WORLDVIEW

Doug Cassel's Commentaries

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How to make peace while bringing to justice combatants who have committed atrocities is a dilemma that vexes every peace process. Colombia’s new law on “Justice and Peace,” approved by the Colombian Congress last month but reportedly not yet signed by the President, makes some progress over past efforts, but still falls woefully short.

In Latin America in the 1970s and 1980s, the solution was simple: justice was jettisoned. Generals and their civilian cronies in countries like Chile, El Salvador, Guatemala, Honduras, and Peru simply awarded themselves amnesties.

The effort was not always fully successful. The Argentine junta made the mistake of starting a war against an enemy it could not defeat—Great Britain. The junta leaders ended up discredited and jailed for systematically disappearing domestic dissidents. In Chile General Pinochet’s 1978 amnesty held for two decades, until judges in Spain, Britain, and finally Chile said, “Enough!”

Beginning in the 1990s, international human rights bodies, along with domestic supreme courts and constitutional courts in many countries, developed what is now a widely recognized principle of international law: certain crimes are so offensive to all humanity that no one nation can bury them in impunity. International law now generally prohibits amnesties for those who commit genocide, crimes against humanity, serious war crimes, and gross violations of human rights.

A recent exception has been South Africa, but even there the amnesty was conditioned on full confession, and denied if the crime was disproportional to its political purpose.

Fortunately the South African example, which responded to the uniqueness of that country’s history, has not been followed elsewhere.

The Colombian government of President Alvaro Uribe now proposes a novel, but still seriously flawed approach. Members and leaders of paramilitary and guerrilla groups may lay down their arms and confess their crimes. In return, their normal prison sentences are suspended, in favor of “alternative punishments” ranging from five to eight years in prison, minus the eighteen months they spend in demobilization zones.

Consider, for example, a paramilitary commander who led the massacre, rape, and pillage of an entire village. He may serve as little as three and a half years in prison—the five year minimum, minus the year and a half he spent in a demobilization zone.

As President Uribe argues, this is better than an amnesty under which the commander receives no penalty at all. But given the magnitude of the crime, it results in a punishment that is unconscionably lenient.

The punishment is also far less than the commander would face if extradited to the United States if, like many paramilitary commanders, he is indicted here for drug trafficking.

And these are not the worst deficiencies in the Colombian law. While giving lip service to dismantling paramilitary structures and requiring return of stolen goods and land, the law contains no effective mechanism to bring this about. Prosecutors are allowed only sixty days to investigate and bring charges against those who “confess.”

This is too little time to verify that a secretive paramilitary group has truly dismantled, or to unravel complicated financial and land transactions—especially if hundreds or thousands of paramilitary members enter the process all at once.

In fact, two years of so-called “demobilizations” of some five thousand paramilitaries to date teach us that they do not really dismantle. Instead they convert from part-time combatants and part-time drug gangs into full-time mafias: trafficking drugs, intimidating, and if need be murdering anyone who stands in their way.

Yet the new law would block the extradition of their leaders to the U.S., even though they are responsible for most of the cocaine coming across our borders.

This law thus promises to bring neither justice nor true peace, yet is supported by the Bush Administration. Fortunately, the Republican-controlled Senate Appropriations Committee refuses to go along. Unless the law is revised to require that paramilitary structures be effectively dismantled and leading drug traffickers extradited, the Committee will withhold one hundred million dollars in U.S. funding, which Colombia needs to pay the costs of demobilizing and reintegrating paramilitary fighters.

The Senate Committee is on target. Instead of bringing peace, let alone justice, this law promises to condemn Colombia to sink deeper into the pit of a corrupt, violent, narco-state. After spending over three billion dollars in aid to Colombia in the last five years, Washington must insist on a better outcome. Otherwise we will pay a high price, not only in continuing turmoil in Colombia, but also on the streets of our cities, as paramilitary drug lords persist in poisoning our youth.

Doug Cassel is Director of the Center for International Human Rights of Northwestern University School of Law.

Views expressed are those of the author, and not necessarily those of Northwestern University, the Center of International Human Rights, or Chicago Public Radio.

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