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Cablegate: Military Justice Working Group Hears Reform

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UNCLAS BOGOTA 008044

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C O R R E C T E D C O P Y (CHANGED PARA 7 FROM (C) TO (SBU)

E.O. 12958: N/A
TAGS: PHUM PGOV KJUS CO
SUBJECT: MILITARY JUSTICE WORKING GROUP HEARS REFORM
CHALLENGES


Sensitive but Unclassified. Not for Internet distribution

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SUMMARY
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1. (SBU) Military Criminal Justice (MPJ) director Luz Marina
Gil and National Director for Prosecutors of the Prosecutor
General's office (Fiscalia) Alicia Ledesma outlined their
plans for greater military-civilian cooperation on human
rights investigations, including extrajudicial killings, to
an Embassy-organized working group on military justice.
Members of the international community voiced support for the
reforms, and urged greater GOC action to address case
backlogs and deter new killings. Representatives from the
UK, Swedish, Spanish, and Dutch embassies agreed to support
GOC efforts and to coordinate their assistance programs with
other donors. End Summary

2. (SBU) On November 1, Polcouns hosted the second meeting of
the "Group of Friends" of Colombian military justice reform.
Participants included: Swedish Ambassador Lena Nordstrom and
Poloff Monica Wulfing, British DCM James Darius, Dutch
Embassy Poloff Hester Jonkman, Spanish Military Attache
Colonel Jose Maria Arraco Montoya, UN High Commissioner for
Human Rights office (UNHCHR) Deputy Director Javier
Hernandez, International Committee of the Red Cross (ICRC)
Official Yves Heller, Vice Minister of Defense Sergio
Jaramillo, Ministry of Defense Human Rights Office director
Lieutenant Colonel Juan Carlos Gomez, National Director of
the Prosecutor General's office Alicia Ledesma, Military
Criminal Justice director Luz Marina Gil, DOJ/JSRP Manager
Paul Vaky, and Major Walter Mosher of MILGRP.

--------------------------------------------- ------
MOD AND FISCALIA EFFORTS ON MILITARY JUSTICE REFORM
--------------------------------------------- ------

3. (SBU) Gil and Ledesma presented their latest steps on MPJ
reforms, highlighting increased cooperation between the
civilian and military systems to improve the speed of new
investigations and end jurisdictional disputes between
military and civilian prosecutors. Gil noted that
legislation amending the military criminal justice code to
clarify civilian courts' jurisdiction over human rights and
international human rights violations will likely be passed
before the end of the year. The GOC has worked closely with
UNHCHR on this issue and believes the bill addresses UNHCHR
concerns. Gil said her office is also working to end the
practice of military judges conducting parallel
investigations of alleged human rights violations. These
investigations complicate civilian investigators' work and
lead to lengthy delays. She noted that military judges
transferred over 100 cases to the civilian courts over the
last three months with no footdragging.

4. (SBU) Gil said the GOC is committed to further reform, but
this will take time. Some retired and active duty generals
resist change, fearing it will undercut the special military
jurisdiction (fuero) and expose them to prosecution by
civilians who do not understand military operations or are
biased against the Armed Forces. Jaramillo said the MOD is
testing the waters in congress to see if there is enough
support for a constitutional amendment that would remove the
MPJ from the Defense Ministry and make it a specialized
branch of the civilian judiciary. She said the shift from
the inquisitorial to an accusatorial system--scheduled to
start in 2008--will require substantial resources as well as
a change in culture.

5. (SBU) Ledesma and Gil said greater cooperation between
military and civilian prosecutors is key to investigating
extrajudicial killings (EJES). The Fiscalia has set up a
sub-unit within the Human Rights unit to focus on EJES, and
has sent two special commissions to identify cases and
expedite investigations in Medellin (Antioquia) and
Villavicencio (Meta). Fiscalia data shows both areas account
for a substantial number of alleged EJES. Ledesma said

civilian prosecutors will need a keen understanding of
military operational law, noting that killings that would be
illegal if committed by the police could be legal under
international humanitarian law and military rules. A key
factor in making such determinations will be the military's
rules of engagement (ROEs). If a death was consistent with
the ROEs, the Fiscalia could consider it a legitimate combat
casualty.


6. (SBU) Gomez agreed clear ROEs that reflect international
humanitarian law are crucial. The MOD issued broad ROEs in
March, and published them on the MOD website in July.
Training troops in their application has been a MOD priority
throughout the year. Ledesma said the Fiscalia would train a
limited number of prosecutors and investigators (CTI or
Technical Investigative Bureau) in ROEs and international
humanitarian law to help them better analyze these cases.
Gil added that a USG-funded course involving military and
civilian prosecutors is set for November 26-29. Ledesma said
the CTI would need substantial logistical support from the
military if it is to investigate all alleged combat deaths.
(Note: In 2006, the military reported 2200 enemy combat
deaths.) Jaramillo and Gomez said the military--following
orders issued by Minister Santos--is committed to
facilitating transportation of CTI to the scene of all combat
deaths and would also defer to its investigative authority.

-----------------
QUESTIONS ON EJES
-----------------

7. (SBU) Hernandez voiced support for the new reforms, but
said military officers' suspicion of civilian oversight would
make implementation difficult. Some officers continue to see
civilian prosecutors as part of a juridical war (guerra
juridica) against the military. Jaramillo replied that the
new annex to Directive 10, the MOD's directive to prevent
EJEs, provides specific punishments for field commanders who
do not implement the new orders. Officers who cover up
abuses will be severely punished. Jaramillo stressed the
MOD's focus is prevention. As the Armed Forces strengthen
internal disciplinary controls and improve understanding of
operational legal constraints, the number of EJEs will fall.
The establishment of a greater Fiscalia presence in rural
areas will also help, because it will facilitate the legal
detention of illegal armed group members. He stressed that
Defense Minister Santos and Armed Forces Commander Padilla
understand the gravity of the EJE issue and are determined to
address it.

----------------------------------
INTERNATIONAL COMMUNITY ASSISTANCE
----------------------------------

8. (SBU) MILGRP shared its legal engagement plan for FY-2008
and asked other donors to coordinate their activities to
provide the GOC with focused and effective training. UK DCM
Darius said the UK would continue to host workshops on
lessons learned and best practices. He also stressed the
need for more training to help commanders better understand
human rights law and to preserve the evidentiary chain of
custody. Spanish Military Attache Arraco thanked the group
for inviting Spain to participate and offered to brief the
GOC on the Spanish military justice system and best
practices.

9. (SBU) Ambassador Nordstrom stressed that Sweden would
coordinate all future activities with the group. Sweden had
sent experts from the Swedish National Defense University to
pass on lessons learned from the Swedish military justice
system to the Colombians, and would continue to work to
improve civilian judicial capacity. Dutch Political Officer
Jonkman agreed to follow up with the group on what potential
assistance the Dutch could provide.

10. (SBU) UNHCHR and the ICRC agreed to help lobby for
reforms at the political level and to work with the Fiscalia
and MPJ to implement the UNHCHR's recommendations from its
2006 Human Rights report. Hernandez said UNHCHR provides
Colombian military judges and military personnel with
training on international humanitarian and human rights law,
as well as suggestions on rules of engagement. Jaramillo,
Gil, Ledesma and the participating countries said the session
was extremely valuable in communicating Colombian military
advances on these issues--as well as coordinating donor
activities--and agreed to meet regularly in the future.
Brownfield

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