‘Lawfare’ Colombian-style: Legal, Political And Quasi-Judicial Harassment, Persecution And Counterinsurgency Operations In Colombia

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‘Lawfare’ Colombian-style: Legal, Political And Quasi-Judicial Harassment, Persecution And Counterinsurgency Operations In Colombia

A Colombian soldier watching over the border with Ecuador in Nariño, Colombia, last year.Credit…Fredy Builes/Reuters

Written by Daniel Edgar exclusively for SouthFront

Over the years the ruling elites in Colombia (whether ‘native’ or foreign) have developed an elaborate array of tactics and methods to protect their political and economic privileges and preserve their control over State powers and institutions, the economy, the land and natural resources. The repertoire of State, economic and financial powers, incentives and punishments is vast, permitting the selection and application of a multitude of complementary measures to fulfil either of two basic functions and objectives: either covering up criminal activities and protecting criminal conduct perpetrated by the ruling elites that make up the Establishment, or the persecution and neutralisation of opponents of the status quo. The purpose of this article is to analyse some of the central elements of such strategies and how they operate to influence and manipulate political, social, and economic actors and events.

State Crimes

On the 2nd of December 2019 Senator Ivan Cepeda announced that he has filed a formal complaint against recently retired Prosecutor General of the Nation (Fiscal General de la Nación) Nestor Humberto Martínez for illegal monitoring and interception of communications and computer data. Ivan Cepeda is a long-time Representative and Senator in the National Congress for the Democratic Pole Alternative (Polo Democrático Alternativo – PDA) party and is one of the staunchest – and probably most well-informed – critics of political and economic corruption and violence and associated paramilitary/ counterinsurgency activities in Colombia.

Apart from being an active member of the National Congress since 2010 and one of its leaders in terms of the investigation and denunciation of economically and politically motivated corruption, fraud and violence perpetrated by officials within the State as well as in the private sector, he has co-authored two books on related topics – ‘A las puertas del Ubérrimo’ (‘At the gates of El Ubérrima’) in 2008 with Jorge Rojas on the paramilitary phenomenon in Córdoba province, and ‘Victor Carranza: alias ‘El Patrón’ in 2012 with Javier Giraldo about the now deceased political and emerald baron. He is also one of the founders of and an official spokesman for the Movement of Victims of State Crimes (Movimiento de Víctimas de Crímenes de Estado).

His father, Manuel Cepeda, was a senator in 1994 when he was assassinated in what was later officially acknowledged to be a State crime:

“In March of 1997 the Inter-American Commission of Human Rights declared admissible the denunciation presented in December of 1993 by Corporation Reiniciar, the Colombian Commission of Jurists and the Lawyers’ Collective José Alvear Restrepo against the Colombian State for the persecution of members of the Union Patriótica. In May of 2005 the Lawyers’ Collective and the Foundation Manuel Cepeda Vargas, led by Ivan Cepeda, asked the Inter-American Commission to conduct a separate procedure for the assassination of Manuel Cepeda. The latter request was approved in December of the same year.

The Commission, considering that the Colombian State had not acted with diligence in the investigation and punishment of those responsible for the magnicidio, that it had actively obstructed the course of justice, that it had not adequately indemnified the family of the assassinated leader and that presumably the assassination was perpetrated by way of coordination between members of the Army with paramilitary groups, decided to refer the case to the Inter-American Court of Human Rights…

After hearing the respective parties, the Court announced its sentence the 26th of May 2010; in the judgment the Colombian State was condemned, among other aspects, for the participation of its agents in the assassination of the leader of the Unión Patriótica. The Court demanded that the State acknowledge its culpability in a public act (among other measures)…

The public act of recognition of the culpability of the State was realized in a solemn session of the two chambers of the Congress of the Republic on the 9th of August 2011, the day which marked 17 years since the assassination of the Senator of the UP. German Vargas Lleras, the then Minister of the Interior acting in the name of the State, recognized that the assassination ‘was committed by State agents in complicity with paramilitaries and that the Colombian justice was incapable of finding and judging those responsible for the crime’ and asked for pardon by the Cepeda family. This was the first time that the State recognized its responsibility for the assassination of a political leader…” (“El recorrido del caso Cepeda para convertirse en crimen de Estado”, VerdadAbierta, 13 September 2011;  “Así no se pide perdón, Presidente: Iván Cepeda”, VerdadAbierta, 28 June 2010)

Ivan Cepeda has not hesitated to directly confront some of the most powerful, corrupt and dangerous war mongers and their sponsors and beneficiaries who have stoked and then taken advantage of the violence, misery, chaos and forced displacements caused by the social and armed conflict in Colombia to further empower and enrich themselves. The most well-known case, which is reaching something of a crescendo, had its beginnings in a debate in the Congress in 2012, during which Cepeda presented testimony from two former paramilitary commanders claiming that Alvaro Uribe had been involved in the formation and financing of their paramilitary group (the ‘Bloque Metro’, based in the province of Antioquia, where Uribe was governor for several years in the 1990s and his family has numerous rural properties).

Alvaro Uribe was president from 2002 until 2010 and has been the most powerful and influential (Colombian) politician in Colombia for most of the last twenty years; he is currently a senator in the National Congress and is the ‘founding father’ and undisputed leader of the Democratic Centre (Centro Democrático) political party, of which current president Ivan Duque is a member. Alvaro Uribe in turn accused Cepeda of soliciting false testimony against him and filed a formal complaint with the Supreme Court:

“That same day, Alvaro Uribe went to the Supreme Court and denounced the congressional member Cepeda for supposedly orchestrating a cartel of false witnesses offering them judicial and financial benefits, privileged prison conditions and a transfer out of the country, in exchange their testimony associating Uribe with the perpetration of crimes by the paramilitaries.” (Redacción Judicial, “Claves para entender el caso contra Uribe por supuestos falsos testigos”, El Espectador, 7 October 2019)

The Supreme Court investigated Uribe’s claims and eventually dismissed the allegations against Cepeda in 2018. However, during the course of the investigation the Court encountered evidence that Alvaro Uribe may actually have been the one who was manipulating witnesses and soliciting false testimony, to induce them to testify against Cepeda. On the 8th of October 2019 the Supreme Court summoned Uribe to a preliminary hearing and interrogation in order to decide whether to initiate formal criminal proceedings, the first time a former president has been hauled before the Supreme Court to answer charges.

Following the hearing, the Supreme Court issued a statement declaring: “Having concluded the interrogation, the senator Alvaro Uribe has been formally invoked pursuant to the proceedings being conducted by the Chamber of Instruction (Sala de Instrucción) for the crimes of procedural fraud and bribery…” (As reported in “Terminó la indagatoria a Álvaro Uribe: ¿qué viene ahora para el expresidente?”, El País, 8 October 2019, Colprensa). There are also numerous outstanding investigations being conducted (reluctantly if at all) by the respective investigative committee of the National Congress (Comisión de Investigación y Acusación of the House of Representatives).

Uribe’s case epitomizes the contradictions and paradoxes of Colombian politics and society: around a third of Colombians consider Uribe to be the ‘best president ever’; about another third consider him to be the most criminal and corrupt president ever; the rest are either ambivalent or undecided (or prudently keep their opinions to themselves). Each third includes broad swathes of adherents that cut across all political and social classes, sectors and strata of society.

The allegations against the Prosecutor General

Nestor Humberto Martinez was appointed as Prosecutor General in 2016 following intense haggling and trade-offs between Colombia’s heavyweight political parties and personalities. He resigned earlier this year in controversial circumstances and reportedly moved to Miami:

“Néstor Humberto Martínez resigned on the 15th of May 2019 after showing himself to be indignant about the decision of the Special Peace Jurisdiction (Jurisdicción Especial para la Paz) not to extradite Jesús Santrich (to the US) and to order his release from prison. However, later it was revealed, by this newspaper, that another version indicated that he resigned because the (Supreme) Court was formulating a declaration requesting his resignation due to his management of the Odebrecht case (a corruption case implicating many of the most powerful individuals and factions of Colombian politics and the corporate sector – including many former clients and colleagues of the former Prosecutor General as well as Martínez himself)…” (Alejandra Bonilla Mora, El Espectador, “El ajedrez de la Corte Suprema para elegir fiscal general”, 3 Diciembre 2019)

The following section is a translation of an article reporting Ivan Cepeda’s statements concerning the legal complaint.

 “A denunciation is being formulated against former prosecutor”) (“Formulan denuncia contra exfiscal”), Resumen Latinoamericano, 2 December 2019

“Colombian Senator Iván Cepeda announced that he has filed a legal complaint against former Prosecutor General Néstor Humberto Martinez for the alleged crimes of illegal breaches and interceptions of communications and computer data.

Violation of personal data and abuse of authority in an arbitrary and unjust manner, are other elements included in the complaint.

In this context, Cepeda, who is a member of the Senate Peace Commission (Comisión de Paz del Senado), detailed the facts and arguments on which he formulated the legal proceeding.

He stated that on 24 November, in the magazine Semana, the journalist Daniel Coronell published a column entitled ‘Peace intercepted?’ in which it is reported that two former officials of the Office of the Prosecutor General claim to have participated in presumed surveillance and illegal interceptions that Martínez had ordered.

Cepeda noted that it was reported that the illegal surveillance and interceptions had been ordered “against me, against the head of the government’s negotiating team in the peace talks with the former FARC-EP guerrilla (Humberto de la Calle); former minister Álvaro Leyva; the legal advisors of the FARC, lawyers Enrique Santiago and Diego Martínez; and former Senator Piedad Córdoba.”

Then, on 28 November, in the same magazine (Semana), the journalist María Jimena Duzán published an article entitled ‘The explosive evidence of illegal interceptions that implicate Néstor Humberto Martínez’, in which new facts on the alleged illegal activities are provided.

In the public statement, Cepeda noted that, since the end of 2012 and with the personal knowledge and express authorization of the then President of the Republic Juan Manuel Santos, he was a facilitator of the peace dialogues between the Government and the FARC-EP.

Cepeda further noted that since mid-2014 he fulfilled the same role in the dialogues with the ELN (the last remaining major guerrilla group in Colombia), and as of 2016 he was also involved as an intermediary in discussions concerning the possible demobilization of the so-called Gulf Clan (‘Clan del Golfo’, widely considered to be the largest remaining organized criminal group in Colombia).

The former officials of the Office of the Prosecutor General, Fabio Augusto Martínez and Luis Carlos Gómez, maintain that then Prosecutor General Martínez apparently not only ordered the illegal interceptions – using as a pretext existing investigations being conducted against members of the Gulf Clan – but that he also ordered surveillance and monitoring operations both within as well as outside the country.

Additionally, he also received reports on the results of these illegal operations from Brigadier General Luis Alberto Pérez, national director of the Technical Investigation Corps (Cuerpo Técnico de Investigación).

Cepeda emphasized that in his case in particular, the alleged surveillance and interceptions were illegal as they were conducted without a court order; according to the constitutional requirements they could only have been carried out by order of the Supreme Court of Justice, in accordance with the provisions of article 235(4) of the Colombian Constitution.

He further stated: ‘it is clear that if these allegations are true, a notorious campaign has been revealed that had the purpose of hindering the implementation of the Final Agreement and ensuring the failure of the peace process, as well as obstructing the negotiations that had the objective of securing the demobilization and the submission to justice of the so-called Gulf Clan.’”

‘Chuzadas’

The conduct of ‘chuzadas’ (illegal surveillance and interceptions) has been common practice for many years among a large diversity of Colombian military, law-enforcement and ‘intelligence’ units. Two studies by Privacy International examine these activities in considerable detail (“Shadow State: Surveillance, Law and Order in Colombia, Privacy International”, and “Demand/ Supply: Exposing the surveillance industry in Colombia”). A former Director of the DAS (at the time the national intelligence agency, under the direct command of the President) was charged for such practices during Uribe’s second presidency, with targets for illegal surveillance and harassment including journalists, opposition politicians, lawyers representing victims of State crimes and even members of the Supreme Court.

The most recent reports confirm that the practice has not stopped, rather that the centre(s) of operations are located in different units and installations according to the purpose and the protagonists involved. It is also more than likely that the United States is also heavily involved in such practices, both in cooperation with Colombian military, intelligence, police and other law enforcement agencies as well as independently, and that several private companies (Colombian and foreign – particularly from the US, Israel and the United Kingdom) are also involved in such activities to some not insignificant extent (as the operators and technicians of the systems and technology required for such operations).

On numerous occasions such practices of illegal electronic as well as physical surveillance and espionage have been directly linked with the subsequent assassination of the victims of illegal surveillance, with information on the victims’ activities and movements passed from State and security force officials to paramilitaries or other criminal elements in order to facilitate their assassination. More commonly, such surveillance activities are used in the planning and conduct of subsequent police and judicial harassment and persecution (political prisoners or judicial ‘false positives’).

While there is a substantial component of subjectivity in such estimates, there are probably between 5,000 and 10,000 political prisoners in Colombia. However, the social and political impact goes well beyond the total number of political prisoners; in many cases, they are widely respected social leaders in their communities and social sectors, and their illegal and arbitrary detention has effectively neutralized the activities and progress of a huge number of community and social groups and organizations and generated a paralysing fear and anxiety among remaining members.

Independent accountability agencies and officers

The post of Prosecutor General of the Nation is one of the most powerful positions in the Colombian State. The other is the Office of the Inspector General of the Nation (Procurador General de la Nación). While many other State officials, such as the Office of the Ombudsman (Defensoría) and the Auditor-General (Contraloría), have wide-ranging jurisdiction and powers in relation to investigating and denouncing corruption, fraud and other forms of misconduct within State institutions, the impact and effect of their roles is far exceeded by the sweeping powers and functions of the Prosecutor General and Inspector General. In particular, although the Offices of the Ombudsman and Auditor-General have consistently been active in detecting, investigating and denouncing abuses of power and other illegal activities, unlike the Office of the Inspector General they have no capacity in terms of enforcement and imposing sanctions against officials found guilty of fraudulent and illegal conduct.

This is also the case for the Constitutional Court; for example, although it has proclaimed many judgments condemning corrupt, criminal and/ or incompetent politicians, bureaucrats and corporate executives, ordering corrective measures and demanding that they comply with constitutional duties and obligations such as those guaranteeing the rights of Indigenous, Afro-Colombian and other rural communities, it has no powers to enforce its judgments and they are routinely ignored with insolence and impunity.

Apart from the Inspector General and to a lesser extent the Prosecutor General, the Supreme Court is the only State institution that has the power to enforce decisions against members of the Congress (in criminal cases which it has prosecuted directly, such as those that resulted in the wave of arrests and prosecutions against sitting members of the Congress for parapolitics between 2006 and 2010 in particular). Nonetheless, its powers and functions are necessarily limited, and demonstrate the need for all accountability agencies and institutions to function as they are intended; i.e., to preserve and defend the integrity of the State and all of its institutions and officers.

Offensive and defensive ‘lawfare’- and counterinsurgency-related operations

The sweeping jurisdiction and powers of the Prosecutor General and Inspector General underlie the importance of the roles they have played in the persecution of political opponents and in covering up the illegal activities and criminal conduct of members of the Establishment and their officials and representatives. An analysis of related events in Colombia demonstrates the great damage that the officials in these crucial institutions and agencies can do, both in terms of covering up crimes and protecting criminals who abuse State powers and authority, as well as in terms of persecuting, neutralising and eliminating political opponents (to the point of assassinating them in many cases in Colombia).

Although the 1991 Constitution attempted to improve the procedures for the appointment of key State officials, the Congress and/ or the Presidency continue to have an integral role in the nomination and appointment procedures for almost all of the heads of the most important independent accountability agencies (such as the Ombudsman, Inspector General, Prosecutor General, Auditor General and Central Bank), including some of the superior courts. Consequently, although the procedures are clearly stipulated and formalized, political and other partisan or sectoral interests often continue to play an important if not decisive role.

The Prosecutor General (approximately equivalent to the Attorney General, or in Australia the Director of Public Prosecutions), is the head of the national agency responsible for the conduct of criminal investigations and prosecutions, and has extensive powers in terms of deciding policies and strategies and priorities in the conduct of criminal prosecutions as well as in determining staffing appointments and promotions within the office. The Prosecutor General is appointed by the Supreme Court sitting in plenary session from a list of candidates provided by the President.

Almost six months after the precipitous departure of Humberto Martínez, the Supreme Court is meeting to decide upon the country’s next Prosecutor General from a list of three candidates forwarded by President Duque. All of the proposed candidates could be considered close political colleagues and allies of the president, and while they can all boast impressive educational and professional credentials and postings none of them has a significant (nor even a token) career trajectory in the Office of the Prosecutor General. (The Court will also need to decide on the appointment of seven new members of the Court itself – if one more member of the Court retires or is otherwise incapacitated before this is done, the Court will lose the quorum necessary to make any decision and thereby lose its constitutional authority and enter into unknown terrain – the framers of the Constitution did not anticipate such an eventuality.)

The Inspector General is appointed by the Senate from a list of candidates that must be approved by the President, the Supreme Court and the Council of State. The Inspector General is an extremely powerful post responsible for (among many other functions) investigating, prosecuting and passing sentence on alleged misconduct and violations of legal and administrative requirements and standards by State officials (including elected representatives). The Office also has oversight of the Office of the Ombudsman.

In both instances, in recent times the protracted negotiations and trade-offs between the dominant political factions and interests of the Congress and the Presidency have resulted in the appointment of extremely well-connected politicians or lawyers who have spent most of their career working with and representing other politicians and executives from the ruling political parties and major corporate groups, rather than someone with extensive experience in the conduct of impartial legal investigation and prosecution.

The variability in the results achieved are exemplified by the success of the Supreme Court in investigating and prosecuting many of those involved in the parapolitics phenomenon between  2006 and 2010 and the ‘achievements’ of Humberto Martínez respectively. The former spearheaded the ground breaking investigations into parapolitics that resulted in almost a third of the national Congress either ending up behind bars or being subjected to extensive investigations that interrupted their criminal extra-curricular activities notwithstanding that it was not possible to secure sufficient evidence to prove such activities ‘beyond a reasonable doubt’.

The latter (former Prosecutor General Martinez) stalled or shelved most such investigations of high range politicians, and froze all substantive investigations of high profile corporate collaborators with and sponsors of paramilitary groups (most notably the case involving Chiquita Brands, though there are many others including Coca Cola, Nestlé, BP, Occidental Petroleum, BHP Billiton and Drummond to name just a few – discussed in another article by this author, “The multinationals among ‘the Untouchables’ of the Colombian Conflict”). It appears that during his tenure most of the Office’s efforts were directed towards trying to uncover (or if necessary create) evidence against Jesús Santrich, or, as the latest revelations indicate, other high profile ‘enemies of the Establishment’ such as Piedad Cordoba and Ivan Cepeda.

Another relevant example is former Inspector General Alejandro Ordoñez, currently Colombia’s Ambassador to the OAS. Notwithstanding the importance of the office of the Inspector General to the integrity of the institutions of the State and the obligation to exercise his functions and powers impartially and in a politically neutral manner, Ordoñez constantly intervened in political debates to criticize and obstruct the peace process and the efforts of the national government to negotiate an end to the armed conflict with the main guerrilla groups.

Apart from his partisan participation in national debates to criticize the peace process and related measures such as the law for the restitution of land to forcibly displaced farmers, while he was in office he went to great lengths to investigate and expel from public office prominent and emerging political leaders perceived as constituting a threat to the Establishment and the status quo.

Major cases in this respect included the national senator Piedad Cordoba, who was dismissed and prohibited from public office for 16 years by Ordoñez who alleged that she had collaborated with the FARC, and Gustavo Petro, the former mayor of Bogota (and presidential candidate in 2018) who Ordoñez also disqualified and prohibited from public office for alleged misconduct. Although in the latter case the orders of the Inspector General were subsequently overturned by the courts, Ordoñez managed to suspend the mayor and prevent him from exercising the functions and powers that the people of Bogota elected him to exercise for most of his term in office.

The aggressive deployment of disciplinary investigations and the imposition of extremely heavy penalties against political opponents and enemies of the Inspector General and his allies were perceived by many as a flagrant abuse of the extensive powers of the Office of the Inspector General. In this respect, in an article in El Espectador Ramiro Bejarano Guzman commented of Ordoñez’ flamboyant campaigning against the law for the restitution of land to forcibly displaced farmers (Law 1148):

“It is clear that Law 1148 has defects and gaps, but what is incomprehensible is that Inspector General Ordoñez, who could have promoted the presentation of a project to reform the law, has opted for a short cut committing his extensive public powers to an institutional conspiracy in favour of the powerful landlords and corporate raiders of farming land, from whom he hopes to gain financial support for his presidential campaign.”

In this instance also, Ivan Cepeda was actively involved in confronting Ordoñez and denouncing his efforts to derail the land restitution process. According to an article in Semana (“Grave denunciations by Ivan Cepeda against Ordoñez and Lafaurie”):

“In his intervention in the Senate, Ivan Cepeda stated: “A strategy is being elaborated led by the Inspector General, some members of Democratic Centre and various powerful cattle ranchers and landlords in the provinces of Magdalena and Cesar. We have seen that before the meetings patronized by the Inspector General, other more furtive meetings had been held under the auspices of ex-paramilitaries in which those attending were incited to instigate public protests and demonstrations against the restitution of land…”

Francisco Gutierrez discusses another institutional element that has had profound impacts for many Colombians in rural and remote areas; the cumulative effects of countless years of endemic political appointments, patronage and corruption in terms of the allocation and registration of property rights, providing a veneer of legality to the appropriation of land by violence and fraud on a massive scale. Gutierrez describes the resultant ability of the political and economic elites to redefine and rewrite the land titles, indeed the entire land title system, in many regions, complete with their own official and extra-official enforcers of social and territorial control:

“The key agents responsible for the designation and specification of property rights (the typical example being the notaries responsible for preparing documents certifying land ownership) have been in league with the rivalry between the political parties in a direct manner. Moreover, in the institutional landscape prior to the National Front, the same politicians that appointed notaries and mayors also had a crucial role in the appointment of sub-national magistrates and police, so they could operate at all levels of local life in a way that guaranteed access to land protected by coercion and impunity.”

While the specific forms and modalities have altered over time, the system of land ownership and registration remains deeply flawed and subject to manipulation and fraud by powerful political and corporate interests. The ongoing presence of paramilitaries and other illegal armed groups in many areas, and their incessant death threats and selective assassinations (not just against claimants but also against officials inspecting properties subject to claims for restitution on several occasions, demonstrating beyond any possible doubt the enormous power of the interests behind the assassinations), continue to constitute the greatest obstacle to the restitution of land to forcibly dispossessed farmers and communities.

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  • Hasbara Hunter

    Legalize all Drugs Worldwide…which means no more illegal money to sponsor CIA Covert Ops & the Problems in Columbia will melt like SNOW in the Sun….

  • vincent repins

    What is all this goofiness