Impunity for peace?
This week Colombia’s Senate passed, by a 57-7 vote, a constitutional amendment that will make it much harder for the country’s civilian courts to try military personnel accused of human rights abuses. The bill must now be reconciled with a very similar provision that already passed Colombia’s House of Representatives. Then it will become law.
From now on, crimes that Colombian soldiers commit against citizens will go directly to the military justice system, where the likelihood of their victims seeing justice is slim. As an editorial this week from El Tiempo, Colombia’s most-circulated newspaper, explained: “Military judges, for motives of subordination to the hierarchy or solidarity, among others, do not offer sufficient legal guarantees” to victims.
The new law has seven exceptions: types of crimes that will still go to the slow, but gradually more effective, civilian court system. These are crimes against humanity, genocide, forced disappearance, extrajudicial execution, sexual violence, torture, and forced displacement.
Of these, the crime for which the most soldiers are currently facing civilian justice is “extrajudicial execution.” Colombia’s Prosecutor-General’s office has taken on 1,708 cases, involving 4,112 members of the security forces accused of killing about 3,000 civilians outside of combat. Of these 1,708 cases, all but 98 occurred between 2002 and 2008, a period during which some soldiers — in an apparent bid to gain rewards for high “body counts” — killed non-combatants and presented their bodies as those of illegal armed group members.
Excluding “extrajudicial executions” from the new law, then, may look like a wise move. However, under Colombian law, the crime of “extrajudicial executions” doesn’t currently exist. Soldiers facing civilian justice for this crime today are instead accused of “aggravated homicide” or “homicide of a protected person” — crimes that, under the new constitutional change, will go to military justice.
If Colombia’s Congress doesn’t act within one year to legislate the crime of “extrajudicial executions,” there is a very real possibility that most of the 4,112 accused soldiers and police will see their cases transferred to the more lenient military court system.
Even in cases where one of the seven exceptions apply, there is still a good chance that the abuse will go to the military system. From now on, when jurisdictional conflicts arise, it will be up to a new “Guarantees Tribunal” to decide whether the military or civilian justice system will consider the case. This tribunal will be made of of four civilian judges and four retired military officers. Unless the civilian judges rule unanimously or a military officer defies his institution, this new body may end up routinely sending cases to the military court system.
Why the rush? (Because of the peace process?)
The effort to expand military jurisdiction was first launched in Colombia’s Congress a year ago, in early November. That attempt at reform was so sweeping that, in the face of outcry from human rights groups and the U.S. government, it was pulled back in February. A special commission issued recommendations for a new version of the law, which was introduced in September.
What has been unclear throughout this whole process is the reason why the government of Colombian President Juan Manuel Santos has insisted on pursuing this reform now, and with such urgency.
The answer may have something to do with the Santos government’s peace negotiations with the country’s largest guerrilla group, the FARC. “Mr Santos has begun talks with the FARC guerrillas and needs the army’s support for any peace deal,” recalls an article about the military-justice reform in this week’s Economist.
The military is reticent to support the government’s ongoing negotiations with their sworn enemies in the FARC, but they have been relatively quiet about it. A former hard-line head of the armed forces, retired Gen. Jorge Enrique Mora, is even on the government’s negotiating team.
But the military’s backing has come with a high price tag. The military justice expansion law “is widely considered a gesture by President Juan Manuel Santos to placate the military brass, whose support he needs in peace talks with Colombia’s largest leftist rebel group,” the Associated Press noted this week. “With the [September 2012] announcement of negotiations with the FARC, everything changed,” contends Semana, Colombia’s most-circulated newsweekly. “The political class and traditional opposition are more willing than ever to give benefits to the military.”
Some analysts agree. “Santos’s gesture [proposing the military justice reform] was obviously in exchange for support of the peace process,” the much-cited Ariel Ávila of Colombia’s Nuevo Arco Iris think-tank told AP. The law, wrote Nicolás Chamat of CERAC, a Bogotá-based security think-tank, “can be understood as a ‘carrot,’ as a concession to the military establishment in exchange for their support of the peace process. It was safe to assume that the military’s approval and participation in this process were not going to come for free.”
I hope that this was not truly a quid pro quo, as these analyses suggest. If it was, it was a terrible deal.
By this reckoning, Colombia’s civilian leaders just gave the military greater impunity (or at least greater ability to judge themselves) for human rights crimes, even after the conflict ends. And what did they get in exchange? The military’s support for a peace process with one violent group, a process which might not even succeed.
I know the options aren’t this stark. But given a choice between (1) a successful peace process with greater impunity forever, or (2) several more years of war with the military strictly subject to civilian justice for all abuses, (2) might actually save more lives in the long run.
My view here, not necessarily WOLA’s.