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.          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.

On the basis of the criteria set forth above, the Commission has decided to include five member states: Colombia, Cuba, Guatemala, Haiti, and Venezuela.

3.       In 2003, the internal armed conflict and its consequences continued to have an impact on the enjoyment of basic human rights in the Republic of Colombia.  As in previous years, this situation meets the criteria set out in the introduction to Chapter IV of the Annual Report of the IACHR.  These criteria are applicable as a whole and, in particular, with regard to the persistence of cyclical or structural situations in member states which, for various reasons, are confronting situations that seriously affect the enjoyment of the basic rights embodied in the American Convention.  Consequently, the Commission has approved this summary of its views on the situation.  The Commission will elaborate on these views in a special report on the human rights situation in Colombia, which is being prepared along with this one.

4.        In 2003 the Inter-American Commission on Human Rights continued to devote special attention to the human rights situation in Guatemala in light of the fifth criterion.  Among other activities, it made an on-site visit from March 24-29, 2003, and wrote and adopted a special report on the country. In the report titled Justice and social inclusion:  The challenges of democracy in Guatemala, the Commission set down its observations, conclusions, and recommendations on the human rights situation in Guatemala, especially as regards the administration of justice and citizen security, as well as the situation of human rights defenders, indigenous peoples, women, children, and freedom of expression.  Accordingly, within this chapter only a summary of the major events and recognitions of the CIDH are included.

5.         Regarding the situation in Cuba, the Commission has taken special account of the first criterion because of the absence of free elections under internationally accepted standards, which undermines the right to political participation enshrined in Article XX of the American Declaration of the Rights and Duties of Man. Since the IACHR has decided to embark on the preparation of a comprehensive report on the human rights situation in Cuba, this Annual Report will merely include a summary of the most relevant events of the past year.

6.          In 2003, in view of the fifth criterion presented, the Inter-American Commission on Human Rights followed with special interest the human rights situation in Guatemala. In that connection, among other activities it made an on-site visit to Guatemala from March 24 to 29, 2003, and prepared and adopted a special country report. In the report, Justice and Social Inclusion:  Challenges of Democracy in Guatemala, the Commission set forth its observations, conclusions, and recommendations on the human rights situation in Guatemala, particularly regarding the administration of justice and citizen security, as well as the situation of human rights defenders, indigenous peoples, women, children, and freedom of expression. Consequently, this chapter gives only a summary of the principal events and the Commission’s assessments.

7.         The Inter-American Commission on Human Rights has decided to include considerations on the Republic of Haiti in this chapter.  The country’s human rights practices deserve special attention as it can be said that its situation is covered by the fifth criterion of the 1997 Annual Report of the IACHR and mentioned earlier.  Since, in 2003, the Commission made several visits there and is in the process of preparing a comprehensive report on the human rights situation in Haiti, this chapter will simply mention the major events of 2003.

8.          The Commission considers that the current situation in Venezuela meets the fifth criterion discussed by the Commission for including the analysis of a member country’s human rights situation in Chapter IV. During the course of the year, the Commission approved the “Report on the Situation of Human Rights in Venezuela,” which gives detailed consideration to the human rights situation in Venezuela.  For that reason, this chapter will only include a summary of the major events of 2003 and the Commission’s views thereon.

COLOMBIA

9.         In 2003 the internal armed conflict and its consequences have continued to restrict the enjoyment of basic human rights in Colombia. This situation continues to be reflected, as in prior years, in the framework of the criteria set forth in the introduction to Chapter IV of the Annual Report of the IACHR, which are all applicable, especially 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.  The Commission therefore has approved this summary of its findings on the situation, pursuant to the procedure established in Article 57(1)(h) of its Rules of Procedure,[1] for inclusion in its Annual Report.  On November 15, 2003 the IACHR sent a copy of the draft report to the State with a time limit to present observations.  The State received the Commission’s assessment positively and presented its observations in writing on December 16, 2003.[2]  These considerations will be presented in greater detail in a special report on the human rights situation in Colombia, which is being prepared in parallel.

10.             The IACHR must begin its summary by highlighting progress achieved in the human rights area, including two decisions of Colombia’s Constitutional Court that contribute to the establishment of legal machinery for the State’s compliance with its international obligations in the justice field and prevent the violation of human rights established in the American Convention on Human Rights[3] and prevent violation of the right to life and physical integrity through compliance with the precautionary measures called for by the Commission in accordance with Article 25 of its Rules of Procedure.[4] The IACHR also wishes to highlight the government’s efforts to continue with its “Program for protection of human rights defenders, trade union leaders, journalists, and social leaders,” administered by the Ministry of the Interior, which protects many persons with precautionary measures adopted by the IACHR and provisional measures granted by the Inter-American Court of Human Rights. Although it is necessary to keep improving this mechanism, and in some cases there have been problems or delays in the implementation of the protective measures, it is a program and structural initiative whose continuity should be duly recognized.

11.             The principal problem areas noted by the IACHR concern violence stemming from the armed conflict and its aftermath, the involvement of the police with criminal groups, and the continuous violation of the basic principles of international humanitarian law by the participants in the conflict.  The situation of the human rights defenders, who not only continue to be the target threats and attempts against their life and physical integrity, but find the value of their work questioned in the media by officials, including the President; and the movement on legislation whose implementation could affect the enjoyment of basic human rights.

12.             In 2003 the Commission continued to receive regular requests for urgent action, complaints, and information concerning all sorts of violations of the right to life in Colombian territory. Excesses committed in the course of the domestic armed conflict continue reflected in serious violations of human rights and international humanitarian law against the civilian population, especially the most at-risk sectors: the indigenous peoples, Afro-Colombian communities, and refugees. The year 2003 also saw the continuation of selective homicides and forced disappearances against human rights defenders, union figures, social leaders, journalists, and candidates for public office (including members of the Patriotic Union), and others.

13.             Government sources say there has reportedly been a reduction in the number of homicides and massacres by various armed rebel groups—FARC-EP, ELN, EPL—and by the Self-Defense Units of Colombia (AUC). Specifically as regards homicides, according to official sources the rebel groups committed 668 and the AUC 226, which would be a reduction of 29% for the former and 63.7% for the latter in the period from August 2002 to June 2003 in comparison with the period from August 2001 to June 2002.[5] These sources also report a reduction of 84% in the number of massacres carried out in the same period by the AUC, which is attributed to a new strategy favoring selective homicides that are less visible and less costly politically, and to the Government’s approach to these organizations to sign agreements for demobilization.[6]  In addition the Government indicated that there was a 22% decrease in homicide victims during the first ten months of the year 2003 in relation to the same period in the year 2002.  Specifically in the case of trade union leaders it pointed to a reduction of 61%.[7]

14.             However, the IACHR has received information that indicates the estimate of 19 daily victims of political violence, given in previous reports,[8] continues valid with little substantive change.[9] Data compiled by CINEP [Centro de Investigación y Educación Popular] and Justice and Peace indicate that in the period from January to June 2003 there were probably 1,426 summary executions and assassinations in violation of human rights and international humanitarian law, not counting the deaths of 1,074 combatants during the same period.[10] These statistics credit 605 selective homicides and 98 kidnappings to the AUC, 52 summary executions and 21 kidnappings to the Army, and a total of 318 violations of international humanitarian law to the FARC-EP, ELN, and EPL, including not only homicides but wounding and threatening of civilians, plus 697 kidnappings.[11] These violent acts are intended mainly to terrorize the civilian population and cause their flight, which has led to a serious humanitarian crisis affecting more than two million people. The scope of the phenomenon and its consequences will be dealt with in detail in the general report that the IACHR is preparing.

15.             In any case, the IACHR must reiterate its concern over the way the AUC continue to operate in vast areas of the country despite the presence of the armed forces.  The Commission continues to receive reports of acts of omission on the part of members of the National Army, especially the Seventeenth Brigade that operates in the area of Urabá in Antioquia and Chocoano, including their direct involvement in acts of violence and intimidation carried out by paramilitary groups against the civilian population.  The Commission has repeatedly denounced the State’s responsibility for ties and degrees of cooperation between members of the security forces and paramilitary groups in the execution of acts that violate human rights and international humanitarian law.  The State’s observations refer to an increase of 120% in arrests of AUC members and an increase of 49% in the number of paramilitaries killed in combat during the first ten months of 2003.  The Government also referred to a number of Circulars issued by the Ministry of Defense.[12]  Unfortunately–despite these statistics and the Circulars issued—there is no indication that the situation has improved significantly during 2003.  It is also necessary to condemn the way armed rebel groups, principally the FARC, have been involved in massacres, summary executions, bomb attacks, kidnappings, and threats in violation of the most fundamental principles of international humanitarian law, causing numerous victims in the civilian population.

16.             In this context, human rights defenders continue to be the target of constant attacks by the parties in the armed conflict, especially the AUC in areas were the armed forces are often present, in an attempt to halt their investigation and denunciation of serious acts of violence as they work to prosecute the perpetrators and compensate the victims. Furthermore, the human rights defenders have been faced with official criticism, twice by President Uribe himself, questioning their legitimacy and indicating plans to investigate their background and activities. In this regard, the IACHR has consistently said that the State’s punitive power and legal system should not be manipulated to harass those who are engaged in legitimate activities. Yet the Commission has received information and continues to collect evidence concerning repeated instances in which there has been recourse to the so-called “montajes judiciales” [arbitrary judicial proceedings] in an attempt to hinder or silence human rights defenders who are working to document the human rights situation, conduct the legal defense of accused persons, represent victims in court, assist at-risk communities, etc.

17.             The Government’s observations emphasize the efforts made by the President, the Vice-president the High Commissioner for International Cooperation to generate “..areas of dialogue with the valuable and proactive participation of non-governmental human rights organizations which are an important element in the construction of the social Rule of Law, and to define permanent actions ensuring respect for the rights of all Colombians”.[13]  As far as the so called “framings” are concerned, the State indicated that there was no such a thing as a policy directed to prosecuting NGOs.  In this sense, the IACHR must indicate that its has received specific complaints regarding the difficulties experienced by members of several organizations that operate in the inter-American system and whose prestige is well known by the international community.  These cases will be followed with special attention.

18.             The IACHR has consistently noted that the State has the right and duty to protect the civilian population and its own institutional structure in the context of the armed conflict and other serious threats to public order. However, it also has the obligation to ensure that the measures are taken with respect for the fundamental rights and guarantees provided by international human rights law. In this context, the most important of the many legislative reforms promoted by government officials is the one dealing with amendment of Articles 15, 24, 28, and 250 of the Constitution through Bill 223, and its impact on the enjoyment of rights such as personal freedom, privacy of communications and the home, immediate access to legal assistance, and the use of members of the armed forces, the Administrative Security Department (DAS), or the National Police in activities that should be performed by the judicial police. The IACHR has notified the State in a timely manner of its concern over the incompatibility of some aspects of that bill with Colombia’s commitments in basic human rights, as established in the American Convention and reflected in such instruments as the Inter-American Convention Against Terrorism and the Inter-American Democratic charter and their scope, interpreted in authoritative form in the Report on Terrorism and Human Rights and the various reports on the human rights situation in Colombia that have been approved by the IACHR.

19.             The government has also promoted approval of a bill relating to the imposition of alternative penalties which would allow the executive branch to suspend prison sentences against those found responsible for human rights violations in return for their commitment to demobilize.  This bill is currently the subject of public debate and it is vital for Colombian society as a whole to be engaged in its scrutiny.  This debate must be pursued in light of the clear and firm jurisprudence developed by the inter-American system on the validity and scope of legislation that has the effect of amnesty laws in favor of State actors.  This jurisprudence established that States have the obligation to investigate, prosecute, and punish violations of human rights committed by private parties.  Although organs of the inter-American system have not yet considered the question of granting amnesty or other forms of pardon for non-state actors as part of negotiations to put an end to a conflict and demobilize members of armed groups outside the law, the IACHR shares the concerns expressed by the Office in Colombia of the United Nations High Commissioner about the measures proposed by President Uribe.[14] The experience gained by the IACHR over several decades shows that enactment of laws that limit the scope of judicial proceedings intended to clarify and redress basic human rights violations committed during a domestic armed conflict actually hinders the quest for true reconciliation and peace.