Friday, February 24, 2012

Colombia steps back from the human rights precipice

Last November, Colombia’s government proposed to reduce the civilian justice system’s ability to try and punish human rights abuses committed by the country’s U.S.-aided military. On this blog and elsewhere (PDF), the organizations participating in the “Just the Facts” project expressed concern about this proposal. Late last week, the Colombian government withdrew it — or at least, delayed it and modified it substantially. Despite some continued concerns, we applaud this step.

Defense Minister Juan Carlos Pinzón quietly added the original proposal to a larger package of judicial reforms moving through Colombia’s Congress. It sought to have all crimes committed by soldiers, including human rights abuse, be considered “acts of service” and thus sent to Colombia’s military justice system, which has a very poor track record of investigating and punishing abuses within the ranks.

The proposal, which would have been a big step backward for the cause of human rights in Colombia, appeared to be a response to military pressure to end what officers called “judicial insecurity.” The term refers to a perception within the ranks that human rights investigations and trials, including over 2,500 extrajudicial execution cases mostly from the past decade, were making it difficult for the troops to carry out operations.

Indeed the civilian criminal justice system, as a 2006 Defense Ministry order was being interpreted, had become the first body to investigate and review every combat death, whether an abuse was alleged or not. Perhaps because the government at the time denied that an “armed conflict” existed, the result was a conflation of international humanitarian law and criminal law.

This was not the intent of the Colombian human rights community’s decades of efforts to curtail impunity by moving abuse cases out of the military justice system. But the November proposal, which was passing through Colombia’s Congress with little debate and with strong military backing, would have moved the bar way too far in the other direction. It would have sent all cases first to a military justice system that suffers from a severe lack of capacity, and whose judges are military officers within the chain of command and subject to potential retribution for decisions that do not please their superiors.

Faced with an outcry among human rights defenders and quiet expressions of concern from U.S. officials, the government of President Juan Manuel Santos sent the proposal to an ad hoc “Commission of Experts.” The Commission was made up of two former Supreme Court judges, a former Justice Ministry official (and right-of-center newspaper columnist), and two retired generals, one from the police and one from the army.

The commission determined that the November proposal should be withdrawn from the justice reform bill. It suggested that a different proposal be considered in a standalone bill. Santos government officials say that this new proposal will likely be issued in about a month. The new bill would send allegations of the most serious human rights crimes immediately to the civilian justice system: crimes against humanity, torture, forced disappearance, and extrajudicial executions.

However, while jurisdiction about specific crimes remains to be determined, this proposal would likely send other violations of international humanitarian law — such as theft, assault, accidental killings of non-combatants during combat, or indiscriminate bombings — to the military justice system. Complicated or disputed cases (for instance, when relatives or human rights defenders allege that a military “combat kill” was an extrajudicial execution) would go first to a mixed commission made up of military and civilian judicial police, which would review the evidence.

We applaud the Santos government’s decision to step back from a proposal that was too radical, and to establish a more open, deliberative process to clarify responsibilities in line with international humanitarian law.

Some Colombian observers have alleged that the course change in Bogotá owes to pressure from U.S. NGOs, as well as quiet Obama administration diplomacy. (Under U.S. law, Colombia may have stood to lose millions of dollars in military aid if the State Department could not certify that Colombia is sending abuse cases to civilian courts.) We do not know if this is true.

In this author’s view (speaking as Adam Isacson and not in the name of the entire “Just the Facts” project), Santos government officials themselves likely had little enthusiasm for their original, radical proposal, but were under intense pressure to move it forward. If anything, vocal advocacy from U.S. groups merely helped to counter-balance that pressure, creating political space for these officials to adopt a more moderate course.