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.

COLOMBIA

1.                 On February 20, 2002, President Andrés Pastrana announced that he was ending three years of peace negotiations with armed dissident groups in the Republic of Colombia.  Some six months later, on August 7, 2002, he handed over the reins of government to Alvaro Uribe Vélez, the Colombian people’s choice for the Presidency in the most recent presidential elections.  One of the first measures of government adopted by the new President was that of declaring a state of emergency.

2.                 This report was prepared on the basis of information compiled from reliable sources, including official sources, and other information compiled by the Inter-American Commission on Human Rights (IACHR) in discharging its mandate of promoting and protecting human rights in the region, and was approved in accordance with Article 57(1)(h) of the Rules of Procedure of the IACHR.[1]  On December 16, 2002, a draft version of this report was sent to the Government of Colombia with a time limit to make observations.  The State received the Commission’s diagnostic in a constructive spirit and submitted its observations on January 24, 2003.[2]

3.                 The Government’s response is based primarily on the guidelines established by the “National Policy for Human Rights” included in the “National Development Plan”.  This Plan, soon to be considered by the Colombian Congress, pursues the so-called policy of “democratic security” with a view to achieving sustainable economic growth, social equality and an increase in transparency and efficiency in State management.[3]  The observations made by the State have been pondered and incorporated, where pertinent, to the final version of the report.

4.                 This report has been prepared following the criteria established in the introduction to Chapter IV of the Annual Report.  In view of the situation of human rights in Colombia, this analysis could be framed under one or more of the criteria included therein.  The framework could either refer, for instance, to the effects of the state of emergency or the persistence of structural situations in member States where, for different reasons, the enjoyment of the human rights enshrined in the American Convention is affected.

5.                 The IACHR observes that the violence derived from Colombia’s internal armed conflict and the degradation in the behavior of the parties involved continues to affect compliance with the fundamental rights to life, humane treatment, movement and residence and effective judicial protection.  The State acknowledged that the acts of violence perpetrated by criminal organizations, the succession of murders and kidnappings and the profusion of illegal activities are “a threat to the Nation’s viability”.[4]

6.                 Despite the concerns expressed and recommendations made by the IACHR and other international organizations charged with monitoring respect for human rights, the civilian population remains manifestly vulnerable to violence, in particular, indigenous, Afro-Colombian and displaced communities.  This problem is compounded by the threats and fatal assaults perpetrated against human rights defenders and social leaders.

7.                 The Commission will refer firstly to a number of positive steps taken by the State in the area of human rights.  Secondly, it will address the general situation of human rights and international humanitarian law in various regions of Colombia.  The Commission will then single out specific areas of concern, such as forced displacement, the situation of the human rights defenders, trade union leaders and journalists, and the administration of justice.  The Commission will then discuss the state of emergency.

I.        MEASURES ADOPTED IN THE AREA OF HUMAN RIGHTS

8.                 On April 17, 2002, the IACHR announced its satisfaction with the decision of the Colombian Constitutional Court declaring Law 684 of 2001 on Defense and National Security to be unconstitutional.  The Constitutional Court adopted its decision as a response to three claims filed by private citizens, organizations of civil society, and certain state agencies, specifically the Procuraduria General de la Nacion and the Defensoria del Pueblo.[5]

9.                 The IACHR has recognized that in times of armed conflict and other situations that pose serious threats to law and order, it is the right and the duty of OAS member States to protect both the civilian population and their own institutional structures.  However, over the years the IACHR has stated that the measures adopted to achieve those ends must be implemented while also respecting the rights and basic guarantees set forth in international human rights law.  Both before and after the passage of Law 684, the IACHR publicly stated its position that several of its provisions did not comply with the standards for the administration of justice set forth in the American Convention on Human Rights and other applicable instruments.[6]

10.             On August 5, 2002, subsequent to the Constitutional Court’s review, President Pastrana deposited the instrument of ratification of the Statute of the International Criminal Court,[7] which raised the ICC Statute to the rank of constitutional law in Colombia.  This commitment on the part of the State is a positive step towards the fulfillment of the IACHR’s recommendations made in connection with the prosecution of individuals responsible for crimes against humanity committed during the armed conflict.  However, the Commission must voice its concern regarding the true impact of this commitment in the light of declarations made at the moment of ratification, establishing–inter alia—a number of limitations in terms of temporal application and interpretation of the Statute’s provisions.

11.             On another note, the Commission would like to draw attention to the willingness of the Colombian government and of the petitioners to sign a formal friendly settlement agreement in furtherance of Report 112/02, issued under Article 50 of the American Convention on Human Rights in Case 11,141, relating to the massacre of children in Villatina, a district of Medellín, Colombia.  The IACHR is monitoring compliance with the commitments undertaken in the agreement and at the proper time will publish a report on how the process has unfolded.  During the 116^th sessions of the IACHR the State and other petitioners also committed to exploring the possibility of arriving at a friendly settlement in four more individual cases.

12.             Also in relation to the fulfillment of the State’s obligations under the Inter-American system, the IACHR must encourage the continuation of the State’s efforts to implement special programs to protect beneficiaries of precautionary measures and provisional measures granted by the IACHR and the Inter-American Court of Human Rights, respectively: in particular those granted in favor of victims and witnesses of human rights violations, human rights defenders, justice operators, trade union leaders, and vulnerable groups such as indigenous peoples and afrodescendants.

13.             The “Program for the Protection of Witnesses and Persons under Threat” provides for security measures and travel within Colombia and abroad, emergency humanitarian relief, communications systems and protection for the premises of human rights organizations for its beneficiaries.[8]  This program is an important, albeit still insufficient, response in light of the mounting threats, acts of harassment and constant attacks against human rights defenders, as well as the casualties registered during 2002.

II.          THE HUMAN RIGHTS SITUATION IN GENERAL

14.             Periodically, throughout 2002, the Commission has continued to receive urgent actions, complaints and information of all kinds reporting the repeated violation of the right to life in Colombia.  The excesses committed in the context of the internal armed conflict remain a source of gross violations of human rights and of international humanitarian law against the civilian population.

15.             The number of casualties of political violence has continued to escalate during the year 2002.  Statistics show that while the political violence claimed an average of 10 lives per day in 1988, that figure has increased steadily since; the daily death toll from the political violence in 2002 was expected to reach 20 victims/day.[9]

16.             As in years past, a significant percentage of the violations of the right to life were committed during the course of paramilitary attacks against the civilian population with a view to causing terror and forced displacement.  In many cases the execution of the victims is preceded by torture and cruel, inhumane and degrading treatment.  However, during in 2002 there was a sharp increase in the incidence of threats followed by selective assassinations of human rights defenders, trade union leaders, mayors and municipal council members, indigenous and peasant leaders, candidates for elective office –including members of the Unión Patriótica- and demobilized combatants.  The Commission is concerned by the fact that the number of forced disappearances has also climbed.

17.            The Colombian State indicates in its observations that illegal armed groups have not only expanded their membership but also increased in number.  Specifically, the State reports that the FARC and the ELN have doubled their armed forces in the last decade and that the Autodefensas (AUC) currently add up to more than 10,000 members.

18.             The impact of the serious abuses committed by the actors in the armed conflict has continued to grow, and by now has spread into large areas of the national territory, with varying degrees of intensity.  The departments with the highest rates of violations of human rights and international humanitarian law include Antioquia, Bolivar, Casanare, Cauca, Arauca, Santander, Magdalena, Chocó, Norte de Santander, Putumayo, Sucre and Valle.  According to CINEP’s statistics, the highest incidence of violence continued to affect the Department of Antioquia.

19.             The year 2002 has also seen a marked increase in violations of international humanitarian law committed by armed dissident groups, chiefly the FARC.  These groups have been involved in numerous assaults, massacres, extrajudicial executions, attacks and threats against the civilian population.

20.             In their attacks, the armed dissident groups have violated basic principles of international humanitarian law, such as target discrimination and proportionality, and have inflicted numerous casualties among the civilian population.  The indiscriminate use of mortars and car bombs has claimed many civilian lives.  According to statistics reported by CINEP and Justicia y Paz, the FARC were responsible for 43% of international humanitarian law violations registered between April and June 2002.

21.             The IACHR has repeatedly referred to the gravity of the growing number of attacks perpetrated against the civilian population in Colombia.  Such attacks constitute flagrant violations of international humanitarian law and the perpetrators and their accomplices may be individually accountable before international criminal courts pursuant to international law.  States have the obligation to adopt all necessary measures to clarify the facts and prosecute and punish those responsible.  The IACHR expressed dismay at the attack perpetrated early on the morning of Sunday, April 7, 2002, in the La Granja district of the city of Villavicencio, Meta department, which claimed ten civilian casualties and wounded many others.[10] The Commission publicly repudiated these acts of indiscriminate violence employed to terrorize the civilian population.

22.             The IACHR vigorously condemned the indiscriminate attacks launched against the civilian population in the municipalities of Bojayá and Vigía del Fuerte in the department of El Chocó on May 2, 2002.[11]  On that occasion the FARC launched a crude mortar into Bellavista’s Catholic chapel where the civilian population had sought shelter during a confrontation between this armed dissident group and the AUC.  This violation of the principles of international humanitarian law left more than one hundred civilian casualties–many of them children—and approximately 80 wounded.  After an in loco observation, the Office of the UN High Commissioner on Human Rights issued a report attributing responsibility for the death toll and destruction to the FARC-EP.[12]  The report also refers to the responsibility of the AUC and of the Colombian State in the incident vis-à-vis the early warnings issued by the Defensoria del Pueblo, the Procuraduria General de la Nacion and the UN Office itself regarding the situation in the area of the lower Atrato river and the State’s obligation to prevent human rights violations and ensure the respect of such rights.  There is concern for the humanitarian situation of the civilian population of that area of the Department of Choco which has been forced into displacement in the midst of the confrontation between the FARC and the AUC.  The Commission also received information on the consequences of the counter offensive launched by the Army, consisting of aerial attacks which affected the civilian population in Bellavista, Vigia del Fuerte and the afrodescendant communities in Napipi and Murindo.

23.             The armed dissident groups continue to pursue a strategy of taking hostages in order to exchange them for money with which to finance their activities. The victims include mayors, members of the Church, judicial authorities, humanitarian workers, journalists, and foreign nationals.  According to the information gathered by Fundación País Libre, more than 150 hostages died as a consequence of the duration and extreme conditions of their captivity.[13]

24.             The IACHR publicly condemned the kidnapping of Antioquia’s Governor, Guillermo Gaviria, and his peace advisor and former Defense Minister, Gilberto Echeverry, on April 21, 2002.  The FARC kidnapped them while they were engaged in peace and reconciliation efforts in the town of Caicedo.  The Commission urged the group holding Governor Gaviria, his advisor Gilberto Echeverry, and twelve deputies from the department of El Valle, kidnapped two weeks earlier, to respect their lives, security and health, and to release them immediately and unconditionally.[14] The Commission also took the opportunity to reiterate its condemnation of former presidential candidate Ingrid Betancourt’s kidnapping.

25.             The IACHR also condemned the car-bomb attack targeted at then presidential candidate Alvaro Uribe Vélez in the city of Barranquilla on Sunday, April 14, 2002.  The attack left four casualties and many wounded.

26.             The Commission continues to be seriously concerned by the violence committed by paramilitary groups and periodically receives complaints about acts and omissions by State agents that allegedly contribute to the commission of gross violations to human rights and humanitarian law.  These acts could generate individual criminal responsibility for those involved, pursuant to international law. According to the available information, illegal armed groups continue to gain strength and to expand geographically despite the recommendations issued by the IACHR and the UN regarding the duty of the State to ensure they are disbanded.

27.             The department of Cauca is still under the influence of several AUC groups which have now expanded up to the departments of Meta and Arauca.  The AUC’s presence in the Atrato river and in the communities of Turbo, Apartadó and Quibdó, continues.  The Commission has granted a series of precautionary measures –in the case of Apartadó even requested provisional measures to the Inter-American Court of Human Rights—in order to request the State to protect these communities, under constant threat from the paramilitary groups that control these areas.

28.             The AUC have continued to conduct “cleansing” operations and cause the displacement of the civilian populations whom they accuse of aiding, or sympathizing with, the armed dissident groups.  In the areas under paramilitary control, these groups operate illegal checkpoints to verify the identity of citizens circulating and restrict the movement of supplies and fuel.  Often, the establishment of these checkpoints precedes the commission of disappearances, extrajudicial executions and displacements.  In some cases, these checkpoints operate in areas with a heavy military presence.

29.             In its observations, the State remarks that the purpose of ensuring security in the context of human rights and civil participation as a priority of the current administration.  The State considers that the notion of “democratic security” encompasses the concept of national security, linked to its ability to penalize and dissuade those who breach the law and protect all citizens, without discrimination, without prejudice to democracy and the State’s legitimacy.  Its strategy is directed to strengthening the security forces with a view to regaining control of the national territory, protecting domestic infrastructure, dismantling drug production, improving the administration of justice and attending to depressed areas and conflict zones.[15]

30.             The Commission must indicate though that it continues to receive complaints on the negligent or acquiescent conduct of the Army and even its direct participation in human right violations committed by paramilitaries.  The Commission has repeatedly pronounced upon the responsibility of the State by virtue of the ties between members of the security forces and paramilitary groups in Colombia in the commission of acts that constitute violations of human rights and international humanitarian law.  Regrettably, there are no signs of the situation having improved during 2002.  Paramilitary groups continue to operate with impunity throughout much of Colombia, despite the military presence.  Violence is running high and still escalating, forcing the civilian population into displacement.  All this suggests that the acquiescence and collaboration of State agents vis-à-vis these groups persist.

31.             Confronted with this panorama, the Commission observes that despite the fact that human rights violations committed by paramilitary groups are frequently investigated by ordinary courts, in many cases the corresponding arrest warrants have not been executed, especially when they concern their commanders as perpetrators.[16]  This situation has contributed to the perpetuation of an environment of impunity and insecurity.  In fact during 2002 the AUC leader Carlos Castaño has continued his routine contact with the national and international media without prejudice to the numerous arrest warrants issued against him for gross human rights violations.

IV.          FORCED DISPLACEMENT

32.             More than two million people have been forced into displacement as a consequence of the violence imposed by illegal armed groups seeking political support by force, in vast areas of the territory.  Some other communities are kept under siege, as another manifestation of the humanitarian crisis.  In both cases, the civilian population endures the consequences of official neglect or negligence or of partial, delayed and insufficient responses.

33.             In its observations, the State acknowledges that given its magnitude and characteristics, forced displacement is the main humanitarian problem resulting from the armed conflict.  Forced displacement, the State notes, has increased poverty and vulnerability of the affected population that is impeded from carrying on with their lives.  The State indicates that 31 out of 100 displaced households suffer from extreme poverty and 54 are on the brink of indigence.  Official statistics indicate a total of 890,000 displaced persons between 1995 and 2002, with a sustained increase of a 45% per semester.[17]

34.             CODHES’ reports reveal that in the first quarter of 2002 more than 90 thousand people–an average of one thousand per day- were forced to abandon their homes because of massacres, selective assassinations, massive displacements or because the armed factions held their communities under siege.[18]  Some 35% of the displaced during this period were forced out of their land in massive numbers reaching an average of 1300 persons.  The State indicates that 48% of displacement victims are women, 45% children between the ages of 5 and 14 and that afro-Colombian and indigenous peoples add up to 17,7% and 3,75% of the total, respectively.[19]

35.             Afro-Colombian and indigenous communities in the regions of Cauca, Sierra Nevada de Santa Marta, Serrania del Perija and vast areas of Antioquia, Tolima, Nariño, Putumayo, Cordoba and Choco are amongst the human groups seriously affected by displacement.  Hundreds of civil servants have been forced to resign or abandon their place of residence because of the influence of illegal armed groups.  School teachers, members of medical missions, trade union leaders and members of the Church join the constant influx of displaced civilians into the major cities.

36.             Although the number of departments affected by massive displacements decreased from 19 in 2001 to five in 2002, the figures released by CODHES confirm the geographical growth of this phenomena: the 26 departments receiving displaced populations in 2001 increased to 31 in the first months of 2002.  Statistics show that 321 municipalities (29.47% of the total) received displaced persons between January and March 2002.  These figures reveal that during this period the actors in the armed conflict engaged in fewer but more intense military actions and that forced displacement is still a main strategy in the conflict.  The departments and municipalities receiving the largest influx of displaced persons during this period were Magdalena (16,586), Bogotá D.C. (14,000), Norte de Santander (13,178), Antioquia (7,212), Sucre (3,640), Caldas (3,601), Cundinamarca (3,238), Tolima (3,000), Córdoba (2,649), Cauca (2,604), Bolivar (2,576), Meta (2,476), Huila (2,113), Risaralda (1,473), and Nariño (1,484).  According to figures released by CODHES, some instances of mass displacements took place between July and September 2002; however, they were fewer than in previous periods.  It has been suggested that the figures indicate the intention to favor the commission of selective murders over the carrying out of massacres.

37.             The State acknowledges the geographical expansion of the phenomenon.  It indicates that the 480 municipalities that were either involved in the reception or expulsion of population in the year 2000 increased to 819 in 2001 and to 887 during the first semester of 2002.  Consequently, 87% of the Colombian territory is affected by forced displacement events.[20]  The State identifies 20 critical areas from where 68% of the population is being displaced, which coincide with the zones where the armed conflict has reached its highest intensity.  As a result, the chances for return have reduced from 37% in 2000 to 11% in 2001 and to only 2% during the first semester of 2002.[21]

38.             Coordination and execution of forced-displacement policies is provided for under Law 387/97, and hinges upon the so called Red de Solidaridad Social[22] This agency operates pursuant to the directives in document CONPES 3057 and the Strategic Plan for the 2000-2002 period, together with the Unidad Técnica Conjunta (UTC) as technical-advisor, and with the support of the Liaison Office of the Office of the United Nations High Commissioner for Refugees (UNHCR).

39.             For some years now, the humanitarian situation has prompted the national and international community to press for full enforcement of Act No. 387/97 by adopting implementing legislation and regulations.  The Act itself provides that those regulations were to have been in place within six months of its approval, back in 1997.[23]  In view of the evident delay, a series of tutelas were filed with the Constitutional Court in search of judicial protection. In August 2000, the Court handed down its decision ordering the implementation of Act No. 387/97 within a three-month period.[24]

40.             On December 12, 2000, as a reaction to the Constitutional Court’s decision, Decree 2569 was issued to regulate the portion of Act No. 387/97 concerning the responsibilities of the Red de Solidaridad Social as the coordinating agency for the National Information and Comprehensive Services System for Populations Displaced by Violence, the definition of the condition of displaced person and that condition’s duration, the Displaced Persons Registration System, and the terms to be enrolled in it, the National Information, Emergency Humanitarian Relief, Socio-economic Stabilization Network and the functions of the municipal, district and departmental committees for comprehensive services to those displaced by the violence.

41.             It is still not clear whether the mechanisms created under the regulatory decree are effective and adequate to cope with the magnitude of the humanitarian catastrophe created by the phenomenon of forced displacement in Colombia.  Assistance to the displaced appears to be focused mainly on emergency humanitarian aid that in great measure continues to remain in the hands of the international community, particularly the ICRC.  The information available suggests that there is still no adequate program to protect the displaced and no effective measures have been taken to prevent discrimination and stigmatization against them.

42.             Despite the long time that has elapsed since the entry into force of the Act and the adoption of its regulations, the latter do not appear to have come about as a result of a process of consultation and agreement with displaced communities and human rights organizations.  Such cooperation could have contributed to the effective implementation of these programs.

43.             In its observations, the Colombian State affirms that the definite solution to forced displacement demands the restitution and consolidation of the democratic authority throughout the domestic territory.  It also states its willingness to create the conditions necessary to prevent and deal with the issue of forced displacement according to the directives of international humanitarian law, human rights law and the United Nations Principles on Forced Displacement. The State remarks that its primary objective is that of preventing forced displacement and protecting communities at risk, including those that resist displacement.  It indicates its intention to strengthen the current early warning system and the humanitarian aid supplied to the victims of the conflict.  It indicates that the supply of humanitarian aid shall be targeted at the consequences of death of a family member, permanent disability and the loss of property; assisting minors in their education; and providing psychological treatment to ensure the recovery of the victims.[25]

44.             A second element in the State’s policy consists in providing emergency humanitarian assistance by establishing temporary dwellings tailored to the needs of vulnerable groups.  As a third element, the State refers to generating conditions for the resettlement of the displaced population when viable.  It indicates that the effort will start with the implementation of a pilot test for the return of 30,000 displaced peasant families. This project would be based on a scheme of subsides for housing, the issuance of titles to land, the support of productive projects and generation of income, and the promotion of training.[26].

45.             Finally, the State indicates its intention to strengthen the national system of assistance to the displaced through the work of the National Council for the Assistance of the Displaced Population and the tools supporting the system: the National Information Network, the Single Registration System and the System to Establish the Magnitude of the Displacement.  The Red de Solidaridad Social will continue to coordinate the institutional structure, guarantee national and regional communication, and take advantage of the technical, logistic and financial resources provided by domestic and international sources.[27]  The State also indicated that Decree No. 2007 of 2000, which came into force in the year 2002, has established the tutela as a legal remedy to seek judicial protection and ensure the rights of displaced persons.  In 2002 alone, 937 tutelas were filed.[28]

46.             The IACHR cannot but welcome the promotion of institutional policies contemplating forced displacement and its consequences in light of the State’s international obligations. However, and without prejudice to the significance of such policies, the IACHR is still concerned about their effective implementation in view of past and current difficulties in alleviating the humanitarian crisis.  The Commission will continue observing and evaluating the efficacy of measures adopted by the State pursuant to Act No. 387/97 in light of the needs of the displaced and the Guiding Principles on Internal Displacement.

V.              ADMINISTRATION OF JUSTICE

47.             The Commission is deeply preoccupied by the high incidence of impunity that persists in Colombia, the judicial practices regarding the assignment of competences, the violence or threats against those who investigate or report human rights violations and the lack of progress in the investigation of cases where the responsibility of State agents is involved.

48.             Through the years the IACHR has shown its support for the work of the National Human Rights Unit created in 1955 under the Office of the Attorney General of the Nation for the purpose of centralizing and speeding up judicial inquiries into violations of human rights and international humanitarian law.  In its first six years of operation, the National Human Rights Unit made significant progress in this area, including the investigation and prosecution of cases involving the participation of State agents and illegal groups.  The prosecutors in the Unit played a fundamental role in instituting formal investigations of high-ranking military officers for their alleged collaboration with paramilitary groups.

49.             However, the Commission notes that during the year 2002 no significant progress was made in the many investigations into serious human rights violations.  Worse still, there have been instances in which progress on investigations has been discouraged or impaired through acts of omission or outright censorship.  Some of these instances, including the hasty removal of individual prosecutors on the verge of bringing formal charges against State agents, particularly high-ranking Army officers, notoriously linked to the investigation of human rights violations have caused serious repercussions in the press and the condemnation of the human rights community.[29]

50.             The Commission is deeply concerned by this development and by the weakening of an agency that, in combination with the Procuraduria General de la Nacion, the Defensoria del Pueblo and the Constitutional Court, performs a vital role in investigating human rights violations in Colombia.  In its response, the State indicates that the activities undertaken by the Office of the General Prosecutor have been exclusively aimed at consolidating the work of the National Human Rights Unit. The IACHR hopes that this alleged support will translate into the independence, impartiality and effectiveness of the National Human Rights Unit in its task of clarifying human rights violations. 

VI.      THE SITUATION OF HUMAN RIGHTS DEFENDERS AND SOCIAL LEADERS

          A.          The Situation of Human Rights Defenders

51.             During the year 2002 human rights defenders continued to be the targets of assassinations, multiple threats and harassment to disrupt their task of the promotion and protection of human rights in Colombia.  In view of the seriousness and urgency of some of the situations brought to the Commission’s attention, and based on the information provided, the Commission decided to invoke the precautionary measure mechanism provided under Article 25 of its Rules of Procedure to protect the lives and safety of persons, groups of persons or members of human rights organizations.

52.             On February 14, 2002 attorney María del Carmen Florez,[30] representative of the municipality of Mutatá and co-founder of the organization Fundación Jurídica Colombiana, based in Apartado, was killed.  Maria del Carmen Florez was actively involved in the representation of the disappeared Alcides Torres Arias’ family and their appearance in a hearing scheduled for the 114^th sessions of the IACHR. The IACHR publicly condemned the assassination of this human rights defender and granted precautionary measures to protect the rest of the members of Fundacion Juridica Colombiana and the Alcides Torres Arias’ next of kin.

53.             On July 29, 2002, the IACHR granted precautionary measures for 14 human rights defenders and social leaders active in the Department of Arauca.  It requested the Colombian State to adopt special measures of protection in favor of the beneficiaries, including Mr. José Rusbell Lara, a member of the Joel Sierra Regional Human Rights Committee.  Regrettably, Mr. Lara was assassinated on November 18, 2002, at the municipal seat of Tame.[31]  In spite of the IACHR’s request, the available information indicates that at the time of the attack, effective measures for Mr. Lara’s protection had not been implemented.

54.             The Commission publicly deplored the assassination of this human rights defender and regretted that the Colombian State had failed to comply with its obligation to effectively implement measures of protection.  The Commission urged the State to investigate this crime thoroughly and to prosecute and punish those responsible.  It also called upon the State to ensure that the rest of the precautionary measure beneficiaries were granted adequate protection.

55.             On July 19, 2002, the IACHR granted precautionary measures in favor of the members of ANDAS working in the Department of Santander.  ANDAS is a non-governmental organization devoted to promoting the human rights of Colombia’s displaced population.  The beneficiaries were identified in a document issued by the Frente Urbano Fidel Castaño Gil, Bloque Central Bolívar, of the AUC threatening their lives and demanding their departure from the region.

56.             On August 6, 2002, the IACHR again invoked the mechanism of precautionary measures, this time in favor of members of the Permanent Human Rights Committee and the CUT, all of whom had been directly threatened by the AUC.

57.             The Commission continues to be seriously concerned about the situation of several human rights organizations whose members are beneficiaries of precautionary measures or provisional measures granted by the Inter-American Court of Human Rights.  Although the measures ordered remain in effect, these persons are still targets of threats and harassment.  The beneficiaries of these measures include members of organizations like ASFADDES, Comite de Derechos Humanos del Meta, Colectivo de Abogados José Alvear Restrepo, AFAVIT, Commite de Solidaridad con los Presos Politicos, Organizacion Femenina Popular, CREDHOS, NOMADSEC, and SEMBRAR.

58.             In addition to granting these precautionary measures, the Commission has requested information from the State concerning other persons or groups of persons who have been threatened because of their human rights activities.  The Commission will continue observing the situation of human rights defenders in Colombia.

          B.          Social and trade union leaders

59.             During 2002 the IACHR continued to receive reports about the violence perpetrated against members of peasant organizations and other social leaders in various regions of Colombia.  In some cases, the seriousness of the threats and the history of violence against these organizations and leaders lead to the adoption of precautionary measures in their favor.

60.             Unfortunately, the ferocious attacks on the lives of organized labor leaders in Colombia have not relented.  The IACHR is particularly concerned by the assassination of a number of members of USO, despite the fact that the leaders of the organizations are under the protection of precautionary measures granted by the Commission.

61.             The situation of Jesús González, a member of the executive committee and human rights director of the Central Unitaria de Trabajadores (CUT) and a member of the Committee for Risk Evaluation and Regulation of the Special Program to Protect Witnesses and Threatened Persons that operates in the institutional sphere of the State, merits special consideration.  Mr. González and his body guards were allegedly the victims of a direct act of aggression perpetrated by agents of the State in the city of Cali.  Considering the circumstances, the Commission must express its concern for the alleged involvement of security forces in an attack against a union leader who has received protection from the State for a number of years and who partakes of the official mechanism provided to dispense protection to other members of the trade unions, human rights defenders, journalists and other persons on whose behalf precautionary measures are frequently ordered by the IACHR regarding Colombia.

IV.          THE DECLARATION OF STATE OF EMERGENCY

62.             It is public knowledge that the attacks and acts of violence immediately preceding and coinciding with the inauguration of President Alvaro Uribe Vélez on August 7, 2002 –which included the FARCs’ attacks on the Palacio de Nariño and the Congress— triggered a declaration of a state of emergency four days later.  The State implemented this measure by issuing a series of decrees creating the so-called rehabilitation and consolidation areas within the national territory and establishing a number of restrictions, among them restrictions barring foreign journalists from certain areas.

63.             On August 14, 2002, Colombia informed the Permanent Council that a state of emergency had been declared in accordance with the provisions of its Constitution.  It explained that the state of emergency was declared because events had occurred and circumstances persisted which, in the opinion of the Administration of Dr. Álvaro Uribe, threatened the security of the citizenry and the institutions of government and warranted the adoption of measures that could not be instituted through the exercise of ordinary authority.  In notifying the Secretary General of this act of government and reporting it to the Permanent Council, the State confirmed its intention to honor its obligations under Article 27 of the American Convention.  Since its adoption in August 2002 the state of emergency has been renewed in December 2003 and February 2003.

64.             As already established by the organs of the inter-American system, States not only have the right but also the obligation to protect their citizens by combating criminal acts in the context of respect for the rule of law, legality, and international human rights obligations, so as to strike a balance between the enjoyment of individual liberties and the general welfare.  The obligations undertaken under the American Convention on Human Rights and the International Covenant of Civil and Political Rights require that the measures adopted and applied by the States parties in states of emergency be dictated by the principles of necessity, exceptionality, temporality and proportionality.

65.             Further, the Inter-American Court has held that from Article 27(1) comes the general requirement that in any state of emergency “there be appropriate means to control the measures taken, so that they are proportionate to the needs and do not exceed the strict limits imposed by the Convention or derived from it”[32] and that “the judicial remedies that must be considered to be essential within the meaning of Article 27(2) are those that ordinarily will effectively guarantee the full exercise of the rights and freedoms protected by that provision and whose denial or restriction would endanger their full enjoyment.”[33]

66.             The IACHR has taken note of the adoption of Legislative Decree 2002, of September 11, 2002, whereby measures are adopted to control law and order and rehabilitation and consolidation zones are established.  It has also taken note of the Constitutional Court’s ruling of October 2, 2002 declaring Executive Order 1837 –the declaration of a state of emergency- to be consistent with the principles of the Constitution.  In that ruling, the Constitutional Court indicated that the President has the role of determining the adequacy of the ordinary means available to the authorities to cope with a disturbance and that it did not find any manifest miscalculations of the seriousness of the situation.  It also reaffirmed that this presidential authority is neither absolute nor arbitrary and that it must observe the criteria established in international treaties on human rights and international humanitarian law ratified by Colombia.[34]  In a subsequent decision, C-1024/2002, the Constitutional Court declared invalid some sections of the above mentioned Decree and it subjected the implementation of other provisions to certain conditions. In its judgement C-939 of 2002 the Court also reviewed Decree 1900 of 2002 regarding criminal and procedural measures to be adopted against criminal organizations and found it to be in accordance with the Constitution.

67.             The IACHR will continue to monitor the measures adopted during the state of emergency in Colombia and the application of the applicable legislation based on the parameters of the American Convention and the principles of international human rights law and international humanitarian law vis-à-vis necessity, proportionality and nondiscrimination.

VII.            FINAL OBSERVATIONS

68.             The Commission is deeply concerned by the impact that the violence perpetrated by the actors in the internal armed conflict continues to have upon the respect of fundamental human rights of the civilian population and, in particular, the most vulnerable sectors: indigenous and Afro-Colombian communities, the displaced, defenders of human rights and social leaders.  The collapse of the dialogue between the State and the armed dissident groups, and the new Administration’s so-called policy of democratic security have introduced new dynamics into the armed conflict.

69.             Lastly, the Commission would like to call upon the parties, through their structures of command and control, to respect, carry out and enforce the principles governing hostilities, as embodied in international humanitarian law, with particular emphasis on the rules that afford protection to the civilian population.