Members of the armed forces and police suspected of criminal responsibility in serious human rights violations may evade justice because of a planned constitutional reform in Colombia, Amnesty International has warned.
The measure, which is currently in the Senate and is expected to become law shortly, will strengthen the country’s military justice system that has in the past been the guarantor of almost complete impunity for members of the armed forces and the police.
For years, the United Nations and the Organisation of American States have been calling on the Colombian authorities to end the military justice system’s jurisdiction over cases involving human rights violations.
“Approving this constitutional reform would fly in the face of Colombia’s international human rights obligations and is a dangerous step towards further entrenching impunity for the armed forces and the police,” said Susan Lee, Americas Programme Director at Amnesty.
“Victims who have suffered human rights violations at the hands of Colombia’s armed forces and police have every right to see justice delivered in the civilian court system, in proceedings that meet international fair trial standards,” said the human rights NGO spokesperson.
Both the Inter-American Commission on Human Rights and the Office in Colombia of the UN High Commissioner for Human Rights, as well as almost a dozen UN human rights experts, recently criticised the proposed reform.
Colombia’s Constitutional Court has also made clear that serious human rights violations should be excluded from military courts. In a 1997 ruling, the court found that such infractions lie completely outside the military’s jurisdiction.
In many cases, Colombia’s armed forces already exert control over the initial phases of criminal investigation and routinely manipulate crime scenes to disguise human rights violations as combat killings.
But the proposed constitutional reform would further strengthen this control by creating a Tribunal of Criminal Guarantees aimed at deciding the jurisdiction of cases.
Although the Tribunal would include both civilian and military representatives, it poses a threat to the civilian justice system by strengthening the direct role that the armed forces already have in defining the nature of crimes and deciding jurisdiction over cases from the outset.
The draft reform appears to exclude some of the most serious human rights violations from military review – enforced disappearance, extrajudicial execution, sexual violence, crimes against humanity (which are not criminal under Colombian law) and genocide.
But given the armed forces’ continued control over the initial stages of criminal investigation, up to and during the Tribunal of Criminal Guarantees, they will have even greater power to influence outcomes in such cases. The reform would make it easier for the military to define human rights violations as legitimate acts of conflicts, such as combat killings, thereby making them subject to military jurisdiction.
In an even more worrying provision of the reform, war crimes – which may include enforced disappearance, torture, rape and other crimes of sexual violence – would still be subject to review by the military justice system.
Military courts could also continue to prosecute cases of collaboration and collusion with paramilitary groups – such groups have been an integral part in the Colombian armed forces’ counter-insurgency strategy.
Despite their supposed demobilisation under former President Álvaro Uribe, paramilitaries continue to operate in parts of Colombia with military collusion and support – often committing human rights violations, including bythe employment of 'dirty war' tactics.
“Approval of this reform would be a clear indication of the government’s lack of commitment to human rights in a context in which the armed forces and police continue to commit serious human rights violations directly or in coordination with paramilitaries,” said Lee.
“When civilians are killed or injured during military operations, they and their relatives have an absolute right to justice, truth and reparation.”
Amnesty International has reiterated its call on countries providing military support to Colombia to seek a clear commitment by the Colombian government to fully implement repeated UN human rights recommendations, including by excluding all cases of human rights violations from military courts.
"Without such a pledge there is no guarantee that foreign military support will not contribute further to human rights violations in the country," the NGO says.