EL TIEMPO, May 11, 2020
(Translated by Eunice Gibson, CSN Volunteer Translator)
The International Criminal Court (CPI in Spanish) has been observing Colombia since 2004 for possible cases of war crimes and crimes against humanity during the armed conflict. Its most recent requests to Colombian authorities indicate increasing interest in learning who financed and promoted the activities of the illegal groups.
That is evident from a recent report by the Attorney General’s Office to the CPI prosecutors. In their most recent visit to Colombia early this year, they expressed a number of concerns about progress in investigations of those who financed the war in this country.
The mission of the CPI prosecutors met with Colombian authorities, government officials, and organizations that defend human rights. It focused its interest specifically on “national procedures that deal with the promotion and expansion of paramilitary groups, forced displacement, sexual and gender crimes, and the murders known as “false positives”.
In the report dated March 10, which the International Affairs Section of the Attorney General’s Office directed to the Human Rights and International Humanitarian Law Section of the Foreign Ministry, a report that EL TIEMPO has seen, the prosecution unit identifies “29 representative cases that involve 70 civilian third parties and government agents involved with the illegal armed groups” in events between 1992 and January 2018.
The report adds that, of the 29 prioritized cases, ten are in preliminary investigation; 14 in court investigation, and 5 in litigation. It also notes that 65% of the cases have made some progress in investigation.
The prosecutors assure that they consider the investigations against those who have promoted and financed the conflict and the connected government agents are among the cases that should be prioritized.
This coincides with the complaints made by representatives of the paramilitaries’ victims about the progress in investigations of those who promoted the activities of the illegal groups and the calls that the Justice and Peace Tribunals have made about the demands for documents with relation to the confessions by the former paramilitaries.
Soraya Gutiérrez, President of the José Alvear Restrepo Lawyers Collective, said that there has been impunity in this, because “in spite of the fact that there’ve been more than 16,700 demands for documents that would compromise 2,300 business owners, merchants, and civilians, and more than 1,800 politicians, the results of the criminal investigations in the ordinary justice system have been minimal.”
And Gustavo Gallón, Director of the Colombian Jurists Commission, believes that impunity opens “a great possibility” that the CPI will be monitoring and investigating the country’s situation.
In the prosecutors’ document, which will be analyzed by the CPI along with other reports that have been requested from other government agencies, the investigation of the multinational Chiquita Brands is referenced. It points out that “in August of 2018, charges were filed against 13 people, including directors and employees of the subsidiaries Banadex and Banacol, for the crime of criminal conspiracy for the alleged financing of the “Arlex Hurtado” Front, commanded by Raúl Emilio Hasbún Mendoza, alias Pedro Bonito.
In the same manner, it mentions that on September 17, 2019, the office of the then- Deputy Attorney General decided an appeal of the case and “confirmed the decision against 10 of the 13 people, for the crime of aggravated criminal conspiracy, as well as the declaration that it was a crime against humanity.” Right now, the case is waiting for charges to be filed and they are continuing to investigate two employees of Banacol and one employee of Banadex.
This is one of the few cases of financing illegal groups that have made progress and in which officials of a company of that size have been caught up. In fact, the Attorney General’s Office has pointed out in the investigation that “the evidence brought forward demonstrates the participation by directors and some employees of these corporations,” in furnishing money to the illegal group that was committing crimes in parts of Urabá and Santa Marta.
The report of the Attorney General’s Office also speaks of the financing of the “Alex Hurtado” Front. It committed crimes in the Magdalena and was attached to the Bananero Bloc of the AUC, and of payments to the Calima Bloc which, according to reports by Historical Memory, perpetrated 6,918 murders, 119 massacres, and 3,400 displacements between 1999 and 2004.
Regarding that, the Attorney General’s Office states that in the suit known as “merchants from Valle del Cauca who had financed the illegal activities of the Calima Bloc”, there is an investigation for criminal conspiracy in the charge of Special Prosecutor 132. On November 15, 2019 he ordered the partial closing of the investigation of three of those charged and on December 2 of that year, added three others to the investigation.
In connection with the financing of “Alex Hurtado”, the Attorney General’s Office says that there is an investigation of criminal conspiracy which includes several statements by persons related to companies, including workers and owners, who worked in selling fruit between 1996 and 2006. They have also identified properties of those persons in order to “determine a financial profile to establish their increases in assets during that period.”
It should be noted that last year the CPI had already received information about these very same cases and had asked for some clarification about the financing of the Calima Bloc. This resulted in a response by Colombia’s Attorney General’s Office, pointing out that the investigation “is centered principally on the criminal responsibility of some business owners in Valle del Cauca”.
That is shown in the CPI’s report of 2019 activities. It mentions that the Attorney General’s Office had reported “a total of 2,047 cases against civilians or agents of the government who were not members of the Armed Forces for crimes related to the promotion, support, or financing of illegal armed groups. Of those, the report states that 1,253 cases are related to crimes allegedly committed by civilians or business owners, and 794 by government agents who were not combatants.”
For now, the investigation around the third parties who financed the war remains in two legal areas. Under the Justice and Peace Law, created to try paramilitaries, the Attorney General’s Office has the duty of investigating those who financed illegally, but the peace process with the FARC opened the door to the Special Jurisdiction for Peace (JEP) for third parties involved in the conflict. Up to now there are 766 applications from third parties for entrance to JEP proceedings. Four of those have been accepted.
CONCERN ABOUT INVESTIGATIONS OF SEXUAL CRIMES
Even though sexual violence is considered to be one of the most serious crimes committed in the framework of the conflict, investigations of that type of events remain in the Attorney General’s Office and the Special Jurisdiction for Peace has not yet taken jurisdiction.
This is another point on which the CPI has also asked for information from the Attorney General’s Office. The prosecutors point out that with the cases of sexual violence given priority in the Constitutional Court, through three orders “following the regulations now in effect, the Attorney General’s Office shall continue to advance the investigations related to the armed conflict until the JEP refuses to take jurisdiction of them.” And it adds that referring it to the JEP will take place where there is a decision with conclusions, which has not taken place.
They are actually talking about Orders No. 092 from 2008, No. 009 from 2015, and No.098 from 2013. The first two are for aberrant cases of sexual violence and the last one is for the forced displacement that affected thousands of campesinos. In those orders, the Court documented more than 5,110 victims of sexual violence between 1985 and 2013.
The Attorney General’s Office points out that following Circular No. 008 from October 3, 2018, issued during the administration of former Attorney General Néstor Humberto Martínez, “all of the files shall be maintained in the Attorney General’s Office and may not be sent out,” until the JEP issued a resolution that terminated the Circular.
And the Office makes clear that even though the Attorney General does not lose jurisdiction over the investigations, “the investigating prosecutors shall abstain from adopting decisions that imply an effect on the freedom to make decisions determining the responsibility of persons being investigated, from making decisions or taking actions that imply summoning for or carrying out legal proceedings”; this leaves them little room to maneuver.
The Attorney General’s Office states that although it has not sent cases involving these Court orders to the JEP, it has found that there are 373 cases of displacement and 623 cases of sexual violence.
Regarding this, Mariana Ardila, attorney for Women’s Link WorldWide, stated that they have asked that the JEP create a specific case on sexual violence in the conflict, as it has done with kidnapping and other crimes, so that the investigations could progress. “We believe that the JEP is ready to carry out the demand for justice for the victims of sexual violence, and that it has all of the conditions necessary to do it,” she said.
JEP sources consulted by this newspaper pointed out that they are already investigating sexual crimes committed in the framework of the conflict and that there several events that are part of the case on forced recruitment of minors. And the source added that, at all events, the Attorney General’s Office can continue making progress in those investigations.
Besides, they said that they are evaluating the possibility of creating an individual case for those crimes, because they are not just connected with the guerrillas, but also actions taken by agents of the government.