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Proquest Dissertations NOTE TO USERS This reproduction is the best copy available. ® UMI LEGALIZATION OF CRIMINAL NETWORKS: THE CASE OF THE COLOMBIAN "JUSTICE AND PEACE LAW," LAW 975 OF 2005 RUSBY MARIELA CHAPARRO QUIJANO A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER'S OF LAWS GRADUATE PROGRAM IN LAW YORK UNIVERSITY, TORONTO, ONTARIO FEBRUARY 2008 Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-38757-3 Our file Notre reference ISBN: 978-0-494-38757-3 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada IV ABSTRACT This thesis is a study of the Colombian so-called "Justice and Peace Law," Law 975 of 2005, a piece of legislation which creates the framework to bring members of guerrilla and paramilitary groups involved in the armed conflict to justice and also to facilitate reparation for their victims. Issued in a country characterized by over four decades of armed conflict and substantial drug trafficking activity, this unique law apparently represents hope for dramatic social change and reorganization of society. Although the explicit goals of the law and its rhetoric of justification try to present it as an instrument to facilitate the termination of the conflict and welcome peace, this thesis demonstrates that the law is actually intended to legalize the politico-criminal network that has become a common social practice in the dynamics of large-scale drug trafficking and the armed conflict in the recent years. vn TABLE OF CONTENTS Introduction 1 Chapter One: THE JUSTICE AND PEACE LAW: ALTERED TRANSITION 1.1 Introduction 19 1.2 The Debate: Prosecution or Impunity 21 1.3 Formal Scope of the Justice and Peace Law 24 1.3.1 The Principles and Aims of the JPL: Procedural Justice 27 1.3.2 The Beneficiaries of the Law 30 1.3.3 The Criminal Proceeding and Protection of Victims in the JPL 33 1.3.4 Punishment: Disputable Lenient System 39 1.4 Complementary measures: Judicial Benefits and the Undeclared Goals 41 1.5 Conclusion 45 Chapter Two: LAW AND SOCIAL CHANGE: A SEARCH FOR MEANING 2.1 Introduction 47 2.2 The Social Construction of Law: The Unity of Text and Action 49 2.3 Language and Communication: The Power of Silence and Symbols 58 2.4 Social Values and Interests: Explicit and Implicit Goals of Change 65 2.5 Transitional Justice Systems: The Harmonization Politics and Law 71 2.6 Conclusion 79 Chapter Three: THE INTERCONNECTION DRUG TRAFFICKING-ARMED CONFLICT 3.1 Introduction 82 3.2 Drug trafficking: Profit Making vs. Public Flealth 83 3.3 The Social Practice of Drug Trafficking: Organized or Disorganized Crime 90 3.4 Armed Conflict and Drug Trafficking: Common Actors 1 1 0 3.4.1 Guerrilla Groups 114 3.4.2 Paramilitary Groups 123 3.5 Conclusion 130 Chapter Four: THE OFFICIAL RESPONSE: FLEXIBLE POLITICAL AGENDA 4.1 Introduction 132 4.2 War on Drugs: Justice and Counter-insurgency Policy 133 4.3 Extradition: A factor leading to Discretional Decision Making 142 4.4 Plan Colombia: An Economic Development Model 147 4.4.1. Military Aid: The Dilemma Terrorism v. Peace 151 4.4.2. Legal Reform: The Conjunction Law and Politics 163 4.5 Conclusion 166 Chapter Five: THE UNDECLARED GOALS OF THE JPL: DISTORTED CHANGE 5.1 Introduction 168 5.2 Unnecessary Law 169 5.3 Law Making Process: Prioritizing Private Interests 1 76 5.3.1 Silence of the Constitutional Court 179 5.3.2 The Liaison DAS, Paramilitaries, and Drug Trafficking 1 85 5.3.3 The President and the Selection Process 188 5.4 Conclusion 190 Conclusions 192 Bibliography 197 1 INTRODUCTION This thesis is a study of a highly contested Colombian law, the so-called "Justice and Peace Law" (JPL), law 975 of 2005, in its role of social transformation. } The JPL embodies what H. L. Hart would identify as social morality and Lon Fuller as the morality of aspiration, as this law reflects a superior aspiration of society. The JPL is intended to facilitate the termination of over five decades of internal armed conflict. This law creates a lenient criminal justice system to bring the members of both guerrilla and paramilitary groups to justice for the crimes they have committed during the conflict and also, to facilitate reparation for the victims of those crimes. With these components, the JPL does not only represent an institutional venue for criminal prosecution and civil reparation for serious past wrongdoings, but it also constitutes the basis for the future reconstruction of society. This great potential of the law, however, has been a contested matter in both the academic and political realms, and the lenient criminal justice system created in the law has become the cornerstone of the debate. Notwithstanding the fact that the debate about the JPL has occupied politicians and academics with a myriad of claims, two main argumentative trends can be identified for ' At the initiative of President Alvaro Uribe Velez (2002-2010), the bill was approved in Congress and has been in force since July 25, 2005, when it was officially published in "Congreso de Colombia, Diario Oficial" 45.980. However, until December of 2007, no sentencing has been issued on the basis of this law. 2 See H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961) at 175-180 and Lon L. Fuller, The Morality of Law (New Haven and London: Yale University Press, 1964) at 3-32. 2 academic purposes. On the one hand, the government's argument endorses the capacity of the law as an instrument for justice along the transition from the state of conflict to a state of peace. On the other hand, mainstream academics have broadly argued against the competence of the law to achieve its declared goals of justice, reparation, and peace. The government's view is based on a positivist approach to law. This is so not only because the government claims that the JPL unequivocally leads to justice, as if justice were intrinsic to law, but also because the justification for the law relies on a rational argument, an argument embedded in the discourse of justification for the US-led so- called global "War on Drugs" (WOD) and "War on Terrorism" (WOT). In that discourse, guerrillas and paramilitaries are considered "terrorist groups" funded through drug trafficking and consequently, groups to be eliminated. To that end, the JPL promotes demobilization of the armed actors, and the government claims that the lenient justice system created in the law will be an incentive for the members of such groups to demobilize and surrender to the authorities for prosecution. Academics have assumed a critical view of law through a study of the text of the law in light of the situation of conflict. It has been argued that the JPL is not a post-conflict law and that the formulas of the law do not facilitate the announced transition from See Costas Douzinas and Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice (Oxford and Portland, Oregon: Hart Publishing, 2005) at 3-76 and 227 to 258. The term critical is used here in the sense that Douzinas and Gearey develop in their work. It is referred to the deconstruction of law through a view of text and practice, in which those who do not belong to the groups in political power are taken into consideration in the interpretation-construction of law, justice and jurisprudence. 3 conflict toward justice and peace.4 Neither does the JPL address justice and peace in the broad sense, as the context requires, nor does it facilitate prosecution of past wrongdoers and reparation to victims as the law declares. Consequently, some assert that the lenient nature of the system created in this law constitutes an open door to impunity for severe crimes -including crimes against humanity and genocide. In particular, it has been argued that the JPL facilitates impunity for the paramilitaries.
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