Victims’ rights in the face of extradition

Victims’ rights in the face of extradition

Originally published in Spanish in:

The extradition of Dairo Antonio Úsuga David, alias “Otoniel,” head of the Gulf Clan, to the United States for drug trafficking is imminent. The process has already been approved by the Supreme Court of Justice and the order that places “Otoniel” at the disposal of US federal agents has been signed by President Iván Duque. The decision is a serious blow to the rights of his Colombian victims.

Extradition may be requested, granted or offered to Colombians by birth in accordance with public treaties and, failing that, with law, for crimes that have been committed abroad, considered as such by Colombian legislation. Extradition does not proceed for political crimes, nor to minors, nor for acts committed prior to Legislative Act 17 of December 1997 which allowed extradition.  According to the Minister of Justice, Wilson Ruiz, 35 Colombian citizens have been extradited to the US this year.  In 2019 there were 163 extraditions and in 2020 there were 135.

There is no doubt that “Otoniel” is a criminal. But while the U.S. seeks to prosecute him for drug trafficking, in Colombia he faces at least 122 arrest warrants for serious human rights violations against Colombians, including homicides, forced disappearances, forced displacement and illegal recruitment of minors. U.S. authorities will not investigate or prosecute him for these crimes. This is known from the bitter experience with the paramilitaries extradited to the U.S., including the 14 postulated paramilitary leaders of the Justice and Peace Law (Law 975 of 2005), whose extradition was authorized by the government of Álvaro Uribe Vélez in May 2008. At the time, this decision was seen as a maneuver or “little play” to favor impunity and export the truth, putting at risk the rights of the victims to justice, truth and reparation. And so it turned out to be to a large extent.

That is why Otoniel’s victims have spoken out against his extradition because they have lost hope of knowing the truth. On April 19 and 20, when “Otoniel” gave his version in the “macro case” of the so-called “false positives” before the Special Jurisdiction for Peace, in the presence of victims’ organizations, he confessed to having participated in the Mapiripán massacre in 1997.  He accused several active duty generals of being on the payroll of the Clan del Golfo (Gulf Clan). He accused General Mario Montoya of receiving perks from the organization and General Leonardo Barrera Gordillo of allying with them to commit massacres. He added that the former governors of Meta, Casanare, Guaviare and Antioquia, a former mayor of Medellín, and some contractors and companies have links to the paramilitaries and of receiving 5 percent of the contracts.

The reality is that the extradition of persons accused of serious human rights violations is in itself another violation of the rights of victims enshrined in various international norms.

On the participation of victims in criminal proceedings, the Rome Statute of the International Criminal Court; the Optional Protocol to the Convention on the Rights of the Child; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, supplementing the United Nations Convention against Transnational Organized Crime; the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law; and the updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity.

With respect to the recognition of the right of access to justice for individual or collective victims, the right to an effective remedy, including the right to an investigation, is contemplated. To be effective, victims must be treated with respect, and must be able to assert their claims, that is, to be heard publicly and with due guarantees by a competent, independent and impartial tribunal, established by law.

The State must also guarantee the right to an effective and adequate remedy in the criminal justice system to individual or collective victims.  This means that victims must be able to take the initiative in the prosecution as a civil party or its equivalent; that victims or their relatives have access to documentation and evidence, and can propose and obtain the appearance of witnesses; provide them with evidence; question or challenge witnesses and evidence presented by the defense; challenge and appeal judicial decisions, including the final sentence. Understood in this way, the right to justice contributes to the satisfaction of the right to truth and underpins the right to reparation.

None of this is possible when the accused is extradited.

These elements of the right to justice have been confirmed by the Inter-American Court of Human Rights, IACHR.  In the Case of Ximenes Lopes v. Brazil, Judgment of July 4, 2006, the Court has said that at all stages of criminal proceedings -both investigative and trial-, the victims or their relatives must be guaranteed full access and capacity to act, and have ample procedural opportunities to formulate their claims and present evidence, both in the clarification of the facts and the punishment of those responsible, as well as in the search for fair compensation.

Colombian victims achieved the prevalence of the prosecution of serious human rights violations over other crimes such as drug trafficking and that extradition is not the mechanism of impunity in two cases litigated by the undersigned as a member of the José Alvear Restrepo Lawyers’ Collective, CAJAR.

In the Mapiripán Massacre v. Colombia, the Inter-American Court of Human Rights established the prevalence of the prosecution of serious human rights violations over other crimes and that extradition cannot be a mechanism for impunity; it urged the establishment of judicial cooperation mechanisms between Colombia and the United States to ensure that the extradited person continues to collaborate with the Colombian justice system and called for extradition not to interfere or hinder investigations of serious human rights violations that have occurred in Colombia.

In the case of Manuel Cepeda Vargas v. Colombia in May 2010, the Court reiterated that the use of extradition should not favor, seek or ensure impunity and added that the Colombian State is obliged to “adopt the necessary measures to ensure that persons involved in serious human rights violations appear before the Colombian justice system.”

It should come as no surprise why the extradition of “Otoniel” is suspected to be motivated by the imperative to silence him. This fear had already been aroused by the efforts to obstruct his interview with the Truth Commission in February and the subsequent theft of information. By favoring the extradition of Colombians for drug trafficking over the right of the victims to know the truth, the government of President Iván Duque favors the northern country over its own people and once again violates international treaties and instruments that are part of the constitutional block, Article 93 of the Constitution and the decisions of the Inter-American Court of Human Rights that are binding for our country. The only positive thing that can be said about this erroneous decision is that the victims of “Otoniel” warn that they will continue to fight to know the truth and achieve justice.

See here two documents on extradition and dismantling of paramilitarism.

Originally published in Spanish in:

Rafael Barrios Mendivil
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