REPORT ON THE IMPLEMENTATION OF THE JUSTICE AND PEACE LAW: INITIAL STAGES IN THE DEMOBILIZATION OF THE AUC AND FIRST JUDICIAL PROCEEDINGS

I.         INTRODUCTION AND BACKGROUND

1.       Towards the middle of 2006 the Republic of Colombia completed the initial stage of demobilizing the United Self-Defense Forces of Colombia (hereinafter "the AUC")[1], an illegal armed group involved in committing crimes during the armed conflict.[2] This initial stage consisted of the surrender of weapons by 31,670 individuals identified as members of 38 units of the AUC,[3] and other armed groups operating outside the law, in temporary concentration zones, with international verification by the OAS Mission to Support the Peace Process in Colombia (hereinafter the "MAPP/OEA Mission”).

2.        Now that this stage is over, the process faces challenges in establishing the responsibility of demobilized personnel who committed crimes, and arranging reparations for victims, pursuant to Law 975 of 2005, the "Justice and Peace Law".[4] Subsequently, that law was challenged as unconstitutional before the Constitutional Court. In response, the Constitutional Court ruled that Law 975 was in general terms constitutional, and it set out conditions for making certain of its provisions compatible with the Constitution.[5]

3.       A further fundamental aspect of this process is to ensure the effective dismantling of the armed structures that took part in the demobilization process, and the gradual reintegration of their members into society, to ensure that there will be no repetition of crimes under international law, violations of human rights, and grave breaches of international humanitarian law.

4.       The Inter-American Commission on Human Rights (IACHR) has given special attention to monitoring the human rights situation in Colombia, and the use of mechanisms for demobilizing participants in the armed conflict and putting an end to the violence that has afflicted the people of Colombia for the last four decades.[6]  Also, since 2004, the IACHR has followed up on the situation as part of its advisory role to the member states of the OAS, the Secretary General of the Organization and the MAPP/OAS Mission.[7]  This report presents the IACHR’s conclusions on its in loco observations as to the functioning of the demobilization circuits and the first judicial proceedings for implementing the Justice and Peace Law.[8]

5.        On August 2, 2007 the Commission transmitted a copy of the draft report to the Colombian State with 30 days to present observations.  In a communication dated September 4, 2007 the State submitted its observations.[9]  On September 5, 2007, the State submitted additional observations.[10]

6.         The first part of this report addresses the results of the initial stages of the demobilization process.  It examines the performance of the agencies involved in identifying the members of AUC units and other armed groups that have submitted to the process; the information system organized for this stage, its potential and the lost opportunities in terms of producing relevant information for fulfilling the objectives set for the demobilization process.  The second part of the report examines the first judicial proceedings for implementing the Justice and Peace Law. This section examines the persistent uncertainty as to the rules of the game for the process, and how this is affecting the work of State agencies.  It also notes the importance of information collected during the initial stage of demobilization, and how some problems from that stage have led to delays and obstructions in the judicial phase.  It offers some evaluations as to the initial proceedings by the Prosecutor General’s Office, and in particular its role and its institutional capacity to investigate crimes and to verify the legal requirements for eligibility for reduced penalties.  The third part of the report addresses the question of participation by victims in the initial stages of the process, the availability of mechanisms for protecting victims, witnesses and justice workers, and the problems observed in the reparations system.  Finally, the fourth part of the report refers to the challenges of reincorporating demobilized personnel into civilian life.  The IACHR concludes its report with a series of observations and recommendations.

7.         In the following section, the Commission discusses the results and conclusions from its observation of the conduction and results of two demobilization circuits, together with a series of considerations on the legal framework surrounding the resolution barring prosecution of demobilized personnel for participating in illegal armed groups, and the processes pursued in the context of the Justice and Peace Law.

II.         OBSERVATIONS ON THE INITIAL PHASE OF THE DEMOBILIZATION PROCESS

8.         Given the importance in terms of clarifying the crimes perpetrated during the armed conflict, the IACHR conducted a series of visits in the designated "concentration zones" for assembling persons for demobilization, in order to observe the work of the entities involved in identifying the members of those structures.  For both logistic and substantive reasons, visits were conducted to observe a series of demobilizations in the departments of Cesar[11] and Antioquia.[12] Specifically, on February 27, 2006 the delegation observed the demobilization of members of the Bloque Norte II and III, led by Rodrigo Tovar Pupo alias “Jorge 40”,[13] of the Autodefensas Unidas de Colombia (AUC) with influence in the departments of Cesar, la Guajira and Atlántico.[14]  On April 25, 2006 the delegation observed the demobilization of the Bloque Élmer Cárdenas, led by Freddy Rendón alias “El Alemán”, with influence in the area of Urabá Chocoano and Western Antioquia.[15]  These IACHR visits, aimed at observing the judicial circuits and the surrendering of weapons in the field, were carried out at the invitation and with the support of the Government of Colombia, which facilitated broad and unrestricted access to all areas and activities of the circuits.

A.         Observations on the conduction of two demobilization circuits

9.        Prior to the formal act of demobilization and surrender of weapons, members of the illegal armed groups were assembled in "concentration zones" designated for that purpose.  The so-called "judicial circuit" for demobilization was intended to identify those who had submitted to demobilization, leave a record their membership of the illegal armed structure, [16] and verify their judicial record for purposes of issuing a resolution (resolución inhibitoria) whereby the national prosecutor's office would be barred from prosecuting them for the crime of sedition, under Law 782 of 2002.[17]

10.        The State indicated in its observations to the present report that the procedure to fill in and accept the listings of the demobilized is ruled by Decree 3360 of 2003, pursuant to Article 53 of Law 418 of 1997, extended and modified by Law 548 of 1999, and by Article 21 of Law 782 of 2002 which provides that the connection to the illegal armed group shall be evidenced inter alia by “the express recognition of the leaders and representatives of the group”.  The State indicates that the listings of the demobilized filled in and accepted pursuant to Decree 3360 of 2003 have been “sent timely, for the pertinent effects”, by the Office of the High Commissioner for Peace to the following authorities and competent entities: Ministry of Interior and Justice, High Counsel for the Social and Economical Reintegration of Individuals and Armed Groups, Office of the General Procurator, Office of the General Prosecutor and Superior Counsel for the Judiciary.[18]

11.       According to the interviews conducted with officials of the Office of the High Commissioner for Peace, the leaders of the units were supposed to identify members of the armed unit under their command who had agreed to demobilization.  In practice, this list was prepared and expanded in the concentration zone at the time of demobilization, as the High Commissioner and the MAPP/OAS Mission facilitated the arrival of these persons in the concentration zone. The Office of the High Commissioner for Peace had an estimate of persons to be demobilized, provided by military intelligence.

12.       IACHR observed that failure to present this list, encouraged persons who did not necessarily belong to the armed unit in question to participate of the demobilization circuits. The incentive was the social and economic benefits offered as part of the demobilization process by officials of the Office of the High Commissioner for Peace. Every demobilized person received a subsidy of 358,000 pesos for 18 months. In the concentration zone, information was provided indicating that in some cases the leaders had encouraged noncombatant civilians to participate of the demobilization circuits and claim membership in the paramilitary group in order to obtain economic benefits and then reward the leader with a percentage of the amount received from the Government.  For its part, the State indicates in its observation that the Office of the High Commissioner for Peace did not receive information nor had any knowledge regarding these circumstances.  It adds that, in any case, the AUC were required to dismantle their entire illegal structure, including its net of supporters and financiers.[19]

13.        During its visit to the demobilization circuits in the Department of Cesar, the IACHR observed that many persons claiming demobilization status did not appear to be combatants.[20] In the Chimila and La Mesa circuits, the delegation was concerned at the low number of combatants compared to the number of persons who said they were radio operators, food distributors, or laundresses.[21] These persons had been for the most part living in the nearby Villa Germania, and a third of them were women. They repeatedly claimed that they were following direct orders of the "maximum leader" of Bloque Norte, Jorge 40, and they provided no information to identify lower-ranking officers of the armed unit, thus undermining the credibility of their statement.

14.        The delegation was told that these demobilized persons, although they were not combatants, were members of the "social support fronts" of the unit in question.[22] On this point, the IACHR confirmed that there were no mechanisms for determining which persons really belonged to the unit, and were therefore entitled to social and economic benefits, nor for establishing consequences in case of fraud. In all cases, the Office of the High Commissioner for Peace had approved all the lists of demobilized personnel prepared in the context of the demobilizations effected.

15.        In contrast to what was observed in the Department of Cesar, the demobilization conducted in the Department of Antioquia involved for the most part men, and a few women, who seemed clearly to be combatants.[23] In effect, at the circuit proceedings observed in El Cuarenta, the vast majority of persons to be demobilized declared that they were combatants, and that they had belonged to the unit for at least three years. Only a minority were members of the social support network for the unit.

16.        The following State agencies were present at the demobilization circuits visited by the IACHR: (1) Office of the High Commissioner for Peace; (2) National Registrar; (3) Technical Investigations Core (CTI); (4) Office of the Prosecutor General (Fiscalía); (5) Administrative Department of Security (DAS) and (6) Colombian Institute of Family Welfare (ICBF).[24] The MAPP/OAS Mission and the International Organization for Migrations (IOM) were also present.

17.       The first step in the circuit involved a presentation to the candidates for demobilization on the benefits to be received when complying with the requirement of being truthful in their statements to the officials.  Officials from the Office of the High Commissioner for Peace explained the features of the process to the persons seeking demobilization, including the legal, social and economic benefits at stake, in return for cooperation in determining the truth.

18.        Secondly, to allow demobilization candidates to participate in the circuit, the registrar's office (as the official identification agency) issued identity documents for people who had none.[25]

19.        Third, the Technical Investigations Corps (CTI) took fingerprints, dental records and DNA samples from persons to be demobilized, for identification purposes.[26]  Should this information be properly conserved it will play an important role in identifying and linking individuals to criminal investigations.

20.       Fourth, the Prosecutor General's Office took voluntary statements (versiones libres) from the persons who appeared at the circuit hearings.  The purpose was to verify whether the individual did indeed belong to an armed group that had agreed to collective demobilization, so that a ruling could be issued exempting him/her from prosecution for sedition.[27] Proceedings before the prosecutors concluded with signature of a voluntary surrender document and a promise by the candidate not to break the law for the next two years.

21.        With respect to the performance of the prosecutors in the judicial circuits, the IACHR noted that those assigned were frequently commissioned only hours before they were dispatched to the concentration zone from various parts of the country. According to information received, they did not belong to any special unit nor did they receive any specific training for the task. Indeed, they normally worked in units investigating crimes such as kidnapping or terrorism. Only in one case did the prosecutor interviewed belong to the National Unit of Human Rights and International Humanitarian Law. In no case did the prosecutors belong to the Justice and Peace Unit.

22.        The questions put by the prosecutors during the voluntary statements given in the judicial circuit consisted of a standard questionnaire that was used in all demobilizations. The questions asked about the name of the illegal armed group to which the person belonged and the date he/she joined it; use of weapons of any kind and their characteristics; use of an alias or nickname; training to join the organization; time spent with the group, where and when he/she traveled; places where the group operated; name of persons belonging to the group; structure of the group, reasons for demobilizing; activities performed within the group; possible mention of his/her participation or that of other persons of the group and other crimes; names of his superiors in the organization; knowledge of persons kidnapped by the group; knowledge of property acquired by the group or organization during its activities.

23.        Given the characteristics and the formats used in the questionnaire, the taking of statements was a purely formal procedure.  The prosecutors sent to the concentration zones had no instructions to investigate any links that the candidates for demobilization passing through the circuit might have to crimes committed in the area, or to compile information in advance on pending cases that might involve members of AUC units participating in the demobilization.

24.        In its observations, the State emphasizes that the model questionnaire “was merely a guide to be considered by the prosecutors, but that in no way was meant to limit the autonomy of the officials to lead the deposition to a happy conclusion”.  It also indicates that this procedure “did not have the purpose of having the demobilized reveal other members of the armed unit, let alone acknowledge the crimes committed”.[28]

25.        Fifth, the Administrative Department of Security (DAS) verified the police record of persons to be demobilized.  Specifically, the DAS checked the police records of persons who had an ID document, consulting the Unified National Archive System, by fax.  In cases where candidates had no police record, the DAS provided them with a document (with a photograph and fingerprints) certifying that, at that date, the bearer was not the subject of any national or international arrest warrant for pending proceedings.  In cases where a pending proceeding was identified, the DAS issued temporary certificates (valid for one year), recording the status of those persons. In cases where there was an arrest warrant for participation in the armed group, the candidates were "put on hold", and were then taken to Santa Fe de Ralito or another concentration zone specially constituted in the demobilization zone “to the effect of keeping them at the disposal of the judicial authorities.”[29]  Presumably these persons would eventually appear on the lists that the High Commissioner for Peace would send to the Justice and Peace Unit of the Prosecutor General's Office, for purposes of enforcing the Justice and Peace Law.[30]

26.        Sixth, officials of the MAPP/OAS Mission verified the circulation of demobilization candidates through the judicial circuit and interviewed them about their membership in the armed unit that was demobilizing.

27.        Finally, the International Organization for Migrations (IOM) issued documents confirming the identity of demobilized persons who passed through the circuit, and their commitment to surrender their weapons (“carnetización”).

28.         Besides the institutions that participated in the judicial circuit, the Colombian Institute of Family Welfare (ICBF) was present in the concentration zones where children were recorded as belonging to the units to be demobilized.  On this point, Law 975 of 2005 requires that the group to be demobilized must turn over to the ICBF all juveniles recruited, as one of the requirements of eligibility for the generous benefits and penalty reductions established in that Law.[31] Consequently, this entity was brought into the concentration zones by the High Commissioner for Peace on the basis of information provided by leaders of the armed group being demobilized. During the IACHR visits to the judicial circuits, the delegation learned that the ICBF was present in the La Mesa concentration zone, for demobilization of the AUC Bloque Norte, and it also observed the presence of adolescents.[32]  In the judicial circuit for demobilizing the Elmer Cárdenas unit, the ICBF was not present, because that group did not surrender any juveniles.[33]

29.        The handover of children in the concentration zones was formalized through a so-called "voluntary surrender" document prepared by the ICBF.  It should be noted that the ICBF takes under its wing only children who agree to remain in its shelters after voluntary surrender.

30.       In parallel with the circuit proceedings (and beyond the symbolic surrender that might take place in the closing session, in the presence of the press and senior Government authorities), officers of the Inter-Agency Antiterrorist Analysis Group (GIAT) received custody of the weapons that were surrendered during the judicial circuit.

31.       The report of the High Commissioner for Peace recorded the surrender of 615 firearms[34] during the ten days that the demobilization circuit was held in Chimila, Department of Cesar.  The IACHR noted that approximately 800 persons had passed through that circuit on the previous day, but only 65 firearms were received. It also noted that from the 200 persons passing through the circuit at La Mesa on the previous day, roughly 25 firearms were received. None of the weapons surrendered were modern or in good condition.

32.      The report of the High Commissioner for Peace indicates that in Antioquia the 484 demobilized persons of the second group of the Elmer Cárdenas unit delivered to the Government a total of 359 weapons.[35] There, the IACHR observed that the weapons surrendered appeared to be neither modern nor, in some cases, in good condition.  It also observed that combatants who had not demobilized were standing guard, and that they bore weapons that were modern and in good condition.  The State, for its part, indicates in its observations that “a first inspection of the weapons by experts demonstrated that 95% of them was of good quality” and that in any case long weapons had also been decommissioned in rural areas where members of the illegal armed groups were picked up to be transported to the concentration zone, prior to their demobilization.[36]

33.        Subsequent to the formal demobilization of the AUC, the police discovered secret caches of weapons that certain AUC groups failed to hand over when they were demobilized.[37]  It is hoped that the Colombian Government will investigate these facts and make the results of the investigation public.

B.        Observations on the outcome of two demobilization circuits and on the general legal framework

34.        Of those demobilized who passed through the demobilization circuit (totaling approximately 28,000) 90% offered no significant information on illegal acts or crimes committed by the paramilitary units to which they belonged.  Additionally it was found that only 36% of the total had a police record.[38]

35.        The rest of the demobilized members of illegal armed groups benefited from resolutions reprieving them from prosecution when they admitted to the crime of "criminal conspiracy",[39] which term was later changed to "sedition", based merely on their participation in the activities of illegal armed groups.  However, in a decision adopted on July 11, 2007, the Criminal Chamber of the Supreme Court of Colombia dismissed the equivalence between these two legal conducts by establishing the incompatibility of Article 71 of Law 975 of 2005 with the Constitution, precisely because of the similar treatment afforded to common crimes and political crimes.

36.        The IACHR notes that the demobilization circuit presented a suitable opportunity for the judicial authorities to go beyond the issuing of resolutions waiving prosecution for sedition, and to gather elements for establishing whether demobilized members of illegal armed groups were involved in crimes that might be punishable under the Justice and Peace Law, yet as noted above, in the course of these voluntary statements the prosecutors received no instructions for delving into the crimes perpetrated and the possible applicability of the Justice and Peace Law.

37.       Consequently, the voluntary statement gathered during demobilization circuits constituted a lost opportunity for compiling information on the units, their members, and the socioeconomic dynamics that kept them in existence and operating.  That information is crucial today for the work of the prosecutors in the Justice and Peace Unit, as well as for representatives of the victims when it comes to enforcing that Law and verifying that the armed structures have been dismantled.

38.       As to the legal framework for this stage of the process, for more than a year and a half the demobilization process took place under the aegis of the individual and collective demobilizations legislation applicable to all members of the illegal armed groups who wished to return to civilian life.[40] That legal framework was based on law 418 of 1997,[41] extended by Congress through Law 782 of December 2002, and then regulated by Decree 128 of 2003.[42] Accordingly, persons who have benefited from a pardon or a decree staying proceedings may not be prosecuted or tried for the same deeds for which the benefits were granted.[43]

39.        Although the provisions of Decree 128 of 2003 are for the most part intended to regulate access to social benefits, that Decree also refers to the right to legal benefits such as pardon, conditional suspension of sentence, cessation of proceedings, preclusion from investigation, or waiver of prosecution on the basis of the certificate issued by the Weapons Surrender Committee (CODA).[44]  In regulating the provisions of Laws 418 of 1997, 548 of 1999 and 782 of 2002, Decree 128 of 2003 makes it an express condition of the legal benefits that the demobilized person is not under prosecution and has not been convicted for crimes that "according to the Constitution, the law, or international treaties signed and ratified by Colombia are ineligible for this class of benefits".[45] It should be noted that persons tried or convicted for crimes other than bearing arms against the State cannot benefit from pardon, conditional suspension of sentence, cessation of proceedings, preclusion from investigation or waiver of prosecution, through individual demobilization.

40.        Since most of the members of the illegal armed groups responsible for crimes against the civilian population have not given testimony or being declared fugitives, it has been argued that the restriction established in Article 21 of Decree 128 of 2003 allows atrocious crimes to go unpunished if formal proceedings have not yet been initiated.  According to that interpretation, certification by the CODA would prevent judicial proceedings against persons who have not been tried or convicted prior to their demobilization.

41.       One interpretation of these procedural benefits to which the current legal regime refers might be that they apply only to the crime of conspiracy, based on the demobilized person's membership in an illegal armed group.  Therefore, the waivers issued in favor of demobilized persons with or without a criminal record at the time of applying for legal benefits should not prevent subsequent investigation and prosecution for crimes other than conspiracy.

42.         In short, Law 782 and Decree 128 should not by themselves pose a legal obstacle to investigating crimes against humanity or grave violations of human rights, and the waiver of prosecution contained in that legislation does not have the effect of res judicata with respect to criminal investigations that may be opened in the future.  However, this interpretation depends on the course of action that the judicial authorities adopt in each case.

43.              In light of the foregoing, it may be concluded that the loopholes, the lack of oversight tools and the absence of systematized mechanisms for identifying demobilized personnel and determining their criminal liability meant, in this stage, the loss of an opportunity to gather vitally important information for proceedings under the Justice and Peace Law.

III.        THE FIRST JUDICIAL PROCEEDINGS UNDER THE JUSTICE AND PEACE LAW

44.       Of the 31,670 persons who demobilized between November 2003 and the middle of 2006, only 2,695 declared their interest in applying for the benefits of the Justice and Peace Law. However, the institutional shortcomings in the demobilization circuits delayed and impeded enforcement of the Justice and Peace Law.

45.        Specifically, the number of applicants for benefits under the Justice and Peace Law was made public in the second half of 2006, after the first list delivered by the Government was rejected by the Prosecutor General because it failed to identify a significant proportion of the applicants.  In effect, the list included demobilized persons who were not concentrated in Santa Fe de Ralito, as well as persons who had not passed through the demobilization circuits, and even persons who were in Ralito but who sought only the benefits of Decree 128 of 2003 and of Law 782 of 2002, and not those of the Justice and Peace Law.

46.        In light of this problem, the Prosecutor General's office and the Justice and Peace Unit called upon persons seeking to benefit under the Justice and Peace Law who had not given a voluntary statement in the demobilization circuit, asking them to fulfill that requirement.[46] Once those persons gave their statement in accordance with Law 782 and other applicable rules, they would be summoned to appear before the prosecutors to give a statement under the Justice and Peace Law.

47.         As to the 2,695 applicants in the second list presented by the Government, the Prosecutor General verified that only a much smaller number could be duly located and summoned to give a statement.  The remainder, although they were on the list, could not be located because their address, telephone number or true identity was unknown.

48.        In this regard, in its observations the State indicates that the High Counsel for the Social Reintegration (ACR) has developed strategies to fill information gaps.  Specifically, it refers to “brigades of documentation and reference” conducted during the first semester of 2007 with the support of the DAS, the Army, the General Attorney’s Office, and the Registry Office.  It indicates that 28,285 demobilized were in attendance and that 20,380 identification documents (military cards, judicial certificates, identity cards) were issued.  The State remarked that “these brigades also received depositions pursuant to Law 782 of 2002 with the participation of Attorney General’s Office.  Likewise, Compromise Agreements were signed by the demobilized within this program and the available information on their situation and their families’ was updated, including information on their whereabouts (telephone numbers and addresses).”[47]