COMISIÓN COLOMBIANA DE JURISTAS Organización no gubernamental con status consultivo ante la ONU

Filial de la Comisión Internacional de Juristas (Ginebra) y de la Comisión Andina de Juristas (Lima) PERSONERÍA JURÍDICA: RESOLUCIÓN 1060, AGOSTO DE 1988 DE LA ALCALDÍA MAYOR DE BOGOTÁ

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Bogotá, Colombia

Bulletin No 31: Series on the rights of the victims and the application of Law 975

Extradition leaves the victims a long way from truth, justice, and reparation

This past August 2008, the Magistrate for Guarantee Control, Álvaro Cerón Coral,

designated for the trials carried out in the framework of the special proceedings created by

Law 975 of 2005, summoned the paramilitary leader Salvatore Mancuso Gomez to a

preliminary hearing in which he sought to charge him with massacres such as the one in El

Salado (Bolívar), for which the ordinary justice system had already charged him as the

presumed perpetrator. Seeking the presence of the extradited paramilitary at the hearing, the

Magistrate made contact with the Ministry of Foreign Relations and the Ministry of the

Interior and Justice. The representatives of the victims of the cases for which that the

Magistrate sought to charge the extradited paramilitaries were also summoned.

On September 1 took place the preliminary hearing for attribution of charges against

Salvatore Mancuso Gomez. Present at the hearing were the State prosecutor for the case,

an agent of the public ministry, Mancuso‟s lawyer, and representatives of the victims. At

that moment, the parties to the action found out that the Colombian government had not

summoned the paramilitary leader to appear in court. The national government‟s contempt

of court led the Magistrate for Guarantee Control to announce a possible criminal or

disciplinary action by the court, as the government‟s omission constituted disregard of a

court order and undue interference in the administration of justice.

The Colombian government had announced that the extraditions would not interfere with

the processes carried out under Law 975 and had committed itself to enter judicial

cooperation agreements with United States authorities in order to guarantee it.1 To that end,

commitments were announced by both the Colombian and the U.S. governments. Through

an exchange of notes, they agreed that the Colombian authorities charged with processing

requests for legal assistance by judicial authorities are the Prosecutor General‟s Office and

the Ministry of the Interior and Justice, and that the U.S. authority assigned for that same

purpose is the office of the judicial attaché of the Embassy of the United States in

Colombia, who will convey the Colombian state‟s requests for judicial cooperation

regarding the extradited paramilitaries to the Office of International Affairs of the

Department of Justice in Washington, D.C.

As can be observed, the Magistrate for Guarantee Control set in motion the proceedings

ordered by the Colombian state in order to carry out the preliminary hearing for the

attribution of charges, and the Colombian government ignored the judge‟s request. Some

The present publication has been prepared with the support of the European Union and its content is the sole

responsibility of the Colombian Commission of Jurists. In no way should it be thought to reflect the point of

view of the European Union. 1 “Gobierno asegura que los „paras‟ extraditados continuarán en Justicia y Paz” (Government assures that the

extradited „paras‟ will continue in Justice and Peace), www.elespectador.com, May 13, 2008.

Con el apoyo de:

UNIÓN EUROPEA

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days later, at a meeting held by the Colombian Commission of Jurists with members of the

Embassy of the United States in Colombia, the U. S. officials pointed out that the Embassy

of the United States in Colombia had no knowledge of the order to appear in court,

confirming that the Colombian government never carried out the judge‟s request.

The one just described is not the only case of noncompliance by the Colombian state with

its obligations in the context of the processes against extradited paramilitaries for crimes

against humanity. On May 14, 2008, the national government sent a message to the Inter-

American Commission for Human Rights stating “that any legal benefit granted in the

United States would be contingent on cooperation with victims’ rights to truth, justice, and

reparation.” There has been no compliance on this commitment either. In the agreements

signed between U.S. authorities and some of the extradited paramilitaries – such as Ramiro

Vanoy, alias “Cuco Vanoy” and Javier Zuluaga Lindo, alias “Gordolindo,” in whose cases

the agreement has been abided by through their guilty sentences; Diego Alberto Ruiz

Arroyave, alias “el Primo” and Diego Fernando Murillo Bejarano, alias “Don Berna,” who

are being tried in U.S. courts – the condition was not stipulated regarding the obligation to

contribute effectively to Colombian justice in exchange for sentence reduction.

In addition to illustrating the noncompliance mentioned, the case of Ramiro Vanoy helps to

demonstrate the consequences of not having investigated and sanctioned the crimes against

humanity before extraditing the 16 paramilitaries to the United States. On Thursday,

October 9, 2008, the on-line version of the daily El Nuevo Herald reported that Ramiro

Vanoy would be the first extradited paramilitary to render his “free-version” testimony

from the United States. According to El Nuevo Herald, the proceedings had already been

planned, but the defense team of the extradited paramilitary expressed its opposition

because the paramilitary‟s defense lawyer was denied a visa to attend the hearing. As a

result, the defense team announced that “Cuco Vanoy” would not render testimony as long

as his right to defense was not guaranteed.

A few hours later that same day, the opposite was announced. Sixty year-old Ramiro Vanoy

would no longer participate in the proceedings under Law 975 of 2005. The reason: the

U.S. judge had sentenced him to 24 years in jail, far more than what the paramilitary had

expected. His lawyer argued before the media that Ramiro Vanoy would finish serving his

sentence in the United States at the age of 84 and, therefore, he had no incentive to tell the

truth in the process under Law 975 of 2005.

That same day the Colombian government reacted. The High Commissioner for Peace, in

an interview on the television program “Pregunta Yamid” (“Yamid Asks”) on the Canal

Uno channel, put forward that the sentence imposed in the framework of criminal

proceedings under Law 975 of 2005 (a maximum of eight years) should be deducted from

the jail sentence in the United States (24 years in the case of Ramiro Vanoy) – that is, if he

decides to continue under Law 975, Ramiro Vanoy, upon leaving United States prison,

would not have to serve a single day for the crimes against humanity he committed in

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Colombia. In the opinion of the High Commissioner this would be the best guarantee and

the greatest incentive for such persons to reveal the truth.

The argument used by Commissioner Luis Carlos Restrepo may sound convincing, since it

presents a “solution” to the refusal by alias “Cuco Vanoy” to continue with the process –

that is, to his refusal to tell the “truth” about the crimes he committed. However, the

Commissioner‟s proposal diverts attention from the true reasons why truth, justice, and

reparation, at least in what concerns the crimes committed by that particular paramilitary,

risk remaining in indefinite impunity. The true reason is that before being extradited and if

they continued to commit crimes, the paramilitaries should have lost the benefits of Law

975 and should have been judged and condemned by ordinary justice in Colombia with

sentences much more severe than those imposed in the United States for drug-related

crimes, given the seriousness of their crimes in the country.

All of the above was to be expected since, as Prosecutor General Mario Iguarán

acknowledged, no concrete cooperation agreements exist between the United States and

Colombia regarding extradited paramilitaries. This means that there are no guarantees for

the victims in the sense that there no effective mechanisms are available to demand their

rights. That is why, several months after the extradition, none of the extradited

paramilitaries is still being tried by the Colombian authorities in the processes undertaken

for crimes against humanity.

But the Commissioner‟s proposal includes other worrisome elements. The cases of Ramiro

Vanoy and Javier Zuluaga Lindo, who were sentenced to more than 20 years, cannot be

taken as a parameter of what will happen to all the paramilitaries. It cannot be ruled out that

the other 16 extradited paramilitaries will be granted shorter sentences or even that these

two paramilitaries who have already been sentenced will be granted, with time, additional

benefits. This is why the Colombian government‟s proposal to deduct the sentence imposed

by the Colombian judges from the time to be served in U.S. prisons is very dangerous. The

fact cannot be overlooked that the press reported that it is probable that alias “Don Berna,”

in spite of the fact that the pre-agreements stipulate that his sentence will range between 27

and 33 years in prison, will be free of all charges of drug trafficking after, at most, eight

years in a U.S. prison.2

As an example of this, Carlos Mario Aguilar, alias “Rogelio,” negotiated his surrender to

the United States authorities this past January and is now walking free in U. S. streets.3 He

was the leader of a group of paid killers at the service of the paramilitaries known as the

“Envigado office” and was the right-hand man of the notorious paramilitary boss Diego

Fernando Murillo Bejarano, alias “Don Berna.”

2 “¿Sólo ocho años de cárcel?” (Only eight years in jail?), Semana Magazine, June 21, 2008.

3 “¿Visa a la impunidad?” (A visa to impunity?), Semana Magazine, July 26, 2008.

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Furthermore, the United States ambassador in Colombia has illustrated his government‟s

position regarding the possibility that the sentences imposed on extradited paramilitaries in

his country will be reduced with the following question: “Do we want maximum sentences,

or do we want maximum cooperation in the future?” In the ambassador‟s view, severe

punishment inhibits their collaboration in the war against drug trafficking. This thinking is

valid for this U. S. official, since his government is interested essentially in the drug-related

crimes affecting his country. But immediate measures must be taken so that this does not

happen in the case of the paramilitary commanders who were recently extradited.

The way the Colombian state has handled extradition ignores the existing judicial

cooperation agreements such as the Inter-American Convention on Mutual Legal Assistance

in Criminal Matters, a treaty that took effect on April 14, 19964 and that allows - but, above

all, requires - that the criminal trials against the 16 postulants under Law 975 of 2005

extradited to the United States not be interrupted, nor the rights of the victims be affected.

In the same way, the mandates of international human rights law are blatantly ignored that

seek to prevent that serious crimes against humanity remain unpunished, among them the

Set of Principles for the protection and promotion of human rights through action to combat

impunity,5 in particular Principle 19, which stipulates that “States shall undertake prompt,

thorough, independent and impartial investigations of violations of human rights and

international humanitarian law and take appropriate measures in respect of the perpetrators,

particularly in the area of criminal justice, by ensuring that those responsible for serious

crimes under international law are prosecuted, tried and duly punished.”

These instruments, which are there for the use of the Colombian government, are being

ignored; thus the extradition of the 16 postulants under Law 975 of 2005 to the United

States will prevent that the serious crimes for which they are accountable are properly

investigated.

The Colombian government‟s noncompliance with the commitments it assumed when it

decided to extradite an important group of paramilitaries in order to “prevent” that their

crimes remain unpunished sets a negative precedent as to the possibilities of the victims to

demand justice vis-à-vis the extradited paramilitaries. In order to solve this worrying

situation, the Colombian government must reconsider its decision to extradite more

paramilitaries and concern itself with fulfilling the State‟s obligations imposed by

international human rights law.

4 The Inter-American Convention on Mutual Legal Assistance in Criminal Matters was ratified by the United

States on May 1 2001 and by Colombia on April 12, 2002. 5 Approved by the United Nations (UN) Commission on Human Rights, Resolution on Impunity Number

2005/81 (through which it makes note of the updated set of principles as guidelines to help the States to

develop effective measures to fight against impunity, recognizes the regional and national application of the

Principles, and adopts other arrangements to that end). Doc. ONU E/CN.4/RES/2005/81.

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It is difficult to know what the government‟s intentions are with the massive extraditions of

the paramilitaries. On the one hand, it can be a way of preventing that the extradited

paramilitaries reveal other acts or alliances that could compromise other sectors of society.

Remember that at a hearing of the Supreme Court broadcast from the United States,

Salvatore Mancuso said that “if we do not tell the truth, the whole truth, those who are

truly guilty for the conflict are going to single out the guerrilla and the paramilitaries as

guilty.” 6 Or, on the other hand, the government might be seeking to favor the paramilitaries

so that they become free of sentences and processes in a relatively short time, both for drug

trafficking and for crimes against humanity.

The extradited paramilitaries must tell the whole truth about their crimes; they must repair

their victims, and serve sentences for these crimes in order to receive legal benefits in

exchange. The Colombian government and the state in general are obligated to guarantee

the necessary means toward that end. This is what the Constitutional Court ordered in its

Sentence C-370 of 2005, which reviewed the constitutionality of law 975 of 2005. Up to

the present, no victim has received reparation for the harm suffered through the crimes of

the paramilitary groups, and the 16 paramilitaries were extradited precisely because they

did not comply with what Law 975 of 2005 stipulates – that is, they did not tell the truth,

there is no justice, and there is no reparation for their crimes.

The information obtained about what is happening with the extradited paramilitaries allows

us to interpret the decision to extradite these 16 postulants to Law 975 of 2005 as a formula

to exculpate them from criminal responsibility – be it because they are being led away from

the possibility of continuing to give declarations about their crimes, as it is happening now

with the sentences imposed, or be it because they are granted generous benefits and in a

short time they are set free to roam the streets of the United States with no debt to justice.

According the Article 17 of the Rome Statute, this constitutes cause for the International

Criminal Court to decide to file charges in order to rectify the serious consequences of this

extradition for society. Probably only a decision in this sense could point to a different path

– one in which, on the basis of respect for the human rights of the victims, the imminent

impunity can be averted and non repetition can be guaranteed for Colombian society.

For more information, please contact Gustavo Gallón-Giraldo, Director of the CCJ, at Tel.

(571) 376 8200, Ext. 115.

Bogotá, October 21, 2008

6 “Mancuso dice que Auc. influyeron en elección presidencial” (Mancuso says that Auc influenced

presidential election), Semana Magazine, September 25, 2008.