What role and oversight should the military have? This question has a long and loaded history in Latin America. Argentina, Chile, Brasil and Uruguay experienced some of the longest and hardest-line military dictatorships in the subcontinent. After decades of truth building efforts and trials against military officials who had conducted hundreds of bloody politically motivated crimes, these countries began to realize there needed to be a strict division between military power and the exercise of government.
“Military justice is to justice what military music is to music”
As an institution, the military should always be subsumed under civilian rule, concluded these nations after horrifying atrocities and popular demands for change. It followed that civilians would judge the military’s actions as well, since the institution needed to be purged from politically motivated actors and unlawful attacks against civil society.
Unlike its counterparts, Colombia spent the last year debating whether civilian oversight of alleged military crimes was actually a good idea.
If the military are exposed to such high risks in combat, why should someone who does not understand what it entails to be in the army judge these officials’ alleged crimes?
Such question inspired the bill known as the reform to the military justice system. This constitutional reform sought to allow fellow military officials to judge their counterparts’ actions. Uncharacteristically fast, Congress passed said bill in December last year and a statutory law last June, despite Human Rights Watch’s advice not to do so.
Amidst high governmental pressure to pass the reform, opposition Congress members filed a lawsuit against the bill at the Constitutional Court, which nullified the bill on procedural grounds last Wednesday.
Though the bill was knocked down, the decision has revived common misconsconceptions about the role of the military and the oversight under which the institution must be held. In this piece I aim to deconstruct common claims in favor of special benefits for police and military officers and illuminate an alternative but more rigorous view of justice.
If they die for us, they need more protections from ‘unjust’ accusations
The Colombian Minister of Defense, Juan Carlos Pinzón, ample sectors of Congress and public opinion figures continuously remind the population that the armed forces are the only ones who willingly risk their lives for the country’s security. Thus, sectors such as the military and the police should enjoy especial protections that honor their commitment and lift up their collective morale.
This kind of emotive argumentation is legitimate: the lives of officials who pursue a career defending a state commanded by politicians and other third parties are honorable. Yet, the argument is not democratic or legally informed.
The reasoning that the military should receive benefits because they sacrifice their lives for the population is a narrative that oversees the legal commitments to which state employees need to abide. Public servants, military and police officers included, are trusted with the role of pursuing the public good. Armed officials, in particular, are trusted with the use of weapons to coerce the population when necessary. Thus, the role entails an incredibly high need for law-abiding behavior.
If the state, representing the people, gives someone a gun, the expectation is that the person will use that weapon in full compliance with the Constitution. For this compliance to be ensured, armed officials should not be given benefits in their legal treatment; quite the opposite, the highest oversight and the most unbiased tribunals should determine whether their actions acted in accordance to the trust that was deposited in them in the first place.
In addition to constitutional theory, recent events in Colombia further advise against expanding the military jurisdiction. Enough reasons suggest colleague cover-ups will occur if the military is allowed to judge itself about grave human rights violations and war crimes. The most visible example is the ‘false positives’ scandal, which implicated military officials killing nearly 4,000 civilians to boost their anti-insurgence performance rates. At the time of the scandal, the armed forces dragged their feet prosecuting those responsible and the military institution was stripped of its internal judicial system in 2008.
As of 2012, there was a 98% impunity rate for all ‘false positives’ cases and 23 new cases had been reported. Indeed, there is an ongoing history of abuses, institutional flaws and macabre incentives that continue to enjoy impunity even under civilian jurisdiction.
Just last Sunday news broke that a high magistrate received 400 million Colombian pesos to transfer a military official involved in a false positives case from a civilian court to a military tribunal. If military justice did not guarantee impunity and colleague cover-ups, why would this colonel have paid so much to be transferred?
Knowing this background, why would anyone trust the military needs less external oversight? Would the nearly 4,000 victims of extrajudicial killings support such a system?
There is a ‘judicial war’ against the state by so-called human rights defenders
Sitting with a team of Colombian human rights lawyers and academics at the US State Department, I had the opportunity to participate in a hearing about the expansion of the military jurisdiction in Colombia about a year ago. At the session, I heard the set of arguments against the bill that rarely get covered in Colombian mainstream media.
The conclusions at the hearing were categorical: the bill promotes impunity for armed officials who commit grave human rights violations, dishonors the lived experiences of victims and blocks their access to justice by allowing the military to control how its own wrong-doings are judged.
For the Colombian government and the military, this kind of analysis and human rights advocacy is known as “judicial war.” The logic is that human rights advocates are unjustly persecuting the army for its role in defending the country from insurgency. Former president Alvaro Uribe Velez exemplified this discourse when he equated these human rights lawyer collectives with terrorist groups.
Rather than terrorists, these collectives defend victims of massacres and violent attacks performed by the military at national and international tribunals. Regardless of ideology, if one agrees with the need for justice and the rule of law, crimes and mistakes performed by public officials in any institution must be investigated and prosecuted.
Why didn’t Mr. Uribe defend the rule of law over what he perceived to be a political attack?
The highly loaded notion of ‘judicial war’ found fertile ground in the minds of highly ranked military officials who thought of human rights activists as worst than guerilla fighters. Having gained support at the highest level of government, with an outspoken anti-human-rights-defense president, public agencies such as the Administrative Department of Security (DAS) engaged in wiretapping practices against human rights defenders and Supreme Court judges far worse than Watergate. In contrast, Congress recently knocked down a bill that sought to block promotions of military officials involved in human rights violations and false positives. As such, more than a ‘judicial war,’ there seems to be a bias toward military impunity above an institutional commitment to promote the rule of law.
The reality of the situation is that the democratic security policy has generated massive human rights violations: massacres, displacements, targeted killings against innocent civilians, etc. These horrifying “collateral effects” involve powerful and highly ranked military men and politicians, who have chosen to attack legitimate human rights litigation and framed the issue as a deliberate attack against the military. The result is a perfect cover up of legal responsibility and a society convinced that those defending the social rule of law are the story’s villains.
What does real justice entail?
Let’s rethink for a moment the argument in favor of expanded benefits in the investigation and persecution of crimes committed by the military: who does it really benefit? Are law-abiding and responsible military officers really hurt by a robust civilian jurisdiction? Does human rights litigation make the army weaker or does it instead strengthen the military by pointing out the practices that contradict national and international legislation protecting all Colombian citizens?
The risks involved in fighting against insurgent guerillas won’t change with a military jurisdiction bill. So, Mr. Pinzón’s emotional rhetoric doesn’t even have a material foundation. Though, the ability of highly ranked officials to cover up their responsibility in operations involving grave human rights violations will increase with said bill. Such cover-ups could increase the already astronomical impunity rates, further block the country’s ability to reformulate inhumane security policies and prevent judicial tribunals to reconstruct the truth from previous horrific and widespread violations.
The list of potential shortfalls is long. That is why Latin American nations with a long history of military repression and state violence have opted for the rule of law. Colombia has seen similar repression and violence over decades but it has yet to decide whether it will frame the issue as a ‘human rights vs. the military’ or learn from its own and other countries’ histories.
Victims often speak about their right to reparations, truth and reconciliation. Colombia should move in that direction and embrace rigorous scrutiny in the military, not avoid it. The bill is now dead, but Mr. Pinzón is currently seeking Congress to approve a budget that will finance increased legal defense for military officers. Wouldn’t this money be better employed in strengthening the Attorney General’s Office and reduce the 98% impunity rate in military crimes? This decision would shift resources from backing impunity to supporting victims instead.
The debate over military justice demands that we consider a more rigorous view of justice. Real justice entails a country’s ability to continuously correct its institutional flaws and repair its victims. The military, as the most coercively powerful institution, should join first in this commitment and embrace civilian oversight at its deepest and most effective level.
 See, for instance, Andreu-Guzman’s, Military Jurisdiction: “The Doctrine of National Security, in vogue from the 1960s in military academies in the USA, gave rise to authoritarian and dictatorial governments and serious human rights violations in several parts of the world. The Doctrine of National Security played a key role in the organization and development of the military dictatorships which were installed in several countries of the Southern Cone of Latin America in the 1960s and 1970s: in Brazil from 1964, in Argentina from 1966 and again later from 1975, in Chile from 1973, as well as in Uruguay. Other countries of the region which did not have military governments were nonetheless strongly influenced by the doctrine, especially where public order, the armed forces and military criminal jurisdiction were concerned. It is interesting to note that in the 1960s and 1970s, the majority of Latin American countries, whether or not they had de facto governments, adopted similar national security laws”. http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2004/01/Military-jurisdiction-publication-2004.pdf
 “Military jurisdiction is often used as a means of escaping the control of the civilian authorities and of consolidating the military as a power within society, as well as a tool through which the military authorities can exert supremacy over civilians. The Human Rights Committee has repeatedly stated that States must take steps to ensure that military forces are subject to civilian authority. (…) Similarly, the United Nations Commission on Human Rights pointed out that promoting, protecting and respecting human rights and fundamental freedoms means that States must ensure that ‘the military remains accountable to democratically elected civilian government (UN Resolution N° 2000/47, 25 April 2000)’”. http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2004/01/Military-jurisdiction-publication-2004.pdf (Military Jurisdiction/ Andreu-Guzman).
 See Marta Ruiz’s opinion article in Semana for an extended argument about the troops’ morale fallacy. Ruiz asks: “ What are we being told when it’s said that the troops’ morale is beaten? Will they stop fighting? Will they plan a coup? Or do they want to remind us that when troops’ morale falls the dirty war dogs are unleashed? Isn’t that what has happened in previous peaces processes?” http://www.semana.com/opinion/articulo/opinion-columna-marta-ruiz/362590-3 (Semana / October 26, 2013)
 Human Rights Watch recalled in June 2013 that the expansion of the military justice system over human rights violations directly contradicts the repeated rulings of the Constitutional Court of Colombia and the Inter-American Court of Human Rights. “In September 2012, for example, the Inter-American Court ruled in the case of Vélez Restrepo and Family v. Colombia that the military justice system ‘is not the competent system of justice to investigate and, as appropriate, prosecute and punish the authors of human rights violations’”. http://www.hrw.org/news/2013/06/18/colombia-military-justice-law-blow-human-rights (Human Rights Watch / June 2013)