COLOMBIAN COMMISSION OF JURISTS Non-governmental Organization with UN Consultative Status International Commission of Jurists (Geneva) and Andean Commission of Jurists (Lima) Affiliate L EGAL CORPORATE E NTITY: RESOLUTION 1060, A UGUST 1988 B OGOTA MAYOR’ S O FFICEAfter the Approval of the Law of Impunity in Colombia (Bulletin Number 8) IMPUNITY FOR DRUG TRAFFICKERS AS WELL Perpetrators of war crimes and crimes against humanity will also be protected against extraditionWith the bill of law called “Justice and Peace” approved by the Colombian Congress onJune 22, 2005 and now awaiting Presidential sanction, the Colombian Government hasreinforced its commitment to protect demobilized members of paramilitary groups fromextradition. Thus, in addition to exonerating them from serious investigations and trials inColombia and from having to serve sentences proportionate to the damage that they havecaused, the legal framework proposed for the demobilization attempts to protect paramilitaryleaders from international justice as well.Specifically regarding the issue of extradition, the law of impunity introduces two newschemas for impeding the members of these groups from being handed over to a foreigncountry for trial and sentencing. These schemas would be additional to the power that theGovernment enjoys to deny the extradition of Colombian citizens based on discretionalreasons of national convenience. 1. The bill of law classifies paramilitary activities as political offenses.Article 72 in the bill of law called “Justice and Peace” introduces a modification to theCriminal Code, in which the acts of forming paramilitary groups and belonging to them aredeemed political offenses.1 Such classification implies, among other benefits, a guarantee ofnon-extradition for persons under investigation or sentenced for paramilitary activities, byvirtue of the provisions in Article 35 in the Political Constitution that expressly prohibit theextradition of Colombian citizens for political offenses. In addition, if drug trafficking orcertain war crimes and crimes against humanity are eventually considered crimes related toparamilitary activities, their perpetrators would also be protected from extradition. 2. The law of impunity can be applied for trying and sentencing persons that other countries have requested for extradition.After the paramilitary are investigated and tried in Colombia, whether through a normalcriminal justice proceeding or through the application of the bill of law called “Justice andPeace”, they cannot be extradited on the grounds of acts for which they have been tried orsentenced. Indeed, respect for the criminal guarantee of non bis in idem, also called theprohibition of double jeopardy, implies that no one can be imputed a punishable behaviormore than once, no matter what the behavior is called or may be called (Criminal Code Article8 and Political Constitution Article 29). The Constitutional Court has specified that, by virtueof the prohibition of double jeopardy, “when there has been an investigation or when a1 The classification of paramilitarism as a political offense was the theme of Bulletin number 7 in this series ofthe Colombian Commission of Jurists bulletins that discuss the approval of the law of impunity. Calle 72 Nº 12-65 piso 7 PBX: (571) 3768200 – (571) 3434710 Fax : (571) 3768230 Email : firstname.lastname@example.org Website: www.coljuristas.org Bogotá, Colombia
sentence has been pronounced in Colombia prior to a request for extradition, extradition isnot in order, and the Colombian criminal court jurisdiction must be imperatively appliedand it will have priority over the jurisdiction of the requesting State”.2Thus, if the bill is applied, persons tried or sentenced by virtue of it cannot be extradited foracts that have already been investigated. Said law contemplates court proceedings withexcessively reduced terms and extremely lax investigations that are not aimed at sheddinglight and establishing the criminal responsibility of demobilized persons. Furthermore, ifdemobilized members of the paramilitary groups are sentenced, they can benefit fromminimum incarceration under privileged conditions (in farming communes, for example,according to statements made by the government). With such prerogatives, all members ofarmed groups who intend to avoid extradition could request surrender under the law ofimpunity and avoid the possibility of a trial under real conditions of justice.The risk of drug traffickers acceding to the benefits that this law offers and by doing soavoiding extradition is quite plausible. As the offense of drug trafficking was not excludedfrom the law of impunity, nothing hinders drug traffickers from “buying” a condition asmember of a paramilitary group, for the purpose of obtaining illusory sentences that wouldguarantee their not being extradited for the same acts. Under the protection of said law, drugtraffickers would allow themselves to be tried for all of the acts that could become grounds foran extradition request, without ever receiving a sentence of more than eight years. This riskwas denounced by Senator Rodrigo Rivera during the last debates on the aw of impunity in lthe Colombian Congress. 3. The Government can use its discretional power to grant or deny extradition.In Colombia, the Supreme Court of Justice is the tribunal in charge of reviewing therequirements set forth in the Political Constitution and by law to grant the extradition ofColombian citizens requested by another country. However, even when the Court rules that anextradition is in order, the Government has the discretional power to grant it or deny itpursuant to the conditions that i deems convenient (2000 Law 600 Articles 510 and 512 and t2004 Law 906 Articles 492 and 494). Exercising this power, on several occasions PresidentUribe has announced that he will keep the extradition requests regarding paramilitary leaderswho meet the commitments that they acquired during the negotiations suspended.At the inception of the negotiation process the Government told the paramilitary of itscommitment to not extradite. The press revealed conversations between the HighCommissioner for Peace and the paramilitary commanders in charge of the negotiation, whichso confirm. In such conversations, the High Commissioner for Peace stated, “The Presidenthas an offer. He says, ‘I cannot modify my stance on extradition because it would become anoverwhelming international problem. I cannot modify my stance on this issue in the middle ofan election campaign or in the midst of a relationship of cooperation with the United States’.Faced with this reality, the President says, ‘As President, I can use my discretional power.’2 Constitutional Court, 2002 Sentence SU - 110, Presiding Judge: Rodrigo Escobar Gil.
Listen between the lines and you will hear what the President is offering you. Indeed, he isusing it to control the issue”.3So, on one hand, the present Government boasts that it is the administration that has grantedthe greatest number of extradition requests, and on the other, it has designed an ample bundleof mechanisms to hinder the extradition of members of paramilitary groups.It is also worth mentioning the initiative presented by Uribe-supporter House RepresentativeRocío Arias to include a paragraph in Article 35 of the Political Constitution, aimed atprohibiting the extradition of demobilized persons. Although this initiative was removed fromthe debate in Congress due to a lack of time, this parliamentarian has announced that she willpresent it again. If it is passed, not only will justice be denied internally, but also internationaljustice mechanism actions will be hindered.Bogota, July 12, 2005See other articles on this topic on our web page www.coljuristas.org3 “Explosive Revelations”, Semana Magazine, September 27, 2004, at http://semana.terra.com.co/opencms/opencms/Semana/articulo.html?id=82024