Expansion of Colombian Military Criminal Jurisdiction

Jan 30, 2013 | Human Rights, Impunity and Justice, News, War and Conflict

Photo: Pablo Serrano

Impunity Guaranteed

By Alejandro Gonzalez

December was marked by an increase of military presence in the San José de Apartadó Peace Community and surrounding veredas (settlements). Helicopters flew constantly, while troops walked by and positioned themselves in strategic points. While peace negotiations are taking place in Cuba, the government insists on an increased military offensive, which seems to be its strategy for 2013.

The might of the Colombian Army and its allies is felt not only in the field but also in the legislature. On December 11, the Colombian Senate approved a constitutional reform that expands significantly the scope of the military criminal jurisdiction. The initiative, supported by Defense Secretary Juan Carlos Pinzón, passed despite strong and numerous criticisms by national and international human rights defenders and organizations.

Well respected national organizations, such as the Colombian Commission of Jurists, the José Alvear Restrepo Lawyers Collective, and Movement of Victims of State Crimes, together with international organizations such as Human Rights Watch, Robert F. Kennedy Center for Justice & Human Rights, Inter-American Commission on Human Rights, the UN High Commissioner for Human Rights, and the Office of the High Commissioner for Human Rights in Colombia, all expressed their deep concerns regarding the reform. They concluded that it represents a step backwards for the defense of human rights and an increased risk for impunity. In an unprecedented event, 11 UN human rights rapporteurs wrote an open letter to the government stating that the constitutional reform “would effectively undermine the independent functioning of the judiciary by allowing the military justice to investigate, process and judge these crimes.”

While some crimes such as genocide and other grave human rights abuses are excluded from military jurisdiction, military courts will now try other international human rights and humanitarian law crimes. These include arbitrary detention; cruel, inhuman, or degrading treatment; and other violations such as violence against the person and mutilation; taking of hostages; outrages upon personal dignity, including humiliating treatment; and the obligation to treat persons taking no active part in the hostilities humanely in all circumstances, without any distinction on grounds of ethnicity, religion or faith, sex, birth or wealth, or any other similar criteria, prohibited by virtue of Common Article 3 of the 1949 Geneva Conventions.

Additionally, the military criminal justice system is now responsible of the initial stages of investigation, so military officials decide which court has jurisdiction, to the detriment of an independent evaluation and the principle of natural judges established under international law. The reform also applies retroactively, so that cases now being tried under the ordinary criminal justice system may be transferred to military courts.

The expansion of military jurisdiction in Colombia is clearly incompatible with international standards, with well-settled case law of the Inter-American Human Rights Court, and with other Colombian obligations under international law. The rule is very clear: “military jurisdiction is not the competent jurisdiction to investigate, prosecute and punish the authors of alleged violations of human rights, but instead corresponds to the ordinary justice system; the military criminal jurisdiction shall have a restrictive and exceptional scope and be directed toward the protection of special juridical interests, related to the tasks characteristic of the military forces.”

The concerns regarding the reform aren´t unfounded, considering the long history of systematic abuses committed by military and police forces in Colombia, together with the high rates of impunity. The scandal that came to be known as “false positives” is still fresh in Colombians’ minds. The practice consisted in the extrajudicial killing of civilians by the Colombian Army, which then falsely claimed them as guerillas killed in combat. The International Federation of Human Rights documented 3,345 cases, during the period 2002-2008, while the Office of the UN Human Rights Commission’s 2011 annual report observed that these extrajudicial executions continue to occur.

It’s chilling when you think that this practice was carried out with the acquiescence of high-level Army officials, who actually gave incentives for such killings. It becomes even more chilling to U.S. citizens the fact that the Colombian military encouraged a high body count, while military aid keeps flowing from the States under Plan Colombia. So whose money and interests are really behind these extrajudicial killings? According to some U.S. declassified documents published by the National Security Archive in January 2009: “[t]he CIA and senior U.S. diplomats were aware as early as 1994 that U.S.-backed Colombian security forces engaged in ‘death squad tactics,’ cooperated with drug-running paramilitary groups, and encouraged a ‘body count syndrome…’

Despite the fact that gross human rights violations committed by the Colombian army have been widely documented, U.S military assistance keeps flowing (around 8 billion dollars since 2000, and counting). Under the “war on drugs,” while there is little decrease in the cocaine exported from Colombia to the United States, Colombian peasants continue to be criminalized and their food crops fumigated, leaving them with nothing to eat.

The financial system is dependent on drug money. Recently a transnational bank involved in money laundering in the US was fined, but no criminal charges were filed, as they may destabilize the financial market. Such money laundering benefits drug cartels that decapitate and dismember bodies in México and Colombia.

This world is definitively upside down, and the so-called “war on drugs” takes a lead on this nonsense. The military continues to commit abuses, and continues to receive money, rewards and incentives. With the expansion of the military courts’ jurisdiction, the message to Army officials seems to be: Continue committing human rights violations; impunity is now guaranteed.

Photo: Pablo Serrano