Letter to US Trade Representative Schwab on Colombia Free Trade Agreement

Human Rights Watch does not have a position on free trade agreements per se, except that we believe they should be premised on respect for fundamental human rights, especially the rights of the workers. We have opposed ratification of the FTA because of the Colombian government’s failure thus far to adequately address the high level of violence against local trade unionists and to dismantle the paramilitary organizations responsible for much of that violence. We do not believe the United States should grant permanent duty-free access to goods that are, in many cases, produced by workers unable to exercise their basic right to freedom of association, in large part because of anti-union violence.

January 23, 2008

Ambassador Susan C. Schwab
United States Trade Representative
600 17th Street, NW
Washington, DC 20508

Dear Ambassador Schwab,

I am writing to explain why Human Rights Watch opposes ratification of the U.S.-Colombia Free Trade Agreement (FTA) at this time and to outline the steps Colombia could take to ease our concerns.

As you know, Colombia has the worst record on trade unionist killings in the world. There have been more than 2,500 killings since 1985 and nearly 3,500 threats against trade unionists since 1991, according to the National Labor School (or ENS—Escuela Nacional Sindical), a highly respected labor rights group in Colombia.^I During the administration of President Alvaro Uribe, there have been more than 400 killings and 1,358 threats, according to the same source. A principal factor contributing to this violence has been the Colombian government’s persistent failure to bring the perpetrators to justice and to dismantle the drug-running paramilitary mafias to which many belong.

Despite its stated commitment to combating and demobilizing paramilitary groups, President Uribe’s government has not yet made a serious effort to investigate paramilitary crimes, to seize paramilitary assets, to prevent demobilized paramilitary leaders from engaging in unlawful activities, to prosecute their collaborators and financiers, to extradite to the United States paramilitary leaders who renege on their promises, or even to keep track of thousands of paramilitary fighters who supposedly demobilized. The Uribe administration has opposed virtually every reasonable proposal to strengthen this process. To the extent its campaign against paramilitaries has any teeth, it is the result of pressure from a handful of Colombia’s lawmakers, its courts, and its international partners, including the United States. We believe that pressure must be sustained.

When the United States and Colombia announced they were negotiating an FTA, we saw it as a historic opportunity to leverage a decisive effort to save Colombian democracy from the mafias terrorizing its people and preventing the exercise of fundamental workers’ rights. This opportunity would be squandered were the FTA to be ratified prematurely, at a time when the Colombian government’s commitment to dismantle groups on the US list of terrorist organizations and protect workers’ rights remains ambiguous. Ratifying the agreement today would diminish pressure on the Uribe government to take steps that are clearly needed, but that it has resisted in the past, to combat anti-union and other paramilitary violence. We fear that such premature ratification would undermine the very goals of democracy and regional stability that you have said the FTA is designed to advance.

We believe the Congress should continue to delay approval of the accord until the Colombian government shows concrete, significant, and sustained results over a reasonable period of time in ending impunity for anti-union violence and dismantling paramilitary organizations. The steps we think Colombia should take in this area are not profoundly difficult. They reflect advice President Uribe has received not only from Human Rights Watch, but from many brave Colombians on the front lines of the struggle for democracy, human rights, and the rule of law, as well as from the United Nations, the Organization of American States, and the U.S. government itself.

Attached is a detailed description of principal areas in which we believe the Colombian government should demonstrate results. We hope you will agree that the Colombian government’s campaign for FTA ratification would be best served by focusing on these substantive issues, and that you will join us in urging the government to act.

Sincerely,

Kenneth Roth
Executive Director

^IWhile the number of killings per year has fluctuated over the past decade (reaching a peak of 197 killings in 2001), Colombia consistently has the highest rate of trade unionist killings in the world, with 72 murders reported in 2006, according to the ENS, up from 70 in 2005. According to the government, 59 unionists were murdered in Colombia in 2006, up from 40 the year before. In 2001 the ENS registered 235 threats against trade unionists. That number dropped for one year, in 2002, to 198, but then increased dramatically, to 455 in 2004, and returned to 244 in 2006—higher than it was in 2001 or 2002. The government does not report threat rates.

Steps Colombia’s Government Should Take as Preconditions for FTA Ratification

As preconditions for FTA ratification, the Colombian government should, at a minimum, credibly demonstrate that it has achieved concrete, significant, and sustained results over a reasonable period of time in meeting the following objectives.

I. End Impunity for Killings of Trade Unionists

The overwhelming majority of killings of trade unionists in Colombia are never solved. The Colombian Attorney General’s Office (the Fiscalía General de la Nación) has established a new sub-unit of prosecutors to focus on some of these cases. While this is a positive step, it will be meaningless if the new sub-unit proves unable to produce results. Its ability to do so will ultimately depend, in large measure, on whether it receives adequate political, material, and logistical support and cooperation from the government.

As a precondition for FTA ratification, the US should insist that the Colombian government:

Thoroughly investigate and prosecute the killings of trade unionists and obtain a substantial number of well-grounded convictions of the individuals responsible for ordering, planning, carrying out and/or facilitating these crimes;
Produce periodic public reports detailing the investigative, prosecutorial, and judicial procedures carried out in these cases to allow human rights experts and non-governmental organizations to monitor these procedures and evaluate their results.

II. Dismantle Paramilitary Mafias

Paramilitary groups are responsible for a majority of the violence targeting trade unions in Colombia. However, despite its “demobilization” program, the Colombian government has yet to take the basic steps that are necessary to ensure that paramilitary groups’ powerful criminal, political, and financial structures are in fact dismantled.

Accurately Report Information on Demobilization

Colombian government officials have repeatedly stated that paramilitary groups are now “extinct” and that over 30,000 paramilitaries demobilized. These statements are misleading and serve only to cover up continuing paramilitary activity in the country.

As we explained in our 2005 report, "Smoke and Mirrors," the government never established a rigorous procedure to determine whether the individuals participating in demobilization ceremonies were in fact paramilitaries. The overwhelming majority of these individuals have received government stipends and other benefits without being required to confess or turn over assets and without being adequately interrogated or investigated. This group includes mid-level commanders of paramilitary groups who did not at the time have any serious criminal investigations pending against them, and who have not applied for reduced sentences under the Justice and Peace Law.

The Inter-American Commission on Human Rights reported last year that it had observed demobilization ceremonies in which the people supposedly "demobilizing" were not in fact paramilitaries, but rather people who played the role to access government stipends.¹ Indeed, the number of individuals who went through demobilization ceremonies far exceeded the government’s own highest estimates of membership in paramilitary groups before demobilization.² During the process, the media also reported that paramilitaries had recruited young men simply to participate in demobilization ceremonies.

Meanwhile, both the Organization of American States (OAS) and the Office of the UN High Commissioner for Human Rights in Colombia have reported that mid-level paramilitary commanders continue to engage in criminal activity and recruitment of new troops. In the aftermath of the demobilizations, the OAS has identified 22 illegal armed groups in which paramilitaries are participating in drug trafficking, extortion, selective killings, and forced displacement of civilians. The government last year admitted that it had lost track of several thousand demobilized individuals.³

As a precondition for FTA ratification, the US should insist that the Colombian government:

Re-interview demobilized persons who are receiving benefits from the government
to determine whether they were really paramilitaries and to collect information about the group’s assets, crimes, and structure;
Conduct thorough investigations into abuses and other serious crimes allegedly committed by demobilized mid-level commanders or others who had leadership roles within these groups;
Clarify in its public reporting about the demobilization process the extent to which the government is unclear about, or is not able to verify whether all those who participated in the process were really paramilitaries, and the extent to which paramilitaries have remained active.

Find and Seize Paramilitary Assets

Paramilitary leaders have amassed large fortunes through drug trafficking, crime, extortion, and the forced taking of land from peasants, indigenous people, and Afro-Colombian communities.⁴ They have also siphoned off substantial resources from local governments. Much of this money is probably being laundered through investments throughout Colombia and possibly outside the country.

As long as they retain this wealth, the paramilitaries will retain the capacity to recruit new troops and finance criminal activity, including violence against trade unionists.

Under the “Justice and Peace Law,” paramilitary members are supposed to surrender these illegally acquired assets at the time of their demobilization. But more than a year after their demobilization ceremonies, the paramilitary leaders have surrendered only a tiny fraction of these assets. In Executive Decree 3391 of 2006, the government distorts the requirements of the Justice and Peace Law and softens the deadline for turnover of assets by stating only that at the start of the process paramilitaries must “commit” to fulfill obligations to turn over assets. ⁵ It would thus appear that the government is going to allow paramilitaries to wait until the very last minute before sentencing to turn over assets. So long as there is no clarity about the deadline for asset turnovers, and so long as the government does not aggressively pursue paramilitaries’ assets on its own, they are unlikely to surrender any meaningful portion of their wealth.

The government has also established, via decree, that the Attorney General may apply the principle of “opportunity”—which allows prosecutors to refrain from pressing charges—to persons who serve as front men, holding assets for paramilitaries in their own name.⁶ Colombian officials have justified this provision by saying it establishes an incentive for the front men to come forward and turn over paramilitaries’ illegal assets. However, so far this has not happened to any significant degree. The decree does not set a deadline by which front men must come forward to receive this benefit, allowing them to wait, safe in the knowledge they will not likely be caught.

As a precondition for FTA ratification, the US should insist that the Colombian government:

Establish and enforce a fixed deadline by which paramilitaries seeking reduced sentences under the Justice and Peace Law must have turned over all their illegally acquired assets or risk extradition and the loss of sentencing benefits;
To ensure that front men have a real incentive to come forward and turn over the illegal assets they are holding for paramilitaries in the short term, set a deadline after which they can no longer benefit from the principle of opportunity;
Vigorously investigate and seize the illegally acquired and laundered assets that paramilitary commanders fail to surrender voluntarily;
Effectively implement the Project on Protection of Land and Assets of the Displaced Population to improve records of land that paramilitaries took by illegal means and ensure that paramilitaries turn over such land as part of the demobilization process.

Sever Paramilitary Leaders’ Links to Groups

An essential step toward dismantling these groups is severing the commanders’ ties to their mafias. Unfortunately, the government has made it easy for commanders to stay in touch with their subordinates, even while they are in prison, as it has given them unrestricted access to cell phones and computers. It has insisted on letting commanders have such access despite regular reports of continuing activity by commanders. While it is possible that intelligence services are monitoring commanders’ calls, without warrants, any information obtained in this manner is not admissible at trial and could not be used to revoke commanders’ reduced sentences.

As a precondition for FTA ratification, the US should insist that the Colombian government:

Prevent paramilitary bosses who are temporarily in prison awaiting decisions on their reduced sentences to communicate with their mafias on unrestricted cell phones and internet; or ensure that the Attorney General’s Office conducts systematic and judicially authorized monitoring of phone calls and internet access of all jailed paramilitary commanders.

Prosecute Paramilitaries’ Collaborators and Financial Backers

Human Rights Watch has documented for years the relationship of toleration, acquiescence, and in some cases outright collaboration between paramilitaries and certain units and high-ranking members of the Colombian military. In addition, as demonstrated by the recent “parapolitics” scandals over links between paramilitaries and numerous members of President Uribe’s coalition in Congress, his former intelligence chief, and other officials, paramilitaries have maintained close ties to high-level members of the Colombian government.

The Colombian Supreme Court and Attorney General’s Office are currently investigating some of these links. Yet the Colombian government has repeatedly proposed laws that would grant paramilitaries’ collaborators special treatment, such as the possibility of avoiding prison entirely.

Meanwhile, paramilitaries who are making statements to prosecutors in the context of the Justice and Peace Law process have made numerous accusations against persons and businesses. However, because they are not always speaking under oath, paramilitaries could be lying, in an effort to confuse and overwhelm the justice system.

As a precondition for FTA ratification, the US should insist that the Colombian government:

Rigorously investigate and prosecute all high-ranking military, police, and intelligence officers, as well as politicians and businesses who have credibly been alleged to have collaborated with paramilitaries⁷;
Ensure that all paramilitary commanders who participate in the Justice and Peace Law process comply fully with their obligations to identify all their collaborators and to describe the nature of the collaboration and revoke the reduced sentences and, when requested by the United States, extradite commanders who fail to do so;
Thoroughly interrogate all demobilized paramilitaries (not just the ones who are participating in the Justice and Peace Law process) regarding their groups’ financing and links to the military, businesses, intelligence service, police, and politicians;
Ensure that prosecutors ask paramilitaries, whenever they identify another person as having collaborated with them or participated in criminal activity, to repeat such statements under oath;
Withdraw and oppose all legislation that could lead to reduced sentences or outright impunity for paramilitary collaborators, including, specifically, the government sponsored bill that would permit the closing of “criminal conspiracy” (concierto para delinquir) cases;
Ensure that these cases remain under the control of Colombia’s highest courts, rather than being tried by individual judges in remote regions, whose security and independence are more easily compromised.

Ensure Paramilitaries Serve Sentences in Prison

Under the Justice and Peace Law, paramilitary commanders can receive reduced sentences of 5-8 years. However, the Constitutional Court has ruled that paramilitaries should not be allowed to receive any sentencing benefits beyond those reductions. Thus, for example, the Court struck down a provision allowing paramilitaries to count eighteen months they spent in the special negotiating zone of Santa Fe de Ralito (from which paramilitaries were free to come and go as they pleased) as time served toward fulfillment of their prison sentences. It also ruled that paramilitaries should serve their sentences in ordinary penitentiary establishments under the control of the National Prisons Institute (the INPEC).

Unfortunately, the government subsequently issued a decree undermining the court’s ruling. Decree 3391 allows paramilitary bosses who receive dramatically reduced sentences under the demobilization program to serve them in “any establishment … in the Penitentiary Code” (including house arrest or agricultural colonies).⁸ The same decree also establishes that paramilitaries who had entered the demobilization program before the Court’s ruling (i.e., the overwhelming majority) could count time they spent negotiating in Santa Fe de Ralito as time served.

As a precondition for FTA ratification, the US should insist that the Colombian government:

Ensure that paramilitaries serve the full length of their reduced sentences in actual prisons by amending the provisions in Decree 3391 that allow them to count time they spent in Santa Fe de Ralito as time served, as well as the provisions allowing them to serve their sentences under house arrest or in agricultural colonies.

Effectively Use Leverage of Extradition

The most effective leverage that the Colombian government has over paramilitary leaders is the threat of extradition to the United States. Many of Colombia’s paramilitary leaders are wanted in the United States on charges of illegal drug trafficking. It was primarily the fear of extradition to the United States that initially led them to negotiate a “demobilization” program with President Uribe that would allow them to escape extradition by serving much reduced sentences for their crimes in Colombia.⁹

Today the threat of extradition could be used by the government to compel paramilitary commanders to comply fully with their obligations under the Justice and Peace Law to confess, surrender illegal assets, demobilize their troops, and cease from engaging in criminal activity. However, for this threat to be effective, it must actually be applied to paramilitary leaders who fail to fulfill their obligations or engage in new crimes. The threat must also remain applicable indefinitely, to ensure that commanders have an incentive to refrain from committing new crimes.

Unfortunately, the Justice and Peace Law creates a loophole that allows paramilitary commanders to neutralize the threat of extradition to the United States. During the demobilization process, they can confess to the crimes for which they face charges in the United States and then receive reduced sentences for those crimes under the terms of the Justice and Peace Law. Under Colombian law, they are then protected on double jeopardy grounds from extradition for these crimes.

As a precondition for FTA ratification, the US should insist that the Colombian government:

Prevent commanders from blocking extradition by promoting legislation that bars the application of the Justice and Peace Law to acts for which the United States has requested extradition and, until such legislation is passed, advising the Attorney General’s Office to refrain from prosecuting paramilitaries for these acts;
Extradite paramilitary commanders who are wanted in the United States and who have failed, in full or in part, to confess, surrender illegal assets, demobilize their troops and cease their criminal activities.¹⁰

Protect Victims and Witnesses

Human Rights Watch has received reports that at least 13 victims participating in the demobilization process have been killed over the past year, and more than 300 have been threatened.

The Supreme Court recently ordered the Uribe administration to protect victims. In response, the administration issued a decree that states a victim protection program will be created. However, no effective program is yet in place to provide protection to these victims and other potential witnesses who might testify about paramilitary crimes.

As a precondition for FTA ratification, the US should insist that the Colombian government:

Establish and fully fund an effective protection program for victims and witnesses of paramilitary crimes.

¹ Inter-American Commission on Human Rights, Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and First Judicial Proceedings, OEA/Ser.L/V/II Doc. 3, Oct. 2, 2007.

² In an interview as late as 2005, then Minister of Interior Sabas Pretelt said that the government estimated there were “about 15 thousand” paramilitaries in the country. See “Trinidad Extradition Does Not Close Doors,” Yamid Amat Interview with Sabas Pretelt, Minister of Interior and Justice of Colombia, January 2, 2005, available at http://www.yamidamat.com.co/Contenido/contenido.asp?Entrevista=145.

³ “The panorama of the paramilitaries’ demobilization is filled with shadows,” Semana, Feb. 13, 2007, available at http://www.semana.com/wf_InfoArticulo.aspx?idArt=100993.

⁴ The Colombian Inspector General’s Office (the Procuraduría General de la Nación) reports that as many as 6.8 million hectares of land may have been appropriated illegally by various armed groups, and that paramilitaries are the groups that have been most active in taking land.

⁵ See Decree 3391 of 2006, art. 5.

⁶ Ibid, art. 14.

⁷ The cases that must be investigated and prosecuted include, but are not limited to, those of former intelligence director Jorge Noguera, Generals Rito Alejo del Rio and Fernando Millan and Navy Admiral Rodrigo Quiñones, who had their US visas revoked due to the strength of the evidence against them. Opening investigations in these cases is insufficient, as Colombian authorities have a record of opening investigations into such cases and later closing them on questionable grounds.

⁸ Decree 3391 of 2006, Art. 13.

⁹ Early in the demobilization process, President Uribe suspended all pending extradition orders for paramilitary commanders, but he promised the US Congress that Colombia would extradite any supposedly demobilized commanders who failed to participate in the process in good faith.

¹⁰ So far, the Uribe administration has stated that it plans to extradite Carlos Mario Jimenez (a.k.a. “Macaco”) to the United States due to evidence of continued drug trafficking. It has yet to deliver on that promise. While this is not a comprehensive list, some examples of commanders whose extradition should be considered are:

Diego Fernando Murillo Bejarano (a.k.a. “Don Berna”):

Salvatore Mancuso:

Rodrigo Tovar Pupo (a.k.a. “Jorge 40”):