An amicus brief to the Constitutional Court of Colombia

Click here for an amicus brief to the Constitutional Court of Colombia. At issue is whether the military courts or the civilian courts should have jurisdiction over a case that involves a human rights violation. Excerpt (Google translation, footnotes omitted):

4. International standards on the scope of military criminal justice

In accordance with the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (ACHR), Colombia must guarantee that victims of human rights violations have access to an effective remedy so that these violations are duly investigated and, if applicable, processed and sanctioned.

The independence necessary to investigate and prosecute serious human rights violations committed by the military is not usually guaranteed when the military authorities themselves are in charge of investigating their members and trying them in military courts. For this reason, regional and international human rights organizations have criticized the use of prosecutors and military courts in cases of human rights violations against civilians, and have indicated that the jurisdiction of the military courts should be limited to crimes of a strictly military nature.

The Inter-American Court of Human Rights, the highest interpreter of the ACHR, has determined that “[f] re in situations that violate the human rights of civilians, under no circumstances can the military jurisdiction operate”. Similarly, in 2012, the Court held that "the criteria for investigating and judging human rights violations before the ordinary jurisdiction reside not in the seriousness of the violations but in their very nature and in that of the protected legal right". Likewise, as established in the judgment issued in May 2007 by the Inter-American Court in the Case of the La Rochela Massacre v. Colombia, this exclusion from the military jurisdiction applies to all stages of a procedure: "the military criminal jurisdiction is not the competent jurisdiction to investigate and, where appropriate, try and punish the perpetrators of human rights violations".

The Inter-American Commission on Human Rights (IACHR), an authorized interpreter of the American Convention, has ruled in the same direction. Specifically, the Commission has indicated that Colombia must refrain from using military criminal justice in cases of alleged human rights violations committed by police officers in the context of demonstrations. For example, in its admissibility report on the death of Jhonny Silva Aranguren, a student who died in a demonstration in 2005, allegedly at the hands of ESMAD, the Commission recalled that “special jurisdictions, such as the military, do not constitute an appropriate forum and therefore they do not provide an adequate remedy to investigate, judge, and punish possible violations of the human rights enshrined in the American Convention, such as the right to life.

Similarly, the United Nations Human Rights Committee, which ensures that governments comply with their obligations under the ICCPR, has urged States Parties for several decades to ensure that military personnel are subject to criminal jurisdiction. ordinary for crimes that are not "exclusively military in nature". According to the Committee, the “broad jurisdiction of the military courts to hear all cases related to the prosecution of military personnel ... contributes [e] to the impunity that such personnel enjoy and prevents their punishment for serious violations of the human rights”. In the same vein, in its most recent concluding observations on Colombia, the Committee held that the State must ensure that investigations into arbitrary deprivation of life “begin, develop, and end in the ordinary jurisdiction”.