by Equipo Jurídico Pueblos and Gearóid Ó Loingsigh
An escape plan in question
On the night of March 21st and the early morning of the 22nd, the forces of the Colombian state stormed into the Modelo prison in Bogotá, murdering 23 prisoners and injuring 83, in response to the protests and demands of the prisoners regarding the appalling sanitary conditions that reign in the prisons and are a matter of concern regarding a future outbreak of Covid-19. The director of the INPEC (Colombian Prison Service) and the Minister for Justice, Margarita Cabello, tried to justify the massacre, alleging that they hadn’t sought to put down the protests but rather to prevent a mass escape plan they had uncovered some days previously.
This lie was uncritically repeated by the entire media. Caracol (TV and Radio channel) even published recordings of prisoners speaking by phone. But anyone with any knowledge of the dynamics in prison who listens to the fragmented conversations filtered to the press would notice that one couldn’t reach the conclusion from them that there was an escape plan being hatched. Moreover, even if it were true, more questions arise than answers given.
Firstly: If the state had prior knowledge of communications about which it repeatedly claimed that on Tuesday at 7.30 am, before roll call, a coordinated act (an escape according to the Minister) would take place in various prisons and the prisoners supposedly warned each other “not to go ahead before time as you will fuck it up”, why was the simultaneous police and military operation rolled out on a different day and time?
When did the authorities deduce that the date for the presumptive escape plan (of 5,000 people, according to the director of the INPEC, General Mujica), had been brought forward? Moreover, what type of unusual escape plan, such as that which had supposedly been uncovered, could be brought forward at the last minute by its planners without a single message between them notifying the abrupt change being detected?
Secondly: If an escape plan was known about a number of days beforehand, why did they not take any preventative measures against it and prevent the loss of life? The INPEC frequently transfers prisoners far from their home towns for any infraction of the prison rules or simply as a retaliatory measure or way of silencing them. This is one of the most frequent complaints made in Colombian prisons. Could they not have done the same to prevent an escape?
Thirdly: In the recordings the following can be heard “right brothers, Alcatraz, Picaleña, Barne, Cómbita, Tramacúa, Modelo, we are all here, my brothers, may God bless you, you all know, Tuesday morning, roll call at 7.30 in the morning.” If it really were an escape plan why was the supposed attempt only made in the Modelo in Bogotá? Why not in Tramacúa or Barne, for example, where the population did not even take part in the cacerolazo (banging of pots and pans), did nothing happen inside these prisons on the night of March 21st?
What had been publicly announced was a coordinated national cacerolazo – as was evident – in various prisons. In the announcement which was sent around various social networks, the place and time of it was indicated: March 21st at 9 pm. The same time and day in which state forces (including the INPEC) laid siege to the Picota, flew over and dropped CS gas on the Pedregal or put down the protests in the women’s prison (El Buen Pastor) in Bogotá. It is clear from this that the state had intentionally aimed to silence the inmate’s protests.
Clearly, the situation in the Modelo National Prison got out of control and what happened inside has to be clarified. The recordings with which the government tries to justify the massacre only add to the confusion and help avoid taking responsibility.
Protocols on the use of force in the context of confinement: Was the use of force on March 21st in the Modelo National Prison constitutional and proportional?
The version of a frustrated escape plan (which would benefit 5,000 people), without doubt represents a pre-emptive defence strategy on the part of the state. Despite the initial doubts we have put forward about this version, and the reaction of the state, for argument’s sake we will accept it.
To resolve the question as to whether the use of force was proportional or constitutional, it is, to begin with, worth recalling that the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas adopted by the Inter-American System of Human Rights, stipulate that in line with international human rights law, “appropriate and effective measures shall be adopted to prevent violence amongst persons deprived of liberty, or between persons deprived of liberty and the personnel.” Amongst them:
e. Set up early warning mechanisms to prevent crises or emergencies;
f. Promote mediation and the peaceful resolution of internal conflicts; (Principle XXIII-1)
In this case, the Minister for Justice and General Mujica both stated that they had knowledge of an escape plan that they frustrated in a timely fashion. However, in light of the aforementioned principles, they gave no evidence to show the actions of the Colombian state aimed at preventing the crisis which was the context for those who aimed to escape prison. On the contrary, there are clear signs that the institutional silence in the face of the denunciations and the desperate calls from the prison population and human rights organisations for effective measures for containing Covid-19 in the prisons made the protests announced for March 21st entirely foreseeable.
In the case of Carandirú, Brazil, (Case 11.291) – which is quite similar to the case in question – the Inter-American Commission on Human Rights was of the opinion in its Merits Reports (Report 34/2000) that the state violated its duty to guarantee the life and personal integrity of the people in custody. It laid the blame in this matter on the fact that ignorance of the duty to guarantee human rights in prison created the conditions for the riots in the prison, whose escalation could have been prevented by adopting de-escalation strategies to reduce friction with the inmates and activating the negotiating capacity of the state (para. 61).
Regarding the state’s reaction and the use of force to control the riot, which took the lives of 111 people in Carandirú, the commission pointed out:
“62. That the State has the right and the duty to put down a prison riot was maintained by the Court in the Neira Alegría case. The riot must be suppressed through such strategies and actions as are needed to bring it under control with minimal harm to the life and physical integrity of the inmates and minimal risk to law enforcement officials.
“63. The repression by the police, as described in the petition and confirmed by the official investigation and the opinion of experts, was conducted with absolute disregard for the life of the inmates, demonstrating a retaliatory and punitive attitude, wholly at variance with the guarantees that the police should offer. The Commission notes that the deaths did not take place in situations of self-defense or to disarm the inmates since the prisoners’ weapons were of the homemade variety and had been thrown down on to the patio when the police entered. No firearms were found in the possession of the rioters nor had any shots been fired against the police. Their initially violent attitude was quickly overcome by the entry en masse of the heavily armed police.”
These considerations are in line with the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas1 (Principle XXIII-2), which amongst others, holds that:
“The personnel of places of deprivation of liberty shall not use force and other coercive means, save exceptionally and proportionally, in serious, urgent and necessary cases as a last resort after having previously exhausted all other options, and for the time and to the extent strictly necessary in order to ensure security, internal order, the protection of the fundamental rights of persons deprived of liberty, the personnel, or the visitors.
“The personnel shall be forbidden to use firearms or other lethal weapons inside places of deprivation of liberty, except when strictly unavoidable in order to protect the lives of persons.
“In all circumstances, the use of force and of firearms, or any other means used to counteract violence or emergencies, shall be subject to the supervision of the competent authority.”
These dispositions and considerations raised in the OAS’s Inter-American System of Human Rights, which the Colombian state is bound by, leads us, once again, to question the use of force in the Modelo National Prison, as not only were the conditions created that led to the justified discontent of the detainees, but that on March 21st negotiation measures had not been exhausted (they hadn’t even been tried). It is clear that in this case coercion was not the exception, nor last resort.
Not even under the premise of frustrating a supposed escape plan can the disproportionate use of force in the Modelo prison be justified. No state can open fire on detainees trying to flee the prison. The Minister for Justice, General Mujica, and the National Police, know, but did not inform public opinion, that the extrajudicial execution of prisoners in this context is internationally forbidden. According to the Inter-American Commission in its Report on the Human Rights of Persons Deprived of Liberty in the Americas (2011)2 “… there is no ethical or legal justification for a so‐called “escape law” legitimizing or empowering prison guards to automatically fire on prisoners attempting to escape” and in which it also warned that
“In cases of flight or escape of persons deprived of their liberty, the State must employ all non‐lethal means at its disposal to recapture the offenders and may only use lethal force in cases of imminent danger in which prisoners attempting to escape react against prison guards or third parties with violent means that threaten their lives. Therefore, there is no ethical or legal justification for a so‐called ‘escape law’ legitimizing or empowering prison guards to automatically fire on prisoners attempting to escape.”
According to the information that has circulated in the media and on social networks, when the INPEC’s shock troops entered, the prisoners in the Modelo were unarmed; however, they were attacked with lethal and less-lethal weapons. In one of the videos circulating on social networks, it can be seen that some inmates managed to take a rifle issued to the security forces and by that time the situation had developed to such a point that there were already a number of inmates dead and injured and negotiation or any other way of controlling the situation was impossible.
And it is precisely for the path that events can lead to, that the Inter-American Commission reiterated in its 2015 Annual Report,3 Chapter IV.A, that “given the irreversible nature of the possible consequences of the use of force, the IAHCR conceives of it as ‘a last resort that qualitatively and quantitatively limited, is intended to prevent a more serious occurrence than that caused by the state’s reaction’.”
In the majority of videos and voice recordings that came from inside the prison, the detainees complained about the military treatment the protest was receiving. They denounced the lack of value placed on their lives by the state. A combat situation cannot be seen, as the state has tried to show. There were not two equivalent forces engaged in combat. What can be seen is indignation, the anguish of the prisoners which could have been controlled by less coercive means.
Furthermore, these videos show that the prisoners were murdered inside the prison and not outside of it and none of those murdered can be seen to have been carrying any weapons that could justify an attack on them of such proportions.
The images do not show an escape plan, in which one would expect to be able to identify at least some prisoners who were certain about what to do in the midst of the chaos. On the contrary, what can be seen is desperate, confused people trying to defend themselves from an attack by the state. The sense of danger can be felt and an evident collective anguish at the effect of a pandemic in places that are really just warehouses for people.
This sense of abandonment and panic that is felt in the prisons now is just natural and human and can be seen in other prisons around the world such as in Sri Lanka, Italy and Brazil. The sense of hopelessness in the prisons cannot be put in doubt and it ill behoves the state to repress and massacre prisoners who are afraid of dying from the Corona Virus in the midst of the most absolute neglect.
There are still many doubts regarding what happened in the Modelo prison. The clarification of the events will depend on the good work of forensic doctors and pathologists, as it would seem that the crime scene was not dealt with adequately.
An additional element for analysis in the case is that eleven of the massacred prisoners in the Modelo were doing time for lesser crimes (of between two and eight years), related to crimes against property, particularly theft, crimes typically associated with poverty. At the same time seven of them are not registered in the official website of the courts in Bogotá, which means they haven’t even been sentenced yet, which means they were not exactly the type of prisoner who would seek to escape, as they were amongst those with the greatest chance of being beneficiaries of alternative measures to prison: one of the demands of the cacerolazo programmed for that day.
Effective containment measures: A valid recourse instead of force
In her intervention, the Minister denied there was a sanitary problem in Colombia’s prisons. The Constitutional Court has a completely different opinion, so much so that in Sentence T-388 of 2013 and later T-762 of 2015 it declared a state of unconstitutional affairs, one that is still being monitored, as the situation has not been dealt with. And for their part, the control and supervisory sanitary bodies have on more than one occasion over the years closed down kitchens and even health clinics in Colombian prisons as they represented a danger to the well-being of the prisoners. Any visitor to a prison, including the relatively modern ones, such as the ERON of the Picota prison in Bogotá, can see rats everywhere. This and other situations such as the lack of clean drinking water, for example, speaks volumes about a real sanitary crisis in the prisons and says a lot about the government’s representative for criminal and prison policy that she would try to deny it in order to minimise the seriousness of the massacre perpetrated in the Modelo National Prison on March 21st.
It is true that to that point there hadn’t been a case of Covid-19 detected in the prisons, though it would seem that this may no longer be the case. However, this does not mean that there will be no virus infections. As of March 23rd (the day after the Minister’s press conference), a total of 277 cases had been reported in the country, 175 of which were people who had traveled outside of the country, 87 others associated with this group and a further 15 whose route of infection was unknown. This means we are at the beginning of an outbreak in the country, so it is premature to assert whether there are positive or negative cases in the prisons.
However, and Minister Cabello is aware of it, any prison in the world, even one which is well-maintained, is prone to disease. According to the World Health Organisation the prevalence of tuberculosis, to mention just one disease, is on occasion up to 100 times greater in the context of imprisonment than in the non-prison population and deaths from this illness can represent up to 25% of the death rate for this illness in a country. This means that everyone accepts that prisons are problematic when it comes to controlling diseases. The prisoners taking part in the protests know this through their own experience, they see how diseases spread amongst them and this explains their fear regarding the spread of Covid-19.
In the protests of March 21st, they asked for basic things, such as disinfectant, masks, gloves, greater control over the entrance of the guards who are a dangerous point of infection due to the frequent movements in and out of the prison and who move around it without any great restrictions. They also asked for something which is logical even in normal times: the decongestion of the prisons, which is pressing in the context of Covid-19.
The prison population is diverse, 4.7% are over the age of 60, 34.6% of all prisoners in Colombia are doing time for sentences of less than five years and of the 121,274 prisoners in the country, 36,334 are on remand, many of them for non-violent crimes. There is room to reduce prison overcrowding, as they did in Iran, where they freed 54,000 prisoners, including some political prisoners. Even in the US, the country with the greatest number of prisoners in the world, where there are over two and a half million prisoners, they have begun to reduce overcrowding in order to contain the Covid-19 virus.
Amongst the measures taken, is the reduction and even elimination of the use of remanding people for minor crimes, including possession of drugs; freedom for prisoners who have short periods left to serve; the use of alternative sanctions; the cancelling of arrest warrants for the non-payment of fines etc. Furthermore, as in other places, they cancelled visits, and implemented a system of free calls for prisoners, something which in our opinion should always be the case, as part of general prison policy.
With these simple measures overcrowding can be reduced and the prison made a more tolerable place for the prisoner. Although in contexts such as the case in Colombia, what need to be overcome are structural social causes that lead people to commit crimes against property or the imprisonment of political oppositionists who dissent from the hegemonic system. The Colombian government, however, as usual opted for repression and murder.
4IAHCHR, Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II.124. Doc5 rev.1, adopted March 7, 2006 para. 64.