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Colombia’s Constitutional Court last week ruled that the Military Justice law – a controversial bill that expanded the jurisdiction of military tribunals over crimes committed by the armed forces – is unconstitutional, citing “procedural defects” with the bill`s passage through Congress.

Human rights activists` criticism – who argued the reform would grant impunity for military accused of killing  innocent civilians – was not enough to prevent Congress in June approving the legislation.

The Santos Government and Congress argued for the military’s need for “confidence and judicial security.”

But in a ruling not subject to appeal, the Constitutional Court nullified the legislation, ensuring all subsequent cases are tried through the civilian courts. Defence Minister Juan Carlos Pinzon labelled the ruling “a blow to the morale of the military forces that without doubt will affect Colombians’ security.”

The main concern for human rights organisations in relation to this legislation, was the prosecution of members of the armed forces guilty of killing innocent civilians, in what is known as the false positives scandal.

According to the Prosecutor General’s office, 3,896 civilians have been assassinated and subsequently presented as combat kills by members of the armed forces since 1986, with an alarming 3,470 deaths recorded in between 2002 and 2008 alone – a period military personal were known to receive rewards for high rebel body counts.

The scandal came to light in September 2008 after prosecution investigators linked the bodies of unidentified rebel fighters found in the north of the country to people who had been reported missing in Soacha, a city south of the capital Bogota.

As of 2013, 4,625 members of the armed forces were under investigation or on trial in the civilian justice system for numerous human rights crimes, including false positives.

According to Adam Isacson, senior associate for regional security at the Washington office on Latin America, Colombia owes such progress to the civilian justice system, which since 1997 has been given increasing jurisdiction over military human rights abuses.

“Virtually all convictions of military personal for human rights crimes were handed down by civilian judges,” said Isacson. “Colombia’s military justice system, which frequently challenges civilian courts jurisdiction over abuse cases, has a far poorer record of holding soldiers and officers accountable.”

By 2010 however, the armed forces were demanding that human rights cases involving the military be tried solely by military tribunals, claiming that civilian prosecutors and judges did not understand the context of combat and were thus undermining their efforts against the rebels.

To the dismay of numerous human rights organisations, President Santos agreed, and in 2011 introduced legislation that would ensure all military human rights abuse cases be tried under military jurisdiction, despite their far poorer record of holding soldiers and officers to account.

While this law was amended to ensure the most serious crimes return to the civilian courts, “the UN high commissioner for human rights, Human Rights Watch and the Colombian Commission for Jurists were worried that past and future cases of serious human rights abuses could end up transferred to, or starting in, the military justice system where punishment is unlikely,” according to Isacson.

Such fears were realised recently, as news broke that a high magistrate received 400 million Colombian pesos to transfer a military official involved in a false positives case from a civilian court to a military tribunal.

For Isacson, the significant backlash regarding the Constitutional court’s decision is likely to arise post conflict, assuming a peace agreement is established.

“Officers are expressing concern about the possibility of a wave of post conflict trials for human rights abuses, which even in the context of transitional justice, would amount to a severe strain on the reputation of a military that will be expecting gratitude for having weakened the guerrillas.”

More important than the reputation of the military however, is the reparation to the victims of such crimes. Rather than fight this decision or conjure up a new Military Justice bill – something the government has suggested – efforts should be made to reduce the military’s impunity rate and support the civilian justice system in its effort to bring those responsible for such heinous crimes to justice.

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