CHAPTER IV

HUMAN RIGHTS DEVELOPMENTS IN THE REGION

          INTRODUCTION

1.                 The Inter-American Commission on Human Rights continues its practice of including in its Annual Report to the General Assembly of the Organization of American States a chapter on the situation of human rights in member countries of the Organization, based on the competence assigned to it by the OAS Charter, the American Convention on Human Rights, and the Commission's Statute and Rules of Procedure.  This practice has served the purpose of providing the OAS updated information on the human rights situation in those countries that had been the subject of the Commission's special attention; and in some cases, to report on a particular event that had taken place or was emerging or developing at the close of its reporting cycle. 

2.                 In this chapter, the Commission reiterates its interest in receiving the cooperation of the member states to identify the measures taken by their governments that display a commitment to improving the observance of human rights.  Without prejudice to this, the IACHR reflects, in various chapters of this report, the positive advances achieved by many states of the hemisphere in the area of human rights.

          CRITERIA

3.                 The Annual Report of the IACHR for 1997 set forth five criteria pre-established by the Commission to identify the member states of the OAS whose human rights practices merited special attention, and which consequently should be included in its Chapter IV. 

1.       The first criterion encompasses those states ruled by governments that have not come to power through popular elections, by secret, genuine, periodic, and free suffrage, according to internationally accepted standards and principles.  The Commission has repeatedly pointed out that representative democracy and its mechanisms are essential for achieving the rule of law and respect for human rights.  As for those states that do not observe the political rights enshrined in the American Declaration and the American Convention, the Commission fulfills its duty to inform the other OAS members states as to the human rights situation of the population.

2.       The second criterion concerns states where the free exercise of the rights set forth in the American Convention or American Declaration have been, in effect, suspended totally or in part, by virtue of the imposition of exceptional measures, such as state of emergency, state of siege, suspension of guarantees, or exceptional security measures, and the like. 

3.       The third criterion to justify the inclusion in this chapter of a particular state is when there is clear and convincing evidence that a state commits massive and grave violations of the human rights guaranteed in the American Convention, the American Declaration, and all other applicable human rights instruments.  In so doing, the Commission highlights the fundamental rights that cannot be suspended; thus it is especially concerned about violations such as extrajudicial executions, torture, and forced disappearances.  Thus, when the Commission receives credible communications denouncing such violations by a particular state which are attested to or corroborated by the reports or findings of other governmental or intergovernmental bodies and/or of respected national and international human rights organizations, the Commission believes that it has a duty to bring such situations to the attention of the Organization and its member states.

4.       The fourth criterion concerns those states that are in a process of transition from any of the above three situations.

5.       The fifth criterion regards temporary or structural situations that may appear in member states confronted, for various reasons, with situations that seriously affect the enjoyment of fundamental rights enshrined in the American Convention or the American Declaration.  This criterion includes, for example:  grave situations of violations that prevent the proper application of the rule of law; serious institutional crises; processes of institutional change which have negative consequences for human rights; or grave omissions in the adoption of the provisions necessary for the effective exercise of fundamental rights.

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4.                 In accordance with the second criterion mentioned above, the Commission, based on information received from different sources, will describe the exceptional measures adopted in the United States, Guatemala, and Argentina.   

5.                 On September 11, 2001, the United States was the target of an unprecedented terrorist attack. Two passenger airliners were hijacked and flown into the World Trade Center in New York City, destroying both towers and resulting in the deaths of over 3,000 people. Contemporaneously, a third hijacked airliner was flown into the Pentagon in Arlington, Virginia and a fourth airliner crashed near Pittsburgh, Pennsylvania, causing over 200 more fatalities. 

6.                 As a consequence of these tragic events, on September 14, 2001 the President of the United States, invoking his authority of the Constitution and laws of the United States, declared that a national emergency had existed since September 11, 2001. The President also declared his intention to utilize provisions of US law governing the armed forces and the coast guard to respond to the emergency, in accordance with provisions of the National Emergencies Act. On September 18, 2001, the US Congress approved a joint resolution pursuant to the War Powers Resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.” 

7.                 The United States subsequently identified the international terrorist group known as Al Qaeda and its leader, Osama bin Laden, as the principal suspects behind the September 11 attacks. The United States also concluded that the Taliban regime then in control of the state of Afghanistan had provided Osama bin Laden with a safe haven in which to operate and had allowed him to establish terrorist training camps in Afghanistan. Consequently, on October 7, 2001 the United States, with the support of numerous other countries, began military operations against Al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan. These operations were expanded and continued into 2002. Numerous individuals captured in the conflict were subsequently detained and transferred by the United States to its military base at Guantanamo Bay, Cuba.

 8.                 As a further consequence of the September 11, 2001 attacks, on October 26, 2001 the President signed into law the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (US Patriot Act) Act of 2001.” This statute contains extensive provisions which amend or supplement existing US laws in such areas as surveillance of wire, oral and electronic communications, money laundering, border patrol, immigration, and procedures for criminally investigating, prosecuting and punishing suspected terrorists and terrorist organizations.

 9.                 Afterwards, on November 13, 2001, the President issued a “Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” That Order, which has been widely commented on in the United States and abroad, authorized the detention and trial of non-US citizens by a military commission whom the President determines are or have been members of the organization known as al Qaeda, or have engaged in, aided or abetted, or conspired to commit acts of international terrorism, or acts in preparation therefore that have caused, threatened to cause, or have as their aim to cause, injury to or adverse effects on the United States; or have knowingly harbored one or more such individuals. Under the above terms, anyone tried under the Order could be convicted and sentenced upon the concurrence of two-thirds of the members of the commission present at the time of the vote, and would be subject to the imposition of criminal penalties, including life imprisonment and death, without the right to seek any remedy in any court of the United States, or any State thereof, any court of any foreign nation, or any international tribunal. At the writing of this report, the rules on implementation of the above-mentioned Order have not yet been promulgated, and no one has been tried under the provisions contained therein. 

10.                 Available information also indicates that hundreds of individuals have been arrested by the United States government as part of its investigation into the events of September 11, 2001 and detained for prolonged periods, and that the government has declined to publicly identify these individuals. 

11.                 The Commission notes that the United States is a party to the International Covenant on Civil and Political Rights, and that according to the United Nations High Commissioner for Human Rights the United States has not notified the UN Secretary General in accordance with Article 4 of the Covenant of any resort by it to emergency measures that might justify derogation from the United States’ obligations under that treaty. The United States has not ratified the American Convention on Human Rights and therefore was not obliged pursuant to Article 27 of the Convention to notify States Parties, through the Secretary General of the OAS, of any measures it may have taken to derogate from rights protected under the Convention. Nevertheless, as a Member State of the OAS, the United States remains subject to the fundamental rights of individuals as proclaimed in the provisions of the OAS Charter and the American Declaration of the Rights and Duties of Man. Therefore, pursuant to its mandate under Articles 18 and 20 of its Statute, the Commission will continue to monitor this situation insofar as it pertains to the observance and protection of human rights enshrined in the OAS Charter and the American Declaration.

12.             In addition, on July 18, 2001, following the mass escape of prisoners considered highly dangerous, the President of the Republic of Guatemala issued Government Decree 1-2001, published in the Official Gazette of June 20, by which he proclaimed a state of alarm of 30 days throughout Guatemala and ordered the suspension of fundamental rights enshrined in Articles 5 (right to freedom of action), 6 (right to legal detention), 9 (right to interrogation of detainees or prisoners), and 26 (right to freedom of movement) of the Guatemalan Constitution.  That state of alert was extended for 30 days by Government Decree 2-2001 issued by the President of Guatemala on July 17, 2001.

13.             On August 2, 2001, the President of the Republic of Guatemala issued Government Decree 3-2001, by which he proclaimed a state of siege of 30 days in the Department of Totonicapán.  As a result of that proclamation, for the period that it was in effect, the rights recognized in Articles 5, 6, 9, 33, 38(2), and 116(2) of the Guatemalan Constitution were suspended.  The proclamation of the state of siege was due to the public demonstrations held in the Department of Totonicapán to protest against the increase in value added tax, that degenerated into incidents and acts that threatened the security of that department.

14.             The State of Guatemala, pursuant to Article 27 of the American Convention on Human Rights, informed the Secretary General of the OAS both of the proclamation and of extension of the state of alarm contained in Government Decrees 1-2001 and 2-2001, and of the proclamation of the state of siege in the Department of Totonicapán, issued by Government Decree 3-2001.

15.             Furthermore, on December 19, 2001, the Argentine Republic, by Decree 1678/2001, proclaimed a state of siege of 30 days in Argentina.  On this occasion, the Argentine state said that the serious acts of collective violence that occurred in the country caused damages and endangered the life and property of the inhabitants of the republic, on a magnitude tantamount to a state of domestic disorder. Under Article 23 of the Argentine Constitution, “[i]n the event of domestic disorder or foreign attack endangering the full enforcement of this Constitution and of the authorities hereby established, the province or territory which is in a turmoil shall be declared in state of siege and the constitutional guarantees shall be suspended therein.  But during such a suspension the President of the Republic shall not pronounce judgment or apply penalties on his own.  In such case, his power shall be limited, with respect to persons, to their arrest or transfer from one place of the Nation to another, should they not prefer to leave the Argentine territory.”

16.             On December 21, 2001, by Decree 1678/2001, the Government of the Argentine Republic decided to lift the state of siege, and on the same date, by decrees 16/2001, 18/2001, and 20/2001, proclaimed a state of siege of 10 days in the Provinces of Buenos Aires, Entre Ríos, and San Juan at the request of the authorities of said provinces.  The State said that the proclamation of the state of siege was due to the fact that there continued to occur acts of collective violence, such as rioting and looting of different businesses encouraged by organized groups of people, causing damages and endangering people and property on a magnitude tantamount to a state of domestic disorder. The aforesaid state of emergency was suspended on December 31, 2001.

COLOMBIA

1.                 Between December 7 to 13, 2001 the Inter-American Commission on Human Rights (IACHR)[1] conducted an on-site visit to the Republic of Colombia, at the invitation President Andrés Pastrana’s administration. Its purpose was to observe the human rights situation in that country.  The current context in Colombia responds to several of the criteria consulted by the Commission when deciding to include its views on a the human rights situation in a particular country in Chapter IV of the Annual Report.  The Commission is also in the process of preparing and adopting a fourth report on the situation of human rights in Colombia.  In view of these circumstances, what follows is restricted to the contents of the preliminary observations presented in the press communique released by the end of the in loco visit conducted on December 2001.  The final conclusions and recommendations of the IACHR shall be included in the fourth report which will be duly sent to the State for its observations according to the Rules of Procedure and made public during the year 2002.

2.                 During the visit, the Commission met with officials from the three branches of government, including the President of Colombia, Andrés Pastrana Arango. It also met with non-governmental human rights organizations church representatives, political leaders, journalists and media representatives, representatives of campesino, ethnic, and women’s associations, trade unionists, and other civil society representatives at the national and local levels.  It also received information and testimony on the situation in all regions of the country and particularly in Cundinamarca, Antioquia, Magdalena Medio, Arauca, Valle, Cauca, Putumayo, Nariño, Tolima, and Catatumbo. The full Commission met with presidential candidates Luis Eduardo Garzón, Horacio Serpa Uribe, and Alvaro Uribe Vélez. 

3.                 The Commission would like to underscore the willingness of President Pastrana’s administration to work with the Commission, which in many cases has helped to save lives and has promoted the legitimacy of the values of the rule of law. Specifically, that willingness is reflected in programs to protect human rights defenders, trade unionists, and journalists and the promotion of justice administration efforts.

4.                 To adequately analyze the current situation in Colombia, it is necessary to take into account the dynamics of the armed conflict and the phenomenon of widespread violence, in a context in which, for various reasons, the State’s presence in certain areas of the national territory is weak or even nonexistent. Moreover, the strong ties between armed actors and drug trafficking further complicate this landscape.

5.                 The IACHR acknowledges the efforts of the Colombian government and civil society to institute a peace process. In the Commission’s extensive experience in the Hemisphere, peace processes make a significant contribution to reducing human rights violations. The Commission supports the efforts to achieve peace in Colombia. Nonetheless, it must express its disappointment with the slow progress made in a process that began over three years ago. The Commission reiterates its willingness to help achieve peace in the framework of its powers and repeats its desire for the Colombian people to enjoy peace, security, and justice in the future. Finally, the IACHR would like to underscore the importance to the peace process of the “Recommendations of the Committee of Notables for the Panel for Dialogue and Negotiation” as an essential instrument for promoting dialogue and resolving the conflict affecting the Colombian people.

6.                 The Commission received information and observed the situation of the civilian population that is a victim of the violence generated by the actors involved in the domestic armed conflict in Colombia. The Commission received testimony from displaced persons and communities from most departments in the country that paints a picture of deplorable acts of violence aimed at terrorizing the civilian population. Those acts, which entail massacres, executions, mutilation, kidnappings, and threats, are directed at peasant men and women, social and political leaders, trade unionists, educators, human rights defenders, and journalists and dramatically affect the most vulnerable sectors of the population, including Black communities, indigenous communities, women, and children. As a result of these actions, in several regions of the country entire populations feel abandoned, given the State’s failure or inability to protect its citizens from violence.

7.                 The Commission observes that many acts of violence against the civilian population are attributable to armed dissident groups; such acts include massacres, indiscriminate and selective summary executions, hostage taking, kidnappings for ransom, indiscriminate use of antipersonnel mines, and recruitment of minor boys and girls. Over nearly 40 years of violent activity, these armed groups (which include the FARC and ELN) have irrevocably cost numerous human lives and significantly impaired Colombia’s social, economic, and political development. Peaceful participation in the country’s political life, through its democratic institutions, is the only mechanism that can allow for the peaceful, equitable, and sustainable development of Colombian society. The Commission deplores the serious violations of international humanitarian law perpetrated by armed dissident groups in Colombia, including kidnapping as a customary means of intimidation for economic or other purposes.

8.                 The Commission is very concerned about the paramilitary violence reflected in the commission of massacres, selective murders, extortion, and mass displacement for military, economic, or “social cleansing” purposes. The seriousness of the development of paramilitary activity in Colombia cannot be overstated. In fact, it has introduced an element into the conflict and into society that resorts to the extermination of its opponents as a valid way of conducting politics. In addition, the Commission has received numerous complaints regarding the link between paramilitary and criminal activities. The IACHR notes with concern that paramilitary activity is gaining greater social acceptance in Colombia. Firm, resolute action by democratic sectors is needed to counter increased social support for this scourge.

9.                 The Commission notes that the government has taken certain measures against paramilitary groups leading to the capture and prosecution of some of their members. However, numerous testimonies collected by the IACHR show, on the one hand, that the paramilitary phenomenon continues to grow and, on the other, that indications of very serious cooperation by State agents with those groups persist. The Commission notes in particular the weakness of investigations into illicit ties between paramilitary groups and agents of the security forces. The Commission values President Pastrana’s call to uniformed personnel to “choose between the uniform of the motherland and that of infamy” and hopes for strict compliance with that appeal.

10.             The Commission received information on hundreds of thousands of persons displaced as a result of the violence sponsored by armed groups. This very grave situation forces numerous persons and families —in many cases headed by women— to move throughout the national territory and towards the main cities, where they are added to the ranks of those affected by existing high employment rates. The IACHR recognizes and appreciates the State’s efforts to mitigate the impact of this phenomenon through actions in bodies such as the Social Solidarity Network. Nonetheless, the testimonies collected during the visit show current mechanisms to be insufficient and ineffective in alleviating the direct consequences of leaving one’s place of origin, victims’ deep sense of uprootedness, and the impact on their minor children, many of whose education and future development possibilities are cut short. The situation is especially serious for particularly vulnerable groups, such as indigenous and Black communities, that are forced to abandon their ancestral territory. The Commission also confirmed the occurrence of selective displacements, primarily of educators and trade unionists who have received death threats and are forced to move to other regions, but do not receive any State assistance to compensate for their loss of employment or to continue to pursue their life plan.

11.             The Commission has found that armed dissident groups have children under 18 years of age in their ranks. In some cases, the security forces use minors in auxiliary services, which could lead to abuses and to their possible involvement in the armed struggle.

12.             The Commission feels that the existing impunity for serious violations of human rights and international humanitarian law contributes significantly to the perpetuation of violence. Investigating, prosecuting, and punishing the guilty parties is key to eradicating violence. The IACHR supports the work of officials in protection agencies, including the Office of the Human Rights Ombudsman, the Office of the Attorney General, and the National Human Rights Unit, in which a considerable number of proceedings on serious human rights violations are based. The Commission expressed its concern with the lack of judicial proceedings for many acts of violence against the civilian population, as well as the slow progress or standstill of investigations. Although there are statistics on cases in which security measures regarding lawless groups have been issued, seldom have they led to the corresponding individuals being caught. In this regard, the Commission is surprised by the ease with which self-confessed perpetrators of serious crimes against humanity with outstanding arrest warrants move about the national territory and even feel free to grant the media interviews.

13.             The member states of the Organization of American States, the IACHR, and other intergovernmental agencies have categorically supported the work of persons, groups, and organizations devoted to promoting and protecting human rights and are very concerned by the threats, naming in the media, harassment, assault, murder, and forced disappearance of human rights defenders in Colombia. The Commission feels that attacks on human rights defenders have a grave multiplier effect on human rights violations in the entire population. In 2001, 13 human rights defenders were murdered. When the voice of the persons who denounce murders, torture, kidnappings, and disappearances is suppressed, society as a whole is harmed by the environment of violence and impunity, whose greatest accomplice is silence. The Commission stressed that its concern for human rights defenders is reflected in the numerous proceedings for precautionary measures that it has opened to protect and follow up on the situation of certain defenders and organizations, as well as its visit to Barrancabermeja, where the delegation visited the headquarters of the Organización Femenina Popular and CREDHOS.

14.             The Commission must reiterate its concerns[2] relating to the provisions of Law 684 on national security and defense recently adopted by the Congress as regards the obligations undertaken under the American Convention on Human Rights. The IACHR observes that, if implemented, this standard will undermine the principle of judicial independence and the separation of powers and will support the primacy of military authorities over civilian authorities.  The Commission emphasizes its conviction that States have the right and duty to take the necessary steps to fight agents who produce violence that threatens their populations. However, those strengthened measures should fall in the context of the rule of law and in the parameters established in the American Convention, which are appropriate frameworks for obtaining the security to which the population legitimately aspires. The IACHR considers that the enforcement of standards infused with the national security doctrine is incompatible with that framework.

15.             Freedom of expression is essential for building democracy and achieving peace. The information received on the murder and assault of and threats against journalists is extremely worrisome.  The Commission received information on the existence of a strategy among armed groups, particularly paramilitary groups, aimed at silencing investigative journalists through murder, intimidation, or forced displacement. More journalists have been killed in Colombia in exercising their functions in recent years than in any other country in the region, and the impunity of those crimes helps to perpetuate the violence. Along these same lines, the Commission must express its concern with the grave situation of educators, members of the university community, and trade unionists. The Commission has received multiple complaints of violations of rights enshrined in the American Convention on Human Rights and the Convention of Belém do Pará regarding attacks on the life and personal safety of women.

16.             The IACHR had the opportunity to visit the facilities at the National Model Prison to check on compliance with the protective measures it had issued. The threats made by paramilitary inmates against political prisoners in that penitentiary materialized in an attack last July with a high toll of deaths and injuries, even though the Commission’s precautionary measures were still in effect. In its visit to the prison, the IACHR did not find full compliance with the precautionary measures. The government agreed to begin to build a separating partition by December 31, 2001 to prevent additional acts of violence. The Commission will continue to closely follow security conditions in the jail and compliance with the precautionary measures. Finally, the Commission found that ordinary prisoners live in overcrowded conditions inconsistent with international standards. Many detainees are lodged in the corridors and tunnels of certain sectors of the prison.

17.             During the year 2002 Colombian citizens will express their democratic will by going to the polls to elect their future leaders. The IACHR hopes that the electoral process will be carried out in a peaceful environment involving the exchange of ideas between political leaders and the Colombian people, with full respect for their different opinions. The IACHR will pay special attention to complaints involving intimidation of candidates, their parties, and voters. The presidential candidates reflect a broad spectrum of political opinion in Colombia. It is essential for Colombian democracy that those participating in the democratic political system be effectively protected, to fully comply with the right to participate in politics established in Article 23 of the American Convention.

18.             Finally, given the foregoing analysis, the Commission feels that the observance of fundamental human rights has been seriously impaired in Colombia. Despite the efforts made both in- and outside of the government, the situation has gradually deteriorated since its previous visit in December 1997; this is related in part to the failure to fully comply with the recommendations made by the IACHR on that occasion. The Commission would like to stress that the serious violations of human rights and international humanitarian law that have been and continue to be committed by different actors in the armed conflict constitute crimes under international jurisdiction that are not subject to limitations or amnesty.