Colombia: In the Shadow of the International Criminal Court

Commemoration day for missing persons, Plaza Bolívar, Bogotá, Colombia. Photo Credit: Movemiento nacional de Victimas de Criminen de Estado

By Djoye Mendy, HARP, International Justice Project

FIDH and the Coordinación Colombia Europa Estados Unidos call upon the ICC Prosecutor to open an investigation into crimes against humanity committed in Colombia.

Overview of the scandal of “the false-positives”:

In order to understand the phenomenon of extrajudicial executions in Colombia, it is necessary to put them in the political context of the time. When Mr. Alvaro Uribe Velez took over as president in 2002, he made the fight against insurrection the central focus of his administration. Thus, since August 2002, the Colombian government took a series of measures under the so-called “Democratic Security Policy,” which gave a series of powers to the military forces.

But Velez’s presidency was not the starting point of this crisis. In fact, Colombia has been immersed in an internal armed conflict that has been going on for several decades. The Revolutionary Armed Forces of Colombia – People’s Army (Spanish: Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo; FARC-EP or FARC) is a “Marxist-Leninist revolutionary guerrilla organization” based in Colombia, involved in the ongoing armed conflict. It claims to represent the rural poor in a struggle against Colombia’s wealthier classes and opposes the neo-imperialist influence in Colombia, the monopolization of natural resources by multinational corporations, and paramilitary and government violence. This conflict is due to the opposition between FARC members and the national army and paramilitary groups. In this context, serious human rights violations and international crimes may have been committed by both sides.

For most of the period between 2002 and 2005, the FARC was believed to be in a strategic withdrawal due to the increased military and police actions of the new president Álvaro Uribe, which led to the capture or desertion of many fighters and medium-level commanders. Uribe ran for office on an anti-FARC-EP platform and was determined to defeat FARC in a bid to increase “confidence” within the country. In 2002 and 2003, FARC broke up ten large ranches in Meta, an eastern Colombian province, and distributed the land to local subsistence farmers. During the first two years of the Uribe administration several FARC-EP fronts, most notably in Cundinamarca[1] and Antioqua[2], were broken down by the government’s military operations.

Although it was recognized that the practices of the FARC were sometimes equivalent to violations of human rights and international law, the report issued by The “International Federation of the Human Rights” FIDH (French: Fédération Internationale des Droits de l’Homme) and the “Coordination Colombia-Europe-US” CCEEU (Spanish: Coordinación Colombia Europa Estados Unidos) focuses on the practices of government armed forces in this endless conflict.

August 2008 was the starting point of the movement launched by the “mothers of missing.”  The Colombian government has faced public international outcry since 2008 in what has been termed as “the false positives scandal.” The “false positives” first surfaced on June 29, 2011, when eight Colombian soldiers were sentenced for killing four innocent men in the province of Antioquia back in June of 2006. Four farmers were pulled out of their homes by the soldiers, shot in the back, and their bodies were disguised by the soldiers by putting them in guerilla uniforms. All eight soldiers were given 60 years in prison, the maximum sentence, for their participation in the “false positives” slayings. Many convictions and indictments of army officials and soldiers are the most recent developments in the “false positives” scandal. This scandal was a result out of the “body bag” culture of the Colombian army where soldiers are rewarded with extra pay, days off and promotions when they kill a high number of rebel combatants.

For this particular report, the FIDH worked with the CCEEU. Between July 2011 and April 2012, two consultants conducted a literature search, monitoring investigations, trials, and interviews with the lawyers who were representing victims of extrajudicial executions in cases brought to justice in Colombia. FIDH takes this occasion to pay tribute to the defenders of human rights in Colombia, for the tireless struggle for respect for human rights and against impunity in a hostile context of threats, attacks and intimidation.

The purpose of the report is to expose the systematic and widespread phenomenon in the practice of false positives in Colombia between 2002 and 2008. This criminal conduct appears to have been motivated by the political context of the time, which required the army to show positive results in the fight against insurgents. To this end, it has established a system of incentives and rewards. Without adequate control, the system has lent itself to much abuse that led to more than 3,000 innocent civilians murdered before being presented as combat deaths. False positives have become a business, through which some members of the Army have been promoted as a reward of their ‘positive’ results, including intimidation and harassment of judicial officers, organizations of human rights, victims’ families and witnesses. The expansion of the phenomenon throughout the territory of Colombia has led the FIDH to conclude that these acts were supported by high-ranking military officials, who were also promoted after serving in military units where such extrajudicial executions were commonplace.

Between December 2007 and August 2008, at least sixteen young men disappeared under mysterious circumstances in Soacha, in the Cundinamarca region. Some of them told their families that they were leaving to attend a job offer in Santander. Others simply did not return to their homes. All were reported to have been killed in combat by “Batallón Francisco de Paula Santander”[3] or the “Brigada Movil 15”, both units ascribed to the Second Division of The National Army involved in the fight against revolutionaries armed groups. The scandal finally erupted by the end of August 2008 when mothers of Soacha joined together to complain about their missing children after several months of uncertainty about their whereabouts, fruitless searches, indifference, and lack of response from the State authorities. The bodies of young people showed up inexplicably, 700 miles away from Soacha, buried as “NN” (unnamed) in a mass grave in Ocaña (North of Santander, Colombia), falsely reported by the Army as criminals, paramilitaries or guerrillas killed in combat. When these claims took public notoriety, families across the country began to report the disappearances and murders of loved ones in similar circumstances.

The report shows that this phenomenon is actually not something new, that there are some known cases of people killed by security forces and presented as combat deaths which occurred before 2002, but this practice became an unprecedented incident with specific characteristics since then, concomitantly with President Uribe’s rise to power.

The report establishes that clear patterns and a high degree of organization are defining this practice today, so that these cases have to be studied as a set of facts establishing a prolonged practice thought by the national authorities. It is this practice that has become known commonly as “false positives,” a technical name generally used to designate “the cold blooded murder of innocent civilians for profit,” or more generally defined as the killing of innocent civilians who are passed off as enemy guerilla combatants by the National Army in order to falsely inflate their kill counts.

ICC called to investigate Colombian military officials for the practice of “false-positives”:

On May 29, 2012,The International Federation for the Human Rights (FIDH) and the Coordinación Colombia Europa Estados Unidos (CCEEU) presented their report, entitled “Colombia: The war measured in litres of blood – “False-positives”, crimes against humanity: the impunity of the most responsible“[4] on the occasion of the public event organized in The Hague Institute for Global Justice.

This report explains that extrajudicial executions committed in Colombia, known as “false-positives”, constitute crimes against humanity, and that “those who bear the greatest responsibility are not being investigated or prosecuted by the Colombian justice system” according to the FIDH. The report alleges the extra-judicial killings of 3,345 civilians, mostly young men and farmers from rural areas, who were killed and masqueraded as members of guerrilla groups killed in combat between 2002 and 2008, during the administration of former President Alvaro Uribe. The increase in false positives under the Uribe administration is believed to have been driven principally by the intensification of rewards and punishments linked to whether or not army battalions could demonstrate “results.” This increase of incentive structures has been a key aspect of the Uribe government’s Democratic Security Policy, in order to encourage aggressive actions against the FARC and the “Ejército de Liberación Nacional” (ELN) or National Liberation Army. A key example of this is Directive 029, which according to Senator Gustavo Petro was circulated in 2005 by then Minister of Defense Camilo Ospina, offering payments of up to 3,800,000 pesos ($1500-2000) for killed enemy combatants.

The testimony of some of the implicated members in the case of false positives refer to the pressures placed on them from members of the National Military in regards to operational results. ” They confessed that every commandant in each battalion had to report one death per month and the Second Section had to report three bodies a month and stated that “each commanding officer that fails to provide body results every month will be appropriately sanctioned, which will in turn reflect on his overall record.”

The FIDH and the CCEEU emphasized that this was done with the knowledge and even, in some cases, at the urging of “army officials at the highest level,” which actually gave incentives to army personnel for such killings. The report shows that the primary motivation in such crimes was a desire by the culprits to demonstrate “results” to their superiors, in order to gain holidays, training courses, promotions and cash rewards. Such crimes highlight the existence of a morally perverse culture in the army in Colombia, undermining its claim to have a legitimate monopoly of the use of force, and demonstrating that levels of impunity in the country remain high.  It appears that supporters of the government are quick to downplay the incidents as “a few rotten apples” and denounce attempts to seek justice as propaganda for the Fuerzas Armadas Revolucionarias de Colombia (FARC), while trenchant opponents of the government lose no time in qualifying the crimes as “crimes of the state” and “crimes against humanity.”

The FIDH and the CCEEU reminds us that as a party to the Rome Statute, Colombia is obliged to prosecute such punishable conduct. Moreover, the report points out that Colombia has introduced legislation that encompasses the Rome Statute in the “constitutional block,” confirming that Colombia is obligated to criminalize conduct defined in that instrument.

Last Thursday, during the twentieth session of the Council of Human Rights in Geneva, the FIDH and the CCEEU have reiterated their call to investigate crimes committed in Colombia between 2002 and 2008 to the new Prosecutor Fatou Bensouda. While defenders of human rights recognize that procedures are in progress, they also note that two judges have been assassinated, that witnesses are paid to change their testimony and that delaying tactics are implemented to destroy the prosecution. In the report, both of the FIDH and the CCEEU agree to retain the description of “crimes against humanity.”

The FIDH and the CCEE have also provided a confidential list of potential suspects to Mrs. Bensouda. In their report, they name the general Mario Montoya and Oscar Gonzalez Pena, promoted military commanders in 2006 for the first and the second in 2010 as potential suspects. General Montoya has since resigned and was appointed ambassador to the Dominican Republic. The challenge, for the court as much as for the international community, will be to legally define what occurred in Columbia between 2002 and 2008. The Colombian case, if accepted by the court, would be the first of its kind. So far only cases occurring on the African continent have been the subject of investigations by the court.