By Diana Durán Núñez, El Espectador, January 26, 2020

(Translated by Eunice Gibson, CSN Volunteer Translator)

The special jurisdiction has just suspended the arrest warrants for three retired members of the military and has asked that three others be confined to barracks near their families. None of them has yet formalized a commitment to truth and reparation for the victims.

Three other retired Colombian Army soldiers do not yet have arrest warrants: Retired Major José Fernando Castaño López, Retired Sergeant Henry Cuasmayán Ortega, and Retired Corporal Ricardo Bastidas Candia. Last year on March 27, the Supreme Court ordered their arrest after they were sentenced to 34 years in prison for their responsibility in the cold-blooded murder of four adults, an adolescent, and three children—among them a 5-year-old girl and a two-year-old—in the towns (veredas) of Mulatos Alto and La Resbalosa in February 2005. It was a crime that is better known as the massacre at San José de Apartadó.

Even though their arrest warrants were in effect for nine months, no judicial police could find them during that time, until a Justice of the Definition of Legal Situations Branch of the Special Jurisdiction for Peace (JEP) suspended the warrants on the basis of the Peace Agreement signed by the FARC. That happened last December 30 in a decision that is still in the process of being served on the parties. In Resolution 8169 of 2019, the JEP joined all of the files in this case and ordered, as did the Court, that in this matter, jurisdiction belongs to it alone.

In the case of Castaño, Cuasmayán and Bastidas, the JEP made this determination without their having signed documents submitting to its jurisdiction. The document states that they have to do so immediately. Retired Lt. Colonel Orlando Espinosa –the highest-ranking officer prosecuted for the sickening collective murder of San José de Apartadó—and the Sergeants Sabaraín Cruz Reina and Ángel Padilla Petro are already in custody through the same file, but they have only been in prison for five years. Because of that, the JEP requested that they be relocated to military or police barracks near their families.

Those six, along with Retired 2d Lt. Alejandro Jaramillo Giraldo—also sentenced—are obligated to present a plan that is “preliminary, but concrete, clear, and programmed, by which they plan to comply with their commitments to make the full truth clear, which establishes guarantees that there will be no repetition of criminal activity, and that it will aid the construction of a stable and lasting peace.” The JEP ordered the benefits provided by the Peace Agreement for soldiers in their situation for all seven, before it has been made clear how they will support truth and reparation for the victims left by the massacre.

The resolution indicates that maintenance of the benefits depends on their declarations of commitment.  Thus, whether their arrest warrants are again suspended, or whether those who have been or will be transferred to units near their families get to remain there depends on their answers to the demands that the JEP made of all the soldiers implicated. The violent deaths of the four minors and the four adults in San José de Apartadó was declared a crime against humanity, because it was not based on any tactical or operational error: the crime was perpetrated by paramilitaries with the complicity of the military.

The legal system has already established that, and that detail is crucial to understanding that this was not just any massacre. The JEP declared it to be a crime against humanity in May of last year, in Resolution 2511. On February 17, 2005, troops from the 17th Brigade undertook Operation Fénix in order, allegedly, to combat the paramilitaries and the guerrillas in Urabá, with Retired Lt. Colonel Orlando Espinosa in command. Four squadrons were assigned. Some 150 soldiers were part of the plan. But, two days later, on a hill called Castañeda, they started to patrol behind 50 paramilitaries.

On February 21, the four adults and four minors were buried in a common grave that the prosecutors would find four days later—because the Army failed to report it. Instead it was the inhabitants of the area. Before the corpses were buried there, they all had been the objects of the most cruel savagery, even the children decapitated. In the file there are statements by ex-paramilitaries (such as Javier Galindo and Henry Palomino) saying that, even worse, the youngest children (two and five years old) were executed at the suggestion of one of the soldiers, “because they might cause problems later on.”

That’s the way they put together one of the most painful chapters in the Colombian conflict in the towns (veredas) of Mulatos Alto and La Resbalosa. “These are, I repeat, acts of the most extreme seriousness. The direct victims never took part in the armed confrontations. They were absolutely defenseless ( . . . ) This evident inequality of conditions between the attackers and the victims, the number of the murders and the cruel manner used to perpetrate them, together with patrolling jointly with members of the Army,” emphasizes the seriousness of the case, stated the JEP in May of 2019.

In its Resolution of last December, the JEP added that, “the soldiers had the ability to avoid the tragic results that took place. They were supplied with military equipment, along with specialized military training, and their number, according to the background material, was approximately 150 active fighters, in contrast to the around 50 members of the so-called Heroes of Tolová Bloc of the AUC ( . . . ) and the fact that four children were the targets of the war’s violence in these terrible deeds is a grave injury to human dignity.”

The question now is what commitment will the soldiers who have already been sentenced by the ordinary legal system bring to the victims. Three retired soldiers have already showed the JEP their submission to the special jurisdiction: Retired Lt. Édgar García Estupiñán, Retired 2d Lt. Jorge Milanés Vega, and Retired Sergeant Darío Brango Agamez. All of them made commitments to the system, making it clear from the beginning that making the commitment did not imply that they were accepting any responsibility for the crime. García Estupiñán and Brango Agámez insisted that they would provide “the truth” about the massacre.

Retired 2d Lt. Milanés Vega, on the other hand, filed a document on “the manner in which he was disposed to contribute truthful clarification, satisfaction for the victims, and guarantees of no repetition.” He explained that he had been commander of a squadron, that he was a witness to what had happened and that his testimony had annoyed his superiors. “This business victimized me in that the things happened against my will.” He said that his squadron was kilometers away when the murders were perpetrated and that, even so, “the judicial persecution is looming over me and it has made me into a pariah.”

All of those elements, plus the thousands of pages that represent this complicated case, is what the JEP now has in its hands exclusively, because the Supreme Court sent the file after it sentenced six of the retired soldiers investigated last March to 34 years in prison. Each defendant is in a different legal situation, so that, individually, each one has to define the route he will take in the JEP. Admitting responsibility could leave them with a sentence of up to eight years. Not doing that requires going to trial and facing the possibility of spending 20 years in prison.

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