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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. 
 
 
---------------------------------- 
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. 
 
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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. 
 
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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