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Colombia: Machuca: the company is also guilty

Gearóid Ó Loingsigh

28 January 2019

On December 19th the Chamber of Cassation at the Supreme Court announced that the company Ocensa was also responsible for the events of the 18th of October 1998 that plunged Machuca   into mourning, following an attack by the ELN on the oil pipeline that left 84 dead and many injured.

The judgement  was  foreseeable.  The Supreme Court had already sentenced the ELN for wilful negligence (Dolus Eventualis)(1)  i.e. the guerrillas could foresee the result of the attack and did not care, on the contrary they decided to go ahead with the act, aware of the possible outcome.  In my book, Machuca, published in 2017, I argued that this was not the case, as amongst the dead and the afflicted were family members and acquaintances of the guerrillas who placed the explosive charge and it is highly unlikely that someone would so light-heartedly accept the death of their relatives.

In October last year, a ceremony was held to mark the 20th anniversary of the tragedy.  President Duque took part, but it was very low profile.Given the crisis in the talks with the ELN, I had expected the government to go all out against this guerrilla organisation and give greater publicity to the issue.  They didn't do so.  It is most likely that Duque knew that the oil company would be found guilty two months later and it would look bad to highlight the issue.  In the end, they opted for saying nothing about the company, remaining silent, even after the publication of the judgement a few days before Christmas killing all discussion of it.

The company's responsibility is related, amongst other reasons, to the location of the tube and the lack of foresight and capacity to respond to the events, something I also argued in my book.  Now we have to revisit the issue of criminal responsibility.  In the book, I argued that the ELN was guilty of manslaughter and not intentional homicide as the Courthad stated.   The judgement of the Civil Chamber places the previous findings in the spotlight again.  Its relevance is that it directly implicates public functionaries and the oil company.If part of the problem centres around the location of the pipeline and the lack of prevention.  Who decided to place the pipeline there?  Who drew up the company's Contingency Plan?  Neither of these decisions were in compliance with Colombian or international regulations.  So the question arises, which Ocensa functionaries will be tried?  And taking into account that the state approved all of the company's actions, which public servants will be tried for their part in this act of manslaughter?

It   is   worth   pointing   out   that   despite   the   recommendation   of   the environmental authority, Corantioquia to move the pipeline or a sizeable part of the town, it remains in the same place and consequently the tragedy could repeat itself even by accident.  It is also noteworthy that Machuca's health outpost and that of many of the nearby towns do not have the capacity to deal with another tragedy of such a nature; and the road, which has improved a little, continues to be wanting, bearing in mind that the delay in ambulances getting there was a key factor in the deaths of victims with severe burns.

Now, 20 years later, the state has not taken the necessary steps to respond to such a tragedy and Machuca and other towns are vulnerable to a repeat of the tragedy that occurred in October 1998.  Neither the state nor the company live up to best international practice.

The company never wanted to acknowledge its part in the events and forced the victims to fight for 20 years to obtain a little justice.  It is worth remembering that the ELN acknowledged its responsibility three days after the attack, after initially denying it due to false information provided by the commander in the area, alias Julian, who later went over the the FARC and was killed in combat.

Looking at the judgement, one of the reasons it reached the Chamber of Cassation, has to do with the sums awarded in a previous judgement and now that they have increased the amounts awarded, we should be clear about it, they are derisory.

I do not know what the victims think, but if you look at the profits of the company, which has announced on its website that in 2023 it expects an operational profit of 1.5 billion dollars and compare it to the miserable amounts awarded by the Court, it can only be concluded that in the midst of their sorrow, the state and the company continue to mock the victims.   They were useful to the government's discourse against the ELN, but not any more.   Twenty years after the tragedy, both the company and the state should accept their responsibility in the events.


(1) Legal terms between jurisdictions are not always directly translatable, especially when dealing not only with differences between Common Law systems but also different languages.

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