Machuca: the Company is also guilty

Gearóid Ó Loingsigh

28/01/2018

On December 19th the Chamber of Cassation at the Supreme Court announced that the
Company Ocensa was also responsable 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 Court had
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

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.
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.