Law Risks Impunity for Unlawful Killings
June 18, 2013

The law approved today is filled with loopholes that will help shield military officers responsible for human rights violations from prosecution. The law could result in the transfer of cold-blooded killings by the military known as ‘false positives’ from civilian authorities to the military justice system, where there is virtually no chance for accountability.

Jose Miguel Vivanco, Americas Director

Colombia’s passage of a law to reform the military justice system is a major setback for human rights, Human Rights Watch said today. The law creates a serious risk that unlawful killings by the military, known as “false positives,” will be transferred from civilian prosecutors to the military justice system. The law also authorizes public security forces to use lethal force against civilians in a dangerously broad range of situations.

The law, approved by Congress on June 17, 2013, implements constitutional changes to the military justice system enacted in December 2012. The law is expected to be signed by the president.

“The law approved today is filled with loopholes that will help shield military officers responsible for human rights violations from prosecution,” said José Miguel Vivanco, Americas director at Human Rights Watch. “The law could result in the transfer of cold-blooded killings by the military known as ‘false positives’ from civilian authorities to the military justice system, where there is virtually no chance for accountability.”

The constitutional amendment enacted in December establishes that the military justice system will “exclusively handle” international humanitarian law violations and other abuses by the military, except for a closed list of seven crimes, including “extrajudicial executions.” The definition of “extrajudicial executions” established in the implementing law does not ensure that the roughly 3,000 alleged “false positive” cases currently being investigated by the Attorney General’s Office as “aggravated homicide” or “homicide of protected person” will remain with civilian prosecutors.

The law's definition of what constitutes an “extrajudicial execution,” and therefore remains in the civilian justice system, is very narrow, Human Rights Watch said. The victim must have been “under the control of the state agent” and “did not try to escape,” or was previously placed “in a state of defenselessness” with the purpose of killing him, or was killed “by deception.” Furthermore, the law defines an “extrajudicial execution” as a new offense in the Penal Code. This will allow defense lawyers and Colombian authorities to argue that the principle of non-retrospectivity, under international and Colombian law, prohibits anyone currently under investigation for an alleged false positive from being prosecuted for this new offense.

They could contend that false positives should continue to be investigated and prosecuted as aggravated homicides or homicides of protected persons – and not extrajudicial executions – and thus be moved to military jurisdiction. Colombia could have avoided this problem if it had defined extrajudicial executions by referring to the existing provisions from Colombian law under which “false positives” and other illegal killings are currently investigated and prosecuted. The law takes this approach in relation to crimes of sexual violence.

The law’s expansion of the military justice system over human rights violations directly contradicts the repeated rulings of the Constitutional Court of Colombia and the Inter-American Court of Human Rights. In September 2012, for example, the Inter-American Court ruled in the case of Vélez Restrepo and Family v. Colombia that the military justice system “is not the competent system of justice to investigate and, as appropriate, prosecute and punish the authors of human rights violations.”

The law also establishes a definition of “legitimate target” that allows the public security forces to attack civilians in an overly broad range of situations, such as when civilians carry out activities that are unrelated to the country’s armed conflict. Article 10 of the law provides that “civilians who participate directly in the hostilities” are legitimate targets. Article 11 defines direct participation in hostilities as anyone who carries out acts that will “probably” cause any kind of “harm” to civilians or civilian objects, the public security forces, or other state institutions “in support of an armed group.”

By contrast, the International Committee of the Red Cross (ICRC) has said that to qualify as direct participation in hostilities, a specific act must reach a threshold of harm, and be designed to cause harm in support of one party to an armed conflict and in detriment to another party. The Colombian Military Forces’ Operational Law Manual of 2009, citing the ICRC, recognized these requirements, but the new law fails to incorporate them.

“By establishing an incredibly broad and vague definition of whom the security forces can attack and kill, the law dilutes the fundamental distinction between civilians and combatants enshrined by international humanitarian law,” Vivanco said. “Hopefully the Constitutional Court will strike down the provisions in the legislation that contradict international humanitarian law and human rights standards.”