The reform voted on the 11th of December violates Colombia’s international human rights obligations and affects the balance of power in the judiciary as it creates a tribunal of criminal guarantees with powers over the military criminal justice system but also over the ordinary justice system.
Also, while pursuant to the reform crimes against humanity, genocide, forced disappearance, extrajudicial execution, sexual violence, torture, and forced displacement still fall under the jurisdiction of the ordinary justice system, it remains of serious concern that infractions to international humanitarian law when committed by members of the armed forces will fall under the jurisdiction of the military criminal justice system.
The use of the military courts should be exceptional and limited to the investigation and trial of military offences. Under no circumstances should they hear cases involving violations of human rights, including infractions to international humanitarian law.
Equally alarming is the one-year period provided to the State Prosecutor’s Office and the military justice system to determine which, among the pending cases involving members of the armed forces, will be heard by the ordinary justice system and which will be heard by military courts, thus creating conditions where the Prosecutor’s Office could transfer cases which should not be transferred to the military justice system.
Another source of concern is the creation of the Tribunal of Criminal Guarantees with powers to act as supervisory judges to oversee any investigation or criminal procedure involving members of the armed forces and which has formal and material control at all of the stages of proceedings. The Tribunal of Criminal Guarantees, being partly comprised of retired military personnel, is lacking of independence and impartiality. It could thus be an instrument for impunity in cases heard by military courts and by ordinary law courts, making it virtually impossible to order preventive detention or to bring charges against high ranking military officials for war crimes, serious human rights violations, or crimes against humanity. Moreover, in application of the principle of in dubio pro reo, members of the armed forces standing trial for “false positives” (name given to extrajudicial executions of civilians by soldiers or police, who then report the victims as rebels killed in combat, often for a financial reward) cases before ordinary courts will now be able to turn to the Tribunal of Criminal Guarantees claiming that the victims were members of the guerrilla and died in combat, making these cases fall under the jurisdiction of the military justice system.
FIDH also denounces this reform for allowing members of the armed forces to serve their sentences in detention centres specifically created and set aside for them, where they would have special benefits and privileges, which would be another mechanism for impunity. FIDH also denounces using public funds to pay legal fees to defend members of the armed forces who are brought to trial for any type of offence, in violation of the principle of equality.
FIDH also finds particularly disturbing to hear the Head of State and Supreme Commander of the Armed Forces use the term “judicial war” to attack human rights defenders who represent the victims of international crimes.
This reform is a shocking step backwards for Colombian democracy, for justice and for victims’ rights, and a serious blow to the peace process underway. The Colombian State has an obligation to shed light on crimes covered by international human rights law and international humanitarian law that are committed by members of the armed forces and to rid the highest levels of the army of those responsible so as to avoid reproducing these same crimes.
By openly giving greater priority to the juridical security of military personnel who may have committed serious crimes over that of the rights of victims to truth, justice and remedy, the reform of the military criminal justice system is making way for the consecration of impunity. Moreover, FIDH points out that this initiative could be interpreted as a lack of will, on the part of the Colombian State, to investigate, try and condemn those most responsible for these crimes, which could lead to an investigation by the International Criminal Court in light of ICC’s preliminary examination and on the basis of the principle of complementarity.