EXECUTIVE SUMMARY AND RECOMMENDATIONS

How Colombia implements its controversial new legal framework for demobilising the far-right paramilitaries and returning them to society is critically important. It can either take a decisive step towards ending its 40-year armed conflict or see prolongation of violence and the rise of an ever more serious threat to its democracy. Most paramilitaries have turned themselves in but the Justice and Peace Law (JPL) – criticised by human rights groups when enacted in July 2005 – has still not been applied. There is concern the Uribe administration prioritises quick fix removal of the paramilitaries from the conflict at the cost of justice for victims and the risk of leaving paramilitary economic and political power structures largely untouched. International support for JPL implementation should be conditioned on a serious government strategy to apply the new framework, as well as steps by President Uribe to contest paramilitary efforts to keep their crime (including drug) fiefdoms and build their political power.

By early March 2006, President Alvaro Uribe had achieved demobilisation of some 24,000 of an estimated 27,000 to 29,000 paramilitaries, including its most notorious commanders, using a 2002 law which authorises pardons for rebellion and sedition. Focusing on dismantling the overt military structures of the paramilitaries, but not their powerful mafia-like criminal networks that continue to exist in many parts of Colombia, however, his government has not sent a clear signal that it is determined to apply the JPL rigorously and take into account the arguments of its many critics. Indeed, the new law is still not being implemented – because of a constitutional court review but also tactical calculations.

The government appears to believe it may endanger demobilisation of the remaining 4,000 or 5,000 paramilitaries if they witnessed an early demonstration that the JPL was being applied stringently. However, the overlap of the congressional elections (12 March) and presidential elections (28 May) with the final phase of paramilitary demobilisation has raised suspicion in some circles that the reluctance to send a clear message about how the JPL will ultimately be implemented is also affected by electoral considerations. Uribe is running for re-election and while it would only damage him in the long run to have any taint of support from the paramilitaries, there is evidence that former commanders and circles supporting them have attempted to use intimidation and money to get some of their own candidates into the new Congress, elected on 12 March, and weaken the anti-Uribe opposition.

Whether, if re-elected, Uribe could achieve sustainable peace depends in large measure on how his administration handles the implementation of the JPL and the reinsertion of former paramilitaries. The law has a history of strong human rights criticism because it does not guarantee victims’ rights to reparations and truth and opens the door to impunity – or at best relative judicial slaps on the wrist – for former paramilitaries who committed heinous crimes. These concerns need to be addressed now through a transparent government strategy that prioritises full dismantling of the paramilitary military and criminal structures, the rigorous prosecution of past atrocities and partnership of the victims and civil society in implementing the JPL. The government also needs to remedy the flaws of its programs for reinserting demobilised paramilitaries.

The law was designed to apply as well to demobilisation of the country’s left-wing insurgencies, the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN). It is highly unlikely that it could be used in the foreseeable future with the larger and more powerful FARC, which has staked out a position of unremitting hostility toward Uribe and is unwilling to negotiate. But the commitment the government shows now to a transparent and rigorous application of the JPL to the paramilitaries could help advance the rapprochement with the smaller ELN, which talks in Havana in late 2005 and February 2006 seem to have set in motion (though a number of other obstacles exist, such as fragmentation of the insurgent organisation).

RECOMMENDATIONS

To the Government of Colombia:

1.  Design and implement now a strategy for the rigorous and transparent implementation of the JPL that embraces the following:

(a)  prompt and rigorous law enforcement action against demobilised or still active paramilitaries as well as their sponsors and supporters, including members of the security forces collaborating with paramilitaries, who are interfering with the democratic electoral process; and

(b)  monitoring and screening mechanisms to ensure that prosecution of demobilised paramilitaries under the terms of the JPL fully comply with all stipulations of the law, including:

(i)  hand-over of all ill-gotten assets, including land, to the National Reparation Fund;

(ii)  disclosure of involvement in crimes and knowledge of paramilitary structures and financing sources;

(iii)  dismantlement of the paramilitary unit and criminal networks to which the prosecuted individual belonged;

(iv)  liberation of all kidnap victims and identification of the burial sites of disappeared persons;

(v)  hand-over of all under-age fighters to the Colombian Institute for Family Welfare; and

(vi)  assurance that there are no drug traffickers among the JPL-prosecuted individuals.

2.  Establish positions of vice-minister in the ministry of the interior and justice and high commissioner in the presidency, charged with implementing programs for reinsertion of ex-combatants into society and coordinating the efforts of government and state agencies, as well as the private sector and NGOs, in particular on the local and departmental levels.

3.  Incorporate a more effective monitoring system into the reinsertion programs to address the danger that ex-combatants will re-enter criminal and drug trafficking networks or otherwise become security threats again.

4.  Provide additional financial and institutional assistance for the Reference and Opportunity Centres to develop psychological support for easing the reinsertion process for victims, particularly women.

To the Attorney General:

5.  Increase efforts to consolidate a comprehensive and standardised database on human rights violations and serious crimes, including gender-based crimes, committed by the paramilitaries, the FARC and the ELN and link this database to information gathered by other state agencies as well as civil society and human rights organisations.

To the National Commission for Reparation and Reconciliation:

6.  Make victim and civil society participation, including by indigenous, Afro-Colombian and women's groups, a priority, both in the work of the national and regional commissions and in implementation of the JPL.

7.  Engage victim associations and civil society organisations broadly in a dialogue aimed at building consensus on the commission’s strategies and work plans and emphasise its independence from the executive.

8.  Identify lands obtained by members of illegal armed groups through violence and intimidation and seek to return those properties to internally displaced persons.

9.  Request support for identifying victims from experienced human rights-related forensics organisations such as the Argentine Forensic Anthropology Team and the International Commission on Missing Persons.

To the Government of the United States:

10.  Maintain its requests for extradition of former paramilitaries to the U.S. to face drug trafficking charges.

11.  Condition material support for JPL implementation and reinsertion programs for ex-combatants upon the above-listed reforms but provide immediate aid to prosecution efforts of the Attorney General.

12.  Emphasise assistance to vulnerable populations, and in the case of the internally displaced help the Colombian authorities identify land illegally obtained through violence and return it to the original owners.

13.  Help the UN High Commissioner for Human Rights field offices, Colombian human rights organisations and the Organisation of American States (OAS) verification mission to improve their monitoring of the JPL, demobilised ex-paramilitaries and human rights violations.

To the European Union and its member states and the Government of Canada:

14.  Condition material support for JPL implementation and reinsertion programs for ex-combatants upon the above-listed reforms.

15.  Provide financial support throughout the conflict to the National Reparation fund to ensure that victims, particularly women, and indigenous and Afro-Colombian groups are adequately compensated for their losses.

To the OAS Verification Mission:

16.  Focus on complete paramilitary demobilisation and introduce a system establishing whether the number of demobilised fighters matches that of weapons turned in.

17.  Design a strategy for verifying the reinsertion process that serves as an early warning mechanism for violations by ex-combatants and report periodically on government response to such violations.