano only found two police patrolling in the La Torre sector, and several soldiers posted alongside a military base.”
A humanitarian crisis continues in the Catatumbo region of Norte de Santander department, near the Venezuelan border. Home to the country’s second-largest concentration of coca crops, this neglected territory has strong social organizations and a historic presence of FARC, ELN, and EPL guerrillas.
The latter group (Popular Liberation Army), which is only active in Catatumbo, has been enforcing an “armed stoppage” for about two weeks, preventing road travel, confining people in their communities, and forcing businesses and schools to close. In the face of emphatic protests from communities faced with the possibility of running out of food, the EPL announced a 60-hour pause in its stoppage, from the morning of April 24 to the evening of the 26th.
The April 23 announcement read, “our guerrilla organization is open to dialogue to solve the differences between the two guerrilla organizations.” This refers to fighting that broke out between the EPL and ELN around March 14, and has since killed about 30 people and forced over 4,600 to displace.
The government calls the EPL “Los Pelusos,” and considers them a regional organized crime structure. The organization calls itself an insurgent group, organized as the Libardo Mora Toro Front, that can trace its lineage to a Maoist guerrilla organization that mostly demobilized in 1991. The EPL remnant has been growing, and estimates of its current size range from 130 to 400-500 combatants, which would make it at least as large as the ELN contingent active in Catatumbo. The EPL is also regarded as the wealthiest illegal group in Catatumbo. Its longtime leader alias “Megateo”—killed by the security forces in late 2015—built a vigorous operation trafficking cocaine across the Venezuelan border.
Verdad Abierta explained the EPL’s origins in a lengthy article published this week. It reports that the Libardo Mora Toro Front has been in Catatumbo since early 1982, where it coexisted alongside the FARC’s 33rd Front and two ELN fronts. As soon as it decided not to participate in the EPL’s late 1980s-early 1990s peace process, the Front involved itself in drug trafficking. After the 2015 killing of “Megateo,” alias “David León” took over leadership. He emphasized ideology and growth through recruitment until his September 2016 capture.
Since then, the EPL’s leadership has been in flux. “It’s gotten so that very young people arrive in power, who don’t have enough political education and who are more contaminated by narcotrafficking,” Wilfredo Cañizares of the Cúcuta-based human rights group Fundación Progresar told Verdad Abierta. “At least, that’s what the ELN members say: that they want to get the EPL out of the region because they’re tired of their mafioso way of acting, that they’ve lost their revolutionary vocation.”
Until recently, Verdad Abierta notes, “ELN guerrillas and members of the Libardo Mora Toro Front walked together through the same Catatumbo hamlets as though they were members of the same family, or at least the same organization.” They patrolled together and fought the military or paramilitary groups together. “Here in the region there were accords between guerrillas, and between guerrillas and the community: for example, not to use weapons or wear camouflage in the town centers; respect the work of social organizations; respect international humanitarian law; respect each armed group’s boundaries,” a resident of the central Catatumbo town of El Tarra told Verdad Abierta. “But the ELN and EPL mutually accuse each other of having violated those accords, of not respecting community work, of not respecting boundaries.”
The same source says much disagreement centers on the marketing of coca paste that they purchase from the region’s growers. The FARC had controlled much of this business until its late 2016-early 2017 demobilization. Competition between the ELN and EPL intensified.“The ELN pay COP$3.2 million or COP$3.1 million [just over US$1,100] per kilo of coca paste, two, three, four months at a time. On the other hand, “The Pelusos,” to win people over, started paying COP$3.5 million per kilo [US$1,242], all at once. And the ELN didn’t like that at all.”
Verdad Abierta reports that the situation has grown still more complicated with the presence of another actor in the region: intermediaries from Mexican cartels. “The Sinaloa Cartel is buying the majority of coca that’s coming out of Catatumbo. They are in the territory,” said Cañizares of the Fundación Progresar. Today, “we’re not talking about campesinos with three or four hectares, we’re talking about campesinos with more then 10 hectares of coca leaf.”
Criminal groups also make money by trafficking cheap gasoline from Venezuela, precursor chemicals, and weapons. Some specialize in refining a crude gasoline from oil siphoned from the Caño Limón-Coveñas pipeline, which passes through Catatumbo’s center. This gets used to refine coca paste from the dried leaves.
After a March 14 meeting between the two groups erupted in violence, ELN-EPL fighting has raged unabated. According to the UN Office for the Coordination of Humanitarian Affairs (OCHA), at least 90,000 Catatumbo residents have seen their ability to travel in the zone reduced or curtailed, in some places resulting in total confinement. At least 80 schools have closed their doors, leaving 45,000 kids without classes. OCHA also notes that armed-group pressure has 10 social leaders to abandon their organizations.
A leader of CISCA, a Catatumbo campesino network, noted to Verdad Abierta that some of the most violent communities are those that the Colombian government had pinpointed as priorities for implementing the FARC peace accord. “But, what has been done? Nothing. Neither crop substitution nor Territorially Focused Development Plans (PDETs). Nothing. Later, they’ll say they couldn’t do it because of the violence, even though the Accord was signed two years ago and this violence got worse only a month ago.” Cañizares of Fundación Progresar held a similar view:
“The FARC concentrated in Caño Indio [the demobilization site in Tibú municipality] and the Santos government said: now the state will arrive. And nothing. Before , when the paramilitaries demobilized in Campo Dos [Tibú], the Uribe government said: the state is arriving. And nothing. When the EPL concentrated in Campo Giles [Tibú], the Gaviria government committed to building an aqueduct for that township. Today there is no potable water. The state never arrived, but those who did come quickly were the illegal armed actors.”
This week, in response to the crisis in Catatumbo, Mariana Escobar, director of the Territorial Renovation Agency—the new entity that implements the PDETs in compliance with Chapter 1 of the Havana accord—promised to present within 10 days a “road map” for structuring PDETs in the region. And a group of 2,000 soldiers from the Army’s Engineering Brigade arrived with promises to help meet infrastructure needs in the areas of ELN-EPL fighting. Vice-President Óscar Naranjo, visiting the city of Ocaña at Catatumbo’s periphery, said that 12,000 members of the police and military are already deployed in the region.
However, Defense Minister Luis Carlos Villegas and Army Commander Gen. Ricardo Gómez Nieto angered some in Catatumbo by insisting that conditions in the zone were calm. Villegas questioned the Norte de Santander governor’s decision to suspend classes in the region’s schools, and Gen. Nieto said that after a visit he saw little evidence of war.
According to La Silla Vacía, “part of the complexity of combating both the ELN and the EPL is that their men, in their majority, are born and bred in the region.”
They were recruited there and are relatives or friends of the zone’s inhabitants. So networks of paid informants don’t work as well here as in other regions. In addition, since both groups’ guerrillas spend much of their time dressed in civilian clothing, it is very hard to identify them. And as they’re in a border zone, when they’re chased, they go to the Venezuelan side.
The non-governmental organization Somos Defensores, which monitors attacks on human rights defenders and social leaders, published its latest quarterly report. It documents a dramatically worsening situation.
Forty-six rights defenders or local leaders were murdered during January through March: one every two days. That is up from 20 in the same period of 2017. Somos Defensores categorized their work as follows:
Leaders of Community Action Boards (Juntas de Acción Comunal), hamlet or neighborhood-level advisory bodies first established in the 1960s, are heavily represented because many of their members are independent local leaders. Nine of the dead were members of a cross-cutting category: participants in coca substitution programs established by Chapter 4 of the Havana peace accord.
In 11 of the homicide cases, the report identifies the group presumed responsible. The security forces appear four times, paramilitary/organized crime groups three times, FARC dissidents twice, and the ELN twice. Thirty of the forty-six murders took place in just five departments: Cauca (8), Antioquia (7), Norte de Santander (7), Arauca (4), and Córdoba (4).
As Colombia’s slow-moving government apparatus struggles to respond to the problem, the Interior Ministry promulgated a decree that would make possible more collective protection measures for entire communities. According to Contagio Radio, the decree “seeks to create and implement an Integral Security and Protection Program for Communities and Organizations in the Territories, and define necessary measures that protect communities in an comprehensive manner.”
While briefly in Miami, President Santos paid a visit to the headquarters of U.S. Southern Command, the Defense Department body responsible for U.S. military activities in all of Latin America except Mexico, the Bahamas, and Puerto Rico. In remarks, he effusively thanked those in attendance for 18 years of military assistance since Plan Colombia was launched in 2000. He also talked up the peace process using defense-friendly language.
Any asymmetric war today ends in a negotiation, regardless of what ends up being negotiated. And that’s what we did: a negotiation that from our point of view was a cheap negotiation. With regard to what we sacrificed, compared to what they were demanding at the beginning of the process, it was practically free of cost.
…That’s something the world is applauding, admiring, and studying, and this is something that was possible thanks to the very special relationship we’ve had with the Southern Command.
Meanwhile, while testifying in Colombia’s Congress about a military corruption scandal, Defense Minister Luis Carlos Villegas and Armed Forces Chief Gen. Alberto Mejía mentioned that during the previous week, they signed a 5-year cooperation agreement with the U.S. government to combat narcotrafficking.
May 3, 2018
It will be up to Colombia’s Top Court—and Perhaps the International Criminal Court—to Undo Damage Wrought by the Congress
“What to do with the worst human rights abusers” was the most controversial part of the peace accord that Colombia’s government reached with the FARC guerrillas a year ago, in November 2017. It was unrealistic to expect the FARC’s members, who weren’t defeated on the battlefield, to turn in their weapons only to report to long prison terms for their thousands of war crimes. It was also unrealistic to expect the peace accord to dishonor the conflict’s millions of victims with a blanket amnesty. It took the accord’s negotiators 19 months to come up with a formula that balanced these two extremes.
Still, the compromises within the peace accord’s language satisfied nobody. It was vague on issues like the conditions of confinement for individuals found guilty of serious human rights violations; how guerrilla and military commanders might be held accountable for their subordinates’ actions; how ex-guerrillas might serve penalties while also being able to participate in politics; and how to hold accountable civilians who, for instance, funded paramilitary groups that went on to kill tens of thousands.
Conservative critics argued that the transitional justice system’s formula is too lenient on ex-guerrilla war criminals, as it specifies five to eight years’ “restriction of liberty” in non-prison conditions. Human rights defenders fear that even this standard might not be rigorously applied to military personnel and third-party accomplices to human rights crimes.
This vague language was improved little by a constitutional amendment that Colombia’s Congress approved in March to green-light the accords’ transitional justice system. As WOLA pointed out at the time, this amendment violated the accords’ spirit in several ways: a weak interpretation of “command responsibility,” the insertion of language that makes it much harder to prosecute third-party civilians, and continued vagueness on other questions.
During the week of November 13, Colombia’s Constitutional Court and Senate took further steps that may pacify conservative critics, but that are alarming human rights advocates and victims’ groups. On November 14, the Court handed down a unanimous ruling upholding most of the constitutional amendment that passed in March. On November 16, Colombia’s Senate—following months of procedural delays—passed its version of a law to implement the new transitional justice system, known in the accord as the Special Peace Jurisdiction (JEP, by its Spanish initials). On November 27, Colombia’s House of Representatives passed its version of the law that would implement the JEP, which in most respects is similar to the Senate’s, and a day later the two chambers reconciled their versions into a single piece of legislation.
WOLA, along with most of our partners in Colombia’s human rights and victims’ rights communities, welcomes the long-delayed approval of the JEP, which is the backbone of the peace accord. Expectations are high: as of November 17, 3,491 ex-guerrillas and 1,714 current and former security-force personnel had signaled their intention to be tried within this new system.
However, we are deeply troubled by the Constitutional Court’s and the legislature’s actions. They deform some of the key tenets of the peace accord. They risk allowing too many top human rights violators to avoid accountability, and denying too many conflict victims their right to truth and dignity. And they may set Colombia on a collision course with the International Criminal Court.
The process is not over yet. The Constitutional Court must review this law’s constitutionality. The International Criminal Court may act if it appears that the JEP will allow war criminals to avoid punishment. So might the Inter-American human rights system.
WOLA urges these bodies to act to address the following concerns about the transitional justice system.
As mandated by the peace accord, an independent five-member panel of Colombian and international jurists selected the judges who will preside over JEP tribunals. They fulfilled this task efficiently and transparently. As Notre Dame University’s Kroc Institute noted in a November monitoring report, the panel “established an important balance between interests in academia, the international community and social sectors.” Of the 38 magistrates and 13 alternates chosen, more than half (28) are women and 8 are Afro-Colombian or indigenous. Both proportions resemble those of Colombia’s overall population, the first time that has been true of any Colombian body with real decision-making power.
The implementing law, however, would summarily disqualify at least 15 of the chosen judges. Language would ban any magistrates who, in the past five years, have brought cases against the government, participated in peace negotiations, or taken part in any case related to the armed conflict.
This new requirement—not at all foreseen in the peace accord—was promoted by legislators from Cambio Radical, a party in President Santos’s ruling coalition tied to many regional political bosses and large landholders. Led by former vice-president and leading presidential candidate Germán Vargas Lleras, Cambio Radical has broken with Santos and mostly withdrawn its support for the FARC accord.
The proposed disqualification of judges is “serious and concerning because it is a discrimination against the legitimate practice of law, and against people who claim reparations in relation to human rights violations,” said Gustavo Gallón, the president of the Colombian Commission of Jurists and member of the accords’ Security Guarantees Commission.
It will be up to Colombia’s Constitutional Court to delete this language when it reviews the law, as it is required to do, in coming months. “We believe that the Constitutional Court would throw it out,” Interior Minister Guillermo Rivera said. Rodrigo Uprimny of the legal think-tank DeJusticia is certain that’s what will happen:
“The Constitutional Court has already established that it violates due process to create new requirements or prohibitions to block a person who has already been chosen for a position. …This disqualification from the Senate will, therefore, have no effect. It was just a clumsy maneuver by some senators. But the issue should be taken seriously, as it exhibits a dangerous and unacceptable stigmatization against human rights defenders.”
All who care about “putting victims at the center” of the peace accord must hope that Rivera and Uprimny are correct.
As long as they tell the JEP tribunals the full truth about their participation in war crimes, and make reparations to victims, defendants can be sentenced to up to eight years of “effective restriction of liberty.” This is not prison: confinement is to occur in a space no larger than one of the village-sized cantonment zones where the FARC disarmed, but the accord doesn’t specify the conditions within that space. The peace accord leaves that up to the judges in each case. Individuals will also be able to leave these spaces to carry out activities defined as reparations to victims.
How austere or luxurious, then, will conditions be within the “restricted liberty” zones? This thorny question is a “hot potato,” write Juanita León and Juan Esteban Lewin of Colombia’s La Silla Vacía investigative website: no institution wants to be forced to specify the answer. The Constitutional Court’s November 14 decision passes the “potato” to the Congress, requiring its JEP implementing law to “typify” the sanctions that war criminals would receive. However, the implementing law does not do this: it leaves the conditions of confinement up to the tribunal judges.
As WOLA noted with alarm in March, the constitutional reform establishing the JEP watered down the definition of “command responsibility”—the extent to which leaders are liable for crimes committed by those below them in the chain of command—“in a way that almost certainly runs afoul of Colombia’s international human rights commitments.”
The Constitutional Court’s November 14 decision upheld that definition. As things stand now, Colombian military commanders can avoid accountability before the JEP by contending that they didn’t know about their subordinates’ illegal actions. As it is almost impossible to prove what a commander did or did not know at a given time, commanders at the level of battalion and higher are likely to avoid accountability. The constitutional amendment does not apply this softer standard to ex-guerrilla leaders, though: they will be liable if they “should have known” about the crimes committed by those they commanded.
“Should have known” is the standard set forth in Article 28 of the Rome Statute, the founding document of the International Criminal Court in The Hague, which merely requires that the commander have had enough control of subordinates to prevent the abuse.
As Colombia is a signatory to the Rome Statute, failing to apply the “should have known” standard for its security forces may run afoul of the Court, which may decide to act against individual Colombian commanders if it determines that Colombia isn’t doing enough on its own to hold them accountable. By applying a weaker standard, Colombia’s Constitutional Court “may open the door for international tribunals to formally investigate high-ranking military commanders, government officials, or guerrillas,” according to the Colombian daily El Espectador.
The International Criminal Court’s prosecutor, Fatou Bensouda, has been unambiguous about this. The JEP constitutional amendment’s definition, she wrote in October, “frustrates the object of command responsibility in international law” and means that “people with the material ability to prevent or to punish subordinates’ crimes, and who may have knowingly omitted doing so, could go unpunished.” It is true that the ICC prosecutor is not the same thing as the Court itself. But since the language, in its current form, makes it harder for those who suffered at the hands of the armed forces to receive justice than for those who suffered at the hands of the FARC, a future clash with the ICC is a strong possibility.
The weak definition of “command responsibility” is a direct result of pressure from Colombia’s powerful military. Hours before the peace accord was signed on November 24, 2016, the Colombian government quietly introduced, and demanded that the guerrillas accept, a key change to page 164 of its text: it eliminated a reference to the Rome Statute’s Article 28 as the standard for “command responsibility.” It did so to at the vehement insistence of the armed forces, whose commanders insist that Colombia acceded to the Rome Statute with a specific reservation against Article 28. The Senate’s final debate on the JEP-implementing law took place with Colombia’s defense minister and armed forces’ chief watching every moment in person. As the Colombian daily El Tiempo reported, “For these two and their advisors, it is vital that everything related to military commanders’ responsibility for subordinates’ crimes, among other norms, remain intact without even a single comma being introduced.”
During the most intense years of Colombia’s armed conflict—the mid-1990s to the mid-2000s—guerrillas carried out the majority of kidnappings, child recruitment, indiscriminate bombings, and use of child combatants. However, they did not commit the largest number of homicides and massacres of civilians during this period. That grim distinction belonged to pro-government paramilitary groups, which were frequently armed and backed by civilians: landowners, right-wing politicians, organized crime figures, and some members of the security forces.
After the United Self-Defense Forces of Colombia (AUC) paramilitary umbrella organization demobilized in 2006, its members underwent their own transitional justice process, known as “Justice and Peace,” involving full confessions. These confessions revealed the identities of about 13,000 Colombian non-combatants who allegedly aided and abetted the paramilitaries’ murderous offensives.
Some of these 13,000 may have been extorted into supporting the paramilitaries; others may have done so willingly, for reasons ranging from counterinsurgency to greed. But we still don’t know what happened, because Colombia’s regular criminal justice system failed to act. The transitional justice system passed these names to Colombia’s criminal prosecutors, who did not follow up.
The FARC peace accord sought to rectify this with an innovative provision requiring that civilians credibly alleged to have “authored” war crimes appear before the JEP, where they might benefit from lighter sentences in exchange for full confessions and reparations to these crimes’ victims. This provision held the promise of identifying, and thus finally dismantling, paramilitary support networks around the country. But it also alarmed politically powerful individuals throughout Colombia’s provinces.
In March, Colombia’s Congress responded to this alarm: its constitutional amendment establishing the JEP gutted the requirement that civilian accomplices participate. Non-combatants now need only appear before the post-conflict justice system “voluntarily.” The assumption—so far proven wrong—is that the regular justice system might uncover enough evidence to make real the threat that these individuals suffer real penalties—decades in prison—for their crimes. They would then see the JEP as the best option for themselves, and do right by their victims..
However, powerful civilian third parties generally haven’t felt threatened by Colombia’s regular justice system. As a magistrate in the paramilitaries’ “Justice and Peace” transitional justice process, Rubén Darío Pinilla sent information about many civilian collaborators to the regular criminal justice system. He told Colombia’s Verdad Abierta:
“The Court’s decision [to uphold civilians’ ‘voluntary’ participation] is serious, because it implies that there is going to be some risk that civilians who participated in a determining manner in the commission of war crimes and crimes against humanity may remain in impunity. And that risk exists because the names sent over from the Justice and Peace courts, which exceeded 13,000, haven’t generated the investigations that should be expected, even though there is evidence not just of participation, but also of responsibility, of people in sectors of business, mining, industry, agro-industry, and cattle mining, as well as of public officials, in cooperation with paramilitary groups.”
As the law stands right now, the JEP will have little opportunity to hold these individuals accountable or to ensure that their victims receive the truth, justice, and reparations that are their due. “The businessmen who financed the paramilitaries can breathe easy,” write León and Lewin in La Silla Vacía. “The ‘gray men’ that investigator Luis Jorge Garay talks about when describing those people who live in ‘legality’ but who are bridges to illegal groups, and those who make it possible, when a capo is taken down, for a new one to take his place the next day.”
If this provision stands, writes columnist María Jimena Duzán in the Colombian newsweekly Semana, the burden will fall on chief prosecutor Nestor Humberto Martínez, whose office tries cases in the regular criminal justice system. If he doesn’t act, the ICC might. Duzán writes:
“Martínez will have to investigate what until now he has not wanted to investigate. If he doesn’t do it, he is going to have the International Criminal Court on his back, which can enter with the argument that civilian third-parties who participated in the conflict are protected with impunity and that victims are being denied justice.”
The JEP is meant to offer lighter penalties for war crimes committed in the context of Colombia’s armed conflict. It remains unclear whether this should apply to cases in which soldiers, often conspiring with common criminals, murdered civilian non-combatants, then presented them as combat kills in order to benefit from rewards given for high “body counts.” This happened between 3,000 and 5,000 times during the armed conflict, especially between 2002 and 2008, in a phenomenon known in Colombia as the “false positives scandal.”
WOLA agrees with Jorge Eliécer Molano, a lawyer who represents several “false positive” victims, that most “false positive” killings should not be considered conflict-related, and thus should remain in the regular, criminal justice system with long penalties for the soldiers and officers involved. Molano explained to El Espectador:
“First, the ‘false positives’ owed more to personal purposes (like getting leave time, medals, commendations, promotions, or in many cases, financial rewards). Second, they have no relation to the armed conflict: the armed conflict was used as a pretext for killing civilians who had nothing to do with it. Additionally, many of the cases deal with people presented as common criminals, which undoes much of these crimes’ purported ties to the armed conflict.”
The peace accord and subsequent legislation so far leave it up to tribunal judges, on a case-by-case basis, to decide whether a “false positive” murder is conflict-related or not. But they do not offer detailed criteria to guide judges’ decisions. This remains up in the air, even as criminal-court judges have suspended some trials for years-old false positive cases out of an unsubstantiated belief that they will end up going to the JEP.
As a condition for turning in weapons, the FARC’s leadership insisted not only on avoiding long prison terms, but on retaining the ability to hold, and run for, political office. There is an obvious tension, though, between holding office and undergoing a JEP-mandated “restricted liberty” for war crimes. The Congress and Court have begun moving to resolve this tension, but the formula so far remains awkward.
The way it stands right now is that ex-guerrillas may run for office and hold political positions before the JEP has decided their guilt or innocence for war crimes. They merely need to sign a commitment stating their intention to “submit to the JEP.” FARC candidates for Colombia’s March 2018 legislative and May 2018 presidential elections, then, have a “green light,” as the JEP won’t even begin to act until well after these elections. So do the five FARC senators and five FARC House members who will get automatic seats in Colombia’s Congress for eight years regardless of the vote outcome.
Once the JEP sentences them to “restricted liberty,” however, the next steps are less clear. The court ruling states, “the JEP will determine the compatibility of political participation with the sanctions it imposes on the ex-combatants.” This may give the JEP the ability to decide whether a FARC political candidate can be blocked from participating in politics, if his or her sentence is incompatible with doing so. (For instance, if a JEP judge sentences maximum FARC leader “Timochenko” to perform demining in Putumayo, he can’t serve in Congress hundreds of miles away in Bogotá.)
On the other hand, this sentence could also be interpreted as giving the JEP the ability to issue penalties that would allow guilty ex-FARC leaders to participate in politics. This raises the bizarre possibility of an ex-guerrilla leader leaving his place of confinement in the morning, spending the day in Congress making laws, then returning to his place of confinement the evening.
Even if the JEP’s implementing law goes into effect by the end of the year, we cannot expect the first trials to begin for some time. As was the case for the JEP constitutional amendment, the implementing law must undergo a thorough review by Colombia’s Constitutional Court. This will not be a speedy process. “It won’t be sanctioned before April or May of next year,” predicts Prosecutor-General Néstor Humberto Martínez.
After that, it will take months to hire staff and build or re-purpose space for the JEP tribunals and other chambers to carry out their proceedings. We can optimistically expect to see the first trials begin during the latter part of 2018. Pessimistically, in 2019.
In the meantime, over 5,000 defendants remain in a legal limbo, unsure how the next eight-plus years of their lives will play out. This uncertainty could prove too much for many ex-guerrillas, especially former mid-level commanders, who may be tempted to give up on the process. It would be tragic to see more of them return to the jungle, joining the growing ranks of armed “dissident” groups that are taking control of territory and drug-trafficking in several former territories of FARC influence.
The process of crafting the JEP is not over. Opportunities remain to address these concerns, avoid unwanted outcomes, and iron out confusing provisions. Next year, when it rules on the implementing law, we hope that Colombia’s Constitutional Court will address the concerns laid out here and align the JEP more fully with the spirit of the peace accords. If not, the International Criminal Court may have a lot to say in coming years about command responsibility and persistent impunity for civilian accomplices.
These institutions must do their jobs. A lasting peace, with real guarantees for the conflict’s victims, demands it. WOLA and other human rights advocates worldwide will be watching closely.
November 30, 2017
If implemented accordingly, the peace accord is has potential to further a number of promising social reforms. Among other things it is designed to lead to rural land reform, guarantee political participation for historically-excluded political sectors, facilitate the reincorporation of FARC guerrillas into civilian life, deepen consultation with marginalized ethnic groups, provide alternatives to rural farmers who grow coca, and fulfill the rights of truth, justice and reparations for millions of victims. But these goals necessarily clash with certain interests, and the possibility of achieving them is leading to illegal armed groups’ attacks against activists. Worst affected are members of newer political movements like the Marcha Patriotica, ethnic minority activists and community organizers in rural areas. The Colombian government must prevent further harm from taking place to these activists. Perpetrators of these acts should be prosecuted and brought to justice immediately. If these attacks continue, the peace accord with the FARC and nascent peace talks with the National Liberation Army will be seriously undermined. Ultimately, the success or failure of a lasting peace in the country will depend on the government’s ability to ensure justice for these crimes.
The Statistics Alone are Sobering, But the Story is Deeper
Unfortunately, the news on the ground has been bleak: a number of Colombian organizations report that since September 2016, the security situation faced by civil society activists has been rapidly decreasing. While the numbers differ depending on multiple definitions of human rights defenders, activists and community leaders, what is certain is that all reports point to the problem getting worse. Somos Defensores reports that from January to December of 2016, 80 social leaders were killed. The majority of these murders took place in Cauca Department. INDEPAZ, on the other hand, reports that during that same period, 117 social leaders and human rights defenders were killed. They also add that in Valle del Cauca (5), Cauca (43), and Nariño (9) departments, a combined total of 57 activists were killed (two thirds of the total). The UN High Commissioner for Human Rights’ office, meanwhile stated that since the November 24, 2016 signing of the accord, 13 of the 53 killings of civil society figures recorded by that office in all of 2016 took place.
The trend has not gone entirely unnoticed. On November 2, the Inter-American Commission on Human Rights (IACHR) issued a statement of concern regarding the killings of human rights defenders in Colombia in 2016. The Commission found that while the numbers of death threats and intimidation faced by human rights defenders are down from 2015, the number of actual killings is up. It also urges Colombia to include in its investigations the premise that these individuals were murdered due to their work defending human rights. On February 7 the IACHR condemned the killing of another 7 people in 2017. It is particularly concerning that five of the seventeen killed were ethnic minorities, including two women.
The impact of murders, attempted murders, threats and aggression against activists has a disproportionate impact on indigenous and Afro-descendant peoples. This disproportionate impact is true numerically speaking–one source states that 30 percent of those civil society activists killed are ethnic minorities—as well as sociologically. Such killings cause disastrous effects on ethnic minorities’ collective, organizational processes and their ability to work together to advocate for their land, ethnic and cultural rights. .
In addition to the threats faced by community leaders, we also see illegal armed groups targeting ethnic leaders’ extended family members. Given this, it is necessary that a differentiated approach is taking when creating prevention and protective measures for these leaders and their communities. Constitutional Court Orders 004, 005 and 092 on Afro-Colombian, Indigenous and Women IDPs contain useful information on how to prevent the displacement of key communities. In many circumstances collective protective measures are required rather than individual ones. With U.S. Embassy support the Association for Internally Displaced Afro-Colombians (AFRODES) worked to help develop collective measures for Afro-Colombian leaders and displaced communities at risk in urban and rural environments. However, Colombian authorities never followed through with implementing what was required. Access to justice for these communities is often more challenging, so it is the clear responsibility of the government to break down the barriers that exist for ethnic groups’ entry into the judicial system.
When it comes to the exact number of killings and attacks against Afro-descendant and indigenous leaders and communities, there are, generally speaking, no comprehensive statistics available. The reasons for this are many: institutional racism, underreporting by ethnic minorities due to fear of reprisals, corruption of local officials and the complex geographical dynamics found in the rural and urban areas they live in. Given this, it is likely that the problem is worse–and less addressed–than what is actually reported. When looking at the Somos Defensores figure of 80 leaders killed in 2016, it is noteworthy that 22 of those killed or, 27 percent of the total, were ethnic minorities (15 indigenous and 7 Afro-Colombians).
Recent Cases of Concern to U.S. Policymakers
WOLA issues periodic action alerts about threats and attacks against civil society. While all cases are of concern, there some are of particular interest to U.S. policymakers. In January, three members of the Communities Constructing Peace in the Territories (CONPAZ) were killed: Afro-Colombian Emilsen Manyoma Mosquera and her husband Joe Javier Rodallega from Valle del Cauca Department, and Wiwa indigenous leader Yoryanis Isabel Bernal Varela of Cesar Department. Ms. Bernal Varela was an outspoken leader for the rights of indigenous Wiwa, Kogui and Arhuaco women. She was disappeared and fifteen days later found dead with a bullet in her head. Ms. Mosquera was a tireless advocate for the rights of youth in the Community Council of Bajo Calima. She and her partner were killed in Buenaventura. Meanwhile, the Inter-Ecclesial Commission for Justice in Peace that legally represents CONPAZ suffered security incidents. Also in January, Marino Cordoba of the AFRODES and the Ethnic Commission suffered the murder of two of his relatives at the hands of Gaitanista paramilitaries in Chocó. This came just a few months after his son was killed by these same men in October 2016. AFRODES leaders continue to face security challenges throughout the country.
The Indigenous Association of Northern Cauca (ACIN), the Wayuu territorial authorities, and the Afro-Colombian Community Councils of Northern Cauca (ACONC) continued to face assassination attempts, attacks and death threats. The ACIN and ACONC are engaged in defending their ancestral lands from illegal mining, environmental damage and the encroachment of illegal armed groups. After the many publicized deaths of indigenous children due to malnutrition, dehydration and the humanitarian crisis in their region, Wayuu authorities advocated for cleaning up corruption and mismanagement of funds by Colombia’s Child Welfare Agency (ICBF). They have also denounced the environmental damage caused by the Cerrejon coal mine. The latter has resulted in stigmatization of Wayuu communities in the press and death threats. Particularly worrisome is the deteriorating security situation faced by members of the San Jose de Apartadó Peace Community in Antioquia, and Operation Genesis victims in Cacarica, Chocó, who have denounced paramilitary activity in their regions.
Relevant Mechanisms in the Accords and Steps Forward
The peace accord with the FARC signed on November 24 includes mechanisms that guarantee the physical protection for human rights defenders and guarantees for them to do their work. In the political participation (point 2 of the accords) it stipulates that adequate normative and institutional prevention, protection, evaluation and monitoring of will take place to guarantee the security for leaders and organizations of social movements and human rights organizations. The accord states that “security guarantees are a necessary condition for consolidating the construction of peace and coexistence.” It also highlights the importance of civil society activists in the implementation of the plans and programs set forth by the accord.
The third point of the accords, the end of the conflict section, includes an agreement “to guarantee security by fighting criminal and other organizations responsible for homicides and massacres that target defenders, social and political movements, or who threaten persons who participate in the implementation of the accords and construction of peace.” This includes actions against “organizations referred to as successor paramilitary organizations and their support networks.” This point then proceeds to include the agreement that several mechanisms will be developed to address this problem. These include a National Commission to Guarantee the Dismantlement of Criminal Organizations, which would be responsible for attacks against defenders, social and political movements that include paramilitary successor groups. It calls for the creation of a Special Investigation Unit to dismantle these criminal organizations and their networks, the integration of an Elite Corps within the National Police and an integral security system for policy development. Lastly, it sets forth basic guarantees for prosecutors, judges and other public servants involved in this fight.
The press coverage reveals that in his conversation with President Juan Manuel Santos, President Donald Trump indicated that he would personally see to it that Colombia receives the assistance package needed to consolidate peace, which will first require approval from the U.S. Congress. Such an indication of support for Colombia’s peace is a positive first step. We would also encourage policymakers to prioritize operationalizing the commitments found in the accord pertaining to protecting human rights defenders, community leaders and political parties, and dismantling paramilitary successor groups.
February 15, 2017
Map from the José Alvear Restrepo Lawyers’ Collective.
With the FARC guerrillas likely to begin disarming very soon, this should be a time of hope, even joy, in rural Colombia. Instead, though, it is a time of fear. The last several weeks have seen the worst wave in years of murders of social leaders, indigenous leaders, land-rights activists, and human rights defenders. The renewed violence casts doubt on whether space for non-violent political activity will truly exist in Colombia’s “post-conflict” period.
The Ideas for Peace Foundation, a Bogotá-based think-tank supported by the business sector, counts 71 homicides and 17 homicide attempts against social leaders so far in 2016. (The UN High Commissioner for Human Rights, using the definition of “human rights defenders,” counts 52 homicides and 35 attempts [PDF].) Ideas for Peace found the most attacks happening in the Pacific coast departments (provinces) of Valle del Cauca (whose capital is Cali) and Cauca; the south-central department of Caquetá; the northwestern department of Antioquia (whose capital is Medellín); and the northeastern department of Norte de Santander. The Colombia-Europe-United States Coordination, a network of human rights groups, counts 30 murders of social leaders since August 29, the day the Colombian government and FARC declared a bilateral ceasefire. The UN High Commissioner’s office counts 13 since the September 26 signing of the first peace accord with the FARC.
The wave of terror elicited statements of concern since the second half of November from the UN and its High Commissioner, the OAS, and the Colombian government’s Center for Historical Memory, which compared it to the late 1980s-early 1990s massacre of more than 3,000 members of the Patriotic Union, a FARC-linked leftist political party.
Among the social leaders most recently murdered, or who barely escaped murder, are the following individuals.
A longtime local leader in the township of Palo, Rodríguez co-founded the Association of Campesino Workers of Caloto in 2003, and was active in several local organizations, including the Marcha Patriótica, a recently created, largely rural political movement that is widely viewed as a building block for the FARC’s transition to a non-violent political party. His body was found by a roadside, next to his motorcycle, with three bullet wounds.
Velasco was a member of several campesino organizations in Caloto, and of the Marcha Patriótica. The Center for Historical Memory describes Velasco as “recognized by the community as a great friend and community member who stood out for having good relations with the whole community. On November 11 he was found in the area known as La Trampa, in Caloto, with a bullet wound in the head.”
Lara is part of a community of campesino leaders organized to re-claim the La Europa hacienda, from which they were displaced by paramilitaries during the early 2000s. This case is very well known, and Lara has received so many threats that he is protected by the Colombian Interior Ministry’s National Protection Unit. On November 17 in Sincelejo, Sucre, Lara’s bodyguard shot and killed a hitman who had drawn a gun.
Monroy was a leader of the Losada-Guayabero Environmental Campesino Association (ASCAL-G), very active in local human rights and campesino networks including the Marcha Patriótica, and a vocal opponent of oil exploration and fracking. He was shot in the neighboring municipality of San Vicente del Caguán, Caquetá, about three miles from the base where Colombian Army’s Cazadores Battalion is headquartered. He was 54 and a lifelong resident of this region, a traditional FARC stronghold.
In May, Monroy and other local activists denounced
that “soldiers from the Battalion were patrolling together with three people in civilian clothing, taking photographs of leaders,” and that “graffiti with the name ‘AUC’ had appeared on the road” near San Vicente del Caguán, according to Colombia’s Verdad Abierta investigative journalism website. (The AUC, or United Self-Defense Forces of Colombia, was a national network of right-wing paramilitary groups that formally disbanded in 2006.)
San Vicente del Caguán and La Macarena—two of five municipalities that hosted failed peace talks with the FARC between 1998 and 2002—are a flashpoint for violence against social leaders. San Vicente’s mayor, elected in October 2015, comes from the Democratic Center, the rightist political party of former president Álvaro Uribe. Mayor Humberto Sánchez told reporters he does not believe Monroy’s killing was politically motivated, speculating that he “was likely killed by disgruntled neighbors.” Sánchez had also accused Monroy’s campesino organization of being guerrilla collaborators, and said that the spate of AUC graffiti owed to “the guerrillas preparing the ground for assassinations of campesinos and cattlemen and using that to justify their actions.”
Losada was president of the Community Action Board (Junta de Acción Comunal, a sort of local elected advisory commission) of Platanillo township in La Macarena, and a member of DHOC, the Foundation for the Defense of Human Rights and International Humanitarian Law of East-Central Colombia, a local human rights network, as well as the Marcha Patriótica. He was at home with his family when two masked men burst into his home and shot him nine times.
Cuéllar was president of the Community Action Board of La Victoria township in La Macarena, and a member of ASCAL-G, the same organization as Erley Monroy.
He was walking home from Monroy’s wake with his daughters, when two men on a motorcycle shot him. “They followed him all the way home on the motorcycle and then shot him,” Cuéllar’s sister told the Miami Herald. “And then they pointed at the girls, but the gun didn’t go off.”
Bolaños, a member of the Association of Campesino Workers of Nariño (Astracan), was on his motorcycle, returning from a meeting of local pro-peace groups, when a hitman riding on the back of another motorcycle fired six shots at him from a handgun. All missed. Verdad Abierta reports that he had not received any threats beforehand, “and the only thing he know of was a pamphlet with the ‘self-defense groups’’ initials that had circulated in Leiva, without mentioning either him or Astracan.”
Like many of the victims listed here, Cabrera was a member of the Marcha Patriótica. “As a member of the Marcha Patriótica, he actively supported diverse peace initiatives,” reports the Center for Historical Memory, including the designation of a village in Policarpa as a zone for FARC disarmament.
Cabrera had not been threatened before the 20th, when two masked men intercepted his motorcycle and shot him 12 times.
Rather than push for an investigation, the mayor of Policarpa, Claudia Inés Cabrera (no relation), denied that the murder had any political motivation. The victim “isn’t recognized as a community leader,” she said. After a security meeting between the mayor and local law enforcement, a statement contended that Cabrera’s father said “he was apathetic about politics and had never belonged to a political group.” The victim’s father, Sergio Cabrera, told reporters that no, “he liked politics, but not too much. He was a man of peace.” Lizeth Moreno, a local Marcha Patriótica leader, noted that “in her communiqué, the mayor doesn’t even reject the homicide, she justifies it saying that Rodrigo presumably had a [criminal] past.”
Cortés, a boat mechanic and member of the Marcha Patriótica and at least two local human rights networks, had been organizing protests against forced coca eradication in the rural zone of Buenaventura. A red boat with three black-clad men who were unfamiliar to eyewitnesses brought Cortés from his workshop to his home, where they shot him to death.
Canacué, a 60-year-old member of her township’s Community Action Board and of the Marcha Patriótica, was shot three times on a road near her home. Though active, she was not considered a prominent social leader. “She was part of the Marcha Patriótica, one of those people who goes to all of the events and meetings,” an acquaintance told the Center for Historical Memory.
At a meeting with Huila’s governor the next day, local leaders denounced an increase in acts of vandalism and the presence of paramilitaries “hidden and poised to pounce” (agazapados). Police never arrived at the crime scene to investigate the killing. Canacué’s body remained on the roadside from 8:30 AM until 1:00 PM, when the funeral home came to recover it.
Unidentified people threw an explosive device at the home of Chirán, governor of the Gran Cumbal indigenous reserve. On November 3, Chirán, who works with the local Marcha Patriótica, had received a threatening pamphlet from a group calling itself the “Military Bloc of the Southwest Pacific of Nariño.”
Ramírez, a leader of the Mayabangloma reserve of the Wayúu indigenous community, was shot three times by an individual waiting for him outside his residence. He is recovering from his wounds. Southern Guajira indigenous authorities say they have “detected in several communities unknown subjects on high-powered motorcycles.”
The sharpness of the increase in murders during the post-first-accord period is striking. It looks almost as though a switch got thrown somewhere within Colombia’s darkest, most reactionary quarters. Still, experts warn against attributing all this killing to a coherent nationwide conspiracy against the peace talks.
Carlos Guevara, who runs the Human Rights Observatory at the Colombian group Somos Defensores, told Verdad Abierta that the first accord’s rejection in an October 2 plebiscite did worsen the situation significantly. Because there was no accord in place, the protection measures it foresaw for opposition social movements could not be implemented, even as the FARC began clearing out of zones that it controlled or influenced. With the FARC presence reduced, other groups have moved into these zones and begun to threaten existing organizations.
Guevara cautioned, though, against blaming everything on the right wing:
December 5, 2016
A delegation of conflict victims attended the December 15 singing of the Victims accord in Havana.
Colombia’s government and the FARC guerrilla group have settled the most difficult question facing their three-year-old peace negotiations: how can Colombia hold human rights abusers accountable for their crimes, without imposing penalties so severe that they encourage guerrilla leaders to keep fighting?
The December 15 accord on Victims establishes a Special Peace Jurisdiction to hear confessions, to try and punish war crimes and crimes against humanity, and to determine reparations to victims. A December 19 government communiqué explains how the security forces will fit into that special jurisdiction.
“Settled” is too strong a word, though. Both declarations leave fundamental questions unanswered, and raise others. Detractors have seized upon these ambiguities, and their critiques are influencing the Victims accord’s reception before Colombian public opinion. The head of Colombia’s rightist opposition, Senator and former President Álvaro Uribe, wrote that the December 15 accord “substitutes Colombian justice in order to absolve the FARC.” The Americas director for Human Rights Watch, José Miguel Vivanco, told reporters, “This is a piñata of impunity. …It is a pact between the government and the FARC that ends up sacrificing the right to justice of thousands of the Colombian conflict’s victims.”
WOLA shares some of these concerns, but does not share this broad view. Colombia did not just approve a “piñata of impunity,” and this sweeping choice of wording is unfortunate. The December 15 accord does not amnesty serious human rights crimes, includes significant concessions from an armed group that is not actually surrendering, and is the product of much consultation with victims of the conflict.
Nonetheless, as HRW’s more careful written critique and other analyses have made clear, a great deal remains undefined, and some dangerous potential loopholes remain to be closed up.
Variations of this question are coming up repeatedly in the debate over the new accord. Depending on the depth of their involvement in serious human rights crimes, demobilized guerrillas who fully confess will receive sentences of between two and eight years of “effective restriction of liberty” while they perform acts of reparation to victims.
What does “restriction of liberty” mean? The accord is still vague, but we now it doesn’t mean “jail.”
“Effective restriction means that there may be appropriate mechanisms of monitoring and supervision to guarantee good-faith compliance with the restrictions ordered by the tribunal. …The Special Peace Jurisdiction will determine the conditions of effective restriction of liberty that may be necessary to ensure compliance with the sanction, conditions that in no case will be understood as jail or prison, or adoption of equivalent security measures.”
This confinement’s austerity and geographic scope remain to be defined. The place of confinement, chief government negotiator Humberto de la Calle told Colombia’s El Tiempo newspaper, “will be a function of the place where reparations occur.”
“For example, there will be guerrillas contributing to de-mining at the site where it takes place. In these sanctions we’re not talking about jail. There won’t be a lot of people all going to one place, but simultaneous reparations programs in several sites. And that is where there will be the presence of those who have been punished with restriction of liberty, movement, and residence. …If someone must go and de-mine in El Orejón (Antioquia), he goes, and it could be that tomorrow he has to go and de-mine in Lejanías (Meta). But look, he won’t have the entire department [province/state] as his base, as some opponents of the peace process said at the beginning.”
How large this “base” may be, though, hasn’t been determined. “If the restriction of movement consists only of not being able to leave the country or a department, or if the labor restriction consists of going to Congress or the town council, it will be very hard for people to trust in transitional justice,” wrote journalist Juanita León of La Silla Vacía. “If it is more strict, it could give the system more legitimacy.”
Support for the process will also depend on the level of austerity of both sides’ convicted human rights abusers’ confinement. Many Colombians recall with shame the sumptuous conditions that drug lord Pablo Escobar enjoyed during his brief stay in his custom-built prison outside Medellín in the early 1990s. While the December 15 accord is unlikely to repeat that experience, it holds open the possibility of a “restriction of liberty” that is insufficiently punitive to meet international standards. “Ay, President Santos,” wrote center-right El Tiempo columnist María Isabel Rueda. “I’d like to help you out, but this sounds like a picnic.”
Concerns about leniency run both ways. A 2011 scandal surrounded the “resort” conditions in which military personnel found guilty of serious rights crimes were being held at the Tolemaida army base. As the December 19 announcement places the armed forces in charge of confining their personnel accused of serious war crimes, that experience risks being repeated.
There is still no clarity about whether the system would apply to the most serious military human rights crime of the past ten years: the “false positives” scandal, which continues to move slowly through Colombia’s courts. In order to satisfy top leaders’ policy of rewarding high “body counts,” military personnel killed at least 3,000 civilian non-combatants, mostly between 2004 and 2008. Civilian courts have sentenced a few hundred to long prison terms—but there is a possibility that these convictions could be reduced, or even overturned, within the new “Special Peace Jurisdiction.”
December 23, 2015
International Criminal Court Prosecutor Fatou Bensouda has warned Colombia against amnesties or suspended sentences for serious guerrilla human rights violators.
In December, FARC peace negotiators met in Havana with representatives of Bojayá, a town in northwestern Colombia. There, during a 2002 confrontation with paramilitary fighters, the FARC had catapulted a homemade bomb into a church where much of the population was hiding, killing 119 of them. Following the Havana meeting, the guerrilla negotiators issued a humbly worded apology, in which they committed to
“seeking ways we can possibly compensate, not just by recognizing the damage caused then, but by developing a series of proposals directed toward dialogue, acts of reparations, and to offer and agree on non-repetition measures.”
The December document was important, not only as the FARC’s most explicit expression of contrition to date, but because in it the guerrillas recognized their responsibility to tell victims the truth about their own human rights abuses and to contribute to reparations.
The statement said nothing, though, about punishment. The FARC continues to insist that it not be, in President Juan Manuel Santos’s words, “the first [guerrillas] in history to hand in their weapons only to go to a prison.”
However, the FARC—or at least some of its members—may end up having that distinction. Those in the group most responsible for serious human rights violations could end up spending some time in prison, or in something like prison.
A few possibilities have been tossed about for how to hold demobilized guerrillas accountable for their human rights crimes. Virtually all agree that ex-guerrillas must engage in truth-telling or confession, usually as part of a formal trial or tribunal, along with amends or reparations to victims, and guarantees of non-repetition.
On punishment, though, a variety of views exist. The FARC continues to insist on its leaders avoiding punishment. “We haven’t fought our entire lives for peace with social justice and the dignity of Colombians only to end up locked up in the victimizers’ jails,” chief negotiator Iván Márquez said in 2013.
For his part, Colombia’s prosecutor-general (fiscal general), Eduardo Montealegre, has floated the idea of suspended sentences or “substitution of sentences that deprive liberty for other types of alternative penalties, like clearing landmines.” Communications from the International Criminal Court’s prosecutor have suggested that Montealegre’s proposals would not satisfy Colombia’s international human rights commitments.
Away from the negotiating table, though, a consensus is emerging that crimes against humanity and serious war crimes can neither be amnestied nor pardoned following a trial. The length and severity of punitive detention can be reduced after truth-telling, reparations, and non-repetition guarantees. But there must be some “deprivation of liberty.”
“The particularities of the Colombian case suggest that those maximally responsible for the most serious and representative crimes should have a dose of punishment that implies an effective deprivation of liberty,” reads a 2013 monograph from DeJusticia, a Bogotá-based legal think-tank that has extensively explored this question.
“From the philosophical perspective, specifically with respect to reflections about the purposes of the punishment, it becomes necessary to have a minimum of retribution as a recognition of the suffering of the victims, and as an affirmation of the values that were negated by the serious human rights violations.”
Even if consensus is emerging around the “deprivation of liberty” issue, though, at least four questions remain.
February 15, 2015