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.

To deepen the debate, I have chosen the broad framework of Law and Social Change to study this law, and I have posed the following question: what is the major social change that the JPL actually outlines? I argue, in response to this question, that instead of leading to justice, reparation, and peace as it declares, the JPL outlines the legalization, understood as incorporation in the law, of established political-criminal networks which have characterized the dynamics of drug trafficking at large scale and the armed conflict in recent years. This legalization is apparent in the JPL particularly when the law gives the executive branch of government the duty of assessing whether or not the possible beneficiaries of the JPL have been involved in drug trafficking, and this assessment is amply discretionary.

4 See Rodrigo Uprimny Yepes et al., "Justicia Transitional en Colombia. Algunas Herramientas Conceptuales para el Analisis del Caso Colombiano" in Rodrigo Uprimny Yepes, ed., Justicia Transitional sin Transicion? Reflexiones sobre Verdad Justicia y Reparacion en Colombia" (Bogota: Centro de Estudios de Derecho, Justicia y Sociedad, Documentos de Investigacion, 2005) 1-25. See Catalina Botero Marino and Esteban Restrepo, "Estandares Internacionales y Procesos de Transicion en Colombia" in Uprimny, ed. supra note 4 at 25-83 6 Daniel Garcia-Pena Jaramillo, "La Relacion del Estado Colombiano con el Fenomeno Paramilitar: Por el Esclarecimiento Historico," Analisis Politico no. 53, Bogota, enero-marzo, 2005 at 59-74. 4

This central argument leads me to two complementary claims. I argue that this legalization of criminal practices undermines the criminal nature of large scale drug trafficking going forward. Finally, I assert that the lenient system created in the law serves this legalization of criminal behaviour in two ways. First, the lenient system satisfies the need for formal criminal punishment for the members of the politico-criminal network, in order to avoid future international prosecution. Second, this type of justice system serves the rhetoric of transitional justice, which in turn aims to justify the overt interference of the executive branch of the national government in the administration of justice, so the changes that I argue in this thesis can be realized.

The leading question of this thesis results from the fact that, as others have argued and will be demonstrated, the explicit formulas of the JPL fail in facilitating the declared goals of justice, reparation, and termination of the conflict in the Colombian context.

Despite the fact that some sections of the original text of the law were declared unconstitutional and others modified by the Constitutional Court eleven months after the law came to force, it is to be noted that this study focuses on the original text of the law and there is a reason for that. At first glance, such an effort might seem a futile enterprise; nonetheless, this is a necessary task. This is so especially because the decision of the Constitutional Court was non-retroactive, and by the time the decision was issued,

7 Sentences C- 319/06, April 24, 2006 and C-370/06, May 18 of 2006, Colombian Const. Court. In the former decision, the Court ruled on procedural issues and in the latter, the Court ruled on substantial issues. 5 the JPL had already achieved what I argue to be its major goals, a common phenomenon in the local legal tradition. Bearing this in mind, the examination of the text of the law

(as identified) in face of its declared goals, makes the great discrepancy between that text and the declared goals of the law evident, and this situation prompts one to inquire about the potential of this law to effect social change, beyond its explicit goals.

In this inquiry law is considered as the conjunction between legal text and legal practice throughout law making, law enforcement and adjudication processes in a particular context. Although the text of the law is still the starting point of this study, the meaning that the law gains in society is the determinant factor for social change, and that meaning transcends the text of the law, hopefully, without overriding it. At first glance, such an inquiry could be considered unthinkable for a law issued within a civil legal system - meant to be written and rich in details; however, given the Colombian legal tradition and the matters dealt with in the JPL, this is also a necessary approach, as will be demonstrated.

According to the Colombian experience, laws and decrees dealing with terrorism and drug trafficking have been demonstrated to aim at undeclared goals, allow concentration of power in the executive branch of government, and be highly unconstitutional.

Mauricio Garcia Villegas demonstrated in an extensive study how, in the 1980s, laws and 6

o decrees on terrorism and drug trafficking were 'symbolic' rather than instrumental. By symbolic he meant that those laws and decrees actually were designed to achieve undeclared goals, rather than to achieve their explicit ones; in fact, he demonstrated that those 'laws' were effective in achieving their undeclared goals over the explicit ones. In a more general study of the Colombian legal culture, Garcia Villegas appropriately argued that the legal system moves between legality and illegality, and specifically, laws referring to drug trafficking and terrorism demonstrate that dual characteristic. He found that these laws usually come to force, but later, the laws become unconstitutional; moreover, the ruling declaring such unconstitutionality is usually produced when the laws had already accomplished their superior undeclared purposes. In addition, the increase of political and legislative powers in the hands of the executive branch of government was a quite common characteristic in the past during states of exception, but most recently this increase of executive power has been derived from the institutional strategy of the wars against drugs and terrorism. In sum, all these factors constitute a pattern, which should not be forgotten in answering the proposed question.

Mauricio Garcia Villegas, La Eficacia Simbolica del Derecho: Examen de Situaciones Colomhianas (Bogota, Ediciones Uniandes, Universidad de los Andes, 1993) 157-195. Garcia Villegas refers to laws related to drug trafficking issued during the 1980s, when this crime was associated to terrorism, and political violence in the country. His main argument is that those laws failed in their instrumental goals, but were effective in achieving their symbolic objectives.

Mauricio Garcia Villegas, "Constitucionalismo Perverso. Normalidad y Anormalidad Constitucional en Colombia: 1957-1997" in Bonaventura de Sousa Santos and Mauricio Garcia Villegas, El Caleidoscopio de las Justicias en Colombia Tomo I (Bogota: Siglo del Hombre Editores, 2001) 317 at 349-364. 7

The particular legal tradition and the complex situation of conflict result in significant challenges for this academic research. The greatest challenge that one faces is to set the borderline between the political rhetoric behind the law and the legal academic concerns that emerge from the practice of law in society. This borderline is particularly problematic because laws issued for transitional times are meant to be understood by reference to their highly political motivations.10 This obstacle to interpretation is addressed in this thesis by following the paradigm of Law and Social Change, which suggests a view of the law as a social phenomenon from below. The analysis will focus on social interactions shaping the construction of law, and in that panorama the political, as rhetoric or simply exercise of power, will be considered to the extent that it is determinant of those social interactions. Another significant challenge is the necessary comprehension of the complex context and the identification of the role of the JPL within that context, as the JPL is expected to address primarily the armed conflict and subsequently drug trafficking and terrorism. The challenge comes from the fact that all those features are contested matters and so is their relationship to one another. To overcome that complexity, I examine the interconnection between drug trafficking and the armed conflict at one end, and the unified official response to both of them and terrorism at the other end. Further, both for the study of that interconnection and the

See Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000) 213-228 and Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2004) 79-135. They both exhibit structural elements of transitional justice under the assumption that it is related to periods of political transformation. 8 official response, special attention is given to large scale drug trafficking, for it is the point of intersection amongst the various factors that interplay in the context.

More complex difficulties emerge from the special focus on large scale drug trafficking as the intersecting point, but this complexity is also addressed. On the one hand, the illicit phenomenology of drug trafficking (its practice) makes the gathering of empirical evidence difficult for a researcher. This problem is alleviated in this thesis through a comprehensive understanding of criminal networks and strategies in place in the illegal and legal business worlds, as there is enough evidence about them in the academic literature, government and non-governmental organization reports as well as written media and literature in diverse fields. Complementary but secondary will be evidence on the size of illegal trading groups, number of associates, or even estimates of their profits, not only because information on these areas is highly conflicting but also because gathering of accurate evidence on these aspects is quite a difficult task. On the other hand, the study proposed here will examine the issue of drug trafficking in relation to law making, law enforcement and adjudication, and one should be aware that at those levels this topic has been considered sensitive, or even dangerous in Colombia. '' Ultimately, such levels of enquiry raise questions about the relationship between drug trafficking and politics, and that relationship has simply been an untouchable topic in Colombia. Most

During the 1980s and the 1990s law makers, law enforcement agents, prosecutors, judges, legal practitioners, university professors, a Justice Minister, a national chief of an office of judicial and public service accountability (Procurador General de la Nacion) were killed for their views, actions and decisions about drug trafficking. 9 academics devoted to studying organized crime in Colombia do not write extensively on such a specific topic; although some of them publish brief pieces for reflection in columns of newspapers and magazines. This situation has represented a limitation for academic research; however, the ongoing criminal investigation that the Supreme Court is conducting against members and ex-members of Congress under charges of organized crime has unveiled what had been untouchable.

Apart from the unveiling of an untouchable criminal relationship in the official sphere, this ongoing criminal investigation directed by the Supreme Court, commenced during the course of this research at the end of 2006, represents a turning point for the study of organized crime in Colombia. As of the end of December of 2007, over fourty politicians and business people have been formally charged and sixteen high-level politicians and ex-public servants are in detention all under charges of organized crime. Clearly, this new situation has reduced the level of challenge for academic research; yet, this situation is a must as an object of study for those interested in legal, criminal and criminological institutions, although limitations for information gathering still remain a concern.

Within the identified socio-legal scenario, a study of the JPL must necessarily dissect the undeclared goals of the law, and these can be identified along the continuum of the law in practice (law-making, law enforcement, and adjudication). This is the objective of the

12 Such is the case of Alfredo Rangel,Francisco Thoumi, Juan Tokatlian, who write columns for "El Tiempo," a daily newspaper and Semana, a weekly magazin both of them mainstream media in Colombia. 10 thesis, not only because legal tradition so dictates in the case of laws dealing with drug trafficking and terrorism, but also because undeclared goals and symbolic language are the most powerful elements in both the construction of legal consciousness, and consequently, social change. Undeclared legal goals have to do with the ultimate motivations driving a specific law, and in this case, the motivations are expected to be purely political and to represent the interests of the groups behind the desired transition, since the law was presented as an instrument for transition.14 Those motivations or meta- motivations, as Ion Elster calls them, usually override the explicit goals of the law, 5 especially when the law creates a new legal system. However, one could not dissect the undeclared goals of the JPL in isolation from its explicit language; the undeclared goals of the law complement the written goals and text to fully ascertain the message of this law. Thus, the undeclared goals are to be found in the full message of the law; both the text of the law and its implicit message are crucial to understand the undeclared goals.

Legal consciousness is understood in literature as the social attitude toward law. On this topic, see Pierre Bourdieu, "The Force of Law: Toward a Sociology of the Juridical Field," Trans, by Richard Terdiman, 38 Hastings L. J. 805 1986-1987 at 816 - 820, Steve Bachmann, "Lawyers, Law and Social Change," 13 N. Y. U. Rev. L. & Soc. Change 1984-1985 at 24-26. Also, Roger Cotterrell, Emile Durkheim: Law in a Moral Domain (Stanford, California: Stanford University Press, 1999) at 66, Steven Lukes and Andrew Scull, Durkheim and the Law (Oxford: Martin Robertson & Company Ltd., 1983) at 40-47, and Martha Minow, "Law and Social Change" 62 UMKC L. Rev. 171 1993-1994 at 171. 14 See Teitel and Elster supra note 10. 15 Elster supra note 10 at 82. 16 See R. S. Summers, "Naive Instrumentalism and the Law" in P.M.S. Hacker and J. Raz, Law Morality and Society (Oxford: Clarendon Press, 1977) at 119-131. See Bourdieu, supra note 13 at 816 - 820 and Edward J. Littlejohn, "The Efficacy of Law Promoting Social Change: For Lawyers" 1976 Det. C.L. 23 1976 at 48. 11

Legal goals, declared and undeclared, cannot be discussed without reference to the interests at stake in relation to social groups and about the dynamics of conflicts of interest in society. In fact, laws are inspired in existing conflicts of interests and are

1 Q supposed to address those conflicts and advance social change. In understanding the conflicts of interest at stake in a particular law and the message of that law, one must be cognizant of the fact that law represents the interests of dominant groups in society, although those interests are (or may be) presented as the general interests of society.

This understanding leads one to differentiate the general goals of society, which could be recognized in the common interest, versus the interests of the groups behind the desired change, which demand deeper elaboration. The conflict of interests and the groups behind the JPL can be found in the matters to which this law intends to respond. Given the fact that the JPL is intended to address the armed conflict, drug trafficking, and terrorism, all of which have affected society at large, I suggest that the law is supposed to address the conflict between the interests of society and the various interests of the groups (legal and illegal) involved in all three problematic spheres.

To answer the proposed question, one must identify the interests of society and the interests of the groups at play, and in particular, the interests of the groups behind the desired change. Without a doubt, the interests of society are the termination of the conflict, drug trafficking, and terrorism as well as social reconstruction. Even though

See W. Friedmann, Legal Theory (London: Stevens & Sons Limited 1953) at 227-247. Littlejohn, supra note 17 at 38. See also Summers, supra note 16 at 120, 121. 12 laws in general are characterized by a dual role of transformation, those laws that follow times of conflict are expected to look backward to resolve the past and forward to project the reconstruction of society. Benjamin Cardozo named this dual role of law the paradox of "rest and motion in the law." He added that law can either precede change, in which case law promotes social practices, or follow social change, in which case law legalizes existing social practices. This reflection suggests that in the case of the JPL, a look backward at the way the conflict, drug trafficking, and terrorism have taken place in society will help understand the motivations behind the law with regard to looking forward.

Drug trafficking and the armed conflict have been the two most prominent features of recent Colombian history; although with differentiated histories, these two phenomena are interconnected, but the nature of their interconnection is a highly contested topic. It is widely accepted that guerrillas, paramilitaries, and drug traffickers are all involved in drug trafficking and the conflict, but their criminal engagement in each of these areas has changed over the years. While some consider drug trafficking to be the enterprise that fuels the conflict, others have considered drug trafficking a different matter for each of the armed actors. It is unquestionable that all armed actors have caused harm on civilians; that a connection between drug traffickers, paramilitaries, and some prominent politicians and business people from the legal world exists; and that government agents

20 See Benjamin Cardozo, The Paradoxes of Legal Science (New York: Columbia University Press, 1928) at 9 to 19. 13 have cooperated with paramilitaries in human rights violation against civilians. From the illegal alliances, mutual demands and different interest have emerged, and some of those demands constitute the goals of the JPL, as is the case of the avoidance of extradition for large scale drug traffickers and paramilitaries.

The official response to those two conflictive phenomena has been unified and addressed through the so-called "war on drugs" and most recently, "war on terrorism," and although highly criticized by academics, this official response constitutes a determinant factor in shaping the legal context and the construction of legal consciousness. In brief, the official response has led to what has been known as the "internationalization of the armed conflict"21 and the "institutionalization of the WOD and WOT" led by the US government." All this, in turn, has made the strategies of war unclear and has weakened the role of law. To explain, some argue that that the various government policies are truly addressed toward the problem of drug production and trafficking, but others are convinced that the policy is, in essence, a counterinsurgency strategy, and combating drugs functions as an instrument of justification for that strategy. But the fact that the combined official response by the US and Colombian governments has had profound and counterproductive consequences for the Rule of Law is less contested.

See Socorro Ramirez , "La Internacionalizacion del Conflicto y de la Paz en Colombia" in Plan Colombia: La Internacionalizacion del Conflicto (Bogota: Editorial Planeta Colombiana S.A., Instituto de Estudios Politicos y Relaciones Internacionales, Universidad Nacional de Colombia, 2001) at 13. "" See Francisco Gutierrez, "Institutionalizing Global Wars: State Transformations in Colombia, 1978- 2002" (Fall 2003) 57 J. Int'l Affairs 135. 14

These consequences are found in the concentration of jurisdictional powers in the executive branch of the Colombian government; legal instability arising from constant legal 'reform'; deleterious effects on the construction of legal consciousness; and increased military violence. I will argue that these alterations of the Constitutional Rule of Law shape a particular legal framework for development, a legal model that intends to benefit the consolidation of a neo-liberal political-economic development model. The consolidation of this economic model in Colombia seems to be the goal of the combined official response to the problematic context, rather than being a real fight against the problem of drug-trafficking and the power of drug-traffickers (as will be explained in chapters 4 and 5).

Acknowledging that all of the mentioned issues are relevant to the understanding of the implicit and explicit message of the JPL, they will all be discussed to some degree in this thesis. Although this is not the ideal approach, the discussion of some of the topics will not go into significant detail, given the space requirements for this type of work.

However, an effort has been made to articulate the discussions on the various matters already mentioned to a comprehensive degree in order to articulate the argument. In support of the argument, this thesis will present three examples of the social construction of the JPL (the practice of this law in society) which will look at the executive branch of the government and the selection of beneficiaries of the law, the National Department of

Security and its role in the control and report of criminal records during the 15 implementation of the JPL, and the Constitutional Court and its ruling on constitutional challenges filed by representatives of victims of the armed conflict and civil society against the JPL. These three examples will contribute to demonstrate the legalization of criminal networks, as I argue.

The argument will be developed through hermeneutical analysis in five chapters, and conclusions will follow. Chapter one will present the JPL in its legal dimension and will focus on the ongoing debate about it through legal analysis. The declared goals of the law and the most prominent rules created for prosecution and reparation will be highlighted, as well as the sections that mention and seem to relate to large-scale drug trafficking and terrorism. I will argue that while the law is intended to deal with the armed actors engaged in the conflict, terrorism, and drug trafficking, the rules of the law actually fail to do so. I will also argue that the JPL contains gaps on substantive matters referring to drug trafficking, which are left to the executive branch of government for interpretation, and that interpretation prompts caution for the study of this law. Lastly, I argue that the ongoing debate about the JPL has not widely addressed the role of drug trafficking in the content of the law. This chapter will allude to the text of the law and secondary literature, primarily by Colombian authors.

"" See Jurgen Habermas, Moral Consciousness and Communicative Action (Cambridge, Massachusetts: The MIT Press, 1995) 21-26. By hermeneutical analysis I mean an interpretative analysis of the law in face of its social, in which language becomes a central element, as articulated by Habermas. In his understanding the relationship between language and reality is central to hermeneutics. 16

Chapter two discusses the theory of law and social change through an analytical review of the relevant literature. The role of the conflict of interests, language, and communication in the social construction of law, and the role of law in legalizing social practices and fostering change will be highlighted. I will argue that the influence that law and social context have on each other is determined by the way that conflicts of interest evolve in society. Further, I will argue that the potential of law to effect social change is established not only through the formulas and methods of the law, but most importantly, through the law in action — namely, law-making, law-enforcement, and the adjudication processes. Implicit and explicit language is critical in this analysis.

Chapter three will present the socio-legal dimensions of drug trafficking through normative, historical, and legal reasoning. The identifying components of this crime, its connection to the armed conflict, and the political-criminal network that characterizes it will be highlighted. The notion of organized crime will be discussed also. I will argue that drug trafficking is a socially embedded global profit-driven activity that is oriented to expansion and cost-reduction, and the avoidance of extradition has become the major cost reduction strategy for Colombian drug traffickers. Also, I will argue that this crime shares actors, language, and communication processes with facets of the armed conflict and is characterized by a bonded relationship between government agents, paramilitaries, and drug traffickers. In this section I will combine primary and secondary literature including legal texts, academic works, non-governmental organization reports, press 17 reports, and official documents. My analysis will also draw on nine years of legal practice in Colombia, including six years of work for the Attorney General's office in the investigation and prosecution of crimes related to the armed conflict and drug trafficking in sixteen different zones of the country.

Chapter four will discuss the official response to drug trafficking and the armed conflict prior to the JPL through an analytical and historical perspective. The implementation of the WOD (War on Drugs) and WOT (War on Terror) in Colombia, legal reform, the concentration of power in the executive branch, and the militarization of the country will be outlined. The concept of terrorism will be discussed in this context. I will argue that despite the fact that the WOD has been presented as a step toward peace and reduction of the drug trade, it has been utilized as political needs have required, although a counterinsurgency strategy has played a fundamental role in this war. Also, I will argue that the WOD and the WOT have led to an increase of military operations, instability in the legal system, and deterioration in respect for the Rule of Law which, altogether, is serving the consolidation of a new political-economic model of development in

Colombia. This section will rely principally on academic bibliography, official reports, case law, and press information. However, my personal experiences enlighten my reading of those sources. 18

Chapter five will present the undeclared goals of the law in its socio-legal dimensions through legal critical analysis. The identification of the undeclared goals of the law and the rules regarding the avoidance of extradition will be underscored. The socio-legal examination of the rules that facilitate the conversion of drug trafficking incomes and assets into legitimate businesses will be highlighted, along with the rules that permit the avoidance of extradition of large- scale drug traffickers. It will be demonstrated that the

JPL contradicts the common public interest in securing justice and peace and protects the interests of the groups in the criminal-political connection of the drug trade by creating a politically driven and arbitrary framework to assess (in broad terms, judge) this crime. A final section will discuss the law in practice and analyze the actions of the executive branch of the national government, two decisions of the Constitutional Court, and the role of the National Department of Security in the implementation of this law. The sources for the chapter will be theoretical literature, government documents, court decisions, legal instruments, and press reports.

Finally, conclusions will be presented and it will be explained how the JPL has been constructed in society and how it has affected the Rule of Law and the transformation of drug trafficking from a criminal into a mainly political matter. 19

Chapter One

1. THE JUSTICE AND PEACE LAW: A DEBATED TRANSITION

1.1. Introduction

The Justice and Peace Law (JPL) was issued by Congress in June of 2005, under the framework of the War on Drugs (WOD), to facilitate a greatly desired social transformation from conflict to peace in Colombia. The text of the law declares that it is aimed to facilitate the demobilization and incorporation of illegal armed actors into society, whether guerrilla or paramilitary groups, and for this purpose the law creates a lenient and speedy criminal process to bring them to justice for the crimes that they may have committed during the conflict. The formulas created in the law set up a criminal system that includes lenient punishment and judicial benefits for those illegally armed actors that give up their military activities and contribute to peace, and all this is presented as a system for transitional justice. The formulas contained in the law follow a hybrid model, which combines elements of retributive and restorative justice; the system includes prosecution to the illegal armed actors and reparation for their victims.

The ongoing debate concerning the JPL questions whether or not it actually facilitates the goals that it promises to reach, and two confronting views can be identified. On the one 20 hand, the government upholds the capacity of the law to achieve its explicit goals; on the other hand, some scholars argue that the law fails to achieve its goals of ensuring a transition from a state of conflict to a state of justice and peace, and that the law facilitates impunity.24

However, those scholars have not yet explored the treatment that this still recent law gives to the problem of drug trafficking, which is supposed to be the main concern of the

WOD and WOT. It is clear that the JPL is intended to deal with both general public and particular group interests. The question is: how does the law do this? Does the law really give priority to the common interests, as must be expected under a Rule of Law? Are the stated goals of the law the ultimate ends that it is seeking? Do clear notions of justice and peace flow through the text of the JPL?

I will present the body of the law and will demonstrate that the various formulas of the law are inconsistent with the explicit goals of justice for past wrongdoings, reparation to victims, and peace. Further, I will demonstrate that the text of the law is also inconsistent with the rhetoric of justification of the law, as those formulas do not lead to the termination of drug trafficking, conflict, and terrorism. Lastly, discrepancies between various sections of the law will be highlighted. It will be pointed out that although the lenient system created in the law is meant to animate the demobilization of armed actors

See Uprimny supra note 4, Botero and Restrepo supra note 5 and Garcia-Pena Jaramillo supra note 6. 21 with exclusion of drug traffickers, that exclusion is not absolute. The law is unclear with respect to the legal treatment to large-scale drug traffickers who may have also engaged in crimes related to the armed conflict, or may even still be engaged in both the conflict and drug trafficking. This vagueness and omission in the law is extremely worrisome. It is so not only because the JPL is presented as a response to drug trafficking, but also because it is presented as an instrument to overcome the conflict.

The first section will present the ongoing debate about the JPL. The second section will present the JPL, and its main sections (articles) on its declared goals, prosecution, sentencing, and protection of the rights of victims will be highlighted. The last section will present those rules of the law which are directly connected to drug trafficking and those which could respond to terrorism.

1.2 The Debate: Prosecution or Impunity

The JPL is a unique piece of legislation, and so has been the ongoing debate about it.

The fundamental question in the debate is about assessing the potential of this law to produce justice and peace, as required in response to the long-lasting situation of violence, and in that assessment there are two different tendencies.

The current government (executive branch) filed the bill in Congress, and ever since it has continued the political defence of the law. The government claims that the JPL is the 22 appropriate legal instrument to obtain the demobilization of illegal armed actors because of the lenient nature of the criminal system it created. For the government, the law contains the necessary procedures to ensure that justice, reparation, and peace can be realized. This view accounts for a positivist view of the law, which is not surprising.

This perception of law constitutes what could be called a tautology in law; the government creates the law and unequivocally, the government must believe in its creation, with no place for critical questions. Law, in this view, simply responds to its own internal logic.25 In this argument there is no other line of reasoning than the political rhetoric of justification of the law, which turns to the justification of the wars on drugs and terror. The rationale behind this war, as expressed by the Colombian President, is grounded on the premise that "[a]ny violence against the state is terrorism, and drug trafficking finances violence." With the purpose of dealing with the conflict, drug trafficking and terrorism, the JPL was enacted as an incentive for guerrillas and paramilitaries to stop their criminal activity and surrender to the authorities for prosecution under a benevolent justice system, as the government insists.

By contrast, academics have questioned the capacity of the law to facilitate justice, reparation and peace, and from different perspectives, academics have argued that the law is deficient in fostering the announced changes. Rodrigo Uprimny has scrutinized the

5 Douzinas and Gearey supra note 3 at 4-10 26 Col. President Alvaro Uribe's address to Col. Congress on August 7, 2002, at http://www.presidencia.gov.co/discursos/discursos2002/agosto/discurso.htm, visited Jan. 15, 2006. 23 notions of justice and peace that would be necessary to overcome the Colombian conflict and has argued that these notions should include substantive components which would be broader than the simple sense set in the JPL. 7 In a further work, Uprimny focused on the relationship between restorative justice and transitional justice to conclude that in the

Colombian case, the model of justice should include features of retribution for those who have engaged in severe crimes, and perhaps pardons for specific cases. But if the state opts for pardons to past wrongdoers, he warns us about the need for preserving principles of proportionality. Catalina Botero and Esteban Restrepo have been more direct in declaring that the JPL facilitates impunity for crimes against humanity and crimes of war, and that this very situation challenges principles of justice. And the ex-commissioner for peace, Daniel Garcia-Pena goes further in the debate and states that in Colombia it would not be possible to overcome the conflict without identifying the role of the state in the process. Particularly, he argues that a prerequisite to peace is the institutional acknowledgement of state responsibility in the creation and support, both at the logistical and political level, of paramilitary groups.30 These are the most compelling arguments that converge in maintaining the diminished potential of the JPL as an instrument for transition.

See Uprimny, supra note 4. Rodrigo Uprimny and Maria Paula Saffon, Justicia Transicional y Justicia Restaurativa: Tensiones y Complementariedades in Angelica Rettberg (ed.), Entre el Perdon y el Olvido: Preguntas y Dilemas de la Justicia Transitional (Bogota: Universidad de los Andes, Programa de Investigacion sobre Construccion de Paz, 2005)211-232. 29 See Botero y Restrepo supra note 5. 30 Garcia-Pena Jaramillo supra note 6. 24

The debate is still ongoing and has been recently animated by the commencement of public hearings against some of the paramilitaries who have already demobilized. The debate will be expanded in chapter five. At this moment it is necessary to present and examine the sections of the law.

1.3 Formal Scope of the Justice and Peace Law

The JPL creates an entire criminal system for prosecution and investigation of the members of illegal groups, whether guerrilla or paramilitary, in relation to the crimes committed during the conflict and in relation to their involvement in the illegal groups.

Through 72 articles (arts.) divided into 12 chapters, the JPL lays out mostly procedural rules for investigation, and some substantive rules. Although this law is meant to rule the prosecution of crimes committed during the conflict, it is important to note that the termination of the conflict is not a requirement for the enforcement of the law.

According to the text of the law, it is to be applied to specific members of those groups after those individuals have decided to demobilize -or have claimed that they have demobilized- and contribute to national reconciliation (art. 2).

The law defines demobilization as the act of "turning in weapons to the authorities and abandoning the illegally armed groups." Moreover, the law establishes that

31 See Law 975 of 2005, supra note 1, art. 2. "Ambito de la ley, interpretation y aplicacion normaiva. La presente ley regula lo concerniente a la investigation, procesamiento, sancion y beneficios judiciales de las personas vinculadas a grupos armados organizados al margen de la ley, como autores o participes de hechos delictivos cometidos durante y con ocasion de la pertenencia a esos grupos, que hubieran decidido desmovilizarse y contribuir decididamente a la reconciliacion national. 25 demobilization can be individual or collective. The requirements and procedures that apply to the illegal actors with regard to demobilization should follow the preexisting law

782 of 2002 (art. 9). The demobilization process is considered to be part of peace negotiations processes between the illegal armed groups and the national government under the direction of the President.

The general orientation of the law, as an instrument for transition is problematic. This law is presented as an exceptional law for transitional justice; however, it is clear that this law is to be enforced even in the presence of conflict, which contradicts the idea of transition. This fact leads one to question the need for the existence of this kind of exceptional criminal justice system. This question is all the more significant in light of the fact that the JPL is meant to complement Law 782 of 2002. Law 782 of 2002 is the most recent extension of an original law dating back to 1997, and it set the rules for peace negotiation processes, demobilizations, and humanitarian accords concerning armed actors opposing the official establishment and provides the executive branch of government with a great scope of action to lead negotiation processes, grant pardons, make judicial concessions, suspend bench warrant against the armed agents, and arrange all necessary accords with the armed actors in order to achieve peace."

Ibid., art. 9. "Desmovilizacion. Se entiende por desmovilizacion el acto individual o colectivo de dejar las armas y abandonar el grupo armado organizado al margen de la ley, realizado ante autoridad competente." Law 782 of 2002 contains procedures for peace negotiations processes and its original version was issued in 1997, later extended in 1999 and most recently extended again in 2002 and 2006. See on amnesties and "indultos" or pardons, Col. Criminal Code (Col. C.C.) articles 82, 88, and 99, Col. Code of Criminal 26

Although the two laws are intended to facilitate peace, they have a major substantive difference with respect to the type of armed groups they are meant to deal with, and this difference enhances the problematic aspects of the law. While the law 782 of 2002 provides rules for the government to advance peace negotiations processes with armed groups politically opposed to the official establishment, namely, guerrilla groups, the JPL is intended to facilitate negotiations not only with guerrilla but also with paramilitary groups and treats them equally, regardless of the fact that the paramilitaries are clearly non- opponents to the official establishment. Such a difference has implications in the construction of meaning of the JPL, and it raises questions about the reasons behind the inclusion of paramilitary groups in the JPL and the complementarity of the two laws. A further question that follows from this situation is whether or not the JPL as whole was necessary. These various issues will be discussed chapter five.

There is inconsistency in the law between the discourse of justification and the selection of the crimes that are supposed to be the matter of this law. It is difficult to understand that a law which is meant to fight drug trafficking selectively chooses some drug traffickers to be leniently prosecuted over others, as is the case of this law. This failure opens the doors for the potential inclusion of large-scale drug traffickers to be prosecuted

Procedure (Col.C.C.P.) articles 38 and 77. These sections rule that amnesties and pardons can proceed for most crimes, but these cannot proceed in relation to the crimes of terrorism, kidnapping and extortion, as these crimes are considered atrocities. It is also indicated that these crimes camiot be considered as connected to political crimes. 27 and to benefit from lenient sentences, while the regular system would prosecute a minor drug dealer with a more severe punishment. The law is even more problematic than the above discussion suggests. Despite the fact that the law is presented as an instrument for transitional justice, the law does not address the situation of legal actors -i.e. government officials and other people holding legitimate positions but familiar with or actually committing serious crimes in the conflict. The fact that the law is partially silent with respect to drug trafficking and with respect to legal officials and groups involved in criminal activity associated to the conflict cannot be viewed in isolation from the social context of the law, however this topic will also be discussed in chapter five.

1.3.1 The Principles and Aims of the JPL: Procedural Justice

The JPL is presented as an option for peace and justice, but the notions of peace and justice and the formulas to achieve them prove to be dissonant with respect to the social context of the law. The criminal proceeding that the JPL creates, in accordance with its preamble, provides the rules for the incorporation into society of illegally armed actors who choose to effectively contribute to peace, and the law also seeks to facilitate humanitarian accords (preamble).34 The specific aims declared in the law are (1) to facilitate peace processes and (2) to facilitate the individual or collective incorporation of illegally armed actors, whether guerrillas or paramilitaries (self-defence groups) into

See supra note 1 Preamble: "Por la cual se dictan disposiciones para la reincorporacion de miembros de grupos organizados al margen de la ley, que contribuyan de manera efectiva a la consecucion de la paz nacional y se dictan otras disposiciones para acuerdos humanitarios." 28 society. These aims are to be achieved while guaranteeing the rights to truth, justice and reparation for the victims (arts.l and 4). These factors combine components of both retributive and restorative justice, but justice itself is formulated on procedural rather than substantive basis, which leads one to question the appropriateness of the law for resolving the social problems it is supposed to address. This problematic situation is extended to the notion of peace. Peace is equated with absence or reduction of military confrontation, as stated in the preamble and early articles of the law. Despite the fact that the end of armed confrontation is one of the factors for peace, as Uprimny argued, it also seems to me that after four decades of violence, the demands for peace should be broadened beyond the military character of the conflict and should deal with broad social issues.

Although peace and justice are elements of the common interest, these social constructs differ from the sense of such categories in the JPL. I submit that peace would result from the resolution of the various conflicts of interest that prevail in society, and military and logistical interests are components of it. However, given the fact that the social net has been seriously affected over four decades, peace demands the presence and active participation of civil society for a genuine reconstruction. Rather than an abstract construction, peace should be developed in social interactions, and the interests of

5 Ibid., art. 1. "Objeto de la presente ley. La presente ley tiene por objeto facilitar los procesos de paz y reincorporacion individual o colectiva a la vida civil de miembros de grupos armadas al margen de la ley, garantizando los derechos de las victimas a la verdad, la justicia y reparacion. Se entiende por grupo armado organizado al margen de la ley, el grupo de guerrilla o de autodefensas, o una parte significativa e integral de los mismos como bloques, frentes u otras modalidades de esas mismas organizaciones, de las que trata la Ley 782 de 2002." 29 economic groups, institutions, guerrilla groups, paramilitaries should be debated and reconciled. And for conciliation to happen, a particular social consciousness is required; that is, a shared common social attitude toward the construction of peace, in practice, is fundamental. But this approach bears no resemblance to the very militaristic approach of the JPL, where peace is understood simply as the termination of the armed confrontation.

Furthermore, at the moment of selection of the beneficiaries of the law, it leaves the executive branch of government with the freedom to shape its own notion of peace. This situation arises from the fact that the law sets some requirements and one of those is the effective contribution of the demobilized person to national peace. Such a requirement, apart from being vague, opens the door for a discretionary interpretation of peace.

Further, justice, in the context of the JPL, responds to a positivist perception, as it is considered intrinsic to the law; and this perception contradicts the notion of social justice that emerges from the social context. That notion of justice in the JPL is questionable, particularly because in times of dramatic social transformations law reflects the interests of the groups in power, therefore, justice is determined by the interests and desires of the groups leading the transition, as David Dyzenhaus notes in regard to the Truth and

Reconciliation Commission in South Africa. ' Keeping this in mind, I submit that social justice based on redistributive principles with respect for fundamental rights is the

36 See David Dyzenhaus, "With the Benefit of Hindsight: Dilemmas of Legality in the Face of Injustice," in Christodoulidis and Veitch (eds.), Lethe's Law: Justice, Law and Ethics in Reconciliation (Oxford: Hart, 2001) at 66. Ross Zucker, Democratic Distributive Justice (Cambridge: Cambridge University Press, 2001) 85-110. 30 suitable approach for the Colombian Constitutional Rule of Law and social context, and justice is to be rooted in the need for the resolution of the conflict. Taking into account the various facets of the conflict, the Constitutional discourse that has been advanced since the new 1991 Constitution would suggest that the resolution of social conflict should count on the prevalence of a rights-based social justice. This is adverse to the approach in the JPL.

1.3.2 The Beneficiaries of the Law

The selection of beneficiaries of the JPL is a crucial moment in its enforceability, and the criteria for this selection are vaguely described in the law, which has left the national government with a discretionary decision making power. The selection of beneficiaries is a duty of the national government, and the government is to choose those beneficiaries from the total of all armed actors who have demobilized themselves. But, as explained earlier, demobilization processes can only follow a negotiation process with the government; thus, the executive branch of the national government has complete control over the selection of beneficiaries of this law. This prevalence of the executive branch of government in the selection process fosters a clear interference of the executive in the administration of justice, which posits challenges to the Rule of Law, particularly, to the principles of authority, separation of powers, and restorative justice.

Manuel Jose Cepeda-Espinosa, "Judicial Activism in a Violent Context," 3 Wash. U. Global Stud. L. Rev. 529 2004 at 668. 31

The law declares that the illegally armed actors can access the benefits of the JPL when they cannot access all of the benefits that law 782 of 2002 establishes; however, in the criteria for selection, the only mandatory requirement is the certification and inclusion of the armed actor in the list that the government presents to the National Office of

Prosecution. For that selection, the government is to assess a series of vague requirements, as follows: (1) the law demands that the illegal armed groups transfer all their under-age members to the authorities, stop committing all illicit activities, and free hostages. (2) The law also requires that in the case of individual demobilization, the person should not have been engaged in drug trafficking, and in the case of collective demobilization, the relevant groups should not have been organized for purposes of drug trafficking or illicit accumulation of wealth. (3) The law demands that the persons or groups turn in to the authorities the property obtained through "illegal activity." And (4) with respect to illicit assets, the law makes a distinction in cases of individual and collective demobilization. In case of individual demobilization, the person should return illegal assets for reparation to the victim, but only "when the person possesses them." In the case of collective demobilization, the groups should simply "turn over to the authorities the assets obtained through criminal activity" (arts. 10 and 11, trans, by author).39

Supra note 1, for individual demobilizations, article 11 states: "Que entregue los bienes producto de la actividad illegal, para que se repare a la victima cuando se disponga de ellos," and in the case of collective demobilization article 10 states: "que se entreguen los bienes producto de la actividad ilegal." 32

It is evident that the JPL does treat in different way the case of individuals and groups who demobilize. The law demands that the root of the involvement of individuals and groups in the armed conflict be taken into account for selection of beneficiaries, but this distinction represents a difficulty for understanding and implementation of the law in society because the root of the conflict and the nature of the groups involved in it has been in itself a matter of debate over the years. The law attempts to resolve this problem by establishing that the National Commission for Reparation and Reconciliation, also created in the law, has the duty "to present a public report about the reasons for the existence of the illegal armed groups" (art. 52.2, trans, by author).40 Since no timelines are set for the preparation of this report, the utility of this report at the moment of selection of beneficiaries is unclear. The fact is that, as of December of 2007, the report had not been completed, but most beneficiaries of the law among paramilitary groups have already been selected. Given that rule, it is clear that the law intends to draw attention to the history of the conflict and the nature of the various armed groups, elements which will be examined in chapter three of this thesis. However, of special interest in that understanding is the fact that the JPL creates what I would call history post-factum, a history expected to assist the selection of beneficiaries of the law but written and presented after that selection has already taken place. Since this historical context will determinate the differentiated treatment to the various actors of the conflict, further discussion on this topic will follow in chapter five.

Ibid., art. 52.2. "Presentar un informe publico sobre las rezones para el surgimiento y evolucion de los grupos armadas ilegales." 33

Finally, the JPL is unclear as to the treatment that it gives to drug entrepreneurs in general. The JPL does not resolve the situation of the simple drug trafficking entrepreneurs, who might have been involved in human rights violations and supportive of paramilitary groups. The law does not explicitly consider their exclusion, so they could be potential beneficiaries of the law. This inclusion leads to a breach of equality before the law between the included drug-entrepreneurs and individual drug traffickers, since the former could face a lenient punishment if sentenced, while the latter could not access legal benefits at all.

1.3.3 The Criminal Proceeding and Protection of Victims in the JPL

Truth, reparation and justice are established as principles of the JPL, but the procedural rules do not lead to the realization of the principles; instead, this law creates a speedy and highly one-sided criminal proceeding, which benefits wrongdoers and jeopardizes the rights of victims. The proceeding created in the law is oral and speedy, and it is built on the basis of the free statement of the accused; in this proceeding the state gives up its entitlement to lay down criminal charges. The short criminal investigation aims to solely corroborate the statement by the wrongdoer (arts. 12, 13, 16, and 17). That statement 34 takes place before the Prosecutor upon receipt of the list of certified beneficiaries transmitted by the National Government.

Even though speedy justice is desirable, in the case of the crimes to be prosecuted under the JPL a speedy proceeding undermines substantive justice. From the moment of the formal detention of the accused, the prosecutor has 60 days to corroborate the version of the alleged offender (art. 18), and at the end of this period, the prosecutor must present the charges to the accused at a hearing. At that moment the accused has one more opportunity to either accept or refuse the charges, and the accused can even take back his initial statement, in which case the proceeding is to be referred by the judge to the ordinary judicial authorities (art. 19). If the accused pleads guilty to the charges, the proceeding continues under the JPL, and a Tribunal will review the plea and issue the sentence. When the victim claims reparation, the Judge is to set an additional hearing for the victim to argue his claim, and the Judge is to facilitate bargaining between the victim and the armed actor. In the absence of an agreement, the Judge is to decide on this issue in the sentence (arts. 19 and 23).

Given the situation of conflict, it is unreasonable to expect that by following the rules set in the JPL, victims can actually prove their case and obtain reparation within two months.

41 Ibid., art. 17. " Version Libre y Confesion. Los miembros del grupo armado organizado al margen de la ley, cuyos nombres someta el Gobierno Nacional a consideracion de la Fiscalia General de la Nacion,... rendiran version libre ante el fiscal delegado asignado para el proceso de desmovilizacion, quien los interrogara sobre los hechos de que tenga conocimiento..." 35

The onus for proving the harm is on the victims; but victims of the serious crimes associated with the conflict face serious practical limitations to attend the court proceedings, and to gather and present evidence. It might appear reasonable to argue that the burden to prove the case of the victims is on the victims; however, certainly in the case of the over three million forcibly displaced people, and the various persons who have been tortured, kidnapped, and threatened, or relatives of persons who have been forcibly disappeared and massacred during the conflict, such an argument cannot be sustained. Due to the very nature of the crimes involved, in most of these cases, victims have moved away from the area where the events occurred, and if prosecution is to take place in that specific area, it constitutes a real obstacle for reparation. Moreover, the law does not provide mechanisms to let victims know about the ongoing prosecutions so that victims could effectively take part in the investigation; victims have no means of knowing whether a particular aggressor is under prosecution or not. The last resort that victims would have in cases like those, would be no other than to rely on the media, which might or might not have an interest or opportunity to cover news related to judicial proceeding in such events.

Evidence gathering is another significant problem for victims, and the law does not offer a reasonable or at least specific manner of dealing with it in light of the offences and context at stake. It is predictable that witnesses of serious crimes fear for their personal safety and abandon the area where the crimes take place. Thus, victims face a tremendous 36 challenge to prove their case in the short period of time stipulated by the JPL.

Furthermore, victims are subject to the confession of the aggressor, and if he or she has not mentioned the particular crime in his or her statement, the victim will be required to bring credible evidence that, for the same reasons discussed above, are not going to be available before the two months expire. For instance, in cases of forced disappearances and massacres where no corpses exist to prove the crimes, a series of investigative and forensic works need to be conducted in order to prove the crime and the harm caused to family members, and this cannot just happen in sixty days. A speedy process in the context of this law becomes a burden on victims to prove harm and to obtain truth, justice, and reparation. Although the law in fact creates an entire judicial system with specific rules of procedure and investigative and judicial bodies to implement the law, these new authorities are to be centered in three major cities of the country, two of which are located in the North Western region. This selection of cities for transitional justice draws a map for a selective geography of justice, a structural phenomenon in the national judicial system as will be demonstrated.42

Reparation, in the context of the law, includes restitution, compensation, rehabilitation, and satisfaction measures; however, these measures are vaguely described, which makes their enforcement a challenging task. In the case of the measures for reparation, the

" According to the structure of the JPL judicial system, the investigative units of the Office of Prosecution, the Judges and Tribunal are all part of the so-called Justice and Peace Authorities, and first offices commenced to function in Bogota, Medellin, and Barranquilla more than a year after the law was issued. 37 language used in the law is inconsistent and lacks enforceability. This claim is echoed by the rules on the various alternatives of reparation. First, the law establishes that wrongdoers are to give up their illicit assets to the authorities for reparation to victims, but this rule does not appear developed further for enforceability (arts. 43, 44 and 45).

One of the possibilities of enforcement would be at the moment of sentencing or ruling on the issue of probation and conditional sentence. At that moment, the Judge should establish whether or not the sentenced person has transferred the assets for reparation to the Fund for Reparation of Victims, and release on probation would be made conditional on the transfer. Another possibility for the enforcement of restitution is stated as the obligation of the accused to take acts to return the victims to the situation prior to the violation of their rights. However, this is not a mandatory measure with regard to the return of residence and property to the victims. The law states that in these particular cases the reparatory acts will only proceed "when possible" (art. 46, trans, by author).43

These two rules demonstrate the lack of the enforceability of reparation.

Some other acts of reparation are created in the law, but the relevant rules also present the pattern of lack of enforceability. Public acknowledgment of the offence by the aggressor, effective cooperation of the illegal actors in locating hostages and corpses of victims, public statements to reestablish the dignity of the victims and the handing over of illicit

" Ley 975/05 supra note 1, art. 46. " Restitucion. La restitucion implica la realizacion de los actos que propendan por la devolucion a la victima a la situacion anterior a la violacion de sus derechos. Incluye el restablecimiento de la libertad, el retorno a su lugar de residencia y la devolucion de sus propiedades, de ser posible." 38 assets to the state are all called acts of reparation. If enforced, these acts could probably accomplish their objective at least to some extent, but there is no effective mechanism in the law to ensure that these acts happen in concrete cases. The acts are simply mentioned in the law and the judge could include them in the sentence, but this is not mandatory. It is important to note that the JPL does not create a truth commission.

For purposes of reparation, the law creates a National Commission for Reconciliation and

Reparation, a Fund for Reparation to Victims, and a Social Solidarity Network (Red de

Solidaridad Social); all these institutions are supported by the assets surrendered by the armed actors to the authorities, a limited public budget, and private donations, but these institutions are not structured and equipped effectively to respond to reparations for crimes committed during over four decades of conflict (art. 42 to 55). While peace negotiation processes, demobilization, and selection of the beneficiaries of the JPL are concentrated in the executive branch of government at the national level, reparation is handed over to local offices of the three institutions, which denotes a differential treatment for offenders and victims. Nevertheless, according to the law, those local offices should receive transfers from the national budget for reparation to victims, which could be a promising alternative. This point draws attention to the management of public budgets in provinces, minor and mid-size cities, as a crucial component in the reparation process, which will be briefly discussed in chapter three. 39

1.3.4 Punishment: Disputable Lenient System

The JPL mandates a principal punishment and a lenient so-called "alternative punishment" of imprisonment of between five to eight years, which in practice becomes the principal one. This lenient "alternative punishment" is to be imposed to any accused regardless of the number and kind of crimes committed (arts. 3, 24 and 29). The JPL rules that a judge will impose the principal and accessory punishments (e.g. fines, prohibition from holding public service positions, etc) for each case according to the Col.

Criminal Code, and the judge is expected to also rule on forfeiture of assets, measures of reparation and the so-called "alternative punishment." But given the characteristics and requirement for the application of the alternative punishment, this punishment is an enormous benefit to the accused person, by comparison with any other accused under similar charges in the ordinary criminal system.

That punishment in the JPL is not really an alternative one, because it is enforceable in the first place and the principal punishment is put on hold under two conditions: (1) that the illegal actors agree to re-socialization through work, education, or teaching activities during the time of detention and (2) that they agree to promote activities to encourage the demobilization of their illegal groups. If the person meets these conditions, at the end of the term of alternative punishment, he can be released on probation for a period of time equivalent to half of that alternative punishment. If at the end of the probation term the person has met the conditions, the principal punishment will be lifted, but if the person 40 has not met the conditions by that time, the person has to serve the principal sentence.

The requirements established for the alternative punishment to be kept are not highly demanding, especially because the law also creates specific places where the illegal actors serve time during prosecution and sentencing and can attend various educational programmes. Taking these rules together, it can reasonably be envisioned that the alternative punishment becomes the principal sentence, as it comes first.

This changeable and lenient punishment contravenes the principles of legality, equality, and stability that characterize the Constitutional discourse of the Rule of Law and the very idea of justice. Legality and equality are breached by the fact that the sentences imposed on illegal armed actors will lead to lighter punishment by far in comparison to sentences adjudicated under the Criminal Code and imposed upon civilians for similar crimes. For instance, genocide, homicide, forced disappearance, kidnapping, forced displacement, and large-scale drug trafficking normally carry prisons terms of 30 to 40 years, 25 to 40 years, 20 to 30 years, 20 to 28 years, 10 to 20 years, and 16 to 20 years respectively under the Criminal Code, but under the JPL, any of them and even all of them together may be punished with just five to eight years in prison.

Even though this overview of the rules of the law seems to be a simplistic way of presenting the JPL, it is the starting point to examine if the various rules which have been proposed to achieve the declared goals of the law may actually lead to the realization of 41 those goals and if there are other goals that although undeclared may be better served with the various rules of the law. As a starting point in this study, this overview cautions one about evident discrepancies between the declared goals of the JPL and its various procedural and substantive rules, which leads to anticipate its failure with respect to peace and justice. More compelling that this preliminary conclusion is the fact that after thirty months of enforcement, no criminal adjudication has taken place in application of this law, and the conflict is still ongoing.

1.4 Complementary Measures: Judicial Benefits and the Undeclared Goals

Through the use of ambiguous and symbolic language, this law contains judicial benefits, although the benefits are not labeled as such. The section of the law identified under

"complementary measures" presents a series of rules that constitute judicial benefits of a substantive and procedural nature, which will be briefly summarized.

A benefit created in the JPL is the termination of ongoing criminal prosecutions, including charges for organized crime. The JPL states that the illegal actors who have been certified by the national government "can benefit from the termination of ongoing criminal investigation concerning the crimes of 'agreement to commit crimes'...[organized crime], illegal use of uniforms or national symbols, instigation to commit crimes... and traffic, manufacture or possession of arms and ammunitions" (art. 42

69 trans, by author). This rule constitutes is essence a judicial amnesty; according to the local legislation and in the absence of specific kinds of criminal activity, all kinds of organizations could fit within this description, including drug trafficking groups.

Another benefit of the law is the reduction of prior sentences imposed upon its beneficiaries, but neither is this acknowledged as a benefit of the law. The relevant section introduces a reduction in 10% of prior sentences, except for crimes against humanity, drug trafficking, crimes against liberty, sexual integrity, and freedom (art. 70).

It is true that drug trafficking is excluded from the list, but money laundering, organized crime, "testaferrato," illicit enrichment, or even "acts of terror" are not, and most if not all these offences would be directly related to drug trafficking. Since sentencing for these various crimes also includes ruling on forfeiture of illicit assets, the reduction of prior sentences by 10% is open also for monetary matters. Therefore, legalization of illicit assets becomes a possibility in the law.

Finally, under the same "complementary" set of norms, the JPL includes a substantive reform to the Col. Criminal Code in regard to the crime of sedition, and I consider this section to be the core of the law. Sedition is a political crime under the Criminal Code, and through this reform, drug traffickers and even the so-called terrorists, could guarantee

44 Ibid. art. 69. Las personas que se hayan desmovilizado dentro del marco de la Ley 782 de 2002 y que hayan sido certificadas por el Gobierno Nacional, podran ser beneficiarias de resolucion inhibitoria, preclusion de la instruccion o cesacion de procedimiento... por los delitos de concierto para delinquir...utilization illegal de uniformes e insignias; instigation a delinquir ...; fabrication, trafico y porte de armas y municiones..." 43 their most important interests, which are impunity, the avoidance of extradition, and the legalization of assets. The JPL orders that the Code will have a new paragraph in article

468, and it will read: "Those members of guerrilla or self-defense groups who interfere in the normal functioning of the constitutional and legal order are also guilty of the crime of sedition. In this case, the punishment will be the same as for rebellion." And the next paragraph goes on: "Paragraph 10, section 3 of the United Nations Convention against the Illicit Traffic of Psychotropic Substances signed in Vienna on the 20n of December of

1998, which was incorporated to national legislation through Law 67 of 1993 will remain in force" (art. 70, trans, by author)." This section of the law raises questions about legal coherence; there is no normative continuity between the topics in the two paragraphs.

This connectivity that the legislature establishes reflects their take on the relationship between these two crimes, as if political crimes and drug trafficking had a necessary or intrinsic connection. Arguable as it might be, the fact is that by bringing together political crimes and drug trafficking, the legislature created in the legal realm a combination which had been part of public policy, and this combination is symptomatic, as will be discussed later.

Idem, art.71. "Sedition. Adicionase al articulo 468 del Codigo Penal un inciso del siguiente tenor: 'Tambien incurrira en el delito de sedicion quienes conformen o hagan parte de grupos guerrilleros o de autodefensa cuyo accionar interfiera con el normal funcionamiento del orden constitucional y legal. En este caso, la pena sera la misma prevista para el delito de rebelion. Mantendra plena vigencia el numeral 10 del articulo 3 de la Convention de las Naciones Unidas Contra el Trafico Ilicito de Estupefacientes y Sustancias Psicotropicas, suscrito en Viena el 20 de diciembre de 1988 e incorporado a la legislation nacional mediante Ley 67 de 1993." 44

Sedition, a crime "against the constitutional and legal order," as rebellion is, is defined in the Col. C. C. as follows: "Those who intend to temporarily obstruct the free functioning of the established constitutional or legal orders, through the use of arms, will be punished with a prison term of between two (2) to eight (8) years and a fine..." {Col. C C. art.

468, trans, by author). Since sedition deals with the transitory interruption of the legal order; a question to be raised is why guerrilla and paramilitary groups are both considered suitable within this legal description. It has been widely argued that guerrilla groups have confronted the establishment since their creation and have undertaken actions to defeat the establishment and not just to temporarily affect its functioning. Since guerrilla members have intended to defeat the establishment through the use of weapons, their behavior would fit more into the description of rebellion included in the Col. C.C., as rebellion is defined in those precise terms (art. 467). In fact, guerrilla members have historically been prosecuted under charges of rebellion and terrorism since the nineteenth century. Thus, the alleged modification of the Code may not represent a great change for guerrilla groups in practice, for their members can still be prosecuted under charges of rebellion, but instead, this change suggests a great difference in the status and treatment that the state gives to the paramilitaries.

' Col.C.C. art. 468. "Sedition. Los que mediante el empleo de las armas pretendan impedir transitoriamente el libre funcionamiento del regimen constitucional o legal vigentes, incurriran en prision de dos (2) a ocho (8)... y multa..." This crime differs from the crime of rebellion in that the former is meant to deal with transitory obstruction of the established constitutional and legal order, while rebellion deals with the intention to defeat that order through the use of weapons. See Colectivo de Abogados Jose Alvear Restrepo, Terrorismo o Rebelion: Propuestas de Regulation del Conflicto Armado (Bogoto: Panamericana Formas e Impresos S.A., 2001) at 115-161 on the development of political crimes and terrorism in Colombia. 45

This particular article of the law gives rise to a major tension between the law and its social context. This section reflects a particular reading of the armed actors in society; it positions paramilitary and guerrilla groups at one same level, as opponents of the legal institutions, a highly debatable issue which will be discussed in chapters three and four.

1.4. Conclusion

A mapping of the JPL has been presented in this chapter, and the leading arguments that animate the ongoing debate about it have been highlighted. In an attempt to scrutinize the formulas of the law in light of its explicit goals, through a formal analysis it has been demonstrated that although the goals and principles of the law could be meaningful for the construction of justice, reparation, and peace, the law fails to present means of enforceability to make those goals and principles happen. In seeking the social meaning of the law, it was established that there is a discrepancy between the understanding of the principles and mandates of the law, as contained in it, and the understanding of those same principles and mandates can emerge from the social context. Although rights of victims are said to be protected through the law, it was demonstrated that although a section of the law states the protection of the rights of victims, these are not substantially protected. Also, it has been demonstrated that the exceptional criminal process created becomes a challenge to fundamental constitutional values and principles. All these 46 inconsistencies of the law are sufficient to come to the conclusion that its declared goals are not achievable through the measures it contains.

Notwithstanding the rhetoric of justification and the alleged interconnection between terrorism, the armed conflict and drug trafficking, the law does not address the phenomena of drug trafficking or terrorism in a clear and explicit way.

These findings raise concerns about how to better approach the law and understand the apparent divide between the law and its context, and with that purpose in mind, the following chapter provides a theoretical approach to assist in drawing that connection. 47

Chapter Two

2. LAW AND SOCIAL CHANGE: A SEARCH FOR MEANING

2.1 Introduction

The paradigm of law and social change draws attention to law as a social phenomenon pertaining to a particular context, in contrast to the formalist perception of law as an autonomous and abstract set of rules. While the formalist perception looks at the validity and legality of the rules, either as means of legitimization or obedience, the law and society paradigm explores the relationship between the written law and society as a means for change. The understanding of law in this approach acknowledges the potential that law and social context have to influence each other, thus law is seen as a continuum that represents the practice of law in society, including law-making, law-enforcement and adjudication, rather than just the written text. By highlighting the practice of law in society, this approach calls for a shift from a top-down view of the law to a bottom-up model.

For legal scholars this shift implies an expansion of the object of study to include sociological reflections on how the law is produced, how conflicts of interest are resolved through law, and how law and society influence each other. These reflections have been 48 addressed in the legal field through studies on the construction of law in society, the relationship between social interests and legal goals, and efficacy of the law. Since those reflections involve individual and institutional subjects, language and communications have become unavoidable matters in that study. Scholarly debates have led to the agreement that not only do law and society affect each other, but also that law can either legalize or precede social change. But other questions should be addressed as well. On what basis are certain social practices chosen for legalization, or what motivates specific legal reforms? How prevalent are the practices chosen? Who benefits from legalization?

Does legalization serve the public interest? Do the changes in the law lead to unexpected as well as expected outcomes? And how are those outcomes produced? These questions, clearly, cannot be addressed in the abstract; they involve the analysis of a specific historical and political economic context and legal order.

This chapter will present the theoretical development of the law and social change paradigm, and it will discuss the role of the conflicts of interest, language, and communication in shaping the social construction of law and social change. As noted, in this paradigm, the notion of law cannot be understood in isolation from its social practices, and in the social continuum of law (i.e. law making, law enforcement, and adjudication processes) implicit language plays a central role in shaping legal consciousness and social change. Further, it will be argued that the construction of legal consciousness in times of conflict involves not only the formulation of new laws, but 49 most important, the construction of the "significant meaning" of those laws, meanings that are shared between the state, as the sender of the law, and the addressees of the law

(whether they be the public in general or only certain social groups).

2.2 The Social Construction of Law: The Unity of Text and Action

The law in texts transcends its abstract content through its empirical dimension; the practice of law indicates the extent to which a law is embedded in society and can affect behavior. This process has been called "the law in action," but more than just a rhetorical game of words, it has meant an epistemological change in the understanding of law. The idea of law is broadened by including legislative, judicial, and social communication activities, and the study of law is then no longer the 'exclusive task' of legal theory and legal philosophy, but rather, it is a shared task for these and other relevant areas of knowledge, i.e. sociology, linguistics, criminology, economy, anthropology, and political science. Although the relationship between law and social change is situated in the practice of law that involves studies from Sociology of Law and

Law and Society, its theoretical developments are found in legal philosophy and legal theory.

The relationship between law and social change experienced remarkable developments in the second half of the past century; however, significant theoretical elements appeared in

48 Peter Cane, Responsibility in Law and Morality (Oxford - Portland Oregon: Hart Publishing, 2002) at 280. 50 the theory of law at the end of World War I and World War II. Dramatic social changes that follow times of war, it could be said, lead to inquiry about the role of law during social adjustment processes, and during these periods law becomes a connector between the past and the future. Law plays a dual role of regression (also known as rest) and progress (also known as motion) as stated by Cardozo (1928). Law reflects past changes and also law looks forward to change, and this intrinsic coexistence of stability and progress, he said, constitute an antithesis of the law.49 Accepting his observation, one would ask how to choose past changes to be reflected in the law, how to identify rest and motion in the law, and what the consequences of this distinction are. These concerns, more sociological than legal, might not have been the main concerns of legal theorists and philosophers at the time Cardozo presented his work. In light of the need for social reconstruction, his main concern was the role of law with respect to progress, and it is clear that law was seen as a key element in that reconstruction. The relation of the law with the past or the future is established not only at the law-making process but also at the moment of adjudication, as Cardozo noted:

Violent breaks with the past must come, indeed, from legislation, but manifold

are the occasions when advance or retrogression is within the competence of

judges as their competence has been determined by practice and tradition.

Cardozo, supra note 20 at 7. He sustains that even when a law is for conservation there is progress, since circumstances are fluctuating. 51

The law has its formulas, and its methods of judging appropriate to

conservation, and its methods and formulas appropriate to change.

It is true that Cardozo's reflections are conceived within a Common Law System, but independent of the sources of law or the legal system, the case is that law takes real form and meaning when applied to particular cases. It is clear that the formal text of the law is central to position law with respect to the past and the future, but also adjudication is important. From this, an analogy can be drawn to include also the moment of law enforcement in a broader sense. The close relationship between judges and change speaks to the crucial role of the administration of justice, more than just the law, in attaining change. This represents a crucial point for future developments of the 'law in action,' in particular in the area of criminal law. Although the antithesis of rest and motion is considered general to law, it could be questionable in areas such as tax law, but it clearly proves to be essential to Criminal Law; this area of law looks to the past when it serves purposes of social control and to the future when it attempts to shape behaviour.

But, since the practice of Criminal Law relies on law-enforcement agencies (e.g. Police and other investigative bodies), the conditions of rest and motion would not only come from legislators and judges but also from the action of those agencies and other participants along the criminal proceeding.

Cardozo, supra note 20 at 7-8. 52

At the end of World War II other theorists of law reflected on the role of law as an instrument for change. As a theorist of law, Friedman (1954) went beyond the formalistic view of law into a sociological analysis. He integrated the formal written law with the procedures for its implementation; he considered not only law makers and judges but also law practitioners as crucial actors of social evolution. His reflections about law and the challenges it faces in times of crisis suggested a more holistic practice of law, so it could respond to reorder society.

Friedman assumed that "a crisis of society challenges the law more directly perhaps than any other branch of social activity."5 And he identified three main challenges to law in times of crisis, which are also present in contemporary times. First, the need for change represents a challenge to the desired stability of law. Second, the need to respond to the complexity of social problems leads legal practitioners to focus on procedure and forms to facilitate the change, and this represents a challenge to the formalism of the law with the prevalence of substantive rules. Finally, there is a need to face the social disorder, and law is meant to create all conditions to overcome that situation, which means that law should respond to a variety of social, economic, and political issues, but the challenge arises from the fact that the response should emerge in the midst of social and political struggle. The multidimensional demands made on law result in a need for complex training for lawyers. Lawyers would need to focus on the way law functions in society

Friedman, supra note 6 at 437. 53 and be aware of the challenges that the process faces; the goal is not only to apply the law, but most important, to prevent harm to civil rights through the application of law.

In epistemological terms, this approach suggests that the idealistic side of legal philosophy, the technical aspect of analytical jurisprudence, and the realistic aspects of sociological theories should be integrated in the understanding of law.

H.L.A. Hart (1961) was concerned with the theoretical essence of law as a set of rules for social control and its intrinsic morality. Although some would disagree, I would argue that in his theory, Hart also examined law in relation to its social context, but the formalist view of law prevailed. This claim follows from the fact that Hart distinguished between rules of obligation (or social rules) and rules of recognition (or legal rules), and he bases both of these rules on social morality. Social rules, he said, are previous and external to the legal world, and legal rules recognize some social rules. Further, rules of obligation are found in 'the morality of a given society' or the morality of an 'actual social group,' while rules of recognition constitute the inner morality of the law. In his reasoning, there is a continuum in the law from its social context to the legal system, and the context was considered highly determinant in shaping law. From this, I would say that he was emphatic on one of the elements of the antithesis proposed by Cardozo; in

Hart's case the focus was on rest rather than motion. His reference to the legislator and

~~ Friedman, supra note 6 at 437-438. " Friedman, supra note 6 at 439-442. 54 See Hart, supra note 2 at 165. 54 the judge demonstrate that in Hart's work, deliberation and adjudication happen to be the moments when social change could take form. In response to Hart, J. R. Lucas (1974) focused his critique on the attribute of law as social control, and he argued that Hart did not consider law in its social context. Consequently he, as some other theorists have done, explicitly outlined the social nature of law by noting that rules of recognition are correlated to rules of obligation, and they are constructed as a social phenomenon in a particular context.56

This debate between legal philosophers and theorists of the common law system extended toward the same dimension in the continental systems in Latin America. Although the debate was inspired in the same concerns about law, in Latin America the debate focused on the condition of motion in the law. The Cuban revolution, the transformation of societies in the Southern part of the continent (Chile and Argentina), and the emerging

"Alliance for Progress" led by the US president John F. Kennedy were all contributing factors to question the notion of progress in the law and its role in those various social transformations. For instance, the Alliance for Progress was, in fact, more than a program of financial aid to Latin American countries for economic and social development; it was a plan that tended to shape the institutions and prevent leftist movements from growing. Law played an important role in the Alliance Plan in pursuing

55 See Hart, ibid at 163 &171. He states about justice: "constitutes one segment of morality primarily concerned not with individual conduct but with the ways in which classes of individuals are treated." 56 J.R. Lucas, "The Phenomenon of Law" in P.M.S. Hacker and J. Raz, eds. Law, Morality and Society (Oxford: Clarendon Press, 1977) at 85 & 88. See also Fuller, supra note 2 at 133-151. He challenges the rules of recognition in particular cases. 55 such changes. Although different moments and forms can be distinguished in the role of law within the Plan, it can be said that the process was violent, as opposed to the case of law in the Common law System. At that time, in some Latin American countries, social change was the result of a violent legal change; the goal was to destroy pre-existing legal orders with their rights and principles and implant new ones, as opposed to the evolutionary-historical way of other countries, in which change was produced in the

English common law system, as Boris Kozolchyk argued. This argument takes the discussion to the question of which past changes should be reflected in the law and how those changes should be integrated, a question which was also central to the debate in

Latin America and created a turn in the understanding of law following times of conflict.

In the case of a violent legal change that breaks with the past, perhaps the most significant challenge remains the desire for an entire new society; this posits a high demand for qualified legal practitioners with an interdisciplinary approach to law. The various advances toward a more sociological view of law from the angle of legal philosophers and theorists meant an invitation to other social sciences to contribute in that understanding; in turn, sociologists had already taken on the study of the role of law in society. This epistemological encounter that initiated in Europe and North America has remained and expanded throughout the years.5 Some of the consequences of this

57 Boris Kozolchyk, "Law and Social Changes in Latin America" at 498. 58 See Cesare Beccaria, On Crimes and Punishments, Trans, by David Young (Indianapolis: Hackett Pub. Co., 1986) His study reveals sociological and anthropological concerns about law including the complicated language of law, the lack of communication of the law between the state and citizens and the 56 encounter are found in the object of study and the ways in which that study takes place.

The study of law left behind matters such as validity and obedience; instead, it took on the study of formalities, technicalities or procedures, and the substance of the law all together. The sociological study of social change meant the inclusion of law and its potential for transformation.

Even though there is no unified conceptualization of social change, it is evident that this is not just about alterations of social structures; it is also about the social attitude toward law and the establishment of relationships with others. According to Niklas Luhmann, social change is: "[n]ot simply the process aspect of humans living together, nor interactions during its course, but the alteration of the structure of such interactions."5

Whether law precedes or leads those alterations depends on the interactions that emerge in each stage of the legal process, i.e. the formulation of policies and subsequent creation of rules, the communication of those rules to the public and agencies involved in applying and enforcing them, and finally the clarification of rules in the resolution of disputes. The alterations that are actually produced in those interactions qualify the efficacy of the law, and that efficacy is explained by the knowledge, acceptance, and

great role that public officials play in interpreting and implementing the law. See also Lukes and Scull, supra note 7 at 23. 5> Niklas Luhmann, A Sociological Theory of Law Trans, by Elizabeth King and Martin Albrow (London, Boston, Melbourne and Henley: Routledge & Kegan Paul, 1985) at 230. 60 Robert F. Meagher and David Silverstein, "Law and Social Change" in Robert F. Meagher, ed., Law and Social Change: Indo-American Reflections (Bombay: N.M. Tripathi Pvt. Ltd., 1988) at 4. 57 incorporation of law in beliefs, attitudes, and behaviour.6' Since criminal law mostly aims at behavioral change, its efficacy in society is to be achieved through

"institutionalization and internationalization of patterns of behaviour." The former has to do with the creation of a norm with the adequate means for its enforcement, while the latter concerns harmonization between the behaviour patterns and the social values and interests implicit in the law.62 Thus, to identify the social change that a law causes in society, both the mechanisms set in the law and the social attitude toward that law are fundamental.

These identifying factors that articulate the relationship between law and social change demonstrate that the social processes associated with law-making, law-enforcement, and adjudication are the path to understand such a complex relationship. At the law-making stage one would ask about the role of political power, consensus, prevalent social values, community participation, representation, social control, and legitimacy. At the law- enforcement stage, civil rights, legality, certainty, clarity, legal consciousness, resistance to law, and efficacy of the law are enlightening elements. And, at the stage of adjudication, discussions about justice, equity, stability, and legal authority are at stake.

To handle the understanding of this complexity a contextualization of the law is required, and the understanding of that continuum, I would suggest, is to be considered in relation

See Littlejohn, supra note 17 at 37. He refers to the use of the law to modify behaviour and calls it 'active law.' Also Meagher supra note 60 at 5-8. He refers to the capability of the law to affect behaviour, and quoting Sally Falk Moore calls it 'reglementation.' See Littlejohn, ibid at 37. He refers to efficacy of law in general, but this is so, especially in the case of Criminal Law. 58 to the role of subjects, language, communication, and social values and interests; these are common elements to the various factors that affect the action of law.

2.3 Language and Communication: The Power of Silence and Symbols

Subjects, language, and communication processes are vital in the paradigm of law and social change; these elements interconnect the various factors involved in the construction of law in society. Subjects would be all those who affect the continuum of law in some way, and as social actors they bring to the process their cognitive capacities, aspirations, limitations, and networks. Language and communication are elements through which those subjects send, receive, and execute messages of law. The role of this process is to ascertain that the original fundamental message of law is properly transmitted to the citizenry and executed through the practice of law, as expected. Legal scholars and sociologists have both explored these elements.

Communication of the law to the public, the judiciary, and other law enforcement agencies is essential to social change; this process determines the meaning of law in society. The law is given content along a communication process that involves two very particular 'subjects:' the state on the one side, as the author of the law and sender of the message, and society at large on the other, as the audience of the message. The message of a law is found both in its text and its practice, and this message is conveyed according to particular cultural structures. The text of the law is the primary message, however, the 59 message is also articulated through other types of codes constructed in the practice of law and even through omissions in the law, I would argue. The text of the law represents a central characteristic of the legal field, as Pierre Bourdieau (1987), a sociologist, sustains: "...this field demonstrates its own power not only at the moment of adjudication, but in the ordinary use of terms, which gain power by their sole inclusion in the legal text." Law is able to achieve things through the sole use of words, he argues.

But, apart from that text, the power of law is also demonstrated through other linguistic, symbolic, and interpretative components; it includes words, verbal and non-verbal actions, as well as external symbols developed in social practice. Language, in this broad sense, is central in the formation of subjectivities in the context of institutional practice. Since the sender of a law is the state, and during the communication process the receiver has limited or no chance to provide feedback - as expected in other day-to­ day communication processes - the construction of subjectivity by the receiver is to take place at stages that occur prior to the written law and during its enforceability. During those stages language may take various forms. Borrowing from Jean-Francois Lyotard, the social bond is made up of language-moves, and every expression should be

Bourdieu, supra note 13 at 816-817. Alan Hunt and Gary Wicham, Foucault and the Law: Towards a Sociology of Law as Governance (London, Boulder, Colorado: Pluto Press, 1994) at 8 and Bourdieu, supra note 13 at 816 — 820. 65 See Hunt and Wicham, ibid at 7. See also Willem J. Witteveen, "Significant, Symbolic and Symphonic Laws: Communication through Legislation" in Hanneke van Schooten, ed., Semiotics and Legislation (Liverpool: Debora Charles Publication, 1999) 27-70 at 36 and Bourdieu, supra note 13 at 815 & 820. 60 considered as a move in a game.66 The legislature displays language in the text of the law, but that language is not accidental, since it has been the result of a deliberation process; on the contrary, it reflects particular intentions and it establishes a certain level of communication with the public. Since the variety of symbols that are used to transmit the message to the public are subject to cultural interpretation, these symbols are relevant to social change, even more than the text of the law, as Martha Minow indicates: "[S]ome people believe that law's biggest impact on society comes in the form of symbols that affect consciousness, human hopes and perhaps ultimately, conduct." Part of those symbols, I would argue are found in omissions of the law. Particularly, I refer to omissions of matters that, in light of the context, should appear in the law in order to accomplish the change that it announces.

Interpretation plays a crucial role in the practice of law, and it makes language and messages malleable factors in the chain of communication. The practice of law is a sequence of processes that involve continuous interpretations of law, even at the deliberation stage that precedes the text of the law, and that interpretation varies on the basis of the interests at stake at each stage. Bourdieau describes the practice of law as a matter of constant competition for control over the interpretation of the law, and he goes

Jean-Francois Lyotard, La Condicion Postmoderna: Informe Sobre el Saber, Trans, by Mariano Antolin Rato (Madrid: Catedra Teorema, 1994) at 27 & 29. The Spanish version reads: "todo enunciado debe ser considerado como una 'jugada' hecha en un juego" and later he states: "El lazo social esta hecho de 'jugadas' del lenguaje." 67 See Minow, supra note 13 at 172. 61

/TO on to say that this interpretation also contributes to demonstrate the power of law.

When he refers to the power of law, he refers to the influential role that law has in affecting social consciousness and behaviour, but that power, I would argue, also relies on what legal theorists have studied as the morality of law. These two notions attempt to explain an intrinsic characteristic of law that determines the social attitude toward law, that is to say, the legal consciousness. And both that power of law and that morality usually appear quite evident in criminal laws. Not surprisingly, it has been said that in criminal law, the power of law is most evident, not during the trial, but prior to the trial through the law making process, and after the trial, through changes in social 69 consciousness.

These post-modern assertions highlight the cognitive condition of social actors, not only of those who make and interpret the law through adjudication, but also the citizens that are supposed to be subject to the law. Beyond a formalist view of law, in sociological terms, interpretation of the law is not an exclusive task of judges, I would argue. Law- enforcement agents, legal practitioners, other government agents in exceptional cases, and citizens contribute to the interpretation of law. The adversarial nature of the common law system, where the parties lead the debate, and the active role of the parties and the

M See Bourdieu, supra note 13 at 816 - 820. 69 See Bachmann, supra note 13 at 24-26. Also Cotterrell, supra note 13 at 66. The author discusses Durkheim's view of Penal Law and he stresses the role of social shared beliefs as fundamental to this area of law. He calls attention, as Durkheim does, to the role of common consciousness in the construction of Criminal Law in society. See Lukes and Scull, supra note 13 at 40-47. 62 judge in the civil continental system are evidentiary factors that explain this wide scope for interpretation.

In the case of criminal law the receivers are of different kinds, and they all give law its meaning from various angles and develop special attitudes toward it. The judiciary, law enforcement and investigative agencies, the legislature, the general public, and concrete offenders become the receivers and to some extent interpreters of the law, 1 argue. The judiciary gives meaning to law from a rational-legal view, not only in a general sense but also in particular cases; constitutional, legal principles, and precedents determine the meaning of law. Law enforcement and investigative agencies give meaning to law with respect to factual situations, and their interpretation is based on deductive analysis between the facts and the text of the law. The legislature gives meaning to law from a policy-making perspective; the meaning of law would be determined by the set of social situations that demand an official response through law. The general public gives meaning to law from an idealistic perspective; for the public, the meaning of law would depend on the extent to which it responds to general or particular expectations. Those who become concrete offenders and face criminal proceedings give meaning to law from a defensive angle; for them, the meaning of law would depend on the severity of the law, fairness, equity, truth, procedural guarantees, respect for civil rights, and bargaining among others. From their various roles, these receivers contribute to create the meaning of law in society. 63

The meaning and social attitude created with respect to a particular law lead to identify a law as either significant or symbolic. These laws, as Willem J. Witteveen affirms, refer to the text of the law and an attitude toward law, respectively, and:

What distinguishes symbolic from significant laws is that the audience of

symbolic laws forms a community that incorporates a morality... Legislative

messages are in principle addressed at receivers defined only by their

acquaintance with codes that allow them to make predictions about law. The

legislative message addresses an audience of Bad Men. Laws in their symbolic

dimension aim higher. They refer to an interpretative community that recognizes

the laws to be expressive of shared norms (such as "good faith"). They make a

circular movement or a series of circular movements. They do not just flow from

sender to receiver. In a sense, the addressees of symbolic laws are their authors.

Symbolic legislation addresses an audience of Citizens. The difference is that

laws can be significant to a collection of individuals who take an external

perspective (predicting effects) while laws can be symbolic when they demand an

internal attitude to law (readiness to obey both the letter and the spirit of the

laws).70

See Witteveen, supra note 65 at 35 & 36. 64

In both cases, the meaning of law is built upon the assumption that it is interpreted by active subjects, and it is also assumed that the final meaning that a law gains in society is most likely to coincide with the meaning meant by its authors.

That meaning is then a result of a process that can very well commence prior to the existence of the text of the law and be extended to adjudication in relation to particular cases or as long as its enforceability lasts. The final meaning of that law and its impact on social consciousness does not seem to be a casual result. The significant or symbolic character of a law is constructed through the moves of these various actions. A law will have a significant meaning when its explicit language is included in the moves between sender and receiver, and it will become symbolic when the moves imply an exchange of common knowledge that sender and receiver have prior to the law. Concepts such as general and particular deterrence, associated to Criminal Law, are good examples of what could be a symbolic meaning of that type of law. However, for deterrence to have effect in society, the communication processes along the continuum of those laws assume that the participants are cognitive subjects, and that they share a community of codes and attitude towards law.

Having discussed the process of construction of meaning of the law in society, the next step will be to focus on the substantial message that law usually sends, that is to say, the

71 See Witteveen supra note 65 at 34. He explains how citizens may find in a text of a law either provisions that are new or provisions that are common knowledge. 65 resolution of social conflict of interests in a particular way, both in regular times and in times of conflict. This aspect attempts to address the question about how particular social practices are chosen to be acknowledged through law, and what changes are necessary in society so that they can be promoted through law.

2.4 Social Values and Interests: Explicit and Implicit Goals of Change

The selection of prevalent social values and interests determines the goals of a law, and those goals frame the expected social change. In a democratic Rule of Law system, that selection of interests takes place at the law-making stage through representation, deliberation, and consensus, and in that system, the goals of law are expected to express communal interests. Although this ideal is extensive to all types of law, it directly applies to Criminal law; as a mechanism of social control, this area is expected to be the one that best reflects the prevalent values and interests that are the object of legal protection in a given society. Criminal policy deals with the selection of values and interests, and criminal law sets the behaviours that constitute violations of both of these and the rules to address the violations, either by treating or punishing the aggressor.

Such an ideal leads me to suggest that the majority of the citizens from the community relevant to a particular law would identify themselves with the goals of that law and

72 See Fuller, supra note 2 at 3-32. He distinguishes between morality of aspiration -seeks realization of human capacities and morality of duty-relates to rules for social coexistence towards specific goals. See Claus Roxin, Derecho Penal: Parte General, Trans, from Germany by Diego Manuel Luzon Pena, Miguel Diaz y Garcia Conlledo & Javier de Vicente Remesal (Madrid: Editorial Civitas, S.A., 1997) 223 - 227 in the relationship between criminal policy, criminal law and social interests. 66 would recognize those goals as their own. In this case, common interests and the goals of the law correspond to each other, and this correlation is evident. These goals would appear explicit in the law. When the ideal is met, I suggest, the communication process between the state and citizens -receivers- would be fluid, and the possibility of a desirable social attitude toward that law, as expected by the legislature, would be quite probable. With these elements in place, the expected social change based on common interests would be most likely to happen.

Nonetheless, that ideal is not met in most cases; commonly, social goals set in laws represent the values, culture, and interests of private persons or groups dominant in society, and these interests appear in laws as if they were general interests.7 In this case, a distortion in the presentation of the interests takes place, I would claim. The goals inspired in private interests would be implicit or undeclared as goals, but these undeclared aims have to be included somehow in the law in close proximity to the declared ones that refer to the common interest. If this accommodation is properly done,

I argue that the social change that the dominant groups desire is likely to happen. This is so because the communication process between the state -legislature- and those dominant persons or groups addressed in the private goals is fluid; they both share codes that

See Littlejohn, supra note 17 at 38. Littlejohn considers as unquestionable the fact that law is a product of the values and culture of the dominant groups within a society. See also Summers, supra note 16 at 120 & 121 and see Bourdieu, supra note 13 at 814. 67 precede the enactment of the law. This fluid level of communication facilitates social consciousness about the law, and in turn, social change is likely to happen.

The common interest is expected to appear in the goals of the law, whether as a genuine representation of social aims or as a means to serve the accommodation of undeclared private ones, as explained above. In the study of a particular law, this assertion represents a challenge, and that challenge is not only to establish the role of the common and private interests in that law, but also to identify the undeclared goals. One would need to identify the common interest prevalent in society and the private interests of dominant groups and assess how they appear in the law, and this can be done through an examination of the social context. One would be also required to identify the declared goals of the law in light of the identified interests. For the declared goals to have incidence in social change, it is necessary to confront them with the formulas and methods -text of the law- in order to determine if those formulas and methods are suitable to achieve the goals, as Cardozo suggested. But with respect to the identification of the undeclared goals the situation is more complex.

In a democratic Rule of Law situation one would ask how and where those particular interests appear as goals of the law. Certainly, those goals cannot be searched for outside of the written law, but the lack of transparency that characterizes laws with what I have called distorted interests indicates that the search for those goals demands a thorough 68 look at the text of the law -i.e. its formulas and methods, and any other related non- written and symbolic language. In those laws, however, the formulas and methods and the additional language are to be examined under a different proposition. Here, I claim that the idea is not to see if these are suitable for a specific change; rather, the idea is to establish the change that is the most likely one to happen in accordance to those formulas, methods and additional language. This exercise would determine social practices that could be legalized through the formulas and methods, or it could demonstrate that new changes are fostered through them, although these changes are not declared.

Declared and undeclared goals speak to the notions of instrumentality and efficacy of the law, the two faces of a single feature. The instrumentality of the law is defined at the law-making stage, through deliberation, and it refers to the selection and prioritization of the interest and values to be protected under a particular law; instrumentality is framed by the way the legislature resolves the conflict of interest in society. Legislators discuss and approved laws according to what they believe to be priorities for society, and they set legal goals, which attempt to affect change in society. The efficacy of the law relates to the assessment of the final outcomes resulting from the practice of a particular law.

Even though the efficacy of law is mainly articulated in relation to the goals set in the law, law can also affect social behaviour in unexpected manners. Summers, in studying the instrumentality of law, indicated that laws serve wanted goals, whether declared or 69 undeclared. However, in distinguishing those goals, one should be aware of the fact that laws can affect social change in unplanned or even unforeseen ways, and for this reason, the most important exercise is to differentiate the wanted undeclared goals from the unexpected outcomes. The written text is the key element in that distinction. Although such differentiation represents a challenge for the study of a law as an instrument for change in contemporary times, it is an unavoidable matter. I would argue that the unexpected consequences that take place in the practice of law should be considered just accidental outcomes, as these are not connected to motivations behind the law, but the undeclared goals can be derived from the text of that law, and if well integrated to the law, these will correspond to desired expected or desired outcomes. For the legal field, the goals of the law are the reference points for assessing its efficacy and also for understanding its social construction, while the accidental outcomes are marginal aspects.

Thus, the differentiation between these accidental outcomes and the wanted goals is critical, even more prominent in cases of laws issued in times of crisis when law and politics are so entangled. To surmount the challenge, I would look at the socio-political context of the law and the place and nature of the law with respect to the legal system as a whole; these steps help situate indicators to understand not only wanted goals -both declared and undeclared- but also the social construction of the law in the context of its legal tradition. 70

To identity legal goals and establish the instrumentality of law, Summers equated social goals with social interests or values, and in his work he called attention to some points that shape that instrumentality, some of which are especially relevant to this study. He argues that (1) the wishes of private groups are primary sources of legal goals, as mentioned above; (2) the legal goals may be either specific for their realization at a particular point in time or they may be left for future specification by officials in concrete cases; (3) if a law creates a new legal system, it may be intended to produce a particular final outcome; and (4) a single law does not serve a single goal, and law serves social goals through the legal system as a whole, and not just through one law.

The aspects highlighted by Summers are related to the certainty that the goals of the law are not always explicit and precise, and that their implicit or vague nature is also part of the law-making process. This could be an arguable assertion in some contexts, but it is common in Colombian legal culture. In Colombian legislation, vagueness of goals and undeclared goals in laws are quite common, and they appear in sections of the law that are commonly known as either "micos" (monkeys) or "'elej'antes" (elephants) of the law, depending on the social dimension of the matter that these legalize or promote. A common example associated with a legal elephant in Colombia is the case of sections of a law that facilitate impunity for white-collar crimes that otherwise could be charged to politicians and high-government officials. Further, Summer's reflections remind one of

See Summers supra note 16 at 121- 127. 71 the special attention that should be given to dominant persons or groups in a particular context, which demands, first, the identification of those persons or groups among the members of society, and the identification of their particular interests thereafter. Lastly, by saying that the expected social change can take place at any given time after the enactment of law, and that it could be left for particular officials to make it happen in concrete cases, Summers reminds one of the important role of legal practitioners, enforcement agents, and the judiciary in shaping social change affected through law.

From this basis, it is imperative to identify the various actors that participate in the practice of law, for particular cases, which will be also attempted in this thesis. Some would argue against these points, but as will be demonstrated, these are critical in the understanding of the law under study.

2.5 Transitional Justice Systems: The Harmonization of Politics and Law

Transitional justice has been used to facilitate dramatic transformation following times of socio-political crisis. During transitional periods, societies are compelled to not only deal with past problematic situations and wrongdoers but also to build a promising future, and law and justice play a central role in that reconstruction process. During those periods, law and justice are expected to facilitate the necessary social changes to overcome the crisis, and those desirable social changes are determined by the particular crisis that the relevant society has faced. However, during times of transition, law faces the same challenges of ordinary times. As discussed earlier, the motivations behind law and the 72 goals of law represent the interests of dominant groups in society, and this is also the case in times of transition. Dramatic transitions are inspired by highly political motivations, and during transitional times law and justice are driven by the political motivations of the groups leading the transition.76 Although associated with political transformations from undemocratic to democratic regimes, transitional justice has also been used to overcome internal political and armed conflicts or to facilitate a change of government, depending

77 on the context.

Transitional justice itself is not the central focus of this thesis, but it is relevant to it; thus, some aspects of this paradigm of justice will be highlighted to articulate the argument and develop the exercise that has been proposed. The focus at this point is on the elements that should be considered in the analysis of a piece of legislation that is presented as a transitional one. Since the objective is to examine the JPL from below and extract the most likely social changes it would produce, I argue that the following aspects should be taken into consideration in that endeavor.

Since transitional justice is inspired by political motivations, a particular Rule of Law is

TO also shaped according to those motivations. One can ask if it is possible to talk about a transitional Rule of Law, and a possible answer would be that it depends on the nature of 76 See Teitel, supra note 10 at 213-228 and Elster, supra note 10 at 79-135. 77 See Elster, supra note 10, 3-76. He exhibits a historical reference to over 30 case-studies on transitional justice in Athens (411 and 403 B.C.), France, Germany, Italy, Japan and numerous countries in Latin America, Eastern Europe and Africa, and in all these cases the dramatic change was towards democracy. Teitel, supra note 10 at 213. 73 the desired political change. The Rule of Law is the scenario where the legal and political discourses meet; therefore the Rule of Law will be new when there is a change from an undemocratic to a democratic regime. In contrast, when the change involves the termination of an armed conflict or a change of government, the structure of the Rule of

Law would remain, but particular laws will have to be adjusted to that Rule of Law and

7Q be reasonably flexible to facilitate the desired change.

Law and justice, in transitional periods, are exceptional and face two main dilemmas that are central to the Rule of Law. On the one hand, these have to decide between punishment and impunity - forgiveness to past wrongdoers, including government officials. On the other hand, justice should resolve the dilemma between the prevalence of a democratic Rule of Law and arbitrariness.

The first dilemma, represented by the tension between impunity and punishment of wrongdoers, is at the core of transitional justice, and this tension is resolved in accordance with the aspirations of the persons or groups behind the desired change.

Transitional justice is about whether to give pardons to past wrongdoers or to prosecute them, in which case a second point involves the kind of punishments and benefits that may be applicable. An essential element of transitional times is that past regimes and

79 Teitel, supra note 10 at 213 and Rodrigo Uprimny Yepes and Saffon Sanin, "Justicia Transitional y Justicia Restaurativa: Tensiones y Complementarierades" in Uprimny, ed., supra note 4 at 94-118. These authors explain the connection between the political change and law in times of transition. 1 See Teitel, supra note 10 at 223-224. Also, Elster, supra note 10 at 79-82, and Uprimny Yepes, supra note 4 at 7-8. 74 actions of government officials are put into question, and so are other features of the previous political regime. Hence, I would argue that the dilemma between impunity and punishment should also relate to the actions of those government officials who may have engaged in past wrongdoings, in order for a real transition to occur; otherwise, laws would be inconsistent with the purpose of dramatic change. It would not be sufficient to put government officials under question in the political realm, especially when severe crimes have been committed by non-official and official actors during past regimes or conflicts, as has been the case in Colombia for over five decades. I would argue that the fact that transitional law and justice do not consistently deal with past official wrongdoers constitutes an indicator of the social change that the groups behind the change desire.

The second dilemma, represented by a tension between the prevalence of a democratic

Rule of Law or arbitrariness, is resolved through the flexibility of law and justice. The groups that lead the political change may choose a flexible scheme for both law and justice, but the issue is to set borderlines between flexibility and arbitrariness to avoid the political administration of justice.81 This issue can be examined by looking into the very nature of transitional justice as a means for democratic social change. I would submit that the purpose of transitional justice is to facilitate political change, but a political

Goeffrey de Q. Walker, The Rule of Law: Foundation of Constitutional Democracy (Carlon, Victoria: Melbourne University Press: 1988) at 20. He points out the role of justice as opposed to official discretion and arbitrariness, which constitutes the ground for independence of the judiciary. 75

on change that is expected to exclude arbitrariness. The idea of transitional justice has been associated with the notion of social progress, and it would be inconsistent to believe that a democratic society can be built upon the basis of arbitrariness. A flexible justice system represents a risk of partiality and arbitrariness, and it should not lead to the political administration of justice.

In the political administration of justice, I argue, the political ruler, instead of the judicial branch of government, demarcates the criteria for the criminal responsibility of wrongdoers. Political justice, according to Elster, occurs: "[w]hen the executive branch of the new government (or an occupying government) unilaterally and without the possibility of appeal designates the wrongdoers and decides what should be done with them."83 Political justice has received criticisms through the years because it represents the victor's justice, which could be based on political judgment rather than on argumentative legal debate. During the implementation of transitional justice, the actors of change may give the executive branch of government exceptional powers to negotiate peace with previous government leaders or with armed actors, but such powers must have

Clifford Geertz, "What is a State if it is Not a Sovereign? Reflections on Politics in Complicated Places," Current Anthropology J. v. 45, no. 5 December 2004, at 579, 580 and Dyzenhaus, supra note 36 at 71. Both articles discuss the exceptional role of law, justice and politics in difficult times. Both reveal the challenge that legality experiences in exceptional times, but they draw attention to the need for limits to avoid arbitrariness. 83 Elster, supra note 10 at 84. He mentions various examples of this kind of justice including the exile of Napoleon in 1815, the decision to proscribe individuals by the French government in 1815, and I would add the recent prosecution and execution of Saddam Hussein in Iraq. 76 limits to avoid the interference of the executive branch in the administration of justice; otherwise the risk of arbitrariness would be increased.

During the transition, the actors of change could opt for political, administrative or legally-based justice, in relation to its source,84 and that justice could also be retributive, reparatory, administrative, constitutional, or historical, according to the rationale behind it.85 I would argue that these models can be exclusive, alternative, or concurrent, and that given the complexity of crisis situations, transitional justice is most likely to present various concurrent features. Some historical examples have manifested differentiated schemes of transitional justice. It could be retributive when it pursues punishment to wrongdoers (e.g. the Nuremberg trials), reparatory when it essentially seeks reparation to victims (i.e. the case of El Salvador), administrative when it implements measures for change (e.g. post-civil war justice in the US) or strengthens a foundational legal system

(e.g. abolition of apartheid in South Africa), and concurrent retributive and administrative when it seeks punishment to wrongdoers and measures for reconstruction of society as a whole (e.g. justice regarding military wrongdoers in Chile and Argentina at the end of the military dictatorships).

Elster, supra note 10 at 84. He considers that political and legal justice two extremes of a continuum, and administrative justice can get close to either extreme. 85Teitel,SM/?ra note 10 at 215. The five forms refer to the emphasis on punishment of wrongdoers, reparation to victims, issuance of administrative measures, constitutional reforms in response to prior rule or emphasis on the search for truth about wrongdoings, so societies can know their histories and move on. 77

When the transformation aims to resolve an armed conflict, I argue that transitional justice would be expected to deal with all armed actors involved in that conflict regardless of the scheme of justice that may be implemented. In cases of previous armed conflict, the need for continuation or change in the Rule of Law is a subject that deserves attention. Armed conflict does not necessarily imply a change of political regime or even government, in which cases there would be no reasonable explanation to alter the Rule of

Law. The ideals of the Rule of Law in that particular context would experience adjustments in accordance with the motive of the transition; those ideals frame law, the actions of government officials, and structure the rights of victims of the conflict and other citizens. The extraordinary character of law and justice in times of transition creates a demanding task for law-makers to set legal goals, and for law-enforcement agencies and legal practitioners, including judges, to follow those goals in the framework of the essential principles of the Rule of Law, i.e. stability, impartiality, efficacy, and clarity.86

The indicators of a particular transitional justice system are determined by the motivations of the actors of change, and these motivations can be found in the causes and consequences of change, as Ion Elster claims. The causes are manifested in political discourse, laws, and actions and omissions of state-officials, and consequences are

86 See Richard Fallon Jr., "The Rule of Law as a Concept in Constitutional Discourse" (1997), 97 Colum. L. Rev. No 1 at 8 and Walker, supra note 81 at 23-42. They identify the elements of law and justice that inform the Rule of Law in democratic societies. Elster, supra note 10 at 79 & 80. He refers to motivation as: "The desire for justice to be done". 78 manifested in the adjustments that society experiences following times of crisis, but especially in the adjustments that the groups behind the change experience. The motivations of the actors of change are reflected in the goals of laws that facilitate the transition, I would argue, and as is the case also in peaceful times, one is to be reminded of the fact that dominant groups are the ones that set legal goals -declared or undeclared.

The various key points that Summers noted for normal times are also relevant for times of transition, where meta-motivations are essentially political. The motivations behind the change may be apparent in choices that the actors of change make, such as the scheme of justice that they choose and the punishments, benefits, or pardons that they are willing to deliver. Also those motivations would be visible in the decision to punish wrongdoers or to let them go unpunished. These decisions constitute indicators of the motives and shape social change.

Finally, in times of transitional justice, law enforcement and adjudication are complementary elements in the construction of law in society, and these activities are also influenced by political change. These two activities shape the change in social practice. Adjudication may become substantial to the desired political change, because the flexibility of justice takes form in particular cases; adjudication contributes to interpret the past in a historical way and to shape the future judicial system. In agreement with Teitel, I would argue that during the period of transition, adjudication is so 79 fundamental that judges also create a transitional jurisprudence, which is characterized by its adjustment to the political change that is taking place.

2.6 Conclusion

The paradigm of law and social change demystifies the abstract notion of law; it looks at law in its social context. This turn in the interpretation of law carries epistemological consequences. It means the inclusion of sociological factors in the study of law, and social conflicts of interest become a central matter in the construction of law. The study of law is not restricted to ontological questions about it; instead, this paradigm inquires about the practice of law in society and the construction of social meaning and attitude toward law, i.e., legal consciousness.

The social construction of the meaning of law relies on the role of cognitive subjects, explicit and symbolic language, and communication processes. The message that flows in the communication of law from the state to the public is at the core of such a social construction of the law; that message is the key point for the interconnection among the various factors that determine that social construction. It has been explained above that the message of law is not only reflected in the text of the law, with goals, methods and formulas, but it is also reflected in the way the message is transmitted to the audience - the public. And, in this complex scheme, legal goals are the fundamental indicators in the social construction of law; those goals could be declared or remain undeclared in the 80 law, but the undeclared goals should be identifiable through analysis of what has been called the formulas and methods of the law. The written text of law must be the primary source to establish that social construction of law, but one should be aware that undeclared goals can affect social consciousness in a deeper sense than the declared ones.

Thus, the challenge is to identify them in the law.

In identifying undeclared goals, one should be aware that although legal goals ideally should represent the common interests, in most cases, these goals reflect the interests of dominant groups in society. This posits a task for legal scholars to identify the dominant groups in society and their most prominent interests at a given point in time; such an exercise facilitates the recognition of those goals in the law and the prospects for change.

The assessment of social change in relation to law has to do with the potential that these two have to affect each other. From a legal perspective the issue is to examine law as an instrument that either reflects past social changes, in which case law would be legalizing social practices, or facilitates changes through its methods and formulas.

Transitional justice systems are demonstrative examples of the close relationship between law and social change, because law during those times is both looking toward conflictive past situations and forward toward the reconstruction of society. This model of justice is inspired in political motivations, and during the transition law, justice, and jurisprudence are shaped by those motivations. Thus, in transitional systems, the task that is implied for 81 the study of law is the exploration of the motivations for change and their identification through the analysis of the law, both in its text and its practice. This is the task that is undertaken in this thesis. 82

Chapter Three

3. THE INTERCONNECTION DRUG TRAFFICKING - ARMED CONFLICT

3.1 Introduction

Drug trafficking and a long-lasting armed conflict are endemic phenomena in Colombian society, and these represent the problematic context in which the Justice and Peace Law

(JPL) was issued and is now being enforced. The two features are interconnected, despite their different histories. The interconnections can be appreciated through the commonality of actors, language, and social communication processes, the set of elements that determine the relationship between law and social change. Although the role of law in this problematic context is to resolve the conflict among the various interests at stake, in recent years, law has focused on resolving the conflict of interests that emerges from drug trafficking activity. In order to understand the various interests at play, a socio-legal approach to the study of this crime is required. The legal dimension of this study refers to the criminal nature of the drug trade, and it includes considerations about the rationale behind the legal prohibition and of the various transactions that constitute the trading chain. The social dimension encompasses the analysis of the levels 83 and ways of social involvement in the crime and tolerance of it. It is on these issues that I will focus in this chapter.

I will argue that although drug trafficking is in principle a profit-driven activity that transcends national borders, aims at cost reduction, and aggressively seeks commercial expansion,88 the justification for its criminalization includes protection of public health, economic order, and public security. Also, drug traders have developed a strong adaptative ability to overcome control measures, and adaptation has led to close interconnections between the drug trade and the armed conflict. Evidence of this is the existence of common actors, language, and communication processes between those phenomena. Furthermore, I will demonstrate that as a stage in that adaptation process, large-scale drug traffickers have regarded the avoidance of extradition as the top cost- reduction strategy, which in recent years has led to strengthening the illegal relationships among paramilitaries, professional drug traffickers, high-level government officials, and politicians.

3. 2 Drug trafficking: Profit Making vs. Public Health

See Gary Becker, "Notions of utility, supply and demand" in Nigel G. Fielding, Alan Clarke & Robert Witt, eds., The Economic Dimensions of Crime (U.K. & New York: St. Martin's Press, 2000) at 21-25. He presents insights on the logic of criminal enterprises, and in that logic cost reduction is articulated on the basis of reduction of risk. 84

The trade of psychotropic drags is essentially a commercial activity, but it has been considered a crime on the basis that psychotropic drugs are harmful to human health.

The global community has followed this rationale and has argued that by stopping the production and trade of psychotropic drugs, the public is protected. This rationale of prohibition was initially established in the United Nations Single Convention on Narcotic

QQ

Drugs and later ratified in the UN Single Convention on Psychotropic Substances.

However, that generalized view may take particular forms, depending on the social practices associated with the crime and the local and global interests that characterize the particular context; such characteristics determine the goals of social control and the political agenda of the relevant government. As a consequence, certain social practices concerning the commercial transaction of psychotropic drugs are turned into criminal behaviour, and specific control measures are implemented. Although social practices that serve drag trafficking activity may vary from the producing to the consuming countries, the essential characteristics of profit-making are determinant of those social practices, which in turn shape the nature of the prohibition.

As an illicit commercial activity, drug trafficking represents a tension between the private interests of drug traffickers to optimize profit making and the public interests of both

89 See the United Nations Single Conventions on Narcotics Drugs (1961) and on Psychotropic Substances (1971). See Douglas Husak and Peter de Marneffe, The Legalization of Drugs: For and Against (2005: New York, Cambridge University Press) In this book the authors present critical perspectives on criminalization and decriminalization of drug use. Although they do not refer to the trade of drugs, the connection between consumption and trade becomes the rationale to punish that trade. 85 local and international communities to stop, or at least reduce the dimension of those businesses. The optimization of profit-making includes the expansion of the business at a low cost, ' which means the minimization of the risk of prosecution; drug traffickers aim to overcome control measures. The control measures to stop or reduce the dimension of these businesses involve legislation and strategic policies that tend to weaken every step in the chain of trade, and these measures are determined by social practices. In producer and supplier countries, such as Colombia, drug traffickers tend to optimize the production and supply of drugs by improving the quality of the product and reducing costs along the trading chain, and as a consequence, the tensions between the common and private interests are prevalent in the production, export, and interdiction procedures. In consumer countries, such as the US, Germany, and Japan, drug traders tend to optimize the distribution of drugs and the collection of profits by increasing sales volumes and reducing financial controls, and in those countries, the tensions between the common and private interests are prevalent along the consumption and money flow stages.

Law plays a central role in resolving the conflict between the private interests of drug traffickers and the public interests of states, as it establishes the prohibition of drug trafficking and aims to shape social behaviour. The prohibition established in the law attempts to respond to the ongoing social practices of the illicit trade, and it also constitutes a factor that shapes new entrepreneurial practices. The legal prohibition and

See Becker, supra note 88 at 21. 86 the social dynamics of this phenomenon adapt to each other in that the practices of illegal traders adapt immediately to legal changes enforced on them, and vice-versa. This continuous two-way adaptation process between drug trafficking and the law provokes varied reflections on the law. For the theory of law, this adaptation frames the flexible nature of law in regard to drug trafficking; it shifts from being a mere instrument of social control93 to also being an instrument of social change. For the drug economy, law becomes a variable to be considered in the cost-benefit analysis of the trading activity.

The adaptation process reflects a cost reduction effort by drug traffickers; i.e. they address and overcome new laws and law enforcement strategies to achieve their criminal purpose at the lowest possible risk and cost. For criminal law and criminology, the mutual adaptation explains, on the one hand, the changeable and normative nature of criminal policy,96 and on the other, the capacity of criminal organizations to neutralize interdiction methods and avoid prosecution and punishment. Complementary to one another, these perspectives situate law as a factor of change; law aims to shape the legal consciousness of drug traffickers, policy-makers, law enforcement agencies, and society at large, and further, law aims to affect social change.

Peter Reuter, Gordon Crawford & Jonathan Cave, Sealing the Borders: The Effects of Increased Military Participation in Drug Interdiction (Santa Monica: RAND Corporation, 1988) at 109-119. " See Hart, supra note 2 at 151. See Summers, supra note 16 at 119-131. 95 See Becker, supra note 88 at 21. He develops the logic of cost reduction in the commission of crimes in relation to the breach of criminal law in general. See Kai Ambos, Control de Drogas: Politica y Legislacion en America Latina, EE. UUy Europa. Eficacia y Alternativas (Bogota, Ediciones .Turidicas Gustavo Ibafiez, 1998) at 43-44. It is a study about the interaction between drug trafficking, criminal policy and politics in Colombia, Peru and Bolivia. 87

In a democratic Rule of Law system, law is expected to resolve that tension between private and general public interests by giving priority to the general over the private.

This prevalence of the public interest implies that the law is shaped on the basis of the social practice of this crime. Colombia, considered to be a democratic system, presents a complex legislation, which at first glance could be understandable given the complexity of activities that constitute the social practice of this crime. However, a deeper test of the legislation needs to inquire as to whether or not, in fact, the public interest prevails in that legislation. A first stage in that test is to establish the rationale that drives the criminalization of drug trafficking and to ask if the rationale deployed by the international community, that of protection of public health, is also present in the

Colombian law. A second stage in that test is to establish if the law actually responds to the various social practices in the chain of drug trafficking. Since drug trafficking includes the production, processing, transport, and export of drugs and the laundering of illicit assets, in the local context all such activities can be expected to be treated by the legislation in a specific way.

Indeed, public health is also fundamental in the rationale driving Colombian legislation; however, a look at the relevant laws indicates that apart from the primary impact that drug trafficking causes on public health, this illegal activity is also understood to threaten the social interests of economic order and public security. As will be demonstrated in the following paragraphs, according to the punishments established in criminal law for each 88 transaction in the criminal chain, it can be asserted that the protection of public health is given special priority, as the highest possible punishment would correspond to production, distribution, and sale of drugs, all of which are behaviors that affect public health.

Below is a glance at the relevant sections of the Colombian Criminal Code that deal with drug trafficking and other related crimes. In the chapter on "Crimes against Public

Health" of the Col. C.C., the substantial norms related to drug trafficking appear under the label "on the traffic of psychotropic substances and other infractions," as follows: the central norm sets as punishable the traffic, manufacture, and possession of psychotropic substances, which includes the transportation, import, export, sale, conservation, supply, and financing of such substances (art. 376). The Col. C.C. also prohibits the financing and conservation of illicit crops (art. 375); the illicit destination of assets to production, processing, distribution, sale, and use of these substances (art. 377); and the traffic of chemical products to manufacture psychotropic substances (art. 382).

See Colombian Criminal Code, (Bogota: Editorial Temis, 2005), Title XIII, "On the Crimes against Public Health," Second Chapter: "On the traffic of Psychotropic substances and other Infractions," articles 375 to 385. The punishment for this crime is either eight to twenty or sixteen to twenty years in prison depending on the amount of drugs. For large-scale drag trafficking, the punishment would be the latter and the amounts of substance should be superior to 1,000 kilograms of marihuana, 100 kilograms of hashish, five kilograms of cocaine, and two kilograms of any opium-derived products. This punishment is the highest that the Code establishes with respect to drug trafficking-related crimes. 99 All these crimes are punishable with prison terms that range from six to twelve years. It is to be noted that the personal consumption of psychotropic substances is not criminalized in Colombia. 89

Under "crimes against economic order," the law addresses the activities that involve the flows of money produced along the illicit trading chain, and it includes the behaviour of third persons not involved in the illicit trade per se. Money laundering ("lavado de activos") involves the investment, transport, custody, exchange, or administration of money produced through drug trafficking and other illicit activities (art.323). Illicit enrichment or accumulation of wealth by a private person ("enriquecimiento ilicito de particular") is a crime that involves the direct and indirect increase of wealth derived somehow from criminal activities (art.328) and "testaferrato" refers to the buying of properties through a third person by using money derived from drug trafficking (art.

326).100

Finally, under crimes against "public security," the Code prohibits the "association for criminal purposes" ("concierto para delinquir"), which is known in criminological literature as organized crime. This criminal behaviour is described as the collusion among various persons to engage in criminal activities. As described, this collusion among people constitutes just a step in the execution of crimes in general. But, if collusion is to engage in drug trafficking, drug trafficking will become connected to a crime against public security (art. 340).10! What the law indicates is that collusion does

100 These activities all could be considered modes of money laundering, and they are punishable with prison terms of six to fifteen years. 101 Although this is the text of the law, from a public policy perspective the situation is distinct. In the recent years the official response to drug trafficking is based on the assumption that drug trafficking is a crime that primarily affects public or national security, as it allegedly fosters terrorism, which is a contested assumption. This point will be discussed in the next chapter. 90 not relate exclusively to drug trafficking; collusion by itself does not make the drug trade in general into a crime against public security, but collusion for purposes of drug trafficking becomes a crime related to public security. According to the law, the kind of criminal activity promoted by the organization and the role of individuals in its internal structure are determinant factors for sentencing, which means that individual criminal cases demand this dual analysis. For instance, association to engage in drug trafficking, forced displacement, terrorism, or homicides is punishable with imprisonment of between six to twelve years for any member of the group, and nine to eighteen years for the organizers and heads of the group. This distinction in activities and roles within the groups is to be considered in the understanding of the changes that the JPL introduces to this article. In fact, ofthe various criminal rules mentioned only article 340 was modified in the JPL.

This view ofthe law demonstrates that legislation is inspired by the defence ofthe public interests of public health, economic order, and public security, and it also demonstrates that the legislation is designed to control the various transactions that may occur in the trading chain. As will be seen later, however, this legal perception is insufficient to understand the various interests at play in the social practice of drug trafficking.

3.3 The Social Practice of Drug Trafficking: Organized or Disorganized Crime 91

A comprehensive understanding of the various interests at stake in the drug trade requires an analysis of the social practice of this crime. Social practice, in this context, is referred to in a broad sense; social practice would encompass the various social interactions that interplay when drug trafficking takes place. However, for methodological purposes it is necessary to delineate this practice in relation to the drug trade in a more concrete way, and three stages of social practice can be identified. This practice encompasses the high degree of social involvement in the crime, the methods used by traffickers, and the adaptation process between trading groups and official strategies of control. These various elements are interconnected and they have been studied in criminological literature under the framework of organized crime.' In particular, Colombian-based drug trafficking has been studied in relation to the existence and functioning of "drug cartels." This approach could help to understand the social practice, but important concerns should be addressed in taking such an approach.

Some scholars have assumed that Colombian based- drug trafficking has been carried out by drug cartels, while others argue that, although that was the case in the 1980s and

" See Alvaro Camacho Guizado & Andres Lopez Restrepo, "The Political Economy of the Drug Trade: Perspectives on Narcotics Trafficking in Colombia" Int'l J. of Politics, Culture and Society, Vol, 14, No. 1, 2000 at 151-182. The author presents a critical analysis on the social, political and economic consequences of drug trafficking in Colombia, and he argues that drug trafficking has been vital in shaping these spheres of Colombian society. Also see Francisco Thoumi, Illegal Drugs, Economy, and Society in the Andes (Washington: Woodrow Wilson Center Press, The Johns Hopkins University Press, 2003) at 181-231. 103 It is important to note that organized crime in this sense is considered under the broad framework developed in criminological literature, which as mentioned earlier in this thesis, differs from the idea of collusion to engage in criminal activity, as a particular crime described in the Colombian Criminal Code. 92

1990s, after the Medellin and Cali cartels fell apart, no drug cartel has been in place.

The social practices of this crime lead one to suggest that both assumptions have become misleading for the understanding of drug trafficking, as these have distorted the conflicts of interests that lie behind the dynamics of this illegal trade and have caused scholars to neglect in their study sectors of society that are determinant in the chain of trade at the export stage. A starting point for consideration is the fact that drug trafficking involves a complex sequence of activities that may vary depending on numerous factors, such as the number of people involved, the final market that is targeted, the quantity of illicit substances that is involved, and varying degrees of sophistication in detection-avoidance.

All these components form part of social interactions that should be considered, while the notion of a drug cartel is an economic notion that has a life of its own, even apart from the socio-political environment in which it is applied. To articulate this argument, one needs to first focus on the trade of drugs.

For explanatory purposes I have divided drug trafficking into minor-scale and large-scale drug trafficking, and the main factor that has been considered is the isolated or co­ operative participation of people in the trading chain. In minor-scale drug trafficking -

See Francisco Thoumi b., Ventajas Competitivas ilegales, el desarrollo de la industria de drogas ilegales y el fracaso de las poiticas contra las drogas en Afganistan y Colombia (Bogota, Centro de Estudios y Observatorio de Drogas y Delito -CEODD- Universidad del Rosario, 2005) at 18, 19. Also, Alvaro Camacho Guizado, "Plan Colombia and the Andean Regional Initiative: The Ups and Downs of a Policy" in Elusive Peace by Cristina Rojas and Judith Meltzer (ed.), (New York: Palgrave Macmillan, 2005) at 78-79. He refers to reports from the Police and believes that there are near 300 small groups, and Gustavo Duncan, "Narcotraficantes, mafiosos y guerreros. Historia de una Subordinacion" in Alfredo Rangel, ed., Narcotrafico en Colombia: Economia y Violencia (Bogota: Editorial Kimpres Ltda., Fundacion Seguridad y Democracia, 2005) at 50-51. 93 which would be related to transactions undertaken by individuals, who although part of a chain do not have interconnections to one another - the trade of illicit drugs, theoretically, could take place like any other commercial activity through a succession of individual transactions from production to consumption and distribution of profits. In this case, no prior collusion among people may be necessary, and it describes the case of "mules" who export drugs occasionally or the retailer that distribute drugs for personal consumption to the direct consumer.105 By contrast, large-scale drug trafficking -which takes place in global markets - requires previous agreements among various persons for transactions to be successful: i.e., business owners, producers, manufacturers, transporters, exporters, distributors in foreign countries, and legal business people are all involved in the coordination of activities in order to take the product to the final consumer, and in the collection and laundering of the profits, when necessary. Although both kinds of drug trafficking take place in Colombia, this paper focuses on large-scale drug trafficking.

The criminological notion of "drug cartel" is an expression commonly used to refer to groups dedicated to the trade of drugs on a large scale, but there is no agreement about the precise meaning that the notion involves.1 6 It has been generally understood,

See Alfredo Molano, Loyal Soldiers in the Cocaine Kingdom: Tales of Drugs, Mules and Gunmen, Trans, by James Graham (New York: Columbia University Press, 2004). This book presents the testimony of eight individuals who carried and distributed cocaine as their own independent business and at the moment of the interview, they were all serving sentence in jail. ' Law enforcement agencies such as the National Police and the Drug Enforcement Agency of the USA have been crucial in the construction of the notion of cartels of drug, as these groups use the term to magnify the dimension of the official response. For instance, during the late 1990s and the beginning of this century the North Coast Cartel was unknown for the public, but the term began to be used as in relation 94 however, that a drug cartel constitutes a specific kind of criminal organization. But criminal organization is not a unified notion either. For some, a plurality of people acting in collusion for a criminal purpose is sufficient for defining a criminal organization. It could be the case of a youth street gang that gets together and engages indiscriminately in criminal activities of different sorts - e.g. robberies, distribution of drugs, breaking and entering. For others, a plurality of people engaged in a variety of criminal activities does not constitute a sufficient indicator of a criminal organization. They would argue that for a criminal organization to exist it is necessary that those people who gather together for criminal purposes also get organized toward the achievement of their purpose. That would be the case, for example, of human trafficking groups who move people from country to country. These groups need to coordinate a variety of activities in both countries in order to make their criminal purpose happen, and organization among the members of the group becomes fundamental; e.g. for the selection of clients, negotiations and agreements with their clients, transportation of clients, and bribery mechanisms to neutralize law-enforcement officials in both or the various countries involved.

to this organization and a series of consecutive official operations against that group follow. That has also been the case of the most known Colombian cartels of Medellin, in the 1980s, and Cali, in the early 1990s. And in the late eight to ten years 1990s, that has been the case of the so-called North Valley Cartel. 7 See on this topic Alan Wright, Organised Crime (Cullompton, Devon: Willan Publishing, 2006), Viano, Jose Magallanes and Laurent Bridel, eds., Transnational Organized Crime: Myth, Power and Profit (Durham, North Carolina: Carolina Academic Press, 2003), Margaret E. Beare, ed., Critical Reflections on Transnational Organized Crime, Money Laundering, and Corruption (Toronto, Buffalo, London: University of Toronto Press, 2003), and John Bailey and Roy Godson, eds., Organized Crime and Democratic Governability (Pittsburgh: University of Pittsburgh Press, 2000) at 33 - 39. 95

A drag cartel, I argue, involves not only a plurality of participants but also organization and coordination of activities among those participants for carrying out the trade of drugs on a large scale. Organization and coordination among the various participants is necessary in order to not only successfully direct the consecutive transactions of the trade, but also to overcome official law-enforcement measures. A cartel, according to

Webster's dictionary, is "... a combination of independent commercial enterprises designed to limit competition..."108 This economic notion, conceived for licit markets, also applies to illicit transactions; the notion highlights the ideas of association and coordination among entrepreneurs and the existence of a defined goal, which is the monopoly of the market. Since the trade of drugs is an illegal commercial activity, competitiveness not only relies on control of the market but also on the implementation of appropriate cost-reduction measures to face law enforcement activities. The more competent a drug cartel is in terms of making the drugs available in the final global market and avoiding detection and prosecution, the more competitive that cartel is.

Therefore, a drug cartel could be identified not simply as a group of people involved in the trade of drugs, but more precisely, as a group that organizes itself to dominate the market of drugs and to avoid law-enforcement actions.

With this understanding of a drug cartel, it might have been appropriate to argue that

Colombian-based drug trafficking activities were conducted by drug cartels in the 1980s,

108 Webster's New College Dictionary, 5lh Ed. (Springfield: G. & C. Merriam Company, 1977) at 171. 96 but that assumption is not consistent with the social practice of this crime any longer. In the 1980s, the Medellin and Cali cartels dominated the large-scale trade of drugs; these two cartels were truly competitors for control of the international market of drugs.

Cost reduction was addressed toward making sure that the product was exported into foreign markets as quickly as possible; thus, the most appropriate ways were the shipment of drugs by air, facilitated by bribery of airline and customs officials at the time of shipment.

But, the rapid growth of the cartels and changes of official control measures led to a change in the structure of the trading groups and implementation of new methods of cost reduction, and linkages between the illegal and the illegal worlds became a growing phenomenon. Profit making has remained the main goal of the drug trading groups, but in order to achieve that purpose, other specific interests become crucial at particular times, depending on specific circumstances. The increase in official control since the early 1980s (as will be discussed in chapter four) has motivated drug traders to seek new legislation to reduce control, new business allies and sympathizers, and new opportunities for investment in the legal world over the years. These fundamental needs of drug traffickers carry two consequences of note. On the one hand, they create the necessity to establish strong relations with the legal world, especially, politicians, legal business'

109 Both organizations were characterized by concentration of ownership, single leadership, and a demarcated organizational structure oriented toward the trade of drugs; Pablo Escobar was known as the head figure of the Medellin cartel, and later it was Fabio Ochoa Vasquez, while the brothers Miguel and Gilberto Rodriguez Orejuela were known as the leaders of the Cali cartel. 97 people, and law enforcement agencies, and on the other hand, those needs increase the urgency to implement innovative ways of engaging in money laundering, while keeping the business going. In fact, a look at the Medellin, Cali, North Cost and North Valley cartels demonstrates how various illegal connections have been formed and how the trading groups have experienced changes in size, structure, and methods.

Despite the fact that linkages between legal and illegal worlds have taken place in different ways, in all cases, these relationships are driven by the principle of mutually exploitable ties, as explained by Klaus Von Lampe. This term refers to the proximity, between persons or groups, based on their reliance and trust in one another, regardless of the particular motivations. The exchange of benefits and the existence of trust as elements in these illegal relationships are indicators that these connections can only be maintained if mutual needs and some commonalities exist among the legal and illegal groups. While continuing with the discussion about whether or not drug cartels exist in

Colombia, the following paragraphs intend to present some clear examples of how linkages between drug trading groups and the legal world have been shaped in Colombia.

See Robert J. Kelly, The Upperworld and the Underworld (New York: Kluwer Academic/Plenum Publishers, 1999) at 39, 187-211, and Peter Lilly, Dirty Dealing: The Untold Truth About Global Money Laundering, International Crime and Terrorism 3rd Ed. (London, Philadelphia: Kogan Page Limited, 2006) at 74-87 and 159-180 1'' Klaus Von Lampe, "Criminally Exploitable Ties: A Network Approach to Organized Crime" in Viano, Magallanes and Bridel, eds., supra note 107 at 13. 98

The creation of paramilitary groups is an example of an alliance between the legal and the illegal world with mutual benefits, and such an alliance was formed in the early 1980s when the Medellin and Cali cartels were the major competitors in the business of drugs.

As Carlos Castano, ex-leader and cofounder of the paramilitary forces of Colombia, known as the AUC, "United Self-Defense Forces of Colombia" (Auto Defensas Unidas de Colombia), indicated, these forces were formally created by drug traffickers, legal business owners, and members of the regular army at a meeting that took place in

1982."2 Gonzalo Rodriguez Gacha, a drug trafficker associated with the Medellin Cartel for individual or particular operations, was one of the leaders of this endeavor, as he worked together with other drug traffickers, cattle ranchers, landowners, other entrepreneurs, and members of the regular army in the creation of the paramilitary-armed groups. Further discussion about the nature of these groups and their participation in the conflict will be found at the end of this chapter, but relevant to this debate is the process and the reasoning behind the creation of these groups.

The effort occurred under the rationale that capital holders needed to protect their capital from the tax system and other financial demands that guerrilla groups had imposed upon

" See Mauricio Aranguren Molina, Mi Confesion: Carlos Castano Revela sus Secretos, 8a. Ed. (Bogota: Editorial La Oveja Negra, 2002) at 97 and 99, El Tiempo, "Se desmoviliza Ramon Isaza, el Paramilitar Mas Viejo de Colombia", February 9, 2006. Aranguren, a journalist who gathered information from Carlos Castano and other founders of the AUC, reports that the first meeting of entrepreneurs to create self- defence groups was in 1982. Gonzalo Rodriguez Gacha, "El Mejicano," would have financed the military training provided by British and Israelis Militaries, who in turn, would have been brought to the country by military officials. 99 them. This strategy implemented by drag traders and the legal world did not attempt solely to reduce costs by neutralizing official control measures; in this case drug traders intended to reduce the extra costs that guerrilla groups were imposing on them and increase their means of protection, which in turn would reduce the costs of their activity.

While drug traders greatly improved the possibility of avoiding detection and prosecution and reduced expenses through the creation of paramilitary groups, the regular army gained a military and a financial supporter in the fight against guerrilla groups. The collusion leading to the creation of paramilitaries opened the doors for drug traffickers to make demands on official agencies in exchange for their shared military activities.

Notwithstanding the powerful cost reduction strategies implemented by the drug cartels, persecution and criminal prosecutions against the members of those groups were a focus of state institutions in the late 1980s and early 1990s. In the midst of a police operation,

Pablo Escobar was shot to death in November 1993. This event made it clear to the drug cartels that their strategies and structure were vulnerable to law enforcement actions, and that message was reinforced with domestic criminal prosecutions against members of both cartels. An important criminal proceeding was the so-called process 8,000, which was directed against the Cali Cartel. This proceeding is enlightening for understanding transformations in the structure of drag trafficking and the various levels of social involvement in that crime. The evidence in that criminal proceeding demonstrated the

113 See Garcia Pena- Jaramillo, supra note 6 59-74. 100 complex structure of the cartel for money laundering activities and cost-reduction strategies; in particular, it reflected the involvement of all social groups in drug trafficking, from illiterate and low-income citizens to legitimate business owners, high- profile politicians, and government officials, including ex-President Ernesto Samper

Pizano(1994-1998).114

Accounting documents of members of the Cali cartel and testimonial evidence given in the case by the heads of this group became central pieces of evidence, some of which must be highlighted here. Documentary evidence found in the office of Guillermo

Pallomari, accountant for the Cartel, his testimony, and in part the testimony of the brothers Miguel and Gilberto Rodriguez Orejuela, leaders of the Cartel, demonstrated the close ties of the Cali Cartel with diverse legal businesses, with special links to financial institutions and pharmaceutical companies. Financial institutions such as the "Banco

Ganadero," in Cali, legal drugs chain "Drogas La Rebaja," and the America soccer team based in Cali all were found to have received and managed cartel money. ' Contrary to

4 Process 8,000 began in June of 1995, and it was divided in various proceedings. At the beginning, it was led by a team of Prosecutors from the Counter Drug Trafficking Unit in Bogota, and a copy of it was referred to the Commission of Accusations of the Low Chamber of Congress with respect to the charges against President Ernesto Samper. Following the seizure of the cheque books of the Cali Cartel, which were found at the office of Guillermo Palomari (accountant of the cartel), numerous further investigations were directed by the Prosecutor's office. The various accounts and cheques were subject to scrutiny in criminal proceeding. Copy of the central evidence of process 8,000 was also brought to the various investigations against the receivers of those numerous cheques. 115 Pallomari turned himself to the Drug Enforcement Agency of the US in Washington on July of 2005. The Director of "Banco Ganadero," Liliana Maria Hurtado was detained by Colombian authorities in September of 2006 under charges regarding money laundering (receptacion de dineros producto del narcotrafico) allegedly for having facilitated financial transactions to members of the Cali cartel in 1994. Complementary to the proceeding's material, the Treasurer Department of the US sustains that the Cali 101 what most experts argue, in the case of this cartel, money laundering was also performed by ordinary citizens; it was demonstrated that most of the accounts of the cartel were opened at "Banco Ganadero" and were held by house maids, gardeners, drivers, and other employees of the head members of the organization. In most of these cases, account holders faced criminal charges and were sentenced to various terms in prison for illicit enrichment, money laundering and "testaferrato" (a kind of fraud), as they could not explain the source of the significant amount of money that they managed in "their accounts."117

Financing of political campaigns has also been an important cost-reduction measure used by drug traders, and the judicial process 8,000 enlightens the understanding of a politico- criminal association. In fact, it could be asserted that the financing of the political campaign of President Ernesto Samper constitutes the most significant cost reduction attempt of this cartel. Although it was demonstrated that the ex-President's campaign received money from the cartel, the charges against the President were stayed by the

Lower Chamber of Congress under the argument that he had been unaware of the illegal

cartel performed money laundering activities through 39 foreign companies and 340 companies based in Colombia. See at http://boeota.usembassy.gov/wwwssdnc.shtml visited March 2, 2007. Other types of business who were found to have received and managed illicit money were pharmaceutical industries, real state, construction and international currency exchange companies. According to evidence extracted from the bank files and gathered by the Prosecutor's office, various account holders who managed money from the cartel were known to be alliterated; however, according to the bank files, signatures of account holders were registered in most cases. This discrepancy between account holders' reality and bank files led to extend the investigation to bank employees who had registered the bank accounts. 102 transfers of money to his campaign. In this process, however, a minister in office, the

Head of the National Accounting Office Manuel Francisco Becerra, and other high-scale politicians were sentenced to time in prison for illicit enrichment. Also, criminal charges were laid against the brothers Rodriguez Orejuela and other leading members of the Cali

Cartel in 1995, and consequently, the Rodriguez Orejuela were brought to jail under drug trafficking charges.

The death of Pablo Escobar and the outcome of process 8,000 provoked a new turn in the organization of the drug cartels. In response to the increasing official actions, drug traders in general understood that new cost-reduction strategies should be implemented.

The Medellin and Cali cartels began their fragmentation into smaller groups and so did other emergent organizations. Although the number of illegal trading groups increased, the North Coast and North Valley cartels appeared as new priorities in the agenda of law enforcement agencies - despite the fact that these two groups are believed

1 70 to have existed since the early 1990s. u In sum, the remaining groups of the old cartels and the emerging so-called cartels gave rise to numerous smaller trading groups.

The decision to stay the proceedings against President Ernesto Samper was issued by the Lower Chamber on July 6, 1996. The decision was approved by the vast majority of 111 legislators, while 43 voted against this decision. But, within the remaining proceedings, a Specialized Judge sentenced Santiago Medina, the treasurer of the President's campaign, Fernando Botero Zea, ex-director of the Campaign and Minister of Defense in duty at the time of investigation, and Manuel Francisco Becerra B., ex-chief of the General Accounting Office for illicit enrichment to various prison terms. On the change of the cartel's structure see Camacho Guizado, supra note 104, Thoumi supra note 104, and Duncan, supra note 104. 1 The reference to these two new groups is scarce in the specialized literature, but judicial proceedings directed by the National Counter-Narcotics Unit of Prosecution and the Specialized Judges of Barranquilla, Cali and Bogota report abundant information about the methods and structure of these groups. 103

The increase in the number of groups and the reduction in the size of those trading groups constitute a novel scenario for commercial transactions and competitiveness. While drug cartels could dominate various stages in the chain of trade, the numerous and smaller new groups could engage in just very specific activities along that chain, whether the specialty refers to the kind of transactions or the geographical region where the transactions were performed. This was demonstrated in judicial investigations led by the so-called National

Counter-Narcotics and Maritime Interdiction Unit of Prosecution.

The criminal proceeding against the so-called North Coast cartel is one of those cases. In that proceeding, evidence demonstrated that although this "cartel" was formally based in

Barranquilla and other cities located on the coast of the Atlantic Ocean and had considerable control over the export of drugs through the Atlantic Ocean-Venezuela-

Caribbean Islands-Mexico or Miami (US) routes, the illicit drugs were produced and processed by diverse persons and small groups in the Eastern region of the country and transported by various intermediaries by air and land to the cities on the North Coast. In his statement, Alberto Orlande Gamboa, alleged leader of this cartel so declared. He indicated that a part of the drugs came from the Department of Meta to be exported in fast boats.121

See proceedings against Alberto Orlande Gamboa and others under the National Counter-Narcotics and Maritime Interdiction Unit of the Office of Prosecution, 1999. This case was finally adjudicated by the Specialized Judge of the Barranquilla Circuit. Evidence in the proceedings demonstrated that this group had a powerful military force and a well established accounting section. 104

The criminal proceeding against the so-called group "Niches" is another relevant case that corroborates the argument. In this case, the group was based in the cities of Cali and

Buenaventura, situated on the Coast of the Pacific Ocean, and was highly involved in export of cocaine through the Pacific Ocean to Japan or through the Pacific Ocean-

Panama- North America or Europe routes, but the drugs were supplied to the group by producers and processors located in the South Eastern Region of the country, specifically

Caqueta and Putumayo. In this case the export was dominated by the "Niches" group, and the exporting took place in fast boats and regular legal shipments of sea product exports. In this case, there was significant cooperation from legal business people.

As these cases demonstrate, with the fragmentation of groups, market strategies changed.

Top trading strategies turned from air-shipments to sea-shipments with fast boats, because boat transport facilitated the delivery of greater quantities, the involvement of fewer people in the chain, and fewer actions of official control. In this new scenario, it is evident that small groups are in charge of supplying the illicit products to the trading groups based in the cities on the two coasts for further export. From the new structure and methods used, it follows that new cost-reduction strategies are also necessary. Those strategies may vary from group to group, depending on the specific activity carried out by

122 This investigation was also directed by the National Counter-Narcotics and Maritime Interdiction Unit of Prosecution and partially adjudicated by the Specialized Judge of Circuit of Cali. Since a remaining part of the investigation appears to be ongoing, names and details are not mentioned here. 105 the group. It is true that the two kinds of groups will benefit from maintaining strong networks with key persons in the legal world, but the key persons to be contacted vary from group to group. While for small groups the bribery of government officials, extortion, and intimidation may be the most effective cost reduction measures, for those groups engaged in the export of drugs to the global market such measures are not the most effective. Since drug exporters need to overcome official control in the cities of shipment, in oceanic territories, and overseas, the most effective measures of cost and risk reduction will have to include commercial alliances with legal traders, either military actions against or illegal association with the marine force, and alliances with foreign business people and official authorities.

Moreover, the fact that drug exporting groups do contravene local and foreign legislation prompts those groups to implement cost and risk reduction strategies to minimize the impact that the various legislations may have on them. Doubtless, this results in demanding and sophisticated cost reduction strategies. A possible strategy could be the implementation of transnational bribery networks to promote or accommodate legislation as convenient; but there is very limited reliable information to corroborate that this exists and how it operates. Another possible strategy would be to establish strong linkages between the illegal groups and high level politicians in order to promote legal changes that allow for modifications in local legislation and international accords regulating criminal matters. An example of this cost reduction strategy has been the alliance of drug 106 traffickers with politicians with the objective of changing laws and executive decisions regarding extradition of nationals to foreign jurisdictions, especially to the U.S., for prosecution. For the Medellin and Cali cartels this strategy was a priority in the 1980s and early 1990s. During those years, the cartels focused on avoiding extradition to the point that any politician or government official whose platform included the re- establishment of extradition became a target of the cartels. This was the case of the presidential candidate Luis Carlos Galan, who was assassinated by a contract killer on

August 18, 1989 in Soacha, Metropolitan Bogota, during his political campaign.

According to the criminal proceeding that followed this murder, it was established that the assassination was the result of an agreement between Pablo Escobar, the leader of the

Medellin cartel, and Alberto Santofimio Botero, a liberal politician, ex-congressman, and

Minister of State. ~" Although extradition could not be re-established at the time, Galan's killing caused the reactivation of official actions against the cartels, leading to the death of Pablo Escobar.

The avoidance of extradition has remained a need for drug traffickers, especially since

1997, when extradition of Colombian nationals was re-established through the Legislative

Act No. 01 of 1997. " According to this Act, extradition of nationals will proceed only

" Alberto Santofimio Botero was sentenced by a Specialized Judge of Bogota, as the intellectual author of this assassination, to 24 years in prison, on October 12 of 2007, and he is serving the sentence in jail. " The Legislative Ac! No. 01 of1997 modified art.35 of the Constitution and came to force on December 16 of that year. This Act allowed extradition of nationals regarding crimes committed in foreign jurisdictions as long as these were also crimes under the local legislation, prohibited extradition of nationals for political crimes and did established non-retroactive effects. 107 for crimes committed after December 16 of 1997, and it will proceed only for alleged crimes that are also considered crimes under both the foreign and local legislation.

However, extradition for political crimes is prohibited. Although the approval of extradition is a discretionary decision made by the President, it is somewhat constrained since the President can proceed to authorize extradition only after a positive ruling by the

Supreme Court on the completion of the established formal requirements. The discussion of the government's position on the issue of extradition and the formal requirements associated with it will be presented in the next chapter, but relevant to the understanding of drug trafficking groups is the position of those groups on extradition.

Very soon after the re-establishment of extradition, drug traffickers learned that the avoidance of extradition was a matter of political discretion in the hands of the executive branch, rather than a matter of new changes in legislation. This became clear with the signature of Plan Colombia, as one of the points of the Plan stressed the implementation of extradition and other cooperation measures. Large-scale drug traffickers commenced to experience a wave of extraditions in 2000, when the leader of the North Coast cartel was handed over to the US to face prosecution for drug trafficking charges in August of that year. That was a critical moment for high-scale drug traffickers. It could be said

" Col. Pol. Constitution, art. 35 online version at http://pdba.georgetown. edu/Constitutions/Colombia/'col91.html and Col. C. C. art. 490 — 514 Ibid. President authorized the extradition of Alberto Orlande Gamboa, and it was followed by the extraditions of Milton Perlaza Ortiz, and other leaders of trading groups located in the Pacific Region, and Fabio Ochoa 108 that extradition became a new kind of sanction for drug traffickers, as they have considered it to be the most severe sanction that drug trafficking could incur.

Even though the actual reasoning of drug traffickers has not been made explicit, having reviewed some of the criminal proceedings that Colombian authorities directed against drug traffickers who were extradited by the government to the US in 2000 and 2001, it is obvious that drug dealers resisted the possibility of extradition. It is reasonable to argue that the rejection of extradition lies in the fact that drug traffickers see their possibilities of expanding their operations and reducing costs (e.g. through bribery) curtailed if they are sent to foreign jurisdictions that do not have linkages with their local legal and illegal networks. The traders' need to avoid extradition also lies in the fact that they would face prosecution while isolated from their families, with the possibility of more severe punishment than in Colombia, and under a system with totally different legal and cultural elements - i.e. unknown legal procedures, language, and cultural climate. These shared beliefs among drug traffickers have made them aware of the need to (1) continue fragmentation of their groups to maintain a lower profile in the eyes of local and international authorities and (2) to seek new changes in legislation and policy-making regarding extradition and punishment. Although both are urgent needs, drug traffickers are conscious that to accomplish the latter, they need to strengthen their ties with high-

Vasquez and the brothers Rodriguez Orejuela, leading members of the remaining groups of the Medellin and Cali cartels. 109 profile politicians and government officials because decisions about extradition are a matter of high politics and public policy.

As Camacho Guizado, Thoumi, and Duncan have argued, there is enough evidence and reason to believe that the fragmentation of drug trading groups has increased across the country, but there is also enough evidence to suggest that their conclusion that no monopolistic drug cartel exists should be reconsidered. I28 The very fact that nearly 300 small drug- trafficking groups operate in Colombia129 is just one element to be considered in the whole notion of competitiveness. As explained earlier, the effectiveness of a group's cost reduction strategies, in general, and risk reduction strategies, in particular, is a fundamental factor for competition. As demonstrated earlier, large-scale drug traffickers engaged in export of drugs face special obstacles in their trading activity and need to implement particular cost and risk reduction strategies, and the mentioned studies simply refer to the number of small trading groups to conclude that there is no competition among the many emergent groups.

It is suggested here that, in the export of drugs, competitiveness is determined by controlling international routes and minimizing the risk of detection and prosecution both inside and outside the country. Since preferred international routes exist over the Atlantic

See Camacho Guizado, Thoumi b. and Duncan supra note 104

See Camacho Guizado, supra note 104 at 78-79. 110 and Pacific Oceans, I argue that the trafficking groups located on the two coasts are more competitive. Since detection of drug trafficking operations and prosecution are undertaken by the regular army (both in continental and maritime territory), local and international law enforcement agencies, the national office of prosecution, the local judicial system, and international jurisdictions, well-established relationships between drug traders and those various bodies of control also make them more competitive.

Finally, since high-scale drug traffickers reject extradition and try to avoid it, the linkages of drug traders with law makers, law enforcement agencies, and members of the executive branch represents the greatest possibilities for reducing costs, and as a consequence, that linkage makes the groups more competitive.

Bearing these criteria in mind, and prior to validating or refusing the idea that no drug cartels exist, it is mandatory to establish whether or not some of the trading groups hold privileged comparative advantages over the others at the moment of export of drugs, a condition which would make them more competitive and perhaps monopolistic.

3.4 Armed Conflict and Drug Trafficking: Common Actors

It is unquestionable that armed conflict and drug trafficking are two interconnected phenomena. The illegal armed actors involved in the conflict are also involved in the traffic of drugs at the present time. However, the kind of involvement those actors have in drug trafficking and the transformation of the conflict are issues of debate in academia. Ill

Central questions in that debate concern whether or not the conflict that began as a political one between guerrilla groups and the official establishment in the 1950s has changed its nature, and whether the illegal armed groups involved in the conflict today

(i.e. guerrilla groups -FARC and ELN- and paramilitary groups -AUC-) are essentially drug traders or political actors and what the consequences of those distinctions are. It will be demonstrated that although drug trafficking and guerrilla warfare are interconnected, they have different histories and represent different interests for the groups involved.

The conflict that began as a political one between guerrilla groups and government forces

(police and regular army), in the early sixties, has experienced dramatic changes in the actors, their goals and strategic targets. Since the early 1980s the paramilitaries have participated in the conflict alongside the regular army and the police. Today the conflict involves the guerrillas on one side and the regular forces and paramilitary groups on the other. The military targets of each group at the beginning of the conflict were each other's military opponents, but evidence demonstrates that, apart from the military opponents of the armed groups, during recent years civilians have become military targets of all armed groups. This is demonstrated by the fact that the number of armed actors is far inferior to the number of victims of various crimes committed by the various armed actors during the conflict. 112

It is widely agreed that civilians have become targets of the various actors of the conflict, so it is worth noting the estimates in the size of the armed groups. Of the nearly 240,000 armed actors in 2005, 200,000 were members of the regular armed forces, while the distribution of the remaining numbers varies among sources. In July 2005, COHA estimated that there were 18,000 combatants in the guerrilla of the FARC and 13,000 in the paramilitary groups AUC. In February 2005, the Colombian president estimated the

FARC to number 29,000 members (17,000 combatants and 12,000 urban members) and the AUC 12,000 to 18,000 members. Various sources estimated the ELN at 3,500 to

4,500 members.130

But all those armed groups have targeted civilians, and although assessments about the conflict may vary, estimates of the Colombian government and COHA, a US research and non-profit organization, Amnesty International, Human Rights Watch, and the

Colombian Commission of Jurists help in painting a picture of the dimensions of the conflict. From the total of over 40 million Colombians, as indicated above, 240,000 armed individuals are engaged in the conflict; however just in the year 2005, over

See COHA, Council on Hemispheric Affairs, press release of July 26, 2005, at http://www.coha.org/NEW_PRESS_RELEASES/New__Press_Releases_2005/05.82_the__begining_of_the_ end_to_a_coherent_u.s._drug_strategy.htm. visited on Jan. 18, 2006. See the government estimates in Presidencia de Colombia, "Seguridad Democratica es Sostenible" at www.presidencia.gov.co/prensa_new/discursos/discursos2005/febrero/seguridad_democratica.htm Visited January 20, 2006. The government estimated the number of paramilitaries to be 15,000 on May 19, 2005. 113

310,000 civilians were forcibly displaced by all armed actors, according to CODHES.

According to Amnesty International, 1,050 civilians, 70 trade unionists, and seven human rights defenders were killed or disappeared, and 751 civilians were kidnapped just during the first half of that same year. 132 But perhaps the most frequent crime against civilians is forced displacement. Over 3,700,000 were displaced by the various armed actors during the last ten years; 1,238,395 of those forced displacements of civilians took place between 2002 and 2005.133 The incidence of displacement has been higher since 1999 with the implementation of Plan Colombia, but the year 2002 was the most significant in forced displacements, followed by 2001, 2000, and 2005.134 CODHES reported that in

1999 paramilitaries were responsible for 47% of the cases of forced displacement, while guerrillas were responsible for 35%. Human Rights Watch reported that paramilitaries were the most involved in forced displacement during 2002. ' Very little data exists about crimes associated with the regular armed forces.

Apart from the direct victimization of civilians at the hands of the armed groups, that victimization is greater because of the degree of impunity for such crimes. Although

131 See statistics, CODHES (Consultoria para los Derechos Humanos y el Desplazamiento), this is a national organization that assists the forcibly displaced people, at http://www.codhes.org visited March 23, 2006. See Amnesty International, Report 2006 at http://www.amnestv.org/annualreport/view.php?c=COL visited August 10, 2006 and similar numbers for the year 2004 at http://web.amnestv.org/report2005/col- summary-eng See CODHES, Consultoria para los Derechos Humanos y el Desplazamiento, at http://www.codhes.org visited March 23, 2006. This organization keeps records of forced displacement in Colombia. This registry does not reflect the total of forced displacements, since some victims do not report their cases. 134 See CODHES supra note 133. Forced displacement estimates since 1995. 135 See Human Rights Watch, Report 2002 on Colombia, at http://www.hrw.org/wr2k3/americas4.html, visited June 23, 2006. 114 these various crimes are punishable under national and international law, they result in impunity over 90 % of the time, as demonstrated in a research paper prepared by the

Colombian Commission of Jurists.136 This impunity at the local level is practically replicated at the international level because there is no effective way for civilians to pursue prosecution of their aggressor before international criminal jurisdictions.

Although the Colombian state ratified the Statute of Rome, it did not accept the jurisdiction of the International Criminal Court in relation to War Crimes committed either in Colombia or by a Colombian, so cases have not been accepted by the

International Criminal Court.137 With respect to crimes against Humanitarian Law, the situation is no better because the fact that the Colombian system holds or stays an investigation is not enough for the Court to assume the criminal investigation. This complex object of study is to be developed in detail in another research project.

3.4.1 Guerrilla Groups

There is agreement about the fact that the FARC and the ELN (major guerrilla groups), began their military struggle in 1964 as part of a political conflict against the official establishment and without connections to drug trafficking. But today the role of

See Comision Colombiana de Juristas (Colombian Commission of Jurists), "Listado de Victimas de Violencia Socio-Politica en Colombia between Diciembre 1, 2002 y Diciembre 31, 2005" It exhibits detailed information by victim's name, crime, place of occurrence, source and status of the criminal proceeding. This report shows 2750 entries of violations of International Humanitarian Law. 137 See United Nations, "Rome Statute of the International Criminal Court" at http://untreaty.un.ore/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treatyll.asp. The Colombian government ratified the Statute on August 5, 2002 with declarations. 115 guerrillas in the conflict and in trafficking is debated.138 Some -the government among them- argue that these groups have become drug cartels and have abandoned their political objectives, while others, such as Alain Labrousse, argue that their involvement in drug trafficking has been used for financing their political struggle, and that it was to be expected given the illegal condition and the size of the group.

A glimpse at the evolution of guerrilla groups demonstrates that their involvement in drug trafficking was non-existent for years, but the two major groups became gradually involved in this business. In the late 1970s, the FARC became indirectly involved in drug trafficking by imposing a tax system on drug traffickers, landowners, and coca growers; it was a way of financially supporting their political and military activity. In the 1980s, the FARC became directly involved in drug trafficking as producer and trader; but their current involvement in international networks is unclear. Francisco Thoumi argues that in the 1990s guerrilla groups built strong local networks and intelligence systems to strengthen their drug-trafficking activity and increase their profits, but he affirms that as of 2003 there was an absence of evidence about FARC's international

On the origin of the political conflict, see Gonzalo Sanchez and Donny Meertens, Bandits, Peasants and Politics: The Case of 'La Violencia' in Colombia, trans, by Alan Hynds (Texas: University of Texas Press Edition, 2001) 143-172. Also Estanislao Zuleta, Colombia: Violencia, Democracia y Derechos Humanos (Bogota: Fundacion Estanislao Zuleta, 1988) at 171-175. He argues that guerrilla groups came into existence as a process of resistance against political violence of the state 139 Labrousse, Alain. 2005. "The Fare and the Taliban's Connection to Drugs," Journal of Drug Issues 35 no. 1 winter 2005, 169-184. 140 See Zuleta, supra note 138 at 214-216 and Thoumi, supra note 102 at 29. 116 marketing networks.1 ' However, recent criminal proceedings launched and official research documents presented by US authorities suggest that the FARC is connected to

Brazilian trafficking groups and the Mexican "Tijuana Cartel" for trafficking purposes and to distributions networks in the US. The ELN is considered to have become involved in drug trafficking in the late 1990s, but no evidence about this group's international drug networks is available. It is known that the main sources of income for the ELN have been kidnappings and extortions.

The involvement of the FARC and ELN in the drug trade leads to further questions, such as, what the size of that trade may be, what money-laundering and cost reduction methods are employed by these groups, if any, and what interests prevail between the profit-driven nature of drug trafficking and the political reasons that led to their creation.

Lack of reliable information about the various sources of income, the illegal activities of these groups, and the lack of standards to interpret the information that may be available are all challenges to answering those questions. Guerrilla groups obtain money from various sources, such as kidnappings, extortion, and public budgets, as Mauricio Rubio found out through empirical research. In various municipalities, guerrilla and

See Thoumi, supra note 102 at 105, 107. US Federal Research Division: "A Global Overview of Narcotics-Funded Terrorist and Other Extremist Groups" May of 2002 at 63-66. EL Tiempo, "DEA pesco Pez Gordo de Tijuana," August 16, 2006. The detention of Francisco Javier Arellano Perez, leader of the Tijuana Cartel, led to make public an allegedly connection between that cartel and Tomas Medina Caracas, "El Negro Acacio," commander of the 16 Front of the FARC. 143 Burce Michael Bagley, Drug Trafficking, Political Violence, and U.S. Policy in Colombia under the Clinton Administration " in Elusive Peace by Cristina Rojas and Judy Meltzer, supra note 104 at 33. Francisco E. Thoumi c, "The Numbers Game: Let's All Guess the Size of the Illegal Drug Industry!" J. of Drug Issues 22-0426, 2005 01 at 185-200. 117 paramilitary groups apparently influence local authorities to obtain transfers of money from the public budget. With the scarce data on the illegal economy of the guerrillas, and the various sources of income in play, estimating the size of their drug economy is a challenging matter, as it is in the case of paramilitaries and other criminal groups, but there are some general indicators that give an idea of the dimension of this illegal sector.

From the total of $500 billion dollars, which the United Nations estimates to be the size of the world drug trafficking economy in 2005, only $3 billions are said to have returned to the Colombian groups, but the distribution among the groups is unknown. 6

Money laundering and cost reduction strategies are significant challenges for guerrilla groups due to their political and military confrontation with the official establishment.

Contrary to what can be expected in the case of common criminal organizations, the connections of guerrilla groups with the legal world for purposes of bribing, concealing, and laundering illicit assets are much fewer. The very nature of guerrillas prevents them from establishing the necessary connections to legal institutions to achieve those goals; such connections require a certain level of trust and communication between the parties involved.

See Mauricio Rubio, "Illegal Armed Groups and Local Politics in Colombia" J. of Drug Issues v. 35 no. 1 (Winter 2005) at 107-30. He found that in Colombia guerrilla and paramilitary groups benefit financially from the public budget in municipalities due to their power to exercise violence at local levels. 146 United Nations Office on Drugs and Crime, "World Drag Report" 2006 at http://www.unodc.org/unodc/world_drug_report.html, visited September 21, 2006 118

However, the military involvement of guerrillas groups in the conflict has become an important factor for money laundering and cost reduction purposes, which can be explained for two main reasons. First, the fact that the military industry is an official monopoly of states across jurisdictions, with some exceptions, leads to the claim that the transactions of guerrillas to buy weapons involve the transfer of illegally obtained money to official hands and the legal economy, even if transactions take place through intermediaries. Second, since guerrillas set territorial boundaries for exercising control and carrying out military actions, these facts become a constraining factor on non-armed actors, resulting in an effective means for avoiding detection and prosecution. Not only are non-armed citizens compelled to tolerate and even participate in the illegal trade and other types of crimes. Although these conditions also apply to the case of drug entrepreneurs and paramilitaries who also exercise military power and control over specific regions of the country, the situation of guerrillas differ from that of the other two kinds of groups. This difference lies in the fact that while guerrillas have control over geographic areas of production and processing of drugs, the other two groups have been dominant in areas with great access to the two oceans and international markets. This is demonstrated by the fact that according to an official government report, paramilitary groups had influence in 27 of Colombia's 32 departments, including cities with ports on the two oceans, while guerrillas are known to be settled in isolated regions where drug production is more likely to take place.147

147 Presidencia de la Republica de Colombia, Oficina del Alto Comisionado Para la Paz, "Procesos de Paz 119

The borderlines between the political struggle of guerrillas and their involvement in common crimes, including the illicit trade of drugs, are determined by looking at guerrilla-actions, the motivations behind these actions, and the impact that the actions cause on society. The way and circumstances in which the guerrilla groups were created made it clear that the guerrillas were an expression of resistance against institutional power and the established institutions; these elements characterized the political conflict and became the core of the political crime of "rebellion." Thus, the task here is to establish if those two top priorities of the guerrilla groups have been displaced by the profitable activity of drug trafficking, as some argue. From this viewpoint, an assessment of guerrilla actions in general encounters a challenge in the fact that most of those actions are not only connected to common crimes but also have a strong political impact on society. Some examples are the kidnapping of the presidential candidate Ingrid

Betancurt, five members of Congress, and twelve members of the Provincial Legislative

Assembly of "El Valle" in 2002 in addition to police officers and other government officials in recent years, all of them acknowledged by the FARC. 4) Other actions would be the frequent "armed crusades" ("paros armados") in which armed groups con las Autodefensas: Informe Ejecutivo," June 2006, at p 8 and 9, available online at http://www.altocomisionadoparalapaz.gov.co visited September 3, 2006.

14 Rebellion is a crime against the constitutional and legal order. It is described as the use of weapons to take over the national government, or suppress or modify the constitutional and legal order established, and it is punishable with prison term between six and nine years and fine, art. 467, Col. C.C. 149 Currently the number of politicians and government officials kept hostages by the FARC is of about 40. It is to be noted that in late 2007 the 11 members of the Valle Assembly, who had been kidnapped by the guerrillas, were assassinated and their bodies were recovered by the authorities. There is no clarity as to the circumstances surrounding the killings. The total of hostages of the FARC is said to be nearly 3,000. 120 deliver speeches relating to their struggle and conduct kidnappings. Bombings at strategic public locations, such as the exclusive "Club el Nogal" in Bogota, also form part of the repertory of the guerrillas.

The targets of all those actions were politicians, legislators, and other institutional agents, which clearly denotes their political challenge to the official establishment; however, that political character is blurred by the fact that those events also involved serious common crimes (even crimes against humanity) -e.g. kidnappings of either political or non- political citizens. It could be argued that this combined nature of guerrilla activity puts their political struggle into question, but it could also be argued that political components still remain in their activity. Apart from those complex events, as professors Camilo

Echandia and Eduardo Bechara argue, guerrilla groups have changed the strategies of their struggle. They have abandoned the focus on military action and have focused on strategic initiatives during the presidential period of Alvaro Uribe; specifically, these groups have increasingly infiltrated their members into government institutions. " This

An armed crusade is the name given to crusades of guerrilla or paramilitary forces on inter-provincial highways during long weekends. During the armed crusade those groups make presence, stop and seizure vehicles, check people's identities, deliver short speeches about the goals of their groups, and selectively kidnap citizens. 5 "El Nogal" used to be an exclusive club located in Bogota, known as a meeting place for business people and politicians. The terrorist event at that place happened on March 7, 2003. See Camilo Echandia Castilla and Eduardo Bechara Gomez, "Conducta de la Guerrilla durante el Gobierno Uribe Velez: de las Logicas de Control Territorial a las Logicas de Control Estrategico" in Analisis Politico 57, Bogota, Mayo-Agosto, 2006 31-54. They provide examples that illustrate their argument. 121 fact is supported by the findings of Rubio, who demonstrated that guerrillas benefited from the public budget in various municipalities.

Moreover, the political nature of guerrilla actions is reinforced by the government's discourse. The official response to guerrilla actions has operated under the assumption that those actions are acts of terrorism, and terrorism is in fact a notion essentially associated with political motivations, as discussed in the next chapter. In sum, all these factors demonstrate that guerrilla actions still point toward political goals; the task becomes to establish whether these goals still prevail over the profit-making goals of the drug trade.

In the absence of precise data about the size of the drug economy of the guerrillas, thei money laundering strategies, or their members' level of involvement in this illicit activity in the international markets, it cannot be said that guerrillas enjoy monopolistic control over large-scale drug trafficking. Following the criteria of competitiveness, the location of guerrillas in regions distant from the two coasts, their lack of linkages to national institutions and the legal world make those groups less competitive at the export stage.

However, it is known that the involvement of guerrillas at the early stages of the chain is prominent, i.e., production and processing of drugs. Another element for assessing competitiveness is the degree of guerrillas' involvement in the global market, and the

153 Labrousse, supra note 139 at 169-184. 122 evidence available demonstrates that such involvement is unstructured. Although research conducted by the US government argues that the guerrillas of the FARC are connected to international networks and finance terrorism with the profits obtained from drug trafficking, those reports do not specify the size of the drug economy nor the amount spent on terrorism, which makes these documents unreliable for academic purposes.

Looking at evidence gathered in judicial proceedings about the FARC's involvement in drug trafficking, the monopolistic role of guerrillas in the global market is questionable.

Ricardo Palmera and Nayibe Rojas, leading members of the FARC, were extradited by the Colombian government to the US to face prosecution under drug trafficking charges.

While adjudication in Palmera's case is pending, Nayibe was found guilty of participating in the import of five kilograms of cocaine to the US, which hardly demonstrates the existence of a monopoly.'55 No judicial cases are known with respect to members of the ELN, and no other significant case has demonstrated a major involvement of the FARC in the global trade. In short, there is insufficient evidence to support the argument that guerrilla groups have become drug cartels at the trading stage of supply to global markets. Thus, Labrousse's claim that the involvement of guerrillas in drug trafficking has been for financing their political struggle, rather than for replacing it, proves to be highly probable, to explain the involvement of guerrillas in the drug trade.

See US Federal Research Division, supra note 111. 155 A court of the District of Columbia in the US found Nayibe Rojas "Sonia," believed to be a leader of the Front 14 of the FARC, guilty of the crime of conspiracy to illegally import cocaine to that country, on February 21 of 2007. US Department of Justice, main page at www.USDUJ.GOV, Feb 20, 2007. 123

3.4.2 Paramilitary Groups

Paramilitary groups have played a significant role in the transformation of the conflict and the evolution of drug trafficking, and the linkages of these groups to the regular army and law enforcement agencies have been the fundamental factor driving those transformations. The relationship of these groups to drug trafficking goes back to their origin, since they were created by the cooperative action of drug entrepreneurs, other owners of capital, and members of the regular army as an alternative way of protecting capital (especially landowners'), and in particular, as an effective cost-reduction strategy for drug traffickers, as explained earlier. Regardless of the private nature of paramilitary groups, they were logistically supported by members of the regular army, as explained earlier. In light of these ongoing connections, the questions that arise are, first, whether paramilitary groups can be dissociated from drug entrepreneurs and the legally established institutions that intervened in their creation, and, second, whether paramilitaries have become a drug cartel.

Starting as an extension of drug trafficking activities, paramilitaries later became directly involved in drug trafficking, ' and once in the business, the relationship between those groups and government officials has become stronger. This, I claim, has resulted in the strengthening of the illegal trade of drugs and raised greater challenges to the Rule of

156 See Duncan, supra note 104 at 61. Also see Thoumi, supra note 104 at 107-108. 124

Law. Although government discourse denies any institutional involvement in the creation and military operations of paramilitary groups, the Colombian government has acknowledged at the Inter American Court of Human Rights that officials of the regular army in cooperation with paramilitaries carried out massacres of civilians in Ituango in

1996 and Mapiripan in 1997. That acknowledgment was filed in the cases of the

Massacres of Ituango v. Colombia and Mapiripan v. Colombia and became a fundamental piece for the sentences against the Colombian government in both cases.

In these cases the government reconfirmed the long-lasting cooperative relationship between the army and the paramilitaries, as acknowledged by Carlos Castano, Ramon

Isaza, and Salvatore Mancuso, all leading paramilitary members.

The relationship was inspired in the shared interest in counterinsurgency of the

Colombian military and the paramilitary groups,15 and although the motivations of these two groups differed, their shared goals became the basis for a mutual trust that has increased over the years. This history of mutual trust is considered to be the basis for strong "criminally exploitable ties," in words of Von Lampe.160 In this particular case, the regular army was motivated by the institutional duty to defend the official

See Inter American Human Rights Court, sentences in the cases Ituango Massacre v. Colombia, July 1, 2006, par. 19, 63, 64 and Mapiripan Massacre v. Colombia, March 7, 2005, par. 18. In both cases the Colombian state acknowledged responsibility in the massacres of civilians due to the military cooperation of regular army officials and paramilitary members. See supra note 112 and Public address of Salvatore Mancuso to Congress on July 28, 2004. 159 See Alvaro Camacho Guizado, Colombia: Violencia y Narcocultura in Coca,Cocaina y Narcotrafico: Laberinto en los Andes by Diego Garcia Sayan, ed., (Lima: Comision Andina de Juristas, 1989) at 192. Also see Bagley supra note 143 at 31-32. 160 See Von Lampe, supra note 111 at 13. 125 establishment from the actions of guerrillas, and paramilitaries came to play a crucial role for achieving that goal; in turn, paramilitaries sought to reduce the cost of legal and illegal business owners by protecting them from the financial demands of guerrilla groups and by defending their founder's capital, while increasing the chances of impunity.

Therefore, paramilitaries needed linkages to the army. That anomalous relationship between the army and paramilitaries cannot be dissociated from drug trafficking activities; this is so, not only because of the circumstances in which paramilitaries were created but also because paramilitaries became directly involved in drug trafficking.

During recent years, paramilitaries, large-scale drug traffickers, and government officials at the national level have developed a harmonic, fluid, and public communication process with a common language and symbols. This particular communication has been facilitated by the convergence of the private motivations of the parties involved and has raised questions about the influence of illegal groups in official decision-making. In the study of the motivations and consequences of these linkages with respect to the functioning of the state, analyses suggest two main trends. Sayaka Fukumi argues that criminal organizations in general, and large-scale Colombian drug trafficking groups in particular, represent a threat to the nation-state and democracy, due to the terrorist acts that they commit rather than due to their drug trade per se.161 Alan Wright argues the

161 See Sayaka Fukumi, "Drug Trafficking and the State: The case of Colombia" in Felia Allum and Renate Siebert, eds., Organized Crime and the Challenge to Democracy (London and New York: Routledge Taylor and Francis Group,2003) at 93-111. Also Camacho-Guizado, supra note 104 at 80. 126 contrary. He highlights profit making and money laundering as central to drug traffickers, and he sustains that organized crime groups, in general, and drug trafficking organizations in particular, are not interested in opposing institutions or weakening the state; instead, those groups, he argues, need the entire system to function, so that they can increase their profits and launder their money.

Both authors assume that the criminal organizations challenge the state from the outside, and that those groups attempt to either destroy or penetrate the state, and that the state resists such attempts. However, these assumptions are questionable in the case of

Colombia due to the mutual reliance and trust that the various groups have developed.

Factual evidence demonstrates the increasing linkages of criminal organizations, drug trafficking groups in particular, to state agencies and the benefits that this relationship brings for the illegal groups. The empirical study by Rubio did not only demonstrate the close relationship between the local administrations in various municipalities and the illegal organizations, including guerrilla, paramilitary and drug trafficking groups. His research also documented the benefits obtained by paramilitaries and guerrillas from the public budget and found that drug traffickers, who can not be dissociated from paramilitaries, were the closest to the public administration. These findings become more robust in particular cases where legislators, governors, and officials from the Office of Prosecution have been found to have close relationships and to have served the

162 Wright, supra note 107 at 51. See Rubio, supra note 145. 127 purposes of paramilitaries and drug traffickers. In 2001, a study led by the National

Observatory for the Administration of Justice established that, in the province of Sucre, a member of the legislative Assembly, the Governor, and four prosecutors worked together to protect paramilitary groups in that region.164 In 2003, in Norte de Santander, it was found that at least 52 members of the Office of Prosecution were in constant telephone communication with paramilitaries based in that region, and that this fact was the reason behind the various failed attempts of some prosecutors and investigators to bring members of those groups to justice. 65

These two cases are replicated at the national level, where legislators have been known to have close relationships with the paramilitaries, and it has become the most significant factor for the instability of the Rule of Law. This nexus is such that two members of the

Colombian Congress, Rocio Arias and Leonor Pineda, both from the political coalition of the President, publicly acknowledged their close political relationship with paramilitaries and declared that 35% of their colleagues in Congress during 2002-2006 were similarly aligned.166 This declaration draws attention to the variables that influence legislative activity in Colombia, and although it might seem an isolated and accidental declaration, it was not. This statement is complemented by the later visit to congress by Salvatore

164 Observatorio Colombiano de la Administracion de Justicia, Independencia en Juego: El caso de la Fiscalia General de la Nacion (2001-2004) (Bogota: Publicaciones ILSA, 2005) at 31. 165 Ibid., at 30. 166 See El Tiempo, "La Paramilitarizacion de Colombia," September 26, 2004 and "Representantes Rocio Arias y Eleonora Pineda dicen que subira el 35% de amigos de las AUC en el Congreso," September 10, 2005. 128

Mancuso, head of the AUC, and two other members of the AUC on July 28, 2004.

During this visit, Mancuso, whose extradition under drug trafficking charges had been requested by US authorities from the Colombian government, and who had been sentenced in Colombia to 40 years in prison for the massacre of civilians, delivered a public speech before members of Congress. He argued that the members of the AUC should go unpunished for their actions because they had been serving the country by fighting against guerrillas and that his group was willing to work towards peace.

Mancuso's argument echoes the arrangement recorded in the confidential document so- called "Ralito Agreement," which had been signed between Mancuso along with three other leading members of the AUC, 26 government agents, and six civilians, on July 21,

2001. This document reflects the politico-criminal connection; legal and illegal parties committed themselves to create what they called a "new Colombia" and stated that new

Colombia was to be based on respect for property and responsibility towards the community as the only ways of making constitutional aims of just order a reality. In fact, that document, made public in December 2006, became the basis for criminal investigation against the various politicians and today sixteen of them are under detention facing charges of organized crime and a total of over 40 high-profile politicians and

167 See The New York Times, "At Colombian's Congress, Paramilitary Chiefs Talk Peace," July 29, 2004. 168 See the "Pacto de Ralito document is part of the so-called "Para-politics" case directed by the Col. Supreme Court against Alvaro Araujo and other members of Congress. This document shows the signatures of Salvatore Mancuso and other two paramilitary leaders, 26 government agents (13 members of Congress, 2 governors, 4 city-mayors, and other 7 public servants at different levels), available online at http://es.wikipedia.org/wiki/Pacto de_Ralito#Lista_de_firmantes_del_acuerdo_de_Ralito visited Feb. 4, 2007. 129 public servants are under investigation. It must be stressed that, in the case of Colombia, evidence suggests that drug traffickers do not challenge government institutions. As

Wright argues, drug dealers, rather, attempt to maintain strong ties with the legal world and to turn the legal institutions to serve their own needs.

The remaining question involves asking if paramilitaries have become a drug cartel. It is claimed in this thesis, that although there is no reliable estimate of the size of the drug trade of these groups (as is also the case of the guerrillas), it is evident that the paramilitaries meet all the requirements for being considered a monopolistic group, or in other words, a drug cartel. These groups occupy privileged locations throughout the country and particularly on the coasts of the two oceans, enjoy a bonded relationship with the regular army (which is in charge of watching over the sea route), have strong linkages with members of the legislature, executive branch, and law enforcement agencies, and deploy military power to exercise violence across the country. Hence, although credit should be given to scholarly works which have demonstrated the existence of numerous trading groups in Colombia, it is here suggested that a deeper and contextual analysis is necessary to differentiate the nature and role of the various groups in the whole scheme of drug trafficking. The case of paramilitary drug trafficking groups is very distinct from the case of small groups involved in the domestic transactions along the trading chain.

All of the factors demonstrated here generate comparative advantages that lead me to suggest that if there is a drug cartel in Colombia, it is that of the paramilitary groups. 130

2.5. Conclusion

This chapter has explored the phenomenon of drug trafficking in Colombian society, both in its legal dimensions and social practices. Drug trafficking is essentially a profit driven activity, which has become to be a predominant social feature, but it has been demonstrated that its understanding demands a combined knowledge about its legal and social dimensions. The analysis presented here has pointed to a divide between the legal treatment given to this phenomenon and its social practice. This divide represents a serious challenge to the construction of legal consciousness with respect to drug trafficking related laws.

While the legal norms have been built with reference to the profit-driven nature of this activity and the potential harm to human health, economic order and public security, the social practice of this activity has obscured the illicit nature of this crime. It has been demonstrated that drug traffickers have become fully involved in the armed conflict and developed ties to government agents and politicians to reduce risk, costs, and expand their businesses. This anomalous relationship has provoked a fusion between profit driven criminal activity and political and law making activities. Further, the interconnection between drug trafficking and the armed conflict has led to the transformation of both the armed actors (guerrilla and paramilitary groups) and the ways in which these actors relate to drug trafficking. 131

The complex social practice of drug trafficking has led to epistemological, political, and legal consequences, which have been explored. In the epistemological sense, the social practice of drug trafficking is provoking a movement from purely criminal behaviour seeking profit-making to criminal behaviour seeking political support. In the political sense, drug trafficking has become a topic essential to political debates, as if it represented a matter of common interest, rather than a matter subject to legal prosecution, as the its criminal nature and legal structure would suggest. In the legal sense, the problematic practice of drug trafficking has become a challenging factor in the construction of legal consciousness; since the criminal-political connection is so evident, citizens are tempted to loose faith in the credibility of the legal institutions. 132

Chapter Four

4. THE OFFICIAL RESPONSE TO DRUG TRAFFICKING: FLEXIBLE

POLITICAL AGENDA

4.1 Introduction

The official US-Colombian response towards large-scale drug trafficking has been addressed in conjunction with the broader political conflicts that Colombia has faced for over four decades, and more precisely, in conjunction with the problem that guerrilla groups represent for the state. That response has been formulated in terms of the so-called

War on Drugs (WOD) and War on Terrorism (WOT), which, it will later become clear, provide the foundation for the JPL. The fusion of two very different social phenomena - the guerilla war and the drug trade — on the part of the Colombian and US governments leads to several questions: how can that fusion be justified with regard to the protection of the public interest? How can it properly address both legal and political issues at the same time without arbitrariness? How can this fusion possibly address the social problems that form part of the armed conflict and the drug economy? How can continued war permit the resolution of any of these issues? I will argue below that the fusion of legal and political issues that permeates the official response has weakened the legal 133 system and social respect for the law, at the same time that it has led to a concentration of discretionary political power, especially in the executive branch of government.

Drug trafficking, the armed conflict, insurgency, and terrorism have become interchangeable elements in the official discourse of justification for the WOD, WOT, and the JPL. But those policies and legal reforms fail to address the actual dimensions of the problems faced by Colombia: first of all, the need to terminate armed conflict.

Instead, the WOD and WOT justify increased military operations while the JPL (as explained below) undermines the criminal nature of drug trafficking. I will further argue in this chapter that, during recent years, this official response to drug trafficking has been driven largely by the US political agenda to force the adoption of a new neo-liberal economic development model by Colombia (and indeed by other Latin American countries).

4.2. The War on Drugs: Justice and a Counter- Insurgency Policy

Given the fact that drug trafficking is an activity with global dimensions, the official response to it can be expected to deal with both the local and global factors that determine the problem and to address both at the local and global levels. In the case of

Colombia, it is clear that the official response would need to address the roots of the problem and the features that characterize the practice of trafficking, as analyzed in the 134 previous chapter. At the global level, those factors that determine supply and demand in the global illicit market need to be addressed.

The roots of the drug trafficking problem refer to the motives that make people get involved in it, and these have been a matter of debate. Involvement in the drug trade has varied across social groups, depending on geographic, economic, historic, and political reasons, but there are structural factors that have encouraged the development and growth of drug trafficking and have facilitated the involvement of all social groups in it. Thoumi argues that institutional destabilization constitutes the main structural comparative advantage for drug trafficking success in Colombia.169 He also argues that the geographical location of the country, the geography of this illicit industry, and corruption are favorable to drug trafficking. Ricardo Rocha Garcia, with an optimistic view, believes that, although these factors might have been determinant in the past, the institutions, legislation, and intensity of the WOD have generated significant changes and that institutions are now prepared to deal with the problem of drug trafficking.

The arguments of Thoumi are consistent with the practice of this crime, but to his list of factors, I would add a phenomenon that could be called "the selective geography of justice," and that I consider to be a dramatic factor in drug trafficking growth. What I

6 See Thoumi b., supra note 104 at 15-20. See Francisco Thoumi d., "Why a Country Produces Drugs and How this Determines Policy Effectiveness: A General Model and Applications to Colombia" in Rojas and Meltzer, supra note 104 at 157-162. 171 Ricardo Rocha Garcia, "Sobre las Magnitudes del Narcotrafico" in Rangel, ed., supra note 104 at 157. 135 mean by the selective geography of justice is the deficient structure and distribution of personnel and offices dedicated to interdiction and investigation activities in proportion to the incidence map of this crime across the country. This situation favours impunity, not only in relation to drug trafficking but also crimes committed within the armed conflict, and consequently, it encourages the growth of drug trafficking in those areas.

This claim requires specific empirical data and experience; however, the same reasons that determine the phenomenon make the gathering of data difficult. However, after six years of investigative and legal work in various regions of the country affected by violence and drug trafficking, I certainly argue that the selective geography of justice plays a prominent role.

In cities like Bogota, Medellin, Barranquilla, and Cali, judicial authorities and investigative bodies have sufficient logistical resources, continuing training, and means of protection to perform their duties; all these elements make the gathering of evidence, seizure of drugs, destruction of laboratories, and legal proceedings possible, as expected.

In Bogota there is a national Unit of prosecution dedicated to investigate large-scale drug trafficking across the national territory, the UNAIM (Unidad Nacional Antinarcoticos y de Interdiccion Maritima), and this Unit relies on technical investigative bodies from the

Police, the Office of Prosecution and the National Department of Security (DAS), all of 136 them also specialized and well trained. 172 But in the distant areas where plantations and processing laboratories are commonly located, there are no specialized investigative units, and all investigative work demands a trip by the relevant unit to the scene of the crime, but this trip is possible only if there is armed support from the specialized unit of the Police, the so called Counter Narcotics Unit, and the Counter-Insurgency Unit of the

Army. Thus, the administrative process required to initiate investigations represents an opportunity for drug dealers to neutralize interdiction and prosecution. In these cases the specialized investigative unit depends on military conditions and the approval of the armed forces to undertake the investigation. All this combined may prevent the criminal proceeding from taking place or affect the appropriate gathering of evidence and perspectives for adequate investigation and prosecution. While production and processing of illicit drugs usually takes place in the southern and eastern areas of the country, the specialized offices of the National Office of Prosecution are located in other regions. The only specialized offices for large-scale drug trafficking investigations are located in Bogota, Tumaco, Barranquilla, Medellin, Santa Marta, Cartagena and San

Andres. Although there are some competent investigative offices in the rest of the country, those offices are less equipped and are located in provincial capitals and some mid-size cities. In the minor municipalities, where the problem is actually located, there

These 20 prosecutors were part of the Counter Narcotics and Overseas Interdiction National Unit Overseas (Unidad Nacional Antonarcoticos y de Interdiccion Maritima, UNAIM), which was created in 1999 under the framework of the WOD. 137 are no specialized offices, and in the minor cities, those non-specialized offices have to initiate the investigation in the absence of the specialized units.

Although various departments in the country can be analyzed as representative of this situation, including Guaviare, Casanare, Caqueta, Putumayo, Meta, Choco, Narifio,

Boyaca, and Vichada, the case of Casanare is a good example of the "selective geography of justice." In that province with 44,640 Km2 and 19 municipalities, there are in total nine offices of prosecution, from which no one is part of the National Specialized Unit.

There are, however, four offices exclusively dedicated to investigate drug trafficking, but having worked in those offices, I can say that they are not technically equipped to undertake large-scale drug trafficking investigations.173 If the existence of a processing laboratory for cocaine is reported to the office in Yopal, the capital city, the choices of the investigative unit are basically two. The unit can undertake the investigation, in which case the personnel have to travel by car for one to eight hours, depending on the distance to the scene of the crime, or by air with the assistance of the police and the regular army. Given the fact that both guerrilla and paramilitary groups are based in the region, most likely, the unit would have to rely on the army and police to travel by air, which may or may not happen for "security reasons." The investigative unit can also report the case to the national specialized unit based in Bogota, in which case the

I have chosen this province, because after having worked in various regions of the country, and for various years in Casanare, I became aware of the conditions under which judicial and investigative offices undertake investigations. 138 beginning of the investigation takes longer. 7 The two choices lead to delay in the investigation, and this delay represents an opportunity for drug traffickers to avoid detection and protect their illicit products from detection before authorities arrive, which is a very frequent occurrence.

The lack of prompt, appropriate, and effective administration of justice and resulting impunity, which extend also to the crimes committed in the armed conflict, weakens social consciousness towards the legal and judicial systems. Indeed, it is a critical factor that must be addressed. This problem of the selective geography of justice and the various issues raised in the previous chapter are expected to be matters of official attention. It is reasonable to argue that some of the roots causes for the incidence of drug trafficking cannot be addressed, i.e. climate conditions, location, and the topography of the country, but certainly institutional destabilization and the selective geography of justice are matters that are within the scope of state action.

At the international level, a historical view at the official response to drug trafficking proves that the international community, through the United Nations, has addressed the problem through international instruments to be implemented both at the international and national levels, and it first addressed the problem of demand, only later focusing on

In one case the investigative team relies on the decision of the regular army or Police to commute with the team to the scene of the crime, and delay in the official response leads to ineffectiveness of interdiction and prosecution. 139 supply. The first focus is evident in the UN Single Convention on Narcotics Drugs of

1961 and the Convention on Psychotropic Substances of 1971. These two documents set the bases of prohibition for local legislation, as they identified the substances that were considered harmful to human health, focusing on reducing the demand for drugs. Later, the United Nations took on the problem of supply by responding to production and trade of prohibited drugs, articulated in the Convention Against the Illicit Traffic in Narcotic

Drugs and Psychotropic Substances of 1988, the Convention against Transnational

Organized Crime in force since September 2003, and the Convention against Corruption of October 2003.175

All these international instruments acknowledge the global dimension of the trade of drugs and aim to control and reduce drug transactions; the conventions involve principles and measures of international official cooperation in response to the various stages of the trading chain, from the definition of prohibition at the local level to production, trade, consumption, and laundering of profits. However, in practice, those various instruments constitute just the legal tools through which a diverse and more politicized response has been formulated.

The official response to Colombian based drug trafficking has been formulated by the US government, and it has been implemented in conjunction with the local government under

175 All conventions available at http://www.unodc.org/unodc/en/drug and crime conventions.html visited, July 13, 2006 140 the label of the War on Drags. The US government, in tune with the trend set by the international community at the time, considered the WOD in the late 1960s as an internal policy to prevent and reduce consumption;176 however, that policy very soon became a foreign policy, directed especially toward the Andean region where it took on a different framework. m In this region, the WOD anticipated the later emphasis on the aspect of supply, as the war was presented as a fight against drug trafficking; however, rather than serving the fight against drags, evidence demonstrates that the WOD has focused on controlling insurgency and terrorism, and through this, the WOD has served the political agenda of the US.178 During the Cold War, the political agenda of the US pointed at insurgency and terrorism, which were considered expressions of communism. Thus, the situation of conflict in Colombia between the official establishment and leftist guerrillas constituted an ideal scenario for the implementation of that agenda.

The response addressed the problem of drags and violent acts, characterized as terrorist attacks, some of which were attributed to the Medellin and Cali cartels, but the measures of the response consisted basically of an increase in military operations against guerrilla

On the history of the war on drugs, see David F. Musto, and Pamela Korsmeyer, The Quest for Drug Control (New Haven and London: Yale University Press, 2002) 1 -105 and Rusell Crandall, Driven by Drugs: US Policy Toward Colombia (Boulder, London, Lynne Reinner Publishers, 2002) 1-52. On the implementation of the WOD in the Andean region, see David Boyum and Peter Reutcr, An Analytic Assessment of U.S. Drug Policy (Washington D.C.: American Enterprise Institute Press, 2005) at 6. See also Juan Ronderos, "The War on Drugs and the Military: The Case of Colombia" in Margaret E. Beare, ed., Critical Reflections on Transnational Organized Crime, Money Laundering, and Corruption (Toronto, Buffalo, London: University of Toronto Press, 2003) at 212, and Andres Lopez Restrepo, "Conflicto Interno y Narcotrafico entre 1970 y 2005" in Rangel ed., supra note 104 at 184-185. 178 See Doug Stokes, America's Other War (London and New York: Zed Books, 2004) at 67-114. Also, Bagley, supra note 143 at 29-35, and Thoumi, supra note 104 at 105-108. 141 groups and the utilization of legal instruments that could facilitate those operations. The so-called "Statute of Security" (Decree 1923 of 1978) and the "Statute for the Defence of

Democracy" (Decree 180 of 1988) are examples of this instrumentalization of law. Both decrees were issued by the Colombian President as exceptional and temporary legislation and were characterized by the restriction of fundamental rights, such as the rights to due process and legal detention. Moreover, those decrees gave the military powers to investigate civilians. Clearly, guerrilla groups were the targets of the official response, and terrorism became a substantive part in the official discourse of justification for war.

One would think that with the fall of communism the focus of the WOD would have change to abandon the counterinsurgency objective and would have turned toward its expected target, the drug trade.

Notwithstanding the fall of communism at the end of the Cold War, the WOD continued to target the insurgent movements, which made the political rationale behind the WOD apparent. At that moment the US found itself in a political dilemma concerning the direction that its foreign policy should take, and the dilemma was resolved by placing the

WOD at the top of its priorities in the official discourse; yet, the specific strategies associated with the control of the illicit trade did not experience a dramatic change. In the academic world, the end of the Cold War motivated a debate about the war on drugs.

Rusell Crandall believes that at the end of the Cold War the US needed a new enemy, and 142 it found drug trafficking to be that enemy, replacing communism.179 Doug Stokes argues that communism has remained a priority in the international agenda of the US as an enemy that should be eliminated from every part of the world, while the problem of drugs has always been secondary.1 I would disagree with Crandall because, in fact, insurgency has been a constant political and military target of the WOD during and after the end of the Cold War, but I also think that the claim of Stokes is insufficient for explaining the nature of the WOD in recent years because it considers the fight against communism as the end of the WOD. It is argued here that in recent years the counterinsurgency policy is still central to the WOD, but it is not its ultimate aim. The fundamental aim, I argue, is the implementation of a new economic development model inspired in the US political agenda, an argument that will be discussed later.

4.3 Extradition: A Factor leading to Discretional Decision-Making

Following the commitment to international cooperation in relation to the problem of drug supply, the Colombian government revived the extradition of nationals, to face prosecution for common crimes including drug trafficking, through a Constitutional reform in 1997, and it has become a crucial part of the WOD. That Constitutional reform could be interpreted as a slight change of direction in the WOD since it opened the possibility of distinctive treatment for the problems of insurgency and drug trafficking.

179 Rusell Crandall, Driven by Drugs: U.S. Policy Toward Colombia (Boulder and London: Lynne Rienner Publishers, Inc., 2002) at 33. 180 Stokes, supra note 178 at 84. 143

That distinction comes from the fact that, according to the Constitution, extradition for political crimes is prohibited.181 This distinction would result in the exclusion of guerrilla members facing charges of rebellion from the possibility of being extradited while alleged drug traffickers could be extradited for prosecution in foreign jurisdictions.

In fact, the Colombian government has gradually increased the number of extraditions for drug related charges, especially to the US, since 1999, when the implementation of Plan

Colombia began, as can be seen in figure 1. According to the statistics reported by the

Ministry of Justice, 360 nationals were extradited to various countries by the Colombian government between 1999 and 2004. From that total, 286 were extradited to the US, and an additional 100 have been extradited to various countries since the end of 2004. This increase in the number of extraditions, especially since 2002, provokes reflections concerning the role of this measure within the WOD. As a matter of international cooperation, extradition is intended to ensure that prosecution and judgment of the alleged drug trafficker takes place, but as a matter of criminal policy, it is aimed to deter drug traffickers.

181 Col. Political Constitution, art. 35, available online at http://pdba.georgetoyvn.edu/Constitutions/Colombia/col91.html, visited September 1, 2006 182 This data is reported by the Colombian Observatory of Drugs, a Division of the Ministry of Justice. Clearly, it is established that requests for extradition addressed to the Colombian government by foreign authorities have increased, and so have the authorizations for extradition by the President. See El Tiempo, "Hoy extraditaron a primer colombiano en el ano a Canada," November 8, 2005. According to a report on this newspaper, as of that date, President Uribe in power since August 2002 had extradited 350 nationals to various countries. 144 Extradiciones aprobadas 1 999-2004 1999 2000 2001 2002 2003 2004 2 Cuban 13 colombianos a 27 colombianos 54 colombianos a 64 colombianos a 126 colombianos a a EEUU. EEUU a EEUU EEUU/ 31 Gob. Uribe EEUU EEUU (Incluye 1 Col Estadounidense) 1 checo 2 italianos a Italia 2 colombianos 4 colombianos a 2 colombianos a 1 argentino a Argentina a Rep. a Peru Canada / 1 Gob Espana Checa. Uribe 2 1 colombo- 2 italianos a 2 colombianos a 2 colombianos a 1 uruguayo a Argentina italianos canadiense a Italia Peril./1 Gob. Uribe Peril a Italia Canada. 1 austr. 1 suizo a Suiza. 2 1 colombiano a 1 colombiano a 1 brasileno a Brazil a Estadounidens Argentina./ Gob. Canada Francia esa EEUU. Uribe 2 perua. 1 estadounidense 1 argentino a 2 espanoles a 1 suizo a Belgica 1 libanes a Francia a Peril a EEUU. argentina. Espana. 1 colom. 1 ecuatoriano a 1 peruano a 1 ecuatoriano a 1 danes a 1 ecuatoriano a EU. a EEUU EEUU Peril EEUU Dinamarca 1 venez. 1 argentino a 1 canadiense a 1 italiano a Italia. 1 libanes a EEUU 1 dominicano a EU a EEUU EEUU Canada 1 espanol a 1 italiano a 1 brasilero a Brasil 1 cubano a EEUU 1 venezolano a EU. Espana. EEUU 1 cubano a EEUU 1 ingles a Italia 1 frances a Francia 1 chileno a EEUU 2 italianos a Italia 1 frances a 1 Brasilero a 1 israeli a Francia. 1 ecuatoriano a 4 colombianos a Francia. Brasil. EEUU Espana 2 italianos a Italia 1 espanola Espana 1 venezolano a Venezuela 1 hondureno a EEUU 1 Egipcio-Frances a Canada. 91 45 rccibidas n 110 recibidas 158 202 rccibidas rec. rccibidas recibidas 10 23 solicitudes 39 68 solicitudes 80 solicitudes 140 solicitudes solic. aprobadas. solicitudes aprobadas aprobadas aprobadas Apro. aprobadas. 6 1 ncgada 1 ncgada 5 negadas 2 negadas. 1 negadas. negnd as.

Source: Colombian Observatory of Drugs, Ministry of Justice Fig. 1

Even though it is true that drug traffickers consider extradition to be a serious official measure, as explained in the previous chapter, the frequent use of extradition cannot lead to the conclusion that drug traffickers reduce their involvement in the drug trade for fear of it. Instead, the common use of extradition has led to the concentration of power and the use of discretion in the hands of the executive branch of the national government,

In statement to the judicial authorities, the leader of the North Coast Cartel made it clear that the worst element associated to extradition was to be separated from the family and circle of friends, and to face the possibility of life time imprisonment in a foreign country. See. Rad. 32.122 UNAIM, Bogota. 145 which is problematic given the demonstrated criminal-political ties between the illegal and legal worlds. Also, the increase of extradition facilitates the transfer of capital from

Colombia to the receiving countries, which is a debatable consequence

The concentration of power in the executive branch of government and the reign of discretion lie in the very nature of extradition; it is the most political decision that a government can make, and it is issued by the President. When a state extradites one of its citizens, the state unilaterally, and previous to any finding of guilt, alters the rights and obligations attached to citizenship; not only does the state give up its rights to prosecute and judge its citizens, but it also takes away the exercise of rights that citizens have, such as the right to access justice under the laws of their own country. For extradition to take place, there are some formal requirements that are examined by the Supreme Court prior to the final decision by the President; the Court issues its ruling on a "legal concept" about whether or not the extradition can proceed, and subsequent to that, the President may or may not grant the extradition, even on the basis of convenience. The Court is to establish if the crime under which the requested person is going to face prosecution is also a crime under local legislation and if the identity of the person is clearly established.

Thus, the power to make this decision is clearly within the discretion of the President.

This procedure is set in art 35 of the Col. Pol. Cons, supra note 152 and Col. Crim. C. art. 490 - 514. 146

An additional effect of extradition can be observed in the transfer of the licit and illicit capital accumulated by the drug trafficker from one country to another. This transfer follows the criminal prosecution for drug trafficking related charges by means of forfeiture of assets in favour of the receiving state. This constitutes an atypical movement of capital from one country to another, and this phenomenon forces one to revisit the root of the crime of drug trafficking and the coherence of the WOD, especially in relation to the harm that this activity can potentially cause to economic order. Since the large-scale drug trade involves transactions in at least two countries, it is reasonable to say that the economic order of the two countries is affected, or threatened, although estimates about the dimension of the harm of particular transactions to the economy are difficult to gather. When the government extradites a person to the US, the government is also transferring the entitlement to forfeit the illicit assets to the receiving country, and the receiving country turns into a beneficiary of a forfeiture, which allows it to channel the illicit assets into its legal economy. This is understandable for any crime, however, it has a special connotation in the case of drug trafficking, given the considerable fortunes that drug traffickers make. This, for example, is the case of the Rodriguez-Orejuela brothers, ex-leaders of the Cali Cartel, who were both extradited to the US by the current

President. In that case, the Rodriguez Orejuela faced prosecution in the US and subsequent to an agreement between them and the US Office of Prosecution $2.1 billion were forfeited by the US on September 26 of 2006. Colombia did not receive any

US Department of Justice, "Cali Cartel Leaders Pled guilty to Drug and Money Laundering Conspiracy 147 money, regardless of the fact that part of the crime took place in Colombia and that

Colombian public health, economic order, and national security also suffered from the alleged behavior in the case. I would say that at that stage, extradition makes the WOD inconsistent with its political discourse and with the social practice of drug trafficking, not only because the supply of drugs is not effectively addressed, but also because the resulting transfer of illicit assets into the legal economy of the receiving country, which is not supposed to be the goal of the WOD.

4.4 Plan Colombia: An Economic Development Model

Despite the fact that the WOD has kept its counterinsurgency focus, this war widened its scope with the adoption of Plan Colombia in 1999; this Plan involved the inclusion of an economic development model through a comprehensive public policy with military,

i o-r legal, economic, social, and administrative measures. Although drug trafficking and the armed conflict remained in the rhetoric of justification of the Plan, it is intended to promote foreign investment, the protection of property rights, and the alignment of the local economy to globalization. This apparent divide between the discourse of justification and the explicit goals of the Plan sends an unclear message to society about the direction of the war. It is clear, however, that a major structural transformation of society is at the core of the war, and not just the reduction in the production and trade of

Charges" at http://www.usdoj.gov/opa/pr/2006/September/06_crm_646.html. visited September 30, 2006 An agreement between the US and Colombian governments subscribed in 1999, which became the framework of the WOD, and it is meant to be implemented in the Andean Region. 148 drugs. All this means that the entire society, as opposed to only drug traffickers, becomes the target of this war. I would suggest that this approach of the WOD calls for reflection on the social construction of the meaning of this war; a crucial question is raised about the relationship between the problem of drug trafficking and the estimated undeveloped condition of the country. Some have argued that one of the reasons for drug trafficking is the poverty of rural areas, but serious studies have demonstrated that this is an invalid assumption in the case of Colombia. Thus, a causal connection between the need for

1 RR economic development and the fight against drug trafficking is unreasonable. This causal connection does, however, demarcate a paradox in the justification of the WOD; on the one hand, drug trafficking is considered to be the problem to be resolved through the war, but on the other, drug trafficking is necessary to support the platform of justification for the WOD and the imposition of the new development model.

The new model incorporated in Plan Colombia responds to the requirements for development that Richard Posner upholds, that is to say, strengthening of the economic system through the promotion of foreign investment along with a "special" legal framework for development. He equates development with capitalist prosperity, as he argues that poor countries remain poor because they have not reformed their legal systems to promote capitalism. He goes on to say that poor countries need new legal systems to protect and promote property and contract rights for the modernization of their

Thoumi, supra note 104. 149 national economies. He argues that the success of this modernization of a nation's economic prosperity also relies on the efficiency of its criminal law systems, and further, that the Western system is the ideal one for development. It is the ideal system, he argues, because it includes simple rules and is inexpensive for those countries, as opposed to the investment involved in establishing a first-class judiciary and an extensive system of civil liberties. In his view, the protection of civil rights should be reduced

1 &Q because that protection leads to impunity.

This technical and instrumental view of law and the legal system to serve economic development is debatable for any democratic country, and perhaps, particularly for a country like Colombia, not only because violations of civil rights are already a systemic problem that compromises state agencies, but also because the protection of property rights demands a thorough examination and selection of the rights to be protected. In a country where drug trafficking is an important commercial activity that generates considerable amounts of profit, the protection of property rights becomes a challenge to the state, as it is supposed to differentiate licit from illicit assets and set clear criteria for protecting property, so that the state does not legalize illegally acquired property rights.

See Richard A. Posner, "Creating a Legal Framework for Economic Development," The World Bank Research Observer, vol. 13, no. 1 (February 1988) at 1-11. See also Frederic Shauer, "Legal Development and the Problem of Systemic Transition," 13 J. Contemp. Legal Issues 261 2003-2004 at 262-269. 150

However, Plan Colombia disregards these problematic aspects of the development model, and it reiterates the grounds of Posner's Theory, when it states:

"Violence and corruption, supported by drug trafficking have led foreign

investors to lose confidence in Colombia, and it has become one of the major

obstacles in the path of modernization. Foreign investment is an essential element

for creating jobs and establishing the country in a stable and prosperous

foundation in times of globalization." The justification of the Plan, however, goes

back to the drug trade when the motivations further state: "... the wishes of

Colombians and government actions have been frustrated by drug trafficking

activity, and it has made it difficult for the government to comply with

Constitutional duties..." (Trans, by author).190

Without doubt this statement reflects the key role that drug trafficking plays in general public policy, the reliance of the government on this Plan to shape that policy, and the identification of the main reason for the implementation of a new economic development model with its specific legal framework.

US Embassy in Venezuela, "Plan Colombia, original text." The first part states: "...La violencia y la corruption, alimentados por el narcotrafico, han generado desconfianza entre los inversionistas extranjeros, hecho que ha sido uno de los mayores obstaculos en nuestro camino hacia la modernization. La inversion extranjera es un elemento esencial en la generation de empleo y en el logro de una position estable y prospera para Colombia en un mundo ahora globalizado..." With respect to drug trafficking it adds: "...las aspiraciones del pueblo colombiano, y las labores de su gobierno, han sido frustradas por el narcotrafico, y esto ha dificultado los esfuerzos del gobierno en el cumplimiento de sus deberes constitucionales...," "Apoyo de los Estados Unidos al Plan Colombia," at http://caracas.usembassy.gov/wwwhl76.html, visited July 12, 2006. 151

Plan Colombia presents an entire package, a general public policy to be implemented in

Colombia in exchange for military and financial aid from the US. Colombia commits itself to the implementation of legal, judicial, and economic reforms aimed towards sustained development as well as the negotiation of peace and the eradication of at least

50% of the production and distribution of illicit drugs.191 Despite the fact that these commitments are broad, it can be argued that military activities and legal reform have been the main instruments in waging the war.

4.4.1. Military Aid: The Dilemma Terrorism vs. Peace

The central role of military aid in Plan Colombia reflects a misconception of the problem of drug trafficking. It has led to keep the armed conflict and increase military presence across the country, which has fostered conditions for the worsening of military conflict and for the frequent use of the language of peace in the government discourse of justification for its policies. The increase in military operations is an unequivocal indicator that the problem of national security is a central concern of the Plan, which responds to the premises of Posner's theory in the sense that security is a necessary requirement to attract investors and promote property rights; but this is not explained in the political discourse of justification of the Plan. That discourse justifies the increase in military operations as a necessary component in fighting against the production and trade of drugs, and consequently, facilitating the termination of the armed conflict. The Plan

91 ibid. 152 establishes that those operations should facilitate aerial fumigations of illicit crops, support interdiction activities, and aid the recovery of territories used for coca and poppy plantations, all of which is supposed to lead to the disintegration of the armed groups involved in the drug trade.1 Contrary to these goals, the military components of the

Plan deepen the dilemma between a worsening armed conflict (increased of illegal paramilitary actions ) and the increasing claim for peace in the government discourse.

The militarization of the WOD is demonstrated in the fact that out of the total of

US$5,003.6 million in financial aid provided by the US to Colombia during the implementation of this Plan, 84.3% on average has been used for military purposes, while just 15.7% has been dedicated to economic and social assistance programs. This disproportionate distribution demarcates the essentially military nature of the Plan, and national security has become a central piece in the justification of the war. Despite the fact that the militarization of the country has been considerable under Plan Colombia,194 it has been promoted by the government as a package for establishing democratic security

(Seguridad Democratica). 95 The pursue of the Plan has been characterized by forceful military measures accompanied by restrictions on civil liberties, which responds to the

The Center for International Policy's Colombia Program: "U.S. Aid to Colombia since 1997:summary tables" available at http://www.ciponline.org/colombia/aidtable.htm , visited January 5, 2007 Boyum and Reuter, supra note 177 at 6. See also Ronderos, supra note 177 at 207-217. These two authors present studies of the militarization of the country as a consequence of the WOD. 195 Presidencia de la Republica de Colombia, Manifiesto Democtratico: Los Cien Puntos de Uribe, section on Seguridad Democratica, paragraphs 26 to 40. Available at http://www.presidencia.gov.co , visited July 23, 2006. 153 expected framework for development, as Posner argued, rather than to the explicit goal of reducing the production and trade of drugs.

To understand this, it is important to note that military operations have been carried out not only by the regular army and other armed government agencies, but also, by the paramilitaries. The regular army in association with military units from the US has participated mainly in aerial fumigation of illicit crops in distant zones of the country.

During the implementation of the Plan, the paramilitaries, as a government report indicates, expanded across 27 of Colombia's 32 departments by 2005. Parallel to this expansion, reports from CODHES indicate that forced displacement increased gradually between 1999 and 2005, with the exception of the year 2003, in various regions of the country. But the expansion of paramilitaries took place in vast productive and undeveloped areas on the coasts of the Atlantic and Pacific Oceans, where indigenous and afro-descendent communities were located; significantly, displacement was followed by mega projects in those regions, as documented by Arturo Escobar. He found that in the Pacific Region, where paramilitary groups arrived in 1996 and expanded until 2002, the paramilitaries forcibly displaced nearly one million indigenous and afro-Colombian people between 2001 and 2001, and that mega projects were then established in the abandoned lands. These mega projects involved the expansion of palm oil plantations by

196 Presidencia de la Republica, supra note 147. ' The CODHES report on "Numero de Personas Desplazadas por Departamento de LLegada por trimestres desde 1999 a 2005" indicates that 288,127 people were forcibly displaced in 1999, 317,375 in 2000, 342,243 in 2001, 412,553 in 2002, 207,607 in 2003, 287,581 in 2004 and 310,387 in 2005. Available at www.CODHES.com visited March 27, 2006. 154

20,000 hectares, the growth of industrial shrimp cultivation, and a projected inter-oceanic canal.

The Plan has not proven to be as successful in the fight against drugs as it has been in fostering the conditions for a certain kind of economic development. The documented results regarding the production and trade of drugs prove this. Interdiction and investigative activities against drug trafficking have taken place throughout the implementation of this Plan. In particular, since the so-called "Millennium" operation, in 1999, some organizations and individuals have been targeted in continuous official operations with considerable results. Between 1999 and 2004, Colombian authorities detained 165,082 persons under drug trafficking related charges, which reflects a substantial increase with respect to the number of detentions (just 21,107) reported during

1990 and 1998.200

But the increase of detentions does not necessarily mean that drug trafficking was effectively reduced, especially because it is clear that during the same period of time production of drugs increased, with some minor exceptions. With reduction of drug

198 See Arturo Escobar, "Displacement, Development and Modernity in the Colombia Pacific," International Social Science Journal vol. 55 Issue 175 p. 5, March 2003. This operation was a joint operation between the UNAIM and various investigative bodies, and it took place in October 1999. It was the first simultaneous detention of alleged drug traffickers (32) for purposes of extradition, after this legal figure was re-established in Colombia. Observatorio de Drogas de Colombia, Direccion Nacional de Estupefacientes, Detenidos y Dados de Baja por Narcotrafico en Colombia 1990-2004, at http://odc.dne.gov.co/publicaciones/publicacion_62.xls , visited Sept 11,2006. 155 production and processing being one of the goals of the WOD, the fact that production was not substantially reduced indicates that the war is not achieving its goal. A careful look at some indicators illustrates this statement. Indeed, while in 1999 the estimate of the area of coca plantations was 160,119 hectares (ha), the following year it went up to

163.289 ha, and during the years 2001, 2002 and 2003 it apparently declined to 144.807 ha, 102.071 ha, and 86.340 ha respectively, according to a government report. It is apparently because, as the report indicates, the data for the year 2003 was less reliable

(only 89%) than the data for the other years (which was over 95% reliable). Further, despite these figures, the problem was not alleviated because the same report indicates that during the years 2001 to 2003 the destruction of coca plantations was quite high.

These figures demonstrate that production was far from being stopped. This is clear because in 2001 94,152.32 ha were destroyed, 130,363.90 ha in 2002, and 132,817.01 ha in 2003, figures which are far greater than the estimated area of coca cultivation at the end of those year, as the numbers above indicate. What appears in this phenomenon is that the increase of official strategies for drug production control brings an increase of efforts for production with it. Hence, if one looks at the political discourse of the WOD, it has failed, but if one looks at its instrumentality for promoting a certain kind of economic development, it has been successful.

See National Direction of Stupefacient Substances (Direccion Nacional de Estupefacientes) 2004 Report on Drug Plantations and Eradication, available at http://www.dnecolombia.gov.co/doc/Publicaciones/estrategica/lb200 , visited November 15, 2006. 156

This partial effectiveness of the WOD has been obtained at the cost of systemic human rights violations that demand an official response, but that response has been articulated on the contradiction between peace and terrorism. The rampant human rights violations perpetrated by the armed groups upon civilians, extensively discussed in chapter two, and the interconnection between the conflict and drug traffickers have allowed the Colombian and US governments to join and pursue local and international goals in a united official response. At the local level, the search for peace is critical for society and also for the government agenda, while at the international level, the implementation of the war on terrorism (WOT) has become the central component in the US agenda. These two objectives are strictly political and they have been treated as such; the use of discretion on the part of the governments as a central component of the governments' actions so demonstrates.

The overt fusion between the goals inspired by the local and the international political agendas became apparent with the implementation of the WOT declared by the US government in 2001, and this overt fusion represented a reversion to the roots of the political justification of the WOD in the 1960s. Following the 9/11 attacks, attributed to the Al Qaeda movement, the US declared the "war on terrorism," a new war with an

909 unclear scope, enemies, and goals. However, the scope, enemies, and goals of the war have been named overtime at the discretion of the US government, and the WOD in the Ronald D. Crelinsten, "The Discourse and Practice of Counter-Terrorism in Liberal Democracies" in Alan O'Day, ed.s, War on Terrorism (Hants, England: Ashgate Publishing Limited, 2004 233-257 at 245. 157

Colombian context has adapted its measures and methods to the new demands. This war has been shaped by the Executive Order on Terrorist Financing issued by President Bush on September 23 of 2001, which set economic restrictions on 27 individuals and organizations that the Bush Administration considered to be involved in terrorism, but the order has since been extended to 189 persons and groups. On November 2 of 2001, the Colombian guerrilla groups of the FARC and ELN and the paramilitary groups of the

AUC were all categorized as international terrorist organizations that should face economic controls and legal prosecution. l The determination meant that these groups became targets of economic, military, and legal measures led by the US. The groups were included also under the Death Penalty Act of the US.

The identity of the enemies and the methods of the war are still unclear, as they could vary from time to time at the discretion of the US, and this leads one to reflect on the nature of this war and the meaning of terrorism. 1 will attempt to dissect this term in the context of the WOD.

203 The White House, President George W. Bush, Executive Order 13224 on Terrorist Financing, at http://www.whitehouse.gov/news/releases/2001/09/20010924-l.html , visited Nov. 16, 2006. US Department of State, Comprehensive List of Terrorists and Groups Identified under Executive Order 13224, at http://www.whitehouse.gov/news/releases/2001/09/20010924-l.html , visited Nov. 12, 2006. 205 The inclusion of the guerrilla and paramilitary groups under the US Death Penalty Act implies that if their members are prosecuted for terrorism in the US, they will face death penalty, which is prohibited under national legislation. It also means that extradition became also fundamental as a means to bring the members of all the groups to justice in the US for charges of terrorism. In fact, Ricardo Palmera, member of the FARC who is being tried in the US for kidnapping for terrorist purposes and drug trafficking is pending sentence that could involve death penalty. 158

Terrorism, according to Webster's Dictionary, means: "terrorizing; use of terror and violence to intimidate, subjugate, etc., especially as a political weapon or policy..." and terror is defined as: "intense fear."206 From the semantic point of view, the term does not make a distinction between actions against and by the government, and indeed, the historical development of the phenomenon of terrorism so demonstrates. The term terrorism was first associated with the use of terror by the state against its citizens in

France during the Great Revolution of the eighteenth century, and later, with the actions of the Nazi state in Germany. But during the Nazi regime, the charge of terrorism was also used by the government to incriminate the Jewish population, and in consequence, justify the actions of the state. However, the League of Nations considered in 1937 that

707 terrorism was limited to political and violent actions directed against states, and although such an approach did not reach the status of international legislation, this same logic has accompanied the mainstream notions of terrorism. In the Colombian legislation, the definition of the crime of rebellion so describes.

Webster's New Twentieth Century Dictionary, Unabridged, 2nd Ed., Deluxe Binding at 1884.

Ben Saul, "The Legal Response of the League of Nations to Terrorism," Journal of International Criminal Justice, Vol. 4, No. 1, p 78-102, 2006. He discusses the position of the League of Nations in the Convention of 1937 about the notion of terrorism: "All criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public." 159

States have referred to the use of terrorism by non-state actors, but that terrorism could be directed either toward the state or the civilian population.208 This is the perception of the

Colombian and US presidents. President Bush defined terrorism as an activity that involves "(i) a violent act dangerous to human life, property, or infrastructure, and (ii) appears to be intended (A) to intimidate or coerce civilian population; (B) to influence the policy of a government policy by intimidation or coercion, or (C) to affect the government conduct by mass destruction, assassination, kidnapping or host-taking."

The Colombian President Uribe adapted this notion to the local context and he declared that: "any violence against the state is terrorism..."210 With this declaration, the government merged the crime of rebellion, attributed to guerrilla groups, and the crime of terrorism that could be attributed to both guerrilla and paramilitary groups. The merger becomes problematic because violent opposition to the government could fit into the description of either rebellion or terrorism, but the effects are distinct, especially if extradition is a matter to be decided. It is argued here that this potential confusion increases the degree of the government's discretion in implementing the war.

Chris Hables Gray, "The Second Cold War and Postmodern Terror" in Begona Aretxaga et al. eds., (Reno, Nevada: Center for Basque Studies, University of Reno, Nevada, 2004) at 230-231. 209 White House, President George W. Bush, supra notes 203 and 204 at section 3 (d). 210 See US President Bush's address to Congress, Sep. 20, 2001, at http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html, visited on Jan. 15, 2006. He declared the war on terror wherever terrorists are. Also Colombian President Uribe's address to Col. Congress on August 7, 2002, at http://www.presidencia.gov.co/discursos/discursos2002/agosto/discurso.htm, visited Jan. 15, 2006. He also stated: "violence is financed with drug trafficking and if the government does not exterminate drugs, drugs will destroy liberty, environment and peace." 160

As opposed to the US and Colombian government definitions, Stokes presents a critical view of the military tactics employed in Colombia during the war on drugs, and he concludes that the severity of the measures inherent to this war constitute state terrorism.

He highlights the illegal conjunction between paramilitary groups and the regular army to conclude that, in Colombia, the WOD is a war against insurgency and for the protection of US capital in South America, and that the tactics used in this war constitute terrorism.211 This claim proves to have considerable weight not only because it articulates elements of the economic development model, as discussed above, but also because it looks at the role of the paramilitaries in that model. This claim is echoed by

Daniel Garcia-Pena Jaramillo, ex-High Commissioner for Peace in Colombia, when he states that the connection between paramilitaries and government agencies is so entangled in government policy that the government should acknowledge its responsibility in the violent acts that have been perpetrated by military officials and paramilitary groups, since government officials politically justify many such acts.212 I would say that the militarization and paramilitarization of the country are not isolated phenomena, as they are both expressions of government policy, and on that basis Stokes' claim proves to be credible. But such a claim does not imply that guerrillas may not be involved in terrorism; it is just to set the framework under which terrorism has been internalized in the local system and to point out the elements lacking in it.

211 See Stokes, supra note 149 at 122-133. This text argues that the war against drugs is basically a war against insurgency, and in this war there is 'capital' and 'crude', elements that characterize terrorism. " Garcia-Pena Jaramillo, supra note 6 59-74. 161

The government position denies Stoke's claim by giving peace a central role in its discourse. Peace has been utilized as a foundation to justify the war and in so doing the government has externalized the internal conflict while internalizing the WOD and

WOT.214 Peace negotiation processes with the illegal armed actors are said to be a priority of the WOD; however, actual practice indicates that they have been handled under political discretion and reflected elements of the counterinsurgency policy. Plan

Colombia explicitly sets out the need for peace negotiations to be pursued with the armed actors involved in the conflict, and this is also what the civilian population desires. The legal framework for these negotiations processes dates back to Law 418 of 1997, which has been modified and extended on two occasions, first in Law 548 of 1999 and by Law

782 of 2002, as indicated in chapter one.

Recent presidents have each taken a different perspective on peace negotiations.

President Andres Pastrana (1998-2002) led a peace negotiation process with the FARC, but the process failed after two years of dialogues, and the current government has focused on dialogues with paramilitary groups, as if these were opponents of the government. I would suggest that although the character of paramilitaries as adversaries of the government is debatable, and although perhaps all armed groups should be

213 Ramirez supra note 21 at 13. Gutierrez, supra note 22 at 135. 162 involved in negotiations for peace, it is inconsistent with the history of the conflict to argue that negotiations with the paramilitaries will lead to peace. On the contrary, one could argue that negotiations with guerrilla groups could lead to peace, given that the existence of paramilitaries has been justified by the need to fight guerrillas. If guerrillas were demobilized, there would be no argument for paramilitaries to exist. Yet, the current President argues otherwise, and on that basis, since 2002, he has directed what the government has been called a "peace negotiation process" with the paramilitaries, a process which was made formal in June of 2004. However, no negotiations have taken place with guerrilla groups although preliminary conversations with the ELN have occurred.

The negotiation with the paramilitaries has made evident the fluid and open communication between government institutions and paramilitary groups, and they have demonstrated the preferential treatment that the government gives to these groups, in accordance with the philosophy of the counterinsurgency policy. While the ministries of

Internal Affairs and the High Commissioner for Peace held 55 meetings with 39 paramilitary groups of the AUC between November 2002 and December 2005, they held

O 1 C just twelve exploratory meetings with the ELN. Furthermore, other figures of the negotiation process also corroborate this differential treatment. Although at the

Alto Comisionado de Paz (High Commissioner for Peace), "Cronologia de Reuniones entre el Gobierno Nacional y gaipos de Autodefensas at http://www.altocomisionadoparalapaz.gov.co/creunion/index.htm, visited July 12,2006. 163 beginning of 2005 the government estimated the number of paramilitaries to be between

12,000 and 18,000, 216 the negotiation process ended up with the demobilization of

34,324 persons who claimed to be paramilitaries, but the number of weapons that those groups turned over to the government amounted to just 17,664 pieces, a number closer to the initial estimate of the government.217 This discrepancy reveals the inconsistency of the process. It is established that the paramilitaries are an armed group, and it is unreasonable to believe that only half of the total number of members, some 16,000, would have been armed during their involvement in those groups. The questions that this discrepancy raises are in part answered by the social construction of the JPL.

4.4.2 Legal Reform: The Conjunction Law and Politics

Since the WOD seeks the implementation of an economic development model, legal reform has become a fundamental aspect of fostering this change, but the various legal reforms have provoked instability in the legal system and the use of political discretion in the application of law.

The Constitutional discourse that frames the Colombian legal system is based on the principles of democracy and the welfare state, which have been widely upheld by the

Constitutional Court since 1992, following the Constitutional reform of 1991. It is known

"K) See COHA and Presidencia de la Republica, supra note 104. 217 Presidencia de Colombia http://www.presidencia.gov.co/resultados/20Q6/desmovilizados_06.pdf. "Desmovilizacion", also Comisionado de Paz, supra note 117, and Listas de Desmovilizados Colectivos- Postulados, Junio 20, 2006, visited August 23, 2006. 164 that law has its starting point in the exercise of politics, but the Rule of Law is the scenario where the legal and political discourses meet and establish their border lines; the

Rule of Law is the realm in which law can achieve its main goal of preventing arbitrariness and caprice from prevailing.218 In the Colombian context, the Constitutional

Rule of Law Rule highlights the social role of the state and the related role of citizens. In this scheme, liberty, equality, participatory mechanisms, and respect for civil rights are fundamental, as developed through the fifteen years of the current Constitutional discourse. Commonly known principles of the Rule of Law such as certainty, equality, stability of the system, and principle of authority have all been all addressed in

7 1 9

Constitutional jurisprudence. These principles not only tend to minimize arbitrariness but also to give substantive meaning to the fundamental principles and rights to justice 790 and equality, and consequently, peace. This was particularly evident in the early stages of the development of constitutional jurisprudence. In this regard, Manuel Jose

Cepeda Espinosa appropriately noted: "[P]erhaps the Court has posed a significant contribution to the consolidation of peace, by resolving through institutional channels a number of difficult issues." He was referring to issues regarding the crucial role of the

Constitutional Court in the protection of the basic needs of forcefully displaced people 218 Ian Shapiro, The Rule of Law (New York: New York Unviersity Press, 1994) at 148. " See Walker, supra note 81 at 4, Fallon, supra note 58 at 4, and Schauer, supra note 159 at 264. Walker emphasizes the duty of government officials to not only operate through law, but also under the law. Fallon enunciates that principles associated to the Rule of Law and Schauer points at the constraints of constitutionalism in legal transitions. David Landau, "The Two Discourses in Colombian Constitutional Jurisprudence," 37 Geo. Wash. IntT L. Rev. 687 2005 at 689. Manuel Jose Cepeda-Espinosa, "Judicial Activism in a Violent Context," 3 Wash. U. Global Stud. L. Rev. 529 2004 at 668. 165 and the protection of basic rights, including access to justice, as main components of substantive justice as opposed to procedural justice.

However, the WOD has resulted in the implementation of four significant Criminal Law reforms since the beginning of Plan Colombia; one of those was the substantive reform of the Colombian Criminal Code (Col. C.C) and the other three have been mixed procedural and substantive reforms, including the Justice and Peace Law. A look at those reforms demonstrates that these are intended to gradually establish the oral accusatory criminal system that characterizes the Western Common Law system. Since the beginning of 2004 criminal proceedings in most kinds of crimes have followed the oral accusatory model, but some criminal behaviours are still being investigated and tried under the mixed inquisitive and accusatory system that preceded Plan Colombia.

The various reforms do not address the problem of the selective geography of justice, as might be expected, in response to the problem of drug trafficking; instead the continuous reforms serve the purpose of implementing the new development model, as these promote Posner's argument regarding the implementation of the accusatory system in criminal proceedings. Law is just serving the political purposes of the war and is

~~~ The Criminal Code, Law 599/2000, in force since July, 2001; the Code of Criminal Procedures, Law 600/2000, also in force since July 2001; this Code was modified later through the Law 906/2004, in force since January, 2005. Finally, Law 975/05, in force since July 2005. 166 permitting political discretion in the social construction of the wars on drugs and on terrorism.

4.6 Conclusion

The WOD is torn between its political justification and its specific measures. The discourse of justification relies on the existence of the armed conflict and drug trafficking activity, while its various measures aim to realize the political purposes of the US government. Since the 1960s, this war has emphasized counterinsurgency policy, first as an end in itself, but since the end of the Cold War, as a means to align the domestic economic system and market with globalization trends.

In recent years, Plan Colombia has constituted the framework of the WOD, and since the implementation of this Plan the war has clearly aimed to facilitate the establishment of an economic model in which security and legal reform are substantial components. In this context, development is equated with market growth and the orientation of local production toward global markets becomes an indicator of development. In this model, security is a requirement to guarantee property rights and attract foreign investment, while legal reform toward the implementation of the Western legal model is also necessary to ensure that those guarantees are enforceable. During the implementation of the WOD, security has been promoted through increased military operations across the country, which has produced adverse effects. It has deepened the situation of conflict and 167 strengthened paramilitary groups and the illegal relationship between government agents and the paramilitary forces. During the recent years, in fact, legal reforms have been implemented in Colombia, but they have caused instability in the legal system and led to the frequent use of discretion in the social construction of law. Although the Rule of Law is expected to reduce scope for arbitrariness, the various legal reforms have created conditions that have fostered political discretion in the interpretation and application of law.

With the combination of the WOD and the WOT such effects have deepened in society.

In particular, the use of political discretion in the application of the strategies of these wars has posed serious risks on the law-making, law enforcement, and law adjudication processes. In short, the Colombian discourse of the Rule of Law has been undermined as a consequence of the implementation of the WOD. 168

Chapter Five

5. THE ALTERED TRANSITION: UNDECLARED GOALS

5.1. Introduction

Intrinsic to the leading question of this research is the social construction of the meaning of the Justice and Peace Law (JPL). In that social construction, the text of the law with its inconsistencies constitutes the framework of the legal message, but the explicit political discourse of justification of the law, the identification of the interests at play, and the implicit language exhibited by the government and all the receivers of the law are all aspects to be considered. All these components can lead to identify the social change that is driving the law, although it may not be explicit. In fact, as Minow, Summers, and

Bourdieu have argued, most probably, the driving and most powerful goal of the law is not explicit. The identification of the driving force may be complex, abstract, and even undoable in many cases, but in the case of this law, there is abundant information and the facts are so compelling that the risk of misreading the message is minimal. As will be argued, there is sufficient evidence to assert that the JPL was intended to legalize the politico criminal network that has characterized the social practice of drug trafficking and armed conflict in Colombia. To support the argument, the case of the Constitutional 169

Court, the National Department of Security, and the selection process by the President will be discussed.

To advance the argument, I will take the text of the law in light of the social context to deepen the discussion started in chapter one about the problematic sections of the law.

The questions to be addressed are: was this law necessary to facilitate the termination of the conflict, or to facilitate peace negotiation processes? Is the exclusion of drug traffickers from the possible beneficiaries of the law actually an absolute exclusion? Does the law treat equally the members of guerrilla and paramilitary groups? Does the law make a distinction between illegal and legal assets of the illegal armed actors for purposes of protection of property rights? Does the JPL provide appropriate means to deal with the illegal assets that the armed groups or individuals have acquired throughout their involvement in the conflict? And do the common interests of peace and justice prevail over the interest of privileged groups involved in the conflict?

5.2. Unnecessary Law

I argue that this law, in the way it was presented, was unnecessary. Law 782 of 2002 was in place in 2005 to regulate peace negotiations processes and even judicial pardons to the armed groups opposing the official establishment. In fact, that same law had been the framework of peace negotiation processes with guerrilla groups in the past, as explained in chapter three. A great concern arises from the fact that while the JPL states that one of 170

its goals is to bring the members of the illegal armed actors to justice, and guarantee the rights of victims, the political discourse of justification claimed that the law was

supposed to facilitate the negotiation process between the government and paramilitary groups, and that process had commenced informally in 2003 and had later been formalized in 2004.

If one looks at the nature of this law and the legal system as a whole, one concludes that if the JPL was intended to facilitate a demobilization process and make judicial concessions to the illegal armed actors in general, there was no need for this law. The preexisting law had 782 of 2002 had been extended as many as three times because it contained the necessary tools to facilitate peace negotiations with the armed groups opposing the establishment, and in fact, negotiation processes with guerrilla groups had been pursued under this law. Although that law did no cover negotiations with paramilitary groups, it was unnecessary also with respect to negotiations with those groups. First, negotiations between the government and paramilitary groups had initiated and were in progress prior to the JPL, so there was no need for a framework to promote such negotiations. Second, the most fundamental point is the fact that paramilitary groups are, as demonstrated, no opponents to the establishment, and as such, political peace negotiations cannot take place. Therefore, there was no need for this type of law.

But, if the JPL was intended to establish particular amnesties and pardons for the illegal armed actors, it was only necessary with respect to the paramilitaries, because the 171

Constitution, the Criminal Code, and the Code of Criminal Proceedings and Law 782 of

2002 all complementarily establish the parameters for amnesties and pardons to insurgent

groups and their legal consequences, and for those amnesties and pardons, the President had already sufficient powers to decide in case of negotiations. Furthermore, the JPL was unnecessary as a piece of legislation to facilitate negotiations with both kinds of armed

groups, guerrillas and paramilitaries, as it declared, but the law was necessary to facilitate

a certain type of judicial criminal proceeding against paramilitaries, which the law does not state explicitly.

This assertion is also supported by a careful examination of the so-called complementary measures of the JPL; these measures are presented as marginal to the essence of the law, but in fact, I argue that they are the core of the law. A first element to highlight is the overt discrepancy or incoherence of those measures and the general body of the law. I argue that those "complementary measures" are the core of the law, particularly articles

69, 70 and 71 which deal with modifications to the crime of organized crime (or

"collusion to engage in criminal activity"), amnesties for past sentences and modification of the crime of sedition respectively.

Although aspects of these articles were briefly mentioned in chapter one, it is necessary to deepen the discussion because these articles provide an understanding of the ultimate goals of the law. First of all, article 69 clearly states: "... those who have demobilized 172 under law 872/02 can benefit from suspension of criminal prosecution under charges of collusion to engage in criminal activity..." However, the suspension of investigation does not exclude the charge of drug trafficking, which as was explained, is interconnected with collusion to commit crimes. Congress did not follow the proper legislative process for this type of bill as is mandated in the Constitution. This law is clearly creating a judicial system and shaping judicial pardons in favour of the armed actors, and in those cases, laws should pass approval in two legislatures, which was not the case.

Article 70 provides a reduction in punishment for old sentences, and since thi type of rule reducing sentence constitutes a substantive changes of criminal punishments, it should have also been discussed and approved in two legislatures. This was not the case. In art.

70, drug trafficking and crimes against humanity are excluded from the list of sentences which could be reduced in application of the JPL; however, no other criminal offences related to drug trafficking are excluded. This rule allows prior sentences for crimes such as illicit enrichment, testaferrato, and money laundering to be reduced, and the interesting part is that in those cases the sentence may also include additional measures such as fines or forfeiture of assets, which could also be reduced. With this, the law opens the door for legalization of illegal assets. 173

Finally, article 71 is essential to the law. This article is instrumental in facilitating the avoidance of extradition and ensuring impunity.

Clearly, the JPL provides a differential treatment to guerrillas and paramilitaries, and the latter can be considered to be beneficiaries of a preferential treatment. The

"complementary measures" of the law and the process of selection of beneficiaries are central components in facilitating the realization of the goals of drug traffickers and paramilitaries. But this realization commenced earlier than in the deliberations concerning the law. When the JPL came to force, an ongoing negotiation process was already taking place between the government and paramilitary groups; it had begun informally before 2004 and formally in 2004, and that process is crucial to understanding the social construction of the JPL. This negotiation process with the paramilitaries had been announced by the President in 2002, and a project of law with similar characteristics to the JPL had been presented to Congress by the government in 2003, but the project was unsuccessful. The negotiation process began under the framework of Law 782/02, but it provoked adverse reactions in the academic and political realms. The process was highly questioned under the argument that it was unreasonable for the national government to undertake a "peace negotiation process" with an associate, as these types of processes are meant to take place between adversaries. 174

In spite of the continuous challenges to the process, it continued and exhibited fluid communication and understanding between the government agents and the paramilitaries.

During the negotiations, the government designated a vast piece of land in San Jose de

Ralito, in the Northern region of the country, for the representatives of paramilitaries to stay during the negotiations, and the government also suspended bench warrants for all kinds of charges that had been issued by judicial authorities against those leaders of the paramilitaries including Mancuso, regardless of the fact that the US had requested his extradition under drug trafficking charges.

The parties involved in the negotiations exhibited fluid communication and understanding, which allows one to infer the existence of a common language. That communication was apparent prior to the negotiations, when in 2001 politicians, government agents, and the paramilitaries co-signed the "accord of San Jose de Ralito," which was an agreement for mutual political support, as explained earlier in this thesis.

Further, the visit of Mancuso to Congress in August of 2004 following invitation by the executive branch and legislators, became the event that signaled the political rationale of the criminally exploitable tie, as he stated that paramilitaries defended government institutions, and for that reason, they should be forgiven for their crimes. Moreover, this fluid communications was evident in the 55 meetings between the government and paramilitary -drug trafficking groups during the less than three years from exploratory dialogues to the end of the negotiation process, while the government held just 12 175 exploratory meetings with the guerrillas of the ELN and no meeting with the guerrillas of the FARC, as indicated earlier. But perhaps the most telling event for understanding the common language and fluid communication was the Presidential decision on the extraditions of Mancuso and Carlos Castano, leaders of the paramilitaries, and Ricardo

Palmera, leader of the FARC. These three illegal armed leaders had been requested to be extradited to the US to face drug trafficking charges, and in particular the guerrilla leader also was to face charges for kidnapping for terrorist purposes (arguable criminally motivated crime). On one same date the President decided to authorize the extradition of all three persons. However, he suspended the extradition of the two paramilitary leaders under the argument that they should remain in the country for the peace process, while he ordered the execution of the extradition of the guerrilla leader, regardless of the

Constitutional prohibition in those cases.

This decision made clear the lonkages between the paramilitaries and the legal establishment and the foundational elements of the WOD as indicators of the environment in which the JPL was issued. Conclusions can be derived from this decision. (1) The intention of the government to fight against drug trafficking was

223 The decision was made by the President on November 17 of 2004. See El Tiempo, "El Presidente, autoriza extradicion de Mancuso a Estados Unidos," Nov. 17. 2004 at http://www.terra.com.co/actualidad/nacional/17-12-2004/nota214090.html , visited Nov. 19, 2004. 224 See Le Monde, Reuters, RCN, "Corte Suprema Autorizo la Extradicion a Estados Unidos de Salvatore mancuso, Carlos Castano y Simon Trinidad, 25/11/2004, on authorization of the extraditions, at http://www.educweb.org/webnews/ColNews-Nov04/Spanish/Articles/laCoursupremeautoriselext.html. visited march 15, 2006. See also The New York Times, "Colombia Extradites a Top Guerrilla Leader," Dec. 31,2004. 176 questionable, as the government selectively decided that just the guerrilla leader should be extradited to face the criminal charges in the US, while the paramilitaries would remain in the country with no investigation. (2) The motivation of the government goes back to the counterinsurgency policy that has characterized the WOD. (3) The decision stretched the Constitutional discourse; extradition for political crimes is not permitted under Constitutional Law, but in this case the extradition for an alleged politically motivated crime was authorized and executed. With these decisions and the related events, the fluid communication between the paramilitaries-drug traffickers and government agents was made apparent, and the JPL was presented, discussed, and approved in Congress.

5.3 Law Making Process: Prioritizing Private Interests

The law making process concerning the JPL proves that its instrumentality was determined by the ongoing demobilization process of the paramilitaries, as the law was intended to be the specific framework for that process. This assertion is demonstrated in the fact that although the negotiation process and the demobilization of paramilitaries was in place, the Minister of Internal Affairs filed the project of law with Congress, and the law was intended to bring credibility to that process, as stated by the minister in the motivations of the project. ~ This statement summarizes the motivations behind the law,

Casa de Narino, Presidencia de la Repiiblica de Colombia, "Gobierno Radico Proyecto de Justicia y Paz," February 9, 2005. Available at http://www.presidencia.gov.co/sne/2005/febrero/09/10092005.htm visited July 26, 2006. par. 2. 177 and the government pointed out that contrary to the expected generality of the law, this law had specific addressees. Those addresses were primarily the parties involved in the negotiation process, and by looking at the motivations of the project one finds that a central objective was to grant judicial benefits to paramilitaries. I would suggest that the serious nature of the crimes associated with the conflict posited a difficult question to the government in light of the universal legal prohibition to grant amnesties and pardons for crimes against humanity. The government resolved this issue by simply stating that the purpose of the law was neither to create amnesties nor pardons, and yet, the government stated that it would grant judicial benefits to the illegal actors simply "according to their effort or contribution towards peace." 26

The process of the project in Congress demonstrates that drug trafficking was at the core of this law, and that the exercise of political discretion to assess this behaviour was emphasized throughout the process. This statement is inferred from the text of the motivations of the law and the attitude of government officials and paramilitaries throughout the process. In the motivations the government stated that the selection of beneficiaries of the law would be a duty of the national government, but that this could not be considered an intromission of the executive branch of government in the administration of justice; it was argued that the government intervention was justified by the political nature of the conflict and the judicial power would provide its own judicial

Casa de Narino, Ibid, par. 6. 178 assessments. The government, however, did not include the modification of the crime of sedition in its first project, and that project was circulated to national and international organizations as the framework for peace negotiations processes in Colombia; however, the government filed further modifications to that project and included the modification of art. 438 of the Col. C. C. in relation to the crime of sedition. With the modifications in place, legislators ignored the fact that this law should have been processed and discussed in two legislatures and approved by an absolute majority, as the bill created a judicial system and granted amnesties and pardons. The law was processed in one legislature

(filed in February and approved in June of 2005) and it was approved by a simple majority.

While the law was processed and approved in Congress, the demobilization of paramilitaries had continued, and 34,324 persons admitted to have been paramilitaries and got demobilized between 2003 and June of 2006. During that period of time a total of 6,799 guerrilla members also demobilized in accordance with the law 782 of

2002, but they did so on the individual basis.229 It is needless to note that these demobilizations demonstrate that the JPL was not necessary for the demobilization of armed actors. In spite of the numerous demobilizations, the conflict is still ongoing, and particularly, the presence of paramilitaries is still ongoing, although in April of 2006 the

227 Casa de Narino, Ibid par. 7, 8, 9. 228 See http://www.presidencia.gov.co/resultados/2006/desmovilizados_Q6.pdf, "Desmovilizacion" and http://www.altocomisionadoparalapaz.gov.co. "Proceso de Paz con las Autodefensas: Informe Ejecutivo, Junio, 2006, also Listas de Desmovilizados Colectivos-Postulados, Junio 20, 2006. 179

Peace Commissioner of Colombia stated that paramilitaries were not involved in the armed confrontation any longer.230 Continuous reports by the Inter-American

Commission for Human Rights have made public serious concerns about the lack of clarity and commitment of the AUC in processes of demobilization, truth, reparation, and reconciliation.231 These demobilizations also help understand that the alleged urgency of the law was not such, not only because demobilizations were taking place, but also because it took one year for the government to commence the implementation of the law, and as of December of 2007 no sentence has been issued in application of the JPL.

As demonstrated, legislators focused on the particular interests of the dominant groups leading the change that I claim rather than on the prospects for peace, reparation, truth and justice. Their attitude and the language used in the law are indicators that the law was addressed towards those particular groups rather than towards society as a whole.

5.3.1 Silence of the Constitutional Court

The Colombian Commission of Jurists, on behalf of the victims, filed a constitutional challenge against the JPL with the Constitutional Court (The Court), and the rulings of

The Court demonstrated that it also received and understood the undeclared message of

230 See, Alto Comisionado de Paz, "Declaraciones del Alto Comisionado Para la Paz Luis Carlos Restrepo," April 17, 2006 at http://wvvw.altocomisionadoparalapaz.gov.co/noticias/2006/abril/abril_17_06a.htm visited June 12, 2006.

231 See Inter-American Commission for Human Rights, "Informe Sobre el Proceso de Desmovilizacion en Colombia," Dec. 13, 2004, at http://www.cidh.oas.org/countrvrep/Colombia04sp/ResEiec.htm, visited June 12,2006. 180 the law. The silence of The Court with respect to substantive matters shapes what Teitel has called transitional jurisprudence; with its silence, The Court opened doors for the realization of the social change that I claim in this thesis.

The challenge involved a procedural argument seeking a ruling on the unconstitutionality of the JPL as a whole on the basis of the incorrect process through which the law had passed in Congress. It was argued that according to the Constitution, the law should have been processed as a statutory law, because it created a new criminal system that affected the administration of justice, and that it created amnesties and pardons. The challenge also involved substantive charges seeking a ruling on the unconstitutionality of 32 of the

74 articles of the JPL, claiming that those articles breached constitutional norms and

International Humanitarian Law and Laws of War, which are integrated into the

Constitution. The submissions for the constitutional challenges were widely supported

9^9 by international organizations, which filed their own submission as amicus curie.

The main substantive arguments of the challenge can be summarized as follows: it was argued that the law violated the principles of reasonableness of criminal punishment, legality, and it did not protect the rights of the victims to truth, reparation, and justice, which are fundamental principles in the Rule of Law in Colombia. The lenient

The international Commission of Jurists, the International Center for Transitional Justice, the Centre for Justice and International Law, and the Wales Bar Human Rights Committee filed submissions with the Court, and the arguments were in tune with those of the Colombian Commission of Jurists. See various submissions of the "amicus curiae" organizations at http://www.coliuristas.org/ visited April 28,2006 181 punishment created was considered to be unreasonable in light of the severity of the crimes involved in the potential proceedings. The modification of the crime of sedition and the modification of prior sentences were considered to be the foundation for the alleged breach to legality. The inappropriate or inexistent mechanism of enforceability of the rights of the victims was the argument for the alleged lack of protection of the rights of victims. Further, in relation to the complementary rules, the Commission submitted that (1) the inclusion of paramilitaries as political opponents of the government constituted a breach to the principle of legislative unity, which is the mandate that all the rules included in a piece of legislation should be harmonic. It was argued that art. 71 created the possibility of pardons and amnesties forparamilitari.es, which according to the

Constitution can only happen in the case of political crimes. (2) The reduction of previous sentences and the amnesties of this law were considered violatory of the principles of legality, and equality.

The Court ruled on the procedural and substantive issues separately, and both decisions follow the undeclared but desired social transformation. In sentence 319/06, The

Court surprisingly stated that the JPL does not modify the administration of justice, as it just creates a model for reconciliation with a particular criminal proceeding and a specific punishment. Further, The Court argued that the JPL created neither pardons nor amnesties. As a consequence, The Court ruled that the enactment of the law in Congress

"" The Court ruled on procedural issues in sentence C- 319/06 of April 24, 2006 and on the substantive issues in sentence C-370/06 of May 18 of 2006. 182 was constitutional.234 The argument of the Court did not include a substantive discussion about the concept of justice in the context of the Colombian Rule of Law, nor did it discuss the notions of amnesties and pardons, although both of these topics were proposed by the submitters. This decision of the Court distorts the very nature of the law and posits serious questions about the prevalence of the Rule of Law.

In sentence C-370, The Court ruled on substantive charges, and although The Court acknowledged that the rights of victims were not effectively protected, it did not rule in substance with respect to the articles that facilitate the transformation of drug trafficking.

This substantive silence constitutes an unusual Constitutional ruling; The Court gave great priority to technicalities in its argumentation, and it took on a legislative role with respect to five of the articles. This is troublesome. The Court abstained from making any substantive decision in relation to 10 charges, arguing procedural reasons. The Court declared 24 of the sections to be constitutional, but it clarified and gave meaning to five sections and created exceptions in another three. Finally, The Court declared 13 articles to be unconstitutional. In the case of 11 articles, The Court provided some substantive reason for its decision; however, only in the two articles that I have identified as crucial for the transformation of drug trafficking, The Court simply stated that articles 70 and 71,

"~ See Sent. C-319/06 at Col. Constitutional Court, http://www.constitucional.gov.co/, visited July 14, 2006. ~ 5 Although this decision extends is over 380 pages (letter size) long, 189 are just the copy of the original text of the law, and some of the sections of the ruling about central matters do not present much legal argumentation and do not go over five lines. The Court does not speak to the topics of justice, peace and truth at length, which constitutes an unusual silence of the Court. 183 on sedition and reduction of prior sentences, were both unconstitutional "for procedural reasons." The substantive silence of The Court in this regard is critical to the undeclared purposes of the law, because the Court opened doors for future legal reforms to change the nature of the crime of sedition as desired.

With respect to the last two articles, it is unreasonable that The Court did not reply to the substantive arguments proposed in the submission and that it based its decision mostly on alleged technical deficiencies in the law making process. It is more unreasonable because, in essence, the technical deficiencies attributed to the submission would then have to reject to whole constitutional challenge, if these were actually existent. It is apparent, that there was also a need to complement, "improve" and adjust the JPL through a Constitutional level decision. Although this decision is worth an extensive study, here I will refer to the articles that mostly relate to drug trafficking and the rights of victims.

The Court abstained from making any decision in regard to article 69, which is the article for amnesties regarding the crime of "agreement to commit crimes" (organized crime).

Also, the Court abstained from deciding on the complementary character of this law with law 782 of 2002. The Commission of Jurists had challenged the section on the selection of beneficiaries by the executive branch of government, but the Court abstained from deciding on this charge, arguing lack of procedural requirements in the submission. The 184

Court abstained from deciding in regard to the rule on the hearing for reparation, which also had been challenged (art. 23). The consequence of the silence of the Court in these aspects is that the norms remain in force.

The Court modified the original rule with respect to the statement of the accused in that the accused should tell the truth in his or her version, but the version remains free of oath, and there is no mechanism of enforceability of the truth. In regard to the protection of victims, The Court ruled that the illegal actors should give up to the authorities both licit and illicit assets in order to compensate their victims, and for this purpose, The Court declared the relevant phrases of the law unconstitutional. The Court declared unconstitutional the section of rules 10, 11 - i.e. the sections about the obligation to return assets "when possible." This decision results in more significant protection to victims.

But the non-retroactive nature of the decision of the Court is perhaps more telling than the various sections of the law. This is so because all the political measures that had been executed following the rationale of the JPL and prior to the decision of The Court continued to have legal effects, although unconstitutional. Such was the case of the suspension of bench warrants in favor of the paramilitaries under the assumption that they were political opponents of the official establishment. The non-retroactive decision results in an evident violation of the principle of equality before the law, a fundamental 185 aspect of the Rule of Law. The effects of the decision replicate a common legal phenomenon in Colombian culture, as Garcia Villegas has pointed out; he argued that this culture is debated between legality and illegality. He explained that the declaration of a state of exception had been a typical example of this phenomenon in the past, since

Presidents used to issue exceptional norms in response to drugs and terrorism. In most cases, as he explained, these norms were declared to be unconstitutional, but the decision was adopted after the laws had achieved its particular goals. This is also the case of the JPL, as argued in this paper.

5.3.2 The Liaison DAS, Paramilitaries, and Drug Trafficking

The law enforcement agencies, in particular the National Department of Security

(DAS)," also understood the undeclared message of the JPL, and in deed, it has facilitated the selective inclusion of drug traffickers in the government list of beneficiaries of the JPL. This enforcement agency is in charge of keeping the criminal record of citizens and immigration control, which are both essential duties in the implementation of the JPL. The review of the criminal record is a fundamental requirement to be a beneficiary of the JPL, and the control of migration is critical for criminal investigations and detention activities for both local proceedings and extradition

Mauricio Garcia Villegas, "Constitucionalismo Perverso. Normalidad y Anormalidad Constitutional en Colombia: 1957-1997" in Bonaventura de Sousa Santos and Mauricio Garcia Villegas, El Caleidoscopio de las Justicias en Colombia Tomo I (Bogota: Siglo del Hombre Editores, 2001) 317 at 349-364. 237 Departamento Administrative de Seguridad (DAS). 186 purposes. It has been public knowledge that the criminal records of drug traffickers and paramilitaries have been erased from the registry of DAS in recent years.

In November 2004, the Office of the Attorney General initiated a criminal investigation against the Director of the DAS, Jorge Noguera, regarding corruption for illegal investment of the public budget pertaining to this institution, and in 2005, the Office commenced a new criminal investigation against Noguera concerning charges for electoral crimes during the elections of 2002. He was considered to have cooperated with paramilitary groups during the presidential campaign of 2002, especially in the Northern region of the country in favour of candidates who also supported the Presidential campaign of Uribe Velez. Today, Noguera is facing a criminal investigation and is under charges for corruption and electoral crimes. The Director of the Unit for Information

Technology of the DAS, Rafael Garcia Torres, was brought to justice for those acts, and he admitted to some of the charges and gave a statement about the events. In his statement, Garcia declared that he and the Director Noguera had been involved in a series of corrupt activities, that the DAS was working closely on intelligence and military activities with paramilitary and drug trafficking groups based on the North Coast, and that that criminal records of members of those groups under extradition proceedings had been erased from the data base of the DAS. Moreover, he declared that in the elections of 2002 paramilitary groups and politicians of the Northern Region supported President

238 The criminal investigation is directed by the National Prosecutor himself, and is still ongoing; thus the in the instructive stage and the National Prosecutor is directing personally this investigation. 187

Tig Alvaro Uribe and a group of members of Congress. He also declared that Jorge

Noguera had been working cooperatively with paramilitaries and private multinational

companies in the Northern Region to kill and forcibly disappear social activists, union

leaders, and human rights defenders. According to a newspaper, Garcia referred to the

case of the assassination of professor Correa de Andreis in Barranquilla and the union

leader Zulty Cottina.240

Although Director Noguera is still formally innocent, the circumstances in which the investigation emerged provide reasons to believe that, in fact, criminal records were

deleted and that the DAS served the implicit goals of the JPL for the benefit of paramilitaries and drug traffickers. This might be seen as an isolated case of corruption, but the facts that Noguera had been the Director of the political campaign of Alvaro

Uribe in one of the provinces of Colombia and that he was designated by Uribe to Direct the DAS demonstrate that the actions of the DAS cannot be considered isolated cases.

On the contrary, it is reasonable to suggest that these acts of corruption are part of a larger picture that includes the execution of the political plan of the groups in power.

This suggestion gains more weight if one looks at the unconditional support that

President Uribe offered to Noguera as soon as the facts were known; at that moment,

Noguera was appointed by Uribe to be the Consul in Italy. This protection by President

239 Semana, Entrevista Exclusiva con Rafael Garcia of 04-08-2006, available at http://www.semana.com/wf InfoArticulo.aspx?IdArt=93812 visited, November 23, 2006. See Semana, idem. 188

Uribe lasted until May of 2006 when the President asked Noguera to return from Italy

and face the criminal charges, which has led to his present detention pending trial.

5.3.3 The President and the Selection Process

Large-scale drug traffickers have been included as beneficiaries of the JPL and have received the major benefits that the law offers. Those benefits include avoidance of extradition, legalization of assets, and impunity for severe charges. Impunity and the avoidance of extradition are made apparent from the significant discrepancy between the total number of demobilized persons and the total of beneficiaries of the law. The numbers indicate that the goal was not justice but the legalization of the social practices of a small group of illegal actors. Out of the total of 34,324 persons who demobilized as alleged paramilitaries, just 5,110 persons have been chosen by the President and the High

Commissioner for Peace to be prosecuted under this law, while the others may or may not face any criminal prosecution. Out of that number, there are 24 people, allegedly large- scale drug traffickers who were requested to be extradited to the US. This is the case although in the first instance the law excluded drug traffickers. The important fact to be noted is that those 24 participated actively in the negotiations with the government and that during the negotiations the government was aware of the existence of drug trafficking charges in the US; thus, one can argue that since the government accepted

241 Since the criminal investigation is ongoing, it has judicial reserve, however, Garcia has provided information that has been made public and is available at El Espectador, "DAS : Las Piezas Sueltas del Ventilador de Garcia" at http://www.elespectador.com/historico/2006-04-15/contenido_MI-9999.htm, visited July 29, 2006. 189

negotiations with them, issued the suspension of bench warrants and extradition

procedures, and included them as beneficiaries of the JPL, the government facilitated

these objectives of a private nature. Certainly, before the implementation of the

criminal proceeding under the JPL, this law had already achieved its superior goals.

That selection of beneficiaries has demonstrated the interference of the executive branch

of government in the administration of justice, and the use of political discretion as the prevalent criterion of selection; these factors are contrary to the essential component of the Rule of Law, which is the avoidance of arbitrariness. Beside the case of Mancuso, which has been mentioned, the case of Juan Carlos Sierra is also demonstrative of this claim. In 2005, this person was under process of extradition on charges of drug trafficking in response to a request made by the US. This person is allegedly a mere large-scale drug trafficker, but he initially attempted to demobilize as if he were a paramilitary person, which the President did not accept. In March of 2005, the President said with respect to him: "...he was solely a drug trafficker and he was posing as a paramilitary... and I publicly said that I did not accept this... that that background can not be forgotten." However, on August 10, 2006, the President reversed his decision and simply accepted him as a paramilitary; the President has declared that Sierra will not be

See El tiempo, Tribunal Superior de Bogota ordeno suspender extradicion de desmovilizados de las AUC" April 6, 2006. 190 extradited if he complies with the conditions of the JPL. Instead of facing a criminal procedure and judgment to establish the involvement in drug trafficking, Carlos Sierra was object of political discretionary decision in relation to the crime of drug trafficking.

5.4 Conclusion

It has been demonstrated that the JPL is one more step in the war against drugs and

terrorism, and the law follows the traditional approach of such wars, including vague

language, counterinsurgency purposes, and implementation of a certain kind of

economic development model, although the law is said to deal with the termination of

the conflict.

The construction of the meaning of this law in society indicates that its instrumental aims

are not achievable through the law, but the undeclared goals lead to the construction of

its symbolic meaning. Both the various substantive and procedural rules of the JPL and

its implementation demonstrate that this law fails in facilitating the goals it declared.

Instead, it facilitates a change in the nature of drug trafficking from a common crime to a

mainly political matter under discretionary judgment. Through vague language and

omissions, the law becomes ineffective in the protection of the rights of victims.

243 See El Tiempo, "Presidente Alvaro Uribe Reconsidero Decision de Extraditar a Juan Carlos Sierra a Estados Unidos" Agosto 18, 2006 at http://www.eltiempo.com/iusticia/2006-08-19/ARTICULO-WEB- NOTA INTERIOR-3164862.html visited August 18, 2006. 191

Victims have no access to construct the truth in criminal proceedings, compensation measures rely on the good faith of the illegal actors, and justice is based on deficient investigation, light punishment, and political judgment. These circumstances alter the

Rule of Law, in particular, the principles of equality before the law, impartiality, and legal authority. 192

6. CONCLUSIONS

This thesis has presented a study of the so-called Justice and Peace Law under the paradigm of law and social change. The study evolved on the basis that law is not just the written text but rather, the relationship between that text and the law making, law enforcement, and adjudication processes. This social continuum of law draws attention to the construction of the meaning of law in society, an essential component of legal consciousness, and in turn, legal consciousness constitutes the basis for social change.

Language (either explicit or implicit) and communication between the various actors involved in the continuum of law play central roles in the construction of legal consciousness. But, since language and communication are matters subject to interpretation, and as such, may become merely subjective, a reasonable approach that has been suggested here tends to build its comprehension on the basis of the prevalent conflict of interests in society.

The JPL was presented as a Criminal Law to facilitate the most desirable change in

Colombian society, which is the change from conflict to peace. Although issued under the framework of the wars on drugs and terrorism, this law does not directly address the problems of drug trafficking and terrorism; instead, the JPL attempts to engage the illegal armed actors in the demobilization process by creating a criminal proceeding through 193 which these actors can be prosecuted and receive judicial benefits for the crimes that they committed during the conflict. In addition, this law attempts to respond to the victims of the conflict by setting the rights of victims to truth, justice, and reparation as leading principles of the law. In its structure the law follows schemes of transitional justice, as it creates a lenient criminal prosecution system, and in this case that system is shaped by a combination of retributive and restorative elements. However, as was demonstrated, the law is not a post-conflict one, as it does not involve the social transition that it announces.

In contrast, as was argued throughout this thesis, the JPL facilitated the transformation of drug trafficking from being a criminal matter subject to legal and judicial judgment to being a matter subject to political discretionary judgment.

The JPL is presented as a post-conflict law, as it gives the executive branch of the national government a central role in the implementation and execution of the law and creates a lenient punishment and judicial benefits; however, as was demonstrated, the JPL is not a post-conflict law. The law does not facilitate an end to the conflict. Assuming that the law pursues justice, it was explained how the formulas of the law do not lead to this objective. The lenient punishment of imprisonment of between five to eight years created in this law constitutes a rather unreasonable punishment in light of the severity of the crimes committed during the conflict. The various benefits, including the amnesty or termination of ongoing criminal investigations regarding charges of "organized crime," the pardons represented in the change and reduction of prior sentences, and other 194 procedural benefits are not acknowledged as such in the JPL. But the legislature omitted to name these benefits as amnesties and pardons for a particular reason, as exposed by the government in the motivations for the law. Amnesties and pardons cannot proceed for crimes against humanity and crimes of war; thus the legislator opted for naming these benefits just as benefits, but these are included in the law as complementary measures.

The formulas and methods of the JPL facilitate the realization of the interests of the groups involved in the identified criminal network; it facilitates the avoidance of extradition, legalization of illicit assets, the application of discretional rather than judicial judgment of paramilitaries and their associates, the mere large-scale drug traffickers, and the legalization of paramilitary activities as a state policy.

It was demonstrated that the JPL as a whole serves the purposes of drug traffickers, paramilitaries, and government officials engaged or connected to criminal activity, but in particular, article 71 can be considered the core of the law in relation to the crime of drug trafficking and the implementation of the wars on drugs and terrorism. Article 71 appears under the label of "complementary matters," although it modifies the Criminal

Code in relation to the crime of sedition. This article of the law states that paramilitaries can also commit the political crime of sedition, which is describes as the transitory disruption of the political and constitutional order. This change in the Criminal Code distorts the history that paramilitary groups have exhibited; as explained, these groups 195 have worked in cooperation with government institutions since their inception and do not oppose the political and constitutional order. This change also constitutes the basis for paramilitaries to avoid extradition to the US. This is so because, according to

Constitutional rules, extradition of nationals associated with political crimes is prohibited, and by including paramilitaries as addressees of the crime of sedition, the law is opening the doors for them to avoid this measure of international cooperation. And the legalization of assets is allowed through various rules, including articles 69 and 16; through these rules the law allows illegal actors to freely decide the assets that they desire to surrender to the authorities and to obtain reductions and changes for prior sentences, which may include forfeiture of assets. In addition, when the law sets the requirements to be a beneficiary of the law, the law makes no mention as to the criteria to identify illicit from licit assets owned by the illegal armed actors and to establish the possible connection to drug trafficking; these loopholes of the law lead to the legalization of illegally acquired fortunes and political judgment of that crime.

The social practice of this law has demonstrated that this whole message of the law has

been well articulated through explicit and symbolic language, and evidence so supports.

The most significant situation to support this statement is the fact that the national

government led a negotiation and demobilization process with paramilitary groups 196

The social change that this law promotes was fostered by the social context. In that context, public appearances of government officials with paramilitaries and drug traffickers, as well as the public acknowledgment by some members of congress about their close ties with paramilitaries are widely known. With this anomalous reality, it was explained how the legislature was highly influenced by the interests of these groups.

The Constitutional Court has ruled on constitutional challenges against the JPL, and although The Court acknowledged some inconsistencies of the law in the protection of victims, the Court was silent in regard to those sections that are mostly related to the transformation of drug trafficking. The DAS, a law enforcement agency has been shown to be engaged with paramilitaries and drug traffickers in military and intelligence activities, and in exchange the DAS has erased the criminal records of those illegal actors, which is crucial for the implementation of the JPL. The President has chosen a group of illegal actors to be prosecuted under this law, but he has applied arbitrary criteria that have resulted in the avoidance of extradition for drug trafficking entrepreneurs. 197

BIBLIOGRAPHY

Christian M. Allen, An Industrial Geography of Cocaine (New York and London: Routledge, 2004)

Felia Allum and Renate Siebert, eds., Organized Crime and the Challenge to Democracy (London and New York: Routledge Taylor and Francis Group, 2003) Sayaka Fukumi, "Drug Trafficking and the State: The case of Colombia" 93- 111

Kai Ambos, Control de Drogas: Politica y Legislacion en America Latina, EE. UUy Enropa. Eficacia y Alter nativ as (Bogota, Ediciones Juridicas Gustavo Ibanez, 1998)

Mauricio Aranguren Molina, Mi Confesion: Carlos Castano Revela sus Secretos, 8a. Ed. (Bogota: Editorial La Oveja Negra, 2002)

Margaret E. Beare, ed., Critical Reflections on Transnational Organized Crime, Money Laundering, and Corruption (Toronto, Buffalo, London: University of Toronto Press, 2003) Juan Ronderos, "The War on Drugs and the Military: The Case of Colombia" at 207 James W. Williams and Margaret Beare, "The Business of Bribery" at 88 - 118

Begona Aretxaga et al. eds., (Reno, Nevada: Center for Basque Studies, University of Reno, Nevada, 2004) Chris Hables Gray, "The Second Cold War and Postmodern Terror" 227

John Bailey and Roy Godson, eds., Organized Crime and Democratic Governability (Pittsburgh: University of Pittsburgh Press, 2000) at 33 & 39 Stanley A. Pimentel, "The Nexus of Organized Crime and Politics in Mexico" at 33-39

David Boyum and Peter Reuter, An Analytic Assessment of U.S. Drug Policy (Washington D.C.: American Enterprise Institute Press, 2005)

Michael E. Brown, The International Dimensions of Internal Conflict (London: The MIT Press, 1996) 198

Cesare Beccaria, On Crimes and Punishments, Trans, by David Young (Indianapolis: Hackett Pub. Co., 1986)

Peter Cane, Responsibility in Law and Morality (Oxford - Portland Oregon: Hart Publishing, 2002)

Alvaro Camacho Guizado and Andres Lopez Restrepo, "Perspectivas Criticas sobre el Narcotrafico" in Alvaro Camacho Guizado Andres Lopez & Francisco Thoumi, Las Drogas: Una Guerra Fallida, Visiones Criticas (Bogota: Tercer Mundo Editores, 1999)

Benjamin N. Cardozo, The Paradoxes of Legal Science (New York: Columbia University Press, 1928)

Colectivo de Abogados Jose Alvear Restrepo, Terrorismo o Rebelion: Propuestas de Regulacion del Conflicto Armado (Bogota: Panamericana Formas e Impresos S.A., 2001) at 115-161.

Comision Colombiana de Juristas et al., Seminario Internacional Verdady Justicia en Procesos de Paz o Transicion a la Democracia 2n Ed. (Bogota: Acabados Graficos R & R, Oficina Colombiana del Alto Comisionado de las Naciones Unidas para Derechos Humanos, Cinep, Comision Colombiana de Juristas, Fundacion Social, Programa por la Paz-Compania de Jesus, 2003)

Roger Cotterrell, Emile Durkheim: Law in a Moral Domain (Stanford, California: Stanford University Press, 1999)

Rusell Crandall, Driven by Drugs: US Policy Toward Colombia (Boulder, London, Lynne Reinner Publishers, 2002)

Costas Douzinas and Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice (Oxford and Portland, Oregon: Hart Publishing, 2005)

David Dyzenhaus, "With the Benefit of Hindsight: Dilemmas of Legality in the face of Injustice," in Christodoulidis and Veitch (eds.), Lethe's Law: Justice, Law and Ethics in Reconciliation (Oxford: Hart, 2001) at 66

Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2004)

Nigel G. Fielding, Alan Clarke & Robert Witt, eds., The Economic Dimensions of Crime (U.K. & New York: St. Martin's Press, 2000) Gary Becker, "Notions of utility, supply and demand" 199

Lon Fuller, The Morality of Law (New Haven and London, Yale University Press, 1964) at 133-151.

Diego Garcia Sayan, ed., Coca,Cocainay Narcotrafico: Laberinto en los Andes (Lima: Comision Andina de Juristas, 1989) Alvaro Camacho Guizado, "Colombia:Violencia y Narcocultura" at 192

Mauricio Garcia Villegas, La Eficacia Simbolica del Derecho: Examen de Situaciones Colombianas (Bogota, Ediciones Uniandes, 1999)

Javier Giraldo M., S. J., Busqueda de Verdady Justicia: Seis Experiencias en Post Conflicto (Bogota: Ediciones Antropos Ltda., Cinep, 2004).

Jurgen Habermas, Moral Consciousness and Communicative Action (Cambridge, Massachusetts: The MIT Press, 1995)

P.M.S. Hacker and J. Raz, eds. Law, Morality and Society (Oxford: Clarendon Press, 1977) R. S. Summers, "Naive Instrumentalism and the Law" P.R. Lucas, "The Phenomenon of Law"

H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961)

Alan Hunt and Gary Wicham, Foucault and the Law: Towards a Sociology of Law as Governance (London, Boulder, Colorado: Pluto Press, 1994)

Douglas Husak and Peter de Marneffe, The Legalization of Drugs: For and Against (2005: New York, Cambridge University Press)

Instituto de Estudios Politicos y Relaciones Internationales, Universidad National de Colombia, Plan Colombia: La Internacionalizacion del Conflicto (Bogota: Editorial Planeta Colombiana S.A., 2001) Socorro Ramirez , "La Internacionalizacion del Conflicto y de la Paz en Colombia" at 13

Edward J. Littlejohn, "The Efficacy of Law Promoting Social Change: For Lawyers" 1976Det. C.L. 23 1976

Andres Lopez Restrepo, "Conflicto Interno y Narcotrafico entre 1970 y 2005" in Alfredo Rangel ed., Narcotrafico en Colombia: Economia y Violencia (Bogota: Editorial Kimpres Ltda., Fundacion Seguridad y Democracia, 2005) Niklas Luhmann, A Sociological Theory of Law Trans, by Elizabeth King and Martin Albrow (London, Boston, Melbourne and Henley: Routledge & Kegan Paul, 1985)

Steven Lukes and Andrew Scull, Durkheim and the Law (Oxford: Martin Robertson & Company Ltd., 1983)

Jean-Francois Lyotard, La Condicion Postmoderna: Informe Sobre el Saber, Trans, by Mariano Antolin Rato (Madrid: Catedra Teorema, 1994)

Alfredo Molano, Loyal Soldiers in the Cocaine Kingdom: Tales of Drugs, Mules and Gunmen, Trans, by James Graham (New York: Columbia University Press, 2004).

Robert F. Meagher, ed., Law and Social Change: Indo-American Reflections (Bombay: N.M. Tripathi Pvt. Ltd., 1988) Robert F. Meagher and David Silverstein, "Law and Social Change"

David F. Musto, and Pamela Korsmeyer, The Quest for Drug Control (New Haven and London: Yale University Press, 2002)

Observatorio Colombiano de la Administracion de Justicia, Independencia en Juego: El caso de la Fiscalia General de la Nacion (2001-2004) (Bogota: Publicaciones ILSA, 2005)

Alan O'Day, ed.s, War on Terrorism (Hants, England: Ashgate Publishing Limited, 2004) Ronald D. Crelinsten, "The Discourse and Practice of Counter-Terrorism in Liberal Democracies" 233-257

J. Raz, Law Morality and Society (Oxford: Clarendon Press, 1977)

Alfredo Rangel, ed., Narcotrafico en Colombia: Economia y Violencia (Bogota: Editorial Kimpres Ltda., Fundacion Seguridad y Democracia, 2005) at 224 Ricardo Rocha Garcia, "Sobre las Magnitudes del Narcotrafico" Andres Lopez Restrepo, "Conflicto Interno y Narcotrafico entre 1970 y 2005" 216,217. Gustavo Duncan, "Narcotraficantes, mafiosos y guerreros. Historia de una Subordinacion" at 61

Angelica Rettberg, (ed.), Entre el Perdon y el Olvido: Preguntas y Dilemas de la Justicia Transitional (Bogota: Universidad de los Andes, Programa de Investigacion sobre Construccion de Paz, 2005) 201

Rodrigo Uprimny and Maria Paula Saffon, Justicia Transicional y Justicia Restaurativa: Tensiones y Complementariedades 211-232 Peter Reuter, Gordon Crawford & Jonathan Cave, Sealing the Borders: The Effects of Increased Military Participation in Drug Interdiction (Santa Monica: RAND Corporation, 1988)

Ricardo Rocha Garcia, La Economia Colombiana tras 25 anos de narcotrafico (Bogota: Siglo del Hombre Editores, Programa de las Naciones Unidas para la Fiscalizacion Internacional de Drogas UNDCP, 2000)

Cristina Rojas and Judy Meltzer (eds.), Elusive Peace (New York: Palgrave Macmillan, 2005) at 29-35 Burce Michael Bagley, "Drug Trafficking, Political Violence, and U.S. Policy in Colombia under the Clinton Administration " Alvaro Camacho Guizado, "Plan Colombia and the Andean Regional Initiative: The Ups and Downs of a Policy" Franciso Thoumi, "Why a Country Produces Drugs and How this Determines Policy Effectiveness: A General Model and Applications to Colombia" 157-162.

Claus Roxin, Derecho Penal: Parte General, Trans, from Germany by Diego Manuel Luzon Pena, Miguel Diaz y Garcia Conlledo & Javier de Vicente Remesal (Madrid: Editorial Civitas, S.A., 1997)

Gonzalo Sanchez and Donny Meertens, Bandits, Peasants and Politics: The Case of 'La Violencia' in Colombia, trans, by Alan Hynds (Texas: University of Texas Press Edition, 2001)

Ian Shapiro, The Rule of Law (New York: New York Unviersity Press, 1994)

Hanneke van Schooten, ed., Semiotics and Legislation (Liverpool: Debora Charles Publication, 1999) Willem J. Witteveen, "Significant, Symbolic and Symphonic Laws: Communication through Legislation" 27-70

Bonaventura de Sousa Santos and Mauricio Garcia Villegas, El Caleidoscopio de las Justicias en Colombia Tomo I (Bogota: Siglo del Hombre Editores, 2001) Mauricio Garcia Villegas, "Constitucionalismo Perverso. Normalidad y Anormalidad Constitucional en Colombia: 1957-1997" at 349-364.

Doug Stokes, America's Other War (London and New York: Zed Books, 2004) Ruti G. Teitel, TransitionalJustice (Oxford: Oxford University Press, 2000)

Francisco Thoumi, Illegal Drugs, Economy, and Society in the Andes (Washington: Woodrow Wilson Center Press, The Johns Hopkins University Press, 2003)

Francisco Thoumi, Ventajas Competitivas ilegales, el desarrollo de la industria de drogas ilegales y elfracaso de las politicas contra las drogas en Afganistan y Colombia (Bogota, Centra de Estudios y Observatorio de Drogas y Delito -CEODD- Universidad del Rosario, 2005)

Rodrigo Uprimny Yepes, ed., Justicia Transitional sin Transicion? Reflexiones sobre Verdad Justicia y Reparacion en Colombia" (Bogota: Centra de Estudios de Derecho, Justicia y Sociedad, Documentos de Investigacion, 2005) Rodrigo Uprimny Yepes et al., "Justicia Transitional en Colombia. Algunas Herramientas Conceptuales para el Analisis del Caso Colombiano" Rodrigo Uprimny Yepes and Maria Paula Saffon Sanin, "Justicia Transitional y Justicia Restaurativa: Tensiones y Complementarierades" in Uprimny, ed., supra note 67, 94-118. Catalina Botero Marino and Esteban Restrepo, "Estandares Internacionales y Procesos de Transicion en Colombia" 25-83

Viano, Jose Magallanes and Laurent Bridel, eds., Transnational Organized Crime: Myth, Power and Profit (Durham, North Carolina: Carolina Academic Press, 2003) Klaus Von Lampe, "Criminally Exploitable Ties: A Network Approach to Organized Crime" Mauricio Rubio, "Organized Crime and Criminal Law in Colombia," Trans, by Lily Impala at 91-102

Goeffrey de Q. Walker, The Rule of Law: Foundation of Constitutional Democracy (Carlon, Victoria: Melbourne University Press: 1988)

Webster's New Twentieth Century Dictionary, Unabridged, 2" Ed., Deluxe Binding, at 1884.

Alan Wright, Organised Crime (Cullompton, Devon: Willan Publishing, 2006)

Estanislao Zuleta, Colombia: Violencia, Democracia y Derechos Humanos (Bogota: Fundacion Estanislao Zuleta, 1988)

Journal Articles 203

Steve Bachmann, "Lawyers, Law and Social Change," 13 N. Y. U. Rev. L. & Soc. Change 1984-1985 at 24

Pierre Bourdieu, "The Force of Law: Toward a Sociology of the Juridical Field," Trans, by Richard Terdiman, 38 Hastings L. J. 805 1986-1987 at 816

Alvaro Camacho Guizado & Andres Lopez Restrepo, "The Political Economy of the Drug Trade: Perspectives on Narcotics Trafficking in Colombia" Int'l J. of Politics, Culture and Society, Vol, 14, No. 1, 2000 at 151-182.

Manuel Jose Cepeda-Espinosa, "Judicial Activism in a Violent Context" 3 Wash. U. Global Stud. L. Rev. 529 2004 at 668.

Camilo Echandia Castilla and Eduardo Bechara Gomez, "Conducta de la Guerrilla durante el Gobierno Uribe Velez: de las Logicas de Control Territorial a las Logicas de Control Estrategico" in Analisis Politico 57, Bogota, Mayo-Agosto, 2006 31-54.

Arturo Escobar, Arturo Escobar, "Displacement, Development and Modernity in the Colombia Pacific," International Social Science Journal vol. 55 Issue 175 p. 5, March 2003.

Richard H. Fallon, Jr., "The Rule of Law as a Concept in Constitutional Discourse" (1997), 97 Colum. L. Rev. No 1 at 4

Lon Fuller, "Human Interaction and the Law," 14 Am. J. Comp L. 1969

Daniel Garcia-Pena Jaramillo, "La Relacion del Estado Colombiano con el Fenomeno Paramilitar: Por el Esclarecimiento Historico," Analisis Politico no. 53, Bogota, enero- marzo, 2005 at 59-74.

Clifford Geertz, "What is a State if it is Not a Sovereign? Reflections on Politics in Complicated Places," Current Anthropology J. v. 45, no. 5 December 2004 at 579

Francisco Gutierrez, "Institutionalizing Global Wars: State Transformations in Colombia, 1978-2002" (Fall 2003) 57 J. Int'l Affairs 135.

Alain Labrousse. 2005. "The Fare and the Taliban's Connection to Drugs," Journal of Drug Issues 35 no. 1 winter 2005, 169-184.

David Landau, "The Two Discourses in Colombian Constitutional Jurisprudence," 37 Geo. Wash. Int'l L. Rev. 687 2005 204

Martha Minow, "Law and Social Change" 62 UMKC L. Rev. 171 1993-1994 at 171

Richard A. Posner, "Creating a Legal Framework for Economic Development," The World Bank Research Observer, vol. 13, no. 1 (February 1988) at 1-11.

Maria Clemencia Ramirez and Henry Salgado, "Principales hallazgos del Proyecto Construction de Region y Ciudadania en el Contexo de la Guerra International contra las Drogas y el Terrorismo, el caso del Departamento del Putumayo," Instituto Colombiano de Antropologia e Historia (ICANH)- Centro de Education Popular (CINEP), 2003, Conclusions, at 5, online at http://www.icanh.gov.co/secciones/antropologia_social/proyectos.htm visited Nov. 13/05

Mauricio Rubio, "Illegal Armed Groups and Local Politics in Colombia" J. of Drug Issues v. 35 no. 1 (Winter 2005) at 107-30.

Frederick Schauer, "Legal Development and the Problem of Systemic Transition" 13 J. Contemp. Legal Issues 261 2003-2004 at 264.

Law Constitution Politica de Colombia (Bogota: Editorial Temis 2006). Also available online at http://pdba.georgetoMm.edu/Constitutions/Colombia/col91.html

Colombian Criminal Code, (Bogota: Editorial Temis, 2005) Title XIII, "On the Crimes against Public Health," Second Chapter: "On the traffic of Psychotropic substances and other Infractions," articles 375 to 385.

Colombian Congress Magazine, Gaceta del Congreso, Ano XIV, No. 43, 11 de Febrero de 2005 at 42. Debate Justice and Peace Law.

Colombian Constitutional Court, sentence C- 319/06

Colombian Constitutional Court, sentence C-370/06

Law 975 of 2005, Justice and Peace Law, the "Diario Oficial no. 45.980" of July 25, 2005.

Massacre ofltuango v. Colombia, Inter American Human Rights Court, p. 19, 63 & 64.

Massacre of Mapiripan v. Colombia, Inter American Human Rights Court, p. 18.

Press Articles Cambio Magazine, "Yo acuso', at http://www.revistacambio.com/htm1/portada/articulos/4647/ visited June 18, 2006

El Espectador, "DAS : Las Piezas Sueltas del Ventilador de Garcia" at http://www.elespectador.com/historico/2006-04-15/contenido_MI-9999.htm.

El Tiempo, "La Paramilitarizacion de Colombia," September 26, 2004 and "Representantes Rocio Arias y Eleonora Pineda dicen que subira el 35% de amigos de las AUC en el Congreso," September 10, 2005.

"El Presidente, extradicion de Mancuso a Estados Unidos," Nov. 17, 2004 at http://www.terra.com.co/actualidad/nacional/17-12-2004/nota214090.html. "Hoy extraditaron a primer colombiano en el ano a Canada," November 8, 2005. "Se desmoviliza Ramon Isaza, el Paramilitar Mas Viejo de Colombia", February 9, 2006. "Tribunal Superior de Bogota ordeno suspender extradicion de desmovilizados de las AUC" April 6, 2006. "24 Paramilitares son solicitados en Extradicion por E.U. Segun Lista que Divulgo el Gobierno," August 30, 2006. "DEA pesco Pez Gordo de Tijuana," August 16, 2006. "Presidente Alvaro Uribe Reconsidero Decision de Extraditar a Juan Carlos Sierra a Estados Unidos" Agosto 18, 2006 at http://www.eltiempo.com/iusticia/2006-08- 19/ARTICULO-WEB-NOTA INTERIOR-3164862.html

Le Monde, Reuters, RCN, "Corte Suprema Autorizo la Extradicion a Estados Unidos de Salvatore mancuso, Carlos Castano y Simon Trinidad," September, 25, 2004.

New York Times "Colombia's Coca Survives U.S. Plan to Uproot it" August 19, 2006. "At Colombian's Congress, Paramilitary Chiefs Talk Peace" July 29, 2004.

Semana, "Desmovilizaciones: Se acabaron los Paras?," May 3, 2006. "Ver para Creer," August 12, 2006, Edicion 1267.

Government Documents and Other Reports

Amnesty International, Report 2006 at http://www.amnesty.org/annualreport/view.php?c=COL visited August 10, 2006 Report 2005 at http://web.amnesty.org/report2005/col-summary-eng 206

The Centre for International Policy's, Colombia Program, "U.S. Aid to Colombia since 1997: summary tables" available at http://www.ciponIine.org/colombia/aidtable.htm

CODHES, Consultoria para los Derechos Humanos y el Desplazamiento, at http://www.codhes.org visited March 23, 2006.

COHA, Council on Hemispheric Affairs, press release of July 26, 2005, at http://www.coha.org/NEW_PRESS_RELEASES/New_Press_Releases_2005/05.82 the begining_of_the_end_to_a_coherent_u.s._drag_strategy.htm, visited on Jan. 18, 2006.

Comision Colombiana de Juristas (Colombian Commission of Jurists), "Listado de Victimas de Violencia Socio-Politica en Colombia between Diciembre 1, 2002 y Diciembre31,2005" "Demanda de Inconstitucionalidad Ley de Justicia y Paz," submissions, 'amicus curiae' organizations at http://www.coliuristas.org/.

Direccion Nacional de Estupefacientes, comparative charter for years 1999 to 2004. http://odc.dne.gov.co/publicaciones/images/Cultivo04.jpg

Gaceta del Congreso de Colombia, XIV No. 390, February 11, 2005 at 20.

Human Rights Watch, Report 2002 on Colombia, at http://www.hrw.org/wr2k3/americas4.html, visited June 23, 2006.

Human Rights Watch, "Report: Smoke and Mirrors, Colombia's demobilization of paramilitary groups," August 5, 2005 at http://hrw.Org/reports/2005/colombiaQ805/5.htm#_Tocl 1005673 , visited June 3, 2006.

InterAmerican Commission for Human Rights, "Informe Sobre el Proceso de Desmovilizacion en Colombia," Dec. 13, 2004, at http://www.cidh.oas.org/countryrep/Colombia04sp/ResEjec.htm. http://www.colombiainternacional.org/Doc%20PDF/DR-Acciones-Resultados2005.pdf

Presidencia de la Republica de Colombia, "Proceso de Paz con las Autodefensas: Informe Ejecutivo, Junio, 2006 at http://www.presidencia.gov.co/resultados/2006/desmovilizados_06.pdf, "Desmovilizacion", and http://www.altocomisionadoparalapaz.gov.co Listas de Desmovilizados Colectivos-Postulados, Junio 20, 2006. Col. President Alvaro Uribe's address to Col. Congress on August 7, 2002, at http://ww 15,2006. 207

"Seguridad Democratica es Sostenible", on the estimates of the government, at www.presidencia.gov.co/prensa_new/discursos/discursos2005/febrero/seguridad_democr atica.htm

Manifiesto Democtratico: Los Cien Puntos de Uribe, available at http://www.presidencia.gov.co , visited July 23, 2006.

Alto Comisionado de Paz de Colombia (High Commissioner for Peace), "Cronologia de Reuniones entre el Gobierno Nacional y grupos de Autodefensas at http://www.altocomisionadoparalapaz.gov.co/creunion/index.htm, visited July 12, 2006. "Declaraciones del Alto Comisionado Para la Paz Luis Carlos Restrepo," April 17, 2006 at http://www.altocomisionadoparalapaz.gov.co/noticias/2006/abril/abril 17_06a.htm .

United Nations, "Rome Statute of the International Criminal Court" at http://untreatv.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treatyl La sp. Visited JUlv 3, 2006

United Nations, Office on Drugs and Crime, "World Drug Report 2005 and 2006'"

US Embassy in Venezuela, "Apoyo de los Estados Unidos al Plan Colombia" at http://caracas.usembassy.gov/wwwhl76.html, visited July 12, 2006.

US President Bush's address to Congress, Sep. 20, 2001, at http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html, visited on Jan. 15, 2006.