Update From Colombia: The Battle For The Office Of The Prosecutor General

‘The Bunker’, a massive complex in Bogota that serves as the headquarters for the Office of the Prosecutor General

Written by Daniel Edgar for South Front

As has been noted in previous reports from a variety of countries and perspectives (for example, concerning the obviously contrived and increasingly farcical legal and mainstream/ ‘social’ media persecution being waged by the Establishment against its main political opponents Imran Khan and Pakistan Tehreek-e-Insaf (PTI), or the basically similar orchestrated ‘lawfare’/ mass media campaign in the US against Donald Trump), the Office of the Prosecutor-General (often referred to in other countries as the Attorney General or Director of Public Prosecutions) has become one of the most powerful institutional tools and mechanisms to be weaponized and turned against ‘Enemies of the State’. In Colombia, the pending (and now overdue) appointment of the next Prosecutor General has become one of the most, if not the most, important of the multiple battlegrounds in the internecine war for control over the State’s still formidable array of powers, functions and resources.

Introduction

The magistrates of the Colombian Supreme Court were constitutionally bound to select the next Prosecutor General on or before the 12^th of February, from a list of three candidates nominated by the sitting President (Gustavo Petro). For the first time in the history of the appointment process (created by the revised national Constitution promulgated in 1991), the list of nominees contained three eminently qualified and experienced professionals whose integrity and competence cannot seriously be disputed (usually the list is made up of mostly if not entirely of political hacks and lawyers closely tied to the country’s most powerful political factions and oligarchs).

Notwithstanding the high caliber of the nominees and the expiry of the deadline, the magistrates have so far failed to decide who will be the next Prosecutor General. Indeed, in the most recent sessions held to decide the matter, many of the magistrates didn’t even register a valid vote. Meanwhile, one of the sitting magistrates (Gerardo Botero) lodged a formal complaint claiming that the list was invalid, notwithstanding that it had already been formally accepted by the Supreme Court (mainly on the grounds that the list was discriminatory as no males were included – fortunately, upon appeal to the Council of State the petition was summarily rejected). The magistrates are due to meet in plenary session again on the 7^th of March to try to determine the matter.

Despite the interminable schemes and manoeuvres of prevarication and obstruction to delay and if possible abort the selection process, it seems that a final decision could be close (in the last plenary session to be held, on the 22^nd of February, the leading candidate – Amelia Pérez – received 13 of the 16 votes that are required), and the country’s most powerful organised crime families and conglomerations appear to be getting desperate (the recent efforts to discredit and disqualify Pérez have included resorting to claims that some twits posted by her husband over the last couple of years should render her ineligible, as well as lodging legal complaints against said spouse based on the twits so that they could then allege it would be a clear conflict of interest for Pérez to be appointed while there are legal proceedings pending against her husband).

Previous political and organised crime factional squabbles for the post

An earlier report covering ongoing political developments in Colombia completed in late October of last year (Situation Report: Political Developments in Colombia – Part I) provided a brief overview of some of the prolonged internecine squabbles among the country’s most powerful political, economic, media and organized crime groups and networks to secure control over the immense powers and resources of key State institutions (foremost of which are the Offices of the Prosecutor General, Inspector General and Auditor General). It is worth repeating the section about the Office of the Prosecutor General, of which an analysis published by Semana in 2016 (“La batalla por la Fiscalía”) commented of the political context and dynamics operating behind the scenes of the formal selection process:

“Last week several media agencies mentioned a visit that former president Cesar Gaviria and Senator Horacio Serpa made to president Juan Manuel Santos. On the agenda was a request that the list of candidates be composed entirely of members of the Liberal Party. According to the two Liberal patriarchs it is taken for granted that the next Ombudsman will be Carlos Negret – Secretary General of the political party La U – and that the Office of the Inspector General will remain in the hands of the Conservatives. 

A Liberal Prosecutor General would therefore provide a certain balance of factional equilibrium in the State organs of control. Another factor is that the last two of Gaviria’s candidates were defeated, for the next Registrar General and Auditor General respectively… Although not all the political parties are making open claims on the post, the designation of the next Prosecutor General has become a major factional battleground in which behind every important candidate there is a diverse range of factions, interests and pressure groups. And the problem, as has already been mentioned, is that there can only be three candidates on the list, while there are half a dozen heavyweight contenders for the post…”

Another analysis (El Espectador, “La Fiscalía: un poder y un botín apetecidos”) commented of the competition to get specific candidates on the list of nominees:

“Sources from the presidential palace have assured us that Nestor Humberto Martinez is, in reality, the candidate of vice-president German Vargas Lleras and his political party Cambio Radical, a party that is doing everything possible to get control over the Prosecutor General’s office. Luis Carlos Sarmiento, for whom Martinez has served as chief legal counsel, is also very interested in his appointment as Prosecutor General…

To understand the dispute over the next appointment, the key is to remember that the agency, apart from controlling the conduct of criminal investigations in the country, constitutes a bureaucratic bounty. After the reforms made in 2014 around 3,000 additional positions were created in the agency, bringing the total number of employees to almost 29,000. The reforms were also intended to consolidate the implementation of administrative careers, and although thousands of posts have already been designated and accounted for, there is still a wide margin for the discretionary appointment or removal of officials, as well as the possibility of contracting a multitude of advisors and consultants. In 2015 the agency’s budget was $2.8 billion pesos, almost the same as the budget allocated to the entire Judicial branch.”

Thus, apart from the vast financial and human resources at the disposal of the director and other senior executives and administrators, which can be used in part at least (and by no means an inconsiderable part) to repay political favours and promote or contract associates and experts of proven personal or partisan loyalty, at stake are the formidable powers and resources of the office related to the investigation of major cases of corruption, abuse of power and other criminal activities (which can also provide opportunities to not investigate criminal activities and destroy or manipulate related evidence, or alternatively to fabricate evidence against political enemies or other opponents).

Recent developments and background factors of the current selection process

In terms of the current selection process, while some mass media outlets have been diligently attempting to whip up a scandal over some basically inane twits posted by the leading candidate’s husband (some of which commented favourably on some of the sitting president’s policies and criticized some of his opponents), they have been even more diligent in glossing over the flagrant politicization of the Prosecutor General’s office by the recently retired former director (Francisco Barbosa) and deputy director (Martha Mancera – who has now taken over as interim director given the failure of the Supreme Court to designate Barbosa’s successor).

Francisco Barbosa is described in a profile report by major Spanish media outlet El País (“Francisco Barbosa – El camaleón”, 12 February 2024) as former president Ivan Duque’s closest friend while they were at university (it was Duque who nominated Barbosa for the post, notwithstanding his lack of relevant credentials and experience). Barbosa has been obsessed with discrediting and seeking some way to oust sitting President Gustavo Petro since the latter assumed office in 2022, using the office’s sweeping powers to initiate an endless stream of investigations against the President’s family and closest political allies and associates. At the same time, Barbosa has repeatedly either refused to initiate or attempted to shut down ongoing criminal investigations against some of his closest colleagues and associates – for example, the ‘ñeñepolítica’ scandal concerning evidence that his patron’s (former president Ivan Duque) political campaign received substantial financial contributions and other forms of active support and assistance from a notorious drug trafficker, while the courts have so far denied four requests by the Prosecutor General’s office to terminate an investigation against former president Alvaro Uribe (Duque’s patron) for a supposed lack of evidence.

Barbosa spent much of his last week in office in the US, presumably seeking advice and assistance over how he can disrupt and if possible nullify the appointment of his successor (he has spent much of the last few months making histrionic media statements asserting that the entire appointment process is invalid and that his deputy should take over instead – the probable motives and objectives of which are explained in more detail below), before delivering a perfunctory half hour address to the Supreme Court at the end of the week on the office’s activities and achievements over the last year.

While Barbosa’s tirades against Petro and the candidates nominated by the President to be the Prosecutor General have been widely covered in the press, most of the mainstream media has been studiously ignoring a long succession of major irregularities and dysfunctions in the conduct of some of the most important criminal investigations and proceedings currently subject to the office’s jurisdiction: literally thousands of formal proceedings and investigations involving major criminal and corruption cases have been stagnating for many years (some of which are briefly described below), while there has been steadily mounting evidence of major irregularities and criminal activities within the Prosecutor General’s office itself.

In this respect, one of Barbosa’s key accomplices in the vendetta against Gustavo Petro has been Daniel Hernandez, some of whose main accomplishments over almost twenty years working at the Prosecutor General’s office are described in an article published by Colombia Reports (“Is Daniel Hernandez Colombia’s most corrupt prosecutor in history?”, 28 July 2020). They include numerous allegations from his colleagues as well as from other accountability agencies (the offices of the Inspector General and Auditor General) that he routinely engaged in illegal wiretapping operations and actively participated in the cover up of a succession of major corruption scandals involving some of Colombia’s most powerful politicians, bureaucrats and companies (including a huge embezzlement scheme by Saludcoop, the Grupo Aval/ Odebrecht corruption scandal, and the ‘ñenepolítica’ political scandal), none of which have been the subject of a conclusive investigation.

According to media reports, Hernandez was also one of the leading figures responsible for managing the Prosecutor General’s office’s activities directed at impeding the investigation of the ‘Toga Cartel’, a crime ring that operated between 2010 and 2017 (as far as it has been possible to verify up to now). The white collar crime syndicate was headed by the president of the Supreme Court and included at least one other Supreme Court magistrate, as well as numerous senior law enforcement investigators and lawyers, whose members demanded massive bribes from members of Congress, provincial governors and others who were the subject of ongoing criminal investigations.

The Deputy

Given the course of recent developments, however, the role of Barbosa’s vice director – and now acting director of the Prosecutor General’s office – Martha Janeth Mancera, have rapidly become the focal point of ongoing efforts to obstruct and derail the investigation of Colombia’s most important corruption and organized crime cases. Mancera has been the subject of a series of extraordinary allegations, covered in most detail by several reports produced by a Colombian investigative journalism periodical (Revista RAYA).

Among many other details of alleged complicity in criminal activities, the most astounding allegations are related to the efforts of a team of three undercover investigators employed by the Prosecutor General’s office to get their superiors to launch a full-scale investigation into an organized crime ring they discovered in Buenaventura that was, according to a preliminary report they filed, headed by the local director of the Prosecutor General’s office in the city. The main report describing the incident (“Vicefiscal Marta Mancera sí encubre a directive del CTI señalado de narco y estas son las pruebas”, 3 February 2024) commences:

“Two days before his assassination, Mario Fernando Herrera Aparicio had prepared a detailed report for the Office of the Prosecutor General about his last mission as an undercover agent. According to the document, revealed to Revista RAYA, the director of the Technical Investigation Unit (Cuerpo Técnico de Investigación, CTI) of Buenaventura, Francisco Javier Martínez Ardila, is alias ‘Pacho’ or ‘Pacho Malo’. The agent, who had been tracking his movements since February of 2021, wrote that ‘Pacho’ was in charge of ‘contaminating’ cargo ships in the Pacific port with cocaine packages (of between 40 and 300 kilos, approximately) destined for Central America, Guatemala, Mexico and, in Europe, Spain and France…”

Mario Herrera was killed in an ambush after being reassigned to another case within days of delivering the report. The other two undercover investigators of the team sent to Buenaventura (Fabio Gonzalez and Pablo Bolaños) miraculously managed to escape the ambush, but were themselves subsequently subjected to a full-fledged criminal investigation orchestrated by some of their colleagues at the Prosecutor General’s office after they refused to retract or modify their report on the organized crime ring in Buenaventura (an insistent request that, according to their statements – which are supported by audio recordings and other evidence – was ordered by the vice director personally). Shortly after Mario Herrera’s death, the two surviving members of the team of undercover investigators sent to Buenaventura had a personal meeting with Francisco Barbosa and Martha Mancera to discuss the findings of their investigation. According to the report published by Revista RAYA:

“All of the information (about the crime ring operating in Buenaventura) was reported on the 25^th of March of 2021 to prosecutor 51 of the Special Directorate against Narcotrafficking, Jaime Hernan Ocampo Lopez… That same night the three undercover agents (Mario Herrera, Fabio Gonzalez and Pablo Bolaños) travelled from Cali to the north of Cauca, as they were scheduled to conduct another mission involving the infiltration of a criminal gang dedicated to marijuana and cocaine trafficking…

(While they were travelling towards their destination they passed through a military checkpoint; however, several kilometres further down the road they were intercepted by a group of around seven heavily armed men on whose clothing were insignia of the ‘Estado Mayor Central’, one of the Farc dissident groups. Mario Herrera was captured and subsequently executed, however the other two agents managed to escape and ultimately sought refuge in the police station at Corinto, in northern Cauca, where they remained until the 27^th of March when they were escorted to Cali by a heavy security escort…)

The following day, the 28^th of March, Gonzalez and Bolaños met with the Prosecutor General of the Nation, Francisco Barbosa, and with the deputy director, Marta Janeth Mancera. That is what happened, proof of which is an audio recording (made by the two agents) revealed by Revista RAYA, on which one can hear the voices of the two most important directors of the Prosecutor General’s office…

The greeting by prosecutor general Barbosa was effusive, emotional and promised the total support of the agency for the operation the investigators were conducting… Then, deputy prosecutor general Mancera spoke, interrogating the two agents about all of the investigative processes they had conducted and seeking every detail concerning the activities that they had realized up to that time (and the evidence that they had discovered) …

According to the testimony of the two undercover investigators, Fabio Gonzalez and Pablo Gonzalez, they told deputy prosecutor general Mancera during that meeting in Cali about their findings concerning the CTI official in Buenaventura. However, she showed surprise when they showed her the photo of alias ‘Pacho Malo’. One of the agents stated of what happened next: “I showed her the photo of ‘Pacho’ … and at that moment she looked as if she had seen the devil. Then she said – ‘What are you telling us? We’ll see you tomorrow’.”

Mancera never sought more information about the case… Instead, what followed was the initiation of a campaign of persecution against the agents who shortly afterwards were accused of stealing drugs that had been confiscated from narcotraffickers. Mancera appointed prosecutor Daniel Hernandez to open a formal investigation based on an anonymous tip that the agency supposedly received on the 30^th of March…

The aforementioned denunciation and a subsequent interview with the supposed anonymous source were received by an official sent by deputy prosecutor Mancera to investigate the matter… That official was the head of the Judicial Police, Victor Forero, a very senior official who also happens to be very close to Mancera… He is also the investigator assigned to conduct the ongoing criminal case against President Gustavo Petro’s son…

(From that time on prosecutor 51, Jaime Ocampo, was pressured by his superiors to close the undercover operation against the crime ring in Buenaventura, and eventually it was duly terminated and the undercover agents’ report redacted to remove any reference to the key suspects…)

The rest of the story leads to impunity. The undercover agents Fabio Gonzalez and Pablo Bolaños, together with the prosecutor Jaime Ocampo, ended up being processed, prosecuted and jailed through criminal proceedings directed by the aforementioned Daniel Hernandez (the same prosecutor who aided and abetted the escape of two senior Brazilian executives in the midst of the Odebrecht scandal). However, a judge subsequently freed the agents due to a lack of evidence.”

Despite the piling up of allegations against her and some of her closest colleagues (several of which have been covered in detail by Revista RAYA – for example: “Las pruebas perdidas contra los ‘narcofiscales’ que rodean v la vicefiscal Mancera”, 3 December 2023; “Diego Rafael Patiño, el oscuro empresario aliado del narco ‘anestasia’ y protegido por la Fiscalía de Barbosa”, 14 January 2024; Colombia Reports, “Colombia’s prosecution cornered over drug links”, 16 May 2023), many of which have been substantiated by considerable amounts of evidence from a variety of sources, Mancera has categorically rejected suggestions that she should step down as interim director of the agency and it seems the stalemate will continue until and unless the Supreme Court arrives at a final decision as to which of the three nominees will be Barbosa’s constitutional successor.

Fragmented jurisdictions and tightly restricted access to information

One of the major institutional and strategic obstacles and challenges confronting efforts to investigate serious crimes that have been committed – whether produced by the most recent phases of the multiple social and armed conflicts that have swept through the country or as a result of institutionally embedded practices of corruption, fraud and other abuses of State powers and functions – is the multiplicity of overlapping and fragmented jurisdictions, powers and procedures that have been devised to investigate specific types and categories of criminal activities.

Thus, apart from the primary responsibility of the Office of the Prosecutor General for what could be referred to as conventional or routine criminal investigations and the conduct of related prosecution proceedings before the courts, there are a multitude of other legal and investigative jurisdictions and procedures that together comprise the institutional matrix responsible for ending impunity and identifying, investigating and punishing the perpetrators of the worst crimes that have been committed in the course of the country’s interminable social and armed conflicts, as well as those associated with the endemic cases of fraud, corruption and abuse of power that have occurred on a massive scale.

Foremost among these are the other accountability agencies established directly by the national Constitution (which include, apart from the Office of the Prosecutor General, the Inspector General, the Auditor General, and the Ombudsman, among others). The powers and functions of the Inspector General are particularly notable, including among numerous other functions the power to, in effect, investigate, prosecute, and impose disciplinary measures against public officials and representatives accused of negligence, fraud, or other irregularities and failures to comply with relevant standards and procedures in the course of their duties.

However, these powers of the Inspector General can at times variously complement, or contradict and overlap or compete with, the superior jurisdiction assigned to the Supreme Court to investigate credible allegations made against sitting members of Congress or the President (a jurisdiction which is shared with the Congress in certain circumstances), or to investigate allegations made against the officials of the accountability agencies (the Offices of the Prosecutor General, Inspector General, Auditor General, among others, as noted above).

In this context, it is suggested that some type of institutional mechanism could be created with the specific purpose and objective of conducting a regular, systematic and comprehensive summary, overview and ongoing evaluation of the activities and progress that have been made in the respective fields and jurisdictions of investigation, analysis and prosecution. While there are many possible alternatives in this respect, the Congress would be one logical prospective venue for such a mechanism to meet, which could comprise members from the respective accountability agencies, the courts, congressional committees, the sui generis tribunals and commissions created to perform specific tasks and functions related to the armed conflict (discussed below), among others.

Another major component of the institutional matrix for the investigation, analysis, prosecution and punishment of serious crimes committed in Colombia is the powers and functions exercised by the sui generis tribunals and commissions established in connection with crimes committed in the course of the armed conflict, foremost of which are those associated with the ‘Justice and Peace Law’ of 2005 (pursuant to an agreement between the main paramilitary groups and the Colombian government) and the 2016 Peace Accord between the Colombian Government and the FARC.

However, as noted in the previous reports (Parts I and II), the jurisdiction of both sui generis ‘war crimes’ tribunals and proceedings are strictly limited (primarily in terms of certain classes of belligerents directly involved in the armed conflict), and partly for this reason they have not therefore been able to make significant progress in terms of identifying and investigating the many other social sectors, organizations and individuals who have been complicit in or directly benefited from the crimes of the main belligerents.

Among other things, this underscores the importance and urgency of the request made to the Security Council by the Colombian Government last year to remove some of the restrictions on the jurisdiction of the Special Jurisdiction for Peace (Jurisdicción Especial por la Paz, JEP). Although a delegation from the Security Council visited Colombia earlier this year as part of its commitment to monitor and verify the implementation of the Peace Accord, and even met with the magistrates of the JEP in an extended session to review their activities and the progress that has been made, I have not been able to find in their statements any reference as to whether the Security Council has formally considered the aforementioned request.

The complexities and contradictions of Historic/ Factual Truth and Legal Truth

Beyond the immensity of the complications and challenges involved in organizing and coordinating the institutional matrix and the wide range of related factors and activities mentioned above is the overwhelming complexity and distinct social, geographic and economic dimensions of the armed conflict itself. The final report of the detailed investigation conducted by the Grupo de Memoria Histórica into the armed conflict (“¡BASTA YA! Colombia: Memorias de Guerra y Dignidad”) states in this respect:

“The emblematic memory that appears in the totality of the cases documented by the GMH [Group of Historical Memory] is the complicity of a broad group of actors in the violence of the regime of armed control imposed over the civil population and the territory…

In the cases documented by the GMH the emblematic memory concerning complicity consists of two overarching matrixes and differentiations. The first matrix is the memory that reconstructs the actions of State agents and the responsibility of State institutions such as the Army and the Police in the victimization of communities, organizations and leaders. This memory narrates in detail who waged the war and what their roles were in order to demonstrate the distinct responsibility of State agents as well as of politicians, bureaucrats or financers.

The second matrix is the memory that registers the complex networks and internal forms of participation by neighbourhoods, families and members of the community. While this memory identifies types of responsibility and forms of participation, at the same time it demonstrates the ethical and human challenges presented by the war, the presence of armed actors and the complex networks of collaboration that existed between the residents of towns, suburbs and rural districts…

The testimony about the relations of collaboration, and even about active collusion, between State agents and illegal armed groups is registered in all of the cases documented by the GMH. These extensive archives of testimony document, from the perspective of the witnesses and survivors, ways in which members of the Army and the Police acted that left the civilian residents abandoned despite the presence of Police and military installations in the places where the massacres occurred…

Another key challenge and obstacle confronting efforts to investigate and understand the course of the armed conflict is obtaining access to accurate and reliable information pertaining to major developments, specific case studies and the broader political, economic and social contexts. The final report of the GMH states of this fundamental dilemma:

GMH researchers analyzed the judicial testimonies of the paramilitary commanders in the report entitled Justice and Peace: Legal Truth or Historical Truth (Justicia y Paz: Verdad judicial o verdad histórica). The report confirms the efforts of victims to attend and participate in the judicial proceedings with dignity, without risk of being mistreated or victimized again… The challenges facing the legal system and, in general, its investigatory and judicial branches, are strikingly illustrated in this report and stand as examples of the challenges that should be kept in mind within the framework of transitional justice.

In spite of the limitations and deficiencies of the Justice and Peace Law which are pointed out in this report, it should be noted that the process has allowed for the uncovering of many truths about what happened with the victims, perpetrators and criminal alliances…

The testimonies of the victimizers – extracted by researchers from the files of criminal proceedings or even assembled from interviews held in jails – have made it possible to confirm some of the victims’ charges. Above all, they have demonstrated the full horror of what had had been reported, and they have proven, as recorded in this report, the existence of crematory ovens, clandestine cemeteries and schools for torture and dismemberment.

The unbelievable stories told by the victims have finally become credible. It is through the voices of the victimizers that some judges and, to a certain extent, society as a whole, are acknowledging the brutality of the war these victims have suffered from. In some reports, the GMH collected and documented these testimonies because they serve to confirm the truth of the narrations of the victims, and the complicities and alliances between illegal and legal armies and between armed groups, politicians and businessmen. On many occasions, it was through these versions that the public acknowledgment of hundreds of crimes could be obtained.

Although many truths have now become public, an important part still remains hidden. Many victimizers have hidden the evidence that incriminates them, and many were simply mercenaries who killed for some personal benefit, obeyed orders and did not understand the motives behind the war. The identity of the power structures behind the armed groups still needs to be clarified. This is the truth that the country needs to be able to dismantle and thus overcome the true sources of the horror…

The final point mentioned in the passage cited above, namely the absolutely imperative task of identifying and clarifying the economic, political, military and other power structures behind the respective armed groups, or otherwise involved in or benefiting from their activities, is also referred to in a commentary on the ‘Toga Cartel’ by the Truth Commission:

The ‘Para-Politics’ crisis was duly processed through institutional channels and ended up being part of the truth that the country needed to know. The press denounced, the Congress functioned and the judicial branch investigated and judged the criminal acts despite the threats and attacks they were subjected to. However, the justice system was infiltrated through the purchasing of judicial procedures and sentences. Around 2010 what later came to be known as the Toga Cartel was formed.

The officials involved in the Toga Cartel manipulated criminal investigations and obstructed related judicial procedures, obtained and utilized privileged information, delayed or interrupted stages in the proceedings, altered evidence and raised doubts about the credibility of witnesses through leaks to the mass media. All this in order to favour those who paid for their ‘services’ and to obtain favourable judicial decisions which appeared to be legal…

As a result, scepticism grew in society with respect to the possibility of getting access to justice. At the same time, the consequent manipulation of the judicial processes perpetuated the impunity of some sectors, thanks to which many of the main beneficiaries of the parapolitics phenomenon or their heirs continue to win seats in the Congress or other posts through the electoral process.

In the words of former auxiliary magistrate Ivan Velasquez (of the Supreme Court, who was ultimately forced into exile) before the Truth Commission: ‘the Court didn’t take a determined, real, position with respect to the paramilitary phenomenon, which made viable that which effectively happened, particularly since the 2010 elections, namely that the members of Congress who were sentenced continued to exercise territorial control in their respective regions together with the paramilitary groups, they continued their relations with their clients and with their management of the local administrations, thanks to the designation and election of their mothers or their wives – given that they could no longer postulate themselves for election’…”

Consequently, notwithstanding the extraordinary succusses achieved by the respective components and procedures of the criminal justice system for several years in terms of investigating and prosecuting many powerful politicians and bureaucrats involved in the so-called ‘Para-Politics Scandal’ (around 2010-2014), in the period that followed those prosecuted were almost invariably simply replaced by their family members or other close associates and accomplices and the institutionally, socially and economically embedded local and regional organised crime networks remained intact.

These developments were considered in more depth in a previous report (Part II). Some of the reports cited there are worth repeating in this context:

“(For) several years even the national press has announced that following the para-politics scandal, a similar process took place relating to the army, the Police and other security agencies. The news magazine Semana affirmed at the time: ‘The Pandora’s box is starting to open concerning the nexus between the military and the self-defence forces, and it could be worse than the para-politics. Would that be possible? Is it convenient in the middle of the war?’” (Vega Vargas and Ó Loingsigh, 2010)

 

“(The) paramilitaries could not have functioned and prospered without support from the politicians who held local power. Evidence, much of it from former paramilitary leaders, has brought a cascade of criminal investigations of legislators, governors, mayors and other officials, who made common cause with the far-right warlords…

As of November 2009, of the 268 congress people and senators elected in 2006: 43 were under official investigation, 13 were on trial, and 12 had been convicted for parapolitics. This total (68) is equivalent to 25% of the entire Congress. Eight were opposition legislators; the remaining 60 made up about 38% of the entire pro-government bloc…

[Around the same time as the extent of the para-politics corruption and collusion was becoming apparent, there were] waves of allegations of criminal activity, collusion with paramilitaries, illegal surveillance and intimidation carried out by the Administrative Department for Security (DAS), the Colombian Presidency’s intelligence service or secret police. This troubled agency, a long-time U.S. aid recipient, appears to have been wildly out of control and used for evil purposes, severely undermining the Colombian government’s security gains.” (Isaacson, 2010)

Beyond the State institutions, two other related dimensions are particularly significant in terms of unresolved cases and uninvestigated crimes related to the armed conflict. One of these is the impacts and trends related to land ownership and use, the other is the role of other economic and financial beneficiaries, including a large number of foreign investors.

The armed conflict, organised/ institutionalised crime and land ownership

One of the factors that emerges in all detailed investigations of the armed conflict as a primordial cause, motive and objective of many of the protagonists involved – from at least the 1940s until the present day – is land ownership, and the related objectives of securing territorial and social control in specific regions and localities. The significance of land ownership and territorial control as a primary cause and motive impelling the armed conflict in many regions is noted in the final report of the GMH published in 2013 (which is probably still one of the best and most rigorous integrated overviews and investigations of many aspects and dimensions of the armed conflict):

“The appropriation, use and possession of land motivated both the origin and persistence of the armed conflict. Research done for the report on land on the Caribbean Coast documented the historic, persistent and dynamic processes behind the violent seizure and appropriation of land. All of the reports illustrate the gradual convergence between the war and the agrarian crisis (violent takeovers, concentrated ownership of unexploited lands, inadequate land use, and failed processes of legalizing ownership).

However, new problems were added to the old ones, revealing the dynamics introduced by drug-trafficking, the exploitation of mining and energy resources, agro-industrial models, and criminal alliances between paramilitary groups, politicians, public servants, local economic and business elites, and drug-traffickers. All of these were discussed in the GMH report on the involvement of paramilitary groups in the fight for lands and territories, based on the testimonies of their members…

Those reports showed the violent and fraudulent acts perpetrated by elites and regional and national authorities in order to impede institutional efforts by the State itself to redistribute or transform unequal land ownership and unproductive land use. The sectors whose economic and political power have been based on land have fraudulently opposed agrarian reforms as well as any effort to democratize land ownership or to provide restitution for what had been taken away. Both in the past and present, they have used legal artifices as well as violent methods, which have included assassinating the leaders and persecuting the members of organizations of small farmers… In addition to having been victims of land seizures, these communities have been harmed by the illegal and arbitrary use of their lands by armed groups and foreign and national investors.”

Unfortunately, in most cases there has not been any continuity in terms of verifying and following up on the findings of the investigations that were conducted by the GMH between 2009 and 2013 in order to consolidate and deepen the research in the analysis of recent developments. While other researchers or civil society institutes and organizations have continued producing detailed and high quality investigations and reports from particular regions and perspectives, they are generally developed in an institutional and social environment that limits the coordination and the consolidation of their efforts.

Another detailed study of the topic by Francisco Gutiérrez also emphasizes as a fundamental cause and motive underlying the armed conflict the primordial significance of control over land and resources and agrarian inequality, noting that particularly since the 1950s there has been “a constant accumulation of land by large landowners through a combination of political contacts, sophisticated lawyers, and organized violence”. Gutiérrez goes on to state that:

“There are two other ways in which the topic of land is connected with the origins of the armed conflict. The first is the permanent expansion of the agrarian frontier through successive waves of occupation by colonists, who were gradually expelled by landlords who had both the capacity and the motivation to do so by way of a combination of force, political manipulation and juridical ploys. This expansion was articulated with a variety of economic activities throughout the twentieth century – particularly the production of coffee, cattle and coca – but the basic mechanism exhibits a surprising continuity (in activities such as the development of mining and energy projects and the expansion of sugar and African palm plantations in certain regions) … The second way in which land is connected to the origin of the armed conflict is the articulation between political power and large agrarian properties, which produced – and continues producing –brutal local and regional closures in terms of access to and influence over State institutions.”

The privileged position of foreign investors

The economic and financial dimensions of the armed conflict and institutionalised corruption have proven to be extremely resistant to all attempts to investigate and prosecute criminal activities and prosecute those involved. In this respect:

“[The] State Prosecutor still has not investigated the confessions made by senior paramilitary commanders to the Justice and Peace Tribunal providing evidence of the alliances and participation of more than 120 companies with the paramilitary structures, including Drummond, Chiquita Brands, Postobón, Ecopetrol, Termotasajero, the National Cattlemen’s Union, and businessmen, banana and cattle producers in Urabá who were identified as financing their crimes and supporting the expansion of paramilitary groups in the region…

The tribunal ordered the certification of 15,921 findings and orders directing the ordinary justice system to open investigations into third parties implicated in financing or actively supporting and collaborating in the operations and activities conducted by the illegal armed groups, many of which involve the relations that developed between local and foreign companies and businessmen and the commanders of the paramilitary groups and fronts. According to the Prosecutor General of the Nation in response to a petition by the Colombian Commission of Jurists, up until August 2017 there were 16,116 certified findings and orders.  Up to now there have been no significant advances in the investigation, prosecution and judgement of these actors…” (Mesa Nacional de Garantías, 2018)

In this broader context, major ‘foreign investors’ have been notoriously difficult for the Prosecutor General’s office – or any other tribunal, congressional committee or law enforcement agency – to investigate and prosecute. For instance, the magistrate that ordered an investigation into the Colombian directors of Nestlé involving evidence that they had collaborated with paramilitary groups to terrorize and even assassinate key members of the trade union representing Nestlé workers subsequently had to go into exile after receiving death threats. The investigation that the magistrate ordered prior to his forced exile was ignored by State prosecutors and eventually discretely dropped. Meanwhile, courts in the United States and Switzerland rejected attempts by the trade union (Sinaltrainal) to initiate legal proceedings in those countries in order to investigate evidence linking ‘Killer Coke’ and Nestlé respectively to the assassination of more than twenty of their directors and membership.

Another striking example is the developments that followed the revelation that paramilitary groups imported thousands of automatic rifles and millions of rounds of ammunition through Chiquita Brands’ port facilities on the north coast (described in Parts I and II). Preliminary investigations by authorities in Colombia and Panama and by the OAS traced the origins of the shipment to several Israeli intermediaries and front-companies, of which there are many embedded in key economic sectors, as well as in military, transport and infrastructure installations and associated technical services, throughout the Central American region and Colombia.

Forced into reluctant action by the publicity surrounding the scandal, in 2003 the Organization of American States conducted an investigation into the arms traders, intermediaries and transport companies involved in procuring the weapons and transporting them to Colombia at the request of the foreign ministers of Colombia, Panama and Nicaragua.

The investigators determined that the arms were bought from the Nicaraguan police by Shimon Yalin Yelinek, an Israeli citizen resident in Panama, with fraudulent documents claiming that the arms were for the Panamanian police. Shimon Yalin Yelinek was acting on behalf of a company domiciled in Guatemala (GIR S.A.), whose owner and general manager (Ori Zoller and Uzi Kissileveich respectively) are also Israeli citizens and former members of the Israeli military (Zoller was identified as also being a representative of Israeli Military Industries in the region). The arms were transported on a vessel registered in Panama. Although the investigators did not examine what occurred in Colombia in any detail, of this aspect of the case the final report stated:

“Colombia is the victim of the deviation of the arms. However, some Colombian customs officials were probably accomplices or bribed by the AUC in order to permit the unloading of the arms and ammunition from the Otterloo in the Port of Turbo…

What really occurred in Turbo is still a mystery. The signing of an official form issued by the Antioquia Section of the Department of Administrative Security in Port Turbo by the captain of the Otterloo clearly demonstrates that the ship arrived to Turbo. But, beyond that, all that is known is that the weapons somehow ended up in the hands of the AUC. This would signify that someone in Colombia associated with Yelinek, Onattopp Ferriz [the owner of the Otterloo] or, maybe even the captain of the Otterloo (Iturrios Maciel), was definitively responsible for the entry of the illegal arms to Colombian soil.”

On the 30^th of March 2004 the Supreme Court of Panama closed the investigation into Shimon Yalin Yelinek on the pretext that none of the relevant events occurred in Panama. The case has never been thoroughly investigated by the authorities in Colombia. It was reported in 2017 that the efforts to hold the executives of Chiquita Brands accountable for their crimes (after several unsuccessful legal petitions in the US and Colombia by groups representing victims of the crimes) had been extended to include an application to initiate proceedings before the International Criminal Court:

“What they are trying to do is ensure that the role of those executives in contributing to the commissioning of crimes against humanity is investigated…

Sebastian Escobar, a member of CAJAR, emphasized the open-ended investigations ‘without results’ in Colombia and the ‘lack of political will’ to extradite those possibly responsible. To this he added the ‘difficulties and inability’ of the State to investigate the 14 suspects. In part, because obtaining their extradition from the United States ‘is very difficult’ – a North American citizen has never been extradited to Colombia – and partly, due to the impossibility of obtaining declarations from the Colombian paramilitaries extradited to the United States, who are leaving prison having completed part of their sentence and are obtaining residency permits there.

Escobar also condemned the impunity that could exist for these crimes pursuant to the JEP war crimes tribunal [established pursuant to the Peace Accord with the FARC], due to the difficulty of proving that the financing of paramilitaries by banana producers is related to the armed conflict. This is because the legislation establishing the JEP specifically excludes civilians indirectly implicated in the conflict – ‘third parties’ – from the Tribunal’s jurisdiction, and also because in Colombia the financing of paramilitary organizations is deemed to be “an aggravated crime of conspiracy to commit an offence”, which is not within the jurisdiction of the JEP either.”

While private companies and intermediaries had been participating in numerous low profile projects and operations for many years, the reliance on Private Military Companies for the conduct of strategic military tasks and functions increased dramatically following the adoption of ‘Plan Colombia’ in 2000 (many of which neither the people of Colombia nor the people of the US have ever been informed about). The privatization and outsourcing of many key military/ intelligence/ security functions and projects involved in the conduct of the armed conflict has generally meshed smoothly and conveniently with the clandestine nature of most aspects of the US military intervention in Colombia.

Apart from their burgeoning direct role in the military, intelligence and security sectors and the planning and conduct of counter-insurgency and anti-narcotics operations, a large number of foreign companies have also fueled and participated in the armed conflict in many other ways, such as organizing or facilitating clandestine weapon shipments to the paramilitary groups, or hosting training camps, logistical bases and transport hubs for military, intelligence and paramilitary operations on their properties. This is yet another dimension of the armed conflict that remains to be investigated and addressed in a cohesive manner.

MORE ON THE TOPIC:

• Ecuador The national strike: postscript and update
• Mining and Indigenous Peoples Part III
• The multinationals among the untouchables of the Colombian conflict
• Situation Report: Political Developments in Colombia – Domestic and Internal Factors Part I
• Situation Report: Political Developments in Colombia – Domestic and Internal Factors Part II
• Latin America Situation Report and Analysis for January 2023: Peru, Brazil