Letter to EU High Representative Catherine Ashton on Colombia

Baroness Catherine Ashton

High Representative of the European Union

for Foreign Affairs and Security Policy

Vice-President of the European Commission

242, rue de la Loi

B-1049 Brussels

Brussels, September 26th, 2013

Re: European Union’s offer to provide assistance to Colombia’s military justice system

Dear High Representative,

We are writing to express our concern over the European Union’s announcement on June 25 that it is considering providing assistance to Colombia’s military justice system. Last December, Colombia enacted a constitutional amendment that expanded the jurisdiction of its military justice system over human rights violations, in direct contravention of the repeated rulings by Colombia’s Constitutional Court and the Inter-American Court of Human Rights. Expert bodies and agencies from the United Nations have strongly condemned the amendment, including 11 UN special procedure experts, who affirmed that it “would represent a historic setback to the progress achieved by the State of Colombia in the fight against impunity.”[1]We believe it would be impossible for the EU to assist Colombia’s military justice system without in practice supporting the application of this reform, which is at odds with international human rights standards and threatens to deny justice to victims of egregious abuses by the military. 

The constitutional amendment and its subsequent implementing law create a serious risk that unlawful killings by the military, known as “false positives,”[2]will be transferred from civilian prosecutors to the military justice system, which has long failed to hold perpetrators accountable. The amendment provides that the military justice system will “exclusively handle” international humanitarian law violations and other abuses by the military, except for a closed list of seven crimes, including “extrajudicial executions.” However, the definition of “extrajudicial executions” established in the amendment’s implementing law—approved by Congress in June 2013—does not ensure that the nearly 4,000 alleged false positives currently being investigated by the Attorney General’s Office as “aggravated homicide” or “homicide of protected persons” will remain with civilian prosecutors.[3]

There are two main reasons why the implementing law’s definition of what constitutes an “extrajudicial execution”—and therefore remains with civilian prosecutors—will likely fail to block the transfer of false positive cases. First, the definition is very narrow. The victim must have been “under the control of the state agent” and “did not try to escape,” or was previously placed “in a state of defenselessness” with the purpose of killing him, or was killed “by deception.” Second, the law defines “extrajudicial executions” as a new offense in the Penal Code. This will allow defense lawyers and Colombian authorities to argue that the principle of non-retrospectivity, under international and Colombian law, prohibits anyone currently under investigation for an alleged false positive from being prosecuted for this new offense. They could contend that false positives should continue to be investigated and prosecuted as aggravated homicides or homicides of protected persons—and not extrajudicial executions—and should thus be moved to military jurisdiction.

In fact, in a June 2013 letter to Human Rights Watch, Defense Minister Juan Carlos Pinzón publicly admitted that due to the principle of non-retrospectivity, past cases of false positives “will not be classified as ‘extrajudicial execution[s].’”[4]Defense Minister Pinzón affirmed, “no one can be investigated and accused for a crime that did not exist at the moment it was committed.”

It is highly troubling that already, as a result of the amendment, the case of an army colonel facing trial for two alleged false positives was transferred from civilian prosecutors to the military justice system. In its June 2013 decision ordering the case’s transfer, the Superior Council of the Judicature underscored that the constitutional amendment had created “a new reality concerning the jurisdictions for crimes committed by members of the Military Forces.”[5]

The Colombian government has argued that it is acceptable to expand the scope of military jurisdiction because the reform adopts measures to remedy the military justice system’s lack of impartiality and independence. However, these measures fail to address a fundamental structural cause of the military justice system’s lack of independence and impartiality: the fact that it forms part of the defense ministry, and thus executive branch. As the Inter-American Commission on Human Rights has repeatedly found, “Given its nature and structure, military criminal justice system does not meet the standards of independence and impartiality set in article 8(1) of the American Convention.… The military justice system does not form part of the judicial branch of the Colombian state. Rather, the jurisdiction is operated by the public security forces and, as such, falls within the executive branch.”[6]This June, the UN Office of the High Commissioner for Human Rights specifically raised concern that the reform could result in false positive cases being investigated and tried by defense ministry authorities, “instead of being investigated, as they should be, by an independent judicial authority.”[7]

In that regard, it is worth bringing to your attention a letter sent by Defense Minister Pinzón to Human Rights Watch in December 2012.[8]The letter attempted to justify the amendment, and cited three cases to exemplify what the minister called “the alarming situation of military members convicted for combat killings.” Human Rights Watch reviewed the three cases, and all of them are false positives correctly punished by civilian courts.[9]The defense minister’s failure to distinguish between false positives and lawful combat deaths raises serious concerns as to the ability of the military justice system—a branch of the defense ministry—to investigate and try military abuses.

Another major problem with the military justice system reform is that it authorizes public security forces to use lethal force against civilians in a dangerously broad range of situations, such as when civilians carry out activities that are unrelated to Colombia’s armed conflict. Article 10 of the amendment’s implementing law provides that “civilians who participate directly in hostilities” are legitimate targets. Article 11 defines direct participation in hostilities as anyone who carries out acts that will “probably” cause any kind of “harm” to civilians or civilian objects, the public security forces, or other state institutions “in support of an armed group.”

By contrast, the International Committee of the Red Cross (ICRC) has said that to qualify as direct participation in hostilities, a specific act must reach a threshold of harm, and be designed to cause harm in support of one party to an armed conflict and in detriment to another party. The Colombian Military Forces’ Operational Law Manual of 2009, citing the ICRC, recognized these requirements, but the new law fails to incorporate them. The law thus dilutes the fundamental distinction between civilians and combatants enshrined by international humanitarian law.

The overly broad concept of legitimate target will be applicable to cases being tried in both the military and civilian justice systems. Furthermore, due to the principle of favorability, lawyers can invoke the concept as a defense in past cases of false positives as well as cases of future abuses.

In the words of the 11 UN experts, the military justice system reform “could seriously undermine the administration of justice in cases of alleged violations of human rights and international humanitarian law.” Supporting Colombia’s military justice system will unavoidably require supporting the reform’s implementation and, thus, undermining human rights. The suggestion that the EU can engage by providing information on best EU practices is meaningless in this context as the system in question is fundamentally compromised and an affront to established international law.  

Any EU decision to assist Colombia’s military judiciary system would run counter to principled commitments made by EU Foreign Ministers in the EU Strategic Framework on Human Rights and Democracy, adopted in June 2012 and reaffirmed last July, to “ensure that victims have access to justice and redress and that those responsible are held to account” and to “promote human rights in all areas of its external action without exception.”  For all these reasons, we strongly urge you not to provide any assistance to Colombia’s military justice system as long as its jurisdiction continues to encompass human rights violations, in contravention with Colombia’s international obligations. Instead, the EU should ensure that human rights will be at the center of EU-Colombia relations and urge the government to reverse the harmful reforms it recently enacted.

Sincerely,                                                     

Lotte Leicht                                                                                                      José Miguel Vivanco

Advocacy Director                                                                                          Director

European Union                                                                                              Americas Division

Cc:

Secretary-General of the European External Action Service (EEAS), Mr. Pierre Vimont

Deputy Secretary General for the European External Action Service (EEAS), Ms. Helga Schmid

Deputy Secretary General for the European External Action Service (EEAS), Mr. Maciej Popowski

EU Special Representative for Human Rights, Mr. Stavros Lambrinidis

Chair of the EU’s Political and Security Committee, Ambassador Mr. Walter Stevens

Ambassadors to the EU Political and Security Committee

Head of Cabinet to the High Representative, Mr. James Morrison

Advisor to the High Representative on Human Rights, Ms. Suvi Seppäläinen

Advisor to the High Representative on Americas, Mr. Christophe Parisot

Head of the Delegation of the European Union to Colombia, Ms. Maria Wilhelmina Josepha Antonia Van Gool

Chair of the EU’s Working Group on Latin America (COLAT/AMLAT), Mr. Francisco Acosta Soto

Chair of the EU’s Working Party on Human Rights (COHOM), Mr. Engelbert Theuermann

Members of the EU’s Working Group on Latin America (COLAT/AMLAT)

Members of the EU’s Working Party on Human Rights (COHOM)

Managing Director for Americas, European External Action Service (EEAS), Mr. Christian Leffler

Director Americas, European External Action Service (EEAS), Mr. Roland Schafer

Head of Division for Andean Countries, European External Action Service (EEAS), Mr. Manfredo Fanti

Desk Officer for Colombia, European External Action Service (EEAS), Mr. Jean Pierre Bou

Director of Human Rights and Democracy Unit, European External Action Service (EEAS), Ms. Véronique Arnault

Human Rights Desk Officer for South America, European External Action Service (EEAS), Mr. Andrea Rossi

President of the European Parliament, Mr. Martin Schulz

Vice-President of the European Parliament responsible for Democracy and Human Rights,

Mr. Edward McMillan-Scott

Chair of the European Parliament’s Foreign Affairs Committee, Mr. Elmar Brok

Chair of the European Parliament’s Subcommittee on Human Rights, Ms. Barbara Lochbihler

Chair of the European Parliament’s Development Committee, Ms. Eva Joly

Chair of the European Parliament’s Delegation for relations with the countries of the Andean Community, Mr. Luis de Grandes Pascual

Vice-Chairs and Members of the European Parliament’s Foreign Affairs Committee

Vice-Chairs and Members of the European Parliament’s Sub Committee on Human Rights

Vice-Chairs and Members of the European Parliament’s Development Committee

Vice-Chairs and Members of the European Parliament’s Delegation for relations with the countries of the Andean Community