Perverse Incentives: Extrajudicial Killings in Colombia

Abstract

Perverse Incentives:Extrajudicial Killings in Colombia Elvira María Restrepo (bio) "[Jacqueline] Castillo was looking for her brother, Jaime, who had disappeared a few months earlier near Bogotá, more than 600km away. His was the last body they pulled out. When he was placed on the ground next to her, Castillo fell to her knees, screaming. The doctors told her he was a member of one of the many guerrilla armies that had been fighting the Colombian state since the mid-1960s and that he had been killed in combat. But Castillo knew that was impossible. Her brother had been a homeless beggar, not a guerrilla insurgent."1 ________ On September 27, 2008, the cover of Colombia's weekly Semana unveiled the existence of extrajudicial killings by the Public Force under the title "Falsos Positivos Mortales?"2 Much of the mainstream media, with some nuances, echoed a scandal that could no longer be hidden. The term "false positives" was adopted because the victims were innocent people extrajudicially killed by members of the Colombian Public Force and then falsely labeled enemy combatants. Today we know that thousands of civilians were lured under false pretenses to remote locations and killed by members of the Public Force. Following the killings, the crime scene was manipulated; victims were dressed as armed guerrillas to pass their deaths off as combat killings. The perpetrators obtained rewards in exchange. The victims—mostly poor, unemployed, and sometimes even disabled civilians—were then labeled to be non-identified buried in communal graves, like Jaime Castillo. He was one of the nineteen Falsos Positivos of Soacha, the case that initially resonated most strongly, thanks to the courageous and dogged activism of the mothers of these victims (Madres de Los Falsos Positivos—MAFAPO) and Soacha's proximity to the capital.3 This paper argues that the cascade of revelations and judicial decisions from the new Comprehensive System of Truth, Justice, Reparation, and Non-Repetition (CS), born out of the 2016 Peace Agreement with the FARC, coupled with a vibrant civil society and the existing domestic and international opportunity structures clearly exposed a long-standing Public Force perverse culture in which citizens are seen as internal enemies, while security is equated with the presence of the Public Force.4 It also argues that Colombia's new Special Jurisdiction for Peace (Jurisdicción Especial para la Paz—JEP in Spanish), one of the three institutions that comprise the CS, introduces a new understanding of accountability in international criminal law that has the potential to shift transitional justice practice. Finally, this paper warns about the perils of leaving the security sector unreformed. Colombia's Public Force is the second largest and [End Page 219] most professionalized in Latin America, and the strongest ally of the United States in a region where political instability looms large and transnational organized crime is rampant. Extrajudicial executions amid protracted conflict: heroes and villains The Falsos Positivos have been documented by CINEP since the 1980s.5 But it was only in the 2000s that these crimes were uncovered more systematically by victims' groups, national NGOs such as Coordinación Colombia-Europa-Estados Unidos (CCEEU), and international organizations.6 While estimated numbers vary and legal ambiguities regarding their crime categorization abound, the atrocities against the Falsos Positivos reached the Inter-American Commission on Human Rights (IACHR) a year before the media scandal erupted due to the impunity that prevailed in Colombia. In October 2007, following the IACHR hearing, the Washington Office on Latin America issued a report urging the US State Department and Congress to pursue stricter enforcement of human rights conditions.7 At the time, Colombia was one of the three largest recipients of U.S. military aid, and Plan Colombia—a U.S. aid initiative aimed at reducing the production of illegal drugs—was as its zenith.8 In February 2021, a decision by the JEP prioritized the investigation of Case 03, related to "deaths unlawfully presented as combat casualties by State agents," and publicized the existence of at least 6,402 cases, not 2,248-the official Attorney's Office count.9 It also stated that 78 percent of the historic Falsos Positivos documented between 1978 and...