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)




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Summary
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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.


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Fiscalia Review, CTI Investigation
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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).

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By Informal Agreement (For Now)
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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.

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Alongside Other Reforms
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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.

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Endorsed by COLMIL Brass
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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.

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Transitional Hurdles
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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.

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Many Points Still Unclear
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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?

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Next Step: Planning Workshops
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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.

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Comment
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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