Lessons from Researching Human Rights Law Application in Colombia
By John Lindsay-Poland
On December 14, 2012, Open Society Foundations convened a conversation in Washington on how to more effectively apply the Leahy Amendment, the US law that prohibits assistance to any foreign military or police unit if there is credible information that it has committed a gross human rights abuse, unless effective steps have been taken to bring to justice those responsible. This is known as human rights vetting. I have worked for application of Leahy Law in Colombia for several years, and was asked to speak on a panel about lessons learned as a researcher and activist. This is an edited version of my comments.
Colombia in the last decade brought together eight extraordinary conditions:
▪ high-level and persistent political commitment by the United States to military assistance;
▪ a US policy that explicitly promoted human rights improvements (the Leahy Law was actually created with Colombia in mind);
▪ massive US aid across more than 500 units;
▪ systematic murders of civilians, committed by Army units across the country;
▪ impunity rates of 98% for those abuses;
▪ a sophisticated judicial apparatus that sought legitimacy by opening human rights investigations;
▪ experienced and organized human rights groups documenting the abuses;
▪ the distinction of being the country where the State Department said it had its best Leahy vetting operation.
In examining Leahy Law application in Colombia, we began by examining the Foreign Military Training reports published by State Department, to see what units were actually receiving US assistance. These reports are required by law to list for each training event, the unit and number of people receiving military training, the funding source, the course, cost, dates and location. The reports have significant data issues: under-reporting the number of soldiers and police trained in Colombia and Mexico; they’re typically posted nine months or more after the statutory deadline; units often are only identified as “Army” or other vague categories.
However, in many countries they do identify some units. Beginning in 2006-07, we also received a list of vetted units through Senator Leahy’s office, and compared them. We found that individuals from 51 units were receiving training, but were not vetted. This was during the period when individuals were considered “units” (which is no longer the case under a clarification of the law approved last year). We also saw units receiving training whom we knew to be among the worst in Colombia. This was a first call to our attention that something was amiss.
In 2009, Colombian human rights organizations obtained from the Prosecutor General’s national human rights unit a list of investigations it had opened into 2,054 reported extrajudicial killings. These reached back to 1985, though the vast majority had been committed since 2000. The list showed the status of investigations, but not the unit. By 2010, two years after these killings became a public scandal, Colombia had still only successfully prosecuted soldiers for a few dozen of these killings - almost no “effective measures” were being taken to bring those responsible to justice.
Colombian groups also obtained, using Colombia’s freedom of information law, a list of investigations into killings by the military justice system, which did identify the brigades responsible, and used these to identify units for killings on the list from the Prosecutor General’s list. Colombian state agencies have subsequently refused to release such detailed lists of investigations into extrajudicial killings that either the civilian or military justice systems have opened.
Some Colombian human rights organizations also legally represent victims’ families. In the Colombian justice system, at least under the old oral system, victims’ representatives often received documents as part of the formal investigation that sometimes identified responsible units. In nearly a thousand extrajudicial killings, NGOs or the media identified a unit responsible (at least the brigade). About half of these had been published in a manner that they could be shared with the State Department.
We also looked at unit commanders. If a commander of a unit has a history of abuses, then when that commander moves to a different unit, that unit is also problematic. We maintain that other command staff in a unit, such as the head of intelligence and chief of staff, also have important roles in human rights violations, and if they have a history of abuses, their unit should be examined. We began to create a database of commanders and what unit they were in at what time. The Colombian Army, as part of its effort to seek legitimacy in its counterinsurgency, was in some ways more transparent about where they were operating and who their commanders were than many other militaries in the world. From the Colombian military’s web site, we were able to obtain information on commanders’ unit assignments, which we cross-referenced with information on violations to see when Leahy Law should have been applied to commanders of units that may not have had as bad a history, but the commanders did.
We faced a challenge that is very sensitive. Information I assumed the State Department would have, it either didn’t have, or it didn’t have in a form that they could use it, or they didn’t believe it was credible. Since NGOs had published information on nearly 500 extrajudicial killings where the unit was identified, and many of those units were subsequently vetted and approved for assistance, I thought that we had a difference of interpretation about what is credible.
I also assumed that if the Prosecutor General’s human rights unit created a database of over 2,000 extrajudicial executions it was investigating that was obtained by Colombian NGOs, that State would have obtained the same information, especially since the State Department also funds that unit.
But I learned later that I was mistaken - that either they had not asked for the information, they did not have the information, or it was not entered into their database. So that assumption was incorrect, but I also think we had different interpretations about what is credible information. Not having dialogue between State and NGOs and researchers made it impossible to know. For this reason, I think it would very helpful if, when the State Department uses NGO data and can’t reach a conclusion that it constitutes credible information of a serious abuse, that they reach back to the group that generated the data, because often there is more the NGO can offer to complete the picture, just as State often obtains information that NGOs do not have. In order to get that complete picture about a case, State and civil society need to cross-reference information. That’s why we need a dialogue and back-and-forth.
It was not until this year, two years after publishing an extensive study on this subject, that I learned that State did not have gathered together, in a format that identifies responsible units, the publicly available data we had on extrajudicial executions. So I created a database that brought together information from public and sharable sources on 600 extrajudicial executions for which a military unit had been identified, and shared it with officials in the State Department’s bureau that is centrally responsible for applying the Leahy Law. As a result, ten units named as responsible for extrajudicial killings that had been nominated for U.S. assistance this year were excluded, and the State Department reports that many additional units were not nominated for assistance because of this data.
It is gratifying that information we provided was used to deny assistance to units responsible for killing civilians. As important is the direct dialogue and increased understanding that led to providing information in a usable format.
Finally, one other issue. After we published our report in 2010, which generated a lot of attention within State and the US Embassy, the list of Colombian units that are vetted and approved for US assistance was classified. It is hard for me not to draw the conclusion that the State Department’s classification was for political reasons, because it was inconvenient to have criticism of the lack of implementation of the Leahy Law. No one had ever voiced any kind of security concern about disclosing the list of vetted units before our report, nor has anyone subsequent to classifying the list pointed to any specific security concern. If we are assisting foreign governments with lethal assistance in a situation of warfare, where security forces are authorized to take human life, we should know who are the units that are receiving assistance from the US tax dollar. It’s just a matter of good governance.