Crisis?  What Crisis?   Security Issues in Colombia

The Challenge of Fighting Transnational Crime
While Protecting Human Rights76

by

Mark A. Sherman

We know that Colombia is home to both major drug trafficking organizations and serious guerrilla insurgency. We also know -- from reports of the U.S. government, inter governmental organizations, and non-governmental organizations -- that there are complex, symbiotic connections among drug trafficking organizations, paramilitary groups, factions of the armed forces, and guerrilla organizations.77 Further, we know that Colombia participates in the international legal regimes governing the conduct of states in both law enforcement and the protection of human rights. Finally, we know that international law enforcement requires the cooperation of sovereign states like Colombia.

This situation presents a conundrum for the application of international criminal and human rights law in Colombia. How can anyone fight drug trafficking and protect human rights in Colombia when the Colombian government (which is supposed to do both) is engaged in a counterinsurgency strategy that involves occasional alliances with drug traffickers and paramilitary groups? The answer is that neither can be done very successfully.

The current problem of significant internal political violence, and the alliances it has encouraged, renders the Colombian state’s legal commitments on international crime and human rights largely irrelevant. Its legal commitments to fight drug trafficking are largely irrelevant because so much of the political-military apparatus has been corrupted by drug money and the corresponding "gangster capitalist" ideology.78 This situation is reflected in the reactive nature of the Colombian government toward anti drug trafficking law enforcement. Similarly, Colombia’s legal commitments to protect human rights are largely irrelevant because of the government’s willingness to ally itself informally with drug traffickers and the paramilitaries against the guerrilla organizations. The traffickers and paramilitaries cloak the government with something of a legal shield, for these non-governmental groups are not bound by the legal commitments of the state.

The alliances among Colombia’s political-military apparatus, drug traffickers, and paramilitaries share the singular goal of defeating the guerrillas and their alleged supporters. This goal can be accomplished in one of two ways: Peacefully at the bargaining table; or through the use of military force. Even if this goal eventually is achieved, however, the international community should not expect the Colombian state to live up to its international legal commitments in law enforcement and human rights. Ultimately, Colombia cannot be expected to comply with such commitments until it institutes a system of liberal democracy characterized by the rule of law. This augurs for peaceful resolution of the internal conflict, with all parties having a stake in the outcome -- government, business leaders, labor union leaders, guerrilla groups, paramilitaries, and drug traffickers -- represented at the bargaining table to the greatest extent possible. True liberal democracy (as opposed to Colombia’s current illiberal democracy)79 can be instituted successfully only through such a process; only then might the Colombian state gain legitimacy and its international commitments both in criminal law and human rights be taken seriously.

Colombia, Drug Trafficking, and International Criminal Law

The 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 U.N. Vienna Drug Convention)80 is the primary global treaty governing international law enforcement cooperation in matters involving drug trafficking. Its purpose is "to promote cooperation among the Parties so that they may address more effectively the various aspects of illicit drug trafficking having an international dimension."81 The treaty imposes upon parties an obligation to take all legislative and administrative measures necessary to conform with provisions of the convention. It contains provisions addressing, among other things, the following:

Colombia signed the Convention in 1988 but did not ratify it until 1994 and has been slow in complying with its terms. First, the country did not enact an asset seizure and forfeiture law until 1996. The law overcame a challenge in the Constitutional Court in 1997; but, according to the U.S. State Department, although numerous assets have been seized, none have yet been forfeited and some have been ordered returned.82 Second, a mutual legal assistance treaty between the two countries in the early 1980s remains dormant; a subsequent evidence-sharing agreement negotiated with the United States in 1991 was abandoned. Third, Colombia refuses to cure a technical defect that would allow implementation of the bilateral 1978 extradition treaty with the United States. In this regard, it is important to note that the Colombian Constitution of 1991, enacted following signature of the 1988 U.N. Vienna Drug Convention, contains a provision explicitly prohibiting the extradition of Colombian citizens. Not until 1997 did the Colombian congress act to repeal the provision. Finally, Colombia did not enact anti-money laundering legislation until 1995, but there have been no successful prosecutions under the statute.83

There are new multilateral antidrug initiatives worth mentioning if only because Colombia will participate in them. First, on the regional front, in September 1997, the U.S. State Department presented its report on Enhanced Multilateral Drug Control Cooperation, which grew out of work conducted at the 1994 Summit of the Americas and subsequent ministerial conferences in 1995 and 1996.84 The strategy was endorsed at the 1998 Summit of the Americas and has become known as the "Multilateral Counter Drug Alliance," which would use the Organization of American States as a tool to evaluate each nation’s record of combating drug trafficking.85 The strategy is ambitious, embracing interdiction, anti money laundering, law enforcement training, judicial modernization, assistance coordination, alternative development assistance, regulating the movement of precursor chemicals, improving data collection and sharing, and creating a system of multilateral monitoring and assessment.

Globally, the United Nations will host a General Assembly Special Session on Drugs in June 1998. The session is coordinated by the United Nations Drug Control Programme, and its purpose is to engage in a world-wide reflection on the efficiency and viability of antidrug strategies over the past decade and look for ways of improving them. The special session will focus on illicit drug production, demand reduction, judicial cooperation, money laundering, production of synthetic drugs, and control of drug production chemicals.86 More specifically, the objectives of the session are as follows:

Colombia, Drug Trafficking, and International Human Rights Law

Colombia is a party to the major post - World War II global and regional human rights treaties, including, but not limited to, the International Covenant on Civil and Political Rights88 and the American Convention on Human Rights.89 The primary purpose of international human rights law is to impose obligations on states to respect and protect such rights. Thus, the state must not violate human rights, must prosecute state officials when they violate human rights, and must take steps to prevent organized non-governmental groups from violating human rights. In this regard, in 1998, Colombia has one of the worst compliance records in the Hemisphere.

Lack of respect for basic human rights, particularly civil and political rights, has been a problem in Colombia predating the drug trafficking phenomenon. The dismal human rights situation has its roots in the traditional struggle for control over land -- and, therefore, power -- between the elite and the peasants. The advent of drug trafficking organizations has simply further complicated the situation by creating a new social group also vying for land and, therefore, power. According to the U.S. State Department, while Colombian security forces are responsible for some human rights abuses, organized nonstate actors such as right-wing paramilitary organizations -- which act independently or in conjunction with the armed forces -- and leftist guerrilla organizations are apparently responsible for a far greater number of acts of violence against civilians.90 The human rights situation is characterized by serious problems in such areas as:

The Colombian government has engaged in a number of policies that have served to worsen the human rights situation in the country, with no resulting improvement in the country’s overall internal political situation. Two of these policies deserve specific mention: First, the government has, since the 1980s, endorsed the use of Regional or "Public Order" courts in which judges and witnesses are anonymous, thus denying due process to whoever is prosecuted before such a tribunal.91 This court system is embraced by Colombian law. Despite the original purpose of this tribunal system -- in essence, to provide a forum for the prosecution of terrorists and drug traffickers -- the courts have been used to prosecute labor union leaders and civilians considered by the government to be politically subversive.92

The Colombian government has also supported the organization of rural "self-defense" cooperatives. These organizations, known as Convivir, originally were to provide counter-insurgency intelligence to local police and military commanders. According to the U.S. State Department, as of 1998, approximately 700 such groups operate with arms supplied by the military, pursuing their own agendas. Though the military acknowledges that many of these groups are responsible for human rights abuses, it refuses to take responsibility for stopping them.93

Analysis

The record is clear that the Colombian state’s antidrug trafficking law enforcement has been reactive. This is probably because the Colombian political class traditionally has not considered drug trafficking to be a serious criminal problem, unless drug trafficking violence has been directed at government institutions. In fact, segments of the political class share the ideology of the illicit drug industry, which, like traditional Colombian political ideology, emphasizes concentrated economic and political power among persons of European descent in order to control the majority of the population.94 This shared ideological point of view has led to segments of the political class benefiting from the economic largesse created by the illicit drug industry in Colombia. In light of this situation, there is little political incentive for the political class to pursue seriously an antidrug law enforcement policy. Therefore, although Colombia is a party to the 1988 U.N. Vienna Drug Convention, has grudgingly enacted domestic legislation designed to implement the Convention’s provisions, and has even investigated, captured, or killed some drug trafficking capos, taken as a whole, its commitment to antidrug criminal law enforcement is highly suspect.

Ultimately, drug trafficking in Colombia cannot be detached from the larger situation of political violence that is rocking the country. Thus, it cannot be effectively addressed separately within and outside the country as a "criminal" issue. Drug trafficking is a political and economic phenomenon that the Colombian elite has come to accept and, to a degree, participate in. Because drug trafficking has come to be regarded as a somewhat legitimate enterprise in Colombia, the international criminal law regime governing drug trafficking, which relies on sovereign states for its enforcement, will continue to be largely ineffective there.

Similarly, the record is clear that the Colombian state’s commitment to protecting human rights has been reactive as well. In light of the preceding discussion regarding the reasons underlying Colombia’s poor record of compliance with its international obligations in antidrug law enforcement, the reasons behind its underwhelming record of compliance with its international obligations vis-à-vis human rights protection become easy to understand. According to the U.S. State Department95 and Inter-American Commission on Human Rights96 of the Organization of American States, drug trafficking organizations often work in conjunction with right-wing paramilitary organizations and factions of the armed forces in seeking the death or displacement of civilians as punishment for perceived ties to the guerrillas. They have targeted labor leaders, teachers, community activists, mayors of towns and villages, and others.

Ultimately, the government’s legal commitments to protect human rights cannot be taken seriously because, through the armed forces, it engages in alliances with violent groups and implements policies that exacerbate Colombia’s dismal human rights situation. This contradiction becomes more significant when combined with the fact that the government now exercises effective control over only fifty-seven percent of the country’s municipalities. In light of this tangled web, antidrug law enforcement and military assistance from other countries can easily be misused by the armed forces and its allies to settle political scores, with an adverse effect on human rights. Indeed, as recently as 1997, the U.S. General Accounting Office reported that oversight of U.S.-provided assistance continues to be a problem, despite requirements in U.S. law mandating end-use control.97

This analysis indicates that international criminal law and human rights law will become relevant in Colombia only when internal political violence comes to an end. Until then, bilateral and multilateral antidrug law enforcement initiatives that involve Colombia will have no positive effect in that country. Continued calls for the government to improve its human rights record, while it pursues a counterinsurgency strategy in alliance with violent non-governmental groups, will also have little effect. In the end, to make international criminal and human rights law relevant in Colombia, the internal violence must end in a way that bolsters the legitimacy of the Colombian state. Therefore, it must occur through a process that embraces all warring factions to the greatest extent possible. This includes drug traffickers who, it must be acknowledged, are major political actors. In the short term, such an approach likely will engender a strong rebuke from the U.S. because it will throw into open question Colombia’s willingness to comply with its international legal obligations in antidrug law enforcement. Because of Colombia’s historically close ties with the U.S., such a move would be extremely difficult for Colombia to even contemplate. However, if Colombia did possess the will to make such a daring move, the country might also find that it has many friends in the international community who agree with such an approach and have been merely seeking an excuse to break from U.S.-dominated antidrug law enforcement policy. Further, in the long term, by engaging in such a democracy-building process, the Colombian state will create a strong, domestic, liberal democratic force that will actually enable it to better choose which international obligations conform with the idea of liberal democracy and, therefore, engender proactive compliance.

Conclusion

Colombia participates in the international legal regimes covering drug trafficking and the protection of human rights. In this regard, because Colombia is home to both drug traffickers and serious guerrilla insurgency, it presents the international community with a conundrum for the application of international criminal and human rights law: How to fight drug trafficking and protect human rights in Colombia when the government (which is supposed to do both) is engaged in a counterinsurgency strategy that involves occasional alliances with drug traffickers and paramilitary groups

The instant analysis has illustrated that neither can be done very successfully. To repeat: Enforcement of international law requires the cooperation of state actors. The current situation in Colombia, involving internal political violence where complex symbiotic relationships exist among warring factions, renders the state unable to carry out its international obligations in both criminal law and human rights law. Its record can be characterized only as reactive and, therefore, inadequate. Thus, new antidrug initiatives involving Colombia will be largely ineffective and possibly counterproductive in terms of the protection of human rights if they further increase the firepower of the Colombian state and its violent non-governmental allies. Similarly, continued calls for the Colombian government to improve its human rights record will have little immediate positive impact, as long as the government continues to pursue a counterinsurgency strategy that involves alliances with violent non-governmental groups.

Ultimately, Colombia will remain unable to carry out its international legal obligations until it resolves its internal political situation and institutes liberal democracy characterized by adherence to the rule of law. This can be done only through a process of peaceful conflict resolution that embraces all of the warring parties to the greatest extent possible, including drug traffickers who, while technically "criminals" under Colombian and international law, are important accepted players in Colombian politics. Whether Colombia possesses the will to do this is highly questionable. However, if the will did exist, it would enable the Colombian state to obtain the legitimacy necessary to choose which international obligations conform with the idea of liberal democracy and which do not.

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Last Update:  September 30, 2002