CHAPTER IV

 

HUMAN RIGHTS DEVELOPMENTS IN THE REGION

 

 

            INTRODUCTION

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

  

COLOMBIA

 

4.                  As in previous years, developments observed in the Republic of Colombia during 2006 were framed by the situation described in the introduction to Chapter IV of the Annual Report of the Inter-American Commission on Human Rights (IACHR). This framework is relevant as a whole and in particular as regards the continued existence of circumstantial or structural situations in member states that, for various reasons, seriously and gravely affect the enjoyment and exercise of the basic rights enshrined in the American Convention on Human Rights. Consequently, the Commission has adopted the following considerations on the matter, in accordance with the procedure set out in Article 57.1.h of its Rules of Procedure,[1] for their inclusion in its Annual Report.  On January 26, 2007, the preliminary draft of the present report was transmitted to the State for its observations.  These observations were received by the CIDH on February 27, 2007, and have been incorporated, where pertinent, to the final version of this report. [2]

 

5.                  The IACHR is keenly aware of the complex situation in Colombia, of the consequences on the civilian population of the violence perpetrated by the participants in the conflict, and of the State’s pacification efforts. In that context, the efforts of the Colombian Government in promoting measures intended to uphold human rights should be applauded. In particular, the IACHR would like to note the “Protection Program for Human Rights Defenders, Trade-Unionists, Journalists, and Social Leaders,”[3] which, as the IACHR has said on previous occasions, protects numerous beneficiaries of precautionary and provisional measures extended, respectively, by the IACHR and by the Inter-American Court of Human Rights. In addition, the IACHR again states the need to continue strengthening the protection mechanisms created by those programs.[4]

 

6.                  The Commission is also aware of the recent increase in government measures aimed at promoting human rights, such as the establishment of a committee to draw up a National Action Plan for Human Rights and International Humanitarian Law. The goal of this plan would be to emphasize “the role of human rights in national development [...] in order to strengthen the rule of law so it can maintain a state character that transcends successive administrations.”[5]

 

7.                  The Commission notes, however, that alongside initiatives to promote human rights, such as the one cited above, and the decrease in the numbers of certain human rights violations, the effects of the armed conflict are still being felt and continue to affect the most vulnerable sectors of the civilian population. Manifestations of violence persist alongside the efforts being made to demobilize the outlawed armed groups and to administer justice, which have yet to yield results in terms of effectiveness, comprehensive redress, and elimination of factors of violence.

 

8.                  Consequently, based on the on-site observations carried out in various regions of Colombia during 2006 and on information received from both the State and civil society at hearings and in written form, the IACHR has drawn up a list of comments on the human rights situation in the Republic of Colombia during 2006. Particular reference is made to progress made and obstacles encountered in the process of demobilizing armed participants and the development and enforcement of the applicable legal framework, the persistence of systematic violations of the right to life and humane treatment, the situation of vulnerable groups, and the situation of human rights defenders and social leaders.

 

I.         THE DEMOBILIZATION PROCESS AND THE DEVELOPMENT AND ENFORCEMENT OF ITS LEGAL FRAMEWORK

 

9.                  Over the past fifteen years, the parties involved in the armed internal conflict – in particular, the United Self-Defense Forces of Colombia (AUC) and the FARC-EP – have used massacres, targeted killings, and forced disappearances as strategies against the civilian population. The strategies of the armed dissident groups – chiefly the FARC-EP – have also included the use of indiscriminate attacks with explosives and kidnappings, in violation of the most fundamental principles of international humanitarian law. The IACHR has repeatedly noted its concern about the failure to clarify the overwhelming majority of these incidents through the courts.[6]

 

10.              As is generally known, between November 2003 and May 2006[7] more than 30,000 members of 35 blocs from the armed structure of the AUC were demobilized under an agreement reached with the Government of President Uribe.[8] The demobilization of paramilitary groups not covered by the agreement between the Government and the AUC’s Negotiating High Command was concluded in August 2006.[9]

 

11.              The member states of the Organization of American States have been closely following this process through the field verification work of the MAPP/OAS mission, under the supervision of the Secretary General. Thus, although the cycle of demobilizations agreed on with the AUC has been completed, the reports issued by the General Secretariat during 2006 indicate the presence of groups with ties to AUC blocs that have not aligned themselves with the demobilization effort, the regrouping of demobilized fighters into criminal gangs, and even the emergence of new armed players and/or the strengthening of other pre-existing ones, in areas abandoned by demobilized groups.[10]

 

12.              Similarly, the IACHR has monitored those aspects of the process related to the State’s observance of its human rights obligations. As a part of those follow-up efforts, during 2006 the IACHR received with concern information about the continued commission of crimes against the civilian population in certain areas of the country, perpetrated by fighters who had regrouped or continued to operate after the demobilization, in breach of the commitments entered into. Many of these incidents are a matter of common knowledge.[11] It has also received reports of acts of intimidation, harassment, and threats made by those individuals against social leaders and human rights defenders.  In its observations, the State makes reference to orders issued for the “persecution (sic) of the criminal bands that have been identified in some parts of the country, in which self-defense groups previously operated, that must be persecuted with resoluteness by the Judiciary and the Public Forces. Emphasizing that if within these bands there are people who were members of the united self-defense groups which demobilized to be brought before the Law of Justice and Peace, those will lose all benefits.”  The States indicates that the National Police has initiated an operative plan to confront these bands and has been ordered to “fulfill the task of monitoring and following-up on those reinstated, in order to ensure their conduct conforms to the law.”[12]

 

13.              As regards the compatibility of the process with the State’s justice administration obligations, the IACHR notes that for more than a year and a half this process progressed under the aegis of the regime in force for individual and collective demobilizations of all members of outlawed armed groups who wished to re-enter civilian life. At that time the IACHR,[13] along with other international bodies,[14] recommended the adoption of a legal framework that would set clear conditions for the demobilization of illegal armed groups in line with the State’s international obligations regarding truth, justice, and redress for the victims of the conflict.

 

14.              On June 22, 2005, the Congress of Colombia adopted Law 975 of 2005, which came into effect with the President’s signature on July 22, 2005. This “Justice and Peace Law” provides a series of benefits, including the imposition of noncustodial sentences of between five and eight years in exchange for meeting various eligibility requirements. The IACHR immediately noted its concerns regarding the prospects for the implementation of this legislation.[15] After the Justice and Peace Law came the adoption of Decree No. 4760 on December 30, 2005.[16] In May 2006, the scope of the Justice and Peace Law was covered by an interpretative ruling from the Constitutional Court,[17] in response to a series of unconstitutionality filings lodged by civil society organizations.[18]

 

15.              In its decision, the Court ruled that the legislation was in general terms constitutional, but it also ruled several of its provisions unconstitutional and placed conditions on their enforcement. The parameters of interpretation set by the Constitutional Court include those intended to protect the participation of victims in the process[19] and their access to full redress.[20] The ruling also clarified the obligation of effectively imposing the reduced prison term provided for and introduced legal consequences, such as the loss of benefits, for demobilized fighters seeking to benefit from the terms of the Law who were found to have kept information from the judicial authorities.[21] The judgment also clarified the definition of paramilitary activity as a common crime, and it ruled as unconstitutional the provision that allowed the time spent by demobilized fighters in the concentration zones to be offset against the duration of their noncustodial sentences.

 

16.              On August 1, 2006, following the publication of the full text of that ruling, the IACHR issued a statement on the application and scope of the Justice and Peace Law, underscoring the implications of the Constitutional Court’s judgment and calling on the State to abide by the terms set out in the Court’s decision. In its statement, the IACHR emphasized those aspects of the Constitutional Court’s ruling that must be strictly observed by the state institutions involved in the implementation of Law 975. Specifically, it said that the free statements given by demobilized fighters wishing to avail themselves of the Law’s generous benefits must be complete and truthful and must include disclosure of the causes and circumstances of time, means, and location in which the crimes were committed, in order to uphold the right to truth; the State must ensure the victims’ right to participate in all the procedural formalities provided for by Law 975; those availing themselves of the benefits offered by Law 975 must reveal the whereabouts of victims of forced disappearances; they must redress the victims with their own assets, including legal assets if their illegal assets are inadequate, or even on a jointly responsible basis with other members of the demobilized group, when the courts so rule; recidivism or nonobservance of the obligations imposed during the duration of the sentence must result in the loss of the benefit; and the appointed inspectors of the National Justice and Peace Verification Unit must have a methodological program for conducting and completing serious investigations of the facts.

 

17.              With reference to actions intended to ensure victims due redress, the IACHR recommended the establishment of guidelines to unify and standardize the criteria used by the appointed inspectors of the National Justice and Peace Verification Unit; the establishment of deadlines and mechanisms for implementing the victim redress process and ensuring interaction between the agencies involved, together with mechanisms to provide victims appearing at trial with due protection; and the strengthening of the notarial and land registry systems, so the agencies involved can ensure the due restitution of real property to the victims of the conflict.

 

18.              In late August 2006, news broke of the arrest of a number of paramilitary leaders involved in the demobilization process – steps taken to keep them at the authorities’ disposal in compliance with their commitment to undergo the applicable legal processes and, ultimately, to serve the prison terms applicable for crimes committed during the armed conflict.[22] The IACHR applauded this development as a first step forward in the administration of justice, and it hopes that further progress will be made in the search for truth, justice, and redress.

 

19.              Then, on September 29, 2006, the Government adopted Decree No. 3391/2006, which partially regulated Law 975 of 2005.[23] This Decree embraced some of the comments offered by the Constitutional Court regarding providing victims with redress and about requiring demobilized fighters to confess, truthfully and fully, all the crimes committed during the period they belonged to the group. The Decree also provided that the time spent in government-established concentration zones by members of outlawed armed groups involved in processes of collective reintegration into civilian life would be considered as part of the noncustodial punishment in the event that the alleged incidents took place prior to the Constitutional Court’s ruling.

 

20.              As regards the specific enforcement of the legal framework for the State’s participation and victim redress obligations during the final months of 2006, the IACHR is concerned by the complaints filed regarding shortcomings in the execution of the subpoenas issued to victims called on to participate in the processes of Law 975. The Commission has been informed that these subpoenas were issued in the areas where the outlawed armed groups operate, without indicating the aliases used at the time the crimes were committed by the demobilized fighters now seeking the benefits of the Justice and Peace Law. It should be noted that a large number of surviving victims were forcibly displaced to other areas of the country in search of refuge, because of which the subpoenas should be issued at the national level. The participation of victims in court proceedings is essential in meeting the obligations of establishing the truth and making due redress.  On this point, the State has indicated in its observations to the present report that “at the present time proclamations are being published for 20 days in the Secretariat of the State Attorney’s Office and for one day in one of the nation’s leading newspapers - that include the complete name, photo, alias, name of the group to which he belonged and the location where the victims can go.  Additionally, complete information is available that permit the victim to place himself in a real and determined context.”[24]  The State also informs that it assigned to each one of the offices of the National Unit of the State Attorney’s Office for Justice and Peace, the documentation of information regarding the origin, structure, area of influence, members, sources of financing, property, facts and victims, with respect to the following demobilized groups”.[25]

 

21.              Finally, it should also be said that during 2006 the Colombian State took steps toward negotiating the demobilization of other illegal armed groups, thus demonstrating its commitment to achieving pacification.

 

II.        CONTINUED VIOLENCE RELATED TO THE ARMED CONFLICT: THE RIGHT TO LIFE, HUMANE TREATMENT, AND FREEDOM

 

22.              In spite of the AUC’s demobilization, violence derived from the armed conflict still occurs. The IACHR continues to receive complaints indicating that outlawed armed groups – both paramilitaries and guerrillas – and members of the security forces are still involved in the commission of crimes and breaches of international humanitarian law to the detriment of the civilian population; these translate into violations of the right to life, humane treatment, and freedom, and lead to the continued existence of the internal displacement phenomenon.

 

23.              According to statistics produced by the Center for Investigation and Popular Education (CINEP), the first six months of 2006 saw a total of 969 human rights violations entailing political persecution, abuse of authority, and social intolerance,[26] and 739 serious breaches of international humanitarian law (IHL).[27] In the latter instance, 388 of these offenses were committed by the army, 241 by paramilitaries, and 251 by the police.[28] In turn, government figures recorded 4,020 killings and 52 massacre victims in the first quarter of 2006.[29] The state report indicates that the killings mostly took place in Valle del Cauca (20%), Antioquia (13%), the Capital District (8%), and Risaralda, Meta, and Nariño (5%).[30]

 

24.              During 2006 the IACHR learned of a study into the increased number of extrajudicial killings attributed to members of the security forces in 27 of the nation’s 32 departments over the previous four years.[31] Thus, the documentation of these cases by human rights organizations in Colombia would indicate an approximate figure of 726 extrajudicial killings committed by state agents between the years 2002 to 2006.[32]  The State, in its observations, indicates that “apparently, they are including as extrajudicial executions numbers corresponding to casualties which occurred during armed conflict [..] [that] are legitimate as long as they conform to International Humanitarian Law,  and the operational procedures. Although it is certain that some accusations have been brought against members of the Public Forces for deaths that occurred outside the context of an armed conflict, these constitute exceptions and are being investigated in criminal and disciplinary proceedings.[33]

 

25.              The study[34] argues that, frequently, extrajudicial killings are recorded as combat deaths in contexts that follow a series of defined patterns: they take place in areas where military operations are taking place;[35] they are preceded by the arbitrary arrest of the victim or victims or even their disappearance for a period of several days; the bodies are found in locations other than where the detentions took place; following the execution, the evidence is manipulated and concealed; and, finally, they are reported as combat deaths. Determining the responsibility for the commission of these executions, it is claimed, is hindered by another series of patterns that ensures the perpetrators impunity: investigations begin immediately before military courts; the Prosecution Serves files for a negative conflict of jurisdiction so cases can be referred to the military criminal justice system; the military authorities generally file the cases, declaring that the deaths took place during combat operations. The motivation for these documented extrajudicial killings supposedly relates to the victims’ political, social, and community activities.

 

26.              In light of these reports, the Commission must point out that the active protection of the right to life and of the other rights enshrined in the American Convention is part of the State’s duty of ensuring the free and full exercise of those rights by all persons under its jurisdiction, and it requires the State to take the steps necessary to prosecute and punish the arbitrary suppression of life, personal integrity, and freedom. In particular, it requires that steps be adopted to prevent those rights from being undermined by the State’s own security forces.[36]

 

27.              Furthermore, use of the criminal military justice system to investigate members of the army suspected of involvement in extrajudicial killings undermines the guarantees established in Articles 8 and 25 of the American Convention. On that point, the Inter-American Court has ruled that in democratic states, the criminal jurisdiction of military courts must be restricted and exceptional in scope and must be intended to protect special juridical interests associated with the functions that the law assigns to the armed forces. It must therefore only be used to judge members of the military for the commission of crimes or offenses that, by their very nature, harm the juridical interests of the military.[37] The Court has also said that “when the military courts assume jurisdiction over a matter that should be heard by the regular courts, the right to the appropriate judge is violated, as is, a fortiori, due process,” which, in turn, is intimately linked to the right of access to justice itself.[38] To guarantee due process, the judge hearing a case must be competent, independent, and impartial.[39]  In its observations, the State indicates that “in relation to the limited competence of the Military’s Criminal Court’s to try human rights violations, a project of reform of the Military Penal Code will be presented to Congress, in which emphasis is made to matters such as reviewing the place of this particular jurisdiction within the structure of the State for greater independence, transparency and effectiveness, and to strengthen the rights and guarantees of the victims.”[40]

 

28.              Finally, with reference to internal displacement, government sources speak of 20,004 victims of forced displacements in the first quarter of 2006[41] and of 69,298 displaced persons between January 1 and August 31, 2006.[42] These official sources indicate a reduction of 52% in the number of displaced persons in the first months of 2006 compared to the number of displacements recorded over the same period in 2005.[43] According to information published by the Consultancy for Human Rights and Displacement (CODHES), however, during the first half of 2006, a total of 112,000 individuals were forcibly displaced from 463 municipalities in the country’s 32 departments.[44]  In its observations, the State notes the different methodologies used by Social Action (as an official source) and CODHES, and affirms that the comparison of numbers does “not necessarily mean that there has been an increase in the number of displaced individuals, but instead that the displaced persons registration system has improved.”[45]

 

29.              With regard to the situation of victims of displacement, on November 29, 2006, the Constitutional Court ruled on the admission of contempt proceedings against several public officials for noncompliance with judgment T-025 of 2004, in which the Court established obligations and goals to be met by the Government in attending to the displaced population. The Constitutional Court has also stressed the need to “speed up the adoption of the results indicators necessary to determine whether the state agencies have progressed, regressed, or stagnated in overcoming the unconstitutional situation that exists as regards forced displacements.”[46]