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C O N F I D E N T I A L SECTION 01 OF 05 BOGOTA 003223 SUBJECT: DEMOBILIZATION LAW: THREE CONTROVERSIAL ARTICLES REMAIN REF: BOGOTA 2649 Classified By: Ambassador William B. Wood for reasons 1.5 (b) and (d) 1. (U) Summary: The Senate and House First Committees have voted on 63 out 67 articles (reftel). Several contentious articles -- to block drug traffickers from benefiting; to call for, but not require, an open statement on crimes and illicit assets by each beneficiary; to allow individual deserters to benefit under certain conditions; and to permit those who failed to confess all crimes but subsequently accept guilt to receive an alternative sentence -- were passed after heated debate. On April 6, the GOC and its supporters in Congress ceded on several issues, including adding tougher language on blocking drug traffickers from benefiting, revising text on revocation of benefits, removing blanket sentence reductions for all prisoners, and a new article on applicability for humanitarian exchanges. Voting on the law has been slow due to a lack of quorum at several debates and to the sensitivity of the issue. The three most contentious articles on the existence of an armed conflict, connectivity of

crimes, and sedition remain.

End Summary.

---------------------------------------Sixty-three Articles Passed in Committee ---------------------------------------2. (U) As of April 6, the Senate and House First Committees had voted on all but four of 67 articles of the Law for Justice and Peace. At least four contentious articles were approved after heated debate: article ten that lists requirements for collective demobilizers to benefit, including precluding those whose principle activity was drug trafficking; article 11 that permits individual deserters to benefit provided they meet certain conditions, including to not have personally benefited from drug trafficking; article 17 that calls for, but does not require, each beneficiary to give an open statement ("version libre") about his crimes and illicit assets; and article 25 that allows beneficiaries who initially failed to confess a crime to benefit if they later accept guilt. 3. (U) Senator Rafael Pardo and his supporters proposed removing articles 10 to 28 from the GOC draft and replacing them with 24 articles from Pardo's rival draft. They argued that the GOC draft does not require a full confession or guarantee the full dismantlement of the demobilizing illegal armed group. The Pardo proposal was rejected.

----------------------------------------Heated Debate, GOC Shows Some Flexibility ----------------------------------------4. (C) GOC supporters ceded on several key issues: -- Tougher language to block drug traffickers: On April 4, 5, and 6, requirements to benefit from the law were altered after heated debate based on suggestions from Senator German Vargas Lleras (traditionally an Uribe ally) and others. Vargas proposed adding to both article 10 (requirements for collective demobilizations) and article 11 (requirements for individual deserters) that individuals who were drug traffickers before joining the illegal armed group (IAG) and individuals who personally benefited from drug trafficking while a member in the IAG not be allowed to benefit. On April 5, the first condition was approved for article 10. On April 6, both conditions were approved for article 11. Also added to article 11 by Uribista Roberto Camacho and official Liberal Juan Jose Vives was a requirement to collaborate with authorities. Uribista Representative Armando Benedetti then proposed to re-open the debate on article 10 when the Committees next meet given the changes made to article 11. Vargas publicly thanked the GOC for its support for his proposals and said he was satisfied the law would prevent narcotraffickers from benefiting. -- Revision of revocation of benefits: Article 31, that describes when benefits will be revoked was rejected, and a special sub-committee of

Congress will be tasked to come up with new language. This was done in reaction to complaints from several skeptics of the GOC draft that the language did not explicitly state that if a beneficiary commits a new crime after serving his alternative sentence his benefits will be revoked. -- No blanket sentence reductions: Article 61, that would have made all prisoners eligible for blanket sentence reductions, was rejected in response to complaints from numerous Congressmen that the clause did not belong in a demobilization law. -- Humanitarian exchange: The Committees voted to add a section allowing the President to request that the law apply to IAG members who participate in a humanitarian exchange. ---------------Tough Road Ahead ---------------5. (C) Although the Committees are now moving apace, lack of quorum had forced Congress to close three sessions of debate last week. A quorum was not expected for April 7 because Thursdays are generally travel days for Congressmen. Vice Minister of Justice Mario Iguaran had told us that Representative Gina Parody (who supports Pardo's rival draft) had been encouraging her allies not to attend the sessions to block the law's passage. Her efforts appear to have been unsuccessful.

6. (C) Iguaran and First Committee member Representative Luis Fernando Velasco told poloff that they doubted Committee voting on the remaining four articles would be finished by the 7th. Senator Andres Gonzalez (a former Justice Minister) estimated that the legislation would pass the Congress as late as June or early in the following regular session, which begins July 20. He noted that the Pardo group would continue to fight hard for inclusion of some of their draft's articles but that they expected to lose some battles. 7. (C) Three controversial: remaining articles are the most

-- Article 20, Connectivity: permits the Superior District Court to combine all the charges against an individual into one case. The article is entitled "connectivity and accumulation of processes and punishments." Many Congressmen, including Senator Rodrigo Rivera, complain that the term "connectivity" would allow drug trafficking to be considered connected to political crimes and therefore blocked from extradition. The GOC plans to retain the word connectivity but specify that (1) the combination of charges is for procedural purposes only, (2) drug trafficking cannot be considered a political crime or connected to a political crime, and (3) the law only applies to crimes committed when the beneficiary was a member of the illegal armed group. This may help appease skeptics. --Article 2, armed conflict: Senator Pardo and

his supporters disagree with article two because it does not make reference to an armed conflict. Instead, they want to replace article two with their article eight. The GOC has insisted that an armed conflict does not exist. --Article 64, sedition: specifies that belonging to a paramilitary group is sedition, which is a political crime and carries the same punishment as rebellion against the state. Skeptics, including Rivera, have argued that this clause will help allow paramilitaries claim that drug trafficking was connected to sedition, which is a political crime and blocked from extradition. The GOC claims that article 64 is required simply to make paramilitaries equally eligible as guerrillas for pardon for having belonged to an illegal armed group. According to current legislation, rebellion, but not sedition, is a political crime. Only political crimes can be pardoned under Law 782. Iguaran has told us the GOC will not cede on Senator Pardo's demands to remove the article. 8. (U) Article 67 on the time frame of when the law would be in effect also remains but is not overly contentious. --------------Articles passed --------------9. (U) The following is a list of the articles passed on March 30 and April 4, 5, and 6.

--Article 10: Requirements to benefit from the law for collective demobilizations. Senator Vargas Lleras added a clause that precludes individuals who were drug traffickers before they joined the illegal armed group from benefiting. His proposal to preclude individuals who personally benefited from drug trafficking while members of the group was rejected. -- Article 11: Requirements to benefit from the law for individual deserters. Senator Vargas Lleras added a clause to preclude individuals who personally benefited from drug trafficking while members of the group. --Article 12: The proceedings will be oral ( based on the new accusatorial system). --Article 13: The hearings will be conducted with celerity (based on the new accusatorial system). --Article 14: Beneficiaries have the right to name a defense lawyer or receive one from the Public Defender's Office. --Article 15: The state must do everything necessary to clarify the truth of the crimes under investigation. The Fiscalia unit will be assisted by the Investigative and Judicial Police to clarify the truth of time, place, and other circumstances of crimes committed. The beneficiaries will collaborate, especially to identify disappeared or kidnapped persons. --Article 16: The special Fiscalia Unit will identify all pending investigations against the

potential beneficiaries. --Article 17: Each potential beneficiary can give an open statement ("version libre"), including the time, manner, and place of all the crimes he committed, to the Fiscalia unit. The statement qualifies as admission of guilt. (Many Congressmen argued against this article, including Senator Andres Gonzalez and Rafael Pardo, because it does not demand a full confession.) --Article 18: The beneficiary will also be charged for crimes that he did not confess but for which sufficient evidence exists. The beneficiary can accept or deny the charges. --Article 19: The Superior District Court will have five days to determine if the beneficiary freely and voluntarily accepted guilt for his crimes. --Article 21: The normal criminal code will apply for any crimes that the beneficiary did not accept. --Article 22: The beneficiary can accept guilt for crimes that have not yet been fully investigated. Admission of guilt will qualify as a formal accusation. --Article 23: The process of determining reparations to victims will begin immediately after the Superior District Court determines the validity of the beneficiary's acceptation of charges.

--Article 24: The sentence issued by the Superior District Court will include the original sentence, the alternative sentence, and auxiliary punishments, including behavioral requirements and reparations. The Superior District Court will be responsible for evaluating compliance with the sentence. --Article 25: If it is later revealed that the beneficiary was guilty of crimes which he did not confess and accept guilt, the normal criminal code will apply to those crimes. However, if he subsequently accepts the charges, he may/may receive an alternative sentence. --Article 26: A chamber of the Supreme Court will resolve appeals. --Article 27: The Fiscalia unit can ask the Superior District Court to drop charges if it determines that there is no reason for charges, the crime did not occur, innocence is impossible to disprove, or other conditions. --Article 28: The Fiscalia unit can close an investigation if there is not adequate evidence. If evidence subsequently appears the case can be re-opened. --Article 29: The Inspector General's Office (Procuraduria) will intervene when necessary to defend public order, public patrimony, and fundamental rights. --Article 30: The Superior District Court will determine the alternative sentence. Beneficiaries will spend between five and ten

years in confinement and be on parole for one half of the time in confinement. --Article 32: The government will determine where the beneficiary serves his time in confinement. Reclusion centers must meet the standards of the National Institute of Prisons (INPEC). The term can be served overseas. --Article 33: Time spent in a concentration zone can count against the time in confinement for up to 18 months. -- Article 34: The designated Superior District Court is responsible for judging and sentencing the beneficiaries and keeping a record of the process. (Note: our contacts tell us that the vast majority of the cases will be assigned to the Bogota Superior District Court because most beneficiaries face charges in more than one Department. Each Department has a District Court.) --Article 35: Creation of a special unit of the Prosecutor General's Office (Fiscalia) to investigate each beneficiary. The unit will be assisted by the Judicial and Investigative Police. (The clause specifying the number of members of the unit was removed.) --Article 36: The Public Defender's Office (Defensor del Pueblo) will provide a lawyer to any beneficiaries who want one. --Article 37: The Inspector General's Office (Procuraduria) will create a group to assist victims to exercise their rights. This group

can participate in legal proceedings. It also will maintain a public record of the process. (Senator Pardo's suggestion to make Procuraduria participation mandatory in each case was rejected). --Article 38: Social organizations can assist the Procuraduria oversight group. --Article 40: The public agencies involved in the law will take all measures necessary to protect the safety, well-being, dignity, and life of all victims and witnesses. --Article 62: For anything not discussed in the law, Law 782 or the normal criminal code applies. --Article 63: If in the future a law is passed that offers more favorable benefits it will apply. --Article 65: Turning over minors that were members in the IAG will not be grounds for losing benefits. ---------------Articles Removed ---------------10. (U) Article 61 would have allowed all jailed prisoners to be eligible to reduce their sentence by up to one fifth.

------Comment ------11. (C) Embassy understands that the reluctance to require confession is based, in part, on a precedent in which the Constitutional Court struck down a law merely for "urging" confession, as a violation of the self-incrimination principle. As a result, Embassy pushed for language requiring that any subsequent revelations of concealment or deception would revoke all benefits. Articles 21 and 25 give us most of what we wanted, but not all. This means in cases of interest to the U.S. in which subsequent information reveals more than the confession, we will have to lobby the prosecutors and the government. But the structure is in place to allow revocation of benefits in such a situation. -- Embassy also pushed to safeguard extradition. Articles 10 and 20 in the current government draft, at our request, make clear that there is no protection for drug-trafficking before a beneficiary joined an IAG. Article 10 has been approved, but debate may be re-opened. We will continue to push this until the articles are voted. The correction in Article 20 of the "narco-mico" (rather than in article 64), also at our request, ensures that in the future neither the FARC nor the ELN will be able to protect themselves from extradition by using the connection to the political crime of "rebellion," just as in this case we are ensuring against the paramilitaries' using the political crime of "sedition" to protect from

extradition. Finally, at Embassy's request, the law provides that alternative sentences can be served outside the country, which opens the door to extradition even for acts committed as part of an IAG, but probably only for the period of the alternative sentence, provided the beneficiary fulfills all other requirements. We will have to see how this plays out in practice. -- Embassy has pushed for a tougher law. Both the sentences and the probation periods reflect Embassy pushing, although, again, we didn't get everything we asked for. -- Embassy will continue to push for rapid approval of the law, especially since NGOs and the EU seem to favor withholding of assistance to the 12,000 demobilized until it passes. As predicted, implementation problems in the absence of assistance are cropping up already. The OAS tells us that their assistance funding from both the Netherlands and USAID is near to running out. -- Finally, passage through committee does not mean that there won't be further changes. We will be monitoring on the closest possible basis and weigh in whenever our goals of peace, justice, extradition, dismantlement, reparations, control of demobilized, or transparency are at risk. End comment. WOOD (Edited and reading.) reformatted by Andres for ease of