By: Lisa Haugaard and Omar Martinez, Latin America Working Group
Peace Process Advances; Civil Society Involvement in Peace Negotiations—or Lack Thereof; Colombian Congress Approves an Enormous Setback for Justice; 2012: A Year of Ups and Downs for Labor in Colombia
Peace Process Advances
The Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas opened peace negotiations on October 18, 2012 in Oslo, Norway, raising some hope of putting an end to the hemisphere's longest-running armed conflict. In August, the two parties had agreed upon a five-point agenda which consists of: rural development, political participation, ending the conflict, solving the problem of illicit drugs, and victims.
With the governments of Norway and Cuba acting as guarantors for the peace process and Venezuela and Chile providing logistical support and accompaniment, the substantive talks started in Havana in November on point number one, rural development. The government and the guerrilla delegations each have 30 members, with five from each team participating at the negotiating table at any one time. The U.S. government has repeatedly indicated its support for the Colombian government's decision to enter into peace talks, although the USG is not playing a direct role in negotiations. Colombia's second principal guerrilla group, the ELN, has offered to join the talks but the Colombian government asserts that it will proceed solely with the FARC at this moment. President Santos has stated his intention to achieve a final accord with the FARC before the end of November of this year.
The talks are closed door, although information does leak. While the FARC floats proposals aimed at more sweeping change, President Juan Manuel Santos has repeatedly made clear his determination that Colombia's basic economic and political model is not on the table for negotiation. He has stated that fundamental aspects of national life such as the Constitution, the development model, and the concept of private property are not up for discussion.
A cease-fire has been an important bone of contention. The Colombian government has so far refused to establish a cease-fire until the FARC lays down its weapons, and indeed has escalated military action in a number of areas of the country. The FARC announced a unilateral cease-fire in November, which it then lifted on January 20, stating it would not continue as the government had not reciprocated. There were accusations that the FARC had violated its own cease-fire. Another area of contention is over keeping the negotiations under wraps; the FARC complained after President Santos's brother, Enrique Santos, gave an all-too frank media interview revealing details of the negotiations.
Despite these differences, talks do appear to be moving forward. On the first agenda point, for example, both sides have agreed to the need to provide land to the landless and displaced, while the FARC has backed off of its longstanding demand for more sweeping agrarian reform. While some sectors—notably former President Alvaro Uribe and his active twitter account—raise objections to the negotiations, broad sectors of the Colombian public at the start of negotiations appeared to be willing to give the process a chance, even if optimism is greatly tempered by the wreckage of past failed peace efforts that litters the Colombian mental landscape.
Civil Society Involvement in Peace Negotiations—or Lack Thereof
There is no formal civil society involvement at the negotiating table. The Colombian government and the FARC have agreed to several more indirect mechanisms for civil society involvement at this stage. First, they have set up a web page (www.mesadeconversaciones.com.co) where any Colombian citizen or civil society organization can submit a proposal. This very limited mechanism receives “proposals” of up to 500 words, which are provided to negotiating teams but not displayed publicly. Second, the negotiating teams asked the National University and the UN agencies in Colombia to convene working groups on the first agenda item, rural development, and to summarize and synthesize the proposals that emerge for them. Over 1,300 people participated from 1,200 organizations. Potentially, this kind of effort could continue for other agenda items. Third, Colombia's congressional peace commission is organizing regional forums to collect and debate civil society input.
The negotiating teams have stated that civil society participation can be more substantial in the third phase, which is the discussion of how to implement the agreements. However, this leaves the victims of the violent conflicts – victims of the guerrillas, of government forces, and of paramilitary warlords—on the margins as crucial decisions that affect them are made, including the measure and quality of truth, justice and reparations for victims that these peace accords promise to deliver. Senator Juan Fernando Cristo, who had championed the Victims' Law which President Santos signed into law in 2011, cautioned that “A peace without the victims will have no political or moral legitimacy.”
A major network of civil society groups, Coordinación Colombia Europa Estados Unidos, raised the following concerns and recommendations:
- Protect the civilian population now, as talks proceed. As peace talks advance, the war is only escalating in certain regions, particularly indigenous and Afro-Colombian areas. Coordinación calls on both the Colombian government and the FARC to respect international humanitarian law, including ending recruitment of minors, sexual violence, aerial bombardments of civilian populations, and military operations in indigenous and Afro-Colombian territories. The coalition called on both parties to agree to a bilateral cease-fire.
- Provide more effective inclusion of civil society, particularly victims' organizations, in this current phase of dialogue. “Given that the agenda should address the rights to truth, justice, reparation and the guarantee of non-repetition [that abuses will not continue], how the parties can attempt to reach agreement on these issues without the participation of victims and human rights groups cannot be comprehended”; “this leaves their participation for the implementation phase, when everything has already been decided.”
- Add to the agenda the topic of justice for grave human rights abuses, war crimes and crimes against humanity. Justice “has been excluded from the agenda.”
- Establish a fully independent Truth Commission, as a “crucial and nonnegotiable demand.” The Coordinación calls for a commitment from all actors—whether “state, para-state, and against the state” –to speak the truth about their actions that have violated the human rights of Colombia's citizens. This includes revealing what happened to the kidnapped and the disappeared. Transitional justice measures cannot be applied without truth and reparations to victims.
- Ensure a complete and effective demobilization of paramilitary groups and paramilitary successor organizations.
In the public forums on rural development, civil society organizations called for protection for communities returning to their lands; distribution of unproductive state-owned land to small-scale farmers; building of “campesino reserve” areas where small-scale farming will be protected; promotion of opportunities for rural youth; improvement of rural infrastructure; respect for indigenous and Afro-Colombian territories, including use of “prior consultation processes” for development projects; and limits on mining exploration.
Colombian Congress Approves an Enormous Setback for Justice
On December 11, 2012, the Colombian Congress, with the full support of the Santos Administration, approved a justice “reform” bill that will likely result in many gross human rights violations by members of the military being tried in military courts—and remaining in impunity. This law (Legislative Act No. 2 on Military Jurisdiction), along with a separate ruling by the Council of State, unravels the reforms put in place after the “false positives” scandal in which over 3,000 civilians were killed by soldiers. It will affect both future crimes committed by members of the military and, likely, many of the “false positive” cases currently winding slowly through civilian courts. See the attached statement from U.S. human rights organizations.
In the “false positive” cases, soldiers detained civilians, and killed them in staged battles, dressing them up in guerrilla uniforms to be claimed as enemy dead. Sometimes, as in the Soacha scandal, soldiers paid criminal “recruiters” to provide them with victims, often young men from poor neighborhoods that they thought would not be missed, who were lured with promises of jobs. When the UN Special Rapporteur on Extrajudicial Executions, Philip Alston, came to investigate in June 2009, he not only documented the enormous scope of the problem, but also noted that soldiers were carrying out these killings to win incentives such as bonuses or days off.
The Attorney General’s office is investigating more than 3,000 civilians allegedly murdered by soldiers, most between 2004 and 2008. The coalition of human rights groups in Colombia known as the Coordinación Colombia Europa Estados Unidos (CCEEUU) has documented 3,512 extrajudicial executions between 2002 and 2010 committed in 31 out of 32 provinces. Of the 80 percent of these cases for which a presumed perpetrator could be identified, 89.2 percent involved members of the armed forces, 8.6 percent the police, and the remainder were from the air force, navy and the prison system. At least 21 territorial brigades and 19 mobile brigades were identified as perpetrators. More than 44 percent of extrajudicial executions were in the zones where the First and Seventh divisions of the army operated.
Under pressure from the U.S. State Department under Republican and Democratic administrations, the Colombian government put in place some reforms that helped bring the number of new extrajudicial executions down dramatically. It established an accord that allowed the Attorney General’s office to investigate the scene of the crime where extrajudicial executions were alleged and make the determination of whether cases should go to civilian or military courts. It began to enforce the constitutional provision that stated that grave human rights abuses committed by soldiers should be tried in civilian, not military courts, and hundreds of cases were transferred to civilian jurisdiction. But while Colombia did make progress in investigating and prosecuting extrajudicial executions, prosecutions were slow, and higher-level officials under whose command multiple extrajudicial executions took place escaped justice. Indeed, some were promoted.
These still limited advances are placed in jeopardy by the new law. What are the problems with the law?
Which human rights crimes are excluded from military jurisdiction. The initial draft bill excluded very few crimes from military jurisdiction. After much pressure from Colombian and international human rights groups, the UN, Inter-American Commission on Human Rights and the U.S. government, the law excludes from military justice what sounds like an appropriate list of grave abuses: genocide, crimes against humanity, forced displacement, sexual violence, forced disappearance, torture and extrajudicial execution. That does sound like an improvement. According to the government, the changes will not “generate impunity.”
But, as always, the devil is in the details. In Colombian jurisprudence, there’s no official crime using the term “extrajudicial executions.” Most of the “false positive” cases have been tried as “homicides of protected persons,” a crime that is considered a violation of international humanitarian law rather than a human rights violation. Under the new law, violations of international humanitarian law will routinely go to military courts. So, not only may new extrajudicial executions be tried in military courts, but many of the "false positive" cases could be transferred out of the civilian court system into the black hole of military justice. “Sexual violence” is also not included in the Colombian legal system using that particular term. Moreover, other gross violations committed by members of the military will now go automatically to military courts, including cruel, inhumane and degrading treatment and arbitrary detention.
Who is the first on the scene to investigate potential extrajudicial executions. The new law gives the military justice system control over the initial investigations. If initial investigations are not handled well, the trail goes cold. The Council of State declared void the important agreement between the Attorney General’s office and the Defense Ministry that ensured that the Attorney General would investigate alleged crime scenes for extrajudicial executions and make the initial determination of whether the case would go to military or civilian courts. With these changes, it is much more likely that extrajudicial executions and torture will never be investigated.
Who decides where cases go. The new law sets up a new council (“Tribunal de Garantίas”) that will determine which cases go to military courts, and which to civilian courts, when there is a dispute. Half of the council members must be ex-military. Even if you had a perfectly appropriate list of human rights crimes that should be excluded from military courts, if the decisions are made by a biased council, wrong decisions will be made.
Where soldiers and officers serve their time. The new law makes official what has been happening in practice: soldiers and officers accused of the most heinous crimes will serve their pre-trial detention not in prison but in “centros de reclusión,” and those convicted can serve their time either in prison or special military detention centers. Semana magazine uncovered the luxurious conditions at the Tolemaida center, where convicted officials were able to leave for vacations, run businesses and even teach courses for current military members.
A special fund to defend soldiers. Soldiers accused of grave human rights violations will have a taxpayer-funded defense.
Why the change? Members of the military have been clamoring for “judicial security,” claiming that they are being unfairly prosecuted and that they need protection in order to carry out their combat duties. However, the Colombian government has been unable to provide examples of members of the military who were unfairly prosecuted. The Santos Administration, under pressure from the military, shepherded this bill through the Congress. Senator Juan Manuel Galán, the bill’s sponsor, sounded a nationalistic and defiant note: “This bill isn’t a bill for impunity, but here we are not legislating because some international human rights organizations have come to Colombia during the final debate to tell us Colombians, us legislators what we have to legislate.”
Now that the Colombian Congress has taken this huge step backward, what recourse is available? First, the Colombian government has promised it will take steps to ensure that “extrajudicial executions” and “sexual violence” be defined in the implementing legislation for this constitutional change. The international community should hold the Colombian government accountable for this, although it would only be a very partial solution to the problem. And policymakers should be watching to see if extrajudicial execution cases are transferred back to military courts, whether through defense lawyers petitioning for individual cases or through the Attorney General's review of alleged extrajudicial execution cases in civilian courts, which is mandated by the new law.
But major damage to Colombia’s commitment to human rights has been done. According to Santiago Canton of the Robert F. Kennedy Center for Justice and Human Rights, “Colombia's decision to expand the jurisdiction of its military tribunals is a setback for the strengthening of the rule of law in the country and the region.” The Inter-American Commission on Human Rights also issued a statement of concern regarding the constitutional change. This setback could also trigger closer examination of Colombia by the International Criminal Court, which has been watching Colombia. The ICC issued a report in November noting that “there is sufficient basis to believe that the acts described above [alleged extrajudicial executions] were committed based on a policy adopted at least at the level of certain armed forces brigades, which constitutes a state policy or an organizational policy to commit these crimes.”
The U.S. State Department should withhold military aid subject to conditions in U.S. foreign operations appropriations law, as Colombia's decision violates the conditions that require that gross human rights violations allegedly committed by the military be tried in civilian courts.
2012: A Year of Ups and Downs for Labor in Colombia: ENS End of Year Review
Escuela Nacional Sindical (ENS), Colombia’s national union school, released in December a year-end review for 2012. Highlighting the major issues facing the labor and union movement in Colombia, ENS consulted with presidents of Colombia’s three trade union confederations, Confederación de Trabajadores de Colombia (CTC), Central Unitaria de Trabajdores de Colombia (CUT), and Confederación General del Trabajo (CGT), while also providing the analysis of ENS Director Luciano Sanín and of the Colombian Labor Ministry. According to this review, several steps were taken in 2012 to improve the situation; these, however, fell short of expectations and promises made by the government.
The creation and growing institutional strength of the Ministry of Labor has been a positive step. Along with better media coverage of labor issues, Luciano Sanín of ENS stated that the Ministry’s existence has “generated a labor agenda in the country’s public discourse.” Also of note is that the number of labor inspectors has increased; according to the Labor Ministry, there were a total of 624 labor inspectors as of the end of 2012. The effectiveness of the labor inspections, however, is up for debate. Miguel Morantes, President of CTC, said “labor inspections have improved, although not as strong as what was agreed between Obama and Santos as a condition for the signing of the FTA.” This highlights the importance for Colombia to adhere to the conditions of the Labor Action Plan (LAP).
The Ministry of Labor has also levied sanctions on different companies for illegal subcontracting, including several in the palm sector, one of the five priority sections identified in the LAP. The effects of the sanctions have been minimal, however, as the ministry has yet to make any progress in collecting any fines. While it is encouraging that there have been efforts in curbing illegal subcontracting, the fines only present a symbolic statement by the ministry as they have yet to provide any real effect in curbing illegal subcontracting practices. Sixty-eight percent of Colombia’s labor force is considered to be informal and have no social or labor protection. The use of cooperatives and indirect employment practices, which have been outlawed by Decree 2025, continues to be problematic as new indirect hiring mechanisms emerge, such as the Simplified Stock Companies (SAS, as they are known by their Colombian acronym). These hiring practices continue to affect the ability of workers to form or become part of a union and limit worker’s rights to association.
“We still have anti-union behavior that persists and does not allow a more harmonic development of the trade union movement,” asserts Julio Roberto Gómez, President of CGT. Workers seeking to associate are still being fired, as was the case for 110 sugar cane workers in Valle del Cauca who were fired after attempting to affiliate with Sintrainago.
Although levels of violence have decreased, 18 unionists were murdered in 2012 and threats continue to be levied against union leaders and workers attempting to join unions or organize. (Note that cases may continue to be identified after the end of a calendar year, so this may not be the final figure for 2012.) The recurring pattern of violence and threats makes it imperative that Colombia continues to implement the protection commitments outlined in the LAP and provide effective protective measures to union leaders and labor activists.