War In So Many Words: Semantics, Warfare, and the Hague

Most politicians have a few words or phrases that they avoid like the plague. In the latter years of his second term, George W. Bush’s was “recession.” Former Colombian president Álvaro Uribe’s was “armed conflict.” He said it time and again: “There is no armed conflict in Colombia.” There are terrorists and drug traffickers and “criminal bands,” but paramilitaries and revolutionaries are a thing of the past.

Unfortunately, wishing doesn’t make it so. A friend from Santa Marta once remarked to me that the only people who believe there’s no armed conflict in Colombia are Uribe’s yes-men. Paras actively engage in forced disappearances, displacement, and atrocities in the Sierra Nevada de Santa Marta, the world’s tallest coastal mountain range that provides the backdrop to one of the Caribbean’s prime tourist spots. The Aguilas Negras routinely carry out “social cleansing” in poor neighborhoods of major cities, including the capital of Bogotá—and yes, the reality is just as ugly as the euphemism. The Colombian attorney general’s office has reported that some eighty percent of the so-called “new criminal bands” are led by former paramilitaries. To this day, Mr. Uribe insists that there is no warfare in Colombia: Only lots and lots of criminals.

It’s quite the conundrum, from the perspective of international law: Namely, if it’s not armed conflict, how could Uribe justify the use of the military in bombing raids against FARC encampments, including 2008’s strike into Ecuador? The international community’s pretty clear on its disapproval of bombing civilians. Definitely a “go straight to jail, do not pass GO, do not collect $200” scenario.

Even speaking domestically, it’s clearly a gross violation of due process, depriving members of the FARC and other rebel groups—who don’t have belligerent status according to Uribe—of life and liberty without trial. Colombia, it should also be noted, does not allow for capital punishment.

Current President Santos is either quite astute or has some very sharp people working for him. The language of his Ley de Victimas—“The Victims’ Law,” which provides for reparations for victims and their families—specifically labels the nation’s decades-long blood-hurricane as “armed conflict.” Suffice it to say, Mr. Uribe’s less than thrilled and has been very outspoken on the matter. (To give credit where due, former US president Bush understands that the job of retired heads of state is to keep their opinions of their successors to themselves.)

Santos’s justification was succinct: “If we say that there’s no internal armed conflict… [former] President Uribe and he who was his Minister of Defense, now President of the Republic… will go straight to prison.” The President of the Republic has acknowledged what Colombian and international jurists have known for some time: bombing and/or machine-gunning civilians (albeit heavily-armed, felonious civilians) is a crime. They could find themselves at the Hague standing trial for atrocities.

Uribe dismissed it with his customary blasé attitude, a Bush-esque “ends justify the means” approach that seems to indicate that he doesn’t understand, or more likely, doesn’t care about, the gravity of the situation. His fear is that granting belligerent status to illegal armed groups will validate and legitimize them, putting them on the same level as the Colombian armed forces.

It’s by no means legitimizing the FARC or other rebel movements, according to Santos. Instead, it allows Colombia to bring its full might to bear without violating international law. Santos stated his desire plainly: “What I want is for the whole world to understand very well that, under international law, a country and its fuerza pública [literally: public force; a Spanish term for a nation’s military and police forces] can operate under the umbrella of International Humanitarian Law, which presupposes an internal armed conflict.”

President Santos is correct: Without recognition of belligerence, Colombian authorities have been systematically engaging in war crimes by intentionally targeting civilians. At that point, the concept of “just war” is irrelevant; a just war (if there is such a thing) has to be waged in accordance with certain standards.

Broken Chains, Spanning a Continent

Colombia’s Supreme Court ruled that evidence collected during the 2008 “Operation Phoenix” is inadmissible in the nation’s courts. As with so much regarding the internal conflict, it comes as a surprise only to the Colombian government.

“Phoenix” was a cross-border bombing raid into the jungles of Ecuador in March 2008. The strike’s target was a FARC encampment, home to “Raúl Reyes” (real name: Luís Devia Silva; spokesperson for the guerrilla movement and member of the group’s Central High Command) and his not-so-merry men.

The raid touched off a diplomatic firestorm between Colombia’s completely unapologetic then-President Uribe and his Venezuelan and Ecuadorean counterparts. It turns out that Ecuadoreans were quite upset about having their airspace and sovereignty violated, their soil and even citizens bombed, and their territory invaded by foreign troops. That kind of conduct is generally considered in international relations circles to be, at best, horribly rude and at worst an act of war.

In the aftermath, Colombian military personal recovered evidence from the ruins of the guerrilla bivouac, including USB flash drives and laptop computers. The files found on the recovered equipment were used in criminal proceedings against politicians and even a Chilean national currently on trial in his native country and awaiting extradition to Colombia for his involvement with the FARC.

Until recently, that is.

The Chilean Supreme Court suspended the proceedings against Manuel Olate, and numerous criminal proceedings have come to a screeching halt due to the Colombian high court’s ruling.

It all comes down to the concept of “chain of custody.” In practical terms, it means that evidence can only be used in a criminal process when it’s been collected, stored, transported and transferred in accordance with a jurisdiction’s laws. Any disruption in the chain of custody creates the possibility for interference that could adulterate, alter or destroy the evidence in question, which in turn could affect the outcome of a trial. It’s why evidence lockers are so tightly controlled and why the police don’t give tours of active crime scenes.

To make a long story short, the Colombian Armed Forces stomped all over due process during Operation Phoenix. The evidence was collected:

• By military personal who lacked law enforcement powers and authorization to do so,
• In an area where Colombia has no jurisdiction of any kind,
• Without a warrant,
• And without the knowledge, consent or participation of the Ecuadorean government or the relevant law enforcement authorities.

To be fair, the Colombian government turned over the data to Interpol for independent verification, and that entity declared that it had found no traces of manipulation.

From a chain-of-custody/due-process perspective, though, there are two problems with this:

1. Interpol found no signs of tampering. That could mean that no one had fiddled with the bits, or it could mean that the transgressor(s) hid their tracks very, very well.
2. Interpol is not a Colombian national institution.

The Supreme Court made the right call: Even if the Raul Reyes laptops hadn’t been manipulated and had been certified as such, they would still be fruit of the poisonous tree; that is, the result of an illegal search. And it wouldn’t be beyond the realm of possibility for a cynic that the Colombian military—rarely an organization to get caught up in existential ethical conundrums over rights personal, civil or human—would contemplate or carry out evidence tampering.

Due to a broken chain of custody, the veracity of the evidence can be neither confirmed nor trusted. Without chain of custody, there can be no proof—and without it, no justice.

Letting Facts Speak for Themselves: Press Coverage of High-Profile Felons

The headline on the full page piece in El Tiempo proclaims, "MARIO URIBE, THE END OF A CHIEFTAIN." A photo of the subject occupies about a fourth of the sheet, showing him with hands clasped in front of him in an almost beatific pose. The caption informs distraught readers that he ranked as "one of the most influential politicians in Antioquia in recent years."

A quotation sidebar illustrates Mr. Uribe's character and career as a civil servant. A fellow legislator notes that "he was a serious leader in Antioquia. In the rancher's union, he always enjoyed great acceptance," and the author tells us, "…His friends and family recognized a strong and lordly character."

The article measures 22 paragraphs; over half are dedicated to Mr. Uribe's education, personal life, early professional endeavors and political career. Non sequiturs such as, "Like all Uribes, he loved fine horses," put a human face on this electoral titan.

The obvious conclusion, from the author's admiring tone and glowing summary of a life lived to the fullest, is that the piece is an ode, a eulogy—from the Greek for "praise."

The piece features precious little in regard to the actual point of the article, stated clearly in the subhead: "This week the Court sentenced him to 7 years and 6 months' incarceration." Only in the second-to-last paragraph does a reader learn why this great man is suffering the slings and arrows of outrageous fortune (at the hands of the Colombian justice system): concierto para delinquir agravado, or "aggravated conspiracy to commit crimes".* That is, he worked with paramilitaries to ensure political influence.

Rather than offering the who/what/when/where/why, El Tiempo has opted for an homage to the convicted. While there's nothing wrong with presenting another side of one found guilty, it behooves a writer, and the paper they write for, to write a balanced piece. One has to wonder where it all comes from. The story of one politician's corruption and ties to Very Bad Men reads as a footnote, an afterthought, rather than the entire point.

Is the reporter a hardcore Uribista, one of many, who believes that the Uribe clan can do no wrong? Is the editorial team facing political pressure from the Uribes or from higher up the totem pole? After all, the family of current President Juan Manuel Santos—Alvaro Uribe's handpicked successor—did found the paper and still maintains considerable influence. Or did no one care enough to do the right thing, journalistically speaking? Extricating one factor from the rest is a Sisyphean task… and ends up a moot point.

Colombia—and other nations saddled with similar social, economic and political situations—have to create a free press willing to print the news and raise hell, regardless of threats, bribery and disapproval from those in power. News outlets such as El Tiempo play an essential role in shaping the national discourse, as well as the public's perception of the national social reality. It's an immense responsibility, and it's all too easy to abuse or, in the case of ET's coverage of Mario Uribe's legal troubles, to shirk entirely.

It is, however, part and parcel of the job. If you don't like it, if you can't handle the pressure, you are, I'm afraid, in the wrong line of work.

Send lawyers, guns and money,

J.

*For those with a US or English legal background, this probably doesn't make a whole lot of sense. Translated from the Wikipedia article: "Conspiracy to commit crimes is, in Colombian criminal law, a criminal offense that was established to take measures against offenses such as kidnapping, the formation of ilegal armed groups, terrorism, and extortion, among others. It occurs when two or more persons meet or conspire to observe an agreement or pact that has as its purpose the organization of said individuals in a society or group with criminal ends, without being specified what type of offenses will be committed, the time and place, or against who or what they will aggress, but what will be its principal activity: committing crimes.