Due to the sly wording of a constitutional reform bill in Colombia, thousands of human rights abuses allegedly committed by the military could be tried by the same military accused of crimes, an opposition lawmaker warned on Monday.
The proposed bill would allow military courts to oversee humanitarian crimes allegedly committed by members of the security forces “except in the cases of genocide, forced disappearance, forced displacement, kidnapping, sexual violence, extrajudicial executions, and torture.”
However, the language of the bill could allow many of these crimes to be passed into the military’s hands, particularly in cases of extrajudicial killings or “false positives,” as they are called in Colombia.
Here is where the potential problem lies: while the proposal states that the military would not oversee “extrajudicial executions,” such a crime does not exist in the Colombian justice system. Those found guilty of killing civilians and later claiming they were rebels have been charged with homicide, and sentenced up to 40 years in prison.
The linguistics of law
The crime of “sexual violence,” which the bill also excludes from military jurisprudence, is also non-existent in Colombian law; what does exist is “violent sexual intercourse” and “sexual abuse.”
Additionally, the bill will allow cases of the illegal wiretapping of non-military targets to be transferred to military courts, even though it is a crime unrelated to warfare and in Colombia falls under the jurisprudence of civilians courts.
The bill, if passed, would apply retroactively to all open cases against the military. Of the 3,400 current investigations into 5,700 members of the military, 87% of these are for extrajudicial killings or “false positives,” according to leftist opposition Senator Ivan Cepeda, founder of the Movement of Victims of State Crimes.
“This could end in impunity for crimes against humanity, in a covert form.” Cepeda told Colombia Reports.
Any negotiated peace agreement between the Colombian government and the country’s largest rebel group, the FARC, will need to be accompanied by a form of transitional justice. In past peace agreements, transitional justice has resulted in lenience toward offenders in order to end an ongoing armed conflict.
The Colombian military, like the FARC, can also benefit from this transitional justice, President Juan Manuel Santos has said.
However, according to the leftist opposition senator, the bill doesn’t seek a form of transitional justice but rather an evasion of it.
“We are not against transitional justice for the military,” said Cepeda. “But it has to be open. It must respect the rights of victims.”
The senate will convene again in the coming weeks to debate the bill for a third time.
The “false positives” scandal, which involved members of Colombia’s military killing more than 4,000 civilians and dressing them up as enemy combatants in order to boost numbers of deceased militants, prompted the once invulnerable military to be stripped of its internal judicial system in 2008 because the armed forces dragged its feet prosecuting those responsible.
FACT SHEET: False positives
Since then, the military and the government have been fighting to reclaim military judicial autonomy.
In June of last year, Congress passed a similar bill, allowing the armed forces to use their own tribunals for all crimes except seven designated as crimes against humanity. That bill was struck down as unconstitutional.
The proposal gives the Prosecutor General’s office one year to identify all cases against the armed forces, in order that they be transferred to the military criminal justice system.
- La posible impunidad para los militares (Semana)
- Interview with Ivan Cepeda