THE CLINTON ADMINISTRATION'S STEALTH WAIVER OF HUMAN RIGHTS PROTECTIONS FOR COLOMBIA

By JOANNE MARINER

Thursday, Feb. 08, 2001

Paramilitary forces in Colombia committed twenty-three massacres in the first seventeen days of January, a shockingly high figure even by Colombian standards of horror. With 162 people known to have been killed, the death toll for the period was nearly ten people per day.

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On January 18, showing exquisitely poor timing, the Clinton administration announced that it was going ahead with its second tranche of military aid to Colombia, part of the $1.3 billion aid package passed the previous year. The administration decided to do so despite the fact that the Colombian military, due to receive the bulk of the U.S. funding, has notoriously close ties with the country's brutal paramilitaries.

Not only do Colombia's armed forces frequently coordinate field operations with paramilitary units, share intelligence with them, and lend active-duty soldiers to paramilitary actions, certain military officers have even set up their own paramilitary units. The Calima Front, which began functioning around Cali in July 1999, is one such unit. In its first year, it was considered responsible for at least 200 killings and the displacement of over 10,000 people.

Under these circumstances alone, the military funding decision would seem questionable, to say the least. But to appreciate the full and utter shamelessness of the decision, a little more background is necessary.

The Colombia aid legislation passed in 2000 included strict human rights provisions. The main purpose of these provisions — which human rights groups fought hard to introduce into the legislation — was to block all U.S. aid unless the Colombian armed forces ended their support of paramilitaries. The obvious reasoning behind the provisions is that U.S. funding should not go toward massacres, killings, torture and "disappearances." (Or didn't we learn anything from the 1980s?)

But as finally agreed upon by the House and Senate, last year's aid legislation permitted a presidential waiver of the human rights provisions on U.S. national security grounds. Unfortunately, national security can be an extremely flexible notion. Indeed, some believe that the "drug war" — the stated justification for U.S. involvement in Colombia — is by definition a matter of U.S. national security. By this reasoning, our national security interests are always and inherently at stake in Colombia, making the waiver infinitely malleable.

It was thus unsurprising that President Clinton invoked the waiver provision last August. By that time, just prior to his triumphant day-trip to Cartagena, it was clear that even under the most relaxed interpretation of the aid legislation's human rights protections, funding to Colombia would be barred unless the waiver was exercised.

Attempting to Justify the Waiver

Clinton's August 2000 reliance on the waiver garnered a good deal of critical media scrutiny. After all, under the relevant human rights provisions, he had to admit that he was allowing aid to go forward even as the Colombian forces receiving the funding maintained ties to paramilitary groups, engaged in serious human rights abuses, failed to suspend or prosecute officers implicated in abuses, and refused to enforce civilian court jurisdiction over human rights crimes. Given the number and severity of the atrocities at issue, it was not a pretty picture, even for those convinced of the wisdom of the administration's approach to stopping drug abuse.

Granted, some administration spokesmen were unapologetic about the decision. Weighing the drug war against human rights considerations, a representative for the office of White House adviser and U.S. drug czar Barry McCaffrey stated bluntly: "You don't hold up the major objective to achieve the minor."

But the Clinton administration's official line was that the Colombian government had not been allowed sufficient time to meet all of the human rights conditions laid out in the legislation. The legislation had only passed Congress in early July, they pointed out; the armed forces could hardly be expected to reform themselves in less than two months.

As the State Department explained in announcing the August waiver: "Despite [Colombian] President Pastrana's commitment to improving human rights protection, more work needs to be done before the Administration can certify [that the human rights conditions have been met]." In other words, just give them time.

Evading Human Rights Protections Again

As groups like Human Rights Watch had documented, paramilitaries continued to circulate unhindered throughout Colombia, often acting in collusion with armed forces' personnel. Worse, they were operating in areas controlled by U.S.-financed Colombian military units. Putumayo, the southern Colombian state that is the focus of U.S. drug-eradication efforts, was literally teeming with paramilitaries.

As the aid legislation required, the State Department had consulted with human rights groups and obtained full information on the Colombian government's non-compliance with the human rights provisions. Three leading human rights groups, including Human Rights Watch, unanimously agreed that Colombia had not only failed to meet every one of the legislation's human rights requirements, but had made absolutely no progress toward meeting them. Clearly, under these circumstances, the Clinton administration could not certify that the provisions had been satisfied.

Yet Clinton — never one to face something head-on when a sneakier option was available — managed to avoid invoking the national security interest waiver. Asserting a dubious technical interpretation of the legislation, the White House legal staff said that no new human rights certification of Colombia was required. (Their argument hinged on the difference between supplemental and regular appropriations, an obscure legal distinction akin to that which distinguishes smoking from inhaling.)

Meanwhile, Back in Colombia

The Clinton administration announced that the human rights protections were inapplicable on January 18, the day after the most serious of this year's massacres in Colombia.

According to an article by Scott Wilson in the Washington Post, an estimated fifty paramilitaries pulled men from their homes in the village of Chengue, Sucre. "They assembled them into two groups above the main square and across from the rudimentary health center. Then, one by one, they killed the men by crushing their heads with heavy stones and a sledgehammer. When it was over, twenty-four men lay dead in pools of blood. Two more were found later in shallow graves. As the troops left, they set fire to the village." Among the dead was a sixteen-year-old boy, said to have been decapitated.

The day after the massacre — perhaps as the Clinton administration was divulging its creative interpretation of the aid legislation — Colombian paramilitary leader Carlos Castaño told the media that he had ordered an investigation into the incident because some of the deaths may have been "unnecessary." But he did, at least, acknowledge responsibility for the killings.

Here, in contrast, the whole question of responsibility for death and destruction in Colombia has been dodged.


Joanne Mariner, a FindLaw columnist, is deputy director of the Americas division of Human Rights Watch. She conducted field research in Colombia in May-June 2000.

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