Truth, Reconciliation and the Laws of War in Colombia

Truth, Reconciliation and the Laws of War in Colombia

Thomas E. Ayres

Pope Francis met on December 16, 2016, with Colombia’s leaders to encourage a “sincere dialogue” between the FARC and the Colombian government as they implement a peace process. The peace accord, initially rejected by Colombian voters, was revised and recently ratified by the Colombian Congress to end years of conflict with the Revolutionary Armed Forces of Columbia (FARC). The rejection of the referendum underscores that ‘sincere dialogue’ must be one that honestly and fairly accounts for the reality that Colombia was involved in long-term war with a determined enemy force. The dialogue therefore should be cast and framed by the Laws of War, and should fully and fairly address the degrees of compliance with the Laws of War by the primary actors (the Colombian Army and the FARC). In recent years, the Colombian Army’s nascent campaign to professionalize, coupled with a growing commitment to the rule of law, was arguably the game changing factor that turned the tide of the conflict. The ‘sincere dialogue’ encouraged by the Pope should also take full consideration of this dynamic.

A Colombian Army officer described a scenario that helps to illustrate what has played out many times in the past decade and a half in the Colombian jungles. A platoon of Colombian soldiers moves through a dense jungle in search of a FARC base. They know the area is inhabited by the FARC, the guerilla insurgency extant since 1964, and that the FARC now lives in a symbiotic relationship with narco-traffickers and members of the Medellin cartel. The soldiers, besides being equipped for battle with rifles and machine guns, have in their possession two 3x5, laminated-paper, Rules of Engagement (ROE) Cards. The first card is blue in color and demands compliance with Colombian criminal and human rights laws when engaging drug traffickers. They are criminal and not enemy forces. The blue card denotes that lethal force must be used as a last resort and must be strictly proportional – as in our own U.S. human rights or police standards. The second ROE Card is red. It demands compliance with the Laws of War when facing the FARC as an enemy in an armed conflict or war. It is premised upon the notion that the first intent of the FARC or any warrior is to inflict casualties. Therefore it allows that lethal force need not be a last resort. However, it requires that all uses of force be limited by the Laws of War.

The soldiers come under sniper fire. The sniper obviously means to wound or kill them. The commander determines the red card is in effect. The Colombian soldiers locate the source of the fire from the jungle undergrowth. Using standard military tactics, half of the platoon fires their rifles toward the source of the shooting to keep the sniper’s head down, while the remainder maneuvers to kill or capture the sniper. Hundreds of army rounds of ammunition are used. The sniper gives no obvious signs of surrender and is killed in the melee.

The Colombian soldier responsible for the shot that killed the sniper is tried in a Colombian criminal court. The judge finds no clear evidence that the sniper was a member of the FARC. He deems that the Laws of War do not apply and instead applies a criminal rights standard. This, however, is a mistake. It is well established under the Laws of War that death or destruction resulting from combat is allowable and even a combatant’s errors in judgment, absent criminal malfeasance, are excusable. This Law of War standard is recognition of both the nature of combat (ubiquitously termed ‘the fog of war’) and the stress of combat. General (Retired) James Mattis has described the stress of combat by quoting “[o]ne of our most articulate Supreme Court Justices” and Civil War infantryman Oliver Wendall Holmes, Jr., who coined the phrase “an incommunicable experience” and also reflected “detached reflection cannot be demanded in the face of an uplifted knife.” Under the Laws of War, therefore, errors honestly made in this supercharged atmosphere of combat, even when injurious or deadly, do not result in criminal liability. By contrast however, Colombian judges have frequently applied domestic law deeming such results as criminally negligent and prosecutable. Therefore, the Colombian soldier in our scenario is sentenced to jail. The hundreds of rounds used, though proper under the Laws of War, was deemed, under a different standard, as disproportionate to a civil threat and not comporting with Colombian human rights or police standards.

This brings us back to the Colombian peace process and all of its fits and starts. The peace accord between the FARC and the government, negotiated over years in the unlikely location of Cuba, was rejected in an October 2016 referendum. Key to the rebuff, and the movement that spawned it, was the notion that the Colombian military and FARC fighters would be treated unequally. In fact, they have been treated unequally. Unlike Colombian soldiers, FARC fighters have largely been beyond the reach of judicial action. Their de facto immunity for past violations of the Laws of War or Laws of Peace would continue under the peace process. On the other hand, Colombian soldiers have been subject to scrutiny for years - scrutiny often judged upon the wrong legal framework and resulting in anything but immunity for soldiers and commanders. The peace accord only increased the palpable anxiety that judicial decrees and sentences under a reconciliation process would be as similarly lopsided as the legal actions of the recent past.

Over the past decade, literally thousands of Colombian military actions have been the subject of investigation and scrutiny. There is a self-serving reason for state militaries to vigorously investigate and prosecute both their soldiers’ wrongs and perceived wrongs in a counter-insurgency: legitimacy. In furtherance of that legitimacy, and as the proper government in being, the Colombian military has been subject to executive branch investigations and actions, review and sentences in the Colombian judicial system, and examination by national and international human rights groups.  Naturally, then they have also been the focus of many follow-on reports and subsequent media attention. In fact, human rights groups publicize that eight hundred Colombian soldiers have been convicted for what they term ‘false positives’ – the killing of a Colombian determined to be a civilian or drug trafficker, rather than one deemed to be a FARC ‘guerilla’ killed in combat. And, indeed, over 1,100 Colombian soldiers have been tried and jailed for war crimes of one type or another.

While human rights groups contend such numbers augur widespread criminality and senior officer collusion, this conclusion misses the mark on several counts. First, it belies both the fog and reality of war conveyed in the scenario above. Second, it ignores the proper legal standard by which to judge such combat deaths. Groups critical to the government, including both human rights and opposition groups, uniformly provide the derogatory appellation of ‘extrajudicial killing’ or assassination to all combat deaths.  Using deadly force against an identified enemy force in armed conflict is not illegal, nor is it an extrajudicial killing or assassination. On the contrary, killing an armed enemy combatant is allowed, is ultimately intended to aid in the distinction and protection of civilians, and it is the means by which an armed conflict is meant to be brought to a close under the Law of War. The Colombian military’s increasing openness and subjection to investigation and accountability should be lauded rather than castigated.

Few militaries in history have conducted a successful counter-insurgency. The Colombian military’s success and ultimate victory was aided immeasurably, or perhaps even consequent to, their improved professionalism. This was not just a make-over in military abilities aided by Plan Colombia and the infusion of U.S.-made helicopters. This was a purposeful program to professionalize the Colombian military. To ensure its soldiers were grounded in values that would win them the respect and support of the mass of Colombian citizens and infuse an ethic of service that ensured their soldiers were above being bribed by narco-traffickers. The professionalization of the Army, and the recognition of that professionalism by the people, was the center of gravity of the campaign. Besides the training and enforcement of values-based approaches to military leadership, this approach required transparency and appropriate responses whenever war crimes were alleged to have occurred. To be sure, success in the response, or innocence of the armed forces, was not 100 percent. As in any military, our own included, either the supersaturated stress of combat or the criminal mind itself can lead to war crimes. It is the transparency with which the Colombian military began to investigate and address these allegations that gained the respect and support of the Colombian people, and ultimately shifted that center of gravity in favor of the government.

Reconciliation and sincere dialogue moving forward must recognize the factual inequality of justice to date. The original peace deal gave a near total reprieve to FARC fighters or, in the unlikely event their now long-passed-over war crimes could be proved, much reduced liability. While it is widely agreed this was a principle reason for rejection by the Colombian voters, it is less well understood is that the FARC’s amnesty sat in direct contradiction to what the voters knew of the standard required of their military. The 1,100 soldiers sitting in jail, and the thousands investigated, had family, friends, neighbors. The FARC had no such jailed total – no such public cognizance. The FARC’s tactics had never changed. But the Colombian people had witnessed a re-birth of the Colombian military – a progression of professionalism over time and a tangible willingness to be held accountable for their actions.

Through interaction with the Colombian military over the past seven years, I have personally seen markedly improved professionalism of the Colombian Armed Forces. But, despite this growing professionalism, there is now also fear. Fear that the reconciliation process will regard all combat actions in the clarity of 20-20 hindsight without deference or even acknowledgement of the reality of combat fog or the existence of two distinct legal standards. Imperfect information and stressful circumstances have to be accounted for and evenly applied to subsequent judgment. Where accountability is to be had, it must be equal and flow from the proper standard applied in good faith to both actions in the field and subsequent examination, where appropriate, in the court room. Where there is 52 years of war there certainly is a need for truth, reconciliation and healing. If that process is to gain credibility, it must not ignore the abuses of the past. But, it must also properly apply the Laws of War when and how they should be applied.