COLMIL CASES TO BE GOVERNED BY CIVILIAN JUSTICE

C O N F I D E N T I A L BOGOTA 006614 SIPDIS SIPDIS E.O. 12958: DECL: 07/17/2016 TAGS: PGOV PREL PJUS MARR CO SUBJECT: COLMIL CASES TO BE GOVERNED BY CIVILIAN JUSTICE Classified By: Charge Milton K. Drucker Reasons: 1.4(a),(b),(d) -------------- Summary -------------- ¶1. (C) The GOC announced that all criminal cases involving COLMIL defendants will be reviewed by the civilian Prosecutor General's Office (Fiscalia) to decide jurisdiction (military vs. civilian) for prosecution and determination of guilt or innocence. Further, all investigations will be conducted by a Fiscalia unit. With details of the restructuring yet to be fully defined, Embassy Milgroup is helping the COLMIL to arrange planning workshops with international military legal teams. While the transition carries some risks to COLMIL operational performance, it marks a positive step towards transparency and justice on human rights cases. End Summary. -------------- Fiscalia Review, CTI Investigation -------------- ¶2. (C) On June 10, the Colombian press reported a GOC initiative to transfer primary review authority over all criminal cases involving military and police defendants to the civilian Prosecutor General's Office (Fiscalia). Under the new process, the Fiscalia will have a limited time (in units of days) in which to decide to retain jurisdiction or to transfer cases to military justice for disposition. In either event, the Fiscalia's subsidiary Technical Investigation Bureau (CTI) will have responsibility for investigations -- gathering evidence and testimony at the crime scene. Previously the COLMIL ran its own investigations except in cases such as human rights offenses, which by law fall automatically under Fiscalia jurisdiction. All cases will ultimately return to military justice for sentencing, but most likely with a military judiciary made independent of the COLMIL chain of command (e.g. reporting to the civilian Minister of Defense). -------------- By Informal Agreement (For Now) -------------- ¶3. (C) While the changes must formally be approved by Congress to become law, they are already partially in practice by means of a Memorandum of Understanding (MoU) jointly signed on 14 June by the Minister of Defense and the Prosecutor General. The MoU specifies that the CTI will conduct investigations, with protection and transport support provided by the armed forces, in cases involving alleged homicide by military personnel. While the MoU covers only homicides, Embassy understands the reforms will eventually cover the broad range of offenses allegedly committed by military personnel that require investigation. -------------- Alongside Other Reforms -------------- ¶4. (U) The transfer of investigative authority to the civilian justice system, and the Fiscalia's further authority to determine jurisdiction for prosecution, are abrupt new additions to a body of military justice reforms already moving through the legislative process. The first of those is a so-called 'shock reform' to cut massive case backlogs by fast-tracking basic offenses. This bill has passed through Congress and has been signed by the President. The second phase of pending reform will shift military criminal justice from a written inquisitory system to an oral accusatory one. The latter bill is targeted for passage late in 2006. The shock reform and the accusatory system should make military justice more efficient, while the new MoU reforms aim to lend it transparency and credibility. It is unclear if or how the new restructuring might impact the earlier reform bills. -------------- Endorsed by COLMIL Brass -------------- ¶5. (C) In press statements (then) Minister of Defense Camilo Ospina supported the plan, saying the changes would improve transparency. Armed Forces Commander General Carlos Ospina told journalists he found the arrangement appropriate, since the military lacks a criminal investigative corps; he further affirmed the changes would return credibility to military justice. Gen. Ospina later echoed these thoughts privately to Embassy officers, saying the restructuring was a necessary political response to negative public perceptions and international pressures. He felt it would relieve the military of being always "under a microscope." A COLMIL human rights officer said top echelons of the armed forces accepted the changes as trading off judicial independence to redeem the military,s reputation. Whether or not officers are genuinely invested in justice, they are not in doubt as to the reforms' political expediency. -------------- Transitional Hurdles -------------- ¶6. (C) A range of concerns must be addressed to ensure a smooth transition to the new structure. Senior personnel at both COLMIL and Fiscalia have voiced concerns to Embassy officers that the CTI is already overloaded and will find it difficult to assume the extra burden with no additional resources. A corollary concern is that the Fiscalia might be compelled to return cases to military justice just to offload work, creating a rubber-stamped round-trip cycle with a false appearance of reform. Civilian investigators may lack military knowledge and the battle hardiness to work in conflict zones. If colocated with COLMIL divisions, they might be susceptible to influence, undermining their impartiality. Most importantly, the new structure would depend vitally on commanders' willing cooperation with outsiders actively gathering evidence against the officers' own troops. -------------- Many Points Still Unclear -------------- ¶7. (C) While the broad outline of the restructuring is as described above, very little has been defined in writing, and our sources are short on key specifics. Examples of open questions are: will any existing military investigative apparatus remain in place, perhaps to treat a narrow category of purely military offenses (e.g. AWOL or dereliction of duty)? Will those offenses no longer require investigation following the 'shock' reform? Embassy officers have heard plans for six-member investigative teams embedded at division level; would those be CTI staff or soldiers assisted by drop-in CTI oversight? To whom would those embedded teams report? Over which case types will the Fiscalia have first authority -- only homicides as in the present MoU, or all cases? Will terrorist takedowns be investigated by the CTI as 'homicides'? When and in what form will the new structure be codified as law? How will the CTI build the necessary capacity? How should the U.S. adapt its ongoing programatic assistance to justice reform? -------------- Next Step: Planning Workshops -------------- ¶8. (C) Leading the GOC effort to restructure military justice, Vice Minister of Defense Hernan Sanin has requested the help of a USMIL legal advisory team. In response, senior Milgroup officers are now planning a series of workshops, also hoping to include other contributors like the UK, Canada, and Spain. In the first stage, slated for 1-2 days between mid-August and mid-September, international participants and Colombians will present detailed briefings of their respective models of military penal justice. After a break of several days for evaluation, the groups will reconvene for 2-3 days of detailed planning sessions, grafting best practices onto the revised system without unnecessary reinvention. The result will in turn determine the shape of future U.S. (DoD/DoJ) assistance to COLMIL justice reform, programs which are now on hold while the system is in flux. -------------- Comment -------------- ¶9. (C) Embassy Bogota supports the transfer of review and investigative authority to the Fiscalia and CTI in military cases. Long-running concerns over impunity, inefficiency, and lack of transparency within the military justice system have been aggravated this year by COLMIL scandals and alleged human rights abuses. The GOC and the international community no longer have faith in the COLMIL's capability to investigate itself. It is critical, however, that the new process be implemented well to function fairly. DRUCKER