Series on law of impunity (or of "justice and peace"). Bulletin No 8

1. COLOMBIAN COMMISSION OF JURISTS
Non-governmental Organization with UN Consultative Status
International Commission of Jurists (Geneva) and Andean Commission of Jurists (Lima) Affiliate
L EGAL CORPORATE E NTITY: RESOLUTION 1060, A UGUST 1988 B OGOTA MAYOR’ S O FFICE
After the Approval of the Law of Impunity in Colombia (Bulletin Number 8)
IMPUNITY FOR DRUG TRAFFICKERS AS WELL
Perpetrators of war crimes and crimes against humanity will also be protected against extradition
With the bill of law called “Justice and Peace” approved by the Colombian Congress on
June 22, 2005 and now awaiting Presidential sanction, the Colombian Government has
reinforced its commitment to protect demobilized members of paramilitary groups from
extradition. Thus, in addition to exonerating them from serious investigations and trials in
Colombia and from having to serve sentences proportionate to the damage that they have
caused, the legal framework proposed for the demobilization attempts to protect paramilitary
leaders from international justice as well.
Specifically regarding the issue of extradition, the law of impunity introduces two new
schemas for impeding the members of these groups from being handed over to a foreign
country for trial and sentencing. These schemas would be additional to the power that the
Government enjoys to deny the extradition of Colombian citizens based on discretional
reasons of national convenience.
1. The bill of law classifies paramilitary activities as political offenses.
Article 72 in the bill of law called “Justice and Peace” introduces a modification to the
Criminal Code, in which the acts of forming paramilitary groups and belonging to them are
deemed political offenses.1 Such classification implies, among other benefits, a guarantee of
non-extradition for persons under investigation or sentenced for paramilitary activities, by
virtue of the provisions in Article 35 in the Political Constitution that expressly prohibit the
extradition of Colombian citizens for political offenses. In addition, if drug trafficking or
certain war crimes and crimes against humanity are eventually considered crimes related to
paramilitary activities, their perpetrators would also be protected from extradition.
2. The law of impunity can be applied for trying and sentencing persons that other
countries have requested for extradition.
After the paramilitary are investigated and tried in Colombia, whether through a normal
criminal justice proceeding or through the application of the bill of law called “Justice and
Peace”, they cannot be extradited on the grounds of acts for which they have been tried or
sentenced. Indeed, respect for the criminal guarantee of non bis in idem, also called the
prohibition of double jeopardy, implies that no one can be imputed a punishable behavior
more than once, no matter what the behavior is called or may be called (Criminal Code Article
8 and Political Constitution Article 29). The Constitutional Court has specified that, by virtue
of the prohibition of double jeopardy, “when there has been an investigation or when a
1
The classification of paramilitarism as a political offense was the theme of Bulletin number 7 in this series of
the Colombian Commission of Jurists bulletins that discuss the approval of the law of impunity.
Calle 72 Nº 12-65 piso 7 PBX: (571) 3768200 – (571) 3434710 Fax : (571) 3768230
Email : ccj@coljuristas.org Website: www.coljuristas.org Bogotá, Colombia

2. sentence has been pronounced in Colombia prior to a request for extradition, extradition is
not in order, and the Colombian criminal court jurisdiction must be imperatively applied
and it will have priority over the jurisdiction of the requesting State”.2
Thus, if the bill is applied, persons tried or sentenced by virtue of it cannot be extradited for
acts that have already been investigated. Said law contemplates court proceedings with
excessively reduced terms and extremely lax investigations that are not aimed at shedding
light and establishing the criminal responsibility of demobilized persons. Furthermore, if
demobilized members of the paramilitary groups are sentenced, they can benefit from
minimum incarceration under privileged conditions (in farming communes, for example,
according to statements made by the government). With such prerogatives, all members of
armed groups who intend to avoid extradition could request surrender under the law of
impunity and avoid the possibility of a trial under real conditions of justice.
The risk of drug traffickers acceding to the benefits that this law offers and by doing so
avoiding extradition is quite plausible. As the offense of drug trafficking was not excluded
from the law of impunity, nothing hinders drug traffickers from “buying” a condition as
member of a paramilitary group, for the purpose of obtaining illusory sentences that would
guarantee their not being extradited for the same acts. Under the protection of said law, drug
traffickers would allow themselves to be tried for all of the acts that could become grounds for
an extradition request, without ever receiving a sentence of more than eight years. This risk
was denounced by Senator Rodrigo Rivera during the last debates on the aw of impunity in
l
the Colombian Congress.
3. The Government can use its discretional power to grant or deny extradition.
In Colombia, the Supreme Court of Justice is the tribunal in charge of reviewing the
requirements set forth in the Political Constitution and by law to grant the extradition of
Colombian citizens requested by another country. However, even when the Court rules that an
extradition is in order, the Government has the discretional power to grant it or deny it
pursuant to the conditions that i deems convenient (2000 Law 600 Articles 510 and 512 and
t
2004 Law 906 Articles 492 and 494). Exercising this power, on several occasions President
Uribe has announced that he will keep the extradition requests regarding paramilitary leaders
who meet the commitments that they acquired during the negotiations suspended.
At the inception of the negotiation process the Government told the paramilitary of its
commitment to not extradite. The press revealed conversations between the High
Commissioner for Peace and the paramilitary commanders in charge of the negotiation, which
so confirm. In such conversations, the High Commissioner for Peace stated, “The President
has an offer. He says, ‘I cannot modify my stance on extradition because it would become an
overwhelming international problem. I cannot modify my stance on this issue in the middle of
an election campaign or in the midst of a relationship of cooperation with the United States’.
Faced with this reality, the President says, ‘As President, I can use my discretional power.’
2
Constitutional Court, 2002 Sentence SU - 110, Presiding Judge: Rodrigo Escobar Gil.

3. Listen between the lines and you will hear what the President is offering you. Indeed, he is
using it to control the issue”.3
So, on one hand, the present Government boasts that it is the administration that has granted
the greatest number of extradition requests, and on the other, it has designed an ample bundle
of mechanisms to hinder the extradition of members of paramilitary groups.
It is also worth mentioning the initiative presented by Uribe-supporter House Representative
Rocío Arias to include a paragraph in Article 35 of the Political Constitution, aimed at
prohibiting the extradition of demobilized persons. Although this initiative was removed from
the debate in Congress due to a lack of time, this parliamentarian has announced that she will
present it again. If it is passed, not only will justice be denied internally, but also international
justice mechanism actions will be hindered.
Bogota, July 12, 2005
See other articles on this topic on our web page www.coljuristas.org
3
“Explosive Revelations”, Semana Magazine, September 27, 2004, at http://semana.terra.com.co/opencms/
opencms/Semana/articulo.html?id=82024