EL ESPECTADOR, May 6, 2021

(Translated by Eunice Gibson, CSN Volunteer Translator)

Sandra Borda, along with Vivian Newman, and Camilo Umaña, three human rights experts, analyze the situation of the National Strike, the legitimacy of the government to negotiate, the abuses by the Armed Forces, and the international repercussions.

What is your perception of the national strike and what is the main difference with the demonstrations that have take place in this country in recent years?

Vivian Newman: Colombia has gone through different stages in the right to protest. During all of the period before the Constitution of 1991 and the Peace Agreement, in Colombia protest was very much stigmatized. But after the signing, there was a resurgence, like an unlocking of the right to protest. Since then, we have had the protests of November 2019, the ones in 2020, and the ones of this year, with all-around participation by the citizens, such as women, indigenous people, people of different ages, workers, and the middle class. Before, the protests were for, as some said, people who had problems. Now they come from the citizens. In these recent protests, we have the repression that the economic problems has brought, and which has increased because of the pandemic, and we have the loss of freedom and several of our rights in the last year of the pandemic.

People right now are demonstrating what their situation is. There is no way of describing it to anyone, no paths for participation, and they have to do what they can; these protests represent an important scenario for the citizens to seek a way to show their discontent. Forty-two percent of the population are not able to pay for basic necessities. So, anybody is going to think it’s better to be in the streets bringing democracy than staying home and being hungry. We have to build a social contract, as some have called it, that responds efficiently to the needs created by the pandemic and the confinement.

It’s necessary to comply with the decision issued by the Supreme Court of Justice and it’s also necessary to get through the dialogs later on. What will be the political cost of the government’s use of repression instead of dialog?

Sandra Borda: I have the impression that right there is where the problem is, because part of what’s happening is that, even though the government has now seen itself completely obligated to undertake a dialog, it did it in the state of great political weakness that it’s in right now. It’s going to be very difficult to avoid ending up with a dialog where they generate a lot of mechanisms to make sure that they don’t lose any political capital in the negotiation. Contrary to what intuition will tell you, the matter isn’t so easy, and negotiation with a government that is politically weak doesn’t work very well, because it’s a government that isn’t ready to concede a single thing. It’s a conversation that has a lot of restrictions.

Another major restriction is that it’s very hard for the political sectors in the country, in the midst of the government’s weakness and its loss of legitimacy, because of its use of repression against the citizens, to take part in a conversation that might serve as a legitimate mechanism for a government that is repressing its citizens. I’m powerfully reminded of Gustavo Petro’s second statement. He insists: this is a negotiation that has to be done with the Strike Committee that says it doesn’t want to be there. He says it very clearly: He says: “I don’t think that photo is necessary.”

I think the logic behind that, which was also the logic of the coalition of La Esperanza in not going to the meeting at the Palace to which the government had invited them, is simply that nobody wants to suffer the fate of contamination by illegitimacy and lack of credibility because of a conversation with a government that talks by day and kills by night the citizens that go out to protest. The other credibility problem is the result of the bad way the national conversation has been managed after the strike of 2019. Then, together with the fact that the social organizations that were part of the Strike Committee did not have much absolute control of the citizens protesting, as they had in 2019, making the form in which they would enter the conversation enormously more difficult.

What the government is looking at is difficult, and besides, it has to change the chip. The government keeps on talking about public order, when the people that are in the street are asking it to pay attention to the social and economic needs people are experiencing as a result of the confinement and the economic crisis. Because there is simply nothing to talk about. They are worried about the vandals or concerned about the property damage. But they aren’t worried about giving assurance and guarantees in the matter of the rights of the people that are protesting. In addition, they aren’t even in the same channel of conversation as is civil society.

There are different sectors that are protesting, but the message is the same. Can it be said that the government underestimated the National Strike and that‘s what provoked an escalation of the violence, when the government decided to militarize certain cities?

Camilo Umaña: I think that this protest is not an isolated event; it’s related to a long-term social problem that is partly poverty, but also de-institutionalization. There is a kind of decay in the social state based on the rule of law, where the state, and particularly the national government, has lost a capacity to interact and dialog with the demonstrators and, above all, it ‘s disconnected with the social necessities that the country is experiencing. I believe there is an expansion in social claims, maybe not just a single claim in the streets, and that makes it much more difficult to carry out an agenda of negotiation or dialog.

The streets are a thermometer showing that the citizens want to take part much more in public affairs, and that, furthermore, the institutional channels are not being sufficient or, at least, they aren’t being open enough to them. The peace process left the impression of an appetite for a democratic opening up that was perhaps only thought to be for a special group, but here we are experiencing the multiplication of social demands in an environment of serious social confrontation.

Is there any possibility that this government will negotiate?

Camilo Umaña: I’m very skeptical that there is a possibility of negotiation. The government lost all of its capacity for articulation of this conversation after the strike of 2019. That, added to its low popularity and the very bad measures it has taken in the context of its function; that nullifies the government as a valid actor. Add to that a bigger problem, and that is that it appears that the agencies of control (Attorney General, Public Defender, and Inspector General) ought to be able to play a role in this problem, but the effort of the national government to coopt the agencies of control has left us without that possibility. That’s to say, the Public Defender and the Inspector General have been conspicuous by their absence from effective control.

The question is who or which agencies will not de-institutionalize the country more than it already is, and don’t take us into absolute anarchy, will be able to put together a valid dialog between parties that are really disposed to negotiate, and that the warlike language and serious social confrontation can be lessened. This is the million-dollar question, but I think there are a few keys: the government does have to take some essential steps right away. Those are social intervention and replacing its logic of repression; reformulating economic policies; and restructuring many of its agencies. The government must be guided by the principle of good faith, not the bad faith of playing political games in the conversations. That would be extremely costly. If they were to act in bad faith and fail to carry out the agreements, that would have a high cost for future generations. It would send a generalized message of societal mistrust.

How can Iván Duque’s government recover control, and what steps should it take?

Vivian Newman: The million-dollar question, of course. I don’t have the solution; I have more questions, but I think I can give some elements that are lacking right now in that “cocktail of disconnect” and in de-institutionalization. The first is to call for a guarantee of human rights for the citizens, and the end of violence. I don’t believe in violence. I think that here President Duque has erred flagrantly. Every time he goes out to talk in public, what he says is about the vandals, and he won’t admit that the human rights of the protesters are being violated. Neither will he admit that the Armed Forces themselves are abusing rights disproportionately.

That would frame the carrying out of the orders in the decision in a civil rights action on the protests of 2019. In that case the Supreme Court of Justice issued orders in September of last year. Some of those have been carried out, but we still lack several points. For example, there must be neutrality. The violation of human rights with firearms is smoldering and the government can’t deny its responsibility by attributing it to the old and worn out speech about the dissidents and the subversion and the drug traffickers. They are certainly present in some manner, but that cannot be the justification.

But in the face of the lack of institutionalization that you three are mentioning, who ought to be the emerging figures that will allow this dialog?

Sandra Borda: That is a fundamental question because what is needed, in a situation like this, is for the government to lead the conversation. I see many political sectors trying to propose alternatives and that seems healthy to me. I’m pleasantly surprised that, for example, the center and the left have found tremendously similar proposals, like compulsory basic income, the mandatory levies, and the cost-free access to public universities. There are many ways of starting to lead on this. The rollback of the tax reform in 2019 tried to have the richest sectors contribute more, as it should be. I think there are extremely important areas of agreement and places where fundamental things could be initiated.

This time we need a government that will subsidize and a government that will help and will give a hand to people to help them get through the crisis we are in. We have now arrived at this consensus, but not in the Palace. The problem is that, let’s say that the government keeps on being determined to look at this, let me stress , as a problem associated with the FARC dissidents etc. Then I think that the leadership in this is going to fall to others. There will have to be some mechanism for rebuilding the links between the political parties, the social organizations, and the people that are protesting. Paradoxically, I think this is an enormous opportunity to go back to talking and also, for the citizens to go back to telling the political class that they are going to have to turn around and look at them and not the reverse. There has to be a transmission belt between the government and those citizens. If that happens, we will all win, from the citizens to the political class and the agencies that are so tremendously discredited. I think that the way out is in the intermediaries, but they will have to put an enormous political will into doing it.

Vivian Newman: I would like to add one thing. I would say yes to the conversation, maybe not at this moment, but rather that we put as a precondition, the compliance with those minimal guarantees so that one set of things doesn’t happen at night while different things happen in the daytime. We need a humanitarian corridor, and to start avoiding those killings and disappearances. And furthermore, at mid-range, think about the negotiation necessary to have a minimum of the social programs proceed in Congress, because they aren’t covered beginning with the second half of the year.

Add to the lack of institutionality the police abuses and violations of human rights in the framework of the protest, and the government’s attempt to recapture public order. Can the Police dissuade a demonstration by shooting, and use the argument that the person at the head of the line fired the first shot?

Sandra Borda: In the majority of the cases, the citizens are not firing. So this isn’t even a defensive reaction to begin with. And furthermore, their use of force is completely violating the principle of proportionality. That principle dictates to the Armed Forces that, if there are violent incidents, they have to focus on those incidents and deal with them. They are to prosecute the people that are responsible for them, but they can’t completely dismantle a public protest because of some violent incidents. Now, with all that said, if the government’s plan to deal with the situation of public order is, as we are hearing more and more, that it’s necessary to declare a State of Emergency, that will only end up stoking the crisis even more, because they are continuing to think it’s a problem of public order.

If the Armed Forces do these things in normal times, I don’t want to think of what might happen in a State of Emergency. That would put us in an extremely dangerous parentheses in the matter of security, and it would indefinitely postpone, to the detriment of the citizens and to the establishment itself, the satisfaction of the needs that are motivating the protest. I think what they are planning is to put more wood on the fire. And that isn’t going to turn out well for anyone. Add to that the abuses and violations of human rights in the midst of the protests.

Camilo Umaña: Here there may be a risk of declaring a State of Emergency. I’m a little bit skeptical that it will take place, because I think it already exists in fact. That’s to say, there is an exacerbated limitation of public liberties and the Armed Forces are in the streets. And the Police have intensified their use and abuse of their authority. That shows a curtailment of public liberties and limits the participation of civil society, and that’s why people are demonstrating. That explains the protests in part.

The question is in what measure the authorities ought to intervene or not in the demonstrations, and how International Human Rights Law (DIH) has affected Colombia. The rules of combat have been mixed up and confused by the Armed Forces in thinking that every form of intervention must be carried out according to the DIH way, even in the face of civil problems and problems in which the DIH are not applicable. The only setting in which you can apply those principles is in a setting of internal armed conflict, and not for serious social confrontations, popular uprisings or civil massing, as is going on in Colombia.

The use of lethal weapons for this type of demonstration is absolutely prohibited. And the restriction is imposed, not just on internal operational rules, but also by the DIH. Here we should not forget that the current situation ought to be governed by the Rule of Law and fundamental rights. And the authorities exist to protect those. On Tuesday there was a very worrisome interview with the Human Rights Councilor for the President’s Office (Nancy Patricia Gutiérrez), where she said that human rights were to be guaranteed to the extent that the citizens comply with their obligations. Trying to justify the idea that when people throw one or two rocks, they lose their human rights. That is vicious.

Human Rights are in effect in times of serious commotion. They are designed so that we in society manage our differences while respecting some basic minimums, starting with the right to life. But we can’t limit the vision of the conservation of the right to life to how many people they killed or disappeared. If starting tomorrow there are no longer killings and disappearances, we have concluded a cycle of repression. But we have to broaden our vision of what’s going on, because this social problem begins with a multiplication of the methods of repression, at a point that has led to asphyxiating the society.

Considering the possibility of a State of Emergency, what complication could lead to the delegitimization of the social protests, so as to justify the actions they took to restore order?

Vivian Newman: What delegitimization could there be? More than we have right now? To what we already have, add the whole cocktail of military assistance. On May 1, President Duque mentioned in his remarks that the concept of military assistance would remain effective in urban centers of high risk. This is a not very well-known concept, established in Article 170 of the National Police Code. It has existed since the prior Police Code in the ‘70’s. It’s a call for the Armed Forces to contribute to the Police Force where there is an emergency or a public calamity.

If President Duque says that it’s going to continue in effect in the urban centers, that means that it’s in effect now; it means that military assistance has already been activated, and what is the basis for that military assistance? What are the controls? Who knows whether it’s properly justified or not? If the justification is for reasons of public security, why don’t the citizens have access to that explanation? We are really not able to take control of what already exists right now. The State of Emergency, which could be the next step, exists in the Constitution, and at lease there has to be a decree in administrative actions, a decree with the force of law, that will have some control by the Constitutional Court. It doesn’t have that right now. It has a limitation as to time, it requires exceptional circumstances, it has some of the same requisites as are required for military assistance, but it has a means for the maintenance of judicial control.

Why do so many human rights violations keep on taking place in the framework of social protest?

Camilo Umaña: There are exorbitant numbers of regulations. There is regulation from the weapons to the uniforms; the code of conduct, the disciplinary code, the penal code, the operational regulations. There is a tremendous amount of regulation. It’s true that there are some efforts at training, but they experience an institutional culture that is highly specific, in which the Police are invited to exercise their authority by using force. That’s the criterion in a country that is taught that authority is not associated with the force of argument or of debate, but rather with physical force. At the same time there is a doctrine of stigmatization and discrimination, because the government is desperate to treat every action in the strike as being connected to a gang of drug traffickers and international gangsters that are not part of the operations of the march. Obviously all of those groups exist in the society, that’s evident. But it’s absolutely unspeakable that they think in carrying artistic candles and banging pots and pans there is intervention or financing by that kind of group.

The measures are uncontrolled because the prosecutors don’t do their job of exhaustive investigation. They are thinking about the transfer that protects them with the support of the Police Code. That’s why the majority of people in the country that were protesting were arrested. That measure has no control of any kind, because it’s a waste and contingent on the organs of control, because the transfer is an administrative measure of deprivation of liberty. In that context they are committing many abuses that are not being registered. For example, for the woman they tried to rape, for the man they tortured, and kept in a locked room all night, cold and hungry. That type of thing isn’t made public and there is no investigation by control agencies. It requires oversight activities, national and also international, because all of the human rights agencies are functioning in this country.

How do you explain to someone who thinks that if someone in a neighborhood in the middle of a protest fires at a police officer, the officer should be allowed to fire back?

Vivian Newman: The Police are here to protect everybody, even those who are failing to comply with their civic duties. That person also has to be protected, and /her rights have to be guaranteed. The Police are trained to guard and protect all rights; the officer is armed, and the citizens have paid for their weapons so that they can defend us. When a police officer is found in a situation with an armed individual, that officer should have been trained to disarm the person, to try to shoot him where it causes the least harm, where it causes the least harm to others. The harm to one cannot be comparable to the harm to the other because the citizens’ confidence has been placed in its Police, while the citizens’ confidence is not in other people.

All of the international pronouncements, including those of the United Nations, the OAS, and even the Department of Justice itself, and the Congress of the United States, have been opposed to the government’s intervention in the protests. What are the implications of those pronouncements?

Sandra Borda: We are in an international context that could greatly increase the cost to the government of being, at the least, tolerant of the abuses by the Armed Forces and their causing so many human rights problems. I think there are both material and symbolic implications. The material implications we see in the United States House of Representatives that publicly threatened, via Twitter, to apply an amendment to the cooperation that it has had with Colombia on the issue of security. Basically, what that means is that the amendment puts restrictions on military, economic, and social aid that the United States furnishes to its allies if they should find out that the aid is reaching actors that use it to commit flagrant violations of International Humanitarian Law and human rights.

What they are explaining, basically, is that the United States is turning off the faucet. I think there is an enormous risk in that, keeping in mind that it’s our principal source of cooperation in matters of security. This government’s record in the matter of security is bad enough; imagine what it would be without funds from the United States. Besides that, in the White House they have in the State Department and in the international aid system USAID two people that were intimately connected with international human rights activism. Particularly Samantha Power, who has placed a great deal of attention on the subject of human rights violations in Colombia.

Along with that, they have a Democratic administration and a Democratic caucus that are tremendously close to the nongovernmental organizations on human rights in the United States, and who have direct and permanent contact with Human Rights Watch, with Vivanco, and with Amnesty International, and they are constantly nourishing their policies with reports by the human rights defenders’ organizations. We are getting ourselves in serious trouble and, if you like, we can keep on talking about the Inter-American System for Human Rights where they will certainly go, to file some cases resulting from the violations we are seeing. In addition, there are people that are already starting to talk about complaints to the International Criminal Court for just the crimes against humanity alone. So, it’s a situation with enormous consequences in the international area, which I think are being underestimated.

Dejusticia and 20 other organizations sent a letter to the CIDH in which they asked that a special group be created to investigate the police violence in the protests in Colombia. How quickly might such a group arrive and, in practical terms, what does that mean?

Vivian Newman: It’s called a visit to the location, which is like “tell them to get over here”. I don’t know when there physical arrival would be, in the midst of the pandemic, but it’s that they would be here to keep an eye out, to monitor and do follow-up on the rights to protest and all of the fundamental rights related to that. How soon? I think that in general the key to this is that the visit can’t happen without the authorization of the Colombian government. We have to advocate that the Colombian government recognize the importance of also having international observation present to avoid getting to levels beyond where we are, which are already serious enough.

Anything to add?

Camilo Umaña: I believe the government has an obligation to de-escalate. Putting the thermometer next to the citizens, which are such an enormous mass and with so much diversity, it’s important for the government to keep its shirt on, and not start a campaign of worse repression. In that way we can have some minimal bases for peaceful conversation that can lead to building some agreements.

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