EXECUTIVE SUMMARY AND RECOMMENDATIONS

The surrender of the Popular Revolutionary Anti-Terrorist Army of Colombia (ERPAC) in December 2011 risks going down as a failure. Only a fraction of the group took part; leaders may be getting away with short prison sentences; and the underlying criminal and corrupt structures will likely remain untouched. The impact on conflict dynamics in the group’s eastern-plains stronghold has been limited. As worrying, the lack of transparency, including of international oversight, has damaged the credibility of the process, leaving the impression that an illegal armed group has again outwitted state institutions to the detriment of the public and particularly of the victims. The authorities need to draw the right conclusions from the process. Otherwise, the lack of appropriate instruments to manage collective surrenders will continue to hamper efforts to combat groups such as ERPAC that have grown into one of the country’s top security challenges.

The surrender of 272 members – slightly more than a third of ERPAC’s total armed strength – was the first time a New Illegal Armed Group (NIAG) with roots in the demobilised paramilitaries had chosen to give up its weapons. Pressure to surrender had been building, externally and within the group, since police killed its founder, alias “Cuchillo”, in December 2010. The former mid-level paramilitary leader had made ERPAC the dominant illegal armed force in parts of Meta, Guaviare and Vichada departments, with a key role in drug trafficking and other organised criminal activities. But with substantial links to the regional and local political elite as well as to parts of the security forces, ERPAC was always more than an ordinary criminal outfit. It exercised strict social control in its strongholds, including through targeted killing of community leaders, and was responsible for displacements, child recruitment and sexual violence.

ERPAC members currently face criminal proceedings before ordinary courts. They may seek benefits provided for by the criminal justice system such as the reduction of sentences in return for accepting charges. But they are not eligible for the benefits of the government’s demobilisation, disarmament and reintegration (DDR) program. This is because the government considers groups such as ERPAC criminal organisations (BACRIMs in the Spanish acronym) and not part of the internal armed conflict. For the same reason, NIAG members are also not eligible for consideration under transitional justice measures such as the 2005 Justice and Peace Law (JPL).

A wholesale extension of DDR and transitional justice mechanisms to NIAGs would be unwarranted, but the exclusive reliance on the ordinary criminal law to try their members has its downsides. First, it leaves victims without legal guarantees and benefits extended to the victims of the guerrillas and the paramilitaries; a March 2012 Constitutional Court ruling might, however, open the door for some NIAG victims to be covered by the new 2011 Victims Law. Secondly, it leaves former fighters without a clear perspective of civilian reintegration, thus increasing risks they will take up arms again. Serious crimes committed by NIAGs need to be fully investigated and prosecuted, but a more expansive approach to dismantling these groups is also required where there is a sufficient link to the armed conflict.

Contrary to government hopes, the ERPAC process revealed the limits of its surrender strategy, rather than vindicating it. The attorney general’s office had little choice but to free most of the fighters almost immediately, as only nineteen leaders were originally subjects of an arrest warrant. This obliged prosecutors and the police to recapture ERPAC members one by one, an onerous, still incomplete task. The public outrage was understandable, but more damaging is that the process will likely fail both to punish those responsible for serious crimes and to have a structural impact on ERPAC’s business activities as well as its corrupt links with politicians and security forces. Potential information from rank-and-file members on ERPAC operations appears not to have been fully exploited. Leaders do not face a credible threat of serious criminal charges and thus have little incentive to collaborate seriously with the judicial system.

But the problem goes further. The government’s sharp conceptual distinction between parts of the conflict and organised crime groups – upon which the logic of the surrender was built – poorly reflects on-the-ground complexities. Groups such as ERPAC do not fully replicate the paramilitaries, but they cannot and should not be considered in isolation from the broader context of the internal armed conflict. This means that dismantling the NIAGs involves more than investigating and punishing individual criminals. It also requires dismantling corrupt networks, guaranteeing victims’ rights and preventing rearmament. Given its current weakness, reconciling such disparate interests overburdens the judicial system. The Santos administration deliberately left the field to the attorney general’s office, but the shortcomings revealed in the ERPAC experience have highlighted the need for an explicit surrender policy that goes beyond individual criminal prosecution and has active government leadership.

After the Uribe administration long downplayed the NIAG threat, President Santos has taken a stronger stand, though results have remained elusive. Combating NIAGs is a complex challenge, involving multiple government agencies and cutting across several policies. But without an explicit surrender policy, the government’s anti-NIAG strategy will continue to fall short. Such a policy could also have benefits beyond future exercises with NIAGs. A more credible and encompassing approach to tackling NIAGs might become a crucial part of guarantees for the new peace talks with the guerrillas that the government is slowly preparing the ground for.

RECOMMENDATIONS

To facilitate collective surrenders of NIAGs in a manner that ensures their complete dismantlement, including front structures and corrupt networks, guarantees the protection of victims’ rights and prevents rearmament, while avoiding impunity

To the Government of Colombia and the Attorney General and other Judicial System Authorities:

1. Ensure police and judicial institutions have the resources, capacity and career-incentives to investigate and prosecute the full spectrum of NIAG crimes, including serious offences equivalent to grave violations of human rights and international humanitarian law (IHL), and the corrupt networks behind the groups.
2. Strengthen incentives for rank-and-file NIAG members to surrender and cooperate in revealing information about operations, superiors and enabling networks by clarifying whether and how the “opportunity principle” – which permits the attorney general’s office to suspend or desist from prosecution in a given case that does not involve grave violation of human rights and IHL – applies to them.
3. Improve the civilian perspective for former NIAGs members by introducing basic reintegration benefits, subject to strict criteria of eligibility, judicial records and behaviour.
4. Clarify the handling of young NIAG members, who should be eligible to enter the Colombian Institute for Family Welfare (ICBF) program for child soldiers, despite the government’s classification of NIAGs as criminal organisations rather than part of the armed conflict.
5. Improve institutional guarantees for NIAG victims by an extensive and pro-victim interpretation of Law 1448 (2011), and if this proves ineffective, consider introducing legislation to ensure equal treatment for them.
6. Strengthen victims’ rights to truth by introducing an administrative program similar in design to Law 1424 (2010), under which NIAG rank-and-file members would receive legal benefits in return for contributing to the establishment of non-legal truth and historical memory; individuals responsible for serious offences should not be eligible for such a program.
7. Increase the credibility and accountability of surrender processes by inviting international organisations, in particular the Mission to Support the Peace Process in Colombia of the Organisation of American States (Mapp-OAS), to monitor and accompany them.