Santos Administration Presses for Step Backwards for Human Rights
This post is an excerpt from a report recently released by the Latin America Working Group Education Fund. Written by LAWGEF's executive director, Lisa Haugaard, the brief report provides an update on the human rights situation in Colombia. The update focuses on three topics--military jurisdiction, the Victims' Law, and the human rights defenders' verification mission--and provides recommendations to U.S. policymakers for each human rights concern. Download the full update on human rights in Colombia as a PDF here.
Santos Administration Presses for Step Backwards for Human Rights:
Human Rights Crimes by Soldiers May Return to Military Jurisdiction
by Lisa Haugaard, Latin America Working Group Education Fund
The Santos Administration is pushing through Congress a provision regarding military jurisdiction that threatens to undo much of the progress achieved since early 2007 in ensuring justice for severe human rights crimes committed by members of the military. In particular, it would unravel key reforms instituted to address the "false positive" scandal in which more than 3,000 civilians were allegedly killed by soldiers, often to up their body counts and obtain incentives. Soldiers detained or purchased from criminal "recruiters" live young men whom they believed would not be missed, killed them and dressed them up in guerrilla uniforms, in order to claim them as killed in combat.
An article of the justice reform bill (currently article 13) would modify the Colombian Constitution to provide that all acts committed by security force members during military operations would be presumed to be acts of service, and thus would be subject to military jurisdiction. This initial presumption would apply to any crime—including rape, torture, forced disappearance and extrajudicial executions. According to the United Nation's Office of the High Commissioner on Human Rights' representative in Colombia, this would amount to an "historic step backwards for human rights" in the country.
As the provision would modify the Constitution, it needs to be approved in two congressional sessions. It was approved in one round last year, and is likely to come up again in March for final consideration.
The proposed provision would result in the military justice system opening the initial investigations into all alleged human rights abuses committed by security forces during operations. This will nullify Directive 19, emitted by Juan Manuel Santos as defense minister in 2007, which called for the investigative body (CTI) of the Attorney General's office to be the first to investigate deaths in combat. The agency that first investigates a potential crime scene has the capacity to set the investigation on the right or wrong course. "Even when a case is transferred to civilian jurisdiction, after military jurisdiction has carried out the initial steps, it becomes almost impossible to correct the skewed direction of the investigation," according to a leading Colombian human rights network. This change will not only affect investigations of new crimes, but could also lead to the transfer of hundreds of extrajudicial execution cases—the false positives—from civilian jurisdiction back to military justice authorities, a tremendous step backwards.
While the Colombian government maintains that human rights crimes would be subsequently transferred to civilian authorities, practice has shown that when the military justice system initially investigates, human rights crimes are rarely brought to light or to justice. "This is evidenced by the military courts' glaring lack of results in obtaining convictions against those responsible for cases of false positives," according to Human Rights Watch. Many of the false positive cases were closed by military justice officials, according to the UN. Despite clear jurisprudence (prior to this new proposal) regarding the obligation to investigate and prosecute human rights crimes in civilian jurisdiction, military authorities have a very poor track record when it comes to promptly transferring alleged cases of human rights violations to civilian jurisdiction. According to UN Special Rapporteur on Extrajudicial Executions Philip Alston, "the most significant obstacle to effective prosecution of extrajudicial executions by members of the security forces are the continuing jurisdictional conflicts [between military and civilian justice systems] and the failure of military judges to transfer cases to the civilian justice system." Even without this proposed step backward, too few cases are being transferred to civilian courts. After a brief period in which hundreds of cases of alleged extrajudicial executions were moved to civilian courts, the transfers of cases from military to civilian jurisdiction slowed again in 2010, according to both the Office of the UN High Commissioner for Human Rights and State Department.
The military justice system's reluctance to investigate human rights crimes, and its lack of independence from the military's retired and active leadership, are qualities far too deeply engrained for some technical fix of the military justice system to resolve. Moreover, unlike in the United States, the Colombian military on a daily basis conducts law enforcement operations within Colombia's national territory and interacts with the civilian population, making it all the more urgent that the military be accountable to Colombia's civilian authorities for human rights crimes. However, there is no objection to efforts to improve the military justice system's handling of appropriate matters, such as violations of military discipline.
Unprecedented efforts were invested to achieve gains since 2007 to ensure justice for human rights crimes committed by the military. The State Department and U.S. Embassy under Republican and Democratic administrations since early 2007 invested political capital in ensuring the transfer of hundreds of extrajudicial executions to civilian courts. The U.S. Senate held up significant portions of Colombia's military aid over the issue of impunity for extrajudicial executions. The United Nations made an intensive effort via the UNHCHR office and the landmark visit of the UN Special Rapporteur on Extrajudicial Executions. Colombia's human rights networks and relatives of victims of extrajudicial executions made well-coordinated, heroic efforts to document and expose the "false positives" crimes, even as their allegations were dismissed and they faced constant threats. Semana magazine shone with its investigative journalism on the subject. Then-Defense Minister Juan Manuel Santos chose to embrace reforms. This not only resulted in advances in justice for these cases, but also led to a dramatic drop in new extrajudicial executions. This constellation of Colombian and international effort is unlikely to be resurrected if these gains slip away.
The proposal would make it impossible for the State Department to certify compliance with the human rights conditions provision that, "The Colombian Armed Forces are suspending those members, of whatever rank, who have been credibly alleged to have violated human rights, or to have aided, abetted or benefitted from paramilitary organizations or other illegal armed groups; all such cases are promptly referred to civilian jurisdiction for investigation and prosecution, and the Colombian Armed Forces are not opposing civilian jurisdiction in such cases; and the Colombian Armed Forces are cooperating fully with civilian prosecutors and judicial authorities."
In addition, this backward step would make it difficult for the Colombian government to comply with its obligation to "prevent violence against labor leaders, and prosecute the perpetrators of such violence," in cases involving members of the military. Such cases are not just in the past. On January 9, 2012, a member of the Sintrapaz union, Victor Manuel Hilarion Palacios, was traveling to work when he was allegedly killed by Colombian army troops. As noted in a February 1 letter from AFL-CIO President Richard Trumka to President Obama, "According to reports, the soldiers who later delivered his body to the Technical Investigation Unit (CTI) of the Fiscalia office in the town of Villavicencio stated that he had been killed in crossfire—yet the colleagues and relatives who went to collect his body discovered it bore signs that he had been brutally beaten and tortured."
U.S. policymakers should urge the Colombian government to withdraw this proposal to expand military jurisdiction. If this proposal goes into effect, the State Department cannot in good conscience certify Colombia meets the human rights conditions attached to U.S. security assistance. This proposal would also affect Colombia's ability to meet its commitment under the Labor Action Plan to "prosecute the perpetrators" of violence against trade unionists.