By Lilah S. Rosenblum



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Drugs, Blackhawks, and Bodies:

The Impact of U.S. Counternarcotics Policy on

Human Rights in Colombia


by Lilah S. Rosenblum



INTRODUCTION
Over the past 30 years, the United States has maintained an ineffective, single-minded counternarcotics policy toward Colombia that compromises the human rights of the Colombian people. This paper seeks to apply internationally recognized human rights norms to U.S.-Colombia policy to demonstrate the deleterious effects of this policy on the human rights situation in Colombia.

The next chapter provides a brief survey of the available literature on the issue of U.S. drug control policy and human rights in Colombia. It discusses the three main periods in which there was a vast amount of scholarly literature written on this topic, including the late 1980s, the middle and late 1990s, and today’s literature which is drawn primarily from press and NGO sources.

Chapter three details a brief history of the militarization of U.S. counternarcotics policy, describing specific policy initiatives that have led to the institutionalization of the “War on Drugs.” It traces the major policy changes from President Nixon in 1968 to President Bush today.

Chapter four discusses the domestic conditions in Colombia that existed prior to the militarization of U.S. drug control policy and that continue to exist today. These domestic conditions in combination with U.S. intervention have contributed to an environment ripe for human rights abuses in Colombia.

Chapter five outlines specific U.S. policies that contribute to human rights abuses in Colombia. It discusses how the U.S.’ lopsided focus on security assistance in Colombia has had negative implications for the country’s human rights situation. This chapter argues that the U.S.’ shortsighted policy approach expands the role of the military in Colombia while undermining civil institutions, supports an abusive military, allows the military-paramilitary link to continue, and intensifies the conflict and compromises the peace process.

This chapter then goes on to apply internationally-recognized human rights standards to U.S. policy in Colombia, finding that it violates several provisions of the International Bill of Rights (Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) as well as the Torture Convention. The chapter also examines the practice of aerial fumigation under these same standards.

The sixth chapter explores the implications of U.S. counternarcotics policy on international humanitarian law in Colombia and applies internationally recognized humanitarian standards from the Geneva Conventions (1949) and Protocol II of the Geneva Conventions (1977). It argues that if the United States insists on calling its drug control policy a “Drug War,” it should in fact abide by the laws of war.

Chapter seven provides policy recommendations that would improve the human rights situation in Colombia. It suggests that the United States fundamentally change its counternarcotics policy from a supply-side approach to a demand-side approach, in which domestic U.S. drug prevention, education, and treatment were the focus. Understanding that such a drastic change in policy is not immediately likely, it proposes other, less drastic measures, that would improve the human rights situation in the meantime.



LITERATURE REVIEW

The majority of the scholarly literature available on U.S. drug control policy in Colombia was written in the late 1980s—concurrent with President Bush’s decision to shift the drug war from a demand-side to a supply-side approach. This shift in focus had serious implications for the Colombian civil war and thus captured the imagination of many international affairs scholars.

The books and journal articles I used from that particular era focus on the dangers of militarization of the drug war on civil society in Colombia (Mabry 1988, Bagley 1988, Perl 1990), the inappropriate use of the realist paradigm in the formulation of U.S. counternarcotics policy (Bagley 1988, Tokatlian 1988), and the pitfalls of a punitive supply-side approach to the drug war (Sharpe 1988, Lee 1989).

There was a slight resurgence of interest in this topic in the middle and late-1990s—after the realization that the militarized, supply-side approach to the drug war was ineffective in curbing the production and flow of illegal drugs. The books and journal articles I used from this era focus on the failures of the supply-side approach (Clawson & Lee 1996, Bagley & Walker 1994), the impact of U.S. drug policy on human rights and the Colombian civil war (Crandall 1999, Sharpe & Leogrande 2000), as well as the inner-workings and motivations behind U.S. counternarcotics policy (Baum 1996).

For more recent data and analyses, I looked to reports by human rights and policy non-governmental organizations, newspaper articles, and the few academic journal articles available. The focus of these sources is on the effects of Plan Colombia on human rights and the conflict itself (Youngers 2002, Isacson & Vaicius 2002, Amatangelo 2001) the impact of aerial fumigation on the Colombian people and environment (World Wildlife Fund 2000, Haugaard 2002), and the role of the various armed actors in the conflict (Human Rights Watch 1998 and 2002, Amnesty International 2002).

HISTORY OF U.S DRUG CONTROL POLICY IN COLOMBIA (1968-2003)

In order to understand the relationship between U.S. drug control policy and human rights in Colombia, it is useful to examine the links between the institutionalization of the “War on Drugs” and the human rights implications of the militarization of this policy.

It is in fact the militarized nature of U.S. policy that allows human rights to be trampled in Colombia today. The U.S. government’s classification of its drug policy as a “war” and a national security threat de-emphasizes the importance of human rights as a U.S. foreign policy objective. In times of war or when the national security of the United States is at stake, human rights, as a foreign policy objective becomes negligible.

The war framework also sanctions the use of U.S. law enforcement and defense agencies in order to implement this policy. It justifies the expenditure of billions of U.S. dollars on security assistance for Colombia and neighboring nations in order to protect U.S. national security.


The Genesis of the “War on Drugs”: Drug Abuse as a Matter of National Security


In 1968, President Richard Nixon declared the “War on Drugs.” He announced, “drugs are among the modern curse of youth, just like plagues and epidemics of former years. And they are decimating a generation of Americans.” In response to this “plague” Nixon pledged to “accelerate the tools and weapons” to fight illegal drugs: a tripled customs service, more federal drug agents, massive assistance to local police, and antidrug operations abroad (Baum 1996, p.12).

Nixon’s use of the term “war” signifies a rhetorical transition into a military stance. It implies that there is an enemy to be fought, a fight to be won. “[T]he concept of war demands that the predominant instruments be of coercive-repressive nature” (Tokátlian 1988, p.134).

During his administration, President Nixon instituted several drug-control agencies including the Office of Drug Abuse Law, the Special Action Office for Drug Abuse Prevention, and the Drug Enforcement Agency.

Linking Drugs with Communism: Rationale for Expanding U.S. Drug Control Policy Abroad
In the early 1980s, the Reagan Administration developed the narco-guerrilla theory—linking Cuba, the Sandinistas in Nicaragua, and the Drug Cartels and the leftist guerrillas in Colombia. This link was established in order to tap into the fervent anticommunist sentiment that gripped American public opinion during the Cold War. This rhetoric was used to gain public support for the war on drugs by provoking fear of the narco-guerrilla threat that “festered” in the hemisphere. Reflecting that sentiment, then-Senator Paula Hawkins argued that the goal of Cuban and Nicaraguan leaders was to “destroy American youth and cripple American society by flooding our country with drugs” in a 1985 Senate hearing (Lee 1989, p.179).

At this time, Reagan “enacted tougher domestic antidrug legislation, expanded federal drug enforcement budgets, widened the role of the U.S. military in drug control efforts at home and abroad, stepped up interdiction programs at U.S. borders and overseas, and increased U.S. assistance to Latin American and Caribbean source and transit countries” (Bagley & Walker 1994, p.62).


Drugs as a National Security Threat


On April 8, 1986, President Reagan classified drugs as a national security threat by issuing National Security Decision Directive 221. By elevating the drug issue to the level of national security, the Reagan Administration further institutionalized the war on drugs. This war justified the direct involvement of U.S. law enforcement and defense agencies in this drug-fighting campaign.

Institution of the Certification Requirement


Also in 1986, the Reagan Administration instituted a certification requirement for drug-producing and transit countries ensuring they cooperate with U.S. anti-drug efforts. Each March, these countries would be certified or decertified on the basis of their compliance with U.S. drug control regulations. If they failed to meet these requirements, they would be threatened with suspension of U.S. aid, U.S. opposition to loans by international financial institutions, or sanctions. This punitive certification process continues today, and it continues to favor the attainment of counternarcotics objectives over, and often at the expense of, sound human rights practices.

The Andean Initiative


In 1989, President Bush launched the Andean Initiative with the principal objective of stopping the cocaine trade at its source. The Andean Initiative expanded previous drug control efforts by increasing U.S. assistance to police and military forces in Latin America, shifting the focus from a demand-side strategy to a supply-side strategy. The main elements of this policy were to: 1) provide for limited antinacotics-related economic assistance to major cocaine producing countries, 2) concentrate more on disrupting the activities of trafficking organizations, 3) encourage increased levels of Andean nation military involvement in counternarcotics, 4) provide for enhanced U.S. military support to counternarcotics forces of host nation” (Bagley & Walker 1994, p. 23). This campaign would cost $2.2 billion over 5-years (Amatangelo May 2001, p.3). Seventy-one percent of this funding would go to supply-side efforts, while 29% would go to demand-side initiatives. There would be a massive increase in military assistance to the Andean Region from $22 million in 1989 to $131 million in 1990 (Perl 1990, pp. 125-126). In 1990 the Department of Defense became the lead agency in the war on drugs, reflecting the fundamentally military nature of U.S. drug control policy in the region.

Plan Colombia


As part of a joint project between the U.S. and Colombian governments to combat drug trafficking and to strengthen the Colombian economy, the U.S. authorized $1.3 billion over a two-year period in 2000. “Seventy-five percent of this was earmarked for military and security assistance” (LeoGrande and Sharpe 2000). This funding focused on training and equipping counternarcotics battalions, fumigating drug crops, providing intelligence, and carrying out drug interdiction. A negligible amount of this funding was allocated for alternative economic development, judicial reform, and strengthening civil society.

Andean Regional Initiative


In spring 2001, President Bush launched the Andean Regional Initiative, a virtual continuation of previous U.S.-Colombia policy, with additional provisions to address the affects of spillover in Colombia’s neighboring countries. The funds earmarked for Colombia were intended for: “aerial eradication of drug crops; logistical support, hardware and training for the Colombian Army’s Counternarcotics battalions and the Colombian National Police; alternative development; social and economic programs including assistance for internally displaced persons; and judicial reform” (Amatangelo July 2001, p.1). An estimated 71% of these funds were slated for Colombian security forces. The FY2002 budget for ARI was approved at $625 million; $700 million was requested for FY2003 (Youngers November 2002, p.5).

The Age of Counter-terrorism: A Shift in Scope


Until the September 11 terrorist attacks on the United States, the U.S. government was careful not to explicitly provide funding for Colombia’s counterinsurgency war. The U.S. did not want to become embroiled in Colombia’s 40-year-old civil war, like it had foolishly done in Vietnam. On paper, the U.S. would not support counterinsurgency efforts and would focus solely on combating drug trafficking. In practice however, U.S. funding and intelligence intended for counternarcotics efforts had continually been used to combat Colombia’s guerrilla groups.

Since September 11, the Bush Administration has shifted its policy toward Colombia, expanding its mission to include counterinsurgency efforts. “By January 2003 the U.S. began providing training and equipment to directly support counterinsurgency warfare in Colombia” (U.S. Office on Colombia March 2003).

The Bush Administration has simply recycled the concept of the narco-guerrilla, popularized under the Reagan Administration, and adapted the term narco-terrorist to fit under the rubric of America’s “War on Terrorism.” Two of Colombia’s guerrilla groups, the FARC and the ELN, along with the main paramilitary organization, the AUC, have been placed on the U.S. State Department’s list of terrorist organizations. The narco-terrorist concept and the placement of guerrilla groups on the State Department’s terrorist list have been exploited by the Administration to justify delving deeper into the Colombian civil war. “Casting it as a war against “narco-terrorism,” however, exacerbates the worst elements of the U.S. War on Drugs and hence poses even greater risks to democratic consolidation in the Andean region” (Youngers November 2002, p.11).
DOMESTIC CONDITIONS PREDATING THE MILITARIZATION OF U.S. DRUG CONTROL POLICY IN COLOMBIA
In order to better understand the relationship between U.S. counternarcotics policy and human rights in Colombia, it is useful to understand the domestic conditions that pre-date the militarization of U.S.-Colombia policy. Colombia has a complex and contradictory history—one which is marked by a uniquely democratic tradition (civil rather than military rule), yet has been primarily exclusionary; one which is marked by relative economic success in the international economy, yet marred by regional and class-based inequalities; one which is classified as generally politically stability (in terms of regular elections), yet stained by violence and conflict. The socio-historic conditions that have contributed to an environment hostile to human rights in Colombia are the historically weak and exclusionary state, the legacy of violence, and the current-day civil war.

Historically Weak and Exclusionary State


The state has never had a monopoly over the legitimate use of force in Colombia nor has it mediated the allocation of land and resources. For scores of years after Colombia’s independence, the Colombian state had little to no presence in rural areas of the country and had consolidated itself only in the major cities. This lack of central government led to intense regionalism and left a power vacuum throughout the majority of the country. Decisions about land ownership and resource allocation were not made by the state and were often a source of bitter conflict and reprisals between antagonistic armed actors outside of the state.

Colombia has never had a populous form of government. The state has served to represent the interests of the country’s elite. This type of exclusion was most apparent during the years of the National Front (1958-1974), where the two ruling parties, Liberal and Conservative, alternated periods of rule and outlawed all other political parties. This 16-year period of coalition rule served to further alienate the electorate by suppressing all forms of political expression that fell outside the elite construct of the National Front.


Legacy of Violence


The formation of the National Front followed 10 years of violent conflict, called La Violencia (1948-1958). This period was marked by intense partisan hostilities between Liberals and Conservatives, with a total of 200,000 people killed. La Violencia was ignited by the assassination of Gaitán, the Liberal presidential candidate who would have been Colombia’s first and only populous leader.

During La Violencia, there were three processes at play, all of which have ties to today’s conflict in Colombia (class lecture, 1/28/03). The first was the use of terror through massacres and hired assassins or pájaros. The same type of terror is used in today’s conflict with guerrilla and paramilitary massacres of entire villages and hired assassins, now called sicarios. The second process was resistance to the political and economic exclusion, reflected by the appearance of Liberal guerrillas. Today’s largest guerrilla group, the FARC, has its roots in the Liberal guerrillas of the La Violencia and continues to contest the political and exclusion of Colombia’s masses. The third process at play was the breakdown of social order, which profoundly affected rural property ownership causing peasants and landowners alike to flee to the cities. Much of the current conflict is based in a similar struggle for land, resources, and power between the guerrillas and the paramilitaries over which the state has little control.


Thirty Years of Civil War


Colombia’s civil war initially began as an ideologically driven response to the traditional exclusion of Colombia’s masses. It has since evolved into a less ideological struggle based more on control over territory and resources rather than ideals. All armed actors—the guerrillas, paramilitaries, and the State—are trying to consolidate their control over land and resources throughout the country.

The power vacuum caused by the failure of the Colombian State to consolidate power throughout the country has allowed armed non-state actors to attain and consolidate control over many parts of the country. Violent conflicts often arise among armed groups competing for land and resources outside of the control of the state. The brunt of the resulting violence falls on the shoulders of innocent civilians living in contested territory. Civilians are often blamed for supporting one or the other group, when in reality they are just trying to survive the war. It is in this context of limited state control and unchecked violence propagated by illegal armed groups that the U.S. has inserted itself to fight its single-minded war on drugs.



SPECIFIC U.S. POLICIES THAT COMPROMISE THE

HUMAN RIGHTS OF COLOMBIANS
Militarization of the Drug War: The U.S.’ Focus on Security Funding

Expands the Role of the Military while Undermining Civil Institutions in Colombia
Over the past two decades, the U.S. government has funded, trained, and equipped Colombian security forces for counternarcotics operations. This funding has increased exponentially over the years. To demonstrate this growth in spending, a joint publication by the Center for International Policy and the Latin America Working Group called “Just the Facts 2001-2002” compares the total amount of U.S. aid given to Colombia for military and police assistance in 1997 with the amount granted in 2002. This report finds that $88,560,000 was spent in 1997 for military and police aid in Colombia, while $374,610,000 was spent in 2002 (Isacson & Olson 2001). This drastic increase in military and police funding over this 5-year period is indicative of a pattern of increased U.S. military spending in Colombia.

Coupled with this increased spending, is the fact that the vast majority of this aid has been dedicated to military and police assistance rather than economic and social assistance. Out of the $1.165 billion the U.S provided Colombia in 2000 and 2001, $929 million went to Colombia’s military, police, and fumigation program, while only $236 million went to social and economic programs (Isacson & Vaicius April 2001, p.8). That means that in the two-year period of 2000-2001, 80% of the total assistance package to Colombia was directed toward security assistance, while only 20% was directed toward economic and social assistance. This security assistance was earmarked for new counternarcotics battalions stationed in Colombia’s Southern coca-growing region; U.S. military planes and helicopters for rapid mobilization of security forces and fumigation purposes; intelligence technology and intelligence sharing programs; and air, ravine and ground interdiction (Isacson & Olson 2001).

The United States’ military-focused assistance undermines civilian institutions. Colombia’s historically weak State is further weakened by emphasizing the role of military institutions over civilian institutions, such as the judicial system. “Using militaries to arrest criminals and destroy crops and factories further institutionalizes militaries as the authority within the state, encouraging them to marginalize and replace civilian government” (Bagley & Walker 1994, p.52). Without strong civilian institutions, the Colombian government lacks legitimacy and therefore the ability to carry out its policy goals. “Some local analysts point out that by circumventing civilian institutions, the U.S. government may be undermining people’s faith in those institutions at a time when democratic developments remain delicate and when curbing military autonomy remains critical to future democratization” (Youngers November 2002, p.7).

Furthermore, the military is an inappropriate institution to lead a domestic drug control campaign. Donald Mabry passionately argues in his essay the U.S. Military and the War on Drugs that “militaries are killing machines not police forces; they are trained to kill people in sufficient numbers to convince the survivors not to fight” (Bagley & Walker 1994, p.53). The inappropriate use of the military in domestic drug control efforts increases the likelihood of large-scale human rights abuses.



Supports Abusive Military

The United States’ military-heavy funding strategy has serious ramifications for human rights in Colombia. Firstly, it supports the most abusive military in the Western Hemisphere. The Colombian Army is the hemisphere’s most insidious abuser of human rights and international humanitarian law. “Its crimes take place both through direct action and through middle and lower-ranking officers’ collaboration with, or acquiescence to, paramilitary groups’ atrocities” (Isacson February 2000, p.8).

Despite human rights conditions placed on U.S. aid to Colombia, such as the Leahy Law, which prevents the U.S. from funding military units that have committed human rights abuses, U.S. funding continues to support rights abusing military units. The Colombian military has found ways to circumvent the proper implementation of the Leahy Law as it was intended. These evasions of the law allow the Colombian military to continue receiving assistance from the U.S. while failing to fundamentally reform and prosecute rights abusers within their ranks.

Allows Military-Paramilitary Link to Continue

Secondly, there is a troubling link between the Colombian military and paramilitary forces, which U.S. assistance fosters. The U.S. military, Colombian military, and paramilitaries have the same goal, whether explicit or implicit, of clearing guerrillas from southern Colombia—the U.S. for counternarcotics purposes and the Colombian military and paramilitary forces, for counterinsurgency purposes. Due to this common objective, there has historically been a relationship between the Colombian military and paramilitary forces, whether in the form of acquiescence or direct collaboration. Colombia’s paramilitary forces were implicated with committing 84% of the human rights abuses in 2001 (Jorge Bañales, EFE News Service 2/5/02). The UN High Commissioner for Human Rights reported that “the paramilitary phenomenon continues to expand and consolidate. The government’s commitment to confronting these groups has been weak and inconsistent” (UN High Commissioner for Human Rights report, 2001). Ultimately, the benefits of U.S. assistance (equipment and intelligence) leaks into the hands of paramilitary forces, an illegal armed group implicated in the vast majority of human rights violations in Colombia.



Intensifies Conflict and Compromises Peace Process

Finally, U.S. military funding intensifies the civil conflict and compromises the peace process. By introducing more weapons and training more fighters to participate in this conflict, it risks intensifying the crossfire in which innocent civilians are already caught (Isacson February 2000, p.8). The U.S.’ “push into Southern Colombia” campaign, which seeks to clear the guerrillas out of the country’s main drug-producing area, serves to intensify the conflict by creating contested territory. Forcing the guerrillas out of their long-held territory in the South and allowing for paramilitary encroachment of that land, leads to heavy civilian casualties due to massacres committed by armed groups fighting over contested territory. It is estimated that 2/3 of the conflict’s casualties are civilians.

The fragile peace process is also compromised by U.S. military aid to Colombia. The FARC loses faith in the peace process because it sees the government’s attempts at peace as disingenuous. By accepting substantial military aid from the United States, the government appears to be preparing for war while trying to make peace. Extensive U.S. military aid also reassures hard-liners in the Colombian military and paramilitary that they can win the war with the help of U.S. funding, equipment, and training. This gives them little incentive to attempt to make peace with the guerrillas.

An article written by Russell Crandall in 1999 discusses the U.S.’ direct interference with the Colombian peace process. (Note: This article pre-dated Pastrana’s concession of the demilitarized zone to the FARC.) He writes, “The U.S. has already stated emphatically that any eventual peace agreement in Colombia cannot include autonomous zones for the guerrillas where they might be able to continue to produce and traffic drugs. Sadly, this example shows that no matter how much the U.S. rhetorically supports peace in Colombia, it actually only supports peace that fits nicely within the U.S. counternarcotics strategy. Since the war on drugs seems to be a losing battle, it may be a long while before any peace agreement is reached that is acceptable to Washington” (Crandall 1999, p.236).



The Human Rights Implications of Militarization of the U.S. Drug War in Colombia
This section will examine the implications of U.S. counternarcotics policy on human rights in Colombia by applying principles of international human rights law to this policy. I will draw from UN human rights instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Torture Convention. While both the U.S. and Colombia are signatories to all of the aforementioned treaties and conventions, I will focus on the ways in which U.S. policy violates specific provisions within these international instruments.

The U.S.’ prioritization of security assistance over social and economic assistance has indirectly contributed to human rights violations in Colombia. By focusing almost exclusively on military and police assistance, the U.S. has failed to address Colombia’s central problem of historically weak civilian institutions. Despite the fact that many of Colombia’s presidents have favored aid for civilian over military institutions, they have been granted assistance earmarked specifically for security purposes. For instance, the 1989 Andean Initiative launched by President Bush focused primarily on military assistance, despite the fact that Colombian President Barco requested funding to strengthen the judicial system. The Clinton Administration’s Plan Colombia similarly focused on military assistance, while Colombian President Pastrana sought assistance for social and economic programs.



Right to Judicial Remedy

The U.S.’ clear preference for military rather than civilian assistance has contributed to Colombia’s weak judicial system. An estimated 98% of crime in Colombia goes unpunished (Solimano 2000, p.59). With a weak judicial system, there is little to no accountability for criminals and human rights abusers. Because most crimes go unpunished, there is little deterrence for committing crimes and human rights abuses. This lack of accountability allows armed actors to behave without restriction and to act with impunity.

Article 8 of the Universal Declaration of Human Rights and Article 2 Section 3 of the International Covenant on Civil and Political Rights ensure the right to effective judicial remedy. Article 8 of the UDHR states “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights guaranteed by the constitution or by law.” Many recent Colombian presidents have acknowledged the need for judicial reform and have taken steps to bring about such changes. The U.S.’ failure to fully address issues of judicial reform in Colombia has handicapped both domestic Colombian initiatives and its own drug war, while indirectly fostering impunity for human rights abusers.
Right to Life and Security of Person

An even more apparent and egregious result of U.S. security assistance for Colombia is the widespread violation of the most fundamental right of all, the right to life and security of person. The massacres and murders of civilians have been the most salient byproduct of U.S. military aid to Colombia. Through the support of Colombia’s historically abusive military, tolerance of the continued military-paramilitary link, and the intensification of the civil conflict, the U.S. has indirectly contributed to the violation of the right to life and security of person of Colombian civilians.

Article 3 of the Universal Declaration of Human Rights states, “Everyone has the right to life, liberty and security of person.” Article 6 Section 1 of the International Covenant on Civil and Political Rights goes further to ensure that the law enforces such a right. It states, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The right to life and security of person is violated when the Colombian armed forces—funded, equipped, and trained by the United States—summarily murder or massacre civilians or allow and/or support the paramilitary forces in committing such acts. According to a March 1998 report by the UN High Commissioner for Human Rights, “Witnesses frequently state that [massacres] were committed by members of the armed forces passing themselves off as paramilitaries, joint actions by members of the armed forces or police and paramilitaries, or actions by paramilitaries enjoying the complicity, support of acquiescence of the regular forces” (UN High Commissioner for Human Rights report, March 1998).

Freedom from Torture

Colombian security forces have also been implicated in the torture of prisoners. In addition, the cadavers of guerrillas and suspected guerrillas who have been summarily executed by the Colombian security forces have frequently shown signs of torture. A 1998 Human Rights Watch report describes the common methods of torture employed by the Colombian security forces as “beatings and the ‘submarine,’ near suffocation in buckets of often filthy water” (Human Rights Watch 1998, p.56).

Article 7 of the International Covenant on Civil and Political Rights states “No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment.” In addition to this provision, there is an entire convention that focuses solely on the offense of torture. This international legal instrument is called the Convention against Torture and Other Cruel and Degrading Treatment or Punishment, or simply the Torture Convention. The Torture Convention contains several provisions that directly relate to the Colombian case. Article 2 Section 2 of the Convention stipulates that no derogation from the convention can be made no matter if there is a state of war, general political instability, or a state of emergency in place. This means that despite the fact that Colombia is in the state of civil war, it must abide by the provisions of the Torture Convention. Article 8 Section 1 of the Convention makes torture an extraditable offense. Article 12 requires a prompt and impartial investigation of torture accusations and Article 14 requires proper legal redress for torturers and compensation for victims. To my knowledge no accused torturers have been extradited and few, if any, have been brought to justice in Colombia.

The U.S.’ logistical support for Colombian security forces, some of which have been implicated in torture, makes the United States indirectly responsible for the torture of Colombian citizens. Furthermore, the U.S.’ failure to insist upon the prosecution of torturers within the Colombian security forces and to ensure that there is a clear break between the Colombian security and paramilitary forces further implicates the U.S. in the offense of torture in Colombia.



Fumigation: “The Push into Southern Colombia”

In the 1980s and early 1990s, the U.S. had focused its attention on ensuring prosecution and/or extradition of drug traffickers and dismantling drug cartels in Colombia. At the same time, the U.S. implemented coca eradication and interdiction programs in Peru and Bolivia, the principle producers of coca leaf. With the decline in production in Peru and Bolivia, came the rise in coca production in Colombia.

In order to respond to this rise in coca production, the U.S. government shifted the emphasis of its drug war in Colombia from drug traffickers to growers. In 1994, the U.S. began aerial fumigation programs in Colombia with the intent to destroy the cocaine industry at its origin, the coca leaf. This fumigation program was largely directed at the principle coca-growing region in Southern Colombia, the Putumayo. Despite this fumigation program, “coca leaf acreage increased from 37,500 hectares in 1991 to 122,500 hectares in 1999” (LeoGrande and Sharpe 2000, p. 2). U.S. fumigation programs have largely been unsuccessful in reducing coca production in the region, because where coca is destroyed in one place, it will inevitably be planted in another. Ultimately, if the demand for coca continues to exist, the supply will correspond.

Apart from being an ineffective program, fumigation has many other costs for Colombia—economic, social, environmental, and health-related. Destroying the crops on which peasants subsist without substituting them with viable alternatives, leaves the peasants without a livelihood, and therefore without means for survival.

Although alternative development programs in Colombia exist in theory, they do not necessarily function in practice. Alternative development projects rarely keep pace with fumigation projects. In 2002, “USAID claimed to have supported only 4,500 hectares of licit crops while in the same year, the U.S. embassy goal was to spray 150,000 hectares” (Haugaard 2002, p.2). Furthermore, alternative development projects rarely take place in the areas where eradication has occurred. If they do happen to take place in a timely manner and in an area that has been fumigated, they rarely provide a sustainable alternative to drug crops. This is so either because farmers have no way of getting their licit crops to market due to failures with the country’s physical infrastructure or lack of transportation or because there is no market for the products due to the lack of a thoughtful marketing strategy. Ultimately, alternative development programs have proven ineffective, untimely, and inappropriately designed and located, leaving Colombian peasants without a viable livelihood.

Additionally, due to the unselective nature of aerial fumigation, licit crops are often destroyed, leaving growers without food crops to consume or sell. In fact, “USAID-funded alternative development projects have been sprayed, including communities that claim 100% eradication” (Haugaard 2002, p.4).

Despite a provision attached to the FY2002 U.S. Foreign Operations bill that would ensure compensation for individuals whose licit crops were destroyed during fumigation or whose health was harmed, there has been little to no compensation or recourse for these peasants. In a September 2002 State Department report entitled, “Report on Issues Related to Aerial Eradication of Illicit Coca in Colombia,” the State Department found that “not a single case has resulted in compensation to date and only one out of 1,000 complaints is scheduled to receive compensation” (Haugaard 2002, p.3).

The adverse economic conditions resulting from U.S. aerial fumigation programs in Colombia have had serious social implications. The most destabilizing effect of fumigation is the internal displacement of peasants whose crops have been fumigated. It was estimated that over 360,000 people were displaced in Colombia in 2001, up from 270,000 in 2000 (Ferrer & Muñoz, Inter-Press Service, 12/10/01). With the loss of livelihood and the subsequent incursions by armed actors that often occur with fumigation, peasants either move to urban areas or into the Amazon in order to replant coca crops. Many displaced peasants also join either the paramilitaries or guerrillas when faced with the conditions caused by fumigation programs.

In an analogous situation in Peru, forced eradication of coca drove many coca farmers into the arms of Sendero Luminoso. Testimony in a 1986 joint Senate Foreign Relations and Judiciary Committee Hearing, Clyde Taylor, former Deputy Assistant Secretary for Narcotics Matters, made the connection between eradication and guerrilla recruitment. He testified, “Many see coca eradication efforts as a threat to their survival When recruiters announce that they have come to protect the livelihood of growers against government interference, they find ready listeners. Paradoxically, the U.S.-funded eradication efforts may be making the remaining growers more desperate and more susceptible to the blandishments of the terrorist recruiters” (Lee 1989, p.177). The armed incursions into the fumigated region, the clash over newly developed drug-producing territory, and the recruitment of displaced peasants exacerbates the internal conflict.

The environmental costs of aerial fumigation are also devastating. The World Wildlife Fund assessed the potential impacts of aerial fumigation programs in Colombia as: eradication of non-target plants and trees, increased potential for soil erosion and stream and river sedimentation, suppression of soil bacteria and fungi growth and function, toxicity to aquatic organisms such as fish and invertebrates, adverse impacts on wildlife including reproductive problems, and the alteration on natural plant succession, diversity and density (World Wildlife Fund press release, 10/30/00). Fumigation contaminates water sources and depletes food supplies by destroying crops and killing wildlife. In addition, the forced migration of peasants from fumigated areas into the Amazon to re-plant coca crops, leads to massive deforestation and resource depletion.

Fumigation also has negative public health implications. Directly after a spraying session, peasants in affected areas complain of skin rashes, intestinal disorders such as diarrhea and vomiting, and respiratory problems (Isacson & Vaicius, April 2001). While U.S. State Department officials claim that glyphosate, the active ingredient in the chemical solution used in fumigation, poses no health risk to humans, they fail to account for the possibility that the other undisclosed ingredients may cause such health problems. The fact that aerial fumigation kills drug crops, licit crops, contaminates water, and kills wildlife affects humans indirectly through their food and water sources. Aerial fumigation not only overtakes local flora and fauna, but directly sprays humans living in the effected area.
Fumigation and Human Rights

The Right to Work

The aerial fumigation program in Southern Colombia presents conditions in which the fundamental human rights of the inhabitants of this area are violated. Firstly, it denies peasants in Southern Colombia the right to work, without providing viable alternatives to employment. This is a violation of Article 23 of the Universal Declaration of Human Rights (UDHR), of which both the U.S. and Colombia are signatories. Article 23 of the UDHR states that “everyone has the right to work, to free choice of employment, to just and favorable conditions of work, and to protection against unemployment.”

Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) goes further to ensure the right to “technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social, and cultural development and full productive employment.” While alternative development programs are meant to address the rights guaranteed by Article 6 of the ICESCR, they fail miserably in practice. As previously noted, alternative development programs in Colombia fail to address the need in areas effected by aerial fumigation in a timely manner, if at all.

Finally, Article 1 Section 2 of the International Covenant on Civil and Political Rights (ICCPR) states that “in no case may a people be deprived of its own means of subsistence.” Clearly, in the case of aerial fumigation, the peasants of Southern Colombia are being deprived of their own mean of subsistence. Some may argue that the primary means of subsistence of the peasants in Southern Colombia, coca production, is illegal. Whether or not this is true, the fact that no viable alternative means of compensation or re-employment are provided suggests that the peasants’ right to work and means of subsistence are being violated by U.S. aerial fumigation programs.



The Right to Non-displacement

Article 13 of the Universal Declaration of Human Rights (UDHR) states that “everyone has the right to freedom of movement and residence within the borders of each state.” Article 12, Section 1 of the International Covenant on Civil and Political Rights similarly states, “everyone has the right to liberty of movement and freedom to choose his residence.” These provisions of international human rights law protect individuals from forced displacement. Aerial fumigation itself and the armed incursions that occur as a result, lead to the internal displacement of peasants living in the effected areas of Southern Colombia.



The Right to Health and Environmental Hygiene

The negative impacts on human health and environmental wellbeing of aerial fumigation also violate international human rights law. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the right of “everyone to the enjoyment of the highest attainable standard of physical and mental health.” Two of the steps the ICESCR proposes to ensure this right to health is the “improvement of all aspects of environmental and industrial hygiene” and the “prevention, treatment, and control of epidemic, endemic, occupational and other diseases.” It can be argued that aerial fumigation works counter to the improvement of environmental hygiene, for it serves to deteriorate the environmental health of the affected regions. It can also be argued that by spraying the glyphosate compound used in fumigation causes rather than prevents certain types of diseases and disorders including dermal, respiratory, and intestinal disorders.

The rights included in the International Covenant on Economic, Social, and Cultural Rights, such as the right to work and the right to health, are meant to be progressively rather than immediately enacted. This means that the drafters of the Covenant realized that every signatory country would not be able to guarantee all of the social and economic rights contained in the Covenant due to the fiscal restrictions of poorer nations. The idea of this covenant is to work towards the attainment of these rights for all people. The fact that Colombia has not achieved the right to work and the right to health for all of its citizens (nor has the United States for that matter) is not the issue at hand. The fact that U.S. drug control policy in Colombia necessarily impedes the realization of these rights for Colombian peasants qualifies as a violation of these human rights.

IMPLICATIONS OF U.S. COUNTERNARCOTICS POLICY ON INTERNATIONAL HUMANITARIAN LAW
Regulations of Non-international Conflict
The Colombian civil war has been ongoing for over thirty years. Because the struggle between the guerrillas, the Colombian military, and the paramilitary is deemed a non-international conflict, all actors are bound to Common Article 3 of the Geneva Conventions (1949) and Protocol 2 to the Geneva Conventions (1977). These laws “limit the means and methods of warfare during non-international armed conflicts and establish provisions for the relief and protection of civilian populations” (Bouchet-Saulnier 2002, p.158). It can be argued that the U.S.’ failure to properly implement the Leahy Law—which denies assistance to any unit of the Colombian military implicated in human rights abuses—permits internal armed actors to violate these provisions. The United States, in its capacity as a funder and trainer of the Colombian military, should not foster or permit any action by the beneficiaries of its aid that would violate the laws governing non-international armed conflict.

The United States, in its “War on Drugs,” Must Comply with the Laws of War

Since the U.S. terms its counternarcotics policy a “war on drugs”, it should itself comply with the laws of war. With the U.S. committing an increasing number of U.S. military personnel and contractors to counternarcotics (and now counterinsurgency) operations in Colombia, the United States could be considered a party to an international conflict, which carries more stringent standards of behavior than non-international conflict. The United States should therefore be held to the standards of international humanitarian law.



Principles of Distinction and Proportionality

The two main tenets of International Humanitarian Law, guaranteed by the Geneva Conventions of 1949, are the principles of distinction and proportionality. Distinction requires that armed actors distinguish between legitimate targets (combatants) and illegitimate targets (non-combatants) during the course of combat. Colombian security forces, which are funded and equipped by the U.S. government, have been implicated in the torture and murder of civilians thought to be guerrillas. These security forces have also aided paramilitary forces in the massacres of entire villages.

In addition, the use of aerial fumigation directly affects civilian non-combatants, in terms of their health, environment, food and water supply. Ultimately, there is no way to protect civilians during aerial fumigation, due to the unselective nature of the operation. Therefore, aerial fumigation should not be permitted because it is a direct violation of the distinction principle of international humanitarian law.

The principle of proportionality requires that the loss of life not exceed the value of the military gain. In this case, one must first assume that the U.S. government has legitimate military objectives in Colombia. From there, one could argue that the civilian deaths that have occurred as a result of Colombian military and paramilitary actions in coca cultivation zones are not worth the eradication of coca crops, that are then replanted elsewhere.



U.S. Accountability: Knowledge and Command Responsibility

The U.S. can be held accountable for the actions of Colombian military and paramilitary forces for two reasons. First, the U.S. government has knowledge of the human rights abuses committed by the Colombian armed forces as well as the military-paramilitary link as reflected in statements made by government officials. In the U.S. State Department’s 1997 Annual Human Rights Report, the U.S. government states that that in Colombia “killings by paramilitary groups increased significantly, many times with the complicity of individual soldiers or military units, or with the knowledge and tacit approval of senior military officials” (U.S. State Department 1997, p.5).

Secondly, the U.S. government, although technically not in direct command of Colombian armed forces, funds and trains the military and therefore shares responsible for the use and abuse of its security assistance. I would argue that the United States is responsible for the end use of its assistance to Colombian security forces, through a derivative form of funder/trainer command responsibility.

Failed Implementation of the Leahy Law and the Human Rights Waiver

If the U.S. government ensured proper implementation of the Leahy Law, which denies U.S. assistance to any Colombian military unit directly implicated in human rights violations or collaboration with paramilitary forces, they would bear less responsibility for the human rights abuses occurring in Colombia. However, this is not the case.

The U.S. has repeatedly ignored the rights violations committed by the Colombian armed forces as well as the impunity they enjoy. In August 2000, President Clinton chose to waive the human rights conditions included in Plan Colombia. The U.S. would grant Colombia $1.3 billion in mainly military assistance despite its failure to meet minimal human rights requirements. Human Rights Watch commented on the effect of President Clinton’s waiver on human rights in Colombia, stating, “In granting the waiver, Clinton not only makes America complicit in ongoing abuses but risks converting a failed drug war into a disastrous human rights policy” (Human Rights Watch press release, 8/23/00).

The United States should abandon its supply-side strategy for drug control, which has proven costly and ineffective in terms of U.S. tax dollars and Colombian lives over the course of this decades long failed policy. Instead, the U.S. should view America’s drug problem as the public health issue that it is and invest in prevention, education, and rehabilitation programs for drug-users at home. As such a drastic change in policy is not likely to occur in the near future, there are many steps the U.S. can take to improve its current policy toward Colombia in the interest of human rights.

First, the United States should invert the proportions of funding for military vs. civil institutions in Colombia. For the past several years, the U.S. has earmarked between 75%-80% of its total assistance to Colombia for security assistance and only between 20%-25% for social and economic assistance.

The U.S. should focus its foreign assistance on programs that would strengthen and expand the role of civil institutions in Colombia, such as the judicial system, the Attorney General’s Office, Human Rights Ombudsman, human rights and other civil society organizations. By supporting these civil institutions and empowering civil society, there is a greater chance of de-escalation of the armed conflict and greater prospects for a peaceful resolution. The activities of these civil institutions will promote greater respect for human rights and the rule of law through human rights advocacy, education, and accountability. Both the state and civil society will be strengthened by such a programmatic shift, putting the state in a stronger position to negotiate with armed actors and protect its citizens from violence and the Colombian people will be better equipped to assert and defend their rights.

A large proportion of aid should also be allocated to the development and support of social and economic programs. In order to dissuade peasants from cultivating illicit crops, viable alternatives need to be created. Alternative development programs should be funded and devised through a collaboration of Colombian economists, community leaders, and peasants to determine the most cost-effective and profitable alternative products. Infrastructure and a clear marketing strategy must be developed in order to get the products to market. The income made by the peasants must exceed that which was made by cultivating coca in order to prevent them from returning to illicit cultivation. In addition, improved education and health services for all regions of the country will restore faith in the government, deter future recruits for illegal armed groups, and create conditions in which the guerrilla groups may be willing to negotiate disarmament with the state.

The remaining 20% of total funding dedicated to military assistance should focus on professionalizing the Colombian security forces by vetting rights abusers, conducting more rigorous human rights training, and breaking the link between Colombia’s military and paramilitary forces.

Secondly, the U.S. government should insist that all foreign assistance be contingent on the Colombian government’s demonstrated commitment to human rights (improved human rights practices of the military and police, the clear break between military and paramilitary forces, the vetting and prosecution of rights abusers). Frequent reviews of such compliance should take place, and under no terms should Colombia be granted a human rights waiver if it fails to comply with these requirements.

Thirdly, the United States should terminate its aerial fumigation program in Colombia. Instead it should fund manual coca removal projects paired with viable alternative development programs. Such a program could pay coca farmers to manually remove their coca crops after which they could begin cultivation of their new alternative crops. This would save peasants and their families from the harmful effects of aerial fumigation, employ them to remove illicit and re-cultivate licit crops, and therefore give them a viable livelihood and include them in the process rather than making them victims of eradication. This would prevent the forced migration and recruitment of peasants into armed groups.



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