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II.  The Paramilitary Demobilization Process to Date

The government of Colombia has been engaged in negotiations for the demobilization of paramilitary groups since late 2002, when paramilitary leaders unilaterally declared a cease-fire.  The cease-fire declaration and the ensuing negotiations appear to have been motivated primarily by paramilitary leaders’ desire to obtain a deal that will allow them to avoid extradition to the U.S. while serving as little time in prison for their crimes as possible.⁶  Observers have also pointed out that paramilitary leaders and drug lords at the negotiating table may view demobilization as an opportunity to launder their illegally acquired wealth.⁷ 

Paramilitaries have been blatantly flouting the cease-fire.  A September 2004 report by Colombia’s Public Advocate (Defensoría del Pueblo) stated that in the first eight months of 2004 it had received 342 complaints involving apparent paramilitary breaches of the cease-fire, including massacres, selective killings, and kidnappings.⁸  Estimates of violations made by Colombian NGOs are even higher, with the Colombian Commission of Jurists stating that as of August 2004 paramilitaries had killed or forced the “disappearances” of 1,899 people from the date of cease-fire declaration.⁹  

Meanwhile, negotiations have proceeded erratically, and the government has yet to put in place a legal framework that would set forth the benefits and conditions for demobilization.¹⁰  Instead, it has been moving forward with demobilizations of thousands of purported paramilitaries by applying existing laws that are inadequate to take apart complex paramilitary structures and ensure accountability for paramilitary abuses.

In late 2003 approximately 868 purported paramilitaries from the Cacique Nutibara Front in Medellín turned in their weapons in massive demobilization ceremonies, and started entering government reintegration programs. But as Colombia’s High Commissioner for Peace¹¹ has acknowledged, that demobilization is now largely viewed as a “ public embarrassment” due to the high number of impostors among those who demobilized (the paramilitaries apparently recruited common criminals to pretend to be paramilitaries).¹²  According to the Inter-American Commission on Human Rights, this demobilization has not resulted in any significant reduction in violence in Medellín; paramilitary groups apparently continue to control certain neighborhoods in Medellín and commit abuses against those who do not cooperate with them.¹³

In October 2004, paramilitary leaders announced that as a gesture of goodwill they would unilaterally demobilize several thousand troops before the end of the year.  In the following two months, 2,624 troops belonging to five blocks purportedly demobilized: the Catatumbo and Calima Blocks, both led by Salvatore Mancuso, and the Bananero, Cundinamarca, and Isla San Fernando Blocks.¹⁴ 

The government has hailed the 2004 demobilizations as a great success, but their final outcome is yet to be seen.  Initial reports appear to indicate that this time paramilitaries did not recruit large numbers of impostors to pretend to demobilize.  Another positive fact is that in the demobilization of the Bloque Catatumbo the paramilitaries appear to have voluntarily turned over a large number of weapons and ammunition, as well as some amount of land (apparently around 6,500 hectares).¹⁵ 

The motivation behind these gestures by Salvatore Mancuso’s groups is unclear.  Some observers suggest that they are strategic moves within the negotiations, and that they will not be repeated.¹⁶  The turnover of land is not something that has occurred with other paramilitary blocks that have demobilizedand it is not currently required by law or by the government’s procedures for demobilization.

A Legal Vacuum

The demobilizations that have taken place so far have been conducted in accordance with Colombian Law 418 of 1997 and its amendments and implementing decrees.¹⁷ 

That body of law provides amnesties for certain crimes and economic benefits to all members of illegal armed groups who voluntarily desert or demobilize, and who have not been charged with the commission of a serious violation of international human rights or humanitarian law, such as a massacre or kidnapping. 

However, these laws are wholly inadequate to deal with massive demobilizations and the dismantling of complex mafias such as the paramilitaries.  Law 418 was initially designed to encourage individual desertion from illegal armed groups.  Although later amendments and decrees attempt to extend Law 418 to cover demobilizations, this set of laws does not include the minimum requirements to ensure the complete dismantlement of the group in the context of a peace negotiation.¹⁸  For example, it contains no requirements that, to receive benefits, paramilitaries cooperate with the authorities in investigations, turn over their illegal assets, or disclose information about the group’s structure, past crimes, and sources of financing. 

The Procedures for Recent Demobilizations: An Assembly Line Approach

Recent demobilizations have been conducted in accordance with very mechanical procedures, following a highly expedited schedule published by the office of the High Commissioner for Peace.¹⁹

According to this schedule, paramilitary groups go through a three-stage demobilization process lasting at most forty-eight days.  In the first stage paramilitary leaders give the government a list of the individuals who are demobilizing and the weapons they will turn over. 

In the second stage, lasting two to ten days, these individuals are supposedly moved to a concentration zone, where the government verifies their identities,²⁰ makes a determination as to whether or not they are responsible for the commission of an atrocity, and receives each individual’s weapons.  Supposedly, the determination as to whether the individual is responsible for abuses is based on information provided by the Attorney General’s office (Fiscalía) and the state’s intelligence apparatus.  However, in past demobilizations the Attorney General’s office has only checked its files to determine whether those who are demobilizing are already the subjects of ongoing prosecutions or convictions for atrocities.²¹

In the third stage, those who are wanted for human rights abuses remain in a concentration zone, and the rest are returned to their places of origin, where they may begin to receive economic benefits and other support from the government.

Key Deficiencies

The following are key deficiencies in the laws and procedures described above:

• Back-door impunity: Under current procedures, the government conducts only a cursory check of its records to determine whether the individuals who are demobilizing are already the subjects of ongoing prosecutions or convictions.²²  If they are not, they can immediately start receiving benefits.  There is no further effort to carefully investigate each individual to determine whether he might be linked to crimes against humanity or other abuses.²³  Because most paramilitary crimes do not yet have a known author,²⁴ it is very likely that many individuals who have committed massacres, kidnappings, or other crimes will be able to avoid detection and prosecution.  In effect, historically endemic failures to properly investigate and prosecute paramilitary abuses would become guarantees of impunity today. 

Furthermore, it is questionable whether the government’s brief demobilization schedule even allows enough time for an adequate check of existing prosecutions and convictions.  The Colombian Inspector General’s Office (Procuraduria) recently announced that 163 individuals charged with atrocities such as kidnapping and forced disappearances had improperly received judicial benefits in the 2003 Cacique Nutibara demobilization.²⁵

• Failure to require paramilitary groups or their members to disclose any information about their structure, assets, sources of financing, or past crimes:  Current law does not give investigators the tools (such as required disclosures by paramilitary groups or their members) to conduct even preliminary investigations of the paramilitary groups that are demobilizing, their structure, or their sources of financing.  All a group is required to do is provide a list of those who are demobilizing and the weapons they will be turning over.  Individual paramilitaries are only required to provide information concerning their identities, such as their names, fingerprints, and dental records, which the government must check within a very short time-frame.

• Failure to encourage real and complete demobilization:  The government has not put in place effective mechanisms that would encourage leaders to ensure complete demobilization.  Leaders can receive generous benefits (including, under the legal framework the government proposed in April 2004, extremely light sentences for abuses) for demobilizing even if their group continues to operate and engage in abuses and other criminal activity.

• Failure to require paramilitaries to turn over their illegal assets, cooperate with authorities, or make reparation as a condition to receive benefits:  Current law does not require paramilitaries to turn over or even identify their illegal assets, to cooperate with the authorities in investigations, or to make reparation to the victims of their crimes.