The Colombian government is backing legislation that, if approved, would curtail military accountability for human rights abuses. If these provisions had been promoted by the 2002-2010 government of hardliner Álvaro Uribe, there would have been a firestorm of justifiable criticism. But so far, President Juan Manuel Santos’s government’s human rights counteroffensive has received little attention.
Return of the “fuero militar”
Colombia’s military justice system exists to try and punish “acts of service” like insubordination or going AWOL – not abuses committed against noncombatants. When human rights abuse cases have gone before the military courts, significant convictions have never resulted. This is why military defense lawyers routinely fight to keep their clients’ cases in the more lenient military system, and out of the civilian criminal justice system. When the armed forces judge themselves, their victims do not receive justice.
Fifteen years of jurisprudence, legislation and decrees have sought to change this. They have reduced military courts’ jurisdiction, the so-called “fuero militar,” to exclude human rights crimes like extrajudicial execution, forced disappearance or torture. Now, many cases – and nearly all of the most prominent cases – go to the civilian system.
Colombia’s civilian courts and prosecutors had recently begun to make progress. A handful of high officers had been jailed for their role in past crimes, including notorious paramilitary massacres. A fraction of the thousands of “false positives” cases – in which soldiers stand accused of murdering civilians and presenting their bodies as those of combat kills – had been moving forward, slowly, in the civilian system.
That may be about to change. Colombia’s Congress is currently considering a sweeping judicial reform bill, with a series of constitutional amendments. In early November, Defense Minister Juan Carlos Pinzón quietly convinced senators to include a small but radical provision (Article 15) in this bill.
The language would create the “presumption” that all crimes committed by active members of the security forces are acts of service, and thus within the military justice system’s jurisdiction.
With this added language, the justice reform bill passed the second of eight debates in Colombia’s Senate on November 8, days after an army raid killed the FARC guerrilla group’s maximum leader, Alfonso Cano.
The senators acted with the Santos government’s blessing. Senators leading the charge to apply the “fuero militar” to human rights cases came from the Conservative and “U” parties, two of the largest in President Santos’s ruling coalition. On a few occasions in recent months, President Santos and Minister Pinzón had expressed support for including human rights cases in the fuero militar. Non-governmental organizations’ calls on these officials to abandon the idea, including a September 2011 letter from Washington-based groups CEJIL, LAWG and WOLA, went unheeded.
If approved, this constitutional change will let the military judge itself for its own abuses against civilians. Even notorious cases like “false positives” could be stripped from civilian prosecutors. The victims’ loved ones could be denied justice as untransparent military tribunals issue acquittals, or simply allow cases to languish.
The law would undo a long struggle to get human rights cases into the civilian justice system. This struggle brought decisions from Colombia’s Constitutional Court in 1997 and 2000 determining that human rights cases belonged in civilian justice. It brought Presidential decrees and Defense Ministry directives and policies favoring civilian jurisdiction. These resulted from repeated recommendations of the UN High Commissioner for Human Rights, the U.S. Department of State, and all major human rights groups.
Quoted in early November, retired Gen. Juan Salcedo Lora, president of Colombia’s Association of Retired Officers (ACORE), made clear his disdain for these efforts.
“Officers and subofficers must think twice before carrying out an operation, always looking in the mirror of what has happened to their innocent comrades … All because people wedded to the subversive groups’ ideology tore apart our fuero militar in the high courts.”
If the law once again allows the military to try itself, it will be impossible for Colombian officials and their Washington allies to talk about human rights progress in Colombia. The country will have adopted a legal framwork worthy of a rogue state.
Colombia’s Congress has another controversial piece of legislation before it. On November 30 a committee of its Senate passed, in the third of eight debates, a two-article bill called the “Legal Framework for Peace.” One of these articles would allow security-force members accused of human rights crimes to enjoy a benefit that was offered to demobilizing paramilitary leaders five years ago: light jail terms in exchange for full confessions.
The proposed constitutional amendment declares that, in principle, a future law could allow soldiers to avoid the 40-year prison term normally handed out for murders of civilians. Instead, if the paramilitaries’ “Justice and Peace” process is a guide, they perhaps could serve for 5 to 8 years after revealing the “truth” and making reparations to victims.
There are several reasons why it would be bad policy to apply lighter penalties to the military at this time.
It will deny justice for victims: families of the “false positives” victims, for instance, might see their loved ones’ murderers set free in just a few years, the last and worst of a string of insults.
It will hold the armed forces to the same standard as illegal armed groups. “Alternative penalties are peripheral measures for the demobilization of illegal groups,” argues Liberal Party Rep. Guillermo Rivera, who sponsored Colombia’s new Victims’ Law but opposes the new bill’s application to the military. “The security forces operate within the framework of legality and aren’t demobilizing. On the contrary, strict loyalty to democratic order is demanded, and this is based on respect for human rights.”
Reduced sentences are a post-conflict, transitional justice measure. But Colombia is not a post-conflict country. Passing this measure while the bloodshed continues effectively says to the armed forces: “Go ahead and commit human rights violations. No matter how many you commit, it’s almost certain that you’ll never spend more than eight years or so in prison.”
Military Public Defenders
A somewhat less controversial measure going through Colombia’s Congress is the Technical Defense bill, which would create a corps of defense lawyers to represent members of the military accused of crimes, including human rights abuses. This corps would be funded from Colombia’s Treasury, as opposed to the current system in which a non-governmental lawyers’ organization (the Defensoría Militar or Demil) is funded via contributions from soldiers’ paychecks.
Again, this is not necessarily controversial – it would be unfair to force poorly paid soldiers to hire lawyers to prove their innocence. But it’s worth noting that victims don’t enjoy anything near the same benefits. The few publicly funded lawyers representing victims of Colombia’s conflict have untenably high caseloads because of a severe lack of funding.
While these measures move through Colombia’s Congress, the Santos government has deftly placed the country’s nongovernmental human rights defenders on the political defensive.
The story begins with the July 1997 paramilitary massacre in Mapiripán, a town along the Guaviare River in southeastern Colombia. This is a very notorious case in Colombia, as it was the first time that the AUC paramilitary group operated in the country’s south, it took place over several days with clear support from the security forces, and two senior army officers were jailed for allowing it to happen.
In 2005 the Inter-American Human Rights Court determined that about 49 people were massacred in Mapiripán, and ordered the Colombian government to pay reparations to twenty-six relatives. But in mid-October, the Justice and Peace Unit of Colombia’s Prosecutor-General’s office (Fiscalía) alleged that, according to evidence gathered from demobilized paramilitary fighters’ confessions, it could only confirm twelve deaths in the massacre, and that some of those claimed killed were in fact still alive. Prosecutors intimated that some who received reparations did so fraudulently, as in the case of a Mapiripán resident who confessed to receiving court-ordered payments by falsely claiming that her husband and two sons were killed in the massacre.
Top government officials used this finding to launch an attack on human rights NGOs, particularly the José Alvear Restrepo Lawyers’ Collective, which represented several Mapiripán victims’ families before the Inter-American Court. Others used the occasion to question the Inter-American human rights system itself.
“This is very serious, it’s sad that situations like these, of crooks who can’t be called anything but corrupt, undermine the credibility of the Inter-American Human Rights Court,” said President Santos. “What has happened weakens the credibility of a respected institution like the Court and the Inter-American human rights system. These are the big losers with the Mapiripán case,” added Vice-President Angelino Garzón. “If lawyers are involved, it’s even more serious. It is wrong that there exists a minority of lawyers dedicated to these types of activities,” said Justice Minister Juan Carlos Esguerra. “Will the Lawyers’ Collective respond for its fraud against the Colombian state in Mapiripán?” tweeted former President Uribe. Wall Street Journal columnist Mary Anastasia O’Grady attacked the Lawyers’ Collective in a November 7 column entitled “A ‘Human Rights’ Swindle in Colombia.”
“We are disappointed that President Santos has breached his commitment to ‘disarm his words,’ because, like those of his predecessor Álvaro Uribe, they continue to make Colombia a dangerous place for human rights defenders,” laments a November 21 communiqué from 27 U.S., Canadian and Mexican human rights groups.
The Lawyers’ Collective says that it too was deceived by any false victims. In a strong statement, the Inter-American Human Rights Commission recalled that its information about Mapiripán was ratified by Colombia’s government itself.
“For almost a decade, the Colombian State has had knowledge of the fact that these persons had been determined to be victims of the Mapiripán massacre, and at no time did it call it into question.”
None deny that some very unscrupulous people may have falsely claimed to be victims of the Mapiripán massacre. But still, neither does anyone deny that a large massacre did happen in Mapiripán. Or that this massacre was aided and abetted by Colombia’s military.
Beyond Mapiripán, it’s possible that people have fraudulently presented themselves as victims in other cases. If so, the Colombian government must work to clarify what happened. But it must do so without shifting the entire burden of proof on the victims themselves.
In cases like Mapiripán – where the paramilitaries themselves were the only witnesses, then cut up bodies and dumped them in a river – it is impossible for most victims’ relatives to prove, beyond a reasonable doubt, that their claims are truthful. In the confusion of a week-long massacre, evidence of a victim’s death may no longer exist. Groups like the Lawyers’ Collective must be aware of the danger of fraud, but are limited in the due diligence they can perform.
That’s why it has been unseemly to see the enthusiasm with which some officials have jumped on the Mapiripán example to attack human rights defenders, at exactly the same time that they seek to loosen military accountability for human rights crimes.
As this situation continues to unfold, a few observations are necessary.
The human rights counteroffensive appears to be an ill-advised attempt to appease radicalized sectors of the military.
In June 2010 and May 2011, civilian courts began handing down stiff sentences related to one of the most sensitive cases in Colombian history: the October 1985 takeover by M-19 guerrillas, retaking by the military, and subsequent destruction of Colombia’s Palace of Justice in downtown Bogotá. In the confusion, eleven Palace of Justice cafeteria workers were seen leaving the building, but disappeared in military custody. Twenty-five years later, judges sentenced retired Col. Alfonso Plazas Vega and retired Gen. Jesús Armando Arias Cabrales to decades in prison for the crime.
Something snapped in Colombia’s armed forces after these verdicts, along with others in cases like Mapiripán and “false positives.” Things have reached such an extreme that some commanders may be refusing to fight.
According to a report by the Sergio Arboleda University’s Alfredo Rangel – who supports sending human rights cases to military courts – the army is “demotivated” by these judicial sentences.
“The judicial uncertainty to which members of the security forces are submitted as a consequence of the fuero militar abolition and the military justice system’s disarticulation are elements that justify demotivation in combat and explain the drop in the level of offensive operations against guerrilla groups.”
“In as many words,” La Silla Vacía journalist Juanita León writes in an important analysis, “an important part of the armed forces is on strike (de brazos caídos). As an officer currently imprisoned for a ‘false positive’ explained it to La Silla Vacía, ‘[FARC leader Alfonso] Cano’s death proves nothing. That operation was carried out with special troops with international support. But the rank and file is demotivated.’”
Gen. Javier Rey, commander of the Army’s Aviation Division (which has received heavy U.S. funding), told a gathering in early November that low morale isn’t the problem – the problem is the civilian justice system.
“One thing is morale, and another is distrust toward the justice system that is judging us, which doesn’t know what combat is like. That’s why we need the fuero militar and a strong military justice system.”
Note that the military is not pushing for civilian judges and prosecutors with special training for dealing with combat cases. Instead, they are pushing for the right to try their own personnel even in cases, like “false positives,” which do not involve combat. And the Santos government – facing the very real possibility that military inaction will leave it to blame if security deteriorates – is pushing to give the armed forces more protection from human rights prosecutions than Álvaro Uribe ever tried to give them.
If these claims of “brazos caídos” and “demotivation” are true, they reflect very badly on Colombia’s armed forces. The message is that if they must fight according to internationally recognized human rights standards, then they will not fight. This poisonous message would fly in the face of claims – often made by U.S. officials, citing it as a result of U.S. aid – that the Colombian military’s human rights performance is greatly improved.
If the legislation succeeds, the State Department cannot certify that human rights conditions on aid are being met.
U.S. foreign aid legislation is quite clear on this. Thirty percent of State Department aid to Colombia’s armed forces is held up until the Secretary of State can certify that “The Government of Colombia is suspending, and investigating and prosecuting in the civilian justice system, those members of the Colombian Armed Forces, of whatever rank, who have been credibly alleged to have committed violations of internationally recognized human rights.”
These certifications have been controversial in the past, and the State Department has often waited until the last possible moment (at times up to the expiration of tens of millions of dollars in aid) to issue them. If, however, Colombia moves backward – sending human rights cases from the military to the civilian justice system – it will specifically violate the language of the conditions, and the State Department will be unable to certify. Thirty percent of military aid will be frozen – and so will official U.S. claims of human rights “progress” in Colombia.
Note that the human rights counteroffensive began after the U.S. Congress ratified the U.S.-Colombia Free Trade Agreement.
Budget cuts are forcing steady reductions in U.S. aid. And now, with the October ratification of the U.S.-Colombia Free Trade Agreement, the Obama administration’s leverage on human rights is much reduced. The Colombian government need worry much less about the U.S. reaction.
What happens next
The justice reform bill, which would expand military jurisdiction over human rights crimes, is likely to come to its third of eight votes in Colombia’s House on December 1. The “peace framework” bill with alternative sentencing for soldiers passed a Senate Committee, its third vote, on November 30. Both bills are moving quickly toward passage, while the Inter-American Human Rights Court has granted Colombia’s government three months to prepare a challenge to the reparations granted to victims of Mapiripán. The human rights counteroffensive is proceeding apace.
Juan Manuel Santos has initiated some enlightened policies, particularly on victims’ rights and land restitution. After years of President Uribe calling his political detractors guerrilla supporters, President Santos has improved the tone of the Colombian government’s discourse. But actions matter too, and the Colombian government is taking actions that fly in the face of many years of reforms, jurisprudence and international recommendations.
If this human rights rollback succeeds, then the United States needs to show more distance between itself and the Santos government. The Obama administration needs to communicate its concerns clearly, and by all means avoid defending the very unfortunate course that its “ally” is taking.