26 years ago they classified the torture and murder of three indigenous people as an action “in the line of duty”

El Tiempo, October 15, 2019

(Translated by Eunice Gibson, CSN Volunteer Translator)

In July of 1993, the Supreme Military Tribunal dropped all of the criminal proceedings that the military legal system had advanced against Lieutenants Luis Fernando Duque Izquierdo and Pedro Antonio Fernández Ocampo for the killing of three Arhuaco indigenous men in Curumani (Cesar Province).

The indigenous men, identified as Ángel María Torres, Antonio Hugus Chaparro, and Luís Napoleón Torres, were seized on November 28, 1990 at a bus stop.

Then they were kidnapped and tortured, according to prosecutors. Days later, on December 2 of that year, their bodies were found.

The Military Tribunal decided to close the investigation, affirming a trial court decision at the Second Brigade in Barranquilla, because it found the prosecution “without merit”.

Colombia’s Supreme Court of Justice received a request by the Attorney General’s Office for review of the decision made by the military justice system, and requested an order holding that the military justice system lacked jurisdiction to evaluate the facts because, in the opinion of the civilian prosecutors, the murders of the three indigenous men were not errors made in the line of duty. Based on that argument, the Attorney General asked the Court to order the case sent to the regular criminal justice system for investigation of the actions by the members of the military.

Referring to the request, a representative of the Inspector General’s Office also requested the Court to re-open the case, arguing that it was “a case typical of extrajudicial execution, given the possible connection between the victims and a subversive organization”.  In addition, stated the representative, the military judges were not acting impartially in that, according to the investigation, the acts could not be catalogued as being “in the line of duty” because they affected principles of International Human Rights Law.

After evaluating the case, the Criminal Branch of the Supreme Court of Justice scolded the Criminal Branch of the Military Court for having considered that it had jurisdiction to retain responsibility for the investigation. The Court stated that the murders constituted crimes against humanity that could not be regarded as “in the line of duty.”

“Contrary to the way those court officials interpreted the law (those in the military justice system), criminal actions of such extreme seriousness do not show ultra vires acts within the framework of what is properly military, intended, for example, to preserve the integrity of the national territory. Rather, they show a deliberate violation of ordinary criminal law, having nothing to do with any institutional obligation”, stated the Court.

For the Court, it was clear that the Army’s functions and jurisdiction do not include those of “seizing citizens of Colombia without legal authority, torturing them and murdering them”. Those acts cannot for any reason, repeats the Court, be considered a duty of the Armed Forces, or to be in defense of the country’s sovereignty, or of its independence or of the integrity of the national territory.

The Court said that its jurisprudence had always borne in mind that there has to be a strict relationship between the act committed and an action in the line of duty, meaning a relation to the tasks and actions that permit the Armed Forces to carry out its function of maintaining public security and defense.

In those words, the high Court made clear that for an act committed by a member of the military to be judged by the Criminal Branch of the Military Justice System, it’s not enough just to prove that the defendant responsible was a member of the Armed Forces. There must be certainty that the alleged crime had a direct relation with an act in the line of duty. “The existence of a relation with the line of duty cannot be shown to be valid when the military or police function is used to violate the law by behavior that, when considered objectively, is outside the actor’s line of duty,” states the Court.

Furthermore, said the Court, in case there exists any doubt as to which jurisdiction is competent to evaluate the act, that doubt must always lead to turning the case over to the ordinary justice system. That means that to be able to claim that an act must be judged by military judges, the connection with the service must be “clear, immediate, and direct.”

Those have been the criteria that the Inter-American Court for Human Rights considered, for example, when it tried Colombia for the massacre at Mapiripán, the one at Pueblo Bello, and the one at La Rochela.

Because of that, in these three cases of the murder of the three indigenous men, their kidnapping, torture and disappearance, the Court found that it is up to the ordinary criminal justice system to carry out the respective investigations, and therefore remanded the case to the Attorney General’s Office. Having pursued these cases in the Military Justice System, said the Court, was damaging to the victims, and their rights to truth, justice, and reparations were prejudiced.

The representatives of the murdered indigenous men testified in the legal proceeding that the victims were political and government leaders, like spiritual authorities (Mamos) in the indigenous village, and that they had undertaken a process of recovering their ancestral territory in the Sierra Nevada.

According to their attorney, on November 29, 1990, the three indigenous men were travelling from Valledupar to Bogotá to press for measures in the National Constituent Assembly and with the government, measures related to the community they represented. But that day, at 4:00 in the afternoon, the bus they were travelling in made a stop in Curumani (Cesar Province) and they were seized by armed men who took them in a pick-up truck to an unknown destination.

Their bodies were buried as “unidentified”. One of the victims was found in the rural part of El Paso (Cesar Province), another on the road that leads from Bosconia to that municipality, and the third body was buried in Ariguani (Magdalena Province). The three bodies had bullet wounds and signs of torture.

This situation was in addition to the fact that on November 28, according to the attorney, soldiers from the La Popa Battalion seized two other indigenous men and tortured and interrogated them at Jorge Eduardo Mattos’s place. Mattos was a cattleman in Cesar Province who had once been kidnapped by the FARC. These two indigenous men were set free on December 4.

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