THE WHITE HOUSE
Office of the Press Secretary
(South Brunswick, New Jersey)
________________________________________________________________________
For Immediate Release
August 23, 2000
MEMORANDUM OF JUSTIFICATION
IN CONNECTION WITH THE WAIVERS
UNDER SECTION 3201(a)(4) OF
THE EMERGENCY SUPPLEMENTAL ACT,
AS ENACTED IN
THE MILITARY CONSTRUCTION APPROPRIATIONS ACT, 2001
The challenges faced by Colombia
are a matter of national security
interest to the United States. Our assistance package
is crucial to
maintaining our counterdrug efforts and helping the
Colombian Government
and people to preserve Colombia's democracy.
Moreover, the United
States has important interests in promoting economic
reform, protection
of U.S. citizens, and hemispheric stability, all of which
are addressed
by our support for Colombia. Pursuant to Section
3201(a)(4) of the
Emergency Supplemental Act, and for the following reasons,
the President
has determined that a waiver of the certification
requirements in
Section 3201(a)(1)(A)(ii) and (iii) and 3201(a)(1)(B)-(E)
is in the
national security interest.
Colombia confronts a drug
emergency that directly affects the
United States. In spite of aggressive counterdrug
efforts, coca
cultivation in Colombia has increased 140 percent over the
last five
years. This massive rate of increase threatens to
reverse the
counterdrug successes in Peru and Bolivia. Ninety
percent of the
world's cocaine is grown, processed, or transported through
Colombia.
The U.S. Drug Enforcement Administration estimates that up
to 75 percent
of the heroin consumed on the East Coast of the United
States comes from
Colombia. Illegal drugs cost our society 52,000 lives
and nearly $110
billion each year in health costs, accidents, and lost
productivity.
The drug trade is also fueling the illegal armed groups
involved in
Colombia's internal conflict, further exacerbating human
rights
problems.
The Administration supports the
Congress' effort to ensure that
human rights are respected and protected in Colombia.
As we begin the
certification process, the Administration is committed to
working with
the Colombian Government to protect human rights by making
progress in
all areas stipulated by the law. While the Government
of Colombia is
actively taking steps to meet the seven conditions on
assistance, we are
currently able to certify only one (Section 3201(a)(1)(A)(i)).
The
Government of Colombia will need some time before we will
be able to
certify several of the criteria. We continue to press
the Government of
Colombia to achieve tangible results in these areas.
By the terms of
the law, another certification or waiver will be required
prior to the
obligation of further funds in FY 2001. The
Administration will
continue to engage in an extensive consultative process
with the
Colombian Government over the coming months as we strive to
be able to
certify additional provisions.
Consistent with Section
3201(a)(2), the State Department has
consulted with internationally recognized human rights
organizations.
Senior State Department principals met with representatives
of these
organizations on August 2 to initiate an ongoing
consultative dialogue
on the implementation of the U.S. assistance package.
Meetings were
also held on August 10, 17, and 18. Our Embassy
officials in Bogota
also met with 15 Colombian NGOs on August 2, and agreed to
establish a
similar consultative process. Additionally, the
Colombian Government
has instituted its own formal consultative mechanism with
Colombian
NGOs.
For each of the six certification
requirements that the President
has waived, this memorandum describes the steps the
Colombian government
has already taken toward meeting the requirements, the
reason they
cannot be certified at this time, and the further steps we
expect them
to take to allow them to meet the conditions for
certification in the
future.
(1) Secretary of State must certify "that the
Commander General of the
Colombian Armed Forces is promptly suspending from duty any
Colombian
Armed Forces personnel who are credibly alleged to have
committed gross
violations of human rights or to have aided or abetted
paramilitary
groups. . . ." (Section 3201(a)(1)(A)(ii)).
At the present time, the Military
Commander of the Colombian Armed
Forces has only limited authority to promptly suspend from
duty all
Armed Forces personnel credibly alleged to have committed
gross
violations of human rights or to have aided or abetted
paramilitary
groups. Currently, the Military Forces have the
authority to remove
officers with a minimum of 15 years of service. The
proposed reform of
the military career personnel statutes, which is expected
to become law
by September 14, 2000, will also give the Military
Commander, General
Fernando Tapias, the authority to dismiss officers with
fewer than 15
years of active duty service. Non-commissioned
officers (NCOs) will
continue to be subject to removal from the Armed Forces by
a senior
military commander. The Administration will strongly
urge that the
Commanding General use the requisite authorities to suspend
promptly
from service Armed Forces personnel facing credible
allegations of
involvement in human rights violations or of aiding or
abetting
paramilitary groups.
In several important cases,
usually by order of civilian
authorities, senior-level officers have been suspended
after charges
have been brought against them. Examples include
General Jorge Plazas
Acevedo, arrested and suspended in April 1999 in connection
with the
murder of Benjamin Khoudari; Brigadier General Jaime
Humberto Uscategui,
suspended in April 1999 in connection with the 1997
paramilitary
massacre at Mapiripan (Meta); and Lieutenant Colonel Jesus
Maria
Clavijo, suspended in March 2000 after being arrested on
charges of
collaboration with paramilitaries and involvement in
"social cleansing"
killings while a member of the Army's 4th Brigade.
However, there are still a number
of documented cases of senior
security force personnel remaining on "active
duty" even while charges
against them were being pursued.
On August 15, six children were
killed and five were injured after
being shot by Colombian army troops. According to a
senior Colombian
army officer, the National Liberation Army (ELN),
Colombia's second
largest guerrilla force, were using the children as
"human shields"
following a shoot-out between the Colombian army and the
ELN. However,
witnesses of the incident report that the ELN was not
involved.
President Pastrana has said he will personally oversee the
investigation.
According to the Human Rights
Report of the Colombian Ministry of
Defense, 32 members of the Armed Forces were separated from
service
between 1998 and 1999 for presumed human rights violations.
During that
same period, the military justice system also discharged 65
police
officers. We will continue to work with the
Government of Colombia in
order to monitor further progress in holding military and
police
personnel accountable for violations of human rights.
Additionally, the Ministry of
Defense reported that approximately
63,000 security force members received human rights
training in 1999,
provided by the International Committee of the Red Cross,
the Colombian
Red Cross, the Roman Catholic Church, elements of the
government and
security forces, and foreign governments.
Nevertheless, there remain
disturbing, credible allegations that
individual Colombian military officers continue to
collaborate with
paramilitaries. The Government of Colombia needs to
take further, and
more effective, measures that aggressively prevent
collusion between
security force personnel and paramilitary groups, and to
take decisive
disciplinary measures against its personnel where
appropriate before we
can certify compliance. The Administration has raised
these issues with
the Government of Colombia repeatedly at all levels of our
bilateral
dialogue and will continue to work with the Colombian
Government to
satisfactorily address these concerns.
(2) Secretary of State must certify that "the
Colombian Armed Forces and
its Commander General are fully complying with Section 3201
(a)(1)(A)(i)
and (ii) of the Act. . . ." (Section 3201(a)(1)(A)(iii)).
With respect to Section
3201(a)(1)(A)(i), President Pastrana's
directive to the Colombian Armed Forces was issued only
recently, so we
will need to monitor the extent of their compliance over
the next
several months. With respect to Section 3201(a)(2)(A)(ii),
some Armed
Forces personnel have been promptly suspended when credibly
alleged to
have committed gross violations of human rights; however,
there are
still many cases where this does not occur.
It is our expectation that the
Presidential directive, which was
issued on August 17, will provide the requisite authorities
with the
power to suspend from duty Armed Forces personnel credibly
alleged to
have committed gross violations of human rights or to have
aided or
abetted paramilitary groups. We expect the Armed
Forces and the
Commanding General to take prompt and immediate steps to
use the new
authority in the Presidential directive. Accordingly,
the Armed Forces
and its Commander General cannot be said to be
"fully" complying at this
time.
(3) Secretary of State must certify that "the
Colombian Armed Forces are
cooperating fully with civilian authorities in
investigating,
prosecuting, and punishing in the civilian courts Colombian
Armed Forces
personnel who are credibly alleged to have committed gross
violations of
human rights. . . ." (Section
3201(a)(1)(B)).
During the Pastrana
Administration, there has been a gradual, but
steady, improvement in the cooperation between civilian
authorities and
the Colombian Armed Forces in the investigation,
prosecution, and
punishment in the civilian courts of military personnel who
are credibly
alleged to have committed gross violations of human rights,
but steps
remain to be taken before this condition can be certified.
President
Pastrana has demonstrated his Government's commitment to
human rights by
the dismissal of four generals and numerous mid-level
officers and NCOs
for collaboration with right wing paramilitaries or for
failure to
confront them aggressively. The military high
command, under the
leadership of Defense Minister Ramirez and General Tapias,
has also
stated repeatedly that it will not tolerate collaboration
between
military personnel and paramilitary groups. However,
security force
actions in the field are not always consistent with this
policy.
The human rights unit of the
Prosecutor General's Office (Fiscalia)
investigated, indicted, or prosecuted 303 security force
members during
1999, including at least 12 officers, on a variety of
charges including
homicide, torture, and sponsorship of paramilitary groups.
The Attorney
General's Office (Procuradoria) and the security forces
demonstrated a
greater willingness to follow up with instructions that
those ordered
arrested be removed from their duties, denied the right to
wear a
uniform, or turned over to civilian judicial authorities.
Most recently, five Colombian
generals and other ranking officers
are being investigated by the Procuraduria for failing to
protect
residents from paramilitary massacres. In July 2000,
the Procuraduria
reopened the case against four army Generals and one
Lieutenant Colonel
for failing to take appropriate measures to protect the
residents of
Puerto Alvira from a May 1998 paramilitary attack.
One of these
officers is Brigadier General Jaime Humberto Uscategui, who
was
rearrested on July 31, 2000 in connection with the 1997
Mapiripan
massacre. Additionally, an investigation was opened
concerning the
former commander of the 5th Brigade, General Alberto Bravo
Silva, and
four other officers for failure to act to prevent the
August 21-22, 1999
paramilitary massacre in the areas of Tibu and La Gabarra.
The military judiciary
demonstrated an increased willingness to
turn cases involving security force officers accused of
serious human
rights violations over to the civilian judiciary. The
military cites
over 500 such cases since the 1997 Constitutional Court
decision;
however, some of these cases involve the police, and many
of them
involve criminal activity not directly related to human
rights.
Civilian authorities, including
the Prosecutor General, have
expressed concern over the number of security force
personnel who have
escaped from military confinement while awaiting trial in
civilian
courts. As stated in the Department of State's 1999
Country Report on
Human Rights for Colombia, there are a number of cases of
Armed Forces
personnel accused of human rights violations that have been
adjudicated
in the civilian courts but progress is still insufficient
to permit
certification of this provision at this time.
The Government of Colombia is
making concrete progress in ensuring
that military personnel credibly alleged to have committed
gross
violations of human rights are brought to justice, but
continued work is
needed. This should include active cooperation with
civilian
authorities in executing outstanding arrest warrants
related to human
rights abuses or paramilitary activity; complete sharing of
information
with civilian authorities; effective detention of alleged
perpetrators
of human rights violations against whom there are arrest
warrants; and,
establishment and implementation of effective measures to
protect
civilian investigators and prosecutors from threats that
impede their
work.
(4) Secretary of State must certify that "the
Government of Colombia is
vigorously prosecuting in the civilian courts the leaders
and members of
paramilitary groups and Colombian Armed Forces personnel
who are aiding
or abetting these groups. . . ." (Section
3201(a)(1)(C)).
The Colombian military's record in
dealing with paramilitary groups
remains inadequate. In some locations, elements of
the army have
attacked and captured members of such groups; in others,
individual
members tolerated or even collaborated with paramilitary
groups. At the
end of 1999, Colombian military and security forces began
to target more
aggressively paramilitary forces.
In taking forceful action against
paramilitary forces, many of
these armed encounters resulted in paramilitary members'
deaths and the
capture over 300 paramilitaries according to 1999-2000 data
from the
Statistics Center of the Colombian Ministry of Defense.
The Department of State's 1999
Country Report on Human Rights on
Colombia reports that "the military judiciary
demonstrated an increased
willingness to turn cases involving security force officers
accused of
serious human rights violations over to the civilian
judiciary, as
required by a 1997 Constitutional Court ruling; however,
concerns about
impunity within the military judiciary remain."
The Fiscalia is also
vigorously going after a number of military personnel for
aiding or
abetting paramilitaries. Although the Fiscalia is
committed to
prosecuting military personnel colluding with
paramilitaries, it remains
burdened by competing demands and scarce resources.
Our supplemental
aid package will help the Fiscalia deal with these
challenges by
augmenting and expanding the recently created Human Rights
Special Unit,
and by providing training for judges and public defenders.
The
Fiscalia's Human Rights Special Unit is a task force
comprised of more
than 100 prosecutors, investigators, and technicians
responsible for the
investigation and prosecution of human rights crimes.
Formed in October
1999, this unit has received initial specialized training
in the United
States on conducting criminal investigations of cases
involving multiple
homicides, bombings, and kidnappings.
As stated in the Department of
State's 1999 Country Report on Human
Rights for Colombia, the Government of Colombia
"demonstrated an
increased willingness to remove from duty security force
officers who
failed to respect human rights, or ignored or were
complicit in the
abuses committed by paramilitary groups." Since
the August 1997
Constitutional Court ruling, which more narrowly defined
the
constitutional provision that crimes by state agents
unrelated to "acts
of service" must be tried in civilian courts, the
military judiciary has
turned 526 cases of possible human rights violations over
to the
civilian judiciary for investigation and possible
prosecution. Among
the cases transferred during 1999 were those of three full
colonels --
the first time that the military judiciary turned over
cases concerning
several high-ranking officers. However, some of the
cases included in
this figure do not involve gross violations of human
rights.
The Government of Colombia is
making progress in bringing to
justice paramilitary personnel and armed forces personnel
credibly
alleged to have aided paramilitary personnel, but must
continue to
implement effective measures to achieve this objective.
The Superior
Military Tribunal provided a list of cases transferred from
September
1997 to the present consistent with the Constitutional
Court decision of
1997. That list indicates that, in 1999, 27 cases
(involving murder,
deprivation of liberty, personal injury, etc.) were
transferred to
civilian courts. In January - May 2000, 4 such cases
were transferred.
In February, the Government created (via executive decree)
a
Coordinating Center for the Struggle against "Self
Defense" and other
Illegal Armed Groups. To date, however, this Center
has not achieved
tangible results, such as the establishment of a
"Search Block" to
pursue paramilitaries, or the creation of an early warning
system to
provide better protection to the civilian population, or
the development
of an effective rapid response team to follow up on
investigations of
human rights violations by paramilitaries.
The Administration is strongly
urging the Government of Colombia to
undertake all necessary measures to eliminate impunity
within the
military justice system and to dedicate to the Fiscalia all
necessary
resources to permit it to investigate and, as appropriate,
prosecute
members of the paramilitary groups or members of the
government security
forces who assist them.
(5) Secretary of State must certify that "the
Government of Colombia has
agreed to and is implementing a strategy to eliminate
Colombia's total
coca and opium poppy production by 2005 through a mix of
alternative
development programs; manual eradication; aerial spraying
of chemical
herbicides; tested, environmentally safe mycoherbicides;
and the
destruction of illicit narcotics laboratories on Colombian
territory. .
. ." (Section 3201(a)(1)(D)).
The Administration does not
believe that this criterion can be met.
The Colombian Government in Plan Colombia has set a goal of
eliminating
50 percent of drug crop cultivation within five years
(October 2005).
This target is in keeping with the much-heralded reductions
achieved in
Peru and Bolivia. A 50 percent reduction is
significant, realistic, and
obtainable.
Any plan for total coca and poppy
elimination in this time period
would require more resources than are contemplated in Plan
Colombia. As
the implementation of Plan Colombia proceeds, it may be
possible for the
Government of Colombia to revise its timetable for drug
elimination;
this is particularly true for opium poppy elimination.
The
Administration has asked the Government of Colombia to
determine a
timetable, and an estimate of resources, that would allow
it to work
towards a strategy of eliminating coca and poppy
production.
With respect to mycoherbicides, we
have made clear that the United
States will not support the use of mycoherbicides against
the Colombian
coca crop unless three conditions have been met: first, a
rigorous,
carefully supervised research and test program in Colombia
determines
that mycoherbicides are safe, effective, and superior to
existing
chemical eradication methods; second, a broader national
security
assessment, including consideration of the potential impact
on
biological weapons proliferation and terrorism, provides a
solid
foundation for concluding that the use of this particular
drug control
tool is in our national interest; and, third, the Colombian
Government
agrees with proceeding with the mycoherbicide program.
(6) Secretary of State must certify that "the
Colombian Armed Forces are
developing and deploying in their field units a Judge
Advocate General
Corps to investigate Colombian Armed Forces personnel for
misconduct. .
. ." (Section 3201(a)(1)(E)).
The military penal reform bill
(which became effective August 12,
2000) requires, for the first time, that the military legal
system
operate outside and independent of the chain of command.
Under this new
penal code, the commanding officer in the field would no
longer conduct
criminal trials. Instead, the code provides for the
installation of
professional military judges. Criminal investigations
will continue to
be conducted by "judges of instruction," who in
essence are civilians
with legal training. According to the Colombian
Ministry of Defense,
the Colombian military is in the process of establishing a
JAG Corps.
Given the differences between the U.S. and Colombian legal
systems, the
Colombian JAG Corps may differ in important respects from
the U.S.
version. The Administration believes with
international support, the
JAG Corps will be fully developed and deployed in the near
future.
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