Criminal proceedings for top commanders in 2005 massacre get traction

Apr 26, 2013 | Human Rights, Impunity and Justice, News, Our Partners, Peace and Nonviolence

By Susana Pimiento

Criminal proceedings for top commanders in 2005 massacre get traction
After eight years, the criminal investigation for the role of high military officials in the 2005 massacre in the San Jose Peace Community is finally getting some traction.

On the eve of the International Criminal Court Prosecutor’s visit to Colombia, the Colombian prosecutor finally ordered the interrogation of Generals Héctor Jaime Fandiño and Luis Alfonso Zapata. General Fandiño headed the 17th Brigade at the time of the massacre, but had been summoned to Bogota to address a recent ambush by the FARC guerrillas in which 18 soldiers were killed, making General Zapata the brigade’s acting commander. Both Fandiño and Zapata are School of the Americas graduates. The International Criminal Court raised concerns about the lack of accountability of high-ranking Colombian officers in its preliminary report issued last November.

On the morning of February 21, 2005, peace community leader Luis Eduardo Guerra, his son Deiner Andres Guerra, and his partner Beyanira Areiza were brutally killed in the town of Mulatos by a joint operation of the 17th Brigade and “Tolova Heroes” paramilitary death squads, under the command of Diego Murrillo, also known as “Don Berna.” Hours later, in the neighboring settlement of La Resbalosa, Alfonso Bolivar, his wife, and two children, ages six and 18 months, were also killed and dismembered by troops from the same unit.

If successful, this criminal investigation would hold accountable higher-ranking army officers who reportedly took part in the planning of the military operation that resulted in the massacre and subsequent efforts to cover it up. In June 2012, an appeals court in a separated criminal investigation handed out 34-year prison sentences to four low-level officers. In 2008, Captain Guillermo Gordillo pled guilty to involvement in the massacre, in a plea bargain agreement, and was sentenced to 20 years in prison.

General Zapata Uribe allegedly took part in planning the military operation and was in charge of the brigade during the five days that the operation lasted. For over five days and nights the army and paramilitary troops patrolled and camped together. During that time, trial documentation shows, troops on the ground maintained communication with their superiors, and even received supplies from the brigade headquarters. In an apparent strategy to cover up the operation, troops deliberately and consistently sent inaccurate coordinates to headquarters during the course of the operation.

During Zapata’s tenure as head of the 17th Brigade (from May 2005 until August 2007), several members of the peace community were killed by his troops in separate incidents. Among them were the November 2005 killing of Arlen Salas David, in Arenas Altas, and the December 26, 2005 killing of civilians in La Cristalina (included a pregnant woman and a child). Just two weeks later, on January 12, 2006, his troops abducted and killed Edilberto Vásquez Cardona, also a peace community leader from Arenas Altas. In 2009, seven low level officers were senteced to 30 years of prison for the Vásquez Cardona killing.

General Zapata was promoted to head the Fourth Army Division and then further promoted to Army Chief of Operations in November 2009. Zapata lasted only one week in this position and resigned abruptly, alleging personal reasons.

General Fandiño’s role in the massacre first became apparent in July 2008, when Captain Gordillo gave a detailed account of Fandiño’s cover-up efforts. According to Gordillo, in November 2007, soon after a low-ranking member of the paramilitaries — Adriano Cano — told a government investigator about the joint military-paramilitary operation that resulted in the massacre, Fandiño, then working in Bogota, summoned Gordillo to Bogota and told him “under no circumstance was he to say that there had been armed civilian guides nor any other people but army personnel in the military operation that resulted in the massacre.” Human rights attorney Jorge Molano, representing the victims in the massacre criminal investigation, immediately requested the prosecution to start proceedings against Fandiño.

Colombian legislation affords a special jurisdiction for high-ranking public officials, including some generals, requiring that probes against them be handled by the attorney general himself. This special jurisdiction has in practice been a shield against any type of accountability. From 2008 until late 2011, the probe accumulated dust in the attorney general’s filing cabinet, and not a single piece of evidence was collected during the discovery period. It was only in late 2011, when Vivianne Morales was appointed attorney general, that Zapata and Fandiño’s probe was returned to the human rights prosecutor who had handled the investigation of low-ranking officers and paramilitaries for the 2005 massacre.

Since the investigation was transferred back to Casas, he has received multiple death threats, which could explain why the process has moved slowly. Attorneys Jorge Molano and German Romero, who represent the victims, have also received threats. A threat analysis elaborated by Interior Ministry found that Molano and Romero are in “a situation of extraordinary risk.” But the office has not given them protection.

Other high-ranking army officers have also allegedly played a role in the massacre or cover-up, but they haven’t yet been questioned. Among them is General Mario Montoya Uribe, who at the time of the massacre was commander of the First Division of the Colombian Army. No progress has been made in a probe of his involvement, despite multiple pieces of evidence indicating his involvement. Indeed, Montoya actually traveled to 17th Brigade headquarters to plan the operation and was involved in the decision to make it a joint military-paramilitary operation.

Another official being investigated is General Carlos Ospina Ovalle, who headed the Armed Forces in 2005. Ospina currently holds the Chief of the Defense Chair at National Defense University in Washington. Like Generals Zapata and Fandiño, Montoya and Ospina Ovalle are School of the Americas graduates.

Both Ospina Ovalle and Montoya Uribe have been linked to serious human violations and collusion with paramilitary death squads during their tenure as heads of the Fourth Brigade (that has headquarters in Medellin), for which they have not been prosecuted. Ospina Ovalle headed the Fourth Brigade in 1997, when paramilitary death squads in El Aro, Antioquia, killed 15 civilians accused of having links with the guerrillas, raped several women, and burned down 43 houses.

The Inter-American Human Rights Court, in July 2006, found the Colombian state responsible in the El Aro massacre. On the role of the army, the Court stated (pdf, Sect. 133) that “far from taking measures to protect the population, members of the Army not only acquiesced to the acts perpetrated by the paramilitary groups, but at times collaborated with and took part in them directly.” In 2008, paramilitary leader Salvatore Mancuso, who was sentenced to 40 years in prison for the El Aro massacre, confirmedbefore a prosecutor that they had received logistical support from the military and police.

As for General Montoya Uribe, numerous accusations of collusion with paramilitary death squads date back to the 1970s. A CIA report leaked to the Los Angeles Times in 2007 documented that Montoya Uribe had colluded as chief of the Fourth Brigade with paramilitary death squads during “Operation Orion,” an October 2002 operation designed by the Fourth Brigade to combat guerrillas in a poor district of Medellin. Operation Orion resulted in the forced disappearance of more than 40 people. Paramilitary leader Diego Murillo subsequently confirmed the collusion between paramilitary death squads and the army in Operation Orion in a February 2009 affidavit.

General Fandiño was deposed on April 21 and charged with the crimes of murdering civilians and conspiracy. General Zapata is scheduled for formal questioning on April 29, and is expected to be charged as well.

Recent reforms to Colombian military criminal law could further shield high-ranking army officers from any responsibility in crimes against humanity. Last December, the Colombian congress approved a reform that will transfer investigations for crimes committed by armed forces to military tribunals, what is known as “military fuero.” As reported by the Colombian online news site, La Silla Vacia, legislation that implements the military’s expanded jurisdiction would eliminate “command responsibility,” a doctrine by which military commanders are responsible for the war crimes of their subordinates, from Colombian law.

In a positive move, the U.S. State Department joined 13 other countries at the United Nations Universal Period Review on human rights, in Geneva, who voiced concerns on April 23 about the reform, demanding that human rights violations committed by the armed forces be tried in civilian courts.