FIDH and Cajar report to the ICC that impunity gaps continue in Colombia

Press release
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The International Federation for Human Rights – FIDH and the Colectivo de Abogados José Alvear Restrepo – Cajar, present to the International Criminal Court (ICC) an Impunity Note in the preliminary examination that this international court has been conducting since 2004 into Colombia, within which it also monitors at least 5,763 extrajudicial executions that take the form of murders of civilians unlawfully presented as fallen in combat, known in public opinion as “false positives”.

The presentation will be given during the Webinar: And impunity? which will tackle the problems in Mexico and Colombia on this matter together, emphasising the cases of Forced Disappearance and Extrajudicial Executions, respectively.

This Webinar is part of a joint impact project that seeks to assist in reducing the impunity surrounding extrajudicial executions and forced disappearances in Colombia and Mexico, carried out jointly by Idheas Litigio Estratégico, a human rights defence organisation in Mexico, the Federación Internacional de Derechos Humanos - FIDH and the Cajar. And it is also the launch activity for the joint Mexico and Colombia campaign: #JuntasContraLaImpunidad [Together Against Impunity].

The Impunity Note highlights the Final Peace Accord [1] as an important milestone in the protection of human rights and it sets out, under the title Colombia at risk of impunity: Blind points of the Transitional Justice Jurisdiction vis-a-vis international crimes within the competence of the ICC, the main obstacles confronted by victims in accessing justice, both in the ordinary system and in the Special Jurisdiction for Peace –JEP, the justice component of the Comprehensive System of Truth, Justice, Reparation, and Non-Repetition – SIVJRNR, created on the basis of the Accord.

The report reminds us that the ICC, within its mandate to exercise justice in a manner complementary to the national justice of each country, continues its examination because there has not been to date any conviction of a high-ranking military officer for these acts, and the most advanced investigation in this case, against the Gr (r) Mario Montoya, ex-Commander General of the National Army, was suspended in the ordinary justice jurisdiction.

In relation to transitional justice, the Note sets out important advances such as the extension of the participation of victims and their representatives in the 237 Voluntary Versions and at Hearings of observations thereof and the exhumation of 54 bodies of people who were victims of executions and forced disappearance in Dabeiba, Antioquia, and, also, the appearance of four generals already associated and five called to give their voluntary version, along with 51 soldiers, 38 sub-officers, 32 auxiliary officers (second lieutenants, lieutenants and captains), 10 officers with the rank of Major and 7 with the rank of Colonel.

The generals linked to Case 003: deaths illegitimately presented as people fallen in combat are: General (r) Paulino Coronado, ex-Commander de Brigade 30; General Miguel David Bastidas, former second Commander of Artillery Battalion No. 4, Jorge Eduardo Sánchez (Bajes), General (r) Henry William Torres Escalante, ex-Commander of Brigade 16, General (r) Carlos Ovidio Saavedra Sáenz, ex-Commander of the Second Division, and General (r) Mario Montoya Uribe, ex-Commander of the First Division and ex-Commander General of the National Army. In addition, an order was made for the versions of Generals Mauricio Zabala Cardona, commander of the Rapid Deployment Force (FUDRA) No. 2, and Adolfo León Hernández Martínez, commander of the Hercules Joint Task Force.

However, notwithstanding these important advances, the Note recounts the continuing impunity that derives, among other causes, from:

1. Suspension of investigations in the ordinary justice jurisdiction. Although the ICC has said that proceedings may only be suspended in the ordinary justice jurisdiction when the investigation stage has been concluded [2], the National Public Prosecutor’s Office, by means of Circular 003 of 3 October 2018, updated on 22 July 2019, suspended the investigations into the events that occurred in the context of the armed conflict by combatant State agents. This means that, in practice, the cases have been stopped and victims are being denied the right to justice.

2. The Military and Police Criminal Justice - JPMP - have not given the JEP an account of any report or judicial decision, nor is there any public record that they have sent complete information to the transitional justice jurisdiction on the cases that they are hearing, even though this is a constitutional duty. And, although, according to national and international law, the JPMP should not hear cases such as extrajudicial executions, it has done so in the past, and, for this reason, it has information that is very important for the purpose of clarifying these events. One example is the discovery of graves in Dabeiba cemetery where the bodies of people executed extra judicially by combatant State agents according to the “false positives” method had been hidden, which revealed that the JPMP only heard 10 processes, none of which it had progressed significantly.

3. In order to make progress in the investigation of high-ranking officers, it is necessary to define JEP criteria in order to attribute outstanding command chain responsibility. The Prosecutor’s Office of the ICC has repeated in its annual report the risk that the application of international criminal law in this matter may not be known, in other words, that a lower criterion may be applied than that established by the Rome Statute, where such responsibility is not limited to knowledge or direct participation in the crime but the high command is responsible for the overall conduct of its soldiers, if it does not take action to avoid it or to avoid its repetition. The proper establishment of this liability is also a guarantee of non-repetition. A counter-example is that of General Nicacio de Jesús Martínez Espinel, signalled out because, under his command, directives were given such as those that encouraged the practice of “false positives”, and also because of his suspected participation in the illegal interceptions of politicians, journalists and defenders of human rights.

4. It is also necessary to establish criteria for contributions with truth and when this does not happen, for all those appearing within Case 03. On the understanding that a contribution does not mean an acknowledgement of responsibilities, the appearance before the JEP should be aimed at clarifying the participation of high-ranking officers in the consolidation of this national policy. One example of this failure to comply is the version of Gr. (r) Montoya who, instead of giving a macro-criminal perspective that reports motives, modus operandi and participants, made victimising and denialist statements concerning the responsibility of high-ranking officers and officers of the State overall. Something similar occurs with Freddy Francisco Espitia Espinosa who was a sergeant in the National Army in Infantry Battalion No. 39 Sumapaz, based in Fusagasugá, accused of the murder of the union leader Jorge Darío Hoyos. Since 2 November 2018, the JEP and victimisation have rejected his contribution proposals but, to date, no formal decision has been made to exclude him from this jurisdiction for failure to comply with the acquired commitments.

5. It is necessary for the transitional justice jurisdiction to recognise sexual violence not as an offence of opportunity or a chance offence but as a sustained practice during the armed conflict, as has been claimed by the human rights and LGBTI organisations. In the ordinary justice jurisdiction, these cases have suffered from structural impunity of close to 100% and, in this regard, transitional justice may be a chance for justice for the victims.

6. There is no progress in the investigations into and prosecution of State civil agents and financial business people. A large part of the investigations against the so-called third parties and non-combatant State agents is still within the competence of the Ordinary Justice Jurisdiction – where there are problems of coordination between offices of the Prosecutor’s Office – or they come from the previous Transitional Justice process with the paramilitaries. [3] . The prosecution of third parties in the JEP was limited to cases where these business people or politicians with connections to these crimes appeared voluntarily. This is because of the legislative reforms within the legal framework of transitional justice.

7. There is a very high risk of impunity of high-ranking servants of the State. The Impeachment Commission of the Chamber of Representatives is the body entrusted with hearing cases against the President of the Republic, the judges of the Constitutional Court, the Supreme Court, the Council of State, the Superior Council of the Judicature and the General National Public Prosecutor’s Office. This is not a legal Commission but comprises Members of Congress, and it has historically been a primary source of Impunity. Those high-ranking officers, since they can use that constitutional forum, cannot be prosecuted by the ordinary justice jurisdiction or by the JEP, in the case of presidents or former presidents by express prohibition. Accordingly, there is practically no possibility that these high-ranking officers will be investigated in the internal justice system and this continues to be an impunity gap.

By reason of all the above, Cajar recommends to the International Criminal Court that it keep its preliminary investigation into Colombia open, and also that it continue to ensure that the standards of the Rome Statute be complied with in terms of the criteria for prosecution of those primarily responsible for command chains, and that it insist that national courts apply the highest standards of participation for victims and active collaboration in relation to information on the cases examined by the ICC.

The Note also recommends to the JEP that it establish these criteria of contribution to the truth, and also those of exclusion of the transitional justice mechanism in the case of non-compliance with this commitment. It recommends to the Supreme Court that it continue with the investigations against persons possessing privilege or exemption, and to all jurisdictions, that there should be effective progress in the investigation against all those responsible, including those who provided finance, were accomplices or decided on serious violations of human rights and crimes against humanity.

Read the report (in spanish)

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