Military human rights trials in Colombia: a big step backward

As head of Colombia’s military justice system, Luz Marina Gil passed human rights cases to the civilian court system. Then she was forced out.

At some point between now and the end of September, the Obama administration’s Department of State is likely to issue a document “certifying” that Colombia’s armed forces’ respect for human rights is improving. Upon that document’s submission to Congress, according to foreign aid law, 30% of aid to Colombia’s military aid, which has been “on hold” since the beginning of the year, will be released.

Among the conditions that the State Department has to certify is the following:

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, including extra-judicial killings, or to have aided, abetted or benefitted from paramilitary organizations or successor armed groups, and the Colombian Armed Forces are cooperating fully with civilian prosecutors and judicial authorities in such cases.

This condition exists because human rights abuses committed by Colombia’s armed forces are notoriously difficult to investigate and punish. “Estimates of the current rate of impunity for alleged killings by the security forces are as high as 98.5 per cent,” noted a recent report on Colombia from the UN Special Rapporteur for Extrajudicial Executions. “Soldiers simply knew that they could get away with murder.”

Since the late 1990s, Colombia’s justice system has endeavored to ensure that cases of human rights abuses get tried in the country’s civilian court system, as the human rights condition in U.S. law specifically requires. The Colombian military has its own separate justice system, designed for trying crimes committed as acts of service — a definition that does not include abuses of civilian non-combatants. Elements of the military have long resisted human rights trials in the civilian system, and fought to keep cases under military justice. If these elements successfully challenge civilian jurisdiction, the military gets to try itself for human rights crimes, and the likelihood of punishment falls nearly to zero.

For a brief period, perhaps 2006 to 2008, Colombia did see a notable improvement on this measure. Military challenges to civilian jurisdiction fell sharply, and more abuse cases began to go before civilian judges and prosecutors. Newly inaugurated President Juan Manuel Santos, who was minister of defense at the time, gets some credit for this improvement.

After Santos left his post in May 2009, hardliners took over. The military-civilian jurisdictional battle once again heated up, and prosecutions of many serious abuses ground to a halt. This major step backward happened at a terrible time: just as the justice system began to confront a wave of very serious allegations that the armed forces may have murdered more than 2,000 civilians since 2002, in many cases to reap rewards for falsified combat killings, known in Colombia as “false positives.”

May 2010 report from Colombian investigative journalist Juanita León, editor-in-chief of the La Silla Vacía website, tells this disturbing story. It points to a major reversal in Colombia’s fight against impunity: a reversal that directly contradicts any State Department declaration that the country’s human rights situation has recently improved.

A translated excerpt:

[Juan Manuel Santos] adopted important measures to bring an end to these crimes [extrajudicial executions] within the Army. …

[These included] naming Luz Marina Gil as director of the military criminal justice system. Gil, daughter of a general, had coordinated the state’s defense before the Inter-American Court of Human Rights. After 18 years in the Defense Ministry, she became the first woman and the first civilian to take the reins of the military criminal justice system. …

People who worked with Santos in the Ministry, and at least two human rights defenders with whom I spoke, said that Santos ordered Gil not to provoke a clash of competencies [between civilian and military justice], and to transfer the greatest number of cases against soldiers for “false positives” to the civilian justice system.

This order wasn’t fully complied with, as between 2008 and 2009, the Prosecutor-General’s [civilian] Human Rights Unit noted 291 cases of conflict of competencies in which the military justice system did not voluntarily hand over cases.

But even so, during his tenure, more cases were passed to civilian justice before Santos left office, in May 2009, than after he left his post.

For example, during the first four months of 2009, 57 cases were voluntarily transferred [from military to civilian justice]. But one week before Santos left his post to run for the presidency [in May 2009], Gil was forced to resign because she failed to respond to a “freedom of information” request. This punishment was interpreted by many as a sophism intended to get her removed from her post.

Her replacement, under the command of Gabriel Silva, the [defense] minister who succeeded Santos and who arrived in the Ministry with an express order from President Uribe to defend the military against “false charges,” immediately began to invoke the collision of competencies to keep cases from exiting the military justice system. In the last four months of 2009, only 17 cases were passed to the civilian justice system. And between June 2009 and January 2010, 317 conflicts of competencies were registered.

In a recent report strongly recommending that the State Department refuse to “certify,” the Colombia-Europe-U.S. Coordination, a network of prominent human rights groups, adds more grim data:

The voluntary transfer of cases from military to civilian jurisdiction has fallen to practically insignificant levels under the management of the current defense minister [Silva], and especially since the former director of military criminal justice [Gil] was forced to resign in May 2009. From an average of 34.5 cases per month [transferred to civilian justice] during 2008, there have been less than three cases per month during the last four months of 2009.

Gabriel Silva, the defense minister associated with this greatly increased resistance to civilian human rights trials, will soon be in Washington as the Santos government’s ambassador to the United States.

The effect of this big step backward is evident even in the most outrageous recent cases of human rights abuse, including the 2008 Soacha killings, in which dozens of army personnel are facing trial for luring young men from a poor Bogotá slum with promises of employment, then killing them and presenting them as armed-group members killed in combat.

The Coordination report discusses the difficulty of trying the Soacha case.

In the case of the 16 young men from Soacha, the government committed itself to a severe, prompt and exhaustive investigation. More than 2 1/2 years after these crimes, sentences have not resulted. The judicial processes are advancing very slowly, and have been blocked by a coordinated strategy of actions to impede their advance. Most of this strategy originates from the military, and with the Military Defender’s Office’s efforts to achieve impunity in this case.

Of the 62 military personnel implicated, 54 have been set free pending trial because preventive detention deadlines have passed. … In other cases, which don’t have as much visibility, impunity is much greater.

The report goes on to describe a situation that plainly violates the condition in U.S. foreign aid law regarding military cooperation with human rights cases.

During the past year there has been an enormous backward movement in the conditions that had been reached with regard to military subjection to civilian authority. Military commanders, from the defense minister to the commanders of different forces, carried out a series of activities that implied a refusal to acknowledge the principle of civilian control of the Army. …

[These include] the institutional and collective defense of Colonel [Alfonso] Plazas Vega, before the [June 2010] verdict condemning him to 30 years in prison for the aggravated disappearance of 30 people following the [1985] retaking of the Palace of Justice. The military high command, acting jointly, appeared in combat dress before the television cameras, together with the President of the Republic, in a speech that publicly rejected the decision of the judge who issued the sentence [who shortly afterward was forced to leave the country].

Juan Manuel Santos, as president, is empowered to restore the primacy of civilian justice in Colombia’s human rights prosecutions. Until there is clear evidence that he is doing so, though, a State Department human rights certification will clash badly with a worsening reality, and could send a damaging signal at a sensitive moment.