By Rutas del Conflicto and La Liga Contra el Silencio[1]
EL ESPECTADOR, May 3, 2020
(Translated by Eunice Gibson, CSN Volunteer Translator)
Today on Press Freedom Day, we are presenting an investigation carried out by Rutas del Conflicto and La Liga Contra el Silencio, two news media groups whose authors were pursued by Colombian Army Intelligence and who were included in the “Secret Files”.
In September 2018, in Castilla la Nueva, Meta Province, the environmental leader Gustavo Carrión was apprehended by the Police and accused of multiple crimes, including terrorism. Carrión, together with his community, had protested against the alleged contamination of the water supply there by Ecopetrol. He was freed fifteen days later because, according to a judge, the prosecutors had presented insufficient evidence.
In January of that same year, Ecopetrol had signed a “cooperation agreement” with the Colombian Attorney General’s Office, the National Police, and the Police Revolving Fund, for more than 17,000 million pesos (about USD 4,300,000). This agreement was in effect until December of that same year and covered several provinces, Meta among them. The purpose of the agreement was to strengthen the “investigative and prosecution capacity for the suppression of the criminal activities that affect the company, its owners, and associated groups,” and referred to crimes such as the ones that Carrión had been accused of.
In Castilla la Nueva and other municipalities, Ecopetrol signed another “cooperation agreement”, this time with the Armed Forces, for more than 14,000 million pesos (about USD 3,500,000). Of that amount, more than 2,800 million pesos (about USD 700,000) was allocated for “welfare of personnel ” for members of the Army, according to Attachment 2 of the document.
In areas of extraction activity, where the communities organize to stand up for their rights, the economic relationship that these agreements would seem to create, poses an ethical dilemma for these public agencies, since they are expected to be impartial. While companies like Ecopetrol do not see any conflict of interest, the human rights attorney Liria Manrique, and the Director of Indepaz, Camilo González, believe that the agreements could lead to some legal asymmetry.
What they are questioning
After reviewing 200 cooperation agreements, Rutas del Conflicto and La Liga Contra el Silencio found questionable aspects in the form in which businesses are furnishing money to the Armed Forces and the Police. Defense Ministry Resolution 5342 of 2014 warns that the cooperation agreements between public and private entities are only possible when they support national security. “This kind of association will be focused on the joint development of activities that are related to defense and national security,” states the document. In the contracts, on the other hand, the Defense Ministry may agree to pay for any service.
Nevertheless, the documents available in this data base show that the funds have been invested in activities that have no direct relation to the protection of the territory, or to national security, or to actions by the company that are stipulated in the objectives for the 200 contracts.
Among the cooperation agreements examined, some set aside part of the budget for the “personal well-being of the officials.” In the certificates of liquidation of the agreements, it’s evident that the “well-being” of soldiers and police is not related to their activities within their agencies, but rather consists in incentives. For example, contract No. 12-031, between the Ministry of Defense and Ecopetrol expended 470,749,660 pesos (about USD 120,350) for tourism plans for members of the Air Force.
The Defense Ministry not only allocated money in the agreements for the personal well-being of the officials; it also invested in “spiritual well-being”: the construction and maintenance of chapels. This is reflected in Contract No. 13-047, between the Spanish petroleum company, Cepsa, and the Minister of Defense. It includes an expense of 45 million pesos (about USD 11,500) for construction of a chapel for the Army’s Eighth Division. That same company signed agreement 14-016, that disbursed 20 million pesos (about USD 5,000) for the maintenance of the chapel at the Seventh Brigade.
The investigation also found that the money was being invested outside the territories in which the contract terms define its effect. In the case of Contract No. 12-031, for the provinces of Arauca, Putumayo and Nariño, which allocated 3,700 million pesos (about USD 950,000) for the construction of the Helicopter School CACOM 4 in Flandes, in Tolima Province.
That same contract, effective between June 4, 2012 and December 31, 2016, signed by Ecopetrol and the Defense Ministry, also mentions that they invested 1,430,005,515 pesos (about USD 366,000) in “improved infrastructure for accommodations at the military garrison in Bogotá”.
In addition, they identified cases where the company claims to have no documentary support for some expenditures by that public entity. An example is contract No. 006-2016, signed by Amerisur Exploration and the Defense Ministry. In the document, the company claims irregularities in the expenditure documents for 639 million pesos (about USD 163,000), and it request the Army’s Inspector General to explain why some of the expenditures don’t have supporting documents.
Why have contracts?
In Colombia, more than 70 national and international companies, mainly in the mining-energy sector, sign cooperation contracts with public agencies like the Defense Ministry, made up of the Armed Forces; with the Police; and even with the Colombian Attorney General’s Office.
These contracts exist ever since 1996, but they have only been regulated by the Defense Ministry since 2014, by means of Resolution 5342. When companies contract with the Armed Forces, they provide money and in-kind support in exchange for security and surveillance for the company’s activities and installations.
When the contract is with the Attorney General’s Office, all parties that sign provide resources. For its part, the prosecutors commit to giving priority and special attention to strengthening their capacity for investigation and filing charges for the restraint of crimes that affect the companies’ operations, as set forth in the contract between the Attorney General’s Support Organization and Ecopetrol.
The Attorney General’s Office carries out its commitment by what is known as the Support Organization (EDA), consisting of divisions set up exclusively to handle crimes against the hydrocarbon sector. Ever since 2013, the Attorney General’s EDA in Arauca, Casanare, and Meta Provinces have expanded their area of activity to investigate crimes of terrorism, kidnapping, forced labor, criminal conspiracy and obstruction of roadways that affect public order.
According to the resolution that regulates the contracts, they are to occur only when addressed to defense and security agencies, in a context where the mining-energy sector, especially all of the hydrocarbons, have been for decades the target of illegal armed groups. Blowing up oil pipelines, kidnapping, and extortion of members of those companies are some examples of that situation.
Faced with that scenario, the purpose of the contracts is to protect the companies’ infrastructure and to prioritize the criminal charges for those who attack them. It’s all for national security.
The contracts, however, have been diverted from their initial purpose and are even serving to finance other practices. Senator Iván Cepeda; the attorney representing the José Alvear Restrepo Lawyers Collective, Rosa María Mateus; and the Director of the Institute for Study of Peace and Development (Indepaz), Camilo González, are all concerned about aspects of these contracts that could result in violations of human rights. González criticizes events where any citizen “wants to walk into the company and has to deal with the Armed Forces. That’s the militarization of these organizations,” he says.
Environmental and labor activists in areas where there are contracts in effect, such as Meta and Casanare, say they have been victims of abusive force and stalking by the Armed Forces. In addition, social leaders have been charged as alleged terrorists, after criticizing the activities of the companies.
Some examples are the stories that Rutas del Conflicto and La Liga reportabout how Héctor Sánchez and Gustavo Carrión, both leaders in the defense of territory in Meta Province, were both accused and charged by prosecutors with alleged terrorism. But at the trials, the prosecutors could not demonstrate the relation between the crimes and those leaders.
Those two cases show how the cooperation agreements work between the agencies and the companies. For one part, the companies finance the Ministry of Defense and the Attorney General’s Office; and for the other part, they play the role of victims in legal proceedings where they see their activities as being affected. For the lawyer representing the José Alvear Restrepo Collective, Rosa María Mateus, the leaders and the companies are not on an equal footing when there are contracts in effect. “These contracts are an excuse for privatizing the legal system and delegitimizing the organization processes used by the leaders in the region,” she says.
For some experts, these contracts formalize a deal between the companies and the government agencies. The situation is much more complicated if you keep in mind that a number of the companies, as registered in the data base, have already been accused of violating human rights. That’s the case of the mining companies Drummond and Prodeco. Both companies were accused of allegedly financing the paramilitaries between 1996 and 2006, according to the report “The Dark Side of Coal” by Pax Christi, a Catholic international peace movement. Besides that, in October 2018, the Attorney General’s Office undertook a new investigation against the directors of Drummond for allegedly giving the paramilitaries money in exchange for security.
In the same manner, the Ecopetrol company was the subject of a complaint in the report by the National Center for Historical Memory alleging that, with permission to displace, they transported the paramilitary boss Mancuso in a company helicopter.
In the review of the 200 cooperation agreements between public agencies and companies, Rutas del Conflicto and La Liga identified agreements for amounts between 220 million pesos (about USD 56,000) and 61 thousand million pesos (about USD 15,600,000). For Senator Iván Cepeda, who in 2015 called for a political control debate in Congress about these contracts, these amounts create a situation where “the companies can turn into the de facto bosses of Army and Police units,” because they provide resources for the Highway and Energy Battalions who provide them with services.
To respond to these questions, on February 13, 2019, through a petition, he asked the Defense Ministry about its responsibility in the contracts, but there was no response. On April 1, 2019, he filed a civil rights action and it was then that the Ministry promised to provide the information, using the Army’s Logistics Department. That response never arrived.
In the same manner, they asked Ecopetrol and Isagen, companies with joint ventures registered in the database, if they thought the contracts might result in preferential treatment by the Attorney General’s Office and the Defense Ministry. Isagen answered that “periodically we update our risk analysis and effects on human rights, trying to achieve a careful and responsible operation in our production centers.”
For its part, Ecopetrol felt that that analysis is incorporated in the goal expressed in its contracts with the Attorney General’s Office, which read, in part: “to join forces to strengthen investigative and charging capacity, within the framework of the constitutional and legal functions of these entities, adopting criteria for prioritization of situations and cases related to criminal acts that affect Ecopetrol, the businesses in its business group, and/or associated businesses.”
Conflicts of Interest?
During this investigation five cooperation agreements between Ecopetrol and the Attorney General’s Office were analyzed. The documents explain that every one of the signers will furnish resources for the functioning of the Support Organization, EDA, in the Attorney General’s Office. An example is the contract No. 3011412, effective between January 24, 2018 and December 31, 2018, for 17 thousand million pesos (about USD 4,300,000). Ecopetrol paid 8,680 million pesos (about USD 2,200,000) that were allocated to the “support of the Support Organizations (in the Attorney General’s Office): costs of public services, maintenance of electronic equipment, ground transportation, postal service, cell phone service, food services, and general services.”
The Attorney General’s Office paid 7,244 million pesos (about USD 1,800,000) for legal officials’ salaries.
For Attorney Liria Manrique, who has defended some of the leaders charged by the EDA, these contracts “permit legal asymmetry at the time of presenting a defense of someone who is opposed to an industry that generates so much money for the country.” The attorney criticizes the entry of private capital into the legal system, and she wonders how this can’t be described as a conflict of interest, when they are prosecuting a leader who openly opposes the company that is financing, in part, the prosecution structure.
She asked Ecopetrol, by means of a petition, if it did not consider that a conflict of interest exists when it maintains a contract with the EDA in the Attorney General’s Office, which it is supporting economically, and which at the same time is prosecuting a person who is charged with allegedly attacking the business. This, according to Ecopetrol, “does not attack the independence, impartiality, and autonomy of decision-making in the investigations it (the Attorney General’s Office) carries out, when Ecopetrol does not interfere in those, and its special intervention is limited to that which is permitted by the rules of criminal law in its character as victim of the wrongdoers,” the oil company responded.
On May 28, 2019, she asked the Attorney General’s Office, through a petition, about its functioning and the criteria that the EDA adopts to identify individuals who supposedly belong to criminal organizations. On May 30, they answered that they had passed the petition along to the Director of Strategic Policy. That office answered on July 16 that it would need more time to respond.
In the midst of this institutional silence, the little that has been said publicly about these contracts seems to indicate that everything is fine. On October 17, 2013, the Attorney General’s Office described, through a press release, the “excellent results” of the contracts. They estimated that up until that year, the EDA had filed 813 charges, had been able to take 934 arrested persons before a judge who determines whether the prosecution may continue. In the petition that Rutas del Conflicto and La Liga had sent to the Attorney General’s Office, they asked how many of those cases resulted in a conviction. There has been no answer to this question either.
The hydrocarbon sector is also satisfied with the agreements. In 2013, Alejandro Martínez of the Colombian Petroleum Association stated that “the petroleum sector is very pleased with these agreements because we are achieving much better conditions of security and public order in the industry, which today is working to accelerate economic development in the country.”
Contracts for Power and Justice
After 23 years of their existence, we know very little about these contracts. Even though Colombian law establishes that all contracting with government entities must be public through the Electronic Public Contracting System (Secop), it’s a tough job to get access to the documentation on these contracts. To find a contract on Secop, it’s necessary to find the file number, an item that can only be found on the contract itself. Navigating the web tool is another problem; it’s not user-friendly. Another problem: these documents have a high grade of confidentiality and secrecy, as ordered by the Minister of Defense.
In order to contribute to the transparency of public information, Rutas del Conflicto and La Liga Contra El Silencio are developing the project “Contracts for Power and Justice”, a tool that seeks to provide organized and detailed information about these cooperation agreements, the municipalities where they are in effect, and the companies involved.
Through an interactive map, the user can find information on 136 municipalities where there are or were contracts in effect, with more than 70 companies involved, and the details of 200 cooperation agreements signed between 2004 and 2019. The information on the context of violence in the regions, the environmental conflicts, the resources allocated, the dates of execution, and some relevant aspects of every contract are available to those who use this portal. In addition, the preambles and some certificates of liquidation for every contract are available to be downloaded.
* This investigation was originally published on July 24,
2019 by Rutas del Conflicto and La Liga Contra el Silencio. Colombia
2020 is reprinting it here, after it was learned that Rutas del Conflicto appears among the media and journalists spied
on and “profiled” by the Colombian Army while they were preparing this
reporting. That is according to the revelations by Revista Semana in its investigation “Secret Files”.
[1] Rutas del Conflicto (Pathways of the Conflict) and La Liga Contra el Silencio (League Against Silence) are nongovernmental news organizations.