Attorney General Should Move Ahead with Prosecution
Washington, DC – Previously unpublished evidence strongly suggests that a former top commander of Colombia’s military did not take reasonable steps to stop or punish hundreds of illegal killings, Human Rights Watch said today. TheColombian Attorney General Néstor Humberto Martínez Neira should revive the stalled prosecution of the general, Mario Montoya Uribe.
Montoya has been under investigation since at least 2015 for “false positive” killings throughout the country when he was the army commander between February 2006 and November 2008, a period during which these killings peaked. The thousands of false positive killings, committed systematically by soldiers throughout the country to boost enemy body counts in the war, began in 2002. In March 2016, Montoya was summoned to a hearing where prosecutors were set to charge him, but he has yet to be charged.
“Montoya led the Colombian army while it engaged in one of worst episodes of mass atrocity in the Western Hemisphere in recent years” said José Miguel Vivanco, Americas director at Human Rights Watch. “The case against him is a test on how far Attorney General Martínez is willing to go to prosecute those most responsible for these killings.”
Montoya was summoned to a hearing where prosecutors were set to charge him in March 2016, but the Attorney General’s Office cancelled the hearing. In November, lawyers representing victims asked the Attorney General’s Office to set a date for a new hearing, media reports said, but no date has been set and Montoya has not been charged. Later that month, the prosecutor in charge of the case reportedly replied to victims’ lawyers that his office was still reviewing the evidence against Montoya. However, lawyers with detailed knowledge of the case told Human Rights Watch that authorities within the Attorney General’s Office have apparently decided to stall the prosecution.
In October 2016, Human Rights Watch had access to hundreds of pages of transcribed testimony provided by six current and retired army generals to prosecutors in closed hearings carried out between August 2015 and January 2016. The testimony strongly suggests that General Montoya knew, or at the very least had information available to know, about false positive killings under his command, and did not take measures he could have taken to stop them.
Montoya is one of at least 14 generals currently under investigation for their alleged roles in false positive killings. Others include Luis Roberto Pico Hernández, who commanded one of the seven divisions of the army during Montoya’s time, and Juan Pablo Rodríguez Barragán, the current commander of the Colombian armed forces.
Human Rights Watch is concerned that the prosecution against Montoya and others could be jeopardized because many false positive cases could be tried before the Special Jurisdiction for Peace, an ad hoc judicial system created by the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) as part of their peace talks.
During the almost three years Montoya commanded the army, extrajudicial killings in Colombia reached unprecedented levels. Prosecutor’s office data shows that at least 2,500 civilians were allegedly killed during that period, most of them by army troops. In 2006 and 2007, for example, more than one in every three reported combat killings could be extrajudicial executions by the army, according to the office of the UN High Commissioner of Human Rights in Colombia. Montoya resigned in November 2008, right after false positives were unveiled in the “Soacha scandal” – involving army killings of young men and teenage boys from the Bogotá suburb of Soacha.
The testimony Human Rights Watch reviewed strongly suggests that General Montoya failed to take steps to prevent the false positive killings. Gen. Jorge Arturo Salgado Restrepo, who currently commands one of the nine army divisions and is himself under investigation, told prosecutors that General Montoya should have known of false positive killings and did not take reasonable steps to prevent or punish these crimes.
Similarly, Gen. Gustavo Matamoros Camacho, who was Montoya’s chief of operations, told prosecutors that he warned Montoya about irregularities in the reported combat deaths in 2008 that might have indicated illegal killings, but Montoya did not take any action to address them.
The testimony adds to other evidence implicating Montoya that Human Rights Watch and others have already released. In 2009, the army’s inspector-general told the US Embassy that a main factor behind false positives was Montoya’s “constant pressure for combat kills,” and said that he was among the officers who were “involved in” or “tacitly condoned” the crimes, according to an embassy cable. In 2015, a Colombian journalist released an interview of a former soldier and paramilitary who suggested that General Montoya actively furthered false positive killings.
In the June 2015 report, “On their Watch: Evidence of Senior Army Officer’s Responsibility for False Positive Killings in Colombia,” Human Rights Watch presented convincing evidence suggesting that numerous senior officials, including General Montoya, bear criminal responsibility for false positive killings. Evidence against Montoya in the report includes the testimony of one high-ranking army officer who told prosecutors that Montoya knew of the executions when he was the army’s top commander, and the testimony of Lt. Col. González del Río, who said that when Montoya was the army’s top commander, he pressured subordinate commanders to increase body counts, punished them for failing to do so, and was the principal “motivator” for false positives.
“The evidence against Montoya piles up only to gather dust in a drawer somewhere in the Attorney General’s Office,” Vivanco said. “It is about time Colombian authorities move forward with this case.”
Montoya is being investigated for “homicide of protected people,” meaning civilians, which is a crime committed during conflict. Since the Special Jurisdiction for Peace will hear cases of crimes that were “directly or indirectly related” to the armed conflict, it is possible that it would handle his case.
The justice portion of the peace deal dictates that the Special Jurisdiction will rely upon a narrow definition of command responsibility – the rule that establishes when superior officers can be held responsible for crimes committed by their subordinates – that does not conform with international law. The definition could require authorities to prove commanders actually knew about and had control over the actions of their subordinates at the time they committed the crimes.
Such a narrow definition of command responsibility would mean that commanders who were not present at a crime scene to exercise control over their troops’ actions at the time, but had effective control over the troops implicated in abuses and should have known about their actions, could escape accountability, although they bear criminal responsibility for their troops under international humanitarian law.
Under international law, a superior is criminally liable when he knew or should have known that subordinates under his effective control were committing a crime, but failed to take the necessary and reasonable steps to prevent or punish the acts.
“Montoya’s case could end up being a paradigmatic example of how the deliberate ambiguities in the justice agreement could be misused to let senior army generals off the hook and to deny the many victims justice,” Vivanco said.