ANNUAL REPORT OF THE IACHR 2007

CHAPTER IV - COLOMBIA (Continuation)

II.        THE CONTINUATION OF THE VIOLENCE RESULTING FROM THE ARMED CONFLICT:  THE RIGHT TO LIFE, THE RIGHT TO PERSONAL INTEGRITY AND THE RIGHT TO PERSONAL LIBERTY

40.      Despite the demobilization of the AUC, violence resulting from the armed conflict persists.  The IACHR continues to receive complaints alleging that armed outlaw groups –paramilitaries and guerrillas- and members of the military and police forces continue to be involved in crimes, human rights violations and violations of international humanitarian law committed against the civilian population and that resulted in violations of the right to life, the right to personal integrity and the right to personal liberty.  Because of this, the phenomenon of internal displacement continues.

41.       The “Observatory for Human Rights and International Humanitarian Law” attached to the Office of the Vice President of the Republic, states that, by its method,[43] it has calculated that in the first nine months of 2007, there were some 13,023 homicides.[44][45] It also writes that during those first nine months of 2007, 21 massacres occurred, claiming the lives of 98 victims  For its part, CINEP –which has its own method for compiling[46] and presenting figures- indicates that in the first half of 2007 there were allegedly 243 extrajudicial executions;[47] 231 intentional homicides of protected persons and 31 forced disappearances.[48]  In keeping with its practice, the Commission believes that in order to present the picture portrayed by government sources and by sources in civil society,[49] it should cite both sources in its report, despite the considerable methodological differences between them. 

42.       In 2007, the IACHR continued to receive information on the many extrajudicial executions attributed to members of the military and police forces.[50]  In addition to the information supplied by Colombian nongovernmental organizations in the hearings,[51] the Commission has learned that after its on-site visit in October 2007, an “International Mission of Observers of Extrajudicial Executions and Impunity in Colombia” prepared a preliminary report in which it concluded^[52] that “there are many cases of what international law calls extralegal, arbitrary or summary executions; although the methods used may differ, they follow the same pattern of behavior.  The practice is not abating and occurs in many departments in Colombia.”^[53]

43.       Based on testimony and meetings with municipal authorities, the international mission of experts identified a number of patterns followed when extrajudicial executions are committed.  Among the patterns described in the preliminary report are the following:  extrajudicial executions committed in the course of anti-insurgent military operations, although witnesses state that no combat was involved; in many instances, the victim is unlawfully taken into custody at his home or workplace and taken to the place of execution; persons executed or disappeared are generally campesinos, indigenous persons, laborers, disadvantaged persons or community leaders; the military or police report the victims as being insurgents who died in combat; often the victims turn up wearing uniforms and with arms  and military equipment of various kinds, even though, according to the testimony, at the time of their disappearance they were wearing their customary attire and unarmed; occasionally the victims are fingered beforehand by anonymous informants wearing hoods, or re-assimilated persons who would readily provide false information because of their situation; at other times, the victims are selected at random; the inspection of the body is done by the same military or police force that had previously listed the victims as “fallen in combat”; the crime scene is not preserved nor is any evidence or proof; frequently the body shows signs of torture; they are stripped of personal objects and their identification papers are disposed of; the bodies are taken to places far from where the abduction occurred and there are serious difficulties locating family members to identify the body; bodies are buried as unidentified persons, even when they have been identified by family members or third persons; members of the military and police are given financial and professional incentives and rewards for producing “positives”; from the outset, military criminal courts have jurisdiction over such cases and often the Prosecutor’s Office does not challenge the military court’s jurisdiction; relatives of the victims, witnesses and human rights defenders trying to solve such cases are threatened and intimidated; the percentage of those convicted for such crimes is infinitesimal.

44.       In this regard the State has told the IACHR that it practices a “policy of zero tolerance for human rights violations” and that the “cases reported differ according to the source and represent a very small percentage of the outcomes of the operations conducted by the forces of law and order.”[54] It observes that it has responded to complaints received by, for example, issuing Directive No. 10, dated June 6, 2007, in which the Minister of Defense reiterated the duties of the authorities in charge of enforcing law and order and creates a “Committee to Follow-up on Complaints of Alleged Murders of Protected Persons,” composed of the Minister himself, the Commandant of the Military Forces and other ministerial and military officials.  Its purpose is self-analysis, self-control and prevention.  The State also mentions projects to train judges serving on military criminal courts and legal advisors attached to military units.

45.       The State asserts that “the Office of the Attorney General has conducted independent investigations which …. have made significant headway.”^[55]  Specifically, it points out that in the last six years, the Attorney General’s Office has conducted 189 investigations “into the homicide of protected persons.” These inquiries have 727 public servants from various institutions under investigation; of these 119 are purportedly deprived of their liberty (although there is no indication whether they are being held pending trial or are serving sentences).  However, the State reports that out of the 189 investigations instituted in the last six years, involving 727 public servants, only nine people have allegedly been convicted.  It does not say whether the convictions have become final or whether sentence was passed without the defendant being present.   It encloses specific information about two cases in which the accused civil servants were acquitted.[56]  The State reported also that, in 2007,129 inquiries pending in the military criminal courts had been transferred to the regular courts.^[57]

46.       Given the complaints received and in light of the reports available, the Commission is compelled to reiterate that active protection of the right to life and the other rights recognized in the American Convention is part of the State’s duty to ensure the real and full exercise of those rights to all persons subject to its jurisdiction and requires that it take the measures necessary to prosecute and punish arbitrary violations of the right to life, the right to personal integrity and the right to personal liberty.  It is especially vital that measures be taken to ensure that State forces of law and order do not violate these rights.[58]

47.       During the visit by the Rapporteur for Colombia in November 2007, the IACHR witnessed the investigations being carried out by the Special Committee to Investigate and Expedite Inquiries into the Subject of Extrajudicial Executions in Medellín-Villavicencio[59] of the National Unit for Human Rights and International Humanitarian Law of the District Attorney’s Office, which, on October 1, 2007, was investigating 173 cases in Medellín and 152 in Villavicencio. The IACHR greatly admires the work being done in this area by the National Unit for Human Rights and IHL.

48.       The use of military criminal justice to investigate members of the forces of law and order suspected of extrajudicial executions is a violation of the guarantees provided under articles 8 and 25 of the American Convention.  The Inter-American Court has already established that in a democratic state of laws, the criminal military jurisdiction is to be restricted and exceptional in scope and intended to protect special juridical interests associated with the functions that the law assigns to the military forces.  Hence, military personnel are to be tried for crimes or misdemeanors that, by their nature, harm the juridical interests of the military.[60]  The Inter-American Court has also written 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.[61]  One of the guarantees of due process is that the judge presiding over a case must be competent, independent and impartial.[62]

49.       Finally, on the matter of internal displacements, government sources claim 101,819 victims of forced displacement in the first nine months of 2007.[63]  Those state sources calculate that this would be 38% fewer displaced persons than in the same period in 2006.[64]  The Office of the Advisor for Human Rights and Displacement (CODHES), however, indicates that the figure for the displaced in the first half of 2007 would be 112,099.  While it, too, observes that this would be 27% less than the number recorded in the same period in 2006, it attributes the decline to the fact that victims are fearful of registering with the authorities.[65]

50.       As regards the internal displacement situation, the State points out that it is designing and implementing a program to protect forcibly displaced persons pursuant to Constitutional Court order 200 of 2007, said to be geared toward the protection of leaders and representatives of organizations of the displaced population, as well as displaced persons at special risk. The program is designed to meet their particular needs, by guaranteeing preferential and differential treatment.[66]

III.        THE SITUATION OF ETHNIC GROUPS

51.       Colombia is a multi-ethnic and multi-cultural country and its own Constitution protects the ethnic and cultural diversity by recognizing the right to equality and requiring that groups discriminated against or marginalized enjoy genuine, real equality.

52.       The constitutional provisions notwithstanding, ethnic groups are targets of violence stemming from the armed conflict, both as individuals and collectively.  This poses a threat to their autonomy and their territorial and cultural rights.  In 2007, the IACHR continued to receive information on the violence that besets, most especially, indigenous peoples, the community councils, and African-Colombian communities in certain regions of the country.
 

A.         Indigenous peoples

53.         In Colombia, 90 indigenous peoples live in 32 departments nationwide.  They speak 64 different languages and have their own vision of the cosmos, their own history and their own sense of spirituality.  The cultural diversity of these peoples is reflected in their different lifestyles, which are generally associated with the land, their forms of social organization and different ways of resolving conflict, all of which have enabled them to preserve their cultural identity.[67]  This cultural richness is in constant peril, threatened by the unrelenting violence in many of the areas where these people live.

54.        According to the most recent population census, taken in 2005, 1,378,884 indigenous people live in Colombia and represent 3.4% of the country’s total population.  At the present time, there are 710 certified reservations located in 27 departments and 228 municipalities throughout Colombian territory.[68]

55.        The Commission is troubled by the fact that outlaw armed groups like to use the indigenous peoples’ ancestral territories, whether for strategic points or to raise and process illegal substances; that interest appears to have increased in recent years.  This situation, combined with the interest in exploiting the natural resources that exist on those reservations, has caused the violations of indigenous peoples’ individual and collective human rights to increase.  

56.        On August 9, 2007, on the occasion of the celebration of the International Day of the World’s Indigenous Peoples, the director of the Office of the United Nations High Commissioner for Human Rights in Colombia said the following:

Indigenous communities have faced and continue to face a very difficult situation: a combination of repeated disregard for the economic, social and cultural rights, and the multiple and frequent assaults on their civil and political rights.  Compounding this is the fact that the areas inhabited by indigenous communities are the scenes of armed conflict, often dramatic in its intensity and destructiveness.  In armed conflicts, an indigenous population continues to suffer a profound victimization at the hands of agents on all sides of the conflict.[69]

57.        The Commission is particularly concerned by the fact that the armed conflict in Colombia has left some indigenous peoples in Colombia malnourished, especially children.  By UNICEF’s calculations, malnutrition is a problem for over 70% of the indigenous children of Colombia.[70]

58.        According to the National Indigenous Organization of Colombia (ONIC), malnutrition among children in the Embera and Wounaan tribes appears to be as high as 75% on the Pacific coast of the Chocó region.  The Commission has learned of the deaths of children in six Embera Katio families who had been forcibly displaced.  The children had died of hunger and malnutrition.[71]  The Commission was also informed that in the southern part of the department of Putumayo, the Cofan indigenous people are suffering from starvation, as the conflict prevents them from moving about and therefore limits the opportunities for their traditional hunting, fishing and gathering.  Reports are that over 40 thousand Wiwas, Kankuamos, Arhuacos and Koguis indigenous peoples living in the Sierra Nevada of Santa Marta are living a similar fate.[72]

59.        Malnutrition goes hand-in-hand with the risks posed by the violence stemming from the conflict.  According to the figures of the Observatory for the Presidential Program in Human Rights and International Humanitarian Law,[73] between January and September 2007 a total of 31 indigenous people were killed in the armed conflict.  There were 41 such deaths in that same period in 2006.[74]  According to this source, the following are among the departments in which these homicides occurred in 2007: Cauca (1), Tolima (2), Córdoba (2), Valle del Cauca (5), Guajira (7) and Nariño (7).[75]  ONIC, for its part, reported 36 homicides and 32 forced disappearances between January and August 2007.[76]  According to the Human Rights Data System of the National Indigenous Organization of Colombia (SINDHO), a total of 160,102 indigenous persons representing 23 indigenous peoples had their rights violated.  Those most affected were the Guambianos, the Yanaconas and the Embera Chamí.[77]

60.        Concerning the particular situation of the Embera Chamí[78] –beneficiaries of precautionary measures ordered by the IACHR— in May 2007 the Office of the Colombian Ombudsman issued a Risk Report in which he described the threat to these people in the following terms:

The struggle for political and territorial control of the western region of Caldas among the FARC – EP guerrilla movement, the AUC’s Cacique Pipintá Front and the new armed outlaw groups that the Magdalena Medio Self-Defense Brigades are spawning, the funding that the paramilitary movement receives from drug-traffickers whose interests in land seizures and accumulation and laundering of private capital are shepherded by criminal gangs and hired guns coordinated by the Cacique Pipinta Front of the AUC and the interest that the armed outlaws have in holding onto local power by consolidating electoral power or using pressure and coercion to get people to stay away from the polls, are among the major risks today.[79]

61.       The Commission is also disturbed by the events that occurred in the Awa indigenous community.  According to the information received on July 14 and 15, 2007, four members of this community perished -two of whom were minors- when a landmine exploded.[80] The National Indigenous Organization of Colombia (ONIC) complained that 13 indigenous persons from that same ethnic group had also died when a landmine exploded.  The IACHR condemns the use of weapons of this type and calls upon all armed groups to refrain from using them. 

62.        The National Indigenous Organization of Colombia (ONIC) also denounced that in 2007 the Awas indigenous people had been victims of four forced displacements, owing to the fighting between members of the Colombian Army and armed outlaw groups.[81]  The Commission is particularly disturbed by the toll that forced displacement takes on members of indigenous groups, such as the loss of territory, the inability to reach sacred sites, the loss of identity, and others.  The Commission believes that the State of Colombia must devote particular attention to indigenous displaced persons, whose cultures are such that their basic needs related to their identity, vision of the cosmos, language and traditions must be properly addressed.

63.       The Commission has shared with the Colombian State its concern over the vulnerability of the indigenous peoples in Colombia, as attested to by the murders, forced disappearances, massacres and forced displacements to which members of indigenous ethnic groups have fallen victim.  It has also told the State that the ceaseless attacks upon leaders of these ethnic groups is intended to break down their sense of unity in defending their rights, especially the rights to life, autonomy and territory.  The Commission has observed that the constant acts of violence committed against indigenous peoples not only threaten the lives and personal integrity of their members, but also their very existence as peoples.

B.        Afro-Colombian communities and community councils and those of the San Andrés, Providencia, and Santa Catalina islands (raizales)

64.       The Commission received information on the situation of the Afro-Colombian communities in 2007, on the occasion of the visit that Commission member Sir Clare K. Roberts, the Special Rapporteur on the Rights of Persons of African Descent and against Racial Discrimination, made to Bogotá.[82] It also continues to receive complaints of acts of violence and intimidation calculated to bring about the forced displacement of these people, most of whom live on the Pacific coast.

65.        The Commission would first point out that despite the progress made in mapping out a public policy for the Afro-Colombia population, those efforts have not brought about a material improvement in its situation.  It is imperative that the State fill the gaps in the census figures^[83] and compile discrete statistical data. This is Colombia’s most important minority.  In order to craft and introduce public policies calculated to be an effective means to conquer the inequalities that persons of African descent endure, then reliable, up-to-date figures will be needed to grasp the true dimensions of the challenges faced.

66.        As the IACHR has already observed, those challenges include a lack of access to basic services, education, income and participation in decision-making at the national and local levels.  For example, the Chocó population of African descent, which accounts for 85% of that department’s total population, lives in dire poverty, with limited sewer and potable water service,  illiteracy rates of 19% and high maternal mortality.  These factors and others have conspired to dampen their celebration of their particular vision of the cosmos, traditions, and culture.  For the most part, this population has dropped below the radar screen of public policy and has been left particularly vulnerable to the players in the armed conflict.

67.        In effect, in 2007 the population of African descent continued to be victims of extrajudicial executions, forced displacements,[84] forced disappearances,[85] forced recruitment and selective arrests, all because of their economic and social exclusion, the deep-seated discrimination against them,[86] and their presence within geographic areas that the various players in the armed conflict regard as having strategic importance.  One of the telling examples is the intensification of the armed conflict in Afro-Colombian neighborhoods in the port city of Buenaventura, in the rivalry for the outlet to the sea for arms and drug trafficking.[87]  Another example is the violence practiced against community councils that dare to claim their right, under Law 70,[88] to collective title to properties in the Chocó area of the Uraba.

68.        In the latter of these two cases, since enactment of Law 70, Afro-Colombian communities along Colombia’s Pacific coast have gotten collective title to 5,177,625 hectares of land.  Yet the Commission continues to receive complaints that a number of the beneficiary communities have been forcibly displaced, and have been unable to get back their land because certain companies have started to cultivate it, especially for oil palm, without first consulting or asking for the consent of the communities involved. In a number of cases, the crops are being protected by elements in the armed conflict and in some instances by the military itself.  The communities are allegedly under heavy pressure to transfer title to the land.  The Government, for its part, has on a number of occasions expressed the view that  expansion of oil palm production is one of its economic development priorities for that region.

69.         The Commission observes that most of the differences between the oil palm producers and the Afro-Colombian communities have been referred to INCODER–the state institution in charge of giving title to those lands–but have purportedly not been effectively or definitively settled.  It is important to note that the complaints received raise serious questions about whether the obligations established under Law 70, which requires that the Afro-Colombian communities be consulted beforehand, are being fulfilled, and about the ecological sustainability of the land use[89] and the involvement of the Afro-Colombian communities.

70.         The forced displacement and blockades cutting off access to food are fertile ground for violations of the civil and political rights of Afro-Colombians, drive them deeper and deeper into poverty and make them increasingly vulnerable by destroying the traditional structures for organizing land, production and their community life.  They are being forcibly displaced and stripped of their communal lands by the criminal conduct of armed outlaws, with law enforcement either cooperating or looking the other way, driving Afro-Colombians into extreme poverty or indigence.

71.         Authorities responsible for providing assistance to internally displaced persons and intra-urban displaced persons need to devote particular attention to the impact that displacement has on the Afro-Colombian population.  It is the Commission’s understanding that the Presidential Agency for Social Action and International Cooperation has developed programs to assist displaced persons.  The focus is on preventing displacement, humanitarian relief and the displaced person’s economic and social re-assimilation.  These programs, last six months, however they can be extended depending on the needs of the beneficiaries,[90] are said to have benefited a population that is over 30% Afro-Colombian.^[91]  Nonetheless, the Commission understands that the State does not have a program specifically designed for displaced Afro-Colombian communities.

72.        The Commission learned of the October 16, 2007 massacre of six displaced persons, near the city of Istmina in the area of the San Juan and Baudó rivers in the department of Chocó.  The victims, who reportedly had been displaced by the violence in the city of Quibdó, had allegedly accepted a job in a gold mine in Istmina as one of the few ways to earn a living, given the high unemployment among the displaced population.  After two days on the job, they were killed in the mine by an outlaw group.  The UNHCR has reported that this incident was part of the severe deterioration in the humanitarian situation in the area, where the civilian population continues to be victimized by armed outlaw groups fighting to win control of the territory and illicit businesses.[92]

73.         Throughout the process of demobilization and re-assimilation of the demobilized, the Afro-Colombian communities have had to adapt as former combatants arrived in their communities; as groups rearmed or new groups emerged; and as the areas where the victims of forced displacement lived were repopulated by persons belonging to outlaw groups’ support networks.  In its efforts to set up programs for communities especially hard hit by the conflict and restitution of lands, the National Reparations and Reconciliation Commission must devote special attention to the impact the situation has on Afro-Colombians.

IV.        THE SITUATION OF HUMAN RIGHTS DEFENDERS AND SOCIAL LEADERS

74.      The patterns of threats, harassment, and homicide continued to plague human rights defenders in Colombia in 2007. The IACHR has received complaints reporting e-mailed threats against human rights organizations,[93] acts of intimidation and the theft of information at their main offices, committed by all sides in the conflict.  It also remains concerned by the “phony” charges being brought against human rights defenders, some of whom have cases before the inter-American system.[94]

75.         In March[95] and June of 2007[96] paramilitaries known as “Nueva Generación” leveled threats against human rights defenders, international organizations, social organizations and religious organizations doing their work in the department of Nariño. In February 2007, the Cauca Indigenous Regional Council (ACIN) –whose leaders are the beneficiaries of precautionary measures ordered by the IACHR- and the campesino organization CIMA received threats from the FARC-EP to the effect that they would be regarded as military targets unless they pledged “to demand the resignation” of the president.[97]  These threats put human rights organizations in peril and affect the legitimate exercise of their mission.

76.         The IACHR has also learned of intimidation and violence committed against members of organizations on whose behalf the Commission ordered precautionary measures. The Commission learned that on November 6, 2007, the headquarters of REINICIAR in the city of Bogotá was vandalized and information stolen.[98]  The Commission had ordered precautionary measures for the director of REINICIAR, Jahel Quiroga, and the organization’s members since 2002.  The Commission also learned that on November 4, 2007, armed individuals threatened the life of Mrs. Yolanda Becerra, director of the Organización Femenina Popular (OFP), after she entered her residence in Barrancabermeja.  Both Mrs. Becerra and the OFP have been the beneficiaries of precautionary measures that the Commission ordered since 1999, owing to the constant threats leveled against her and her organization’s work to defend human rights.  This incident simply reconfirms how imperative it is that effective measures be urgently adopted to protect the life and personal integrity of Mrs. Yolanda Becerra, which includes investigation, prosecution and punishment of those guilty of threatening the OFP. The situation is so serious that the Office of the United Nations High Commissioner for Human Rights in Colombia has issued a statement on the matter.^[99]

77.        As is clear from the information reported above, the violence practiced against members and leaders of local organizations that try to participate in the proceedings instituted in application of the Justice and Peace Law, to exercise their right to know the truth, to see justice and to get redress, is especially disturbing, as are the acts of intimidation and threat leveled against those who attempt to solve cases of alleged extrajudicial executions of civilians by the forces of law and order.

V.         CONCLUSIONS

78.       The IACHR has repeatedly underscored the need to employ effective mechanisms of negotiation to put an end to the violence that the Colombian people have endured for forty years.  The Commission has also observed that for a lasting peace to endure, non-repetition of conduct criminalized under international law, human rights violations and gross violations of international humanitarian law must be guaranteed.  To that end, the crimes must be investigated and reparations made for the consequences of the violence, using mechanisms that can get at the truth of what happened, administer justice and compensate the victims of the conflict.  The challenge in 2007 has been to show the concrete results achieved by dismantling the armed structures of paramilitarism and implementing the framework of laws put into place to prosecute the crimes committed by the AUC.

79.        Correct enforcement of those laws requires a proper definition of the nature and meaning of certain key procedural measures, such as the voluntary deposition provided for under the Justice and Peace Law.  It also requires effective measures to strengthen the role of the Public Prosecutor’s Office and enhance the mechanisms that enable victims to participate and allow the openness that will ensure the transparency and lawfulness of the proceedings.  Then, too, measures will have to be taken to protect the safety of officers of the court, witnesses and victims in general.

80.         The IACHR understands that, apart from the established legal system, the State has a central role and a principal responsibility in ensuring that victims of crimes against international law will have effective and equal access to measures of reparation, in keeping with standards of international human rights law. Reparations for victims of crimes against humanity ought not to depend entirely on a guilty verdict against the perpetrators, nor prior attachment of their personal property, legal or illegal.

81.        The IACHR continues to be concerned by the fact that groups are taking up arms again and new groups are forming.  It again urges the Colombian Government to implement effective mechanisms to ensure that the structures of the AUC are dismantled and criminal gangs broken up.

82.        The Commission is still troubled by the toll that the violence takes on the civilian population, particularly the most vulnerable sectors such as indigenous peoples, the Afro-Colombian communities, and the displaced.  It would draw the State’s attention to the increasing number of complaints alleging the involvement of police or military in violations of human rights.[100]  The Commission also remains concerned over the attacks that outlaw groups and guerrillas level against human rights defenders and social leaders. 

83.        Based on these considerations, the IACHR is recommending to the Colombian State that it:

1.         Bolster the work of the institutions called upon to play a role in implementing the Justice and Peace Law, especially the units of the Attorney General’s Office that play a pivotal investigative role, to provide logistical support and security that will ultimately enable the courts to solve the crimes committed against the victims of the conflict.

2.         Arrange mechanisms to protect and ensure the safety of the victims of the conflict, witnesses and human rights defenders that participate in the investigation and prosecution of those who seek to avail themselves of the Justice and Peace Law.

3.         Adopt effective measures to dismantle the armed outlaw groups and take steps to ensure that emerging groups do not gain strength.

4.         Transfer all cases that may involve extrajudicial executions of civilians from the military criminal justice system to the regular courts, and establish mechanisms to prevent and investigate possible extrajudicial executions.