THE WHITE HOUSE

Office of the Press Secretary

(South Brunswick, New Jersey)



August 23, 2000



MEMORANDUM OF JUSTIFICATION IN CONNECTION WITH THE WAIVERS UNDER
SECTION 3201(a)(4) OF THE EMERGENCY SUPPLEMENTAL ACT, AS ENACTED IN
THE MILITARY CONSTRUCTION APPROPRIATIONS ACT, 2001


The challenges faced by Colombia are a matter of national security
interest to the United States. Our assistance package is crucial to
maintaining our counterdrug efforts and helping the Colombian
Government and people to preserve Colombia's democracy. Moreover, the
United States has important interests in promoting economic reform,
protection of U.S. citizens, and hemispheric stability, all of which
are addressed by our support for Colombia. Pursuant to Section
3201(a)(4) of the Emergency Supplemental Act, and for the following
reasons, the President has determined that a waiver of the
certification requirements in Section 3201(a)(1)(A)(ii) and (iii) and
3201(a)(1)(B)-(E) is in the national security interest.


Colombia confronts a drug emergency that directly affects the United
States. In spite of aggressive counterdrug efforts, coca cultivation
in Colombia has increased 140 percent over the last five years. This
massive rate of increase threatens to reverse the counterdrug
successes in Peru and Bolivia. Ninety percent of the world's cocaine
is grown, processed, or transported through Colombia. The U.S. Drug
Enforcement Administration estimates that up to 75 percent of the
heroin consumed on the East Coast of the United States comes from
Colombia. Illegal drugs cost our society 52,000 lives and nearly $110
billion each year in health costs, accidents, and lost productivity.
The drug trade is also fueling the illegal armed groups involved in
Colombia's internal conflict, further exacerbating human rights
problems.


The Administration supports the Congress' effort to ensure that human
rights are respected and protected in Colombia. As we begin the
certification process, the Administration is committed to working with
the Colombian Government to protect human rights by making progress in
all areas stipulated by the law. While the Government of Colombia is
actively taking steps to meet the seven conditions on assistance, we
are currently able to certify only one (Section 3201(a)(1)(A)(i)). The
Government of Colombia will need some time before we will be able to
certify several of the criteria. We continue to press the Government
of Colombia to achieve tangible results in these areas. By the terms
of the law, another certification or waiver will be required prior to
the obligation of further funds in FY 2001. The Administration will
continue to engage in an extensive consultative process with the
Colombian Government over the coming months as we strive to be able to
certify additional provisions.


Consistent with Section 3201(a)(2), the State Department has consulted
with internationally recognized human rights organizations. Senior
State Department principals met with representatives of these
organizations on August 2 to initiate an ongoing consultative dialogue
on the implementation of the U.S. assistance package. Meetings were
also held on August 10, 17, and 18. Our Embassy officials in Bogota
also met with 15 Colombian NGOs on August 2, and agreed to establish a
similar consultative process. Additionally, the Colombian Government
has instituted its own formal consultative mechanism with Colombian
NGOs.


For each of the six certification requirements that the President has
waived, this memorandum describes the steps the Colombian government
has already taken toward meeting the requirements, the reason they
cannot be certified at this time, and the further steps we expect them
to take to allow them to meet the conditions for certification in the
future.


(1) Secretary of State must certify 'that the Commander General of the
Colombian Armed Forces is promptly suspending from duty any Colombian
Armed Forces personnel who are credibly alleged to have committed
gross violations of human rights or to have aided or abetted
paramilitary groups....' (Section 3201(a)(1)(A)(ii)).


At the present time, the Military Commander of the Colombian Armed
Forces has only limited authority to promptly suspend from duty all
Armed Forces personnel credibly alleged to have committed gross
violations of human rights or to have aided or abetted paramilitary
groups. Currently, the Military Forces have the authority to remove
officers with a minimum of 15 years of service. The proposed reform of
the military career personnel statutes, which is expected to become
law by September 14, 2000, will also give the Military Commander,
General Fernando Tapias, the authority to dismiss officers with fewer
than 15 years of active duty service. Non-commissioned officers (NCOs)
will continue to be subject to removal from the Armed Forces by a
senior military commander. The Administration will strongly urge that
the Commanding General use the requisite authorities to suspend
promptly from service Armed Forces personnel facing credible
allegations of involvement in human rights violations or of aiding or
abetting paramilitary groups.


In several important cases, usually by order of civilian authorities,
senior-level officers have been suspended after charges have been
brought against them. Examples include General Jorge Plazas Acevedo,
arrested and suspended in April 1999 in connection with the murder of
Benjamin Khoudari; Brigadier General Jaime Humberto Uscategui,
suspended in April 1999 in connection with the 1997 paramilitary
massacre at Mapiripan (Meta); and Lieutenant Colonel Jesus Maria
Clavijo, suspended in March 2000 after being arrested on charges of
collaboration with paramilitaries and involvement in 'social
cleansing' killings while a member of the Army's 4th Brigade.


However, there are still a number of documented cases of senior
security force personnel remaining on 'active duty' even while charges
against them were being pursued.


On August 15, six children were killed and five were injured after
being shot by Colombian army troops. According to a senior Colombian
army officer, the National Liberation Army (ELN), Colombia's second
largest guerrilla force, were using the children as 'human shields'
following a shoot-out between the Colombian army and the ELN. However,
witnesses of the incident report that the ELN was not involved.
President Pastrana has said he will personally oversee the
investigation.


According to the Human Rights Report of the Colombian Ministry of
Defense, 32 members of the Armed Forces were separated from service
between 1998 and 1999 for presumed human rights violations. During
that same period, the military justice system also discharged 65
police officers. We will continue to work with the Government of
Colombia in order to monitor further progress in holding military and
police personnel accountable for violations of human rights.


Additionally, the Ministry of Defense reported that approximately
63,000 security force members received human rights training in 1999,
provided by the International Committee of the Red Cross, the
Colombian Red Cross, the Roman Catholic Church, elements of the
government and security forces, and foreign governments.


Nevertheless, there remain disturbing, credible allegations that
individual Colombian military officers continue to collaborate with
paramilitaries. The Government of Colombia needs to take further, and
more effective, measures that aggressively prevent collusion between
security force personnel and paramilitary groups, and to take decisive
disciplinary measures against its personnel where appropriate before
we can certify compliance. The Administration has raised these issues
with the Government of Colombia repeatedly at all levels of our
bilateral dialogue and will continue to work with the Colombian
Government to satisfactorily address these concerns.


(2) Secretary of State must certify that 'the Colombian Armed Forces
and its Commander General are fully complying with Section 3201
(a)(1)(A)(i) and (ii) of the Act. . . .' (Section 3201(a)(1)(A)(iii)).


With respect to Section 3201(a)(1)(A)(i), President Pastrana's
directive to the Colombian Armed Forces was issued only recently, so
we will need to monitor the extent of their compliance over the next
several months. With respect to Section 3201(a)(2)(A)(ii), some Armed
Forces personnel have been promptly suspended when credibly alleged to
have committed gross violations of human rights; however, there are
still many cases where this does not occur.


It is our expectation that the Presidential directive, which was
issued on August 17, will provide the requisite authorities with the
power to suspend from duty Armed Forces personnel credibly alleged to
have committed gross violations of human rights or to have aided or
abetted paramilitary groups. We expect the Armed Forces and the
Commanding General to take prompt and immediate steps to use the new
authority in the Presidential directive. Accordingly, the Armed Forces
and its Commander General cannot be said to be 'fully' complying at
this time.


(3) Secretary of State must certify that 'the Colombian Armed Forces
are cooperating fully with civilian authorities in investigating,
prosecuting, and punishing in the civilian courts Colombian Armed
Forces personnel who are credibly alleged to have committed gross
violations of human rights. . . .' (Section 3201(a)(1)(B)).


During the Pastrana Administration, there has been a gradual, but
steady, improvement in the cooperation between civilian authorities
and the Colombian Armed Forces in the investigation, prosecution, and
punishment in the civilian courts of military personnel who are
credibly alleged to have committed gross violations of human rights,
but steps remain to be taken before this condition can be certified.
President Pastrana has demonstrated his Government's commitment to
human rights by the dismissal of four generals and numerous mid-level
officers and NCOs for collaboration with right wing paramilitaries or
for failure to confront them aggressively. The military high command,
under the leadership of Defense Minister Ramirez and General Tapias,
has also stated repeatedly that it will not tolerate collaboration
between military personnel and paramilitary groups. However, security
force actions in the field are not always consistent with this policy.


The human rights unit of the Prosecutor General's Office (Fiscalia)
investigated, indicted, or prosecuted 303 security force members
during 1999, including at least 12 officers, on a variety of charges
including homicide, torture, and sponsorship of paramilitary groups.
The Attorney General's Office (Procuradoria) and the security forces
demonstrated a greater willingness to follow up with instructions that
those ordered arrested be removed from their duties, denied the right
to wear a uniform, or turned over to civilian judicial authorities.


Most recently, five Colombian generals and other ranking officers are
being investigated by the Procuraduria for failing to protect
residents from paramilitary massacres. In July 2000, the Procuraduria
reopened the case against four army Generals and one Lieutenant
Colonel for failing to take appropriate measures to protect the
residents of Puerto Alvira from a May 1998 paramilitary attack. One of
these officers is Brigadier General Jaime Humberto Uscategui, who was
rearrested on July 31, 2000 in connection with the 1997 Mapiripan
massacre. Additionally, an investigation was opened concerning the
former commander of the 5th Brigade, General Alberto Bravo Silva, and
four other officers for failure to act to prevent the August 21-22,
1999 paramilitary massacre in the areas of Tibu and La Gabarra.


The military judiciary demonstrated an increased willingness to turn
cases involving security force officers accused of serious human
rights violations over to the civilian judiciary. The military cites
over 500 such cases since the 1997 Constitutional Court decision;
however, some of these cases involve the police, and many of them
involve criminal activity not directly related to human rights.


Civilian authorities, including the Prosecutor General, have expressed
concern over the number of security force personnel who have escaped
from military confinement while awaiting trial in civilian courts. As
stated in the Department of State's 1999 Country Report on Human
Rights for Colombia, there are a number of cases of Armed Forces
personnel accused of human rights violations that have been
adjudicated in the civilian courts but progress is still insufficient
to permit certification of this provision at this time.


The Government of Colombia is making concrete progress in ensuring
that military personnel credibly alleged to have committed gross
violations of human rights are brought to justice, but continued work
is needed. This should include active cooperation with civilian
authorities in executing outstanding arrest warrants related to human
rights abuses or paramilitary activity; complete sharing of
information with civilian authorities; effective detention of alleged
perpetrators of human rights violations against whom there are arrest
warrants; and, establishment and implementation of effective measures
to protect civilian investigators and prosecutors from threats that
impede their work.


(4) Secretary of State must certify that 'the Government of Colombia
is vigorously prosecuting in the civilian courts the leaders and
members of paramilitary groups and Colombian Armed Forces personnel
who are aiding or abetting these groups. . . .' (Section
3201(a)(1)(C)).


The Colombian military's record in dealing with paramilitary groups
remains inadequate. In some locations, elements of the army have
attacked and captured members of such groups; in others, individual
members tolerated or even collaborated with paramilitary groups. At
the end of 1999, Colombian military and security forces began to
target more aggressively paramilitary forces.


In taking forceful action against paramilitary forces, many of these
armed encounters resulted in paramilitary members' deaths and the
capture over 300 paramilitaries according to 1999-2000 data from the
Statistics Center of the Colombian Ministry of Defense.


The Department of State's 1999 Country Report on Human Rights on
Colombia reports that 'the military judiciary demonstrated an
increased willingness to turn cases involving security force officers
accused of serious human rights violations over to the civilian
judiciary, as required by a 1997 Constitutional Court ruling; however,
concerns about impunity within the military judiciary remain.' The
Fiscalia is also vigorously going after a number of military personnel
for aiding or abetting paramilitaries. Although the Fiscalia is
committed to prosecuting military personnel colluding with
paramilitaries, it remains burdened by competing demands and scarce
resources. Our supplemental aid package will help the Fiscalia deal
with these challenges by augmenting and expanding the recently created
Human Rights Special Unit, and by providing training for judges and
public defenders. The Fiscalia's Human Rights Special Unit is a task
force comprised of more than 100 prosecutors, investigators, and
technicians responsible for the investigation and prosecution of human
rights crimes. Formed in October 1999, this unit has received initial
specialized training in the United States on conducting criminal
investigations of cases involving multiple homicides, bombings, and
kidnappings.


As stated in the Department of State's 1999 Country Report on Human
Rights for Colombia, the Government of Colombia 'demonstrated an
increased willingness to remove from duty security force officers who
failed to respect human rights, or ignored or were complicit in the
abuses committed by paramilitary groups.' Since the August 1997
Constitutional Court ruling, which more narrowly defined the
constitutional provision that crimes by state agents unrelated to
'acts of service' must be tried in civilian courts, the military
judiciary has turned 526 cases of possible human rights violations
over to the civilian judiciary for investigation and possible
prosecution. Among the cases transferred during 1999 were those of
three full colonels -- the first time that the military judiciary
turned over cases concerning several high-ranking officers. However,
some of the cases included in this figure do not involve gross
violations of human rights.


The Government of Colombia is making progress in bringing to justice
paramilitary personnel and armed forces personnel credibly alleged to
have aided paramilitary personnel, but must continue to implement
effective measures to achieve this objective. The Superior Military
Tribunal provided a list of cases transferred from September 1997 to
the present consistent with the Constitutional Court decision of 1997.
That list indicates that, in 1999, 27 cases (involving murder,
deprivation of liberty, personal injury, etc.) were transferred to
civilian courts. In January ' May 2000, 4 such cases were transferred.
In February, the Government created (via executive decree) a
Coordinating Center for the Struggle against 'Self Defense' and other
Illegal Armed Groups. To date, however, this Center has not achieved
tangible results, such as the establishment of a 'Search Block' to
pursue paramilitaries, or the creation of an early warning system to
provide better protection to the civilian population, or the
development of an effective rapid response team to follow up on
investigations of human rights violations by paramilitaries.


The Administration is strongly urging the Government of Colombia to
undertake all necessary measures to eliminate impunity within the
military justice system and to dedicate to the Fiscalia all necessary
resources to permit it to investigate and, as appropriate, prosecute
members of the paramilitary groups or members of the government
security forces who assist them.


(5) Secretary of State must certify that 'the Government of Colombia
has agreed to and is implementing a strategy to eliminate Colombia's
total coca and opium poppy production by 2005 through a mix of
alternative development programs; manual eradication; aerial spraying
of chemical herbicides; tested, environmentally safe mycoherbicides;
and the destruction of illicit narcotics laboratories on Colombian
territory. . . .' (Section 3201(a)(1)(D)).


The Administration does not believe that this criterion can be met.
The Colombian Government in Plan Colombia has set a goal of
eliminating 50 percent of drug crop cultivation within five years
(October 2005). This target is in keeping with the much-heralded
reductions achieved in Peru and Bolivia. A 50 percent reduction is
significant, realistic, and obtainable.


Any plan for total coca and poppy elimination in this time period
would require more resources than are contemplated in Plan Colombia.
As the implementation of Plan Colombia proceeds, it may be possible
for the Government of Colombia to revise its timetable for drug
elimination; this is particularly true for opium poppy elimination.
The Administration has asked the Government of Colombia to determine a
timetable, and an estimate of resources, that would allow it to work
towards a strategy of eliminating coca and poppy production.


With respect to mycoherbicides, we have made clear that the United
States will not support the use of mycoherbicides against the
Colombian coca crop unless three conditions have been met: first, a
rigorous, carefully supervised research and test program in Colombia
determines that mycoherbicides are safe, effective, and superior to
existing chemical eradication methods; second, a broader national
security assessment, including consideration of the potential impact
on biological weapons proliferation and terrorism, provides a solid
foundation for concluding that the use of this particular drug control
tool is in our national interest; and, third, the Colombian Government
agrees with proceeding with the mycoherbicide program.


(6) Secretary of State must certify that 'the Colombian Armed Forces
are developing and deploying in their field units a Judge Advocate
General Corps to investigate Colombian Armed Forces personnel for
misconduct. . . .' (Section 3201(a)(1)(E)).


The military penal reform bill (which became effective August 12,
2000) requires, for the first time, that the military legal system
operate outside and independent of the chain of command. Under this
new penal code, the commanding officer in the field would no longer
conduct criminal trials. Instead, the code provides for the
installation of professional military judges. Criminal investigations
will continue to be conducted by 'judges of instruction,' who in
essence are civilians with legal training. According to the Colombian
Ministry of Defense, the Colombian military is in the process of
establishing a JAG Corps. Given the differences between the U.S. and
Colombian legal systems, the Colombian JAG Corps may differ in
important respects from the U.S. version. The Administration believes
with international support, the JAG Corps will be fully developed and
deployed in the near future.


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