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CHAPTER IV

HUMAN RIGHTS DEVELOPMENTS IN THE REGION

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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.
  1. 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.

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

COLOMBIA

  1. The internal armed conflict in the Republic of Colombia continued to take its toll on fundamental human rights in 2005. As in previous years, the situation matched the criteria set forth in Chapter IV of the Annual Report of the Inter-American Commission on Human Rights (IACHR). Those criteria are relevant broadly and with respect to the persistence of immediate situations or structural conditions in member states that, for various reasons, are confronted with situations that seriously affect the enjoyment and exercise of the fundamental rights upheld in the American Convention on Human Rights. Therefore, in keeping with the procedure established in Article 57(1)(h) of its Rules of Procedure,[1] the Commission has adopted the following observations on the matter, for inclusion in its Annual Report.
  1. The Commission’s analysis briefly examines the demobilization of the armed groups operating outside the law, its conformity with the State’s international obligations, and the toll that the violence unleashed by the armed conflict has taken on the civilian population in 2005, emphasizing the plight of indigenous peoples, Afro-descendant communities, community and labor leaders, human rights defenders, officers of the court and journalists. The administration of justice and the issue of impunity are also addressed.
  1. Before offering specific and documented observations on these matters, the Commission wishes to make clear that it recognizes the efforts the State has made to fight armed actors and end violence in Colombia.
  1. Salient among the advances made in the area of human rights are the Government’s efforts to continue its “Programa de Protección de defensores de derechos humanos, sindicalistas, periodistas y líderes sociales” [Program to Protect Human Rights Defenders, Members of Trade Unions, Journalists and Community Leaders”] and its “Programa de Protección de Comunidades en Riesgo”[2] [At-Risk Communities Protection Program] administered by the Ministry of the Interior. This program protects numerous beneficiaries of precautionary and provisional measures adopted by the Commission and the Inter-American Court of Human Rights, respectively, and helps to protect the life and personal safety of thousands threatened by the actors in Colombia’s armed conflict. While more progress is needed in this area and although difficulties or delays in implementing the protective mechanisms have occurred in some cases, this is a planned and institutional initiative deserving of the Commission’s continuing recognition.
  1. In addition, it is relevant to underline the autos de cumplimiento written by the Constitutional Court,[3] calling Governmental institutions to respond the facing consequences of the internal displaced in terms of the available budget, the respect of their rights, and the commitment in attention of the displaced population.
  1. The Commission is pleased to note that in 2005 Colombia took an important step toward universalization of the inter-American system for the protection of human rights when, on April 12, 2005, it ratified the Inter-American Convention on Forced Disappearance of Persons, thus making fundamental progress toward protecting the rights of the people of Colombia and of the hemisphere.

I.THE ARMED CONFLICT AND ITS CONSEQUENCES FOR THE CIVILIAN POPULATION

  1. To address the question of the armed conflict and its impact on the enjoyment of human rights in 2005, reference will first be made to the demobilization of the illegal armed groups and the approval of the Justice and Peace Law. The impact that the violence unleashed by the conflict has had on the civilian population will then be examined, particularly the impact on the indigenous and Afro-descendant communities; community and union leaders, human rights defenders and officers of the court, and journalists. The IACHR’s comments are based on the on-site visit it conducted in June 2005, on information reported in hearings and in the course of processing cases and precautionary measures, on reports prepared by intergovernmental and nongovernmental organizations, and on information reported by official sources.

A.The process of demobilizing armed groups operating in violation of the law and the Justice and Peace Law

  1. After the election and inauguration of President Álvaro Uribe Vélez in August 2002, some leaders of the paramilitary organization known as Autodefensas Unidas de Colombia (AUC)[4] announced their intention to negotiate for the demobilization of their forces and on December 1, 2002, declared a unilateral cease-fire. In the ensuing months, representatives of the Government initiated contacts with members of the AUC[5] and on July 15, 2003 a preliminary agreement was reached establishing demobilization targets for December 31, 2005. The process of dialogue between the AUC’s “negotiating high command” (“estado mayor negociador”) and the Government made considerable headway in 2005 on the demobilization of a number of units operating in different regions of the country.
  1. As the Commission has said before, members of the paramilitary units involved in the demobilization process have been repeatedly cited as being responsible for grave violations of human rights and international humanitarian law, including massacres of defenseless civilians; selective assassinations of community leaders, trade unionists, human rights defenders, officers of the court, journalists, and others; acts of torture, harassment, and intimidation; and actions aimed at forcing the displacement of entire communities. The Commission has established the State’s responsibility in individual cases, as these serious violations of the American Convention were perpetrated with the acquiescence of State agents.[6] Indeed, the Commission has referred some of these cases to the jurisdiction of the Inter-American Court.[7] Against this backdrop, the organs of the inter-American system,[8] the Office of the United Nations High Commissioner[9], and human rights organizations in Colombia and elsewhere have urged that the demobilization process must be coupled with guarantees that the State’s international obligations will be respected.
  1. In 2005, the demobilization process made headway in terms of the number of AUC members who turned over weapons in ceremonies held in concentration areas set up in various regions of the country: over ten thousand men and women belonging to a number of AUC blocks have participated in these processes.[10] Despite the gesture, the AUC have failed to honor their own cease-fire, in areas where weapons have already been turned in and in areas of the country where AUC blocks that have not yet been demobilized are present.[11] Also in 2005 the State provided the necessary conditions to initiate a dialog with the ELN, and with other actors of the armed conflict.[12] Those efforts are an objective of fundamental importance for peace, stability and governability in Colombia and are one that both the State and civil society share.
  1. As for the ColombianState’s obligation to achieve truth, justice and reparations for the victims of the armed conflict, on July 22, 2005 President Uribe authorized enactment of Law 975 of 2005, known as the “Justice and Peace Law.” This law establishes procedural benefits for members of armed groups operating outside the law and involved in the commission of crimes against the civilian population: those whom the courts have already convicted of these crimes; those being investigated or prosecuted for the alleged commission of those crimes, or those willing to confess to their involvement in crimes of this type.
  1. In a press release issued on July 15, 2005, the Commission made public its general observations on the text of the Justice and Peace Law.[13] It noted that the determination of the historical truth regarding what happened during the last few decades of the conflict did not figure as one of the law’s objectives, nor did identification of the sponsors of the paramilitarism or determination of the degree to which the various participants were involved in the commission of crimes against the civilian population, whether by action, omission, collaboration or acquiescence.
  1. The law enacted focuses on the mechanisms to establish the facts in individual cases, in the framework of determining the individual criminal responsibility of demobilized persons who avail themselves of the benefits under the law. However, its provisions fail to establish incentives that would encourage the demobilized to make a full confession of their guilt, in exchange for the generous judicial benefits they would receive.[14] Consequently, the established mechanism does not guarantee that the crimes perpetrated will be properly solved; this means that the facts in many cases will never be known and the perpetrators will go unpunished. The provisions of the law might favor the concealment of the commission of other crimes that, had they been discovered, might eventually have qualified for the same alternative penalties. Further, these procedural benefits would not appear to be confined to crimes directly related to the armed conflict; instead, perpetrators of common crimes like drug trafficking might eventually one day try to avail themselves of the benefits provided under this law.
  1. Likewise, the Commission observes that the institutional mechanisms created by the Justice and Peace Lawlack sufficient strength to effectively face the duty of judicially clarifying the thousands of cases of massacre, selective execution, forced disappearance, kidnapping, torture, forced displacement and usurpation of lands, amongst other crimes, committed by several thousand demobilized individuals during the many years that paramilitary groups have operated in Colombia. In addition, the Commission notes with preoccupation that over six months since the law approval the General Attorney’s Office has not designated the total number of delegated prosecutors that will be part of its Justice and Peace Unit, the unit in charge of law application. Notwithstanding the State has indicated that delegated prosecutors will be supported in their work by a team of investigators, prosecutor assistants, prosecutor auxiliaries, and investigator auxiliaries in criminology in the effort to fortify the judicial structures.[15] Within this situation, the obstacles in the implementation of the Justice and Peace Law and its Regulatory Decree 4760 from December of 2005, worries some the difficulties that victims from the conflict may face in trying to access their right to the truth and reparation.
  1. In terms of reparation of the harm done by those responsible for the commission of heinous crimes, the law places greater emphasis on restitution of unlawfully acquired property than on the kind of mechanisms that will make full reparations for victims possible. Specifically, it makes no mention of specific mechanisms to repair the damage done to the social fabric of indigenous peoples, Afro-descendant communities, or displaced women, who are frequently heads of household and rank among the groups most vulnerable to the violence perpetrated by the participants in the armed conflict. The law makes no provision for reparations to victims in the form of measures directed at preventing a recurrence of the crimes committed, such as disqualification or separation from service of any State agents who may have been involved in the crimes, whether by commission or omission.
  1. The IACHR notes that the Justice and Peace Law only offers incentives to members of illegal armed groups against whom there are open judicial process who cooperates in the clarification of committed crimes. Notwithstanding, several crimes perpetrated during the conflict are within the stage of previous investigation, without members from the AUC been related to these processes.[16]
  1. Summing up, the demobilization process is at a critical stage. The negotiations, observance of the cease-fire commitment and the administration of justice must be informed by the principles and standards established in international law to ensure justice, truth and reparations to persons within the State’s jurisdiction.

B.The violence resulting from the armed conflict

  1. Moreover the cease-fire commitment undertaken by the “negotiating high command” of the AUC, acts of violence and intimidation of the civilian population continue to be committed by all actors in the conflict: paramilitaries, whether or not engaged in the negotiations at Santafé de Ralito; guerrilla groups, in particular the Fuerzas Armadas Revolucionarias de Colombia (FARC); and state agents. The acts violence committed in the course of the armed conflict continue to result in grave violations of the civilian population’s human rights and international humanitarian law. The most vulnerable sectors affected are particularly: indigenous peoples, Afro-descendant communities, and the displaced. The selective assassinations and forced disappearances continued in 2005, targeting human rights defenders, trade unionists, community leaders, journalists, and candidates to elective office –including members of the Unión Patriótica political movement – among others.
  1. The Colombian Government has indicated that during 2005 it registered a reduction in human rights violations against people in Colombia.[17] The government’s figures report 42 massacres between January and September 2005, claiming a total of 225 victims. Seven of the massacres were purportedly the work of the FARC; two were attributed to the AUC. The assailants in the other 33 massacres have not been identified.[18] These same sources report that the number of cases is up 5% over 2004, while the number of victims is 3% higher than in 2004.[19]
  1. The Data Bank of the Centro de Investigación y Educación Popular (CINEP) [Research and PublicEducationCenter] shows that 297 selective executions purportedly occurred just in the six-month period from January to June 2005. Of these, 53 were blamed on the Colombian Army, while the remaining 234 were allegedly the work of paramilitary.[20] The data also shows 35 forced disappearances, 9 of which are attributed to the Army, while 30 were said to have been committed by paramilitary.[21] As for the crimes committed by guerrilla groups, 113 violations of international humanitarian law –among them 65 selective homicides- have been blamed on the FARC.[22]
  1. The government’s figures, based on the registration of displaced people,[23] show a sharp drop in the number of persons displaced during the first half of 2005: the figure given for the January-October 2005 period is 106,650, as compared to 143,325 for the same period in 2004.[24] However, the statistics compiled by CODHES, based on the estimation per municipality by trimester and annually,show different results. According to studies done by CODHES, violence displaced 252,801 people between January and September 2005, which would put the projected figure of the total population displaced in 2005 even higher than the figure CODHES recorded for 2004, which was 205,504 displaced persons.[25]
  1. Furthermore, in August 2005 the Constitutional Court found that the measures taken by the Government to comply with its obligation and do more to protect the rights of the displaced population had been slow and uneven.[26] As a result, in late August 2005, the High Court issued three orders instructing State agencies and offices to guarantee:[27] (1) the budgetary effort necessary to address the issue of forced displacement;[28] (2) a stronger budgetary and administrative commitment on the part of the territorial agencies to assist the displaced and for better coordination between local agencies and national agencies;[29] and (3) adoption of measures to correct institutional failings and to ensure that the displaced enjoy a minimum level of protection of their rights.[30]
  1. Finally, it is relevant to underline that the IACHR has received complaints alleging large-scale forced displacements and displacements of entire families in such departments as Bolívar, Caldar, Caquetá, Nariño, and Putumayo as a consequence of indiscriminate aerial fumigation supposedly for the purpose of destroying crops being grown for illicit uses.