CHAPTER IV

STATUS OF HUMAN RIGHTS IN SEVERAL COUNTRIES

          Under its mandate to promote the observance and defense of human rights, the IACHR has been reviewing the status of human rights in the countries of the hemisphere and has drawn up special reports on some of them.  These reports have been prepared on the Commission's own initiative, or upon instructions from an organ of the Organization of American States, and, in some cases, at the spontaneous request of the country concerned.

          The Commission feels that these reports, their subsequent dissemination and discussion thereof, have helped to change the behavior of particular countries as regards the observance of human rights, and in some cases, the reports have placed on record that the behavior of a country is in accordance with the international commitments it has undertaken in the field of human rights.

          The Commission's Annual Report submitted to the twenty-fourth regular session of the General Assembly included a chapter with sections on the status of human rights in Cuba, Guatemala, Nicaragua and Peru.

          In this Chapter, the Commission considers the status of human rights in Colombia, Cuba, El Salvador and Guatemala.  In order to make the information available to it as full and complete as possible, the Commission, on October 1994, requested that the above mentioned countries provide it with any information they deemed appropriate, but particularly information on how they had complied with the Commission's previous recommendations; on the progress they had made and any difficulties they had encountered in effective observance of human rights; and on the text of any statute enacted or case law that might have affected the observance of human rights.

          Where warranted, the Governments' responses and any other information from various sources to which the Commission has had access have been taken into consideration in drafting this chapter.

          The Commission reiterates that the inclusion of these sections is not designed to give an overall and complete description of the status of human rights in each of the four countries mentioned.  The Commission's intent here is rather to give an update covering the period of one year since the last general reports.

COLOMBIA

          For many years the Commission has closely monitored the development of the human rights situation in Colombia, taking into account the serious level of violence that has prevailed there during the past two decades.  Although several thousand Colombians have lost their lives during this violent period, the country has been able to maintain and consolidate its democratic and constitutional institutions and structures. It has even been able to achieve significant economic, social, political, and cultural progress and achievements at the national and international levels.

          The problem of violence and human rights violations--primarily by the army, paramilitary organizations, guerrillas, and narcoterrorism--is seen by the Commission not as an isolated phenomenon, but as a reality that occurs in the existing framework of violence in Colombia. On the basis of its observations during the 1980's and 1990's, the Commission has issued two general reports on the human rights situation in Colombia.  The first was issued in June, 1981, and the second in October, 1993.

          During its 87th session in September, 1994, the Commission decided that this chapter should contain a follow-up report to the Second Report on the Situation of Human Rights in Colombia, approved by the Commission on October 14, 1993, in order to reflect the major developments that have in one way or another affected respect for human rights in this country (November 1993 to January 1995).

            THE PHENOMENON OF VIOLENCE

          The phenomenon of violence in Colombia has been experienced throughout nearly all of the country, and seems to be one of the hardest problems to solve.  According to the Colombian government's report to the Commission, in the first half on 1994 alone there were 11,176 homicides, which represents a monthly average of 1,862 deaths.  The same source says these levels of violence are alarmingly high. The greatest concentration of violence and human rights violations is still found in areas where guerrillas and the army are active.[1]

          On the matter of so-called political assassinations, information available to the Commission from the Andean Commission of Jurists and the Popular Education Research Center (CINEP) indicates the following:

          1.       In 1994 there were 1,577 victims of political violence, human rights violations, and violence against the poor and victims of discrimination. This total number of incidents is broken down into 1,268 assassinations and 113 disappearances of persons for political or presumably political motives, and 196 assassinations of the poor.  There were also 841 victims of combat, including civilians, armed forces personnel, and guerrillas.[2]

          2.          There were 1,030 political homicides in 1994, including 809 killed in combat and 221 non-combat homicides. This figure is a sharp reduction from the previous year, when CINEP reported 2,242 political homicides.[3]

          The poorest and most vulnerable sectors are the hardest hit by the violence.  In rural areas, peasants are often victims of state security organs that accuse them of being guerrillas or collaborating with them. The peasants are also targets of guerrilla groups, which accuse them of being army informants. Peasants are also victims of actions by paramilitary groups and armed clashes between the army and the rebels. Between January and September there were reports that 305 peasants were assassinated and 27 disappeared.[4]

            POLITICAL RIGHTS

          1994 was a year in which Colombians could exercise the right of suffrage four times.  With 17,000,000 voters, the country voted on March 13 in legislative elections and a Liberal Party primary for choosing the party's presidential candidate; on May 29 and June 19 in the presidential elections; and on October 30, in the election of mayors and council members for 1,036 Colombian municipalities and governors for the country's 32 departments.

          For the legislative elections  held on Sunday, March 13, 1994 there were 879 lists of candidates registered with election authorities for the Senate and House contests; 757 were headed by men and 122 by women.  Voting took place at 45,000 tables in 8,000 precincts in the country's 1,036 municipalities and 32 departments.

          As a result of the elections, the 163 seats in the House of Representatives were filled as follows: Liberal Party, 89; Conservative Party, 56; Democratic Alliance M-19, 2; black communities, 2; and other movements, 14.

          Presidential elections to choose the successor to Dr. Cesar Gaviria Trujillo, whose four-year-term ended August 7, 1994, involved 18 candidates, of whom 15 were men and 3 women. The presidential elections were on May 29 for the first round and June 19 for the second round. On that occasion Colombians elected a Vice-President for the first time, pursuant to the new Constitution in force since July 5, 1991.

          The results of the first round of the election gave Liberal Party candidate Ernesto Samper a plurality of more than 18,000 votes over his nearest rival. He received 45.2% of the votes, compared with 44.9% for Conservative Party candidate Andr s Pastrana. Since no candidate obtained 50% of the votes to win the election in the first round, a second round was held, as scheduled, on June 19. On that occasion, Ernesto Samper received the greatest number of votes and was elected President.  He is serving a four-year term from 1994 to 1998, which began on August 7, 1994.

          Municipal elections were held on October 30, 1994 to elect 1,043 mayors, 11,000 city council members, and 503 deputies to departmental assemblies. On the same date, there were gubernatorial elections in 32 departments. In this election the ruling Liberal Party won 22 of the 33 governorships.

            RIGHT TO PERSONAL LIBERTY

          The Commission is aware of the complex and delicate situation of violence prevalent in Colombia and the myriad factors that cause it, with regard to which authorities must act in a rapid and timely member to protect the public and the legal order. However, the Commission is concerned about a recent decision of the Constitutional Court, which could effect full enjoyment of the right to personal liberty.  

          Before the enactment of Colombia's new Constitution, the old National Police Code in force permitted police officers to make arrests without court order.  When the new constitutional provision came into force, providing that one cannot be deprived of liberty without a court order, this effectively nullified the provision of the National Police Code that was clearly contrary to the new Constitution. However, since the former provision was not expressly repealed and its existence was a latent threat, the suit sought to invalidate the law by decision of the Constitutional Court.

          According to the Constitutional Court's ruling of February, 1994, a person can be arrested not only in the act of committing a crime, but when there are "well-founded reasons" for believing that he or she has committed a crime. This decision of the Constitutional Court has naturally alarmed Colombian human rights organizations, even though the Constitutional Court wisely recommended that court orders for arrests should be considered the norm, and that "preventive administrative detention" be employed as infrequently as possible.

          The Commission has noted that on the day after the Court's decision was announced, there were many arrests without court order.  Public Defender Dr. Jaime Córdoba Triviño also sharply criticized mass detention of persons and said it is unacceptable to deprive thousands of people of their freedom without individual arrest warrants, in an attempt to apprehend a few persons sought by authorities.

            LAW ON FORCED DISAPPEARANCE OF PERSONS

          When Congress passed a law classifying disappearance as a crime, the former Government--alleging constitutional impediments--vetoed the provisions that established that an act of forced disappearance could not be considered service-related and prohibited that obeying orders be adduced to mitigate responsibility in disappearance cases.  Article 2 was vetoed on the grounds that establishing the same penalty for forced disappearance of persons whether legally or illegally detained constituted a violation of the principle of equal treatment under law.

          The vetoes are presently under study in the House of Representatives. If it decides differently than the Senate, the draft will be dead, according to the applicable law and congressional rules of procedure.

            RATIFICATION OF THE SECOND PROTOCOL OF THE GENEVA CONVENTION

          On August 17, 1994, the Government submitted to Congress for ratification the Second Additional Protocol of the Geneva Conventions of 1949.  The bill was initially approved by the Senate with an appended declaration of reservations concerning interpretation that were incompatible with the objective and purpose of the treaty, because they weakened it and perverted its intention to protect human life and dignity, and to protect the civilian population and noncombatants.

          However, the bill was approved by the first commission of the House without reservations or declarations added, thus overcoming difficulties that have existed for more than 15 years in Colombia for ratification of this important humanitarian document.  The law was signed by the President on December 16, 1994. All that remains for it to enter into effect is a determination by the Constitutional Court regarding its constitutionality.

            REPORT OF THE HUMAN RIGHTS PROSECUTOR

          On August 24, 1994, the Office of the Attorney General issued its report. This important report states, among other things, that "it is highly disturbing that a democratic Government like that of Colombia is recording such high numbers of these incidents" and that "this leads to the conclusion that the community perceives that organs for the state's protection and security are more repressive and more aggressive..." and that "this demonstrates the absence of a firm policy to combat human rights violations by state agents."  The report concludes by stating: "One of the few encouraging signs in this report is that the number of victims of human rights violations presumably perpetrated by state agents has decreased by about 36 percent between 1991 and 1993".

            THE PUBLIC DEFENDER

          On September 20, 1994, while participating in the 87th session of the Commission, the Public Defender of Colombia addressed the full IACHR to describe progress achieved in the institution of public defender in the countries of Latin America, and on the situation of human rights in Colombia.

          The Public Defender said there is no excuse for human rights violations in Colombia; that human rights violations in that country are not "isolated acts;" that some attempt to limit state responsibility in human rights matters because terrorists, subversives, drug traffickers and other criminals as private persons also kill, maim, rape, and kidnap, but state violence cannot be justified or condoned with the argument that private individuals also act violently; that for many years many military and police personnel responsible for human rights abuses have enjoyed a high degree of impunity; and that the human rights situation in Colombia is a reality contrary to law.

            THE NEW GOVERNMENT

          Ernesto Samper was inaugurated as President of Colombia on August 7, 1994. From the outset the new Government has demonstrated extraordinary interest in human rights, noting that it is not an image problem, but a problem of reality; that it is necessary to put an end to all the violence, political violence and violations of human rights.

          Because President Samper emphasizes and enumerates his country's main human rights problems--pointed out by the Commission in its last report on the situation of human rights in Colombia--and because of his commitment to attack them, it is pertinent to cite some of his policy statements on human rights:

          With regard to the supervision entrusted to international human rights organizations by governments, President Samper declares his willingness to "accept the challenge to present Colombia to the international community as a country that strives unceasingly for the respect of human rights and international humanitarian law within its borders, that has no qualms about submitting itself to the scrutiny of intergovernmental and nongovernmental organizations for the defense of human rights.

          On the recommendations of international organizations he has stated: "We shall give special heed to recommendations from intergovernmental specialized agencies on policies and measures to be adopted in order to promote and protect human rights. We shall submit legislation to Congress to authorize the government to use the national budget to pay compensation for violation of basic human rights when it is ordered by intergovernmental human rights organizations."

          Regarding the conformity of domestic laws with international standards President Samper declared: "We shall undertake a review of the country's situation with regard to international human rights instruments and international humanitarian law to establish the nature and extent of compliance with these instruments under which we are obligated. We shall launch a work program for adoption of domestic measures needed for the application of international human rights law and international humanitarian law."

          On the serious problem of impunity: "Impunity has attained alarming levels in Colombia, resulting in a substantial increase in human rights violations in the country. We are faced with a widespread phenomenon of criminal conduct that overtaxes the capacity of the legal system. To confront it, the justice system shall be given the necessary human, financial, physical, and technical resources to carry out its duties.  It is indispensable that the punitive authority of the state be brought to bear with full weight on the conduct of those who betray their trust as protectors of democratic legality. To this end the Government will press with its utmost political will and determination.

          On humanitarian law: "The existence of an armed conflict in the country cannot serve as a pretext for violations of human rights and humanitarian law. That conflict can and must be subject to the norms for rendering war more humane. To move in that direction, my Government has again presented legislation to Congress for ratifying Colombia's adherence to Protocol II of the four Geneva Conventions of 1949 on international humanitarian law. The Government will follow the course of this bill in Congress closely, and continue to press for it until it is passed.[5]

          With reference to nongovernmental human rights organizations: "My Government's door will be open for individuals and private groups dedicated to the promotion and defense of basic human rights. It will disagree with them when their positions warrant it, and demand that they exercise objectivity and balance, but it will not reject them or regard their work as illegitimate.  My Government will seek to establish constructive relations with them and do whatever is needful to protect their members' life and safety.[6]

          On military submission to civilian authority: President Samper states: "I hold the deep conviction that no state can demand respect from its citizens if its own agents act in an arbitrary manner to violate the individuals' rights. (It is) indispensable to spare no effort on the part of public authority to ensure that the conduct of members of the public force is unfailingly within the mandates of the Constitution, the law, and the international treaties on human rights and international humanitarian law by which Colombia is bound...." "Human rights will not be honored as a concession to those who have taken up arms or their organizations, but as the natural development of its deep conviction that no country can demand respect from its citizens if its own agents act in an arbitrary manner to violate individual rights."

          The Commission welcomes the Colombian President's statements and assures him of its willingness to continue working with his Government to implement the proposed policies to promote, protect, and defend human rights in Colombia.

            THE TRUJILLO CASE

          When considering case 11007, concerning the violent events in Trujillo, in accordance with Article 48.f of the American Convention on Human Rights the Commission, through its representatives Leo Valladares Lanza and Claudio Grossman,  offered to help the parties concerned reach a friendly settlement of the matter on the basis of respect for the human rights recognized in the Convention. The proposal was accepted by the petitioners and during the 87th session of the IACHR it was formalized in a Memorandum of Understanding that at the suggestion of the Government established an ad hoc commission to investigate the facts of the case.

          Under the supervision of the IACHR, represented by the member who is the rapporteur for Colombia, Dr. Leo Valladares Lanza, the ad hoc commission carried on its work from October 1994 to January 1995. It was composed of the Public Defender, who chaired it, and representatives of the Senate, the Prosecutor General's Office, the Attorney General's Office, the Presidential Advisory Office on Human Rights, the Ministry of Government, the Ministry of Foreign Affairs, the Defense Ministry, the Administrative Security Department, the Interfaith Committee for Justice and Peace, the Colombian Red Cross, the Association of Relatives of Disappeared Detainees, the Jose Alvear Restrepo law group, the Colombian Section of the Andean Commission of Jurists, and the Foundation of the Committee for Solidarity with Political Prisoners.

          In its 88th session, the IACHR took note of the progress of the ad hoc commission and its unanimous report recognizing the responsibility of the Colombian government in the case. The IACHR considers the final report to be of singular importance for the promotion and protection of human rights in accordance with the terms of the American Convention on Human Rights. The Commission therefore resolved: 1. To recognize and accept as its own the conclusions of the report to the effect that the Government of Colombia is responsible for the violent events at Trujillo; 2. To recognize and accept as its own the recommendations contained in the report on the events at Trujillo;  3. To continue to monitor the case and the implementation of the report's recommendations, as requested in the report's special recommendation; and 4. To hear the parties in the next session of the Inter-American Commission on Human Rights--to be held in September of this year--concerning the status of the Colombian government's execution of the final report's recommendations.

          The Commission has noted with satisfaction that when Colombian President Ernesto Samper received the text of the above-mentioned document he said, among other things: "From the outset of my government I decided, in consultation with the Inter-American Commission on Human Rights, to establish this commission to investigate the Trujillo case. Today it is presenting its findings and recommendations to us;" that the Trujillo affair "is one of the blackest pages in the long nightmare of violence and suffering that has afflicted us for many years;" that "those who have closely followed the episodes of the Trujillo case will surely concur that they are shocking and terrifying;" "We are and want to be a different country from the one that appears in these apocalyptic, anguished views of the events at Trujillo...a country where we are able to feel shame, as simple human beings, for such senseless and offensive acts of violence;" that his government accepts the report "with a resolute determination to change, so that this sad story of Trujillo may never be repeated again."

          Dr. Samper also said: "As President of Colombia, I accept the government's responsibility for acts or omissions of public servants in connection with the violence that occurred in Trujillo between 1988 and 1990;" "We shall take all necessary steps so that the recommendations contained in the Trujillo Report are carried out;" "As President of Colombia, and in defense of international humanitarian law, I accept the responsibility for the serious infractions committed by government employees in connection with the same events;" "As President of Colombia, I accept the financial liability for the consequences of these serious acts or omissions by the state and I pledge to submit to Congress a bill authorizing the government to pay for the corresponding compensation in accordance with national and international authorities;" "In memory of the persons killed, the government will undertake a major social program in the Trujillo area, and erect a monument in memory of them and all victims of violence, as recommended in the commission's report that I have received today;" "The government will also cooperate actively with the Prosecutor General's Office, the Attorney General's Office, and the Public Defender's Office to bring satisfactory resolution to the investigations of the Trujillo case;" "I hope that the position we are taking today serves as an example to all public servants in Colombia concerning my government's unfailing resolve to respect and ensure respect for human rights;" "I hope that it will also enlighten Colombians who have mistakenly chosen the path of confrontation, so they see the damage we are causing by this fratricidal violence;" "I hope that it will also encourage organizations that defend human rights to note these positive steps in their reports, so that some of the groups can stop maligning us with severe condemnation;" "Finally, I hope that our children who are one day breathing the pure air of peace will reflect that we felt all the hate we could muster and confirmed the right to hope."

            EFFECT OF ACTIONS BY IRREGULAR ARMED GROUPS ON THE OBSERVANCE OF HUMAN RIGHTS

          Pursuant to the recommendations of the OAS General Assembly, the Commission includes in this report an account of the effect of actions by irregular armed groups on the observance of human rights in Colombia during this period.

          Colombia's election process and political rights were constantly threatened and boycotted by political action of the country's guerrilla movements, which terrorized and attacked the officials and agencies responsible for the elections, the political parties and their candidates, and voters who were to take part in them. This took the form of various terrorist acts, such as dynamiting offices of the Liberal and Conservative parties in several precincts; attacks on the life and person of those parties' candidates; and kidnapping of many candidates for congress, mayor, governor, and regional and local office. Many of these threats and intimidations ended in the assassination of local political leaders and officials. This campaign of threat and intimidation was also directed at voters to discourage them from casting their ballots.

          To confront this campaign of terror and insecurity, the Government mobilized 100,000 troops to protect voting places, political party offices, and homes of several congressional candidates. The situation deteriorated to the point that the opposition Conservative Party accused the Liberal government of then President César Gaviria Trujillo of failing to provide the security guarantees needed to carry out its political campaign.  The Patriotic Union (a political group made up of former FARC guerrillas) and the Communist Party, which were the target of attacks against their offices or candidates from paramilitary groups rather than from guerrillas, requested the presence of international observers to monitor the elections.

          The right to life has also been seriously compromised by the activity of armed irregular groups through what are called political homicides. Data from the Popular Education Research Center (CINEP) indicate that irregular armed groups are responsible for 46.73% of the homicides in 1993 and 33.24% of the homicides in the first half of 1994.          To these facts must be added the wave of kidnapping, which claimed 1,282 victims in 1990; 1,717 in 1991, 1,320 in 1992, and 1,014 in 1993;[7] from January to December 1994 there were 881 kidnappings, of which 219 were attributed to the National Liberation Army (ELN), 31 to the dissident faction of the Popular Liberation Army (EPL), 6 to the dissident faction of the April 19th Movement (M-19), 131 to the Colombian Revolutionary Armed Forces (FARC), and 494 to common criminals.[8]

            CONCLUSIONS

          1.          The human rights situation in Colombia, as one may observe, is still a matter of serious concern for the Inter-American Commission on Human Rights.

          2.          Colombian authorities do not ignore, deny, or cover up the country's human rights problem. On the contrary, they recognize it, reject it, and condemn it. Proof of that are statements from the highest level authorities, some of which are included in this report.

          3.          The new administration of President Ernesto Samper has clearly signalled its position and convictions on the subject of human rights, and his government submits itself to international scrutiny.  The IACHR is pleased that this new democratic Government has begun with clear statement of an express commitment to respect human rights and cause them to be respected, and to facilitate the work of human rights organizations in their international mission of monitoring and defending those rights.

          4.          In order to provide a suitable international legal framework for the new law on forced disappearance of persons, which is currently before the Colombian Congress, it is recommended that the Government ratify the International Convention on Forced Disappearance of Persons, signed by Colombia on August 5, 1994.