Impunity and the Violation of the Human Rights of Trade Unionists in Colombia 2009-2010 and 2002-2010
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Impunity and the Violation of the Human Rights of Trade Unionists in Colombia 2009-2010 and 2002-2010 Impunity and the Violation of the Human Rights of Trade Unionists in Colombia 2009-2010 and 2002-2010 Document Transcript

  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 1 Cuaderno de Derechos Humanos no. 22
  • Impunity and the Violation of the Human Rights of Trade Unionists in Colombia 2009-2010 and 2002-2010 Researchers: Leidy Sanjuán (ENS) Guillermo Correa Montoya (ENS) José Luciano Sanín Vásquez (ENS) Lina Paola Malagón Díaz (CCJ) Pilar Peralta Díaz (CCJ) Harvey Rodríguez (CCJ) Colombia, October 2010
  • ESCUELA NACIONAL SINDICAL© ESCUELA NACIONAL SINDICAL, 2009Calle 51 Nº 55-78Tel: 513 31 00 Fax: 512 23 30Correo electrónico: Aéreo 12175Medellín, Colombia2010© COMISIÓN COLOMBIANA DE JURISTASCalle 72 Nº 12-65 piso 7Teléfono: (1) 7449333www.coljuristas.orgCorreo electrónico: asistentedireccion@coljuristas.orgBogotá-Colombia2010ISBN: 978-958-8207-53-7Photography “Salario”, Gerónimo Alberto Silva Lewis, Argentina, 2010 Financial support for the research and publication of this report was provided to the ENS by Holanda and to the CCJ by the European Union The contents of this publication are the sole responsibility of the authors and can in no way be taken to reflect the views of the European Union, nor the European Union Delegation in Colombia and Ecuador, Misereor, or the FNV.
  • ContenidoIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Overview of Violations of the Right of Trade Unionists inColombia to Life, Liberty and Security of the Person in Colombia 7 High Levels of Violations Continue in 2010 . . . . . . . . . . . . . 7 Violations of the Right of Trade Unionists in Colombia to Life, Liberty and Security of the Person During 2009 . . . . . . . . . . 8 Violations During the Eight Years of the Government of Álvaro Uribe Vélez. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Anti-Trade Union Violence: A Never-ending Story . . . . . . . . . 45 Murders of Trade Unionists Around the World During the Last 10 Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 F. Lists of trade union murders in 2009 . . . . . . . . . . . . . . . 51 Trade unionists murdered in 2010, to 30 August. . . . . . . . . . . 53Elevated Levels of Impunity for Crimes Against Trade Unionists . . 55 Continuing impunity . . . . . . . . . . . . . . . . . . . . . . . . 55 The Measures Adopted by the State to Overcome Impunity have been Insufficient and Ineffective . . . . . . . . . . . . . . . . . . . 70
  • Introduction Over the last three years the Escuela Nacional Sindical (National TradeUnion School - ENS) and the Comisión Colombiana de Juristas (ColombianCommission of Jurists – CCJ) have been jointly monitoring the human rightssituation of trade unionists in Colombia and levels of impunity attached to thecrimes committed against them. This is the second joint report the two institutions have published. It ishoped that at the end of the year a further report will appear, providing aninterpretation, covering the period 1977 to the present, of the logic underlyingthe human rights violations and impunity that characterize trade union cases. These initiatives are intended to stimulate the establishment of policies tocombat the problem of serious human rights violations committed against thetrade union movement and the corresponding situation of impunity. We hopethat the report will help to shed light on this continuing calamity and contrib-ute to a public debate on effective ways to combat it. The ENS and the CCJhave played a very important role stimulating the interest of the internationalcommunity in the subject and in opening up the possibilities of developing anagenda capable of transforming the current situation. This report is published at a time when interests opposed to organizedlabor question both the statistics on anti trade union violence and the effectsof that violence on freedom of association in Colombia. Despite the current challenging context, the international communityand a range of Colombian and international human rights organizations havecontinued to speak out on the situation. In its observations on Convention
  • 87 the Committee of Experts on the Application of Conventions and Rec-ommendations (CEACR), the Committee on Freedom of Association (CFA),concerning Case 1787, and the Conference Committee on the Application ofStandards have all called on the Colombian state to guarantee that workers’organizations may “carry on their activities freely and meaningfully [...] in aclimate free from violence”.1 Recently, in its June 2010 report on Colombia, the Committee on Economic, Recently, in its June 2010 report on Colombia, the Committee on Economic,Social and Cultural Rights indicated that: The Committee is alarmed at the murders of trade-unionists in the State party and that they continue to be victims of various forms of threats and violence. The Committee remains concerned that, despite the implementation of a National Program of Protection that covers trade-unionists and the creation of sub-unit within the Human Rights Unit in the Attorney General’s Office to deal with murders against trade-unionists, only a small number of acts of violence against trade-unionists were investigated.2 The report has two chapters. The first provides an overview of violations ofthe right to life, liberty and security of the person of trade unionists in Colombiaduring the government of President Uribe (2002-2010). This chapter includesdata on 2009 and that part of 2010 for which figures are available. These periodsare analyzed in the context of a longer period running from 1986 to 2010. Thechapter also provides a summary of a separate study of trade union murdersat international level, in which the measures adopted by the Colombian stateto prevent such violations are evaluated. The second chapter deals with the serious situation of impunity, examin-ing the kinds of investigations carried out by the prosecuting authorities (theFiscalía General de La Nación) to identify the perpetrators of the crimes com-mitted against trade unionists, how the investigations are carried out and theresults achieved. It also examines the measures taken by the Colombian stateto combat the situation of impunity.1. CEACR, Individual Observation, Convention 87, in 2007, 2006, 2005 and 2002.2. E/C.12/COL/CO/5. Paragraph 12.
  • Overview of Violations of the Right of Trade Unionists in Colombia to Life,Liberty and Security of the Person in Colombia3 Violations of the Right of Trade Unionists to Life, Liberty and Security of the Person,High Levels of between 1 January and 30 August 2010*Violations Continue in Type of Violation Total20104 Threats 201 Murder 35 An examination of the information Murder attempt with or without injury 16on violence against trade unionists Harassment 10gathered between 1 January and 30 Kidnapping 5August 2010 demonstrate the con- Disappearance 5tinued violence against unionized Illegal Search 2 Arbitrary Detention 1workers in Colombia. In the first six Overall Total 275months of the year there were at least * 2010 figures are provisional, pending completion of data35 murders (10 of trade union leaders), collection and cross checking.and 17 murder attempts (14 against The preliminary data for 2010trade union leaders). illustrate a terrifying and dangerous scenario for those who choose to exer- cise their right to assume leadership in3. The information on violations of human the struggles of thousands of workers rights committed against trade unionists in Colombia have been collected and for a fairer and more equitable society analyzed by the ENS over a period of with guaranteed working conditions. more than 20 years, in close collaboration Incidents have occurred during this with the trade union organizations and period that have seriously limited and other human rights organizations. hindered efforts to promote freedom4. For this section the period of analysis has been extended to 30 August 2010. of association. 7
  • 8 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) On Friday 13 August 2010, Luis asked for the workers José Luis SotoGermán Restrepo Maldonado, Presi- Jaramillo and Juan Carlos Torres Mu-dent of the Sindicato de Trabajadores ñoz, shouted, “Come out, we’re here tode la Compañía de Empaques (Sin- kill you. Don’t hide” before immedi-traempaques) and an important leader ately opening fire, wounding Miguelof the CGT in Antioquia, was mur- Augusto Cuenca Torregroza. The Sin-dered. The murder was particularly dicato Nacional de Trabajadores de laserious because it targeted a high Industria Agropecuaria (Sintrainagro)ranking trade union leader who had interpreted the event as a reprisal forbeen highly visible defending his its attempts to recruit large numberspolitical and trade union views on the of workers and the organization, sincenational and international stages. December 2009, of a series of actions Alejandrino Betancur, president protesting against unpaid wages andof the Sindicato de Trabajadores de benefits the workers were Industria Minera del Departamento These cases represent a call forde Antioquia (Sintramineros), Amagá the Colombian state to take effectivebranch, received death threats on 26 measures to protect the right to life,July 2010. An unknown individual liberty and security of person for itscalled his cell phone and threatened citizens and the unionized workforcehim concerning his attempts to resolve and to promote respect for the right ofa 13-year dispute with the company association in the country.Industrial Hullera, currently in liq-uidation. The activities in question Violations of the Rightinvolved the claim of more than 100 of Trade Unionistsformer mine workers who had still not in Colombia to Life,received the redundancy payments to Liberty and Securitywhich they were entitled. of the Person During On 11 January 2010, 185 workersat the Palo Alto estate in Ciénaga, 2009Magdalena Department, which be- Overall Characteristics of thelongs to Inversiones Palo Alto Gnecco ViolationsEspinosa, were expelled from their 2009 saw a wide-ranging debateworkplace at gunpoint, one worker involving the international communi-being injured in the process. The ty on the violation of human rights ingunmen, who had a list of names and Colombia. Four United Nations Spe-
  • cial Rapporteurs visited the country.5 rights defenders and communityIn their reports all coincided in ex- leaders”.6pressing concern at the worrying situ- The role of the Uribe Vélez gov-ation, in particular in relation to trade ernment did not in practice serveunionists. For example, concerning to guarantee human rights. On theextrajudicial executions committed by contrary, it adopted the strategy ofmembers of the Colombian army, the flatly denying the complex situationSpecial Rapporteur on extrajudicial affecting the right to life, liberty andexecutions said, security of the person of unionized “It should be noted at the outset workers, denying the existence of anthat killings by these actors dispro- armed conflict and of the continuingportionately affect rural and poor activities of paramilitary groups, de-populations, Indigenous people, Afro- scribing the extrajudicial executionColombians, trade unionists, human of trade unionists, journalists, and human rights defenders as isolated5. The report of the Special Rapporteur cases, pursuing high court judges, on the Situation of Human Rights and and questioning the legitimacy of the Fundamental Freedoms of Indigenous activities of trade unionist victims. People may be consulted at: http://www2. In its anxiety to gain approval for the Free Trade Agreements (FTAs) rapporteur/docs/A-HRC-15-34.doc; of the Special Rapporteur on Extrajudicial, with the US, Canada and the European Summary or Arbitrary Executions at: Union, the government has stubbornly refused to accept the statistics con- application/media/Colombia_Press_Sta- cerning anti- trade union violence, tement_English1.pdf (The full report in rather than adopting hard hitting English may be consulted at http://www. measures designed to overcome the media /14%20HRC%20Mission%20 problem. This attitude illustrates that to%20Colombia%20%28A.HRC.14.24. Add.2_en%29.pdf); of the Special Rap- porteur on the Situation of Human 6. Press release by Professor Philip Alston, Rights Defenders at: http://www2.ohchr. UN Special Rapporteur on Extrajudicial, org/english/issues/defenders/docs/A. Summary or Arbitrary Executions fo- HRC.13.22.Add.3_en.pdf ; and the Spe- llowing his Mission to Colombia between cial Rapporteur on the Independence of 8 and 18 June 2009. http://www.extraju- Judges and Lawyers at: http://www2.oh- Colombia_Press_Statement_English1. HRC.14.26.Add.2.pdf pdf 9
  • 10 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)the government is more interested in bian media gave considerable cover-creating a positive international image age to declarations made by rankingthan working towards a real solution government officials concerning theto the problem. illegal phone tapping of political Initially, the administration opted opponents of the government, gov-to differentiate between murdered ernment employees, members of theunionized teachers and other work- high courts, the Vice President of theers, creating a parallel variable and, Republic and members of social or-with it, a distorted interpretation of ganizations. The organizations whosethe dimensions of the situation. This communications were interceptedmanipulation was widely criticized, included two trade union confedera-and the government changed its tions, the Central Unitaria de Traba-approach rapidly as a result. Sub- jadores (CUT) and the Confederaciónsequently, it decided on a strategy de Trabajadores de Colombia (CTC),involving attacks on the reputation of as well as the Sindicato Nacional detrade unionists. The strategy involved Trabajadores de la Salud y la Seguri-suggesting, for example, that victims dad Social (the main health servicehad been attacked because they were and social security union), and the Sin-connected with illegal armed groups, dicato de Trabajadores de la Empresainvolved in crimes of passion or were de Teléfonos de Bogotá (the unionmerely victims of common crime. of the Bogotá telecommunicationsOn other occasions the strategy has company).focused on NGOs, attacking the In 2009, legal processes coveredlegitimacy of their research, even, by Law 975 of 2005, which was in-at times, making use of unionized tended to demobilize the paramilitaryworkers belonging to political sec- groups and guarantee the rights oftors close to the government to front their victims, remained at a standstillthe questioning or denials. These and the paramilitary leaders who hadefforts to use discourse to cloak the been extradited to the United Statestruth about the human rights situa- in 2008 were still failing to providetion in Colombia were undermined information necessary to satisfy theby the highly questionable actions victims of the crimes they had com-of the government associated with mitted. Thus the right of the victimsthe scandals it became embroiled in. to truth, justice and reparation were Additionally, in May, the Colom- prejudiced. At the same time the
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 11organizations that the authorities in- threats, 10 forced displacements andsisted on naming “emerging groups” one murder attempt in which the vic-[bandas emergentes], but which were tims were trade fact nothing other than reorganizedgroups of paramilitaries, continued Violations during 2008 and 2009:harassing and pursuing the trade Statisticsunion movement. There was a slight decrease of The FARC and ELN, for their 6.2% in the total number of viola-part, continued committing serious tions committed against trade union-acts of violence against the civilian ists in 2009 compared with 2008.population, including the murder of Nevertheless, the Colombian union27 members of the Awa indigenous on movement continued its efforts to4 February 2009, and the kidnapping combat anti trade union violence andand subsequent murder, of the Gover- extermination attempts, primarily bynor of the Department of Caquetá, in denouncing the crimes, and seeking toDecember of the same year. These two advance debate nationally and inter-guerrilla groups were also responsible nationally, in both governmental andin 2009 for at least four murders, 11 non-governmental scenarios. Comparison of Violations of the Right of Trade Unionists to Life, Liberty and Security of the Person in Colombia between 1 January and 31 December 2008 and 2009 Nº of cases Nº of cases Type of Violation % 2008 % 2009 2008 2009Threats 498 65,3 419 58,6Forced Displacement 154 20,2 129 18,0Murder 49 6,4 47 6,6Harassment 19 2,5 54 7,6Arbitrary Detention 26 3,4 34 4,8Murder attempt with/without injury 8 1,0 18 2,5Torture 3 0,4 7 1,0Forced Disappearance 5 0,7 3 0,4Illegal Search 1 0,1 4 0,6Total 763 100,0 715 100,0Source: Banco de Datos de Derechos Humanos, SINDERH, ENS.
  • 12 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) Given this panorama, it is impor- by the scant insistence with whichtant to stress that while it is true that their occurrence has been denounced:there was a slight decrease of two in there is a perceptible weariness amongthe number of murders, there were trade unions, as these kinds of experi-also 18 attempted murders in 2009 ence have come to be seen as a partcompared to eight the previous year, of the daily routine of their members.and that this represents an increase of Evidence of this is provided by the125%. In fact, the number of attempts difficulty encountered in finding in-at physical annihilation (murder plus formation in secondary sources overattempted murder) increased by 14%. the last year. Turning to the acts of violence that Thus it may be observed how antiincreased during 2009, the number trade union violence is based increas-of illegal searches increased from ingly on more diffused and complexone in 2008 to four in 2009 (75%), acts, which permit elaborate schemesharassment levels rose from 19 to 54 to be concocted, designed to spread(64.8%); cases of torture rose 57.1% confusion about events and diminishfrom four to seven; murder attempts their impact on public opinion; thishave already been mentioned; while is the case, for example, with illegalcases of arbitrary detention increased searches, harassment and arbitraryfrom 26 to 34 (23.5%). detentions. The violent acts that demonstrated During this period the increasea reduction were forced disappear- in the numbers of murders of tradeances, falling 66.7% (three in 2009 union leaders has been telling. Whilecompared with five the year before); in 2008, 16 trade union leaders werethreats fell from 498 to 419, a reduc- murdered; in 2009 the figure rosetion of 18.9%, while forced displace- to 21. This increase causes concern,ments fell from 154 to 129 (19.4%); above all because this kind of violencefinally, murders fell from 49 to 47, a does serious damage to individualpercentage reduction of 4.3%. trade unions and the union movement The reduction in reported threats alike.and displacements might be explained
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 13 Comparative table of murders of trade unionists between 1 January and 31 December 2008 and 2009, by category of worker Category of Worker 2008 % 2009 % TotalWorkforce 32 65.3 26 55.3 58Trade Union Leader 16 32.7 21 44.7 37Trade Union Advisor 1 2.0 0 0.0 1Overall Total g 49 100 47 100 96Source: Banco de Datos de Derechos Humanos, SINDERH, ENS.3 . Responsibility for Violations during 2009 Violations of the Right of Trade Unionists in Colombia to Life, Liberty and Security of the Person in Colombia between 1 January and 31 December 2009, by presumed perpetrator Presumed Perpetrator Total Unidentified 445 “Self-Defense Groups” and/or paramilitaries 163 State Body 59 Guerrilla group 26 Common crime 19 Employer 3 Overall Total 715 Source: Banco de Datos de Derechos Humanos, SINDERH, ENS. During 2009 there were 715 viola- responsible for 59 cases (22.3%);tions of the right of trade unionists to third were the guerrilla groups, withlife, liberty and security of the person 26 cases (9.6%), followed by commonin Colombia, of which the presumed criminals (19 cases, or 7% of the total);author of the crime has not been iden- the last category of perpetrators weretified in 445 cases (58%). That is, in employers, who were responsible formore than half the violations the per- three violent acts, (1.1%).petrator has not been identified. In 264 Threats were the principal tech-cases (36.9%) the presumed author nique of aggression employed by theof the crime has been identified, the paramilitary groups against trademost common being the paramilitary unionists. It is notorious, furthermore,groups who were responsible for 163 how the majority of these threats wereacts of violence (61.7% of the total); directed at the trade union second place were state bodies, Of the total number of threats carried
  • 14 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)out by these groups (136), 106 (77.9%) tively, of the Asogras branch in Girón,sought to intimidate trade union lead- Department of Santander, received aers. telephone naming them as “military In general, these threats were objectives”. Evidence suggests that thehighly ideological in nature: accusing criminals belonged to the paramilitaryall trade unionists of being enemies of group operating in the town.peace, members of guerrilla groups In the same phone call Mabelor collaborators with them, they also Garcia’s sister was ordered to leave theemployed notably coarse language, in- Miradores de San Juan neighborhoodtended to undermine the dignity of the immediately. The callers added thatworkers and of the trade union move- they knew the daily routines of all herment. The threats were also couched family members and that they wouldin collective terms, the aggressors disappear her husband, as this is whatpurporting to defend the interests of would hurt her most. The caller alsosociety as a whole, of patriots and mentioned that he knew Juliana An-citizens. They were collective, also, drea García was pregnant and that itbecause at least 70 were aimed at would be “easy to hit her where it hurtsmembers of the same trade union, to most”. When it came to Félix Ortiz,several at once, or to a range of so- they said that they were “waiting forcial organizations including unions. him to give us an opportunity to disap-Furthermore, a considerable number pear him ... we’re just waiting for thereferred to aspects of the private lives time and place to do it”. Witnessesof their targets, such as their family suggest that the community fearedlives, domestic routines and arrange- the trade unionists might be attackedments, so that they could demonstrate in the Miradores de San Juan, wherewithout equivocation their capacity to it was well known as a center of op-pursue and harm their victims. erations for the paramilitaries known An emblematic example is pro- as the “Águilas Negras”. Asogras hasvided by the threats received by been subjected to constant pressures,members of the Asociación Agraria de threats, persecution and murder bySantander, Asogras, on the afternoon the paramilitary groups that operateof 28 July 2009. Félix Ortiz Amaya, in the Department of Santander andMabel García Mantilla and Juliana the Magdalena Medio region, espe-Andrea García Carrillo, president, cially in the municipality of Sabanavice-president and secretary, respec- de Torres.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 15 For their part, state bodies were Moreno, Norberto Fernández, Trebe-principally responsible for arbitrary lio Guzmán, José Vicente Méndez,detentions or, in other words, the Albeiro Serna, Matha Cecilia Orozco,denial of liberty to trade unionists by Alcibiades Romero and Carlos Mén-state agents for reasons, and following dez Méndez were detained during aprocedures, which do not appear in joint operation carried out by soldiersthe penal code. This modus operandi from the national army and membersincludes detention without warrant, of the Cuerpo Técnico de Investig-when no crime has been committed, ación (the technical investigation bodyand detention that exceeds established of the Fiscalía - CTI). Witnesses saidremand limits or beyond the sentence that the detentions were carried outperiod. based on information from informants In 2009 state bodies were respon- who had received in- kind benefitssible for 33 arbitrary detentions, 10 and payments under the terms of thecases of harassment, six cases of tor- government’s Democratic Securityture, six threats, two murder attempts policy. It is evident that the stigma-and two illegal searches. tizing of human rights defenders and Between 13 and 16 July 2009, trade union leaders that characterizepeasants and leaders of different so- the prevailing anti-union climate hascial organizations including several a negative effect on the personal free-members of the Federación Nacional doms and constitutional guaranteesSindical Unitaria Agropecuaria (Fen- available to citizens as a whole.suagro) – including the Asociación de Another decidedly delicate matterTrabajadores Campesinos del Tolima concerned the arbitrary detention on(Astracatol), and the Sindicato de 5 May 2009 of three leaders of theTrabajadores Agrícolas del Tolima Asociación Colombiana de Cami-(Sintragritol) – were arbitrarily de- oneros while they were driving theirtained in the hamlet [corregimiento] lorries from Buenaventura to Cali inof Las Hermosas in the municipality order to take part in a national lorryof Chaparral, Department of Tolima. drivers’ strike. In this case, it is sig-Ever Quijano Capera, Jesús Emilio nificant that after the detention hadPortela García, Wilson Medina Arce, been denounced by Tarcisio Mora,Mauricio Collazos Peralta, Edwin National President of the CUT, theHumberto Medina Ríos, Walter Ro- national Police’s Director of Transitdríguez Bermeo, Jorge Enrique García and Transport, General Luis Alberto
  • 16 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)Moore, indicated that the men had not been respected, we cannot allow thembeen detained but had accompanied to compel drivers to take part if theyhis officers voluntarily to the police do not wish to”. This case provokesstation:”an officer invited them to concern at how the authorities, andsign an agreement because they had in particular the security forces, treatbeen pressuring others to blockade the labor conflicts that occur in thethe port of Buenaventura”. General country as public order problems,Moore maintained too that the case putting at risk the effective exercise ofshowed that coercion was used against the right of association and freedomdrivers who wished to continue work- of ”while it is true that the strike has Comparative table of murders of trade unionists between 1 January and 31 December 2008 and 2009, by presumed perpetrator Presumed Perpetrator 2008 % 2009 % Total Unidentified 37 75.5 35 74.5 38 “Self-Defense Groups” and/or paramilitaries 5 10.2 7 14.9 5 State Body 6 12.2 0 0.0 6 Guerrilla group 0 0.0 4 8.5 0 Common crime 0 0.0 1 2.1 2 Employer 1 2,0 0 0,0 1 Overall Total 49 100 47 100 52Source: Banco de Datos de Derechos Humanos, SINDERH, ENS. An examination of the homicide were two more murders attributed tocases for 2009 demonstrates a high paramilitary groups, four by guerrillapercentage of murders (74.5%, or 35 groups and one by common criminals.cases), where the identity of the per- Additionally, while in 2008 six mur-petrator remains unknown. Of cases ders were attributed to state agentswhere information on the presumed and one to employers, the 2009 figuresauthor is available – 12 in total – seven were, respectively, zero and one.are alleged to have been commit- An analysis of the murders com-ted by paramilitary groups, four by mitted by paramilitary groups showsguerrilla groups, and one by common how their actions focused on the tradecriminals. union leadership: seven out of nine Compared to 2008, in 2009 there of their victims occupied leadership
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 17roles. paro armado7. The USO’s request was For their part, guerilla groups were discussed at a meeting involving theallegedly responsible for four murders, authorities (the army, the police andone of a leader of an agrarian trade the Departamento Administrativo deunion and three of workers, one of Seguridad - the State Security andwhom worked in agriculture, one in Intelligence Service, DAS), a repre-education and the last in the petroleum sentative of Occidental de Colombia’sindustry. This last victim was killed Social Responsibility department,in Arauquita (Arauca Department), on the company’s security team, the27 March 2009, during a confrontation Arauca Human Rights Ombudsmaninvolving the army in which work- and USO representatives. The militaryers of Occidental de Colombia were authorities said that they should notcaught in the crossfire. “give in to terrorism” and stated that This case provides an example “nothing was going on” in Araucaof the serious phenomenon whereby and that these were “isolated cases”.Colombian workers die when em- Consequently they suggested to thebroiled in the conflict affecting the USO and to the company that theycountry, despite the multiple efforts of should organize”military convoystheir organizations to work for peace. for the workers, to be accompaniedDays before the events, a lorry had by infantry soldiers, helicopters andbeen attacked, the driver escaping planes”. The proposal was acceptedunscathed. Subsequently, the buses by Occidental de Colombia, despitethat carried Occidental workers and the fact that the Human Rights Om-subcontractors were caught up in cross budsman argued that transport wasfire between guerrilla forces and the severely restricted by the paro in the Caricare and Caño Limón Occidental de Colombia respondedoil fields. The Union Sindical Obrera saying that they shared the analysis(USO), the oil workers’ union thatrepresents workers at the Occidentalinstallations known as Arauca Capital, 7. Translator’s Note: In a paro armado (lite- rally, an “armed strike”) guerrilla groupsdemanded that the company take mea- order transport companies not to operate,sures to minimize the risks workers thereby paralyzing commercial activity;run when travelling to work, and to individuals and companies who defy theprotect their right to life. At this point, order run the risk of their property beingthe guerrilla organization declared a destroyed and of being physically attac- ked.
  • 18 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)of the military authorities and that the the USO should be agreed with theworkers should resume work; finally union and the petitioners. The unionthey asked the Ministry of Social also maintained permanent telephoneProtection to record the decision in contact with officials in the Humanan official minute. The Ministry pro- Rights Unit of the Vice-Presidency,ceeded to prepare a document laying warning of the possibility that one orthe groundwork for subsequent ac- more worker might be murdered orcusations that the union leaders and their personal integrity threatened.workers were inciting a strike. The Occidental and its contractors refusedUSO leadership requested the armed to accept the proposals of the unionforces to respect the principle of dis- in full, and, threatening disciplinarytinction, and the guerrilla organization proceedings and dismissal, pressuredthat had called the paro armado not the workforce into travelling to the oilto involve the workers in the armed field with military accompaniment.conflict. They then asked the Human On Saturday, and under pressure, theRights Ombudsman to provide hu- workforce went to work Caño Limónmanitarian accompaniment8 for the oil field. Finally, on 27 March, whileworkers and presented a contingency travelling in one of the military con-plan to the oil field manager, covering voys, and in the midst of crossfireboth permanent workers and contract between the army and the guerril-labor. The union based its proposal on las, the worker Armando Carreño, athe precautionary measures granted member of the Arauca section of theby the Inter American Commission of USO, was killed.Human Rights (IACHR) in 2001; theseinclude a stipulation that any measureintended to provide security, protec-tion or guarantees to the members of8. Translator’s Note: humanitarian ac- companiment is a technique used fairly frequently in Colombia; it involves high profile members of national and / or international bodies (in this case the Hu- man Rights Ombudsman) accompanying threatened groups or individuals in order to reduce the risk of their being attacked.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 19Violations Committed against Women Comparative Table showing Violations Committed against Trade Unionists between 1 January and 31 December 2009, by sex Kind of Violation Female % Male % TotalThreats 106 58.6 313 58.6 419Forced Displacement 51 28.2 78 14.6 129Murder 4 2.2 50 9.4 54Harassment 5 2.8 42 7.9 47Arbitrary Detention 4 2.2 30 5.6 34Murder attempt with/without injury 7 3.9 11 2.1 18Torture 1 0.6 6 1.1 7Forced Disappearance 2 1.1 2 0.4 4Illegal Search 1 0.6 2 0.4 3Total general 181 100 534 100 715Source: Banco de Datos de Derechos Humanos, SINDERH, ENS. During 2009 women trade union- pality in Antioquia, a female tradeists represented 25.3% of the total union leader who was at the forefrontnumber of violations committed of a series of workers’ demands in theagainst unionized workers. During local hospital was the victim of anthe year they received 106 threats and attack using a sharp instrument.9 Thewere victims of 51 forced displace- complaints of the trade union concern-ments, seven murder attempts, five ing graft, corruption and workplacemurders and four cases of harassment. intimidation might be connected with Specifically, the violence com- a series of suspicious vehicle move-mitted against women trade union- ments in the neighborhood of the hos-ists was exacerbated by actions that pital. The leader survived the attackwent beyond the immediate attack, in question, but her assailants slashedseeking additionally to attack their her face, disfiguring her completely.personal dignity. Aspects such as The emotional damage caused bytheir looks, the protection of the fam- this attack cannot be overestimated.ily and motherhood (a state implying Additionally, as a result of the attackparticular vulnerability) were usedby the perpetrators of gender-based 9. The name of the victim, the union sheattacks to intimidate women. belonged to and the municipality where In November 2009, in a munici- she lived have been withheld for her pro- tection.
  • 20 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)the victim was forcibly displaced, her In other cases women were tar-right to free association was violated geted because they were in relation-and her capacity to act freely as a ships with male trade unionists in-worker was restricted. volved in disputes. This was the case Other cases of violence against of de Jairo del Río, president of thewomen directly affect their families, Sindicato de Trabajadores de Tubosprincipally their children, who are del Caribe (Sintratucar) who, on 31forced into the conflict as a result. August 2009, received the followingOn 22 September 2009, María Alicia death threat from paramilitaries in theCabezas, a member of Sintraelecol in city of Cartagena:Arauca, received a telephone threat “Señor Jairo del río [sic], we hopeduring which she was warned that her that you are very clear about the objec-daughter would be harmed. tives of the trade union organization Similarly, Margarita López and you lead because you are getting inNelly Arias, leaders of Sintraacuvalle, above your head denouncing thingsreceived threats following the arrest you should leave alone. We remindof several former managers of the you that in this country communist guerrillas like you and your groupmunicipal water company Acuavalle die quickly, so stop fucking aroundfollowing complaints about alleged sticking your nose in things that don’tcorruption. An email which provoked matter. Let us remind you that youterror in its recipients announced that have a lovely family that you should“death would follow” and accused look after and that your pregnant wifethem of being informers or “grasses”. goes out every morning at five thirtyThe women had denounced the di- in the morning to take your son torector of Acuavalle for a company school, and it would be a great shameproposal, known as Oferta 026, to if something happened to them andcontract a foreign investor in 2010 to you were to blame. The guerillas inimplement its investment plan. In the this country are finished, especiallycontext of its actions to defend the guerrillas like you who dress up aspublic ownership of the company, the civilians. Look after yourself and lookproposal had created tension between after your loved ones”.the director and the union because of The following day, the vice presi-the criticisms the union made of the dent of the union, Deivis Blanco, re-interest payments that would have ceived a similar written threat, whichbeen paid to a third party. included a death threat.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 21Sectors Affected Although anti trade union violence the economy it was most prevalent inin 2009 occurred in many sectors of education and agriculture. Violations 2009, by Economic Sector Economic Sector Total 2008 % Total 2009 %Community and personal services - education 446 58.2 413 57.8Agriculture, hunting and fishing 59 7.7 72 10.1Community and personal services – other services 45 5.9 66 9.2Manufacturing industry 56 7.3 40 5.6Electricity, gas and water 38 5.0 28 3.9Community and personal services - health 23 3.0 23 3.2Mining and quarrying 74 9.7 22 3.1Community and personal services-municipal and 16 2.1 18 2.5official employeesTransport, warehousing and communications 1 0.1 15 2.1Finance 2 0.3 13 1.8Community and personal services - legal 0 0.0 5 0.7Trade 5 0.7 0 0.0Construction 1 0.1 0 0.0Overall Total 766 100.0 715 100.0Source: Banco de Datos de Derechos Humanos, SINDERH, ENS and trade union federations. In 2009 the sector most affected by unionists in the sector were registered.anti-trade union violence was educa- In third place were the workers in thetion, with 413 violations (57.8% of the community and personal services sec-overall total for the year). This repre- tor, excluding education, health, legal,sented a reduction of 7.4% compared and municipal and official employees,with 2008, when a total of 446 viola- who suffered 66 violations during thetions of the right to the life, liberty and period, 46.7% more than the previoussecurity of person were committed year.against trade unionists in the sector. The mining and quarrying sec- The second most affected sector tor showed a marked decrease in thewas agriculture, hunting and fishing number of violations falling from 79with a total of 72 violations in 2009, in 2008 to 22 in 2009; there was also a22% more than occurred in 2008 decrease in the industrial manufactur-when 59 violations of the right to life, ing sector, with a fall of 28.6%, fromliberty and security of person of trade 56 to 40 violations, and in the electric-
  • 22 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)ity, gas and water sectors, which fell of the multiple actors present. Of afrom 38 cases to 28. total of 34 arbitrary detentions regis- Nevertheless, there were sig- tered during 2009, 26 were committednificant increases in the transport, against agrarian workers.warehousing and communications Another significant violation in-sector, where there had been one volved harassment, a form of violencecase in 2008, rising to 15 in 2009, an that is less evident, as it is most com-increase of 1,400%, while violent acts mon in urban areas, especially in thein financial sector increased from two electricity, gas and water industries, inin 2008 to 13. Five cases affected the manufacturing, and among municipallegal sector in 2009 compared with and official employees.none in 2008. It should be noted that the educa- It is significant that arbitrary tion sector, as well as being the mostdetentions and illegal searches were affected by anti trade union violenceprincipally concentrated in the agrar- has also been the most active in termsian sector, where civil society respons- of social mobilization in the periodes to institutional abuses remain weak examined. According to the ENS dataand where, in contrast to the situation base on trade union activity, of the 103in urban areas where international actions registered in 2009, 21 (20.39%)institutions and the media are active, occurred in the education sector.there is little monitoring of the actions Labor Protests in 2009 by Economic Sector Sector Frequency Percentage Industry 26 25.2 Education 21 20.4 Health 18 17.5 Social Services 13 12.6 Pensioners 7 6.8 Communications 5 4.9 Judicial 4 3.9 Commerce 3 2.9 Miscellaneous* 6 5.8 Total 103 100.0 Source: Banco de Datos Dinámica Sindical, ENS. * Activities organized by a range of organizations belonging to different sectors.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 23Trade Unions Most Affected during 2009 and 2010 Violations against the Right of Trade Unionists to Life, Liberty and Security of the Person, 2009, Trade Union Cases % Adida 246 42.6 Sintraunicol 54 9.4 CUT 45 7.8 Fensuagro 45 7.8 Educal 43 7.5 Sinaltrainal 28 4.9 Sintraemsdes 22 3.8 USO 16 2.8 Anthoc 15 2.6 Asogras 13 2.3 Umach 13 2.3 UNEB 12 2.1 SER 10 1.7 Sindesena 8 1.4 Sindess 7 1.2 Total 577 100.0 Source: Banco de Datos de Derechos Humanos, SINDERH, ENS and trade union federations. In 2009, 80.7% of anti trade union influence debate on public education,violence was directed against 15 health, oil production, the financialunions, each of which was known for sector, multinational corporations andits capacity to mobilize opinion and labor issues in general in the country.
  • 24 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) Violations of the Right of Trade Unionists in Colombia to Life, Liberty and Security of the Person in 2010, by union Union Cases % Adida 46 22.9 SER 46 22.9 CUT 23 11.4 Sindesena 14 7.0 USO 10 5.0 Sintraunicol 10 5.0 Fensuagro 9 4.5 Anthoc 8 4.0 Simana 8 4.0 Astdemp 6 3.0 Ademacor 5 2.5 Asogras 4 2.0 Asoinca 4 2.0 Sintramienergetica 4 2.0 UNEB 4 2.0 Total 201* 100.0 * It is not yet possible to compare the figures for 2010 with 2009 which remain pro- visional because the methodology has not been applied systematically to the 2010. For those trade unions most affect- tor that is victim of the highest numbered by violence, the panorama in 2010 of attacks. Six of the 15 unions thathas not changed much compared with have suffered most attacks belong to2009. The tendencies remain similar, the sector, an aspect that is consistentwhich I unsurprising given that the with the high levels of mobilizationprincipal problems affecting the sec- and activism of teachers comparedtors in question remain constant too. with other sectors. Once again, it is the education sec-
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 25The Geography of Violations in 2009 and 2010 Violations of the Right of Trade Unionists in Colombia to Life, Liberty and Security of the Person in 2010, by department Department 2009 % Antioquia 267 37.3 Valle 86 12.0 Santander 85 11.9 Caldas 47 6.6 Atlántico 41 5.7 Cauca 25 3.5 Tolima 25 3.5 Bogotá D.C. 21 2.9 Bolívar 17 2.4 Chocó 16 2.2 Risaralda 15 2.1 Arauca 14 2.0 Cesar 11 1.5 Córdoba 8 1.1 Magdalena 8 1.1 Meta 8 1.1 Huila 5 0.7 Norte de Santander 5 0.7 Quindío 4 0.6 Cundinamarca 2 0.3 Popayán 2 0.3 Caquetá 1 0.1 Guajira 1 0.1 Putumayo 1 0.1 Total 715 100.0 As has consistently been the case of trade unionists to life, liberty andhistorically, in 2009 the departments security of the person were Antioquia,most affected by violations of the right Valle and Santander.
  • 26 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) Violations of the Right of Trade Unionists in Colombia to Life, Liberty and Security of the Person between January 1 and August 30 2010, by Department Department 2010 % Antioquia 68 24.7 Risaralda 48 17.5 Valle 34 12.4 Santander 23 8.4 Caldas 20 7.3 Cauca 15 5.5 Bogotá D.E. 11 4.0 Nariño 9 3.3 Arauca 8 2.9 Atlántico 6 2.2 Bolívar 6 2.2 Meta 5 1.8 Magdalena 5 1.8 Córdoba 5 1.8 Tolima 3 1.1 Cesar 2 0.7 Quindío 2 0.7 Norte de Santander 1 0.4 Sucre 1 0.4 Caquetá 1 0.4 Amazonas 1 0.4 Cundinamarca 1 0.4 Total 275 100 * It is not yet possible to compare the figures for 2010 with 2009 which remain provisional because the methodology has not been applied systematically to the 2010 figures. The figures may rise once data collection and analysis is complete. For 2010, the information cur- creased in departments like Risaralda.rently available demonstrates that, This phenomenon raises the possibil-while Antioquia, Valle and Santander ity that anti trade union activity isremain in first place, incidents have in- extending across the country.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 27Selected Cases of Murder, quests for negotiation that had beenAttempted Murder and postponed on several occasions.Disappearances On 21 August 2009, a group of The following section provides unidentified individuals arrived atdetails of just some of a long list of the residence of Gustavo Gómez,violations of the right of trade union- a worker at Nestlé-Comestibles Laists in Colombia to life, liberty and Rosa S.A., and member of the Sindi-security of the person during 2009. cato Nacional de Trabajadores de la On 4 April 2009, Hernán Polo Bar- Industria de Alimentos (Sinaltrainal)rera, a leader of the Sindicato de Tra- in the municipality of Dosquebradas.bajadores and Empleados de la Edu- They knocked on the front door andcación (Sintrenal), was murdered close when Gómez opened it the individu-to his home in the city of Montería, in als opened fire, hitting him ten times.front of his family. He was carrying He was transferred to a clinic wherehis granddaughter in his arms and was he died several hours later. The crimeaccompanied by his sixteen year-old coincided with a set of demands thedaughter who was injured in the at- union had presented to Nestlé Purinatack. Two weeks before his death, Polo Pet Care de Colombia S.A.. GómezBarrera had led a series of actions by was a member of the branch com-administrative workers in the educa- mittee of the Dosquebradas branchtion sector in Montería demanding of Sinaltrainal between 1997 andthe payment of salary increases owed 2000. He was the first cousin of Joséthem by the state. de Jesús Marín Vargas, a worker at On 9 May 2009, Vilma Carcamo Nestlé-Comestibles La Rosa S.A.,Blanco, an odontologist and member and member of Sinaltrainal, himselfof the national committee of the Aso- murdered on 22 November 2007 alsociación Nacional Sindical de Traba- in Dosquebradas. This murder bringsjadores and Servidores Públicos de to 12 the number of Nestlé workers,la Salud, Seguridad Social Integral members of Sinaltrainal, who havey Servicios Complementarios de Co- been murdered in Colombia.lombia (Anthoc) in Magangué, was Abel Carrasquilla was murderedmurdered. Vilma had led a series on 23 August 2009, according to wit-of protests to demand the payment nesses by members of the paramilitaryof back salaries and to continue to group known as “Los Rastrojos”. Therequest negotiation of a series of re- events occurred following Carrasquil-
  • 28 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)la’s efforts to recruit new members in stricting and impeding the exercise ofthe workplace, efforts that had already trade union freedoms and, additional-resulted in warnings that he cease ly, of encouraging the development anthese activities. anti-trade union culture that accused On 24 November, Luis Javier Cor- the unions of causing companies andrea Suárez, president of Sinaltrainal, public institutions to fail, threateningreceived death threats on a cell phone public order, and of working in favorthat had been assigned him under of the subversive groups, labelingthe protection program run by the them as terrorists (a term that gainedMinistry of the Interior and Justice. currency internationally in the wakeHe received further threats, by phone of 11 September 2001), and in par-and fax, just a few days after the Inter ticular, accusing them of being an ob-American Commission of Human stacle to development and restrictingRights had announced its decision to job creation. As a result, trade unionincrease the precautionary measures freedoms have been restricted and thealready granted to the members of responsibility of state agents in theSinaltrainal, and during a dispute violation of the human rights of tradeinvolving workers at Industria Nacio- unionists has increased.nal de Gaseosas S.A. (Coca-Cola), a Despite the promises of the Uribecompany which has refused to sign a government to destroy the guerrillacollective bargaining agreement, even groups and to demobilize the para-though it had agreed a negotiating militaries, the conflict has continuedagenda presented by the union. and the likelihood that the rights of workers would be guaranteed hasViolations During the fallen. Given this context, violationsEight Years of the of the rights of unionized workersGovernment of Álvaro have come to appear normal, because the prevailing logic of DemocraticUribe Vélez Security has associated them with the armed conflict.Unchanged Realities during EightYears of Democratic Security The two periods of most intense Democratic Security, the trade- violence against trade unionists oc-mark policy of the Álvaro Uribe Vélez curred between 1996 and 1997 andgovernment, included measures that 2000 and 2002 during the govern-had the effect, in many cases, of re- ments, respectively, of Álvaro Uribe’s
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 29predecessors as president, Ernesto and unionized teachers increased, andSamper and Andrés Pastrana. During the percentage of state responsibilitythe Uribe government the problem for the overall number of violationswas mutable. While the number of has grown compared both to 1996murders decreased, the level of viola- and 2002.tions of the rights of female unionists Violations of the Right of Trade Unionists in Colombia to Life, Liberty and Security of the Person by Administration Government of Government of Government of Kind of Violation Andrés Pastrana Álvaro Uribe Álvaro Uribe Overall Total 1998-2002 2002-2006 2006-20101*Threats 1,272 1,298 1,215 3,785Murder 580 362 166 1,108Forced Displacement 264 146 388 798Arbitrary Detention 209 206 89 504Harassment 57 138 93 288Murder attempt with/ 70 43 40 153without injuryKidnapping 108 29 0 137Forced Disappearance 46 22 11 79Illegal Search 3 17 10 30Torture 4 8 12 24Murder of Family 1 0 0 1Member Overall Total 2,614 2,269 2,024 6,907Source: Banco de Datos de Derechos Humanos, SINDERH, ENS and trade union federations. A comparison of the presidential widely publicized achievements inperiods of Álvaro Uribe and Andrés the protection of the rights of tradePastrana shows that violations of the unionists were not reflected in changeshuman rights of trade unionists fell to the underlying structure of the vio-by 15.2% under Uribe. However, the lence perpetrated against them.
  • 30 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) Violations of the Right of Trade Unionists in Colombia to Life, Liberty and Security of the Person during the Government of Uribe Vélez Kind of Violation 2002-2006 2006-2010 Total Threats 1.298 1.348 2.646 Murder 362 203 565 Forced Displacement 146 388 534 Arbitrary Detention 206 89 295 Harassment 138 97 235 Murder attempt with/without injury 43 53 96 Kidnapping 29 0 29 Forced Disappearance 22 14 36 Illegal Search 17 10 27 Torture 8 12 20 Total 2.269 2.214 4.483 Source: Banco de Datos de Derechos Humanos, SINDERH, ENS.Measures adopted by the clear message at the highest level ofUribe Vélez Government that the important role played in societyEncouraged Violations against by trade unions”.Trade Unionists b . DAS Program to Eliminate a . Stigmatization of the trade Trade Unionists . The Committee onunion movement by high ranking Freedom of Association referred tomembers of government. The Uribe the serious violations committed byVélez government facilitated and the DAS, indicating that:fomented anti-trade union violence “The Committee observes that theby frequently stigmatizing the ac- allegations of presumed connivancetivities of trade unionists in Colombia. between a state body responsible forThroughout the period of government, protecting trade unionists and groupsthe President, high ranking govern- operating outside the law, are extremelyment servants and military officials serious, as such a situation can seriously undermine the credibility of the Govern-frequently, and publicly, questioned ment’s determination to combat violencethe legitimacy of trade union activi- and impunity”.10ties. The government decided not to With the designation of Jorge Au-comply with the 2009 recommenda- relio Noguera Cotes as Director of thetion of the Committee on the Applica-tion of Standards, which called on the 10. Report 356, Case 1787, March 2010,Colombian authorities to transmit “a paragraph 563.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 31DAS in September 2002 (the Uribe ing, promoting, financing and devel-government having been inaugurated oping joint activities with paramilitaryon 7 August 2002), a criminal struc- groups and placing the DAS at the ser-ture was established within it, which vice of these illegal groups and otherutilized the machinery of the state narcotics traffickers; of homicidioto develop paramilitary structures, agravado [first degree murder] of theaccording to the justification that human rights defender Alfredo Correathey were acting to wage a supposed D’Andreis, the trade unionists: Zully“counterinsurgency war”, that is, car- Esther Codina and Adán Pacheco,rying out military actions against the and of the politician and sociologistguerrilla groups, though in reality the Fernando Pisciotti Van Strahlen. Hepolicy led to the criminal persecu- is also accused of the offenses oftion of the civilian population. It has violating legal reserve by providingemerged as part of ongoing legal pro- intelligence information to para-ceedings that Jorge Noguera named military groups; of the destruction,individuals who were necessary to suppression or concealment of publicfurthering his criminal activities in documents, by destroying evidencekey positions in the DAS, the major- related to paramilitaries and narcoticsity of whom were answerable to him traffickers; and of arbitrary and unfairin his capacity as Director of the in- abuse of authority in as much as hestitution. These included people who fired numerous DAS officials whohelped to finance the paramilitaries: it were acting to combat paramilitarism.has been demonstrated that Noguera Jorge Noguera is one of a grouphad promised that a commission of of politicians and public figures ac-between 5% and 10% would be lev- cused by the justice system of pro-ied on each contract celebrated by moting and encouraging paramili-the DAS and the amount paid to the tarism in Colombia . Thus, a seriesBloque Norte (Northern Bloc) of the of investigations involving numerousparamilitaries. witnesses have confirmed the crimi- Currently, Noguera is before the nal responsibility of Noguera Cotes,Supreme Court of Justice facing and also of Rafael García, the formercharges of concierto para delinquir head of IT at the DAS, whose criminalagravado [aggravated conspiracy to activities have been demonstrated incommit a criminal act] in as much as testimonies and documents occupyinghe is accused of initiating, encourag- more than 50,000 pages, that confirm
  • 32 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)the criminal responsibility of Noguera evidence for use in legal processesfor the crimes for which he is under against them, and v) carrying out “of-investigation. fensive intelligence”, that is, directly Currently, the paramilitary leaders threatening and harassing trade unionmost implicated in these crimes have leaders, human rights defenders, mag-been detained on charges of concierto istrates of the high courts, journalists,para delinquir agravado, while oth- and opposition political leaders.ers, such as the paramilitary leader i) Passing lists of trade unionistsRodrigo Tovar Pupo, alias Jorge 40, targeted for murder to paramilitaries.have been extradited to the United During the hearings, DAS officialsStates. The Fiscalía has, furthermore, recognized that trade unionists andcertified documents to be used in human rights defenders had been thecriminal investigations involving subjects of “intelligence activities”other paramilitaries. intended to gather information for In recent months it has proved pos- inclusion in the DAS data bases. In-sible to establish the way in which the formation was subsequently extractedDAS was used to attack the legitimate from the data bases and included inactivities of trade unions in Colom- lists that Noguera handed over to thebia. The violations committed by paramilitaries.the DAS, involved: i) passing lists of The most important witness in thistrade unionists targeted for murder to case, the former IT Director Rafaelparamilitaries, ii) illegal interception García Torres, provided the namesof communications involving trade of victims and of the contacts whounion leaders, grass roots members, maintained communication betweenhuman rights defenders, magistrates the paramilitary blocs and high levelof the high courts, journalists and DAS employees. His testimony co-opposition political leaders, iii) orga- incided with that of at least six othernizing break-ins at trade union offices witnesses: two army colonels, Condeto steal documentation for use in intel- Rubio and Pardo Ariza; two DASligence purposes, iv) employing DAS officials, Rodolfo Benítez and Davidagents responsible for the protection Rivero; and two paramilitary leaders:schemes of trade unionists and oth- Mancuso and alias Don Antonio.ers to gather information and use it to The ENS and the CCJ have beenharass the people they were assigned able to establish that, of the individu-to protect and, even, to generate false als named in the list, seven were sub-
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 33sequently murdered, one, allegedly, One person on the list was forc-by the paramilitary group the Auto- ibly disappeared by an unidentifieddefensas Unidas de Colombia (AUC) armed group; seven were arbitrarilyand two by unidentified paramilitary detained by state agents; six weregroups. The other four were murdered victims of death threats; two survivedby unidentified armed groups. The assassination attempts - one of whichvictims were: César Augusto Fonseca was allegedly committed by the AUCMorales, José Rafael Fonseca Cas- and another by an unidentified armedsiani, José Ramón Fonseca Cassiani, group; a further two were forced toAlfredo Correa de Andreis, Zully flee their homes, one of whom hasEsther Codina Pérez, Saúl Alberto gone into exile.Colpas Castro and José María Mal-donado. Name Violation Víctor Manuel Jiménez Fruto Forced disappearance José Piñeros Arbitrary detention Carmelo Piñeros Arbitrary detention Alfonso Piñeros Arbitrary detention Alberto Acosta Arbitrary detention Argelio Contreras Arbitrary detention Alfredo Oviedo Arbitrary detention Ney Medrano Arbitrary detention Ángel Salas Threat Gilberto Martínez Threat Álvaro Londoño Cardona Threat José Meriño Threat Álvaro Márquez Threat Carmen Torres Threat Nicolás Hernández Cabrera Assassination attempt Miguel Ángel Bobadilla Assassination attempt Zunilda Colpas Forced displacement Álvaro Londoño Forced displacement
  • 34 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) Senior DAS officials handed over a part of a wider plan to exterminatelists to Rodrigo Tovar Pupo, alias trade unionists and opposition leadersJorge 40, containing names includ- that was carried out by paramilitarying those of Professor Alfredo Correa groups and by their members whoD’Andreis, a social activist and mem- operated within the DAS.ber of the teaching union ASPU; the The process demonstrated that,journalist and trade union leader in the in the case of Professor Correahealth sector Zully Codina; and the D’Andreis, the DAS compiled falseliberal politician and sociologist Fer- intelligence reports and manipulatingnando Pisciotti Van Strahlen, who, ac- the testimony of demobilized fight-cording to the recognized paramilitary ers who were in reality working forEdgar Ignacio Fierro Flórez, alias Don the paramilitaries or acting as falseAntonio, in his preliminary testimony witnesses; and that these intelligenceunder the Justice and Peace process, reports were used to establish falsewere murdered by the Northern Bloc charges against him, of which he wasof the AUC.. subsequently absolved. Following the In these reports, which were failure of the attempt to frame Correauncovered in the DAS archives, D’Andreis, Rodrigo Tovar Pupo, aliasmembers of the union Anthoc, the Jorge 40, and Edgar Ignacio FierroCUT-Bolívar, the USO and other Flórez, alias Don Antonio, proceededlocal organizations were also men- to murder him; the same proceduretioned, this practice was the initial was used against other trade unionphase of the dirty war. In summary, leaders.Alfredo Correa D’Andreis, Zully During the legal examinationCodina and Fernando Pisciotti, like of the documentation, it was foundmany others, were victims of counter- that intelligence material had beeninsurgency strategies that were based compiled on the murdered victims,on the theory of the “enemy within” evidence that suggests that intelli-and formed part of a “political war” gence activities had been carried outwaged against social and trade union before they were killed. During crossorganizations (labeled the frente so- examination some of the former DASciolaboral or “social and labor front”). officials stated that the informationThe strategy was implemented by the on trade unionists in the archives wasstate apparatus, directly controlled related to public order matters and thatby Jorge Noguera Cotes, and formed it was routine to gather such informa-
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 35tion, but that it was compiled using DAS created a “strategic and offensivesources available in the public sphere, intelligence group” known as G3, outthat is using news sources and legally of which the officials carried out theiravailable information. But other for- illegal activities between 2004 andmer officials accepted the existence of 2008.12orders to carry out field-based activi- The investigations of the Fiscalíaties to verify the information; in our into the activities of the DAS uncov-opinion, these constituted infiltrations ered information on the monitoringof trade union protests and other union of internal communications of tradeactivities by DAS secret agents. union organizations including the ii) Illegal interception of com- CUT and the Confederación de Tra-munications and surveillance of tar- bajadores de Colombia (CTC), as wellgets . The charges formulated against as, among others, Anthoc, the Sindi-the former officials of the DAS by the cato de Trabajadores de la EmpresaFiscalía accused them of carrying out, de Teléfonos de Bogotá and Asonalas a part of their regular functions, Judicial.13acts of surveillance and intercepting The former DAS officials alsothe communications of trade union recognized that these illegal activitiesleaders, grass roots members, human had taken place. During one of therights defenders, magistrates of the hearings, Jorge Alberto Lagos, for-high courts, journalists and opposition mer director of Counter-Intelligencepolitical leaders. These activities also at the DAS confirmed that “what weinvolved the gathering of personal did find were intelligence activitiesdata (habits, weaknesses, strengths, including the targeting of governmentproperty and, even, the names of employees and the surveillance andschools attended by their children, harassment of trade unionists”.14or home addresses). The surveillance iii) Organizing break-ins atalso involved the illegal inspection ofbank accounts, financial transactions 12. February 22, 2010, well as the organization of smear com 13. “Hasta familiares de magistrados tuvie-campaigns targeting the victims.11 ron seguimiento del DAS”. DocumentThe Fiscalía demonstrated that the published by Equipo Nizkor, 28 April 2009, www.derechos.org11. “Se cierra el círculo”, Semana, mayo de 14. “Lo que se hacía en el DAS según sus 2010. protagonistas”, http://www.lasillavacia. nacion/cierra-circulo/138929.aspx com/historia/6854.
  • 36 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)trade union offices to steal docu- de Cartagena SINCONTAXCAR andmentation for use in intelligence Jorge Ortega Hernández, President ofpurposes . It is also apparent that the Bolívar sub-branch of the USO.the G3 developed a further strategy According to these people the meet-involving the theft of information ings were held in order to analyzefrom human rights defenders, trade the principal human rights violationsunionists and their organizations. An in the Department of Bolívar causedexample of the practice was provided by the policies implemented by theby a revision made by the Fiscalía of government of President ALVAROthe DAS archive in Bogotá, which URIBE, as well as other persecutionsuncovered a document known as carried out against trade union and“Cartagena de Indias”, in which it is civic leaders, administrative corrup-clear that the DAS ordered agents to tion, and the decentralization andinfiltrate a meeting of the CUT in the winding-up of state bodies, in orderDepartment of Bolívar; it mentions the to inform the ILO about this difficultfollowing events that occurred during situation and take advantage of theirthe meeting: good relations with the Asturian Hu- “In early May 2005 in the Salón man Rights Commission in Spain andCoral at the Centro Recreacional the work of the Colombian journalistComfenalco in the Crespo neighbor- Claudia Julieta Duque Orrego, who ishood, several meetings were orga- included in Amnesty International’snized by the Bolívar sub-branch of the protection program”.CUT, with the participation of Luis It goes on to say,Alberto Mendoza Periñán, President “They claimed that between 2003of the CUT, Rubén Castro Quintana, and 2004 more than 700 trade unionPresident of the Sindicato de Tra- members, including leading membersbajadores de las Electrificadoras de of society such as Amaury PadillaColombia, Luis Carlos Sources Pérez, Cabarcas, ex employees of Depart-President of the Sindicato Único mental government of Bolívar; thede Educadores de Bolívar SUDEB, university teacher Dr. Alfredo CorreaCarlos Carrascal Figueroa, President De Andreis, the civic leader Románof the Liga de Usuarios de Servicios Torres, Rafael Augusto PalenciaPúblicos Domiciliarios USPD, Este- Fernández, who works for the Minis-ban Barbosa Palencia, President of try of Labor, the civic leader Rufinothe Sindicato de Conductores de Taxis Pájaro Guardo and Álvaro Rodríguez,
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 37had been arrested at the initiative of sittelecom, sintramienergetica, asputhe Fiscal [prosecutor] Demóstenes and sitradin is currently normal. InCamargo De Ávila, of the Fiscalía relation to the strike that has beenNo 33 in Cartagena and accused of ordered by the trade union federationsthe crime of rebellion15 and of being for the 16 September, they are wait-supporters of the guerrilla groups”. ing for instructions from the national This document alone speaks leadership”.17clearly of the levels of illegal infiltra- The witness Jorge Lagos, a formertion of the trade unions. But there is DAS official, testified that they peri-further evidence that the DAS main- odically reviewed the publications oftained close watch on trade unionists. human rights organizations, becauseFor example, a document titled Apre- of the damage they caused the gov-ciación situación de orden público ernment, and because many of themdepartamento del Cesar, del 20 de referred to anti-trade union violence.agosto al 9 de septiembre [Overview The witnesses also agreed about theof public order in the Department of nature of strategic intelligence, which,Cesar between 20 August and 9 Sep- according to the DAS, consisted intember 2002], written by the sectional detecting the risks and threats poseddirector of the DAS in Cesar,16 says in to the government and national secu-one section: rity, and monitoring organizations, “Social and labor front. The trade including unions, and individuals,union at the multinational cicolac- who threatened the security of thenestle, has, for seven months now, state; finally, they confirmed thatbeen involved in a process of nego- this information was intended for thetiation, and is currently in the final highest levels of government – thestage of arbitration. The activity of the President and ministers – so that theyother unions, aducesar, sintraelecol, could use it to establish policies and take decisions.15. Article 467 of the Colombian Penal Code iv) Employing DAS agents re- defines Rebellion as follows: “Rebellion. sponsible for the protection schemes Those who, by force of arms attempt to overthrow the national government or of trade unionists and others to suppress or modify the current constitu- gather information and use it to ha- tional or legal regime …”16. CO. 11 Folios 162 a 169, Information from 17. CO. 11 Folios 162 a 169, Information the Colectivo de Abogados José Alvear provided by the Colectivo de Abogados Restrepo. José Alvear Restrepo.
  • 38 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)rass the people they were assigned to personal integrity of trade unionistsprotect and, even, to generate false was in fact used by the institution toevidence for use in legal processes threaten, harass and unleash smearagainst them . DAS officials who were campaigns against different victims.detailed to provide protection used the Before the Criminal Chamber ofinformation they were privy to harass the Supreme Court Jorge Noguerathe people they were supposed to pro- recognized that, in effect, orders totect and even to fabricate evidence for put trade unionists under surveillanceuse in legal proceedings. In 1997 the were emitted from the DAS. “I didprogram was under the direction of not introduce this – it was an existingthe Ministry of the Interior, and the practice, and was intended to preventbodyguards employed as part of the disorder”.19 According to the formerhard security scheme were all, until DAS official Jorge Lagos, “deathDecember 2009, provided by the DAS. threats and threatening leaflets wereThe investigations carried out by the distributed from the DAS”.20Fiscalía showed that information Finally, it is important to empha-produced as a result of the security size that all the witnesses and theneeds assessments of the organiza- accused who carried out these statetions included in the program – as intelligence activities, including Mar-well as information provided by the tha Leal, the analyst who summarizedbodyguards themselves - was used and structured the intelligence reports,to carry out offensive intelligence on swore under oath that the ultimatevarious victims.18 recipient of the information was v) Carrying out “offensive intel- President Álvaro Uribe Vélez himself.ligence”, that is, directly threaten- Thus it may be confidently stated thating and harassing the victims . As the President was not ignorant of thewell as intercepting communications actions that were being orchestratedand carrying out surveillance, theinformation managed by the DAS 19. “Jorge Noguera admite seguimientossupposedly to guarantee the life and del DAS a sindicalistas”, 12 February 2010, justicia/articulo167053-jorge-noguera-18. This information was obtained by the admite-seguimientos-del-das-a-sindica- Comisión Colombiana de Juristas, in its listas. capacity as a victim in the criminal pro- 20. “Lo que se hacía en el DAS según sus ceedings against high ranking officials of protagonistas”, http://www.lasillavacia. the DAS. com/historia/6854.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 39from the DAS and that, consequently, decided to adopt a strategy designedthe path is open to establish his po- to attack the reputations of the vic-litical and – above all – his criminal tims, seeking to suggest links, forresponsibility for its actions. example, between trade union victims 3. Concerted Efforts by the Gov- and armed groups, or that the violenceernment to Deny the Existence of was linked to crimes of passion orAnti-Trade Union Violence common criminality. At other times The Uribe government has sought the strategy focused on NGOs, seek-to convince the outside world of at ing to attack the credibility of theirleast three things: 1) that the violence research, at times even employingcommitted against trade unionists in members of unions connected withColombia is not directed against trade political currents close to the govern-unions per se, but is a result of the ment to front the attacks and denials.armed conflict and, in particular, of Thirdly, the government claimed thatthe infiltration of the unions by armed the interpretations of the unions weregroups; 2) that anti-trade union vio- ideological and partial, and tried to getlence is a thing of the past, overcome “independent academics” to expressas a result of Democratic Security pol- themselves publicly on the phenom-icy, and that the murders and acts of enon of anti-trade union violence.violence that occur today are commit- None of these strategies have beented for personal or economic reasons successful; on the contrary, in the in-unconnected with trade unionism; 3) ternational arena where the questionthat the enlargement of the protection is debated, concern remains high andprogram for trade unionists and the the government is still urged to adoptcreation of the Labor Subunit of the effective measures to overcome theFiscalía, have substantially improved extremely high levels of violence andthe situation of violence and impunity. impunity that affect trade unionists In its desire to differentiate be- in Colombia.tween the murder of unionized teach- It is worth reiterating that it woulders and of other unionists the Uribe be a mistake to equate anti-tradegovernment created a set of parallel union violence during the periodvariables and a distorted reading of the between 1991 and now simply withdimensions of the problem. The same the number of murders committedhappened with unionized agricultural each year. The ENS and the tradeworkers. Secondly, the government union confederations have of course
  • 40 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)welcomed the decrease in homicides published research on anti trade unionover recent years. But a life is a life, violence in Colombia, in which theyand a vision that goes beyond mere emphasized the reduction in the num-statistics is alive to the fact that though bers of murders of unionized workers,there may be fewer people dying, there and indicated that the most importantare still dying, and we are far from argument advanced against the FTAwhere we should be. Furthermore, in the country is ideological and un-just as anti-trade union violence is not supported by the empirical evidence.21only manifested in murders but also The research employed a range ofencompasses other forms of violence, documentation to demonstrate theincluding symbolic violence, it is also decrease in the rate of murders of tradeimportant to stress that the claim that unionists in recent years. First, theanti-union violence has been reduced authors examined the decrease in thesignificantly is entirely untrue. A com- registered murders of trade unionistsparison by presidential period of the before developing a range of reasonsviolent acts tracked permanently by (indices) that they used to strengthenthe ENS demonstrates that the claim their arguments. The research also il-has no empirical basis and that the fall lustrates the evolution of governmentin the overall violations of the rights spending destined for the protection ofof trade unionists has been only 14%. trade unionists as well as the number of The question of the human rights unionists protected by the government.of trade unionists has led to a debate As well as illustrating the decreasethat has converted the humanitarian in murders, the authors also carry outcrisis in the country into a statistical an empirical, econometric, exercisegame in which figures and method- designed to examine the hypothesisological innovations are employed to that as trade union activity intensi-conjure an illusory solution. In this fies so does anti-trade union violence.debate the victims have been left as To do this the authors use panel datathe disconcerted audience of a dis- (in the form of a chronological seriescourse that denies the deaths of theirloved ones while offering no prospect 21. “Is violence against union members inof returning them to life. Colombia systematic and targeted?” Da- In November 2009 two research- niel Mejía and María José Uribe, Versioners at the Universidad de los Andes, from November 2009, published on theDaniel Mejía and María José Uribe, web: mejialondono/research.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 41covering various Colombian depart- “Unknown under-registration .ments), concluding that the statistical The Mejía and Uribe study uses con-evidence is sufficient to reject the venience sample data as the basis forhypothesis. its claims. These data are based on At first the ENS and CCJ believed available, observable reports on unionthat the research was an interesting homicides and union activity whichcontribution to the debate over anti- have been collected without a scien-union violence. However, we soon tific random selection method. Thesediscovered that both Professor Mejía data cannot be relied upon to representand the research findings had been an underlying larger population or topresented by the Colombian Foreign accurately describe patterns over timeMinistry in the United States and and space”Canada, and widely distributed in “Possible violation of model as-Europe. We came to understand that sumptions . The statistical methodsit was not a question of healthy debate, used in the Mejía and Uribe studybut a further attempt to deny reality. to evaluate the relationship betweenAlthough the research would appear union homicides and union activity”to be rigorous in its use of statistics, its are based on commonly used leastassumptions demonstrate a profound squares regression and instrumentalignorance of the realities of trade variables analyses. These methodsunionism in Colombia. Its conclu- rely on very strong assumptions.sions proved to be more ideological However, Price and Guzmán do notthan those of the research it sought to believe that the study adequately ad-counteract. dresses the data’s potential violations The research generated an aca- of these assumptions and the poten-demic debate within which the com- tial ramifications on the estimatesments of Benetech are particularly when these assumptions are violated.important as they provide several Violations of these assumptions couldexplanations of how Mejia’s article change the magnitude of parameterfails to resolve the question posed in estimates (used to quantify the rela-its title of whether violence against tionship between union activity andunion members in Colombia is sys-tematic and targeted:22 Against Union Members in Colombia Systematic and Targeted?” Megan Price and Daniel Guzmán, Benetech Human22. Comments to the article “Is Violence Rights Program, May 28 2010.
  • 42 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)union violence) and the significance distort the truth about violence”.23of parameter estimates (used to deter- Other analysts have entered themine the presence or absence of any debate about figures. The importantrelationship)”. political analyst Claudia López, wrote: “Uncorrelated errors . One of the “I believe that the government andmain modeling assumptions which the trade unions have entered into aPrice and Guzmán believe these data not-very-useful dispute about measur-violate, uncorrelated errors, has a di- ing how many hundreds of trade unionrect affect [sic] on significance tests deaths there have been. Discussingused in the Mejía and Uribe study. figures for figures’ sake is a sterileTherefore they are highly skeptical exercise because any figure, even theabout the reliability of the conclusion official figure, is scandalous. Just onethat union activity and union violence dead trade unionist is bad enough. Theare not significantly associated. very fact that we are now talking about Poor quality models . The de- differences in the hundreds indicatesscriptive and analytic results present- that trade union activity in Colombiaed in Mejía and Uribe’s study indicate has, without doubt, been marginalizedthat union member homicide rate is by violence, and this has obviouslya highly variable outcome measure. had the effect of scaring the work-This variation results in poor-quality ers off organizing. I always ask themodels. Price and Guzmán and that following question to people who un-control variables in the various model derestimate or deny anti-trade unionformulations show inconsistent and violence: How many trade unionistsindeed reversed effects, suggesting would need to die in order to affectproblems with the model specification, trade union membership: One? Two?with the data on homicides, or both”. A Hundred? Who is prepared to give “The poor quality of these mod- me an answer? When you frame theels, the unknown under-registration discussion in this way, nobody knowsinherent in the data, and the question- what to say”.able modeling decisions, mean that “[…] I think that the Uribe govern-the strong conclusions in Mejía and ment has shown the will and commit-Uribe’s study are unsupported by the ment to reduce anti-trade union vio-analyses. Price and Guzmán pointout that unchecked, those conclusions 23. The full text of the comments can be found at publications/mejia-exec-sum.pdf
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 43lence and to improve protection levels, disappeared.but it has not shown the political com- The Uribe government defendedmitment to recognize the magnitude the protection program as the mostof the violence and the magnitude of important measure to combat vio-the impunity. Instead, it has tried to lence against the trade union move-minimize it, to manipulate the figures ment. Nevertheless, the protectionand to reduce them, saying that the that, in campaigns coordinated bykillings have not occurred because the Ministry of the Interior, wasthe victims were trade unionists but so vaunted –especially at interna-because they were Colombians. And tional level– failed even to cov-in this battle the government has come er all the trade unionists at worst because while some might Protection measures, which needaccept their figures and recognize that to be urgently implemented becausethere have been one thousand deaths they are required by people at immedi-and not two, or that only 500 people, ate risk, constituted another blemishand not two thousand, have been on the program. For example, if akilled because they were trade union- threatened person is granted hard pro-ists we would still be talking about an tection measures such as bodyguards,unacceptable and scandalous figure”.24 weapons or armored cars, the police or the DAS are required to carry out aMeasures adopted by the risk assessment which is then passedUribe Vélez Government were on to the Ministry of the Interior. Ac-Insufficient to Combat Human cording to the Fundación para la Lib-Rights Violations Committed ertad de Prensa (Foundation for Pressagainst Trade Unionists Freedom, FLIP), which independently Despite the expansion of the pro- monitors the protection program forgram to protect trade unionists, 565 journalists, indicated that in 2008, thewere murdered during the lifetime of average assessment took four months.the government, 96 suffered attempts While it is true that this figure onlyon their lives and 36 were forcibly refers to threatened journalists, the24. Agencia de Información Laboral and situation was no different in the case Sindical de la ENS [ENS Labor and Trade of the other groups included in the Union Information Agency], “Balance al program, such as trade unionists and Gobierno de Uribe. Violencia antisindical human rights defenders at risk.25 e impunidad”, Medellín, ENS, agosto 6 de 2010. 25. 4726
  • 44 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) Between June and August 2009 trade unionists.the protection program ran out ofmoney and all its measures were The Absence of Dialogue and ofhalted. There was no money available an Agenda to Combat Anti-Trade union Violence during the Uribeto contract new bodyguards, to buy Vélez Governmentgasoline for vehicles or to purchase The Uribe government preferredair tickets to transfer threatened in- to deny and distort the situation ofdividuals. The Vice Minister of the anti-trade union violence and impu-Interior, Viviana Manrique, responded nity, stigmatizing its victims, andunofficially to press enquiries with refusing to enter into dialogue, letthe argument that the principal reason alone develop an agenda to resolvefor the suspension was the expansion the situation. The new governmentof the program to include more ben- of Juan Manuel Santos is faced witheficiaries.26 According to the political the challenge of developing a freshwebsite La Silla Vacía, focus that recognizes the seriousness “[…] while in 2008 [the program] of the situation and the importanceprotected 10,716 people, by September of an agenda to construct truth, jus-of this year [2009] it had reached al- tice, reparation and guarantees ofmost 10,000 people already, obliging non-repetition. The agenda must, ofthe Treasury Ministry obliged to ap- course, be agreed with the trade unionprove an additional budgetary contri- movement.bution of 15 billion pesos. According The agenda should also containto Ministry sources the increase was prevention and promotion measures tonot required because of an increase in prevent the abuse of the right to life,the level of insecurity in the country liberty and security of the person of- an admission that would have put trade unionists, beginning with thein doubt the positive effects of the recognition of the legitimacy of tradeDemocratic Security Policy – but was unions and their activities, and takingdue to an expansion in the Program”.27 measures to overcome impunity. Such These government statements lack an agenda would imply the design ofcredibility when contrasted with the policies to guarantee proper criminalcontinuing violations of the rights of investigation of cases of violence26. Ibid. against trade unionists.27. ria/4726
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 45Anti-Trade Union unionists were murdered in Colombia,Violence: A Never- of whom 2,570 were men and 272 women. Furthermore, 731, or 25.7%,ending Story of these murders were committed Between the 1 January 1986 and against trade union leaders.the 30 August 2010, 2,842 trade Murders of Trade Unionists between 1 January 1986 and 30 June 2010Year 86 87 88 89 90 91 92 93 94 95 96 97 98Murders 36 73 138 96 58 96 141 201 104 229 277 171 99 Total 2,842Year 99 00 01 02 03 04 05 06 07 08 09 10Murders 83 138 193 191 101 95 72 78 39 52 47 35Source: Banco de Datos de Derechos Humanos, SINDERH, ENS. An analysis of all the data avail- attempted murders of unionized work-able for the period shows that there ers, 217 forced disappearances andwere at least 11,096 violations of the at least 4,828 death threats resultingright to life, liberty and security of from union activity, as well as 1,696the person of trade unionists in the forced In addition, there were 274 Violations of the Right of Trade Unionists in Colombia to Life, Liberty and Security of the Person, between 1 January 1986 and 30 August 2010 Kind of Violation Nº of cases % Threats 4,826 43.5 Murder 2,842 25.6 Forced Displacement 1,696 15.3 Arbitrary Detention 632 5.7 Harassment 310 2.8 Murder attempt with/without injury 274 2.5 Disappearance 217 2.0 Kidnapping 165 1.5 Torture 82 0.7 Illegal Search 49 0.4 Murder of Family Member 3 0.0 Total 11,096 100.0 Source: Banco de Datos de Derechos Humanos, ENS, trade union confederations.
  • 46 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) These figures confirm the exis- movement, an interest that has beentence of a human rights crisis affect- materialized in the deaths of thou-ing the trade unionism in Colombia sands of victims. The result has beenthat is not the result of diffuse and the development of an anti-union en-indiscriminate patterns violence. On vironment marked by different formsthe contrary, what exists is a sustained of violence ranging from legal attacksinterest in exterminating the union to physical extermination. Murders of Members of the 15 most affected Trade Union Organizations between 1 January 1986 and 30 August 2010 Trade Union Nº of Murders Fecode* 921 Sintrainagro** 798 USO 116 Anthoc 58 Sintraelecol 50 Asonal judicial 47 Sutimac 38 Fensuagro 37 Aseinpec 33 Sinaltrainal 22 Sintraemcali 22 Sincontaxcar 21 Sintramunicipio 21 Sintraemsdes 20 ASPU 19 Total 2,223 * The figures for Fecode group the murders committed against the federation’s member unions: Ade, 5; Adea, 8; Adec, 9; Adeg, 9; Adem, 13; Ademacor, 54; Ades, 16; Adida, 334; Adih, 6; Aducesar, 37; Aica, 28; Asedar, 34; Asep, 18; Asinort, 37; Asodegua, 10; Asoinca, 31; Educal, 34; Edumag, 33; Ser, 31; Ses, 26; Simana, 38; Sindimaestros, 10; Sudeb, 25; Suteq, 3; Sutev, 53; Umach, 6; and Fecode, 13. ** The figures for Sintrainagro group the murders committed against the unions that merged to form the union: Sintrainagro, 677; Sintagro, 97; Sintrabanano, 21; and Sindejornaleros, 3. This table illustrates how anti- which it is possible to deduce that antrade union violence has been con- extermination plan existed aimed atcentrated against 15 unions – that is, trade union organizations and not just78.2% of murders were committed at individuals.against these organizations, from
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 47 Murders of Trade Unionists by Department, between 1 January 1986 and 30 August 2010 Department Total Antioquia 1,337 Santander 222 Valle 168 Cesar 116 Magdalena 93 Córdoba 82 Arauca 81 Norte de Santander 77 Bolívar 67 Risaralda 52 Atlántico 52 Cauca 52 Nariño 48 Bogotá D.E. 46 Tolima 41 Meta 41 Caldas 40 Putumayo 34 Caquetá 32 Sucre 28 Cundinamarca 20 Boyacá 17 Huila 15 Guajira 14 Casanare 14 Guaviare 10 Chocó 9 Quindío 8 Amazonas 3 Total * 2,819 * The total represents the 2,819 cases about which there is accurate information concerning the department where the murder occurred; in 24 cases it has still not been possible to determine the precise location of the event.
  • 48 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) In common with the generality the highest number of violations ofof violations against the right to life, trade union rights have occurred. Theliberty and security of the person of figures are overwhelming: 63 .12%trade unionists in Colombia, it has of the murders committed in thebeen in the Departments of Antioquia, world during the decade occurred inValle and Santander that the majority Colombia . Similar situations, thoughof murders of trade unionists have less dramatic, occurred in the Philip-occurred (60.7% of the total). pines, which accounted for 5.44% of the world’s murders and in GuatemalaMurders of Trade (3.45%).Unionists Around the Murders by RegionWorld During the Last South America . The riskiest re-10 Years gion to be a trade unionist during the Over the last decade at least three last decade was South America. Theunionized workers were killed each figures are devastating. Of the 1,695week somewhere in the world. In trade union members murdered, 1,251other words, between 1999 and 2009 occurred in the southern part of theapproximately 1,717 unionized work- American continent. Two countriesers were murdered, an average of 170 stand out in the region: Colombia andmurders a year. A scandalous 1,254 Brazil. 1,081, or 63.12% of the world’s– approximately 73% of the murders victims, were from Colombia. Theregistered in the world during the last figures confirm that Colombia is the10 years – occurred in South America most dangerous place in the world toand some 13.5% (233 murders) in be a trade unionist. Meanwhile, 99Asia; Central America and the Carib- unionists were murdered in Brazilbean registered 94 Murders of Trade during the same decade. However,Unionists (5.4%) and Africa 79 (4.6%); during the last two years Brazil hasthere were 50 (3%) in the Middle East, managed to reduce the level of mur-while in Europe there were 8 (0.4%). ders to one a year. A detailed examination of the Asia . Between 1999 and 2009,murders of trade unionists over the with 230 murders (13.44% of the to-decade has confirmed that Colom- tal), Asia was the continent with thebia, Bangladesh, the Philippines and second highest level of trade unionistsGuatemala are the countries where murdered. Though the figures were
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 49not as great as those for South Ameri- largely thanks to the violent events inca they are still worryingly high and in Guinea, where 22 workers were killedsome cases - Nepal and the Philippines in 2006 (88% of the annual regionalwith 91 and 93 homicides respectively total), and 30 in 2007 (96,77%).– alarmingly so. The worst years were Middle East. The most violent2002, 2005 and 2006. However, it is places in this region were the Westnoteworthy that between 2007 and Bank/Gaza and Iraq, with 23 and 222009 there was a significant reduc- victims respectively between 1999tion compared with the three years and 2009. It is important to clarify thatbetween 2004 and 2006, passing from the 23 victims in the Palestinian ter-99 murders to 20, a reduction of 80%. ritories were killed during the IsraeliThere is a second block in Asia, made bombardments of 2001 and duringup of countries like Bangladesh and the destruction of the headquartersIndia, with intermediate levels of trade of the Palestinian General Federationunionists murdered. In Bangladesh, of Trade Unions28 in Gaza, in 2008,22 trade unionists were murdered in destroyed during a raid carried out bytwo critical years: 2000, with nine F-16 fighter planes.victims, and 2005, with 13. A third Europe. In Europe the most criti-block is made up of countries with cal year was 1999, when five union-non-systematic patterns of murders ized works were killed, four in theagainst trade unionists that saw kill- Russian Federation. In ensuing yearsings occurring throughout the decade. only one murder occurred each year.These countries include Turkey, Indo-nesia, Burma, South Korea, China,Thailand and Cambodia. In these 28. According to Hasan Barguzi, director of the Palestinian Democracy and Worker’sseven countries 19 unionized workers Rights Center, Palestinian General Fede-were murdered during the first decade ration of Trade Unions (PGFTU) is theof the 21st Century, 7.9% of the total inheritor of the form of trade unionismfor the region. “[…] that was always active in the oc- Africa. There were 79 unionized cupied territories, and that remains the principal trade union organization; it isworkers murdered in Africa between politically plural, made up of different1999 and 2009, representing 4.61% of professional federations and with anthe overall world total. The murders important section in Gaza”. “Entrevistaoccurred in 14 countries, with two a Hasan Barguzi”, Nación Árabe, Nº 37,particularly bad years: 2006 and 2007, Madrid, Comité de Solidaridad con la Causa Árabe, August to October 1998.
  • 50 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)The other three murders occurred in during the decade, representing 5.49%2000, 2005 and 2008. of the world total. Murders increased Central America and the Carib- by some 450% after 2007, largelybean . Guatemala and the Dominican as a result of the violence in Guate-Republic are the countries in which mala which unleashed against thethe majority of the murders in the Movimiento Sindical Indígena andregion took place, with 54 and 14 Campesino Guatemalteco (MSICG).murders respectively between 1999 In the region, only Belize and Costaand 2009. 94 workers were murdered Rica have been exempt.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 51F. Lists of trade union murders in 2009 Name Date Municipality Department UnionAdolfo Tique 1 Jan 2009 Prado Tolima SintragritolDiego Ricardo Rasedo Guerra 7 Jan 2009 Sabana de Torres Santander FensuagroArled Samboni Guaca 16 Jan 2009 Argelia Cauca FensuagroLeovigildo Mejía 28 Jan 2009 Sabana de Torres Santander FensuagroLuis Franklin Vélez Figueroa 31 Jan 2009 Quibdó Chocó SintraunicolLuis Alberto Arango Crespo 12 Feb 2009 Barrancabermeja Santander AsopesamGuillermo Antonio Ramírez 15 Feb 2009 Belén de Umbría Risaralda SERRamírezJose Alejandro Amado Castillo 24 Mar 2009 Girón Santander AseinpecRamiro Cuadros Roballo 24 Mar 2009 Tuluá Valle SutevAlexánder Pinto Gómez 24 Mar 2009 Girón Santander AseinpecArmando Carreño 27 Mar 2009 Arauquita Arauca USOHernán Polo Barrera 4 Apr 2009 Montería Córdoba SintrenalFrank Mauricio Aguirre Aguirre 16 Apr 2009 Itagüí Antioquia Asempi Santa Rosa deJorge Alberto García 21 Apr 2009 Risaralda SER CabalVíctor Franco Franco 22 Apr 2009 Villamaría Caldas EducalEdgar Martínez 22 Apr 2009 San Pablo Bolívar FedeagromisbolMilton Blanco Leguizamón 24 Apr 2009 Tame Arauca AsedarMaría Rosabel Zapata 7 May 2009 Cali Valle SutevVilma Carcamo Blanco 9 May 2009 Magangue Bolívar AnthocRigoberto Julio Ramos 9 May 2009 Monitos Córdoba AdemacorHebert Sony Cárdenas 15 May 2009 Barrancabermeja Santander FesaminPablo Rodríguez Garavito 9 Jun 2009 Puerto Rondón Arauca AsedarJorge Humberto Echeverry 11 Jun 2009 Puerto Rondón Arauca AsedarGarro Norte deRafael Antonio Sepúlveda Lara 20 Jun 2009 Cúcuta Anthoc SantanderHerber González Herrera 25 Jul 2009 Sabana de Torres Santander Fensuagro
  • 52 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) Name Date Municipality Department UnionJacinto Herrera 26 Jul 2009 Riohacha Guajira AsodeguaMiguel Ángel Guzmán 6 Aug 2009 Anserma Caldas SER San Andrés deDiego Cobo 11 Aug 2009 Córdoba Ademacor SotaventoJairo Martínez Solarte 11 Aug 2009 Cali Valle Asonal JudicialGustavo Gómez 21 Aug 2009 Dos Quebradas Risaralda SinaltrainalFredy Díaz Ortiz 22 Aug 2009 Valledupar Cesar AseinpecAbel Carrasquilla 23 Aug 2009 Sabana de Torres Santander AsograsOscar Eduardo Suárez Norte de 11 Sep 2009 Cúcuta AsinortSuescún SantanderZuly Rojas 9 Oct 2009 Saravena Arauca SindessHonorio Llorente Meléndez 17 Oct 2009 Puerto Wilches Santander SintrainagroRafael Antonio Cantero 27 Oct 2009 Lorica Córdoba AdemacorCeballosRamiro Israel Montes 29 Oct 2009 Montelíbano Córdoba AdemacorIván Edgardo Tovar Murillo 29 Oct 2009 Ibagué Tolima SimatolApolinar Herrera 1 Nov 2009 Arauquita Arauca FensuagroRaúl Medina Díaz 1 Nov 2009 Arauquita Arauca FensuagroFabio Sánchez 1 Nov 2009 Saravena Arauca FensuagroPaulo Suárez 1 Nov 2009 Saravena Arauca FensuagroZorayda Cortés López 13 Nov 2009 Pereira Risaralda SERFredy Fabián Martínez Caste- Cundina- 15 Nov 2009 Chía ADEllanos marcaLeny Yanube Rengifo Gómez 24 Nov 2009 Popayán Cauca AsoincaManuel Alfonso Cuello Valen- 26 Nov 2009 Magangué Bolívar SudebzuelaAlberto Jaimes Pabón 27 Nov 2009 Saravena Arauca Fensuagro
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 53Trade unionists murdered in 2010, to 30 August Name Date Municipality Department UnionNorberto García Quiceno 02 Jan 10 Trujillo Valle SutevCarlos Andrés Cheiva 18 Jan 10 Leticia Amazonas SudeaJaime Fernando Bazante 19 Jan 10 Caloto Cauca AsoincaGuzmánHenry Saúl Moya Moya 22 Jan 10 Rovira Tolima AstracatolOverto Beltrán Narváez 28 Jan 10 San Antero Córdoba AdemacorRigoberto Polo Contreras 03 Feb 10 Tuchín Córdoba AdemacorJosé de Jesús Restrepo 10 Feb 10 Montecristo Bolívar FedeagromisbolÓmar Alonso Restrepo Ospina 10 Feb 10 Montecristo Bolívar FedeagromisbolBeatriz Alarcón 13 Feb 10 Sabaneta Antioquia AdidaGustavo Gil Sierra 01 Mar 10 Medellín Antioquia AdidaFranco Ernesto Goyes Salazar 12 Mar 10 Santa Cruz Nariño SimanaDuvián Rojo Cadavid 13 Mar 10 Puerto Berrío Antioquia AdidaIsrael Verona 17 Mar 10 Saravena Arauca FensuagroMiyer Antonio Garcés Rosero 26 Mar 10 Popayán Cauca Asoinca San Vicente delRosendo Rojas Tovar 26 Mar 10 Caquetá AICA Caguán Asociación Sindical deJavier Cárdenas Gil 01 Apr 10 La Tebaida Quindío Areneros and Balasteros del QuindíoHenry Ramírez Daza 11 Apr 10 Ibagué Tolima SintrabecolicasArnulfo Torres Sánchez 15 Apr 10 Itagüí Antioquia AdidaFrancisco Valerio Orozco 16 Apr 10 Cáceres Antioquia AdidaJosé Isidro Rangel Avendaño 19 Apr 10 Cartagena Bolívar SNTT
  • 54 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) Name Date Municipality Department UnionJorge Iván Montoya Torrado 20 Apr 10 Cartagena Bolívar SNTTAliciades González Castro 21 Apr 10 Tame Arauca FensuagroElkin Eduardo González 21 Apr 10 Tierralta Córdoba AdemacorDiego Fernando Múnera 22 Apr 10 Medellín Antioquia Asonal JudicialEscobarJavier Estrada Ovalle 24 Apr 10 Cali Valle Sutev San Bernardo delBenito Díaz Álvarez 25 Apr 10 Córdoba Ademacor VientoFabián Alonso Franco Tigreros 06 May 10 Jamundi Valle SinalserpubFrancisco Antonio Abello 17 May 10 Puebloviejo Magdalena SintrainagroRebolloLeslien Torcoroma Peñaranda Norte de 18 May 10 Abrego AsinortBlanco SantanderMartín Isaac Soto Niebles 18 May 10 Santa Marta Magdalena SintraelecolHernán Abdiel Ordoñez 05 Jun 10 Cali Valle AseinpecDoradoNelson Camacho González 17 Jun 10 Barrancabermeja Santander USOIbio Efrén Caicedo 19 Jun 10 Caucasia Antioquia Adida Santander deFernando Loboa Aragón 31 Jul 10 Cauca Asoinca QuilichaoLuis Germán Restrepo Mal- 12 Aug Medellín Antioquia Sintraempaquesdonado 10
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 55 Elevated Levels of Impunity for Crimes Against Trade Unionists29Continuing impunityThe Number and Characteristics oversee Case 1787 investigations) andof Human Rights Violations that specialized circuit judges30, do notRemain in Impunity employ an integral, contextualized Impunity –the absence of legal analysis of the panorama of violence.investigation or punishment– in Therefore many of steps taken havecases of violence committed against either been wasted or insufficient, andleaders and members of trade unions measures that could have had positivein Colombia remains very high. The results have not been taken.institutions of the ordinary justice sys-tem (fiscales [prosecutors] and judgesfrom all parts of the country) and of 30. The Subunit of the Fiscalía to Overseespecialized jurisdictions (the Labor ILO Case 1787 Investigations was esta- blished in 2007 and at the end of the yearSubunit of the Fiscalía established to specialist and circuit judges were created to deal with the cases handled by the29. The data was gathered and analyzed by Subunit. The intention was to advance the Colombian Commission of Jurists criminal cases involving trade union (CCJ) using two data bases maintained victims. These decisions were taken as a by the [Escuela Nacional Sindical (ENS)] result of the pressure applied within ILO that monitor the legal response to crimes procedures by the trade union movement committed against trade unionists, and on the Colombian state in an effort to ge- sentencing in the cases of assassinations nerate a response to the extremely serious of trade unionists. situation of impunity for the crimes.
  • 56 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)Nature and Results of rists (CCJ). The picture was completedInvestigations by the Fiscalía into by referring to reports compiled by theActs of Violence against the Trade Fiscalía, the competent judges and anUnion Movement initial report by the Ministry of Social To respond to these concerns, Protection on the role of the Fiscalía’sthe authors examined progress in Labor Subunit and of judges in casesthose criminal investigations where included under the ILO’s Case 1787.the Fiscalía has specifically stated The CCJ also requested informationthat the victims are trade unionists on the cases of 1,546 trade union vic-who have been subjected to some tims under investigation by the Laboract of violence. On 17 July 2003 the Subunit. Finally, the CCJ addressed aFiscalía presented a general report right of petition to every office of thecovering the state of ongoing national Fiscalía in the country, seeking to de-level criminal investigations into the termine the state of the investigationsviolation of the human rights of trade into all 2,798 murders registered in theunionists to the Comisión Interinsti- data base maintained by the ENS uptucional de Derechos Humanos de los to December 2009.32 This report isTrabajadores (Inter-institutional Com- based on the above information, andmission on Workers’ Human Rights - is intended to provide a panorama ofCIDHT31). The information contained the treatment given by the Colombianin this report was complemented by legal system to cases involving theinformation provided by the Fiscalía violation of trade union the Colombian Commission of Ju- By the 18 May 2010, 77 responses3331. Created in 1997, made up of high level re- presentatives from government, including 32. While there were 47 murders committed the Ministries of the Interior and Justice, during 2009, at the moment when the and Defense, Presidential Advisors, the right of petition was presented to the Fiscalía, the Procurator General, the Hu- Fiscalía, information was only available man Rights Ombudsman, judges, trade on 39 of them; for this reason enquiries unions and trade union confederations, were not made about the remaining eight and other civil society organizations. cases. The ILO and the Office of the UN High 33. Of these 77 responses, 61 were included Commissioner for Human Rights can in the ENS data base on the treatment of be invited to participate. Its principal trade union cases, as they provided most function is to promote and protect the of the information requested. The remai- right to life, liberty and security of the ning 16 were excluded either because it person and trade union freedoms. had been indicated that the case had been
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 57to these enquiries had been received, investigation under the terms of theproviding information on the state of new Criminal Code38; 216 are in theinvestigation in 1,659 cases of attacks instruction phase39. In summary, then,on trade unionists.34 Of these, 864 25% of cases are under active investi-were victims of violations of the right gation while 48 (5.56%) have reachedto life,35 the remaining 795 victims the judgment phase.40 The cases of 88having suffered other violations. Ofthe former, 378 cases are in the pre- carry out the enquiries and investigationsliminary phase of investigation.36 In of any criminal acts that may come toother words, in 43.75% of the cases its attention as a result of a complaint, lawsuit, special petition, or any otherthe perpetrator has not been identi- appropriate means. In development offied37. 13 (1.5%) are under preliminary its functions outlined in the previous sub-section, the Fiscalía General de la transferred to a different jurisdiction or Nación, in the person of the prosecutor because they did not contain relevant in charge of the investigation, direction, information. coordination, legal control and technical34. While, in response to the right of peti- and scientific verification of the activities tion, the Fiscalía provided information on of the investigating agents in development 2,023 cases, no information was provided of the terms set out in the code”. on the state of investigation in 319 cases; 38. Law 906 of 2004, CPP. in another 45 cases, while information 39. CPP, Art. 331: the instruction phase was made available on the procedural begins with a decision of the Fiscalía to stage, none was forthcoming on the crime open the phase, indicating the reasons for in response to which the process had been the decision, the people implicated in the opened. For these reasons, 364 cases were legal action, and the evidence that should not included in the research. be collected; during this phase, the crime35. 850 were murdered, of whom five had is characterized along with the indivi- initially been disappeared; 14 of the total duals responsible for it, the determining were forcibly disappeared. motives of the conduct, the social and36. Art. 322. Código de Procedimiento Penal personal conditions of the accused and (Code of Criminal Procedure - CPP). The the damage and damage occasioned. preliminary investigation phase is inten- 40. CPP, Art. 232, 403 and ff: the judgment ded to establish if there is a case to answer phase starts with the filing of charges, (occurrence of an offense, presentation when the Fiscalía makes a legal declara- of reasons responsibility has not been tion concerning the conduct established assigned) and the collection of evidence as a result of the investigations carried necessary to identify perpetrators and out; in this phase the judge is required participants in the crime. to establish clearly the responsibility of37. CPP, Art. 200: “It is the responsibility the accused, impose the corresponding of the Fiscalía General de la Nación to sanctions, and establish the damage and
  • 58 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)victims (10.19%) have been archived, der investigation; 329 cases (41.38%),suspended or closed [“precluido”] for have been, archived, suspended, orlack of evidence, because the crime closed on grounds of conflict of inter-asserted is not recognized or because est.; 13 (1.64%) of cases have reachedof a conflict of interest. In the cases of the judgment phase, while in a furtherthe other 121 victims (14.02%), some 13 cases there has been some kind ofkind of sentence has been passed: the sentence passed. Thus, the level of im-accused was absolved in three cases punity in the cases of these violations(0.35%) while in 118, a guilty verdict of trade union rights, and for which wewas returned(13.66%). have information, is 98.36%. Of the 795 trade unionists who The information supplied by thesuffered other violations, 493 were Fiscalía does not allow a more precisethreatened, 17 suffered assassination figure for the levels of impunity to beattempts, 93 were kidnapped, one calculated. Information provided bywas arbitrarily detained, 58 suffered judges operating throughout the coun-personal injuries, seven were tortured try provides a figure of 222 judgmentsor submitted to sexual violence, in all classes of violations of tradethree were internally displaced and union human rights between the start123 were victims of other violations of 2002 and October 2009. However,including theft, damage to property, the partial information made availableabuse of authority and extortion. to the authors of this report has only The information obtained shows permitted the clear identification ofthat 347 of these non-murder cases are cases involving 118 victims of viola-in the preliminary investigation phase; tions of the right to life (murder andin other words, in 43.65% of the cases forced disappearance) and 13 victimsthe perpetrator has not been identi- of other violations.fied; 13 are in the preliminary phase, In other words, based on this pub-that is, 1.64% are under preliminary licly available, verifiable, and trust-investigation under the terms of the worthy information, it is possible tonew Criminal Code; 80 are in the conclude that of the 3,031 victims ofinstruction phase, meaning that the violations of the right to life betweencases of 10.06% of the victims are un- 1 January 1986 and 30 April 2010,41 harm caused, as well as they ways in 41. 2,832 murders and 199 forced disappea- which these might be compensated. rances
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 59sentences have been passed in 118 guarantee the right to truth, justice andcases. These figures result in an im- reparation for the victims of anti-tradepunity level of 96.11%. In relation to union violence and, as a consequence,the other 8,045 violations, sentences ensure compliance with the statementhave been passed in only 13 cases and of the CFA that “trade union freedomimpunity is at 99.84%. can only be exercised in a situation in which fundamental human rights, andInvestigatory Procedures and in particular the right to life, libertyResults of the Labor Subunit for and security of the person are respect-Case 1787 ed and guaranteed”.42 However, since The overview presented in this the creation of the Labor Subunit, itreport is based on close monitoring has proved impossible to establishof the specialized judicial mechanism this dialogue.established to invigorate the criminal Information on the actual investi-investigations the Fiscalía carries out gations being handled by the Subunitof crimes against trade unionists. was first made available in April 2009,What specific results has the mecha- more than two years after its creationnism produced? To answer this ques- as a specialized legal mechanism withtion it was necessary to clarify two responsibility for trade union cases.points: i) which cases the Subunit has In November 2009, the trade unionsbeen working on and ii) what violent requested that these cases should beacts have been committed against this reviewed as part of the CIDHT pro-group of victims. Additionally, this cess, since of the list of 1,303 casessection, iii), analyses the results of the (involving 1,546 victims) that hadLabor Subunit and, iv), summarizes been assigned to the prosecutors inits work on a group of priority cases. March 2009, it was possible that 598 (i) List of cases of anti-trade (35.4%) were not trade unionists,43 aunion violence handled by the Labor factor that suggests that in a range ofSubunit. The trade union movementhas informed the Committee on Free-dom of Association (CFA) that it has 42. CFA, Case 1787, informe núm. 324,provided information on the assas- párrafo 273.sinations of trade unionists between 43. The analyses in this comparative chapter were carried out by the CCJ, based on a1986 and 2009. This was intended to comparison between figures provided byestablish dialogue that would enable the Fiscalía General de la Nación and thethe joint construction of policies to ENS
  • 60 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)cases the efforts invested by the state bodyguards working for the DAS,to encourage the investigation of cases wounded during the attempted assas-of anti-trade union violence were be- sination of the leader of Fenaltrase,ing dispersed. Wilson Borja in December 2000; also Despite this request, the situation in the list is María del Pilar Bolaños, adid not change. The government only street seller who was killed by a strayasked for a response from the CIDHT bullet during the same incident.on 23 April 2010. On the same day the The victims on the list also includ-government indicated that it had seen ed Alina Renata Cabrales and Ale-the new report from the Fiscalía; but it jandra Camargo Cabrales. Alejandrawas not made available on the grounds was the two year old daughter of Renéthat the Fiscalía was not aware the Alfredo Cabrales Sosa, a member oftrade union organizations had a right Sintraunicordoba; she died during anto see it. For this reason, despite the attack on her father in Montería (De-fact that the government refers to an partment of Córdoba) on 11 June 1996.increase in the number of sentences There are other occasions where it isand improved results in general, in- difficult to understand the selectioncluding for 2010, the ENS only has criteria at all, because the Fiscalía hasaccess to data up to October 2009; not indicated which union the victimconsequently this report is only able to belonged to and because the case doesrefer to the information actually made not appear in the ENS data base.available to the trade unions. In order to carry out an analysis (ii) The acts of violence under of the trade union victims and to es-investigation. Of the 1,546 victims on tablish the state of the investigationswhom the Fiscalía provided informa- in each case, this study is limited totion, only 948 were definitely trade the 948 confirmed trade unionists.unionists; it was not possible to iden- Of these, the Fiscalía is currently in-tify the names of the other 598 victims vestigating 687 murders committedin the ENS trade union violence data between 1 June 1991 and 8 Augustbase. Some of these 598 cases involve 2008. The other 261 were victims ofan indirect connection with an act of other violations that were not specifiedanti-union violence – for example the in the April 2009 report produced bylist of victims provided by the Fiscalía the Fiscalía, but a comparison of theirincluded Giovanny Aldana Patiño and names with those that appear in theTomás Enrique Quiñones, who were ENS data base makes it clear that they
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 61 Comparison of the Cases of Victims Investigated by the Fiscalía with those Registered by the ENS Victims according Victims according to Victims according to to the Fiscalía, June the ENS, 1 January Violation the ENS, June 1991 1991 1986 to 8 August 2008 to 8 August 2008 to April 30 2010Murder 687 2,330 2,832Other violations 261 6,926 8,045were victims of multiple violations.44 investigated, iv) the government in-In any case, because of the uncertainty formed the April 2010 meeting of theof the information provided by the CIDHT that the Labor Subunit wasFiscalía it is impossible to determine currently investigating 12 murders ofwhich crime led the authorities to the 25 that had been committed upinitiate proceedings – it could be for to 30 April 2010, meaning that thereall or just for some of the violations. was no investigation in 13 new cases; Using the available information v) the trade union movement hasit is possible to conclude from the reported the murder of 2,832 peopleselection of cases made by the Labor between 1 January 1986 and 30 AprilSubunit that: i) murders committed 2010, of which the Subunit is onlybefore 1991 were excluded; ii) murders investigating 722 (687 plus the 35 newcommitted between 8 August 2008 cases) – that is 25.4% of the murdersand 31 December 2008 were also ex- committed; vi) the trade union move-cluded; iii) the government informed ment has denounced 8,045 violationsthe CFA that it is investigating 23 mur- between 1 January 1986 and 30 Aprilders committed during 200945, when 2010, of which the Subunit is cur-47 were in fact committed. This being rently investigating only 261 (3.2%).the case, 24 new cases are not being (iii) The results of the activities of the Labor Subunit. The investigations carried out up to October 2009 make44. The other violations are: threats, ha- it impossible to speak of significant rassment, and attacks with or without wounding, arbitrary detention, kidnap, results. Of the 1,344 cases assigned displacement, disappearance, illegal to the Subunit, in truth, only 1,150 searches and torture. are being investigated, because the45. Comité de Libertad Sindical, caso 1787, files corresponding to 194 cases have informe núm. 356.Vol. XCIII, 2010, Serie not been found. Concerning the 1,150 B, núm. 1. March 2010.
  • 62 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)cases actually under investigation, ment proposed the adoption of an ad-586 (50.9%), are currently in the pre- ditional mechanism, consisting in theliminary phase – that is, in half of the prioritization of 185 cases, in order tocases no suspect has been identified. ensure progress in the investigations275 cases (23.9%) are in the instruc- and produce rapid results and combattion phase, when formal investigation opened against a suspect who has Results for these cases are notbeen identified. In 142 cases (12.3%), positive either. Of the 185 cases, 93the Fiscalía has presented charges be- (50.2%), remain in the preliminaryfore a judge. The Fiscalía has closed 41 phase, a percentage almost exactlycases (3.5%), for procedural reasons. the same as for the overall number ofFinally, in 51 cases (4.4%), the Fiscalía cases assigned to the Subunit (50.9%).declined to order the suspect to be 62 cases (33,5%) are in the instruc-detained.46 tion phase. The Fiscalía has archived (iv) Priority cases investigated by one case (0.5%) and declared threethe Labor Subunit. With the creation (1.6%) to be “inhibited”47, while sevenof the Subunit, the trade union move- cases have reached the judgment phase (3.7%). Finally, there have been 42 sentences passed (in fact there were46. Article 308. Law 906, 2004. Require- an additional four, but these cases ments of Criminal Procedure. “At the request of the Fiscal General de la Na- ción, or his delegate, the judge for the 47. Art. 327. Law 600, 2000: Inhibitory oversight of guarantees, will issue the resolution: “The Fiscal General de la preventive detention warrant as soon as Nación, or his delegate, will not initiate it may reasonably be inferred from any any procedure when it appears that the probatory materials, physical evidence conduct has not occurred, is atypical, that or legally obtained information that may it is not possible to initiate legal procee- have been gathered, that the suspect may dings or it is demonstrable that there was be the perpetrator of the criminal act no criminal responsibility”. under investigation, or implicated in it, Art. 79. Law 906, 2004: Procedural Archive: always as long as one of the following “When the Fiscalía has information con- requirements is met: 1. That the detention cerning an event about which there is no warrant is demonstrated to be necessary known motive or factual circumstances to prevent the accused obstructing justice. that permit it to be characterized as a 2. That the accused represents a danger to crime or potential crime, it will keep a the safety of society or of the victim. 3. record of all its actions. If new evidence That it is likely that the accused will not emerges investigation should reinitiate appear for trial or complete the sentence”. unless the term has expired.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 63were decided before the Subunit was November 2007 – when the Subunitcreated). In other words, a sentence was created - and April 2010, the spe-has been proffered in only 22.7% of cialist and circuit judges with specialthe prioritized cases. responsibility for cases of anti trade According to these figures, and union violence reached judgment indespite expectations, the creation of 207 cases, 122 of which (59%) in-a list of priority cases did not prove volved plea bargains49. Additionally,more effective, since the there have there were 74 guilty verdicts (35.7%)been almost exactly the same number and in 11 cases (5.3%) the accused wasof investigations and judgments as declared innocent.for the overall cohort of cases under In addition to the quantitativeinvestigation. data obtained from the information provided to the trade union move-Quantitative and Qualitative ment and the CCJ, this report alsoAnalysis of Sentencing by Judges presents a qualitative analysis. Thein the National Circuit and CCJ has received hard copies of 173Specialized Jurisdictions in Cases of the judgments produced betweenof Anti-Trade Union Violence 2002 and 2008; these cover the whole A quantitative analysis shows that range of cases of crimes against tradeat national level judges – including unionists. The 173 sentences involvedspecialist and circuit judges - passed 205 victims. However, 18 victims who222 sentences between January 2002 appeared in 10 of the sentences handedand October 200948, while between over to the CCJ had no connection with anti-trade union crimes. In real-48. Statistical table showing the total number ity, then, the authors of the report have of legal proceedings indicating senten- ces, remands to appeal and proceedings. had access to 163 sentences, involving Centre for Specialized Administrative Services and the Unique Circuit to Alle- information in the meeting of the CIDHT viate Court Congestion [circuito único de in April 2010. descongestión] established under the ILO 49. Article 40 of Law 600, 2000: “Once the agreement with Colombia, April 2010, investigation has been initiated, and until Report on the Progress of the Subunit the resolution to close the investigation is for Human Rights and International confirmed, the accused may request plea Humanitarian Law in Crimes against bargaining on one occasion […] The do- Trade Unionists under Case 1787, October cument containing the charges accepted 2009. This has not been updated for 2010 by the accused is equivalent to a formal because the Fiscalía refused to provide charge.”
  • 64 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)187 victims. Of the 163 sentences, 150 damental characteristics of anti-traderesulted in guilty verdicts, in nine the union violence; in seven judgmentsaccused was found not guilty, in one (4.6%), the only context analysis car-the case was overturned, one was re- ried out was of the individual and ofmanded to a lower court for reasons the trade union they belonged to; inof competence, one ran out of time re- 23 judgments (15.3%), the individualsulting in there being no judgment,50) context and that of anti-trade unionand a final case was closed because of violence in general was analyzed; inthe death of the accused. six judgments (4%), there was only an This review of the kinds of sen- analysis of general anti-trade uniontences passed forms the basis of our violence; in four (1.3%), only theanalysis of impunity in 150 cases. Of context of the individual trade unionthese sentences, 128 of the victims was examined; and in 23 (15.33%),were trade unionists, and 43 had only the circumstances of the victimsuffered violations at the time of the were examined. In only 15 cases (10%)attack. was a contextual analysis carried out Of these 128 trade unionist vic- of the circumstances affecting thetims, 111 were murdered; four further individual, the particular union theyvictims were murdered but in three belonged to, and of anti-trade unionof the sentences the judge found the violence in general. It is apparent thatperpetrator guilty only of concierto the persistence of this kind of sentenc-para delinquir (“conspiracy to commit ing reflects the absence of a policy toa crime”) - that is, of paramilitarism guarantee comprehensive and struc-- and in one, of kidnapping; there tured investigation of these cases andwere five victims kidnapping, four that the methods used are the same asof attempted murder three of forced those used in common crimes wheredisplacement, and one of threats. The priority is given to hypotheses accord-conclusions are as follows: ing to which the motives are assumed i) The framework of the investiga- to be personal or to involve crimes oftion. 65 of the 150 judgments (43.33%) passion, and where, in many cases,were investigated as isolated cases other fundamental aspects relevant towithout taking into account the fun- the situation are ignored. In the judg- ments examined, no analysis of the50. This concerned a case of aggravated social and political context in which threats against a member of the trade the violations occurred; instead, the union federation, CUT.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 65investigations provided, as sole sup- iv) Accusations of subversiveport for the decision, an analysis of activity stick. Frequently, when thethe narrow facts of the case, denying victim is accused by the perpetratorsimportance to the context in which of being a member of a guerrilla groupthey took place. the authorities accept the word of the ii) Superficial investigation of the accused or even go so far as to openmotives of crimes. The logical pro- an investigation against the victim.cedure to follow in investigations of This leads not only to a failure tothis kind of crime, especially when clarify the motives of the crime butspecial units have been created to take also protects anti trade union activi-on the responsibility for them, would ties. In the 68 cases where a plea bar-be, first, to examine the history of the gain was agreed, the version providedvictim’s trade union activity, second, by the perpetrators was accepted, tothe activities of the union, and third, the extent that it was repeated by thewho might have been interested in Fiscalía in the charge sheet.committing the crime. A careful read-ing of the judgments demonstrates v) Use of Plea Bargaining ofthat in the majority of cases the judges the 150 guilty verdicts, 68 (45.3%)made no such analysis. involved plea bargaining, while 82 iii) Sentences imposed only on (54.6%) resulted in a definitive sen-those materially responsible. In the tence. Given the proliferation of pleamajority of the judgments analyzed bargaining (almost half of the cases),it was the actual perpetrators of the it is of concern that the judgmentscrimes who were found guilty while confine themselves to reproducingthere was no analysis of who might the confession of the accused withouthave ordered them to be carried out. providing any justification for the de-It is on the capacity of the authorities cision to accept the plea. Thus, judgesto identify the individuals ultimately fail to exercise their duty to presideresponsible for the crimes that the over the trial, accepting instead thegenuine dismantlement of the groups word of the criminal. In consequence,that carry out the violence against the functioning of the justice sys-trade unionists depends; if they are not tem impedes victims’ access to thepunished the criminal networks will truth about what has happened, andcontinue to function and the violations institutionalizes the version of thewill not stop. perpetrators.
  • 66 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) Of the 150 guilty verdicts, 146 In order to continue monitoringwere decided in the lowest courts, the activities of legal investigators andfour at the next level and two were judges, and to encourage the justiceconfirmed at appeal.51 Concerning the system to improve the coverage andlowest level decisions, if the accused quality of its response to persistentappeals, the judge at the high level violence against trade unionists in Co-might yet overturn the sentence; at ap- lombia, the trade union confederationspeal, the sentence may be overturned and the CCJ examined the sentencesif the appeal is successful, while the emitted by judges, analyzing, on thetwo judgments confirmed at appeal one hand, their success in overcomingare definitive. impunity and, on the other, building up a firsthand picture of the motivesMotives for Anti Trade Union of anti trade union violence adducedViolence: Attempts to Deny the by the judges in their sentences.Problem Exists The results of these analyses were The report on the state of criminal extremely worrying. In respect of theinvestigations and judgments in trade analysis of the judgments, it is clear,union cases published by the Fiscalía as the extensive analysis in the previ-in January 2008 was the first to in- ous chapter made clear, that the vastclude a table covering the “Motives majority of the investigations failed tofor Anti Trade Union Violence”. The comply with international standardstable contained a range of headings for overcoming impunity and – fur-that purportedly corresponded to the thermore – the international humanmotives that had been identified by the rights treaties ratified by Colombia.judges responsible for trying the cases. The results of the second objective established for the research were also51. Appeal Procedures, CPP, Art. 181: “1. disconcerting. An analysis of the judg- Failure to apply, erroneous interpretation, ments demonstrated, concerning the or unlawful application of the spirit of motives, that: i) in many judgments the constitution [bloque constitucional], the judges were unable to identify the the constitution, or the law governing the case. 2. Egregious failure to follow due motives, ii) in other cases the reasons process, or of the guarantees due to any of given by the perpetrators were accept- the parties involved. 3. Manifest failure to ed as the reasons for the crime without follow the rules governing the gathering any independent evidence having been and examination of evidence used as the provided. For example, if the perpe- basis of the judgment”.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 67trator claimed that the trade unionist have been engaged in permanentwas a member of a guerrilla group, dialogue about the realities, withinthe judge would indicate that the mo- the structures available within thetive of the crime was that the victim CIDHT. Nevertheless, the analyseswas a suspected guerrilla member; iii) and proposals that we make have notalmost half of the sentences emitted been taken into account. In Novem-were plea bargains, a procedure that ber 2008, the Fiscalía responded toobliges the judge only to sentence the proposals from the union movementperpetrator, without investigating the and social organizations with a deci-truth of what had happened. In these sion to stop producing tables settingcases the truth depends on what the out the motives in trade union cases.accused is prepared to say; iv) in other Today it is the judges who elaboratesentences, the motives mentioned in these tables, though they follow thethe reports produced by the Fiscalía same criteria.did not correspond to the motives It is essential to develop adequateindicated in the sentence; and v) the policies governing criminal investi-Fiscalía and judges did not understand gations and that these guarantee thethe meaning and reach of trade union rights of the victim. There is an urgentactivity and, as a result, they did not need to adopt differentiated measures,consider the activities of victims to be incorporating international norms, totrade union related when in fact they govern cases involving human rightswere. For example, in cases where abuses. It would, frankly, be unac-a trade unionist had been murdered ceptable to continue with the currentbecause they exposed corruption in situation where the justice system isthe company where they worked, the dedicated to producing “results” atFiscalía classified the crime as eco- any cost in order to fulfill targets andnomically motivated or as a corruption enable trade treaties to be, whereas one of the most impor- The historical debt owed by thetant trade union activities involves the Colombian state to victims cannot bedefense of the workplace. paid off by presenting numbers and Faced with this dramatic pan- well-meaning words. The state shouldorama of the nature and practice of the accept its responsibility; cease to denyjustice system in Colombia the trade the existence of systematic violenceunion movement and the organiza- against the trade union movement;tions that accompany the movement take responsibility for the serious
  • 68 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)crimes that have been committed ists murdered in 2009, in 15 cases,directly by its agents or as a result of there was no anti trade union motivethe tolerance of paramilitary groups or and that of the remaining eight, onlydirect connivance with them; punish one had a trade union connection”,52all remaining authors of the tragedy (emphasis added).in the same way that guerrilla leaders These government claims have atare punished; and seek truth, justice, least four serious failures:repartition and guarantees of non- i) it appears that the informationrepetition for all victims. is based on preliminary investigations carried out by the Fiscalía. If this isConfused and baseless correct, the assumptions are based oninformation from the government the first impressions of the investiga-on the reasons for anti-trade tive process, which do not establishunion violence a solid basis from which definitive The activities of the justice system conclusions may be drawn about whatare being obstructed, and its autonomy happened, nor about the criminalseriously threatened by government responsibility of the suspects. Thisinterference. The government has pro- function is assigned under the consti-vided baseless and confused informa- tution to the judges. The Fiscalía istion on the motives of anti-trade union obliged “to carry out the enquiries andviolence to organizations including investigations of any criminal acts thatthe ILO, public opinion, and the in- may come to its attention as a result ofternational community, especially in a complaint, lawsuit, special petition,the context of negotiations concern- or official communication, alwaysing FTAs with the United States, the provided there are sufficient meansEuropean Union and Canada. and evidence available to indicate that This is clearly reflected in the most the act may have been committed”,53recent report on Case 1787 produced and it is the decisions of the judges thatby the CFA, where the committeenoted that “the government providedinformation on the investigations initi- 52. Comité de Libertad Sindical, Caso 1787,ated in relation to almost all the events Informe núm. 356. Vol. XCIII, 2010, Seriethat occurred in 2008 and 2009. The B, núm. 1. In this report the Committee requests that it be kept informed of deve-government provided information on lopments, March 2010, paragraph 553.the state of each of the investigations, 53. Art. 250. Political Constitution of Colom-indicating that of the 23 trade union- bia.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 69define – among other aspects proper the legal proceedings, and establishesto the administration of justice - the individual criminal responsibility. Iflegal definition of the facts and the this were not the case, how would itpunishment that should be applied. In be possible to understand the motiva-this case, the information that is pre- tion of the perpetrators without evensented as progress in determining the knowing who they were?reasons for anti trade union violence iv) The information is not based onis not based on legal decisions but is sentences, because the 23 processesthe result of the first impressions of a for the murder of trade union membersfew state employees. currently open are all in the prelimi- ii) While it is true that the Consti- nary phase of investigation.54tution indicates that the decisions of Irresponsibly, the governmentthe judicial branch “are independent”, presents the cases as resolved, in anin practice the government itself attempt to distort the grave and sys-makes its views public and defines tematic nature of the violence againstthe direction the investigation carriedout by the Fiscalía should take: there the trade union movement, arguingis no opportunity to enquire whether that in Colombia trade unionists arethe investigators might be considering murdered for reasons other than theother options); the government also violation of human rights, in an in-indicates the kind of decision that the stitutional denial of the gravity of thejudges should eventually take. The problem.government position makes no contri- Different calls have been made onbution to determining what has hap- the state to take seriously its obligationpened to the trade union movement, to administer justice and punish thenor to overcoming impunity. guilty; the UN Human Rights Com- iii) The a priori definition of the mittee, for example, has said: “thereasons for the crimes committed State party has a duty to investigateagainst trade unionists and the identi- thoroughly alleged violations of hu-fication of those responsible for them man rights, particularly enforced dis-constitutes a mockery of the legal appearances and violations of the rightsystem. From the very beginning of to life, and to criminally prosecute, trythe criminal procedure the govern-ment decides the motives for thecrimes, ignoring the development of 54. Response of the Fiscalía May 2010. CCJ Legal Monitoring Data Base.
  • 70 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)and punish those deemed responsible It is to be hoped that financialfor such violations”.55 resources will be made available to strengthen the work of the legal sys-The Measures Adopted tem and its employees. At the meetingby the State to of the CIDHT on 23 April 2010, theOvercome Impunity specialized judges pointed out the scarcity of physical means – such ashave been Insufficient paper and other office goods - neces-and Ineffective sary to carry out their work, as well as the importance of a protectionPolicy to Combat Impunity and program for employees of the legalStrengthening of the Labor system. These basic requests, haveSubunit ¡Error! Marcador no been ignored now throughout the pe-definido. riod of over two years during which The government informed the ILO the special mechanisms have beenthat it was increasing the resources in place. The clear conclusion is thatavailable for the development of dif- more resources need to be invested if aferentiated methods for investigating serious and responsible justice systemviolations of the rights of trade union- is to be developed.ists, “with the principal objective of Turning to the creation of spe-increasing the quality of the investiga- cialized mechanisms, the evidencetions carried out by legal personnel, is clear that none have been created:maximizing available resources and the judgments produced by the judgestreating the victims with dignity”. It make this very clear. Investigationsalso referred to the policy published continue to be conducted on a caseby the Consejo Nacional de Política by case basis, seeking to identify theEconómica y Social (National Council individual circumstances rather thanfor Economic and Social Policy) in developing a methodology to examine200656, intended to strengthen pro- the facts taking into account the sys-cedures covering investigation, trial temic nature of the crimes and castingand sanctions in human rights cases. important light on the events, or dif-55. Arhuacos v. Colombia, p. 488, http:// ferentiated hypotheses that might have w w w1. u m n . e d u / h u m a n r t s / u n - led to more important and significant docs/612-1995.html] results. The need to apply methodolo-56. Documento CONPES, No. 3411, Bogotá, gies and to develop a criminal investi- 2006.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 71gation policy to cover these cases was tolerated. The Committee recalled thealso discussed in the CIDHT meeting need to ensure that all investigationswhere the representative of the judges against acts of violence against tradeindicated clearly that that they were union leaders and members were car-not able to take into account elements ried out rapidly and efficiently. Theof context and their implications for Committee underlined that the tradethe motives of crimes when prepar- union movement could only existing their judgments. This means that in a climate free from violence andin practice no differential element urged the Government to put an endis employed in the investigation and to the current situation of violencepunishment of crimes committed and impunity through the continuedagainst trade unionists. implementation and innovation of ef- Taken together these factors result fective measures and policies.”in the conclusion that the state hasnot fulfilled the recommendations of 2 . Law 1309 of 2009the Committee on the Application of This law increases prison sen-Standards, according to which it “... tences for the murder, forced disap-observed the concerns raised that the pearance and kidnapping of tradenumber of convictions remained very unionists, raises fines for violatinglow and that the sentences that had the rights to assembly and association,been handed down concerned only the and extends the statute of limitationdirect perpetrators of the violence, but for the crimes of genocide, forcednot the actual instigators. The Com- disappearance, torture and murder.mittee observed that more measures However, the law will only be effec-were needed and expressed the hope tive if it is complemented by the adop-that the Government would ensure tion of an approach that leads to thethat the judiciary was invested with all identification, capture and sanction ofthe necessary powers to this end and the perpetrators. The approval of thethat further resources would continue new law does not imply a change into be made available for the bolstered the response to the violence unleashedprotection of threatened trade union- against the trade union movement inists, coupled with a clear message at the distant and recent past: Law 1309the highest level of the important role will only be applied to those foundplayed in society by trade unions and guilty of crimes committed after thethat anti-union violence would not be 26 June 2009.
  • 72 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010) States are free to adopt myriad process of negotiation between thelegislative measures aimed at promot- government and paramilitary organi-ing and guaranteeing human rights. zations grouped in the AutodefensasHowever, the Colombian government, Unidas de Colombia (AUC).57 Theafter more than 24 years of systematic, law offered members of paramilitaryselective, and deliberate anti-trade groups the benefit of receiving anunion violence perpetrated largely alternate sentence, of a maximum ofby the paramilitaries but also by the eight years imprisonment (much lessstate itself and to a lesser degree by than the sentences for the same crimesthe guerrilla groups, has limited it- under ordinary legislation), underself to passing a law that increases the condition that they promised tothe punishments and sentences for provide truth, justice, and reparationcrimes committed in the future. to the victims of the crimes they hadThis measure does not constitute advance in overcoming violence, In its application the law has notsince reduced levels of violence are fulfilled the objectives that werenot a natural consequence of longer proposed for it. Several internationalsentences; it should be remembered organizations, including the Ameri-that it is always easier to approve a can Commission of Human Rights,law with new sanctions, to give the have indicated that various aspectsimpression of fulfilling obligations, of the law have prohibited legal pro-than to advance structural reforms cesses advanced under its terms fromdesigned to dismantle the structures guaranteeing the rights of victims –that generate them and permit their including trade unionists – to truth,continuation, than to construct and justice, and reparations. Examplesapply an effective policy of investiga- include the extradition of the principletion and punishment, and to end the paramilitary leaders at the request ofstigmatizing statements that emanate the US justice system, which precipi-from the highest levels of government. tately interrupted their trials and the confessions they were delivering atApplication of the “Justice and the time; the obstacles faced by thePeace Law” - Law 975 of 2005 victims in participating directly in the Law 975 was passed to establishthe legal framework for the demo-bilization of combatants within a 57. This norm applies to members of any armed group that decides to demobilize.
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 73legal proceedings; and the difficulties crimes confessed to by individualsin determining the links between state who accepted the terms of Law 975,agents and paramilitary leaders in the of whom the Fiscalía has identifiedcommission of crimes, even though 167.” Nevertheless, this statementthe responsibility of the state for these contrasts with the grave obstacles thatlinks had already been established the specialist judges have encounteredinternationally.58 Furthermore, nearly in trade union cases: in each meetingfive years after Law 975 was passed of the CIDHT they have stated thatthere has as yet been no confirmed they have been unable to progress insentence that determines the respon- the cases they have handled involvingsibility of the members of paramilitary the principal paramilitary leaders, ingroups before July 2005. It is strange, the absence of judicial cooperationthen, given this panorama, that the agreements with the United States thatgovernment should have indicated would permit the hearings to continueto the ILO that Law 975 of 2005 has after extradition. This being the case,“contributed effectively to advancing it is likely to be very difficult to un-the struggle against impunity”,59 and cover the truth concerning the crimes“constituted a guarantee for the vic- committed against trade unionists.tims to gain effective access to truth,justice and reparation”,60 when expe- The Victims’ Compensation Fundrience demonstrates decisively that under Law 975these statements have no basis in truth. On 22 April 2008, the govern- The government informed the ment passed Decree 1290, “by whichILO that on the basis of the prelimi- is created the Program for Individualnary testimonies of the paramilitary Administrative Reparation for Vic-leaders, the Fiscalía “has been able tims of Illegal Armed Groups”. Theto establish that 216 were victims of ILO Commission of Experts noted the adoption of this mechanism with58. Cf. Inter American Commission of Hu- interest. Therefore this section of the man Rights, Annual Report, Chapter 4, report has been prepared to explain par. 50, 2009 the nature and reach of the measure.59. Comité de Libertad Sindical, caso 1787, The measure was elaborated with- informe núm. 356. Vol. XCIII, 2010, Serie out the participation of the victims B, núm. 1. In this report the Committee requests that it be kept informed of deve- or society at large; it illustrates the lopments, March 2010. handout mentality of the government60. ibid.
  • 74 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)when it comes to human rights, and that the grave violations committedthe absence of a real commitmentto the victims of social and political Guide Series Nº 2, (Geneva, 2006, p.violence in Colombia. 27), norms referring to the integral na- The decree does not establish a ture of reparation include: article 34 of the Draft Articles on the Responsibilityreparations policy, since the state of States for Internationally Wrongfulbases the measures adopted on the Acts, which indicate that reparationsprinciple of solidarity, and does not should take the form of restitution, com-recognize responsibility for the vio- pensation or satisfaction, “ either singlylation of the rights of the population. or in combination “; the International Law Commission has observed that thisThe decree is in truth a proposal to formulation does not leave the decisionprovide humanitarian assistance to concerning the form of reparation up tothe victims rather than an initiative to the State, but makes it clear that repara-provide compensation. tion can only achieved in certain cases In relation to its concrete mea- by combining different forms of repara- tion (Commentary on Article 34 of thesures, the decree leaves a lot to be Draft Articles on the Responsibility ofdesired, as it provides detailed rules States for Internationally Wrongful Acts,covering a range of indemnities, while paragraph 2 (see Official Documentslimiting itself to defining other means of the General Assembly, 56th Session,of reparation without clarifying their Supplement Nº 10 (A/56/10)); The Hu- man Rights Committee’s Independentconcrete content. This, added to the Expert to update the Set of principles tototal absence of any consideration of combat Impunity has also stressed thatthe circumstances of the especially a characteristic of any effective repara-vulnerable populations for whom the tions program is that it should benefit allmeasure is designed and for whom victims equally , (Independent Study on best Practices, including Recommenda-– as its name implies – it is only in- tions, to assist States in Strengtheningtended to provide individual support, their Domestic Capacity to combat allignoring the collective dimension of Aspects of Impunity, E/CN.4/2004/88, 27reparation, with the consequence that February 2004, paragraph 60); see alsothe reparations offered are far from in- the UN Principles on Reparations (UN General Assembly Resolution 60/147 ap-tegral.61 It is of the utmost importance proved by the UN General Assembly, 16 December 2005, Annex, Basic Principles61. According to the International Com- and Guidelines on the Right to a Reme- mission of Jurists (ICJ) in The Right to dy and Reparation for Victims of Gross a Remedy and to Reparation for Gross Violations of International Human Rights Human Rights Violations, Practitioners’ Law and Serious Violations of Internatio-
  • Violaciones a Impunity and the Violation of the Human Rights of Trade Unionists 75against the trade union movement should receive reparation. The pro- cedure established to make claims is nal Humanitarian Law, A/RES/60/147, complicated and it neither clarifies 21 March 2006, Principle 20. See (in who is responsible for its administra- Spanish): Colombian Commission of tion, nor the institutional competence Jurists (CCJ), Principios internacionales sobre impunidad y reparaciones (Basic necessary to satisfy the rights of the Principles and Guidelines on the Right victims to reparation. Additionally, to a Remedy and Reparation for Victims because the norm regulates Law 975, of Gross Violations of International Hu- it is not a mechanism designed to favor man Rights Law and Serious Violations the majority of victims of violence in of International Humanitarian Law (A/ RES/60/147)), in Compilación de docu- Colombia, but only of the crimes that mentos de la Organización de las Nacio- fall under the purview of the law. nes Unidas, Bogotá, CCJ, January 2007, In general terms, because of its p. 225) quoting paragraph 18: reparation inadequate treatment of the different ‘includes the following forms: restitution, forms of reparation, the exclusion of a compensation, rehabilitation, satisfaction and guarantees of non-repetition.” In its subject so vital to the question of repa- Resolution on Impunity (Human Rights ration in Colombia as the restitution of Resolution 2005/81: Impunity, 21 April stolen lands, and the purely compen- 2005, E/CN.4/RES/2005/81), the UN Commission on Human Rights observed that these principles had already been 27 November 1988, Series C No. 42, para- applied at regional and national levels: graph 85); finally the International Court E/ CN.4/RES/2004/72, 21 April 2004, of Justice established in its judgment in paragraph 16; E/CK4/RES/2003/72, the case Avena and Other Mexican Na- 25 April 2003, paragraph 14; E/CN.4/ tionals that ‘the breach of an engagement RES/2005/81, paragraph 21) indicating: involves an obligation to make repara- ‘The right to reparation shall cover all tion in an adequate form.” [...] “What injuries suffered by victims; it shall constitutes ‘reparation in an adequate include measures of restitution, compen- form’ clearly varies depending upon the sation, rehabilitation, and satisfaction as concrete circumstances surrounding each provided by international law’. (Principle case and the precise nature and scope of 34); the Inter-American Court of Human the injury, since the question has to be Rights considers the right to reparation examined from the viewpoint of what to be a part of the body of customary is the “reparation in an adequate form” international law that includes ‘restitutio that corresponds to the injury”. (Case in integrum’, or ‘payment of compensa- Concerning Avena and Other Mexican tion, satisfaction [and] guarantees that the Nationals (Mexico v. United States of violations will not be repeated,’ (Loayza America), Judgment 31 March 2004, Tamayo Case (Reparations), Judgment of paragraph 119).
  • 76 Cuaderno de Derechos Humanos Nº 22 – Escuela Nacional Sindical (2010)satory nature of the measures it com- victims in national and internationalprehends, rather than a true proposal legal processes so that the huge billsto provide administrative reparations that would be imposed on the nationDecree 1290 is a mechanism designed if truly integral reparation were to beto discourage the participation of provided need not be paid.