Last month, Colombian lawmakers passed a bill detailing the functioning of the Special Jurisdiction for Peace, a judicial system negotiated with the FARC as part of the peace talks. The bill includes a provision – proposed by supporters of President-elect Ivan Duque – that is likely to halt prosecutions of killings by the army and other abuses.
Unless defendants request otherwise, the provision suspends Special Jurisdiction prosecutions of soldiers of the Colombian Armed Forces until the government creates a “special and differentiated process” for them. Congress has a year-and-a-half to pass a bill detailing that process.
Critics have characterized the provision as a distortion of the peace accord – likely to grant more lenient treatment to government soldiers than to FARC fighters. But it’s worse than that. The measure could put prosecutions against army soldiers and officers on complete hold.
Already, judges have moved some cases from the ordinary courts to the Special Jurisdiction. And a bill passed by Congress last November – now under Constitutional Court review—goes much farther. If approved, it will largely stop prosecutions in regular jurisdictions for crimes linked to the armed conflict. Under that bill, ordinary courts cannot, among other activities, issue judgments, or send suspects in such cases to pre-trial detention.
With these changes in place, army generals now under investigation for their brigades’ systematic execution of civilians could slip into a convenient legal limbo. Victims of these killings, committed across Colombia between 2002 and 2008, were recorded as enemies killed in combat, and officers were rewarded for running up the body count. The killings came to be known as “false positives.”
The Office of the Prosecutor of the International Criminal Court (ICC) is monitoring proceedings in these cases and if it determines that national authorities are unwilling or unable to genuinely investigate and prosecute them, it could open an investigation.
While dozens of soldiers have been convicted for false positives, few commanders who led the brigades – and later rose through the military ranks – have been held accountable. No army general has been convicted for these crimes. Many will now benefit from the new rules.
Take, for example, the case of General Mario Montoya Uribe. He commanded the Colombian army between February 2006 and November 2008, when false positives peaked. He has been under investigation by prosecutors in the Colombian justice system at least since 2015. In March 2016, prosecutors summoned him for a hearing at which he was to be charged. But the Attorney General’s Office backed off. Montoya has yet to be charged.
Prosecutors did not lack evidence. Human Rights Watch has presented convincing evidence that Montoya could bear criminal responsibility for the hundreds of killings committed under his watch. Testimony by six army generals strongly suggests that Montoya knew—or should have known—about false-positive killings under his command—and that he took no meaningful measures to stop them. The new legislation will put the proceedings against Montoya in the regular courts on hold.
Or take the case of General Henry William Torres Escalante, the only false-positives prosecution of an army general that has made meaningful progress. In May, a court in Yopal initiated a trial for his role in the killing of Daniel Torres Arciniegas and his son Roque Julio Torres Torres. Troops of the 16th brigade, under General Torres’ watch, murdered the two farmers in Casanare Province in March 2007—and reported them as guerrilla fighters.
The evidence against General Torres was strong. It included soldiers’ testimony that he knew of the killings, as well as documents that strongly suggest he was trying to close investigations against the soldiers involved.
Yet on June 20, a judge decided to transfer the case to the Special Jurisdiction for Peace, which has summoned him to a preliminary hearing. The provision passed by Congress last week would stall the process unless Gen. Torres Escalante requests otherwise.
Victims have waited more than a decade for army commanders to stand trial for murders committed on their watch. The latest changes will only add to the victims’ frustration. They have every reason to wonder if top commanders will ever be held accountable.
Author Jose Miguel Vivanco is Americas director at Human Rights Watch.