Letter to speaker Nancy Pelosi on Colombia Free-Trade Agreement
I write to thank you for the leadership you have shown on human rights in Colombia in connection with the debate over the US-Colombia Free Trade Agreement (FTA), and to follow up on concerns you have raised about the plight of Colombian trade unionists.
Human Rights Watch agrees with the position that the Speaker set out last year: before Congress considers the FTA, Colombia must show "concrete and sustained" results in addressing ongoing violence against trade unionists, impunity, and the role of paramilitary groups in that violence.
Free trade should be premised on fundamental respect for human rights, especially the rights of the workers producing the goods to be traded. In Colombia, workers cannot exercise their rights without fear of being threatened or killed. Without concrete and sustained results in addressing this basic problem, ongoing anti-union violence and impunity would, as President-elect Barack Obama has noted, make a "mockery" of labor protections in the agreement. We believe that Colombia should be in compliance with such protections before the accord takes effect, as has generally been demanded with FTA commercial provisions.
In fact, under US pressure related to the FTA, Colombia has started to take some positive steps on impunity for anti-union violence. But those steps are limited and incomplete, and in other areas (such as the rate of violence), Colombia has been sliding back this year. Also, the progress made on impunity has been won only with the possibility of FTA rejection on the table. If Congress were to prematurely approve the FTA, the progress made could rapidly be undone. Nor would the threat of fines or sanctions for violating FTA labor requirements provide anywhere near the incentive for change as the fear of accord denial.
In a September 12 letter to President Alvaro Uribe of Colombia, Chairman Miller highlighted a number of significant problems affecting Colombian trade unionists' ability to exercise their rights. Yet, as explained below, more than two months later the Colombian government has yet to remedy many of those problems and continues to fall short in other areas that should be addressed before FTA ratification.
1. Ongoing violence against trade unionists
As you know, Colombia has the highest rate of trade unionist killings in the world. According to the National Labor School (Escuela Nacional Sindical or ENS), Colombia's leading organization monitoring labor rights, 2,685 unionists have been killed since 1986. In addition, more than 3,700 unionists have reported receiving threats.
The rate of yearly killings has fluctuated over time, dropping between 2001 and 2006. This reduction may be explained by many factors, including the establishment of a protection program-partly funded and supported by the United States-for threatened union leaders. Nonetheless, even with the protection program in place, in 2006 the National Labor School registered 76 killings of unionists, adding up to more than half of the total number of unionists killed in the whole world that year.
After dropping to 39 last year, the number of killings has increased once again in 2008. Through October, 41 trade unionists have been reported killed, compared with 33 through October 2007. More than 150 unionists have reported being threatened so far this year.
2. Widespread impunity for anti-union violence
Last year Colombia's Attorney General established a specialized group of prosecutors to reopen many of the uninvestigated cases of threats against and killing of trade unionists. Since then, the group reports that it has obtained 96 convictions. This is an important achievement that can be directly traced to US pressure in relation to the FTA. Yet, as Chairman Miller pointed out in September, at the current rate of convictions, it would take decades for the prosecutors to get through the backlog. Also, there are serious reasons to be concerned about the sustainability of this effort:
The specialized prosecutors are not investigating the majority of reported cases.
The Office of the Attorney General reports that as of October 20, the specialized prosecutors unit is only reviewing a total of 1,272 cases involving anti-union violence-including both threats and killings (even though nearly all the 2,685 reported killings and more than 3,700 threats remain unsolved). When Human Rights Watch asked representatives of the Office of the Attorney General what they planned to do with the thousands of other reported cases of threats and killings, she gave multiple explanations:
First, the Office said that the specialized group was only looking at the cases that had already been reported to the International Labor Organization (ILO) when the specialized group was created. But the ENS and trade unions later submitted all information they have on all 2,685 registered killings to the ILO. It makes no sense to exclude many cases from investigation just based on the date on which they were reported to the ILO.
Second, the Office said they had decided not to expand the number of cases assigned to the specialized prosecutors simply because they do not have the resources to handle that many cases. Thus, the remaining cases would be assigned to ordinary prosecutors who may be spread out around the country, who will not be focused specifically on anti-union violence and are more vulnerable to pressure or threats. This explanation is surprising in light of the vast resources the US Congress has already assigned to the Human Rights Unit, precisely to strengthen these sorts of investigations. It is also not a good reason to simply exclude more than half the cases from the specialized prosecutors' workload, rather than organizing and prioritizing them in a useful manner.
Third, the Office said that many of the cases had been inaccurately reported as trade unionist killings, claiming that the victims were not union members or had been killed for non-union-related reasons. Yet when Human Rights Watch asked her for a list of all the cases that the specialized group was investigating, as well as the list of cases that they had decided not to investigate because they did not really involve unionist killings, she refused to provide such a list. The Office of the Attorney General has also refused to provide such lists to union representatives, making it impossible to have a meaningful discussion about the basis on which they are excluding many cases from investigation.
The specialized labor judges have only been appointed through July 2009.
As Chairman Miller pointed out in September, the latest resolution of the Superior Council of the Magistracy (Consejo Superior de la Judicatura) naming three specialized judges to handle the trade unionist cases provides that their appointments expire in July 2009. There is no guarantee that the judges will have their appointments renewed.
Many convictions involve paramilitaries in the Justice and Peace process.
An important factor that has led to the increase in convictions is that some paramilitary commanders participating in what is known as the "Justice and Peace" process have been taking responsibility for unionist killings. But this means that once the Justice and Peace process is over, the rate of convictions is likely to quickly drop off. Also, the convictions in these cases often do little to further truth or justice.
Under the "Justice and Peace Law" paramilitaries known to be responsible for atrocities are given an opportunity to admit all their crimes. In exchange, they are set toreceive a single reduced sentence of five to eight years, rather than the much longer sentences-up to 40 years, in some cases-ordered in individual cases of trade unionist assassinations.
The law began to be applied last year, around the same time as the convictions for unionist killings started to go up. Based on Human Rights Watch's review of several of the rulings in these cases, as well as the statements of persons close to the investigations, a substantial share of the 96 convictions in unionist cases are based primarily on the statements given by paramilitaries under the Justice and Peace Law.
The statements in these cases are often general, however, paramilitary commanders like Ever Veloza (also known as "HH") have admitted having command responsibility for thousands of killings, including unionist killings. But they often do not describe the circumstances surrounding the killings or identify other accomplices or participants in the crime. As a result, these convictions often do little to establish the truth about the killings.
Finally, since the Colombian government extradited many of the most important paramilitary commanders to the United States, these commanders have ceased cooperating with the Colombian investigations. As a result, even the minimal statements of responsibility that might have been available under the Justice and Peace Law may now be out of reach in cases for which these commanders bear responsibility.
Lack of progress in high-profile cases
In some of the most high-profile cases of unionist killings that Chairman Miller highlighted in his September letter there has been little progress. For example, in the case of intelligence chief Jorge Noguera, who allegedly gave sensitive information about trade unionists to the killers, investigations have moved inexplicably slowly or have been hampered by procedural errors. Similarly, in the murder of labor leader Luciano Romero, despite a court order to investigate potential involvement of Nestle Corporation in the killings, the Office of the Attorney General has failed to move any such investigation forward. And, as Chairman Miller noted in his letter, a Colombian Police officer who was convicted in absentia of the killing of labor leader Jorge Dario Hoyos has yet to be caught or arrested.
In another significant case involving the military's killing of three trade unionists in Arauca in 2003, while lower level soldiers have been convicted of the killings, prosecutors appear to have made little progress in investigating the potential responsibility of military officers up the chain of command.
3. Stigmatization of unionists
High-level officials continue to stigmatize legitimate union activity as a cover for the abusive left-wing guerrillas. Colombian President Alvaro Uribe recently dismissed international concerns over the violence, describing the unionists as "a bunch of criminals dressed up as unionists." Such statements put unionists at greater risk, suggesting that the violence against them might be justified and that accountability for the killings may not be a priority for the government.
4. The rise of successor groups to the paramilitaries
Because most trade unionist killings have never been investigated, it is impossible to know exactly who is responsible and why all the killings were committed. Nonetheless, it is clear that in many cases, the killers are paramilitaries, who have admitted to deliberately persecuting unions. In fact, as of March 2008, the Office of the Attorney General reported that of all the persons convicted in unionist killings, 73 (the largest share) belonged to paramilitary groups.
As a result, to address the violence against unionists in a sustained manner, it is crucial that the Colombian government effectively dismantle the paramilitary groups that pose the greatest threat to unions.
The Uribe administration claims that paramilitaries no longer exist thanks to a demobilization program it has implemented in recent years. But while more than 30,000 individuals supposedly demobilized, Colombian prosecutors have turned up evidence that many of them were not paramilitaries at all, but civilians recruited to pose as paramilitaries. Law enforcement authorities never investigated most of them.
Meanwhile, new armed groups often led by mid-level paramilitary commanders have cropped up all over the country. The Organization of American States (OAS) Mission verifying the demobilizations has identified 22 such groups, totaling thousands of members. The groups are actively recruiting new troops and are committing widespread abuses, including extortion, threats, killings, and forced displacement. In Medellín, for example, after a steady decline in official indicators of violence, there has been a surge in homicides, apparently committed by these groups. The bulk of the 150 threats received by unionists this year have been signed by groups purporting to be paramilitaries.
5. Extrajudicial executions
Another recent threat to unionists is posed by the Colombian Armed Forces. In recent years there has been a substantial rise in the number of extrajudicial killings of civilians attributed to the Colombian Army. Under pressure to demonstrate operational results by increasing their body count, army members apparently take civilians from their homes or workplaces, kill them, and then dress them up to claim them as combatants killed in action. The killings of the three trade unionists in Arauca in 2003 fit this general pattern.
The Attorney General's Office is currently investigating cases involving more than a thousand victims of extrajudicial executions dating back to mid-2003. The Defense Ministry has issued directives indicating that such killings are impermissible. But such directives have been regularly undermined by statements from high government officials, including President Uribe, who until recently accused human rights defenders who reported these killing of colluding with the guerrillas in an orchestrated campaign to discredit the military.
Since October, the Uribe administration has started to more explicitly acknowledge the problem and has dismissed several soldiers and officers from some military units in connection with some of the most well known killings. However, it is crucial that these dismissals be followed by effective criminal investigations, prosecution, and punishment of those responsible for executions-including commanding officers who may have allowed or encouraged them--that have been reported on a regular basis all over the country. It is too early at this time to determine whether such punishment will occur.
Once again, I would like to thank you for having taken a firm position in defense of human rights in connection with the FTA. As I hope this letter makes clear, Colombia still has a lot of work to do before the FTA should be considered. By continuing to delay the deal's approval, the United States will show that human rights are not just words, but rather basic values that have real consequences for US policy. Please do not hesitate to contact us if we can be of any assistance on this or other matters.