Thursday, October 16, 2014

A critical view of the Colombian military justice bill

Gustavo Gallon Giraldo
The director of the Colombian Commission of Jurists, Gustavo Gallon Giraldo, has written this op-ed criticizing the bill currently under consideration in Congress:
It is similar to the reform approved by Legislative Act 02 of 2012, which the Constitutional Court declared unconstitutional in 2013 for procedural reasons. It pretends that all crimes committed by military service and in connection with that service are of competence, but seven military criminal jurisdiction: crimes against humanity, genocide, forced disappearances, extrajudicial executions, sexual violence, torture and forced displacement. The argument for including these seven, and no others, is that way is comply with international human rights obligations, according to which serious human rights violations should be dealt with by the ordinary courts.
It is a false argument, first because there are many other serious violations that are not contained in these seven crimes that can be committed in connection with the service: murder committed outside combat, kidnapping, arbitrary detention, illegal interception (as "Andromeda"), arbitrary detention, violation of domicile, land grabbing, conspiracy, terrorism, threats, illegal arms trafficking, water pollution, electoral fraud, cruel, inhuman or degrading treatment, and more.
Second, the argument is also false not only because of the competence of the ordinary courts of serious human rights violations, but also leniency. This I know very well. The Inter-American Court of Human Rights said it two years ago, on September 3, 2012, in Vélez Restrepo and family v. Colombia. The journalist Vélez Restrepo had been beaten by the army to shoot at peasant marchers in 1996, after which he had to leave the country because they tried to "disappear" him. Among the violations alleged before the Court were the denial of justice for personal injuries he suffered that could not be addressed by the ordinary courts, but only by military courts, which obviously left the offense unpunished.
The government claimed that only serious violations should be dealt with by the ordinary courts. The Court condemned the government for having personal injuries tried in military courts and warned that "the guarantee of human rights violations, such as life and personal integrity are investigated by a competent judge, is enshrined in the American Convention" (para. 241) and that "the criteria to investigate and prosecute human rights violations before the ordinary courts do not reside in the severity of the violations, but in its very nature and in the legally protected" (para. 244). That "nature" is that they constitute human rights violations, both serious and minor, all of which are within the jurisdiction of the ordinary courts.
Who pays the costs of these fake, awkward and fatal arguments? [Rough Google translation]

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