MEMORANDUM OF JUSTIFICATION CONCERNING HUMAN RIGHTS CONDITIONS WITH RESPECT

TO ASSISTANCE FOR COLOMBIAN ARMED FORCES

 

Section 567 of the Kenneth M. Ludden Foreign Operations, Export Financing

and Related Programs Appropriations Act, 2002 (P.L. 107-115) (“FOAA”) lays

out conditions under which assistance using funds appropriated under the

FOAA may be made available for the Colombian Armed Forces. In particular,

section 567(a) (1) provides that not more than 60 percent of such funds may

be obligated after the Secretary of State has made a determination and

certification with respect to certain human rights related conditions. The

Secretary of State made this determination and certification on May 1,. 2002

releasing the first 60 percent of those funds for assistance to the

Colombian Armed Forces. Furthermore, section 567(a) (2) states that the

remaining 40 percent of such funds may be obligated only after June 1, 2002

and after the Secretary of State once again has made a determination and

certification with respect to these human rights conditions.

 

This memorandum lays out the justification for the Secretary of State’s

Determination that the factors in section 567(a)(1) have again been met.

This memorandum also fulfills the reporting requirement found in section

567(c).

 

The Colombian military is suspending military officers credibly alleged to

have committed gross violations of human rights or to have aided or abetted

paramilitary groups; is cooperating with civilian prosecutors and judicial

authorities; and is taking effective measures to capture, arrest, and sever

links with paramilitary groups.

 

Although the Secretary has determined that the Colombian Armed Forces’

efforts justify certification at this time, the U.S. and Colombian

governments recognize that the Colombian government and military need to do

more to protect human rights and to sever military-paramilitary ties. Newly

elected President Alvaro Uribe and his Administration have stated repeatedly

their commitment to improving the human rights situation in Colombia. One of

President Uribe’s proposals to combat the illegal armed groups is the

training of civilians as defense or intelligence forces. The United States

Government is studying this evolving plan, but we have received assurances

from both President Uribe and Defense Minister Ramírez that any civilian

defense or intelligence forces will respect human rights and be accountable

to the central government. We take all human rights abuses seriously and are

committed to continue working with the Government of Colombia on concrete

measures that it should take to make further progress in improving the human

rights performance of its Armed Forces and in severing military ties with

paramilitary groups.

 

Following is a detailed discussion of the Colombian Armed Forces’ compliance

with the factors contained in section 567 (a) (1).

 

Section 567(a) (1) (A) requires a determination that:

 

The Commander General of the Colombian Armed Forces is suspending from the

Armed Forces those members, of whatever rank, who have been credibly alleged

to have committed gross violations of human rights, including extra-judicial

killings, or to have aided or abetted paramilitary groups.

 

The Prosecutor General’s Office (Fiscalía) is responsible for the criminal

investigation and prosecution of military personnel alleged to have

committed violations of human rights or to have aided or abetted

paramilitaries. The Human Rights Unit of the Prosecutor General’s Office is

a special task force currently comprised of more than 160 prosecutors,

investigators, and technicians responsible for the investigation and

prosecution of human rights crimes. Formed in October 1999, this unit has

received specialized training in the United States on conducting criminal

investigations of cases involving multiple homicides, bombings, and

kidnappings. The Human Rights Unit of the Prosecutor General’s Office is

committed to prosecuting military personnel who have committed violations of

human rights or have colluded with paramilitaries, but it is hampered-by

competing demands and scarce resources.

 

According to the civilian director of the Human Rights Unit of the

Prosecutor General’s Office, the Colombian Armed Forces — in accordance with

Colombian law and practice — are suspending, upon the receipt of an order

for preventive detention and at the request of. the Prosecutor General’s

Office, military personnel alleged to have committed gross violations of

human rights or to have aided or abetted paramilitary groups.

 

Colombia’s Criminal Procedure Code establishes the legal basis on which the

Armed Forces can suspend military personnel pursuant to a preventive

detention order. Under Article 359 of Colombia’s Code of Criminal Procedure,

all government institutions, including the Armed Forces, are required to

suspend from duty at the request of the Prosecutor General’s Office any

public servant against whom the Prosecutor General’s Office has issued an

order for preventive detention. When the Prosecutor General’s Office orders

an individual in the Armed Forces to be “preventively detained,” the Armed

Forces either hold that individual in custody at military facilities or turn

him over to civilian authorities. As used in this memorandum, suspension

refers to suspension under Colombian law, which means removal from active

duty and a fifty percent reduction in pay. (The Joint Explanatory Statement

of the Committee of Conference accompanying the FY 2002 FOAA, on the other

hand, defines “suspending” as the “removal from active duty and assignment

to administrative duties only without combat responsibilities or command of

troops in the field, pending investigation and prosecution, when civilian

prosecutors determine there is credible evidence to support such

allegations.”)

 

The Prosecutor General’s Office issues an order for preventive detention

during its investigation of a case, prior to formally charging a suspect

with a crime. It will make a request for suspension of the suspect if it

finds that there is credible evidence of the suspect’s involvement in a

criminal act and if the criminal act is serious enough to warrant the

issuance of an order for preventive detention. Under Colombian criminal

procedure, credible evidence warranting the issuance of a preventive

detention order (medida de aseguramiento) is defined as “at least two

reliable pieces of evidence developed in an investigation linking the

suspect to a crime.”

 

We understand that acts that would constitute gross violations of human

rights are crimes under Colombian law, and that aiding and abetting

paramilitary groups, including organizing, financing or participating in an

illegal armed group, is considered a crime under Presidential Decree 1194,

issued on June 8, 1989. Further, these crimes are considered sufficiently

serious to lead the Prosecutor General’s Office to issue an order for

preventive detention and to request the suspension from active duty of an

individual credibly alleged to have committed such a crime.

 

The Human Rights Unit of the Prosecutor General’s Office reports that

between March 2002 and August 2002 it issued seven individual orders for the

preventive detention of military personnel credibly alleged to have

committed gross human rights violations or to have collaborated with

paramilitaries. These cases are in addition to the twelve military personnel

identified in the first report as having been detained and suspended by the

Armed Forces between January 2001 and April 2002; nine of whom remained in

preventive detention and were suspended as of August 2002. With respect to

the three who are no longer suspended, two (Army Captain Juan Carlos

Fernandez Lopez and Army Colonel Victor Matamoros) had their preventive

detention orders overturned on appeal, and one (Army Captain Jorge Ernesto

Rojas Galindo) retired from the service. Rojas Galindo’s case, however, is

still under investigation by the Prosecutor General’s Office and he is being

detained by civilian authorities.

 

According to the Prosecutor General’s Office, the Armed Forces complied with

the order for the preventive detention of each individual when notified, and

suspended the military personnel involved when asked to do so by the

Prosecutor General’s Office. Additionally, between March and July 2002, five

military personnel were indicted, suspended from duty and had trial

proceedings initiated against them in civilian courts.

 

The following 16 individuals remained in preventive detention and were

suspended as of August 2002:

 

Army Sergeant Manuel Antonio Mirando Mejia. Detained and suspended upon an

order of preventive detention issued on June 13, 2002 on credible evidence

of aggravated homicide, conspiracy and obstruction.

Army Sergeant Luis Reina Sanchez. Detained and suspended upon an order of

preventive detention issued on June 13, 2002 on credible evidence of

aggravated homicide, conspiracy and obstruction.

Army Lieutenant Gustavo Gutierrez Barragan. Detained and suspended upon an

order of preventive detention issued April 19, 2002 on credible evidence of

aggravated homicide.

Army Soldier Sergio Fernandez Romero. Detained and suspended upon an order

of preventive detention issued April 19, 2002 on credible evidence of

aggravated homicide.

Army Soldier Juan de Jesus Garcia Gualteros. Detained and suspended upon an

order of preventive detention issued April 19, 2002 on credible evidence of

aggravated homicide.

Army Soldier Orbein Giraldo Sanabria. Detained and suspended upon an order

of preventive detention issued April 19, 2002 on credible evidence of

aggravated homicide.

Army Major Jaime Esguerra Santos. Detained and suspended upon an order of

preventive detention issued March 8, 2002 on credible evidence of aggravated

homicide.

The following individuals remain suspended, as noted in the May 1, 2002

memorandum of justification:

 

Army Soldier Willinton Romana Tello

Army Second Sergeant Sandro Fernando Barrero

Army Second Sergeant Humberto Blandon Vargas

Army Major Cesar Alonso Maldonado Vidales

Marine Sergeant Ruben Dario Rojas Bolivar

Army Major Alvaro Cortes Murillo

Marine Sergeant Euclides Bosa Mendoza

Army Sub-Lieutenant Nelson Jose Granados Gonzalez

Army Lieutenant Oscar Yesid Cortes Martinez

In addition to the military personnel placed under preventive detention

listed above, between March and July 2002 five military personnel were

indicted, suspended from duty and had trial proceedings (resoluciones de

acusación) initiated against them in civilian courts:

 

Army Major Jesus Mahecha Mahecha. Indicted and suspended as a result of an

order issued on March 2, 2002 to initiate trial proceedings for a charge of

aggravated homicide.

Army Sub-Lieutenant Nelson Jose Granados Gonzalez. Indicted and suspended as

a result of orders issued March 11 and July 5, 2002 to initiate trial

proceedings for charges of aggravated homicide, conspiracy and material

misrepresentation.

Army Sergeant Juan Bautista Uribe Figueroa. Indicted and suspended as a

result of an order issued April 12, 2002 to initiate trial proceedings for a

charge of aggravated homicide.

Army First Corporal Floriberto Amado Celis. Indicted and suspended as a

result of an order issued April 12, 2002 to initiate trial proceedings for a

charge of aggravated homicide.

Army First Corporal Julio Hernando Rios. Indicted and suspended as result of

an order issued April 12, 2002 to initiate trial proceedings for a charge of

aggravated homicide.

Section 567(a) (1) (B) requires a determination that:

 

The Colombian Armed Forces are cooperating with civilian prosecutors and

judicial authorities, (including providing requested information, such as

the. identity of the persons suspended and the nature and cause of the

suspension, and access to witnesses and relevant military documents and

other information) in prosecuting and punishing in civilian courts those

members of the Colombian Arméd Forces, of whatever rank, who have been

credibly alleged to have committed gross violations of human rights,

including extra­judicial killings, or to have aided or abetted paramilitary

groups.

 

The Minister of Defense has designated the Coordinator of the Armed Forces’

Group of Human Rights and International Humanitarian Law as the liaison

between civilian authorities and the Armed Forces. Additionally, to ensure

cooperation on the regional and local levels, the directors of the Human

Rights offices of the Armed Forces liaise with the representatives of the

Inspector General’s (Procuraduria) and Prosecutor General’s Offices in their

respective jurisdictions.

 

Elba Beatriz Silva, director of the Human Rights Unit of the Prosecutor

General’s Office, in a letter to the Colombian Vice President dated August

15, 2002, stated: “We consider that the actions of the Armed Forces in

helping the ­uman Rights] Unit ‘s investigations have been effective and

constitutes a key element in the carrying out of its constitutional mission

and, especially, adhere to a strict respect for and defense of human

 rights.”

 

Eduardo Jose Maya Villazón, Inspector General of the Republic of Colombia,

in a statement issued to the Department of State dated August 13, 2002,

stated: “Permit me to inform you that the Armed Forces of Colombia have

cooperated with the Inspector General of the Nation in investigations of

military personnel for violations of human rights or for links with

paramilitary groups, and has in general offered access to all the required

information pertaining to the investigations. In some exceptional cases low

ranking personnel, in issues involving intelligence matters, have

demonstrated some resistance to sharing this information, a situation that

is resolved when higher officials have been approached.”

 

The civilian Inspector General’s Office (Procuraduria) conducts disciplinary

investigations and can impose administrative sanctions, including suspension

or dismissal, on military personnel. Although seldom used, the Inspector

General also has the authority to order the provisional suspension of

personnel during the investigation of offenses involving gross misconduct.

Under Colombia’s Military. Criminal Justice Code, the Inspector General’s

Office is required to exercise oversight of the military legal system.

Colombian military investigators immediately notify the Inspector General’s

Office of the opening of any criminal investigation by military legal

authorities of military personnel and provide the Inspector General with

regular updates throughout the investigation.

 

In the first eight months of 2002, 47 members of the Armed Forces were

charged by the Inspector General for human rights offenses. Of these

individuals, 12 were soldiers, 3 were corporals, 11 were sergeants., 9 were

lieutenants, 3 were majors, 2 were lieutenant colonels, and 7 were of

unknown rank.

 

In addition, the Inspector General announced in August 2002 that five

members of the Colombian Navy, including General Rodrigo Quiñones, had been

charged with the offense of omission for their failure to prevent the

January 2001 paramilitary massacre of 27 civilians in Chengue, Sucre

Department. The civilian criminal investigation of this case in the

Prosecutor General’s Office also continues.

 

In June 2002, the Inspector General’s Office ordered the dismissal of 29

military members for human rights offenses for their involvement in the

military’s staging of a mock combat in order to cover up the deaths of two

civilians suspected of being guerrillas in Antioquía Department. The Armed

Forces have cooperated in implementing the dismissals ordered by the

Inspector General.

 

During the administration of former President Pastrana there was a steady

improvement in Colombian Armed Forces’ cooperation with civilian authorities

in the investigation, prosecution, and punishment in civilian courts of

military personnel credibly alleged to have committed gross violations of

human rights or to have aided and abetted paramilitary groups. The Uribe

Administration has expressed its commitment to increasing this cooperation.

 

The Pastrana administration, Colombian judicial authorities and the military

created the necessary framework to ensure civilian prosecution of human

rights crimes committed by state agents, including military officials and

personnel. On July 6, 2000, then-President Pastrana signed a law codifying

forced disappearance, genocide, and forced displacement as crimes. The

reformed Military Penal Code, which took effect on August 12, 2000,

reiterates that acts unrelated to military service (including torture,

genocide and forced disappearance) are crimes that may be tried only in

civilian courts. On August 17, 2000, President Pastrana issued a directive

to the Armed Forces Commander, the Director of the National Police, and

their subordinates requiring them to abide by a 1997 Colombian

Constitutional Court ruling (C-358) that crimes by staté agents unrelated to

“acts of service” must be tried in civilian courts. The Presidential

directive ordered the military judiciary to relinquish to the civilian

judiciary the investigation, prosecution, and trial of military personnel

alleged to have committed “grave” human rights violations (“crimenes de lesa

humanidad”) .or other crimes not directly related to “acts of service.”

 

The military courts have been complying with the new legal framework. The

Superior Military Tribunal reports that between the August 1997

Constitutional Court ruling and December 2001 the military courts

voluntarily turned 622 cases involving military personnel over to the

civilian judiciary for investigation and possible prosecution. The 622 cases

break down as follows: 429 Army, 156 Navy, and 37 Air Force. A review by the

U.S. Embassy in Bogotá of case summaries in August 2002 revealed that 165 of

these cases were crimes related to “grave” violations of human rights and

for aiding or abetting paramilitaries and were transferred to civilian

courts.

 

The Supreme Council of the Judiciary (CSJ) resolves jurisdictional disputes

between military and civilian prosecutors. Such jurisdictional conflicts

occur when both the military and civilian legal systems assert jurisdiction

(“positive” conflicts), or when the legal system to which the case has been

assigned asserts that it is not competent to hear the case (“negative”

conflicts). Military personnel charged with a crime by civilian authorities

may also challenge the jurisdiction of the civilian court. The Ministry of

Defense and civilian judicial officials agree that military courts respect

the decisions of the CSJ.

 

Since January 2002, the CSJ has ruled on 26 jurisdictional disputes. Of

these, 12 were “positive” conflicts and 14 were “negative” conflicts. Of the

12 “positive” conflicts, six involved the military and five of those were

cases of “grave” violations of human rights or aiding and abetting

paramilitaries. Of these five, two cases were transferred to the civilian

judiciary, one was transferred to the military judiciary, and the CSJ

refused to rule on two. Of the 14 “negative” conflicts seven involved the

military, of which five cases were assigned to the civilian justice system

and two to the military system. Two of the cases assigned to the civilian

judicial system involved charges of aiding or abetting paramilitaries.

 

Section 567(a) (1) (C) requires a determination that:

 

The Colombian Armed Forces are taking effective measures to sever links

(including by denying access to military intelligence, vehicles, and other

equipment or supplies, and ceasing other forms of active or tacit

cooperation), at the command, battalion, and brigade levels, with

paramilitary groups, and to execute outstanding orders for capture for

members of such groups.

 

The Colombian Armed Forces are taking effective action to sever links

between military personnel and paramilitary units at the command, battalion

and brigade levels. Newly elected President Alvaro Uribe and Defense

Minister, Marta Lucia Ramirez have stated repeatedly that they will not

tolerate collaboration between military personnel and paramilitary groups.

 

The Colombian military leadership has also issued guidance to the Colombian

military to address the problem of former service members who join the AUC

while maintaining their connections with active duty soldiers. The Colombian

military is seeking to identify former career soldiers with ties to illegal

armed groups and their active duty contacts, and has expressly restricted

the access of such individuals to military facilities. The Armed Forces have

also increased base security and force protection measures to deter

unauthorized contacts between active duty personnel and criminal elements

such as paramilitaries.

 

The Colombian Armed Forces are active and essential participants in the

Government of Colombia’s Coordination Center for the Fight Against Illegal

Self Defense Groups, a high-level, inter-agency body that meets regularly to

coordinate the strategy against. paramilitaries. The Uribe Administration is

also exploring additional ways to combat these illegal armed groups.

 

This is in addition to the substantial efforts of the outgoing- Pastrana

Administration. Arrests, combat operations and intelligence activities by

the Colombian Armed Forces against paramilitaries rose sharply in the first

eight months of 2002. According to Colombian authorities, the Armed Forces

captured 416 paramilitaries in the first eight months of 2002 (compared to

590 in all of 2001) and killed in combat 160 paramilitaries (compared to 96

in all of 2001). Since January 2002, the Colombian military has seized 431

weapons, 289 grenades, 143 radios, 190 vehicles, ten boats, and one

airplane. In addition, the military has destroyed numerous drug labs,

operated or controlled by the AUC, several AUC camps, and an AUC instruction

center.

 

The Colombian Armed Forces’ progress in combating the paramilitaries can be

seen in the following operations:

 

On May 8, 2002, the Fifth Brigade launched an operation near Convencion,

Norte de Santander Department that resulted in the destruction of an AUC

camp that could house 30 paramilitaries and the confiscation of equipment,

ammunition, and AUC uniforms.

On May 14, 2002, the Air Force protected Army troops engaged in battle with

the FARC and AUC in Campamento, Antioquia Department. The air assault killed

15 AUC and 11 FARC members.

>From May 14-16, 2002 the Colombian Air Force intensively bombed 3 AUC camps

near Serrania de San Lucas, Bolivar Department, killing, according to the

Colombian Armed Forces, approximately 100 AUC members,

On May 23, 2002 troops of the Second Army Brigade captured 12 paramilitaries

and killed two during combat in Becerril, Cesar Department. In the

operation, 9 rifles, 4 pistols, grenades and 8 radios were seized.

On June 3, 2002 troops of the Second Brigade captured 8 paramilitaries in

Sabana Grande, Atlantico Department. The operation netted 4 rifles, 5

pistols, ammunition, communication equipment and 2 gas cylinders.

On June 13, 2002 units of the Fourth Brigade and Air Force helicopters

attacked paramilitary units in an operation in Sonson, Antioquia Department,

killing 18 paramilitaries and capturing another 11. Also seized were 28

rifles, a 60mm mortar, ammunition and communications equipment.

On June 19, 2002 troops of the Fifth Brigade captured 3 paramilitaries in

Chima, Santander Department. In the operation 20 rifles, grenades,

ammunition, and communication equipment were seized.

On June 19, 2002, troops of the Fifth Division captured two AUC members in

El Llano, Santander Department, and seized 11 rifles, grenades, other

armaments, and ammunition, uniforms, armbands and bulletproof vests.

On June 23, 2002, the Second Division’s Third Mobile Brigade killed two AUC

members and captured six during an operation in which 9 rifles, ammunition,

and bulletproof vests were seized.

On July 31, 2002, the Colombian Navy’s Marine Infantry Unit engaged the AUC’

s “Liberators of the South” Bloc in Puerto Saija, near the border of Cauca

and Narino Departments. During the firefight, one AUC member was killed and

five were captured. The Navy seized five boats and seven motors that the AUC

had intended to use to transport drugs. They also confiscated 18 AK-47

rifles, two M-l6 rifles, other armaments, ammunition, grenades, and radios.

On August 9, 2002 the Colombian Army’s Second Division carried out a major

operation against paramilitary forces near the town of Segovia, in eastern

Antioquia Department, when an AUC truck ran a Colombian Army roadblock.

Twenty paramilitaries were killed and another 17 wounded and captured. The

operation netted 28 rifles, 25 grenades, 5,000 rounds of ammunition, and the

truck. Three Colombian military personnel were wounded during this

operation.

On May 30, 2002, Colombian Army Major Orlando Alberto Martinez Ramirez was

dismissed for his alleged role in trafficking 7,640 rifles from Bulgaria to

the AUC in 1999 while he was Commander of an Army artillery company in

Bogotá. At the time of his dismissal Martinez was assigned to the Army’s

elite Rapid Reaction Force (FUDRA). This is the first time an active duty

Army officer has been caught — and dismissed — for trafficking arms to the

AUC. The Prosecutor General’s Office is continuing to build its criminal

case against Martinez, and based on available evidence, is also

investigating the involvement of several others.

 

Colombian authorities have also increased operations against the AUC’s

gasoline cartel, which is believed to be responsible for 80 percent of the

gasoline and diesel fuel stolen from state oil concern Ecopetrol’s pipeline.

Strikes against the gasoline cartel included:

 

On January 6, 2002, troops from the Second Division’s’ “Ricaurte Battalion”

launched “Operation Magara” against the AUC’s financial structure in Magara.

The Army captured four AUC members, including “Bedoya”, the leader of the

AUC front in the area. In addition, they seized weapons and 80,000 gallons

of gasoline found in subterranean tanks.

On June 14, 2002, the Second Division took down-a gasoline theft operation

in Barrancabermeja, Santander Department, in which it captured seven AUC

members and confiscated five vehicles.

The Armed Forces have also provided support to civilian prosecutors and

judicial authorities investigating and prosecuting alleged paramilitaries.

The Colombian National Police are responsible for executing arrest ‘warrants

in urban areas, but the Armed Forces frequently execute arrests in rural

areas or areas where there is no police presence. The Prosecutor General’s

Office Human Rights Unit reports that the Armed Forces were able to execute,

by taking the specified individuals into custody, 20 arrest warrants issued

by the Unit for alleged paramilitaries between February 15, 2002 and August

30, 2002. The remaining arrest warrants will be executed when the specified

individuals are found.

 

As an example of this support, on August 2, 2002, with logistical and

transportation support provided by the Colombian Air Force and security

provided by the Army, prosecutors of the Sixth and Seventh unit of the

Prosecutor General’s Office in Villavicencio entered Vista Hermosa, formerly

part of the demilitarized zone, and captured four individuals as well as

weapons, ammunition, communications equipment, and armbands belonging to the

AUC. These individuals were arrested (two for narcotics trafficking and two

for paramilitarism) and are currently being detained by the Prosecutor

General’s Office.

 

The Prosecutor General’s Office also reported good cooperation by the

military in the highly conflictive area of the Department of Arauca when a

commission of 27 prosecutors and investigators traveled to Saravena, Tame,

Araqueta and Cravo Norte. The Army provided the necessary security and

transportation throughout the commission’s six-week-long investigations. In

Cravo Norte, when the commission investigated a gravesite of AUC massacre

victims, the Armed Force’s secured the area, assisted with the verification

of information and the location of the site and facilitated the return of

the commission to the city of Arauca. The investigations resulted in

progress in approximately 100 human rights cases and led to the capture of

six paramilitaries and the arrest and dismissal of five policemen.

 

Additionally during an investigation in early February 2002 of the 2001

Guamalito massacre the Prosecutor General’s Office reported that the army

provided transportation and security for the investigators who needed to

travel to the massacre site.

 

 

 

--------------------------------

Adam Isacson

Senior Associate, Demilitarization Program

Center for International Policy

1755 Massachusetts Ave NW, Suite 312

Washington DC 20036

+202-232-3317 fax 232-3440

isacson@ciponline.org

http://www.ciponline.org/demilita.htm