In March 2022, Colombia’s Army staged an early-morning attack on a large, hung-over gathering of participants in a “community bazaar”—including a few armed-group members, who fired back—in a rural zone of Putumayo, in the country’s south. The soldiers killed several civilians, including a pregnant woman and an Indigenous community leader.
Top defense officials in the government of President Iván Duque insisted that the troops did nothing wrong and that no human rights or international humanitarian law violations took place. Colombian journalistic investigations found otherwise.
Colombia’s civilian Chief Prosecutor’s Office (Fiscalía) looked into the case, and agreed with the journalists. The Colombian magazine Cambioreported on August 20:
the Prosecutor’s Office deployed an interdisciplinary team that included ballistics experts, forensic doctors, topographers and prosecutors from its Human Rights Unit. The material collected, as CAMBIO was able to verify, reveals that the indigenous governor Pablo Paduro died as a result of a rifle shot by one of the uniformed officers and that the weapon found near his body was never fired or manipulated by him, but was planted on him with the intention of diverting the investigation. In addition, there is incontestable evidence: the dead were 11 and the weapons found were 5, so at least 6 of them did not have the means to shoot at the Army.
The prosecutors, though, are being held up by delaying tactics. Defense attorneys for the accused military personnel made a last-minute appeal to have the case heard in Colombia’s military justice system. The military system is meant for disciplinary infractions (“acts of service”), not human rights abuses; when it does get jurisdiction over a crime against civilians, it almost never convicts. For such cases, it is an impunity factory.
Cambio explained the legal machinations:
The indictment hearing was scheduled for the first days of August, but in an unexpected decision, the 106th judge of Military Criminal Instruction of Puerto Leguízamo [Putumayo] accepted the request of the soldiers’ lawyers and sent the process to the Constitutional Court to resolve a jurisdictional conflict. The judge’s decision has been criticized because a month after the operation, in May 2022, the same Military Criminal Court sent the process to the Prosecutor’s Office, arguing that the possible human rights violations could not be considered acts of service.
The Constitutional Court has yet to decide whether the Alto Remanso massacre case will go to the military justice system, where justice is unlikely, or the civilian system, where prosecutors and investigators have done thorough work and are ready to go. Colleagues at Human Rights Watch just sent an amicus brief to the Constitutional Court asking it to slap down the military attorneys’ gambit, and move the case back to the civilian justice system.
The military attorneys may be happy just to run out the clock. Cambio warns, “For now, the legal process is suspended and waiting for the Constitutional Court to define the conflict of competences. The clock is ticking, and the ghost of the statute of limitations’ expiration is haunting the investigators’ work.”
On August 30, Colombia’s Special Jurisdiction for Peace’s Truth Recognition Chamber indicted the former commander of the army from 2002 until 2006, Mario Montoya, for his responsibility in the extrajudicial killings of 130 civilians. The crimes took place when he commanded the IV Brigade based in Medellin, Antioquia. The entity pointed out that Mr. Montoya lied about the number of persons killed, covered up the extra limitations employed by the forces under his watch and employed disturbing language that glorified this violence. Such language included ordering the units under his command to report their actions in terms of “liters,” “squirts,” “rivers,” “barrels,” or “tanker trucks” of blood.
In February 2021, the peace court found that between 2002 and 2008 6,402 civilians were extrajudicially killed by the armed forces of Colombia. This macro-criminal practice of assassinations and forced disappearances led to the illegitimate presentation of guerillas killed in combat. For years, victims’ families of the extrajudicially killed and forcibly disappeared have lived with the pain and torture of these crimes and in many cases reprisals and death threats for seeking justice for their loved ones. Over the years, high officials of the Colombian governments have diminished and denied these crimes.
As WOLA, we welcome the JEP’s indictment with the hope that this helps to guarantee non-repetition of such crimes and provides some solace to the victims’ families. During this time the U.S. provided Colombia with at least $3.8 billion in military assistance. We therefore call upon U.S. authorities to cooperate fully with any information requests from the JEP, including declassifying relevant information for the role that U.S. funding and training to the Colombian armed forces played in these murders.
The Guardiancalled it a “botched army raid.” An Indigenous group called it a “massacre.” The commander of Colombia’s army insisted that it took place “with strictest observance of human rights and international humanitarian law.”
Early on the morning of March 28, dozens of people were gathered in a communal space in the town of Alto Remanso, near the Ecuador border in Colombia’s southern department of Putumayo. They had been partying all night, the ground littered with beer cans. Speakers were still blasting music. It was the third day of a community “bazaar,” a festival to raise money to pave a nearby stretch of dirt road.
Just after 7:00 AM, shots rang out. Community members say that men dressed in black, shouting “we’re not the security forces,” fired at the gathering. Some people at the bazaar—almost certainly members of an ex-FARC dissident group active in the area—returned fire. Shooting continued for at least an hour and a half. At that point, helicopters arrived, and the townspeople were shocked to find out that the black-clad invaders were Colombian soldiers.
Later that day, Colombian President Iván Duque and Defense Minister Diego Molano posted tweets celebrating the “neutralization” of 11 ex-FARC dissidents, and the arrest of 4 more. The Army said it was a long-planned operation to capture Carlos Emilio Loaiza, alias “Bruno,” a leader of the Comandos de la Frontera, a Putumayo-based armed group that trafficks cocaine. (“Bruno” was not present.) The Comandos are believed affiliated with the “Segunda Marquetalia” network, led by re-armed former FARC guerrillas, which the U.S. State Department added to its list of foreign terrorist organizations last November.
Much remains unclear about the Alto Remanso incident. What we know comes from denunciations by local Indigenous and campesino groups, and Bogotá-based human rights groups; three Colombian media outlets’ thorough fieldwork; and a mission from the UN High Commissioner for Human Rights. The Colombian daily El Espectador has produced a helpful timeline of events.
What was the human toll of the operation?
Eleven people died in Alto Remanso on March 28. At least four (one sourceclaimssix) were civilian non-combatants: the president of the town’s Community Action Board, Divier Hernández; his pregnant partner, already a mother of two, Ana María Sarrias; a Kichwa Indigenous reserve governor, Pablo Panduro; and a 16-year-old boy, Brayan Santiago Pama. Another of the dead was a former FARC guerrilla who demobilized in 2017, Jhon Jairo Silva.
Four more people were wounded, the Inter-American Human Rights Commission confirms, including a soldier who was shot in the arm.
Were four additional people captured?
No. Early reports, including President Duque’s tweet, noted the arrest of “four criminals” in addition to the eleven killed. Colombia’s Prosecutor-General’s Office (FIscalía) responded days later that no suspects had been handed over. Three people who had been wounded in the operation received medical care at clinics elsewhere in Putumayo, and were freed.
Were those killed combatants, or civilians?
Witnesses insist that at leastfour(or perhaps at leastfive) of those killed had nothing to do with armed groups.Of the other six or seven, it is unknown which or how many were armed or engaged the military in combat. The Army recovered only six weapons from the scene.
Alto Remanso is an area with very little state presence. People who are not combatants coexist every day with armed groups like the Comandos de la Frontera. It is not surprising that members of this armed group, which keeps close watch over all activity in the area, would have been present at a large community gathering.
Rather than admit errors or “collateral damage” in a crossfire, Colombia’s Army and Defense Ministry insist that every single one of the dead was a combatant. Military sources provided the pro-government Semana magazine with an account of months of preparation and intelligence leading up to the operation, including soldiers’ surveillance of what the magazine called a “cocalero bazaar” starting on March 26. In a March 30 Twitter response to opposition presidential candidate Gustavo Petro, Defense Minister Molano wrote that the operation “wasn’t against innocent Indigenous people, but against narco-cocaleros [apparently a reference to coca farmers]. It wasn’t at a bazaar, but against criminals who attacked soldiers.”
The commander of Colombia’s Army, Gen. Eduardo Zapateiro, reiterated on April 11 that all of those killed were guerrilla dissidents. “This isn’t the first operation in which pregnant women and minors get killed,” Gen. Zapateiro told a television interviewer. (Gen. Zapateiro caused controversy in February 2021 with a tweet comparing human rights advocates to venomous snakes, posted the day after major revelations about past extrajudicial executions.)
On April 12, Gen. Juan Carlos Correa, commander of the Army’s Air Assault Division, told the Caracol radio network that all of the dead were armed-group members, either fighters or support personnel. Gen. Correa is a close U.S. ally: he spent 2019 and 2020 in Miami, at U.S. Southern Command headquarters, as the director of the U.S. military command’s J7/J9 (Exercises and Coalition Affairs) Directorate.
The Colombian Armed Forces shared a document purporting each deceased individual’s ties to the armed group. It claims that Hernández, the community leader, went by the alias “Gordo,” and his partner, Sarrias, was alias “Dayana.” It alleges that Panduro, the Indigenous leader, was shooting a rifle with a scope. In the document, Pama, the 16-year-old, was allegedly carrying a rifle too.
Townspeople say that the four had no armed-group affiliation; even if they did, though, that would not be grounds for use of lethal force against them. Hernández and Sarrias were not armed when they were shot: investigative journalist José Guarnizo of the online media outlet Voráginewrites that he has photos, too explicit to publicize, that prove it. Panduro “never picked up a weapon, and there is an infinity of testimonies” supporting that, wrote Guarnizo. Witnesses of the military operation say that Pama was shot not while carrying a rifle, but while trying to offer first aid to a combatant who had been carrying a rifle.
What is the security situation in Putumayo?
The security situation is dangerous. A Maryland-sized department (province) of about 350,000 people, Putumayo has long been ungoverned and conflictive. One of Colombia’s principal coca-growing departments, it is also a key corridor for cocaine transshipment across the border into Ecuador. It was a stronghold of FARC guerrillas, until paramilitary groups made inroads into towns—with military support —in the late 1990s. In 2001, Putumayo was theinitial theaterof U.S.-backed military operations supported by the first “Plan Colombia” aid package.
Do the military units involved receive U.S. aid?
Yes. A pro-government media report identifies the Colombian Army’s 3rd Counternarcotics Battalion as the unit to which the soldiers who carried out the attack belonged. This mobile battalion was created with generous U.S. support in the early 2000s with funding from the first Plan Colombia appropriation, and continues to get U.S. support today. During the Duque government, this and other counternarcotics battalions were reorganized into a Command Against Narcotrafficking and Transnational Threats (CONAT), which also works closely with U.S. counterparts. U.S. trainers were present for the CONAT’s March 2021 activation ceremony.
This is one of the Colombian Army’s most elite units, whose members “are trained day and night about international humanitarian law and human rights,” law of war expert Jean Carlo Mejía toldEl Espectador.
The Leahy Law prohibits U.S. aid to foreign military units that commit gross human rights violations unless “effective” or “corrective” steps are being taken. As long as investigations continue (see below) and responsible officials are held accountable, the Leahy Law will not be invoked. Should investigative and accountability processes stall, assistance to the 3rd Counter-Narcotics Battalion, and possibly to the CONAT, could be in jeopardy.
Did this operation violate International Humanitarian Law?
A consensusview in recent reporting is that it is very likely that this attack, launched in the middle of a party crowded with civilians, violated international humanitarian law. “According to International Human Rights Law, the intentional use of lethal weapons can only occur when it is strictly unavoidable, and with the purpose of protecting life,” the UN High Commissioner for Human Rights’ Colombia field office recalled in a April 13 tweet .
The armed forces insist that the operation was legitimate: that it was planned and executed at all phases “based on the principles of international humanitarian law.” President Duque said on April 11, “There was an exchange of fire, members of the security forces were wounded, and all protocols were followed.”
However, the decision to pursue a “high value target,” spurring a firefight in the midst of dozens of civilians, including women and children, ran a very high risk of violating the “principle of distinction,” which requires soldiers to avoid harming non-combatants in all but the extreme circumstances, like urgent self-defense. The soldiers took that risk on March 28, ordering snipers to fire “discriminately” (in their words) at the gathering—even after video taken through a sniper’s rifle sights, shared later with Caracol, showed women and children present.
Did the soldiers wear black outfits and say they weren’t the Army?
Yes to the first, “probably” to the second. Townspeople in Alto Remanso say that the soldiers arrived in the town dressed all in black, and that they shouted, “Get down, we are not the security forces.” Some had their faces hidden; some had facial hair. Gen. Correa said that special-forces units do occasionally wear black uniforms, a practice that “is totally regulated.”
It is a violation of international humanitarian law to wear outfits lacking “a fixed distinctive sign recognizable at a distance.” It is also a violation (perfidy) for actors to pose as members of another side.
Did the Army delay or deny urgent medical assistance?
Almost certainly. The Inter-American Human Rights Commission “ received information about a supposed denial of medical assistance required by affected people.” Indeed, it appears that some of those killed in Alto Remanso bled to death from wounds that might have been treatable.
Divier Hernández, the Community Action Board president, lay bleeding outdoors, well enough to ask another townsperson to take the keys to his boat and bring his wounded, pregnant partner, Sarria, to get medical aid. The townsperson carried Sarria to the river’s shallows where they sat, submerged, unable to reach the boat because of gunfire. Sarria eventually bled to death from her leg. Panduro, the Kichwa governor, lay on the ground for half an hour begging for help until he, too, perished. Amid the shooting, nobody could get near him to assist.
Was the scene tampered with?
It appears likely. Army personnel had Alto Remanso to themselves for about seven hours: investigators from the Prosecutor-General’s Office (Fiscalía) did not arrive until after 2:00 PM on March 28th. By then, soldiers had moved the dead, allegedly to “keep them in a secure area.” The Fiscalía personnel were initial crime scene investigators, some of whom were seen hugging Army commanders upon their arrival. Fiscalía detectives did not begin to interview witnesses in the town until four days later.
More serious are allegations that victims’ bodies may have been manipulated to make them appear to have been combatants. Strong questions surround Brayan Santiago Pama, the 16-year-old who was killed. Reporters from Cambio, El Espectador, and Vorágine have photos of Pama’s body—which they’ve reproduced as artist renditions out of respect for the victim’s family—showing Pama first lying on the ground unarmed, and then later lying on the floor of a boat with a rifle laid on top of him.
In another video shared by Vorágine we see a grieving woman, while an off-screen voice asks soldiers, “We civilians don’t have weapons, why are you doing this to us? What is most shocking is that you put guns on them. The man you put a rifle on is a governor accredited by the mayor’s office. He was an unarmed person.”
What happened to the money and the whiskey?
They’re gone. Reporters who visited Alto Remanso and spoke to townspeople heard that the three-day bazaar was going well, having raised about 11 million pesos (US$3,000) for the road-paving. The boozy gathering still had about eight cases (96 bottles) of Buchanan’s whiskey still left to sell or drink.
Several witnesses said that the Army took the money, and that the whiskey is no longer in the town. Some say soldiers also took another 36 million pesos in cash (nearly US$10,000), the proceeds of a land sale. A sex worker said that, as she lay on the ground, a soldier put his foot on her head and wrested away her mobile phone “without any explanation.”
The Army reported seizing 9.8 million pesos in cash during the raid, along with weapons. A Defense Ministry source toldCambio that it would be “unthinkable” for the soldiers to have taken the liquor, because “each one would have had to carry two bottles.”
Are credible investigations happening?
Investigations are ongoing, for now. The Internal Affairs Office (Procuraduría) has launched a preliminary inquiry into what happened in Alto Remanso, though the Army has so far not provided requested documents. Senators are calling on Defense Minister Molano to testify. Reporters from El Espectador couldn’t ascertain whether personnel from the Human Rights Ombudsman’s office had managed to visit Alto Remanso.
Real judicial accountability resides with the Prosecutor-General’s Office (Fiscalía). “We urge the Fiscalía to conduct a thorough and independent investigation to guarantee the victims’ rights to truth, justice and reparation,” the UN High Commissioner for Human Rights field office tweeted on April 13. “We recommend that all disciplinary and criminal measures be taken to prosecute and punish those responsible for what happened.”
The quality of the Fiscalía investigation is not assured. Detectives came to interview witnesses four days after the events occurred, though reporters and NGO investigators were able to arrive days before. Interviews with witnesses took place outdoors without privacy. Military personnel stood nearby, some with video cameras mounted to their helmets.
What is the humanitarian situation now for community residents?
Serious. Residents say they have alerted the Fiscalía about the disappearance of five people from the Alto Remanso community, including an eight-year-old boy. Meanwhile, the town is virtually abandoned: El Espectador’s reporter wrote that about 20 people came to the town to talk to her, but “by the evening, the village was once again nearly unoccupied.” Contagio Radionoted, “fear reigns due to reprisals following the denunciations, and many of the region’s inhabitants continue to suffer forced displacement without government assistance.”
What does this mean for politics and civil-military relations in Colombia?
Unless clarity and accountability come swiftly, it is a bad sign. The Alto Remanso, Putumayo attack has generated a political firestorm as Colombia heads toward May 29 first-round presidential elections. The deeply conservative Duque government, which is unpopular, is facing calls for Defense Minister Molano’s resignation and a move by opposition legislators to censure him (which probably lacks necessary votes).
All presidential candidates have weighed in. While all call for an investigation, their postures vary. Rightist, pro-government candidate Federico Gutiérrez assures that the military “rigorously respects human rights.” Rightist independent candidate Rodolfo Hernández criticizes “media tribunals that, without knowing the full facts, make these narco-guerrilla meetings look like a Boy Scout camp.” Centrist Sergio Fajardo said, “the government cannot present a disproportionate and vile action as a successful operation.” Leftist Gustavo Petro called it “a war crime against Putumayo’s population,” adding, “In my government, honor will be the security forces’ axis.”
Of particular concern is the Defense Ministry’s and security forces’ defiant attitude in the face of mounting evidence that not all of those killed were combatants. Mistakes happen in combat. For leaders to insist that none occurred in Alto Remanso—that what happened on March 28 was an exemplary operation—carries serious and lasting risks to the credibility of Colombia’s security sector, when much careful reporting indicates otherwise.
Retired Col. Pedro Javier Rojas, a moderate, oversaw doctrinal reforms a decade ago but resigned from Colombia’s army in late 2020 over disagreements with the current, harder-line high command. Speaking with El Espectador, Rojas viewed the Putumayo attack as an ominous sign that the armed forces are losing their way. “Today, doctrine, one of the three pillars of any military force—together with cohesion and principles and values—is weakened. The current Army leadership did not continue to build it, and furthermore it has not been correctly internalized and disseminated. That is why we see these repeated mistakes in operations.”
Gen. Montoya will not be indicted in regular justice system
In a decision that, El Tiemporeported, “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.”
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 Espectadorexplains, “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.
The Truth Commission abruptly cancels a planned event about false positive killings, organized by Maj. Carlos Guillermo Ospina, the Commissioner who is a retired military officer. The decision comes because one of the event’s foreseen panelists was to be Col. Hernán Mejía, who was sentenced to 19 years in prison for ordering “false positive” killings and has been released pending trial before the JEP. Col. Mejía is an outspoken figure on Colombia’s political right who denies any responsibility for abuses.
Colombia’s Senate approves the promotion to Major General of Army Chief Gen. Eduardo Zapateiro. All opposition senators boycott the vote, as Zapateiro faces five investigations for alleged corruption and disciplinary violations. Another allegation that has been dropped involved Gen. Zapateiro’s possible involvement in the 1995 disappearance of Jaime Enrique Quintero, father of star soccer player Juan Fernando Quintero.