126
interests, linked to the functions assigned to the military forces by the Law. For this
reason, the military must only be tried there for crimes or offenses that by their very
nature affect legal interests that pertain directly to the military order.248
203. In the instant case, the Court notes that on November 13, 2001, after several
appeals, the Constitutional Court of Colombia ordered the annulment of the actions
carried out under military criminal jurisdiction, when it ruled on an action for the
protection of basic rights filed on September 30, 1999 by Nory Giraldo de Jaramillo,
a civil party to the criminal proceeding, against the aforementioned decision of
August 18, 1999 by the Disciplinary Chamber of the High Council of the Judiciary.
The Constitutional Court decided to protect the basic right to due process due to
disregard for the Competent judge, and therefore annulled the judgments issued by
the Criminal Chamber of the High Court of the Judicial District of Bogotá on October
15, 1999 and by the Criminal Appellate Chamber of the Supreme Court of Justice on
December 9, 1999; it annulled said provision of August 18, 1999 and ordered the
case remitted to the High Council of the Judiciary for it to decide on the clash of
spheres of competence. In addition to the considerations of the Constitutional Court
quoted above (supra para. 117), the Court must highlight that when it ruled on the
clash of spheres of competence based on that decision, the Council of the Judiciary
deemed that:
[…] the file contains evidence pointing to the fact that the officers involved were
forewarned, both because their high military rank meant that they were aware of the
actions of the self-defense or paramilitary groups, and because they themselves sent a
message on July 15, 1997, when the macabre event was just beginning […]
For a better understanding of the case, it is appropriate to take up some of the
considerations of the Constitutional Court in its 2001 judgment SU-1184, where it noted
that the military forces and the National Police have the role of guarantors stemming
from their obligation to carry out non-renounceable duties in a democratic State, as
reflected in […] Article 217 of the Constitution as well as in Article 209 ibidem, which
establish their obligation to actively and effectively participate in defense of the
Constitutional rights of the members of society; existence of this role as guarantors
means that the charge is made for a crime against humanity, or in general for grave
human rights violations, whatever the form of intervention, the degree of involvement in
the execution or the attribution of subjective liability, that the chargeable omission falls
under the jurisdiction of regular courts, because when one has the role of guarantor,
omissions that enable, facilitate or cause (whether as perpetrator or accomplice,
whether the crime was attempted or committed, culpably or with malice) a violation of
human rights or of international humanitarian law, these behaviors are not related to the
service […] and more specifically that the omissions committed by the accused enabled
acts that degrade the sense of humanity, and therefore, due to objective reasons,
jurisdiction cannot be allocated to military criminal justice.
Omissions by the security forces are likewise considered unrelated to the service in
those same cases in which the active conduct is not connected to the Constitutional
mission assigned, that is, those that take place in the context of an operation that ab
initio had criminal purpose, those that are conducted in a legitimate operation but in the
course of which there is an essential deviation of the course of the activity or when they
do not impede grave violations of human rights or of international humanitarian law.
In brief, since the charge against officers JAIME HUMBERTO USCATEGUI RAMIREZ AND
HERNAN OROZCO CASTRO involves committing crimes against human rights by
omission, in events that took place when they respectively held the rank of Brigadier
General and Major of the Army, and as such had the role of guarantors of the lives,
honor and property of the citizens of Mapiripán, the matter must be heard by regular
248
See Case of the 19 Tradesmen, supra note 190, para. 165; Case of Las Palmeras. Judgment of
December 6, 2001. Series C No. 90, para. 152, and Case of Cantoral Benavides. Judgment of August 18,
2000. Series C No. 69, para. 112.
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