The Colombian peace process threw the wrongfully convicted into a legal void
March 21, 2018 By Isabel Caballero-Samper
NEW YORK—The story of a man named Gilberto Torres Muñetón appeared in several Colombian newspapers recently. His is the first case of a convicted FARC member transferred from the ordinary justice system to a new special tribunal created for the demobilized former guerrilla group. Even though Torres Muñetón was tried and convicted as a high-ranking commander of the FARC known by the alias “Becerro,” he denies he ever belonged to the group. The FARC did not include him in the official demobilization lists and has even spoken in his favor, saying he is not the man for whose crimes he was sentenced to a 37-year prison term. And, what is more, the Colombian Army and the Police have both claimed at different times to have killed the real Becerro in combat. This was while Torres Muñetón was already sitting in prison. This story would be ludicrous if it wasn’t tragic.
In the Colombian lingo of war, a “false positive” is when the army executes a civilian but claims that person was a guerrilla fighter killed in combat—a “positive.” It is a fraudulent method the army has used to aggrandize its success against the guerrilla forces. In 2008, when the public became aware of the practice and its scale—prosecutors are currently investigating more than 3,000 cases of alleged false positives—it erupted into a major scandal.
But there is another form of false positive that is rarely discussed: the judicial false positive, the Torres Muñetón kind. Like the army, the legal system has also deceptively inflated its accomplishments in the war against the guerrilla groups by arresting, prosecuting and sometimes convicting innocents as guerrilla warriors. There are no figures for how many people have been victims of this form of state abuse.
Interviews with local human rights organizations such as Colectivo de Abogados José Alvear Restrepo and Colectivo Sociojurídico Orlando Fals Borda suggest that judicial false positives are commonplace, although most arrests did not end up in convictions. Maria del Pilar Silva, a lawyer with the first collective, said in a phone interview that in the areas of Colombia where the armed conflict was most intense these judicial false positives were “the daily bread,” everyday occurences, for people living in those areas. Natalia Restrepo Ortiz, a lawyer with the National Agency for the Legal Defense of the State, confirmed by email that claims for wrongful incarceration are among the most common suits against the state (in 2014, they topped the list) and that the accumulated total of claims for reparations adds up to 21 trillion pesos, nearly $7.3 billion in U.S. dollars.
When the Colombian government signed its peace treaty with the FARC late in 2016, the two parties agreed that a special court would be created. Here, in exchange for telling the whole truth, anyone who had only committed political crimes such as rebellion would be fully pardoned and anyone who had also committed war crimes would pay alternative non-prison sentences. Those who were already serving prison sentences for crimes related to the conflict could also apply to have their cases transferred to the new court system and be immediately released, pending a new trial during which they would have to confess the truth about what happened during the war. The penalty for lying to this new special peace tribunal would, however, mean a prison sentence of up to 20 years.
But the fate of those who had been wrongfully convicted as members of the FARC, the biggest and oldest left-wing guerrilla group in Colombia, was not explicitly laid out, and the trials that led to those convictions still hold under Colombian law. This means that the options available to victims of judicial false positives are limited and often tragic: they face either admitting to their participation in the conflict, as the very act of presenting oneself in front of the special court implies this, or remaining in jail. (Those who were convicted as members of the ELN, a smaller Cuban inspired guerrilla army, don’t even have the option of going in front of the special tribunal as this group is still belligerent.)
Frank Pearl, one of the government’s lead representatives at the negotiation table, said in a telephone interview that there were cases where there were “political interests for showing positive results where there were none, at the expense of someone’s liberty and integrity.” In lay terms, this means that the judicial false positives did occur. Pearl explained that a person who was convicted as a FARC member in spite of his or her innocence could be favored by the transitional system in that the person would be set free. But, he added, that this would “leave aside a very important moral consideration.” That is, forcing an innocent to stand before a court and recognize a crime that the person had not committed to win an earlier release. “Only in practical terms this person is served well,” he said, “but the moral damage is irreparable.”
On top of this, Pearl warned there is one more complication: not all who claim innocence actually are innocent and when the FARC denies someone belonged to its ranks this is not necessarily true. The FARC is trying to disavow some of its actual members so they can have a clean slate. This would enable them to enter politics as victims of the state rather than as former guerrillas. Pearl said there are “serious problems” with the member lists that the FARC turned in for the special peace court as the number of milicianos in the lists (those in the civilian structures of the guerrilla group) is much smaller than intelligence reports estimate. “What we cannot think is that the FARC’s listings are the absolute truth, or that the entire justice system has been co-opted [by dark interests],” Pearl said. “A large part of the justice system is co-opted, and the FARC’s listings do contain great lies: there’s not much to hold onto, but this is what we have.”
Torres Muñetón was a peasant from the village of El Aro in the Nudo de Paramillo, Antioquia. This region was for many years under the control of the FARC. The army considered it a “red zone.” In 1997, Torres Muñetón moved to the regional capital Medellín, narrowly escaping a massacre perpetrated by right-wing paramilitary groups as part of a take-over of the region. Then, in December 2004, he was arrested on the accusation that he was Becerro, the nom de guerre of the commander of the FARC’s 57th front. On the strength of the testimony of two witnesses for the prosecution, Torres Muñetón was sentenced to 37 years in prison for his alleged participation in the Bojayá massacre—during which 98 people died when a makeshift rocket launched by the guerrillas against a paramilitary group accidentally fell on a church where civilians had taken refuge.
But Torres Muñetón contended that he was not a member of the FARC and that Becerro had stolen his identity to hide from the authorities. This was common practice for guerrillas, who used multiple aliases that included short and catchy nicknames like Becerro—which means bull calf in Spanish—as well as full legal names, sometimes chosen to honor social leaders who had died, sometimes chosen at random.
The Police testified in Torres Muñetón’s favor, saying he was not the guerrilla commander, but to no avail. He was convicted anyway. His sentence was later confirmed by a higher court and in December 2014 the Supreme Court dismissed his plea for a retrial. In the meantime, the armed forces had completely disregarded the actions of the judicial branch and had continued to search for Becerro in the jungles of the Chocó region where the guerrilla front he led was active.
In 2010, the police announced Becerro had probably been killed in combat. But his body was never found, and everyone continued to act as before: the judiciary kept Torres Muñetón in prison and the security forces continued to search for Becerro in the jungles. In March 2015, the armed forces announced for a second time that Becerro had been killed in combat, and produced the body of guerrilla member José David Suárez, the real Becerro, to prove their claim.
Four months later, with the peace negotiations underway in Havana, one of the leading FARC negotiators, known as Carlos Antonio Lozada, spoke in favor of the liberation of Gilberto Torres Muñetón, acknowledging there had been a confusion as this had been the nom de guerre that José David Suárez had chosen for himself “at random, or who knows for what reason.”
A year later, when the FARC and the government signed the peace agreement, Torres Muñetón was still incarcerated so his lawyer applied for his case to be transferred to the transitional justice system. It took another year before Torres Muñetón was finally freed from prison in October 2017. He is still due to present before the special peace tribunal to comply with the obligation to tell the truth.
Nevertheless, the peace agreement explicitly states that the duty of contributing to the truth, which is mandatory, does not imply an obligation to admit to any wrongdoing. But Pearl, the government negotiator, said that this was meant, for example, for those who were part of the FARC and didn’t commit any crimes to tell the court about crimes they witnessed without fully denying any participation in the armed conflict.
Maria del Pilar Silva, the human rights lawyer, said that when a region was defined as a red zone, like the Nudo de Paramillo where Torres Muñetón lived, everyone living in the area was under suspicion of being a guerrilla. Working in another red zone in the Caribbean coast hinterland called Montes de María, Silva has known of many such cases. For example, she represented the reparation suit against the state of a woman who was wrongfully detained during five months. “It was a very sad case,” the lawyer said. The woman had given birth to a baby girl only 15 days before her detention, she was not allowed to keep her baby in prison with her, although legally she should have been, and the baby died while she was in custody.
Another case represented by Silva’s organization was that of Luis Miguel Gómez Porto, a peasant community leader from the Caribbean region. Gómez Porto was detained for 13 months accused of being a member of the FARC. Soon after proving his innocence and being released, Gómez Porto was killed by naval infantry officers who claimed he was armed and shooting at them and therefore that he was a guerrilla fighter and his death a lawful combat casualty.
“After there had been a sentence from the Administrative Tribunal of [the city of] Sincelejo saying he had been wrongfully detained because he wasn’t a guerrilla fighter of the FARC,” Silva said, “they murder him and the criminal proceedings conclude that he was indeed a guerrilla.” Gómez Porto was first a judicial false positive and then a military false positive.
Ramiro Orjuela, an attorney with Colectivo Sociojurídico Orlando Fals Borda, also said in a phone interview that judicial false positives were common in red areas under guerrilla control. “The authorities—the Army, the Police, the Attorney General’s Office—thought everyone there was part of the guerrilla: they were the water for the fish,” Orjuela said. This expression, commonly used by the Colombian security forces, refers to the famous Mao Zedong quote that guerrillas must move among the civilian population as fish swim in water and to the U.S. counter-insurgency tactics’ riposte that the water should therefore have to be drained to suffocate the fish.
Orjuela has worked in the region of San Vicente del Caguán, a historical stronghold of the FARC where a previous peace negotiation was held between 1998 and 2002, and said of the experience: “Truckloads of people were arrested, sometimes 30 or 40 at a time. In [the municipality of] La Uribe they detained the municipal ombudsman, the priest, the doctor… Everyone was seen as one of them.”
The authorities used to conduct something that was popularly known as a “miraculous catch of fish” because it was as massive and indiscriminate as fishing with nets (indiscriminate, massive kidnappings by the guerrillas were also described this way). “They would use paid witnesses or give money to the local bum and accuse half the town of being guerrillas of the FARC. And they would catch 20, 30 or 50 people: there were massive raids. And the absolute majority of those people were absolved,” said Orjuela. But those who weren’t, now face a legal void.
Pearl, the peace negotiator, thinks that if the special peace tribunal is correctly set up with full capacity to conduct investigations, and if the “judges are serious,” they should be able to correct some of the sins of the ordinary justice system. This would mean going beyond the peace agreement by declaring that someone was wrongfully convicted, and thus creating legal precedent in the new system for such a possibility.
But this is risky: those who were wrongfully convicted have to prove their innocence showing the legal cases against them (which still stand) were flawed. And because the judges know some of those who make this claim will be lying they will need to be convinced. If they’re not, there are innocents who might end up serving long prison sentences for lying to the court while those who actually committed war crimes don’t even set a foot in prison.
About Isabel Caballero-Samper
Isabel is a Colombian anthropologist pursuing a master’s degree in journalism and Latin American and Caribbean studies at NYU. Before moving to New York she was a researcher for Colombia's National Center of Historic Memory, where she worked on projects on sexual violence as a war crime, the gender aspects of the Colombian armed conflict and the symbolic reparation of victims through the collection of their life histories. Her beat topics are memory and the legacies of armed conflict, sexual and gender violence and social justice.