Timeline for entries tagged “Justice System”

A chronology of events related to peace, security, and human rights in Colombia.

August 30, 2021

Gen. Montoya will not be indicted in regular justice system

In a decision that, El Tiempo reported, “didn’t cause surprise for the majority of sectors,” Bogotá’s Superior Tribunal refused to allow the Prosecutor-General’s Office (Fiscalía) to charge or indict Gen. Mario Montoya, the commander of Colombia’s army between 2006 and 2008, for human rights crimes. The court ruled on August 30 that Colombia’s regular criminal justice system, led by the Fiscalía, may continue to investigate Gen. Montoya’s role in the military’s numerous killings of non-combatants during his tenure. But while his case remains before the 2016 peace accords’ special transitional justice system (Special Jurisdiction for Peace, or JEP), the Fiscalía cannot separately charge him or bring him to trial.

Gen. Mario Montoya, now 72, faces allegations of creating a command climate and incentive structure that led soldiers to kill thousands of civilian non-combatants. Throughout the country, under pressure to increase “body counts,” officers claimed falsely that civilian victims were armed-group members killed on the battlefield. The JEP is investigating these abuses, known as “false positives,” and has charged former commanders in two regions of the country so far. It surprised the country earlier this year by releasing a very high estimate of the number of civilians killed by the military: 6,402 between 2002 and 2008, which would be well over 40 percent of the armed forces’ claimed combat kills during those years.

A highly decorated officer whom many Colombians associated with the country’s security gains of the mid-2000s, Gen. Montoya resigned in November 2008 after a particularly egregious example of “false positive” killings came to light, blowing the scandal open after years of human rights groups’ denunciations. Former subordinates have portrayed the general as a key architect of the incentive system that encouraged officers to pad their units’ body counts even if it meant paying criminals to kill the innocent.

In 2018, Gen. Montoya agreed to have his case tried in the JEP instead of the regular justice system, even though the Fiscalía at the time was barely moving on its investigation of him. In his appearances before the transitional justice tribunal so far, Montoya has insisted on his innocence. This is risky: if he were to confess to his role in false positives and take actions to make amends to victims, Gen. Montoya would most likely be sentenced to up to eight years of “restricted liberty”—not prison. However, if he pleads “not guilty” and the JEP determines otherwise, he could go to regular prison for up to 20 years. The JEP has not yet formally charged Montoya with anything.

The Fiscalía, led by chief prosecutor Francisco Barbosa, surprised many in July when it announced it would seek to indict Gen. Montoya for his role in 104 “false positive” killings that took place after a 2007 order requiring the military to de-emphasize body counts. With his case already moving in the JEP, it was not clear whether the regular justice system had the legal standing to issue charges against Gen. Montoya at the same time. On August 30, Judge Fabio Bernal decided that it did not.

For now, Gen. Montoya’s case will proceed in the transitional justice system. While the Fiscalía is not appealing the August 30 decision, relatives of some “false positive” victims plan to do so, because they believe that separate charges in the regular justice system would increase the chances of the General being held accountable. According to Sebastián Escobar of the José Alvear Restrepo Lawyers’ Collective, who represents some of the victims, a Fiscalía indictment would have helped because of Gen. Montoya’s reticence so far before the JEP:

If the Fiscalía were to continue with these investigations and charge him for at least some of these acts, it would contribute to the participants reaching a scenario of recognition [of responsibility for crimes]. In the case of Montoya, although he submitted voluntarily to the JEP, because his case was not advanced in the regular justice system, he has come to the [transitional] jurisdiction with an attitude of denying his participation in the policy that promoted these acts, and of not recognizing his responsibility from any point of view.”

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

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 18, 2020

Former president and sitting senator Álvaro Uribe, currently under house arrest as he awaits trial for witness tampering charges, resigns his Senate seat. This shifts the prosecution of his case from the jurisdiction of Colombia’s Supreme Court to that of the Prosecutor-General’s office (Fiscalía).

Tags: Justice System, Politics of Peace

August 4, 2020

The Supreme Court orders former President Álvaro Uribe, the most powerful politician in 21st century Colombia, placed under house arrest pending trial for tampering with witnesses. Uribe allegedly urged his lawyers to convince imprisoned former paramilitary members to give false testimony against a political rival, Senator Iván Cepeda. Uribe is confined to his ranch in Córdoba department, where he publishes a tweet falsely blaming his detention on “testimonies against me purchased by the FARC, its new generation, and its allies.”

Tags: Justice System, Politics of Peace

July 2, 2020

An administrative tribunal in Cundinamarca temporarily suspends the activities of the U.S. Security Force Assistance Battalion, which had been on a high-profile advisory and training mission in Colombia since early June. The court finds in favor of 25 Colombian senators who argued that the Constitution requires that they autorize such deployments. The suspension is temporary while the Duque government turns information about the deployment over to the Congress.

Tags: Defense Ministry, Justice System, U.S. Policy

June 9, 2020

The Prosecutor-General’s Office (Fiscalía) arrests social leader Yolanda González García in Arauca, accusing her of working with FARC dissidents. Soldiers wounded González, and killed her government-funded bodyguard, at a vehicle checkpoint on September 19, 2019, in an incident that remains under investigation. In a statement, Colombia’s national human rights platforms call González’s arrest a “setup” and an effort “to destroy her physically and morally.”

The Peace and Reconciliation Foundation denounces seven arrests of social leaders or demobilized combatants in Arauca in recent days, “for which they have been charged with a series of crimes without corroborating the facts.”

Tags: Arauca, Attacks on social leaders, Fiscalia, Justice System

June 3, 2020

The president of the State Council, the Supreme Court chamber that deals with administrative issues, sends a letter to President Duque requesting an explanation of the deployment, announced May 28, of a 53-person U.S. military Security Force Assistance Brigade (SFAB). Magistrate Álvaro Namén notes that Colombia’s constitution requires the State Council to be consulted about the transit of foreign troops through national territory.

Tags: Justice System, U.S. Policy

May 18, 2020

A court in Nariño orders a halt to virtual online consultations with communities in remote areas to discuss the environmental impact of renewed aerial herbicide eradication of coca. The court was responding to a complaint filed by communities fearful of being fumigated with herbicides without proper consultation. In order to restart the U.S.-backed fumigation program, Colombia’s Constitutional Court had required the environmental licensing agency ANLA to consult with communities on an eradication plan. COVID-19 had made those consultations impossible to carry out in person, so the agency had sought to perform them over internet, even though many of the affected rural communities have little or no internet access. The court’s order may delay the reinitiation of fumigation, originally expected for mid-2020.

Photo source: ANLA.

Tags: Illicit Crop Eradication, Justice System, Public Health

May 15, 2020

Colombia’s Supreme Court opens a new investigation of former president and ruling-party Senator Álvaro Uribe. The Court begins looking into allegations that Uribe may been the beneficiary of military units’ illegal intelligence-gathering activities against civilians, carried out throughout 2019 in what has become a major scandal. The Court is already investigating the former president for allegations of encouraging witnesses, some of them former paramilitary members, to give false testimony against a political rival.

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

April 28, 2020

A presidential decree lowers judicial penalties to members of criminal groups who agree to demobilize peacefully and submit to the High Commissioner for Peace.

It does not apply to the ELN, whose “political character” the state recognizes, making benefits available to individual ELN deserters. It applies instead to FARC dissident groups, the Gulf Clan and Caparros neo-paramilitary groups, and the Pelusos or EPL. These are the groups that, according to the government, meet the Geneva Conventions Protocol II definition of those “which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations.”

Tags: Armed Groups, Demobilization Disarmament and Reintegration, High Commissioner for Peace, Justice System, Organized Crime

April 15, 2020

The Prosecutor-General’s Office (Fiscalía) and Ministry of Justice submit an extradition request to the United States for Salvatore Mancuso, the former maximum leader of the United Self-Defense Forces of Colombia (AUC) paramilitary group. The government of Álvaro Uribe extradited Mancuso and 13 other paramilitary leaders to the United States to face drug-trafficking charges in 2008; Mancuso is about to complete his U.S. sentence.

Tags: Extradition, Justice System, Paramilitarism, U.S. Policy

February 22, 2020

  • Police capture Gerardo Antonio Bermúdez, also known as “Francisco Galán,” a former ELN guerrilla who served as a key link to the group during past efforts to negotiate peace. A judge in Cali seeks to try Galán for his possible role in a September 2000 mass kidnapping on the highway between Cali and Buenaventura.
  • Galán is known as a peace promoter who has served a complete term in prison and has long since abandoned violence. His arrest inspires an outcry across the political spectrum, including a tweet from former President Álvaro Uribe.

Tags: ELN, ELN Peace Talks, Justice System

February 12, 2020

  • Hopes for a prompt resolution of the status of 16 special temporary congressional seats for conflict victims are dashed, as opponents’ delaying tactics prevent the State Council (one of Colombia’s high courts) from meeting to decide the issue.
  • The peace accord had resolved to create the 16 temporary legislative seats, in which victims’ associations—not political parties—would be able to run for office to represent historically conflictive zones. The measure to create the seats won a majority in Colombia’ Senate in 2017, but disagreement over whether a numerical quorum existed for that vote remains unresolved.

Tags: Justice System, Politics of Peace, Special Congressional Districts, Victims

February 1, 2020

  • In Bogotá, police arrest former FARC leader Ely Mejía Morales, alias “Martín Sombra.” Though he has been reportedly cooperating with the demobilization and transitional justice process, “Sombra” stands accused of playing a role in the ransom kidnapping of a rancher in Caquetá in 2017, after the peace accord went into effect. Martín Sombra is also known as the “jailer of the FARC” for his role in managing camps where the group kept kidnap victims for months or years at a time.

Tags: Justice System, Kidnapping

January 30, 2020

  • Colombia’s Supreme Court announces its choice of Francisco Barbosa, a lawyer who had been President Duque’s human rights advisor, to be the country’s next prosecutor-general (Fiscal-General).

Tags: Justice System

January 27, 2020

  • A civilian judge sends to preventive prison, pending trial, an Army colonel who allegedly green-lighted the April 22 murder of former FARC combatant Dimar Torres in Catatumbo. “This man should be killed,” Col. Jorge Armando Pérez Amézquita reportedly said of Torres, whose murder by soldiers caused a national outcry. “We can’t stand to see him captured only to get fat in jail.” The corporal who carried out the deed was sentenced to 20 years in prison in late 2019.

Tags: Army, Civil-Military Relations, Justice System, Protection of Excombatants

January 12, 2020

  • A cover story in the Colombian weekly Semana reveals that Army intelligence units have been illegally intercepting the communications of, following, and threatening high-court judges, opposition politicians, human rights defenders, and journalists—including Semana reporters investigating military human rights and corruption allegations. Those being followed and intimidated include Army officers who had been providing information to investigators about these allegations.
  • The magazine speculates that revelations about the illegal intelligence operation—the product of a dramatic judicial police raid on Army intelligence facilities in mid-December—forced the late-December exit of the Army’s chief, Gen. Nicacio Martínez. Gen. Martínez denies that he retired for this reason, blaming “retaliation” from elsewhere in the army “for denouncing and preventing corrupt acts.”
  • Semana hints that Army personnel were passing information from intercepted communications to a legislator in the government’s party, the Democratic Center. Much speculation centers on Senator Álvaro Uribe, who was embroiled in a wiretapping scandal during the latter years of his 2002-2010 presidency. One of those being wiretapped is a Supreme Court justice in charge of a case against the former president, who is under investigation for witness tampering. 
  • Supreme Court President Álvaro García calls for a special investigation.
  • The Inter-American Human Rights Commission expresses “deep concern” about the revelations.

Tags: Army, Civil-Military Relations, Inter-American System, Justice System, Military and Human Rights