By Jorge Forero Neme, COLOMBIA+20, EL ESPECTADOR

October 6, 2022

(Translated by Eunice Gibson, CSN Volunteer Translator)

Last September 28 it was 2 years since Rodrigo Tovar Pupo, alias Jorge 40, returned to Colombia after spending 12 years in North American prisons for narcotics-related crimes. Jorge 40 was the commander of the Northern Bloc of the United Self-Defense Forces of Colombia (AUC). This paramilitary bloc operated especially in the departments of Cesar, Atlántico, Magdalena, and La Guajira. The last two were the departments where he fought for power with Hernán Giraldo, chief of the Tayrona Resistance Front of the AUC. Giraldo returned to Colombia on January 25, 2021, also having served 12 years in prison in the United States for crimes related to drug trafficking.

Both Giraldo and Tovar were part of the group of 15 paramilitaries that were extradited by ex-President Álvaro Uribe Vélez in the early morning of May 13, 2008, supposedly because they continued their criminal activities and provided neither full truth nor reparations in the Peace and Justice Process, although they had taken part in the Process after the demobilization of the AUC in 2006.

According to the statement by the President at the time of their extradition, the North American government had acknowledged that the property and money that the extradited men had turned over through agreements with United States judges, would be dedicated to reparations for the Colombian victims, and that the moral reparations would be carried out from the United States, guaranteeing the full truth and the reparations to the victims, and that that would be seen to result from the extradition.

Despite that, after 14 years had passed since the extradition, we can see that those promises had been suspended. On the one hand, few of the paramilitary chieftains continued furnishing the full truth after their extradition. Salvatore Mancuso and Hernán Giraldo were two that furnished the most, while Jorge 40 never gave a single statement.

But in addition, some of those bosses reached agreements with the government of North America, agreements that included payment of exorbitant fines and providing testimony in the cases of other drug traffickers. Some of them, like Carlos “El Tuso” Sierra and Carlos Mario Aguilar, alias “Rogelio”, had agreements under which they were guaranteed that they would not have to return to Colombia. This was documented by the New York Times in 2016, but it simply could not be determined whether any of their money had ever been sent to Colombia for the reparation of the victims.

Last August 22, now in Colombia, in the Picaleña Prison in Ibagué (Tolima Department) and under the jurisdiction of the ordinary criminal justice system, Jorge 40 pleaded guilty to charges of 12 acts of homicide of a protected person and forced displacement. The killings took place on the Atlantic Coast. He faces pending charges for massacres, displacements, forced disappearances, terrorism, kidnapping, and homicide of a protected person. These charges are related to nearly 180 criminal events, where the prosecutors have identified more than 300 victims.

Hernán Giraldo’s case is different. He expected to remain free after he returned to Colombia, as after his extradition he continued to furnish full truth and to turn over property to the Colombian government, but recently, prosecutors have accused him of allegedly having committed crimes of sexual violence after he had demobilized.  That could cause him to be expelled from the Justice and Peace Process. It’s worth noting that there are still open cases against Hernán Giraldo in the Justice and Peace Process. These open charges total more than 400 criminal acts, including crimes like displacements, forced disappearances, and homicide of a protected person.

The cases of the 15 paramilitary chieftains extradited are now more in effect than ever, for different reasons, on the one hand, because of the recent return of Jorge 40 and Hernán Giraldo, and on the other hand, because extradition has become the center of discussions in this country since Antonio Úsuga, alias “Otoniel”, was extradited last May 5. That opened the debate once again on extradition as a barrier to achieving full truth, justice, and reparation, as claimed in a petition for a preliminary injunction preventing his extradition filed by victims’ groups, hoping to guarantee their right to full truth, justice, and reparations, plus other things.

Otoniel was finally extradited, even though he was cooperating actively by providing the full truth before the JEP and the Truth Commission. The preliminary injunction that the Council of State ordered at that time, it later withdrew.

The experience of the 15 paramilitary chieftains appears to demonstrate that once we extradite those responsible for human rights violations, the full truth that they could provide, the reparations for their actions, are  pretty much subject to whatever they feel like doing. Even in the case where the person extradited is willing to talk, the time seems to stretch out because the testimony has to depend on the time taken by the legal system and on the North American prisons.

Neither is it possible to guarantee that those extradited will return, or that all of the money they turned over in the United States will be available for reparations to the victims in Colombia. That will depend on what the United Stats wants and on Colombia’s diplomatic capability, as the extradition treaty is in a strange limbo where it can’t be applied in Colombia because it’s been declared unenforceable, but neither has there been a complaint filed under international law, as there is no applicable stipulation in the treaty. Therefore the United States is not obliged either to furnish the money that was paid in fines to the Colombian victims, or to return the extradited individuals to Colombia once they have served their sentences for drug trafficking, contrary to ex-President Duque’s statement in his formal pronouncement on the extradition of alias Otoniel.

Now extradition is one of the central issues in President Gustavo Petro’s “total peace” project. It includes the possibility of suspending arrest warrants and extradition along with the President’s public declarations affirming that the drug trafficker who applies to the ordinary criminal justice system and collaborates with it will not be extradited. For now, it appears that the new administration understands the importance of giving preponderance to the full truth, justice, and reparation for the victims of human rights violations over achieving goals for extraditing drug traffickers to the United States. However, maintaining extradition without guarantees in the international area leaves a door open for every person extradited for drug trafficking to never answer for other crimes committed in Colombia.

Given this situation, as long as Colombia fails to renegotiate the conditions for extradition with the United States in an agreement that guarantees the rights of the victims, cases like that of Tuso Sierra, who now is living free in the United States without answering for his crimes in Colombia, or that of Jorge 40 and Hernán Giraldo, who, with 16 years passed since they turned themselves in, still have not been convicted of the majority of their crimes in Colombia and still walk free, while the victims of their massacres, disappearances, and forced displacements, wait years to receive their full truth, justice, and reparation.

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