A quick look at the last OAS report on the AUC demobilization An optimistic look at the ELN talks
Sep 152006

Human rights cases involving Colombia’s military face a frequent obstacle. Often, the armed forces seek to have allegations of abuse tried in their own justice system, arguing that the crime in question was an "act of service" or a breach of military discipline. The military justice system, conservative U.S. columnist Robert Novak reminds us, "has a conviction rate of only 4 percent." The likelihood that victims will see justice narrows dramatically when the military justice system gets jurisdiction.

This is not supposed to happen in cases involving murdered civilians, according to a 1997 Constitutional Court decision, which ordered all such cases to go directly to civilian prosecutors. It does happen less than it used to, but it still sometimes occurs. One recent example are the civilians allegedly killed by the Medellín-based 4th Brigade, their bodies passed off as guerrillas killed in combat. Of twenty-nine cases, only eight have entered the civilian system.

The armed forces even sought to assert military jurisdiction in the case of an army patrol that massacred an elite police counter-drug unit outside the town of Jamundí in May. In July, when a judge surprisingly determined that the case belonged in the military justice system, the army defendants – including Col. Bayron Carvajal, commander of the 3rd High Mountain Battalion – cheered in the courtroom as though they had already been exonerated. It took a number of unusual procedural machinations to get the case back into the civilian system.

President Uribe recently described one unprecedented maneuver that he performed himself in order to extract the Jamundí case from the military justice system.

The government made a decision, which to me seems historic, very important, which was to say: the military justice system can’t intervene here, this investigation is exclusively in the hands of civilian justice. Some said, "The president of the republic cannot say that military justice must separate itself from an investigation," but I found the following and that’s why I did it. I found that even though the president of the republic doesn’t have authority over the military justice system’s verdicts, it does have administrative authority. I cannot impose the result of a military justice verdict, but I did find that, through this administrative power, I could say to the military justice system: you must abstain from participating in that investigation."

In other words, any time there is a dispute over who gets to try a case of military abuse, the President – as commander in chief – can order the military justice system to yield and allow the case to be tried in the civilian system where it belongs. This sounds sensible, but it just hasn’t been done.

The Jamundí case was an easier call for Uribe to make, because the victims here were police, not powerless civilians. In the Jamundí case, the victims’ advocates aren’t a bunch of leftie human-rights groups, but people at the highest levels of the National Police and the president’s office. There appears to be sufficient political will at high levels to see this case move forward, even if it means taking unorthodox steps like ordering the military justice system to yield its claim to jurisdiction.

But what will happen the next time Colombia’s military tries to keep a case of abuse against civilians within its own justice system? Will President Uribe repeat this precedent and order the armed forces to yield to civilian justice?

One Response to “The Jamundí precedent”

  1. jcg Says:

    If the case is clear-cut enough for it, he’d better. I suppose that Uribe will not immediately do so, if the other cases are not visible enough for him to give the matter much thought. In other words, if he is simply not made sufficiently aware of them in the first place.

    In addition, a working legal rationale that can justify applying that presidential administrative decision to each individual case will be necessary. Don’t forget that the evidence of wrongdoing was strikingly clear in the Jamundí case, something which will not always occur (to say the least).

    In those circumstances, campaigning in favor of moving any later cases out of the military justice system could eventually work if those conditions are met. It won’t be automatic, no, but it could well be easier, thanks to this precedent.

    That could possibly work as far as future cases are concerned, but unfortunately, getting past cases out of it won’t be that simple, for reasons both legal and merely practical.

    Still, it’s a positive thing that the Jamundí case (and the partial reopening of the cases of the Palace of Justice’s disappeared) has led to increased public awareness and debate about the military justice system.

    Reforms have been proposed, apparently the Defense Ministry internally drafted some as well, and the new head of the military justice system is a civilian woman (albeit one that is not entirely foreign to the military establishment). That is not going to “cure” the military justice system of its many failings, but at least it will gradually continue to weaken and lose more and more its past powers (and, hopefully, the impunity that often surrounds them).

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