Who should try the soldiers?

A controversial reform of the military courts

Dec 15th 2012 | BOGOTÁ | from the print edition         

WHEN the Colombian authorities found out that army officers were ramping up the body count in their war against leftist guerrillas by murdering civilians and dressing them up as rebels killed in combat they agreed in 2006 that civilian, rather than military, prosecutors should investigate reported battlefield casualties, to deter these “false positives”, as they were dubbed. This directive was applied unevenly, but the army has since complained that legal uncertainty is hobbling its operations.

According to an investigation by El Tiempo, a newspaper, published in May, more than 12,000 military personnel were then involved in legal proceedings, with 4,990 cases in the attorney-general’s office, of which 1,700 concern alleged “false positives”.

To try to improve military morale and yet ensure that those guilty of murder are punished, President Juan Manuel Santos’s government proposed a constitutional amendment to reform the military-justice system. On December 11th it was approved in the Senate. It makes most offences committed by soldiers subject to courts-martial, but reserves crimes against humanity, extrajudicial executions and the like for civilian courts.

Nevertheless, human-rights groups fear that cases of “false positives” will now be transferred to military courts. “Colombia has decided to severely weaken human-rights protections, and risk impunity for cold-blooded killings and other military abuses,” says José Miguel Vivanco of Human Rights Watch. He argues that military courts are more lenient and also less efficient than civilian ones. The amendment will beef them up, giving military judges and prosecutors more independence and more resources. But this will take time to set up.

 

Manuel José Cepeda, a former constitutional-court justice, concedes that objections to previous drafts, one of which would have removed all military cases from civilian courts, were “opportune”. But he says fear of impunity under the final version, on which he worked, is “exaggerated”. The attorney-general will have a year to decide which cases to hand over. By then a second bill should have defined extrajudicial executions, a lacuna at present. No cases of “false positives” have been reported this year.

Mr Santos has begun talks with the FARC guerrillas and needs the army’s support for any peace deal. If he is successful, the argument about battlefield crimes may become redundant.