UC Berkeley School of Law

Human Rights Atrocities Still go Unpunished in Colombia

The recent acquittal by a Bogotá court of General Jaime Humberto Uscátegui, the highest ranking military official ever prosecuted for human rights violations, shows that Colombia's justice system continues to let the worst perpetrators go free.

Mired in a 50-year civil war and plagued by drug trafficking, Colombia boasts some of the world's most ruthless criminals. Many of them are what one would expect: drug runners, paramilitary thugs, guerilla warlords. But many others appear to be model citizens -- senators, generals, judges -- who, by turning a blind eye, lifting a checkpoint, or providing a list of names, facilitate unspeakable atrocities. General Uscategui is such a man. In 1997, over 50 residents of Mapiripán, a small village in southern Colombia, were tortured for days, hacked to death and thrown into a nearby river. Uscategui could have stopped the massacre -- but chose not to.

I represented the families of victims of the Mapiripán massacre before the Inter-American Court of Human Rights, which found extensive evidence of General Uscátegui's complicity. The paramilitaries reached the massacre site via an airport under Uscátegui's command. The General's troops helped the paramilitaries pass through several security checkpoints on the road to Mapiripán.

General Uscategui knew about the massacre even as it took place. One of his subordinates, Major Hernán Orozco, informed General Uscátegui that paramilitaries had entered the village and had begun to detain and torture its residents. Uscátegui ignored the warning and allowed the massacre to continue for five more days.

He then attempted to cover up his role. He ordered Orozco to falsify the documents showing he had received word of the massacre.

The Bogotá court gave Orozco, the whistleblower, a 40-year sentence. The general threatened to reveal everything he knew about the collaboration between military and paramilitary forces and walked free.

The Uscátegui decision leads to painful conclusions regarding human rights and the rule of law in Colombia. Mapiripán has come to symbolize army collusion with paramilitary death squads. An international tribunal found Colombia responsible for the massacre, while the U.S. State Department mentions the case each year in its human rights report. The Colombian Public Prosecutor's office, strengthened by millions of dollars in U.S. assistance, put one of its best men on the case. The evidence appeared irrefutable.

If ever a military general were to be held accountable for colluding with paramilitaries, this was the moment. Nevertheless, Uscátegui walked. If justice can be denied to the widows and orphans of Mapiripán, there would appear to be little hope for the multitude of victims whose cases will never arrive onto the pages of an international newspaper or the desk of a foreign ambassador.

At the start of this decade, a series of crusading human rights prosecutors combated impunity, only to be undercut by their superiors and forced, one by one, into exile. Today, courageous Colombian Supreme Court investigators are unraveling links between politicians and paramilitary groups, but they have been criticized and intimidated by none other than President Alvaro Uribe himself. Meanwhile, press reports indicate that, upon hearing of General Uscátegui's acquittal, the Commander of the Colombian Army rushed to offer him the military's facilities for a celebratory press conference.

Colombian government officials and the Bush Administration argue that Colombia is making strides in protecting unionists and prosecuting human rights violators. But despite the work of a courageous few, Colombia has failed to prosecute those responsible for murder, torture, and other abuses during the country's ongoing civil war. The country remains the most dangerous place in the world for trade unionists, with 98 percent of unionist murders going unpunished. Colombia's atrocious human rights record has led members of Congress to block a proposed U.S.-Colombia free trade agreement.

The justice system still has a chance to overturn Uscategui's acquittal. Washington should watch these proceedings closely and remain skeptical about grand claims of progress on human rights in Colombia.

Should Tobacco Companies Be Required to Reduce Their Number of Customers?

If tobacco companies were required by law to sharply reduce their number of U.S. customers, we might finally rid our country of the scourge of smoking. It's a bold idea that merits a closer look.

The traditional public health strategy is to order tobacco companies to do things like put warnings on their packages or stop advertising on billboards in the hope that this would reduce smoking rates.

But U.S. Senator Mike Enzi, R-Wyo., has proposed a tobacco-control plan that cuts to the chase and simply orders companies to get fewer people to smoke. With roots in the regulation of power plant emissions and the educational reform act known as No Child Left Behind, Enzi's idea is that government would set performance goals for tobacco companies to meet. Instead of conventional "command and control" regulation -- in which government regulators tell people what to do -- under "outcome-based regulation," government tells them what to achieve.

How would tobacco firms comply? They could raise prices, promote cessation aids, sell nontobacco competitive products or innovate in ways we can't imagine. What to do and how to do it is their decision to make.

Under the senator's plan, tobacco companies would be required to reduce their U.S. customer base by approximately 90 percent over two decades. At the end of that period, our country could be down to an incredibly low smoking rate of about 2 percent, an ambitious target. Companies that failed to meet performance goals would face whopping financial penalties, making it fiscally more attractive for them to lose smokers than to gain new ones.

As bold as it sounds, Enzi's idea of imposing outcome-based regulation on cigarette companies is not entirely new. It surfaced as part of the never-enacted "Global Settlement" of tobacco litigation to prevent teen smoking in the late 1990s. It re-emerged in testimony presented by the Department of Justice in its racketeering case against the tobacco industry. But once the Bush administration took control of the case, the idea of outcome-based regulation was dropped.

Certain tobacco-control measures have proven to be effective -- increased cigarette taxes, bans on indoor smoking and harsh "counter-ads" that disparage the tobacco industry -- all of which have been adopted in California. Yet even here the impact of such tactics may have peaked.
Social norms may continue to evolve against smoking without further governmental intervention. But leading anti-smoking advocates are not content to wait. Most support a bill that would give the Food and Drug Administration regulatory authority over tobacco products. But there has been grumbling within the tobacco-control community about this bipartisan effort lead by democrats -- Sen. Edward Kennedy, D-Mass., and Rep. Henry Waxman, D-Calif. Dissenters consider the proposed bill flawed and inherently suspect, given its support by tobacco giant Philip Morris.

Other anti-smoking advocates call for increasing the federal tobacco tax, a strategy included in the congressional plan to expand the federal health insurance program for children in low- and middle-income families. But this law ran afoul of a presidential veto that supporters seem unable to override. And in California, voters recently nixed a sharp increase in cigarette taxes proposed in a ballot initiative.

Enzi's idea deserves bipartisan support. It establishes a laudable public health goal and forces business to take responsibility for achieving it. It does not impose anything that can be called taxes (at least not if tobacco firms do their jobs right). If Congress does not move on the Enzi proposal, the idea could be adopted by California. Gov. Schwarzenegger and the legislature could team up to commit the tobacco industry to reduce the smoking rate in our state below 10 percent by 2012, a reduction of one percentage point per year.

Dramatically reducing smoking rates is one of the greatest public health steps we can take to prevent the more than 400,000 annual deaths caused by smoking.

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