1. On February 6, 2004, the Member States of the Organization of American States (OAS), meeting in the Permanent Council, unanimously expressed their “unequivocal support for the efforts of the Government of President Álvaro Uribe Vélez to find a firm and lasting peace” in the Republic of Colombia, as well as their interest in the Organization accompanying these efforts (Resolution CP/RES. 859 (1397/04) ”Support to the Peace Process in Colombia). The Permanent Council’s resolution highlights the need to “ensure that the role of the OAS is fully consistent with the obligations of its Member States with respect to the effective exercise of human rights and international humanitarian law” and invites the Inter-American Commission on Human Rights (IACHR) to provide advisory services to the MAPP/OAS Mission. From July 11 to 17, 2004, a delegation of the IACHR headed by Vice-President and Rapporteur for Colombia, Susana Villarán, and the Executive Secretary of the IACHR, Santiago A. Canton, travelled to Colombia to examine the initiatives for the demobilization of illegal armed groups as well as the applicable legal regime and mechanisms aimed at ensuring that the process unfolds in keeping with the State’s international obligations. Subsequent to its visit, the IACHR adopted a report on the question of the negotiations between armed actors and the Government of Colombia and the challenges vis-à-vis the State’s international obligations in the area of human rights.
2. The four-decade internal armed conflict in Colombia is extremely complex and involves high incidences of violence. In the last 15 years, the excesses committed by the parties in the internal armed conflict have taken the form of serious violations of human rights and/or international humanitarian law against the civilian population. The IACHR has repeatedly stated its concern over the commission of crimes that continue to exacerbate the humanitarian crisis affecting more than two million persons, and that has caused hundreds of thousands of victims.
3. This is a situation that demands solutions, the search for which cannot be further delayed. Nonetheless, the road to peaceful coexistence is not simple: successive governments have failed in their efforts to eradicate the violence or have had only partial or relative successes. The demobilization mechanisms have not been accompanied by comprehensive measures to provide relief to the victims of the violence nor to clarify the many criminal acts that remain unpunished, and therefore the factors generating the conflict in large measure persist. In addition, many of those who have benefited from past demobilizations have been victims of retaliatory attacks and others have eventually chosen to join other illegal armed groups, re-engaging in the conflict. In any event, the mechanisms for demobilizing armed groups have not had the impact required to break the circle of violence in Colombia. Given this context, the complexity of the situation will no doubt require extraordinary efforts to regain peace and ensure the rule of law for all Colombians.
4. After the election and inauguration of President Álvaro Uribe Vélez in August 2002, some leaders of the Autodefensas Unidas de Colombia (AUC) made public their intent to negotiate terms for the demobilization of their forces. One of the main issues discussed by the parties –and in public debate— related to the incentives for demobilization in terms of procedural benefits. The current legal framework established by Law 418 of 1997 (which was extended by Congress by Law 782 in December 2002) provides, inter alia, that those who have been involved in conduct constituting atrocious acts of ferocity or barbarism, terrorism, kidnapping, genocide, and homicide when the victim is hors de combat cannot benefit from a cessation of procedure (cesación de procedimiento), a resolution of preclusion of the investigation (resolución de preclusión de la instrucción), or a resolution of dismissal (resolución inhibitoria) because of their demobilization. Therefore AUC members either accused, or convicted of, the commission of these sorts of crimes might not be eligible to benefit from the mechanisms to extinguish penalties provided for by the current legal framework for individual and collective demobilizations. In response to this situation there are several legislative proposals advocating alternatives for the demobilization of the AUC, the applicable judicial procedures, and possible ways of making reparation to the victims of the conflict. However, there are questions on whether these alternative proposals are truly consistent with the framework of the State’s international obligations with respect to truth, justice, and reparation.
5. In particular, the international community has identified a series of guidelines with respect to truth, justice, and reparations that draw on the experiences of different societies and the principles of law reflected in the obligation of states to administer justice in keeping with international law. The experiences in this hemisphere in the context of peacemaking efforts have led both the Commission and the Inter-American Court of Human Rights to interpret, among other things, the obligation of the Member States to ensure compatibility of recourse to the granting of amnesties or pardons for persons who have risen up in arms against the State with the State’s obligation to clarify, punish, and make reparation for violations of human rights and international humanitarian law.
6. Whenever the conduct of those who participate in the armed conflict results in the commission of crimes against humanity, war crimes and/or human rights violations the States have, in-keeping with customary international law and treaty law, the peremptory obligation to investigate the facts and prosecute and punish the persons responsible. These are imprescriptable crimes of international law, not subject to amnesty, which, as they have not been duly clarified, may give rise to the international responsibility of the State and open the door to universal jurisdiction to establish the individual criminal liability of the persons involved. Whenever amnesty laws or similar legislative measures render ineffective and meaningless the obligation of the States party to ensure judicial clarification of the facts of crimes of international law, they are incompatible with the American Convention, independent of whether the violations in question may be attributed to State agents or private persons. The victims of crimes committed during an armed conflict have the right to adequate reparation for the harm suffered, which should take the form of individual measures of restitution, compensation, and rehabilitation, measures of satisfaction generally, and guarantees of non-repetition, making it possible to re-establish their status quo ante, without discrimination.
7. The above-mentioned principles and rules provide the parameters to be taken into account at the moment of judging whether the demobilization process of armed illegal groups satisfies the requirements of truth, justice and reparation for the victims of the armed conflict in Colombia.
8. The process of dialogue between the so-called “negotiating high command” of the AUC and the Government continued to progress considerably in the course of 2004 in terms of the demobilization of several fronts in various regions of the country. However the lack of a legislative definition of the procedural benefits to be obtained by those who decide to join an eventual demobilization, and therefore of guarantees of truth, justice and reparation for the victims of the conflict, persists. This negotiation co-exists with the regime of individual and collective demobilization in force for all the members of illegal armed groups who wish to return to civilian life that is regulated by Decree 128 of 2003. The gaps and ambiguities in the terms of Decree 128 give rise to a lack of clarity as to the scope of the procedural benefits to which the demobilized would have a right, and juridical insecurity for all the parties involved –in particular the victims of human rights violations and their next-of-kin. The high levels of impunity and the ineffectiveness of the administration of justice in Colombia – which have been the subject of repeated pronouncements and recommendations by the IACHR and the Office of the United Nations High Commissioner for Human Rights — demand that the future investigation of the crimes perpetrated by the parties to the conflict be supported by clear provisions that are consistent with the international obligations of the State.
9. On November 25, 2003, the process commenced whereby 874 members of the so-called “Bloque Cacique Nutibara” laid down their arms. It was one of the most aggressive urban fronts of the AUC which for several years had been operating in the city of Medellin. This process of demobilization agreed upon at the local level pursuant to the legal framework established by Laws 418 and 782 and Decree 128 was considered a pilot scheme for the collective demobilization of AUC members. The testimony, complaints, and information received during the in loco visit conducted in July 2004 indicate that despite a certain decline in the number of incidents of political violence, paramilitary domination persists in certain comunas of Medellín, along with acts of violence, harassment, and intimidation against those who do not express support for the project backed by these groups. An examination of criminal records by the Prosecutor´s Office in Medellin suggests that the demobilized of the Bloque Cacique Nutibara are not representative of the more violent elements within the AUC. Consequently any expectation for the positive impact of their demobilization on the violent actions of the armed groups should be greeted with caution.
10. The AUC negotiating high command and the administration of President Uribe continue the process of dialogue, which is aimed at demobilizing a number of paramilitary fronts by 2004 and 2005. On May 13, 2004, an agreement was reached on the establishment of a zona de ubicación in Tierralta, Córdoba, which was implemented through Resolution 092 of 2004. This Resolution had the effect – under the provisions of Law 782 of 2002— of suspending the arrest warrants for the members of the AUC who are within the perimeters of its 368 km2 area during the period it is in effect. The agreement does not establish guarantees of security for the civilian population living within the perimeter of the 368 km2 of the zona de ubicación who –beyond the presence of members of the MAPP/OAS Mission— are deprived of the presence of the military forces or National Police and of the judicial and oversight authorities. In December 2004, members of the Frente Catatumbo, which is part of the Bloque Norte of the AUC led by Salvatore Mancuso, demobilized and two additional AUC fronts gathered in areas designated by the Government.
11. The IACHR is aware, given the magnitude, duration, and complexity of the internal armed conflict in Colombia, that there are no easy answers, and that the search for political solutions to deactivate the factors and parties in the internal armed conflict is fundamental. Despite the commitment to a cessation of hostilities by the AUC, acts of violence against, and intimidation of, the civilian population continue. Deactivating the complex network of illegal armed groups that have joined the armed conflict in Colombia requires putting an end to the constant succession of acts of violence by paramilitary groups –whether or not part of the process— and the guerrillas, against the civilian population; and ensuring these crimes are properly clarified in the courts.
12. The members of the paramilitary fronts involved in the process of demobilization have been repeatedly accused of responsibility for serious violations of human rights and international humanitarian law. In some cases the Inter-American Commission and the Inter-American Court have established the responsibility of the State, as these grave violations of the American Convention on Human Rights were perpetrated with the acquiescence of State agents. The organs of the inter-American system, the Office of the United Nations High Commissioner for Human Rights, and human rights organizations in Colombia and abroad have made statements to the effect that the process of demobilization should be accompanied by guarantees of respect for the international obligations of the State.
13. For the time being, the process has moved forward without the support of a comprehensive legal framework that clarifies the conditions under which persons responsible for committing human rights violations are to demobilize, or their relationship with the peace process. No efforts have yet been identified to establish the truth of what has happened and the degree of official involvement in paramilitarism. In addition, the issue of reparation for the harm caused to the victims of acts of violence and displacement, including control over lands, does not appear to be addressed with the appropriate levels of participation. The conditions under which the members of illegal armed groups join the demobilization process should be closely monitored to ensure it does not become a conduit towards impunity.
14. In view of the foregoing, the IACHR recommends the adoption of a comprehensive legal framework that establishes clear conditions for the demobilization of illegal armed groups, in accordance with the State’s international obligations. This legal framework should provide for the situation of those who have joined processes for individual and collective demobilization to clarify their situation. Moreover, genuine mechanisms of participation should be put in place, in secure conditions, for the victims of the conflict, so as to ensure access to truth, justice, and reparation.