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COLOMBIA
1. During
its 102° session, the Inter-American Commission on Human Rights (hereinafter
"the Commission" or "the IACHR") adopted the Third Report on the Human Rights Situation in Colombia[1]
(hereinafter "the Third Report"),
and released it on March 10, 1999. In
that Report the Commission analyzed protection for human rights in the legal and
political system in place in the Republic of Colombia (hereinafter "the
State," "Colombia," or "the Colombian State"); respect
for economic, social, and cultural rights; violence and violations of
international human rights law and international humanitarian law; the
administration of justice and the rule of law; the situation of human rights
defenders; freedom of expression, freedom of association, and political rights;
the rights of indigenous peoples, the rights of Afro-Colombian communities,
women's rights, and the rights of the child; and the situation of persons
deprived of liberty. In addition,
it made a series of recommendations in light of its conclusions.
2. On
December 1°, 1999, the Commission asked the State to provide information on
compliance with the recommendations made in the Third
Report. On January 18, the
State requested an extension of the time for submitting information, which was
duly granted. On February 4, 2000,
the State submitted its "Report on the implementation of the
recommendations contained in the Third
Report of the IACHR" (hereinafter "the State's Report").
This extensive document, prepared by the Ministry of Foreign Affairs of
the Republic of Colombia, is based on information provided by the State entities
involved in implementing the measures whose adoption is recommended by the
Commission's Third Report. 3.
During its 106° period of sessions the IACHR issued
its “Draft Follow–Up Report” and on March 3, 2000 it transmitted a copy to
the State with a 30-day period to present its observations.
On April 3, 2000 the State presented its observations which have been
incorporated, where appropriate, to the final version of this Report which was
approved by the IACHR on April 13, 2000.
4. The
Commission has evaluated compliance with its recommendations mainly by analyzing
the information provided by the State and other reliable sources.
The totality of these elements has been considered in the context of the
overall situation and the facts that have come to the attention of the IACHR in
the course of 1999 in carrying out its mandate to promote and protect human
rights in the region. 5.
This Follow-up Report is divided into five sections which consider the
measures adopted to address the challenges that stem from political violence,
impunity, forced displacement, and attacks on those who work for human rights.
In addition, reference is made to advances in carrying out obligations
that stem from social, economic, and cultural rights, as well as the protection
of children, women, and indigenous peoples.
I. VIOLENCE AND RESPECT FOR HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW
6. In
its Third Report, the Commission presented its analysis of the human
rights situation in Colombia in the context of the internal armed conflict.
On that occasion, it described the origin and cycles of the conflict and
the political violence that is gripping Colombian society, the armed actors, and
the compatibility of their acts with the norms of human rights law and
international humanitarian law in force for the Colombian State.
7. In
light of the conclusions reached in the Third
Report, the Commission recommended the adoption of a series of measures
aimed at ensuring respect for international standards regarding human rights and
international humanitarian law by state agents.
It also recommended combating, dismantling, and disarming the
paramilitary groups and all other outlawed groups known as Autodefensas
that operate in Colombia (Chapter IV, Recommendation 6), as well as the
derogation of norms that provide for the formation of groups known as CONVIVIR (Chapter
IV, Recommendation 7).
8. As
is publicly known, in 1999 the consequences of the armed conflict have been the
pretext for the violation of fundamental human rights such as the right to life,
humane treatment, and personal liberty, on Colombian soil.
Indeed, 1999 saw the highest levels of violence in the last 20 years.
Extrajudicial executions of one or more persons for political motives or
"social cleansing," as well as assassination attempts,[2]
acts of violence aimed at intimidating the population, public accusations, and
threats have continued to provoke pain, terror, and the consequent forced
displacement of the survivors. 9.
The victims of individual killings have included, among others, persons
prominent in politics, journalism,[3]
cultural and academic life,[4]
trade union leaders, human rights defenders, and representatives of indigenous
communities and displaced communities, as well as state employees working in the
justice system or the Executive. In many of these cases, no one has claimed
responsibility nor has there been any determination as to who carried out these
crimes. Death threats have
multiplied, and many citizens have had to leave their homes and even the
country, in some cases with State assistance, to keep themselves and their
families alive. 10.
As regards collective violations of the right to life, the statistics
compiled by the Office of the Human Rights Ombudsman indicate that in 1999 there
were 403 massacres with 1,836 victims, which represents an increase of some 40%,
when compared to the 235 such acts perpetrated in 1998.[5] The
departments most affected include Antioquia (109 massacres), Valle del Cauca
(34), Norte de Santander (31), Bolívar (25), and Cesar (23).[6]
11. In light
of these elements, the Commission will now consider compliance with the
recommendations of the Third Report,
directed to the parties to Colombia's internal armed conflict, to respect
fundamental human rights, and, through their command and control structures, to
respect, implement, and enforce the norms and principles that govern hostilities
set forth in international humanitarian law, with a special emphasis on the
rules that provide protection to civilians.
A.
Violations of fundamental human rights by State agents
12. In its Third
Report, the Commission recommended the adoption of immediate measures to
prevent violations of human rights and international humanitarian law by State
agents. Studies by Centro de Investigación y Educación Popular (CINEP) indicate that
during the period from April to December 1999, there have been approximately
1,500 episodes of political persecution and abuse of authority, involving
extrajudicial executions, disappearances, violations of physical integrity, and,
above all, arbitrary detentions with the direct participation of State agents.[7]
In addition, according to data provided by the Office of the Human Rights
Ombudsman, six of the 403 massacres perpetrated in 1999, with a total of 20
victims, have been attributed to State agents.[8]
Though, in statistical terms, this represents only a small percentage of
the violations committed during the period under study (in the case of
massacres, 1% of the total), the IACHR has received denunciations indicating the
participation of members of the security forces in events affecting communities
protected by precautionary measures issued by the Commission.[9]
The Commission must reiterate its concern over the persistence of actions
constituting serious violations of the American Convention and international law
by State agents.
13. In
addition, the Commission continues to receive allegations as to the omissions of
the Armed Forces and National Police in cases in which there are clear
indications of imminent paramilitary attacks.
Some of these episodes have been widely reported by the press, such as
the massacres at La Gabarra, in Norte de Santander.
These massacres took place August 20 to 22, 1999, despite the efforts of
the organizations that approached the authorities to seek the adoption of
preventive measures on behalf of the civilian population, unfortunately without
success.[10]
In the particular case of the department of Antioquia, another epicenter
of paramilitary violence against the civilian population, the Commission
continues to receive reports and information from various sources, now recorded
in its files, on situations in which the National Army or Police have withdrawn
from their posts just before incursions by paramilitary groups to attack and
terrorize the civilian population.
14. In the
face of the aforementioned situations, which constitute serious violations of
human rights and are entirely incompatible with international humanitarian law,
the Commission reiterates that measures should be adopted to undertake a serious
investigation and the impartial and effective prosecution, by the civilian
justice system, of those who participate in either the planning or execution of
such acts (Chapter IV, Recommendation 4).
The recommendations of the Commission in this area are detailed infra,
in the section on Administration of Justice and Rule of Law.
15. In
addition, the Commission has recommended that members of the security forces
involved in human violations be removed from active duty pending the final
decision in any disciplinary or criminal proceedings (Chapter
IV, Recommendation 5). In this
respect, it does not appear from the State's Report that any legislative measure
has been adopted to comply with this recommendation.[11]
16. The
Commission has learned that despite the failure to implement norms in this
regard, on September 1, 1999, the President of the Republic removed Brig. Gen.
Alberto Bayardo Bravo Silva from active duty[12]
in view of his involvement in the official omissions that presumably contributed
to the perpetration of the massacres at La Gabarra. The Police Commander for
Norte de Santander and the departmental director of the DAS were also allegedly
removed from their posts as a result of the same events.[13]
The State has informed the Commission that the Human Rights Unit of the
Prosecutor´s Office has initiated a number of investigations relating to
members of the Army and the Police involved in these massacres[14]. The
Commission hopes the State will continue to prosecute and remove from active
duty agents of the Armed Forces and National Police involved in human rights
violations.
B.
The growing activity of the paramilitary groups and the new regime of the
groups known as CONVIVIRs
17. In its Third
Report, the Commission recommended the immediate adoption of measures to
combat, dismantle, and disarm all paramilitary and other proscribed groups known
as autodefensas operating in Colombia,
including the prosecution and punishment of their leaders, members and
supporters (Chapter IV, Recommendation 6).
18. The
State indicated that its "Policy of promotion, respect, and guarantee of
human rights and application of international humanitarian law" includes
among its priorities combating the Autodefensas
groups from two complementary angles: first, directly and effectively countering
their actions, and second, deterrent in nature, dismantling the factors that
contribute to their rise and development.
19. In
relation to the first aspect of this policy, the state has reported that between
the beginning of January and the end of February 2000, 14 paramilitaries were
killed, 46 prisoners were taken and that it had seized a considerable amount of
sophisticated war material. According
to the data provided by the General Command of the Army, from January to October
1999 a total of 188 members of paramilitary groups were arrested, and there were
37 paramilitary casualties as a result of operations of the Armed Forces,
National Police, CTI, and DAS. The
statistics provided by the State also indicate that between 1995 and 1999 the
Armed Forces and the Police had 256 armed confrontations with these groups in
which 88 of their members were killed and 705 were captured. In Colombia’s view, these figures reflect the State’s
commitment to combat these groups.
However, official figures also show that the Autodefensas have grown to approximately five thousand members[15]
and that they continue to deploy “war fronts” [16] in Colombian territory, to violate humanitarian
law and to terrify defenseless civilians.
20. Beyond
the scant efforts to dismantle these groups, the Commission must note that there
have been public accusations regarding the participation of sectors of the Army
in strengthening these groups.[17]
Indeed, the Commission continues to receive information and reports from
various sources, which are in its files, indicating that some State agents
support and act alongside paramilitary groups and Autodefensas.
21. The
Commission takes note of the reply consistently articulated by the
representatives of the Executive to the effect that there is no official policy
of support for the paramilitary groups. Nonetheless,
it is a fact that paramilitary violence has worsened and that these groups
continue to resort increasingly to terror and violence as a means of furthering
their objectives. In effect, the
cumulative figures of the Office of the Human Rights Ombudsman indicate that in
1999 there were 155 massacres with 902 victims attributed to the Autodefensas,
accounting for almost 40% of the total number of such incidents, and almost 50%
of the victims.[18]
22. These
episodes continue to be preceded by the announcement of the creation of new
"war fronts," widespread threats, and the setting of deadlines for
abandoning certain localities. The Autodefensas
continue calling into question the neutrality of communities of displaced
persons such as at Turbo[19],
and communities of peace such as San José de Apartadó[20], and issuing lists of persons "virtually
sentenced to death."[21] Although
peasants have continued to be the social sector most affected by the political
violence,[22] the threats have extended to other sectors of
society, such as the university. Specifically, the Commission has received
information indicating that in 1999, a paramilitary group called "Autodefensas
Universidad de Antioquia" threatened to kill members of the academic
community there.[23]
Several members of the university community have been killed on campus[24],
including Professor Hernán Henao Delgado, Director of the Instituto de Estudios Regionales, who was assassinated in his own
office on May 4, 1999.
23. In
relation to the second line of policy implemented by the State--i.e. actions
undertaken in relation to the factors that make it possible for these groups to
form and develop--the State reported that the Office of the Vice President of
the Republic has offered certain forms of logistical support to the Office of
the Prosecutor-General and the Human Rights Unit and has fostered the formation
of joint immediate response teams to collect the first evidence right after the
fact (see section on administration of justice, infra).
As a result of the measures adopted, the Human Rights Unit of the Office
of the Prosecutor-General is reported to have accused 679 persons as alleged
members of Autodefensas and issued 379
arrest warrants for alleged members of these groups from their formation up to
the end of 1995.[25]
The Commission notes, however, that the State has not submitted
information on the number of actual arrests or the number of convictions.
24. With
respect to the recommendation aimed at dismantling the services known as
Vigilance and Private Security Cooperatives, or CONVIVIR (Cooperativas
de Vigilancia y Seguridad Privada), the State has reported that since the
issuance of Decree 2974 of December 31, 1997, a gradual and steady effort has
been in place that has led to the cancellation of 130 licenses, and the
suspension of another 174. In
addition, in 89 cases, expiring licenses were not reissued.
Moreover, pursuant to Judgment C-572 (1997) of the Constitutional Court,
these services were instructed to return any of the arms still in their
possession that had been issued to them whose use is restricted to the armed
forces and national police.
25. Accordingly,
the State reported that of the 414 special vigilance and private security
cooperatives existing as of December 31, 1997, only 23 such special services
have a temporary operating license today. The
State has indicated that those 23 special services have complied with the
requirements set forth in Decree 2974, such as appointing a clearly-established
legal representative, having a delimited scope of action, and clearly
identifying its members as not including any persons with a criminal record.
They are to operate under the close supervision of the Superintendency, and
there must not be any complaints against them.[26]
Based on the information provided, the Human Rights Unit of the Office of
the Prosecutor-General has pursued criminal charges against those groups that
degenerated into private justice or "paramilitary" groups.
26. The
Commission notes that despite the restrictions imposed since 1997, which it
reported in its Third Report, the legislation that allows for the operation of these
private vigilance services has not been derogated.
Although the substantial reduction in the number of licenses is
encouraging, the legislation, and therefore the possibility of these groups
operating, continues in force.
C. Violations of international humanitarian law by the armed dissident
groups
27. The
Commission notes with alarm that in 1999 there was also an increase in
violations of international law by armed dissident groups.
The violations run the gamut from kidnappings and extrajudicial
executions to indiscriminate attacks on the civilian population and massacres.
28. As is
public knowledge, the kidnappings by the ELN affected innocent civilians, such
as the passengers of Avianca flight 9463, the parishioners at the La María
Church in Cali, and the fishermen on the Magdalena river, among others.
In addition, the FARC claimed responsibility for the brutal murder of
three U.S. indigenous rights activists. The Commission has made a public
pronouncement on the incompatibility of these acts with the standards of
international law.[27]
Statistics compiled by the Office of the Human Rights Ombudsman point to
these groups as being responsible for 16% of the massacres carried out during
the period under study.[28]
29. The
Commission would like to reiterate that compliance with the norms of
international humanitarian law is not only an obligation of the parties to the
conflict, but that it will eventually help bring about a climate for achieving
peace and national reconciliation.
II.
ADMINISTRATION OF JUSTICE AND RULE OF LAW
30. The
concluding observations in the Third
Report are based mainly on the notion that overcoming violence in Colombia
must be based on clarifying the facts of human rights violations, and
prosecuting and punishing the persons responsible, as provided by law, and
making reparation for the damage caused to the victims.
Only by upholding the rule of law and the proper administration of
justice will be it possible to break the vicious cycle of impunity, re-establish
public order, and ensure the observance of fundamental rights and social peace.[29]
31. In the
following sections the Commission will refer to compliance with the
recommendations aimed at shoring up the administration of justice by adopting
and implementing norms that are in line with general principles such as access
to justice, the impartiality of the court, procedural equality of the parties,
as well as the effectiveness of the decisions of the organs associated with the
administration of justice.
A.
Legislative measures
32. In its Third
Report, the Commission made a series of recommendations whose implementation
requires the adoption of legislative measures.
In the following sections the Commission will refer to the measures
adopted in relation to military justice, the elimination of the so-called
"regional" justice system, the adoption of a forced disappearance law,
and review of disciplinary sanctions in cases involving human rights violations.
1.
The draft Military Criminal Code
33. The
IACHR has repeatedly expressed its concern over the trial by the military
criminal courts of Colombia of serious human rights violations alleged to have
been committed by members of the Armed Forces.[30]
As a result, it has been recommended that the norms and practices in
place be reviewed and amended with a view to bringing them into line with the
fundamental principles of due process.
34. Specifically,
the Third Report recommended that the necessary measures be adopted to
limit the use of the military justice system to service-related offenses.
In addition, it was recommended that Judgment 358 of the Constitutional
Court,[31] which establishes that proceedings in cases of
serious human rights violations must take place before the civilian courts,
should be fully implemented. (Chapter V,
Recommendations 6 and 7).
35. After a
lengthy period of discussion with state agencies, civil society organizations,
and the international community about the need to reform the military criminal
justice system, on August 12, 1999, the Congress of the Republic of Colombia
adopted Law 522, approving the Military Criminal Code (hereinafter "the new
Code"). The Commission agrees with the State that the adoption of this law
is a step forward in the process of modernizing the Armed Forces and National
Police, pursuant to Article 221 of the Constitution, and in light of its
interpretation by the Constitutional Court.
In addition, it recognizes the value and symbolism of this reform which,
in the words of the State, has occurred "in the circumstances of the armed
conflict, and in the face of the complex challenges facing the Armed Forces and
National Police."
36. The new
Code considers as service-related offenses such conduct as is committed by the
members of the Armed Forces and National Police "derived from the
performance of their military or police function."[32]
Article 2 sets forth criteria for raising and resolving jurisdictional
conflicts between the civilian justice system and the military criminal justice
system. Concretely, for the
purposes of raising and deciding jurisdictional conflicts, one must consider,
first, whether the proceedings involve members of the Armed Forces or National
Police. Second is the causal
factor, i.e., whether the criminal conduct clearly stems from the function
performed; and third, whether it is a regulated function, for only those
service-related acts which according to the current norms are considered to be
derived from the performance of their military or police function would
constitute offenses over which the military criminal courts should have
exclusive jurisdiction. Article 3
expressly excludes genocide, forced disappearance of persons, and torture from
the military jurisdiction, giving the civilian justice system exclusive
jurisdiction over such cases. As
the State has said, in these cases it will not be possible to argue that they
are "service-related," as they entail conduct totally at odds with the
protection function assigned to the Armed Forces and National Police, and it
will not be possible to raise jurisdictional conflicts with respect to any of
these. The new Code maintains the
special or abbreviated procedure for military offenses directly related to
internal discipline in the armed forces.[33]
37. The
Commission notes, however, that the wording of this provision does not stand in
the way of invoking the jurisdiction of the military criminal courts to try
conduct such as extrajudicial executions, sex crimes, or other conduct which,
despite constituting serious violations of human rights, are subject to a
case-by-case examination as to whether they are service-related.
Indeed, the new Code, in principle, considers that military judges should
sit in judgment in trials for crimes committed by members of the Armed Forces or
National Police, since it provides that only the judges and courts of the
military justice system have jurisdiction to hear cases in which the criminal
proceedings have been initiated with respect to offenses included in the Code
(Article 16). The Superior Council
of the Judiciary will continue to be entrusted with deciding jurisdictional
disputes. It should be noted that
the language of the Code does not establish guidelines that ensure that the
Superior Council of the Judiciary will resolve the disputes brought before it in
a manner compatible with the decision of the Constitutional Court and
international standards.[34]
38. The
provision that establishes that "in no case may the crimes of torture,
genocide, and forced disappearance of persons as understood in the terms defined
in international conventions and treaties ratified by Colombia, be considered
service-related" is a fundamental safeguard.
Nonetheless, forced disappearance has yet to be defined as a crime in the
domestic criminal law (see discussion infra),
and the State has yet to ratify any treaty in the area of forced disappearance.
Therefore, there are serious questions as to how the charges and
jurisdictions will be determined in cases involving such conduct.
39. The
Commission also notes that this provision continues to make it possible to argue
due obedience as grounds for exoneration of liability.
The State considers that due obedience is regulated in a satisfactory
manner in the Code, since it reproduces the provision in the Criminal Code,
which provides that one can argue the performance of lawful orders, issued by a
competent authority, following all legal formalities, as grounds for exoneration
of liability.[35]
In this respect, the Commission would like to point out that the State
organs still must interpret these norms in a manner consistent with the
standards established by international law as it applies to the question.[36]
40. With
respect to the guarantees of independence of military judges, the provision also
provides that in no case can members of the Armed Forces or National Police hold
command functions and, at the same time, the functions of investigation,
accusation, and judgment, thereby doing away with the current system, which
allows the commanding officers to sit as judges in cases involving conduct
carried out under their command. In
addition, the new Code eliminates the court-martial procedure (Consejo
de Guerra). Even though it
keeps the proceedings before the Corte
Marcial y Especial, there will no longer be vocales
or jurors, and their judgments must be grounded in the applicable law.
The Commission notes, however, that the Superior Military Tribunal shall
be presided over by the General Commander of the Armed Forces (Article 235), and
the courts of first instance shall be linked to the military command structure,
insofar as the Office of Inspector General of the Army has jurisdiction to sit
in judgment, in the first instance, in criminal matters (Article 241).
41. The new
Code has the virtue of consolidating the position of the Public Ministry in
proceedings before the military criminal jurisdiction, and provides for its role
as participant in the process, to ensure respect for human rights and the
fulfillment of due process guarantees.[37]
In addition, it establishes the civilian party within the military
criminal procedure, with full powers to take procedural initiatives in the case.[38] Nonetheless, the Commission understands that
there are limitations on the civilian party's access to classified or
confidential documents of the Armed Forces and National Police that may be
needed in the proceedings, which shall be kept separately, and therefore the
civilian party may have no knowledge of them (Article 310).
42. Despite
the concerns expressed here, which were already stated in part in the Third
Report,[39]
the Commission considers that the reforms to the military criminal justice
system in matters such as the establishment of military judges and prosecutors
outside of the line of command, and elimination of the vocales from the court martials, constitute a partial advance in the
adoption of norms that ensure respect for judicial guarantees.
Also noteworthy are the permanent presence of the Office of the
Procurator-General of the Nation and the institutionalization of the civil party
and his or her role in the proceedings initiated in that jurisdiction.
43. In any
event, it is worrisome that the entry into force of the new Code is subject to
the adoption of a ley estatutaria, or
implementing legislation, to provide for the structure of the administration of
military justice. In this regard,
other partial advances have not been made effective, and depend on the
promulgation of another norm whose development requires additional procedures
and qualified majorities.
44. The
Commission shall continue to monitor compliance with its recommendations in
light of the new Military Criminal Code, and in particular, how the competent
organs interpret the Code once it enters into force.
2.
The dismantling of the "faceless" justice jurisdiction
45. In its Third
Report, the Commission recommended that the State take steps immediately to
eliminate the system known as justicia
regional pursuant to the repeated recommendations of international organs
for the promotion and protection of human rights (Chapter V, Recommendation 8).
46. The
State reported that the Ley Estatutaria de
la Administración de Justicia[40]
provided for ending the Regional Justice system by June 30, 1999.
In the wake of this law, the State decided to give legislative impetus to
several adjustments in the organization of the civilian Judicial branch, which
provide for protection for judicial officers and witnesses who participate in
the investigation and prosecution of crimes of drug-trafficking and terrorism.
Concretely, through Law 504 of 1999, some modifications were made to the
Code of Criminal Procedure which, in exceptional cases, withhold the identities
of prosecutors and witnesses as a protective measure in criminal proceedings for
extremely serious offenses.
47. The
legislation establishes the principle of identifying public employees in charge
of judging the most serious offenses perpetrated by members of criminal
organizations. However, with a view to guaranteeing the protection of the
judicial officers entrusted with the criminal investigation, authorization is
given to keep their identities secret. The Prosecutor-General of the Nation may
authorize keeping the identities of the prosecutors under seal only in those
cases in which a showing is made that the life or integrity of the officer is at
risk, after obtaining an opinion from the Public Ministry.
In any event, the order to keep the identity under seal is valid during
the investigation but not during the trial.
Similarly, the Office of the Prosecutor-General of the Nation was
authorized, only in special and individually-chosen cases, to order that the
identity of witnesses be kept under seal. In
those exceptional cases in which the use of testimony from unidentified
witnesses is allowed, it shall not obstruct the right to cross-examination,
since the witnesses may be questioned by all of the participants in the process. Also noteworthy is the legal rule that disallows convictions
based exclusively on statements given by witnesses whose identity has been kept
under seal.
48. In
relation to the court, a special category of judges has been provided for within
the civilian justice system to hear cases of this type.
Specialized circuit judges will sit in the seats of the judicial
districts; they shall be the judges of first instance in such cases, the second
instance having been entrusted to a specialized court in Bogotá.
The legislation still provides for the existence of clear and compelling
indicia of liability (indicio grave de
responsabilidad) as the basis for prolonged preventive detention.[41]
49. The
State has recognized that the mechanism of specialized forms of justice has been
subjected to much criticism for subordinating the rights of the accused.
Nonetheless, it considers that it is an exceptional institution used exclusively
for safeguarding the persons involved in the proceedings, to ensure their own
rights.[42]
50. The
Commission considers the abolition of the "faceless judge" courts to
be a positive measure. In addition,
as will be discussed infra, it is
aware of the problems associated with protecting the personal integrity of
judicial officers, witnesses, and victims who participate in criminal
proceedings.
51. Nonetheless,
continuing to retain a "special" jurisdiction for the trial of certain
offenses is a source of concern, given the emphasis on the continuing use of
measures whose effects could limit the full enjoyment of guarantees such as
equality before the law and the courts, the presumption of innocence, and the
right to defense.[43]
Therefore, the Commission shall continue to pay close attention to the effects
that the interpretation and application of the laws providing for keeping the
identity of prosecutors and witnesses under seal may have on respect for the due
process guarantees of the defendant in particular cases.
3. The failure to adopt a law to criminalize the forced disappearance of
persons 52.
In its Third Report, the
Commission recommended to the State that it consider the possibility of
ratifying the Inter-American Convention on Forced Disappearance of Persons (Chapter II, Recommendation 8), already signed by the State in 1994.
The Report also makes reference to the fact that in 1998, a proposed law
was sent once again to the Colombian Congress seeking to define as a crime under
domestic law the forced disappearance of persons,[44]
genocide, and the forced displacement of persons[45], and to define and provide for harsher penalties
for torture.[46] At
the time of the approval of the Third
Report, this proposed law had been adopted in the lower chamber, and was to
come before the Senate in subsequent months.[47]
53. Consideration
of this proposed law in the legislative chambers concluded on November 30, 1999,
with the approval of Law 142/98. Nonetheless,
though recognizing that including the crime in the domestic legal order was
tantamount to overcoming the objections to ratification of the Inter-American
Convention on Forced Disappearance of Persons, the State reported that it had deemed it advisable to reopen the
debate in the plenary sessions, through the mechanism of a presidential objection to the proposal, regarding the definition
of the crime of genocide, considering that it went
beyond the international provision, on setting forth the possibility of
political genocide, as the IACHR itself has noted.
The Executive considers that this provision, in addition to not
corresponding to what is established in the respective treaty, is highly
inadvisable given the circumstances of the internal armed conflict affecting the
country.[48] In effect, the provision met with the objection of the
President of the Republic on December 30, 1999,[49] on grounds of unconstitutionality and
inadvisability of the article defining genocide against "a political group
or collectivity, with its own identity, for political motives."
The Executive argued that this expression "could impede, in
practice, the fulfillment of the constitutional and statutory functions by the
Armed Forces and National Police." In
any event, the IACHR would like to clarify that the international provisions on
the subject matter and their interpretation[50]
merely represent a standard that does not prevent the States from developing
standards that afford more protection in their domestic law, should they so
desire.
54. In any
event, the Commission must express its serious concern over the frustration of
what was a historic opportunity to incorporate the recommendations of the
international mechanisms for protecting human rights into Colombia's domestic
legislation on forced disappearance and other serious human rights violations.
The objection perpetuates a legislative gap that interferes with the due
protection, domestically, of the many fundamental rights affected by forced
disappearances. Moreover, despite
the intent expressed by the Executive to "reopen the debate" on this
law, the Commission understands that the issue has not been among those
forwarded to the special sessions of the Congress.
4.
The Draft Single Disciplinary Code
55. In its Third
Report, the Commission addressed the question of the application of
disciplinary sanctions for abuses committed by state agents in violation of
human rights that are not proportional to the seriousness of the infraction
committed. The Disciplinary Code
only defines genocide and forced disappearance of persons as serious breaches
punishable by dismissal, leaving beyond the scope of this corrective measure
conduct such as torture, extrajudicial execution, forced displacement,
violations of the right to liberty, and serious breaches of international
humanitarian law.
56. In its
response, the State reported on the presentation to the Congress of a draft
amendment to the Single Disciplinary Code.[51]
It stated that the reform is motivated by the need to bring the
disciplinary legislation into line with developments in the case-law, the text
of the 1991 Constitution, and the State's international obligations. 57.
The draft maintains as grave infractions, genocide and forced
disappearance, and includes torture, arbitrary executions, forced displacement,
violations of the right to liberty, and serious breaches of international
humanitarian law as conduct deserving of the maximum disciplinary reproach,
dismissal. In addition, it
establishes as an accessory sanction general disqualification from performing a
public function in any state post for five to 20 years.
58. The
proposed law calls for the intervention of legally constituted non-governmental
human rights organizations as participants in the process.
The State has indicated that these organizations, given their
relationship with the victims, are in a position that enables them to gain
access to information useful for disciplinary investigations and for determining
the facts. This expands the ability
of the complainant to intervene; under the current Code, he or she may only
appeal a decision to archive the investigation or the rulings exonerating the
persons investigated of responsibility.[52]
59. The
Commission considers the introduction of this proposed law as a positive step
and will continue to follow the legislative process leading to its approval and
entry into force.
B.
Problems with respect to judicial guarantees
60. In its Third
Report, the Commission noted the existence of high rates of impunity, as
well as a series of problems that affect the operation of justice in Colombia.
Specifically, the Commission referred to the consequences of the trial of
cases involving serious human rights violations allegedly committed by members
of the security forces before the military criminal justice system.
In addition, it identified a number of factors that hinder the effective
protection of the judicial guarantees set forth in the American Convention by
the civilian courts. What follows
are the key recommendations made in the Third
Report and the measures adopted by the State in response thereto with a view
to addressing those problems.
1. The transfer of cases regarding human rights violations from the military
courts to the civilian courts
61. The Third
Report recommended that steps be taken aimed at guaranteeing that the cases
that involve serious human rights violations not be tried by the military
justice system (Chapter V, Recommendation
6). Specifically, it was
recommended that the organs linked to the administration of justice adopt the
measures within their authority to implement fully the law as stated in Judgment
C-358 of the Constitutional Court on August 5, 1997 (Chapter
V, Recommendation 7).
62. The
State has indicated that the Office of the Delegate Procurator for Criminal
Matters has initiated requests for transfer of cases to the civilian criminal
courts. The information provided also reveals that although the
Office of the Prosecutor-General does not participate in the investigations
pursued by its dependant Units[53],
the Prosecutor-General specifically appointed prosecutors for the purpose of
evaluating competing jurisdictional claims at the request of the Office of the
Procurator-General and municipal ombudsmen (personeros
municipales) in a small number of cases.[54] As a result of these initiatives, the State
indicated that a total of 196 criminal proceedings had been transferred to the
civilian courts for "conduct related, among other things, to human rights
violations," and it attached the list.[55]
63. The
Commission must observe, however, that just as has occurred in the past[56],
the data set forth in the list does not clearly reveal whether the cases
transferred truly refer to the investigation and trial of acts that constitute
serious human rights violations. Indeed,
a large number refer to alleged crimes of burglary (39); Law 30/86, subornation
or falsehood (16); embezzlement (9); manufacture, possession, and or illegal
trafficking of firearms or ammunition (9); slander and/or libel (3); abuse of
trust (2); extortion (2); escape of prisoner (2); harm to the property of
another (1); arson (1); assault (1).
64. Unfortunately,
the State has not provided information on the removal to the civilian
jurisdiction in 1999[57]
of cases regarding facts with respect to which the Commission has deemed it
pertinent to initiate a case for an alleged violation of the American
Convention. Indeed, in 1999 there
were at least two procedural events that are especially worrisome and which are
described below.
65. In its Resolution
Nº 24/87[58],
the Commission declared the Colombian State responsible for the detention,
torture, and extrajudicial execution of Luis Fernando Lalinde Lalinde, by
members of the National Army, and it was recommended that the violations be
investigated and that the persons responsible be brought before the courts.
In response, on October 12, 1990, the Commander of the Army's Eighth
Brigade took on the investigation.[59]
On September 1, 1997, the Public Ministry representative asked the
Superior Military Tribunal to transfer the case to the civilian jurisdiction
based on the ruling of the Constitutional Court in Judgment C-358 of August 5,
1997. On November 27, 1997, the
Superior Military Tribunal refrained from ruling on the request for removal of
the case to the civilian jurisdiction, leaving the decision instead to the
Commander of the Army's Eighth Brigade. This
Commander, in his capacity as judge of first instance, decided to cease
proceedings against the members of the Army implicated in the case, and on April
6, 1999, the Superior Military Tribunal affirmed the cessation of proceedings in
the case of the serious violations committed against the person of Mr. Lalinde.[60] 66.
Furthermore, on September 9, 1999, the Superior Council of the Judiciary
ruled in the jurisdictional dispute raised in the case of the death of Messrs.
Carlos Manuel Prada González and Evelio Antonio Bolaño Castro on September 20,
1993, in Blanquicet, Antioquia, in favor of the military courts.[61] The
issue of the responsibility of State agents for violations of the American
Convention in the events in question is pending determination before the
Commission, which has already ruled on the admissibility of the case.[62]
67. These
procedural events, together with the absence of measures to transfer to the
civilian justice system other cases in relation to matters pending before the
Commission, continue to be worrisome in light of the conclusions reached by the
Commission regarding the impartiality and independence of the military courts in
the Third Report, and the corresponding recommendations.
The application of the provisions of the Military Criminal Code still in
force persist, along with the failure to abide by Judgment C-358 of the
Constitutional Court, as does the consequent violation of judicial protection
that should be afforded to victims of human rights violations.
2.
Effective protection of judicial guarantees by the civilian justice
system
68. In its Third
Report, the Commission made a series of recommendations aimed at addressing
the lack of efficacy in the administration of justice by the civilian courts.
The recommendations refer specifically to the infrastructure available
for investigations into and the trial of criminal conduct and the problems with
the failure to execute arrest warrants, as well as factors such as risk to the
personal security of the witnesses and judicial officers involved in
investigating serious human rights violations.
a.
Resources earmarked to the administration of justice
69. In its Third
Report, the Commission recommended endowing the Office of the
Prosecutor-General, and in particular its Human Rights Unit, with sufficient
financial and human resources (Chapter V,
Recommendation 2). In addition,
it recommended giving resources and support to the Office of the
Procurator-General and the Office of the Human Rights Ombudsman (Chapter
II, Recommendation 1). In this
regard, the State has reported that despite the overall deficit, public spending
in the justice sector has increased from $149,843,197 in 1999 to $172,691,502
for the year 2000.[63]
70. As was
already mentioned, the State has supported the work of the Human Rights Unit of
the Office of the Prosecutor-General through the Office of the Vice President of
the Republic, which is the organ entrusted with human rights within the
Executive branch. Specifically, it
reported that the Office of the Vice President has given specific logistical
support for the performance of the activities of the offices of the
Prosecutor-General and the Procurator-General in clarifying certain cases of
human rights violations. In
addition, it indicated that the Vice President is taking steps aimed at
obtaining resources to promote a series of investigations into human rights
violations.[64]
71. The work
of the Human Rights Unit in the Office of the Prosecutor-General has been widely
recognized by the Commission. Nonetheless,
there is still no clear indication whether the support provided has enabled it
to overcome the obstacles it faces daily in terms of infrastructure and security
(see section IV.2 infra).
b.
The efficacy of the organs linked to the administration of justice
72. In the Third
Report the Commission recommended that the State adopt all necessary
measures to ensure the timely execution of arrest warrants issued by prosecutors
and judges for persons associated with serious human rights abuses, in
particular members of paramilitary groups (Chapter V, Recommendation 4).
73. The
State has reported that through decree 2429 of 1998, a Special Committee to give
Impetus to Cases was established, aimed at coordinating the actions of the
Executive, the Office of the Prosecutor-General, and the Office of the
Procurator-General, to clarify a group of important cases involving human rights
violations. In addition to the
support provided by the Office of the Vice President (see supra),
the State has reported that an operational support group is now being designed,
made up of specialized personnel, to shore up the Office of the
Prosecutor-General in its efforts to execute the arrest warrants for members of
paramilitary groups or Autodefensas.[65]
74. In
effect, the Commission has learned of the existence of several committees to
give impetus to investigations of serious violations of human rights and
infractions of international humanitarian law, and understands that they are
receiving advisory services from international organs such as the Office of the
United Nations High Commissioner for Human Rights.
Nonetheless, it has received no information indicating that they have had
a significant impact on operations. To
the contrary, the Commission continues to receive worrisome information on the
difficulties that justice officers face in investigating human rights violations
by State agents or members of paramilitary groups, especially in certain areas
of the country, such as the department of Antioquia.[66]
75. As
regards human rights violations committed by State agents, the Third
Report also makes reference to the role of the Office of the
Procurator-General of the Nation in giving impetus to the corresponding
proceedings (Chapter II, Recommendation 3).
76. The
State reported that the investigations in the case of massacres, multiple
homicides, forced disappearances, acts of torture, and serious infractions of
international humanitarian law which come to the attention of the
Procurator-General's office on appeal have ended up in dismissal of State
agents, the maximum disciplinary sanction.
Nonetheless, only six public employees were dismissed from January to
November 1999[67], which in the view of the Commission is a
surprisingly low figure in light of the number of violations perpetrated by
State agents directly or in collaboration with paramilitary groups.
c.
The security of persons who participate in the administration of justice
77. The
Commission is aware of the risks to physical and mental integrity to which
judicial officers, witnesses, and victims are exposed when they participate in
criminal proceedings, and has recommended that steps be taken to guarantee the
security of persons who participate in the administration of justice (Chapter V, Recommendation 5).
78. In its
response, the State makes reference to the continuation of the Program for the
Protection of and Assistance to Victims, Witnesses, Officials, and Persons
Intervening in the Criminal Process, established by Law 104 of 1993.[68]
The State has recognized, however, that the increased demands for
protection and assistance have outstripped the coverage and technical capacity
of this Program, and has reported on the existence of two technical cooperation
projects, currently under study, to address this problem.
The first is a project to improve the therapeutic, social, and
humanitarian care to victims, witnesses, and persons participating in the
criminal proceedings, which will be submitted to the Colombian Agency for
International Cooperation (ACCI), with the support of the Government of Canada.
The second involves an agreement between the Office of the
Prosecutor-General and the Office of the United Nations High Commissioner for
Human Rights to design a system to protect witnesses and employees of the Office
of the Prosecutor-General.[69]
79. During
the last year, the Commission has continued to receive information on persons
linked to the administration of justice, victims, and family members of victims
who, in view of the seriousness of the threats, have been forced to move or even
leave the country, on their own or with the support of international
organizations. The Commission is
aware of the dimensions of the problem and of the difficulties the State faces,
and hopes that it adopts the measures needed to break the cycle of impunity
created by those who evade justice through threats and intimidation.
III.
THE FORCED DISPLACEMENT OF PERSONS
80. In its Third
Report, the Commission addressed at length the phenomenon of forced
displacement, which in recent years has affected more than one million people.
This phenomenon, which continues to be used as a strategy for military control
in the context of the armed conflict, is the direct result of the terror caused
by serious violations of the most fundamental human rights and of international
humanitarian law.[70]
As indicated supra, there has been little in the way of advances in the
investigation and trial of those responsible for such conduct, and efforts to
adopt legislation that defines the forced displacement of persons as a criminal
offense in the criminal code were recently thwarted (see section II on the
administration of justice and the rule of law).
81. In 1999,
288,127 persons who constitute approximately 57,625 households were forced to
flee by the direct or indirect, deliberate or unintentional action of
paramilitary groups, guerrilla organizations, and the Armed Forces, in the
context of military operations carried out as part of the armed conflict in
Colombia.[71] During
this period, there was an increase in mass exodus, as 31% of the displaced,
approximately 90,234 persons, organized their forced exits in treks for their
very survival in the face of the threats, murders, massacres, aerial attacks,
and widespread fear.[72]
82. The
departments of Cundinamarca, Bolívar, Antioquia, Santander, Norte de Santander,
Valle del Cauca, and Córdoba have been, in that order, the most affected by the
arrival of the displaced population in 1999.
As indicated by the CODHES report, while Cundinamarca, Antioquia,
Santander, and Córdoba have seen a permanent influx of the displaced over the
last four years, the departments of Bolívar, Norte de Santander, and Valle del
Cauca have seen a sharp increase in 1998. This
is likely explained by the worsening of the conflict between armed dissident
groups and paramilitary groups in these departments.[73]
83. The
State considers that part of its official policy includes an effort to address
forced displacement. Nonetheless,
it has recognized that it has come up against institutional, legal, and
operational limitations:
In addition, it has stated that
although prevention has been the main component of Government policy, it has
been difficult to do so given the situation of the armed conflict.[74]
84. In 1999,
the coordination and implementation of policies regarding forced displacement
were moved from the Office of the Presidential Adviser for Care to the
Population Displaced by the Violence, to the Social Solidarity Network.[75] During
the transition, the document CONPES 3057[76]
and the Strategic Plan for the Solidarity Network for 2000-2002 were adopted,
and along with them the Joint Technical Unit (UTC) was created as a technical
advisory body to the Social Solidarity Network, with the support of the Liaison
Office of the Office of the High Commissioner for Refugees (UNHCR).
85. Document
CONPES 3057 was approved on November 10, 1999, by the National Council on
Economic and Social Policy. This
"Plan of action for preventing and attending to the consequences of forced
displacement" calls for providing coordinated and comprehensive services to
the displaced population for purposes of prevention, assistance, and reparation.
The State considers that the plan responds to the needs of the displaced
and international guidelines on providing services, and proposes to reorganize
and simplify the institutional framework, strengthen the information systems,
and improve the mechanisms and instruments for prevention (early warning system,
improving security conditions, and local changes that make it possible to reduce
the inhabitants' vulnerability), protection, humanitarian care (forging
strategic alliances among the State, NGOs, and international agencies), and
return and re-location in stable socioeconomic conditions.[77]
86. In
addition, the State has noted that the Colombian Family Welfare Institute (ICBF:
Instituto Colombiano de Bienestar Familiar) participates in the process of
providing services to the displaced population from the time of the emergency,
during the transition, and through the return or relocation.
The ICBF seeks to provide psychosocial care to children and families and
food security to the displaced, mindful of the Convention on the Rights of the
Child and the text of the Guiding Principles on Internal Displacement.
87. The
Commission will analyze the effective application and the impact of the adoption
of this conceptual framework on displacement, particularly in the areas of
humanitarian assistance, raising the awareness of the population and State
agents, and resettlement.
A.
Humanitarian assistance and protection for the displaced
88. In its Third
Report, the Commission recommended execution of the humanitarian assistance
programs for the displaced that include the basic rules ensuring members of the
same family not be separated, proper accommodation, and satisfactory conditions
of health and hygiene (Chapter VI,
Recommendation 5).
89. As
already indicated, the functions of the Ministry of Interior[78]
were transferred to the Social Solidarity Network (RSS: Red de Solidaridad Social) by Decree 489 of 1999.
The State argues that the Network, which is also entrusted with
responsibility for other issues (see infra), is present in every region of the country, along with other
institutions, in the municipalities of Carmen del Bolívar, Mutatá, Turbo,
Malambo, Dabeiba, Bogotá, San Jacinto, Curumaní, Juradó, Bahía Solano,
Cabuyaro, Cúcuta, Carmen de Chucurí, Ibagué, Roncesvalles, Buenaventura, Buga,
and Jamundí. The State has also reported that cooperation agreements have been
entered into with the Association of Scouts of Colombia to provide humanitarian
care in Bogotá, and with the Colombian Red Cross to assist, initially, the
cities of Medellín, Cali, Quibdó, and Soacha. In addition, a National Network
for Comprehensive Emergency Humanitarian Assistance is in the process of being
established; it will have mobile camps to provide emergency shelter in massive
displacements, semi-rural emergency housing, and Units for Care and Guidance in
the mid-size and large cities that are receiving displaced persons.
90. With
respect to the effective operation of this institutional arrangement, the
Commission continues to receive information indicating that difficulties persist
in the effective coordination of State entities involved in addressing the
situation of the displaced population. In
addition, proposals on the Observatory of Displacement (Observatorio
del Desplazamiento) and the National Information Network, to provide early
warning systems that enable the State to respond, have yet to be implemented.[79]
B.
Providing the population with information regarding the status of the
displaced
91. In its Third
Report, the Commission recommended that campaigns be carried out emphasizing
the status of the displaced population as non-combatant civilians; accordingly,
they cannot be identified as parties to the conflict (Chapter
VI, Recommendation 4).
92. The
State has reported on the publication and dissemination, among the displaced
population and the government entities, of the Guiding Principles on Internal
Displacement, in a joint effort of the Social Solidarity Network and the Office
of the United Nations High Commissioner for Refugees (UNHCR).
In addition, the Social Solidarity Network, the Office of the Human
Rights Ombudsman, and the Office of the Vice President of the Republic are
coordinating implementation of a communications strategy for disseminating and
fostering respect for human rights, international humanitarian law, and the
Guiding Principles on Internal Displacement, for the purpose of raising the
awareness of the communities and armed actors as to the civilian status of the
displaced population, who cannot be treated as if they were an actor in the
conflict. In addition, it has
pointed out that the issue is also on the agenda for peace talks with the armed
dissident groups.
93. Despite
these efforts, the Commission has learned that the campaign appears not to have
reached all sectors of the State, in particular the security forces.
It appears that accusations against the displaced continue; usually they
are accused of being collaborators of the armed dissident groups or their
neutrality is called into question and it is said that they work as informers
for the Armed Forces in the context of the conflict.[80]
C.
The resettlement of the internally displaced
94. In its Third
Report, the Commission recommended that the State ensure the resettlement or
return of the displaced to their places of residence on a voluntary basis and in
conditions that assure the safety and dignity of returnees (Chapter
VI, Recommendation 3).
95. The
State has indicated that the processes of return and relocation of the displaced
population in several regions of the country have been accompanied by
production, housing[81], and food security[82]
programs. In addition,
responsibility for coordination and management of the resources and registration
of the displaced population has been delegated in the Social Solidarity Network,
to strengthen the institutional response.
96. The
State indicates in its report that returns are taking place under the
coordination of the Social Solidarity Network, such as those involving the
communities of the Cacarica river basin, in Ríosucio (Chocó), the villages of
El Diamante, Tolobá, Cascajal, and Divino Niño, in the municipality of
Tierralta; the district of Carmen de Cucú, in San Pablo; the municipality of
Carepa; the villages of Mesopotamia and Pueblo Nuevo, in Carmen de Atrato; and
the district of Playón de Orozco, in the municipality of El Piñón.
97. The
State has noted the experience of return to the Cacarica river basin as having
had the greatest impact. It argues
that the families left their territory 32 months ago and are currently settled
in Turbo, and in the districts of Bocas del Atrato and Bahía Cupica. In addition, it notes that this return program includes a
housing project; support for environmentally sustainable production; improving
the conditions of navigability of the Perancho and Peranchito rivers; the
establishment of a "house of justice" as a civilian security
arrangement; and the collective titling of their territory, with a total area of
103,000 hectares.
98. In
effect, the Commission is aware of the adoption of a document setting forth
"Partial agreements between the displaced communities of the Cacarica basin
settled provisionally in Turbo, Bocas del Atrato, and Bahía Cupica, and the
National Government." It should be noted, however, that it also has
information that indicates that this community of displaced, whose situation has
justified the issuance of precautionary measures[83],
continues to be at risk, exposed to the actions of the paramilitary groups in
the region, and that during the last year the threats and acts of violence
against its members have continued.
99. The
State also reported that it supported the immediate return of 4,000 persons from
La Gabarra through the Program for Development and Peace of the Middle Magdalena
Region, and the return of 10,000 persons from southern Bolívar who had
displaced to Barrancabermeja. In
the latter case, the State reported that parallel to the return, a process of
coordination and negotiation with the population involved was put in place,
giving rise to a joint effort to identify needs and actions framed in the
context of a regional development plan.
100. In the case
of southern Bolívar, the Commission has learned that, despite the existence of
agreements to protect the displaced, the persecution of some displaced persons
(such as Edgar Quiroga, detailed supra,
and the displaced persons in Barrancabermeja) has led to distrust and peasant
displacement into forest areas.[84]
101. The State
argues that in those cases in which the population has not been able to return
because of security considerations, or because they are already settled in other
rural or urban areas, INCORA has purchased lands for re-location.
This work, which includes productive development and accommodations, has
been carried out in coordination with the Ministry of Agriculture, the
respective departments and municipalities, and the International Committee of
the Red Cross. Such efforts are
currently under way at Altamira, Jerusalén, San Marino, Ataco, Armero, Guayabal,
Icononzo, Ríoblanco, and Roncesvalles.[85]
102. The State has
reported that inspection visits have been made by the Congress, specifically
through the Sixth Committee of the Senate, chaired by Senator Piedad Córdoba,
by holding public hearings that include the participation of State institutions
involved in the National System for the Displaced Population, national and
international NGOs, and representatives of the regional authorities.
These hearings have reported on the processes begun by the communities of
the displaced, examining their living conditions and the type of humanitarian
services they have received from state agencies at the places where the
displaced population is received.
103. With respect
to the promotion of actions and steps that make it possible for the displaced
population to have access to the programs of the National System of Agrarian
Reform and Peasant Rural Development[86],
INCORA has been assigned the responsibility for implementing special procedures
and programs for the sale, adjudication, and titling of lands, the registration
of rural properties abandoned by the displaced, as a mechanism of protection
impeding the sale of such properties, and the establishment of a program to
enable them to receive land that is the property of displaced persons in partial
payment for new properties in another part of the country.
The State has recognized, however, that this objective has been met only
in part, through internal agreements of INCORA.
Nonetheless, it intends to address the problem anew, in light of the
recommendations in the CONPES 3057 document.[87]
104. The
Commission appreciates the State's efforts to respond in an institutional and
coordinated fashion to the phenomenon of displacement.
Nonetheless, the continuation of the phenomenon and the deteriorating
situation of the persons affected suggest that the measures adopted are
insufficient in the face of the magnitude of the problem.
The policies and conceptual frameworks described require greater
political, technical, and financial support.
In addition, as has been shown by recent events such as those at La
Gabarra, significant advances are not perceived in establishing reliable
mechanisms to guarantee the safety of the displaced communities during
displacement and in the process of return and resettlement.
The Commission shall continue observing the development of the situation,
compliance with its recommendations, and respect for the Guiding Principles on
Internal Displacement.
IV.
THE SITUATION OF HUMAN RIGHTS DEFENDERS
105. In its Third
Report, the Commission expressed its serious concern over the situation of
persons who work for respect for human rights in Colombia, or to clear up the
facts of violations committed. These
persons are victims of constant threats, attacks on their physical integrity,
kidnappings, and even extrajudicial executions, in reprisal for their work.
This group of persons includes not only human rights defenders and the
members of non-governmental organizations, but also public employees, such as
the members of the Human Rights Unit of the Office of the Prosecutor-General,
who are constantly threatened, as well as the municipal ombudsmen (personeros), who are involved in human rights-related tasks at the
local level.
106. What follows
describes compliance with the recommendations that call on the State to impede
accusations by state agents against those who work to help bring about respect
for human rights and to clear up the facts of violations.
Compliance with the obligation to guarantee the security of these
persons, and to investigate and prosecute the persons responsible for acts of
violence against them will also be addressed.
1.
Official accusations against entities of the State and civil society
connected with the protection of human rights
107. In its Third
Report, the Commission expressed its concern over the fact that certain
state officials, in particular those belonging to the security forces, make
declarations that suggest that non-governmental human rights organizations and
their members act improperly or unlawfully when they carry out activities to
protect and promote human rights. In
this regard, the Commission recommended to the State that it adopt measures to
clarify unequivocally to public opinion that the work of non-governmental human
rights organizations in Colombia is legitimate and important (Chapter
VII, Recommendations 2 and 9).
108. In this
respect, it should be noted that on April 28, 1999, Gen. Alberto Bravo Silva
characterized the non-governmental human rights organizations as
"international terrorists." Despite
protests by civil society, no clarifying statement was forthcoming from the
Commander of the Armed Forces.
109. Finally, on
September 9, 1999, the Office of the President issued Circular Nº 07, in which
he ordered public servants to refrain from:
The Commission considers this measure to be a positive
gesture. Nonetheless, recent events
cast serious doubt on the will of the Government to ensure strict compliance
with this directive.
110. Concretely,
on December 3, 1999, the second commander of the National Army, Néstor Ramírez
Mejía, noted during a forum in Miami on Colombia organized by the
Cuban-American Foundation and Tradition, Family and Property (TFP): It
is demanded that we respond to events that it is up to the Police to confront,
yet we cannot shy away from this or show ill will, we have to accept it.
And, finally, what poses greater limitations for us is defending
ourselves from the infiltrators of the
subversion in the Office of the Prosecutor-General, the Office of the Human
Rights Ombudsman, and the Office of the Procurator-General, backed by some
international and national organizations that cause us very much harm ... the
non-governmental human rights organizations, misinformed or infiltrated, are as
dangerous as the guerrillas themselves.[88]
111. In response,
Prosecutor-General Alfonso Gómez Méndez and Procurator-General Jaime Bernal Cuéllar,
publicly stated that Commander Ramírez Mejía's declarations endangered the
lives of the members of both institutions, and they called for the intervention
of the Executive.[89]
The President of the Republic answered:
"I deplore the statements by Gen. Néstor Ramírez, if they were as
you say." In addition, he
considered that subsequent statements by Ramírez regarding his presentation in
Miami cleared up the concerns of both officials.
He left it up to the Procurator and the Prosecutor-General to decide
whether to bring criminal or disciplinary proceedings against the second
commander of the National Army.
112. In addition,
a number of non-governmental human rights organizations sought a clarification
from the President and from the commander of the Armed Forces, apparently
without having obtained a significant reaction in terms of carrying out that
Circular. On December 14, 1999, the
President was alleged to have acknowledged receipt of the communication, and
reported that it would be sent to the Minister of Defense "for his
cognizance and study," without making any reference whatsoever to the
statements by Gen. Ramírez, nor to the government's commitments to struggle
against the paramilitary groups. For
his part, Fernando Tapias Stahelin, general commander of the Armed Forces,
answered the communication from the human rights groups by affirming that the
Armed Forces recognize the importance of the non-governmental organizations and
are complying with Presidential Directive Nº 07 of September 9, 1999, but it
made no mention of Gen. Ramírez's statements.
113. The
Commission attributes the utmost importance to the work of human rights
defenders and the entities associated with the administration of justice, and
must express its concern vis-à-vis the Executive's response to the statements
by the Armed Forces. These
accusations by high-level members of the Army together with the failure of the
Executive to reject this position unequivocally seriously endangers the lives of
the persons alluded to.
114. The terms of
the response by the Executive can be interpreted as a failure to back the
efforts of organs such as the Office of the Prosecutor-General to enforce the
law and to uphold the rule of law. In
addition, they multiply the risk to which human rights defenders and the members
of organizations working in Colombia are exposed.
The Commission remains seriously concerned over the situation and
reiterates the urgent need to adopt specific and effective measures to punish
those who practically depict people who work for justice and human rights as
enemies of the State.
2.
Threats and acts of violence against those who work for human rights and
justice
115. In its Third
Report, the Commission recommended that the State investigate seriously and
effectively violence against human rights activists, and try and punish the
persons responsible, as a fundamental means for preventing the repetition of
violent incidents. These measures
should also include threatened State personnel who investigate human rights
violations (Chapter VII, Recommendations 3
and 10).
116. The State's
Report notes that the Ministry of Interior's program for the protection of
witnesses and persons who have been threatened has been strengthened.
This program currently serves and processes the requests for protection
from human rights defenders through the Risk Evaluation Committee of the
Protection Program for Witnesses and Persons who have been Threatened.
This Committee coordinates the adoption of urgent measures with the
support of the General Command of the National Police and, if necessary, the
Armed Forces and the Departamento
Administrativo de Seguridad (DAS).[90]
The Commission understands that at present the budget for this program
comes to approximately six hundred million Colombian pesos (US$ 250,000), which
cannot be considered an adequate or realistic amount in light of the high levels
of risk these persons face.
117. The State
reported that in December 1999 the term of Law 418 of 1997 was extended, and the
program for the protection of persons at risk for causes related to political or
ideological conflict, or the internal armed conflict, including persons
threatened in relation to cases of human rights violations, was regulated.
In addition, the General Law on the Budget includes an item in the amount
of approximately $1,400,000,000 for human rights prevention and protection,
assigned to the Special Administrative Unit for Human Rights in the Ministry of
Interior.
118. In 1999 and
to date in 2000, the Commission has received numerous requests for precautionary
measures on the part of persons dedicated to promoting human rights in Colombia.
These are human rights defenders, members of civil society organizations,
and even State employees, such as municipal ombudsmen (personeros)
who are subject to threats, assassination attempts, and/or accused of
collaboration with one or another of the parties to the armed conflict.
The Commission has responded to these urgent calls in the manner that it
deemed appropriate. When formally approached, the Colombian State has shown
different levels of responsiveness, diligence and efficiency in implementing the
IACHR’s requests.[91]
119. The
Commission is especially concerned about the situation of Messrs. Edgar Quiroga,
spokesperson for the peasant exodus in the Middle Magdalena region, and Gildardo
Fuentes, who on November 28, 1999, were allegedly intercepted by units of the
45th Army Battalion "Heroes of Majagual" in the village of La Placita,
district of Cerro Azul, municipality of San Pablo.
According to information provided by eyewitnesses, the detainees had been
tied to a tree and tortured. On
November 29, 1999, the Commission asked that precautionary measures be taken to
protect the lives and physical integrity of these persons.
A few days later, it learned of a communique from the Autodefensas Unidas
de Colombia describing Mr. Edgar Quiroga, who has a known history as a human
rights defender, as a "terrorist of the ELN."
Though it granted the precautionary measures, the Commission has received
no further news regarding the whereabouts of Edgar Quintero or Gildardo Fuentes.
120. The situation
mentioned is but one example of the risk to which persons who work for human
rights in Colombia are exposed. The
continual exposure to threats, accusations, and assassination attempts has
forced these persons to displace within the country and even to leave the
country and their valuable work. Apparently,
in departments such as Antioquia, there are no longer human rights defenders
permanently based in small municipalities, as they have been left unprotected in
the face of the paramilitary presence and the failure to act on the part of the
civilian or Police authorities.[92]
121. With respect
to the investigations into the assassination of human rights defenders, the
State has reported that indictments have been handed down in the cases of Mario
Calderón and Elsa Alvarado, Jesús María Valle Jaramillo, Eduardo Umaña, and
trade unionist Jorge Luis Ortega. In
addition, it noted that some of the cases mentioned are the subject of special
monitoring by the Special Impetus Commission, created by Decree 2429 of 1998.[93] The
Commission will continue to closely follow the progress in these investigations,
their pertinence with respect to the facts and the persons allegedly
responsible, and their effectiveness. It
is pertinent to note that during 1999, seven members of the Comité
Técnico de Investigaciones (CTI) of the Human Rights Unit in the Office of
the Prosecutor-General were assassinated. In
addition, the Commission has learned that more than 100 prosecutors are under
threat, and that some have had to leave the country.[94]
This situation will only contribute further to the high levels of
impunity in Colombia.
122. Despite the
measures adopted by the State to offer protection to the persons threatened and
the work of the Human Rights Unit of the Office of the Prosecutor-General to
clarify the above-mentioned cases, the Commission remains profoundly concerned
over the vulnerability of human rights defenders and persons who work for
justice in Colombia. 123.
In its Third
Report, the Commission noted the deterioration in recent years in the
enjoyment of economic, social, and cultural rights in Colombia, where, despite
some important efforts by the Government, unequal distribution of wealth
persists, with a serious impact on respect for human rights.
124. In its
response, the State referred to the programs and actions carried out by the
National Government in the area of social and economic development of the
population. These plans derive from the National Development Plan[95]
and in some cases supervision of their implementation depends on the Social
Solidarity Network[96]
and the Office of the Presidential Adviser for Social Policy.[97]
The State has recognized that: the
combination of factors such as the armed conflict, drug trafficking, and the
weak State presence in many parts of the country considerably limit the
possibilities of full enjoyment of human rights; the human rights policy seeks
to reconcile the human rights actions with actions related to the peace process.[98]
125. In this
connection, the "Plan Colombia" presents a set of strategies for
recovering the central responsibilities of the State.
These strategies are said to be aimed at promoting democracy, the
monopoly over the application of justice, territorial integrity, generating
conditions for employment, respect for human rights, preserving the public
order, and strengthening the rule of law.
126. The
Commission notes that in 1999 unemployment affected 20% of the economically
active population. In addition are
the consequences of the armed conflict for certain sectors.
First, the internally displaced, who, given their situation, are unable
to find productive employment. Second,
the trade union leaders have been openly accused and threatened for exercising
their trade union rights. In any
event, the Commission will closely monitor the development of these plans, and
their impact on compliance with its recommendations.
127. The following
observation concerning the situation of children, women, indigenous communities,
and Afro-Colombian communities are made in light of the recommendations made by
the Commission in its Third Report.
1.
The situation of children
128. The Third
Report addresses the situation of street children, children who
work--commonly in unhealthy or hazardous conditions, and without adequate
remuneration or benefits--and who do not receive schooling, and the shortcomings
in the current legislation. In
addition, the Commission referred to the strengthening of the programs created
to protect children from participating in the internal armed conflict and
re-evaluation of the system for recruiting for the security forces, bearing in
mind the protection that should be accorded to minors.
129. With respect
to the education of minors, the State has reported that it has implemented the
"Plan for Educational Development to Construct Peace (1999-2000)".[99] The plan calls for expanding access to schools,
and keeping schoolchildren in school, seeking to creating better conditions for
the exercise of the right to education in equal conditions.[100]
In this regard, the Commission must point out that according to the
Office of the Human Rights Ombudsman, the total number of minors outside the
school system came to 3.2 million for 1999. The projections for 2000 indicate
that another 1.5 million children will be without this fundamental service due
to the economic crisis.[101]
130. In relation
to the impact of the armed conflict, the State has reported that the ICBF has
designed the project Children, Family, and Armed Conflict, whose purpose is to
protect children and families in the context of human rights and international
humanitarian law, where priority attention is to be given to the displaced
population and children not linked to the armed conflict.
In November 1999, the specialized care service was reportedly implemented
for children not linked to the armed conflict; it is to provide services to this
population.
131. According to
the last report from the Consultancy for Human Rights and Displacement (CODHES),
with support from the United Nations Children's Fund (UNICEF), 86% of the
displaced households include children, and the increase in the number of
children displaced by the violence has been particularly accentuated in 1998
(190,200) and 1999 (176,800).[102]
The Commission notes that in addition to the consequences typical of
displacement, displaced children have to face other types of problem, e.g. the
inability of the 24,293 displaced children in Bogotá to attend school.[103]
In view of this situation, it is necessary to strengthen and implement
special programs to address the needs of children displaced by violence, with a
view to effectively carrying out that recommendation.
132. The Office of
the Human Rights Ombudsman[104]
has indicated that there are 6,000 minors participating in the ranks of the
armed groups, and the Delegate Ombudsman for Women, Children and the Elderly has
stated that seven million children live in absolute poverty, which makes them
particularly vulnerable to recruitment.[105] According to the records of the Colombian
Institute for Family Welfare, only 174 minors nationwide are on record as having
left the ranks of the armed groups from 1996 to 1999. This is indicative of the
lack of an effective program to protect minors involved in the conflict.
133. In its Third
Report, the Commission stated that whenever the armed dissident groups and
the paramilitary groups incorporate children under 15 years into their ranks,
they act in violation of the express provisions of international humanitarian
law. Although in due course both illegal groups and armed dissident groups
suggested they would be willing to negotiate an agreement to exclude children
from the armed conflict, the Commission has learned that leaders of the FARC
have publicly indicated that they will continue to recruit minors while the
hostilities persist.[106]
The Commission considers this unfortunate and condemns the fact that
armed dissident groups continue this illegal practice.
2.
The situation of women's rights
134. In its Third
Report, the Commission referred to gender discrimination in employment,
education, and participation in public affairs. Reference was also made to the alarming levels of sexual and
domestic violence in Colombia.
135. The State's
Report indicates that the Office of the Presidential Adviser for Equity for
Women has promoted a series of legislative reforms aimed at affording greater
protection to women who are victims of sexual, physical, and psychological
violence. Concretely, it indicates that stiffer penalties were adopted for rape,
rape of a person incapable of putting up resistance, and, in general, all crimes
against the sexual integrity of persons in which the most common victims are
women.
136. In effect,
the Commission understands that in December 1999, Congress approved a proposed
reform to the Criminal Code that specifically included defining the crimes of
rape, forced prostitution, forced pregnancy, and forced sterilization in the
context of the armed conflict. Nonetheless,
it should be clarified that the President of the Republic objected to several
articles of the Code, thereby deferring the punishment of such conduct and the
entry into force of the legislation.
137. The State
also indicated in its answer that Law 294 of 1996 on preventing, remedying and
punishing family violence is undergoing reform.
The State has indicated that the reform seeks to offer more accessible
protection to women and children who are victims of this phenomenon by
transferring jurisdiction to the special public defenders or comisarios
for family matters and, where pertinent, giving them the power to issue
preventive measures when cases of family violence come to light.
138. In its Third
Report, the Commission referred in positive terms to Law 294 of 1996.
This statute criminalizes abuse, restraint on physical liberty, and
sexual violence between spouses as crimes of family violence, and it contains an
expeditious mechanism to protect victims. Under
the current regime, a motion seeking a protective measure is to be heard by a
family judge, in keeping with Law 294. The
Commission understands that this provision has already been amended by Law 575
of 2000, whose main provision transfers jurisdiction over requests for special
protection from the family judges to the comisarios,
who function as administrative personnel.
139. The
Commission has received information that indicates that this transfer of
jurisdiction to the administrative authority to hear the motion for a protective
measure is not necessarily in response to an evaluation of the impact of the
law, but responds, rather, to the need to clear up the backlog of cases in the
courts.
140. The
Commission will continue monitoring the impact that the reform of this provision
will have on its effective application and on compliance with the duty to
administer justice adequately in cases of family violence.
In addition, it will continue to follow closely the actual approval of
the Criminal Code in areas that affect women.
3.
The situation of the indigenous communities
141. In the Third
Report, the Commission referred to the question of the recognition and
granting of title to indigenous lands and their natural resources.
The Commission recommended, among other things, that the indigenous
communities be guaranteed effective control over their resguardos
or other community lands, without the interference of those who seek to maintain
or assume control over those territories by violence or any other means to the
detriment of the rights of the indigenous populations.
142. The State
indicated, in its answer, that as of November 25, 1999, a total of 509 resguardos
had been constituted to benefit 64,378 families made up of 344,659 indigenous
persons, and one indigenous reserve. The
territory adjudicated as a resguardo
has a total area of 30,414,096 hectares.[107] In
addition, the Commission has learned that in 1999, additional territory was
assigned to the U'wa resguardo.
143. Nonetheless,
the Commission has received information that indicates that the adjudication of
property titles to indigenous communities continues to be sluggish and
inefficient.[108]
It has been noted that the problem has worsened, among other reasons due
to the recent re-structuring of INCORA, the entity in charge of carrying out
land titling. One example is the delay in the implementation of agreements with
the Paez communities of the Cauca.[109]
144. With respect
to the episodes of violence that have a detrimental impact on indigenous peoples
within their own resguardos, the State
has said that it is coordinating actions, through the Commission for the Human
Rights of Indigenous Peoples and its various sub-committees, with the various
security, oversight, and Executive offices to takes steps to neutralize those
actions.
145. The
Commission continues to receive information and reports, in some cases from the
National Indigenous Organization of Colombia (ONIC), regarding the situation of
violence and in some cases the displacement of indigenous families and
communities. The situation of the
Karagabi and Kiparadó communities, during the efforts to regain military
control over the upper Sinú region in January 1999, are one such example.
146. As is
publicly known, the Embera-Katío community has been hard hit by paramilitary
violence during the period under study. Alejandro
Domicó Domicó was executed on February 1, 1999, in the municipality of
Tierralta, by the Autodefensas Campesinas de Córdoba y Urabá, and Lucindo Domicó Cabrera, a
member of the Cabildo Mayor del Río Sinú
y Río Verde, and spokesperson in the negotiations with the Urrá S.A.
company, was assassinated on April 24, 1999, in the municipality of Tierralta, department of Córdoba, allegedly by paramilitaries.
147. The
Commission continues to be seriously concerned about the security of these
communities, which appear to be defenseless in the face of actions taken by
actors in the armed conflict. The
Commission urges the State to adopt effective and special measures of protection
with respect to this part of the civilian population.
148. In its Third
Report, the Commission also recommended ensuring that the process of
consultation with the indigenous communities is carried out prior to authorizing
the exploitation of natural resources on their lands.
The State should also guarantee that the exploitation of resources not
cause irreparable harm to the identity or religious, economic, or cultural
rights of the indigenous communities.
149. The State
indicated that the right to consultation for any project or activity that might
affect these communities has been regulated by Decree 1320 of 1998.
In addition, it noted that the indigenous communities have been assisted
by the Human Rights Bureau of the Ministry of Interior in these processes.
According to the State, more than 100 consultations have taken place with
the Ministry of Environment that have made it possible "to ease tensions in
the conflicts that have come about due to the expectations of development
associated with some projects. Similarly,
in some cases differences have arisen between the parties that have delayed
projects, but they have been solved by recourse to negotiation and dialogue, in
some cases with excellent results, while others are marked by conflict."
150. With respect
to this question, as is public knowledge, in 1999 several incidents have
affected the U'wa and Embera Katío indigenous groups in which lives have been
lost. These incidents display the discontent in these communities,
or at least of a large part of their members, with the allocation of territories
for the exploitation of natural resources, the issuance of environmental
licenses to private companies, and the transparency of the consultation
processes.
151. The
Commission understands that the Colombian courts have ruled on the compatibility
of the measures adopted by the State with its obligations pursuant to domestic
and international law.[110] The
Commission will continue observing the situation, not only in light of the
recommendations in the Third Report, but also of complaints received.
4.
The situation of the Afro-Colombian communities
152. In its Third
Report, the Commission noted the deficiencies in the health infrastructure,
education, housing, and general well-being in the areas inhabited by these
communities and the effects of Transitory Article 55 of the 1991 Constitution to
make reparation for the historic mistreatment of this population.
The Commission recommended full implementation of the provisions of Law
70/93, adopted in 1993, to improve their conditions and legal status.
153. On this
occasion, the Commission notes that the Report by the State, despite referring
to the Afro-Colombian communities, does not include specific information on the
adoption of specific measures to address the Commission's concerns, which would
appear to indicate that the problems identified in the Report persist.
Accordingly, the IACHR calls on the State to adopt measures to comply
with its recommendations regarding the situation of the Afro-Colombian
communities.
VI.
CONCLUSIONS
154. The
Commission is grateful to the State for its collaboration in the follow-up
process, and takes note of its statements regarding compliance with the
recommendations made in the Third Report. At the
same time, it should note that the information received from several sources
with respect to human rights violations in Colombia, since the approval of the Third
Report, indicate that the State has not adopted the measures needed to
re-establish respect for fundamental rights in its territory.
155. The
Commission is extremely concerned by the increasing violence in Colombia, by
both the armed dissident groups and the Autodefensas.
The paramilitary forces have stepped up their barbaric attacks on the civilian
population, in particular against the most vulnerable and/or exposed citizens:
the displaced communities, the indigenous communities, human rights defenders,
and even State officials who work for justice.
156. In its Third
Report, the Commission addressed the links between members of the security
forces and illegal groups in Colombia, the degrees of cooperation in the
commission of acts that constitute human rights violations and/or are
incompatible with international humanitarian law, and the responsibility of the
State. The information collected
indicates that these links persist and indeed may have been strengthened.
157. Unfortunately,
the freedom with which the paramilitary groups and autodefensas
continue to operate throughout the territory, and the high and mounting levels
of violence, which continues to cause forced displacement, suggest that the
State's efforts to combat, dismantle, and disarm them have been far from
successful.
158. The high
levels of impunity persist, among other reasons, due to the continuing trial of
human rights violations by the military courts (despite recent legislative
efforts to address this problem), the judicial practices that surround the
assignment of jurisdiction, and the violence or accusations directed against
those who investigate or report human rights violations.
159. Finally, the
Commission wishes to reiterate its appeal to the parties to the armed conflict
that, through their command and control structures, they respect, comply with,
and enforce the norms that govern the hostilities set forth in international
humanitarian law, with special emphasis on the provisions that afford protection
to civilians. In those situations
where internal hostilities still persist, the Commission has underscored the
need to observe the basic norms of international humanitarian law in order to
avoid any act that might hinder the return to peace and national reconciliation. [ Table of Contents | Previous | Next ] [1] OEA/Ser.L/V/II.102
Doc. 9 rev 1. [2] On the assassination attempt on Eduardo Pizarro Leongómez,
see IACHR, Press Communique 31/99 of December 23, 1999. [3] On April 11, 1999, Hernando Rangel Moreno, director of
the newspaper Sur 30 Días and a
radio announcer, was assassinated. On
August 13, Jaime Garzón, a well-liked journalist and humorist, was
assassinated. On September 16,
Guzmán Quintero Torres, editor-in-chief of the regional newspaper El Pilón and correspondent for the news program Tele
Caribe, was assassinated. On
October 21, Rodolfo Luis Torres, correspondent for Radio
Fuentes of Sincelejo, was assassinated.
On December 4, Pablo Emilio Medina Motta, a television cameraman, was
assassinated. As regards
threats to journalists and the exercise of freedom of expression in
Colombia, see "Report of the Office of the Special Rapporteur for the
Freedom of Expression," in Annual
Report of the IACHR 1999. [4] During the first nine months of 1999, the following
academics were assassinated: Darío Betancourt (Universidad Pedagógica Nacional), Hernán Henao (Universidad
de Antioquia), Héctor Fabio Bejarano (Universidad
de Santiago de Cali), Jesús Arnoby Gómez Gómez (Universidad
Cooperativa de Colombia), and Jesús Antonio Bejarano (Universidad Nacional de Colombia), who served as Presidential
Adviser for Peace during the Gaviria Administration. Universidad
Nacional de Colombia, "Informe sobre la situación de derechos humanos
en las universidades de Colombia," submitted to the IACHR on
September 28, 1999. [5] Responsibility for these massacres has been attributed
as follows: 38% to paramilitary groups and autodefensas; 1% to the Armed Forces or National Police; 16% to
armed dissident groups; 18% to undefined groups and militia; and the
remaining 26% to other groups. Office
of the Human Rights Ombudsman, SAT Sistema de Alertas Tempranas.
Subsistema de Información:
Masacres ocurridas en Colombia 1999. [6]
Id. [7]
See CINEP and Justicia y Paz, Banco de
Datos de Derechos Humanos y Violencia Política, Revista Noche y Niebla, No.
12, April-June 1999, Nº 13,
July-September 1999, pp. 21-36 and 23-38, respectively and Nº
14 October-December 1999, pp. 28-33. [8] Office of the Human Rights Ombudsman,
SAT Sistema de Alertas Tempranas. Subsistema de Información: Masacres ocurridas en Colombia 1999. [9] After the approval of its Draft Follow up Report, the
Commission learned that five members of the Comunidad de Paz de San José de
Apartadó had been massacred on February 19, 2000. The State has informed the Commission about the steps taken
to clarify the event, through the appropriate channels. [10] On July 1, 1999, the non-governmental human rights
organization MINGA was reported to have warned the Commander of the Fifth
Brigade and the Ministry of Defense on the threats against the inhabitants
of La Gabarra. The Commander of
the Fifth Brigade reportedly answered that "the statement that the
aggressors will enter La Gabarra and assassinate the population because of
supposed ties to the guerrillas and will take control of the area is but a
chimera." See El
Tiempo, Tuesday, August 31, 1999. [11] The State's Report notes merely that consideration has
been given to authorizing the General Commander of the Armed Forces to
"remove from active duty, by discretional decision, members of the
various forces because of their inefficient or unsatisfactory performance in
the struggle against the armed groups operating outside the law" and
that one criterion for promotions of members of the Armed Forces and
National Police, and for their rotation and assignment to units, should be
their performance in relation to respect for human rights and effectiveness
in the actions against the armed groups operating outside the law." State’s Report, p. 48. [12] Decree Nº 1710 of September 1, 1999, which retired
from active duty one brigadier general of the National Army. [13] See El Tiempo,
Tuesday, August 31, 1999. [14] Investigation N° 536, relating to the events that
occurred in Carboneras, Corregimiento
La Gabarra on May 29, 1999, implicating the Captain acting that day as
Police Commander of the Tibú Station.
Investigation N° 538, relating to the events that occurred in the
urban area of Municipality of Tibú, on July 17 1999, implicating the
Commander of the Counterinsurgency Batallion N° 47 “Héroes
de Saraguro”, the then Commander of the Police Station and six police
agents who were at the Station the night when the events took place.
Investigation N° 575 relating to the urban zone of the Corregimiento
La Gabarra, Municipality of Tibú, on August 21, 1999, involving the
Commander of the military base established at the Corregimiento
La Gabarra. The persons
implicated in these processes are presumably detained. [15] Observations presented by the State on April 3, 2000. [16] The breakdown of the various "blocs" and
"war fronts" deployed by the Autodefensas
is set forth on the World Wide Web. [17] Human Rights Watch, The Ties that Bind: Colombia and Military and Paramilitary Links,
February 23, 1999. [18] Office of the Human Rights Ombudsman of Colombia, SAT
Sistema de Alertas Tempranas. Subsistema de Información:
Masacres ocurridas en Colombia 1999. [19] This group of displaced is protected by precautionary
measures issued by the IACHR in December 1997. See Annual Report of the IACHR 1997, p. 41. [20] This Community of Peace is protected by precautionary
measures issued by the IACHR in December 1997.
See Annual Report of the IACHR 1997, p. 41. [21] On January 10, 1999, the mayor of Apartadó denounced
that paramilitary groups that operate in Urabá have a list of 100 persons
facing death threats, and that in a message to him from the Autodefensas
Campesinas de Córdoba y Urabá they warned him "to have 100
coffins ready, because the war is going to continue."
Presentation of the Comité Permanente para la Defensa de los Derechos Humanos "Héctor
Abad Gómez", hearing before the IACHR on the general human rights
situation in Colombia, 104th session. See
also El Espectador, January 11,
1999. [22]
See CINEP and Justicia y Paz, Banco de
Datos de Derechos Humanos y Violencia Política, Revista Noche y Niebla, Nº 12, April-June 1999, Nº 13, July-September
1999, and Nº 14 October-December
1999 pp. 21-36, 23-38 and 28-33, respectively. [23] Specifically, members of TALIBER, an organization that
works for prisoners' rights in coordination with the law school at the
university, were threatened, as follows: Two members of the teaching staff,
47 students, and the members of the boards of directors, including the
university employees. [24] In 1999, the manager of the law school cafeteria was
assassinated, as was one of the threatened student leaders, as he was
leaving the university. [25] State’s Report, p. 7. [26] State’s Report, p. 49. [27] See Press Communiques 4/99 (March 8, 1999), 11/99
(April 16, 1999), 15/99 (June 2, 1999), and 28/99 (November 2, 1999). [28] The FARC was responsible for 47 massacres with 219
victims, the ELN 13 massacres with 44 victims, the EPL two massacres with 14
victims, and the ERP one massacre with four victims. Office of the Human Rights Ombudsman of Colombia, SAT Sistema
de Alertas Tempranas. Subsistema de Información:
Masacres ocurridas en Colombia
1999. [29] IACHR, Third
Report, p. 372. [30] See, e.g., Report Nº 26/97, in Annual Report of the
IACHR 1997; Report Nº 61/99 and Report Nº 62/99 in Annual Report of the
IACHR 1998, Vol. I. See also,
Report of the United Nations High Commissioner for Human Rights on the
Office in Colombia, Commission on Human Rights, E/CN.4/1999/8, March 16,
1999. [31] Constitutional Court, Judgment C-358 of August 5,
1997. [32] State’s Report, pp. 55-58. [33] State’s Report, pp. 42-45. [34] Despite the change in wording, Article 2 of the Code
speaks of offenses particular to the military function, and not of
service-related offenses, and therefore does not determine the scope of
Article 221 of the Constitution. Accordingly,
the provision appears to set aside the rule established by the
Constitutional Court according to which for an offense to be tried in the
military jurisdiction, the action must be directly and proximately
service-related, i.e., a regular action by the Armed Forces or National
Police that becomes irregular. Comisión Colombiana de Juristas,
Panorama de los derechos humanos y del
derecho humanitario en Colombia 1999, p. 35. [35] State’s Report, p. 39. [36] See Rome Statute of the International Criminal Court, UN
doc. A/CONF.183/9 (1998), Article 33, which reflects the current status
of international law in this field. See
also, Statute of the International Criminal Tribunal for the former
Yugoslavia, UN S/RES/827 (1993), Article 7; and Statute of the International
Criminal Tribunal for Rwanda, UN S/RES/955
(1994), Article 6. [37] State’s Report, pp. 55-58. [38] The Code confers the right to request that evidence be
taken to show the existence of the punishable act, the identity of the
perpetrators or participants, and their responsibility; one may appeal the
rulings on those aspects. This
amounts to a statute that makes the full, real participation of the injured
person more effective in a case in whose outcome he or she has a real
interest. [39] See IACHR, Third
Report, Chapter V, paras. 56-59. [40] Law 270 of 1996. [41] State’s Report, pp. 59-61. [42] State’s Report, pp. 53-55. [43]
In this regard, see Statement by the Office in Colombia of the United
Nations High Commissioner for Human Rights of May 2, 1999, and the "Observaciones de la Oficina en Colombia de la Alta Comisionada de
las Naciones Unidas para los Derechos Humanos en relación con la abolición
de la Justicia Regional." [44] The definition proposed in the draft legislation
included, as possible perpetrators of the crime of forced disappearance,
public employees, private persons acting under the decision or with the
acquiescence of public employees, private persons belonging to armed groups,
or any other person. The draft
legislation created special working groups on disappeared persons, a
national register, regulations for administering their property, as well as
the permanent obligation of the state to search for them.
It also considered the existence of a register of persons arrested
and detained, and an urgent search mechanism.
The draft legislation prohibited any amnesty or pardon in relation to
the crimes contained therein. [45] A criminal definition of forced displacement sought to
respond to a criminal modus operandi used frequently by the illegal armed
actors in the armed conflict in recent years.
At present, this conduct is criminalized generically by the laws on
crimes against individual autonomy. [46] The proposed legislation also included changes to the
definitions of the crimes of aiding and abetting after the fact, conspiracy
to commit a crime, and instigation to commit a crime, so as to include the
forced disappearance of persons, genocide, and forced displacement of
population within the most serious forms of such conduct.
State’s Report, p. 45. Nonetheless,
the text approved on November 30 appears to have undergone a series of
changes with respect to a series of issues, including due obedience, since
its approval weeks earlier by the First Committee of the lower chamber. [47] Third Report,
Chapter II, para. 81. [48] State’s Report, p. 16. [49] This situation has also affected the proposed reform
to the Criminal Code that incorporated the provisions of the law defining
the crimes of forced disappearance, genocide, forced displacement, and
torture, in addition to 27 infractions of international humanitarian law. [50] IACHR, Report Nº
5/97, Annual Report of the IACHR 1996. [51] State’s Report, p. 10. [52] State’s Report, p. 11. [53] The State indicated that the petitions for transfer
may only be brought before the competent officer by those are participants
in the process. State’s
Report, pp. 55-58. [54] The State reported that in the death of Wilmer Antonio
Ciro Monterrosa, August 14, 1999, in response to the request from the
municipal ombudsman of Saravena (Arauca), it ordered that a prosecutor be
designated in the Human Rights Unit to evaluate a possible motion to assume
jurisdiction. The investigation
that was being carried out by the 124th Judge of Military Criminal
Investigation was transferred by the Superior Council of the Judiciary to
the Human Rights Unit. In
addition, the Office of the Procurator-General asked the Dirección Nacional
de Fiscalías to evaluate a possible motion seeking jurisdiction before the
123rd Judge of Military Criminal Investigation regarding the preliminary
investigation into the violent deaths and torture of Messrs. Luis Joaquín
Bello Mendivelson and Luis Evelio Morales Aldana, on September 8, 1996, in
the department of Arauca; the ruling was also favorable to the Human Rights
Unit. State’s Report, pp.
55-58. [55] State’s Report, pp. 58 and 59. [56] See Third Report,
p. 181. [57] In the course of 1998, the investigation of the
matters examined in Cases 11.237,
currently pending before the Inter-American Court (see Inter-American Court
of Human Rights, Case of "Las
Palmeras," Preliminary Objections, Judgment of February 5, 2000)
and 10.337 (See Report Nº 7/00,
Amparo Tordecilla Trujillo, Annual Report of the IACHR 1999), was
transferred to the Human Rights Units of the Office of the
Prosecutor-General. [58] IACHR, Resolution
Nº 24/87, Colombia, Annual Report of the IACHR 1987-1988. [59] It should be recalled that the Eighth Brigade of the
National Army and its commanders issued the orders as a result of which Luis
Fernando Lalinde was detained, tortured, and executed on October 4, 1984. [60] Information collected in the hearing on the general
human rights situation in Colombia held during the Commission's 104th
session. [61] The State informed the Commission as to the decision
of the Superior Council of the Judiciary in the course of a hearing on this
case, held October 1, 1999, during its 104th session. [62] IACHR, Report Nº
84/98, Admissibility, Annual Report of the IACHR 1998, Vol. I. [63] State’s Report, Attachment N° 7. [64] State’s Report, p. 53. [65] State’s Report, p. 53. [66] "The groups of investigators sent from Medellín
to the regions to collect evidence on the paramilitary actions are either
assassinated or return to Medellín bearing a message from the respective
paramilitary chief to the effect that it would be best not to investigate
them, for their actions are not directed against the country's institutions.
Whatever the case, the few investigators willing to collect evidence
find no support for their efforts from members of the Police in the urban
areas, nor from members of the Army in rural areas, in regions under the
tight control of the Armed Forces."
Submission by the Comité Permanente para la Defensa de los Derechos Humanos "Héctor
Abad Gómez" during the hearing held in the 104th session of the
IACHR. [67] In addition, it reported that in order to improve
investigations in cases of violations of human rights and international
humanitarian law, a large number of attorneys were called to testify who
were responsible for investigations in such inquiries and determining the
responsibility of public authorities. State’s
Report, pp. 8 and 9. [68] The Program, under the Office of the
Prosecutor-General, is aimed at providing integral protection to the
participants in processes and their families, with respect to their needs
for security, maintenance, housing, and medical and psychological care.
The program has national coverage and has Regional Units for
Assistance and Protection strategically situated in Bogotá, Cali, Medellín,
Barranquilla, and Cúcuta. State’s
Report, p. 54. [69] State’s Report, pp. 53-55. [70] Workshop on Implementing the Guiding Principles on
Internal Displacement, Summary Report, May 27-29, 1999, Bogotá, Colombia,
Brookings Institute Project, Grupo de
Apoyo a Organizaciones de Desplazados, U.S. Committee for Refugees.
See also, Statement by the Representative of the Secretary General on
Internally Displaced Persons, Francis M. Deng, to the 54th Session of the UN
General Assembly, November 5, 1999. [71] These figures correspond to the monitoring component
of the Information System on Forced Displacement and Human Rights in
Colombia SISDES. Newsletter of
the Consultancy for Human Rights and Displacement (CODHES) CODHES Informa Nº 28, February 22, 2000. [72] In 1998, the percentage leaving in exoduses was 21%.
See CODHES Informa Nº 17, February 15, 1999. [73] CODHES Informe
Nº 28, February 22, 2000. [74] State’s Report, p. 37. [75] Decree 489/99, which assigns "to the Social
Solidarity Network, an entity under the Administrative Department of the
Office of the President, the proceedings and functions that had been
performed by the Office of the Presidential Adviser for Attending to the
Population Displaced by the Violence" (Article 1). [76] The drafting of this policy instrument included the
participation of an inter-institutional commission made up of the Social
Solidarity Network, the National Planning Department, Plan Colombia, various
other state institutions, national and international NGOs, and United
Nations agencies. The
Commission has been informed that the final version of the document does not
reflect most of the aspects developed in the draft on which the
inter-institutional commission worked. [77] State’s Report, Attachment 6. [78] The Ministry of Interior had been performing these
functions through the Special Administrative Unit for Human Rights. [79]
Comisión Colombiana
de Juristas, Panorama de los derechos humanos y del derecho humanitario en
Colombia: 1999, p. 41. [80] In December 1999, Gen. Canal, Commander of the 3rd
Army Brigade, based in Cali (Valle del Cauca), was reported to have
indicated--in an interview with the humanitarian mission made up of the
Office of the United Nations High Commissioner for Human Rights, the liaison
office of the United Nations High Commissioner for Refugees, the national
NGOs CINEP, Comisión Colombiana de
Juristas, Corporación Avre, Instituto Mayor Campesino, and the
Consultancy for Human Rights and Displacement (CODHES), the international
NGO Solidaridad Internacional, the Diocese of Life, Justice, and Peace of
the region, and the regional office for Bogotá of the Office of the Human
Rights Ombudsman--that one of the ways to solve the conflict and the
phenomenon of forced displacement is through collaboration of the civilian
population in the form of information as to the location and activities of
those who cause displacement. On
that occasion he was reported to have said that he understands but does not
share the idea of the Communities of Peace, which declare their neutrality
in respect of the armed conflict. [81] The State argues that as one specific strategy
applicable to the processes of rural re-location, the Social Solidarity
Network has been developing the implementation of a comprehensive package
for re-location of the displaced population, which will include the creation
and development of peasant reserve zones in select areas, by mutual
agreement with the displaced communities.
In those peasant reserve zones, the intent is to develop collective
properties for productive activities and for housing, as well as a crucial
package for temporary sustenance. [82] The State has considered the participation of the
regional and local organizations in preventing risk factors, the promotion
of day-to-day peace, and peaceful dispute settlement to be key for
developing this plan. The Plan also includes guaranteeing the health of the
displaced population, expanding the coverage of educational establishments,
teacher training, and the application of special pedagogic methodologies
that take account of the characteristics of this group of the population. [83] See the reiteration of the precautionary measures
originally issued on December 7, 1997, on behalf of displaced persons in the
stadium at Turbo and Bocas del Atrato.
IACHR, Annual Report of the IACHR 1998, p. 44. [84] See CODHES Informa
Nº 28, February 22, 2000. [85] The State has also supported stabilizing the
socioeconomic situation of 350 families who of their own accord sought to
relocate in Bogotá. In addition, it was decided that 100 families would be
re-located in Quibdó. In this
case, a temporary housing project and support for productive projects are
about to get under way, with the participation of the Colombian Red Cross,
the Spanish Red Cross, and the mayor's office.
In addition, indigenous families of Aruacos from the Sierra Nevada de
Santa Marta have been relocated on a property in Soledad, Atlántico, and
support was provided for the construction of their dairy farms. [86] Articles 17 and 19 of Law 387 of 1997. [87] The State aims to design and implement special
procedures for: (1) identifying
and clarifying the rights and property titles of the displaced population
that returns; (2) creating new forms of access to the land that do not
entail titling, such as leasing property with the option to buy, and other
forms of usufruct; (3) developing compensation schemes that make it possible
to use real property that has been abandoned as part of the payment for new
properties; (4) the use of properties donated by the private sector,
properties subject to confiscation, and the titling of untitled lands; (5)
in the case of territories for which collective title could be given to
indigenous groups, prioritizing those that benefit displaced populations
upon their return. These
measures are now being drawn up by a group of experts made up of
representatives of the Ministries of Agriculture and Interior, INCORA, the
National Planning Department, and the Social Solidarity Network. [88]
See "General admitió que tocó
el tema," El Colombiano, December 7, 1999, p. 8A; "Procurador y Fiscal piden claridad al General Ramírez," El
Colombiano, December 6, 1999, p. 3; "Infiltrados,"
El Colombiano, December 16, 1999, p. 5A; "Sí hablé de infiltración: Ramírez," El Tiempo,
December 7, 1999, p. 3A. See
also, "Jefe militar colombiano
acusa a organizaciones no gubernamentales," El Nuevo Heraldo,
December 3, 1999. [89]
See, "Ramírez, en manos del
Fiscal y Procurador," El Tiempo, December 9, 1999, p. 9A.
The
Procurator-General and Prosecutor-General answered, "We do regret that
without any evidence whatsoever the direction of entities such as the Office
of the Prosecutor-General, the Office of the Procurator-General, and the
Office of the Human Rights Ombudsman have been called into question, these
being entities that have been and continue to be important for fighting
human rights violations. We
would have expected some response from the head of state and from the high
command of the armed forces." See
"Conocemos la Constitución,"
El Tiempo, December 11, 1999, p. 3A. [90] The State reported in its observations of April 3 that
26 arrangements of “hard” security are currently in force, including the
service of 48 bodyguards trusted by the protected persons and 12 more to be
appointed, 60 bullet-proof vests, 60 guns, 30 radios, and 30 vans.
The State also referred to the functioning of approximately 30
“soft” security arrangements which do not require armed personnel.
As far as the headquarters of the organizations are concerned, 23 of
them have already been adapted for protection and the contracts to work on
the adaptation of 62 more have been concluded.
The State is apparently also evaluating measures to protect 34 more
premises. The State has also implemented a program for humanitarian
emergency aid which has made possible the relocation of 85 people under
threat, as well as the travel arrangements of persons in extreme risk. [91] The list of precautionary measures issued from January
1999 to February 2000 is reproduced in Chapter III of the Annual Report of
the IACHR 1999. The Commission
has also turned to the State to request information on the security
situation of certain individuals and members of certain organizations. [92] Submission by the Comité
Permanente para la Defensa de los Derechos Humanos "Héctor Abad Gómez",
hearing before the IACHR on the general human rights situation in Colombia,
104th session. [93] State’s Report, p. 76. [94] Information received in the hearing on the general
human rights situation in Colombia held during the 106th regular session of
the IACHR. [95] This plan seeks to promote income-generation;
significantly reduce unemployment; reduce poverty and protect adequate use
of the environment; offer incentives for the social and economic promotion
of the population, in equal conditions, to expand social opportunities,
particularly for the population that is especially vulnerable in view of its
socioeconomic, cultural, ethnic, territorial, religious, or gender status;
and improve efficiency and equity in the allocation of public resources,
mindful of the criteria of income and regional and gender-based
re-distribution. [96] The Network finances and co-finances programs and
projects to support the poorest sectors of the Colombian population in the
areas of employment, education, food, social security, sports recreation,
cultural activities, and integration of marginalized settlements. In
addition, it is carrying out actions and programs to promote, develop, and
implement a new concept of social management in which State and society
coordinate, sharing responsibility for implementation, and for the results
of the social programs. [97] At present, this office is coordinating the design and
implementation of the National Program for the Prevention of Family and
Daily Violence, the National Plan for the Disabled, the Action Plan for
Children, and National Plans for Creation and the Prevention of Drug
Addiction (RUMBOS). [98] State’s Report, p. 23. [99] State’s Report, p. 33. [100] The strategies planned to be developed to achieve this
are: (1) mobilizing the
resources of individuals and organizations that commit to covering the cost
of a school supplies for one student; (2) regulating social service in rural
areas for the students of education and teaching-related programs; (3)
expanding access for the dispersed population in rural areas and the adult
population through education models whose quality has been tested; (4)
adopting alternative educational models to be applied in those dispersed
areas where it is not possible to have a student-teacher ratio of 15:1; (5)
promoting experiences of recognized value that render compatible work,
recreation, and education, such as the New School and the Tutorial Learning
System; and (6) strengthening rural education through a project that is
already being developed that seeks to strengthen basic education,
systematizing and promoting formal secondary and technical education, as
well as non-formal education to cover the youths and adults in these areas. [101] Communique Nº 462 of the Office of the Human Rights
Ombudsman, November 25, 1999. [102]
"Crece la niñez
desplazada," El Tiempo,
January 27, 2000, p. 2A. [103] Id. [104] Cambio, July
19, 1999, p. 16. [105] Cambio, July
19, 1999, p. 17. [106] UN Press Release HR/00/9, January 31, 2000,
"Special Representative of the Secretary General for Children and Armed
Conflict, Olara Otunnu, calls on the FARC of Colombia to Honor Commitments
on Recruitment of Children." [107] State’s Report, p. 91. [108] The community affected notes that administrative
obstacles persist to state implementation of the agreements.
For example, there is not sufficient personnel to carry out the land
purchase programs, the bonds for payment of the lands are not issued in a
timely fashion by the Ministry of Treasury and the National Planning
Department, and there are inconsistencies between what is reported by the
regional offices and the national office.
As a result, the procedures continue to be sluggish and complicated. [109] See Report Nº
/00, Annual Report of the IACHR 1999. [110] In the case of the Embera Katío, the Constitutional
Court stated that "the procedure for the issuance of the environmental
license that made possible construction of the civil works of the Urrá I
hydroelectric plant was carried out in an irregular manner, and in violation
of the fundamental rights of the Embera Katío of the Upper Sinú, as the
consultation that was required, formally and substantially, was omitted.
Thus, not only were the rights to participation, due process, and integrity
of this people violated, but also, the principle of respect for the
multicultural character of the Colombian nation was also violated, with a
grave impact on the right to subsistence of the Embera in the department of
Córdoba, in addition to the State failing to carry out the commitments it
has acquired internationally and incorporated into domestic law through Law
21 of 1991 (approving ILO Convention 169) in the area of respect for the
human rights of the indigenous peoples."
Constitutional Court, Judgment Nº T-652 (1998), Judge Carlos Gaviria
Díaz writing for the Court.
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