A team of Garden Court International barristers led by Smita Shah submitted an amicus brief to the Criminal Chambers of the Supreme Court in Colombia today, in the case of the infamous massacre in 2005 of the San Jose de Apartado Peace Community in Colombia. Garden Court International was approached to submit an amicus by Colombian lawyer Jorge Molano, who represents members of the Peace Community and is appealing the acquittal of soldiers suspected of responsibility for the massacre.
In 1997 after decades spent caught in the crossfire between the guerrillas, paramilitaries and the Colombian army during the civil war, the San Jose de Apartado in north west Colombia declared themselves a Peace Community, neutral and unarmed. In February 2005 the human remains of eight members of the community were found in shallow graves, they were Mr Luis Eduardo Guerra Guerra, his 11 year old son, Denyner Andres Guerra Tuberquia and the partner Benyanira Areiza, 17 years old; the second family consisted of Mr Alfonso Bolivar Tubequeria Graciano, his wife, Sandra Milena Munoz Poso and their children Natalia who was 5 years old and Santiago Tuberqueria Munoz, 2 years old as well as Mr Alejandro Perez Castano, alias "cristo de palo". The army originally blamed the guerrillas for the massacre. Some of their bodies had been mutilated, dismembered and none were armed.
In 2009, as part of the transitional justice process, under the Justice and Peace Law, Captain Gordillo of the armed forces and the paramilitaries confessed to the massacre and the involvement of the army.
Five years after the massacre, 10 soldiers, including a Colonel, a Major, four platoon commanders and four non-commissioned officers were put on trial in 2010 charged with the murder, mutilation of the victims' bodies and criminal conspiracy under domestic Colombian Law. All were acquitted at first instance. Upon appeal by the prosecution and Peace Community, four platoon commanders were eventually found guilty of the massacre.
On the day in question the 17th Brigade had already been patrolling, sharing camp space and using paramilitary guides for days with the AUC paramilitary division known as Heroes de Tolver. The paramilitaries were the material authors of the massacre; however members of the 17th Brigade did not prevent the paramilitaries from murdering and mutilating members of the Peace Community.
The case gives rise to the question of whether members of the armed forces can be held criminally liable by failing to prevent a massacre.
Colombia is a signatory of the Rome Statute of the International Criminal Court. The amicus seeks to argue the application of joint criminal enterprise and superior responsibility under international criminal law, as a modality of liability which captures all of the defendants, rather than just four platoon commanders. The Peace Community was well known, both geographically and by its individual members. Under both international and regional human rights instruments, humanitarian law, and ruling T 327 of 15 April 2004 by the Constitutional Court of Colombia, there was a positive legal obligation upon the Colombian Government and armed forces to protect the lives of members of the community, in the planning, implementation and oversight of any military operation in the area.
Commenting on the case, Smita Shah said "The massacre should never have happened. Why were they patrolling with the paramilitaries while carrying out a military operation? They were an illegal armed group under Colombian law in 2005. Why didn't they arrest them at the very least? The Peace Community has been subject to countless protective measures by the Inter-American Court of Human Rights since 1997, where the 17th Brigade has been suspected of collusion with or acquiescence of the actions of the paramilitaries in the area for years."
The amicus was prepared by Smita Shah and Shahida Begum, both Barristers at Garden Court Chambers, Wafa Shah, at Doughty Street, Dr Fatima Kola, Phd and Dr Silvia Borrelli, Director of Research at the School of Law, University of Bedfordshire.