PERMANENT COMMITTEE FOR THE DEFENSE OF HUMAN RIGHTS
Carrera
10 No. 24 – 76 office 805 -
tel 283 23 98 - 286 27
02 Bogotá
Santiago
de Cali, May 31st 2002
Dear
Ladies and Gentlemen,
OF
LIBERTY DUE TO THE
INTERNAL
ARMED CONFLICT
REPRESENTATIVE
OF THE COLOMBIAN STATE
AND
THE EXITING GOVERNMENT
REPRESENTATIVES
IF THE INTERNATIONAL COMMUNITY
REPRESENTATIVES
OF THE REGIONAL
AND
MUNICIPAL AUTHORITIES
REPRESENTATIVES
OF THE HUMAN RIGHTS
AND
SOCIAL ORGANIZATIONS
The
Permanent Committee for the Defense of Human Rights (CPDH) is present at this
event with the purpose of expressing its support to all the families of those
deprived of liberty due to the internal armed conflict. Furthermore and most
importantly, to publicly reiterate its willingness to contribute with realistic
and effective initiatives to achieve the freedom of people deprived of liberty.
We all know that kidnapping is not the only method employed in Colombia
to deprive people of liberty; since the 1980’s in particular,
detention-abduction (another expression of kidnapping) has taken place in
Colombia, with the appalling factor that the victims of this particular crime
never return to their families and it is not possible for their families to
recover their loved one’s bodies for a proper funeral.
Without a doubt kidnapping, retention of soldiers,
abduction-disappearance, taking of hostages, massacres, assassinations,
displacement, torture, and many other atrocities committed against human beings,
are signs of the severity and forcefulness of the internal conflict.
Unfortunately for many Colombians this terrible reality goes unnoticed until the
day when any of these tragedies touches them.
On February 20th, President Pastrana announced his decision to
end the peace dialogues with FARC and the beginning of a series of security
measures. Yet he omitted something very important: he did not address what would
happen with those who are kidnapped or being held by the insurgent group, now
helpless in the midst of war operations.
The victims’ relatives –justifiably so- plead for the life and liberty of
their loved ones regardless of the national political and judicial
considerations, appealing to humanitarian considerations: some enlisted members
of the army and police, for example, have been in captivity for more than four
years even when seriously ill.
The termination of the dialogues with FARC had as a backdrop the biggest
coverage from the media to persuade the public opinion of the “immediate
military victory” of the State. The outlook has become even more complex;
contrary to what was promised, there is evidence of a rotund failure of the war
choice, in the attacks to towns, to the electric and communication
infrastructure, oil pipes, gas pipes, roads, personal attacks, new massacres,
more deaths and more displacement; in the same manner it is translated to the
public budget for social investment which is decreased to finance the war, at
the same time increasing the mechanisms of repression and cutting back of
democratic liberties.
FARC have in their hands former presidential candidate Ingrid Betancur
Pulecio, Clara Rojas, governor of Antioquia Guillermo Gaviria Correa and former
ministers Fernando Araujo and Gilberto Echeverri Mejia, current peace advisor to
Antioquia, former governor of Meta Alan Jara, senators Luis Eladio Perez and
Eduardo Gachem, three representatives, twelve deputies of Valle, 47 enlisted
members of the police and army and the colonel in charge of the Mitu police.
In the presence of such a serious situation, the government does not have
a clear policy to accomplish their liberation. On the contrary it has expressed
that some of them will lose their importance or “value” (the congressmen) if
they are not reelected. In the case of the deputies from Valle, the government
has refused to halt its military operations, ordering the public forces to a
rescue by force, even against the wishes of them and their families, which see a
high risk in the operations.
On the other hand, FARC through public communiqués have qualified the
kidnappings as political, proposing an exchange for guerrilleros in prison. With the break of the dialogues however,
the government suppressed the political status it had given to FARC and the
legislature has made it impossible to adequate political crimes. According to the government, in order to
negotiate an exchange, FARC’s political status would have to be restored, but
the worsening of the conflict and the short time that is left in the Pastrana
administration are not going to bring this about. On the contrary the government
has been demanding form the European Union to include FARC in their list of
terrorists, which according to some political analysts would worsen the current
national atmosphere and lower even more the possibility of resuming the
dialogue.
In the face of this, we consider it important to remember that the
different governments that have faced this phenomenon, have given it a diverse
and contradictory treatment. Let us explore it:
1.-
The case of the siege of the Dominican
Republic’s Embassy
On
February 27, 1980, the insurgent group M.19 occupied the Dominican Republic’s
Embassy, taking more than 50 people as hostages, among them 20 diplomats. The
guerrilleros demanded from the government the release of a group of political
prisoners and a large sum of money. After 60 days Julio Cesar Trubay’s
government and M.19 agreed to the release of the hostages in exchange for their
own departure to Cuba, the payment of a sum of money and for the OAS to overlook
the verbal war councils that were being kept against political prisoners. A
group of diplomatic personalities intervened in these negotiations, including
Dr. Alfredo Vazquez Carrizosa, co-founder of the CPDH and president until he
died last year. Some time after, the CPDH propelled the National Amnesty Law
that allowed for the release of political prisoners and created the appropriate
atmosphere so that nine months later M.19 would agree to a cease-fire with the
government of President Betancurt. This necessary process culminated in 1990
with an agreement to demobilize and reincorporate into political life.
2.-
The kidnapping of Juan Carlos Gaviria
On
April 2nd, 1996, Juan Carlos Gaviria, brother of former president and
current secretary general of the OAS, Cesar Gaviria, was kidnapped by the
insurgent group JEGA (acronym in reference to Jorge Eliecer Gaitan), in
Dosquebradas, Risaralda.
JEGA, led by Hugo Toro Restrepo, better known as “Bochica” requested as a
condition to release the hostage the resignations of Cesar Gaviria, Ernesto
Samper and Humberto de la Calle Lombana. All the resources of the state were
immediately set in action: politicians, officers, and diplomats were all called
upon to take action. President Gaviria turned to the humanitarian services of
the Cuban government; at the same time intelligence services were capturing in
Bogotá and Cali several members of the insurgency’s leadership and Bochica’s
wife who was said to be responsible for the operations.
The negotiations to achieve
Juan Carlos Gaviria’s liberation, ended with the release of the eight members of
JEGA that had been captured, and their departure to Cuba. In the final process,
even General Serrano himself -General Director of the National Police- served as
a hostage, with the purpose of having a positive denouement of the situation.
Juan Carlos Gaviria spent 70 days in captivity.
After this exchange of a hostage for members of JEGA, a national debate
aroused. Why wasn’t there such official diligence in other cases of kidnapping?
Why were the anti-kidnapping laws applied with rigor in some circumstances, but
not at all in the case of President Gaviria’s brother? Why is the entire state
apparatus set into action for some kidnappings and is completely indifferent to
others?
3.-
The case of the humanitarian release in Cartagena del Chairá
In a public event that took place in the town of Cartagena del Chairá –Caqueta-, on June 15, 1997, in the presence of numerous international observers, headed by Mr. Rodrigo Carazo, former president Costa Rica, and Mr. Manuel Conde Orellana, Guatemalan expert in conflict resolution, 60 soldiers and 10 naval infantrymen that had been retained by FARC since August 1996, were let go.
In a letter to President Samper, the industrials expressed that the
occasion of the release of the soldiers created the proper atmosphere to explore
the possibility peace dialogues, as it in fact happened a few months afterwards.
4.-
Humanitarian exchange of retained soldiers for imprisoned
guerrilleros.
On
March 5th, 2001, in the place known as La Y, a humanitarian exchange
of 15 ill guerrilleros for 42 policemen and soldiers held by FARC was agreed
upon. On June 28, 2001, FARC released 242 more in the town of La Macarena (Meta)
and another group in the rural zones of Antioquia. Forty-seven officers and
sub-officers of the police and army were still left in their power.
In
the beginning on 1998, a group of lawyers from several European countries
addressed President Pastrana and the General Commander of FARC, Manuel Marulanda
Velez, to propose among other things, the following:
“1. –The most recent events in Colombia, of which we have had news in Europe are the following:
a) The
existence of an acute social, economic, political, and military conflict,
characterized, every day with more evidence, by a civil war that lasts for
decades and does not seem to have a military solution.
b) The
existence in Colombia of people being held for political reasons, accused of
belonging, or directly or indirectly supporting FARC-EP and other guerrillas in
general.
c)
The
existence of a numerous group of soldiers made prisoners by FARC-EP in different
combats.
d) In
accordance with letters and declarations made between Mr. Marulanda Velez, and
President Andres Pastrana, the proposal of an exchange of soldiers for
guerrilleros is on the table.
e) In
the decrees published by the government, it ordered the clearance of an area of
five towns for a zone of dialogue, and also explicitly recognizes FARC-EP as a
force of political dialogue, meaning that it recognizes FARC-EP in the light of
international humanitarian law, as a belligerent force.
2.
- These events lead us to think:
a) The
impossibility of a military solution to the conflict.
b) The
sensible and concrete possibility of a political solution to the conflict,
through the process of dialogue that has begun between the warring forces; with
the presidential decrees that commanded the demilitarization of a portion of the
national territory for a zone of direct dialogue and the explicit recognition,
in such decrees, of the guerrilla as a political and belligerent force.
3.
- As adherents of the law we consider that a new and meaningful step, motivated
by humanitarian reasons and whose positive effects would be evident especially
for the families affected, would be the exchange of military prisoners for
political prisoners, with the mediation of the International Red Cross.
4.
- International War Law, a special section of International Public Law,
considers civil and internal wars to be included in the conflicts in which the
law must apply. The case of Colombia is a perfect example.
This extension, both in terms and application, has been sanctioned by all
four Geneva Conventions of August 12, 1948, and by the Protocols II and I added
to Geneva in June of 1977, all signed and ratified by Colombia. It is Additional
Protocol II that makes an explicit reference to the rules that regulate civil
war, specifically singling out insurgent forces that acting within the national
territory have taken part of it away from the control of the government.
The conditions set by the Geneva Conventions, particularly by Additional
Protocol I, in order to consider “legitimate combatants” those incorporated in
the armed forces of an insurgent political group are the following: a) They must
wear a uniform recognized by the adversary, b) they must carry weapons openly,
c) they must be dependant on a responsible commander, d) they must respect the
laws and customs of war.
Taking into account these rules, FARC-EP must be considered “legitimate
combatants” of an insurgent force, existing and recognized in fact, in the
Colombian state, which Andres Pastrana has employed.
5-
In the face of the belligerent relationship that exists in fact and law,
“agreements between belligerents” are possible, based on the International
Humanitarian Law signed and ratified by Colombia.
Among all the possible agreements (cease-fires, creation of zones of
distension and of sanitary security, protection, attention and evacuation of the
wounded and ill, etc.); the exchange of prisoners currently seems particularly
important, as a precursor of important steps forward. It is addressed in Article
44 of Additional Protocol I of Geneva 1977, which also does not make a
distinction between “legitimate” and “illegitimate”
combatants.
We vehemently conclude from all of this, that the conditions for an
agreement are set, considering for example that “the creation of a zone of
distension” is a “perfect example” of “agreements between belligerent parts”.
6-
If no doubts exist over the legal position of the National Army soldiers being
held by FARC-EP, it seems like doubts regarding members of the insurgent forces
that are prisoners cannot exist and even more so regarding those who deny the
accusations of being insurgents. The Third Geneva Convention in 1949, as
mentioned before, compels members of insurgent forces to be considered prisoners
of war, with the condition of: a) The existence of a known organized movement,
b) the members of it to have something by which they can be distinguished that
is known, c) that they respect the laws and customs of war.
The authors of this letter, sent to the Colombian government and to
FARC-EP, invite the belligerent parts to take a new step that will help to open
dialogue. A step certainly in the light of International Public Law,
particularly the conventions referred to as “Humanitarian Law” (Geneva
Conventions of August 22, 1864, July 17, 1929, August 12, 1949 and the
Additional Protocols of June 8, 1077). We suggest also that the hypothesis of a
prisoner exchange be taken into acount, to take place under the supervision of
the International Red Cross. We declare
ourselves available to put into action any activity that can be
considered useful or necessary.”
The perspective cannot be that those deprived of their liberty due to the
conflict remain endlessly in the hands if the insurgency, as it is happening
with officers of the police and army, without the slightest support from the
State. Due to this, the CPDH believes that considering past experiences,
exploring the possibility of a Humanitarian Exchange Agreement is
appropriate as long as both parts are willing. For this
reason:
a) We
ask of the Military Forces of the State to suspend the “rescue operations”, as a
way to preserve the lives of those kidnapped and not repeat the sad and recent
events of La Cacica, Consuelo Araujo Noguera.
b) We
ask of FARC, proofs of life of those kidnapped and to allow a humanitarian
commission to visit them.
c)
In
the context of movements for UN mediation, that President-elect Alvaro Uribe
Velez, is working for to resume contacts with the insurgency, we ask the
inclusion of a possible humanitarian exchange, as a first step.
d) We
invite the recently elected Congress to set into action all political and
legislative resources to advance the release of the kidnapped.
e) We
urge the group of “friendly countries” that accompanied the dialogue as well and
the International Community to take the appropriate actions for the immediate
release of the kidnapped.
f)
We
consider that the possibility of finally overcoming all the Human Rights
violations and the recent and painful violations of International Humanitarian
Law need not be linked to the resuming of the dialogues. On the contrary, a
humanitarian agreement would positively contribute to create a positive tone to
restart the dialogues for a political solution to the conflict.
The
CPDH offers its service, as will probably many other similar organizations, to
the families of those deprived of freedom due to the conflict, to advance a
campaign in favor of a Humanitarian Exchange Agreement, tied with the
objective of resuming the dialogues between the government and the insurgency
for a political end to the conflict.
Cordially,
Jose
Gutierrez
Luis Jairo Ramirez
Director
Executive Secretary