For Colombia's military, a new era of reduced civilian human rights prosecutions
A very contentious debate is nearly over. Last Wednesday, Colombia’s Senate approved legislation that will allow the country’s military to try its own personnel in many more cases of human rights abuse. On Monday, Colombia’s House of Representatives is expected to do the same.
This is a triumph for Colombia’s 280,000-strong armed forces, which have been ever more vocally demanding that the civilian justice system have less jurisdiction over them. But it is a setback for human rights.
Since about 1997, Colombia’s civilian courts had steadily been gaining authority to investigate and judge military personnel believed to have committed crimes against the population. While Colombia’s civilian prosecutors and judges are no models of speed and efficiency, they proved far more likely to hold abusive soldiers accountable than the military’s own justice system, which proved exceedingly lenient in such cases. By the 2000s, civilian courts were handing down historic verdicts, especially in cases of paramilitary killings that benefited from military acquiescence or support. In the past few years, as soldiers stood accused of killing as many as 4,716 citizens – many of them so-called “false positives,” innocent people falsely presented as armed-group members killed in combat – civilian courts convicted a few hundred more, mostly low ranking, military personnel.
That momentum has now stalled. Military demands for “judicial security,” championed by a government that needed military support for its peace talks with guerrillas, have led to legislation that is likely to send many more abuse cases to military courts.
The new law “runs counter to the standards of international human rights law, and many of its provisions run openly contrary to that body of law that regulates, among other issues, the use of force and the administration of justice in any state,” notes a stern seven-page statement [PDF] issued last week by the UN High Commissioner for Human Rights’ field office in Colombia.
“This bill’s provisions seriously disagree with the state’s other international commitments, especially those regarding the duty to respect international humanitarian law,” contends the Colombian Commission of Jurists [PDF]. “So many such obligations will be transgressed if this bill is approved, that it is no exaggeration to say that since the 1991 Constitution went into effect, this is one of the legislative initiatives that has most threatened the applicability of fundamental rights in Colombia.”
The bill about to receive final passage is “implementing” legislation. It follows a constitutional amendment that Colombia’s Congress passed late last year. The earlier provision gave the military justice system “exclusive jurisdiction” over all military abuses “related to the conflict,” with the exception of a list of seven crimes: crimes against humanity, genocide, forced disappearances, extrajudicial executions, sexual violence, torture, and forced displacement. These crimes will continue to go directly to the civilian court system. Others, like assault, illegal surveillance, or homicide that does not meet the definition of “extrajudicial execution,” will go to military justice.
The current bill adds further guidelines explaining how the military courts will deal with violations of international humanitarian law (rules of war); defining the crime of “extrajudicial execution,” which doesn’t exist in Colombia’s penal code; and explaining how disputes between civilian and military jurisdiction will be resolved.
In response to outcry from Colombian and international human rights advocates, Colombia’s Congress has made important improvements to the bill’s language. But serious problems remain.
Why does Colombia need to create the charge of “extrajudicial execution”? Why shouldn’t “homicides” go to the civilian court system?
The hundreds of military personnel accused of committing “false positive” murders are currently facing charges of “homicide,” “aggravated homicide,” or “homicide of a protected person.” All of these crimes, the UN High Commissioner’s Office notes [PDF], “are under the exclusive competence of the [civilian] judicial branch. These must be investigated by the [civilian] Prosecutor-General’s Office [Fiscalía] and judged by autonomous and independent judges.”
But Article 43 of the legislation codifies a new type of crime, “extrajudicial execution,” in line with the constitutional amendment. It’s not clear why this is needed.
The reason, many experts fear, is that making “extrajudicial execution” a brand-new crime is a gambit to move the ongoing “false positives” cases out of the civilian courts, putting justice out of reach for thousands of victims and their families.
The UN High Commissioner’s office explains:
“The Office remains deeply concerned about a series of issues related to the bill and reminds Colombians that if this law is adopted, it could lead to cases of ‘false positives’ that are currently being investigated under the [civilian] criminal system being transferred for investigation and judgment by Defense Ministry authorities, instead of being investigated by an independent judicial authority, as they should. Colombian authorities have assured that the bill does not permit such transfers. In this sense, they have argued that the definitions of the crimes of extrajudicial execution and crimes against humanity are applicable to the ‘false positives’ cases and, as a result, these cases can only be considered by civilian justice. However, what is certain is that constitutional principles covering criminal law, like the principle of non-retroactivity, imply that provisions in the bill are inapplicable in practice and that, in the end, they will not impede ‘false positives’ cases from being tried by military authorities.”
In other words, because “extrajudicial executions” will only become a crime in 2013, military personnel accused of “false positives” might not be tried in civilian courts for committing this crime in previous years. Their defense lawyers will argue that they are being unjustly tried in civilian courts for a crime that did not exist when they committed it. If this argument prospers, “false positives” may go to the military courts, where guilty verdicts are far less likely, as cases of homicide. “Homicide” is not one of the seven categories of crime that the new law would send to the civilian justice system.
Investigative journalist Juanita León, director of the La Silla Vacía website, doubts that this will happen. She reports that “false positive” cases may actually remain in the civilian system – though time will tell. “Senators of different parties,” she writes, “told La Silla that it is very improbable that these crimes might leave civilian justice and pass to the military system.”
“To avoid having this happen in the constitutional reform, senators inserted a paragraph that explicitly says that false positives currently in civilian justice cannot be transferred to the military. So far, no human rights organization has denounced specific cases of false positives that, due to last year’s constitutional reform, have been transferred to the military system. In a couple of years it will be known whether human rights’ defenders’ fear was valid.”
Who is a “legitimate target”?
As the bill is currently drafted, it explains:
“It will be understood that, whenever he or she abstains from all hostile acts and does not try to escape, any person is outside of combat who:
a) Is in the power of an agent of the state;
b) Is unconscious, has collapsed or is wounded or sick, or as a result cannot defend himself or herself;
c) Has surrendered and is unarmed.”
Anyone who has not met these conditions, according to the bill, is a “legitimate target” if he or she “continues carrying out violent acts or threats.” This, to critics of the legislation, is too ambiguous, and fuzzier than the definition that already exists in international humanitarian law.
Parmenio Cuéllar, a senator and former justice minister from the leftist Polo Democrático party, argued in the congressional debate that “if a person is already in a defenseless state, but issues verbal threats, he or she might still be considered a legitimate target by the security forces.” Civilian homes and workplaces “can be attacked when a military commander presumes that a criminal action is being planned there,” contends Polo Democratico congressman Iván Cepeda.
The bill defines who is a member of an armed group, and thus a “legitimate target” for the military. The definition given (that the violence reach a certain level, that the group has a clear command structure) applies to guerrillas but also to the so-called “Criminal Bands” or BACRIM, the organized crime-linked militias whose roots go back to the pro-government paramilitaries of the 1980s, 1990s, and 2000s. Combating these groups has been primarily a police mission, with the armed forces playing only an occasional supporting role. The new bill may compel the armed forces to play a greater role in the fight against BACRIM.
Is military justice outside the chain of command?
One reason for the military justice system’s history of leniency is the status of military judges and prosecutors: they have not been independent of the armed forces’ chain of command. Military judges and prosecutors who rule against the institution risk retribution, especially when under consideration for promotions and pay raises.
The new bill takes steps to address this. Article 52 declares that the military justice system “will be administrated with autonomy with respect to institutional command through a special administrative unit.” This unit will have a “Directive Council” made up of five members, the majority of them civilians.
Our colleague at Human Rights Watch, José Miguel Vivanco, told Colombia’s El Tiempo earlier this week that this was not enough, because the bill put the commander of the armed forces and the director of the National Police on the Directive Council. “This does not de-link it from the chain of command,” he said.
As if in response, in its final debate Colombia’s Senate appears to have removed the requirement that the security forces’ top leadership be members of the Directive Council. That is encouraging. Still, with a slim civilian majority, it only takes one very pro-military civilian – a likely outcome – to ensure that the military justice system is managed by a body that prioritizes the interest of the armed forces’ high command over the interest of achieving justice in human rights cases.
A strangely uninformed debate
Today, as the debate nears its end, it is remarkable how little of it was guided by good information. The military’s claims of spurious prosecutions at civilians’ hands were upheld with very little evidence. In the end, though, that didn’t seem to matter. In a recent column, former Chief Prosecutor Alfonso Gómez Méndez noted this puzzling situation.
"The public debate has gone ahead without enough relative information, for example, about how many cases exist against members of the security forces and for what crimes. The Congress should know them. For example: are there cases against soldiers for killing guerrillas in combat? Or for fighting militarily against armed subversives? Or for typical acts of service? If so, the injustice should be undone immediately.
"Or are those acts referring to events that took place outside of combat, like torture, disappearances, or human rights violations? In such situations, no constitutional reform should assign competence to military justice, as Prosecutor-General Eduardo Montealegre has said.
"It is said that soldiers are victims of a justice system that is politicized or biased by leftist ideologies. But, which are those cases? What prosecutors or judges have deviated from their mission to commit these abuses? If the charge is true, these public servants should be in jail and not administrating justice.
“Does the Congress that discusses this reform know about these cases and does it have them documented?”
We still do not know the true extent of the civilian justice system’s alleged unfair treatment of suspected military human rights abusers. We have seen few statistics or concrete examples from Colombia’s armed forces, Defense Ministry, or from the administration of President Juan Manuel Santos. Without knowing the extent of the problem, it is hard not to conclude that the real problem is that Colombia’s powerful military is angry about recent verdicts and trials, nearly all of them having to do with abuses that took place out of combat.
It is also hard not to conclude that the change in jurisdiction over human rights cases is the military’s price for its support of the Santos government’s peace talks with the FARC guerrillas. “With this, Santos gains more military support for the peace process with the FARC,” Juanita León wrote last week.
Many Colombian experts whom we’ve consulted have little doubt that there is some sort of tacit quid pro quo at work with the armed forces: less judicial pressure in exchange for a green light for the peace talks. If this is true, it would indicate that Colombia’s elected leaders’ room for maneuver is more circumscribed, and the country’s civil-military relations are in poorer condition, than is generally recognized.