By Alejandra Bonita Mora/@AlejaBonilla
(Translated by Eunice Gibson, CSN Volunteer Translator)
El Espectador (Colombia), July 8, 2018
Original article: https://colombia2020.elespectador.com/jep/masacre-de-san-jose-de-apartado-entre-jep-y-justicia-ordinaria
The massacre took place on February 21, 2005.
Colombia’s Supreme Court of Justice has sent to the Special Jurisdiction for Peace (JEP) the case that was filed against the three Colombian Army soldiers who took part in the massacre at the Peace Community of San José de Apartadó. Eight adults and three children were killed in the massacre.
One piece of unfinished business pending in the Colombian legal system is establishing the truth about the massacre of three children and five adults from the Peace Community of San José de Apartadó on February 21, 2005. The murders, which included dismemberment, were carried out by paramilitaries belonging to the Heroes of Tolová Bloc of the Self-Defense Forces, in collaboration with Colombian Army troops led by Captain Guillermo Gordillo, at present serving a 20-year prison sentence. The case, which has been in litigation for 13 years, now is arriving at the Special Jurisdiction for Peace (JEP) because the Supreme Court of Justice decided that it ought to evaluate the situation of three of the soldiers being investigated.
After Captain Guillermo Gordillo, who confessed that the soldiers patrolled together with the paramilitaries as part of an operation against the FARC known as “Fénix”, was found guilty in 2012, his subordinates in the Bolívar Company, 2nd Lieutenants Alejandro Jaramillo Giraldo, Jorge Humbert Milanéz Vega, Édgar García Estupiñan, and Staff sergeant Darío José Brango Agamez were also found guilty. Nevertheless, their superior officers, Colonel Orlando Epinosa Beltrán and Major José Fernando Castaño López, were found not guilty.
Also in 2012, the file reached the Supreme Court, accompanied by the soldiers’ defense motions attempting to avoid long sentences and motions by the prosecutors and by lawyers for the victims. Those motions [by the prosecutors and victims’ lawyers] sought that the soldiers’ responsibility be affirmed and that the officers also be found guilty. It was up to the Supreme Court to look for possible mistakes in the decisions of the lower courts and to determine whether the Bolívar Company really undertook its military campaign on February 19, 2005 hand in hand with the two paramilitary guides, alias Ratón (Mouse) and alias Jonás.
According to the judicial investigation, the Army troops were located at a place known as Cerro Castañeda or Cerro Aldana and they were joined there by some 50 members of the AUC [United Self-Defense Forces of Colombia]. They were armed with rifles, grenades, and other weapons. Captain Guillermo Gordillo, who maintains that he received these instructions from his superiors, ordered his men to continue patrolling behind this apparently illegal group. In fact, the Bolívar squads, led by 2d Lieutenant Alejandro Jaramillo, and the Anzoátegui 1 group, led by 2d Lieutenant Jorge Humberto Milanés, had failed to report any deaths when they arrived at the location of the events.
The Special Jurisdiction for Peace is called for by the Havana Agreement between the government and the FARC. Before it began to function, 2d Lieutenant Édgar García and Staff Sergeant Darío Brango Agamez had stated their intention to benefit from this jurisdiction and thus obtain the temporary release permitted by the Amnesty Statute. The Supreme Court allowed them that legal option in September and November of 2017. At the same time, 2d Lieutenant Jorge Milanés, in November of 2017, requested that the warrant for his arrest be suspended. He also expressed a desire to benefit from the Special Jurisdiction for Peace.
This specific case reached the office of Supreme Court Justice Eugenio Fernández, who ruled in an order, [which] El Espectador has obtained, that the criminal event known as the massacre of San José de Apartadó is necessarily connected to the internal armed conflict: [f]irst, because the Army began by undertaking an action against the FARC and the AUC themselves; [a]nd, second, [because] the soldiers who were found guilty admitted that, instead of fighting them, they patrolled with the paramilitaries, an act that implies the failure to do their duty.
“More than that, while the members of the AUC, in carrying out that illegal patrol together with the soldiers, committed eight homicides, killing people protected by the rules of International Humanitarian Law (DIH, in Spanish), the decision of the first appellate court also concluded that the defendants were responsible for those illicit activities, for their failure to provide protection, since they had the power to avoid that result. If they had resisted and repelled the members of the illegal armed group, those murders would never have been carried out”, the high court stated.
For that reason and keeping in mind the different treatment that was created for agents of the government in the Peace Agreement and in the legislative act that created the JEP, the Supreme Court of Justice decided to send the cases against Édgar García Estupiñán, Darío José Brango Agamez, and Jorge Humberto Milanés Vegato to the [JEP’s] Panel for Determination of Legal Status, stressing that [the Supreme Court had] lost its competence to continue studying them. In the case of Jaramillo, who requested the suspension of the warrant for his arrest, it will also be the JEP that determines whether his case fits the requirements for its consideration.
The same will not happen with the case of 2nd Lieutenant Jaramillo Giraldo, who has not made any request to have his case heard by the JEP, and neither have Orlando Espinosa Beltrán, José Fernando Castaño López, Henry Agudelo Cuasmayán Ortega, Ricardo Bastidas Candia, Ángel María Padilla Petro, and Sabaraín Cruz Reina, who were found not guilty at the trial and first appellate levels. Because of that, the [Supreme] Court will continue to study their cases. When El Espectador asked the lawyer representing the victims, Germán Romero, for comment, he pointed out how problematic it is that there is no certainty as to what is going to happen, “and since the JEP has not undertaken any procedures, I have no place to file motions. Neither here nor there do they give the victims any answers,” he said.
The Peace Community of San José de Apartadó was declared as such by the residents of 17 towns (veredas) in 1997 as a form of rebellion against the war. At present, its members enjoy protective measures ordered by the Inter-American Commission for Human Rights and provisional protective measures ordered by the Inter-American Court in 2000. It should be noted that, just days after the massacre, then-president Álvaro Uribe Vélez claimed, after a security meeting, that some of the members of the Peace Community were aides of the guerrillas. That resulted in the Constitutional Court ordering a retraction act in 2012.
The file details that, in order to carry out the massacre in February 2005 in San José de Apartadó, in areas between Antioquia and Córdoba, the paramilitaries, using machetes, killed Luis Eduardo Guerra, his partner Beyanira Areiza, 17 years old, and his son, Deyner Andrés Guerra Tuberquia, 11 years old. The paramilitary incursion continued up to the town (vereda) of La Resbalosa, where Alejandro Pérez Castaño and Sandra Milena Muñoz Pozo were killed. Later they killed and dismembered Alfonso Bolívar Tuberquia Graciano and his two small children, Natalia, five years old, and Santiago, two years old.