**Testimony of Maria McFarland Sánchez-Moreno, Esq.**

**Senior Americas Researcher, Human Rights Watch**

**February 12, 2009 Hearing on *Examining Workers' Rights ***

***and Violence against Labor Union Leaders in Colombia***

**United States House of Representatives**

**Committee on Education and Labor**

![](media/image1.wmf){width="1.4013888888888888in"
height="1.71875in"}Mr. Chairman, Committee members:

I am honored to appear before you today. Thank you for your invitation
to address the situation of workers' rights and violence against trade
unionists in Colombia.

I am the Senior Americas Researcher at Human Rights Watch, where I have
been covering Colombia for several years. I frequently travel throughout
different regions of the country to conduct research and interviews with
a wide array of sources, and I have written numerous reports and public
documents about the horrific abuses committed by left-wing guerrillas,
paramilitary groups, as well as the armed forces in Colombia.

Despite the rosy picture of the human rights situation that is often
painted by Colombian government officials, Colombia to this day presents
widespread human rights abuses, including extrajudicial executions of
civilians, enforced disappearances, kidnappings, use of child soldiers
and antipersonnel landmines, extortion and threats. More than 3 million
Colombians are internally displaced, having been forced to flee their
homes due to the violence.

**Violence against Trade Unionists**

One of the issues I monitor closely in Colombia is the plight of
Colombia's trade unionists. Over the last couple of decades, Colombia's
unions have suffered extreme violence, mostly at the hands of right-wing
paramilitary groups that have deliberately targeted unions.

In fact, Colombia has the highest rate of trade unionist killings in the
world. According to the National Labor School (*Escuela Nacional
Sindical* or ENS), Colombia's leading organization monitoring labor
rights, 2,694 unionists have been killed since 1986, the year the ENS
started recording the rate of killings. In addition, some 4,200
unionists have reported receiving threats.

The rate of yearly killings has fluctuated over time, increasing
dramatically in the 1990s, when paramilitary groups were rapidly
expanding throughout the country, and then dropping again between 2001
and 2007.

This reduction may be explained by many factors, including the
consolidation of paramilitary control in many regions of Colombia
starting around 2002, as well as the establishment of a protection
program---partly funded and supported by the United States---for
threatened union leaders.

But according to statistics maintained by ENS after dropping to 39 in
2007, the number of killings of trade unionists has increased once
again, to 49 in 2008. This represents a 25% increase in the number of
killings compared to 2007. Of those killed in 2008, 16 were union
leaders. In addition, the ENS recorded 485 threats against trade
unionists in 2008, almost twice the number---246---recorded the previous
year.

The national government also recorded a substantial increase in trade
unionist killings in 2008, going up from 26 in 2007 to 38 in 2008. The
official statistics are lower than the ENS numbers because of differing
definitions of who counts as a trade unionist, among other reasons. The
Office of the Attorney General of Colombia (the Fiscalía), however, uses
numbers that are closer to the ENS's, reporting 42 trade unionist
homicides in 2008.

Some commentators---including the Washington Post's editorial
page---have sought to downplay the gravity of the problem by arguing
that it is safer to be "in a union than to be an ordinary citizen,"
noting that the rate of unionist killings is lower than the national
homicide rate. But this rhetorical claim compares apples and oranges:
the supposedly "ordinary" citizen includes many people at unusually high
risk of being killed, including drug traffickers, criminals, and people
living in combat zones, which skew statistical results. The national
homicide rate (33 per 100,000 in 2008) is exactly the same for all these
people as it is for civilians in the safest neighborhood in the capital,
Bogota.

Such loose comparisons fluctuate easily: for example, as explained
recently by Colombian political analyst Claudia López, if instead of
looking at the rate of unionist killings, one looks at the rate of
killings of union leaders for 2008, one finds that the homicide rate for
union leaders in 2008 was approximately 48 per 100,000. In other words,
union leaders are about 50% more likely to be killed than the supposedly
"ordinary" citizen. López also points out that just looking at raw
numbers, one finds that in 2002, 2003, and 2004, more trade unionists
than police officers were killed each year in Colombia.

Setting aside the statistical discussion, it's important to bear in mind
that trade unionists are not random victims who are being killed
accidentally or in crossfire.

While some of the killings are attributable to the military, guerrillas,
or common crime, by far the largest share of the killings ---based on
the information compiled by the Office of the Attorney General as well
as analyses by the ENS---are attributable to paramilitaries, who view
labor organizing as a threat to their interests, and who stigmatize
unionists as guerrilla collaborators. For example, the New York Times
described in one article last year how a unionist was forcibly
"disappeared," burned with acid and killed after he participated in
protests against paramilitary violence in March 2008. Such targeted
killings---unlike common crime---have a profound chilling effect on
workers' ability to exercise their rights.

**Impunity**

An important factor perpetuating the violence is the overwhelming
impunity in these cases. The Office of the Attorney General reports that
from 2001 to this day, there have been 171 convictions in 130 cases of
anti-union violence. Of these, 151 convictions are for homicides, while
20 are listed as being for other crimes.

This number reflects a substantial increase in yearly convictions
starting in 2007, when the Attorney General's office established a
specialized group of prosecutors to reopen many of the uninvestigated
cases. Between 2002 and 2006 the rate of convictions fluctuated between
7 and 12 per year. Then, in 2007, they jumped to 44, and they went up
again, to 76, in 2008.

Yet as the Colombian Commission of Jurists, a prominent Colombian human
rights group, pointed out in a letter to Chairman Miller this week, 96
per cent of all trade unionist killings remain unsolved. At the current
rate of convictions, it would take approximately 37 years for the
prosecutors to get through the backlog.

Also, as we explained in a November 20, 2008 letter to Speaker Nancy
Pelosi (which I would like to submit for the record), there are serious
reasons to be concerned about the sustainability of this increase:

1.  **The specialized prosecutors are not investigating the majority of
    reported cases.**

The Office of the Attorney General reports that as of January 20, 2009
the specialized prosecutors unit is only reviewing a total of 1,302
cases involving 1,544 victims of anti-union violence. They have only
located the physical case files in 1,104 of these cases. The cases under
review include 610 cases involving the killings of 816 victims, as well
as 289 cases involving threats.

In other words, the Attorney General's office is reviewing less than one
third of the 2,695 killings reported by the ENS and only a tiny
percentage of the threats.

When I met with representatives of the Office of the Attorney General
last November, I asked what they planned to do with the thousands of
other reported cases of threats and killings. They gave multiple
explanations:

First, the Office said that the specialized group was only looking at
the cases that had already been reported to the International Labor
Organization (ILO) *at the time the specialized group was created*. But
the ENS and trade unions later submitted all information they have on
all 2,685 cases recorded as of May 2008 to the ILO. It makes no sense to
exclude many cases from investigation just based on the date on which
they were reported to the ILO.

Second, the Office said they had decided not to expand the number of
cases assigned to the specialized prosecutors simply because they do not
have the resources to handle that many cases. Thus, the remaining cases
would be assigned to ordinary prosecutors who may be spread out around
the country, who will not be focused specifically on anti-union violence
and are more vulnerable to pressure or threats. This explanation is
surprising in light of the vast resources the US Congress has already
assigned to the Human Rights Unit, precisely to strengthen these sorts
of investigations. It is also not a good reason to simply exclude more
than half the cases from the specialized prosecutors' workload, rather
than organizing and prioritizing them in a useful manner.

Third, the Office said that many of the cases had been inaccurately
reported as trade unionist killings. According to the Office, in some
cases the victims were not union members or had been killed for
non-union-related reasons. Yet when Human Rights Watch asked the Office
for a list of all the cases that the specialized group was
investigating, as well as the list of cases that they had decided not to
investigate because they did not really involve unionist killings, they
refused to provide such a list. The Office has also refused to provide
such lists to union representatives, making it impossible to have a
meaningful discussion about the basis on which they are excluding many
cases from investigation.

> **2. Many convictions involve paramilitaries in the Justice and Peace
> process.**

One factor that appears to have contributed to the increase in
convictions is that some paramilitary commanders participating in what
is known as the "Justice and Peace" process have been accepting
responsibility for unionist killings. But this means that once the
Justice and Peace process is over, the rate of convictions is likely to
quickly drop off. Also, the convictions in these cases often do little
to further truth or justice.

Under the "Justice and Peace Law," paramilitaries known to be
responsible for atrocities are given an opportunity to admit all their
crimes. In exchange, they are set to receive a single reduced sentence
of five to eight years, rather than the much longer sentences---up to 40
years, in some cases---that would normally be ordered in individual
cases of trade unionist assassinations.

The law began to be applied in 2007, around the same time as the
convictions for unionist killings started to go up. Based on Human
Rights Watch's review of several of the rulings in these cases, as well
as the statements of persons close to the investigations, a substantial
share of the convictions in unionist cases are of paramilitaries who are
participating in the Justice and Peace Law process. According to the
Office of the Attorney General, of the 76 convictions obtained in 2008
(in 57 cases), 50 were reached pursuant to plea bargains. The Office
states that six of the convictions were obtained with "information from"
the Justice and Peace Law process, but it does not specify how many of
the convicted persons are Justice and Peace Law participants. In our
review of a portion of the 2008 sentences, we found that a substantially
larger number than six were convictions of Justice and Peace Law
participants. The Office of the Attorney General also states that it has
already prepared plea bargains for 75 individuals in the Justice and
Peace Law process.

The statements in these cases are often general. For example,
paramilitary commanders like Ever Veloza (also known as "HH") have
admitted having commanded responsibility for thousands of killings,
including unionist killings. But they often do not describe the
circumstances surrounding the killings or identify other accomplices or
participants in the crime. As a result, these convictions often do
little to establish the truth about the killings.

**3. Lack of progress in high-profile cases**

In some of the most high-profile cases of unionist killings there has
been little progress.

One example is the investigation of the former head of the National
Intelligence service, Jorge Noguera. Noguera has been under
investigation since 2005 for allegedly cooperating closely with
paramilitary groups, including by giving sensitive information about
trade unionists and others under government protection to paramilitaries
who later targeted and killed some of the protected persons. The Noguera
investigations have moved slowly and have repeatedly been delayed due to
procedural errors. At this time, Noguera is under arrest pursuant to a
December order by the Attorney General that found probable cause to hold
him for collaborating with paramilitaries. Investigations for his
alleged involvement in trade unionist killings have shown little signs
of progress.

Similarly, in the murder of labor leader Luciano Romero, despite a court
order to investigate potential involvement of the Nestle Corporation in
the killings, the Office of the Attorney General has failed to move any
such investigation forward. When I interviewed officials from the Office
in November, they told me that they had not pursued the investigation of
Nestle because they disagreed with the judge.

**Stigmatization of Union Activity**

High-level officials continue to stigmatize legitimate union activity as
a cover for the abusive left-wing guerrillas. Colombian President Álvaro
Uribe has in the past dismissed international concerns over the
violence, describing the unionists as "a bunch of criminals dressed up
as unionists."

More recently, President Uribe has just last week suggested that those
who criticize his government's human rights record abroad, or oppose the
US-Colombia Free Trade Agreement, belong to a sort of "intellectual
block" of the Revolutionary Armed Forces of Colombia (FARC) guerrillas.

Such statements put unionists and human rights defenders at grave risk,
suggesting that the violence against them might be justified and that
accountability for the killings may not be a priority for the
government.

**Paramilitary Violence**

Most trade unionist killings have never been investigated, so it is
impossible to know exactly who is responsible and why all the killings
have been committed. What is clear is that in many cases, the killers
have been mafia-like paramilitary groups, who have admitted to
deliberately persecuting unions.

As of March 2008, the Office of the Attorney General reported that of
all the persons convicted in unionist killings, 73 (the largest share)
belonged to paramilitary groups.

As a result, to address the violence against unionists in a sustained
manner, it is crucial that the Colombian government effectively
dismantle the paramilitary groups that have historically posed the
greatest threat to unions.

Uribe administration officials often dismiss concerns about paramilitary
violence by claiming that the paramilitaries are now "extinct" thanks to
the government's demobilization program. But while more than 30,000
individuals supposedly demobilized, Colombian prosecutors have turned up
evidence that many of them were not paramilitaries at all, but civilians
recruited to pose as paramilitaries. Law enforcement authorities never
investigated most of them.

Meanwhile, scores of "new" groups closely linked to the paramilitaries
and composed of thousands of members are operating all over the country.

A recent report by the Colombian organization Nuevo Arco Iris estimates,
based on official data, that there are 21 of these armed groups
operating in 246 municipalities around the country, and that they could
be composed of over 10,000 members.

These groups are engaging in extortion, killings, forced displacement,
and drug trafficking---just like their predecessors. Several foreign
embassies in Bogota, the Organization of American States' mission
verifying the demobilization, and dozens of human rights defenders have
reported receiving threats from the new groups since 2007.

In Medellín, where the homicide rate had been dropping substantially for
years, violence has shot up, with murders jumping from 771 in 2007 to
1044 in 2008---a 35% increase, largely due to the activities of these
new groups. The former head of the prosecutor's office in the city, who
is also the brother of Colombia's Interior and Justice Minister, is now
under investigation for alleged links to these groups.

The new groups are also contributing to a rise in internal displacement.
In fact, starting in 2004, around the same time paramilitaries
supposedly started to demobilize, the rate of internal displacement in
the country began steadily rising. The Colombian organization CODHES,
which monitors internal displacement, has reported that 270,675 people
had become internally displaced in just the first six months of last
year---a 41% increase in displacement over the first six months of 2007.
It is still collecting data on the second half of 2008. In a large share
of these cases, the victims report being displaced by new armed groups
that operate in the regions that were historically under paramilitary
control.

There are good reasons to believe that these new armed groups pose a
serious threat to trade unionists. In fact, the bulk of the threats
received by unionists last year have been signed by groups purporting to
be paramilitaries, such as the Black Eagles. And the regions where the
most cases of anti-union violence were registered in 2008 are the same
regions where the new armed groups are most active. These include, for
example, Santander, Norte de Santander, Magdalena, and the
coffee-growing states of Quindío, Risaralda and Caldas.

**Paramilitary Infiltration of Colombia's Democratic Institutions**

Colombia's democracy today faces a serious threat due to paramilitary
infiltration of key institutions like the Colombian Congress, which is
now undergoing a major crisis of legitimacy, one that is unprecedented
not only in Colombia but in all of Latin America. Seventy-four members
of the Congress -- including approximately 35% of the Senate -- are
under investigation or have been convicted for rigging elections or
collaborating with paramilitaries. Nearly all the congresspersons under
investigation are members of President Uribe's coalition.

The fact that these investigations are occurring at all is of historic
importance. But these gains are still tentative and fragile. They are
the result of a fortuitous combination of factors, including the
independence and courage of a select group of judges and prosecutors, a
Constitutional Court ruling that created incentives for paramilitary
commanders to disclose some of the truth about their crimes, the actions
of Colombian civil society and a handful of journalists, and
international pressure on the Colombian government.

And unfortunately, as we documented in a report we released in October
2008, entitled "Breaking the Grip? Obstacles to Justice for Paramilitary
Mafias in Colombia" (which I would like to submit for the record) the
administration of President Uribe is squandering much of the opportunity
to truly dismantle paramilitaries\' mafias. While there has been
progress in some areas, some of the administration\'s actions are
undermining the investigations that have the best chance of making a
difference.

Of greatest concern, the Uribe administration has repeatedly launched
public personal attacks on the Supreme Court and its members in what
increasingly looks like a concerted campaign to smear and discredit the
Court.

It has also opposed and effectively blocked meaningful efforts to reform
the Congress to eliminate paramilitary influence. In particular, Uribe
blocked an effort to apply what is known as the "empty chair reform" to
current members of Congress. That reform would have sanctioned political
parties linked to paramilitaries, barring them from simply replacing the
congresspersons who are investigated or convicted with other politicians
who were elected in the same manner.

What is at stake here is Colombia's future: whether its institutions
will be able to break free of the control of those who have relied on
organized crime and often horrific human rights abuses to secure power,
and whether they will be able to fulfill their constitutional roles
unhindered by fear, violence, and fraud.

Also at stake is the future of labor rights in the country. As long as
important Colombian institutions remain under the influence of
paramilitaries who have persecuted trade unionists, it will be
impossible for union members to freely exercise their rights.

**Extrajudicial executions by the Army**

In recent years there has been a substantial rise in the number of
extrajudicial killings of civilians attributed to the Colombian Army.
Under pressure to demonstrate operational results by increasing their
body count, army members apparently take civilians from their homes or
workplaces, kill them, and then dress them up to claim them as
combatants killed in action. The Attorney General's Office is currently
investigating cases involving more than a thousand victims of such
extrajudicial executions dating back to mid-2003.

While most of these cases do not involve trade unionists, an
increasingly significant share of trade unionist killings are believed
to be attributable to state actors. Twelve per cent of the killings
recorded by the ENS in 2008 were believed to have been committed by
state actors.

One significant case involves the military's killing of three trade
unionists in the region of Arauca in 2003. Unfortunately, while lower
level soldiers have been convicted of the killings, prosecutors appear
to have made little progress in investigating the potential
responsibility of military officers up the chain of command.

More broadly, the large number of extrajudicial executions being
attributed to the Army has contributed to the broader climate of
intimidation that severely affects union activity. And the government's
commitment to contain anti-union violence cannot be taken seriously so
long as its security forces appear to be engaged in widespread
executions of civilians.

The Defense Ministry has issued directives indicating that such killings
are impermissible. But such directives have been regularly undermined by
statements from high government officials, including President Uribe,
who until recently accused human rights defenders who reported these
killings of colluding with the guerrillas in an orchestrated campaign to
discredit the military.

Since October of last year, after a major scandal over the military's
alleged execution of several young men from the capital of Bogota, the
Uribe administration has started to more explicitly acknowledge the
problem and has dismissed several soldiers and officers from some
military units in connection with some of the most well known killings.
However, it is crucial that these dismissals be followed by effective
criminal investigations, prosecution, and punishment of those
responsible for executions---including commanding officers who may have
allowed or encouraged them---that have been reported on a regular basis
all over the country. It is too early at this time to determine whether
such punishment will occur.

It is also crucial that the government review and reform military
policies, such as its rewards and promotions system, that may be
creating incentives to produce false results by executing civilians.

**Colombia is not meeting international labor standards**

Anti-union violence is so pervasive in Colombia, that it is impossible
for workers to fully exercise their rights. This is a fundamental
problem that must be confronted head-on if workers' rights are ever to
be respected in that country.

But violence is not the only problem affecting labor rights in Colombia.
Colombia's labor law itself also falls short of international standards,
as reported repeatedly by the International Labor Organization (ILO) in
its annual review of Colombia. The Colombian government has attempted to
downplay the shortcomings, asserting in a 2008 embassy publication that
legal reforms passed in 2000, combined with additional "legislative,
regulatory and judicial opinions during the Uribe Administration" have
eliminated "most" of the inconsistencies between Colombian labor law and
ILO norms. But that same year, the ILO Committee of Experts on the
Application of Conventions and Recommendations (Committee of Experts)
noted in its own 2008 report that glaring problems remain. The problems
criticized by the ILO include obstacles to trade union registration,
violations of workers' rights to strike, and the use of cooperatives to
undermine workers' right to organize.

**Human Rights and the US-Colombia Free Trade Agreement**

Human Rights Watch takes no position on free trade per se. But we
believe any free trade agreement should be premised on respect for
fundamental human rights, especially the rights of the workers producing
the goods to be traded. In Colombia, those conditions are far from being
met. That's why we have called on Congress to delay consideration of the
US-Colombia Free Trade Agreement (FTA) at this time, until Colombia
shows concrete and sustained results in addressing the violence against
trade unionists, impunity for that violence, and the broader human
rights context that makes it difficult for workers to exercise their
rights**.**

Without concrete and sustained results in addressing these basic
problems, ongoing anti-union violence, impunity and human rights abuses
would, as President Barack Obama has noted, make a "mockery" of labor
protections in the agreement. Colombia should be in compliance with such
protections before the accord takes effect, as has generally been
demanded with FTA commercial provisions.

We believe that the US Congress's decision to delay consideration of the
FTA has put pressure on the Colombian government to take some initial
steps to address these issues. As previously described, the Office of
the Attorney General has established a specialized group of prosecutors
to investigate some of the country's thousands of unsolved cases of
trade unionist killings, and the group has obtained an increase in
convictions. Yet this progress is still fragile and incomplete, and
there are many reasons (as previously described) to be concerned about
the sustainability of this effort. And in other areas (such as the rate
of violence), Colombia has been sliding back this year. Meanwhile, the
government has yet to address the rise of successor groups to the
paramilitaries, the influence of these groups in the political system,
continuing stigmatization of unionists, and the Army's disturbing
practice of extrajudicial executions of civilians.

Among other steps, Colombia should be required to meet concrete
benchmarks in the following areas:

-   Demonstrating a sustained and meaningful increase in well-grounded
    convictions of perpetrators of anti-union violence. These should
    include convictions in a sufficient number of the 2,695 killings of
    trade unionists reported since 1986 to show a significant shift in
    the long-term pattern of impunity. The convictions should be based
    on more than the mere admissions of guilt by paramilitary commanders
    participating in the "Justice and Peace" process, as these
    confessions often do little to establish the truth about the
    killings or accountability for the perpetrators. To achieve this
    goal, there are many steps Colombia has yet to take. For example, it
    must ensure that the specialized prosecutors for labor union cases
    handle all the reported cases, not just the reduced number they are
    currently investigating.

-   Dismantling the paramilitary groups that pose the greatest threat to
    unions, by holding accountable paramilitaries and their accomplices
    in the military, political system, and business sectors;
    confiscating paramilitaries' illegally obtained assets and returning
    stolen lands to their rightful owners; and actively investigating
    and confronting new or never demobilized paramilitary groups that
    have appeared in the wake of the supposed demobilization of the AUC
    paramilitaries.

-   Ensuring accountability for the extrajudicial executions of
    civilians that the Army has allegedly been committing by the
    hundreds in recent years. It is crucial that the government response
    go beyond mere internal investigations and dismissals of officers to
    also include criminal investigations, prosecutions, and appropriate
    punishment, as well as the reform of policies that may create
    incentives for such executions.

In any case, Congress should make clear that, given the serious crisis
of legitimacy in the current Colombian Congress, the Free Trade
Agreement should not be considered until the Colombian Congress has been
meaningfully reformed to remove paramilitary influence, or until after
the current Colombian Congress ends its term in 2010. The United States
should urge the Uribe administration to promptly take the necessary
measures to clean up its political system. Such measures include
approving political and electoral reforms to sanction the political
parties that have, in past elections, allowed paramilitaries to
infiltrate them. In particular, political parties should lose any seats
held by congresspersons who are convicted or resign due to
investigations for collaborating with paramilitaries. The Uribe
administration should provide full support to criminal investigations of
public officials, ceasing its attacks on the courts and investigators
handling the parapolitics investigations.

The United States can take several additional steps to maximize the
effectiveness of this principled approach to the Colombia FTA.

First, it should make clear that the delay in the Colombia FTA does not
reflect political or anti-trade agendas. Given Colombia's specific labor
rights and human rights situation, the Colombia FTA should not be
bundled with the Panama FTA or any other free trade agreement.

Second, the US should substantially increase assistance to the
institutions on the front lines of this fight. This means not only
supporting the specialized group of prosecutors investigating trade
unionist killings, but more broadly increasing aid to
institutions---including the Attorney General's Office and Supreme
Court---that are conducting investigations of paramilitaries' past
crimes and networks (including paramilitaries' accomplices in the
military and political system). The United States should also increase
aid to institutions and organizations---such as the Ombudsman's Office's
Early Warning System, as well as civil society groups---that monitor the
actions of armed groups, including the new paramilitary groups, and play
a key role in preventing human rights abuses around the country.

Given what is at stake for Colombia---the success or failure of a
generational struggle to break the hold of brutal mafias over the
country's political life, and in turn the ability of Colombia's workers
to exercise their rights without fear of being threatened or
killed---and given the Uribe government's reluctance to engage in that
struggle except when under pressure to do so, the United States should
not seek FTA ratification prematurely or in exchange for partial
measures. The Uribe government recognizes that change has come to
Washington and senses that it will have to demonstrate greater progress
if there is to be any chance for the FTA. The United States should seize
this opportunity by standing firm on the need for fundamental changes in
Colombia, and providing support to achieve those changes.

Colombia still has a lot of work to do before the FTA should be
considered. By continuing to delay the deal's approval, the United
States will show that human rights are not just words, but rather basic
values that have real consequences for US policy.