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+ - EXAMINING WORKERS' RIGHTS AND VIOLENCE AGAINST LABOR UNION LEADERS IN COLOMBIA
+
+[House Hearing, 111 Congress]
+[From the U.S. Government Publishing Office]
+
+
+
+ EXAMINING WORKERS' RIGHTS AND VIOLENCE AGAINST LABOR UNION LEADERS IN
+ COLOMBIA
+
+=======================================================================
+
+ HEARING
+
+ before the
+
+ COMMITTEE ON
+ EDUCATION AND LABOR
+
+ U.S. House of Representatives
+
+ ONE HUNDRED ELEVENTH CONGRESS
+
+ FIRST SESSION
+
+ __________
+
+ HEARING HELD IN WASHINGTON, DC, FEBRUARY 12, 2009
+
+ __________
+
+ Serial No. 111-1
+
+ __________
+
+ Printed for the use of the Committee on Education and Labor
+
+
+ Available on the Internet:
+ http://www.gpoaccess.gov/congress/house/education/index.html
+
+ ----------
+ U.S. GOVERNMENT PRINTING OFFICE
+
+47-097 PDF WASHINGTON : 2009
+
+For sale by the Superintendent of Documents, U.S. Government Printing
+Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
+DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
+Washington, DC 20402-0001
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+ COMMITTEE ON EDUCATION AND LABOR
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+ GEORGE MILLER, California, Chairman
+
+Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
+ Chairman California,
+Donald M. Payne, New Jersey Senior Republican Member
+Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
+Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
+Lynn C. Woolsey, California Michael N. Castle, Delaware
+Ruben Hinojosa, Texas Mark E. Souder, Indiana
+Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
+John F. Tierney, Massachusetts Judy Biggert, Illinois
+Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
+David Wu, Oregon Joe Wilson, South Carolina
+Rush D. Holt, New Jersey John Kline, Minnesota
+Susan A. Davis, California Cathy McMorris Rodgers, Washington
+Raul M. Grijalva, Arizona Tom Price, Georgia
+Timothy H. Bishop, New York Rob Bishop, Utah
+Joe Sestak, Pennsylvania Brett Guthrie, Kentucky
+David Loebsack, Iowa Bill Cassidy, Louisiana
+Mazie Hirono, Hawaii Tom McClintock, California
+Jason Altmire, Pennsylvania Duncan Hunter, California
+Phil Hare, Illinois David P. Roe, Tennessee
+Yvette D. Clarke, New York Glenn Thompson, Pennsylvania
+Joe Courtney, Connecticut
+Carol Shea-Porter, New Hampshire
+Marcia L. Fudge, Ohio
+Jared Polis, Colorado
+Paul Tonko, New York
+Pedro R. Pierluisi, Puerto Rico
+Gregorio Kilili Camacho Sablan,
+ Northern Mariana Islands
+Dina Titus, Nevada
+[Vacant]
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+ Mark Zuckerman, Staff Director
+ Sally Stroup, Republican Staff Director
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+ C O N T E N T S
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+ ----------
+ Page
+
+Hearing held on February 12, 2009................................ 1
+
+Statement of Members:
+ Altmire, Hon. Jason, a Representative in Congress from the
+ State of Pennsylvania, prepared statement of............... 71
+ McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member,
+ Committee on Education and Labor........................... 5
+ Prepared statement of.................................... 6
+ Article, the Washington Post, April 19, 2008,
+ ``Colombia's Case: The Intellectual Poverty of a Free-
+ Trade Deal's Opponents''............................... 63
+ Miller, Hon. George, Chairman, Committee on Education and
+ Labor...................................................... 1
+ Prepared statement of.................................... 3
+ Additional submissions:
+ Documents submitted by Colombian Ambassador Carolina
+ Barco, dated February 12, 2009, Internet address to 7
+ AFL-CIO letter and fact sheet, dated February 2009,
+ ``Colombia: Continued Violence, Impunity, Flawed
+ Labor Laws and Non-Enforcement of the Law Eclipse
+ the Colombian Government's Few Accomplishments''... 71
+ Letter, dated November 5, 2008, from the Colombian
+ Embassy............................................ 78
+ Letter, dated September 12, 2008, sent to Colombian
+ President Alvaro Uribe Velez....................... 98
+ Letter, dated November 20, 2008, from Human Rights
+ Watch.............................................. 107
+ Letter, dated February 10, 2009, from Gustavo Gallon
+ Giraldo, et al..................................... 110
+
+Statement of Witnesses:
+ Morales, Yessika Hoyos....................................... 22
+ Prepared statement of (English).......................... 24
+ Prepared statement of (Spanish).......................... 26
+ Roberts, James M., research fellow for economic freedom and
+ growth, Center for International Trade and Economics, the
+ Heritage Foundation........................................ 40
+ Prepared statement of.................................... 42
+ Sanchez, Jose Nirio, former Colombian judge in special court
+ for labor-homicide cases................................... 27
+ Prepared statement of (English).......................... 29
+ Prepared statement of (Spanish).......................... 30
+ Sanchez-Moreno, Maria McFarland, Esq., senior Americas
+ researcher, Human Rights Watch............................. 32
+ Prepared statement of.................................... 33
+ Additional submission: ``Breaking the Grip? Obstacles to
+ Justice for Paramilitary Mafias in Colombia,'' Human
+ Rights Watch, October 2008, Internet address to........ 40
+ Vasquez, Jose Luciano Sanin, Director of the Escuela Nacional
+ Sindical (``National Labor School'') of Colombia........... 8
+ Prepared statement of (English).......................... 10
+ Prepared statement of (Spanish).......................... 16
+
+
+ EXAMINING WORKERS' RIGHTS AND
+ VIOLENCE AGAINST LABOR UNION
+ LEADERS IN COLOMBIA
+
+ ----------
+
+
+ Thursday, February 12, 2009
+
+ U.S. House of Representatives
+
+ Committee on Education and Labor
+
+ Washington, DC
+
+ ----------
+
+ The committee met, pursuant to call, at 10:03 a.m., in room
+2175, Rayburn House Office Building, Hon. George Miller
+[chairman of the committee] presiding.
+ Present: Miller, Kildee, Payne, Andrews, Woolsey, Kucinich,
+Wu, Davis, Grijalva, Sestak, Hirono, Hare,Courtney, Shea-
+Porter, Fudge, Polis, Sablan, Titus, McKeon, Souder, Platts,
+Guthrie, Cassidy, and Roe.
+ Staff present: Paulette Acevedo, Legislative Fellow,
+Education; Aaron Albright, Press Secretary; Tylease Alli,
+Hearing Clerk; Tico Almeida, Labor Counsel (Immigration and
+International Trade); Chris Brown, Labor Policy Advisor; Jody
+Calemine, Labor Policy Deputy Director; Lynn Dondis, Policy
+Counsel, Subcommittee on Workforce Protections; Adrienne
+Dunbar, Education Policy Advisor; David Hartzler, Systems
+Administrator; Lloyd Horwich, Policy Advisor, Subcommittee on
+Early Childhood, Elementary and Secretary Education; Jessica
+Kahanek, Press Assistant; Sara Lonardo, Junior Legislative
+Associate, Labor; Ricardo Martinez, Policy Advisor,
+Subcommittee on Higher Education, Lifelong Learning and
+Competitiveness; Alex Nock, Deputy Staff Director; Joe Novotny,
+Chief Clerk; Rachel Racusen, Communications Director; Meredith
+Regine, Junior Legislative Associate, Labor; Melissa
+Salmanowitz, Press Secretary; Michele Varnhagen, Labor Policy
+Director; Mark Zuckerman, Staff Director; Robert Borden,
+Minority General Counsel; Cameron Coursen, Minority Assistant
+Communications Director; Ed Gilroy, Minority Director of
+Workforce Policy; Rob Gregg, Minority Senior Legislative
+Assistant; Richard Hoar, Minority Professional Staff Member;
+Alexa Marrero, Minority Communications Director; Jim Paretti,
+Minority Workforce Policy Counsel; Molly McLaughlin Salmi,
+Minority Deputy Director of Workforce Policy; and Linda
+Stevens, Minority Chief Clerk/Assistant to the General Counsel.
+ Chairman Miller [presiding]. The Committee on Education and
+Labor will come to order for the purposes of conducting the
+hearing on examining worker rights and violence against labor
+union leaders in Colombia. This is an important hearing for a
+number of reasons. And I want to thank the members of the
+committee for participating.
+ And certainly, I want to thank our witnesses for
+participating. It is my understanding that this hearing--we
+will be using translators for our witnesses. It is my
+understanding that when we speak, there will be simultaneous
+translation so our witnesses will understand what we are
+saying.
+ When the witnesses are speaking, the translators will then
+translate to us. So this is going to take a little more time
+than a usual hearing with the witnesses, but we want to provide
+sufficient time so the witnesses can properly give us the
+information that they have traveled this distance to do so.
+ I would like to begin by recognizing myself for the
+purposes of an opening statement. And then I will recognize
+Congressman McKeon for his opening statement.
+ Today this committee meets to examine whether ongoing
+violence and weak labor protections are impeding the ability of
+Colombian workers to exercise their fundamental human rights.
+Sadly, Colombia has been the most dangerous place in the world
+to belong to a labor union for the past two decades. In some
+recent years, there have been more labor killings in Colombia
+than in the rest of the world combined.
+ According to the National Labor School, a leading Colombian
+think-tank, almost 2,700 trade union members have been killed
+in Colombia over approximately the past 20 years. And, the
+number of labor union members killed last year jumped by more
+than 25 percent over the 2007 levels. It remains difficult to
+know who is responsible for most of these deaths because so few
+cases have been investigated, let alone prosecuted.
+ The Colombian Commission of Jurists tells us that the
+impunity rate for these crimes still remains at a staggering 96
+percent. At Colombia's current pace of investigations and
+indictments, it would take several decades to get through the
+backlog. This means that thousands of killers continue to
+escape justice.
+ We will hear testimony today that many labor killings have
+been perpetrated by rightwing paramilitary death squads, whose
+leaders have acknowledged targeting union leaders. According to
+reports, many of the killings have been carried out by the
+United Self-Defense Forces of Colombia, or AUC. Although the
+right-wing paramilitary group was officially disbanded a few
+years ago, the demobilization process may have been
+unsuccessful.
+ Some former AUC paramilitary fighters appear to be now
+operating within organized criminal gangs. When I was in
+Colombia last year, union leaders told me they were
+increasingly receiving death threats from a new deadly gang
+called the Black Eagles.
+ Another possible explanation for the rising violence is the
+disturbing phenomenon of extrajudicial killings. This is where
+innocent civilians are murdered by Colombian armed forces and
+inappropriately classified as casualties of war. These so-
+called false positives, the deaths of these individuals, have
+taken the lives of thousands of Colombian citizens, including
+union members.
+ We will hear testimony today of a case where the Colombian
+Army killed three unarmed labor union leaders and then altered
+the crime scene in order to make it look like the victims had
+engaged in an armed conflict.
+ There is concern that some anti-labor violence stems from
+decisions by the Colombian business and political leaders. For
+instance, paramilitary leaders have admitted accepting money
+from a broad array of Colombian and multinational corporations.
+And President Uribe's former director of national intelligence
+has been accused of turning over hit lists to right-wing
+paramilitaries containing the names of union leaders under
+government protection.
+ While Colombian prosecutors have made some modest progress
+very recently in securing some convictions in these labor-
+homicide cases, important questions still remain. First, do
+these investigations and convictions actually find out the
+truth behind the murders? We will hear testimony today that
+prosecutors often accept motives without investigating the real
+underlying motive.
+ And, prosecutors too often investigate with preconceived
+and incorrect theories of the case. One young woman who is
+testifying today intervened in her deceased father's
+investigation. She will tell us that her intervention was
+because prosecutors were advancing a false theory that her
+father's death was a result of a crime of passion stemming from
+an adulterous affair. Indeed, ongoing complaints about the
+publication of inaccurate motives has led the Colombian
+attorney general's office to stop issuing public reports
+regarding motives in these cases.
+ Second, are prosecutors conducting thorough and systematic
+investigations aimed at holding all those who are responsible
+for both the planning and executing the labor killings? Some
+legal observers say that prosecutors are shortchanging
+investigations only after securing convictions of the material
+author of the crime. The material author is likely to be a low-
+level person who pulled the trigger and not one of the
+intellectual authors who either ordered, planned or paid for
+the killing of that individual.
+ Finally, today's hearing will inquire about additional
+obstacles that prevent the Colombian workers from exercising
+their fundamental rights. The International Labor Organization
+has identified significant areas where Colombia's labor laws
+are non-compliant with the core international labor standards.
+ By raising these questions today, I hope that we can begin
+to find solutions to ensure that the backlog of murders are
+finally adjudicated and that Colombian workers have basic labor
+rights to which all workers should be entitled and should be
+able to exercise without fear of violence against them and/or
+their families or their organization.
+ Thank you very much. And I would like now to recognize
+Congressman McKeon, the senior Republican on the committee for
+the purposes of his opening statement.
+ [The statement of Mr. Miller follows:]
+
+ Prepared Statement of Hon. George Miller, Chairman, Committee on
+ Education and Labor
+
+ Today this committee meets to examine whether ongoing violence and
+weak labor protections are impeding the ability of Colombian workers to
+exercise their fundamental human rights.
+ Sadly, Colombia has been the most dangerous place in the world to
+belong to a labor union for the last two decades. In some recent years,
+there have been more labor killings in Colombia than in all of the
+other nations of the world combined.
+ According to the National Labor School, a leading Colombian think-
+tank, almost 2,700 trade union members have been killed in Colombia
+over the past twenty years. And, the number of labor union members
+killed last year jumped by more than 25 percent over 2007 levels.
+ It remains difficult to know who is responsible for most of these
+deaths because so few cases have been investigated, let alone
+prosecuted.
+ The Colombian Commission of Jurists tells us that the impunity rate
+for these crimes still remains at a staggering 96 percent.
+ At Colombia's current pace of investigations and indictments, it
+would take several decades to get through the backlog.
+ This means that thousands of killers continue to escape justice.
+ We will hear testimony today that many labor killings have been
+perpetrated by right-wing paramilitary death squads, whose leaders have
+acknowledged targeting union leaders.
+ According to reports, many of these killings have been carried out
+by the United Self-Defense Forces of Colombia--or A.U.C. Although the
+right-wing paramilitary group was supposedly disbanded a few years ago,
+the demobilization process appears to be unsuccessful.
+ Some former A.U.C. paramilitary fighters appear to be now operating
+within organized criminal gangs.
+ When I was in Colombia last year, union leaders told me they are
+increasingly receiving death threats from a new deadly gang called the
+``Black Eagles.''
+ Another possible explanation for the rising violence is the
+disturbing phenomenon of extrajudicial killings. This is where innocent
+civilians murdered by the Colombian Armed Forces are inappropriately
+classified as casualties of war.
+ These ``false positives'' have taken the lives of thousands of
+Colombian citizens, including union members. We will hear testimony
+today of a case where the Colombian Army killed three unarmed labor
+union leaders and then altered the crime scene in order to make it look
+like the victims had engaged in armed conflict.
+ There is concern that some anti-labor violence stems from decisions
+made by Colombian business and political leaders.
+ For instance, paramilitary leaders have admitted accepting money
+from a broad array of Colombian and multinational corporations.
+ And, President Uribe's former director of national intelligence has
+been accused of turning over `hit lists' to right-wing paramilitaries
+containing the names of union leaders under government protection.
+ While Colombian prosecutors have made some modest progress very
+recently in securing some convictions in these labor-homicide cases,
+important questions still remain.
+ First, do these investigations and convictions actually find out
+the truth behind the murders?
+ We will hear testimony today that prosecutors often accept motives
+without investigating the real underlying motive.
+ And, prosecutors too often investigate with pre-conceived and
+incorrect theories of the case.
+ One young woman, who is testifying today, intervened in her
+deceased father's investigation. She will tell us that her intervention
+was because prosecutors were advancing a false theory that her father's
+death was a result of a ``crime of passion'' stemming from an
+adulterous affair.
+ Indeed, ongoing complaints about the publication of inaccurate
+motives has led the Colombian Attorney General's Office to stop issuing
+public reports regarding motives in these cases.
+ Second, are prosecutors conducting thorough and systematic
+investigations aimed at holding all those who are responsible for both
+the planning and executing the labor killings?
+ Some legal observers say that prosecutors are shortchanging
+investigations after only securing convictions against the ``material
+author'' of the crime. The material author is likely to be the low-
+level person who pulled the trigger and not one of the ``intellectual
+authors'' who either ordered, planned or paid for the killing.
+ Finally, today's hearing will inquire about additional obstacles
+that prevent Colombian workers from exercising their fundamental
+rights. The International Labor Organization has identified significant
+areas where Colombia's labor laws are non-compliant with core
+international labor standards.
+ By raising these questions today, I hope that we can begin to find
+solutions to ensure that the backlog of murders are fully adjudicated
+and that Colombian workers have basic labor rights to which all workers
+should be entitled.
+ ______
+
+ Mr. McKeon. Thank you, Mr. Chairman. We are here today for
+the first hearing of the Education and Labor Committee in the
+111th Congress. Last week we learned that nearly 600,000
+Americans lost their jobs in the month of January. About 3.6
+million jobs have been lost since the recession began just over
+a year ago. Stock values are down, and with them the value of
+millions of workers' retirement savings.
+ I could go on about the grim economic circumstances before
+us, but I think we are all well-aware of the challenges we face
+and particularly the impact on the American workforce. Any of
+these challenges would seem an appropriate topic for the first
+hearing of this panel.
+ Unfortunately, we are not here to examine our nation's dire
+economic straits today. Instead the majority has decided the
+first order of business for this committee, the committee that
+oversees job training and retirement security and health care
+is an examination of the circumstance of workers in Colombia.
+ Don't get me wrong. I am troubled by the reports of the
+violence in Colombia. And I personally believe that one of the
+best things we can do to stem the violence and improve
+conditions in that country would be to enact the stalled
+Colombia free trade agreement.
+ But here in this room where we have a responsibility to
+look out for the concerns of the American workers, American
+students and American families, I find it baffling that we are
+setting those issues aside to look at the situation facing
+workers in a foreign country. Certainly, this Congress has a
+role to play in protecting human rights around the world. And
+to that end, we have an entire committee dedicated to foreign
+affairs.
+ To the witnesses who are here today, I do want to thank you
+for joining us. While I clearly believe we should be focused on
+issues impacting American workers, I know that you have
+compelling stories to share and insights to offer. As long as
+we are here to examine this topic, perhaps we can expand the
+scope of the discussion to reflect the need for free trade to
+help put an end to the unacceptable pattern of violence in the
+nation of Colombia.
+ I would also like to point out, Mr. Chairman, that
+Ambassador Barco is here from Colombia. I think she should be
+recognized. I hope as we continue to work on this issue, if we
+are going to do that, it would be good to let her have a chance
+to state perhaps the other side of the issue. It is unfortunate
+that we can't have her testifying here today.
+ Once again, I want to thank the witnesses for being here. I
+hope the next time this panel gathers the topic will hit a
+little bit closer to home. I think we owe that to the 600,000
+workers who lost their jobs last month.
+ And I yield back.
+ [The statement of Mr. McKeon follows:]
+
+Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican
+ Member, Committee on Education and Labor
+
+ Thank you. We're here today for the first hearing of the Education
+and Labor Committee in the 111th Congress. Last week, we learned that
+nearly 600,000 Americans lost their jobs in the month of January. About
+3.6 million jobs have been lost since the recession began just over a
+year ago. Stock values are down, and with them, the value of millions
+of workers' retirement savings.
+ I could go on about the grim economic circumstances before us, but
+I think we're all well aware of the challenges we face, and
+particularly the impact on the American workforce.
+ Any of these challenges would seem an appropriate topic for the
+first hearing of this panel. Unfortunately, we're not here to examine
+our nation's dire economic straits today. Instead, the majority has
+decided that the first order of business for this committee--the
+committee that oversees job training and retirement security and health
+care--is an examination of the circumstances of workers in Colombia.
+ Don't get me wrong. I am troubled by reports of the violence in
+Colombia, and I personally believe that one of the best things we can
+do to stem the violence and improve conditions in that country would be
+to enact to the stalled Colombia free trade agreement.
+ But here in this room, where we have a responsibility to look out
+for the concerns of American workers, American students, and American
+families, I find it baffling that we're setting those issues aside to
+look at the situation facing workers in a foreign country.
+ Certainly, this Congress has a role to play in protecting human
+rights around the world. And to that end, we have an entire committee
+dedicated to foreign affairs.
+ To the witnesses who are here today, I do want to thank you for
+joining us. While I clearly believe we should be focused on issues
+impacting American workers, I know that you have compelling stories to
+share and insight to offer. As long as we're here to examine this
+topic, perhaps we can expand the scope of the discussion to reflect the
+need for free trade to help put an end to the unacceptable pattern of
+violence in the nation of Colombia.
+ Once again, I want to thank the witnesses for being here today. I
+hope that the next time this panel gathers, the topic will hit a little
+bit closer to home. I think we owe that to the 600,000 workers who lost
+their jobs last month.
+ I yield back.
+ ______
+
+ Chairman Miller. I thank the gentleman for his statement.
+He will get an opportunity to help those 600,000 workers later
+today on the floor when we vote on the Economic Recovery Act
+that extends their unemployment benefit, extends their food
+stamp benefit, extends their health care benefits. So we will
+get an opportunity to do that later today.
+ I, too, want to recognize Ambassador Barco. She has sent,
+on behalf of the Colombian government, transmittal to us
+providing us additional information of documents that have been
+prepared by the government on this continuing issue.
+ This is not a minor issue between these two countries. And
+it is not a minor issue with respect to the free trade
+agreement. I am trying to have these hearings outside of the
+consideration of the free trade agreement so we can develop an
+answer to the questions that are being raised by people across
+our country about this issue and whether or not American
+workers are going to be required to compete with people that
+when they try to organize a workplace, the army shows up to put
+an end to it. So this is fundamental to wages in this country
+and to protections in this country.
+ So without objection, I would ask that the documents
+submitted by Ambassador Barco be included in the record of this
+hearing. Hearing no objection, so ordered.
+ [The information provided by the Colombian Government may
+be accessed at the following Internet address:]
+
+ http://colombiaemb.org/docs/labor%20documents/
+ embassy%20of%20colombia%20material%20on%20labor%20february%202009.pdf
+
+ ______
+
+ Chairman Miller. I would also say that Ambassador Barco has
+been very helpful to this committee, to me, both when I
+traveled to Colombia and in following up on questions that we
+have submitted to various agencies of the Colombian government
+with respect to this issue. She has worked very hard to get us
+responses and to go back and get us more comprehensive
+responses when we weren't satisfied with the first ones. So I
+want to thank her for her service. And I would like to
+recognize her.
+ Ambassador Barco, please--thank you very much.
+ And with that, for those who just came in, we will be
+allowing our witnesses some additional time because of the need
+for translations. And we have discussed this with the minority,
+and both sides have agreed to it.
+ With that, I would like to welcome our witnesses today.
+Several of them have traveled all the way from Colombia. And we
+are very grateful for their willingness to come here and to
+share their perspectives and opinions.
+ We are aware that some of our witnesses may be taking on
+substantial personal risk by being here today. Far too many
+times, senior government officials in Colombia have made
+statements stigmatizing legitimate human rights work, labor
+union advocacy and criticism of the government's policy as
+somehow a cover for the FARC guerilla activities.
+ Such comments were made publicly just this past weekend
+about those Colombians who travel abroad to discuss current
+human rights situations. Given that those unfortunate comments
+have been made just days prior to the travel of the witnesses
+we have invited here today, I must state that I trust and hope
+that the Colombian government will treat our witnesses at
+today's hearings respectfully and will refrain from making
+similar accusations against them.
+ I would like to begin by introducing Jose Luciano Sanin,
+who is the professor of constitutional law and director of the
+National Labor School, a research organization based in
+Medellin, Colombia. Mr. Sanin is executive director since 2006.
+And prior to that, he was the organization's academic director.
+He has written extensively on a broad range of topics,
+including the Colombian constitutional court, political and
+human rights and the core labor standards set out by the
+International Labor Organization.
+ Our next witness will be Yessika Hoyos from Bogota,
+Colombia, where she recently graduated from law school and now
+works on human rights cases at a nonprofit law firm. Ms. Hoyos
+comes to this work after having personally experienced the loss
+of her father to anti-union violence. She is a founding member
+of the organization called Sons and Daughters Against Impunity,
+which advocates for justice to be done in uninvestigated and
+untried cases currently pending in the Colombian judicial
+system.
+ Judge Jose Nirio Sanchez was a distinguished Colombian
+judge for 35 years. And during that time, he received
+commendations from the U.S. Drug Enforcement Agency for his
+work to help bring Pablo Escobar to justice. Judge Sanchez is
+among the original set of three judges appointed in 2007 to
+serve on a special court designed to address the backlog of
+labor-homicide cases.
+ After only 6 months on that special court, Judge Sanchez
+was unexpectedly removed by a very narrowly split vote of a
+judicial committee. To my knowledge, nobody has offered any
+meaningful explanation for his removal, though I do note that
+the Colombian vice president wrote me and stated that Judge
+Sanchez was an excellent judge. Given that high
+recommendation,I am glad that Mr. Sanchez has agreed to share
+the lessons learned from his time adjudicating labor-homicide
+cases with the committee today.
+ Maria McFarland is a senior America's researcher for Human
+Rights Watch where she covers Latin America and serves as the
+organization's primary expert on Colombia's ongoing internal
+armed conflict. Ms. McFarland has traveled extensively
+throughout Colombia and has researched and written several
+major publications on that topic. She has also testified before
+the U.S. Congress and the Canadian Parliament and is a frequent
+voice in the media on Colombia-related issues.
+ Our final witness will be James M. Roberts, who is a
+research fellow in economic freedom and growth at the Heritage
+Foundation's Center for International Trade and Economics. He
+previously served the U.S. State Department as a foreign
+service officer for 25 years and coordinated various U.S.
+assistance programs. Mr. Roberts holds a master's degree in
+international and developmental economics from Yale University,
+an MBA from the University of Pittsburgh and a bachelor's
+degree in international affairs from Lafayette College in
+Eastern Pennsylvania.
+ Welcome to all of our witnesses. And again, we will provide
+sufficient time so that you can properly lay out the concerns
+that you want this committee to hear.
+ And, Mr. Sanin, we are going to begin with you. And you are
+going to have to figure out how you share the microphone with
+your interpreter.
+
+ STATEMENT OF JOSE LUCIANO SANIN VASQUEZ, DIRECTOR, ESCUELA
+ NACIONAL SINDICAL, MEDELLIN, COLOMBIA
+
+ Mr. Sanin [speaking Spanish].
+ Translator. I will be doing the interpretation when he
+finishes.
+ Chairman Miller. Why don't you cut it into thirds, if you
+might? Thank you. Don't worry about it. We will get through
+this.
+ Mr. Sanin [through translator]. Colombia is in the midst of
+a very serious and unique situation of hostility towards the
+exercise of labor union rights and freedom of association. A
+few statistics are sufficient to demonstrate this fact.
+ And first, I am going to talk about violence against labor
+unions in Colombia and impunity as well. Approximately 1 union
+worker has been murdered every 3 days over the past 23 years,
+which translates into 2,694 murders between the first of
+January of 1986 and December 31, 2008.
+ After a reduction of 60 percent in the rate of homicides
+between the years 2003 and 2007, in 2008----
+ Chairman Miller. We are going to need you to speak right
+into the microphone. I don't know if you need an adjustment.
+Thank you.
+ Translator. Sorry about that.
+ Mr. Sanin [through translator]. In 2008 we had a serious
+increase of 25 percent, going from 39 homicides in 2007 to 49
+in 2008. Sixteen of those murdered were union leaders. And as
+far as we have gotten this year, we already have three cases of
+homicides and 14 death threats.
+ Every year more than 60 percent of union members that are
+murdered throughout the world are Colombians. The rate of union
+murders in Colombia is five times greater than that of any
+other place in the world, including those dictatorial regimes
+that don't allow unionization.
+ Union workers in Colombia have been the victims of 9,911
+violent acts in the last 23 years. In addition to the murders,
+231 union members were the victims of attempted murder. One
+hundred and ninety-three were victims of forced disappearance.
+Four thousand, two hundred were threatened with death. And here
+in my hands I have the copies of 70 threats that were issued
+against union members in 2008.
+ Thirty-five percent of these acts of violence have occurred
+under the government of President Alvaro Uribe. And 482 of the
+assassinations have occurred during his government.
+ Of the 2,694 union members that have been murdered in the
+last 23 years, the attorney general's office informs us that it
+is investigating 1,104, which means that 60 percent of these
+cases either do not exist or we are not told about the
+existence of any criminal investigations that are underway.
+Additionally, only about 90 of the murdered union members have
+had cases successfully prosecuted against their murderers. This
+means that close to 96 percent of these murders remain unsolved
+and in impunity.
+ These court decrees do not allow us to see the truth behind
+the facts because they punish only the material authors of
+these crimes and not their intellectual authors. The
+investigation is done case by case without a global strategy
+for investigating them. The union movement has been insistent
+in demanding an investigation of all cases and in proposing
+changes to the method of investigation that is currently being
+used.
+ At the current rate of sentencing, justice will take
+approximately 37 years to overcome impunity. And that is under
+the assumption that no more murders occur from today on and
+that the special investigation and prosecutions unit is
+maintained.
+ These numbers contradict what the Colombian government is
+telling the world, that anti-union violence and impunity are
+problems that have been overcome. Quite the contrary. The
+measures adopted are insufficient and inadequate because they
+have not been able to break the structural and historic anti-
+union violence in the country.
+ And I am going to give you some more numbers that have to
+do with the limitations and violations of workers' rights. In
+Colombia we have an institutional design and a governmental
+practice and business practice that goes against union freedom.
+One of these situations is made clear by the following numbers.
+ First of all, I am going to talk about the obstacles to
+unionization. There are 18,749,836 workers in Colombia, out of
+whom less than 3 million have the right to associate in a union
+because the law establishes that this can be done only by those
+workers who are related through work contracts. That means that
+only four out of every 100 workers are currently affiliated to
+a union in Colombia.
+ Chairman Miller. If you can ask that Mr. Sanin, if you
+might, start to wrap up his testimony. Thank you.
+ Mr. Sanin [through translator]. The ministry of social
+protection between 2002 and 2007 denied the registration of 253
+new unions. This situation was reported several times to the
+Committee on Freedom to Unionize at the ILO, which produced
+various recommendations for these acts, arbitrary acts of the
+state to stop the creation and working of these unions.
+ These acts began to diminish, thanks, not to the
+government, but because the constitutional court issued several
+decrees according to which the ministry of social protection is
+not authorized to deny the registration of these unions. This
+is partial progress to end the agreements under the ILO. But it
+requires legal regulation that will eliminate the obstacles and
+conflicts that persist today.
+ Finally, I just want to talk about how this has affected
+the working cooperatives in Colombia. And this is a new model
+of labor relations that means very low costs and no workers'
+rights. And it is absolutely unsustainable.
+ Recently there was a new law issued, but that ignores the
+recommendations that were made by ILO because it does not
+recognize those who are associated under these labor
+cooperatives. And it doesn't recognize their rights of
+association, negotiation or to strike and also does not give it
+sufficient measures to ensure that this is not used as a way to
+cheat on labor rights and to put at risk the conditions, the
+working conditions of Colombian workers.
+ And I will be giving you an annex document with more
+details. Thank you.
+ [The statement of Mr. Sanin follows:]
+
+ Prepared Statement of Jose Luciano Sanin Vasquez, Director of the
+ Escuela Nacional Sindical (``National Labor School'') of Colombia
+ (English)
+
+ Colombia is in the midst of a very serious and unique situation of
+hostility towards the exercise of labor union rights and freedom of
+association. A few statistics are sufficient to demonstrate this fact:
+1. Violence against labor unions in Colombia
+ One union worker has been murdered approximately every three days
+over the past 23 years, which translates into 2,694 murder victims
+between the first of January of 1986 and December 31, 2008.
+ Despite the great emphasis the current administration is placing on
+security, after a few years of declining murder rates, violence against
+labor unions showed a steep increase in 2008 of 25%, going from 39
+murders in 2007 to 49 in 2008. In addition, it is very serious that in
+2008, the number of murdered labor union leaders was 16, compared to 10
+murdered in all of 2007.
+ More than 60% of the all murdered unionists in the world are
+Colombians. The murder rate of unionists in Colombia is five times that
+of the rest of the countries of the world, including those countries
+with dictatorships that have banned union activity.
+ Violence against the union movement in the last 23 years has
+included 9,911 acts, in violation of the right to life, integrity and
+freedom of union members, one act of violence everyday. The highlights
+of these acts include 231 assaults on union leaders and 193 cases of
+forced disappearance. At least 4,200 unionists have received death
+threats because of their union activity, and 1,478 have been forced to
+leave their homes.
+
+ VIOLATIONS OF THE RIGHT TO LIFE, LIBERTY AND PHYSICAL INTEGRITY OF
+ UNIONISTS IN COLOMBIA
+ [January 1, 1986 to December 31, 2008]
+------------------------------------------------------------------------
+ Type of Violation Number of Cases Percentage
+------------------------------------------------------------------------
+ILLEGAL HOUSE SEARCH.................. 43 0.4
+THREATS............................... 4,200 42.4
+ASSAULT WITH OR WITHOUT INJURY........ 231 2.3
+DISAPPEARANCE......................... 193 1.9
+FORCED DISPLACEMENT................... 1,478 14.9
+ARBITRARY ARREST...................... 587 5.9
+MURDER OF A FAMILY MEMBER............. 3 0.0
+MURDERS............................... 2,694 27.2
+HARASSMENT............................ 246 2.5
+OTHERS................................ 2 0.0
+KIDNAPPING............................ 161 1.6
+TORTURE............................... 73 0.7
+ ---------------------------------
+ Total........................... 9,911 100
+------------------------------------------------------------------------
+
+ Of the 9,911 violations perpetrated against the life, liberty and
+physical integrity of unionists in Colombia between January 1, 1986 and
+December 31, 2008, 3,470, equaling 35%, have occurred during the
+administration of the current president of Colombia, Alvaro Uribe
+Velez.
+ Of the 2,694 murders of unionists in Colombia during that same
+historical period, 482, equaling 18%, have occurred during this
+administration. These figures contradict the administration's
+assurances to the international community that the problem of violence
+against labor unions has been overcome, and the government has it under
+control.
+
+ VIOLATIONS OF THE RIGHT TO LIFE, LIBERTY AND PHYSICAL INTEGRITY OF
+ UNIONISTS IN COLOMBIA
+ [August 7, 2002 to December 31, 2008]
+------------------------------------------------------------------------
+ Type of Violation Number of Cases Percentage
+------------------------------------------------------------------------
+ILLEGAL HOUSE SEARCH.................. 23 0.7
+THREATS............................... 2,083 60.0
+ASSAULT WITH OR WITHOUT INJURY........ 65 1.9
+DISAPPEARANCE......................... 30 0.9
+FORCED DISPLACEMENT................... 316 9.1
+ARBITRARY ARREST...................... 254 7.3
+MURDERS............................... 482 13.9
+HARASSMENT............................ 175 5.0
+KIDNAPPING............................ 29 0.8
+TORTURE............................... 13 0.4
+ ---------------------------------
+ Total........................... 3,470 100
+------------------------------------------------------------------------
+
+ The structural factors that have made violence against labor unions
+possible are still in place. The increase in murders in 2008 is an
+indication of that fact, as are the security plans that more than 1,500
+union leaders still have in place.
+ The most worrisome fact is the political exclusion of the labor
+union movement, which has created widespread anti-union sentiment,
+fostered and exacerbated by an increasingly common and recurring
+practice on the part of the President of the Republic and high-level
+government officials, who make statements that undermine the legitimacy
+of labor unions by linking them to guerilla groups, or justifying the
+violence against labor unions as violence between the armed parties to
+the conflict, thereby, suggesting that labor unions are one of these
+groups.
+ The ILO has referred to this situation for several years. Recently,
+at the 97th Conference (June of 2008), the Committee on the Application
+of Standards stated: ``(* * *) the Committee expressed its concern over
+an increase in violent acts against trade unionists in the first half
+of 2008. In view of the commitments made by the Government and referred
+to above, the Committee urged it to take further steps to reinforce the
+available protective measures * * * All of these steps were essential
+elements to ensure that the trade union movement might finally develop
+and flourish in a climate that was free from violence (* * *)''
+2. Impunity of murders of unionists
+ The investigation and prosecution of crimes against labor unionists
+was an obligation of the Colombian government that had been forgotten.
+The Subdivision of the Public Prosecutor and the judges specializing in
+this area constitute the government's first effort to respond to the
+critical situation of human rights and violence against the labor union
+movement.
+ However, 2,694 unionists have been murdered in the past 23 years,
+and the Subdivision of Investigation has only recognized the existence
+of 1,302 cases to be prosecuted, and has only been able to physically
+locate the case files of 1,104, which means that 60% of the cases do
+not exist, or are not the subject of any reported on-going criminal
+investigation.
+ The reports issued by the Public Prosecutor led to the conclusion
+that there are no important results in terms of moving forward with the
+criminal investigations. According to the January 2009 report of the
+Public Prosecutor, with regard to the 1,104 cases they are
+investigating, 654 cases (59.23%) are in preliminary stages. That means
+that in more than half the cases, no suspect has been identified. Two
+hundred and eight cases (18.84%) are in the preliminary investigation
+stage, which is the stage in which a formal investigation of an
+identified suspect is carried out. In 91 cases (8.24%), the Public
+Prosecutor has filed charges before the judges.
+ With regard to the total of 1,104 cases under investigation, the
+number of convictions was 120. This means that only 10.86% of the cases
+have made progress in determining the responsibility of the
+perpetrators of crimes against labor unionists.
+ With regard to the 185 prioritized cases, the number of convictions
+covered only 31 victims. That is, with regard to the total number of
+prioritized cases, there have been convictions in only 16.75% of the
+victims' cases.
+ There have been convictions in just 90 cases of murdered unionists.
+Presuming that there is some progress in terms of impunity for these
+victims, the percentage of those whose cases remain in impunity is
+96.7% of the crimes. According to the January 2009 report, without
+access to all the information provided in July of 2008, but rather just
+on the basis of the numbers of convictions by judges, and assuming that
+each conviction represents one victim, impunity remains at nearly 96%.
+ Calculating the monthly average output of the judges, between
+September and December of 2007, an average of 11 convictions were
+issued per month. This same monthly calculation for all of 2008 and
+January of 2009 yields 5.9 convictions per month. We can conclude from
+this quantitative analysis of the work of the subdivision and the
+judges, that at the rate of 70 convictions handed down annually by the
+country's judges and the ILO sentencing judges, each one representing
+one labor unionist victim, it would take the justice system around 37
+years to overcome the prevailing impunity, presuming no more murders
+occur starting today, and the continued existence of the special
+investigation and prosecution division.
+ With regard to the convictions handed down, the following matters
+are cause for grave concern:
+ 1. The convictions have primarily identified the material authors
+and their intentions. In the majority of cases, the chain of
+responsibility of those responsible has not been established.
+ 2. In the majority of the convictions, no reference is made to the
+personal context of the victim, or the union affiliation, or regional
+context, in which the violence against labor unions occurred.
+ 3. Investigations are carried out on a case-by-case basis, with no
+comprehensive investigational strategy for cases that are clearly
+systematic, deliberate and selective, as are the cases of violence
+against labor unions. The labor union movement has consistently
+proposed changes to the methods of investigation used. Given that
+nearly 75% of the violence against labor unions has been committed
+against 30 labor union organizations in 6 departments of the country,
+the investigations should be re-organized.
+ 4. The investigations fail to identify all the crimes committed
+and, therefore, the convictions fail to punish the perpetrators for all
+of them. In multiple convictions, for example, torture and forced
+disappearance are not punished, and the perpetrators are sentenced for
+the murder only. This leaves acts that constitute violence against
+labor unionists in impunity.
+ 5. There are only convictions at the level of second instance in
+five cases. That means that of the 108 convictions counted as of July
+of 2008, 103 could still be reversed by means of appeals the convicted
+persons may file, and they could, therefore, ultimately be acquitted.
+ On several occasions, the ILO has referred to the matter of
+impunity. Recently, during the 97th Conference, June 2008, the
+Committee on the Application of Standards stated: ``(* * *) the
+Committee urged it (. * * *) to render more efficient and expedient the
+investigations of murders of trade unionists and the identification of
+all of its instigators. Such measures should include an enhanced
+investment of necessary resources in order to combat impunity,
+including through the nomination of additional judges specifically
+dedicated to resolving cases of violence against trade unionists. All
+of these steps were essential elements to ensure that the trade union
+movement might finally develop and flourish in a climate that was free
+from violence (* * *)''
+3. Limitations and violations of Freedom of Association
+ In Colombia, we have an institutional design, as well as government
+and company practices that are contrary to the freedom of association.
+This places a large number of obstacles in the way of the creation of
+union organizations, and the free functioning of existing unions. This
+includes election of representatives, modification of by-laws,
+collective bargaining, striking, participation in public dialogue, etc.
+The following figures are evidence of this:
+ a. Obstacles to Freedom of Association
+ In Colombia today, there are 18,749,836 workers, of which, fewer
+than 3 million have the right to join a union. This is because the law
+specifies that only those workers working under employment contracts
+can exercise that right. This is in violation of international labor
+conventions and standing ILO recommendations to the Colombian
+government. Thus, only 4 of every 100 workers are affiliated with a
+labor union in Colombia.
+ The Ministry of Social Protection, in the period of 2002-2007,
+denied the registration of 515 labor union registry petitions. Of
+these, 253 were denials of new labor union charters.
+----------------------------------------------------------------------------------------------------------------
+ Registration
+ Labor Union of Board of Creation of Creation of Changes to Revocation of Total
+ Charters Directors Subcommittees Committees Bylaws Registration
+----------------------------------------------------------------------------------------------------------------
+ 253 189 47 9 7 10 515
+----------------------------------------------------------------------------------------------------------------
+
+ This situation has been reported on multiple occasions before the
+ILO Committee on Freedom of Association, which issued recommendations
+to register these charters, as it considered these acts to constitute
+undue government interference. Just by way rulings C-465, C-621 and C-
+672 of 2008 among others, of the Constitutional Court, the Ministry of
+Social Protection lost its jurisdiction to deny registration in the
+labor union registry. This is an advance that partially satisfies ILO
+conventions.
+ These rulings address only one problem, that of arbitrary
+government interference at the time of registration in the registry.
+However, an additional series of legal limitations of the right of
+association persist in Colombia, which have not been modified. Laws
+that impede the right of free association for all types of workers,
+Art. 5 CST, must be modified or repealed. Likewise, laws that limit the
+freedom to choose the union structure the workers see fit, Art. 365
+CST, must also be modified or repealed. The establishment of an
+expedited judicial mechanism, that would provide a means of quickly
+resolving possible conflicts in the registration of labor union
+charters and other matters related to union representation, is also
+necessary.
+ The ILO has repeatedly made comments and recommendations in the
+area of the right to free labor union association. Recently, during the
+97th ILO Conference, the Committee on the Application of Standards
+stated: ``(* * *) it called upon the Government to ensure that all
+workers, including those in the public service, may form and join the
+organization of their own choosing, without previous authorization, in
+accordance with the Convention. In this regard, the Committee called
+upon the Government not to use discretionary authority to deny trade
+union registration * * *''
+ b. Collective Bargaining, a right accorded to few
+ In Colombia, only 1.2 of every 100 workers benefit from a
+collective bargaining agreement. If we compare the period of 1996-1997
+with the period of 2006-2007, we will find that in the first period,
+1,579 collective bargaining agreements were signed, of which 983 were
+collective contracts, 592 were collective pacts, and 5 were union
+contracts, covering 462,641 beneficiaries; while in the second period,
+925 collective bargaining agreements were signed, of which 639 were
+collective contracts, 276 were collective pacts, and 10 were union
+contracts, covering 176,948 beneficiaries. This demonstrates a
+significant reduction in collective bargaining and its coverage:
+285,693 beneficiaries lost their contractual guarantees, approximately
+62% of the beneficiaries of a decade ago are now unprotected. This
+phenomenon is explained by the enormous legal and practical obstacles
+to the existence and free operation of workers' organizations, to the
+lack of promotion of bargaining, to the small number of workers able to
+bargain, and to the failure of the government to modify its legislation
+to comply with the labor standards of conventions 87, 98, 151 and 154,
+ratified by Colombia.
+ The primary problems are as follows:
+ Collective pacts and extralegal benefits plans are
+permitted, to the detriment of the unions' right to collective
+bargaining.
+ Unionization is hampered, and therefore, so is the signing
+of collective bargaining agreements for workers with contracts
+differing from employment contracts, Art. 5 CST. This excludes workers
+with service contracts, those associated with work cooperatives, those
+with apprenticeship contracts, the unemployed, workers with a
+regulatory relationship with the government, and workers in the
+informal sector, which make up more than 85% of the working population.
+ The Ministry of Social Protection exercises poor
+oversight. It does not investigate or sanction the union-busting
+practices of employers, nor does it promote the protection of the right
+of association and bargaining.
+ The imposition of obligatory arbitration courts to resolve
+points not agreed upon in negotiations. This is an intervention by
+authorities that, in principle, impinges on, and makes collective
+bargaining more difficult.
+ The prohibition of collective bargaining and striking by
+unions of public employees.
+ The lack of bargaining by field or economic activity, and
+the inability to bargain for different levels.
+ The right to promote and defend the interests of workers by means
+of collective bargaining that seeks to improve working conditions is,
+in current practice, illegal for some and nearly impossible to exercise
+for others. This is due to legal provisions that limit or prohibit free
+bargaining between the parties. This is a situation that ILO oversight
+bodies have identified as contrary to the conventions ratified by
+Colombia, and whose recommendations have been intentionally ignored by
+the government, which has failed to take measures to promote
+bargaining.
+ c. Right to Strike--its exercise is practically impossible
+ The right to strike is a fundamental right of all workers, used to
+defend their labor rights in a peaceful manner. This right is not
+absolute in nature. The ILO acknowledges that the right to strike can
+be limited in those services whose interruption may endanger the life,
+safety or health of a person or a portion of the population, but these
+limits can only be established for democratic reasons, and those
+necessary to protect the rights and freedoms of others, and always by
+way of law.
+ In the period 2002-2007, 122 petitions of illegality of suspension
+of activities were submitted to the Ministry of Social Protection, of
+which, 66 were declared illegal.
+ Against this backdrop, we can understand why unions stage few
+strikes in Colombia. The legislative limitations and the actions of the
+Ministry of Social Protection demonstrate that staging a strike is
+nearly impossible, because of legislation contrary to the conventions
+on freedom of association. More so, if we take into account the fact
+that Art. 450 num. 2 allows employers to fire workers who participate
+in an illegal strike. In this context, on July 14, the Congress
+promulgated Law 1210 of 2008, which modifies the provisions that
+regulate the exercise of the strike in the country. Law 1210 includes
+only two of the ILO's ten recommendations to Colombia in the area of
+strike regulation. First, it transfers the jurisdiction the Ministry of
+Social Protection formerly had, to determine the illegality of a strike
+to labor jurisdiction. And second, it creates of a voluntary
+arbitration court, which was formerly obligatory if a strike went
+beyond 60 days.
+ On the other hand, in violation of ILO doctrine, article 1,
+paragraph 2, of this law gave the President of the Republic the
+authority to order the cessation of strikes ``* * * If a strike
+seriously impairs the health, safety, public order or economy of all or
+part of the population due to its nature or scope * * *''
+ The changes introduced by the law are procedural and not
+substantive. This, being the case, going forward, judges will declare
+strikes to be illegal for the same reasons the Ministry of Social
+Protection did so in the past.
+ The most critical part of Law 1210 of 2008 is not so much what it
+includes, but rather what it fails to include, given that the exercise
+of the right to strike is extremely limited in Colombia, when compared
+to the recommendations of the Committee on Freedom of Association
+(CFA), and the Committee of Experts on the Application of Conventions
+and Recommendations (CEACR) of the ILO. The following are the most
+serious omissions in the law:
+ 1. The Colombian legislation defines the strike as a point in
+collective bargaining, and not as the fundamental means of defense of
+workers. It is only permitted in the process of negotiation of a list
+of demands and in no other case.
+ 2. Contrary to the principles of freedom of association, the
+prohibition of strikes by federations and confederations, or those
+staged by unions by field of economic activity was not repealed. This
+right remains reserved for company unions, which represents a
+curtailment of the right to strike.
+ 3. It is necessary to define what is meant by essential public
+service, and to regulate the concept of provision of minimal services.
+The lack of such definitions results in near total prohibition of the
+exercise of the strike by workers employed by companies that provide
+public services.
+ 4. Changes must be made to current strike regulations such that
+solidarity strikes are not prescribed.
+ 5. The law requires a qualified majority to declare a strike, that
+is, half plus one of the workers of a company. This makes it nearly
+impossible to achieve a strike declaration in practice, especially in
+companies with a large number of workers or when the union is in the
+minority.
+ 6. The omission regarding strikes for the purpose of resolving a
+local or section problem must be resolved.
+ 7. The legislation should allow workers with contractual
+relationships different from employment relationships to exercise their
+right of association and their right to strike.
+ 8. A declaration of illegality of a strike results in the
+employer's ability to fire workers, who intervene in or participate in
+an illegal suspension of activities.
+4. The large deficit of good jobs in Colombia--the case of the
+ Associated Work Cooperatives
+ The labor policies and laws of recent years have been characterized
+by maintaining the exclusion from social and labor protection of more
+than two thirds of workers, and by denying and evading the minimum
+labor rights of 12 million workers. The Colombian government, rather
+than advancing in terms of minimum labor standards, produces
+legislation and practices that are contrary to decent work, thereby,
+leaving nearly 70% of workers in a situation of job insecurity. The
+Associated Work Cooperatives are evidence of this situation of job
+insecurity.
+ The recent strikes of African palm workers and cane cutters, the
+conflict with the workers of the Port of Buenaventura, as well as the
+situation of workers in superstores, the apparel industry,
+floriculture, the health sector, security guards, etc., demonstrate
+that the so-called associated work cooperatives (AWC), have contributed
+to the deterioration of the quality of employment in Colombia. The
+organizations that have been established under the legal definition of
+the AWC do not, in fact, represent cooperative principles, and they
+abuse the right to cooperative association, in order to evade workers'
+rights to the benefit of employers and of those who seek to establish
+such organizations as fronts for employers. The so-called AWCs are
+pseudo cooperatives.
+ The AWCs are used by companies as a form of outsourcing, that has
+allowed them to transfer company costs and replace or fire workers with
+employment contracts, and, in many cases, unionized workers with
+collective bargaining agreements. The hugely lower cost, and an
+employment relationship with no rights, resulted in the spread of the
+AWCs as a ``new model of labor relations'' to the extent that in
+February of 2008, there were 12,068 registered AWCs. In 2007, it was
+estimated that there were 4,221,108 \1\ AWC members.
+---------------------------------------------------------------------------
+ \1\ Statist published on the web site of the superintendency for
+economic solidarity, accessed February 6, 2009
+---------------------------------------------------------------------------
+ In the face of this job insecurity, Law 1233 of 2008 was
+promulgated, which had its origins in a bill presented by the
+government, as the North American congress was approaching a vote on
+the FTA with Colombia. The bill was limited to establishing the
+obligation to pay parafiscal taxes on the part of the Associated Work
+Cooperatives (AWC). While this bill was making its way through the
+Congress of the Republic, there were many debates and proposals, and as
+a result, the law addresses additional matters as well.
+ However, the government will not be able to point to this law as an
+advance in relation to international demands in this area, since the
+recommendations of the ILO oversight bodies have been clearly ignored.
+Law 1233 does not recognize the rights of association, bargaining and
+strike of the affiliates of an AWC, nor does it provide sufficient
+measures to prevent the AWC from being used as a means of evading labor
+and union rights. In sum, we can affirm that this law allows the AWCs
+to continue to be used as tools for evading labor rights, and creating
+insecure conditions for workers since it did not resolve crucial
+matters such as:
+ 1. AWC members do not enjoy the fundamental and essential rights
+they would have as workers under labor contracts.
+ 2. When hiring AWCs, companies are able to externalize payroll
+costs and render them not chargeable to the company. The companies are
+only responsible for what they sign off on in the commercial bid, with
+no possibility even of suing them for violation of labor rights.
+ 3. In order to avoid the costs of social security contributions,
+employers prefer to hire AWCs, in which such contributions are wholly
+the responsibility of the members.
+ 4. The primary activity of the AWC is to act as a labor
+intermediary. The great majority of the activities of the AWC stem from
+contracts with companies as labor intermediaries, and in practice,
+companies replace their workers with AWC members.
+ 5. There is a near complete lack of oversight of AWCs. Thus, only a
+small fraction of them are currently in compliance with applicable
+regulations.
+ 6. There is a lack of democratic participation of AWC members. Due
+to the lack of reasonable limits on the terms of the administrative
+boards of the AWCs, many members believe that the AWCs have owners
+instead of administrator, since the commercial bid signed by the
+company and the AWC is not subject to the approval of a general
+assembly of the members.
+ 7. There is competition among AWCs to offer the worst and cheapest
+contracts, which creates a sort of war for pennies among them.
+ 8. The AWCs are used as a tool to weaken and diminish the unions.
+AWC members do not have the right to unionize, because according to the
+Ministry of Social Protection, they are not employees, but rather,
+providers of labor.
+ The ILO has issued several comments and recommendations regarding
+Associated Work Cooperatives. Recently, during the 97th Conference
+(June of 2008), the Committee on the Application of Standards stated:
+``* * * In particular, the Committee expected that legislation would be
+adopted rapidly so as to ensure that service contracts, other types of
+contracts, cooperatives and other measures were not used as a means of
+undermining trade union rights and collective bargaining * * *''
+ ______
+
+
+ Prepared Statement of Jose Luciano Sanin Vasquez (Spanish)
+
+ En Colombia se vive una muy particular y grave situacion de
+hostilidad para el ejercicio de los derechos laborales y las libertades
+sindicales, basta mencionar algunas cifras para demostrar esta
+situacion:
+1. Violencia antisindical en Colombia
+ Aproximadamente cada tres dias durante los ultimos 23 anos ha sido
+asesinada una trabajadora o un trabajador sindicalizado, lo que se
+traduce en 2.694 victimas asesinadas entre el primero de enero de 1986
+y el 31 de diciembre de 2008.
+ Pese al gran enfasis que el actual gobierno hace en la seguridad,
+la violencia antisindical luego de algunos anos de disminucion en los
+homicidios, presento en 2008 un grave incremento del 25%, pasando de 39
+homicidios en 2007 a 49 en 2008. Adicionalmente, resulta muy grave que
+en 2008 los dirigentes asesinados son 16 frente a 10 asesinados durante
+todo el 2007.
+ Mas del 60% de los sindicalistas asesinados en todo el mundo son
+colombianos. La tasa de sindicalistas asesinados en Colombia es cinco
+veces mayor a la del resto de paises del mundo incluidos aquellos donde
+regimenes dictatoriales proscriben el sindicalismo.
+ La violencia contra le movimiento sindical en lo ultimos 23 anos ha
+significado 9911 hechos violatorios del derecho a la vida, la
+integridad y la libertad personal de las personas sindicalizadas, un
+hecho de violencia cada dia. Entre las que se destacan 231 atentados
+contra lideres sindicales y 193 casos de desaparicion forzada. Por lo
+menos 4200 sindicalistas han recibido amenazas de muerte por su
+actividad sindical y 1478 han tenido que desplazarse forzadamente.
+
+ VIOLACIONES DEL DERECHO A LA VIDA, A LA LIBERTAD Y A LA INTEGRIDAD
+ FISICA DE SINDICALISTAS EN COLOMBIA
+ [1 Enero 1986 al 31 Diciembre 2008]
+------------------------------------------------------------------------
+ Tipo de Violacion Numero Casos %
+------------------------------------------------------------------------
+ALLANAMIENTO ILEGAL................... 43 0,4
+AMENAZAS.............................. 4200 42,4
+ATENTADO CON O SIN LESIONES........... 231 2,3
+DESAPARICION.......................... 193 1,9
+DESPLAZAMIENTO FORZADO................ 1478 14,9
+DETENCION ARBITRARIA.................. 587 5,9
+HOMICIDIO DE FAMILIAR................. 3 0,0
+HOMICIDIOS............................ 2694 27,2
+HOSTIGAMIENTO......................... 246 2,5
+OTROS................................. 2 0,0
+SECUESTRO............................. 161 1,6
+TORTURA............................... 73 0,7
+ ---------------------------------
+ Total........................... 9911 100
+------------------------------------------------------------------------
+
+ De las 9.911 violaciones perpetradas contra la vida, libertad e
+integridad de sindicalistas en Colombia entre el 1 de enero de 1986 y
+el 31 de diciembre de 2008, 3470 equivalentes al 35% se han presentado
+durante el gobierno del actual presidente de Colombia Alvaro Uribe
+Velez.
+ De los 2.694 asesinatos de sindicalistas ocurridos en Colombia en
+ese mismo periodo historico, 482 equivalentes al 18% se han presentado
+durante este Gobierno, cifras que contradicen el argumento del Gobierno
+ante la comunidad internacional, de que la violencia antisindical es un
+problema superado y esta bajo control por parte del Estado.
+
+ VIOLACIONES DEL DERECHO A LA VIDA, A LA LIBERTAD Y A LA INTEGRIDAD
+ FISICA DE SINDICALISTAS EN COLOMBIA
+ [7 Agosto 2002 al 31 Diciembre 2008]
+------------------------------------------------------------------------
+ Tipo de Violacion Numero Casos %
+------------------------------------------------------------------------
+ALLANAMIENTO ILEGAL................... 23 0,7
+AMENAZAS.............................. 2083 60,0
+ATENTADO CON O SIN LESIONES........... 65 1,9
+DESAPARICION.......................... 30 0,9
+DESPLAZAMIENTO FORZADO................ 316 9,1
+DETENCION ARBITRARIA.................. 254 7,3
+HOMICIDIOS............................ 482 13,9
+HOSTIGAMIENTO......................... 175 5,0
+SECUESTRO............................. 29 0,8
+TORTURA............................... 13 0,4
+ ---------------------------------
+ Total........................... 3470 100
+------------------------------------------------------------------------
+
+ Los factores estructurales que han posibilitado la violencia
+antisindical persisten, el incremento de homicidios en el ano 2008 es
+muestra ello, asi como los esquemas de proteccion que aun tienen mas de
+1500 dirigentes sindicales.
+ El facto mas preocupante es el referido al proceso de exclusion
+politica del movimiento sindical que ha generado una profunda cultura
+antisindical, promovida y agravada por una practica cada vez mas comun
+y recurrente del Presidente de la Republica y de altos funcionarios del
+gobierno nacional, que realizan declaraciones en contra de la
+legitimidad del sindicalismo, vinculandolo con los grupos guerrilleros,
+o justificando la violencia antisindical como una violencia entre los
+actores armados del conflicto, senalando de paso que el sindicalismo es
+parte de alguno de ellos.
+ Desde hace varios anos la OIT se ha referido a esta situacion,
+recientemente en la 97 Conferencia (junio de 2008) la Comision de
+aplicacion de normas senalo: ``(* * *) la Comision expreso su
+preocupacion en relacion con el aumento de actos de violencia contra
+sindicalistas durante la primera mitad del ano 2008. En vista de los
+compromisos asumidos por el Gobierno antes mencionados, la Comision lo
+insto a que adopte nuevas acciones para reforzar las medidas de
+proteccion disponibles. * * * Todas estas medidas son elementos
+esenciales para asegurar que le movimiento sindical pueda finalmente
+desarrollarse y afirmarse en un clima libre de violencia (* * *)''
+2. Impunidad en los homicidios contra sindicalistas
+ La investigacion y juzgamiento de los crimenes contra sindicalistas
+era una obligacion del Estado colombiano echada al olvido. La Subunidad
+de Fiscalia y los jueces especializados en el tema constituyen el
+primer esfuerzo del Estado por responder a la critica situacion de
+derechos humanos y de violencia contra el movimiento sindical.
+ Sin embargo, 2.694 sindicalistas han sido asesinados en los ultimos
+23 anos y la a Subunidad de investigacion ha reconocido tan solo la
+existencia de 1.302 casos que deben ser llevados y tan solo han
+encontrado fisicamente los expedientes de 1.104, lo que significa que
+en el 60% de los casos no existen o no se informa la existencia de
+investigaciones penales en curso.
+ De los informes producidos por la Fiscalia se puede concluir que no
+hay resultados importantes en materia de impulso a las investigaciones
+penales. Segun el informe de la Fiscalia de enero de 2009, respecto de
+los 1.104 casos que estan investigando, 654 casos (59,23%) se
+encuentran en etapa preliminar, es decir, en mas de la mitad de los
+casos no hay identificacion del presunto autor. 208 casos (18,84%) se
+encuentran en instruccion, etapa en la que se adelanta la investigacion
+formal contra alguna persona identificada. En 91 casos (8,24%) de los
+casos tienen acusacion frente a los jueces por parte de la Fiscalia.
+ Respecto de la totalidad de los 1.104 casos investigados, las
+sentencias producidas fueron 120, esto significa que solo el 10,86% de
+los casos tiene algun tipo de avance en determinacion de
+responsabilidad de los autores de los crimenes contra sindicalistas.
+ Sobre los 185 casos priorizados el numero de sentencias producidas
+es solo sobre 31 victimas. Es decir, respecto del total de los casos
+priorizados solo el 16,75% de las victimas llega a obtener sentencia.
+ Solo sobre 90 sindicalistas asesinados hay sentencias
+condenatorias. Suponiendo que para esas victimas haya algun tipo de
+avance en materia de impunidad, el porcentaje de los que continuarian
+en ella es del 96,7% de los crimenes. De acuerdo al informe de enero de
+2009, sin tener la posibilidad de conocer todos los datos
+proporcionados en julio de 2008, sino solamente por el dato numerico de
+las sentencias de los jueces, y asumiendo que cada una de las
+sentencias contiene una victima, la impunidad se mantiene en casi el
+96%.
+ Haciendo un promedio mensual del trabajo de los jueces, entre
+septiembre y diciembre de 2007 se produjeron en promedio 11 sentencias
+al mes. Ese mismo calculo mensual durante todo el 2008 y enero de 2009
+ha arrojado 5,9 sentencias al mes. Este analisis cuantitativo del
+trabajo de la subunidad y de los jueces nos permite concluir que al
+ritmo de unas 70 sentencias anuales emitidas por los jueces del pais y
+los de descongestion de OIT, en las que cada una de ellas se refiriera
+a una victima sindicalista, se tomaria la justicia alrededor de 37 anos
+para superar la impunidad, bajo el supuesto de que no ocurran mas
+asesinatos a partir de hoy, y se mantenga la unidad especial de
+investigacion y juzgamiento.
+ Respecto de las sentencias emitidas, estos aspectos son de honda
+preocupacion:
+ 1. Las sentencias han encontrado fundamentalmente autores
+materiales y sus intenciones. En la mayoria de los casos no se
+establece la cadena de responsabilidad de los autores.
+ 2. En la mayoria de las sentencias no existe ninguna referencia al
+contexto personal de la victima ni de la organizacion sindical y/o
+regional en la que la violencia antisindical ocurre.
+ 3. La investigacion se realiza caso a caso sin una estrategia
+integral de investigacion en casos de caracter claramente sistematicos,
+deliberados y selectivos como los son los casos de violencia
+antisindical. El movimiento sindical ha sido insistente en proponer
+cambios en el metodo de investigacion utilizado, si cerca del 75% de
+violencia antisindical ha ocurrido contra 30 organizaciones sindicales
+en 6 departamentos del pais, la investigacion deberia reestructurarse.
+ 4. Las investigaciones omiten la calificacion juridica de todos los
+delitos cometidos y por tanto, las sentencias no sancionan a los
+autores por todos ellos. En multiples sentencias la tortura o la
+desaparicion forzada, por ejemplo, no son sancionadas, condenando
+exclusivamente por homicidio. Esto deja en la impunidad las acciones
+que integran la violencia contra sindicalistas.
+ 5. Solo en cinco casos hay sentencia de segunda instancia, es decir
+que de las 108 sentencias contabilizadas a julio de 2008, en 103 de
+ellas esta pendiente la posibilidad de que la decision sea cambiada por
+los recursos que puede interponer el condenado, y por tanto, pasar a
+tener una absolucion.
+ La OIT en varias ocasiones se ha referido al tema de impunidad,
+recientemente en la 97 Conferencia junio de 2008) la Comision de
+aplicacion de normas senalo: ``(* * *) la Comision lo insto a (. * * *)
+garantizar una mayor eficacia y rapidez de las investigaciones de
+asesinatos de sindicalistas y la identificacion de todos sus
+instigadores. Tales medidas deberan incluir un aumento de los recursos
+necesarios para combatir la impunidad, incluido el nombramiento de
+jueces adicionales especialmente dedicados a resolver los casos de
+violencia contra sindicalistas. Todas estas medidas son elementos
+esenciales para asegurar que el movimiento sindical pueda finalmente
+desarrollarse y afirmarse en un clima libre de violencia (* * *)''
+3. Limitaciones y violaciones a las libertades sindicales
+ En Colombia contamos con un diseno institucional y una practica
+gubernamental y empresarial contraria a las libertades sindicales, que
+impone una gran cantidad de obstaculos para que las organizaciones
+sindicales puedan ser creadas o para que las existentes puedan
+funcionar libremente, esto es, elegir sus representantes, modificar sus
+estatutos, negociar colectivamente, ejercer la huelga, participar de
+los escenarios de dialogo social, etc. Una muestra de esta situacion
+son las siguientes cifras:
+ a. Obstaculos a la Asociacion sindical
+ Hoy en Colombia existen 18.749.836 de trabajadores, de los cuales
+menos de 3 millones tiene derecho a asociarse a una organizacion
+sindical, pues la legislacion establece que pueden ejercer dicho
+derecho solo aquellos trabajadores vinculados a traves de contratos de
+trabajo, contrariando con ello los convenios internacionales del
+trabajo y las recomendaciones realizadas por la OIT de manera
+permanente al Estado Colombiano. Por ello tan solo 4 de cada 100
+trabajadores se encuentran afiliados a una organizacion sindical en
+Colombia.
+ El Ministerio de la Proteccion Social en el periodo de 2002-2007
+nego el registro de 515 actos de registro sindical, de estos 253 fueron
+negativas a constitucion de nuevas organizaciones sindicales.
+----------------------------------------------------------------------------------------------------------------
+ Inscripcion de
+ Constitucion de junta directiva Creacion de Creacion de Reformas Revocatorias Total
+ sindicatos subdirectivas comites estatutarias del registro
+----------------------------------------------------------------------------------------------------------------
+ 253 189 47 9 7 10 515
+----------------------------------------------------------------------------------------------------------------
+
+ Esta situacion fue denunciada en multiples ocasiones ante el Comite
+de Libertad Sindical de OIT, emitiendo este recomendaciones para
+alcanzar la inscripcion de dichos actos por considerarlo una injerencia
+indebida por parte del Estado. Tan solo con las sentencias C-465, C-621
+y C-672 de 2008 entre otras, de la Corte Constitucional, el Ministerio
+de Proteccion Social perdio la competencia para negar la inscripcion en
+el registro sindical, un avance que satisface parcialmente los
+convenios de OIT.
+ Estas sentencias abarcan tan solo un problema, la injerencia
+arbitraria por parte del Estado al momento de la inscripcion en el
+registro, sin embargo en Colombia persisten otra serie de limitaciones
+legales al derecho de asociacion que no han sido modificadas, se hace
+necesario derogar o modificar las normas que impiden el derecho de
+asociacion a todo tipo de trabajadores, art. 5 CST, de igual forma
+derogar o modificar las normas que limitan la libertad de eleccion de
+la estructura sindical que los trabajadores estimen convenientes, Art.
+365 CST, se hace necesario establecer un mecanismo judicial, y
+expedito, que permita en corto tiempo solucionar los posibles
+conflictos en el tramite del registro sindical y otros temas
+relacionados con la representacion sindical.
+ La OIT de manera reiterada ha senalado observaciones y
+recomendaciones en materia del derecho de asociacion sindical,
+recientemente en la 97 Conferencia de la OIT, la Comision de aplicacion
+de normas senalo: ``(* * *) solicito tambien al Gobierno que se asegure
+que todos los trabajadores, incluidos aquellos del sector publico,
+puedan formar las organizaciones que estimen convenientes, sin
+autorizacion previa, y afiliarse a las mismas de conformidad con el
+Convenio. A este respecto la Comision solicito al Gobierno que no
+utilice discrecionalmente su autoridad para denegar el registro
+sindical * * *''
+ b. Negociacion Colectiva un derecho para pocos
+ En Colombia tan solo 1,2 de cada 100 trabajadores se beneficia de
+una convencion colectiva, comparando el periodo 1996-1997 con el
+periodo 2006-2007, encontramos que en el primero se suscribieron 1579
+convenios colectivos, de los cuales 983 eran convenciones colectivas,
+592 eran pactos colectivos y 5 contratos sindicales, con una cobertura
+de 462.641 beneficiarios; mientras que en el segundo periodo se
+firmaron 925 convenios colectivos, de los cuales 639 eran convenciones
+colectivas, 276 pactos colectivos y 10 contratos sindicales, con una
+cobertura de 176.948 beneficiarios. Se muestra una significativa caida
+en la negociacion colectiva y su cobertura: 285.693 beneficiarios
+perdieron sus garantias convencionales, aproximadamente un 62% de los
+beneficiarios de hace una decada hoy estan desprotegidos. Este fenomeno
+encuentra explicacion en los enormes obstaculos juridicos y practicos
+que se imponen a las organizaciones de los trabajadores para existir y
+desenvolverse libremente, a la falta de fomento de la negociacion, a
+los pocos trabajadores que pueden negociar, y al incumplimiento por
+parte del Estado de modificar su legislacion para que cumpla con los
+estandares laborales de los convenios 87, 98, 151 y 154 ratificados por
+Colombia.
+ Los principales problemas son los siguientes:
+ Es permitida la celebracion de pactos colectivos y planes
+de beneficios extralegales, en perjuicio del derecho de negociacion
+colectiva de los sindicatos
+ Se impide la sindicalizacion y por tanto la firma de
+convenciones colectivas de trabajadores con contratos diferentes al
+laboral, art. 5 CST, excluyendo a quienes tienen contratos de
+prestacion de servicios, asociados a cooperativas de trabajo, los de
+contrato de aprendizaje, desempleados, trabajadores con una relacion
+reglamentaria con el Estado o trabajadores del sector informal que
+constituyen mas del 85% de la poblacion ocupada.
+ El Ministerio de la Proteccion Social ejerce un pobre
+control, no investiga ni sanciona las practicas antisindicales de los
+empleadores, ni tampoco promueve la defensa del derecho de asociacion y
+negociacion.
+ La imposicion de tribunales de arbitramento obligatorio
+para decidir los puntos en los que no se llegue a un acuerdo durante la
+negociacion, es una intervencion de la autoridad que en principio
+vulnera y hace mas dificil la negociacion colectiva
+ La prohibicion de la negociacion colectiva y de la huelga
+a los sindicatos de empleados publicos
+ La inexistencia de negociacion por rama o actividad
+economica, y la imposibilidad de negociar por diversos niveles
+ El derecho a fomentar y defender los intereses de los trabajadores
+por medio de negociaciones colectivas que busquen mejorar las
+condiciones de empleo, es en la practica actual, ilegal para algunos o
+casi imposible de ejercer para otros, esto se debe a disposiciones
+legales que limitan o prohiben una libre negociacion entre las partes,
+situacion que los organismos de control de la OIT han previsto como
+contrarias a los convenios ratificados por Colombia y cuyas
+recomendaciones han sido intencionalmente ignoradas por el gobierno,
+omitiendo tomar medidas que fomenten la negociacion.
+ c. Derecho de Huelga practicamente imposible su ejercicio
+ El derecho a la huelga es un derecho fundamental de todos los
+trabajadores, por medio del cual se busca defender sus derechos
+laborales de una manera pacifica. Este derecho no tiene caracter de
+absoluto, es aceptado por OIT que la huelga puede verse limitada en los
+servicios cuya interrupcion pueda poner en riesgo la vida, seguridad o
+la salud de una persona o parte de la poblacion, pero estos limites
+solo pueden establecerse por razones democraticas y necesarias para
+proteger los derechos y libertades de los demas, siempre a traves de la
+ley.
+ En el periodo 2002-2007 se presentaron al Ministerio de la
+Proteccion Social 122 solicitudes de ilegalidad de cese de actividades,
+de los cuales 66 fueron declarados ilegales.
+ Bajo este panorama se entiende como los sindicatos realizan pocas
+huelgas en Colombia, las limitaciones legislativas y las actuaciones
+del Ministerio de Proteccion Social muestran como ejercer una huelga
+resulta casi imposible debido a que la legislacion es contraria a los
+convenios de libertad sindical, mas si se tiene en cuenta el Art. 450
+num. 2 da la posibilidad para que el empleador despida a los
+trabajadores que hayan participado en una huelga ilegal, bajo este
+panorama el Congreso expidio el pasado 14 de julio, la Ley 1210 de
+2008, por la cual se modifican disposiciones que regulan el ejercicio
+de la huelga en el pais. Esta Ley 1210 recoge tan solo dos de las diez
+recomendaciones que la OIT le ha hecho a Colombia en materia de
+regulacion de la huelga, uno, la competencia que tenia el Ministerio de
+la Proteccion Social para calificar la ilegalidad de la huelga, la
+traslada a la jurisdiccion laboral y dos, la creacion de un tribunal de
+arbitramento voluntario, que antes era obligatorio, cuando la huelga
+pasaba de 60 dias.
+ De otro lado contrariando la doctrina de la OIT, esta ley su
+articulo 1, parrafo 2, le dio la Facultad al Presidente de la Republica
+de ordenar la cesacion de las huelgas ``* * * Si una huelga en razon de
+su naturaleza o magnitud, afecta de manera grave la salud, la
+seguridad, el orden publico o la economia en todo o en parte de la
+poblacion * * *''
+ Los cambios introducidos por la ley son procedimentales y no
+sustanciales, asi las cosas los jueces en adelante declararan ilegales
+las huelgas por las mismas razones que lo hacia antes el Ministerio de
+la Proteccion Social.
+ Lo mas critico de la Ley 1210 de 2008 no es tanto lo que incluye
+sino lo que le quedo faltando, toda vez que el ejercicio del derecho de
+huelga en Colombia, cuando se compara con las recomendaciones del
+Comite de Libertad Sindical (CLS) y la Comision de Expertos en
+Aplicacion de Convenios y Recomendaciones (CEACR) de la OIT, se
+encuentra en extremo limitado. Estos son los faltantes mas serios de la
+Ley:
+ 1. En la legislacion colombiana se entiende la huelga como un
+momento de la negociacion colectiva y no como el medio esencial de
+defensa de los trabajadores, permitida solamente en un proceso de
+negociacion de un pliego de peticiones y no en otro caso.
+ 2. Contraria a los principios de libertad sindical, se omitio
+derogar la prohibicion de huelgas a federaciones y confederaciones, o
+las que hagan sindicatos por rama de actividad economica, derecho que
+queda reservado a los sindicatos de empresa, lo cual representa un
+recorte al derecho de huelga.
+ 3. Es necesario definir que se entiende por servicio publico
+esencial y regular la figura de la prestacion de servicios minimos,
+pues la falta de dichas definiciones provoca la prohibicion casi
+absoluta para ejercer la huelga a los trabajadores de empresas que
+prestan servicios publicos.
+ 4. Es necesario realizar cambios en la regulacion actual de la
+huelga de tal forma que no queden proscritas las huelgas de
+solidaridad.
+ 5. La ley exige una mayoria calificada para declarar la huelga, o
+sea la mitad mas uno de los trabajadores de la empresa, haciendo que en
+la practica la declaratoria de las huelgas sea casi imposible de
+alcanzar, sobretodo en empresas con gran cantidad de trabajadores, o
+cuando el sindicato sea minoritario.
+ 6. Se hace necesario solucionar la omision que existe sobre huelgas
+cuya finalidad sea la solucion de una problematica local o seccional.
+ 7. La legislacion debe permitir a los trabajadores vinculados con
+formas contractuales diferentes a la laboral, ejercer su derecho de
+asociacion y su derecho a la huelga.
+ 8. De la declaratoria de ilegalidad de la huelga se sigue como
+consecuencia la facultad del empleador de despedir a los trabajadores
+que hubieren intervenido o participado en una suspension ilegal de
+actividades.
+4. El gran deficit de trabajo decente en Colombia. El caso de las
+ Cooperativas de Trabajo Asociado
+ Las politicas y leyes de los ultimos anos en materia laboral se han
+caracterizado por mantener en la exclusion de la proteccion social y
+laboral a mas de las dos terceras partes de los trabajadores; por negar
+y evadir los derechos laborales minimos a mas de 12 millones de
+trabajadores; el Estado colombiano, antes que avanzar en estandares
+minimos laborales, genera legislacion y practicas contrarias al trabajo
+decente, dejando a casi el 70% de los trabajadores en condiciones de
+precariedad laboral. Las Cooperativas de Trabajo Asociado son una
+muestra de esta situacion de precariedad laboral
+ Las recientes huelgas de los trabajadores de la palma africana y de
+los corteros de cana, el conflicto con los trabajadores del Puerto de
+Buenaventura, asi como la situacion de los trabajadores de los
+hipermercados, las confecciones, la floricultura, el sector de la
+salud, la vigilancia, etc., evidencian que las llamadas cooperativas de
+trabajo asociado (CTA), han contribuido a deteriorar la calidad del
+empleo en Colombia. Las entidades que se han constituido al amparo de
+la figura legal de las CTA, no responden realmente a los principios
+cooperativos y hacen uso abusivo del derecho de asociacion cooperativa,
+para burlar los derechos de los trabajadores, en beneficio de los
+empresarios y de quienes a manera de testaferros de empleadores
+promueven la creacion de las mismas. Las llamadas CTA son seudo
+cooperativas.
+ Las CTA son usadas por las empresas como forma de tercerizacion que
+han permitido externalizar costos de la propia empresa, y remplazar o
+despedir trabajadores con contrato laboral y en muchos casos
+trabajadores sindicalizados con convencion colectiva. El costo
+inmensamente inferior, y una relacion laboral sin derechos, produjo que
+las CTA se extiendan como un ``nuevo modelo de relaciones laborales''
+al punto que en febrero de 2008 existian 12,068 CTA registradas, en
+2007 se estimaba que habian 4.221.108 \1\ asociados a CTA.
+---------------------------------------------------------------------------
+ \1\ Estadistica publicada en la pagina web de superintendencia de
+economia solidaria, tomado el 6 de febrero de 2009.
+---------------------------------------------------------------------------
+ Ante semejante precariedad se expidio la Ley 1233 de 2008 que tuvo
+como origen un proyecto de ley presentado por el gobierno cuando se
+aproximaba la decision del congreso norteamericano sobre el TLC con
+Colombia; proyecto que se limitaba a crear la obligacion del pago de
+los impuestos parafiscales en las Cooperativas de Trabajo Asociado
+(CTA). Durante el tramite de este proyecto en el Congreso de la
+Republica fueron muchos los debates y propuestas, y por ello el
+resultado fue una ley que considera otros temas adicionales.
+ Sin embargo, el Gobierno no podra presentar esta Ley como un avance
+en relacion con las exigencias internacionales sobre la materia, pues
+de manera clara se ignoran las recomendaciones realizadas por los
+organos de control de la OIT. Esta Ley 1233 no reconoce a los asociados
+de las CTA los derechos de asociacion, negociacion y huelga, y tampoco
+preve medidas suficientes para impedir que no se utilicen las CTA como
+forma de defraudacion de derechos laborales y sindicales. En suma,
+podemos afirmar que esta ley les permite a las CTA seguir siendo
+herramientas para evadir derechos laborales y precarizar las
+condiciones de vida de los trabajadores pues no resolvio temas
+cruciales como:
+ 1. Los asociados a las CTA no cuentan con derechos fundamentales y
+esenciales que si tendrian como trabajadores vinculados por contrato.
+ 2. Al contratar CTA, las empresas logran que los costos de nomina
+laboral sean externos y no imputables a ellas. Las empresas unicamente
+responden por lo que firmen en la oferta mercantil, sin que sea posible
+siquiera demandarlas por vulneracion de derechos laborales.
+ 3. Para evadir los costos por aportes a seguridad social, los
+empresarios prefieren contratar con CTA, en las que dichos aportes
+corren, en su totalidad, a cargo de los asociados.
+ 4. La principal actividad de las CTA es la intermediacion laboral.
+La inmensa mayoria de actividades que realizan las CTA se da por
+contrataciones que hacen las empresas como intermediacion laboral, y en
+la practica las empresas remplazan sus trabajadores por asociados a
+CTA.
+ 5. Hay una ausencia casi total de control a las CTA, por lo que un
+numero infimo de ellas se encuentra actualmente cumpliendo con la
+normatividad vigente.
+ 6. Hay ausencia de participacion democratica de los asociados de
+las CTA. Por la inexistencia de limites razonables para el periodo de
+las juntas de administracion de la CTA, son muchos los casos en que los
+asociados estan convencidos de que estas tienen dueno en vez de
+gerente, porque la oferta mercantil firmada entre empresa y CTA no esta
+sujeta a la aprobacion de la asamblea de asociados.
+ 7. Hay competencia entre las CTA por ofrecer peores y mas baratas
+formas de contratacion, lo que genera una especie de guerra del centavo
+entre ellas.
+ 8. Las CTA se usan como herramienta para debilitar y disminuir a
+los sindicatos. Los asociados a CTA no tienen derecho a sindicalizarse
+porque, segun el Ministerio de la Proteccion Social, no tienen la
+calidad de trabajadores sino de aportantes de su fuerza de trabajo.
+ La OIT ha emitido varias observaciones y recomendaciones sobre las
+Cooperativas de Trabajo Asociado, recientemente en la 97 Conferencia
+(junio de 2008), la Comision de aplicacion de Normas senalo: ``* * * En
+particular, la Comision espero firmemente que se adoptaran sin demora
+disposiciones legislativas para asegurar que los contratos de servicio
+o de otro tipo y las cooperativas u otras medidas no sean utilizados
+como medios para menoscabar los derechos sindicales y la negociacion
+colectiva * * *''
+ ______
+
+ Chairman Miller. Thank you. Thank you very much. Some of
+you looked a little perplexed as you hear the whistling here.
+It is very high winds today. Others have suggested it is not
+the winds, that it is really the ghost of Chairman Perkins who
+spoke with a whistle. Whenever he spoke, he also whistled at
+the same time. You can pick your explanation of it, but
+apparently the architects have never been able to fix it.
+ So with that, we will go--Ms. Hoyos, please? Welcome to the
+committee. And we look forward to your testimony.
+
+ STATEMENT OF YESSIKA HOYOS MORALES, BOGOTA, COLOMBIA
+
+ Ms. Hoyos [through translator]. I am Yessika Hoyos Morales,
+the daughter of Jorge Dario Hoyos Franco, one of the 2,694
+labor unionists murdered with impunity in Colombia.
+ Eight years ago, I was living with my mother, my sister and
+my father in Fusagasuga. My father was a dreamer. He was very
+committed to the cause of justice, deeply concerned about
+oppression and poverty. That is why he was committed to the
+union struggle from the time that he was very young.
+ He started working with national agrarian organizations,
+and his leadership led him to the International Federation of
+Agricultural Workers and then on to the International
+Federation of Miners.
+ In our town, my father worked broadly with labor unions,
+student organizations and women's organizations. He worked to
+defend the rights of communities, and he was widely recognized
+and loved by the people for his work. My father was a cheerful,
+generous man. He was kind to us and showed us love and showed
+solidarity with others. He was our friend and our hero, the man
+who gave us advice, who helped us discover the world.
+ From the time I was very young, I was witness to raids on
+our house by the police, threats to my father. We got phone
+calls, funeral prayer cards, funeral wreaths. We were
+persecuted. That is how I learned that union activity in
+Colombia is dangerous and that thinking and protesting puts
+your life at risk.
+ Still, we were happy until the night of March 3, 2001, when
+two confessed hit men of the paramilitary, shot my father
+repeatedly in the face until they killed him. My mother and my
+sister, who was only 14, found him on the ground with blood
+running out of his body, having lost his smile and his dreams
+and the kisses and hugs that he used to give us.
+ The murderers made good on their threats. My father made
+good on his word. He never gave in to the demand that he stop
+fighting for the people. That was the first union death, my
+father's. But then, the murderers attempted a second and
+definitive killing, the one that they are trying to impose on
+us in Colombia, the one that is clad in forget and impunity.
+ The day of the funeral itself, tragedy took another turn.
+Threats, harassment and persecution started against the rest of
+us so that we wouldn't make any reports or claims. And because
+of that, we were forced to leave our home and hide out in
+Bogota, where they found us anyway, to the extent that we had
+to move five times in a single year.
+ As with the other 2,694 murders of union members, impunity
+began to be cast the very night of that horrific crime when the
+perpetrators where caught. They were two young hit men who
+immediately were visited in their cell by a police officer who
+told them what to say in their statements. The investigational
+hypothesis cast by the authorities held that it was a crime
+caused because my father was involved with another man's wife.
+This is the typical explanation that Colombian authorities give
+to cover up the truth.
+ True to my father and following his example of passion for
+truth and justice, at 17 I joined the same battle that
+thousands of young people, widows, parents, brothers and
+sisters have had to wage in search of truth, justice and
+reparation, victims' rights that are denied in my country. To
+this end, I granted power of attorney to the law firm of Jose
+Alvear Restrepo to represent me in my civil intervention in the
+government's criminal case.
+ In 2003, the two hit men were sentenced to 23 years in jail
+for aggravated homicide of a protected person, since my father
+was the labor leader. This weak sentence, however, did not
+overcome impunity because the search for those who ordered the
+murder only got to the point of linking it, in absentia, to a
+second police lieutenant by the name of Monroy, who after the
+crime and using another instrument of impunity, was
+retroactively relieved of his post in the month of February,
+2001 in an attempt to demonstrate that on March 3, 2001, he was
+no longer an active-duty police officer. Still, the criminal
+proceedings established that my father's murder had been
+planned in December of 2000.
+ Officer Monroy was always a fugitive who was never caught.
+In August of 2007, he was sentenced to 40 years in prison for
+homicide of the unionist Jorge Dario Hoyos Franco. This fact
+was publicized by the Colombian government as a great stride in
+justice.
+ And perhaps it would have represented progress if not for
+the fact that I discovered in December of last year by a simple
+request for information at vital statistics that Monroy had
+died on May 3, 2006. In other words, a dead man had been
+condemned, somebody who was still wanted by the prosecutor's
+office.
+ Despite two court decrees in which Colombian judges ruled
+that my father was murdered for being a labor unionist, the
+prosecutor's office, in order to continue hiding the truth,
+continued to maintain that it was a crime of passion up through
+August of 2008. It took international pressure for the
+prosecutor's to acknowledge the truth with respect to the
+motivation of this crime.
+ I have forgiven my father's killers, but we will continue
+to demand that the intellectual authors of this crime be
+investigated because the murder of union members in Colombia is
+the result of systematic government policy. We know that there
+is evidence of other guilty parties, including members of the
+national army. The investigation is still open, but with no
+follow-up of evidence as requested and no identification of
+other possible perpetrators.
+ I continue to look for justice, along with other sons and
+daughters of those who remember and are against impunity, this
+organization that sprang from our need to oppose barbarism. We
+have many brothers and sisters, and we know that we are the
+children of the dreams of justice and equality of our parents
+hoping to have a better country in the future where there is
+life and the right to think, to dissent and to dream.
+ [The statement of Ms. Hoyos follows:]
+
+ Prepared Statement of Yessika Hoyos Morales (English)
+
+ I am Yessika Hoyos Morales, daughter of Jorge Dario Hoyos Franco,
+one of the 2,694 labor unionists murdered with impunity in Colombia.
+ Eight years ago I was living with my mother, my sister and my
+father in Fusagasuga. He was a man with dreams; he was very committed
+to the cause of justice; he was deeply pained by oppression and
+poverty. That is why he was very committed to the union fight from the
+time he was very young. He started working with national agrarian
+organizations, and his leadership took him to the international
+federation of agricultural workers, and then to the international
+federation of miners.
+ In our town, my father worked broadly with the labor unions,
+student organizations, women's organizations. He worked to defend the
+rights of communities, he was widely recognized and loved by the people
+for his work.
+ My father was a cheerful, generous man. He showed us tenderness,
+love and solidarity with others. He was our friend and our hero, the
+man who gave us advice, who helped us discover the world.
+ From the time I was a little girl, I was witness to raids on our
+house by police, threats to my father. We received phone calls, funeral
+prayer cards, funeral wreaths, persecution. That was how I learned that
+union activity in Colombia is dangerous, and that thinking and
+protesting puts your life at risk.
+ However, we were happy until the night of March 3, 2001, when two
+confessed paramilitary hit men, shot my father repeatedly in the face
+until he was dead. My mother, and my sister, who was only 14 years old,
+found him on the ground with blood running down his body, now without
+his smile, without his dreams, without his kisses and hugs to give us.
+ The murderers made good on their threats. My father made good on
+his word--he never gave in to the demand that he stop fighting for the
+people. That was the first death, the death of a union leader, my
+father. But then, the murderers attempted a second and definitive
+killing, the one they are trying to impose on us in Colombia, the one
+that is clad with forgetting and impunity.
+ The very day of the funeral, the tragedy took another turn.
+Threats, harassment, persecution started against us, so that we
+wouldn't make any denouncements or claims. And because of that we had
+to leave our home and hide out in Bogota, where we were found anyway,
+to the extent that we had to move five times in a single year.
+ And as with the other 2,694 murders of unionists, impunity began to
+be cast the very night of that horrific crime, when the perpetrators
+where caught, two young hit men, who were immediately visited in their
+cell by a police officer who told them what to say in their statements.
+The investigational hypothesis cast by the authorities held that it was
+a crime caused because my father had gotten involved with another man's
+wife. This is the typical explanation the Colombian authorities give to
+cover up the truth, to deny that people are murdered there for being
+labor unionists.
+ True to my father, following his example of passion for truth and
+justice, at 17, I joined the same battle that thousands of young
+people, widows, parents, brothers and sisters have had to wage in the
+search for TRUTH, JUSTICE AND REDRESS--victims' rights that are denied
+in my country. To this end, I have granted power of attorney to the law
+firm of Jose Alvear Restrepo to represent me in my civil intervention
+in the government's criminal case.
+ In 2003, the two hit men were sentenced to 23 years in prison for
+aggravated homicide of a protected person, since my father was a labor
+unionist. This weak sentence did not overcome the impunity since the
+search for those who ordered the murder only got to the point of
+linking it, in absentia, to a second lieutenant of police by the name
+of MONROY, who, after the crime, using another instrument of impunity,
+was retroactively relieved of his post in the month of February, 2001,
+in an attempt to show that on March 3, 2001, he was no longer an
+active-duty police officer. However, the criminal proceedings
+established that my father's murder had been planned in December of
+2000.
+ Officer MONROY was always a fugitive. He was never caught. In
+August of 2007, he was sentenced to 40 years in prison for homicide
+against the unionist JORGE DARIO HOYOS FRANCO. This fact was publicized
+by the Colombian government as a great stride for justice, and perhaps
+it would have been an advance, if not for the fact that I discovered in
+December of last year, through a simple information request at the
+national registry of vital statistics, that MONROY died on May 3, 2006.
+In other words, a dead man was sentenced--one who is still wanted by
+the prosecutor's office.
+ Despite the two sentences, in which the Colombian judges have ruled
+that my father was murdered for being a labor unionist, the
+prosecutor's office, in order to continue hiding the truth, maintained
+the hypothesis of a crime of passion up until August of 2008. It took
+international pressure for the prosecutor's office to acknowledge the
+truth with respect to the motive for the crime.
+ I have forgiven my father's perpetrators, but we will continue to
+demand that the intellectual authors be investigated, as the murder of
+unionists in Colombia is the result of a systematic government policy.
+We know there is evidence of other perpetrators, including members of
+the national army. The investigation remains open, but with no follow-
+up of the evidence as requested, and no identification of other
+possible perpetrators.
+ I am Yessika Hoyos Morales, one of many daughters of Colombian men
+and women, who like Jorge Dario Hoyos Franco, were murdered with
+complete impunity. I am not alone. We are not alone. We are brothers
+and sisters united by hope, by dreams of justice, truth and freedom. We
+are Sons and Daughters for Remembering and Against Impunity, an
+organization that sprang from our need to oppose barbarism. With the
+good fortune of love and solidarity, we have found many older brothers
+and sisters around the world who keep us going on the path of hope with
+their encouragement and faith. We know that we are the children of the
+dreams of justice and equality of our parents, and it is for that very
+reason that we are ethically and morally obligated to build a great
+country, where there is respect for life, where there is the right to
+think, to dissent and to dream.
+ ______
+
+
+ Prepared Statement of Yessika Hoyos Morales (Spanish)
+
+ Soy Yessika Hoyos Morales, hija de Jorge Dario Hoyos Franco uno de
+los 2.690 sindicalistas asesinados impunemente en Colombia.
+ Ocho anos atras vivia con mi madre, mi hermana y mi padre en
+Fusagasuga. El era un hombre sonador, comprometido con las causas
+justas, a el le dolia en el alma la opresion y la miseria, por eso
+desde muy joven se decidio por la lucha sindical. Inicio con
+organizaciones agrarias nacionales, y por su liderazgo llego a la
+federacion internacional de trabajadores agrarios y luego a la
+federacion internacional de mineros.
+ En nuestro pueblo, mi papi desarrollo una amplia labor social con
+los sindicatos, con organizaciones estudiantiles, de mujeres, en pos de
+reivindicar los derechos de las comunidades, labor por la que adquirio
+reconocimiento y carino de las personas.
+ Mi papa era un hombre alegre, generoso, nos enseno su ternura, su
+amor, y la solidaridad con la gente; el era nuestro amigo y nuestro
+heroe, el hombre que nos daba consejos, con el que descubrimos el
+mundo.
+ Desde nina fui testigo de allanamientos a la casa por la fuerza
+publica, de amenazas a mi papi, recibimos llamadas, sufragios, coronas
+funebres, persecuciones, por eso aprendi que la actividad sindical en
+Colombia es peligrosa y que pensar y protestar pone en riesgo la vida.
+ Sin embargo, eramos felices hasta la noche del 3 de marzo de 2001,
+cuando dos sicarios confesos paramilitares dispararon repetidamente en
+la cara de mi papi hasta quitarle la vida. Mi madre y mi hermana, quien
+tan solo tenia 14 anos, lo encontraron en el suelo, con la sangre
+corriendo por su cuerpo, ya sin su risa, sin sus suenos, sin el beso y
+el abrazo para darnos.
+ Los asesinos cumplieron sus amenazas. Mi papa cumplio con su
+palabra pues jamas cedio a la exigencia de abandonar la lucha social.
+Esa fue la primera muerte del lider sindical, mi padre, pero luego los
+asesinos intentaron una segunda y definitiva muerte, esa que nos
+quieren imponer en Colombia, la que esta revestida de olvido e
+impunidad.
+ El mismo dia del funeral, la tragedia tomo otra cara, comenzaron
+las amenazas, hostigamientos, persecuciones contra nosotras, para que
+no fuesemos a denunciar, para que no fuesemos a reclamar. Por ello
+tuvimos que salir desplazadas a escondernos en Bogota, donde aun asi
+fuimos ubicadas al punto que en un solo ano tuvimos que cambiar 5 veces
+de residencia.
+ Y como en los otros 2.690 homicidios contra sindicalistas la
+impunidad empezo a fraguarse desde la misma noche de ese horrendo
+crimen, cuando capturaron a los autores materiales, dos jovenes
+sicarios, a quienes de inmediato visito en su celda un policia quien
+les advirtio lo que tenian que decir en sus declaraciones. La hipotesis
+de investigacion forjada por las autoridades senalo que era un crimen
+ocasionado porque mi padre se habia involucrado con la mujer de otro
+hombre. Tipica explicacion que dan las autoridades colombianas para
+ocultar la verdad, para negar que alli se asesina a las personas por
+ser sindicalistas.
+ Fiel a mi padre, siguiendo su ejemplo y pasion por la verdad y la
+justicia, a los 17 anos inicie la misma batalla que miles de jovenes,
+viudas, padres, hermanos han tenido que librar en busca de VERDAD,
+JUSTICIA Y REPARACION, derechos de las victimas que son negados en mi
+pais. Por ello otorgue poder a la Corporacion Colectivo de Abogados
+``Jose Alvear Restrepo'' para que me representara como parte civil.
+ En el ano 2003, los dos sicarios fueron condenados a 23 anos de
+prision, por homicidio agravado en persona protegida por ser mi padre
+un sindicalista. Esta tenue condena no significo superacion de la
+impunidad, pues la busqueda de los determinadores solo alcanzo para
+vincular como persona ausente a un sub teniente de la policia de
+apellido MONROY, a quien con posterioridad al crimen, utilizando otro
+mecanismo de impunidad, lo destituyeron retroactivamente en el mes de
+febrero de 2001, intentando demostrar que para el dia 3 marzo de 2001
+ya no era policia activo, sin embargo en el proceso penal esta
+demostrado que el homicidio de mi papi, lo planearon desde el mes de
+diciembre de 2000.
+ El policia MONROY siempre estuvo profugo, nunca se le capturo, en
+el mes de agosto 2007 fue condenado a 40 anos de prision por homicidio
+contra el sindicalista JORGE DARIO HOYOS FRANCO. Este hecho fue
+publicitado por el Estado colombiano como un gran logro de justicia, y
+tal vez hubiese sido un avance si no fuera porque descubri, en
+diciembre del ano pasado, con un simple derecho de peticion a la
+registraduria nacional del estado civil, que MONROY fallecio desde el
+03 de mayo de 2006, es decir se condeno a un muerto, al cual todavia la
+fiscalia busca.
+ No obstante las dos condenas, donde los jueces colombianos han
+fallado que a mi papa lo asesinaron por ser sindicalista, la fiscalia,
+con el fin de seguir ocultando la verdad, hasta agosto de 2008 mantuvo
+la hipotesis de un crimen pasional, fue necesario la presion
+internacional para que esta reconociera la verdad en cuanto al movil
+del crimen.
+ He perdonado a los asesinos materiales de mi padre, pero seguimos
+exigiendo que se investigue a los autores intelectuales pues el
+asesinato de sindicalistas en Colombia es producto de una sistematica
+politica de Estado. Sabemos que hay pruebas de otros responsables
+incluyendo miembros del ejercito nacional, la investigacion sigue
+abierta pero sin practicar las pruebas solicitadas y sin vincular a
+otros posibles responsables.
+ Soy Yessika Hoyos Morales, soy otra hija de hombres y mujeres
+colombianos que como Jorge Dario Hoyos Franco fueron asesinados en
+total impunidad. No estoy sola, no estamos solos, somos hermanos unidos
+por la esperanza por los suenos de justicia, verdad y libertad. Somos
+Hijos e Hijas por la memoria y contra la impunidad, una organizacion
+surgida de la necesidad de oponernos a la barbarie. Por la fortuna del
+amor y la solidaridad, hemos encontrado en todo el mundo muchos
+hermanos mayores que con su aliento y su fe nos mantienen vivos y en el
+camino de la esperanza. Tenemos la certeza de que somos hijos de los
+suenos de justicia e igualdad de nuestros padres, y que justamente por
+ello estamos en la obligacion etica y moral de construir un pais grande
+en el que se respete la vida, el derecho a pensar, a disentir, a sonar.
+ ______
+
+ Chairman Miller. Thank you very much.
+ Judge Sanchez?
+
+ STATEMENT OF JOSE NIRIO SANCHEZ, FORMER COLOMBIAN JUDGE IN
+ SPECIAL COURT FOR LABOR-HOMICIDE CASES, BOGOTA, COLOMBIA
+
+ Mr. Sanchez [through translator]. I would like to extend a
+sincere and cordial greeting to all of those present. Thank you
+for inviting me. My name is Jose Nirio Sanchez, former second
+criminal judge of the specialized circuit of the Republic of
+Colombia. I held this post from July 1, 2007 until December 31,
+2007. I served the Colombian government for 35 years.
+ I had national jurisdiction to rule on acts of violence
+committed against labor union leaders and unionists. During my
+tenure as judge, I issued eight convictions. And my conclusion
+from this personal experience and from having read my
+colleagues' rulings is that there is a clear pattern in all of
+these investigations.
+ The public prosecutor formally orders an investigation, but
+does not carry it out fully. They make mistakes in legal
+classifications of the crime. And for one reason or another,
+they misdirect the investigations, and they fail to investigate
+the intellectual authors.
+ I want to tell you about the facts and legal outcomes of
+three of the cases that I ruled on. In the case of the murder
+of Mr. Dario Hoyos, father of Yessika, who is here with us, the
+motives that led to the death of this labor union, community
+and civic leader were his union convictions and battles. The
+threats were not only aimed at him, but even at his family.
+ However, the prosecutor developed another hypothesis,
+arguing that the death was a crime of passion. The evidence did
+not support this hypothesis, which was later rejected during
+the sentencing.
+ Mr. Monroy, a former police officer, was sentenced to 40
+years in prison for this crime. However, several days ago, I
+discovered that this sentence was in vain since the accused had
+died more than one year earlier.
+ This crime, as in other cases, thus remains unpunished. The
+true intellectual authors were not brought to account. Also, it
+is disturbing that the prosecutor did not realize that a person
+with an outstanding arrest warrant was, in fact, deceased. And
+in this manner, the prosecutor wasted a large amount of
+physical and human resources that could have been used to clear
+up other criminal acts and to identify the intellectual authors
+of the crime.
+ A second case--in the murder of three unionists in Arauca,
+Colombia, four Colombian servicemen and one civilian were
+sentenced to 40 years in prison as material authors because
+they conspired in their criminal intent. Their objective was to
+cause the death of the three unionists.
+ From the moment these acts occurred, both those charged and
+those who were responsible for the operation, directly or
+indirectly, allowed the scene of the crime to be concealed,
+destroyed or changed in order to throw the investigation off
+course. In fact, the firing test on the person who was said to
+have fired the weapon came out negative as an inoperable pistol
+was placed upon that person.
+ The material authors were convicted, but the officers
+higher up in the chain of command were not investigated. As far
+as their conduct, direction and responsibility for the outcome,
+Colonel Medina Corredor and two other captains never had to
+explain their behavior. They kept silent. They must at least be
+held accountable as guarantors, which is why I ordered they be
+investigated.
+ I understand that the Inspector General of the nation
+removed them from their positions and disqualified them from
+holding official positions for 20 years. However, in this case
+as well, the prosecutors failed to investigate these officials,
+officers, even though they could have been tried along with the
+material authors.
+ Lastly, in the murder of the unionist Luciano Romero, two
+material authors were sentenced to 40 years in prison. The
+deceased was preparing to testify as a witness in the policies
+of the transnational company, Nestle-Cicolac, at the session of
+the permanent people's tribunal in Switzerland. Three labor
+union leaders from the same union as well as employees from the
+same company were also murdered under similar circumstances.
+ I ordered an investigation of the case. And as always,
+verification of attested copies were ordered from the Nestle-
+Cicolac board in order to investigate the presumed
+participation in, and/or, determination of the murder of labor
+union leader Luciano Romero. Mr. Carlos Alberto Velez, in his
+capacity as Nestle-Cicolac's chief of security for Latin
+America, sent a letter to the prosecutor's office warning that
+if this investigation were to become public, it would seriously
+affect its reputation and foreign investment.
+ And as a final conclusion, it is a systematic pattern that
+in all of these criminal acts, the prosecutor is satisfied with
+establishing the responsibility of the material authors,
+leaving out the intellectual authors, who are the most
+important ones, given that they are the ones who sponsor, order
+the executions, put up the money, and they always remain in
+impunity. Thus, these crimes will not stop, since the true
+perpetrators are not prosecuted.
+ The investigations are directed off course toward other
+hypotheses that the judge ultimately debunks in his ruling or
+accepts with no reservations whatsoever. By then, it is already
+too late.
+ The evidence no longer exists and the authors disappear,
+when the normal thing would be for them to be identified in the
+initial phase of the investigation. This waste of resources
+causes an increase in crime and a decrease in the credibility
+of the institution, which is reflected in the unwillingness of
+witnesses to testify.
+ And finally, I would like to say that I love my country
+very much, and that I am very pained by these murders committed
+against unionists and labor leaders. And I want to say that you
+are very brave for fighting for this cause, which is our cause.
+But this will surely have benefit for the entire international
+community. Thank you very much.
+ [The statement of Mr. Sanchez follows:]
+
+ Prepared Statement of Jose Nirio Sanchez (English)
+
+ I would like to extend a sincere and cordial greeting to all those
+present. Thank you for inviting me to help shed light on the truth
+regarding the criminal acts against Colombian labor union leaders. With
+my testimony, I hope to contribute to reducing these criminal acts to
+zero, and to making sure those that have been committed do not remain
+in impunity.
+ My name is Jose Nirio Sanchez, former 2nd criminal judge of the
+specialized circuit of the Republic of Colombia. I held this post from
+July 1, 2007 to December 31, 2007, by unanimous designation. I was
+replaced January 12, 2008 in an election, in which I lost re-election
+by one vote. I served the Colombian government for 35 years.
+ I had national jurisdiction to rule on acts of violence committed
+against labor union leaders and unionists, as part of the program to
+fight impunity that the national government is pursuing.
+ During my tenure as judge, I issued 8 convictions. My conclusion
+from this personal experience and from having read my colleagues'
+rulings, is that there is a determining pattern in all of these
+investigations. The Public Prosecutor formally orders an investigation,
+but does not carry it out. They make mistakes in judicial
+classification of the crime. For one reason or another, they misdirect
+the investigations, and they fail to investigate the intellectual
+authors.
+ I want to tell you about the facts and legal outcomes of three of
+the cases I ruled on.
+ 1. For the Murder of Mister Dario Hoyos: The motives that led to
+the death of this labor union, community and civic leader were his
+union convictions and battles. The threats were not only directed at
+him, but even at his family. But the Public Prosecutor developed
+another hypothesis, arguing that the death was a crime of passion. The
+evidence did not support this hypothesis, which was later rejected in
+the sentence.
+ Mr. Monroy was sentenced to 40 years in prison for this crime.
+However, several days ago, I discovered that this sentence was in vain,
+since the accused had died more than one year earlier. This case, like
+other cases, thus, remains in impunity. The true intellectual authors
+were not brought to account. Also, it is disturbing that the Public
+Prosecutor did not realize that a person with an outstanding arrest
+warrant was in fact deceased. In this manner, the Public Prosecutor
+wasted a large amount of physical and human resources that could have
+been used to clear up other criminal acts and to identify the
+intellectual authors of the crime.
+ 2. For the murder of three unionists in Arauca, Colombia, 4
+Colombian servicemen and one civilian were sentenced to 40 years in
+prison as material authors because they conspired in their criminal
+intent. Their objective was to cause the death of the three unionists.
+From the moment these acts occurred, both those charged and those who
+were responsible for the operation, directly or indirectly, allowed the
+scene of the crime to be concealed, destroyed or changed, in order to
+throw the investigation off course (the firing test on the person who
+was said to have fired the weapon was negative, an inoperable pistol
+was placed on him).
+ The material authors were convicted but the officers up the chain
+of command were never investigated. With regard to their conduct,
+direction and responsibility for the outcome, Coronel LUIS FRANCISCO
+MEDINA CORREDOR, and other officials, Captain HIZNARDO ALBERTO BRAVO
+ZAMBRANO and Captain LUIS EDUARDO CASTILLO ARBELAEZ, never explained
+their behavior. They remained silent. They must at least be held
+accountable as guarantors, which is why it was ordered they be
+investigated. I understand that the Inspector General of the Nation
+removed them from their posts, and disqualified them from holding
+official posts for 20 years. However, in this case as well, the public
+prosecutors failed to investigate these officials, even though they
+could have been tried along with the material authors.
+ 3. For the murder of the unionist Luciano Romero, 2 material
+authors were sentenced to 40 years in prison and other accessory
+penalties. The deceased was preparing to testify as a witness to the
+policies of the transnational company, NESTLE-CICOLAC, at the session
+of the Permanent People's Tribunal, which was to take place October 29
+and 30, 2005, in Bern, Switzerland. Three labor union leaders from the
+Union of Food Industry Workers and former CICOLAC workers were also
+murdered in similar circumstances: VICTOR MIELES, ALEJANDRO MARTINEZ
+TORIBIO DE LA HOZ and HARRY LAGUNA. As always, verification of attested
+copies was ordered from the NESTLE-CICOLAC board, in order to
+investigate their presumed participation in, and/or, determination of
+the murder of labor union leader LUCIANO ROMERO. Mr. Carlos Alberto
+Velez, in his capacity as Chief of Security for Latin America, sent a
+letter to the Public Prosecutor, warning that if this investigation
+were to become public, it would seriously affect its reputation and
+foreign investment. As I considered the situation serious and abnormal,
+I ordered an investigation, as I stated earlier.
+Final Conclusion
+ It is a systematic pattern that in all of these criminal acts, the
+Public Prosecutor is content to determine the responsibility of the
+material authors, leaving out the intellectual authors, who are the
+most important, given that they are the ones who sponsor, order the
+executions, put up the money, and always remain in impunity. Thus,
+these crimes will not stop, since the true perpetrators are not
+prosecuted. The investigations are directed off course toward other
+hypotheses that the judge ultimately debunks in his ruling, or accepts
+with no reservations whatsoever. Then, it is already too late. The
+evidence no longer exists and the authors disappear, when the normal
+thing would be for them to be identified in the initial phase of the
+investigation. This waste of resources causes an increase in crime and
+a decrease in the credibility of the institution, which is reflected in
+the unwillingness of witnesses to testify.
+ ______
+
+
+ Prepared Statement of Jose Nirio Sanchez (Spanish)
+
+ Un atento y cordial saludo a todos los presentes gracias por
+invitarme a contribuir al esclarecimiento de la verdad que se relaciona
+con los actos criminales contra la dirigencia sindical colombiana. Con
+mi testimonio pretendo que esta criminalidad se reduzca a cero y la
+existente no quede impune.
+ Mi nombre es Jose Nirio Sanchez, Exjuez 2nd. penal del circuito
+especializado--de la republica de Colombia, ejerci el cargo desde el
+primero de julio de 2007 al 31 de diciembre de 2007, designacion por
+unanimidad. Fui reemplazado en enero 12 de 2008 en eleccion en la que
+me falto un voto para ser reelegido. Preste mis servicios al estado
+Colombiano por 35 anos.
+ Tenia competencia nacional para fallar los hechos de violencia
+cometidos contra dirigentes sindicales y sindicalistas, dentro del
+programa de lucha contra la impunidad que adelanta el gobierno
+nacional.
+ Durante el ejercicio como juez dicte 8 fallos condenatorios, mi
+conclusion de esa experiencia personal y por haber leido los otros
+fallos de mis colegas, es que en todas estas investigaciones existe un
+patron determinante la fiscalia formalmente ordena una investigacion
+pero no la realiza, se equivoca en la calificacion juridica de los
+hechos, por una u otra razon desvia las investigaciones, y omite
+investigar los autores intelectuales.
+ Quiero contarles los hechos y conclusiones juridicas de tres de los
+casos en que yo dicte fallos
+ 1- Por el Homicidio del senor Dario Hoyos: Los motivos que
+condujeron al deceso de este lider sindical, comunitario y civico
+fueron sus convicciones y luchas sindicales. Desde un comienzo se
+establecio que, las amenazas no solamente se cernian sobre el sino
+hasta su familia. Sin embargo, la Fiscalia desarrollo otra hipotesis,
+que era un crimen pasional. Las pruebas no sustentaron esta hipotesis y
+esta se rechazo en la sentencia.
+ El senor Monroy fue sentenciado a 40 anos de prision. Sin embargo,
+hace unos dias me entero que esta sentencia fue en vano puesto que el
+sentenciado habia fallecido hacia mas de un ano. Este como otros casos
+queda entonces en la impunidad. No se responsabilizaron los verdaderos
+autores intelectuales. Por otra parte, es preocupante que la Fiscalia
+no se dio cuenta que habia fallecido una persona que tenia orden de
+captura. De esta manera, la Fiscalia desperdicio recursos fisicos y
+humanos que se habrian podido utilizar en el esclarecimiento de otros
+hechos delictivos y en la busqueda de los autores intelectuales del
+hecho.
+ 2- Por el homicidio de tres sindicalista en Arauca Colombia, fueron
+sentenciados a 40 anos de prision 4 militares colombianos y un civil en
+calidad de autores materiales porque convergieron en su voluntad
+dolosa, su objetivo era causar la muerte a los tres sindicalistas.
+Desde el primer instante de la ocurrencia de estos hechos, tanto los
+acusados como las personas que tenian a cargo la operacion directa o
+indirectamente permitieron que se ocultara, destruyera o modificara la
+escena, para desviar el curso de la investigacion (la prueba de disparo
+resulto negativa a quien le imputaban haber disparado, colocandole una
+pistola inservible).
+ Se condenaron los autores materiales pero no se investigaron los
+oficiales en la cadena de mando. Estos ultimos nunca explicaron su
+comportamiento. Guardaron silencio. En lo que respecta a la conducta
+del Coronel LUIS FRANCISCO MEDINA CORREDOR, y de otros oficiales
+Capitan HIZNARDO ALBERTO BRAVO ZAMBRANO, Capitan LUIS EDUARDO CASTILLO
+ARBELAEZ, la direccion y responsabilidad de su resultado; al menos
+deben responder como garantes, razon por la que se ordeno
+investigarlos. Tengo entendido que la procuraduria general de la Nacion
+los destituyo y los inhabilito para ejercer cargos oficiales durante 20
+anos. Aqui tambien la Fiscalia dejo de investigar a estos oficiales, a
+pesar de que se les habria podido resolver en el mismo fallo con los
+autores materiales.
+ 3- Por el homicidio del sindicalista Luciano Romero, fueron
+sentenciados 2 autores materiales a 40 anos de prision y demas
+accesorias. El occiso se preparaba para ser testigo de la politica de
+la trasnacional NESTLE-CICOLAC, en la sesion del Tribunal Permanente de
+los Pueblos, que se realizaria los dias 29 y 30 de octubre de 2005 en
+Berna Suiza, en similares circunstancias tambien fueron asesinados 3
+dirigentes sindicales del Sindicato de Trabajadores de la Industria de
+Alimentos y extrabajadores de CICOLAC: VICTOR MIELES, ALEJANDRO
+MARTINEZ TORIBIO DE LA HOZ y HARRY LAGUNA, como siempre se dispuso la
+compulsa de copias contra los directivos de NESTLE-CICOLAC , a efecto
+de investigar su presunta injerencia y/o determinacion en el homicidio
+del lider sindical LUCIANO ROMERO, y en razon a una carta que enviara
+el senor Carlos Alberto Velez a la Fiscalia, en su condicion de Gerente
+de Seguridad para America Latina, advirtiendo que de conocerse esta
+investigacion se afectaria gravemente su reputacion y la inversion
+extranjera. Por considerar grave y anomala la situacion ordene se
+investigara como dije anteriormente.
+ Conclusion final
+ Es sistematico que en todas los hechos criminales, la fiscalia se
+conforme con la responsabilidad de los autores materiales, dejando de
+un lado los autores intelectuales, quienes son los mas importantes por
+ser quienes auspician, ordenan las ejecuciones, aportan los dineros,
+quedando siempre en la impunidad. Por consiguiente los crimenes no
+pararan en razon a que no se judicializa a verdaderos autores. Desvian
+las investigaciones hacia otras hipotesis que finalmente destruye el
+juez en el fallo o lo acepta sin reparo alguno, cuando ya es tarde, las
+pruebas se pierden y los autores desaparecen, siendo lo mas normal
+descubrirlos en la etapa inicial de la investigacion. Este desgaste de
+recursos hace que aumente la criminalidad y disminuya la credibilidad
+en la institucion, fenomeno que se refleja en el rechazo de los
+testigos en declarar.
+ ______
+
+ Chairman Miller. Ms. McFarland?
+
+ STATEMENT OF MARIA MCFARLAND SANCHEZ-MORENO, LATIN AMERICA
+ SPECIALIST, HUMAN RIGHTS WATCH, WASHINGTON, DC
+
+ Ms. McFarland. Thank you very much. Colombia has by far the
+world's highest rate of trade unionist killings. As previously
+stated, more than 2,600 unionists are reported to have been
+killed since 1986. And some 4,200 are reported to have received
+threats.
+ More than 400 of the killings have happened during the
+administration of current president Alvaro Uribe. After hitting
+a peak in the 1990s, the rate of killings dropped for several
+years. But it has recently risen again to 49 killings in 2008
+from 39 in 2007. Also, union members reported receiving 485
+threats last year, almost twice the number recorded the
+previous year.
+ The overwhelming majority of these cases have never been
+solved. Colombia's attorney general reports that in the last 8
+years there have been 171 convictions for anti-union violence.
+This number reflects a big jump in convictions starting a
+couple of years ago when the attorney general's office
+established a specialized group of prosecutors to reopen many
+of the uninvestigated cases.
+ But despite this increase, 96 percent of all the unionist
+killings remain unsolved. And even at the current rate of
+conviction with no new killings, it would take 37 years for the
+prosecutor to get through the backlog.
+ Also, as we explained in a November letter to Speaker
+Pelosi, which I would like to submit for the record, there are
+serious reasons to be concerned about the sustainability of the
+increasing convictions. For one, the specialized prosecutors
+are only investigating 1,104 of the total cases of 2,694
+killings, 4,200 threats and other acts of violence. And they do
+not have a clear plan to review the remaining cases.
+ Second, many of the convictions involve paramilitaries who
+are participating in what is known as the justice and peace
+process in which in exchange for their supposed demobilization,
+they will serve only very short sentences of 5 to 8 years for
+all of their crimes. These convictions do little to clarify the
+truth, as in many cases, the convicted paramilitaries simply
+accept responsibility for the crimes without explaining the
+circumstances surrounding them, who ordered them or why.
+ And once the process is over, it is likely the conviction
+rates will drop again. Finally, in some of the most high
+profile cases like the investigation of Uribe's former
+intelligence chief, Jorge Noguera for alleged involvement in
+union killings, there has been little progress.
+ While some of the violence is attributable to the military,
+left wing guerrillas or to common crime, by far the largest
+share of the killings where perpetrators have been identified
+are attributable to paramilitary mafias who have deliberately
+persecuted unionists. So to address anti-union violence
+effectively, it is crucial that the government dismantle the
+paramilitary groups that are most responsible for it. But the
+government has failed to do so.
+ The Uribe administration claims that the paramilitaries
+have demobilized. But scores of new groups closely linked to
+the paramilitaries are operating all over the country engaging
+in extortions, killings, forced disappearances, forced
+displacement and drug trafficking just like their predecessors.
+I have personally interviewed many of their victims.
+ The bulk of the threats received by unionists last year
+have been signed by these groups. The paramilitaries have also
+infiltrated some of the highest circles of political power,
+including much of the Colombian congress. Seventy-four members
+of the congress, nearly all of whom are members of President
+Uribe's coalition, are under investigation or have been
+convicted for collaborating with paramilitaries. Unfortunately,
+as I documented in our latest report, which I would also like
+to submit for the record, the Uribe administration has often
+taken steps that would undermine these investigations.
+ President Uribe has launched personal public attacks
+against the supreme court justices who have led the
+investigations. And he has blocked meaningful efforts to reform
+the congress to eliminate paramilitary influence.
+ Another problem the government must address is the large
+number of extrajudicial killings of civilians by the Colombian
+Army. The attorney general's office is currently investigating
+cases involving more than 1,000 victims of such killings in
+recent years. Twenty-two of the union killings in the last few
+years are believed to have been executions by the military.
+ It is difficult to take the government's commitments to
+contain anti-union violence seriously when its security forces
+appear to be engaged in widespread executions of civilians. It
+is also difficult when senior government officials, including
+President Uribe himself, continuously make statements
+stigmatizing union activity and human rights work as linked to
+guerrillas like he did just last weekend.
+ In sum, the Colombian government has a long way to go to
+make sure that workers in Colombia can exercise their rights.
+But the Colombian government senses that change has come to
+Washington and that more progress is expected.
+ 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. Thank you very
+much.
+ [The statement of Ms. McFarland follows:]
+
+ Prepared Statement of Maria McFarland Sanchez-Moreno, Esq., Senior
+ Americas Researcher, Human Rights Watch
+
+ 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 Fiscalia),
+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 Lopez, 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. Lopez 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 Alvaro 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 Medellin, 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 Quindio, 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.
+ ______
+
+ [The study, ``Breaking the Grip? Obstacles to Justice for
+Paramilitary Mafias in Colombia,'' Human Rights Watch, October
+2008, may be accessed at the following Internet address:]
+
+ http://www.hrw.org/sites/default/files/reports/colombia1008web.pdf
+
+ ______
+
+ Chairman Miller. Mr. Roberts?
+
+ STATEMENT OF JAMES ROBERTS, RESEARCH FELLOW, THE HERITAGE
+ FOUNDATION, WASHINGTON, DC
+
+ Mr. Roberts. Thank you, Mr. Chairman, Mr. Ranking Member. I
+am here today in my personal capacity. And the title of my
+testimony states my theme, which is that the best protection
+for both Colombian and American workers is stronger market-
+based democratic institutions in Colombia.
+ Colombia is one of America's best friends in the Caribbean-
+Andean region. The government is one of the oldest in South
+America and is solidly committed to its partnership with the
+United States and is following a similar path toward market-
+based democracy and rule of law that has made the United States
+the most prosperous nation on Earth.
+ A decade ago, Colombia was wracked by violence and seized
+with fear, drug pins, narco-funded leftists, terrorists and
+guerrillas, far right paramilitaries and an assortment of other
+gangsters operated with impunity while government, military and
+law enforcement officials cowered in their offices and
+barracks. Today by comparison, Colombia is bustling with people
+excited to see their homeland growing more prosperous and at
+last more peaceful.
+ The majority of Colombians are focused on enhancing their
+peace and prosperity by accelerating Colombia incorporation
+into the globalized economy. And it is interesting to note that
+many pro-globalization Colombians are unionized workers
+enjoying the prosperity from the hundreds of thousands of jobs
+created in Colombian export industries.
+ Progress is explained by several factors. Plan Colombia,
+the U.S. joint effort with the U.S. government started under
+former President Bill Clinton. President Alvaro Uribe has been
+an exceptionally effective president--and a new spirit among
+the Colombian people. In my written testimony, I outline the
+historical context the tragic violence that has plagued
+Colombia for 60 years. Indeed, violence in the entire region
+from Mexico through the Andes is far too high.
+ The combination of FARC, drug traffickers and
+paramilitaries nearly destroyed the Colombian state. The
+restoration of order and civilian authority with the help of
+Plan Colombia has allowed President Uribe's free market
+policies to bear fruit. And economic growth in Colombia has
+taken off.
+ Indeed, our recently published index of economic freedom
+the Heritage Foundation publishes with the Wall Street Journal
+ranks Colombia's economy as 72nd freest in the world out of 179
+countries. By comparison, in neighboring Venezuela, the score
+held at the bottom at 174 just ahead of Cuba. And in Ecuador,
+which is also headed by a populist leftist government, did not
+do much better at a score of 137.
+ In addition to Plan Colombia, to stabilize market-based
+democracy, President Uribe and former President Bush signed the
+U.S. Colombia Free Trade Agreement in February of 2006. The FTA
+is much more than just a trade agreement. It would help
+Colombia and the United States complete a contiguous free trade
+zone alone the entire Pacific rim. It would further stabilize
+many Latin nations from Mexico through Central America and into
+the Andes in their struggles against both extreme poverty in
+certain segments of the populations and the malignant affects
+of narco-terror on their societies.
+ It would also increase U.S. exports to Colombia.
+Regrettably, the Congress has delayed approval of the U.S./
+Colombia FTA. Protectionist U.S. labor unions and anti-
+globalization leftist groups have joined with far left allies
+in the region to try to block the Colombia FTA. Their main
+argument, as we have heard this morning, is that the history of
+violence against leaders of Colombian trade unions and
+allegations that Colombia has tolerated or sanctioned violence
+and impunity for extrajudicial killings should disqualify
+Colombia for an FTA.
+ I would argue that Congress put the violence and the
+benefits to Colombia and the United States into context.
+Stronger democratic institutions in Colombia will reduce
+violence. It is clear that all of Colombian society has
+suffered from violence. But when Uribe took office, there were
+almost 29,000 people murdered every year in Colombia. That rate
+has dropped.
+ But the Washington Post reported last year that only .2
+percent of victims were members of trade unions. Some of them
+were members of the household. And union membership in Colombia
+is just 2 percent of the population.
+ Plan Colombia has really helped, and Uribe has had, as we
+have heard, a demobilization program. Thirty thousand AUC and
+other paramilitaries demobilized, a truth and reconciliation
+process. Violence is down. Extraditions are up, including key
+narco-traffickers due to the--strategy of the United States to
+face prosecution. The murder rate has dropped dramatically by
+40 percent. Kidnappings are down 83 percent, terror attacks
+down 75. Murders of trade unions also dropped 75 percent,
+although, as was noted, they did increase very slightly in
+2008.
+ There has been also a dramatic drop in extrajudicial
+killings. And it is not, I don't think, true to allege that
+impunity is still tolerated, although some AUC and
+paramilitaries have become common criminals.
+ Judicial reform has also helped Colombia with help of the
+USAID going to a U.S. model of accusatory system. The labor
+standards have been improved. General Barry McAffrey has
+reported that the human rights record has improved. And, in
+fact, progress has been made across the board in poverty
+reduction, education and health in Colombia since 1999.
+ The U.S./Colombia FTA will lock in these gains for both
+countries. It will spur additional economic development in
+Colombia and push the Colombian government to build up and
+strengthen institutions and judicial/economic regulation. And a
+full spectrum of voices across the aisle, Republican and
+Democrat, have supported its approval. And if it is not
+approved, we think that it will have serious negative
+consequences. So I would urge the Congress to approve it. Thank
+you very much.
+ [The statement of Mr. Roberts follows:]
+
+ Prepared Statement of James M. Roberts, Research Fellow for Economic
+ Freedom and Growth, Center for International Trade and Economics, the
+ Heritage Foundation
+
+ My name is Jim Roberts. I am the Research Fellow for Economic
+Freedom and Growth in the Center for International Trade and Economics
+at The Heritage Foundation. Prior to joining Heritage in 2007, I served
+for 25 years as a Foreign Service Officer with the State Department and
+worked on a variety of economic and political issues in a number of
+Latin American countries. The views I express in this testimony are my
+own, and should not be construed as representing any official position
+of The Heritage Foundation.
+ Colombia is one of America's best friends in the Caribbean--Andean
+region. The Colombian government--the oldest democracy in South
+America--is solidly committed to its partnership with the United States
+and is following a similar path toward market-based democracy and
+strong rule of law that has made the United States the most prosperous
+nation in world history.
+ A decade ago Colombia was a nation wracked by violence and seized
+with fear, where drug kingpins, narco-funded leftist terrorists and
+guerillas, far-right paramilitaries, and an assortment of other
+gangsters operated with impunity, while government, military, and law
+enforcement officials cowered in their offices and barracks.
+ Today, by comparison, Colombia is again bustling with people who
+are excited to see their homeland growing more prosperous and, at last,
+more peaceful. The vast majority of Colombians are focused on enhancing
+their peace and prosperity by accelerating Colombia's incorporation
+into the globalized economy. Interestingly, many of these pro-
+globalization Colombians are unionized workers enjoying the prosperity
+created in recent years by the hundreds of thousands of jobs in
+Colombian export industries (e.g., cut flowers, mining, petroleum
+products, coffee, textiles, sugar, and bananas).
+ In the intervening years, many things changed, but they can be
+summarized in a few words: Plan Colombia, President Alvaro Uribe, and a
+new spirit among the Colombian people. Plan Colombia is a bold, multi-
+year program begun in 1999 by former President Bill Clinton and
+President Andres Pastrana, Uribe's predecessor. Through this plan,
+which was continued and strengthened under former President George W.
+Bush, the two countries began rebuilding the Colombian state. Plan
+Colombia has helped the Colombian government regain control of
+territory and extend security to the towns and the countryside.
+Progress has been especially dramatic since 2002 when President Uribe
+took office and Congress significantly increased U.S. funding for Plan
+Colombia.
+A History of Violence
+ Colombia's tragic history of violence in the modern era goes back
+to at least 1948, when revolutionaries began rioting to protest the
+assassination of Jorge Eliecer Gaitan, a lawyer and somewhat populist
+leftist politician who was running for president against the
+conservative oligarchy then in power.\1\
+ Thousands perished in the Bogotazo, as the riots came to be known,
+including Colombian soldiers, revolutionaries, and innocent bystanders.
+Colombia's major political parties were unable to put a stop to the
+extreme levels of violence (La Violencia) triggered by the Bogotazo
+until a decade later in 1958, after more than 200,000 Colombians had
+been killed. The 1970s and 1980s saw the rise of violent leftist
+guerilla warfare groups such as the Marxist-oriented Revolutionary
+Armed Forces of Colombia (FARC), the Colombian Liberation Army (ELN)
+and M-19 movement. During this insurgency by the FARC and ELN, drug
+cartels in Cali and Medellin dramatically increased cocaine production
+and smuggling. Drug traffickers enlisted guerrillas to make direct
+assaults on the government as occurred in October 1985. By the late
+1980s, Pablo Escobar, the notorious leader of the Medellin Cartel, had
+become the seventh richest man and the most feared terrorist in the
+world. His power was such that he threatened ``to usurp the Colombian
+state.'' \2\
+ Colombians' penchant for resolving disputes through violence has
+many root causes, including the longstanding existence of criminal and
+violent narco-terror/trafficking gangs; the Colombian government's lack
+of effective control in the past over much of its vast territory (the
+combined size of California and Texas); the fiercely independent and
+stubborn nature of the average hard scrapple Colombian, who must carve
+out a living from often rough and inhospitable terrain; and the long
+history of class warfare that has been stoked, organized, and funded by
+Marxist revolutionary groups over the past 60 years. Other countries in
+the region have also been disproportionately affected by violence, for
+many of the same reasons.
+Colombia's Ongoing Struggle for Modernity and Prosperity
+ The FARC is a long-time enemy of Colombian democracy. Long isolated
+in the Colombian jungles, FARC leaders are out of touch with the 21st
+century. They reject market-based democracy, individual freedoms, urban
+life, and modernity in general. Their visions of Colombia's future
+would follow in the footsteps of the apostles of revolutionary violence
+from Mao Zedong to Che Guevara. Colombia government officials say that
+negotiations with the FARC are very difficult, since there is little
+the government can offer to them.
+ FARC continued to pursue the overthrow of the government of
+Colombia during the 1990s, but more worldly FARC members also turned to
+the lucrative and fast-growing businesses of drug trafficking,
+kidnapping, and extortion. The resulting violence led some far-right
+landowners in Colombia to form paramilitaries to protect their property
+in the absence of effective governmental authority. The government's
+negotiations with the FARC ended in 2002 after the FARC turned a safe
+haven twice the size of El Salvador into a laboratory for violence,
+misrule, drug trafficking, and kidnapping.\3\
+ The best known of the paramilitary groups was the United Self-
+Defense Forces of Colombia (AUC),\4\ which waged war against the left
+and the government in the general chaos generated by the armed left and
+the drug trade. AUC members engaged in a vicious guerrilla campaign
+against the FARC and the ELN, drug traffickers, and the Colombian army.
+Some AUC members were also corrupted by the temptation of easy money
+from narco-trafficking, and a significant number of large landowners in
+Colombia who sponsored paramilitaries were the drug lords themselves.
+The combination of FARC, drug traffickers, and paramilitaries nearly
+destroyed the Colombian state.
+Defending Market-based Democracy in Colombia
+ The restoration of order and civilian authority has allowed
+President Uribe's free market policies to bear fruit, and economic
+growth in Colombia has taken off. The gross domestic product (GDP) has
+been growing at an increasing rate since Uribe took office, reaching an
+estimated 7 percent in 2007 \5\ before falling back slightly last year
+in the wake of the worldwide economic slowdown. Colombia's economic
+growth has been spurred by the duty-free access it has enjoyed under
+the Andean Trade Preference and Drug Eradication Act (ATPDEA), [which]
+gives Colombia access to the U.S. market as a way to reduce poverty and
+fight the drug trade.'' \6\
+ The 2009 Index of Economic Freedom, which was recently published by
+The Heritage Foundation and The Wall Street Journal and scored 179
+countries worldwide, ranked Colombia's economy at 62.3 out of a
+possible 100 (with 0 equaling ``repressed'' and 100 indicating
+``free''), making it the world's 72nd freest economy. Colombia is
+ranked 15th out of 29 countries in the Latin America/Caribbean
+region.\7\ By comparison, neighboring Venezuela's score fell all the
+way to the bottom of the 2009 Index, to 174th place (just ahead of
+Cuba),\8\ while Ecuador was not much higher ranked at 137th out of 179
+countries.\9\
+ For the first time in memory people are enjoying the freedom of
+safely walking Colombia's once mean streets. Uribe's popularity has
+soared along with the economy, while the favorable rating of the FARC
+has plummeted to almost zero.\10\
+The U.S.-Colombia Free Trade Agreement
+ To stabilize market-based democracy, President Uribe and former
+President George W. Bush negotiated the U.S.-Colombia Free Trade
+Agreement (FTA), which the two governments signed in February 2006. It
+is much more than just a simple trade agreement. The Colombia FTA would
+help the United States complete a contiguous free trade zone along the
+Pacific Rim from Canada to Chile and further stabilize many Latin
+nations from Mexico through Central America and into the Andean region
+in their struggles against both the extreme poverty in segments of
+their populations and the malignant effects of narco-terror on their
+societies. Importantly, the FTA would also increase U.S. exports to
+Colombia and would seal a deeper partnership between two nations that
+are long-time friends and great defenders of market-based democracy.
+The FTA would fortify a bulwark against the rising tide of Chavism that
+nearly surrounds Columbia and threatens to undermine U.S. hemispheric
+interests.
+ Regrettably, Congress has delayed approval of the U.S.-Colombia
+FTA. Protectionist U.S. labor unions and anti-globalization leftist
+groups have joined with far-left allies in the region to try to block
+Congressional approval of the FTA.
+ On the surface at least, their main argument against the FTA is
+that a history of violence against leaders of Colombian trade unions
+and allegations that the Colombian government has tolerated or even
+sanctioned that violence should disqualify Colombia from further
+consideration for a FTA with the United States. However, these
+opponents conspicuously ignore the historical context of the violence
+(both within Colombia as well as in the region) as well as the
+considerable progress the Uribe government has made in reducing it.
+Stronger Democratic Institutions in Colombia Will Reduce Violence
+ FTA opponents place heavy emphasis on the tragic history of
+violence against Colombian labor leaders and the alleged impunity for
+their government assailants. All of Colombian society, including union
+members, has clearly suffered from the horrifically high murder rate of
+the past few decades. However, more than half of all union members are
+in the Colombian public sector, with teachers comprising the largest
+union in the public sector. Given the nature of their work and the lack
+of any direct connection to paramilitaries sponsored by large
+landowners, most killings of teachers were likely the result of
+apolitical, ``normal'' motives (e.g., robbery and crimes of passion).
+ Over the years certain labor union members and leaders were
+undeniably targeted for assassination by paramilitaries and others in
+Colombia. Yet while the AFL-CIO reports the overall toll of violence
+against teachers and other union members, it fails note that the vast
+majority of the ``2,500 murders of trade unionists since 1986'' \11\
+occurred prior to 2001. According to statistics from the Embassy of
+Colombia, the number of murders of union members in Colombia has
+dropped drastically since 2001, one year before Colombian President
+Alvaro Uribe was sworn into office. In 2001 and 2007, union killings
+totaled roughly 200 killings annually. The number fell by half in 2003
+and has declined since then.\12\
+ By the time President Uribe took office in 2002, almost 29,000
+Colombians were being murdered annually. Many politicians from Uribe's
+own political party were among the dead. While a few teachers were
+certainly killed because of their leftist ideology, a large number of
+the killings should not be included in the AFL-CIO's ``union killings''
+figures. Many of the murders involved persons in union members'
+households, not the union members themselves. A high percentage of them
+occurred for reasons unrelated to union affiliation. As The Washington
+Post recently noted: ``There were 17,198 murders in 2007. Of the dead,
+only 39 (0.226 percent) were even members of trade unions, let alone
+leaders or activists, according to the Colombian labor movement. (Union
+members make up just under 2 percent of the Colombian population.)''
+\13\
+Strengthened Colombian Government Institutions Have Reduced Violence
+ Plan Colombia and a strong, market based economy have helped
+President Uribe's government to achieve many successes to reduce
+violence in Colombia.
+ Demobilization: The Office of the U.S. Trade Representative reports
+that more than 30,000 AUC and other paramilitaries have been
+demobilized since 2005, when the Colombian government implemented the
+Justice and Peace Law, which set the rules for the demobilization
+process.\14\
+ Truth and Reconciliation: Under the Justice and Peace Law of 2005,
+over 1600 bodies of some of the victims of the FARC and the AUC have
+been recovered and their families have been partially compensated with
+assets seized for a reparation fund. There are more people now in jail
+in Colombia for human rights violations that at any other similar
+(post-conflict) period in the history of any Latin American
+country.\15\
+ Violence Down: As the Center for Strategic and International
+Studies recently noted, the FARC and other drug-traffickers are on the
+run, and violence is down significantly. The government has ``a
+legitimate state presence in all of Colombia's 1,099 municipalities''
+and ``[t]he guerrillas have been driven out of many areas that they
+previously dominated and their military capability sapped by the
+resurgence of state security force.''\16\
+ Extraditions up: Another indicator of the success of Plan Colombia,
+and a development also very helpful to U.S. law enforcement efforts in
+the war against drugs, is the dramatic increase in the number of
+significant narcotics traffickers extradited to face prosecution in the
+United States since President Uribe took office.
+ Dropping Murder Rate: When President Uribe assumed power, violence
+was ripping the very fabric of the Colombian nation. However, the
+overall murder rate has dropped by 40 percent, kidnappings are down 83
+percent, and terror attacks are down 76 percent.\17\ Plan Colombia has
+helped to cut cocaine production and smuggling significantly.\18\ The
+streets of Medellin, once ruled by Pablo Escobar, are now safe enough
+for visits by senior Bush Administration and congressional
+officials.\19\ The number of murders of trade unionists has dropped by
+75 percent.\20\ Although the number of trade unionist murders increased
+very slightly in 2008, to 32, the Uribe government has maintained and
+accelerated its efforts to reduce the level to zero.\21\
+ One pro-FTA Colombian union leader's courageous advocacy of the
+U.S.-Colombia trade agreement apparently cost him his life. Jairo
+Giraldo Rey was murdered in his hometown of Cali in November 2007, just
+before he was to travel to Washington with other pro-FTA Colombian
+union leaders to lobby Congress to pass the agreement. As reporter
+Monica Showalter noted, ``Giraldo's murder not only silenced an
+unexpected voice for free trade, it also jacked up union killings data
+to stoke the case in the U.S. against Colombia's pact.'' \22\
+ Dramatic Drop in Extrajudicial Killings: A constant refrain heard
+from U.S. and Colombian leftist NGOs and unions is that the
+paramilitaries can still act with impunity and are protected by the
+Colombian government. This allegation is false.
+ While extrajudicial killings are still occurring, they have been
+greatly reduced. President Uribe made it clear from the day he took
+office that his government would not tolerate paramilitary activity and
+would prosecute criminals in the AUC and other far-right groups. In
+fact, nearly all of the paramilitaries have been demobilized and
+disbanded under the Uribe administration.
+ Furthermore, ``[t]he Colombian government has tripled spending on
+protection for unionists, human rights activists, and other at-risk
+individuals and established a special unit to prosecute crimes against
+trade unionists.'' \23\ In 2008, the Colombian government spent US$42
+million on this security program to protect at-risk individuals.\24\ Of
+the 9,400 individuals benefiting from individual protection schemes--
+which range from bodyguards and armored vehicles to cell phone
+networks--1,959 are unionists, which is an increase from 2006, when
+unionists accounted for 1,504 of the 6,097 individuals being
+protected.\25\
+ The Prosecutor General's office has led the charge in dealing with
+past killings, resolving 73 cases of union member murder and convicting
+156 individuals since 2001. In November 2006, a special labor Sub-unit
+was created in the Office of the Prosecutor General to focus on labor
+union killings and has since resolved 40 cases and convicted 67
+people.\26\ The unit has three specialized judges, 19 prosecutors, 22
+additional lawyers, and almost 100 judicial police investigators.\27\
+ Adoption of U.S. Legal System Model: With technical assistance from
+the U.S. government, beginning in 2004 Colombia switched from the
+Napoleonic inquisitorial legal system to the accusatory, open-court
+criminal trial procedures based upon U.S. and English common law. These
+reforms will strengthen Colombia's judicial system and make it more
+efficient with a speedier trial process. The transition to the new
+system will take time, however, and the first new law school students
+rained in the new procedures only graduated recently.\28\
+ Improved Labor Standards: The AFL-CIO alleges that the Colombian
+government is ``not in compliance with International Labor Organization
+(ILO) core labor standards.'' \29\ Yet a November 2007 ILO report
+concluded, based on a visit to Colombia, that the labor situation in
+Colombia is positive and that the government has made significant
+progress. The ILO report praised the ``the cooperation of the
+Government of Colombia with the ILO officials in their work to conclude
+the Tripartite Agreement on Freedom of Association and Democracy.''
+\30\
+ Opponents are also willfully blind to the many successes stemming
+from a wide variety of substantial USAID programs that are jointly
+funded with the Colombian government. These programs target development
+assistance to address the problems that festered during the ``lost
+years'' of rampant violence. These programs train all employers--small,
+medium, and large--in proactively ensuring compliance with all
+Colombian labor laws on occupational safety, child labor, working
+hours, and other issues of concern to Colombian workers.
+ These programs are also intended to bring more workers into formal
+economy, where they can receive benefits and contribute to the tax
+base. USAID and the Colombian government are working cooperatively with
+business owners, but are also establishing protocols to enforce laws
+with a system of fines and incentives. The Colombian Labor Ministry is
+also funding programs to increase availability of vocational training
+programs.\31\
+ Improved Human Rights Record. Human rights activists opposed to the
+FTA have faulted the Colombian government's treatment of Internally
+Displaced Persons (IDPs).\32\ However, some of those persons labeled as
+IDPs by the left are actually economic migrants who have gravitated to
+large cities in search of work and a better life, as is common in many
+developing countries. Furthermore, numerous neutral observers have
+noted tremendous progress on human rights in recent years. Retired
+General Barry McCaffrey, former commander of the U.S. Southern Command
+and Director of the White House Office of National Drug Control Policy,
+visited Colombia in October 2007 and reported that ``[t]he human rights
+situation has improved immeasurably during the President Uribe
+tenure.'' \33\
+ According to a report from the Colombian government:
+ Impressive progress has been made in poverty reduction, education
+and health since 1999. Increased stability has allowed the government
+to provide more and better services to the country's poor.
+ Social spending represents 40 percent of the national
+budget
+ Poverty levels have decreased since 1999 from 55 percent
+to 45 percent
+ Programs have been developed to improve infant nutrition
+and health, encourage school enrollment, empower women, and provide
+food for millions of children
+ More than 20 million of the country's poor receive full or
+partial health coverage
+ Infant and child mortality have decreased
+ Child immunizations have steadily increased
+ Student completion of elementary school has increased to
+almost 100 percent, while the number of completing secondary school has
+also significantly risen.\34\
+The U.S.-Colombia FTA Will Lock-in Gains for Both Countries
+ My colleague at Heritage, Dr. Ray Walser, has noted that former
+Bolivian president Jorge Quiroga recently observed the irony that two
+key ``commodity exports'' (oil and cocaine) are entering the U.S. duty
+free from several countries in Latin America, while the U.S. Congress
+debates the duty-free entry of legal products from pro-American
+Colombia (which already has duty-free access to the U.S. market for
+most of its products through ATPDEA).\35\
+ The FTA will spur additional economic development in Colombia and,
+just as importantly, push the Colombian government to build up and
+strengthen government institutions and judicial and economic regulation
+to ensure that continued economic progress will not depend on any
+particular political personalities.
+ As Dr. Walser has already reported to Congress, a full spectrum of
+the wisest voices--U.S. and Latin American presidents, former senior
+officials, both Democratic and Republican--and the Council on Foreign
+Relations, the Brookings Institute, the American Enterprise Institute,
+The Heritage Foundation, to name a few, as well as mainstream-media
+editorials are unanimous in urging swift passage of pending agreements
+with Colombia and Panama.\36\ Colombia will certainly be willing to
+work with the Obama Administration and Congress to accommodate
+additional reasonable measures aimed at protecting labor and
+environmental standards.
+ If the Congress votes down the Colombia FTA, it will deliver a
+major psychological victory to the FARC, the narco-traffickers that the
+U.S. has battled for decades in Colombia, and other enemies of market-
+based democracy in the region. It will seriously risk the progress and
+momentum made by the Plan Colombia war on drugs on which the U.S. has
+spent hundreds of millions of dollars during the Clinton and Bush
+Administrations.
+ Iinflicting economic punishment on a U.S. ally in the Andean region
+by defeating the FTA is not in the U.S. interests. Left-wing populism
+is fueled by poverty and lack of opportunities, as seen in Venezuela,
+Ecuador, and Bolivia. To counter this possibility in Colombia, the
+development of strong democratic institutions must be accompanied by
+continued economic development and growth.\37\
+ A defeated FTA might also force Colombia reluctantly into closer
+ties with a very eager and suddenly conciliatory Venezuela, which is
+already Colombia's second largest export market after the U.S., and
+Colombia cannot afford to ignore it. Chavez's dangling of petroleum
+carrots will not be ignored by the Colombians. If Colombia is spurned
+by the U.S., it will continue to seek trade agreements with many other
+countries (e.g., Canada and Mexico) and trading blocs, such as the EU,
+the European Free Trade Association (EFTA), and MERCOSUR (Southern
+Common Market). This would only further isolate the U.S.
+ A failed FTA will lead Colombia and other Latin American countries
+to conclude that the U.S. is not a reliable partner. It will also fuel
+a return to narco-trafficking and other illicit activity by the urban
+and rural poor, who would not benefit from the many jobs that would be
+created by the legitimate alternative economic development that will be
+created by the Colombia FTA.
+ Congress should quickly approve the pending trade agreements with
+Colombia and Panama. These actions will send a strong signal that the
+new Congress and the Obama Administration will be adopting a forward-
+looking trade policy agenda that emphasizes the creation of new U.S.
+jobs through expanded export opportunities.
+ endnotes
+ \1\ Brian Latell, After Fidel: Raul Castro and the Future of Cuba's
+Revolution: The Inside Story of Castro's Regime and Cuba's Next Leader
+(New York, N.Y.: Palgrave MacMillan, 2007), pp. 101--106.
+ \2\ Mark Bowden, Killing Pablo: The Hunt for the World's Greatest
+Outlaw (New York: Penguin Books, 2001), p. 15.
+ \3\ Author's notes from visit to Bogota, Columbia, December 2007.
+ \4\ Peter DeShazo, Phillip McLean, and Tanya Primiani, Back from
+the Brink: Evaluating Progress in Colombia, 1997-2007 (Washington,
+D.C.: Center for Strategic and International Studies Press, 2007), p.
+6, at www.csis.org/media/csis/pubs/071112-backfromthebrink-web.pdf.
+ \5\ International Monetary Fund, World Economic Outlook Database,
+April 2008, at www.imf.org/external/pubs/ft/weo/2008/01/weodata/
+index.aspx (April 9, 2008).
+ \6\ Christopher A. Padilla, Under Secretary for International
+Trade, U.S. Department of Commerce ``Outlook on the Americas 2008,''
+remarks at Association of American Chambers of Commerce in Latin
+America, Coral Gables, Florida, January 24, 2008, at www.ita.doc.gov/
+press/speeches/padilla--012408.asp (April 14, 2008).
+ \7\ Terry Miller and Kim R. Holmes, 2009 Index of Economic Freedom
+(Washington, D.C.: The Heritage Foundation and Dow Jones & Company,
+Inc., 2009), pp. 135-136, at www.heritage.org/research/features/index/
+countries.cfm.
+ \8\ Ibid., pp 423-424
+ \9\ Ibid., pp. 163-164
+ \10\Author's notes from visit to Bogota, Colombia, December 2007.
+ \11\ James Parks, ``Act Now to Stop Colombia Free Trade Deal,''
+AFL-CIO Weblog, March 24, 2008, at http://blog.aflcio.org/2008/03/24/
+act-now-to-stop-colombia-free-trade-deal (April 5, 2008).
+ \12\ Embassy of Colombia, ``Progress Report: Strengthening the
+Rights, Benefits and Security of Unions,'' October 2007, and the
+Colombia Ministry of Social Protection, cited in Daniel Griswold and
+Juan Carlos Hidalgo, ``A U.S.-Colombia Free Trade Agreement:
+Strengthening Democracy and Progress in Latin America,'' Cato Institute
+Free Trade Bulletin No. 32, February 7, 2008, Figure 1, at
+www.freetrade.org/node/839 (March 17, 2008).
+ \13\ Editorial, ``Columbia's Case,'' The Washington Post, April 18,
+2008, p. A14, at www.washingtonpost.com/wp-dyn/content/article/2008/04/
+18/AR2008041802900.html (April 21, 2008).
+ \14\ Office of the U.S. Trade Representative, ``Columbia FTA
+Facts,'' March 2008, at www.ustr.gov/assets/Trade--Agreements/
+Bilateral/Colombia--FTA/asset--upload--file144--13716.pdf (April 11,
+2008).
+ \15\ Embassy of Colombia, ``Colombia: Actions to Advance Labor
+Justice and Labor Rights,'' Washington, DC, November 2008 (also
+available at www.colombiaemb.org).
+ \16\ DeShazo et al., Back from the Brink, p. viii.
+ \17\ Office of the U.S. Trade Representative, ``Columbia FTA
+Facts.''
+ \18\ U.S. Department of State, Bureau of International Narcotics
+and Law Enforcement Affairs, ``International Narcotics Control Strategy
+Report, 2008,'' March 2008, at www.state.gov/p/inl/rls/nrcrpt/2008/
+vol1/html/100776.htm (April 21, 2008).
+ \19\ Press release, ``Secretary Gutierrez to Lead Fourth
+Congressional Delegation to Colombia,'' U.S. Department of Commerce,
+February 28, 2007, at www.commerce.gov/NewsRoom/PressReleases--
+FactSheets/PROD01--005275 (April 5, 2008).
+ \20\ Hugh Bronstein, ``Colombia Trade Deal Dead This Year, U.S.
+Unions Say,'' The Washington Post, February 12, 2008.
+ \21\ Embassy of Colombia, ``Colombia: Actions to Advance Labor
+Justice and Labor Rights,'' Washington, DC, November 2008 (also
+available at www.colombiaemb.org). See also Jose de Cordoba,
+``Colombia's Uribe Says Passage of Free-Trade Pact Is Critical,'' The
+Wall Street Journal, April 4, 2008.
+ \22\ Monica Showalter, ``U.S.-Colombia Deal Faces Labor Deceit,''
+Investor's Business Daily, April 7, 2008, at www.investors.com/
+editorial/IBDArticles.asp?artsec=16&issue=20080407 (April 11, 2008).
+ \23\ Doug Palmer, ``Labor Leaders to Visit Colombia As Bush Presses
+for Vote,'' Reuters, February 7, 2008, at www.reuters.com/article/
+domesticNews/idUSN0739641220080207 (February 19, 2008).
+ \24\ Embassy of Colombia, ``Colombia: Actions to Advance Labor
+Justice and Labor Rights,'' Washington, DC, November 2008 (also
+available at www.colombiaemb.org).
+ \25\ Office of the U.S. Trade Representative, ``Columbia FTA
+Facts,'' and author's notes, meeting with U.S. Embassy officials in
+Bogota, Columbia, December 2007.
+ \26\ Ibid.
+ \27\ Embassy of Colombia, ``Colombia: Actions to Advance Labor
+Justice and Labor Rights,'' Washington, DC, November 2008 (also
+available at www.colombiaemb.org).
+ \28\ Ibid.
+ \29\ American Federation of Labor and Congress of Industrial
+Organizations, ``Worker's Rights, Violence, and Impunity in Colombia,''
+January 9, 2008, p. 8, at www.aflcio.org/issues/jobseconomy/
+globaleconomy/upload/colombia--briefing.pdf (April 5, 2008).
+ \30\ U.N. International Labour Office, ``Fourth Supplementary
+Report: Implementation Process of the Tripartite Agreement on Freedom
+of Association and Democracy in Colombia,'' GB.300/20/4, November 1,
+2007, para. 8, at www.ilo.org/wcmsp5/groups/public/--ed--norm/--
+relconf/documents/meetingdocument/wcms--087328.pdf (April 5, 2008).
+ \31\ U.S. Agency for International Development, ``FY 2006 Budget
+Justification to the U.S. Congress,'' s.v. ``Colombia Program:
+Alternative Development,'' June 14, 2005, at www.usaid.gov/policy/
+budget/cbj2006/lac/pdf/co514-008.pdf (December 13, 2007), and author's
+notes, meeting with USAID officials, U.S. Embassy, Bogota, Colombia,
+December 5, 2007.
+ \32\ News release, ``Colombia: Death Threats Drive Thousands from
+Their Homes Every Year,'' International Committee of the Red Cross,
+February 4, 2008, at www.icrc.org/web/eng/siteeng0.nsf/html/colombia-
+news-020408!OpenDocument (April 5, 2008), and Human Rights Watch,
+Displaced and Discarded--The Plight of Internally Displaced Persons in
+Bogota and Cartagena, October 2005, at http://hrw.org/reports/2005/
+colombia1005 (April 5, 2008).
+ \33\ General Barry McCaffrey, quoted in Embassy of Colombia
+(Washington, D.C.), Colombia: Perspectives on Progress, January 2008,
+p. 5, at www.colombiaemb.org/docs/2008perspectivesonprogressreport.pdf
+(April 5, 2008).
+ \34\ Ibid, p. 11 (original bullet points).
+ \35\ Ray Walser, Ph. D., ``U.S Policy toward Latin America in 2009
+and Beyond,'' Testimony before The Subcommittee on the Western
+Hemisphere, Committee on Foreign Affairs, United States House of
+Representatives, February 4, 2009
+ \36\ (From Walser Testimony) Some examples recommending approval
+include: Jose Miguel Insulza, Secretary General, Organization of
+American States (OAS), ``Recognize and Build on Our Progress,''
+Americas Quarterly, Fall 2008, pp 103--105, at http://as.americas-
+society.org/article.php?id=1332 (January 28, 2009); Council on Foreign
+Relations, ``U.S.--Latin America Relations: A New Direction For A New
+Reality,'' Independent Task Force Report No. 60. pp. 17--19;
+``Rethinking U.S.--Latin Relations: A Hemispheric Partnership for A
+Turbulent World,'' Report of the Partnership for the Americas
+Commission, November 2008, p. 22; and ``Democrats Support Colombia
+FTA,'' Latin Business Chronicle, April 21, 2008, at http://
+www.latinbusinesschronicle.com/app/article.aspx?id=2314 (January 28,
+2009).
+ \37\ Griswold and Hidalgo, ``A U.S.-Colombia Free Trade
+Agreement,'' Cato Institute, Center for Trade Policy Studies, February
+7, 2008, at http://www.freetrade.org/pubs/FTBs/FTB-032.pdf (February
+11, 2009)
+ ______
+
+ Chairman Miller. Thank you
+ And thank you to all of the witnesses for your testimony.
+ Mr. Sanin, I would like to ask you a question. And then I
+would like to have Judge Sanchez comment on the question.
+ The question is to Mr. Sanin, in your written testimony,
+you state that almost 75 percent of the violence against union
+members and leaders is concentrated against just 30 labor
+unions that are in six of Colombia's departments, suggesting
+that those unions have experienced most of the violence. And
+you raised the question that, given this fact, and what appear
+to be the targets of much of the violence, that the attorney
+general's office might rethink how they are prosecuting the
+cases, especially if you were trying to get to the intellectual
+authors of that violence.
+ And then I would like to have Judge Sanchez comment on this
+question and the answer also since he has raised the same
+question about how do you move the prosecution to the
+intellectual authors.
+ Mr. Sanin [through translator]. Yes, thank you very much.
+What we would like to bring up here is that the method that the
+attorney general's office uses is a case by case methodology.
+It is something that allows them to see the trees but they
+can't see the forest of anti-union violence.
+ What we are saying is that we need to be clear in the
+investigations, that the concentration of these cases against
+30 unions and in six departments has a very unique character.
+And we need to talk about having a systematic way of
+investigating this as a global problem.
+ In this way, we would get not only the actual perpetrators
+of these crimes, but also the intellectual authors. And more
+importantly, we need to get behind to what their motivation is,
+what the reasons are and who benefits from these crimes. That
+is it. I will let the judge comment now.
+ Chairman Miller. Thank you.
+ Mr. Sanchez [through translator]. Thank you for letting me
+use the floor. I suppose we could present a potential solution
+here, which is that of institutional and political commitment
+from the government of Colombia. However, there is one more
+aspect. And that is a personal, deeply rooted commitment, both
+from the prosecutors and the judges. First from the
+prosecutors, they must be willing to investigate so that the
+judge is then able to rule.
+ However, the problem is that for both judges and
+prosecutors, sometimes they see these incidents as one more
+case file, a simple, routine number to be filed and dealt with.
+But there is no desire to go in-depth to get to the
+intellectual authors behind these crimes. It is the
+intellectual authors that generate the violence.
+ So there is nothing that can be done if we don't get a
+personal commitment from prosecutors and judges and from the
+Colombian government. We need to get political will from them.
+It is that simple.
+ Chairman Miller. Thank you.
+ Ms. Hoyos, you have also made an effort to try and identify
+the intellectual authors of the murder of your father. Can you
+tell us what that entails?
+ Ms. Hoyos [through translator]. It has been a real struggle
+for me to try to identify the intellectual authors of my
+father's murder. The fact is that nobody shows the will to
+identify those people. In fact, the fact is there is a state
+policy to do away with and eliminate all of these union people.
+ This hasn't been easy for me. It has been hurtful, painful
+because it is the state, the government that should be
+investigating these things. But I have had to face this pain of
+interrogating the material actors of these crimes. I have had a
+face-to-face interview with the man who killed my father in my
+attempt to try to find out who the intellectual authors are
+behind this crime.
+ And although I have made some progress, I keep running up
+against the brick wall of impunity in Colombia. There really is
+no will to investigate these cases.
+ Chairman Miller. Thank you. My time has expired.
+ I will turn to Mr. Souder.
+ Mr. Souder. Thank you, Mr. Chairman. I listened to all the
+statements in the anteroom and read through all the documents.
+ I have a question, Mr. Miller. I am sorry I missed the
+start. Did you insert into the record the correspondence with
+the Colombian embassy?
+ Chairman Miller. Yes, yes.
+ Mr. Souder. Okay, good, thank you. There are obviously
+different perspectives here. And one of my frustrations--I have
+worked the narcotics area since I was first elected to Congress
+and have been to Colombia at least 12 times or more. That the
+American people already are struggling with a mislabeling of
+Colombia. It is for one a beautiful country. And it would be
+nice if when people come in with criticism that they would
+remind the American people what a beautiful country it is
+rather than just criticizing their country because all America
+hears is criticizing Colombia.
+ That Congressman Frank and I have sponsored legislation and
+worked to try to open up the cruise ships. In the Cartagena, as
+we saw the violence go down, there has been an incredible drop
+in violence in the nation of Colombia.
+ A lot of people think of Colombia solely as cocaine or
+maybe coffee or maybe emeralds. But it is a very diversified
+economy. Most of the flowers in America--you can go to the huge
+areas on Medellin as well as Bogota and throughout the country,
+and they will be all the way to Indiana in 48 hours coming in
+overnight into Miami and spreading around. I think, 67 percent
+of cut flowers in America come from Colombia.
+ The cement industry, the coal industry, the huge coal mines
+that are open again--you were once our eighth largest supplier
+of oil until FARC cut the lines and cut the rails, which are
+now mostly getting reopened. But it is a country that, unlike
+most of Latin America where you have 2 or 3 percent of the
+people having all the wealth, is arguably the biggest middle
+class.
+ Yes, there are still rich families. Those rich families
+still dominate. But compared to the rest of Latin America, is
+an extraordinary story of a middle-class development, of a
+spread society that has still great poverty, as there is all
+over Latin America. But it is an extraordinary success story
+and becoming more of a success story.
+ Killing Pablo is not all of Colombia. Nor is this terrible
+violence. Anyone who has a family member killed, any person who
+is killed is a tremendous tragedy. And it is really sad that
+prosecutions aren't going fully forth in every country in the
+world where that happens, including in Colombia.
+ But we need to get this in perspective because there was
+really minimal perspective here, that violence--Colombia is
+also the oldest democracy in Latin America, by the way, and
+successful democracy--that narcotics, mostly because of
+problems in the United States as well as in Europe, have driven
+an incredible problem of violence throughout the country. There
+was always violence. It has gone up and down.
+ But the incredible problem of violence--to put it in
+perspective, whether you believe it is 42 or slightly higher to
+80 homicides in the trade union movement, we are talking about
+basically last year, which was an improved year, homicides
+totaling 17,000. And we are debating whether it is 40 or 80 in
+a country where there is 17,000, which, by the way, is a drop
+from 27,000 that when I first went to Colombia in my first term
+about 12 years, 11 years ago, I guess it was, when we actually
+went in.
+ After a period of time where you couldn't even move
+anywhere, we could just go in for 3 hours. Then we could stay
+overnight. The last few times I have been into Medellin, you
+could wander around if you needed to. If you wanted to walk,
+you could walk. Up where the coal mine was, where the railroads
+had been cut and they are no longer cut, at one point,
+somewhere near 80 percent of the mayors and councils in the
+country were unoccupied because the leaders had been
+assassinated. There has been an incredible turnaround in
+Colombia.
+ We need to make sure that the judicial system progresses.
+We have poured money into making the judicial system try to
+progress. But, you know, there is only so much the United
+States can do to tell countries when we say follow the rule of
+law, you have to do it our way or the highway. And that we have
+seen improvements. We need to make more improvements.
+ But this selective, what I believe is reliving the 1980s,
+the FARC may have started like the Sandinistas or Guatemala or
+Salvador. But it has turned into drug thugs. Then the business
+groups, admittedly probably anti-union as well, formed
+paramilitaries that communicated violence throughout the
+country. Then those paramilitaries went off on their own and
+became drug thugs. And that some of those people then were
+interrelated. And as they try to clean up, their parties are
+going to be interrelated, some of them. Medellin is a classic
+example of the struggle there with that.
+ But to not stress the progress and only highlight a small
+sector of the country is a terrible disservice to the nation of
+Colombia, to this government that is working hard to do it, to
+a president of their country who had his father assassinated, a
+vice president who was kidnapped, who has taken on his own area
+where the paramilitaries in Medellin and tried to work with
+them. It is not as easy as it is made sound.
+ And I would like to hear in general some praise of Colombia
+for their progress, not just harp, harp, harp, criticize. Human
+Rights Watch when I met with them the first time--I was sent
+there because I was favorable to trying to deal with Human
+Rights Watch. Robin Kirk has written a good book that shows
+some of the trouble.
+ But Human Rights Watch has had selective vision on what
+they say in Colombia and has become, in my opinion, a
+discredited flack and that your numbers when you tried to
+relate in your testimony that the Bogota versus the general
+population assassination rate, without saying that most union
+members were not in Bogota and that Bogota has, in fact,
+changed, that the mere presentation that you made to this
+Congress and some of the others are so academically flawed as
+to be seen as partisan, not really trying to help the United
+States deal with a very difficult problem.
+ And that is how do we, in fact, if we do a free trade
+agreement, work with your government to protect union rights. I
+agree with the premise. It is terrible what happened to this
+lady's father and anybody else who gets killed, whether they
+are union members or others in Colombia.
+ I yield back.
+ Chairman Miller. Thank the gentleman.
+ Mr. Hare?
+ Mr. Hare. Well, I don't know where to start. To my friend
+who, you know, was talking about the flowers. I had an
+opportunity with several other members of Congress to meet some
+women who came from Colombia and worked in the flower industry.
+And I saw what their hands looked like. I saw and heard the
+hours that they had to work, the treatment that they were
+subjected to--would not be tolerated in this country.
+ I can't for the life of me believe that--with Valentine's
+Day coming up I can tell you I am not sending my wife flowers.
+And I am doing so because for those people who are having to go
+through that type of a situation every day. I will do the candy
+route, and they can bag the flowers.
+ I will tell you, Mr. Roberts, I could not disagree with you
+more. You have brought a wonderful paint brush for our country
+and telling us just how great things are. Yet I am looking at
+numbers that 2,694 murders, 96 percent of them unsolved, people
+who lose their father and aren't prosecuted. And if they are,
+the prosecutions are a sham.
+ You talk about a trade agreement. You mentioned trade
+unionists, which I happen to be one. And I take great pride in
+that. So I thank you for that compliment.
+ But I have to tell you if we are supposed to pass a trade
+agreement at some point with the country, I would think that it
+would be inherent upon this Congress and upon all Americans to
+want to trade with a country who has basic fundamental rights
+and respects them. And with all due respect to the numbers that
+you have given to us today, you know, I don't think that is
+going to happen. And I don't think it ought to happen until the
+act is cleaned up.
+ It may have been reduced. But I can tell you that wouldn't
+be tolerated in this country. And we are supposed to look at a
+trade deal when this young woman's father and this judge was
+fired simply because he had the unmitigated gall to prosecute
+people. So, you know, with all due respect to your facts and
+your figures, I find it appalling that this is still going on
+and the numbers are going up.
+ And while some people say, well, maybe it has gone from
+only 39 to 49, these are human beings. They are fathers. They
+are mothers. They are sons. They are daughters.
+ You have young people getting together trying to--have to
+find out because the government won't do it and they are
+covering it up. And everybody in this room knows it. And, you
+know, I just--with all due respect, you know--you also
+mentioned the term protectionist. And then I will ask Dr.
+Sanchez a question.
+ If protectionist means to me protecting the lives of people
+who want to have and work in an industry, whatever that
+industry is, protecting their lives so that they don't have to
+go home and have their sons and daughters see them shot before
+their very eyes and then be harassed at the funeral of their
+father--if that is protectionism, then, again, I will wear that
+as a badge of honor.
+ Let me just say, Judge Sanchez, you presided over a case
+that Representative Grijalva and I circulated a dear colleague
+letter on Juan Carlos Ramirez Ray. And you also ordered the
+Colombian attorney general's office to conduct an investigation
+into the role of the prison director and the prison supervisor
+in his killing. Do you know if the attorney general ever
+pursued anyone beyond the hired guns in this case?
+ In other words, we have heard a lot about the intellectual
+authors. And let me ask you two other quick questions because I
+know my time is going to run out. Do you see the government
+undertaking any real effort to fully investigate cases? Or is
+it content in most cases to just convict the gunman but not
+follow the evidence to the intellectual authors?
+ Mr. Sanchez [through translator]. Thank you. Regarding the
+case of Juan Carlos Ramirez, he was, in fact, murdered in front
+of his mother. No one gave him any help. And he was killed by
+members of the AUC, the self-defense forces in Colombia.
+ Unfortunately, the prosecutors did not investigate the
+intellectual authors of the crime, and they investigated only
+some of the material authors of the crime. In fact, they
+dropped an investigation versus a sergeant who was indirectly
+involved in order to avoid a total impunity. However, we later
+found out that this sergeant was having a love affair with the
+director of the prison. So I ordered an investigation of that
+prison official as a possible participant as an intellectual
+author.
+ To date we have no information at all on the outcome of
+that investigation of that case. And that is what we need. We
+need reporting in order to tell the community what happens with
+these investigations and what are the outcomes.
+ Going back to the case of Juan Carlos Ramirez, he was a
+young man who was murdered along with others because of his
+unionist beliefs. He was a young man of about 25 years of age
+or so. And he lived with his mother. And basically he was a
+person who fought for the rights of others.
+ This particular murder took place when he was made fun of
+in front of a formation. He was threatened by prison officials.
+He was told that he would be murdered by the AUC. And, in fact,
+the AUC did back up that threat. It was a member of the AUC who
+ended up killing him.
+ For me this is a shameful situation as a Colombian. It
+pains me to see this taking place in my country. And that is
+why I am here. I am here to try to put an end to these murders.
+It is precisely because my country is beautiful that I am here,
+that I want to put an end to this so that it can be a more
+beautiful country, so that all of you can go visit there
+without any major risk. Thank you.
+ Chairman Miller. Thank you.
+ Mr. McKeon?
+ Mr. McKeon. Thank you, Mr. Chairman [speaking Spanish].
+ Mr. Roberts, I had a delegation from Colombia in my office
+several months ago, union leaders and business leaders. And
+they were really wanting us to do the Colombia Free Trade
+Agreement, wondering why we couldn't move forward on this
+because they really wanted it for the betterment of their
+businesses, their unions, their family situation and their
+country.
+ As you know, our economy has been experiencing severe
+hardships. Can you explain how a continued delay of passage of
+the Colombia Free Trade Agreement impairs our economy and holds
+back American workers?
+ Mr. Roberts. Thank you, sir. Yes, I agree that there are--
+our research has indicated many unionized workers in Colombia,
+as I stated, as I testified, as in favor of the Colombia Free
+Trade Agreement. And I also met with the leaders of some of
+those unions. And they understand that Colombia's future is in
+a globalized economy and that they will benefit and their
+children will benefit where they will have more prosperity if
+they go that route rather than try to go backwards into a
+system of autarchy and socialism.
+ I would compare Colombia's situation with Mexico's in that
+whereas Mexico has benefited from having the NAFTA in place now
+for more than 10 years and has had a substantial increase in
+the middle class jobs, Mexico is currently suffering from a
+terrible problem with narco-terrorists, especially in the
+Northern part of the country. Whereas in Colombia, they need
+that FTA to catch up to where Mexico is in terms of institution
+building. But they also need--whereas Plan Colombia has been
+more successful counterinsurgency at this point than the Merida
+Initiative, which we also support expanding and funding.
+ In terms of U.S. jobs, clearly, the last count I saw was
+that U.S. manufacturers and people--United States companies
+selling to Colombia had to pay $1 billion in tariffs every
+year. That makes us less competitive.
+ That means jobs at Caterpillar and other places are not
+there because we are not able to sell into a country like
+Colombia where they do have a vibrant economy, where they do
+need tremendous investment in infrastructure that can only be
+done if the country has jobs and is producing tax revenues. And
+that will come with the continuation of the globalization
+process, I think, in Colombia. Thank you, sir.
+ Mr. McKeon. What provisions specifically are contained
+within the Colombia Free Trade Agreement to specifically
+address violence towards Colombian labor? Because the agreement
+has not been passed, is it fair to say that Colombian workers
+are worse off than they otherwise might be due to congressional
+inaction?
+ Mr. Roberts. I don't have the agreement in front of me. I
+do know that after the Speaker Pelosi and the Democrats took
+over in 2006, there were provisions added about labor
+environment, which we would support as long as they don't
+disrupt too much private investment.
+ However, the fact that--I think it is the process that
+strengthens the government and the institutions. It is the
+constant meeting with hundreds and thousands of private sector
+people and government people that go along with having a free
+trade agreement, negotiating one and then having one in place.
+That is what strengthens a government. And that is what will,
+as has already been the case. As we have seen, there has been
+progress made since 2002, since Colombia launched on the path
+toward modernizing and doing free trade agreements.
+ And I would note that it is not just free trade agreements
+with the United States. But Colombia has negotiated free trade
+agreements with a lot of our competitors up and down the
+Western hemisphere and in Europe. And so, the United States,
+really, I think, needs to get onboard here. And we need a
+Pacific rim trade area so that we can be more competitive with
+our colleagues in Asia and Europe.
+ Mr. McKeon. Less than 2 years ago the Democratically
+controlled Congress ratified the Peru Trade Promotion Agreement
+with overwhelmingly bipartisan support. How similar are the
+labor provisions that are contained in the Colombia agreement
+to the Peru agreement?
+ Mr. Roberts. As far as I know, there is virtually no
+difference. And it is befuddling to me, sir, why the Congress
+would have approved the deal with Peru and not with Colombia
+because they are very much almost two sides of the same coin in
+terms of the problems that they face, their resources, their
+commitment of their governments to moving forward with
+globalization. So I don't understand why there would be a
+delay.
+ Mr. McKeon. Thank you very much.
+ Chairman Miller. Thank you.
+ Mr. Andrews?
+ Mr. Andrews. Thank you, Mr. Chairman.
+ I thank the witnesses for their testimony. And I apologize
+for not being present throughout the time. But I have read and
+understand, tried to understand what you are saying.
+ Mr. Roberts, on page nine of your testimony, you highlight
+the fact that the prosecutor general's office in Colombia has
+resolved 73 cases of union member murder and convicted 156
+individuals since 2001. How many open cases are there in
+Colombia with respect to alleged murders of union officials?
+ Mr. Roberts. I know there are a number, sir. I would have
+to get back to you with the specific number.
+ Mr. Andrews. Well, I think from the prior testimony, the
+number is at least 1,032 cases that have been under
+prosecution. Now, let me say that that is probably a number
+that is understated. Since there are some number of cases where
+there are files that can't be located. There are 1,104 cases
+that were initiated, but only 1,032 files can be identified.
+And there were, at least by the accounts of one witness, 2,694
+murders.
+ So first of all, it looks like a minority of the murders
+have any kind of prosecution. But let us look at the ones that
+the government itself says there have been prosecutions for,
+which is 1,032.
+ What kind of record do you think it is, 73 resolutions out
+of 1,032 cases? Do you think that is pretty good prosecutorial
+batting average?
+ Mr. Roberts. Clearly, sir, that would be unacceptable. And
+as I have testified, the Colombian government has taken many
+steps to deal with that, including the setting up of a special
+unit. One of the former judges is here with us.
+ I have also noted in my written testimony that a number of
+these murders occurred before 2001, probably the vast majority.
+Record keeping being what it is in a developing country like
+Colombia, I think it is understandable that there would be some
+problems.
+ Mr. Andrews. Well, of course, I would note that the judge
+who testified is a former judge. And the reasons he is a former
+judge are somewhat interesting. But, I mean, one of the
+arguments implicitly in your testimony is that the great
+progress that has been made by the Colombian government should
+be rewarded in whatever fashion by the United States. Yes, I
+find these numbers to be disturbing that where you have the
+number of over 1,000 open cases--here is the breakdown, as I
+understand it, from the earlier testimony.
+ One hundred and twenty convictions, little over 10 percent;
+208 cases where a suspect has been identified but there has not
+been yet a resolution of the case; and 654 cases, 59 percent of
+the cases, where there is no suspect that has been identified,
+which indicates either a very preliminary form of investigation
+or a very ineffective form of investigation. And I am not
+asking you to commit to the truth of this statement, but
+hypothetically that if these data would indicate a government
+that is at best incompetent when it comes to prosecutions and
+at worst, indifferent or complicit, do you think it should be
+the policy of this country to reward such a government or not?
+ Mr. Roberts. Well, sir, as I have tried to put it in my
+case is you have to put this in context. All of these
+governments in the region have been historically weak. We know
+that the government of Colombia in Bogota--its reach to that
+extent throughout the whole country, which is the size of
+California and Texas put together. There were areas that were
+basically lawless. That explains why there were these mercenary
+groups formed by landowners.
+ Mr. Andrews. Well, but with all due respect, do the other
+countries in the region have the record of labor murder that
+Colombia does? My understanding is 60 percent of the reported
+labor murders in the world came from Colombia. I mean, do the
+other countries have this sort of problem?
+ Mr. Roberts. I am not sure of exact comparisons. I know
+that other countries do have problems.
+ Mr. Andrews. Of this magnitude?
+ Mr. Roberts. Right now in Colombia there are more people in
+jail for human rights violations after an episode of post-
+conflict period than in any other country in Latin America in
+history. So the government has taken steps.
+ And I think in terms of the United States leverage, it is
+with a free trade agreement, with international----
+ Mr. Andrews. But those steps have been, in my view,
+shockingly ineffective. Over 1,000 prosecutions, out of a
+universe of 2,700, by the way, but 1,000 or so prosecutions
+and, according to our records, 120 convictions. And 60 percent
+of the cases have not been followed through to the point where
+there is a suspect identified.
+ I mean, at the very least that raises a presumption of
+incompetence. It may raise a presumption of something worse
+than that, of complicity on behalf of the organization that is
+involved.
+ And when we hear the former judge's testimony, it would
+tend to lend one's thought to the complicity. So I think this
+is a dismal track record of prosecution. And I think any
+decision we make has to be framed in that regard.
+ I would yield back the balance of my time.
+ Chairman Miller. The gentleman yields back.
+ Mr. Kildee?
+ Mr. Kildee. Thank you, Mr. Chairman.
+ Ms. Edwards would appreciate your help with my brief
+opening statement [speaking Spanish].
+ A little translation?
+ Ms. Edwards. Yes. Last summer I spoke to a priest who told
+me that I cannot go to Heaven unless I speak Spanish. And I do
+want to go to Heaven, and therefore, I am speaking Spanish.
+However, I don't want to go today, so I am going to go back to
+speaking English.
+ Mr. Kildee. Thank you.
+ I understand, Mr. Sanin, that the Colombian government
+recently passed a law that gives the president the right to
+declare any strike illegal if it affects the economy. Don't all
+strikes affect the economy, at least some small part? Is this
+law consistent with ILO standards? What changes do you believe
+should be made to this particular law? And what additional ways
+have Colombia's laws regarding the right to strike been
+criticized by the ILO?
+ Mr. Sanin [through translator]. What I can say is that
+there was a new law that was implemented, law number 1210 of
+2008, which is supposed to regulate the issue of strikes. And I
+would say it addresses and resolves two of the 10 issues
+brought up by the ILO. The big problem is that the--the problem
+that persists is that there is still presidential authority to
+declare strikes illegal.
+ And as far as what ILO has recommended, the problem with
+this law is that there is actually no change in substance. The
+only thing that it has addressed is a change in authority. That
+is the authority to declare the illegal has passed from the
+ministry to the judges. But there is nothing substantively
+different in this law.
+ So therefore, strikes continue to be illegal. And this
+problem persists in Colombia. I can give you numbers.
+ In the past 6 years, 62 strikes were declared illegal. And
+what this implies for workers also is that their employers can
+fire them with impunity. So in sum, I can say that this law has
+given us no substantive changes in procedures.
+ Mr. Kildee. Thank you. Go with God.
+ Ms. Woolsey. I think you make us all look like fools, Mr.
+Kildee.
+ Thank you, witnesses. You have been wonderful. And you have
+been brave. And you have been appropriately outspoken, I
+believe.
+ It is obvious that most of us here are actually appalled
+hearing your testimony about how slow worker protections are
+coming about in Colombia. It is not good enough to be this
+slow. Nor is it good enough for us as individuals to be
+outraged sitting up here.
+ So what I would like to ask you, Dr. Sanchez and Ms.
+McFarland is--and then the rest of you, if there is time. What
+can we in the United States, what can the international
+community do to protect trade unionists in Colombia and to
+protect workers in general? What would be your suggestions?
+ Why don't we start with you, Ms. McFarland?
+ Ms. McFarland. Thank you. I think the U.S. has a very
+powerful tool at its disposal, which is the U.S./Colombia Free
+Trade Agreement. And unfortunately, I don't think these issues
+can be addressed through the agreement. It is not like anti-
+union violence or killings are going to be reduced because, you
+know, there is language in the agreement that says that the
+right to strike will be respected.
+ Instead, the changes have to happen beforehand. The U.S.
+should press Colombia to meet benchmarks, meet conditions
+before the agreement is entered into. President Obama himself
+noted that without real change in addressing human rights
+abuses he would make a mockery of the labor protections in the
+agreement.
+ And we have a lot of ideas about what specific steps
+Colombia needs to take. In the first place, Colombia needs to
+significantly increase the number of convictions for trade
+unionist killings and other violence. This means that they need
+to investigate the whole universe of cases of trade unionist
+killings, not just the 1,000 they have open.
+ They need to create a systematic plan to investigate these
+cases and not just one by one, as has been described here. They
+need to go after intellectual authors.
+ The other thing that they need to do is go after the
+paramilitary groups. Sure, the Colombian government says that
+they have demobilized the paramilitaries. But as I have
+described, even though 30,000 individuals went through this
+demobilization process and turned in weapons and went through
+ceremonies, there is lots of evidence that many of those people
+weren't even paramilitaries.
+ They were civilians recruited to pose as paramilitaries for
+purposes of these ceremonies. And now scores of groups are all
+over the country. They are estimated to have tens of thousands
+of members. And they are committing the same abuses that the
+paramilitaries were committing in the past.
+ The congress of Colombia is heavily infiltrated,
+apparently, by these groups, if you go by the supreme court
+investigation. And unfortunately, the Colombian government has
+not supported the investigation. It has not taken seriously the
+claims that there are new paramilitary groups out there. And
+until it starts doing that, you are not going to make progress
+in anti-union violence.
+ Ms. Woolsey. All right.
+ Dr. Sanchez?
+ Thank you, Ms. McFarland.
+ Mr. Sanchez [through translator]. Thank you. Your question
+is what can the United States do in order to help protect
+unionists. And the answer is you must do everything you can.
+You must spare no effort. However, in principle what needs to
+happen is that the judicial apparatus needs to be strengthened.
+It must come before the military apparatus.
+ As far as prosecutors and judges, in the schools where they
+are trained, we must raise awareness among them that they need
+to investigate, not only the material authors, but also the
+intellectual authors. Because as I said before, they are the
+ones behind all of this. And only by stopping them can we end
+this scourge. And if we do not do that, this problem will go on
+and on and on. Thank you.
+ Ms. Woolsey. Thank you, Mr. Chairman.
+ Chairman Miller. Congresswoman Titus?
+ Ms. Titus. Thank you, Mr. Chairman.
+ And thank all of you for your testimony, especially Ms.
+Hoyos. That must be very difficult to speak personally about
+your father.
+ We have heard from Mr. Roberts and others who defend
+President Uribe and things that have happened recently as
+having gotten much better. They paint a rosy picture, even, of
+the situation since the demobilization of 2006. They seem to
+argue that the paramilitary groups no longer exist and they
+refer to them, and I quote, as emerging gangs or criminal
+bands.
+ A number of human rights organizations, though, and
+scholars like Gustavo Duncan at the University of the Andes
+have taken the opposite position. They seem to say that groups
+like the New General and the Brack Eagles, especially have
+taken the place of these old paramilitary groups. And they are
+doing the exact same things and that these union deaths and the
+displacement of so many Colombians from the rural part of the
+country, a problem we haven't even addressed but that is
+getting more and more serious, can stem from their activities.
+ I wonder if you would just address in more detail these
+organizations, who the members are, who is financing them, if
+they do still have ties with the old AUC and then conclude and
+tell me if perhaps maybe it is time for a truth commission and
+international courts to start to look at this problem. Thank
+you.
+ Ms. McFarland. Thank you. Well, these new groups are
+connected to the paramilitaries. A lot of their leaders are
+never demobilized mid-level commanders of the paramilitaries.
+They are operating in the same regions as the old
+paramilitaries. And they are engaging in extortion, threats,
+displacement of civilians, killings and drug trafficking, just
+like the old paramilitaries. They have inherited their drug
+trafficking routes.
+ There are about 22 of them. Their command structure is less
+clear perhaps than with the old groups. And that is one
+distinction.
+ But whether they are paramilitaries or emerging criminal
+gangs is primarily a matter of semantics. It is not about the
+substance. And they are having a serious humanitarian impact.
+ The rate of displacement in Colombia has not been going
+down in recent years. It has been going up since 2004. Last
+year in the first 6 months of the year, according to the main
+organization monitoring displacement, there were 270,000 people
+who were internally displaced just in 6 months. And that was
+the highest rate in 23 years, a lot of that because of the new
+armed groups.
+ In Medellin, which has been touted here as this example of
+security now, last year there was a 35 percent increase in
+homicides, also because of these new groups, apparently. So
+these are serious threats. And they are a threat to trade
+unionists as well. Most of the trade unionist killings that
+happened in the last year or two have happened in the regions
+where these groups are active.
+ So I would say it is a very serious problem that needs to
+be addressed. And the government by calling them emerging
+criminal gangs and dismissing them is refusing to deal with it.
+ Chairman Miller. Mr. Sanin?
+ Mr. Sanin [through translator]. Okay, what I can say is I
+have here--I was talking about some of the threats and some of
+the numbers. And I would be glad to share the numbers with you.
+Most of the crimes that have occurred against union members in
+the last few years have been done by these groups. They go by
+different names, but the problem is the same. It hasn't
+changed.
+ And the threat to trade unions exists because the trade
+unions exist because they exist to defend workers' rights. And
+although I can't tell you what the size of these new groups
+might be or what their names are, we feel their threat every
+day daily. We have threats and we have--we are harassed by
+these people.
+ I can tell you that Monday of this week the cooperative in
+the city of Antioca received a threat. The threats have not
+stopped. And I can also give you another number, which is that
+1,500 union members are protected by this federal government.
+And they are protected because the federal government has
+determined that they are at risk. And that risk is determined
+by an investigation that is carried out by the state. And the
+state has found that those people at risk are at risk precisely
+because they are threatened by these groups that have all
+emanated from the previous auto-defense groups.
+ Chairman Miller. Thank you.
+ Mr. Cassidy?
+ Mr. Cassidy. Yes, thank you.
+ I guess I direct my question more to Ms. McFarland than to
+Mr. Roberts for your comments on that. I am struck that through
+history when there is more trade, an economy becomes more open.
+As the economy becomes more open, typically workers' rights
+improve.
+ And I think about the role of multi-nationals in South
+Africa in which the South Africans under apartheid did not
+have--had a second-rate health care, unless they worked for a
+multi-national. And then the multi-national basically demanded
+that they be put into a private hospital with the same kind of
+protections.
+ Similarly, I think of how when Nike went to China, there
+are allegations that they weren't treating their workers right.
+And indeed, Nike brought in Western style of how you treat
+workers because of domestic pressure, if you will, United
+States pressure, upon their business structure.
+ So when I hear--Ms. McFarland, I am very sympathetic to
+eliminating these paramilitary groups if they exist. Except for
+the question of facts, both sides saying different things. I
+think the real issue is how do we bring workers' rights.
+ Now, as I look through history, the more closed a society,
+the more likely there is abuse of workers. The more open the
+society, the less likely.
+ And so, I actually wonder if we are not--if we oppose the
+Colombian Free Trade Agreement that we are not actually
+condemning the workers, if you will, just accepting for a
+second the argument that there is a problem, condemning the
+workers to a prolonged kind of absence of rights. And if we
+open it up and our guys walk in and Nike comes in and brings
+those kind of human rights and says we are not going to
+tolerate abuses of our unionized workers, et cetera, et cetera,
+if that wouldn't be an independent force for change, a very
+powerful force for change if we look at history.
+ I remember there used to be similar arguments about Korea.
+Don't give them free trade until they open up their economy and
+open up their political system. We did it anyway, and now they
+are one of the most open governments in the Far East. So it
+almost seems like the paradigm is allow trade and trade brings
+in workers' rights.
+ How would you respond to that, Ms. McFarland?
+ Ms. McFarland. Well, my understanding is that the academic
+record is very mixed on that question of whether trade actually
+improves rights or not. But in any case, in Colombia's
+situation, when U.S. corporations have been present, that
+hasn't necessarily reduced anti-union violence.
+ In fact, Chiquita brand operated actively in the Uraba
+region in Colombia in probably the worst period of anti-union
+violence in that country for years and is now--you know, has
+recently accepted having been paying paramilitary groups there.
+I don't think necessarily investment and allowing access to
+markets and all that will improve the situation of violence,
+which is very particular, by the way.
+ It is not just about, you know, changing the laws or
+changing the rules and how you are treating workers. We are
+talking about killings. And if you are living under fear that
+you will be killed, you are not going to be able to exercise
+your rights freely.
+ Mr. Cassidy. I am not familiar with the Chiquita brand, but
+I am willing to accept that. okay? But the very fact that
+Chiquita brand will stop doing that now that there is the light
+of U.S.-kind of, my gosh, am I going to buy their bananas or
+not in my store at Harris Teeter. Actually, Chiquita is going
+to change their ways.
+ Whereas if there were a domestic industry, domestic to
+Colombia, there would be no such pressure upon them. The fact
+that they are an American brand bringing their bananas in
+through Biloxi, Mississippi distributed across the United
+States means that Chiquita is more likely to change. That
+almost makes my argument.
+ Ms. McFarland. I think that is purely speculative. We don't
+know that Chiquita is likely to change. All we know is what it
+did.
+ Mr. Cassidy. I suspect----
+ Ms. McFarland. It spent several years paying
+paramilitaries.
+ Mr. Cassidy. I just say that because if we look at the
+example of Nike, we can expect that they would.
+ Ms. McFarland. Why? Was Nike charged with----
+ Mr. Cassidy. Nike was allegedly--did not have workers'
+rights in the plants, I think, in China. And they went back and
+they made sure they corrected it.
+ Ms. McFarland. As I understand in Nike's case, there have
+been campaigns to get it to change.
+ Mr. Cassidy. Yes. Isn't that great? And that is because
+free trade made them subject--and they are a moral--I am not
+knocking them. I am not knocking Nike. In fact, I am kind of
+praising them for being responsive. But also saying that they
+have been a positive instrument for change in the countries in
+which they were operating.
+ Ms. McFarland. And what I am saying is that in the country
+where trade unionists are getting killed in large numbers, it
+is just as likely that foreign corporations coming in will be
+sucked into that situation.
+ Mr. Cassidy. Well, I am not sure I agree with that.
+ Mr. Roberts, what are your thoughts?
+ Mr. Roberts. Well, it should not come as a surprise that I
+agree with you, sir. And I think you have stated an excellent
+case. I think you should be a guest contributor to our index
+next year, actually. And I think you are right that this
+globalization effect is positive for workers and for consumers
+and citizens alike. And there are unique cases.
+ I know that Chiquita had some problems. But in general, I
+don't think we need to be this speculative. I think we can look
+at the facts.
+ We can look at how the data shakes out that when you have
+stronger rule of law, when you have clear access to property
+rights and a transparent and non-corrupt judicial system, when
+you have rules of the road, a level playing field for
+investors, for businesses, you have private capital that you
+have many more actors than just a government, that you have
+wealth disbursed with many power centers. You do tend to have
+this affect of more openness of more of a push for rights and
+for rule of law than if you were in a closed system.
+ You know, I would say, to use the Nike term for the U.S./
+Colombia Free Trade Agreement, just do it. And let us enjoy
+these benefits.
+ Mr. Cassidy. You know, I think also to be philosophical,
+Michael Novak in the spirit of democratic capitalism as a
+Catholic theologian looked at that and found that, my gosh,
+capitalism actually does tend to bring in a freer society.
+ So I yield back. Thank you.
+ Chairman Miller. The gentleman yields back.
+ Mr. Payne?
+ Mr. Payne. Thank you very much. I thought they were two
+great examples of great corporate citizens, Nike with the
+charge of what they pay in China and what they charge for those
+sneakers, you know, in our cities and little kids pressuring
+their parents to buy Nike sneakers because they play basketball
+and that is about all they look up to, these basketball
+players. And so, these parents are almost extorted by their
+kids saying we have got to have these Nike sneakers or I am not
+in with the group.
+ So I don't want to get started on Nike as a great corporate
+citizen or even Chiquita banana that had the U.S., you know,
+put a charge against the lomay countries that were getting
+banana preferences from Great Britain. One thing Great Britain
+did was to say our former colonies could sell us their bananas
+because we felt a responsibility to their trade. And we don't
+grow bananas in the United States.
+ But Chiquita and their Mr. Cantor, our trade ambassador,
+sued the European countries who were assisting the Caribbean
+countries. And now the banana business is gone, and drugs have
+replaced the employment of people who used to grow bananas. You
+know that Chiquita has pretty fancy bananas. And the poor
+Caribbean countries were unable to compete.
+ But they were two great examples of how this globalization,
+if you look at the other side of the picture, hasn't presented
+a very positive picture for countries that are struggling as I
+indicated, especially in the Caribbean where they have no more
+banana industry. And they are almost out of the way. But that
+wasn't what I was going to ask.
+ I just wanted to--so it is interesting how we can look at
+the same set of circumstances and have a totally different
+position. Certainly, I have traveled through Colombia in 2007,
+my last trip to Bogota and to Quito out in Soachaa. And, of
+course, I agree, Cotahana is a beautiful place.
+ But I would instruct people to go out to Soacha and to some
+of the other areas where Afro-Colombians and indigenous people,
+who we hear very little about--many of the indigenous people
+really have been eliminated over the years. And the Afro-
+Colombians who live in very squalor conditions, virtually no
+rights--I have met several times with President Uribe who says
+he really wants to improve things. And he has. He has done
+better than the previous persons, but, you know, when you
+compare what they did, absolutely nothing, any little bit is a
+little bit better, I think, than nothing.
+ But the situation that I saw was very depressing. And the
+fact that labor leaders--we have seen the numbers that have
+been killed. I know my specific question, I guess, would deal
+with the Colombian government's claim that it has taken steps
+to improve labor rights in Colombia by passing in 2008 in June
+a new law on labor cooperatives.
+ Last fall, thousands of sugar cane cutters, many of whom
+are African-Colombians, Afro-Colombians, protested over 50 days
+due to poor labor conditions experienced under the labor
+cooperatives model. Afro-Colombian sugar cane cutters claim
+that these cooperatives do not provide them with benefits, do
+not allow them to organize unions, bargain collectively for
+wages and protect their labor rights. The labor cooperative
+model is used by the sugar cane and the oil palm industry,
+which employs many Afro-Colombians.
+ And I just might ask you, Mr. Sanin, what is your opinion
+of this model. And in your opinion, is there a trend in sectors
+that employ Afro-Colombians to discourage Afro-Colombians from
+organizing into trade unions? And is the Afro-Colombian--is the
+Colombian government in general addressing, in your opinion,
+the basic concerns of Afro-Colombian workers in that country?
+ Mr. Sanin [through translator]. Thanks very much for your
+question. On this issue of the cooperative labor organizations
+is very, very sensitive in Colombia. There are 4 million
+workers who work under these conditions. And they have
+absolutely no rights. They are a very low-cost labor.
+ They are not allowed to unionize. And they are barred also
+from striking. The ILO has clearly said that these rights--that
+this goes against everything that has to do with workers'
+rights. The new law that Colombia enacted in 2008 is no
+solution to these problems.
+ So we have a model now in Colombia where we have no
+workers' rights, no right to unionize, no right to collective
+bargaining. And that is why these workers went on a spontaneous
+strike. And it did involve the palm workers, the sugar cane
+cutters as well as port workers. And as you rightly said, many
+of these workers are Afro-Colombian. And they find themselves
+in a situation of extremely precarious work conditions. And
+again, I repeat. This new law has not resolved any of these
+problems.
+ Mr. Payne. Well, thank you very much. I appreciate that.
+And we will continue to press that issue.
+ And the palm workers--many of the Afro-Colombians don't
+want to deal with the palm industry in the first place. And as
+I mentioned before, the Chiquita--that was the WTO that the
+suit went in against the Caribbean islands that, of course,
+Chiquita won, and the Caribbean islands lost. And the WTO and,
+like I said, are struggling now to exist with no commodities to
+sell.
+ Thank you, Mr. Chairman.
+ Chairman Miller. Thank you, Mr. Payne. Before I recognize
+Congressman Polis, I would--Congressman McKeon has asked that I
+insert in the record as part of this hearing the Washington
+Post editorial from Saturday, April 19, 2008 called Colombia's
+Case. And without objection, it will be done.
+ [The information follows:]
+
+ [From the Washington Post, April 19, 2008]
+
+ Colombia's Case: The intellectual poverty of a free-trade deal's
+ opponents
+
+ House Speaker Nancy Pelosi (D-Calif.) says the Bush
+administration's free-trade agreement with Colombia may not be dead,
+even though she has postponed a vote on it indefinitely. If the White
+House doesn't ``jam it down the throat of Congress,'' she said, she
+might negotiate. Ms. Pelosi wants an ``economic agenda that gives some
+sense of security to American workers and businesses * * * that
+somebody is looking out for them''--though she was vague as to what
+that entails. Nor did she specify how anyone could ``jam'' through a
+measure on which the administration has already briefed Congress many,
+many times.
+ Still, in the hope that Ms. Pelosi might in fact schedule a vote,
+it may be worth examining once more the arguments against this tariff-
+slashing deal. Perhaps we should say ``argument,'' because there is
+really only one left: namely, that Colombia is ``the most dangerous
+place in the world to be a trade unionist'' and that the government of
+President Alvaro Uribe is to blame. As AFL-CIO President John Sweeney
+put it in an April 14 Post op-ed, union workers in Colombia ``face an
+implicit death sentence.''
+ Colombia is, indeed, violent--though homicide has dramatically
+declined under Mr. Uribe. There were 17,198 murders in 2007. Of the
+dead, only 39--or 0.226 percent--were even members of trade unions, let
+alone leaders or activists, according to the Colombian labor movement.
+(Union members make up just under 2 percent of the Colombian
+population.)
+ This hardly suggests a campaign of anti-union terrorism in
+Colombia. Moreover, the number of trade unionists killed has fallen
+from a rate of about 200 per year before Mr. Uribe took office in 2002,
+despite a reported uptick in the past few months. (Arrests have already
+been made in three of this year's cases, according to Bogota.) And
+evidence is sparse that all, or even most, of the union dead were
+killed because of their labor organizing. As Mr. Sweeney and other
+critics note, precious few cases have been solved, which is hardly
+surprising given that Colombia's judicial system has been under attack
+from left-wing guerrillas, drug traffickers and right-wing death
+squads--a war, we repeat, that Mr. Uribe has greatly contained. But in
+cases that have been prosecuted, the victims' union activity or
+presumed support for guerrillas has been the motive in fewer than half
+of the killings.
+ An April 10 letter to the editor from Tom Malinowski of Human
+Rights Watch suggested that we would not make such arguments ``if death
+squads with ties to the U.S. government were targeting Post reporters
+for assassination.'' We like to think that our criticism would be
+energetic but fair, especially if the government was responding
+aggressively to such a campaign and the number of killings was
+declining. No fair-minded person can fail to note that Colombian
+unionists are far safer today than they used to be.
+ There are two important countries at the north of South America.
+One, Colombia, has a democratic government that, with strong support
+from the Clinton and Bush administrations, has bravely sought to defeat
+brutal militias of the left and right and to safeguard human rights.
+The other, Venezuela, has a repressive government that has undermined
+media freedoms, forcibly nationalized industries, rallied opposition to
+the United States and, recent evidence suggests, supported terrorist
+groups inside Colombia. That U.S. unions, human rights groups and now
+Democrats would focus their criticism and advocacy on the former, to
+the benefit of the latter, shows how far they have departed from their
+own declared principles.
+ ______
+
+ Congressman Polis?
+ Mr. Polis. Thank you, Mr. Chairman [speaking Spanish].
+ First, thank everybody for coming, especially Yessika
+Hoyos. It is very difficult to open her heart and share. And we
+deeply appreciate that.
+ My question is for Dr. Sanchez [speaking Spanish].
+ The question is how does the justice system function in
+Colombia with regard to labor issues and the prosecution of
+those who attack labor leaders compared to other forms of
+crimes and how the labor system functions, corruption or
+prosecution of right wing radicals who attack others.
+ Mr. Sanchez [through translator]. Yes, this is considered a
+more serious crime in Colombia. I am referring to killing
+someone who is protected by international law, by international
+agreements as unions are. There is a harsher sentence. The fact
+is it is a more serious crime to commit against the life of
+this person.
+ And could you please repeat the second part of your
+question?
+ Mr. Polis [speaking Spanish].
+ I can in English. Is the implementation of the law more
+highly flawed with regard to prosecuting the crimes of labor
+leaders, not compared to a perfect model, but compared to in
+reality the prosecution of other crimes?
+ Mr. Sanchez [through translator]. Yes, it is about----
+ Mr. Polis [speaking Spanish].
+ Mr. Sanchez [speaking Spanish].
+ Mr. Polis. Mr. Chair, if I can address, it looks like the
+other gentleman would like to address the question as well.
+ Mr. Sanchez [through translator]. The law is enforced
+equally to all persons in Colombia, whether they be citizens or
+not. The law applies the same. And investigations are carried
+out the same.
+ That in some cases, in fact, the intellectual authors
+behind a crime are not investigated. That depends on the judge
+behind that investigation. But in the law, per se, it is
+applied equally to all.
+ Mr. Sanin [through translator]. The problem that we have is
+that we have very few prosecutors and very few investigators
+for this kind of crime. There is a tremendous imbalance in the
+system.
+ We have, for example, lots and lots of prosecutors for
+intellectual property rights, for example. There is no
+equilibrium here. There is no balance in the two. The
+institutional design of the country is not balanced.
+ We have lots of protections and lots of prosecutions for
+crimes against property, for example, against business, but
+very, very little protection or prosecution of cases that have
+to do with workers' rights. For example, I can give you just
+one number. The crimes that affects trade unions.
+ Anything that is done against trade unions is a crime. And
+yet we have not one single case that has been prosecuted
+against people who are guilty of operating against trade
+unions. And as we said before, we have a 96 percent rate of
+cases that have not been solved.
+ Chairman Miller. Thank you.
+ Mr. Sestak?
+ Mr. Sestak. Thanks, Mr. Chairman.
+ Mr. Sanin, could you let me know what you think would be
+the prospects for improved unionization and for protection of
+unionists if the treaty, the Colombian treaty, is not passed as
+compared to if it is?
+ Mr. Sanin [through translator]. Okay, thank you very much
+for the question. The issue is that Colombian society is
+different from any other society. It is not like Central
+America. It is not like Peru. It is not even like any of the
+other Andean community countries.
+ We have to bear in mind that 60 percent of unionized
+workers killed worldwide are killed in Colombia. The whole
+structure of the law and the practice of the law in Colombia
+goes against basic ILO standards. More than 50 percent of
+Colombian workers are not protected.
+ So this makes us a very vulnerable society for the issue of
+trade integration. However, I would like to point out that this
+discussion that is being held in the U.S., this debate can
+possibly help. It may help push Colombia to make this a
+priority issue and to get it resolved. Thank you.
+ Mr. Sestak. Ms. McFarland, may I ask you the same question?
+You have watched this and have an historical perspective. There
+is things in the treaty like our own unions are able to go to
+the labor department and now under this treaty make a
+representation by the treaty that something is amiss. And then
+if the labor department finds it is amiss, they can report to
+our trade representative.
+ Agnostically, my question is the same. If this treaty is
+not passed, what are the prospects for the improvement of
+unionization and their protection of unionists as compared to
+if it is passed?
+ Ms. McFarland. I think the question is really under what
+conditions can it be passed. I mean, at least at Human Rights
+Watch we are not anti-trade. We are not pro-trade. We are
+agnostic on that issue. What we do think----
+ Mr. Sestak. That is why I decided you would be the second
+one just from your perspective on unionization, improvement or
+not with the passage.
+ Ms. McFarland. What we do think is, what I do think is that
+with the passage of the free trade agreement you are not going
+to solve the problem of anti-union violence, which is the most
+serious problem affecting union rights in Colombia. And with
+conditions on the agreement, preconditions that problem can be
+addressed. A lot of progress could be made. And that is why we
+are calling for delay in the consideration of the agreement.
+ Mr. Sestak. Mr. Sanchez?
+ I mean, we just might have to deal with the treaty as it
+is.
+ Dr. Sanchez, that same question. The treaty as it is--will
+unionization prospects be improved by the passage and
+protection of unionists be improved if this treaty were passed
+or as compared to if it is not passed?
+ Mr. Sanchez [through translator]. This issue is really one
+for the experts in trade. I am a criminologist, and I can't
+really say if this agreement is going to be a good thing or a
+bad thing. It should really be addressed by someone who is more
+informed on that issue.
+ Mr. Sestak. Thank you. I appreciate your input. I do
+believe that whether it is 36 or 54 murders and assassinations
+in 2007 out of the 17,900 and some, whether it is systemic or
+not is really the question, not just the magnitude.
+ But for me the real question on this treaty, having voted
+for the Peru treaty, is are unionists aided, abetted in making
+this less systemic because the potential leverage we may then
+have as compared to us potentially having a different political
+dynamic in that country, particularly in view of what you said
+this administration has now changed in having this passed this.
+Are we better or not better for addressing that systemic issue
+by the passing of this treaty? Thank you very much.
+ I yield back the balance of my time.
+ Chairman Miller. Mr. Wu?
+ Mr. Wu. Thank you, Mr. Chairman.
+ I understand that this hearing was convened, not expressly
+to talk about trade treaties, but since we are on that topic, I
+have spent a good amount of time drafting some provisions to be
+added to a bill which was submitted in the last Congress to put
+human rights on a par with environmental; provisions and with
+labor provisions and other fundamental provisions of the trade
+agreement so that they are subject to the same kind of scrutiny
+and review after the fact and similar enforcement mechanisms.
+ Now, I understand that, and I am a believer in asking folks
+to meet certain preconditions before trade treaties are signed
+or ratified. But I want to also hear whether these in-treaty
+mechanisms, if they can be incorporated in treaties and if they
+can be enforced, whether that would be helpful to the human
+rights and organizing regimes going forward post-treaty.
+ Chairman Miller. If I just might, the gentleman is quite
+correct. These witnesses did not come here to testify on the
+free trade agreements or treaties or what have you. They are
+free to comment on your question, but I just want them to know
+that they are also free not to comment because they did not
+come here to testify on that subject matter.
+ Mr. Wu. Absolutely. I just wanted to follow up on--
+particularly our witness from Human Rights Watch since she
+seemed to have some opinions on this topic.
+ Ms. McFarland. Yes, I think it would be a great thing to
+start looking at ways in which human rights can be incorporated
+into trade agreements. However, I don't think that that is the
+way to solve the problem in Colombia.
+ Getting Colombia to do anything about the anti-union
+violence and impunity has been like pulling teeth. And it has
+only been with the possibility of non-ratification of the free
+trade agreement on the table that they have established this
+special prosecutors unit that is starting to make a little bit
+of progress. I think now we have the possibility of moving them
+a little further on that now that there is change in
+Washington.
+ But it is not something that you are going to achieve
+through a side agreement once the agreement has been ratified.
+I mean, what is really motivating the Colombian government and
+moving things forward right now is its desire to have the
+agreement ratified. Once it is in place, you know, you can get
+little things, maybe, but it won't be the same.
+ Mr. Wu. Okay, thank you for that comment. I want to make
+clear that I agree with you that it is important to make major
+strides so that the human rights environment is roughly
+proportional pre-treaty. But what I have in mind is not a side
+agreement, but to have something integral to the agreement with
+strong enforcement mechanisms so that post-agreement there is
+an enforcement mechanism and leverage, not just on issues of
+tariff or non-tariff barriers, but also for enforceable
+provisions for environmental concerns, labor concerns and human
+rights concerns.
+ Ms. McFarland. I think we would certainly welcome the
+opportunity to work with you on developing such language. I
+just think that, as I said before, the situation in Colombia is
+very particular.
+ Mr. Wu. Yes.
+ Ms. McFarland. And----
+ Mr. Wu. They tend to be in each particular country.
+ But, Mr. Chairman, I also was not prepared to address this
+topic with this panel today. But since we are on this subject
+and we have a good panel, for anyone who is interested in the
+language as drafted, I would like to get that to you before the
+end of the hearing. And I would very much appreciate your
+comments to the extent that you have helpful suggestions going
+forward.
+ Thank you very much, Mr. Chairman.
+ Chairman Miller. Thank you.
+ Ms. McFarland, if I might--and we are going to wrap this
+hearing up. I have questions now, and then Mr. Hare has
+questions, and that will be the end of the inquiry here.
+ It has now been a couple of years since the former
+intelligence chief, Jorge Noguera was arrested and indicted.
+Can you bring us up to date what is taking place with respect
+to this case?
+ Ms. McFarland. Sure. Mr. Noguera came under investigation
+for widespread collaboration with paramilitaries within the
+intelligence service while he was the chief of the intelligence
+service. He has been charged with, not only cooperating with
+the paramilitaries, but also providing them--well, he is under
+investigation for allegedly providing paramilitary groups with
+lists of trade unionists who are under the protection of the
+intelligence service and some of whom were later killed by the
+paramilitaries.
+ Unfortunately, the investigation of that piece, his alleged
+involvement in the homicides of trade unionists, has not really
+moved forward. And the entire case has suffered lots of delays
+basically because of procedural problems with the attorney
+general's office.
+ The attorney general was supposed to assume direct
+responsibility for the investigation. He decided to delegate it
+to another prosecutor. One court told him he couldn't do that.
+He decided to ignore that decision based on the opinion of his
+deputy attorney general.
+ And so, the supreme court finally had to tell him last year
+you can't delegate, you have to do this yourself. And Noguera
+has been arrested, released, arrested, released a few times. He
+was recently rearrested for the charges involving collaboration
+with the paramilitaries. But the part about trade unionist
+homicides is sort of floating with no clear direction.
+ Chairman Miller. Thank you.
+ Ms. Hoyos, I wonder if you might comment on what it is you
+hope to achieve with your new organization.
+ Ms. Hoyos [through translator]. My organization, the sons
+and daughters, children of people who are victims of human
+rights violations, people who have been killed, who have
+disappeared. We are a generation that are dreaming of a new
+country. And we are stigmatized because we have this dream of a
+new country.
+ I love Colombia. I am not here because I don't love
+Colombia. I am here because I do love Colombia. I am here
+because we are looking for the truth, because we don't want a
+repeat of these crimes. We don't want these crimes to be
+forgotten. We don't want impunity. And we don't want any more
+young people to suffer what we suffered through.
+ Just last year, I met a young woman, a 24-year-old--21-
+year-old, excuse me, the daughter of Guillermo Rivera, who was
+assassinated also in this manner. And I met her only because
+she found herself in the same circumstance that I had found
+myself in.
+ We don't want other people to suffer what we have suffered
+through. We want a country that respects us, that respects
+life, that respects our dreams and that does not pursue us and
+does not condemn us because we have those dreams and those
+thoughts.
+ Chairman Miller. Well, thank you very much. And obviously
+we wish you well with your organization.
+ I had the opportunity a month ago to view the video that
+you and your sister made in tribute to your father and also in
+pursuit of justice. And it is really quite remarkable. And he
+must have been quite a remarkable and important person in his
+community and certainly to his family. So thank you for doing
+that to share with others who are concerned with this issue.
+ Mr. Hare?
+ Mr. Hare. Thank you, Mr. Chairman.
+ And, Ms. Hoyos, let me first of all tell you how sorry I am
+about your father. Just from listening he was obviously a
+wonderful man. And I am sure he is very proud of you.
+ You said that you have, you know, forgiven the two people
+who did this, the assassins. What do you know about--I mean,
+what led them to become hired assassins, that you know? And how
+did you come to the decision to forgive them, which is an
+incredible thing for you to be able to do?
+ Ms. Hoyos [through translator]. I forgave these two young
+men precisely because they are very young men. And in Colombia,
+unfortunately, many young men turn to violence because of lack
+of opportunities to do anything else. I forgave them because
+they are young, because they are just two young people.
+ That doesn't mean that I have given up on finding out the
+truth. I want the truth. I want to know who is behind these two
+young men. I want to know who the intellectual authors of this
+crime are because I know that those people are still free and
+perhaps are still committing more crimes.
+ Mr. Hare. Okay.
+ And then my last question would be to you, Dr. Sanchez. Why
+do you think that the killers see union leaders as such a
+threat? Or maybe if anybody would like to take a crack at that.
+ I mean, why do they see this as such a threat to Colombia?
+ Mr. Sanchez [through translator]. Labor unions in Colombia
+have always been labeled as sympathizers of the left or of the
+guerrillas. But the fact is that unionists are killed by both
+the guerrillas as well as the AUC. In other words, they are
+killed by the left as well as by the right and in some cases,
+even by common criminals simply because these people do not
+agree with the beliefs of the unions.
+ However, there is also a climate of intolerance in
+Colombia. People in Colombia and people in the world seem to
+sometimes forget that it is thanks to the labor movement that
+we have days off, that we have an 8-hour work day, that we have
+Social Security. It is thanks to their commitment that we have
+that.
+ And it is because of that dissent expressed by labor
+unions. That dissent is sometimes seen by some as a threat to
+the system. It is used as an excuse.
+ However, not all murders are institutional in nature or
+against the institution of labor. Some people simply feel that
+it is okay. There was, in fact, a time in Colombia in my
+country when a lawyer said that it was no crime to kill the
+indigenous. It was that extreme attitude that we are facing
+then and that we have to work against. Thank you.
+ Chairman Miller. Thank you. I want to again thank,
+certainly, all the members of the committee for their
+participation.
+ And I want to thank our panelists for traveling here today
+to share your expertise and your knowledge of this situation.
+And I appreciate your courage in coming forth.
+ It was referred to a number of times here about the beauty
+of the country of Colombia. And for those who have visited
+Colombia it would not take more than a few seconds to realize
+why people say that because of the spectacular nature of the
+country and its natural assets and, of course, when you meet
+its people.
+ But that is not a substitute for serious inquiry into human
+rights. I can remember standing at the American embassy with
+the American ambassador at the height of violence in Chile and
+him telling me that this is a beautiful country, and that I
+really should go to Valparaiso and enjoy the beaches and see
+the people who use the beaches, and I should go shopping and
+enjoy the people who are shopping, and that my concerns were
+misplaced because it is such a beautiful country. My concerns
+weren't misplaced.
+ It took almost 30 years, but we brought Mr. Pinochet to
+justice. And the world now knows the history of what was taking
+place while people were suggesting it is a beautiful country.
+ I had the same treatment from then President Dabusan, that
+I should go walk and enjoy the rivers of Salvador because it is
+such a beautiful place. And we all know the history of violence
+by that government against its people.
+ People will vote, and members of Congress, I mean, will
+vote, and people will consider pro or con the free trade
+agreement. This inquiry by this committee is independent of the
+consideration of that agreement. I hope what we do will be
+helpful to members of Congress should that agreement be put
+back forth in front of the Congress. That is a decision for the
+new president of the United States and for the Congress.
+ But I laid out in my letter to President Uribe the purposes
+of this investigation in my September 12th letter of 2008 when
+there was going to be an opportunity for us to meet with one
+another. And I made it very clear.
+ I said I would like to discuss with him at that time, but I
+have said this as we embarked on this inquiring using the
+committee resources that my goals and purposes were, one, an
+effective and sustainable and transparent Colombian system of
+justice to protect the rights of working people and to
+vindicate the lives of the victims of the anti-labor violence;
+two, further investigation and prosecution of the intellectual
+authors who planned the attacks and the killings of labor union
+leaders in Colombia; and three, additional reforms to bring
+Colombia labor laws up to the minimum core labor standards set
+by the International Labor Organization and cited by both the
+U.S. State Department and the U.S. Department of Labor.
+ That is the intent of this inquiry. This inquiry will
+continue until those results are achieved. That is the purpose
+of this inquiry.
+ I had the opportunity to travel and to meet with Judge
+Sanchez at that time when I was in Colombia and with the other
+judges, with the prosecutors and believed--and the Fiscalia's
+office--and believed that these assets should be strengthened
+and encouraged by this government. And this Congress spoke to
+that issue by redirecting some money from Plan Colombia to the
+Fiscalia's office to strengthen the prosecutions. In an
+explicable fashion, that money was not sent for a year.
+ So in a quest to achieve a sustainable and transparent
+Colombian system of justice with respect to this issue, we lost
+almost a year's time in strengthening that office. That was
+tragedy. I don't know what the Bush administration was thinking
+when that money was not forwarded in a timely fashion. And
+hopefully we will get into that when we get back into the
+appropriations process in this Congress.
+ But I want people to be very clear about the intent of this
+inquiry and the expected results of this inquiry and the
+sustainability of the ability of this committee to continue
+this. I have been involved in very, very long human rights
+inquiries in many parts of the world. And we expect to see this
+one through to a satisfactory conclusion with respect to the
+protection of human rights of workers and their families and
+others, in this case, in the country of Colombia.
+ And again, I want to express my appreciation for the
+cooperation that we have received from the government of
+Colombia as we have tried to sort through this subject matter.
+So again, thank you so very much for your contribution to the
+effort of this committee. And I hope that we will be able to
+continue to call upon you as a resource for our future
+discussions.
+ And with that, the members of Congress will have 14 days to
+submit additional materials for the hearing record. It may be
+that some members of Congress will submit follow-up questions
+that we will forward to you. And we would hope that you would
+be able to answer them in a timely fashion.
+ And with that, the committee stands adjourned. Thank you.
+ [The statement of Mr. Altmire follows:]
+
+Prepared Statement of Hon. Jason Altmire, a Representative in Congress
+ From the State of Pennsylvania
+
+ Thank you, Chairman Miller, for holding this hearing on workers'
+rights and violence against union leaders in Colombia.
+ As the Chairman said, over the past twenty years, Colombia has been
+the most dangerous place in the world to belong to a labor union. There
+have been more labor killings in Colombia than in all other nations of
+the world combined over the past few years, and according to a leading
+Colombian think-tank, the National Labor School, almost 2,700 trade
+union members have been killed in Colombia over the past two decades. I
+appreciate all of the witnesses here today lending us their time to
+examine this situation in Colombia. I hope that through this hearing,
+we can shed light on the atrocities that are ongoing in Colombia.
+ Thank you again, Chairman Miller, for holding this hearing. I yield
+back the balance of my time.
+ ______
+
+ [Additional submissions by Mr. Miller follow:]
+
+ AFL-CIO Executive Council,
+ Washington, DC, February 26,2009.
+Hon. George Miller, Chairman,
+Committee on Education and Labor, U.S.House of Representatives,
+ Washington, DC.
+ Dear Chairman Miller: Please find attached the AFL-CIO's latest
+fact sheet on violence, impunity and labor law in Colombia. We wish to
+submit this information to be included in the record of the hearing
+held by the House Committee on Education and Labor on February 12
+entitled, ``Examining Workers' Rights and Violence Against Labor Union
+Leaders in Colombia.''
+ attachment
+
+ Colombia: Continued Violence, Impunity, Flawed Labor Laws and Non-
+ Enforcement of the Law Eclipse the Colombian Government's Few
+ Accomplishments
+
+ February 2009 Update
+
+Violence Against Trade Unionists On The Rise
+ The National Labor School (ENS) now reports that 49 trade unionists
+were murdered in Colombia in 2008, a 25% increase over the number of
+trade unionists murdered in 2007--39. Even the Colombian government's
+statistics show an increase in assassinations.\1\ Of note, sixteen
+trade union leaders were assassinated last year, for example, Guillermo
+Rivera Fuquene, President of the Union of Public Service Workers of
+Bogota (SINSERVPUB), Carlos Burbano, Vice-President of the Hospital
+Workers Union (ANTHOC), Leonidas Gomez Roso, officer of the National
+Bank Workers' Union (UNEB), and William Rubio Ortiz, officer of the
+Union of National Environmental System Workers (SINTRAMBIENTE). This
+too represents an increase over 2007, when 10 leaders were murdered.
+ Because of the flawed demobilization process, thousands of
+``demobilized'' and never-demobilized paramilitaries are creating new
+and dangerous organizations. The OAS Mission to Support the Peace
+Process in Colombia (MAPP/OEA) has noted the resurgence of several new
+groups with thousands in their ranks. Many of the 157 individual and
+collective death threats against trade unionists in 2008 were issued by
+such groups, including Aguilas Negras Bloque Norte de Colombia, Nueva
+Generacion Aguilas Negras de Santander, Aguilas Negras Bloque Sena de
+Colombia, Comando Carlos Castano Vive, Campesinos Embejucaos de
+Colombia and Aguilas Negras Comando No Paheces.
+ There is no question that the continued murders and death threats
+have a chilling effect on union activity. Today, workers continue to
+have good reason to fear for their lives when they exercise their
+fundamental labor rights--especially the crucial rights to organize,
+bargain collectively, and strike. They know that 2,694 union members
+have been murdered in Colombia since 1986, with 482 of those murdered
+during the Administration of President Alvaro Uribe.
+ The Colombian government claims that union members are killed at no
+greater rate than the overall population. It is simply not meaningful
+to compare random crime statistics to targeted assassinations. Clearly,
+trade unionists who are engaged in industrial disputes, or who are
+active in human rights activities, are targeted precisely for their
+work. In Colombia, trade unionists continue to be assassinated
+precisely for exercising freedom of association and collective
+bargaining rights and other forms of trade union advocacy, and account
+for a preponderance of all labor leaders killed throughout the world.
+Persistent Impunity
+ The Fiscalia General reports that it has secured 171 sentences in
+131 cases related to violence against trade unionists.\2\ Further, the
+government has obtained sentences in 31 of the 185 priority cases, or
+16.75%. The recent increase in prosecutions, the vast majority of which
+were carried out in 2007 and 2008 (and following significant
+international pressure for results), is an improvement over past
+neglect by the current and previous administrations. However, behind
+these statistics are several troubling realities. First, nineteen of
+the sentences handed down were not for murder, but to a lesser charge,
+so do not address the impunity rate for homicides. In roughly 35% of
+the sentences, the person found responsible for the crime was tried in
+absentia or is otherwise not in custody and thus potentially still at
+large. And in the majority of cases, the person convicted of the crime
+is not the intellectual author, but rather the foot soldier that
+carried out the order to kill. For these reasons, the Uribe
+Administration still has a long way to go to end impunity in Colombia.
+Even if one reads the statistics in the light most favorable to the
+government, the rate of impunity still hovers around 96 percent.
+ Of note, the Office of the Attorney General is not even attempting
+to investigate all outstanding unsolved murder cases, but rather only
+the subset of cases that have been previously presented to the ILO and
+new murder cases from 2006 onward. Thus, the Attorney General is
+charged with investigating about 1,302 cases, which accounts for less
+than half of all union murder cases since 1986.
+ The government has claimed that the recent rulings show that in
+most cases, the crimes bear no relation to trade union activity.
+However, the information that the Attorney General used to provide
+regarding motives in cases of anti-union violence does not necessarily
+represent the determinations of the sentencing judges. In one report,
+the Attorney General claimed that the motive in 38 sentences was
+``alleged membership in subversion,'' implying that the perpetrator of
+the crime believed that the victim was a member of the guerrilla
+forces. However, in Colombia, legitimate human rights advocates,
+community leaders, and union members are accused of being ``guerillas''
+simply for advocating on behalf of their constituency. Further, these
+statistics reflect the state of mind of the gunmen (who may have been
+told to kill someone on the false pretense that the target is a
+guerilla), not the people actually responsible for planning the crimes,
+and thus do not necessarily reflect the true criminal intent.
+ For example, in the case of Luciano Enrique Romero, a former Nestle
+worker and member of Sinaltrainal, the Attorney General writes, ``If it
+is true that he was a unionist, it is also true that he was an
+informant of the 6th Front of the ELN, according to the testimonies
+gathered in the process, that he was very close to Comandante Tulio,
+and that he was known by the alias `PEPE.' '' This definitive statement
+is directly contradicted by the judge in the case. After viewing all of
+the evidence, Judge Jose Nirio Sanchez wrote that ``the supposed
+guerrilla military affiliation of the deceased was not proven, though
+his ideology of defending human and labor rights was frequently noted *
+* * It can be inferred that the deceased, Luciano Enrique Romero
+Molina, had no military status nor could he be characterized as a
+combatant.'' He goes on to say that the alias ``Pepe'' belonged to
+another person entirely and that the initial claims, which had been
+cited in the Attorney General's documentation, were unfounded.
+ This is but one of the numerous examples where the statistics of
+the Attorney General and the sentences of the specialized judges
+diverged. Of note, the Attorney General, as of December 2008, is no
+longer reporting motives in its statistical updates.
+Judiciary Politicized
+ In 2007, the government named three special judges to preside over
+cases related to violence against trade unionists. However, the
+judiciary has removed one highly qualified judge, Judge Sanchez, for
+unexplained reasons. It was this judge who, in addition to
+contradicting the Attorney General in the Luciano Romero case,
+sentenced officers of the 18th Brigade of the Colombian Army for
+murdering three union leaders in the department of Arauca. The judge
+found that these officers had planted guns in the hands of the
+unionists to make it appear that the victims were members of the
+guerrilla organization, ELN. This decision put the judge directly at
+odds with President Uribe, who continues to accuse these and other
+unionists of being guerrillas.
+ The six-month term of these judicial posts came under criticism as
+undermining the government's commitment to investigating and
+prosecuting the thousands of unsolved homicide cases. However, after
+intense international pressure, the government announced on March 28,
+2008, that it had approved the budget to create and fund three
+permanent specialized courts. However, a new decree from the judiciary,
+issued on July 11, 2008, merely assigns three judges to adjudicate
+these cases for one more year. Under the decree, the cases will be
+transferred to the new 10th and 11th benches of the special criminal
+circuit and the 56th bench of the criminal circuit of Bogota. The
+government once again failed to demonstrate long-term commitment to the
+process, favoring instead short-term extensions of judicial authority
+to review these important cases.
+ Finally, significant questions remain as to whether these judges
+will be able to perform their important jobs without interference from
+the Uribe Administration. For example, President Uribe has attempted to
+intimidate the Colombian Supreme Court on numerous occasions by
+publicly attacking the lead justice handling the parapolitics
+investigation, which led to the threat of mass resignation by the other
+justices last year. In August 2008, in an effort to further undermine
+the Supreme Court, the Uribe Administration proposed a constitutional
+amendment that would remove all investigations into members of Congress
+from the jurisdiction of the Supreme Court and move them to a local
+court in Bogot . The amendment is a clear effort to put an end into the
+investigations of these congressmen, the vast majority of which belong
+to President Uribe's governing coalition.
+Failed Demobilization Contributes to More Anti-Union Violence
+ The flawed demobilization process has also contributed to thousands
+of ``demobilized'' and never-demobilized paramilitaries creating new
+and dangerous organizations. The regular reports of the OAS Mission to
+Support the Peace Process in Colombia (MAPP/OEA) have noted the
+resurgence of several new groups with thousands in their ranks.
+Although they have assumed distinct organizational frameworks, many of
+these groups are associated to powerful local or regional economic and
+political interests, and continue the violent legacy of the
+paramilitaries, including narcotics trafficking and targeted
+assassinations. Groups such as the ``Aguilas Negras'' (Black Eagles)
+are responsible for some of the death threats leveled against trade
+unionists in 2007-08. This year, the Aguilas Negras have issued death
+threats against members of SINALTRAINAL, the trade union representing
+food and beverage workers in Colombia, and members and leaders of the
+Union Sindical Obrera (USO), which represents workers in the oil
+industry. The Aguilas Negras also issued a gruesome warning to the
+organizations responsible for organizing the March 6 Peace March, some
+of which were in fact murdered shortly thereafter.\3\
+ Labor Law Reform
+ In response to years of intense domestic and international
+pressure, the government recently approved legislation that would
+reform the labor code with regard to the right to strike and on the
+administration of labor cooperatives. However, these new laws create
+new problems as they attempt to resolve old ones.
+ Strikes
+ Article 2 of Law 1210 of 2008 responds to one persistent ILO
+criticism by transferring the authority to determine the legality of a
+strike from the Ministry of Social Protection (MSP) to the Labor
+Chamber of the Superior District Court. The reason why this decision
+should lie with the courts, not the government, is that it is far less
+likely that a court will issue a decision based on political, rather
+than legal, grounds. However, the new law maintains a substantial role
+for the MSP. Under Article 4, the MSP can on its own initiative file a
+complaint with the court contesting the legality of the strike. Indeed,
+the MSP may file a complaint even if none of the parties, such as the
+employer, chooses to file a complaint. The fact that the MSP may
+unilaterally intervene in the judicial process may substantially limit
+the effectiveness of this legal reform.\4\
+ The government also approved a new law on compulsory arbitration,
+which partially addresses the ILO's concerns. Before, the MSP had the
+authority to suspend a strike and refer a dispute to mandatory
+arbitration when the strike exceeded 60 days. The ILO criticized
+compulsory arbitration because, in most cases, compulsory arbitration
+robs unions of their leverage in a labor conflict, as the employer can
+simply decide to wait out the strike knowing that the government will
+eventually bring it to and end. Article 1 of the Law 1210 provides
+that, sixty days after the initiation of a strike, the employer and
+union should spend three days trying to resolve their differences by
+whatever mechanism they choose. If the parties are unable to reach an
+agreement during this time, the government or a party can petition for
+the intervention of the sub-commission of the Wage and Labor Policies
+Commission. This sub-commission will attempt to mediate the conflict
+for up to five days. If there still is no resolution, then both parties
+together may request the establishment of an arbitration tribunal from
+the MSP. If the parties opt for arbitration, the workers are obligated
+to return to work within 3 days.
+ However, Article 1(2) now provides that the President may order the
+cessation of any strike that, ``with regard to its nature or magnitude,
+affects the health, security, public order or the economy, in whole or
+in part, of the population.'' This language very loosely tracks the
+ILO's ``essential service'' proviso, but differs in important ways. The
+ILO has held that strikes may be prohibited in essential services, with
+the term ``essential service'' meaning ``those services whose
+interruption would endanger the life, personal safety or health of the
+whole or part of the population.'' \5\ The ILO definition is different
+from Law 1210 in significant ways. First, a strike's impact on the
+``economy'' is not relevant under ILO jurisprudence. Indeed, if a
+strike could be prohibited merely because it affects the economy,
+almost no strike would ever be legal. An otherwise legal strike may
+also affect the ``public order,'' loosely defined. The term
+``security'' or ``public order'' may be legitimate only if those terms
+are read to be synonymous with ``personal safety.'' Second, the ILO
+requires that the interruption of a service ``endanger'' the life,
+personal safety or health of the population. The Colombian law provides
+that a strike need only ``affect'' health, security, public order or
+the economy, which is a far lower standard than ``endanger.''
+ Finally, these two reforms leave many of the obstacles with regard
+to the right to strike in place. For example, there is still a total
+prohibition on the calling of strikes by federations and
+confederations. The law also bans strikes in several sectors of the
+economy that are not properly considered ``essential services'' under
+international law, such as transportations, civil service, and the oil
+industry. Further, the law allows for the dismissal of union members
+that have participated in a strike in an industry that is not properly
+deemed an essential service under international law.
+ Cooperatives
+ In theory, a labor cooperative is a voluntary association of
+workers, is democratically self-managed and equitably distributes the
+gains realized by the economic activities of its members. However, it
+is quite the opposite for Colombian workers. Today, several hundred
+thousand workers are routinely exploited in management-created and/or
+dominated associated labor cooperatives in Colombia. One of the central
+problems associated with these cooperatives is that those who work for
+them are classified as ``associates'' rather than ``employees'' and
+thus excluded from the coverage of the nation's labor laws. This means
+that workers in cooperatives cannot form a union, bargain collectively
+or strike. It also means that maximum hour and overtime pay provision
+are not applied to them.
+ This situation has led to very low wages, few benefits, and,
+particularly in the rural sector, extreme forms of exploitation. This
+does not just affect low-skilled labor. Indeed, many health care
+professionals have been affected. As public hospitals and health
+centers were privatized in recent years, the successor private employer
+dismissed the workers and rehired them, non-union, through a
+cooperative or temporary service agency at much lower wages and for
+much longer hours.
+ The government recently issued a new law on labor cooperatives, Law
+1233, which, with few exceptions, largely restates many of the
+provisions found in Decree 4588 of 2006. Importantly, the new law does
+absolutely nothing to bring workers employed in these cooperatives
+under the coverage of the nation's labor laws--maintaining a permanent
+underclass of workers without access to the basic labor guarantees that
+are to be enjoyed by all workers. As the ILO Committee on Freedom of
+Association recently observed, ``workers associated in cooperatives
+should have the right to establish and join organizations of their own
+choosing.'' \6\
+ The new decree does require labor cooperatives to make
+contributions to three government benefits programs (National
+Apprenticeship Service--SENA, Colombian Institute for Family
+Wellbeing--ICBF, and the Family Equalization Fund) as well as the
+social security system, which covers health care and retirement. The
+decree also requires the labor cooperative to pay the monthly minimum
+wage for the class of work performed. In 2008, the monthly minimum wage
+in Colombia is 461,500 pesos, or roughly $265. If enforced, this
+provision does establish a floor on wages, albeit low, that did not
+previously exist. However, as the U.S. State Department has observed,
+``The national minimum wage did not provide sufficient income to
+purchase the basic market basket of goods for a family of four.'' \7\
+According to DANE, the cost of the basic basket of goods in 2008 is
+955,990 pesos, roughly double the minimum wage.
+ The decree does state that labor cooperatives are prohibited from
+``intermediation,'' meaning the hiring out of a cooperative associate
+to a third party like a temp worker. If this provision is violated, the
+decree provides that the third party and the cooperative are jointly
+responsible for any wages and benefits owed to the worker. This
+prohibition is nothing new and is essentially a restatement of a
+largely un-enforced provision of Decree 4588 of 2006. The new law also
+does not prohibit third-party contracting altogether. Like Decree 4588,
+the law allows for cooperatives to engage in third-party contracting to
+produce goods and services, so long as the purpose is to produce or
+perform a specific object or task.
+ It is almost certain that employers will continue to use these
+cooperatives as a means to evade the formation of unions, collective
+bargaining, and other such responsibilities they would normally face if
+the workers employed in cooperatives were simply treated as workers.
+Indeed, one of the largest labor conflicts with regard to cooperative
+workers occurred after this new law was issued.
+ Roughly 20,000 people work in Colombia's lucrative sugar industry--
+planting, harvesting and processing sugarcane. Most of these workers
+have been hired through associated labor cooperatives. In the sugar
+industry, workers often perform this backbreaking work in excess of
+seventy hours a week and, for this, do not even receive the minimum
+wage. Further, without adequate protective equipment, or no equipment
+in many cases, workers sustain serious occupational injuries, some of
+which are disabling. On August 25, 2008, thousands of sugarcane workers
+held an assembly in Candelaria, Valle, where they then authorized a
+``strike'' over the failure of the owners of the sugar industry to
+negotiate with the workers over a list of basic demands submitted on
+July 14, 2008. The strike began on September 15, 2008, as the employers
+had completely refused to negotiate.
+ In response, the sugar mills were largely militarized and several
+workers had been threatened with death or have received threatening
+calls since the strike began. Other workers have been fired simply for
+holding meetings with fellow workers. Rather than trying to mediate the
+conflict, Minister of Labor, Diego Palacio, has denounced the strike
+and accused the strikers of being manipulated by forces ``outside of
+the labor movement''--a very thinly veiled reference to the guerillas.
+ Due to intense international pressure, the sugar mill owners
+finally capitulated and accepted some of the workers demands. The union
+won an average 15% wage increase, a limitation on the working day of 8
+hours plus a maximum of two hours overtime (replacing the 12-14 hours
+previously worked daily), employer contributions to sick pay, and
+employer commitments to housing, education and social security for
+workers and their families. Stricter controls are to be placed on the
+weighing of harvested cane, a procedure through which workers have in
+the past been routinely robbed. However, the union was not able to win
+direct employment contracts to replace the system of cooperatives that
+has allowed the mill owners to evade responsibility for collective
+bargaining and health and retirement benefits.
+ Finally, these reforms in no way address all of the concerns raised
+by the ILO. First, the application of the labor law is limited to less
+than three million people, of a working population of nearly nineteen
+million. As most workers do not have a direct contract of employment,
+they are deemed outside the scope of the law. Colombian labor law also
+continues to present serious obstacles to the full exercise of the
+right to freely associate, to bargain collectively and to strike.\8\
+The refusal to register new unions, described below, was also a serious
+issue. These factors explain in part why only 4 out of 100 workers are
+in unions today, and why far fewer are covered by a collective
+barraging agreement.
+ Denial of Union Registration
+ The ILO has provided that a government may establish registration
+requirements that are solely a mere formality. If conditions for
+granting registration were tantamount to obtaining previous
+authorization from the authorities for the establishment of a union,
+this would constitute an infringement of ILO Convention 87.\9\ In
+Colombia, the government has in fact applied the regulations to
+arbitrarily deny unions their registration. According to ENS, 253 new
+union organizations were denied registration by the Ministry of the
+Social Protection between 2002 and 2007. It is important to note that
+the denial of union registration skyrocketed under the current
+administration. In 2000-2002, only four union registrations had been
+denied. In 2003 alone, the first full year of the Uribe Administration,
+the number soared to 70.
+ The ILO has taken note. In June 2008, the Committee on the
+Application of Standards ``called upon [Colombia] to ensure that all
+workers, including those in the public service, may form and join the
+organization of their own choosing, without previous authorization, in
+accordance with the Convention. In this regard, the Committee called
+upon the Government not to use discretionary authority to deny trade
+union registration.'' \10\
+ Recently, the Colombian Supreme Court issued a series of rulings in
+late-2008 which divested the Ministry of Social Protection of the
+ability to deny registration to new unions, changes in union statutes,
+or new boards of directors. However, new regulations putting into
+effect this ruling have yet to be issued. And, it remains to be seen
+what will be done in all of those cases over the last several years
+where workers were illegally denied the right to form a union.
+ The ILO ``Blacklist''
+ The GOC has repeatedly asserted that the ILO has given it a clean,
+or at least cleaner, bill of health, because Colombia was not included
+on a non-existent ILO ``blacklist.'' In fact, Colombia continues to be
+subject to the scrutiny of the ILO system because its violations of
+Convention 87 and 98 are so egregious. Indeed, Colombia continues to be
+under the review of the ILO Committee on Freedom of Association, the
+ILO Committee of Experts, and, the ILO Conference Committee on the
+Application of International Labor Standards.
+ There is simply no ILO ``blacklist.'' Governments are invited to
+appear before the Committee on Standards to address the concerns raised
+in the annual report of the Committee of Experts, based on an agreed-to
+list between the Employers and Workers Groups. Although the Employers
+Group unjustifiably vetoed the Workers Group demand to include Colombia
+on the list of governments for review during the June 2008 session,
+Colombia agreed to appear before the Committee. During that session,
+the Committee on Standards found that the sharp increase in trade union
+murders in 2008 was particularly disturbing and signified a major
+problem with respect to ending impunity. Moreover, the Committee
+unequivocally concluded that the proposed changes in the labor law were
+inadequate in reversing the effective violations of freedom of
+association and collective bargaining rights due to the creation of
+cooperatives, the use of temporary employees, and other legal ruses.
+ The GOC's assertion that it has been removed from an ILO blacklist
+due to its voluntary agreement to appear before the Committee on the
+Application of International Labor Standards at the ILO conference in
+Geneva in June of 2008 is a distortion of fact and of ILO reality.
+ Para-Politics Scandal Widens, Calling into Question
+ Legitimacy of Colombian Congress
+ Today, over 60 members of Congress, roughly 20%, have come under
+criminal investigation for collaborating with paramilitaries. More than
+30 of them are already under arrest. Nearly all of these individuals
+are members of President Uribe's inner circle. This circle includes his
+cousin and ally, Senator Mario Uribe, who recently attempted to evade
+arrest by unsuccessfully seeking refuge in the Embassy of Costa Rica in
+Bogota. President Uribe has attempted to take credit for the
+housecleaning, and has invoked the recent arrests as an example of his
+administration's adherence to the rule of law. However, the
+investigations would most likely not have happened but for the efforts
+of the independent Supreme Court. Indeed, President Uribe's proposal to
+let all of the implicated politicians avoid prison contradicts this
+assertion. Most recently, President Uribe blocked a bill that would bar
+political parties linked to paramilitaries from holding onto the seats
+of those members who are convicted of paramilitary collaboration. If
+the bill were implemented, President Uribe would lose his majority in
+Congress.
+ Without questions, the government's direct ties with the
+paramilitaries preclude it from being able to effectively end impunity
+from trade union violence and to pass the necessary reforms in Congress
+to assure compliance with core labor standards.
+ endnotes
+ \1\ The Fiscalia General de la Nacion (Office of the Attorney
+General of Colombia), registered 42 murdered unionists in 41 cases in
+2008, up from 27 murdered trade unionists in 26 cases. This is a 50%
+increase according to the government.
+ \2\ As stated in the report of the Fiscalia General dated January
+20, 2009.
+ \3\ The threat, which bore the image of a human skull with black
+wings, warned: ``Death to the leaders of the March for Peace and
+guerillas and supporters who disguise themselves as displaced persons
+but are guerillas and for this we declare them military objectives of
+the Black Eagles and also such NGOS, associations and foundations * * *
+You used the march of March 6 this year to diminish us further and to
+put the people against us, we will start to kill you one by one, we are
+going to be implacable. We will not leave any loose ends.''
+ \4\ In the U.S., for example, an employer may file a charge with
+the NLRB to seek a determination as to whether the strike constitutes
+an unfair labor practice. In some cases, an employer may also seek an
+injunction with a court. However, the government has no independent
+right to file a complaint concerning the legality of a strike.
+ \5\ ILO Committee on Freedom of Association (CFA), Digest of
+Decisions 2006 para. 576.
+ \6\ CFA Digest of Decisions 2006 para. 262.
+ \7\ U.S. State Department, Human Rights Country Practice Report
+(Colombia), March 11, 2008.
+ \8\ For a list of those concerns, see pp. 12-15 of Workers' Rights,
+Violence and Impunity in Colombia, available online at www.aflcio.org/
+issues/jobseconomy/globaleconomy/upload/colombia--briefing.pdf.
+ \9\ See, e.g., Digest para. 294.
+ \10\ See also, ILO CEACR, Individual Observation Concerning Freedom
+of Association and Protection of the Right to Organize Convention No.
+87, Colombia (2008).
+ ______
+
+[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
+
+ ------
+
+ U.S. Congress,
+ Washington, DC, September 12, 2008.
+President Alvaro Uribe Velez,
+Presidency of the Republic of Colombia, Bogota, Colombia.
+ Dear President Uribe: I was very pleased to learn that you will
+travel to Washington, D.C. next week to meet with Congressional
+leaders, and I look forward to discussing our mutual concern over the
+historical and ongoing violence against Colombians who are labor
+leaders, labor organizers, or simply members of labor unions. As you
+know, I traveled to your beautiful country earlier this year and met
+with your Vice President and Attorney General, as well as various
+leaders from Colombian labor unions, human rights organizations, and
+the specialized labor judges that handle the significant backlog of
+labor-homicide cases. I am sorry that your travel schedule and mine
+prevented us from meeting last January during my stay in Bogota, but I
+look forward to meeting with you and welcoming you to the United
+States.
+ Since I visited your country, I have written two letters to the
+Colombian government and sent my Committee staff on a return trip to
+Colombia to further investigate various labor issues, including the
+still-unexplained decision to remove Judge Jose Nirio Sanchez from his
+position as a specialized labor judge. I agree with the assessment of
+many Colombian observers--including your own Vice President Francisco
+Santos--that Sanchez was an excellent judge who was diligently working
+on Colombia's enormous backlog of labor-homicide cases. Nevertheless,
+in January 2008, the Consejo Superior de la Judicatura decided by a
+contentious split vote of 12 to 11 to remove Judge Sanchez from his
+position in the middle of open criminal cases pending before him.
+Unfortunately, I do not think we will ever know whether Sanchez was
+removed in retaliation for his politically-sensitive legal rulings that
+convicted high-profile defendants such as the violent right-wing
+paramilitary leader Salvatore Mancuso, several soldiers from the
+Colombian Army, and implicated the multinational Nestle Corporation in
+anti-labor killings. Because we may never know why Judge Sanchez was
+removed from his position on the bench, I believe it is now time to
+look forward. Our two ally nations should work together to help
+Colombia improve its labor laws, decrease the ongoing violence, and
+finally put an end to the impunity enjoyed by those who have
+perpetrated thousands of anti-labor killings.
+ These challenges have taken on heightened significance this year as
+the violence in Colombia has escalated. Even according to the
+statistics kept by the Government of Colombia, 2008 has already been a
+more violent year than all of 2007 in terms of labor-homicides. During
+only the first eight months of this year, the assassins have made more
+threats, caused more bloodshed, and taken more lives of labor leaders
+than they did in all twelve months of last year. Given this troubling
+context, I would like to discuss with you the urgent need for:
+ 1) an effective, sustainable, and transparent Colombian system of
+justice to protect the rights of working people and vindicate the lives
+of the victims of anti-labor violence;
+ 2) further investigation and prosecution of the intellectual
+authors who planned the attacks and killings of labor union leaders in
+Colombia; and
+ 3) additional reforms to bring Colombian labor laws up to the
+minimum core labor standards set by the International Labor
+Organization (ILO) and cited by both the U.S. State Department and U.S.
+Department of Labor.
+ Indeed, the Democratic Majority in our Congress already recognized
+these exact challenges in Colombia by appropriating millions of dollars
+last year to help Colombia further develop the rule of law, prosecute
+human rights cases, and improve labor conditions. My colleagues in the
+Congress and I are quite proud that last year we improved on Plan
+Colombia by appropriating more funds to help Colombia address its very
+serious problems related to the issues of the ongoing anti-labor
+violence and weak labor standards. As you know, the ILO has issued
+repeated proclamations--as recently as June 2008--expressing serious
+concern over various deficiencies in Colombian labor law.
+ Thus, many members of our Congress are currently very disappointed
+that the Bush Administration has not yet even transferred to the
+Colombian Attorney General's Office the funds that we appropriated last
+year. If the Bush Administration had not created these inexplicable
+delays, the Government of Colombia could have already hired even more
+investigators and prosecutors, and Colombia might by now be several
+steps closer to creating an effective and sustainable system of justice
+to address the grave problem of anti-labor violence. However, I am
+hopeful that the next Administration will work more closely with the
+Government of Colombia to bring about improvements in Colombian labor
+laws and human rights, increased trade, and an even stronger
+relationship between our two ally nations.
+ In the meantime, I believe the United States Congress must continue
+to examine these issues and search for solutions. Indeed, one advantage
+stemming from our Congress' decision to postpone the vote regarding the
+proposed Colombia Free Trade Agreement is that it has given my
+colleagues and me additional time needed to assess whether or not
+Colombia has in fact created an effective and sustainable system of
+justice to combat anti-labor violence. In my capacity as Chairman of
+the Committee on Education and Labor, my staff and I have taken
+advantage of that time by meeting regularly with Colombian human rights
+advocates and many Colombian government officials. I hope that this
+ongoing fact-finding work will allow Congress to provide helpful
+recommendations to the next Administration in the United States over
+how we can further strengthen our nation's relationship with Colombia
+in such a way that promotes increased trade and higher labor standards.
+As a first step in this process, please consider the following concerns
+about labor rights in Colombia.
+I. The Need for an Effective, Sustainable, and Transparent System of
+ Justice That Will Protect the Rights of Working People and
+ Vindicate the Lives of Slain Labor Union Leaders in Colombia
+ According to the Escuela Nacional Sindical (ENS), almost 2,700
+Colombian union leaders or union members have been murdered since 1986.
+The overwhelming majority of these killings remain uninvestigated and
+un-prosecuted by the Colombian Attorney General's Office. Moreover, at
+Colombia's current and disappointing pace of investigations and
+indictments, it would take the Attorney General's Office several
+decades to get through its entire backlog.
+ In the past months, various Colombian human rights attorneys have
+conveyed to me and my Committee staff the serious problems that still
+hinder Colombia's judicial system for addressing anti-labor killings. I
+have not created an exhaustive list, but I do respectfully ask that you
+please consider addressing the following problems so that Colombia's
+judicial system becomes more effective, sustainable, and transparent.
+ A) The temporary nature of the specialized labor judges.
+ Colombian Vice President Santos wrote to me on March 28, 2008,
+reporting that the Executive Branch had approved the budget for the
+Judicial Branch to create three permanent specialized courts to
+adjudicate the criminal cases stemming from anti-union homicides.
+However, in June and July 2008, the Colombian Judicial Branch approved
+two new decrees that still do not actually accomplish this goal. The
+first decree created three new permanent judicial positions, but
+without any mention of what type of cases those judges will hear. See
+Agreement No. 4924 (dated June 25, 2008). The second decree assigned
+those three permanent judges to exclusively hear labor-homicide cases,
+but only for a one-year period. See Agreement No. 4959 (dated July 11,
+2008). Thus, when read together, these two decrees clearly demonstrate
+that the three specialized judges' assignments to hear labor-homicide
+cases will expire yet again in July 2009.
+ The Colombian Judicial Branch has already once allowed the
+expiration of the mandate of these three judges to cause disruptions in
+ongoing legal proceedings. As you will remember, these three judicial
+positions were allowed to expire for the first time on December 31,
+2007. By the time I met with the three judges in Bogota on January 12,
+2008, they had been out of work for almost two weeks, had been forced
+to cancel January hearings for pending criminal trials, and they did
+not even know whether they would be allowed to ever return to work on
+the labor-homicide cases. Two of the three judges were eventually
+reinstated, and I understand that many of the January hearings were
+eventually rescheduled for the following month. Nevertheless, the
+expiration of these three judicial positions caused unnecessary
+disruption and delay, and I imagine we can both agree that the repeat
+of such a scenario should be avoided if at all possible.
+ Thus, I am reassured that some members of the Uribe Administration
+have recently expressed concern about the still-temporary nature of the
+position of the specialized labor judges. On August 23, 2008, the
+Colombian Ministry of Social Protection wrote informally to the
+Colombian Judicial Branch to inquire whether further changes would be
+made so that the three judicial slots would be guaranteed for labor-
+homicide cases not just through July 2009, but rather until the entire
+backlog of such cases has been fully adjudicated. (My Committee staff
+has a copy of the written inquiry on file). I ask that you please
+inform me of any response that the Ministry of Social Protection
+receives regarding its inquiry to the Judicial Branch. In addition, I
+would like to discuss with you whether the Government of Colombia will
+pledge publicly to continue the mandate for these three judicial slots
+to handle labor-homicide cases beyond July 2009 and until the entire
+backlog of labor-homicide cases has been completed.
+ B) The fact that the written judicial opinions in labor-homicide
+cases are not easily accessible by the relatives of victims, human
+rights attorneys, or the public.
+ When my Committee staff traveled to Colombia last month, we
+requested a copy of each of the 123 written judicial opinions
+corresponding to the 100 labor-homicide cases that have been
+adjudicated thus far. (Some murder cases result in more than one
+written sentence because the case may have multiple defendants).
+However, the Attorney General's Office told my Committee staff that it
+would be exceedingly difficult to provide a copy of all 123 of the
+written opinions because they are not stored by the Colombian
+government in one central location, but rather scattered throughout
+many government buildings in several different cities. The Attorney
+General's Office also explained that some of the 123 sentences may have
+gone missing due to bureaucratic complexities, and that in general, the
+Colombian government does not have sufficient resources to find and
+keep a central inventory of the written judicial opinions.
+ My Committee staff also made the same request to the head
+administrator of the Consejo Superior de la Judicatura, who seemed
+slightly more optimistic that it might be possible to eventually
+provide a copy of each of the 123 written opinions. However, we are
+still waiting for the Judicial Branch to respond definitively.
+ I imagine that you and I both agree on the importance of allowing
+the sons and daughters or spouses of slain labor leaders to easily
+access and read the judicial opinion that either convicts or acquits
+the person accused of killing their deceased family member. For those
+Colombians who have lost a loved-one to such senseless violence, the
+judicial record of the case against the killer is one small part of
+achieving justice. In addition, these written judicial opinions serve
+as important learning tools for human rights attorneys who plan on
+litigating similar labor rights cases in the future. While the
+decisions do not create binding legal precedent because they are issued
+by trial court judges rather than the Colombian Supreme Court, those
+written opinions nevertheless create a written record of an important
+and concerning part of Colombia's history. For all of those reasons,
+Colombian human rights attorneys have asked my help in persuading the
+Government of Colombia to make public and easily accessible all of the
+written judicial opinions, including all new decisions that are issued
+going forward.
+ Therefore, I would like to discuss with you whether the U.S.
+Congress should consider appropriating funds to help Colombia
+centralize and make public these judicial opinions as part of the next
+set of appropriations for Plan Colombia. As you know, under the
+leadership of Chairman David Obey and Chairwoman Nita Lowey of the
+Committee on Appropriations, last year the Democratic Majority improved
+on Plan Colombia by allocating greater amounts of funds dedicated to
+Colombia's efforts to develop the rule of law and improve labor
+conditions. It strikes me that any efforts to make public the judicial
+opinions in Colombian labor-homicide cases falls squarely within that
+goal of promoting the rule of law. In fact, the federal trial courts in
+the United States often publish their written judicial opinions on the
+internet within hours of the judge's final decision. Thus, I am
+interested in helping Colombia create such an internet-based system
+that will allow the Colombian public--and the families of victims in
+particular--to acquire easier access to the written judicial opinions
+in labor-homicide cases.
+ C) The secrecy by the Attorney General's Office as to the contents
+of its full backlog list of labor-homicide cases yet to be investigated
+and adjudicated.
+ According to the Colombian Attorney General's Office, approximately
+1,300 union leaders or union members have been murdered or faced
+serious acts of violence in Colombia since the mid-1980's. However,
+this figure is only half the number of the approximately 2,700 murders
+for the same time period as chronicled by the Escuela Nacional Sindical
+(ENS). The ENS is Colombia's leading non-profit labor think-tank, and
+it has been cited by the U.S. State Department in its human rights
+reports related to labor violence. I am concerned that we cannot begin
+to compare and reconcile the names on the two lists because the
+Colombian Attorney General's Office refuses to release its list of
+names. Indeed, it will be impossible to know the true scope of the
+killings, and thus the scope of the work that lies ahead, until this is
+done. Recently, the leading Colombian labor union federations submitted
+a petition to the ILO complaining over the fact that the Colombian
+government refuses to share this information with them. To the
+contrary, the ENS has proven willing to subject itself to transparency
+and public scrutiny, having published and shared its complete list of
+approximately 2,700 union killings with the Colombian government, labor
+unions, human rights attorneys, and even my Committee staff. I
+therefore respectfully encourage the Office of the Attorney General to
+make this information available as soon as practicable.
+ D) The ongoing inaccuracies in the Attorney General's published
+statistics about the defendants' motives in completed judicial
+decisions in labor-homicide cases.
+ Colombian human rights advocates have expressed their concern that
+the Attorney General's Office may be publishing inaccurate summaries
+about the judicial determinations of the motives of the killers in
+labor-homicide cases. These summaries are created by the Attorney
+General's Office once per month, and they tally how many fully-
+adjudicated cases to date were found by the judge to have had various
+different possible motives. For example, a judge may find that the
+assassin's motive for killing the union leader was the deceased's pro-
+union activity. In the alternative, the judge may find that the motive
+of the assassin who murdered the union leader was not the deceased's
+union-activity, but rather any number of other motives such as
+``personal issues'' or ``political activity.'' In order to create these
+documents, the prosecutors in the Attorney General's Office read each
+judicial opinion, decide what the prosecutors believe was the ruling of
+the judge, and then add up the number of cases that fall into each
+category. For example, the Attorney General's summary for July 2008
+states that 21 murders had ``union activity'' as the motive, as
+compared to 8 cases with ``personal problems'' and 1 case with
+``political activity'' as the motive.
+ The problem with these summaries, however, is that the statistics
+seem to fluctuate dramatically and illogically from month to month. For
+example, when I traveled to Colombia in early January 2008, the
+Attorney General's Office gave me the summary for December 2007, which
+claimed that as of that time the judges had found the ``personal
+problems'' motive in 10 total cases since the prosecutions began.
+However, as I just noted above, the July 2008 summary claims that there
+now are only 8 total cases in which ``personal problems'' was the
+motive. It is simply illogical that as the total number of judicial
+decisions has increased from last December to this July, that somehow
+the number of those cases in which the motive was found by a judge to
+be ``personal problems'' has somehow decreased. This irregularity leads
+me to believe that either the prior statistics were inaccurate, or in
+the alternative, the current statistics are the problem.
+ Unfortunately, because the Attorney General's Office does not place
+footnotes in these summary documents in order to explain which specific
+cases it considers to fall into each category, the public cannot verify
+the claims made in those summaries. I hope that in the future the
+Attorney General's Office will exhibit more precision when creating the
+summaries it distributes to members of the U.S. Congress and the
+public.
+ Finally, I want to note how much personal anguish the
+misclassification of the motive in a labor-homicide case can cause to
+the families of the victims of that violence. Please consider the
+example of Colombian labor leader Jorge Dario Hoyos Franco, who was
+tragically gunned-down by two assassins in the year 2001. When the
+Attorney General's Office began to investigate the case, the
+prosecutors' original theory was that the defendant--a Colombian Police
+Officer named Monroy--had wanted to kill Hoyos Franco as a ``crime of
+passion'' due to an alleged adulterous affair in which Hoyos was
+supposedly engaged. However, after this case went to trial in 2007,
+Judge Jose Nirio Sanchez rejected this original theory, finding that it
+had ``fallen by its own weight'' because the woman in question
+testified under oath that she did not even know Hoyos Franco. (Criminal
+Sentence against defendant Carlos Alberto Monroy, dated Aug. 14, 2007.)
+Therefore, Judge Sanchez ruled that the evidence in the case:
+demonstrates that the motive of the HOYOS FRANCO murder was not about a
+love affair, as was the focus of the investigation in the beginning,
+but rather [as demonstrated] by the statement made by the defendant
+[Monroy] to the previously mentioned illegal armed organization [known
+as the AUC], which during that time * * * drew up a list of union,
+civic, popular and communal leaders that in their estimation were
+military targets * * * [and because the] activities [in favor of labor
+unions by] the murder victim [Hoyos Franco] had [been] undertaken for
+several years and for that precise reason he was killed.
+ (Id.) This binding legal decision by a Colombian judge should have
+definitively settled the matter of the motive behind the killing of
+Jorge Dario Hoyos Franco. However, more than three months after the
+judicial opinion, the Attorney General's Office released a November
+2007 document that still listed the Hoyos Franco case as one with the
+``personal problems'' motive. (This document is on file with my
+Committee staff.) I am told that the young daughters and widow of the
+deceased union leader were pained that their own government continued
+to publicize the lie that their father and husband had allegedly
+committed an adulterous affair even after that theory had been
+discredited in a Colombian court of law. I understand that the family
+repeatedly petitioned the Attorney General's Office to revise the
+document and accurately classify the case, but that change was
+apparently not made until only recently.
+ E) The fact that the Attorney General's Office has not publicly
+committed to a work-plan for completing the entire backlog of the
+thousands of labor-homicide cases.
+ The Colombian Office of the Attorney General has made some modest
+progress in the last year in securing convictions in labor-homicide
+cases, especially compared to the situation only a few years ago when
+there were hundreds of labor-homicides per year and virtually no
+convictions whatsoever. As I understand it, there are now convictions
+in 100 labor-murder cases, and a corresponding 123 judicial sentences
+because some of those 100 cases have more than one defendant. Thus, if
+one takes the Attorney General's statistics of approximately 1,300
+total cases, then Colombia has secured convictions in only 7.6% of
+cases. If one takes the ENS statistics of approximately 2,700 murders,
+then Colombia has secured convictions in only 3.7 % of cases. In either
+event, the modest progress of the past year still leaves a highly
+troubling level of impunity for the perpetrators of these killings.
+Well over 90% of the murderers have escaped justice.
+ The Bush Administration has done far too little to help Colombia
+improve its labor laws and combat anti-labor violence. In fact, it was
+not until the leadership of the Democratic Majority that last year our
+Congress significantly increased the funds in Plan Colombia that are
+dedicated specifically to fostering the rule of law and prosecuting
+human rights cases. Almost nine months have passed, and disappointingly
+the Bush Administration has still not actually transferred those funds
+to the Colombian Attorney General's Office. I cannot think of a
+plausible reason for this delay, but I do wonder whether the Colombian
+Attorney General's Office might have investigated and brought more
+killers to justice if the Bush Administration had only exercised
+greater diligence and concern for these important labor issues. I hope
+that the next Administration will work much more closely with the
+Government of Colombia to help implement a plan that will eventually
+investigate, prosecute, and adjudicate every last remaining labor-
+homicide case. The family members of the slain union leaders deserve
+nothing less.
+ As I noted above, at Colombia's current pace of investigations and
+indictments, it would take the Attorney General's Office several
+decades to get through its backlog. Therefore, I urge the Government of
+Colombia--and the Attorney General's Office in particular--to publicly
+commit to a plan that will dramatically improve the pace of
+investigations and indictments, and thus assure members of the U.S.
+Congress that Colombia will achieve the goal of prosecuting every
+murder on the entire backlog list of labor-homicide cases.
+II. The Need for Further Investigation and Prosecution of the
+ Intellectual Authors Who Planned the Attacks and Killings of
+ Labor Union Leaders in Colombia
+ Of the modest number of convictions that the Attorney General's
+Office has begun to win in the past few years, the vast majority of the
+cases have been against the ``material authors'' of the crimes (i.e.
+the man who pulled the trigger of the gun, or the man who stabbed the
+union leader to death with a machete). Such convictions are, of course,
+extremely important. I commend the Attorney General's Office for
+creating a special unit for prosecuting these labor cases, and I am
+hopeful that these specialized prosecutors will eventually bring
+indictments in the large number of murder cases that remain
+uninvestigated.
+ However, impunity will persist unless the Government of Colombia
+does more to investigate and prosecute the ``intellectual authors'' who
+ordered, planned, or paid for the low-level assassin to perpetrate the
+killing. For example, serious allegations have been leveled against a
+cabinet-level official in the Uribe Administration, high-level military
+officers in the Colombian Army, top right-wing paramilitary leaders,
+and even some multinational corporations. In some of these cases, the
+Colombian specialized labor judges have issued Court Orders requiring
+the Attorney General's Office to investigate such alleged intellectual
+authors. But to this date, very few such investigations and
+prosecutions have gone forward. Therefore, I want to mention three
+emblematic cases in which the Colombian government's efforts to
+investigate, prosecute, or imprison the alleged intellectual author of
+the anti-union homicides have thus far failed.
+ A) Jorge Noguera of the Uribe Administration.
+ As you know, Colombia's former intelligence chief--Jorge Noguera--
+was arrested in February 2007 and indicted for helping violent right-
+wing paramilitaries to infiltrate the highest levels of the Colombian
+government. Mr. Noguera--who reported directly to the President as the
+director of the DAS (``Departamento Administrativo de Seguridad'')--
+allegedly facilitated Colombian government cooperation with several
+paramilitary groups, particularly the ``Northern Block'' led by the
+violent narco-trafficker ``Jorge 40.'' Sadly, Noguera is not the only
+high-level Colombian government official caught up in this ``Para-
+Politics Scandal.'' Indeed, the Colombian Supreme Court has recently
+indicted almost 30 members of the Colombian Congress for colluding with
+the right-wing ``AUC'' paramilitary organization, which the U.S. State
+Department has officially classified as a Foreign Terrorist
+Organization. The Colombian Supreme Court has also launched formal
+investigations into another 30 members of the Colombian Congress. In
+response, the Uribe Administration has recently proposed stripping the
+Supreme Court of its long-standing jurisdiction on this matter, which
+would quash any further investigations.
+ I raise this complicated and troubling issue because the
+allegations against Noguera are directly related to the labor issues
+that constitute the focus of this letter. Specifically, Noguera is
+accused of compiling lists of the union leaders under government
+protection and then giving those lists to the paramilitaries so the
+union leaders could be targeted for death. Several of those very union
+leaders were reportedly threatened or killed. If the Colombian Attorney
+General eventually proves this allegation in court, the Noguera case
+will constitute perhaps the most dramatic of several examples of direct
+Colombian government participation in anti-labor violence and killings.
+ Unfortunately, more than eighteen months have passed since the
+original indictment was filed in February 2007, and the case against
+Noguera has completely stalled due to procedural mistakes made by the
+Attorney General's Office. The Colombian Supreme Court has found that
+the evidence and allegations against Noguera are legally valid, but the
+Court has rejected the case for procedural reasons on two consecutive
+occasions. As a result of these ongoing prosecutorial mistakes, Noguera
+was released from prison in June 2008 and he currently remains at
+large. I understand that the Attorney General is now preparing to re-
+file his case.
+ Several Colombian human rights attorneys have expressed their
+concern to me and my Committee staff that the continual procedural
+defects and corresponding delays are not typical. Thus, these Colombian
+observers worry that the politically-connected Noguera will ultimately
+go free without even facing a trial. Therefore, I would like to discuss
+this case with you when we meet. In particular, I would like to hear
+your thoughts about whether your Attorney General's Office will ever
+bring the Noguera case to trial.
+ B) The murder of labor leader Luciano Enrique Romero Molina, and
+the Colombian Court Order to investigate the Nestle Corporation.
+ In late 2007, Judge Jose Nirio Sanchez issued a 110-page legal
+ruling in a case stemming from the brutal murder of a Colombian labor
+leader named Luciano Enrique Romero Molina. As Judge Sanchez explained
+in his decision, in late 2005--months after passage of the ``Justice
+and Peace'' Law--Molina was scheduled to testify before an
+international human rights tribunal in Switzerland regarding the labor
+conditions at a Colombian factory of the multinational Nestle
+Corporation. However, just weeks before his scheduled testimony, Molina
+was abducted and tortured by paramilitaries. When Molina refused to
+give them information about his complaints against the Nestle
+Corporation, the paramilitaries stabbed him to death with more than
+fifty strikes of a machete.
+ Judge Sanchez convicted the individual defendant who was directly
+responsible for the killing, but significantly, he also ordered an
+investigation into whether the Nestle Corporation was in any way
+responsible for ordering the killing. While courts outside of
+Colombia----such as the Inter-American Court for Justice and the
+federal courts in the United Status--have dealt with cases in which
+multinational corporations have been accused of playing a role in anti-
+union violence in Colombia, Judge Sanchez's ruling appears to be
+groundbreaking for the Colombian courts. According to human rights
+observers in Colombia, this was the first judicial decision since the
+backlog process began in which one of the three Colombian specialized
+labor judges called for an investigation of the possible role a
+multinational corporation in the assassination of a Colombian labor
+leader.
+ Last month, my Committee staff inquired about the status of this
+investigation while visiting the Attorney General's Office in Bogota.
+We were told that the prosecutor and investigator assigned to the
+Nestle case had not done anything whatsoever to advance the
+investigation because they did not feel there was sufficient evidence
+to warrant any further efforts. According to their own admission, the
+prosecutors in the Attorney General's Office have apparently decided
+not even to interview or take the depositions of the management of the
+Nestle workplace or of any of the deceased's former coworkers. I would
+like to discuss whether you believe the Attorney General's Office
+should abide by the Court Order of the now-displaced Judge Jose Nirio
+Sanchez and conduct an actual investigation into this serious matter.
+ C) The Colombian Police Officer who planned the assassination of
+labor leader Jorge Dario Hoyos Franco has been convicted in absentia,
+and therefore has not served a single day of his 40-year sentence.
+ As discussed in Section One of this letter, the well-known
+Colombian labor leader Jorge Dario Hoyos Franco was gunned-down by two
+young assassins who drove by him on a motorcycle late at night in March
+2001. Prior to his murder, Hoyos Franco had been receiving regular
+death threats related to his union leadership. He had even faced
+several unsuccessful attempts to kidnap him. Within a few years of
+Hoyos Franco's murder, the Attorney General's Office had successfully
+convicted the two material authors who were paid to shoot him. However,
+the intellectual authors of this crime still remain at large to this
+day.
+ Several years after the first trial convicting the two young
+assassins, the Attorney General's Office began to investigate one of
+the alleged intellectual authors. The investigation focused on a man
+named Carlos Alberto Monroy, who had served as a Colombian Police
+Officer at the time of Hoyos Franco's assassination. The Attorney
+General's Office decided to prosecute Monroy in absentia, as is allowed
+pursuant to Colombian law. Judge Jose Nirio Sanchez presided over the
+trial and heard testimony that Officer Monroy had provided the
+assassins with their motorcycle and firearms, and that he had paid and
+directed the young men to perpetrate the murder. Judge Sanchez
+convicted Monroy and sentenced him to 40 years in prison. However,
+Monroy is still at large and has not served a single day of his prison
+sentence.
+ The family of Jorge Dario Hoyos Franco has urged the Attorney
+General's Office to find, capture, and incarcerate Monroy, but thus far
+these efforts have not proven successful. In addition, the family has
+urged the Attorney General's Office to continue investigating the
+additional alleged intellectual authors of this one assassination.
+Until those two things happen in this case, impunity will persist.
+III. The Need to Reform Colombian Labor Laws to Reach the Minimum Core
+ Labor Standards Set by the International Labor Organization and
+ Cited by both the U.S. State Department and U.S. Department of
+ Labor
+ Before the U.S. Congress took up a vote on the Peru Free Trade
+Agreement last year, Peru undertook measures aimed at bringing its
+legal regime fully into compliance with the core international labor
+standards. In contrast, Colombia has still not completed such measures.
+Therefore, it is my sincere hope that the next Administration in the
+United States and the U.S. Congress will work cooperatively with the
+Government of Colombia to help further improve Colombian labor laws.
+ Indeed, this work is critical because the ILO, the U.S. State
+Department, the U.S. Department of Labor, and other international labor
+advocates have all identified a large number of areas in which
+Colombia's labor laws are non-compliant with the core international
+labor standards. I will not list all of them below, but I do want to
+mention at least some of the problematic areas of law that Colombian
+workers and labor advocates most often raised with me during my
+Committee trip to Bogota.
+ A) ``Workers' Cooperatives'' that create a legal fiction that
+misclassifies workers as ``self-employed'' and thus robs them of their
+right to join unions and bargain collectively.
+ When I was in Colombia earlier this year, I met with workers and
+labor advocates in numerous sectors of the economy--from the flower
+industry to manufacturing to health care--who told me that the legal
+arrangements called ``Cooperativas de Trabajo Asociado''--or ``Workers'
+Cooperatives''--were preventing them from exercising their fundamental
+labor rights. Under this controversial labor arrangement, an employer
+can hire a worker, but nevertheless deem that worker to be ``self-
+employed'' so that the worker loses the legal right to join a union or
+bargain collectively.
+ According to the most recent U.S. State Department Human Rights
+Report on Colombia, ``[t]he continued growth and prevalence of workers'
+cooperatives further diminished collective bargaining.'' (U.S. State
+Department Report, dated March 11, 2008.) In fact, the State Department
+acknowledged that many Colombian employers inappropriately utilize
+Worker's Cooperatives to create a legal fiction that harms workers:
+``Most cooperatives engaged in subcontracting, and in some cases,
+private sector employers forced workers to form cooperatives and were
+themselves managing the cooperatives' daily operations.'' (Id.)
+ In July 2008, the Colombian Congress passed a modest reform that
+changes some small aspects of these legal arrangements known as
+Workers' Cooperatives. For example, under the new law, Workers'
+Cooperatives can no longer operate without making tax payments to the
+government for national programs for social services. However, it
+remains unclear whether the recent legislation actually addresses the
+real problem raised by the ILO, the U.S. State Department, and other
+labor organizations.
+ In August 2008, Colombian labor law attorneys who represent the
+main Colombian labor federations submitted a legal petition regarding
+this and various other labor issues to the Committee of Experts at the
+ILO. According to the legal analysis of these attorneys, even after the
+recent reform, ``the Workers' Cooperatives that comply with this law
+will still be able to continue operating as tools to evade labor rights
+and prejudice the labor conditions of workers.'' (Legal observations
+submitted by the Colombian Commission of Jurists, dated Aug. 25, 2008.)
+As I understand it, the Committee of Experts of the ILO will now review
+the recent Colombian labor law reforms over the period of months
+spanning from this fall to next spring. The ILO Committee of Experts
+will then report its findings in June 2009 to the full ILO. I look
+forward to reading the ILO's findings.
+ I have also instructed the attorneys on my Committee staff to
+remain in contact with other legal experts--from the U.S. Government as
+well as various Colombian human rights groups--to continue gathering
+information regarding the issue of Workers' Cooperatives so that we can
+eventually determine whether the recent reform brings Colombia into
+compliance with internationally-recognized core labor standards. In
+addition, I look forward to reading the conclusions of the Committee on
+Ways and Means, which is performing a comprehensive review of
+Colombia's labor laws.
+ B) Even considering the one other new Colombian labor law regarding
+judicial determinations for strikes, the recent reforms still leave
+unchanged entire areas of Colombian labor law that have been criticized
+by the ILO, the U.S. State Department, and other labor organizations.
+ The Colombian Congress also recently passed a second labor law
+reform that moves the power to declare the legality or illegality of a
+strike from the Executive Branch to the Judicial Branch. Colombian
+labor attorneys have told my Committee staff that this one reform
+constitutes a step forward. However, much work remains. There are
+additional entire areas of law where Colombia has been criticized by
+the ILO and U.S. State Department, but Colombia still has not passed
+any labor law reforms whatsoever in those additional areas.
+ These remaining issues range from Colombia's overly broad list of
+``essential public services'' to the problematic labor arrangements
+called ``Pactos Colectivos.''
+ In fact, my Committee staff has learned from employees of the U.S.
+State Department that the Colombian Ministry of Social Protection
+recently asked the U.S. Agency for International Development (U.S. AID)
+to conduct a comprehensive study related to the additional improvements
+that Colombia could make to comply with the internationally recognized
+core labor standards. I understand this request to be--at least
+implicitly--an admission by the Colombian government that even after
+the two most recent labor law reforms, Colombian law remains non-
+compliant with internationally recognized core labor standards. I am
+hopeful that the Government of Colombia's request for this study
+signifies that Colombia is willing to eventually make the additional
+needed changes to bring its labor laws into compliance with
+international standards. I wish the Bush Administration would have
+begun the negotiations on these labor law reform issues years ago, and
+as stated above, I hope the next Administration in the United States
+will take these issues more seriously.
+ C) Colombian legal procedures for union registration still have
+vague and subjective standards that lead to improper denials and delays
+in the recognition of labor unions.
+ When I was in Colombia in January, I traveled outside of Bogota to
+a small town called Facatativa, which is in the flower-producing region
+of the country. There I met with a group of Colombian workers who had
+been struggling to organize a union at the flower farm where they work
+so that they could improve their wages and working conditions. However,
+these workers had been waiting many months for the Ministry of Social
+Protection to merely register their union, whereas that process should
+only take a number of days. I have since learned that the delays
+experienced by these particular workers--unfortunately--are far too
+common in Colombia.
+ In fact, the ILO has issued repeated proclamations expressing
+serious concern that Colombian workers have been improperly prevented
+from forming and joining labor unions because of the Ministry of Social
+Protection's mandatory prior registration requirements that give undue
+discretion to the Ministry's bureaucrats in charge of granting union
+recognition. For example, the ILO Committee of Experts released a 2008
+report on the application of ILO Convention 87 in Colombia and noted:
+``[t]he arbitrary refusal to register new trade union organizations,
+new trade union rules or the executive committee of a trade union at
+the discretion of the authorities for reasons that go beyond the
+express provision of the legislation.'' In addition, the ILO's concerns
+over arbitrary denials of union registration in Colombia have also been
+cited in a recent report by the U.S. Department of Labor. (2008 U.S.
+DOL Bureau of International Labor Affairs Report on Colombia, at 11).
+The representatives of the ILO Office in Bogota have told my Committee
+staff that the Government of Colombia could address this serious
+problem if it would only re-write its labor laws to replace the vague
+and subjective standards for union registration with more objective
+concrete rules. The ILO has also suggested that the Colombian
+government could better train the Ministry of Social Protection
+bureaucrats charged with applying those standards. Therefore, I hope
+that you and I can discuss the changes necessary to accomplish these
+goals.
+ ______
+
+ The issues raised above are numerous, though they are not
+exhaustive. These issues take on heightened urgency at this particular
+moment in Colombia's history as the violence in 2008 has escalated
+above 2007 levels. Indeed, during only the first eight months of this
+year, the assassins have made more threats, caused more bloodshed, and
+taken more lives of labor leaders than they did in all twelve months of
+last year. However, I remain optimistic that Colombia can overcome
+these significant problems. I am also hopeful that the next
+Administration in the United States will work more cooperatively with
+the Government of Colombia to bring about improvements in labor laws
+and human rights, increased trade, and an even stronger relationship
+between our two ally nations. I will continue to work on these issues
+in my capacity as the Chairman of the Committee on Education and Labor,
+and I look forward to working with you and your government to promote
+greater respect for labor rights.
+ Sincerely,
+ George Miller, Chairman.
+ ______
+
+ Human Rights Watch,
+ 350 Fifth Avenue, 34th Floor
+ New York, NY, November 20, 2008.
+Hon. Nancy Pelosi, Speaker,
+Hon. George Miller, Chairman, Committee on Education and Labor,
+Hon. Charles Rangel, Chairman, Committee on Ways and Means,
+U.S. House of Representatives, Washington, DC.
+ Dear Speaker Pelosi, Chairman Miller and Chairman Rangel: I write
+to thank you for the leadership you have shown on human rights in
+Colombia in connection with the debate over the US-Colombia Free Trade
+Agreement (FTA), and to follow up on concerns you have raised about the
+plight of Colombian trade unionists.
+ Human Rights Watch agrees with the position that the Speaker set
+out last year: before Congress considers the FTA, Colombia must show
+``concrete and sustained'' results in addressing ongoing violence
+against trade unionists, impunity, and the role of paramilitary groups
+in that violence.
+ Free trade should be premised on fundamental respect for human
+rights, especially the rights of the workers producing the goods to be
+traded. In Colombia, workers cannot exercise their rights without fear
+of being threatened or killed. Without concrete and sustained results
+in addressing this basic problem, ongoing anti-union violence and
+impunity would, as President-elect Barack Obama has noted, make a
+``mockery'' of labor protections in the agreement. We believe that
+Colombia should be in compliance with such protections before the
+accord takes effect, as has generally been demanded with FTA commercial
+provisions.
+ In fact, under US pressure related to the FTA, Colombia has started
+to take some positive steps on impunity for anti-union violence. But
+those steps are limited and incomplete, and in other areas (such as the
+rate of violence), Colombia has been sliding back this year. Also, the
+progress made on impunity has been won only with the possibility of FTA
+rejection on the table. If Congress were to prematurely approve the
+FTA, the progress made could rapidly be undone. Nor would the threat of
+fines or sanctions for violating FTA labor requirements provide
+anywhere near the incentive for change as the fear of accord denial.
+ In a September 12 letter to President Alvaro Uribe of Colombia,
+Chairman Miller highlighted a number of significant problems affecting
+Colombian trade unionists' ability to exercise their rights. Yet, as
+explained below, more than two months later the Colombian government
+has yet to remedy many of those problems and continues to fall short in
+other areas that should be addressed before FTA ratification.
+1. Ongoing violence against trade unionists
+ As you know, 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, 2,685 unionists have been killed since 1986. In addition,
+more than 3,700 unionists have reported receiving threats.
+ The rate of yearly killings has fluctuated over time, dropping
+between 2001 and 2006. This reduction may be explained by many factors,
+including the establishment of a protection program--partly funded and
+supported by the United States--for threatened union leaders.
+Nonetheless, even with the protection program in place, in 2006 the
+National Labor School registered 76 killings of unionists, adding up to
+more than half of the total number of unionists killed in the whole
+world that year.
+ After dropping to 39 last year, the number of killings has
+increased once again in 2008. Through October, 41 trade unionists have
+been reported killed, compared with 33 through October 2007. More than
+150 unionists have reported being threatened so far this year.
+2. Widespread impunity for anti-union violence
+ Last year Colombia's Attorney General established a specialized
+group of prosecutors to reopen many of the uninvestigated cases of
+threats against and killing of trade unionists. Since then, the group
+reports that it has obtained 96 convictions. This is an important
+achievement that can be directly traced to US pressure in relation to
+the FTA. Yet, as Chairman Miller pointed out in September, at the
+current rate of convictions, it would take decades for the prosecutors
+to get through the backlog. Also, there are serious reasons to be
+concerned about the sustainability of this effort:
+ The specialized prosecutors are not investigating the
+majority of reported cases.
+ The Office of the Attorney General reports that as of October 20,
+the specialized prosecutors unit is only reviewing a total of 1,272
+cases involving anti-union violence--including both threats and
+killings (even though nearly all the 2,685 reported killings and more
+than 3,700 threats remain unsolved). When Human Rights Watch asked
+representatives of the Office of the Attorney General what they planned
+to do with the thousands of other reported cases of threats and
+killings, she 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) when the specialized group was created. But the ENS
+and trade unions later submitted all information they have on all 2,685
+registered killings 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 antiunion
+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, claiming that the victims were not
+union members or had been killed for non-union-related reasons. Yet
+when Human Rights Watch asked her 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, she refused to provide such a list. The Office of
+the Attorney General 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.
+ The specialized labor judges have only been appointed
+through July 2009.
+ As Chairman Miller pointed out in September, the latest resolution
+of the Superior Council of the Magistracy (Consejo Superior de la
+Judicatura) naming three specialized judges to handle the trade
+unionist cases provides that their appointments expire in July 2009.
+There is no guarantee that the judges will have their appointments
+renewed.
+ Many convictions involve paramilitaries in the Justice and
+Peace process.
+ An important factor that has led to the increase in convictions is
+that some paramilitary commanders participating in what is known as the
+``Justice and Peace'' process have been taking 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 toreceive a single reduced sentence
+of five to eight years, rather than the much longer sentences--up to 40
+years, in some cases--ordered in individual cases of trade unionist
+assassinations.
+ The law began to be applied last year, 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 96 convictions in unionist cases are based primarily on
+the statements given by paramilitaries under the Justice and Peace Law.
+ The statements in these cases are often general, however,
+paramilitary commanders like Ever Veloza (also known as ``HH'') have
+admitted having command 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.
+ Finally, since the Colombian government extradited many of the most
+important paramilitary commanders to the United States, these
+commanders have ceased cooperating with the Colombian investigations.
+As a result, even the minimal statements of responsibility that might
+have been available under the Justice and Peace Law may now be out of
+reach in cases for which these commanders bear responsibility.
+ Lack of progress in high-profile cases
+ In some of the most high-profile cases of unionist killings that
+Chairman Miller highlighted in his September letter there has been
+little progress. For example, in the case of intelligence chief Jorge
+Noguera, who allegedly gave sensitive information about trade unionists
+to the killers, investigations have moved inexplicably slowly or have
+been hampered by procedural errors. Similarly, in the murder of labor
+leader Luciano Romero, despite a court order to investigate potential
+involvement of Nestle Corporation in the killings, the Office of the
+Attorney General has failed to move any such investigation forward.
+And, as Chairman Miller noted in his letter, a Colombian Police officer
+who was convicted in absentia of the killing of labor leader Jorge
+Dario Hoyos has yet to be caught or arrested.
+ In another significant case involving the military's killing of
+three trade unionists in Arauca in 2003, 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.
+3. Stigmatization of unionists High-level officials continue to
+ stigmatize legitimate union activity as a cover for the abusive
+ left-wing guerrillas
+ Colombian President Alvaro Uribe recently dismissed international
+concerns over the violence, describing the unionists as ``a bunch of
+criminals dressed up as unionists.'' Such statements put unionists at
+greater risk, suggesting that the violence against them might be
+justified and that accountability for the killings may not be a
+priority for the government.
+4. The rise of successor groups to the paramilitaries
+ Because most trade unionist killings have never been investigated,
+it is impossible to know exactly who is responsible and why all the
+killings were committed. Nonetheless, it is clear that in many cases,
+the killers are paramilitaries, who have admitted to deliberately
+persecuting unions. In fact, 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 pose the greatest
+threat to unions.
+ The Uribe administration claims that paramilitaries no longer exist
+thanks to a demobilization program it has implemented in recent years.
+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, new armed groups often led by mid-level paramilitary
+commanders have cropped up all over the country. The Organization of
+American States (OAS) Mission verifying the demobilizations has
+identified 22 such groups, totaling thousands of members. The groups
+are actively recruiting new troops and are committing widespread
+abuses, including extortion, threats, killings, and forced
+displacement. In Medellin, for example, after a steady decline in
+official indicators of violence, there has been a surge in homicides,
+apparently committed by these groups. The bulk of the 150 threats
+received by unionists this year have been signed by groups purporting
+to be paramilitaries.
+5. Extrajudicial executions
+ Another recent threat to unionists is posed by the Colombian Armed
+Forces. 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 killings of the three trade unionists
+in Arauca in 2003 fit this general pattern.
+ The Attorney General's Office is currently investigating cases
+involving more than a thousand victims of extrajudicial executions
+dating back to mid-2003. 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 killing of colluding with the
+guerrillas in an orchestrated campaign to discredit the military.
+ Since October, 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.
+ Once again, I would like to thank you for having taken a firm
+position in defense of human rights in connection with the FTA. As I
+hope this letter makes clear, 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. Please do not hesitate to contact us if we can be of any
+assistance on this or other matters.
+ Sincerely,
+ Kenneth Roth,
+ Executive Director.
+ ______
+
+ Bogota, 10 de febrero de 2009.
+Senor George Miller,
+Congresista Camara Baja, Washington D.C., Estados Unidos.
+ Respetado senor Miller: Hemos conocido de la celebracion de una
+audiencia en el Congreso Norteamericano sobre derechos de los
+trabajadores y violencia contra sindicalistas en Colombia, ``Examining
+Workers' Rights and Violence against Labor Union Leaders in Colombia'',
+que se llevara a cabo la proxima semana en la ciudad de Washington. Por
+esta razon, la Comision Colombiana de Juristas (CCJ) que es una
+organizacion de derechos humanos con estatus consultivo ante Naciones
+Unidas, quiere entregar a usted un informe sobre la situacion de
+impunidad en la que se encuentran los casos en los que son victimas las
+y los sindicalistas colombianos. La informacion alli contenida es
+producto del seguimiento que la CCJ hace a los informes de la Fiscalia
+General de la Nacion y los jueces de casos de sindicalistas.
+ En esta ocasion queremos resaltar para su consideracion, tres
+aspectos importantes que encontrara dentro del documento anunciado:
+ 1. El porcentaje de impunidad en los casos de homicidio contra
+sindicalistas sigue siendo del 96%.
+ 2. Un analisis cuantitativo del trabajo de la subunidad y de los
+jueces que nos permite concluir que al ritmo de unas 70 sentencias
+anuales emitidas por los jueces del pais y los de descongestion de OIT,
+en las que en cada una de ellas se refiriera a una victima
+sindicalista, la justicia tomaria 37 anos para superar la impunidad,
+bajo el supuesto de que no ocurran mas asesinatos a partir de hoy, y se
+mantenga la unidad especial de investigacion y juzgamiento.
+ 3. Siendo la violencia antisindical en Colombia es una violencia
+sistematica, deliberada y selectiva, el metodo de investigacion
+utilizado por la Fiscalia no permite una investigacion integral.
+ 4. Las razones de la violencia que, la Fiscalia incluye en sus
+informes como supuestos resultados de las sentencias, denotan
+precipitacion de la Fiscalia por concluir que no se trata de casos de
+violencia antisindical.
+ Quedamos atentos a cualquier inquietud o aclaracion que usted
+tenga.
+ Cordialmente,
+ Gustavo Gallon Giraldo,
+ Lina Paola Malagon Diaz,
+ Director Abogada Proteccion Juridica Sistema Universal.
+ ______
+
+ [Whereupon, at 12:51 p.m., the committee was adjourned.]
+
+
+
+