IACHR Expresses Concern over Constitutional Reform in Colombia
January 4, 2013
Washington, D.C. The Inter-American Commission on Human Rights (IACHR) expresses its deep concern over the serious setback in human rights that would represent the constitutional reform that modifies Articles 116, 152 and 221 of the Constitution of Colombia that significantly expands the scope of the military criminal jurisdiction.
According to information the Commission has received, on December 11, 2012, the full Senate of Colombia approved the reform in final debate; and on December 28, 2012, Legislative Act No. 2 on Military Jurisdiction was promulgated. The Inter-American Commission considers that various provisions that were approved are incompatible with the American Convention on Human Rights. Moreover, the reform contains ambiguous provisions that depend on subsequent implementing legislation; consequently, this creates legal uncertainty.
Further, the reform establishes that alleged crimes committed in the framework of a military operation would be tried under the military criminal jurisdiction, and international humanitarian law would apply. Although the reform excludes crimes against humanity, genocide, and a series of grave human rights violations from being judged in military courts (it refers to forced disappearance, extrajudicial execution, sexual violence, torture, and forced displacement), it establishes that other grave human rights violations would be heard before courts of military jurisdiction, for example war crimes and arbitrary detentions, among others.
In addition, the reform establishes that cases involving military service would be heard by military courts and that, exceptionally, in cases of doubt, a joint commission composed of representatives of the military and civil jurisdictions will intervene to determine which jurisdiction has competence. In this sense, the reform inverts the current rule, recognized repeatedly in the jurisprudence of the Inter-American System, that cases would normally be heard in the ordinary jurisdiction, and that the transfer to military jurisdiction would be the exception.
Therefore, under the new law, it would be the military criminal justice system that would carry out the first investigation activities following a presumed crime committed by a member of the public force. The initial steps of an investigation serve as the basis for taking certain central decisions and for developing any subsequent stages, and therefore have a very particular importance in the administration of justice.
In this regard, the standards of the inter-American human rights system have repeatedly and consistently established that the investigation of human rights violations must be carried out by the courts of ordinary jurisdiction, both in times of peace and in times of war. The Inter-American Court of Human Rights has stated: "In a democratic State of law, the military criminal jurisdiction shall have a restrictive and exceptional scope and be directed toward the protection of special juridical interests, related to the tasks characteristic of the military forces. Therefore, the Tribunal has previously stated that only active soldiers shall be prosecuted within the military jurisdiction for the commission of crimes or offenses that based on their own nature threaten the juridical rights of the military order itself."
As to the determination that international humanitarian law would apply exclusively in the prosecution, in military courts, of any conduct by members of the public force that could constitute a crime, the inter-American human rights system has maintained that in certain circumstances, both sets of norms will apply in a complementary manner. Consequently, the IACHR is concerned about the vision reflected in this constitutional reform, which suggests that international humanitarian law and international human rights law are mutually exclusive bodies of law.
On the basis of the inter-American standards that require States to judge human rights violations in courts of ordinary jurisdiction, various countries of the region have adopted reforms to significantly restrict the scope of military jurisdiction. Colombia had been one of those countries. Over the last 15 years, through changes in law, jurisprudence, and practice, Colombia had ensured that human rights violations committed by members of the security forces would be judged by courts of ordinary jurisdiction. Important reforms along the same lines have taken place in Argentina and more recently in Mexico.
The constitutional reform on military criminal jurisdiction would reverse that progress and would constitute a serious setback that jeopardizes the right to justice for victims of human rights violations.
The Commission must highlight the concerns expressed by its press release 144/12, issued at the conclusion of the on-site visit to Colombia, as well as those set forth by the U.N. High Commissioner on Human Rights, by the 11 U.N. human rights rapporteurs, and by the Office of the High Commissioner on Human Rights in Colombia.
As stated in Article 41 of the Convention, the IACHR has the main function of promoting respect for and defense of human rights, from which it derives the function of giving input to the States in order to ensure that the legislative or other acts related to human rights are in agreement with the applicable inter-American standards. The Commission expects the Colombian State take into consideration the relevant standards that have been established by the organs of the Inter-American System. The IACHR will establish its position in more detail on the implications of this constitutional reform in the country report that will be elaborated during 2013, as a result of the recent in loco visit from December 3 to 7, 2012.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.