JUSTICE AND PEACE LAW

Several of the investigations now also are being conducted in relation to the implementation of the Justice and Peace law (JPL), Law 975, signed into law on 25 July 2005, and the regulations imposed by the country's constitutional court. That legal framework essentially provided benefits in the form of reduced sentences to those who otherwise would be liable for stiff prison sentences in exchange for their disarming, demobilization and dismantling their forces and their being held somewhat accountable for their crimes. It is substantially more demanding than the original bill submitted by the Uribe government but still is likely to mean even less than the eight year maximum found in the law. The regulations also are substantially different from those initially proposed by the executive branch.

In each instance, the constitutional court has rejected many of the government's arguments and demanded key changes to reflect the rights of the victims and of society at large for some accountability.

Last month, the UN High Commissioner for Human Rights Louise Arbour, herself a former judge of the Canadian Supreme Court, summarized those changes which her office, the OAS Inter-American Commission on Human Rights, the Crisis Group, and other international and Colombian NGOs had urged. The constitutional court, her report noted, has required that "confession must be complete and truthful; the accused must declare, jointly or severally, all their legally or illegally acquired assets; and classification as a victim must be broader than that originally established in the law. However, with regard to the legal framework applicable to demobilization and reintegration, concerns persist regarding actual guarantees of the rights of the victims to truth, justice and reparation, the cumulative nature of penalties, and the determination of an alternative penalty. Effective implementation of the law would require greater resources and mechanisms that guaranteed the rights of victims."

An estimated 31,689 troops, according to the OAS Monitoring Mission, (MAPP), as of last August, have demobilized of which some 2695 are seeking to be prosecuted under the JPL. To handle these investigations the Attorney General's office has 20 prosecutorial teams, woefully shy of the numbers needed; a data base which is entirely inadequate; and minimal travel and support funds for investigating the veracity of the "confessions" of paramilitary seeking reduced sentences. In Santa Marta, where our Colombia analysts visited the justice and peace unit (JPU) of the Attorney General's office a few weeks ago, the JPU attorneys took down information from witnesses and victims but their data base does not permit them to cross-reference the information with the "confessions" they have received from the demobilized paramilitary. They have to do it by hand going through mountains of dossiers.

The demobilizations took place over the course of some 18 months (as shown in a chart which was in our report a year ago Colombia: towards Peace and Justice). Despite the obligations to abide by a ceasefire and not to engage in additional crimes, the paramilitary leadership, initially in a form of house arrest and then, following the revelation of continuing commission of murders (in the case of one paramilitary leader, Jorge 40, several hundred murders disclosed in his own computer) they were moved to a maximum security prison in Itagui near Medellin where they remain today. Trials or preparations for trials have only begun recently in Barranquilla and Medellin, involving Salvatore Mancuso, Ernesto Baez and Ramon Isaza and several less prominent commanders. Information is being published on those trials including names, alias of the demobilized paramilitary so that victims are informed and can attended trials.

The problem with the demobilization process includes the limited capacity on the part of the fiscal general to pursue those who have demobilized under previous law without seeking to get reduced sentences and to investigate and judge the veracity of the confessions of those who are seeking reduced sentences under JPL.

In addition, a serious problem includes what the OAS/MAPP described on February 14 as "violations to demobilization commitments" and noted "with concern" rearmed groups, non-demobilized holdouts and the appearance of other armed groups in the same areas previously controlled by the paramilitary. The OAS/MAPP stated it had "identified 22 units, with the participation of middle-ranking officers-demobilized or not-the recruitment of former paramilitary combatants and the control over illicit economic activity." Essentially the OAS is saying that some 22 armed gangs of approximately 3,000 members, part of whom belonged to paramilitary units, some run by mid-level commanders, are now controlling drug trafficking and other criminal activities. Government officials say they are combating these new phenomena actively with some 500 or so killed and others captured; however, the armed gangs appear to have grown substantially in recent months. In fact a high

Ministry of Defense official has now identified some illegal armed 24 groups with closer to 5000 troops.

Reinsertion:

Since the establishment of the High Counselor for Reintegration's (HCR) office on 9 September 2006, and the naming of respected businessman Frank Pearl, economic aid has been extended to all ex-combatants who have gone through the initial 18 months or who have for any reason quit the program and wish to return. Pearl has attempted to move away from reinsertion to longer reintegration but the challenges are nonetheless formidable. Income generation schemes have so far proven unsustainable. Only 26 per cent of demobilized fighters have either formal or informal employment; only 22 out of 152 productive projects managed by the High Commissioner for Peace office are considered viable; only 28 per cent of the collectively demobilized fighters have received psycho-social counseling, 46 per cent have access to basic health coverage, 23 per cent have had access to occupational training and only 10 per cent to higher education.

Victims and reparations:

However compared to what currently is available for the victims of the paramilitary the ex-combatants are doing extremely well. Virtually no funding has been made available to the National Commission for Reparation and Reconciliation (NCRR). The NCRR came into being as a way to assist victims of paramilitary violence and of the conflict itself. Its focus has been on discovering the truth and ultimately to make that available to Colombian society. It has available only the assets that have been confiscated or acquired from the paramilitary, and very little is yet available. At this point there is no coherent plan or fund to guarantee anything resembling adequate compensation to the vast victims including the displaced, restoring them to their lands or assuring that they have some new hope for the future. The NCRR has established regional commissions and a regional care network and is compiling a register of victims. But its work is just beginning.

Counter drugs initiatives:

Let me briefly raise some of my concerns with respect to the counter narcotics side of Plan Colombia. The policy goal was to cut in half coca cultivation in Colombia and to significantly reduce the flow of cocaine coming into the U.S. Those goals have not been achieved.

There have been four elements to the counter narcotics strategy for some time in Colombia and the Andes: aerial or manual eradication (voluntary or enforced) of hectares under cultivation; interdiction on land, river, water and air of the coca leaf, paste and cocaine shipments; law enforcement efforts to identify and arrest those engaged in trafficking or elements linked to that process such as money laundering; and alternative development designed to provide alternative economic support for the campesinos enticed or forced into coca cultivation. I should add one complementary goal was to reduce the flow of funds into the coffers of the FARC and other illegal armed groups. It probably has had some minimal effect in that regard because it has forced the FARC to pay, threaten or coerce a larger group of farmers to grow coca, knowing that a substantial portion will be eradicated or interdicted. It has made it more expensive for the FARC, paramilitary and other traffickers to get the same production.

First, Plan Colombia has funded each year a rising level of eradication of hectares of coca, largely through aerial spraying in Colombia. However, at the end of the spraying, there is no difference between the number of hectares of coca harvested in 2005 (and reportedly in 2006 as well) and the number of hectares of coca harvested in 2002, according to the U.S. In both cases, some 144,000 hectares of coca were harvested.

The U.S. government states that the reason we see the higher number of hectares is because the satellite coverage is covering a larger part of Colombia. Perhaps. But if so, then the earlier reports also were faulty. And the UNODC reports also show similar percentage increases from 2004 to 2005 and likely in 2006 as well although they use a system different from the U.S. in measuring cultivation.

There is a strong view that the increase in the cultivated areas and the presence new coca fields is due to high mobility of coca cultivation in Colombia. Illicit crops continue to proliferate in Nariño, Putumayo, Meta, Guaviare, Vichada, Caquetá and Antioquia departments, regions that have been sprayed for years. And coca cultivation now extends virtually throughout the country.

After initial success with aerial spraying and reduction of hectares of coca cultivated areas, the coca growers have adapted to this new environment by reducing the size of their fields and by cultivating coca inside yucca, banana and other staples plantations. Now they present a more difficult target for aerial spraying while

yield per hectare has also increased due to intensive cultivation and the use of fertilizers. Aerial spraying also has environmental issues and too often indiscriminately hits food crops or neighboring lands where farmers have opted against coca cultivation. Finally, it has raised serious concerns with Ecuador and made it more difficult to obtain the kind of bi-national cooperation against trafficking which is essential.

Second, the amount of cocaine estimated to be produced was actually slightly higher in Colombia in 2005, some 640 metric tons versus 580 metric tons in 2002, according to the UN. The State Department estimates according to the Crime and Narcotics Center in the National Drug Threat assessment in 2007 show again a bare 10 per cent difference, although it is 2005 at 545 metric tons which is slightly lower than the 585 metric tons produced in 2002.

Third, while there is no question that there were some significant non-police/military benefits in the Plan Colombia funding, including strengthening the Attorney General's office and support for human rights and alternative development, the reality is that a bare 20 per cent of the funds was available for those purposes. If there is really going to be an alternative to drug cultivation in Colombia and in the Andes, there needs to be a major joint investment by the countries and by the U.S. and other donors and the international financial institutions in reducing rural poverty. The rural infrastructure of electricity, water, sanitation, roads and government social services remains vastly under funded.

Finally, the need to strengthen law enforcement and interdiction, particularly in the transit countries is clear. At the recent drug summit in the Dominican Republic, the Presidents of the Dominican Republic and Haiti were quite unhappy at the lack of support from the U.S. on interdiction citing reduction of air cover of some 62 per cent in the Caribbean between Colombia and Venezuela and one-third reduction in Coast Guard and naval coverage, apparently stemming from the competing demands of Iraq. The situation in Central America apparently is equally disturbing with Guatemala now barely keeping its head above ground in the fight against the influence of drug traffickers.

Proposed changes in U.S. assistance:

• A ceiling of no more than 50 per cent of U.S. funding for Colombia from all sources to the police and military with at least 50 per cent going to the "other" equally important side of security-justice, human rights, rural development, rural governance, micro credit, environmental assistance, and support to indigenous and Afro-Colombian particularly in poverty reduction activities.

• With respect to existing human rights conditionality, expand the targets of concern to specifically include rearmed paramilitary, new paramilitary groups and new illegal armed groups. Insure that judgments as to the adequacy of Colombia military and civilian government cooperation with efforts to prosecute complicit officials should include direct consultation with the Attorney Generaland the Supreme Court of Colombia.

• To the Attorney General's office provide $30 m. with $10 m. specifically aimed at multiplying and reinforcing the justice and peace unit prosecutorial teams charged with the paramilitary investigation, $5 m. for its human rights unit, and a combined $5 m. victim and witness protection program.

• Similarly there needs to be much stronger support for the public attorney for human rights (procuraduria general) and the ombudsman (defensoria del pueblo), perhaps $10 m. aimed at protecting human rights activities and protecting the communities at risk. Separate funding should continue to support Colombian human rights NGOs and the organizations of victims.

• With respect to human rights as well the Congress should clearly support the extension of the UNHCHR mandate for the full term of the Uribe government with full responsibility to report, analyze, and make recommends for the improvement of human rights conditions. Last year, it only received a bare one year extension after the Uribe administration sought to limit its mandate. President Uribe told the Secretary General a few weeks ago in New York that he would agree to the continued work of the UNHCHR office to 2010. The U.S. also should support the rapid implementation of the National Action Plan for Human Rights and International Humanitarian law.

• Reverse the funding cut for the displaced ($25m to 21 m in the "08 budget) by increasing that program to $35 m.-recognizing that they are among the most vulnerable of the victims of the conflict, and targeting more funding on the indigenous and Afro-Colombians.

• While maintaining the support to alternative development as part of the counter narcotics strategy but expand into a national sustainable rural development strategy in which up to $100 m. will be available for the broad range of participatory rural development activities including infrastructure investment in electricity, water, farm to market roads, sanitation as well as social services along with local governance and citizen safety. These activities in rural Colombia can demonstrate an alternative to drug cultivation and an integrated governance/development option for communities when the FARC or AUC are removed. This program should be matched by Colombian_government investment and the World Bank, EU and Inter-American Development bank should be encouraged to participate.

• With respect to demobilization, continue support for the OAS MAPP but emphasize the need to improve its capacity for independent verification of the dismantlement of the financial, criminal and armed structures of the paramilitary with an invitation to the IACHR to assess the judicial proceedings and the adequacy of participation of the victims and the cooperation of the executive with the Attorney Generaland Supreme Court investigations. Finally with respect to counter-narcotics, finance two bi-partisan comprehensive review commissions of counter drug policy. The first would be an international review of the supply side of counternarcotics policy in the Andean region in concert with CICAD, UNDCP, and both supply and transit countries. The second would examine what other consumer countries are doing to reduce demand and bring together the national academies of sciences, particularly with its institute of medicine, to bring together both the expertise of health and social sciences to determine how to further explore the most effective demand reduction strategies.

• Initially, consider initially a much greater shift away from aerial to manual eradication linked to alternative development, expand substantially support for interdiction including river, maritime and ground and using DOD counternarcotics funding restore greater interdiction capacity between Colombia and Venezuela and the Caribbean islands, starting with the placement of at least two DEA Blackhawk helicopters permanently in Haiti to work with MINUSTAH and the Haiti National Police to intercept drug traffickers. Additional attention and resources are needed as well with respect to the D.R. and Eastern Caribbean countries, and in Central America.

Thank you for this opportunity to testify before the Committee.

Mr. ENGEL. Thank you. Ms. McFarland.

STATEMENT OF MARIA MCFARLAND SÁNCHEZ-MORENO, ESQ., PRINCIPAL RESEARCHER AND SPECIALIST ON COLOMBIA, HUMAN RIGHTS WATCH

Ms. MCFARLAND. Thank you, Mr. Chairman, members of the committee. I am honored to appear before you today, and thank you for the invitation. I will be summarizing my written testimony which I have submitted for the record. I just returned from a trip to Colombia which I visit several times a year, and on this trip I met with several high level officials, prosecutors, judges, NGOs. What I would like to stress and what I heard repeatedly is that today Colombia's democracy is facing a very grave threat in the form of drug running paramilitary groups exercising direct influence at some of the highest levels of government.

Eight Congressmen from President Uribe's coalition are under arrest for their alleged ties to paramilitaries. One is the brother of the former foreign minister who resigned as a result of the scandal. Their father, as well as nearly 20 other current and former Congressmen is also under investigation.

President Uribe's former intelligence chief from 2002 to 2005, Jorge Noguera, has come under prosecution for allegedly giving paramilitaries the names of trade unionists who were later killed.

The allegations are serious enough the U.S. has revoked Mr. Noguera's visa.

President Uribe initially responded to these allegations by attacking the media and defending Mr. Noguera. But as they have mounted, he has tried to take credit for the revelations by portraying them as a result of his own paramilitary demobilization program. This spin has no basis in fact. All of the revelations involving parapolitics resulted from independent, judicial and press inquiries and not as part of the demobilization program.

In fact, while a genuine demobilization is certainly a desirable goal, the program being implemented in Colombia is more image than substance. Over 30,000 individuals have gone through demobilization ceremonies but the government has done little to find out who they were or what they knew. I personally have interviewed many of these demobilized individuals and found out that they knew a great deal about their groups' operations, their drug labs, their abuses but the government never asked them for this valuable information, instead granting them pardons for their membership in the group.

Since then the government has lost track of several thousand of them. Both the organization of American States and the United Nations have reported that thousands of paramilitaries continue to operate, and that mid level commanders are recruiting new troops. Paramilitaries continue to threaten and kill civilians.

Mrs. Yolanda Izquierdo, who the chairman mentioned earlier for example, who led a group of 700 victims who wanted paramilitaries to return the land that they had stolen was gunned down in February after repeated threats on her life which the government never addressed. Judith Correa, a human rights defender who denounced the paramilitary violence in Malena was shot just yesterday.

Several paramilitary leaders are in prisons awaiting reduced sentences under the demobilization program yet the minister of interior has told me that they have unrestricted access to cell phones through which they presumably continue to communicate with their mafias. Many of these commanders are wanted in the U.S. for drug trafficking but President Uribe has suspended the orders for their extradition.

I would point out here that the Colombian Government has extradited over 500 individuals to the United States during the Uribe administration but none of them are paramilitary commanders. That has been the exception.

After serving reduced sentences, probably on farms, of as little as 3 years for all their crimes including drug trafficking, these commanders will be free and they will be protected from extradition thanks to the principle of double jeopardy. Once they have served the time in Colombia for the crime, they cannot be extradited. Paramilitary leaders are among Colombia's biggest drug kingpins but the Colombian Government has yet to do much to press them to turn over their illegal wealth or the land that they took from Afro-Colombians and many other groups.

Last year Colombia's Constitutional Court ruled that paramilitaries who wanted reduced sentences would have to confess their crimes, and the prosecutors would have to investigate them but the