COLOMBIA'S DEBATE OVER MASS DETENTIONS

C O N F I D E N T I A L SECTION 01 OF 04 BOGOTA 004214

SIPDIS

GENEVA FOR DELAURENTIS

E.O. 12958: DECL: 04/01/2014
TAGS: PGOV PHUM KJUS PTER ELAB PROP MOPS CO
SUBJECT: COLOMBIA'S DEBATE OVER MASS DETENTIONS

Classified By: Ambassador William B. Wood for reasons 1.4 (b)
and (d).

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Summary
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1. (C) Some human rights NGOs oppose the GOC's policy of
large-scale detentions. The GOC, however, insists that such
detentions are consistent with legal norms and points out
that between 60 and 70 percent of persons arrested in such
operations remain in custody based on judicially-sanctioned
orders for investigative detention. The government's Office
of the Inspector General ("Procuraduria") has identified
irregularities in some mass detentions, but claims it has
successfully intervened to solve these problems without
opposition from other GOC entities. Partly because the GOC
has shown that the state can effectively police itself in
these cases, a senior ICRC official in Colombia (strictly
protect) told the Embassy he believes the GOC's use of
large-scale detentions are not arbitrary. Several case
studies reveal that despite the legal complexities of
detentions, their imperfect results, and the adverse
publicity they often generate, they are one of the most
effective tools the GOC has to isolate and incapacitate
paramilitary and guerrilla terrorists. End Summary.

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The Debate over Mass Detentions
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2. (U) The GOC's "Democratic Security Policy" and its use of
large-scale detentions to ferret out terrorists operating
clandestinely among the civilian population have come under
heavy criticism from political opponents and human rights
groups. President Alvaro Uribe has stood by the practice,
stating during his recent trip to Europe that large-scale
detentions are a key component of the GOC's "strategy for
isolating terrorists, with the aim of condemning them to live
in woodland hideouts, feeding on roots."


3. (U) Some Colombian NGOs have linked the practice to other
GOC security initiatives such as the hometown soldier program
("soldados campesinos") and the informants network that they
allege improperly involve civilians in the internal armed
conflict. They also accuse the Government of using mass
detentions to punish the political opposition, and claim that
detainees subsequently face higher risks of violence for
allegedly being terrorist -- or government -- collaborators.
On February 18, a group of Colombian NGOs issued a report
that claimed that 90 percent of mass detentions were
arbitrary. According to the Committee in Solidarity with
Political Prisoners (CSPP),which focuses on the rights and
treatment of persons detained for politically motivated
crimes, particularly rebellion and subversion, 4,846 people
accused of collaborating with guerrillas were detained in
large-scale detentions in 2003. The CSPP characterized 3,939
of these detentions as "arbitrary" and claimed that 3,750 of
these detainees were released for lack of evidence. The NGO
report also criticized the use of information received from
confidential informants to justify the detentions.

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4. (U) GOC numbers for large-scale detentions are
significantly lower than CSPP estimates, largely because of
the time differences (hours vs. days for example) in how a
"detention" is defined. However, GOC numbers' themselves
confirm NGO claims that many persons arrested in mass
detentions were soon released. According to the Prosecutor
General's Office ("Fiscalia"),of 1,264 persons arrested in
31 mass detentions, 414 have been released. NGOs cite this
fact as additional evidence that the detentions were
arbitrary. However, according to the Fiscalia, the arrests
were the result of careful planning that targeted specific
individuals. The Fiscalia continues to gather evidence
against the 850 persons arrested in these detentions who
remain in custody, but only 53 of whom have been formally
indicted.

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Mass Detentions and the Colombian Judicial System
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5. (U) According to a 1994 Constitutional Court ruling,
non-judicial authorities are permitted to "materially
apprehend a person under certain circumstances and with
certain formalities, without first obtaining a judicial
order." The ruling states that such detentions must be based
on reasonable evidence, warranted by exigent circumstances,
limited in time and scope, consistent with principles of
fairness and equality, and subject to habeas corpus. The
recently approved anti-terrorism statute, which has yet to
face Constitutional Court scrutiny, permits members of the
security forces to make provisional arrests, with or without
prior judicial approval, in cases related to terrorism.


6. (U) In Colombia, anyone detained by government authorities
must be brought before a senior prosecutor within 36 hours of
his or her detention. The hearing must take place in the
presence of the detainee's attorney or a court-appointed
public defender. The senior prosecutor is required to rule
on the legality of the detention within an additional 36
hours and decide whether the case merits formal
investigation. If an investigation is warranted, the case is
assigned to a different prosecutor and a formal investigation
begins. Otherwise, the detainee is released.


7. (U) Colombia's legal system divides judicial proceedings
into various stages, each of which should be completed within
a limited period of time, which varies according to the
alleged crime and the number of persons under investigation.
If a formal investigation is not completed within the
prescribed time limit, a suspect must be released. Upon
completion of the investigative stage, in which prosecutors,
police, the Inspector General's Office ("Procuraduria"),and
the defense all have a say, the prosecutor assigned to the
case decides whether it should go to trial. Trial consists
of two phases: 1) presentation of evidence by all parties;
and 2) verdict and sentencing. Both of these phases must
also be completed within prescribed time limits.

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ICRC: GOC Complying with Human Rights Norms
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8. (C) According to Max Furrer (strictly protect),Protection
Coordinator for the Colombia office of the International
Committee of the Red Cross (ICRC),although arrests have
occurred on a large scale, the ICRC does not consider them
arbitrary. According the ICRC's understanding of
international humanitarian law (IHL),an arbitrary detention
occurs when there is no arrest warrant or right to habeas
corpus. However, Furrer said, most persons arrested during
these detentions had outstanding arrest warrants, while
others were held based on evidence gathered at the scene or
shortly thereafter. Persons against whom credible evidence
could not be found were released within a reasonable time.
Furrer recognized that targeted groups operate clandestinely
within the civilian population in areas where the government
is trying to re-assert state control.


9. (C) Furrer said government authorities in any country have
a right to ask for a person's identification and even detain
persons temporarily if they suspect they are involved in
criminal activities. If innocent detainees are released
within a reasonable period of time, due process has been
respected and detentions should not be considered arbitrary.


10. (C) From Furrer's perspective, mistreatment of detainees
has not increased as a result of mass detentions. Furrer
said that mistreatment of prisoners and detainees in Colombia
was not systemic or gross, but rather the result of
occasional heavy-handedness by police, soldiers, and prison
guards. Furrer also said the GOC does not carry out
large-scale detentions to target organizations or individuals
for political reasons.

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Inspector General Remedying Irregularities
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11. (U) Colombian Inspector General ("Procurador General")
Edgardo Maya acknowledged in a public report that the
security forces have made mistakes during large-scale
detentions, primarily related to an absence of arrest
warrants and other violations of judicial guarantees. For
example, following Operation "Cafe," conducted in October
2003 in the towns of Anserma and Riosucio, Caldas department,
the Inspector General's Office requested and obtained the
release of 51 of 95 detainees because no arrest warrants had
been prepared against them. According to the Inspector
General's Office, 754 of 1,957 persons detained for the
crimes of rebellion, conspiracy, and/or narcotics trafficking
between January 2003 and February 2004, or 38 percent of all
detainees, were released because of procedural
irregularities. The Inspector General said, however, that
his office has successfully intervened to protect citizens'
rights in all cases in which such irregularities have arisen,
without opposition from other government entities.

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Case Studies
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12. (U) Several examples can help clarify the nature of mass
detentions and the circumstances under which they occur.

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Cartagena del Chaira, Caqueta Department
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13. (U) On September 6, 2003, soldiers and police surrounded
the town of Cartagena del Chaira, Caqueta department, and
"rounded up" nearly 600 people. Residents complained that
the operation was indiscriminate and that police arrived with
incomplete search and arrest warrants that they filled in
during the day based on evidence from unidentified
confidential informants. However, according to the Fiscalia,

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prosecutors had 95 completed arrest warrants, 74 of which
were successfully executed against alleged members of the
Revolutionary Armed Forces of Colombia (FARC). Edelberto
Diaz, former director of the Department of Administrative
Security (DAS) in Caqueta department and current assistant
director of investigations in Bogota defended the detentions,
emphasizing that all detainees were formally processed at the
prosecutors' office and all those ultimately arrested had
outstanding warrants. He said the town's residents were
temporarily detained both for security reasons and to verify
their identities.


14. (U) On September 29, the Fiscalia issued investigative
detention orders ("medidas de aseguramiento") against 67
detainees for the crime of rebellion and released seven
others. On December 23, the Fiscalia issued investigative
detention orders against 12 other town residents with
outstanding arrest warrants who were not detained during the
September 6 operation. Outstanding arrest warrants against
another nine suspects not found that day were rescinded. On
January 11, twelve detainees were released based on
exculpatory evidence. As of March 15, the rest of the
original detainees remained in the custody of the Fiscalia.

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Saravena, Arauca Department
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15. (U) On November 12, 2002, GOC authorities, including
representatives of the local human rights unit of the
Fiscalia and members of the Colombian National Police (CNP),
Colombian Army Special Forces, and the Colombian Army's Third
Mobile Brigade, detained 85 persons in a series of
coordinated raids in the town of Saravena, Arauca department.
Detainees were temporarily held in a soccer stadium while
authorities confirmed their identities. The Fiscalia says
detainees were held in the stadium because officials could
not process them safely on city streets. Saravena, one of
Colombia's most violent cities, is home to many FARC and
National Liberation Army (ELN) sympathizers and clandestine
operatives. Civilian prosecutors throughout Arauca,
including Saravena, live and work on military bases for their
own protection and do not leave them without protective
details. Ten detainees were confirmed to have outstanding
arrest warrants for alleged membership in the FARC's 10th
Front and 33 others were linked to ELN urban units. The
following week, 43 detainees were transferred to Bogota for
investigation by the Fiscalia's Anti-Terrorism Unit. All
other detainees were released.


16. (U) Prosecutors indicted 37 detainees, but because all
were charged with rebellion -- a crime normally heard in a
lower court (cases such as terrorism and narcotics
trafficking are heard in higher courts located in department
capitals and Bogota) -- the cases were assigned to a local
judge in Saravena. In November 2003, the Fiscalia convinced
the Colombian Supreme Court to return the case to Bogota
because the presiding judge in Saravena could face undue
pressure from local guerrillas. However, delays caused by
Arauca judicial authorities forced the newly-assigned
presiding judge in Bogota to order the release of all 37
prisoners in early February because the prescribed time limit
for that stage of the judicial process had elapsed. Although
the case continues, all the accused have disappeared and it
is unlikely authorities will re-arrest many of these
fugitives in the foreseeable future. The Inspector General's
Office is investigating events that led to the prisoners'
release.

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Cucuta, Norte de Santander Department
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17. (U) From December 9-13, 2003, prosecutors from the
Fiscalia's national Human Rights Unit in Bogota, supported by
elements of the CNP and the Fiscalia's Corps of Technical
Investigators (CTI),executed 30 arrest warrants against
paramilitaries in Cucuta, Norte de Santander department,
suspected of scores of murders and other human rights
violations, including the May 2003 disappearance of a CTI
investigator and the October 2003 murder of the husband of
the Fiscalia's departmental director. The Fiscalia ordered
the investigative detention of 25 of the detainees after
releasing five others for lack of evidence. Seven other
presumed paramilitaries were subsequently arrested based on
testimony from cooperative detainees. All 32 suspects remain
in custody pending completion of investigations against them.

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Comment: Detentions Large-Scale, but not Arbitrary
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18. (C) The GOC's policy of so-called "mass detentions,"
although controversial and imperfect, has captured hundreds
of FARC, ELN and paramilitary terrorists and support
personnel. Although irregularities have occurred during
large-scale judicial operations, the government, through the
Office of the Inspector General, has worked to police itself.
But far too many prisoners remain in custody without
adequate, timely resolution of their cases. We will continue
to urge the GOC to better target arrests on the one hand, and
to move them more rapidly through the judicial process on the
other.
WOOD