As I wrote in an article on Alternet earlier this year, the 2005 massacre case is emblematic not just as an example of the brutality suffered by civilians at the hands of the Colombian military and paramilitaries, but also of the Colombian state's efforts to maintain impunity in such cases. While the Peace Community has always insisted that the army and paramilitaries committed the crime, initially the Colombian government tried to lay blame on the victimized community itself. In fact, shortly after the massacre Colombian President Álvaro Uribe himself publicly accused the community of guerrilla collaboration, backing up army officials who claimed the FARC had committed the massacre to punish the community for collaboration gone awry. It has since been proven that army officials paid false witnesses to testify that the FARC committed the massacre.
Despite such revelations of witness buying, this ruling allows the government to again claim innocence and place blame solely on the paramilitaries. Sadly, the ruling, though extremely frustrating, is not terribly surprising, in spite of the strong evidence against the soldiers. Colombia is, after all, a country with a sky-high impunity rate (the ruling against retired Colonel Plazas Vega I wrote about recently was the first of its kind), the trial took place in a city notorious for military/paramilitary control over government institutions, and the ruling was handed down by a judge who likely received all kinds of pressure to let the soldiers off the hook.
For better or worse, a careful reading of the ruling reveals some faulty logic on the part of the judge that leaves plenty of room open for an appeal. The legal team representing the families of the victims of the massacre did an analysis of the ruling (including the very-at-risk human rights lawyer Jorge Molano, who I wrote about last year), and I’ve taken some points from that as well as added a bit of my own analysis:
Members of an army can’t be held responsible for human rights abuses committed by their units?
In early 2008, several former paramilitaries began admitting their role in the massacre and describing the participation. After being implicated by these testimonies, Captain Guillermo Gordillo, who commanded one of the army companies involved in the military operation during which the massacre took place, pled guilty in exchange for a lesser charge. It was as a result of the paramiliaries’ and Gordillo’s testimony that the ten soldiers were brought to trial. Somehow, though, that testimony was enough to condemn Gordillo to 20 years in prison but not to incriminate his subordinates.
Indeed, in response to the charges and prosecution’s efforts to link Gordillo’s subordinates’ culpability with his own, the judge deemed the soldiers innocent. In her ruling the judge argued that the theory of intellectual author through organized power structures, as was applied by the international community in the cases of the Nazis, Fujimori of Peru and the military dictatorship of Argentina, did not apply in this case. The judge wrote:
Although the theory is based upon irregularities committed by State agents, the court finds it difficult to apply it in this case...because although the National Army has a hierarchical structure that operates under the principal of chain of command, it is a legitimate structure, formally regulated by set rules of due obedience. Therefore it can’t be expected, in contrast to what occurs in irregular [illegal] groups, that the command structure would be arbitrary. On the contrary, [the National Army] is an organization that on principle obeys constitutional norms of protection of the peace, of just order and the execution of fundamental rights.
Apparently the judge didn’t dig enough in the history books, though, because the law of due obedience was ruled unconstitutional in Argentina, and in its ruling against Fujimor, Peru’s Supreme Court clearly stated that an express and/or written order does not have to exist for culpability to extend up and down the chain of command. And not to claim that the Colombian Army is equivalent to the Nazis in all ways, but that government was considered legitimate structure with formally regulated rules, too.
Collaboration between the military and paramilitaries not problematic?
During the trial, the prosecution (particularly Molano and his team) used testimony from former paramilitaries and Gordillo to demonstrate exactly how the army, and specifically the ten soldiers on trial, participated in the massacre. Part of that testimony involved lengthy descriptions of the planning that went into the joint paramilitary-military operation, the communication between the units of the two groups, the fact that the two groups camped together during the operation, etc. Despite all this evidence, the judge wrote in the ruling that sleeping and patrolling with paramilitaries doesn’t constitute a crime. It’s true that it doesn’t necessarily mean that the soldiers directly participated in the actual act of murdering the massacre victims, but certainly indicates that they participated in the joint operation that led to the massacre, which would constitutes conspiracy to commit a crime, one of the charges for which the soldiers were on trial. The larger-reaching implication is also quite worrisome, because it essentially constitutes a concession to the criminal association of military and paramilitaries.
Impunity Reigns in Colombia
The Peace Community was right: For years they have publicly expressed their lack of faith in the Colombian justice system, given the impunity of so many crimes against humanity. This ruling is a shining example of this impunity--not even the testimony of an Army caption and seven paramilitaries who participated in the massacre was enough to result in a guilty verdict. So the Community continues to be right: there is very little reason to trust in the Colombian justice system. To that end, though Molano and his team plan to appeal the case in Colombian courts, they also plan take the case to the International Criminal Court as part of a larger effort to have the Court investigate the Colombian justice system.