Limited Ruling Paves Way for International Criminal Court

Limited Ruling Paves Way for International Criminal Court

By Susana Pimiento

Aftermath of a Massacre

On June 5, the Antioquia State Court overturned the acquittal for four of ten Army officers in the case of the 2005 San José de Apartadó massacre and sentenced them to 34 years in prison. Though this ruling could be interpreted as a positive step in the struggle for justice, its limited scope has reaffirmed what the Peace Community has argued for years: that the Colombian judicial system is not willing to hold higher ranking officials accountable for their role in the massacre, but instead limits verdicts to lower ranking officers who were in the field when the massacre took place. In response, the Peace Community has officially requested that the United Nations International Criminal Court take the case.

Operation Phoenix

In February 2005, General Mario Montoya, then head of the Army’s First Division, along with the acting head of the 17th Brigade, designed a counterinsurgency operation, codenamed Phoenix, that included the hiring of two paramilitaries to act as guides. The military operation was prompted by an attack by theFARC, a few weeks earlier, that resulted in the deaths of more than twenty soldiers. On February 18, four platoons of 17th Brigade, with 30 to 40 members each, “armed with rifles, mortars, different types of grenades, machine-guns, munitions, radios, rocket launchers,” left from the town of Nueva Antioquia and met a contingent of approximately 50 men, also heavily armed, belonging to the paramilitary Heroes of Tolova Bloc. Army and paramilitary troops camped together and, the next day, continued their patrol.

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On February 20, the army platoons split into two groups, and one of them continued patrolling with the Heroes of Tolova men. The following morning, this last group entered Mulatos settlement in the San José Peace Community, and killed Luis Eduardo Guerra, his partner Beyanira Areiza and his 11-year-old son, Deyner Andrés. They continued on to La Resbalosa settlement where, around one pm, they launched a grenade into the home of the Bolivar family. The grenade resulted in the immediate death of the mother, Sandra Milena Muñoz. The children Natalia and Santiago, 6 and 1 year and half, respectively, had survived the explosion, but were brutally slaughtered and dismembered with machetes along with their dad, Alfonso Bolivar, and Alejandro Perez.

Lower Court Ruling

On August 4, 2010, a lower court acquitted ten officers, because, even though it had been proved that the army had patrolled with paramilitaries for several days when the massacre took place, the court inexplicably exempt the army of any responsibility for the crimes or for not doing anything to prevent them. In the court’s view, patrolling with the dead squads did not amount to “conspiracy to commit crimes, much less to kill defenseless civilians”. For the court Capt Gordillo was the only army member who had conspired with the paramilitary, he had pleaded guilty and was sentenced to 20 years in jail. Nor the court found that, by patrolling with the paramilitaries, the army failed in its obligation to protect civilians, because, according to the court, when the massacre occurred, the soldiers were outnumbered by the paramilitaries and “nothing guaranteed that, with their weapons, they could have contributed to avoid the outcome and that, under those circumstances, they were not expected to risk their own lives” (!!!)

The appellate court looked into the issue of what does it mean for the army to go into a military operation death squad, noting that the “association between members of paramilitary groups and army in itself is punishable.” The court stated that, “the army knew the paramilitaries were not going to a religious ceremony, a piñata or any academic or cultural activities, because their actions have been criminal.

The defense argued that the Army had not failed in its duty to protect civilians because soldiers couldn’t have expected to overcome the fear brought by paramilitaries, but the court rejected that argument. “What was our National Army reduced to?” the court asked. “If, with their war weapons and so many men, they felt heightened fear, what could peasants in the region have felt, when they saw that illegal group going by and patrolling?”

Prosecutors and the defense were able to prove that throughout Operation Phoenix, the Army consistently sent inaccurate coordinates to their brigade headquarters. However, the court used the falsification of coordinates as an indication that superiors had been deceived, and concluded that, even though it was proven that Captain Armando Gordillo spoke regularly with his superiors during the four-day operation, they were not aware of what was happening on the ground. The tribunal refused to acknowledge that falsifying coordinates was deliberate and part of the military operation, and that the 17th Brigade always knew where exactly the troops were: in fact, the troops received provisions during the operation.

It was also established that security keys for the military’s radios could only be adjusted in the brigade headquarters or Army command post, with the effect of allowing communication between soldiers and paramilitaries. For this reason, communication between Army and illegal units was no accident, but foreseen in the order given by General Montoya to use “guides,” who were in fact members of paramilitary structures.

Higher Ranking Officers Off the Hook

The court in effect found guilty only four lower ranking officers who commanded the platoons that took part in the operation: a lieutenant, Alejandro Jaramillo Giraldo, and three sergeants, Jorge Milanés Vega, Edgar García Estupiñán and Darío Brango Agámez.

There is a separate probe for higher-ranking officers that participated in planning the operation or were in charge of it in brigade headquarters and subsequently participated in the massacre cover-up. Among those investigated are Generals Mario Montoya, head of the Army’s First Division at the time of the massacre; General Humberto Fandiño, head of the 17the Brigade; and Colonel Nestor Iván Duque, commander of the operation.

Seven years have passed since the massacre and, despite continuous calls for justice from the international community, the Colombian attorney’s general office refused to advance the investigation for those defendants. The appellate court ruling seems to indicate that there is no point in making the effort. The Colombian justice system has decided that responsibility for this horrible massacre stops at Captain Gordillo. The only hope for the justice lies with the International Criminal Court (ICC), but it is a very long shot. So far, the ICC has dealt with crimes exclusively from Africa. Hopefully, ICC’s new chief prosecutor, Fatou Bensouda, from Gambia will change that trend.

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