Summary
The drug trafficking business has driven the strengthening of the criminal actors that make up the internal armed conflict in Colombia. For almost sixty years, the governments of the time have tried to develop public policies, strategies and programs to counteract the growth of territories with the presence of illicit crops in the country and thus stop the growth of drug trafficking, despite this, Colombia has been called one of the countries with the highest coca leaf cultivation. However, the current Colombian legal framework is ineffective in dealing with terrorism and drug trafficking as convergent phenomena, the criminal policy of the Colombian State has not been able to provide a solution to the problem, which generates legal insecurity and affects strategic alliances with other countries in order to formulate a joint strategy to neutralize transnational organized crime. The Colombian legal framework against drug trafficking and terrorism, the criminal policy of the Colombian State and the statistics and studies that show the growth of these threats in the national territory will be taken as the basis for the study in order to develop the guidelines of a statute as a proposal that establishes drug trafficking and terrorism as targets of military intelligence, but that also proposes a regulation that manages to effectively neutralize the convergence of these two phenomena.
Key words: Terrorism, Drug Trafficking, Transnational Organized Crime, Legal Security and illicit crops.
Introduction
The Colombian State has been confronted with the growth of drug trafficking since the 1990s. With the signing of the peace agreement, the number of insurgent actors has increased, adopting drug trafficking as a method of financing criminal structures and terrorist acts as a strategy to generate fear and appropriate geostrategic territories in the country.
For Rodrigo Uprimmy (2003), the phenomenon of drug trafficking is defined as an illicit form of mercantile accumulation and not as a simple criminal behavior, but for the Colombian State, drug trafficking has been a generator of violence and stagnation in the development of productive sectors. This phenomenon negatively affects the Colombian economic and social development, since it leads to capital flight (to investments moving away from Colombia) and the growth of violence and terrorist actions.
Terrorism is a phenomenon that is directly related to drug trafficking. Rafael Calduch identifies drug trafficking as a generator of premeditated and systematic violence with a political or economic motivation perpetrated against non-combatants by non-State groups (Calduch n.d.). On the other hand, the Arab League states that terrorism is any violent act driven by a criminal agenda, since these actions generate terror in the population and jeopardize their freedom, security and well-being. These acts also cause damage to the nation’s infrastructure and the environment, in order to gain control over a territory (LAS 1998).
The current Colombian legal framework is ineffective in dealing with these two convergent phenomena. The criminal policy of repression designed by Colombia has not been able to respond to the problem, generating legal insecurity. As stated in the text “Construction of Public Policies to combat the convergence of terrorist actors”, the adaptation to the changes produced by the emergence of drug trafficking and terrorist actors, requires the immediate attention of a legal reform to counteract the effects of these threats (Ardila, C., Jiménez, J. & Rodríguez, J 2017). The illustration of this is the confrontation that the Colombian State has experienced since the emergence of drug trafficking and criminalization in its territory.
The present research is situated in the field of public policies, since at the time of facing terrorism and drug trafficking, as threats to the security of the State, the Colombian government has focused on strengthening its defense sector, however, to face drug trafficking and terrorism, as threats to national security, it is necessary to implement a legal framework capable of facing and combating the convergence of these criminal actors.
In this order of ideas, this text aims to answer the following research question: What are the guidelines for creating a statute against organized crime, so that justice operators have legal certainty to investigate, accuse and judge the crimes that are the subject of this study?
To this end, a Conceptual Framework will be formulated from the convergence between drug trafficking and terrorism in order to promote the characterization of the phenomenon as a legitimate target of military intelligence for the development of military operations; secondly, the areas most affected by the convergent phenomenon will be examined in order to guide the military and judicial efforts addressed in our research topic; After this, we will analyze the existing anomie in the Colombian legal framework under which justice operators investigate, accuse and judge the crimes related to drug trafficking and terrorism; this will lead to expose the guidelines to create a statute against organized crime, so that justice operators have legal certainty to investigate, accuse and judge the crimes that are the subject of this study.
For the development of the work, the qualitative research approach will be used, since the problems that overflowed the phenomena of drug trafficking and terrorism in Colombia will be examined in situational context, in order to present theoretical tools that will allow to affect in a forceful way the mentioned criminogenic phenomena. On the other hand, the work has a descriptive-correlational scope since it intends to show how the phenomena under investigation have increased, the relationship between them and a possible effective solution to combat them.
Conceptualization between drug trafficking and terrorism, characterization of the phenomena as legitimate targets of military intelligence for the development of operations.
In order to understand the need to characterize drug trafficking and terrorism as legitimate targets of military intelligence for the development of operations, it is necessary to conceptualize these phenomena and thus understand how this convergence represents a threat for the States, especially for the Colombian case.
Drug trafficking has been catalogued as a criminal enterprise; the leaders of these groups are people capable of aligning resources with the objective of systematically violating the law in order to obtain economic income that contributes to their growth and therefore to the expansion of the business. The economic theory of crime states that these types of criminals, who have economic objectives, are maximizing and rational agents who work based on risk, income and cost evaluations (Becker 1990).
These criminal enterprises (drug traffickers) are economic agents capable of identifying and exploiting opportunities that generate significant economic growth, and this is what illegal goods and services such as drug trafficking provide them, because behind this phenomenon come arms trafficking and prostitution. Drug trafficking is a business capable of aligning resources for the production of profits, as well as aligning resources for the production of profits, as well as the ability to overcome the moral and ethical obstacles associated with the systematic violation of the Law (Gil 2016).
Gottschalk (2010: 295), states that organized crime has the capacity to innovate quickly, these groups exploit new combinations of productive resources. In the specific case of drug trafficking, profits are derived from the exploitation of DPSI (illegal psychoactive drugs). In their performance, they develop a great variety of innovations that allow them to overcome the obstacles imposed by the State organizations responsible for pursuing the illegal activity, from which terrorism has derived as their great strategy of power and control, generating terror allows them to grow through the generalized fear they inject into the population.
Thus, the term “Illegal entrepreneurship” has been used in Anglo-Saxon literature to refer to a wide range of different illegal activities; the most serious and extreme form of illegal entrepreneurship is “organized crime”, which includes crimes such as kidnapping, robbery, drug trafficking and extortion (Aidis & Praag 2007).
Terrorism has been categorized by the United Nations as any criminal act directed against the State and aimed at creating terror in civil society, while the Assembly of American States defined this term as any activity aimed at provoking terror in order to obtain results of power and control (OAS 2003). In the year 2003, the OAS stated the challenges to security in the hemisphere, affirming that the security of the territory is multidimensional in scope, thus including new and traditional threats, which bring together the priorities and challenges of the State and contribute to the stabilization and search for peace scenarios, promoting social development and justice, based on the protection of Human Rights and respect for national sovereignty.
It is evident that drug cultivation and trafficking, arms trafficking, gangs, in addition to acts of terrorism are convergent criminal actors, this asymmetry of phenomena accelerates the insecurity of States, which could be characterized as Organized Crime, a growing threat of national and transnational character.
Transnational Organized Crime (TCO) has been catalogued as a threat that has crossed state borders, putting all the nations of the world on alert, this is an issue that is part of the agenda of multilateral organizations. Over time, this has been a threat that has modernized and has had a decelerated growth, the CTO is a phenomenon that aims to expand its profits regardless of the methods and means to be used, within its activities are: drug trafficking, kidnapping, trafficking and human trafficking, illegal exploitation of minerals, arms trafficking and technology; also, human organs, nuclear material, targeted killings, extortion, intimidation, torture and money laundering.
Drug trafficking is the main source of income for these criminal organizations, which is why it has become one of the main and most acute threats to security, to the principles of the State and to relations between nations. It is important to emphasize that the effects of the criminal activities of these criminal groups not only translate into acts of violence, but also affect the environment, the corruption of both private and state institutions, and also generate a deterioration of society, creating public health problems (Rojas 2008).
This threat has been growing in Latin American states, which has led to the term Transnational Organized Crime to generate an academic discussion on the evolution and improvement of common crime. Organized crime interferes in the interests of the State; it goes beyond governmental controls; it establishes special lines of operations based on a complex system for the delegation of criminal acts; it pursued by means of violent actions to obtain the economic and social power of a territory (Rojas 2008).
The CTO seeks influence and decision-making capacity over state agents, regardless of ideology or political orientation, and to achieve this it uses extortion and violence as fundamental instruments, a characteristic that represents the greatest danger to the region’s societies. The criminal acts of these criminal actors establish premeditated and systematic violence perpetrated against non-combatant targets as a way of influencing a sector of the population (Laqueur 2003).
The existing link between transnational organized crime and terrorism in the region causes greater effects since this convergence of actors puts the security of the State at risk and represents both traditional and new threats, since the growth of transnational crime and terrorism networks generates greater affectation for the development of relations between the governments of each country” (Ardila, C., 2003). (Ardila, C., Jiménez, J.. & Rodríguez, J 2017)
The United Nations Office on Drugs and Crime states that from the perspective of international instruments, acts of terrorism and the financing of terrorism are considered heinous crimes that cannot be granted the status of political crimes, nor justified by ideological, racial or religious motivations (United Nations Office on Drugs and Crime 2014: 93).
However, security in the hemisphere is affected by CTO derivatives such as terrorism, transnational organized crime, drug trafficking, money laundering, arms trafficking and networks generated between criminal groups. This series of factors has increased extreme poverty and social exclusion. In many of the territories where armed groups have taken control, they appear as empty spaces3 , this lack of governmental accompaniment and comprehensive programs that promote development, make sovereignty, democracy and stability be affected and therefore become lawless lands, these become geostrategic zones for criminal groups, who come to these places to take control of the land and the population. In the 2003 Declaration on Security in the Americas, cited by Vega & Lafosse (2017: 7) “[…] extreme poverty erodes social cohesion and undermines the security of States; natural and man-made disasters […] and environmental deterioration”.
Areas affected by the convergence phenomenon in Colombia
The problem of the existing phenomenon between drug trafficking and terrorism is a broad and complex problem, as it involves economic, political, social, cultural, security and foreign relations factors. Drug trafficking was initially perceived as a national security problem in Colombia, but due to its growth it became a transnational problem (Chabat 2009). Colombia has become one of the largest producers of drugs, such as cocaine, marijuana and heroin, and over time has been one of the largest producers and exporters of these substances (Rangel 1995).
This chapter provides an overview of the area planted with coca in Colombia according to the census as of December 31, 2019. In addition to providing figures on the area planted, the text draws on the historical series to present the trends and geography of the phenomenon in order to describe the distribution of coca cultivation.
In this case, drug trafficking has not been a detonating factor of tragedies linked to drug consumption; behind this business there have been other tragic events such as violence derived from the activities of drug trafficking leaders, the financing of guerrillas and paramilitaries and the birth of a culture allied to illicit activities on the part of some social sectors and individuals.
In 2019 the area planted with coca reached 154,000 hectares, although this means a reduction of 9% compared to what was reported in 2018, but it has been noted that despite the reduction there is three times more coca than in 2013, coca crops were also evidenced in territories where they were not present before.
Nariño ceased to be the department most affected by coca crops in 2019 by going from 41,903 ha to 36,964 ha planted (-12 %); while Norte de Santander became the most affected department by increasing crops from 33,598 ha in 2018 to 41,711 ha in 2019 (+24 %). Tibú is now the municipality with the most coca crops with 27 % of all coca in the country; three other municipalities in Norte de Santander: Sardinata, El Tarra and Teorama are among the 10 most affected in 2019 (UNODOC 2020: 23).
The potential production of pure cocaine hydrochloride was estimated at 1,137 mt, verifying an increase of 1.5% compared to 2018. Estimated coca leaf production was 993,107 mt, an increase of 1.6 % compared to 2018. In relation to crop productivity, yield factor update studies in the Pacific Region have been reflected in a productivity increase of 1.8 % versus 2018. Nationally, it is estimated that one hectare produced around 5.8 mt of fresh leaf in 2019 (UNODOC 2020: 15).
Since 2015, coca continues to concentrate in historically affected territories, forming productive regions where exclusive conditions are created for the production of coca leaf, its transformation to cocaine base or cocaine hydrochloride and its subsequent trafficking to consumption centers in Colombia and abroad. Coca production enclaves are becoming increasingly productive, due to the increased profitability of the process, from cultivation to the extraction and refining process.
The expansion phenomenon was concentrated in 3% of the territory, but coca had not been detected in these areas until the last three years, in Colombia most of the coca continues to be concentrated in the permanently affected areas that occupy 25% of the affected territory, 83% of the coca detected in 2019 is located in these areas (UNODOC 2020). This creates increasingly complex scenarios, as it reflects a proximity between cultivation areas and an economic dependence of nearby communities. In these territories there is also the presence of infrastructures of transformation to cocaine base or coca hydrochloride.Organized Crime, Drug Trafficking and Terrorism, between the Military Operation and the Judicial Operation.
In relation to previous years, it is possible to identify certain territories with a clear tendency to reduce coca cultivation and in general the impact of the phenomenon. However, they are in the initial stage of the expansion process, due to their borders with nuclei with a high presence of crops.
Of the twenty departments affected by coca crops in 2019, eight have less than 1,000, among these we find: Vichada, Amazonas, Cesar, Vaupés, Guainía, Magdalena, Boyacá and Santander. When examining the phenomenon during the last ten years, in all of them there is a trend towards reduction; together, these departments went from 867 ha to 469 ha planted with coca, a reduction of 46% by 2019 (UNODOC 2020: 29).
Considering what was identified by the United Nations Office on Drugs and Crime (2020), the departments of Amazonas and Cesar saw an
increase in coca cultivation. Cesar is in the initial stage of an expansion process, this is due to its borders with Norte de Santander, one of the nuclei with the highest coca presence in the country, in Cesar it is possible to identify certain features that make it vulnerable to the consolidation of new concentration centers.
On the other hand, Amazonas is in a stage of stagnation, where the area with coca during the last 10 years oscillates in 150, the nucleus persists as a consequence of the expansion that comes from Putumayo and that, due to its difficult access conditions, limits the intervention.
Coca cultivation in areas of conservation interest constitutes a threat that goes beyond the number of hectares present, since the processing of coca leaf requires the articulation of supply chains, processing infrastructures and criminal networks, which represents an additional impact to that of illicit crops; the dynamics of illegality and terrorism represent a new threat to the challenges of national security and defense.
The fight against drugs in Colombia has been accompanied by a very strong wave of violence; it has been a conflict involving illegal armed groups such as guerrillas, self-defense groups and organized crime and drug trafficking as a financier. There are acts against the population. It can be said, with more and more reasons, that it is a confrontation against the civilian population. Illegal groups are directing their attacks against civilians and their property with greater emphasis through the use of terrorist-type acts (Gómez 2004).
This is no longer a political conflict, nor a social confrontation, despite the fact that the armed groups have tried to indoctrinate the civilian population to gain territorial control, because in the beginning they had political motivations that have disappeared today, especially with the fall of the iron curtain and the disappearance of the idea of communist revolutions, drug trafficking is today the most important tool of the armed groups in Colombia.
It is a conflict in which there is no longer a conventional confrontation, but rather irregular confrontations with terrorist actions. Neither the guerrilla nor the illegal self-defense groups carry out conventional attacks, resorting to guerrilla warfare and terrorist acts in which the population is strongly affected (Gómez 2004: 53).
The National Human Development Report prepared by the United Nations Development Program (2003), states that one cannot fall into the trap of expecting that the end of the conflict with the guerrillas would also be the end of drug trafficking. It is necessary to recognize that drug trafficking plays an essential role in the financing of violence and the conflict.
The armed groups outside the law have today in drug trafficking their main source of finances, they have control of the business from coca crops to its export and active formation of global crime, replacing local intermediaries in some regions and contacting large drug traffickers to negotiate cocaine directly with them, building transnational drug trafficking networks.
In this way, the guerrillas participate in global crime: they develop international contacts for arms trafficking operations, enter into the smuggling of chemical inputs and practice large-scale money laundering through the international financial system, virtual banking and the infiltration of legal companies (UNDP 2003: 49). (UNDP 2003: 49).
Although the problem of terrorism cannot be classified as global in scope, it does have a clear influence at the international level, since acts of terrorism committed by guerrilla or self-defense groups are generally surrounded by elements or circumstances that have some relation to transnational crime.
The drug trafficking groups used terror (terrorist attacks) as a political instrument to pressure the national government to approve the norms that would allow their extradition, during the hardest times of violence, they dynamited civilian airplanes with passengers, commercial centers in big cities, public buildings and other facilities. Also with drug money they assassinated journalists, judges, politicians, prosecutors, police and innocent people. All these acts of terrorism did not occur only as a consequence of an internal Colombian problem but as a consequence of a global crime such as drug trafficking (Gómez 2004).
Armed groups and guerrillas have diverted their way of fighting, they have focused on explosive attacks that, in addition to combats with the military forces, now their main target is the country’s electrical and oil infrastructure, and the areas with the greatest presence of illicit crops are constantly affected by terrorist acts such as massacres.
With the money from drug trafficking they buy weapons and explosives in the markets, even to shoot down helicopters or to carry out attacks on people. These weapons come from international networks of illegal arms sales. They also buy explosives in the international market, especially in border countries that lack sufficient controls for the sale of this type of elements. These are used to manufacture car bombs used in terrorist attacks, as well as other homemade explosives, but with a massive and indiscriminate scope. These groups receive training from other terrorist groups in terrorist techniques and in the preparation of homemade missiles made from gas cylinders. Finally, drug money is also used to buy people and create corruption, not only in Colombia but also in other countries (Gómez 2004: 58).
Vega and Lafosse (2017), establish that the environmental problems existing in the areas of illicit crops, are of vital importance their attention, these are due to the situation of criminality that is lived in the territories, criminality that translates not only in the existence of criminal gangs but to the situation of armed conflict that for decades Colombia has suffered, that although apparently by the action of the authorities or by peace agreements this should not be a factor, it is well known, that there have been some dissidences of these armed groups that still continue their criminal actions.
Anomie existing in the Colombian legal framework under which justice operators investigate, accuse and judge crimes related to drug trafficking and terrorism.
In order to develop or formulate the bases of a legal statute as a proposal, drug trafficking and terrorism are considered as military intelligence targets, a normative classification is sought to effectively neutralize the convergence formed by drug trafficking and terrorism, the Colombian legal framework against drug trafficking and terrorism, the criminal policy of the Colombian State and the statistics and studies that show the growth of these threats will be taken as a basis for study.
Drug trafficking has had a strong incidence in Colombia and is a phenomenon that is directly related to terrorist actions. For almost fifty years the State has tried to develop public policies, strategies and programs to counteract the growth of the problem. The Colombian government has worked on the development of an anti-drug policy to reduce the production and consumption of narcotics, generating a direct impact on illicit crops. The analysis showed that the policy is poorly formulated, as policy makers still have an erroneous conception of the problem, criminalizing farmers and devaluing existing conflicts in the territories (Ruano, E & Valente, A 2011).
The first chapter of Title XII of the Colombian Penal Code refers to terrorism, conspiracy to commit a crime and threats to security, the legal good that is directly intended to protect the presence of a minimum order in society, so as to allow the development of peace as a stable environment. This public order is broken when terrorist actors threaten the certainty of living in an environment of territorial security and non-aggression because it leads to collective distrust and uncertainty about a possible attack on the community (Cruz 2011: 467).
To counteract the drug problem in Colombia, various policies have been adopted to reduce the impact that drugs have had on the country. These policies can be divided into two main areas: the first, which focus on reducing drug supply, including eradication of illicit crops, destruction of cocaine laboratories, and policies that promote alternative development; and the second, which include policies aimed at interrupting drug exports, such as interdiction of drug trafficking and production through drug seizures (Thoumi 2002).
During the two governments of Álvaro Uribe, Colombia had as its main focus the “war on drugs” policy of “zero tolerance” towards cocaine production, which includes the reduction of coca leaf crops, the dismantling of laboratories, the seizure of coca paste, base, cocaine and precursor chemicals, and extradition (Tickner & Cepeda 2011). Its interest in U.S. military cooperation for counterinsurgency activities was equally essential. Although Plan Colombia helped to improve the internal security situation in Colombia, there is consensus that its achievements in terms of reducing cocaine cultivation and production are relatively far from the proposed goals (Acevedo, B.; Bewley-Taylor, D., & Youngers, C 2008).
Since 1999 there has been an overall decrease in coca leaf cultivation in Colombia, although there is no consensus between State Department and UNODOC reports on its magnitude. UNODOC reports since the signing of the peace agreement show a pendulum trend of increases and decreases in coca cultivation, with the increases being much more pronounced as new areas of cultivation have been identified. However, there is no correspondence between the reduction rates in illicit crops and the exponential increase in eradication efforts adopted since 2000. Cultivation has declined much more slowly than eradication has increased, while there are also periods in which illicit crops grew despite substantial increases in eradication. This shows not only a high adaptive capacity on the part of growers and the industry in general, but also the limited effectiveness of eradication as the predominant drug control strategy (Thoumi, F. et al 1997).
The eradication of illicit crops, through aerial spraying, is a method used to reduce the number of hectares planted within the national territory, eradication that has been carried out using the herbicide Glyphosate. The Program for the Eradication of Illicit Crops by Aerial Spraying with Glyphosate (PECIG), stated:
The elimination of illicit crops in Colombia is justified in order to curb the negative effect related to the production and trafficking of narcotics… There are several eradication methods available… but due to the location of the cultivation plots, the characteristics of the landscape, the opposition of illicit plant growers and armed groups outside the law, the most efficient and least dangerous strategy is aerial spraying with herbicides. (Ministry of Justice 2003: 5).
Although this is not the only form of eradication and the environmental deterioration it generates, it is the most effective way to reduce the number of hectares planted with coca leaf in Colombia. However, the aim is not only to reduce the area under cultivation, but also to dismantle the laboratories where the drug is processed.
In terms of policies aimed at reducing the supply of drugs, there are also those aimed at proposing alternative development, development that has been implemented through strategies such as (Observatorio de Drogas de Colombia n.d.):
- Forest Warden Families Program (PFGB): strategy focused on voluntary manual eradication of illicit crops.
- The productive projects program (PPP): this works jointly with community organizations in the strengthening, implementation or leverage of the productive lines prioritized in each of the municipalities.
On the other hand, through the Ruta Futuro Policy, the Colombian government proposed a zoning based on the characteristics of each of the territories affected by coca cultivation, in order to design public policy strategies and thus respond efficiently to the conditions. This is based on four strategic pillars and a cross-cutting pillar, through which the drug problem is attacked from the point of view of the consumption of psychoactive substances, drug production, criminal structures, and criminal economies and rents. These strategic pillars are connected from crops to domestic consumption and export); the generation of income for organized crime, derived from the production of illicit drugs, and the concentration of wealth from money laundering (UNODOC 2019: 24).
The four pillars of the policy are: 1.) “Reducing the consumption of psychoactive substances and their impact”; 2.) “Reducing the availability of drugs for internal and external markets”; 3.) “Dismantling and affecting criminal structures”, and 4.) “Affecting criminal economies and rents” (UNODOC 2019: 24). These four points rest on a fifth pillar referred to the transformation of the territory and the commercialization of illicit economies.
Within the development of the comprehensive policy, the aim is to identify the capacities of the territories in terms of their level of affectation, in order to empower them and improve the sustainability of the interventions. The territories affected by illicit crops were classified into three major Territorial Intervention Categories (CIT): special management zones, zones of strategic interest and zones of free intervention.
By the end of 2019, 48% of the coca detected is found in these three categories, as follows: 18% of coca is found in Forest Reserve zones that correspond to special management zones, located mainly in Norte de Santander, Bolivar and Nariño; 16% of coca is in lands of black communities; the vast majority of coca under this category is found in the department of Nariño; and 14% of coca is found in the zone of strategic interest under the category of productive integration. Putumayo and Norte de Santander have about 58% of the coca under this category.
The regions catalogued in Colombia as empty spaces, represent complex security scenarios generated by the links of local criminality with transnational organized crime networks, a situation that is not only due to being strategic regions, but also due to the lack of governmental support, unfortunately Colombia has not had a clear State policy for areas in a situation of abandonment, which has favored that the illegal groups can locate themselves with complete freedom even to exercise control (Trejos, L 2014).
Felbab-Brown, V. et al (2009), identify three factors that have allowed the recovery of coca in Colombia after the initial successes in its reduction, among these are: 1.) the adaptation of strategies by farmers and drug traffickers, among them the use of stronger plants, the increase in crop density, the reduction in its extension, and techniques that allow minimizing the effects of fumigation; 2. ) the existence of structural obstacles for growers and former growers to access viable licit alternatives; and 3.) the “zero tolerance” policy towards illicit crops, which denies official aid to those areas of the country where coca crops are still grown.
Therefore, this document intends to point to the need to formulate a renewed approach that attacks the structural causes of the phenomenon of drug trafficking and terrorism, while integrating and synchronizing all the elements of the anti-drug policy, with joint strategies to neutralize the threat.
Although there are no longer any big cartels and former drug lords and terrorist bombs do not rock urban centers, it seems that some of the battles in the war on drugs have been effective to a certain extent. But the drug trafficking business continues to flourish and with it also the terrorist actions, drug trafficking has a high power of relay that frustrates many operations against capos and leaders, despite the casualties, those imprisoned and extradited, production and consumption have decreased little.
Guidelines for the creation of a statute against Transnational Organized Crime
The convergence of terrorism and drug trafficking has become a transnational threat in the region. In order for Colombia to confront this threat, it is necessary to have a multidimensional perspective, which means coordinating regional policies and strategies, since this is one of the challenges faced by governments in the hemisphere and acting jointly is much more effective.
Effectively combating organized crime is one of the main challenges currently facing the Colombian state. Organized crime is characterized by the fact that it acts in a coordinated manner through hierarchical structures made up of a plurality of criminal actors and, in general, has a significant volume of resources that facilitate its permanence and reinforce its operational capacity, which are obtained from both licit and illicit activities. Organized criminal structures stand as a criminal phenomenon of great complexity, given that in most opportunities they are responsible for the commission of a wide range of particularly serious crimes, such as terrorism and drug trafficking, even more so when they acquire a transnational dimension (United Nations Office on Drugs and Crime 2014: 214).
Colombia has not had a consistent anti-drug policy over time, combating these phenomena depends on the position that each government takes on the issue, thus the need to establish a statute against organized crime containing constitutional rules, clarity on the magnitude of the threats and the definition of the same is seen, because with the adoption of the concept of multidimensional security, the evolution of the dynamics of criminal actors must be taken into account.
One of the mistakes made by Colombia has been the handling of the convergent phenomenon as two isolated threats, terrorism and drug trafficking are two interdependent phenomena, which is why this has come to be analyzed as Organized Crime.
The environment and the threats faced by Latin American states affect their national interests and their stability in terms of national security and defense. This scenario is characterized by the turbulence and complexity of the actors that represent a threat, this affects governmental roles and turbulence a phenomenon that of accelerated change that does not allow articulating the adequate means for the defense of the countries of the region (Ardila, C., Jiménez, J.. & Rodríguez, J 2017).
The power of States increasingly weaker and transitory, the complexity of the international system has generated a transformation of state power, taking into account that threats expand and circulate faster and faster, this phenomenon generates the accelerated transfer of ideas, aspirations, techniques and political movements that undermine power and order (Naim 2015: 98). This gives countries less time to formulate optimal security and defense solution building due to the accelerated mutation of threats.
Despite the fight against organized crime in the region, the problem of governance and coalition among states to be able to counter criminal actors jointly is evident.
At the international level, general norms have been adopted in an attempt to repress terrorist acts and activities; countries such as England, Spain and France, which have suffered the scourge of terrorism, have developed legislative schemes to deal with this problem (Walzer 2002).
In Colombia, the legislative development with respect to the crime of terrorism has been characterized by disregarding individual liberties, which has undermined the democratic regime of the country. Given the vagueness of the criminal definition of terrorism in Colombia, a multitude of common crimes fall within the definition of terrorism. Therefore, an effort must be made to specify and delimit this crime. With respect to the phenomenon of terrorism, Colombian legislation has been characterized as exceptional and not ordinary, and therefore, a complete and definitive body of law regulating the crime of terrorism has not been adopted (Walzer 2002).
One of the most controversial legislative projects of the last years was the Anti-terrorist Statute, presented by the government of President Alvaro Uribe Vélez, which was declared unconstitutional in 2004, this Anti-terrorist statute intended to toughen the punishments for acts of terrorism, by means of strict measures and increased penalties for those who committed acts of terrorism. This project represents an advance in the search for and creation of a system to face the reality that Colombia is living.
Ruano & Valente (2011) analyze the development of Transnational Organized Crime (TOC) in Latin America and how this phenomenon has given rise to the need for regional integration to generate international security, thus giving rise to the proposal to establish a South American Criminal Court as one of the strategies to combat the effects of crime generated by criminal organizations.
However, for this it is necessary that each country establishes a solid statute focused on neutralizing organized crime and preventing its propagation, this generates trust and facilitates relations with allies. This must contain constitutional norms, guiding principles and a precise characterization of the phenomenon and its criminalization, therefore, it must contain the procedural part but it must also contain the part of the execution of the sentence and everything related to the penitentiary law of persons subject to a statute against organized crime.
Colombia, for its part, should promote a cooperative review with the participation of countries affected by organized crime, such as Mexico and Brazil, and thus engage in a discussion of the role that drugs have played in regional relations, as well as the costs and results of the strategies that have been implemented internally. diversifying its diplomatic strategy beyond the United States, in order to engage in direct dialogue with states that have adopted policies other than prohibition and criminalization, learn from their experiences and create strategic alliances with them in their dialogue with the legislative branch, in particular (Tickner, & Cepeda 2011). This approach should also include the local governments of the regions most affected by the drug trafficking phenomenon in Colombia, taking into account the variety of criminal actors throughout the Colombian territory.
Conclusions
Colombia must become aware of the existence of interdependence between drugs and terrorism, phenomena inherent to the internal armed conflict, the fact that drug trafficking does not depend exclusively on the conflict, nor vice versa, requires the adoption of a comprehensive policy capable of addressing each of the existing crimes in this convergent framework.
Each of the national security and defense strategies proposed by the governments of the time have placed the Military Forces as the first battle front, despite the fact that military operations have led to the weakening of the phenomenon, the legal anomie breaks the efforts, any new strategy to combat drug trafficking must integrate an explicit normative proposal that allows overcoming this dissonance.
In this order of ideas, the Colombian government should have bridges of discussion with non-governmental organizations and academic institutions dedicated to research on the effects of prohibition, both in Colombia and in the United States, in order to have more objective elements of analysis when considering alternative strategies in the fight against drugs.
The Colombian government should channel more resources from bilateral cooperation towards alternative development and state strengthening strategies, which can be more effective.
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