By Liam Whittington
On May 25, 2011, Lawyers Without Borders (Canada) and the Colombian Caravana UK Lawyers Group launched a report detailing the findings of a visit to Colombia by an international caravana of lawyers. The visit by a large and impressive group of international legal talent was undertaken to carry out an inventory of the status of the Colombian legal system and the working conditions faced by Colombian lawyers. Their report painted a damning picture of the Colombian legal system, establishing that “there continues to be a large number of assassinations of and threats against Colombian lawyers, human rights defenders and trade unionists, indications of the continued violent activity of former members of paramilitary groups and challenges to accessing justice by victims.” This represents a depressing indictment of the lack of progress made in upholding the autonomy and safeguarding the effectiveness and security of the Colombian legal system since 2008, when the first Caravana of Lawyers visited Colombia and reported that, on average, twenty-five lawyers and human rights advocates had been killed on a yearly basis since 1991. Aside from outright violence, the delegation reported that the stigmatizing and discrediting of lawyers, judges, and human rights defenders is still common and that state authorities often have few inhibitions against undermining the work of human rights lawyers and criticizing judicial rulings. Furthermore, the Caravana was informed of numerous instances of break-ins at the offices of lawyers working on human rights cases, and the theft of professional equipment (such as computers, voice recorders, and CD-ROMs) containing pertinent evidence and files on pending cases.
Following her visit to Colombia in 2009, Margaret Sekaggya, the UN Special Rapporteur on the situation of Human Rights Defenders, stated that while assassinations of legal personnel are usually attributed to guerrillas, illegal armed groups, and paramilitaries, law enforcement authorities have also committed numerous violations against these professionals, or have “shown compliance with regard to violations committed by private actors against [human rights] defenders.” She commented that the vulnerability of legal officials, particularly those working on behalf of persecuted or minority groups, is exacerbated by the lack of support shown for their work by Colombian state officials. In fact, this disregard extends as far as the former president of the country. Sekaggya described public statements made by ex-President Álvaro Uribe, in which human rights defenders were portrayed as colluding with terrorists or guerrilla members, as “extremely worrying.”
Long-Term Problems, Few Solutions
Colombia’s legal system has long suffered from violence and intimidation. Throughout the 1980s and early 1990s, as the Colombian government battled against the notorious Medellín and Cali narco-traffickers, the cartels assassinated large numbers of judges, magistrates, and lawyers to ensure that they could continue to act with impunity, as well as to send a political message: their displeasure at the policy of extraditing captured Colombian drug smugglers to the United States. The frangible state of the Colombian legal system and the ongoing danger that lawyers, judges, and advocates face, is incalculably damaging to the development of a peaceful and just Colombia. A fair and accessible justice system in which the law can be counted on being upheld and challenged, and in which criminals can be held accountable for their crimes, is a crucial component of a functioning democracy. The current climate of fear and intimidation robs Bogotá of its ability to protect the civilian population and exercise governmental control. The administration of Uribe, which governed Colombia between 2002 and 2010 in a climate of government sanctioned violence, epitomized by the implementation of its of its flagship ‘Democratic Security and Defense’ policy, generated a political climate in which the primacy of civilian democratic institutions was pushed aside as Bogotá sought to crush left-wing guerrilla rebels and drug traffickers with increased military force. In taking a relatively lenient stance towards right-wing paramilitaries, and by providing immunity from extradition and handing out light prison sentences to many top paramilitary commanders, the Uribe administration doubtlessly contributed to the development of a sense of impunity from the law for some of the worst human rights offenders in Colombia.
The ability of criminals, drug traffickers, and armed groups to threaten and murder members of the legal profession without fear of prosecution undermines the entire justice system. On the issue of criminals acting with impunity, the Caravana reported that between 2008 and 2010 “no progress had been made” and that “the perpetrators of these crimes are not investigated and prosecuted.” Only now is the Uribe administration beginning to be assigned its full share of the blame for reckless policies and the use of violence, and must be held ultimately responsible for the stagnation of the Colombian legal system since the turn of the millennium. Weakness in the Colombian legal system is not a phenomenon that began with Uribe, but as a politician whose initial reputation was founded on the preservation of law and order, his failure to protect lawyers and the tacit approval given to government officials who undermine their work is shameful.
Immunity and Intimidation
Colombia possesses in theory, if not in reality, the foundations of a strong and fair legal system. The Colombian Constitution of 1991 ushered in a wave of legitimate legal reforms. These included the creation of a Constitutional Court to hear complaints raised by private citizens of misdeeds of an unconstitutional nature by specific government officials, and the creation of a Superior Judicial Council designed to supervise the administration of justice and to promote judicial independence. The constitution also explicitly laid out the duty of Colombian citizens to “defend and foster human rights as a basis of peaceful co-existence.” Yet Bogotá’s failure to ensure that its legal system lives up to these laudable provisions leaves those Colombians most vulnerable to horrific crimes without restitution. Inevitably, the legal professionals who have been targeted most frequently are those working on human rights cases, such as the Medellín-based Legal Freedom Corporation, whose lawyers have been accused of having links to FARC guerrillas, and have been illegally placed under surveillance. The rural poor of Colombia, who are most often the victims of violence and human rights abuses, also face tremendous difficulties accessing justice. Although entitled to free legal counsel, campesinos (peasant farmers or rural workers) are frequently unable to secure effective representation, (which is required to bring a case to court with the prospect of winning), and even if successful, are often intimidated into silence. Military and government personnel involved in human rights abuses also have escaped justice. San José de Apartardó, a peace community established in 1997 in the Antioquia region in response to serious human rights violations committed against community members, suffered massacres in 1996, 1997, 1999, 2000, and 2005. Limited legal proceedings followed the 2005 massacre, and two paramilitaries confessed their involvement in the crime. They also pointed the finger of blame squarely at ten members of the Colombian military. Yet, despite this testimony, all implicated military personnel were acquitted. Furthermore, members of the peace community who testified in previous cases of human rights abuses were subsequently accused of being members of guerrilla groups. They were investigated and prosecuted on these grounds, which deterred other victims from readily speaking out in court.
Contravention of UN Principles
Such flagrant intimidation, violence, and corruption leaves disadvantaged victims of crime and human rights abuses afraid to seek justice and creates a culture of mistrust of legal processes. Consequently, perpetrators avoid prosecution, innocent Colombians suffer, and the legitimacy and authority of Bogotá are damaged. There is partial recognition in Colombia, at least in some quarters, of the unacceptable condition of the country’s legal system. The Caravana of Lawyers initially visited Colombia in 2008 at the request of the Colombian Association of Defense Lawyers. But until the Colombian government commits itself to reforming its legal system and affording the constitutional protections to legal professionals, human rights abuses will continue unabated, and the perpetrators will remain unpunished. The Santos government must, at this stage, initiate immediate extensive reform of the legal system, building upon the foundations laid out by the United Nations in the “Basic Principles on the Role of Lawyers.” The Principles were developed in 1990 “to assist Member States in their task of promoting and ensuring the proper role of lawyers” and should “be respected and taken into account by governments within the framework of their national legislation and practice and […] be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and legislature, and the public in general.” Within these UN mandated guidelines, a number of principles were established, which are particularly pertinent to the current situation in Colombia. With regards to access to justice, the Principles state: “Governments and professional associations of lawyers shall promote programmes to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms.” Furthermore, “[s]pecial attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers.” Of equal importance, the Principles state that it is the responsibility of governments to ensure that lawyers can perform their professional functions, “without intimidation, hindrance, harassment or improper interference” and that lawyers, ”shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.” The murders, terrorization, and discrediting of lawyers in Colombia demonstrates clearly that the Uribe regime, and the current administration under Santos, has failed to meet the standards of the UN on the practice of law. Crucially, the Principles also set out that legal workers, in performing their professional duties, “shall not be identified with their clients or their clients’ causes as a result of discharging their functions.” Colombian government officials who have accused human rights lawyers of being linked to guerrilla groups have violated all canons of professional ethics by contradicting this principle. Lawyers must be recognized as independent legal representatives in a system where evidence and testimony forms the basis of judgment, rather than those accusations designed to discredit them. The culture of intimidation, violence, and corruption that has beset the Colombian legal system since the era of the drug cartels must be squashed, and the responsibility for this lies with the government.
Security at the Cost of Justice
Uribe consistently undermined the proper function of the Supreme Court throughout his two terms in office, especially during its prosecution of government officials linked to paramilitary groups. For example, his (now defunct) Administrative Department of Security (DAS) was revealed in 2011 to have wiretapped Supreme Court judges and generated ambitious plans for smear campaigns against human rights lawyers and NGOs. The twenty-five year sentence handed down to Jorge Noguera Cotes, the former head of the DAS, on September 14, 2011 is a damning indictment of the activities of state authorities during Uribe’s tenure. Ironically, as a rare instance of a corrupt Colombian state official being held accountable and punished by a Colombian court, it also provides some distant hope that the situation can be improved.
Upon taking office in August 2010, President Santos promised to institute reform, and he has somewhat improved the quality of the relationship between the government and the judiciary. For example, he filled the post of attorney general, which was vacant for a year under Uribe due to abiding mistrust between the previous Colombian president and the judicial branch. This action, however, was more likely undertaken in order to comply with U.S. requirements regarding the passage of the U.S.-Colombia Free Trade Agreement (FTA). Bogotá and its human rights record should come under increased scrutiny as Washington passes an observant eye over its new trading partner and the Colombian president, who served as Minister of Defense during Uribe’s second term, and who consequently has close ties to the policy of democratic security. The Obama administration should use this opportunity to pressure Santos to go even further in meeting human rights standards. The FTA provides powerful leverage but must be used with caution, as accusations of imperialism could easily undermine efforts to generate demonstrable change in Colombia.
Justice Beyond the State?
A pioneering legal program in Mexico may provide some hope that broader civic attachment to principles of justice and due process can offer a source of respite for some of those Colombians denied their rights in what essentially has been a dysfunctional legal system. Direct comparisons between Mexico and Colombia are somewhat difficult, particularly when it comes to assessing relative levels of malfeasance within the administrative systems of each country. However, there is no doubt that accompanying Mexico’s explosion in drug violence has been an infestation of corruption within its legal system, and as in Colombia, it is the legal rights of the most disadvantaged that face the greatest risk of being violated. A legal clinic run by Mexico City University’s Center for Economic Research and Teaching (CIDE), staffed by undergraduate students and master’s candidates, provides pro bono legal services to underprivileged Mexican natives, fighting cases considered distant long-shots by other legal professionals. The unlikely success that this clinic has achieved in winning cases involving indigenous residents jailed for murder or women arrested for violating a state ban on abortion, for example, suggests that this type of humanitarian legal aid might be effective in similar circumstances in Colombia. But volunteer groups and law students cannot be expected to resolve the fundamental issues that affect the Mexican or Colombian legal systems. No matter how commendable their intentions, volunteer groups are just as susceptible to intimidation and violence as legal professionals. The state is ultimately responsible for supporting and protecting those bodies and individuals which uphold the laws of the land.
In an open letter to The Guardian published May 7, 2011, Colombian Ambassador to the United Kingdom, Mauricio Rodríguez Múnera, reacting to criticism of the prolonged imprisonment of prominent sociologist and human rights advocate Miguel Ángel Beltrán, commented: “The judiciary in Colombia is completely independent from the executive branch and the government will accept, as it always does, the final decision of the judges.” But this claim, as independent organizations such as the Caravana have reported, is simply untrue. The Colombian government has meddled, unduly influenced, and undermined the justice system. Santos should be prepared to accept more responsibility for the current situation and begin to redress the failings of the last decade, including those of his predecessor and mentor Uribe, to allow the criminal justice system to regain the trust of the Colombian people. The executive branch must remain separate from the judicial branch, but the independence and protection of legal professionals must be actively sought after by state authorities. For its part, Washington should consider ways to use the free trade deal to apply pressure on Bogotá until it takes positive steps toward providing the same democratic legal rights and access to justice as is afforded to U.S. citizens, and ceases subverting legal processes for its own ends. Although Beltrán was absolved of all charges and released in June 2011, most poor Colombian victims of these kinds of crimes are not lucky enough to have the profile of a respected academic to draw attention to their plight. If the Santos government is, as it claims, committed to its “goal of achieving zero human rights violations in Colombia as soon as possible,” it must demonstrate as much by allowing lawyers, judges, and the courts to operate independently. Eliminating corruption, intimidation, and violence will be no easy task, as it first requires a change in attitude from the top down. Justice cannot be applied selectively, nor can it be conveniently pushed aside when it confronts embarrassing or incriminating state action. It must be universal, and until it becomes so, the defenders of human rights in Colombia and the people they represent will remain in a legal wasteland.
References for this article can be found here.
Liam Whittington is a COHA Research Associate