September 8, 2003

The Weaknesses of U.S. Human Rights Monitoring in Colombia

by Doug Stokes

The Leahy Amendment is intended to restrict the flow of U.S. military aid to any foreign military units shown to have committed gross violations of human rights. Since its inception in 1997, it has been expanded to encompass all forms of U.S. global military funding. In particular, the Leahy Amendment has been used to monitor U.S. military aid to Colombia, the third-largest recipient of U.S. military aid in the world, and a country with a long-standing civil war between insurgent groups and the Colombian military and its clandestine paramilitary allies. In justifying military aid to the Colombian military, Washington argues that its human rights monitoring prevents U.S. aid from being used to commit human rights violations. The Leahy Amendment is the principal mechanism for ensuring this commitment. However, there are dangerous weaknesses in the implementation of this law that render it effectively useless.

Instead of vetting older units in the Colombian military for soldiers who have committed human rights violations, "counternarcotics" units have been formed from scratch. In this way, the emphasis in the Colombian military is on forming newly vetted units rather than investigating the bad apples in the older units. Another loophole in the law's implementation is the fact that a soldier from a disbanded unit can still receive U.S. military training if his personal record is clean. He can then go back to his unit and pass on his newly learned skills. In effect, tainted soldiers within banned units can still receive training as long as it is second-hand and not directly from U.S. military advisers.

The Leahy Amendment relies on a large degree of transparency on the part of the U.S. government. As a result, the government annually publishes the Foreign Military Training Report (FMTR). The Washington-based think-tank the Center for International Policy (CIP) regularly monitors the FMTR and publishes research findings based on its information. CIP has shown that since 1999 the United States has increased the classification of information contained in its earlier FMTR to a higher degree of secrecy. This "prevents all without classified access from monitoring implementation of the 'Leahy Law' human rights restrictions." FMTR reports prior to the increased classification had shown that "vetted individuals from Colombian Army brigades banned from receiving unit-level assistance were being trained" in direct contravention of the Leahy Law. The stricter classification of the FMTR thus makes it "impossible to oversee the U.S. government's implementation of the Leahy Amendment." In short, due to the decreased transparency of the FMTR there is now no way of knowing whether this illegal training is ongoing.

While the Leahy Law encompasses most forms of military funding, the version of the Leahy Amendment applied to Defense Department-funded military aid is much weaker than that applied to drug war funding, which included the $1.3 billion mostly-military aid package called Plan Colombia. For example, monitoring of the U.S. Defense Department's "Section 1004" funding does not apply to military exercises, arms sales, and some forms of intelligence sharing.

In implementing human rights vetting in Colombia, the U.S. government solicits a list from the Colombian Defense Ministry of Colombian military personnel deemed to be free of human rights violations. In order to determine whether a potential trainee is clean or not, the Colombian Defense Ministry checks the Colombian court system or Colombia's Internal Affairs Agency. Importantly, this review ignores cases where credible evidence exists but has not yet resulted in any formal charges against the named individual.

Human Rights Watch notes that formal charges often take years to file under the Colombian judicial system largely because of a lack of funding and/or understaffing. Furthermore, the climate of fear that exists in Colombia, which is partially fueled by the frequent targeting of civilians who have accused Colombian military personnel of human rights abuses, also represents a serious weakness in U.S. human rights monitoring.

Lastly, the use of private contractors by the U.S. government obscures legal oversight and end-use monitoring of training and arms. U.S. mercenary companies like DynCorp provide logistical support and training to the Colombian military (see, U.S. Mercenaries in Colombia). Another U.S. military contractor, Military Professional Resources Inc. (MPRI), not only worked closely with the Colombian government in performing a review of the Colombian military, it also continues to maintain a database of over 11,000 private individuals—mostly former U.S. military personnel—who can be called upon for temporary assignment in the field.

This "public-private partnership" is convenient in a number of ways. It allows Washington to deploy military know-how in pursuing strategic objectives while avoiding congressional caps on official military personnel overseas. Privately outsourced contractors also allow the government to circumnavigate the potential negative media coverage that often results from U.S. military casualties. Private contractors are only accountable to the company that employs them; therefore, if anyone is involved in actions that may generate negative publicity, the U.S. government can plausibly deny direct responsibility (see, Are They Civilians or Mercenaries?).

Myles Frechette, a former U.S. ambassador to Colombia, outlined the benefits of using private mercenaries when he argued that it is "very handy to have an outfit not part of the U.S. Armed Forces. Obviously, if anybody gets killed or whatever, you can say it's not a member of the armed forces." This private-public partnership thus seriously weakens the transparent implementation of the Leahy Law, which only covers public money and the use of official U.S. military personnel and equipment. Ultimately, outsourcing provides a high-level of "plausible deniability" for U.S. military planners.

All these factors have very serious ramifications on U.S. policy in Colombia, and in particular on the monitoring of U.S. military aid and its use by the Colombian military. Given the absence of effective human rights monitoring and the close-ties between the Colombian military and right-wing paramilitaries responsible for some 80 percent of all human rights abuses in Colombia, U.S. military aid is effectively going to the worst terrorists in Colombia.

Doug Stokes is a lecturer at the Department of International Politics, University of Wales, Aberystwyth. He has published extensively on U.S. counterinsurgency in Latin America with a strong emphasis on Colombia. Read more of his work at www.dougstokes.net

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