This year will be critical for efforts to secure an end to the armed conflict that has gripped Colombia for the last five decades. Since signing a peace agreement in 2016, the Colombian government has struggled to implement the core elements of the accords. Human rights advocates working to address the grievances of marginalized communities through the peace process have been attacked with impunity, as in the case of a Jan. 11 shooting incident that appeared to target a prosecution witness. And efforts to hold accountable those responsible for war crimes face significant challenges. Demonstrable progress in addressing both of these issues will be crucial to ensuring a lasting peace.
The peace accords sought to prevent a recurrence of abuses. Chapter Five of the agreement established the “Integral System of Truth, Justice, Reparation and Non-Repetition,” comprised of a truth commission; a Search Unit for Disappeared Persons; and a court called the Special Jurisdiction for Peace (JEP). The JEP will try those responsible for serious abuses committed during the conflict.
After significant delay in adopting implementing legislation for the court, the JEP recently began proceedings in a key case that will test controversial provisions of the accords concerning the responsibility of commanders for the misconduct of subordinates.
The case concerns Gen. Mario Montoya Uribe (ret.) (no relation to former President Alvaro Uribe), who served as the Army’s top commander between February 2006 and November 2008. He is being investigated for his role in issuing a directive that contributed to so-called “false positives” – the extrajudicial killing of thousands of civilians – by rewarding members of the security forces for body counts. According to Human Rights Watch, extrajudicial executions peaked during the three years that Montoya commanded the Army, with 1,100 killings under investigation by Colombian prosecutors from that time period.
In October 2018, our organization, the American Bar Association Center for Human Rights, sent an observer to initial proceedings against Montoya to determine whether the proceedings meet international standards concerning the state’s duty to investigate and prosecute grave abuses, including the intellectual authors of such abuses. The Montoya case will be an important test of whether the constitutional amendment implementing the accords will be interpreted in a manner consistent with international standards concerning the responsibility of commanders for the misconduct of subordinates.
The amendment has been criticized for arguably requiring that commanders had knowledge of – and effective control over – particular operations that involved misconduct by subordinates, in order for the commander to be held responsible for the misconduct. Such an interpretation would fly in the face of longstanding international jurisprudence holding that commanders have a responsibility to remain informed about the conduct of subordinates and are responsible for their misconduct where they “should have known” about any abuses and had the material ability to prevent them.
The Colombian Constitutional Court recently upheld the constitutional amendment. Meanwhile, Human Rights Watch recently uncovered additional documentation concerning Montoya that may be sufficient to establish his guilt under even the most restrictive reading of the accord’s language on command responsibility.
It is also unclear what sanction Montoya would receive even if he is found responsible. The accords allow for sanctions other than imprisonment for individuals who admit their crimes. Whether this provision satisfies international law requirements for a proportionate sanction is unclear. The International Criminal Court (ICC) is closely monitoring implementation of the accords to ensure compliance with international standards. If it does not, the ICC could conceivably exert jurisdiction.
However, failure to implement these standards may not ultimately be subject to the jurisdiction of the ICC in this case, due to Colombia’s unusual invocation of a provision of the ICC statute that allows the state to opt out of war crimes prosecutions for seven years after acceding to the jurisdiction of the court. As Colombia adopted the statute in 2002, much of the conduct in question in this case may not be subject to the jurisdiction of the ICC, with the potential exception of crimes against humanity. Even if the ICC does not have jurisdiction, the Inter-American Court of Human Rights would have jurisdiction to determine whether the state has fulfilled its duty to investigate and prosecute.
In addition to significant legal questions concerning jurisdiction, there are grounds for concern that the JEP will not be able to provide sufficient protection to witnesses to ensure their ability to testify. The recent shooting incident involving human rights advocate Alfamir Castillo Bermúdez, whose son allegedly was killed by units under the command of Montoya, is a recent example. A witness in the case against Montoya, she has received repeated death threats.
On Jan. 11, according to Dublin-based Frontline Defenders, two unidentified males on motorcycles shot at a vehicle she was riding in that was provided by the National Protection Unit of Colombia, the entity responsible for protecting witnesses. No one was injured, though two bullets hit a back seat window. The coming months will be key to determining whether JEP can overcome both the jurisprudential and practical hurdles necessary to administer justice.
Aside from the questions about the interpretation of the accords and protection of witnesses, there also are grounds for concern that the justice sector will not be allowed to operate with sufficient independence to fairly adjudicate the case. Historically, the Colombian justice sector has struggled to deliver in cases concerning Colombian security forces.
For example, efforts to hold members of Colombia’s military responsible for the use of excessive force and torture during efforts to reclaim the Palace of Justice in November of 1985 from guerrillas were compromised by the harassment of judicial personnel and unjustified removal of a key prosecutor who had taken the first serious steps to advance the investigation of the case. Nearly 30 years after the incident, the Inter-American Court of Human Rights held on November 14, 2014, that Colombia has failed to fulfill its duty to investigate and prosecute those responsible for these crimes. This ruling led to the re-opening of several cases against those responsible for the incident.
Another major challenge in implementing the peace accords will be ensuring that those communities most directly affected by the armed conflict have confidence that they can address their grievances through the peace process. Unfortunately, early indicators raise concerns that this will not be the case.
According to the Colombian human rights group, Somos Defensores, 106 human rights defenders were killed in Colombia in 2017, the first year after the signing of the accords. Many investigations into these killings have languished without explanation. While Colombian security personnel are capable of the complex investigations needed to identify the intellectual authors of these crimes, there are grounds for concern that the government is continuing to focus its investigations on the direct perpetrators of these killings rather than those orchestrating the attacks. If this trend continues, the resulting climate of impunity could easily disrupt implementation of the accords.
`Search for Social Change’ as Grounds for Prosecution?
Indeed, there are grounds for concern that at least some members of the justice sector are actively using their authority to undermine participation of marginalized communities in the political process.
One activist representing the Afro-Descendant community, Milena Quiroz, is currently standing trial in apparent retaliation for her efforts to organize social protests. The prosecutor in the case cited her “search for social change” as part of the grounds for the prosecution, thereby dangerously blurring the lines between lawfully protected political activities and evidence of membership in a guerrilla group. The ABA Center for Human Rights will monitor this trial, as well, to encourage adherence to international standards.
All of these cases point to the central role of the justice sector in ensuring successful implementation of the accords. Over the coming year, the independence and impartiality of the justice sector will be tested as never before. It will therefore be critical for civil society and the international community to vigilantly monitor these proceedings to ensure compliance with international standards.
The views expressed are the authors’ own. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and should not be construed as representing the policy of the American Bar Association.