THE SEARCH FOR ACCOUNTABILITY

AND TRANSPARENCY IN PLAN COLOMBI

REFORMING JUDICIAL

INSTITUTIONS—AGAIN

Luz Estella Nagle

May 2001
*****

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necessarily reflect the official policy or position of the Departmen

Army, the Department of Defense, or the U.S. Government. I a

grateful for having been invited to participate in the North Cen

Army War College conference, Implementing Plan Colombia: S

and Operational Imperatives for the U.S. Military, which paved 

for the writing of this monograph. The opinions expressed in thi

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is unlimited.

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ISBN 1-58487-054-0

ii
FOREWORD

This monograph, written by Professor Luz E

Nagle, is another in the special series to emerge fro

February 2001 conference on Plan Colombia tha

cosponsored by the Strategic Studies Institute of th

Army War College and The Dante B. Fascell North-

Center of the University of Miami. In it, she stresses 

has been defined by President Andrés Pastrana as one 

five strategic issues included in Plan Colo

Nevertheless, the author argues that the issue of ju

reform deserves long-term attention and a higher p

within the larger context.

Professor Nagle, a former judge in Medellin, write

a keen perspective of and close association with Colo

political and judicial institutions. She argues that 

Colombia does not address the root causes of Colo

problems, but if it did it would begin by di

strengthening the moral legitimacy of the govern

holistically enhancing socioeconomic developmen

meticulously reforming the legal system. Those f

mental reforms would enable the reestablishment 

rule of law. The rule of law, in turn, is critical 

achievement of the ultimate purposes of 

Colombia—peace, prosperity, and the strengthening 

state. Luz Nagle rightly points out, however, that sy

reform requires well-conceived, long-term, and c

implementation. Unless thinking and action

reoriented to deal with these realities, the alterna

social calamity, criminal anarchy, and civil war.

The Strategic Studies Institute and the North-

Center are pleased to offer this monograph as part 

attempt to clarify the issues surrounding Plan Colo

iii
focus the debate, and learn from it. This is imp

because, one way or another, what is happening in Col

is affecting us all.

DOUGLAS C. LOVELACE, JR

Director

Strategic Studies Institute

iv
PREFACE

The intention of the U.S. Army War College an

Dante B. Fascell North-South Center has been to elu

as broadly as possible the many facets of the Colo

dilemma, the worst security problem which the W

Hemisphere faces today. This monograph concern

challenge to reform Colombian judicial institutions.

Plan Colombia carries with it, by the reckon

President Andrés Pastrana’s government, a $7.5 

price tag. The United States has committed $1.3 bil

the effort, largely in military aid, antinarcotics prog

and the equipment and training that go with them. E

is supposed to provide $1 billion in humanitarian aid, 

programs, and other nonmilitary assistance, but its 

has not been forthcoming.

Meanwhile, the United States does, through the U

States Agency for International Development, offer a 

million package for judicial reform and, in fact, has c

out programs of judicial reform in the past. This mono

demonstrates the urgent need for this money, and 

more.

The author’s purpose is to argue that confidence 

efficient, courageous, and transparent judiciary goes 

very heart of the governability of Colombia. Transpa

and accountability are crucial factors that must be 

developed and incorporated into any serious eff

strengthen the judicial institutions.”

The problem with Plan Colombia, according 

author, is, among others, that it “fails to attack the 

Colombia’s real problems.” These are “weak govern

inequality, absence of citizen participation, corruptio

an ineffective legal system.” After denouncin

corruption and lack of accountability in the executiv

v
legislative branches, the author provides a veritable t

force outlining the ills of the weakest branch. What 

across in this analysis is a daunting challenge, reme

only in the medium to long term. It is a discouraging p

of failure and disarray, although, as one might im

there are honest heroes who work tirelessly for the g

their country. The author concludes, “If Plan Colomb

succeed in any sector, it should be with the judiciary

In the debate over Plan Colombia, judicial refo

often mentioned, but usually only superficially

in-depth essay convinces us that it deserves higher pr

It is central to helping Colombia to its feet.

Ambler H. Moss, Jr.

Director

The Dante B. Fascell North-So

 Center

University of Miami

vi
BIOGRAPHICAL SKETCH OF THE AUTH

LUZ ESTALLA NAGLE is Assistant Professor of L

Stetson University College of Law in St. Peter

Florida, where she teaches international crimina

Latin American business law, and internat

comparative business law. Professor Nagle served 

judge in Medellin, Colombia, in the mid-1980s 

assassination attempts by drug traffickers forced 

leave Colombia for the United States. Her writing

presentations on national security law and mutua

assistance, drug interdiction, guerrilla insurg

international white collar crime, and judicial mecha

probe the realities of foreign policy and the rule of law 

Americas from a critical perspective that reflec

training and experience in both the Anglo-America

continental law systems. Professor Nagle holds an 

from the UniversidadPontificía Bolivariana, a J.D. fro

College of William and Mary, an LL.M. from the Univ

of California at Los Angeles’s Law School, and an M

Latin America studies from the University of Califor

Los Angeles. 

vii
THE SEARCH FOR ACCOUNTABILITY

AND TRANSPARENCY IN PLAN COLOMB

REFORMING JUDICIAL

INSTITUTIONS—AGAIN

INTRODUCTION

The Colombian government presented Plan Colom

the world as an ambitious proposal to address the 

problems that have paralyzed Colombia over the last d

or more. Plan Colombia carries a $7.5 billion price ta

United States has committed $1.3 billion, with the 

share going to military aid, materiel, and training, 

other global partners, namely the Europeans, w

shoulder much of the cost for the humanitarian, socia

institutional components of the plan. Their support h

been forthcoming, because little funding for the p

actually devoted to human rights, social program

other nonmilitary aid. Nevertheless, these nonm

components are being pursued, and reform of the jud

is a primary plank in the plan. The United States Agen

International Development (USAID) is leading the w

judicial reform projects under its long-establ

administration of justice (AOJ) and rule of law 

program mechanisms. A small portion of Plan Col

funds, about $122 million, has been earmarked f

task.

1

 Reform programs are nothing new to Colo

third branch, which in fact has been the recipient of 

millions of dollars in aid packages from various gover

and nongovernment sectors over the last 2 decades. 

The purpose of this monograph is to examine the ju

reform and reinforcement components of Plan Colo

and to argue that transparency and accountabili

crucial factors that must be well developed 

incorporated into any serious efforts to strengthe

judicial institutions. Discussion, however, must begi

1
a brief, albeit critical, look at the Colombian political t

and government institutions in the context of 

Colombia in general, and the judicial institutio

particular.

PAVING THE ROAD FOR PLAN COLOMBIA

President Andrés Pastrana set the total cost fo

Colombia at around $7.5 billion, with contributions c

mainly from the United States, Europe, Canada, Japa

Mexico, and from Colombia itself, although it is no

precisely how Colombia will fund its $4.5 billion share

plan is a complicated mix of public relations, propag

show of force, nationalism, and sleight of hand. Rega

of Plan Colombia’s actual composition, many believ

the plan see it as the last hope for Latin America’s 

democratic nation, and they are willing to do anyth

make the plan succeed. 

Colombia has the dubious distinctions of enduri

longest running guerrilla insurgency in the 20th ce

holding one of the world’s worst human rights record

being one of the leading countries of origin for globa

trafficking. Colombia is a weak state, struggl

overcome its bloody history, institutionalized corru

and lawlessness in hopes of finding its place in th

millennium. 

Other than its unprecedented price tag, there is 

new to offer in Plan Colombia to distinguish it fro

packages the United States has already commit

Colombia over the last 5 decades. The plan includes 

all that has been given before to little or no effect: c

amounts of military hardware,

4

 technical adviser

support personnel, a modest contribution for human 

and social programs,

5

 and many opportunities for an 

of consultants and experts to reform, reorgani

otherwise “improve” various government institu

United States support for the plan faithfully follow

2
well-established tradition of the United States as the 

neighbor” in the hemisphere, paternalistically ass

what is best for its Latin family while upholding the sp

a mandate so eloquently articulated during the draf

the Foreign Assistance Act of 1961.

The essence of the West’s responsibility is to use its resour

imaginatively and generously as time moves a swif

changing world into an uncertain future. . . . To ma

thoughtful citizens, foreign aid represents the only means 

aligning this country and its allies with the forces that a

shaping the world that lies ahead.

6

Plan Colombia has also been promoted as an agen

dealing with a myriad of underlying causes that allow

nation to fragment into near anarchy and lawlessnes

framers of Plan Colombia both here and in Colombia 

acknowledged that there is no question that Col

suffers from the problems of a state yet to consolid

power: a lack of confidence in the capacity of the 

forces, the police, and the judicial system to guarantee 

and security; a credibility crisis at different levels a

different agencies of government; and corrupt pract

the public and the private sectors.

7

The stakes in the gamble for Plan Colombia’s succe

very high. At risk is political and economic sta

throughout much of Latin America, the stra

significance of Colombia in the hemisphere, an

long-established access to Colombia’s precious n

resources so vital to high-tech industries.

One problematic aspect of the plan is its susceptib

annual U.S. Congressional review for continued fu

especially with a new Republican Administration on 

Such funding uncertainty poses a troubling impedim

its long-term success. Changes, lack of continuity

cutbacks on foreign aid often frustrate U.S. policy

reality is well described by a maxim expressed by 

administration official in 1961 when foreign aid polic

3
driven by Cold War concerns over whose po

orientation would take hold in the developing world:

We know in our hearts that we are in the world for keeps, yet 

are still tackling 20-year problems with 5-year plans sta

with 2-year personnel working with 1-year appropriations. 

simply not good enough.

8

While the world under the U.S. sphere of influen

changed in 50 years, the situation described above ha

In this context, the plan seems little more than a $1.3 

gamble. At the very least, Plan Colombia benefits th

military industrial complex and an army of politica

technical consultants chasing Plan Colombia dollars

There are a number of issues Plan Colombia f

address. First, there is no consideration of the impact 

plan on the region, and it ignores the direct geopo

threats imposed on Colombia’s neighbors.

9

 Gue

crossing Colombian borders into neighboring countr

nothing new. However, what is new and all too frigh

to Colombia’s neighbors is the spillover of thousa

displaced people, narcotraffickers moving their enter

across borders, the collateral impact of money laun

and contraband smuggling, and paramilitaries wre

havoc while chasing their prey across frontiers. Colo

neighbors, while supportive of its peace goal, fear wha

believe is an unnecessary and dangerous military b

in the hemisphere. Colombia committed a diplo

blunder by not considering such concerns of it neig

Instead of engaging them during the formative stages 

plan, Colombia imposed on its neighbors after the 

heavy burden of potential incursions and re

movements across Colombia’s porous borders

European Parliament’s 474 to 1 vote against Plan Col

in early February 2001 did little to bolster regional su

for Colombia. 

Brazil, the largest and most influential country in 

America, stated that it would not participate in any t

4
multinational action or effort in Colombia. In ad

Brazil labeled Plan Colombia its biggest security ris

has massed 6,000 troops along its 1000-mile-long A

border with Colombia, with 6,000 more troops planne

sent there so long as Plan Colombia is in force.

10

 

Ecuador, and Venezuela are also growing more alarm

possible incursions of refugees and combatants, alt

Venezuela’s President Hugo Chavez has himself 

accused of supplying Colombian guerrillas with we

and supplies, thereby making his government less t

passive bystander in the crisis. 

Second, the issues addressed by Plan Colombia la

right methodology and balance under the plan’s umb

Section 2.7 of Plan Colombia reads, “Colombia’s sit

does not allow for partial solutions.” But Plan Colom

in fact, a piecemeal solution because it subordina

excludes crucial elements necessary for a compreh

solution to the Colombian crisis. Plan Colombia is a p

the moment and disregards the long-term consequen

its implementation. The United States has already cl

significant successes in coca crop spraying, boastin

more than 74,000 acres were sprayed in the first 6 we

one of the major coca-growing regions.

11

 But the ope

does not account for the collateral destruction of thou

of acres of legal crops,

12

 nor does it provide compensat

the losses, for mitigating environmental and eco

damage done to the regions being sprayed, or for moni

the long-term health effects spraying may have on fa

children, and other rural inhabitants.

Third, Plan Colombia fails to attack the r

Colombia’s real problems. Drug trafficking is only on

effects; the real causes are a weak government, ineq

an absence of citizen participation, institutional mor

cultural corruption, and an ineffective legal system. I

the real issues are one of Colombia’s long-ignored in

problems. The U.S. agreement to fund the plan be

drug production and trafficking directly impa

5
domestically shortchanges the people of both nation

plan overlooks its long-term effects. If Colombia do

become a strong democracy with an effective, respo

government, drug trafficking and its consequence

continue increasing. As it stands, by pouring money 

society plagued by overwhelming domestic problem

plan is in effect attacking a cancer with hot compresse

must ask whether any foreign aid would resolve Colo

ingrained issues considering that Plan Colombia 

ground already covered in many prior aid package

assistance agreements over the last quarter century

A QUESTION OF PRIORITIES

A broader and more balanced institutional refo

essential to the success of Plan Colombia

military/counternarcotics component of the plan will 

serious resources and policies are not devoted to the 

institutional development, revitalization, and r

agenda. The military/counternarcotics objectives d

impact other sectors of the civil society and an 

economy. 

One of the most important priorities of Plan Colom

to strengthen the nation’s judicial institutions, si

much of the survival of Colombia is dependent o

judiciary’s ability to reimpose the rule of law 

protecting the rights and enforcing the obligations o

citizens and foreign investment. The obvious critic

the plan is that so little of the $7.5 billion has been all

for this purpose. A World Bank study revealed that th

a strong causal relationship between good governan

better development and economic growth.

13

 

governance requires strong, transparent, and uncorr

institutions throughout the government—not ju

judiciary. Under a system of good governance, cour

expected to be impartial, the Congress is expec

legislate clearly and effectively, and the execut

expected to lead and execute its constitutional ma

6
Unfortunately, Colombia lacks any of these ingred

Moreover, according to Transparency Internat

Colombia’s corruption is the worst in the region.

Colombia to have good governance and impro

development and economic growth, all institutions m

reformed or else the effort to solve Colombia’s cr

doomed. 

PLAN COLOMBIA AND COLOMBIA’S

INSTITUTIONAL CRISIS

Abraham Lowenthal, a respected scholar on 

American issues, has written, “Colombia’s fundam

problem is a crisis of authority, legitimacy, and gover

the drug trafficking, the guerrilla insurgencies, an

paramilitary violence are more effects than cau

Colombia’s underlying difficulty.”

15

Colombia’s problems run so deeply in the fabric 

nation that no package of foreign aid could address 

adequately. Yet, Plan Colombia has been presente

magic bullet for stopping drug trafficking, ending v

political conflict, curtailing human rights transgres

reuniting the nation, ending corruption, and redeve

the country economically and socially. Unfortunately

Colombia is not the cure for the problems that exist to

Colombia, and politicians know this. The problems 

yield to a well-developed strategy that will attac

embedded corruption of the Colombian institution

that will permit meaningful participation by all Colom

in the political and economic life of the nation. 

THE THREE BRANCHES OF GOVERNMENT

Corruption has cast a shadow over the three branc

government. Colombia came to be known 

“narco-democracy” because the vast sums of ill

acquired money coming mainly from drug sources h

influenced Colombia’s political process and institu

7
The first step to ending corruption is to make of

accountable for their conduct. Accountability means t

the government to the legal standards expected 

established and recognized conduct of a civil so

Accountability improves the quality of administratio

increases a government’s legitimacy because of

behave better when they know that they are being wa

and are constrained to abide by inviolable codes of co

Accountability also protects citizens’ rights from 

trampled, ensuring that laws will be applied fairl

accurately. When they know their rights, the citizen

nation hold a government accountable and demand se

to be delivered as promised and in an efficient and ef

manner. A democratic, accountable government ed

its citizens so as not to exclude them from decision

affect their lives.

The second step is to make government transpar

the citizens. This is a basic tenet of represen

democracy. Transparency means that the citizens h

right to review and examine the operations 

governmental institutions and the conduct of gover

officials by direct observation or through the news m

However, this right may be overridden by certain na

security matters and public policy concerns such 

right to secure a fair trial and to protect individual

unwarranted invasion of privacy. Transparency 

elected officials to bring the government to the peop

elected them by informing citizens of their action

decisions. Transparency is achieved through method

enable the publicizing of governmental action

decisions; by laws protecting free speech and the sa

reporters; by establishing freedom of information, p

whistleblower statutes, and appointing ombudsmen; a

establishing conduits for citizen complaints. 

Transparency and accountability are essential t

governance. They will discourage nepotism and cu

bestowing of favors on family and friends. They increa

8
prestige of government service. Unfortunately, ther

presumption by the Colombian people of corruptio

mediocrity in government. It will take years to bui

prestige and authority required if democracy in Colom

to succeed.

The Executive Branch.

The executive branch under the Pas

Administration has shown little progress in lifting th

of scandal and corruption that has shadowed the Colo

presidency throughout the history of the Republic.

1

true democracy, the executive branch must be transp

and accountable, particularly if one accepts tha

executive sets the tone for the political behavior and co

of the other branches. The Colombian executive has 

history of action without accountability, and Plan Col

represents a glaring example of the executive’s abi

chart a course for the country without a mand

approval from the citizenry. The argument that 

Colombia was not debated by or publicized to the 

because “that’s the way things have always been do

not acceptable and ought to be dropped. There is no e

for continued ignorance based on past behavior. N

willing to sign on to help Colombia should not tolerat

conduct no matter to what extent the end may se

justify the means. Without transparency and ac

ability, it is not difficult to see the specter of an

Vietnam looming on the political horizon of United 

foreign policy with regard to the Colombian crisis

United States simply cannot afford to nod benignly 

cavalier autocracy of successive Colombian adm

trations, particularly now when so much is at stake.

For democracy to exist and flourish, citizens mus

access to information. The monopoly of power 

centralized system prevents citizens from scrutinizi

behavior of their elected officials and the policies of w

supposed to be a representative government. Even no

9
governors of the departments that stand to bear the br

Plan Colombia have charged that officials in Bogotá 

consulted with them when Plan Colombia was 

formulated.

17

 This is not surprising if one recognize

Plan Colombia largely escaped debate in the forum of 

opinion because so few in the news media, in academia

critical nongovernmental organizations ha

opportunity to examine the proposed details of the pla

debate them publicly. President Pastrana bypass

countrymen and took his case for Plan Colombia dire

the international stage in the formative process for the 

In fact, a Spanish language version of Plan Colomb

not made available until months after a revised E

language version was already in circulation.

18

 Selli

plan abroad before ever promoting it to the nation 

counter to the notions of accountability and transpare

government. It is remarkable that Plan Colo

underwent far more debate and review abroad 

occurred in Colombia. 

As a clear measure of executive power, the gen

Plan Colombia follows the typical scenario of Colo

executive actions: a state of emergency is declared, 

allows the president to issue decrees that may th

translated into ordinary law by the consent of the Co

at a later date. There is almost no opportunity to ho

President accountable because his action

constitutionally protected. Plan Colombia, however, 

new questions about accountability and transpa

because both the foreign and domestic policies of 

nations are intrinsically involved in this case. 

Another problem with the lack of accountabilit

transparency in the executive branch concern

composition of an executive administration. Wit

exceptions, the Colombian executive has traditionall

plagued by the appointment of officials long on po

connections, but short on substance and competency

10
The Legislative Branch.

The Colombian Congress is perceived as one of th

corrupted institutions in the nation. This is the insti

in which the late drug lord Pablo Escobar, long forme

of the Medellin-based drug group, served 

representative elected to its ranks. The legislative 

lack of integrity received international attention in 

when Prosecutor General Valdivieso implicated ove

political figures, including numerous members of Co

and important government officials, on charges of acq

money from drug lords. Valdivieso opened a swe

investigation “without regard for the pol

implications”

19

 into government corruption that b

known as Case 8000.

20

 The investigation arose 

allegations that former President Ernesto Sampe

some of his closest associates had received milli

dollars in campaign contributions from the Cali drug 

After Valdivieso brought the charges, the constitu

responsibility for an investigation of the presidency 

the Indictment Commission of the Cong

Unfortunately, 11 of the 15 members of the Comm

were “suspected of having received drug money for 

own electoral campaigns.”

21 Samper’s Congres

supporters passed legislation suspending the law 

would allow for his indictment under corruption char

proceed. There are allegations that the drug mafias pa

lawmaker who brought the legislation $80,000, and 

who voted for it in Congress received $40,000 each.

22

More recently, there were several accusatio

members of Congress abusing power and using po

influence over contracts and hiring.

23

 An investi

revealed that congressional staff were skimming mill

dollars off contracts, and several top congressmen 

investigated on suspicion of sharing in the kickbacks

Congress has a long and dubious history of such co

especially in failing to pass effective regulations if do

11
in any way impacts the body’s power base. The Congre

also been able to effectively shield its activities from c

citizen scrutiny, as if citizens did not have the right to 

what their representatives were doing. Even followin

highly publicized national scandals, Congress has 

pass strong anti-corruption legislation with harsh pen

because they will themselves stand to be bitten by the

lawmaking. 

The Congress’s failure to pass as well effective fr

of information statutes allowing the news media to 

access to the business of Congress is further evidence 

lack of transparency and an indication of how 

transparency and accountability are needed i

legislative branch. 

Congress must also be made transparen

accountable because it is so intertwined with the vita

the other branches. The judiciary cannot operate 

Congress properly writes codes, laws, and statute

make it possible for the judiciary to administer j

Thus, for judicial reform to succeed, it must go hand in 

with congressional reforms.

The Judiciary.

The judiciary is the Cinderella of the three bra

Throughout Colombia’s history, the judiciary has be

meekest and most subservient branch of govern

susceptible to the vagaries of political ambitio

government corruption, and suffering from a system

of respect.

25

 The judiciary has been the target of 

attacks and acts of intimidation, and the government 

very poor record of ensuring the safety and secu

judicial officers.

26

Throughout Colombia’s history the judiciary has 

the tool by which repressive colonial regimes enforce

monarchical and later executive authority ove

populace. In the process, the subservience of the ju

12
branch negatively impacted the protection of individu

social rights in the face of state power and conser

constitutional authoritarianism. Thus, the judicia

Colombia “assumed a defensive role compared to 

political actors such as the military and po

establishments.”

27

 That defensiveness comes fro

inferiority complex imbedded in the whole sy

Admitting that the judiciary is incompetent, howeve

against the Latin mentality of machismo and infallib

and therein lies the resistance to transparenc

accountability. 

The judiciary’s infrastructure has long langu

though it began to rally somewhat when judicial r

became an important component in aid packages 

foreign lending institutions and first-world na

attempting to prop up democratic governmen

developing nations.

The people don’t trust the judicial system in Colo

The other two branches laugh at the judiciary syste

bypass its authority. Multinational corporations f

enter into contracts in Colombia because they do not t

the judicial system’s ability to enforce agreements fa

is widely thought that justice goes to whoever pays th

money to the judge.

29

 But an honest and effective jud

is crucial to sustaining economic developmen

guaranteeing a successful democracy. 

Legal and judicial systems that work effectively, efficient

and fairly are the backbone of national economic and soc

development. National and international investors need 

know that the rules they operate under will be expeditiou

and fairly enforced. Ordinary citizens need to know they, t

have the surety and protection that only a competent judic

system can offer.

30

For many historical reasons, the Colombian jud

also suffers from a lack of independence. Because of 

status among the three branches, the judiciary has 

13
been made the scapegoat for the wrongs in the countr

example, following the adoption of a new Constitut

1991, a Constitutional Court emerged that, among 

things, increased the independence and activism of th

court and established a textual recognition o

Constitution, at least on paper, as the fundamenta

supreme law of the land.

31

 The Constitutional Court q

ran afoul of the executive branch when it issued a 

controversial opinion legalizing the possession and 

drugs on the grounds that drug use constituted a r

personal autonomy and free development o

personality.

32

 The decision touched off a power st

between the court and the executive branch, which 

quickly to negate the decision by considering a refere

legislative action, and even a constitutional amend

The challenges to the court failed, however, and 

unprecedented move the executive declared that it d

seek confrontations with other branches of governme

The bad blood persisted, however, into the 1990s, 

the judiciary again came under fire for exercising its ju

authority to investigate and prosecute corrupt

relation to Case 8000. In retaliation for the court’s att

to prosecute government officials, the executiv

legislative branches introduced legislation to do awa

the faceless justice mechanism that was leadin

investigation. The faceless courts were even

disbanded to some extent,

33

 and a potentially usef

(although not without its own egregious problems

discredited.

Whether the criticisms of the judiciary have 

deserved is now irrelevant, however, for the justice s

is on the brink of disintegration in the face of unpreced

lawlessness. If Plan Colombia is to succeed in any se

should be with the judiciary. Unfortunately, most an

believe too little of the plan’s resources have been devo

such a Herculean task. Nevertheless, the goa

improving the judiciary are worthwhile. 

14
Over the last 2 decades, the United States, th

USAID, the Department of Justice, and other institu

has implemented a number of judicial reform projects 

at ensuring a healthier and more effective judici

Colombia. In fact, the largest administration of j

program ever funded went to Colombia in 1991 to crea

faceless justice mechanism at an unprecedented c

more than $36 million, after already having comm

many millions of dollars to laying out the ju

groundwork for faceless justice throughout the 1980s.

the judicial reforms never seemed to take hold or were 

in such controversy that the reforms were abandoned 

renewed.

35

The judiciary’s failure is due to internal and ex

factors that plague the structural underpinnings and 

operations of the justice institutions. Some of the in

factors are lack of independence, accountability

transparency. Accountability and transparency, if pr

would vaccinate against judicial corruption. The le

corruption is so high that reforms do not achi

meaningful result. Money is siphoned off into of

pockets either through direct embezzlement or 

kickbacks from sub-contractors working with the jud

Furthermore, greed stops reforms from trickling 

through the institution toward the most n

recipients—the lower courts and judicial offices outsi

major cities.

Among the external factors, we find government

societal corruption, narcotrafficking, subve

intimidation of witnesses, bribery of officials, wides

vigilantism, uncontrollable violence, and extortion a

government officials. Both the external and internal f

inflict a toll on the rule of law by rendering the j

apparatus impotent. Moreover, as more Colombians b

disaffected and unprotected by the state, and fewer ci

use the courts to resolve disputes, the notion of the 

law becomes so abstract as to have no meaning in their 

15
Without a branch that ensures public order and j

resolves disputes, and checks the political and exe

branches, a breakdown in civil society and social m

becomes inevitable, as is the case in Colombia 

Without a strong judiciary there is no basis upon wh

hang a framework to institute reforms under 

Colombia or any other plan. 

More judicial reform programs are included unde

Colombia because prior reform programs did not prov

comprehensive institutional reform for the e

government. This failure produced greater disarray 

judicial system and rendered it more impotent. 

PLAN COLOMBIA’S JUDICIAL REFORMS

AGENDA

The section on judicial reform in the plan states t

effective reform is a key element in restoring public confide

in the State. Dealing with narco-trafficking and its cultur

violence, corruption and lawlessness involves the en

criminal justice system. 

While the drafters of Plan Colombia recognize

challenge, one must ask what constitutes “effective re

in Colombia if other reform programs in the past tha

supposed to guarantee effectiveness could not

Pastrana government recognizes that political w

essential and that the three branches of governmen

work effectively together to reach the goals of the pla

These issues transect a number of Colombian agencies—

indeed the three branches of Government. The Execu

Branch will work closely with the Legislative and the Judic

to ensure that coordination and implementation of th

strategies is effective.

36

Within the framework of combined inter-governm

cooperation and foreign assistance, Plan Colom

16
intended to tackle the following issues in an eff

strengthen justice institutions and the rule of law:

• Securing the rule of law, by improving investi

and prosecution of criminals;

• Making the judicial system accountable f

conduct and management by strengthenin

judicial mechanisms, including moving away fro

civil law tradition of an inquisitorial criminal j

system to an accusatory system such as 

embraced in the Anglo-American or commo

tradition; 

• Promoting institutional respect for human rig

enforcing the nation’s commitment to interna

agreements on human rights;

• Eliminating institutional corruption througho

government by strengthening the judiciary’s ab

prosecute such corruption;

• Depriving criminals of illegal profits th

interdictory enforcement of money laundering 

and laws requiring forfeiture of ill-gotten asset

• Reinforcing the judicial apparatus to co

contraband and narcotics trafficking, and;

• Enhancing the criminal justice system’s abi

reduce demand for drugs by strengthenin

expanding education campaigns and impr

rehabilitation infrastructure. 

None of these goals can be met without accounta

however. In recognition of this, the drafters of 

Colombia have inserted accountability as a primary 

of the justice institutions’ reform agenda. The fol

planks of the Plan Colombia judicial reform packa

17
clearly articulated under the heading of accountability

merit closer examination:

Support for the continuing transition to an accu

system. This is perhaps the most problemati

controversial aspect of Plan Colombia’s judicial re

Why is it that Latin American nations have been jettis

the traditional inquisitorial traditions of the conti

system in favor of an Anglo-American oral accu

system for which no precedent, historical conte

experience exists in the region? From a legalistic p

view, one could argue that invalidating an inquis

criminal justice system with roots going back to the R

forum of ancient times makes no sense, and 

strengthening the traditional institutions would 

serve the region than discarding centuries of ju

traditions and normative elements. 

Forcing reforms based on one legal sys

methodology onto an entirely different justice s

results in the square peg-round hole problem. Even 

possibility exists for making viable reforms, the injec

an accusatory system into a centuries-old inquis

tradition cannot be achieved in the period of time all

to most reform projects. Lack of follow-up in monitorin

an absence of continuing funding and training dictat

when the project is over, the experiment is 

abandoned, or it has caused so much havoc in the proc

to be jettisoned at a later date. 

Although hard to substantiate, I have suspect

some years that the long push toward an accusatory s

is a form of inertia sustained by the judicial r

“industry,” which is comprised of American lawyers, j

and court officials. These consultants have little 

substantive understanding or formal training, let 

interest, in the continental law system. Therefore

much easier for them to go to Colombia and urge up

judiciary the American judicial mechanisms of whic

are intimately familiar and in behalf of which th

18
strongly biased, than for them to fix the existing ju

system by using best models and methodologies of bo

common law and continental law traditions. The 

should be to adapt the Colombian judicial system 

than transplant elements into it. This error of inten

matter of normative arrogance and laziness that ha

committed over and over during the last 2 de

resulting in a judicial system that is completely fragm

and convoluted by legal processes that do not fit 

Colombian judicial milieu. If the plan follows the 

modus operandi, then the methods employed 

prescription for failure. 

The judicial reformists in Colombia would do w

review the lessons learned in the 1980s in El Salvado

a committee of judges convened to institute changes 

judicial sector in keeping with the adoption of a 

Constitution. The key emphasis of the reform agenda 

eliminate human rights abuse and immunity to the f

law, “especially as it related to abuses of power b

military and paramilitary groups.”

37

 Over the cours

decade consultants and experts from the United Stat

the United Nations were employed in the judicial r

process, but few of the outside parties at the tim

specific expertise in the type of reforms being underta

The committee members pushed for local reform initia

but the direct input of the locals was usurped. Explai

reform scholar writing on what took place,

This [local] group was gradually sidelined from the m

detailed development of programs, where the expertise w

provided by outsiders and the negotiation of terms occup

the foreign donors and government actors. This developme

did not dilute the reform goals, which retained much of th

initial focus on human rights, due process, a

depoliticization. It did, however, eliminate the on

individuals with sufficient knowledge of the targ

institutions to detect emerging problems as reform proposa

including many of their own, clashed with local reality. Tho

who did not withdraw entirely retained less than effect

19
participation. They became junior partners in the reform des

teams, or external critics, concerned less with the mund

details of implementation than with the programs’ doctr

purity.

39

Many scholars and practitioners in the continent

system feel strongly that changing from an inquis

system to an accusatory system is not the proper so

They are frustrated that reformists are ignoring 

viewpoints, namely, that what needs to be done to f

judiciary has more to do with holding the jud

accountable to the procedures and processes al

established by law. 

Faster movement of cases through the judicial p

One attorney interviewed by the author stated 

frustration that when he goes to court in the rural are

must supply the court with paper for the proceedings

backlogs have been the most visible and frustrating f

of the judiciary for the last 3 decades. Many attempt

been made to fix the problem, but more often than n

changes in procedures have contributed to delay

backlogs. Prior administration of justice programs 

attempted to improve case processing and initiate 

reduction mechanisms. In fact, it was reported in 199

after so many millions of dollars were poured 

Colombia’s judiciary, up to 98 percent of crimes stil

unpunished, 74 percent went unreported, and human 

violations went unpunished 100 percent of the t

These horrendous statistics raise the questions, what 

that money go for, and why are we going to do it all 

under Plan Colombia? One explanation may be th

many reforms bombard the judiciary in a less than co

and coordinated way, impeding efficient processes 

emerging. The result is simply more confusion.

Arbitrary decisions are also a constant problem 

levels of the judiciary, and the legal system ap

incapable of fixing this. Part of the difficulty is that th

20
are confusing, hard to interpret, and erratic.

42

 This le

needless and time-consuming errors in procedure.

43

In addition to the inherent unfairness of a system in wh

those in control are also its prime beneficiaries, those will

to subject their claims to such a system must contend with 

equally daunting reality: the length of time necessary 

resolve a case once it reaches a Latin American courtroo

Cases commonly take up to twelve years to be resolved 

court. Such delays lead to two additional problems: backlo

that limit access to the judicial system, and additional los

caused by the delay and prolongation of litigation for tho

fortunate enough to secure a place on the court docket.

44

Under such a scenario, distrust of the jud

continues to deepen, particularly among the private s

which worries over the “judiciary’s ability to respo

conflict resolution challenges arising from increa

integrated and competitive markets, including s

formerly dominated by public monopolies, that de

specialized enforcement based on an understand

prevailing business practices.”

45

Colombian reformists should notice efforts elsewh

identify and acknowledge problems in the syste

Paraguay, a Supreme Court reform commi

acknowledged the following impediments to timely ju

performance:

• tardiness in trials,

• deficient quality in trial procedure and sentenc

• inadequate, insufficient, or untimely resources

• expensive justice,

• inadequate internal information,

• inefficient public relations,

• insufficient judicial authority,

21
• inefficient justice-related organs, and

• inadequate and insufficient decentralization.

46

The application of new technologies has g

enhanced the capacity of courts to manage caseloads 

efficiently. Colombia has already received many 

technical upgrades through prior reform projects. B

benefits of court technology never seem to reach beyo

large urban jurisdictions, leaving small-town courts 

the dark ages. Secretaries of lower court judges rou

buy supplies from their own salaries, coax documents 

dilapidated manual typewriters using carbon paper to 

copies, and work by candlelight during frequent 

outages. Even in the larger cities where technology ha

made available to the courts, some judicial officials see

to care whether the hardware gets used. Duri

interview with a judge in Colombia in 1999, he poin

the computer behind his desk and told me he had neve

it because no one was available to train him on h

operate it. The computer had been there for months an

never been turned on. This indifference is due in 

measure to the absence of consistent, motivated

progressive judicial education and to the failure t

judges and staff accountable for gaining competenc

the new technology made available to them.

47

The Government will provide leadership to ma

judicial system more fair, effective, transparent

accessible. The primary question to ask here is this

government in which corruption is the rule rather th

exception, where does the Pastrana Administration 

to find leaders with the credibility, influence, and cha

required to bring the judiciary into line? Without que

the judiciary must find within itself the heart and int

to stand independently and coequally with the oth

branches. 

22
For decades the judiciary has been little more t

rubber stamp for congressional statutes and presid

decrees, swaying with the political winds and bending 

will of whichever ideology was dominant in the gover

at any given time. Any reform package must addre

issue of judicial independence and autonomous sta

government. But part of the move toward gr

independence must emphasize political will on the p

the other branches to allow the judiciary to real

position as an equal member of a tripartite govern

There must be oversight and supervision by indepe

monitoring commissions over the work the judiciar

day in and day out and a uniform methodolog

processing any concerns raised in the evaluative pr

There must be rules of procedure to follow and sanct

be applied if the judiciary falls short of its mandate, s

expediting cases and enforcing the rule of law. The jud

must also be open to greater scrutiny by the news med

society in monitoring its proceedings and conduct. 

must be a code of personal and professional conduct t

judges and judicial officials accountable for their beh

They must be held to a high moral and ethical stand

the citizens are to begin to have any faith in the instit

of justice, even if doing so entails submission to some 

vetting process such as that to which members of the 

forces must undergo under the dictates of Plan Colom

The purpose of the judiciary in any society is to order soc

relationships among private and public entities a

individuals and to resolve conflicts among these socie

actors. Unfortunately, the Latin America judicial system 

widely perceived to be in a state of crisis because it cann

fulfill these basic expectations. A climate of distrust a

frustration permeates the system and has been acknowledg

by virtually every sector of society including priva

individuals, the business community, and system insiders l

judges and lawyers. This perception of ineffectiveness by t

institution’s potential users discourages its intend

beneficiaries from seeking its services and leaves them w

23
low expectations of justice when forced to participate in judi

proceedings.

48

This lack of trust in the efficacy of the courts is i

responsible for the rise of vigilantism. The judiciary c

hope to assert control of the rule of law if there 

discernible leadership capable of gaining the confide

the people.

There is also a clash between how the judiciary att

to enforce the law, and how the population sees the jud

as interfering with the natural order of society. How c

judiciary enforce laws which rural groups from indig

cultures have no association with or understanding o

basic norms of a modern democracy assume tha

population understands democratic principles and su

to life under one rule of law. But how can a judiciary fu

in a country where more than one rule of law exists, s

guerrilla law, indigenous law, and the official law 

land? The government has neglected the duty of edu

citizens about their rights and how the system ope

This neglect is partly responsible for the people’s di

and suspicion of the judicial system. At the same time

education will bring transparency and accountabil

empowering the people to be more critical and demand

the institutions that serve them.

Reform of the judiciary must begin with comm

leadership at the highest level of the judicial branc

leadership must make judicial outreach and 

education a priority. In this regard, the experience of 

in the United States could clearly benefit the Colo

judiciary under a carefully devised reform program. A

scholar convincingly explains,

The design of judicial policies must start with the cl

leadership of judges as main characters of the reform strate

It is equally incontrovertible that such a reform binds the ot

bodies of the state in the same imperative manner, 

24
demands that leaderships coordinate actions, lay bridg

toward dialogue, and solidify consensus.

49

The Government will seek to reduce immunity 

through improved prosecution, more effective investiga

and speedier trials. Millions of dollars have been pu

into Colombian judiciary reforms over the last 25 

without significant success. How does the Pas

Administration intend to attain such reforms if nothi

worked yet? Notwithstanding that corruption is the n

one problem in the judicial institution, the judiciary 

lacks an effective investigative arm capable of doing 

in a professional, forthright, and accountable manne

investigative and prosecutorial arms of the judicia

lacking in numerous respects. Members have little re

education and training to do their work effectivel

competently, and they are not subjected to rig

background checks during the hiring process. Becaus

lack professionalism and self-esteem, they are susce

to bribery from the drug mafias, they deal 

themselves, or they work with self-defense g

(paramilitaries, death squads, or citizen militias) in or

make extra money or settle personal vend

(unfortunately, sometimes judges and colleague

targets of such vendettas).

Such involvement presents obvious impediments 

administration of justice. For instance, it becomes 

impossible to prove cases against paramilitary grou

massacres and other human rights violations w

risking one’s life in the process. As a case in po

narcotrafficking investigation was underway in the P

coast port of Buenaventura, a major drug traffickin

smuggling transit point. When the judge overseein

investigation requested a status report from the ju

police assigned to the case, they told the judge, “We lik

and you know nothing.” The judge was forced to dr

proceedings or risk grave bodily harm.

50

 In the face o

intimidation from within the organization itself, ho

25
meaningful change occur in the scope of a 3-year p

under Plan Colombia? 

Provide effective coordination, including 

communication and effective policy implement

between the judiciary and different branches and off

the State responsible for judicial reform and administr

Colombia is a government marked by centralizatio

tight compartmentalization. This encourages secrec

impedes the free exchange of talent and ideas acro

political landscape. To attain open communications 

free flow of information is to ask an entire governm

only 3 years to shed a mindset that traces its origins b

colonial rule. There are sharp divisions and even 

animosity between investigative bodies of the judicia

national police, and army units assigned to ju

operations. The turf battles that erupt result i

production of false evidence or the destruction of evide

an attempt to discredit another body’s work pr

Sometimes human rights violations result and 

violence occurs between agencies. 

Other branches of government strongly 

developing more effective communication with the ju

branch, and any attempts on the part of the judici

improve its status and independence are often me

suspicion or evasion. Judicial activism is viewed 

distrust and skepticism. The traditional role of the jud

was to condone the exercise of executive power, so th

little interest today in granting to the judiciarie

authority or autonomy that might liberate the court

executive tutelage—and in the process expose the exe

to judicial scrutiny or loss of political clout. For cha

take place, the other two sisters must be willing 

Cinderella come to the ball.

There is an ironic denouement, glanced at e

concerning the idea of better communication 

coordination between the judiciary and the othe

branches. The faceless courts were once praised by the 

26
two branches of government as the last hope for Colom

fight drug trafficking, guerrilla insurgency, seditio

human rights abuses. Four consecutive presid

administrations solicited and received millions of dol

foreign aid from the United States to develop, trai

fund the court. However, when the faceless courts t

their prosecutorial attention on government corruptio

politicians cried foul and accused the courts of incomp

and vigilantism. When the courts focused a corr

investigation on President Samper, his associates 

Congress promptly introduced a bill that would 

repealed the crime of illegal enrichment and accumu

wealth without being able to justify its origin.

51

 S

thereafter members of the Congress unsucces

introduced a bill that would have done away wit

faceless courts altogether. Only the vehement opposi

an honest Justice Minister prevented the bill from p

even though the fight resulted in his resignation

successor was more inclined to play ball with the exe

and vowed to remove from the jurisdiction of the fa

courts all crimes that were not classified as atrocities.

faceless courts were largely legislated out of existe

June 1999.

The irony of this episode is that the executive b

lobbied the United States intensely for aid in establ

the faceless courts as a conduit to judicial reform, bu

turned on the courts when they showed any sign of ju

independence. The episode well demonstrates the ch

communication and distrust between the judiciary a

other two branches. 

Increase training for judicial officers. There is ple

solid evidence to suggest that this initiative, if adeq

addressed, could set the entire reform process m

forward. But at the present time, there is a serious 

tools, training methodologies, and infrastru

Incompetence within the judicial apparatus is a s

obstacle to raising the status of the judiciary 

27
respectable branch of government. Court procedur

often not followed or intentionally ignored. Required 

such as verifying the identity of witnesses or se

physical evidence are often not taken, or taken in su

incompetent manner as to render the witn

unavailable, or the evidence useless. While many me

of the judiciary do their best to make do with what res

they have, they do not receive the proper training to co

methodical investigations and gather evidence. Nor d

necessarily have the forensic facilities to support the w

Many personnel have little education and are youn

inexperienced. Often their families live below the p

line and experience some of the worst living cond

Salaries are so low and working conditions so poo

criminal elements have little difficulty buying off ju

police and investigators. Also, as already mentioned, 

judicial investigators and police are known to moo

with self-defense groups, paramilitaries, and 

squads.

53

 There is a critical urgency to create a b

educated, better-trained, and better-compensated co

professionals. Getting to this point requires tho

background investigations and vetting of applicant

ongoing review of their performance, qualification

integrity. Low self-esteem in the court system is also a 

problem. Implementing improvements by professiona

and empowering judicial officers is crucial to imp

morale. 

Moreover, a strong code of conduct must be estab

and enforced, transparency must be achieved by r

review of court activities, and all must feel the certaint

the full weight of the law will be brought down o

judiciary officer who violates the rules.

Ensure that judicial decisions are open to public sc

and that the result is just in all cases—including m

cases in civilian jurisdictions. This is another goal st

by centuries of legal tradition that cannot be undone 

time allotted under Plan Colombia. The criminal j

28
tradition in Colombia is directly descended from the 

inquisitorial processes of the ecclesiastic courts and s

to normative conduct not easily discarded.

54

 This man

conducting court business has generally allowe

judiciary to work free from public scrutiny because th

being enforced are not based on stare decisis (i.e

principle that legal precedent will govern) which we 

Anglo-American legal system take so much for gr

There is a disconnect between the judicial decisionm

process and how the decisions are justified to the s

This is because the courts have been so closely asso

with doing the bidding of the executive that there is s

no trust in the judicial branch. 

Judicial procedures must be transparent to 

scrutiny, but with carefully crafted exceptions, na

defined in law. Public scrutiny should be suspended 

there is a need to protect citizens against falseho

unwarranted invasion of privacy, to secure a fair tria

to prevent breaches of national security. Today, s

violations of the democratic process occur, such as 

arrests, particularly by the military in zones of confli

routinely made without the issuance of warran

required under the Constitution. “Between 1993 and 

the military arrested 6,019 persons on suspic

membership in guerrilla organizations; in 5,500, or o

percent of the cases, the Office of the Procurador-G

found there was insufficient evidence to issue f

charges.”

55

 Regardless, the civilians were held for m

without charges being brought or dropped. 

Any reforms intended to open the courts to scrut

not necessarily entail abandoning the judicial procedu

place. Rather, emphasis must be placed on followi

procedures, and there must be accountability 

procedures are ignored or abused. 

Implement a core curriculum for judicial 

investigators within a single judicial police tra

academy. This is actually a realistic and possible goal 

29
the plan. The United States has a great deal to 

Colombia in this area of reform, and units within th

Department of Justice, along with programs institu

nongovernmental organizations such as the America

Association, the American Judicature Society, the Na

Judicial College, and the National Center for State C

have exceptional assets and strategies for insti

effective training curriculums. But due to the serious 

tools and reliable infrastructure, one must wonder wh

such an academy could be established and institution

within the 3-year funding limit of Plan Colombia. 

Nevertheless, establishing a national institut

academy for training judicial police and investigative 

would bring some cohesiveness, esprit de corps

consistency in training and preparation. Raising the s

requirements along with the regimen and disc

instilled in such a curriculum, along with the improve

in career benefits mentioned earlier, could signifi

reduce the level of corruption within the judiciary and 

discernible positive change to the third branch. Su

academy would also function as a clearinghous

coordinator for the continuing education of judicial of

and as a center for court research and sup

Establishment of this institution would be in itself an

method of making the judiciary accountable, and 

result in citizens becoming less suspicious and ne

toward the judicial system. 

Ensure public access to justice and a fair d

nationwide. This is another area of the plan tha

potential to succeed. The court process in Colombia h

centuries been plagued by abuse and tyranny. In th

quarter century, one particularly odious practice, clon

witnesses, has been allowed to occur routinely in 

proceedings nationwide, in which the identities of wit

have been withheld by the court in order to c

testimony in notorious cases. “Cloning occurs whe

30
same person is presented on two or more separate occ

as different witnesses.”

56

In one particular such case that gained interna

attention, a group of trade union workers were arr

accused of committing terrorist acts, and brought befo

regional courts.

57

Their capture and detention were based on the testimony of 

least four “faceless” or anonymous informants w

collaborated with Army investigations. The Attorney-Gene

(Procurador-General), while carrying out his oversig

function in this case, determined that some of the

anonymous witnesses had been cloned.

58

Such practices lead citizens to lose faith in the jud

and compel them to seek justice from paramilitar

vigilante groups (known as autodefensas) that exact j

with their own swift and brutal methods.

59

 Citizens 

become tolerant of vigilantism because they know th

alternative is to wait years for official justice to be ser

The same vigilante and paramilitary groups that ta

law into their own hands, however, have been respo

for acts of violence and intimidation against ju

prosecutors, and judicial police units whose investig

threaten the operations of such groups. 

Opening the courts to public scrutiny and cri

would do much to improve access to justice. Along 

speedier proceedings, improvements in court proce

and broader dissemination of court decisions, citizens 

again go to the courts to seek justice and better ev

whether justice was being served.

Eliminate corruption. The drafters of Plan Col

have recognized that “the proceeds of drug traffickin

corrupted officials in all branches of Governmen

private activity, and eroded public confidence in 

institutions.”

61

 The primary intention should be to a

corruption head on, “by building upon existing initiat

including the Presidential Program Against Corruptio

31
the Prosecution Services Anti-Corruption Unit a

implementing effective financial disclosure and rig

pre-employment and in-service integrity checks.

details are too complicated to address here, but it m

noted that even the Anti-Corruption Units are susce

to bribery and corruption. An overabundance of pre

would dictate that this is so. 

Other such special units and organizations have 

created in Colombia in the past, and proved to be little 

than smoke and mirrors to appease the United Stat

watchdog organizations monitoring Colombia from a

The effort merely validates the grand Latin Am

tradition of obfuscation and disinformation. 

The paucity of controls on institutional corrupt

aggravated by the power and influence of the exec

which exert a shield of protection over corrupt investi

agencies. Added to the mix is the military, which ca

ever-present shadow on the surface of popular demo

Along with the military, both branches often work in c

to prevent the judiciary from holding investigative u

high standards of conduct and efficiency. The excu

such conduct and collusion is often simply po

expediency. 

It might truthfully be said that the institut

corruption constitutes a fourth branch of governmen

pervades the other three branches. Unless Plan Col

meets the issue of institutional corruption head o

billions of dollars spent on the effort will have been wa

Deprive criminals of illegal profits. The goal, it see

going after the assets of criminals is to create a fu

supporting “law enforcement and other social initi

(including land reform, alternative development, an

strengthening of civil institutions) which are critica

lasting peace.”

62

 The laundering

63

 of drug profits 

dramatic impact on the economies of both the United 

and Colombia, and much of the laundering occurs in 

32
U.S. cities. Estimates are that Colombian drug traff

launder as much as $6 billion a year

64

 through a p

known as the Black Market Peso Exchange. This 

money-changing strategem that originated in the 195

way to circumvent the Colombian government’s restri

on citizens’ access to U.S. currency in an effort to e

compliance with trade policies, tariffs, and taxes of 

sold in Colombia.

65

There has been a fairly successful mutual assi

mechanism in place for some time, known as the Cu

Service Mutual Assistance Agreement of 1999

agreement has yielded impressive results in cracking 

on money laundering and seizing trafficker assets

notably in 1999 when Operation Juno and Ope

Millennium struck significant blows to drug traffick

the United States and Colombia. The success 

operations was attributed to an exceptional and, 

words of U.S. Attorney General Janet Reno, “unpreced

collaborative effort”

66

 between U.S. and Colom

authorities. Given the mechanisms already in place

difficult to understand from Plan Colombia’s 

language how the fight against money laundering und

plan would be distinguished or revised from its c

form. 

The existing mechanisms that can be used for dep

criminals of illegal profits only seem to reach those 

resulting from drug trafficking. But what about 

profits resulting from tax evasion, political corru

bribery, and the crimes of extortion and committ

guerrillas? 

A COMMENT ON THE NATURE OF JUDICIAL

REFORM PROGRAMS

Reform programs are dependent on the wind

opportunity created when funds are allocated to accom

specific foreign policy goals. Once the program fund

33
exhausted, the program ends, regardless of wheth

goals of the program have been met. The nature of ju

reform, however, cannot be limited to beginning and e

dates. Reform projects require a significant commitm

time and resources over a period of years. If there 

opportunity for fine-tuning newly installed programs 

follow-up monitoring, there is a risk that the program

be abandoned or cause additional problems down the r

This leads then to another concern: reform pro

must undergo careful and diligent risk analysis p

implementation and commitment of significant 

monies. Otherwise, rather than doing good deeds to b

Colombia’s justice system, that system will be f

destabilized, thereby adversely affecting U.S.-Colo

relations. Unfortunately, the scramble by cont

consultants to respond to requests for proposal

resulted in bad projects because due care was not e

during what is often a frantic competition time frame

Colombia has led to a feeding frenzy in the cons

industry. Let us hope that the gatekeepers of the fun

exercise careful discretion in how the monies are disbu

CONCLUSION

There is little disagreement that a strong jud

insures a strong rule of law. If the judiciary c

empowered, revitalized, restructured within the bou

its best normative traditions, and if corruption is p

Plan Colombia could succeed. To do this, however, 

must be updated, penalties for certain crimes mu

increased, judicial officials must be held accountab

their actions, human rights violations must be prosecu

the fullest extent, and transparency must allow new l

shine on the judicial institutions. 

Such changes do not take place overnight. But 

same time one must hope that change for the be

possible. For as much as I have been critical of 

34
Colombia and the government, I can also attest that 

are many in government who are without guilt, hone

fault, faithful to the rule of law, and wear their patriot

their sleeves. These individuals deserve our full su

hopes, and prayers every day of the week. But 

individuals are often powerless to make real ch

happen because they are marginalized by the c

majority and stymied by the vagaries of the sy

Perhaps that is one of the most frustrating reason

Plan Colombia is so problematic. 

Most Americans want to help Colombia out of its 

to help the Colombians who dream of an equitable soci

economic system and a civil society that honors the 

law. The problem is that while such Colombians 

represent the majority of the Colombian population

represent an almost powerless minority withi

government institutions themselves. One can be as h

as the day is long, but if a superior is corrupt

subordinate staffer is corrupt, any effort to chang

system will be an exercise in futility and may ev

oneself killed in the attempt. 

An exodus from Colombia is now underway 

unprecedented level as lawyers, judges, even supreme 

justices, and other professionals throw in the tow

leave their beloved homeland. If this brain drain cont

then who will be left minding the store but those who 

to gain the most from the money being thrown at Col

under the terms of the plan? The rest who are no

position to leave are thus in a very difficult and te

situation. 

Finally, for any kind of plan with the ambitions o

Colombia to succeed it has to be developed based 

country’s needs and historical conditions. But 

importantly it must conform to the nation’s eco

capacity to execute it. I fervently hope I am wrong abo

analysis and the criticisms I have leveled at Plan Colo

But I fear my analysis is tragically accurate, and that 

35
than Plan Colombia solving the Colombian crisis, 

instead push the country over the brink into anarchy

war, and social calamity for decades to come. 

ENDNOTES

1. Carol Clark, Plan Colombia: Is the U.S. Addicted to M

Fixes? CNN.com (visited January 30, 2001) http://www.cn

SPECIALS/2000/Colombia/story/essays/clark/index.html 

with the author).

2. According to a report issued by the Economist Intelligenc

in November 2000, “About $2.2bn covers Colombia’s annual 

allocations for defense, police and the judiciary over the thr

period of the plan. An additional $850m comes from Colombian 

bonds” sold to the wealthy, while another $950m will be lo

Colombia by multilateral lenders, aiming at boosting spending 

creation and training and infrastructure projects.” Country F

Report, November 6, 2000 (visited January 20, 

http://biz.yahoo.com/ifc.co.news/110600-1.html (on file w

author). 

3. Angel Ricardo Oquendo, Corruption and Legitimation C

Latin America, 14 Conn. J. Int’l L. 475, 486 (1999) (stating th

distinguishes today’s corruption is precisely the fact tha

accompanied by a sense of crisis with a legitimacy deficit).

4. Considering that Colombia is already the most heavily 

country in Latin America, it hardly needs more military weapons 

its borders. A table compiled by the Federation of American Scie

materiel going to Colombia is available for revi

http://www.fas.org/asmp/profiles/Industry/Colombiadefens

cts.htm (on file with the author).

5. As a less than successful attempt to pacify human 

advocates.

6. S. Rep. No. 612 (1961), 1961 U.S.C.C.A.N. 2476.

7. Preface, Plan Colombia: Plan for Peace, Prosperity, a

Strengthening of the State, United States Institute of Peace L

(visited November 9, 2000) http://www.usip.org/li

pa/colombia/adddoc/plan_colombia_101999.html (on file w

author).

36
8. S. Rep. No. 612 (1961), 1961 U.S.C.C.A.N. 2478. 

9. See Andrew Reding, “Survey of Latin American Press-The 

You Are to Colombia, The Worse the New Aid Plan Looks,” Pacif

Service, August 18, 2000. 

10. “Brazil Says Plan Colombia Biggest Security Risk,” R

August 29, 2000 (visited January 20, 2001) http://www.cn

2000/WORLD/americas/08/29/brazil.army.Colombia.reut 

with the author). 

11. David Adams, “Plan Colombia Gets Off to Rocky Sta

Petersburg Times, February 11, 2001, at 1A. 

12. Ibid.

13. Daniel Kaufman, et al., “Governance Matters,” Policy R

Working Paper, The World Development Research Group, Octo

1999. 

14. Transparency International, 2000 Corruption Perception

(last visited September 27, 2000) http://www.transpare

/documents/cpi/2000/cpi2000.html (Colombia ranks in the 

half at 60 out of 99 countries) (on file with the author).

15. Commenting on the results of his participation in dra

report, Toward Greater Peace and Security in Colombia: Fo

Constructive U.S. Policy: Report of an Independent Task 

Sponsored by the Council on Foreign Relations and the Inter-Am

Dialogue (Council on Foreign Relations, 2000), at p. 30. 

16. For example, the Secretary of the President, Juan Her

has benefited from several government contracts through a co

Acertar Ltd., whose president and legal representative is Hern

wife. The contract is for making uniforms for the police a

Departamento Administrativo de Seguridad (DAS). See 

familiares, Semana.com (March 2, 2001). The news journals un

new scandal in any of the three branches on an almost daily ba

17. Ana Carrigan, “A Foolish Drug War,” New York Times, Fe

10, 2001, at p. A15.

18. According to Ambassador Robert White, President of the 

for International Policy.

37
19. The World Geopolitics of Drugs, Annual Report 1995

(visited January 20, 2001) http://www.odg.org/ra

gb/RP12_1_COLOMBIE.html (on file with the author).

20. For a detailed and probing analysis of the case, see Chapt

in Édgar Torres and Armando Sarmiento, Rehenes de la Mafia, 

Intermedio Editores, 1998.

21. See World Geopolitics, p. 19.

22. Ibid.

23. “Colombia Corruption” (visited January 20, 

http://www.fas.org/man/dod-101/ops/war/2000/04/000420

tm (on file with the author).

24. Ibid.

25. See Felipe Saez Garcia, “The Nature of Judicial Reform i

America and Some Strategic Considerations,” 12 Am. U. Int’l 

1267, 1287 (1998).

26. Between 1979 and 1991, 278 judges were kil

narcotraffickers, guerrillas, and paramilitaries.

27. See Garcia, note 26, at p. 1287.

28. See Martha I. Morgan, “Taking Machismo to Court: The 

Jurisprudence of the Colombian Constitutional Court,” 30 U. 

Inter-Am. L. Rev. 253 (1998). 

29. See Transparency International, note 14.

30. Legal and Judicial Reform, Statement of the Worl

Clearinghouse for International Judicial Reform (visited Janu

2001) http://wbweb4.worldbank.org/legal/legop_judicial.htm

with the author).

31. For an in-depth examination of the Constitutional Court 

history of the Colombian judiciary, see Luz E. Nagle, “Evolutio

Colombian Judiciary and the Constitutional Court,” 6 Ind. Int’l & 

L. Rev. 59 (1995). 

32. Ibid., pp. 85-88.

38
33. See Luz E. Nagle, “Colombia’s Faceless Justice: A Ne

Evil, Blind Impartiality or Modern Inquisition?” 61 U. Pitt. L. R

953 (2000).

34. Ibid., pp. 936-937.

35. See generally, Nagle, note 34; and Lawyers Commi

Human Rights, Report, Colombia: Public Order, Private Injustic

36. Section of Plan Colombia titled, “Reform of the Justice 

and the Protection of Human Rights.” 

37. Linn Hammergren, The Politics Of Justice And Justice 

In Latin America, 1998, p. 16.

38. Ibid.

39. Ibid.

40. Javier Giraldo, “Corrupted Justice and the Schizophren

in Colombia,” 26 Soc. Just. 4, 1999. 

41. See Edgardo Buscaglia and William Ratliff, Judicial Re

Latin America, 1995, p. 2.

42. For an extensive analysis of the problem, see Edgardo Bu

“A Quantitative Assessment of the Efficiency of the Judicial S

Latin America,” 17 Int’l Rev. L. and Econ. 275, 1997. 

43. See Maria Dakolias, “A Strategy of Judicial Refor

Experience in Latin America,” 26 Va. J. Int’l L. 167, 170{1985})

44. See Garcia, note 25, p. 1269 (citing Maria Dakolias, “A S

of Judicial Reform: The Experience in Latin America,” 26 Va. J

167, 168 [1985]).

45. Enrique A. Sosa Elizeche, “Restructuring of J

Administration in Paraguay,” 42 St. Louis U. L.J. 1153, 1157 (

46. See Andean Commission of Jurists, The Andes: Emerge

Emergency? Executive Summary 47, 1997.

47. Dakolias, note 44, p. 173.

48. See Fernando Carrillo Flórez, “Supreme Courts of the A

Organization: Judicial Independence and Its Relationship w

Legislative Bodies,” 42 St. Louis U. L.J. 1033, 1041 (1998).

39
49. See Nagle, note 31, p. 947.

50. Douglas Farah, “U.S.-Colombia Ties Strained Over 

Americans See Pervasive Cartel Influence,” The Washingto

January 7, 1996, p. A21.

51. Ibid. This attempt to change the jurisdiction of the cour

veiled attempt to shield leaders of the Cali Cartel from prosecu

the faceless courts since they were never charged with com

violence. 

52. Author’s interview of a faceless judge, conducted in July 1

53. Nagle, note 34, pp. 886-893.

54. Commission on Human Rights, Question on Human Righ

Persons Subjected to Any form of Detention or Imprisonment: R

the Special Rapporteur on the Independence of Judges and Lawy

Param Cumaraswamy: Addendum: Report on the Mission of the 

Rapporteur to Colombia, United Nations Report E/CN.4/1998/39

March 30, 1998. 

55. Ibid., para. 74. “This abuse of regional justice ha

confirmed in several cases where regular army informants—

whom are paid monthly wages to testify—are used to accuse pe

rebellion or terrorist acts.”

56. Nagle, note 31, p. 951.

57. See Commission on Human Rights, note 55, para. 74.

58. For a practical examination of the autodensas and param

groups in Latin America, see Carlos Medina Gallego, Autod

Paramilitares y Narcotrafico en Colombia: El Caso Puerto 

Bogotá: Editorial Documentos Periodísticos, 1990.

59. Ibid. 

60. Section onThe Reform of the Justice System and the Prote

Human Rights, subsection titled “Eliminate Corruption.” 

61. Ibid.

62. See The Money Laundering and Financial Crimes Strat

of 1998, Pub. L. 105-310, October 30, 1998. 

40
63. See Suzanne Timmons, “Looking to Crack Do

Contraband,” Business Week, October 30, 2000, p. 29; and Luz E

“U.S. Mutual Assistance to Colombia: Vague Promises and Dimi

Returns,” 23 Ford. Int’l L.J. 1235 (2000).

64. In order to control trade and charge high tariffs on 

imported to Colombia, the Colombian government required impo

purchase merchandise in dollars that could only be obtained 

Colombian central bank. The dollar/peso broker allowed the pur

dollars without the government’s knowledge so that the importe

avoid the Colombian tariffs and taxes by “smuggling” the goods w

government scrutiny. The broker purchased dollars from Col

exporters who then sold goods in the United States and deposite

into U.S. accounts. The brokers then paid the exporter in p

Colombia. Even though the customers paid a small premium 

dollars that were passed to them by the broker, it was cheap

paying the tariffs and taxes on the goods obtained in Colombia

traffickers have adapted their money laundering operations 

Exchange in the following manner: First, the Colombian tra

export drugs to the United States. Next, the drugs are sold for 

Then the trafficker enters into a “contract” and sells the mone

Colombia Black Market Peso Exchanger. The Exchanger, 

representative, then introduces the bulk currency into the U.S. b

system. Then the U.S. dollars are sold to Colombian importe

importers next purchase goods, either from the United States 

collateral markets. Finally, the goods are transported to Colomb

in this way the wholesale value of the drugs is returned to Colo

the form of trade goods. See The Department of the Trea

Department of Justice, The National Money Laundering Strat

1999, The Department of the Treasury and Department of J

September 1999, p. 26 (visited April 9, 2000) http://www.tre

press/releases/docs/money.pdf (on file with the author). For ad

discussion, see Nagle, note 64, pp. 1263-1267.

65. Michael Kirkland, “US, Colombia Snap Alleged Drug Rin

Int’l, October 13, 1999.

41
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