Lunes, 9 julio 2007
Produced and translated by the Lawyers Colective Jose Alvear Restrepo
In the framework of the negotiation process with paramilitary groups
CHALLENGES IN THE FIGHT AGAINST IMPUNITY 
The José Alvear Restrepo Lawyers’ Collective (Corporación Colectivo de Abogados José Alvear Restrepo) has repeatedly maintained on countless occasions that the Colombian State is responsible for the creation, sponsorship and consolidation of paramilitary groups in Colombia. This assertion has been made not only on the basis of Colombian history and legislation favoring paramilitary structures, but has also been corroborated through pronouncements issued by different national and international bodies. 
In spite of international rulings demonstrating that the State is responsible for paramilitarism, as well as the many recommendations issued by different international bodies to Colombia to dismantle paramilitary structures,  the Colombian State has ignored these opinions and, on the contrary, has done everything possible to institutionalize these very structures and consolidate their territorial, economic and political power in Colombia.
Negotiation and Demobilization Process
In this way, the “peace process”, which has attempted to be called such since its creation, cannot not be classified in this manner. “All political negotiations need as a basic requirement the existence of two antagonistic or at least distinct positions.”  However, paramilitary groups not only operate under the auspices of the armed forces and State security agencies, but also constitute a force that has never attempted to fundamentally alter the State (and even less abolish it) or interrupt its ongoing or temporary functioning. Additionally, there is no difference between the ideological principles concerning the State espoused by the establishment and those who defend paramilitary groups. In this respect, the paramilitary groups do not enjoy a political character.
The negotiation and demobilization process carried out by the Álvaro Uribe Vélez presidential administration and the paramilitary groups is based on two legal frameworks that, though different, are complementary. The FIRST LEGAL FRAMEWORK consists in Law 782 of 2002 and Decree 128 of 2003. These procedures envisage legal benefits for the demobilized person granted through an official certification process before the Operational Committee on Laying Down Arms (CODA) when it is an individual demobilization, or through a list given to the government when it is a collective demobilization. This benefits include dismissal of cases, the closing of investigations, the termination of procedures, or pardons. Through this framework, according to the High Commisioner for Peace, more than 30,671 paramilitaries have demobilized collectively and, according to the Ministry of Defense, 3,590 paramilitaries have demobilized individually  for a total of 34,261 persons supposedly demobilized during this presidential administration.
The SECOND LEGAL FRAMEWORK is made up of Law 975 of 2005 -publicly known as the Justice and Peace Law- and Decrees 4760 of 2005 and 3391 of 2006, which regulate this law. The principal characteristic of this law is its residual nature. In this case, it is only applicable to the paramilitary members who are not eligible for the first legal framework, since they have arrest warrants or are detained for crimes against humanity or for drug trafficking. It is expected that only 3% of the demobilized persons will avail themselves of this law. Likewise, it will also be applied to the paramilitaries that are in prison for grave crimes. Presently a list has been presented of 3,300 prisoners that will avail themselves of this process in order to be released from prison. Additionally, other lists could be presented; it has been said that 4,800 paramilitaries are currently in prison.
Lastly, on August 15, 2006, the then minister of Interior and Justice, Sabas Pretelt de la Vega, sent the Office of the Attorney General the lists of the paramilitary members who aspire to officially receive the privileges of the Justice and Peace Law. This list comprises 2,695 demobilized paramilitaries who presumably had some kind of responsibility in crimes against humanity and grave human rights violations. Up to now, only 55 paramilitary bosses and some spokepersons have been detained and the State does not know the whereabouts of the others. In this regard, we wonder how many of the 2,695 paramilitaries presented in the lists have already been deprived of their liberty in order to submit them to judicial proceedings; though we assume that, even though they surrendered, the government let them escape and did not submit them to the justice system.
Continuation of Paramilitarism
Paramilitarism in Colombia has not disappeared; its power structures continue to be intact. In 2007, it was reported that paramilitary groups maintained a presence in 22 departments of Colombia and that more than 60 groups remain active. Additionally, paramilitaries operate politically and their economic power has grown due to their collaboration with large scale development projects (and especially due to the appropriation of the lands of the more than 3.6 million internally displaced persons). The cessation of hostilities agreed to at the beginning of the negotiation process has also not been honored. More than 3,300 homicides have been committed against the civilian population, including congress members, judges, journalists, human rights defenders, indigenous people, unionists, and peasants. These homicides must be added to the more than 14,000 crimes against humanity committed by paramilitary groups over the 15 years prior to the initiation of the negotiation and demobilization process.
The failure to truly dismantle the paramilitary groups is also seen in that, of the 34,261 supposedly demobilized paramilitaries, only 18,051 weapons were surrendered. Furthermore, over the last few years over 1,000 demobilized persons have been murdered as well as 78 injured, 1,070 detained for new crimes, and 144 convicted. A suitable follow-up and monitoring has also not been carried out of the demobilized paramilitaries. Currently 4,693 demobilized cannnot be located and another 6,567 have been lost their privileges to the benefits.
In addition to this, there are also other concerns. On the one hand, major drug traffickers acquired whole paramilitary blocs or fronts -or they simply posed as paramilitaries- in order to legalize their assets and avoid the many extradition requests of the US government. On the other hand, the OAS Mission to Support the Peace Process (MAPP/OEA) has not carried out a serious and independent verification process.
As far as the few paramiltiaries who will be tried, the prison sentences will also not be proportional to the gravity of the crimes committed. They will only serve sentences from between 5 to 8 years and not in formal prisons.
Lastly, far from dismantling paramilitarism, the national security policy has implemented strategies that increasingly erase the line between military and civilian life. In particular, the civilian population has been involved in programs like the informers’ network, peasant soldiers, civilian police corp, private security systems, manual illicit crop eradication programs, and the creation of new paramilitary groups.
Right to Truth
Law 975 of 2005 violates the rights of the victims by not guaranteeing their right to the truth. At most, only the judicial truth will be learned of what happened; even though political negotiation processes should seek to uncover the historical truth. Consequently, the victims will not be able to know the structural motives, or who are the intellectual authors, financial backers, and direct and indirect beneficiaries of the crimes committed.
Right to Justice
As far as the right to justice, this law includes provisions that attempt to guarantee impunity for the thousands of crimes against humanity committed by State paramilitarism. In this respect, in 97% of the cases the State renounces its duty to investigate and try and in the other 3% it will carry out apparent trials with minimum sentences.
Right to Reparation
As far as the right to reparation, one of the most harmful precepts for the vicitms is the procedure to access comprehensive raparation, called the interlocutory proceeding for comprehensive reparation. In this regard, the procedure transfers the totality of the responsibility to the victims, who should ask for reparation for the acts and provide the evidence. Only a few vicitms will receive some sort of economic compensation, but not a comrehensive reparation.
Lastly, official reports have stated that the assets surrendered by the paramiltiaries throughout the demovilization process, include 59 rural properties (25,601 hectares), 149 automobiles and 3 airplanes.  Obviously, these assets will not be able to cover all of the reparations for the grave violations to human rights committed by the apramilitary groups. It also demonstrates that these groups will maintain their economic power.
1 Executive summary of the report: Evaluation of the Paramilitary Demobilization Process in Colombia, published as a part of the proceedings from the seminar-workshop: Corte a la Impunidad – Colombia en la Mira de la Corte Penal Internacional, held in Bogotá on 2006. The organizations convening the event included the International Federation for Human Rights (FIDH), Permanent Committee for the Defense of Human Rights (CPDH), Latin American Institute for Alternative Legal Services (ILSA), and the José Alvear Restrepo Lawyers’ Collective (CCAJAR); and the associated organizations included the Colombian Association of Defense Lawyers Eduardo Umaña Mendoza (ACADEUM), Colombian Association of University Students (ACEU), ASDEP, ASONAL Judicial, FASOL, Fundation Committee of Solidarity with Political Prisoners, and National Movement of Victims of State-Sponsored Crimes.. 2 See: The False Reality of the Paramilitary Demobilization. José Alvear Restrepo Lawyers’ Collective, Bogotá, March 2, 2006 . 3 Giraldo S.J., Javier. Cinco Falacias con Paramilitares en Colombia . 4 Ibid. Giraldo S.J., Javier. Cinco falacias con paramilitares en Colombia. 5 Office of the Attorney General. Order 002518 of April 27, 2006. Signed by Luis González León, Chief of the National Prosecutorial Unit of Justice and Peace. 6 Proceso de Paz con las Autodefensas: Informe Ejecutivo. Presidency of the Republic, Office of the High Commissioner for Peace, December, 2006. Page 101 .
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