The approval of the new Military Criminal Code by the Colombian Congress in June oh this year represents the fulfillment of one of the Human Rights policy aims announced by the Colombian Government on December 10, 1998.

This is the culmination of a long and productive process of debate and deliberations within governmental and state agencies, including expressions of local and international opinion as well as the involvement of multilateral Human Rights bodies. This process began in 1993 under the Administration of President Gaviria with the formation of a Commission created by the Administration of President samper. The Bill was laid before the Colombian Congress in September 1997. It was approved in the firts round of debates in December of that year and was passed on for final amendments, agreed between the government and the military command, to be presented in the plenary sessions. President Andrés Pastrana's administration supported and promoted the Bill in the 1998-1999 legislative term, where it obtained Congressional approval.

The new Code contains important new rules as to the institucional role that the especialized military courts for the armed forces must play, exactly new provisons regarding military and police fuero, following Article 2 sets out the crteris for deciding on jurisdictional competency justice. With the enactment of the new Code, the members of the armed forces must be tried either before ordinary or military court, the number of cleary set statutory criteria must be met. In first place, the crime committed must clearly belong to those traditionaly considered as military crimes. Thusly, a crime aforementioned requisite will be tried before ordinary courts. Only those crimes that con properly be said to be military in nature will be tried before military courts.

The establishment of these criteria notwithstanding, article 3 goes somewhat further in stipulating that three specific crimes -genocide, forced disappearance of individuals and torture, all of which have been classified under international doctrine as severe Human Rights violations- shall fall exclusively under the jurisdiction of ordinary justice and are explicity excluded from military and police criminal fueros, effectively eliminating the possibility of jurisdictional conflicts regarding them. In relation to these crimes, they may never be defended with allegations of their being performed "in the line of duty" because they are irrevocably excluded from the protective duties assigned to the Armed Forces and Police, even under the most difficult circumstances. For this reason, when such crimes are committed by members of the Armed Forces and the Police, they are understood as having been performed by common citizens, and are not covered by the fuero of those authorities.

Articles 2 and 3, with the Constitutional Court sentence, and new legal developments, will define the scope of military fuero under our legal structure with greater precision. The reform has established a separation between military and police jurisdictional duties and the duties of command. The system has been reformed, eliminating the judicial role of commanders in proceeding regarding their subordinates.

Competency disputes between Military Criminal Justice and Ordinary Criminal Justice

Conflicts resolved

Source: Supreme Juducial Council. The Supreme Judicial Council resolves any and all competency conflicts presented regarding cases in wich there is dispute over which jurisdiction, military or ordinary, should tray the case.

Following the decision of the Constitucional Court, the civil dimension is increased in military criminal trials, including full participation in trial advocacy in the search for the truth. Regarding civil responsibility, it is laid down that according to article 90 of the Constitution, in dealing with crimes related to military and police service, the State shall compensate the victims of such acts, and many demand the value of the damages cused from the responsible party, in cases of severe harm and serious culpability.

"Due obedience" is regulated as a reason for justification. Existing satndards from current criminal codes are reproduced, which from current criminal codes are reproduced, which legislate that this argument for excusing responsibility can solely be alleged in the case of legitimate orders issued by the competent authorities. This norm upholds the principle which bars allegations of the receipt of illegitimate orders as an excuse or justification of criminal acts. At the same time, disobedience is further defined, clarifying that it can only be induced by legitimate orders.

Procedures for trial have been simplified, the procedure of Consejo de Guerra has been eliminated, and the Especial procedures and those of the Corte Marcial has been retained. Criminal Military Court shall not consider the involvement of spokesment or juries, and sentences are issued based on law. Special or abbreviated Procedure shall be followed for those military crimes which are more directly related to the internal discipline of the military corps.

Under the current conditions of conflict in the country and in the face or tha complicated challenges faced by the military, the approval of this reform shows the Colombian Government's determination to strive for the full respect of Human Rights on the part of all institutions and in the actions of the Armed Forces.