Extradition of Colombian paramilitary defendants to the US could ironically endanger peace process
Speculation on the motivations behind Uribe’s undermining his own Ley de Justicia y Paz
Recommendations for the defense of Colombian victims of injustice
On Tuesday, May 13, President Uribe approved the extradition of 14 Colombians to the United States who face drug trafficking charges. While the Uribe administration has overseen the transfer of more defendants to the US than any other president in Colombia’s history, the most recent series of handovers is perhaps the most controversial. Among the group are some of the highest ranking leaders of the Autodefensas Unidas de Colombia (AUC), a brutal rightist paramilitary force which has been a principal actor in the country’s long running civil conflict as well as the perpetrator of some of the war’s major massacres and other human rights abuses. According to Uribe, the extradition of the AUC senior leaders was necessary because of the repeated failure to cooperate with Colombian investigators in sharing information about their crimes and a lack of willingness to surrender their illegally attained assets. Uribe also cited the continued participation of the former paramilitary leaders in illegal activities, such as narcotrafficking, even after they submitted to being detained.
Despite these justifications, many observers question Uribe’s decision to forego the judicial mechanisms previously established by the passage of Law 925, also known as La Ley de Justicia y Paz. A crucial part of the demobilization process which has resulted in the reintegration of thousands of former combatants into civil society, the law was intended to encourage the country’s reconciliation process. It mandates that participants in Colombia’s civil conflict may confess their crimes and make only token reparations to victims or their families in exchange for a maximum sentence of 8 years. If the accused does not confess or make reparations, they are to be turned over to the Colombian judicial system to be tried, with the important distinction that any convictions made would lack maximum sentencing limits. Like Uribe, the United States seems very much in favor of the reversal of direction of a law that both enthusiastically supported upon its passage in 2005.
The motivation behind the latest round of extraditions is questionable. Some see them as an attempt by Uribe to distance himself from the paramilitaries in the wake of almost daily allegations of embarrassingly close ties that his administration has had to high AUC comandantes. In an interview with the Inter Press Service, the vice president of the liberal José Alvear Restrepo Lawyers Collective commented that, “this move confirms what we have said from the start: that a Congress with a strong paramilitary presence legislated on its own behalf.” Those who hold this opinion contend that the real propellant behind Uribe’s rush to extradite these notorious figures comes not so much from a desire to see justice done, but quite the opposite. They see the extraditions as helping to deter the emergence of any new information about the intimate bonds that have existed between Uribe, his legislative supporters, and the AUC, effectively halting progress in the investigation of the parapolitico scandal in which some 60 legislators are currently embroiled.
Further complicating the matter is the issue of the proposed Free Trade Agreement between the US and Colombia which is currently stalled in the US Congress. Democratic Party leaders have repeatedly refused to move forward on the legislation amidst concerns that the Uribe administration has not done enough to address human rights abuses committed in his country. US spokesperson Dana Perino, aggressively pedaling the White House line, said in a press conference that Bush hopes the Democrats will see the extraditions as “yet another sign” that the Colombian president is, in fact, serious about punishing perpetrators of such crimes. Uribe, today the closest US ally in the region, and a strong proponent and beneficiary of the FTA, may also be using the extraditions to send such a signal.
A Call for Justice
Whatever the motivation behind the extraditions, one thing remains clear: investigations into the self-confessed crimes against humanity committed by men like Salvatore Mancuso, formerly the second highest ranking AUC official, must continue. Truth and reconciliation processes are integral components of successful conflict resolution. Acknowledgement of, and punishment for, crimes such as mass killings, torture, and forced displacement, attributable to the AUC, will facilitate the establishment of a sustainable peace.
There is no question that the thousands of victims of AUC excesses require the application of justice, but it may be impossible to achieve it while continually ridding the country of those who could compromise the government’s interests in the process. If Uribe truly desires to bring an end to the conflict in Colombia, he must be as aggressive against irregular armed groups in his country’s courts as has been in his speeches, even if this means making modest concessions to those who cooperate with the investigation of crimes as stipulated by Ley 925. In the case of the 14 men already extradited to the United States, all those involved in this country’s criminal justice system, including US Attorney General Michael Mukasey, must ensure that adequate justice will be served with respect to past human rights abuses committed in Colombia. Sources have reported that a stipulation in the extradition agreement between the two countries will allow Colombian prosecutors access to defendants so that the investigation of abuses committed throughout the nineties and beyond will continue to be sought. This agreement must be upheld and such clauses vigorously pursued.
Additionally, the possibility of prosecution of those extradited to this country under the US Alien Tort Claim Statute (ATCS) should be explored. This legislation, passed as a part of the original Judiciary Act of 1789, has become an increasingly relevant vehicle for the defense of international human rights. It establishes jurisdiction of US courts over, “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although COHA was deeply involved in the case, it was the Center for Constitutional Rights (CCR), a highly regarded nonprofit legal organization located in New York City, which used the ATCS in 1979 to form the basis for their case against Américo Norberto Peña Irala, a Paraguayan police official accused of the murder of Joelito Filártiga. The CCR represented the Filártiga family in pursuit of damages sought for the 17 year old’s extrajudicial killing. In a landmark decision, the Second Circuit Court of New York ruled in favor of the Filártigas to the amount of $10.4 million dollars.
The successful use of the ATCS in the case of Filártiga v Irala Peña demonstrates that the statute and more recent and related legislation can be powerful tools to convict those accused of crimes against humanity such as torture, extrajudicial killings, and genocide. Following the post-Nuremburg philosophy that individuals, as well as states, may be found to be in violation of international law, the ATCS has been applied in several important human rights cases, and its possible applicability in the case of the Colombian paramilitary leaders should be thoroughly explored.
Members of the US government would well be vigilant in pursuing this matter. Just as Senators Richard Durbin (D-IL) and Tom Coburn (R-OK) admirably spoke out in favor of investigating the human rights abuses of Salvadoran generals in 2007, members of the US congress should request that US Attorney General Michael Mukasey pay special attention not only to crimes associated with drug trafficking but also with human rights abuses committed by the 14 extradited Colombians. The current administration has a demonstrably weak record when it comes to the defense of international human rights; those on Capital Hill who choose to fight for Colombian victims may meet considerable opposition from the US public relations and law firms recently hired by the Colombian government. The Bush White House repeatedly has tried to push such matters under the rug in order to advance the prospects of successfully achieving a FTA with Colombia and to avoid the implications that prosecution of such abuses might have for US corporate interests and officials abroad.
The Council on Hemispheric Affairs wishes to echo the sentiments of organizations such as Amnesty International and Human Rights Watch in asking that the crimes against humanity, of which the extradited paramilitary leaders have been accused, are not forgotten in the pursuit of convictions on narcotrafficking charges. The US has acknowledged the terror inflicted on the Colombian population by the AUC up to 2001 when it classified the illegally armed group as a terrorist organization. It was on that occasion that Colin Powell recognized in a speech that the illegally armed group was guilty of such abuses as: “the massacre of hundreds of civilians, the forced displacement of entire villages, and the kidnapping of political figures to force recognition of AUC demands.” The United States must remain mindful of this uncontested assessment of the terror inflicted by the AUC and take care to prevent its own partisan political interests and its backing of Uribe from subverting the achievement of justice which is so vital to the establishment of a sustainable peace in Colombia.