Unraveling Justice: Military Jurisdiction Expanded in Colombia

On December 11, the day after International Human Rights Day, the Colombian Congress approved a justice “reform” bill that will likely result in many gross human rights violations by members of the military being tried in military courts—and remaining in impunity.  The bill, along with a separate ruling by the Council of State, unravels the reforms put in place after the “false positives” scandal in which over 3,000 civilians were killed by soldiers.

In 2007, I participated with a dozen lawyers, human rights activists, a forensic scientist and a judge in an International Verification Mission on Extrajudicial Executions and Impunity in Colombia. We heard from witnesses, family members and lawyers about 130 cases of extrajudicial executions committed in seven different regions of the country. These were not about civilians killed in crossfire or with excessive use of force.  The stories we heard were chillingly similar:  young men who were seen being taken from their homes, farms and streets by groups of soldiers. When their families came looking for them on a military base, these mothers, fathers, sisters and brothers were shown a dead body, now dressed up as a guerrilla.  There was their loved one, dead, and called a guerrilla killed in combat.

Now we know that the scandal was far, far worse than we knew then. In 2008 when the Soacha scandal broke, we learned that members of the army were paying criminal “recruiters” to pick up young men whom they thought would not be missed, and delivering them to soldiers to kill in staged battles.  When the UN Special Rapporteur on Extrajudicial Executions, Philip Alston, came to investigate in June 2009, he not only documented the enormous scope of the problem, but also noted that soldiers were carrying out these killings for to win incentives such as bonuses or days off.   Murder to up their body counts.

The Attorney General’s office is investigating more than 3,000 civilians murdered by soldiers, most between 2004 and 2008.  The coalition of human rights groups in Colombia known as the Coordinación Colombia Europa Estados Unidos (CCEEUU) has documented 3,512 extrajudicial executions between 2002 and 2010 committed in 31 out of 32 provinces.  Of the 80 percent of these cases for which a presumed perpetrator could be identified, 89.2 percent involved members of the armed forces, 8.6 percent the police, and the remainder were from the air force, navy and the prison system.   At least 21 territorial brigades and 19 mobile brigades were identified as perpetrators.  More than 44 percent of extrajudicial executions were in the zones where the First and Seventh divisions of the army operated.

Under international pressure, the Colombian government put in place some reforms that helped bring the numbers of new extrajudicial executions down dramatically.  It established an accord that allowed the Attorney General’s office to investigate the scene of the crime where extrajudicial executions were alleged and make the determintation of whether cases should go to civilian or military courts.  It began to enforce the Constitutional provision that stated that grave human rights abuses committed by soldiers should be tried in civilian, not military courts, and hundreds of cases were transferred to civilian jurisdiction.  But while Colombia did make progress in investigating and prosecuting extrajudicial executions, prosecutions were slow, and higher-level officials under whose command multiple extrajudicial executions took place escaped justice. Indeed, some were promoted.

These still limited advances are at risk with the new law.  What are the problems with the law?

Which human rights crimes are excluded from military jurisdiction.  The initial version excluded very few crimes from military jurisdiction.  After much pressure from Colombian and international human rights groups, the UN, Inter-American Commission on Human Rights and the U.S. government, the draft law excludes from military justice what sounds like an appropriate list of grave abuses:  genocide, crimes against humanity, forced displacement, sexual violence, forced disappearance, torture and extrajudicial execution. That does sound like an improvement. According to the government, the changes will not “generate impunity.”

But, as always, the devil is in the details:  For example, in Colombian jurisprudence, there’s no official crime listed as “extrajudicial executions.”  Most of the “false positive” cases have been tried as “homicides of protected persons,” a crime that is considered a violation of international humanitarian law rather than a human rights violation.  Under the new law, violations of international humanitarian law routinely go to military courts.  So, not only may new extrajudicial executions be tried in military courts, but many of the false positive cases could be transferred out of the civilian court system into the black hole of military justice. “Sexual violence” is also not a crime, using that phrasing, in the Colombian legal system.  Moreover, other gross violations committed by members of the military will now go automatically to military courts, including cruel, inhumane and degrading treatment and arbitrary detention.

Who is the first on the scene to investigate potential extrajudicial executions.  It is our understanding that the law gives the military justice system control over the initial investigations.  If initial investigations are not handled well, the trail goes cold.   Beyond what was established in this law, the Council of State just declared void the important agreement between the Attorney General’s office and the Defense Ministry that ensured that the Attorney General would investigate alleged crime scenes for extrajudicial executions and make the initial determination of whether the case would go to military or civilian courts.  With these changes, it is much more likely that extrajudicial executions and other crimes committed before execution, including torture, will go uninvestigated.

Who decides where cases go.  The new law sets up a new council  (“Tribunal de Garantίas”) that will determine which cases go to military courts, and which to civilian courts, when there is a dispute.  Half of the council members must be ex-military.  Even if you had the perfect list of human rights crimes that should be excluded from military courts, if the decisions are made by a biased council, wrong decisions will be made.

Where soldiers and officers serve their time.  The new law makes official what has been happening in practice:  soldiers and officers accused of the most heinous crimes will serve their pre-trial detention not in prison but in centros de reclusión,” and those convicted can serve their time either in prison or special military detention centers.   Semana magazine uncovered the luxurious conditions at the Tolemaida center, where convicted officials were able to leave for vacations, run businesses and even teach courses for current military members.

A special fund to defend soldiers. Soldiers accused of grave human rights violations will have a taxpayer-funded defense.

Why the change?  Members of the military have been clamoring for “judicial security,” claiming that they are being unfairly prosecuted and that they need protection in order to carry out their combat duties.  The Santos Administration, under pressure from the military, has shepherded this bill through the Congress. In the final debate, 54 senators voted in favor, 5 against.  Senator Juan Manuel Galán, the bill’s sponsor, sounded a nationalistic and defiant note:  “This bill isn’t a bill for impunity, but here we are not legislating because some international human rights organizations have come to Colombia during the final debate to tell us Colombians, us legislators what we have to legislate.”

Now that the Colombian Congress has taken this huge step backward, what recourse is available?  First, the Colombian government has indicated that it could take steps to ensure that “extrajudicial executions” and “sexual violence” be defined in Colombian law, making it thus more likely that those crimes would go to civilian courts.  The international community should hold the Colombian government accountable for this.  And all eyes should be on the review of alleged extrajudicial execution cases in civilian courts—as we fear that many such killings will get transferred back to military courts.

But major damage to Colombia’s commitment to human rights has been done.  The U.S. State Department should withhold military aid, as the new law violates conditions that require that gross human rights violations allegedly committed by the military be tried in civilian courts.  The Inter-American Commission on Human Rights, which just removed Colombia from its watch list, could reconsider.  And the International Criminal Court, which has been watching Colombia, is another potential point of pressure.

I keep thinking about the mother of a young man who was offered a job as a bricklayer, but who was taken by soldiers and killed.  Just in her area of the Caribbean coast, several dozen young men were similarly offered bricklaying jobs, disappeared and killed, presumed victims of soldiers seeking to increase their body counts.  These mothers want the bodies of their sons returned to them, with dignity. And they want justice for their sons.   The passage of this justice “reform” bill has just made that just demand harder to achieve.  

This was first posted on the Just the Facts blog.

 
 

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