August 25, 2021

Colombia’s Prosecutor-General’s Office (Fiscalía) is seeking to indict retired Gen. Mario Montoya, commander of the Army between 2006 and 2008, for his role in the military’s so-called “false positive” killings during the armed conflict. A hearing took place on August 25 before a Bogotá judge who will decide on August 30 whether Montoya may be indicted.

If Judge Fabio Bernal gives a green light, Montoya will be the highest-ranking military figure to face justice for these killings in the civilian criminal justice system. He could also become the first person with a case before both the post-conflict transitional justice system (JEP) and the regular criminal justice system. What that means is not entirely clear.

The term “false positives” refers to soldiers, apparently under heavy pressure to produce results measured in body counts, killing several thousand civilians and falsely presenting the murders as combat deaths. The JEP has estimated that as many as 6,402 false positive killings took place just between 2002 and 2008, Álvaro Uribe’s first seven years in office. If accurate, that number would be equivalent to about half of the 12,908 armed-group members whom Colombia’s Defense Ministry claimed to have killed during those years.

Gen. Mario Montoya was a key figure during this period. A U.S.-trained officer, he commanded the “Joint Task Force South” that carried out U.S.-backed counter-drug operations during the first years of “Plan Colombia” in the early 2000s. He went on to command the Army during the height of the Uribe government’s anti-guerrilla offensive, including the triumphant July 2008 rescue of 15 FARC hostages known as “Operation Jaque.” (“As their bonds were cut free, the former hostages were quietly told that the Colombian Army had just freed them,” reads an account of the rescue. “Then, the recovery team began to chant, ‘Uribe! Uribe! Uribe!’ followed quickly by ‘Montoya! Montoya! Montoya!’”)

Just a few months later, in November 2008, Gen. Montoya was forced to resign. The triggering event was the revelation that 22 men who disappeared from the poor Bogotá suburb of Soacha had turned up dead hundreds of miles away, in Ocaña, Norte de Santander. The men had been lured with offers of employment, taken away and killed, only to be presented as armed-group members killed in combat. The Soacha case capped years of human rights groups’ denunciations—long denied by the Uribe government—that the military had been falsifying combat kill totals by murdering civilians.

Gen. Montoya has been under a cloud ever since, and in 2018 he agreed to have his case heard in the JEP. The transitional justice court is approaching “false positives” in a bottom-up fashion, starting with some of the most serious cases and working toward top commanders. That means it could be some time before the transitional justice court indicts Montoya, if it finds enough evidence to do so.

While Montoya has appeared before the tribunal, so far he has denied any responsibility for the killings. In an early 2020 appearance, the general sparked outrage by blaming soldiers from poor backgrounds: “those kids didn’t even know how to use forks and knives or how to go to the bathroom.”

The JEP is looking into whether commanders like Montoya created a climate, and set of incentives, that encouraged officers to rack up large body counts even if it meant killing non-combatants—and whether the commanders knew that so many combat kills were falsified. The Fiscalía is more specifically seeking to charge Montoya with responsibility for 104 killings, including 5 children, that took place in 2007 and 2008. That is the period after the issuance of a military directive to prioritize guerrilla demobilizations and captures over killings, which the Fiscalía contends that Montoya ignored.

He “allegedly pressured all division, brigade and battalion chiefs to follow a different strategy that reportedly rewarded and awarded decorations to commanders and groups that reported deaths,” according to the prosecutor’s office. “Commanders of his subordinate units knew that Montoya did not ask for (but) demanded combat kills.” A soldier who says he was kicked out of the force for disobeying these orders claimed that Montoya demanded “rivers of blood,” a phrase the General denies using.

Colombia’s civilian criminal justice system could have acted on the allegations against him at any time since 2008. In fact, as El Espectador explains, “a process against Montoya for false positives committed under his command was announced in 2016. The proceedings were suspended and then, with the arrival of Néstor Humberto Martínez at the Fiscalía [a chief prosecutor with little interest in military prosecutions] and the signing of the Peace Accord, it was left in limbo.”

Martínez’s successor, Francisco Barbosa, announced his intent to revive Gen. Montoya’s indictment on August 12. In the regular criminal justice system, the General could face up to 50 to 60 years in prison if found guilty. Montoya’s case is principally before the JEP, though, where he would face 5 to 8 years of “restricted liberty” if he admits to crimes and provides reparations, or up to 20 years in regular prison if he refuses to admit responsibility but is found guilty.

Colombia is still working out what it means to have two parallel justice systems considering war crimes. In 2018, the Constitutional Court ruled that prosecutors in the regular justice system could continue investigating crimes in parallel. In 2019, the prosecutor in Montoya’s case decided that this meant the general could be investigated, but not indicted, while his case remained before the JEP. Barbosa, the current chief prosecutor, later altered that interpretation, claiming that he had the power to indict Montoya—though the case could not go to trial in the regular justice system.

Gen. Montoya’s lawyers dispute that. So does the government’s internal affairs branch, the Procuraduría, which argues that the JEP has primacy because Montoya has agreed to have his case heard there and has attended all his hearings.

In any case, an indictment without a trial is largely symbolic. Still, the Fiscalía cites declarations from JEP officials who have supported its ability to continue investigating. Lawyers representing victims of false positives have also been supportive: Sebastián Escobar of the José Alvear Restrepo Lawyers’ Collective told El Espectador, “it has been the JEP itself that has insistently asked the Fiscalía not to abandon the investigations, but to continue them until they are completed.” Germán Romero, an attorney who represents 12 false positive victims, added, “This is a real and concrete investigation… it is impossible and it could be understood as a substantial affectation to the rights of the victims if this indictment doesn’t happen.”

Some Colombian legal experts, though, are concerned and wonder why the Fiscalía is acting now. While the regular justice system’s prosecutors may continue investigating military and police officials’ alleged crimes, they “cannot rule on their responsibility since that decision corresponds to the JEP,” writes Rodrigo Uprimny, co-founder of the DeJusticia think tank. “The Fiscalía cannot charge them, which is an attribution of responsibility, but must refer those investigations to the JEP.”

Uprimny, writing in El Espectador, wonders what Fiscal Barbosa may actually have in mind with an indictment in the Gen. Montoya case.

Its basis is bizarre and could have very serious implications. According to Barbosa, Montoya is being charged because he continued to demand combat kills after November 2007, disobeying Directive 300-28 of that date, which prioritized demobilizations and captures over casualties. That is why the Fiscalía will charge him with “only” 104 executions that occurred after that directive, when there were thousands of false positives in previous years and Montoya was already commander of the Army and demanded casualties.

Does this mean, then, that for Barbosa the thousands of false positives perpetrated when the previous directive was in force, which favored casualties, do not involve any responsibility of senior officers, even though they demanded casualties at all costs as an operational result? If that is so, who should answer for those false positives perpetrated in previous years? Only the soldiers who perpetrated them, but not those who incited those deaths because they were following a directive? And what responsibility, then, according to Barbosa, is incumbent on those who drafted and promoted the previous directive?

We will know more after the judge rules on May 30. Meanwhile, human rights organizations are calling on the JEP to eject another retired senior military officer, former Col. Publio Hernán Mejía. One of the Colombian Army’s most highly decorated officers, Col. Mejía was sentenced to 14 years in prison for conspiring with paramilitaries and involvement in false positive killings. He was released when he moved his case to the JEP, but has been uncooperative and has been making very aggressive statements on Twitter and considering a far-right run for the presidency next year.

Tags: Civil-Military Relations, Human Rights, Justice System, Military and Human Rights, Transitional Justice

August 25, 2021

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