The Court:
“In the event. . . Mr. Edward Cobos Tellez
(i) “does not contribute to the clarification of the truth and reparations to the victims on whose behalf claims are made
(ii) “is disqualified from his obligations and benefits of the law of justice and peace
(iii) “becomes absolved of the crimes imputed to him
(iv) “breaches the obligations and commitments derived from the alternative sentence,
(v) “or in case something similar to any of the aforementioned occurs, all of the arguments that have now led to the issuance of an unfavorable response to the petition of extradition is withdrawn.
[Thus] if any of the above-mentioned possibilities comes to be, all of the reasons that at the moment allow the denial of the extradition of Mr. Edward Cobos Tellez to the requesting state would disappear, and the possibility would re-emerge for the competent [requesting state] to renew [its] request for extradition.”
These are the conditions that the Colombian Supreme Court imposed on former paramilitary leader Edward Cobos Tellez. For the time being he will be spared extradition and will cooperate with the Peace and Justice Commission in return for a reduced sentence with a possible maximum of 8 years. But after serving his sentence in Colombia, the Americans can extradite Mr. Tellez to prosecute him in the United States. In America he can be sentenced to as much time as the court feels appropriate, so long as Mr. Tellez does not receive a life sentence or a death sentence.
What led to this decision? Paramilitary groups are accused of numerous human rights abuses and I imagine that the victims of these abuses and their families pressured the Colombian government to keep the paramilitaries in Colombia to face justice. I doubt Uribe wanted it this way. For him, the quicker the paramilitary leaders are out of Colombia the better. But based on the conditions the Colombian Supreme Court imposed on Tellez, why would paramilitaries cooperate with Colombian authorities if there is still the possibility of extradition? Before cooperating, it is critical to obtain a guarantee that extradition will not occur.
There is no upside for a paramilitary member to cooperate in Colombia if he will eventually be extradited to the United States, unless he is prepared to go to trial or willing to cooperate with U.S. authorities. However, if a paramilitary member decides to cooperate in the United States, he needs to be absolutely certain that he can offer information the U.S. will be interested in. Many defendants have made the mistake of assuming the U.S. will want information that it in fact has no interest in or already knows about. Additionally, if paramilitaries simply plead guilty without cooperating they will receive a heavy sentence, because in the United States they are accused of importing tons of cocaine.
If a paramilitary member has already cooperated in Colombia, would the U.S. government take that into consideration when fashioning a sentence in the U.S.? Maybe, but it is a risky proposition. A prosecutor’s promise to recommend a reduced sentence does not bind Federal judges. A judge may feel that the paramilitaries have already gotten their break for cooperating by receiving a reduced prison term in Colombia, and giving them added consideration would be inappropriate and unjustified. Federal judges view paramilitaries as large scale drug dealers who have admitted to importing hundreds of kilos of cocaine. Why should they be rewarded for cooperating in Colombia in connection with violent crimes that are not related to importation?
For Colombian paramilitaries, if there is no deal in place, cooperating with Colombian officials does not make sense. Without a deal or an agreement they still face extradition and ultimately place themselves at the mercy of strangers in a foreign justice system where their choices are few. Cooperate, plead guilty or go to trial. But while they are in Colombia, time is on the side of the paramilitaries. Laws can change, policies can change, administrations dochange and views can change.
The paramilitaries should retain a Colombian lawyer or a team of lawyers to negotiate collectively and transparently with the Colombian government. This way the victims of paramilitary crimes will be apprized of what is happening and exert pressure on the Colombian government to protect their own interests. After all, it was pressure from the victims that led to the denial of Tellez’s extradition in the first place, and continued pressure could lead to the denial of extradition for paramilitaries altogether.
My advice for the paramilitaries is to stay away from the United States. If they have nothing to offer the Americans, they have nothing to gain. The recent Tellez decision is a good start, but no victory. It simply postpones the inevitable. To win they will need immunity from extradition.