Montoya has been under investigation since at least 2015 for “false positive” killings throughout the country when he was the army commander between February 2006 and November 2008, a period during which these killings peaked. The thousands of false positive killings, committed systematically by soldiers throughout the country to boost enemy body counts in the war, began in 2002. In March 2016, Montoya was summoned to a hearing where prosecutors were set to charge him, but he has yet to be charged.
In October 2016, Human Rights Watch had access to hundreds of pages of transcribed testimony provided by six current and retired army generals to prosecutors in closed hearings carried out between August 2015 and January 2016. The testimony strongly suggests that General Montoya knew, or at the very least had information available to know, about false positive killings under his command, and did not take measures he could have taken to stop them.
Montoya is one of at least 14 generals currently under investigation for their alleged roles in false positive killings. Others include Luis Roberto Pico Hernández, who commanded one of the seven divisions of the army during Montoya’s time, and Juan Pablo Rodríguez Barragán, the current commander of the Colombian armed forces.
Human Rights Watch is concerned that the prosecution against Montoya and others could be jeopardized because many false positive cases could be tried before the Special Jurisdiction for Peace, an ad hoc judicial system created by the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) as part of their peace talks.
The testimony Human Rights Watch reviewed strongly suggests that General Montoya failed to take steps to prevent the false positive killings. Gen. Jorge Arturo Salgado Restrepo, who currently commands one of the nine army divisions and is himself under investigation, told prosecutors that General Montoya should have known of false positive killings and did not take reasonable steps to prevent or punish these crimes.
Similarly, Gen. Gustavo Matamoros Camacho, who was Montoya’s chief of operations, told prosecutors that he warned Montoya about irregularities in the reported combat deaths in 2008 that might have indicated illegal killings, but Montoya did not take any action to address them.
The testimony adds to other evidence implicating Montoya that Human Rights Watch and others have already released. In 2009, the army’s inspector-general told the US Embassy that a main factor behind false positives was Montoya’s “constant pressure for combat kills,” and said that he was among the officers who were “involved in” or “tacitly condoned” the crimes, according to an embassy cable. In 2015, a Colombian journalist released an interview of a former soldier and paramilitary who suggested that General Montoya actively furthered false positive killings.
In the June 2015 report, “On their Watch: Evidence of Senior Army Officer’s Responsibility for False Positive Killings in Colombia,” Human Rights Watch presented convincing evidence suggesting that numerous senior officials, including General Montoya, bear criminal responsibility for false positive killings. Evidence against Montoya in the report includes the testimony of one high-ranking army officer who told prosecutors that Montoya knew of the executions when he was the army’s top commander, and the testimony of Lt. Col. González del Río, who said that when Montoya was the army’s top commander, he pressured subordinate commanders to increase body counts, punished them for failing to do so, and was the principal “motivator” for false positives.
“The evidence against Montoya piles up only to gather dust in a drawer somewhere in the Attorney General’s Office,” Vivanco said. “It is about time Colombian authorities move forward with this case.”
Montoya is being investigated for “homicide of protected people,” meaning civilians, which is a crime committed during conflict. Since the Special Jurisdiction for Peace will hear cases of crimes that were “directly or indirectly related” to the armed conflict, it is possible that it would handle his case.
The justice portion of the peace deal dictates that the Special Jurisdiction will rely upon a narrow definition of command responsibility – the rule that establishes when superior officers can be held responsible for crimes committed by their subordinates – that does not conform with international law. The definition could require authorities to prove commanders actually knew about and had control over the actions of their subordinates at the time they committed the crimes.
Such a narrow definition of command responsibility would mean that commanders who were not present at a crime scene to exercise control over their troops’ actions at the time, but had effective control over the troops implicated in abuses and should have known about their actions, could escape accountability, although they bear criminal responsibility for their troops under international humanitarian law.
Under international law, a superior is criminally liable when he knew or should have known that subordinates under his effective control were committing a crime, but failed to take the necessary and reasonable steps to prevent or punish the acts.
“Montoya’s case could end up being a paradigmatic example of how the deliberate ambiguities in the justice agreement could be misused to let senior army generals off the hook and to deny the many victims justice,” Vivanco said.
Testimony Against General Montoya
In October 2016, Human Rights Watch had access to hundreds of pages of transcribed testimony provided by six current and retired army generals to prosecutors. The testimony strongly suggests that General Montoya knew or at the very least should have known about false positive killings under his command, and did not take measures he could have taken to stop them.
The officers whose testimony implicated General Montoya are: Freddy Padilla De León, commander of the Colombian armed forces between 2006 and 2010; Gustavo Matamoros Camacho, the army’s chief of operations in 2008; Carlos Suárez Bustamante, who commanded the armed forces’ chief of operations in 2007 and 2008 and the army’s inspector-general in 2009; Jorge Arturo Salgado Restrepo, who currently commands the 7th army division and is under investigation for killings committed in 2006 and 2007; Reinaldo Castellanos Trujillo, commander of the army until 2006; and Jorge Rodríguez Clavijo, who commanded the army’s 4th brigade between 2006 and 2007, while it allegedly engaged in dozens of killings. A small part of Salgado’s testimony was published by the Colombian newspaper El Espectador in April 2016.
Among the new evidence suggesting that Montoya knew of false positives:
- General Padilla de León, commander of the armed forces during Montoya’s time as army commander, said that in 2007 Montoya and other top commanders and officials, including President Juan Manuel Santos, who was then the defense minister, met with International Committee of the Red Cross (ICRC) officials roughly every month to receive reports of extrajudicial killings. General Padilla said there were “increasing” complaints against the army and that Montoya was aware of many of these complaints because they were discussed at these meetings, which he attended; and
- General Matamoros, who was Montoya’s chief of operations in 2008, told prosecutors that around March 2008, officials from the Attorney General’s Office met with Montoya and reported several “false positive” cases to him.
Montoya Had Reason to Know About False Positives
The new evidence Human Rights Watch reviewed shows that Montoya had reason to know about false positives because he had detailed knowledge of combat killings, access to credible reports of false positives, and knew of the implausible circumstances of many reported combat killings. In fact, General Matamoros, Montoya’s head of operations in 2008, told prosecutors that it was possible for Montoya to realize that reported combat kills were in fact extrajudicial executions.
Similarly, General Suárez told prosecutors that when he was the army’s inspector general, immediately after Montoya resigned, he identified many false positive killings throughout the country. This indicates that it would have been possible for Montoya and his inspector generals to know about these killings.
The new evidence Human Rights Watch reviewed provides numerous reasons to believe that Montoya had available information to know about false positives and should have reasonably known about the killings.
Reason One: Montoya Knew of the Implausible Circumstances of Reported Combat Killings
As Human Rights Watch showed in “On Their Watch,” the implausible circumstances of the reported combat killings, including the types of weapons reportedly found on victims, the location and function of the military units reporting the deaths, and the large number of common criminals reported killed in military operations, should have led commanders to suspect unlawful killings. The new evidence suggests that General Montoya knew or could have known about these irregularities:
- Matamoros told prosecutors that he warned Montoya in a 2008 meeting with other senior officials that irregularities appeared in the casualties reported by brigades. Based on an analysis of the areas where the killings were reported, Matamoros found that “most of the casualties were not being produced in the base areas [with more enemy combatants] where they should be being caused.” General Matamoros had also found and told Montoya that “we were killing more militiamen with short weapons (pistols and revolvers) than guerrilla fighters with long weapons … and [brigades] were not identifying enemies killed in combat. Instead, all were being reported as ‘no name.’” General Matamoros noted that this information was also “available” to army top commanders like Montoya before Matamoros was appointed chief of operations of the army in 2008;
- General Salgado told prosecutors that the implausible circumstances of reported killings was “easy to detect” and that the number of common criminals killed in combat “had to create an alert” for commanders because the army is meant to target civilians with lethal force only in exceptional circumstances. Salgado also said that the army leadership never asked brigade commanders about the inconsistencies they reported, including the number of deaths reported as “no name,” the many killings reported in areas where guerrillas were not present, and the number of victims found with pistols and revolvers, which guerrillas normally do not use;
- Under Colombian law, as Generals Castellanos and Padilla de León said in separate testimony, the army is supposed to fight “ordinary criminals” only in exceptional circumstances. However, official figures revealed to Human Rights Watch show that between 2004 and 2007, the reported number of common criminals killed in operations by the army grew by 1,200 percent, from 27 to 325. General Suárez said that the army registered these killings, which should have led General Montoya to notice irregularities in the supposed operations and to suspect unlawful killings; and
- General Rodríguez Clavijo said that the Pedro Nel Ospina engineer battalion, under Col. Édgar Emilio Ávila Doria, reported the highest number of enemies killed in combat at least in 2006. Clavijo said he could not “square” this at the time because as an engineer battalion, the Pedro Nel Ospina was not supposed to engage in combat. Since Montoya had access to daily and monthly reports of the killings reported by each military unit, this information should have led him to suspect illegal killings. (The Pedro Nel Ospina case was also reported by the Colombian investigative outlet La Silla Vacía, and Colonel Avila Doria is facing prosecution).
Reason Two: Montoya Had Access to Credible Reports on ‘False Positives’
Credible public reports of false positives emerged at least several years before the Soacha scandal broke in late 2008, as Human Rights Watch has shown. The new evidence suggests that these reports had reached the highest levels within the army and were thus accessible to Montoya:
- General Matamoros said that there were “many” complaints of illegal killings starting around 2003 or 2004, including from the UN High Commissioner of Human Rights in Colombia, Human Rights Watch, and many other organizations;
- General Salgado said he knew that the 11th brigade, which he commanded, had received reports of false positive killings and that the division to which his brigade belonged, the Seventh, had convened “many” meetings to discuss these reports. In particular, Salgado recalled a meeting with Seventh Division commanders around November 2007, during which the ICRC “called their attention to a number of cases”;
- General Padilla de León, the armed forces commander during Montoya’s time as army commander, said that the armed forces received multiple complaints of “procedures that were not correct,” including two from the office of the UN High Commissioner of Human Rights in Colombia, in 2004 and 2005; and
- General Rodríguez Clavijo said he spoke with General Salgado when he was appointed commander of the 11th brigade in 2008 because there was “noise” about the “results reported by his predecessors” in the brigade.
Reason Three: Detailed Knowledge of Combat Killings
The senior officers testified that Montoya had detailed knowledge of the reported combat killings, which makes it all the more likely that he could have known that army brigades were engaging in false positives. The generals said that Montoya visited military units frequently, received daily reports of military activities, and had access to monthly and daily bulletins about the deaths reported by each military unit. His detailed knowledge was such that General Matamoros told prosecutors:
If anyone knew everything that was going on, that was General Montoya. Although some say he didn’t know anything, if someone did not report to him, he signed his own death sentence. So everyone reported everything to him and he knew absolutely everything.
Matamoros said that Montoya had given an order to inform him immediately about casualties and asked for details about each of the casualties, including how each took place and where. Similarly, General Suárez said that in monthly calls – in which Montoya participated – commanders described casualties in detail, including where these had occurred, whether those killed belonged to guerrilla groups, other groups, or were common criminals, and what weapons were used to kill them.
Reason Four: Montoya’s Pressure to Boost Body Counts
Evidence from “On Their Watch” suggests that commanders measured success in terms of reported combat kills and pressured subordinates to increase them. The pressure appears to have pervaded the army’s chain of command, ranging from General Montoya to brigade and battalion commanders, all the way down to the soldiers who pulled the triggers.
The new evidence corroborates that General Montoya’s pressure to increase combat kills led to false positive killings. In addition, the unreasonable way this pressure was imposed on brigades – for example, by comparing brigades that, due to their location and function, were likely to kill enemy combatants with others that were not – makes it likely that Montoya should have known his policy could have driven soldiers to report innocent civilians as enemies killed in combat. Evidence that pressure from Montoya actively furthered killings includes:
- General Clavijo described Montoya’s pressure for body counts as “constant” and said that it motivated the extrajudicial killings. He said Montoya overwhelmingly focused on killings, ignoring other relevant variables. Clavijo noted that he “never heard” General Montoya congratulate a commander because an “area [of the country] was calm.” Clavijo said that he believes that many brigade commanders were removed from their posts because they were not reporting a significant number of kills in combat compared with previous years. As Clavijo noted, this demand “did not make sense” because if commanders “were doing their job, unless the enemy was recruiting an impressive amount of people – and that was not what Intelligence was saying –… [then each year] there would have been fewer possibilities of combating [enemies]”;
- General Matamoros said that Montoya “sorted” brigades by the number of their kills and that “there were people that were upset because they said, ‘nothing happens in my area’ and I told Montoya, ‘General, how can I report kills in Cundinamarca if there are no enemies here?’” Matamoros said that Montoya focused on killings and noted that “there were a number of privileges for those who showed more results – trips abroad, commissions, a number of stimuli, because they were supposed to be the best and, logically, those who did not report results were questioned and sometimes relieved [of their posts].” He said that “there were many commanders who had lots at stake, they had their promotions at stake, their commissions abroad, and they may have done things ... there was a lot of pressure and I’m sure some commanders with weak character did things they should have not done to please their bosses”; and
- General Salgado told prosecutors that under Montoya’s command, “everything was oriented” toward the number of kills, including awards, and commanders were requested to report “more or at least the same number” of kills compared with the previous year. “I believe that [in] the units, or many of the units, that were involved in false positives, well … surely many [soldiers] were subject to pressure to report results from unscrupulous people and they said, ‘OK! They want results, I’m able to report results … crossing the lines I need to cross.’”
No Steps to Prevent, Punish ‘False Positives’
Human Rights Watch has found no evidence that military commanders took steps to prevent or punish false positives until 2007. That year, the high command of the armed forces and Defense Ministry issued several new directives, including one in November 2007 that gave demobilizations and arrests priority over combat kills. It is not clear to what extent, if any, these measures caused army commanders to change their practices. They were certainly not sufficient to stop false positives. Prosecutors have opened investigations on more than 550 alleged extrajudicial killings by state agents in 2008, most by army troops. The evidence that these crimes were coming to a halt only began after the government dismissed 27 army officers – and Montoya resigned – following the Soacha scandal in late 2008.
The new evidence corroborates that Montoya failed to take measures to prevent or punish false positives. For example, General Matamoros said that Montoya did not give him any specific order to address the irregularities in casualties he reported to Montoya and other senior officials in the 2008 meeting.
Similarly, General Salgado told prosecutors:
Prosecutor: Did the commander of the army [Montoya] take any measure to ensure that casualties were “well-done” (legitimate combat deaths)?
Prosecutor: At the Joint Command or Division level did they carry out a…
Salgado: Control? No.
Prosecutor: There only was a warning before the killings [that casualties should be “well-done”], but nothing during [operations] or after?
Similarly, senior officials’ testimony suggests that soldiers were scarcely, if ever, investigated and punished by the army for involvement in false positives. General Suárez told prosecutors that he could only recall one “exceptional” case in which a soldier was relieved from his post for committing a crime. General Clavijo noted that General Pico Hernández – one of the generals under investigation – had loose control of the Seventh Division under his command and when he was appointed commander of the 4th brigade in 2006: “there was no control, disciplinary investigations were in charge of officers who did not have competence to address them, [and] some had been closed due to statutory limits.”
Possible Destruction of Evidence
The senior officers’ testimony reviewed by Human Rights Watch suggests that General Montoya and General Pico Hernández, who was then commander of the Seventh Army Division, might have been involved in destroying evidence of pressure to increase combat kills that led to false positive killings:
- General Salgado told prosecutors that in April 2008, when he commanded the 11th brigade, General Pico Hernández ordered brigades and battalions in the Seventh Division to burn copies of a directive that established rewards for soldiers who reported a high number of killings. Salgado said that burning directives was not the normal or legal way to abrogate directives. He also noted that he was “sure” that the order came from General Montoya because, as the army’s commander, he was the only one authorized to abrogate directives; and
- General Rodríguez Clavijo, in a separate testimony, said that when he commanded the 17th army brigade in 2008, he received the order from General Pico Hernández to burn a directive, apparently the same one mentioned by General Salgado. Clavijo said that the order made an impact on him because it did not comply with the “normal parameters or regulations.”
In March 2016, the office of the UN High Commissioner of Human Rights in Colombia reported that it had reviewed an “official document from the military” that “proves” that an “army commander” had ordered that a directive that established rewards for soldiers who reported high number of killings should be burned.