Open letter by Special Procedures mandate-holders of the Human Rights Council to the Government and representatives of the Congress of the Republic of Colombia
22 October 2012
In our capacities as Special Procedures mandate-holders of the Human Rights Council, we would like to express our concern at the possible adoption by the Congress of the Republic of a project to reform articles 116, 152 and 221 of the Political Constitution of Colombia, with regard to military criminal law. Should this reform be approved, it could seriously undermine the administration of justice in cases of alleged violations of human rights and international humanitarian law, including serious crimes, by military or police forces (Fuerza Pública). We believe that such a reform would represent a historic setback to the progress achieved by the State of Colombia in the fight against impunity and respect and guarantee of human rights.
We have noted with serious concern that the constitutional reform project would expand the jurisdiction of military or police tribunals, giving them the power to investigate, process and decide on cases of human rights violations which should be under the authority of the ordinary criminal justice system. For instance, although the current project stipulates that criminal military justice institutions will not have jurisdiction over crimes of genocide, crimes against humanity and the crime of enforced disappearances, this detailed and specific listing of crimes - which would fall outside the ambit of the military justice system - allows other international human rights and humanitarian law crimes to fall under the exclusive jurisdiction of military justice.
Military and police courts would be competent to investigate, process and judge a long list of other violations of international human rights and humanitarian law, including war crimes; arbitrary detention; cruel, inhuman or degrading treatment; and other violations such as violence against the person and mutilation; taking of hostages; outrages upon personal dignity, including humiliating treatment; and the obligation to treat persons taking no active part in the hostilities humanely in all circumstances, without any distinction on grounds of ethnicity, religion or faith, sex, birth or wealth, or any other similar criteria, prohibited by virtue of common article 3 of the 1949 Geneva Conventions. These courts could also have jurisdiction over crimes committed by private security forces.
We are very concerned that this proposed constitutional reform intends to allow institutions of military or police criminal justice to be the first to determine whether an element of any of these crimes exists, to the detriment of an independent evaluation and the principle of natural judges established under international law. We are particularly concerned at the possible impact of this, given that the preliminary investigation phase is essential for the clarification of facts and responsibilities, including specific criteria that could indicate precisely whether the facts suggest the perpetration of crimes against humanity or genocide.
In this context, we are also very concerned that the Congress has recently adopted a revised text of the reform project in order to expand the jurisdictional framework of these courts further by not listing the crimes of sexual violence, torture, extrajudicial execution and recruitment or use of children in the text.
If implemented, the constitutional reform project would effectively undermine the independent functioning of the judiciary by allowing the military justice to investigate, process and judge these crimes, thus removing the character of exceptionality and restrictive competence that military tribunals should have. Any broader competence should be expressly and exclusively attributed to the ordinary tribunals.
We are surprised that the text of the reform provides for the establishment of a Penal Guarantees Court, as a control court to deal with any accusation against a member of the Fuerza Pública. This provision would result in preferential treatment in their favour, including for acts that may not be directly related to the military or police functions, and make allegations harder to prove. We have also noted with concern that the Penal Guarantees Court would also, inter alia, examine cases involving military or police personnel exclusively. This would imply the creation of a parallel system of administration of justice and would violate the principle of equality in relation to access to justice for all individuals and impair due process of law, thus undermining the rule of law. This situation risks generating a climate of impunity.
We believe that there is a real risk that Colombia’s obligations under international humanitarian and human rights law could be infringed if this reform is adopted and would imply a significant retrogression in the efforts carried out by the Colombian State to overcome and prevent repetition of the notorious human rights violations committed in the past, particularly between 2003 and 2008 by members of the Fuerza Pública. Precisely as a result of these efforts, since 2009 Colombia has achieved a notable reduction in the reported occurrence of these types of violations, which raises the question of whether such a constitutional reform is needed.
Moreover, this reform would send the wrong signal to members of the Fuerza Pública of the consequences of committing human rights and international humanitarian law violations. We are particularly concerned with the treatment of complaints of human rights violations committed against the civilian population, including human rights defenders and members of civil society, journalists and persons who find themselves in situations of vulnerability and risk.
In light of the negative implications that the approval of the constitutional reform would have on the justice system, the rule of law and the enjoyment of human rights in Colombia, we would urgently like to call on the Government of Colombia and the Congress to seriously reconsider this constitutional reform project. We offer our advisory services to develop the necessary measures to ensure a constitutional and legislative framework that strengthens the fight against impunity and the achievement of peace in Colombia.
Christof Heyns, Special Rapporteur on extrajudicial, summary or arbitrary executions
El Hadji Malick Sow, President-Rapporteur of the Working Group on Arbitrary Detention
Faiza Patel, President of the Working Group on the use of mercenaries as a means to violate human rights and obstruct the enjoyment of the rights of peoples to self-determination
Frank La Rue, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
Gabriela Knaul, Special Rapporteur on the independence of judges and lawyers
Juan E. Méndez, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
Kamala Chandrakirana, President of the Working Group on the issue of discrimination against women in law and in practice
Maina Kiai, Special Rapporteur on the rights to freedom of peaceful assembly and of association
Margaret Sekaggya, Special Rapporteur on the situation of human rights defenders
Olivier de Frouville, President of the Working Group on Enforced or Involuntary Disappearances
Rashida Manjoo, Special Rapporteur on violence against women, its causes and consequences