CHAPTER IV

VIOLENCE AND VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW

A. INTRODUCTION

1. In this Chapter, the Inter-American Commission on Human Rights (the "Commission," the "IACHR" or "the Inter-American Commission") will seek to analyze the violence which occurs constantly and with extreme intensity in Colombia, resulting in numerous massacres, internal displacement, executions, injuries to persons, threats, deprivations of liberty and attacks on physical objects each year. The Commission will consider both that violence which is related, directly or indirectly, to the armed conflict as well as the violence which occurs outside of that context. The Commission will consider, to the extent possible, all of that violence for which international law relating to human rights protection provides guiding norms. Thus, the Commission will discuss the acts of violence carried out by Colombian State agents and organs and their proxies or collaborators as well as by the armed dissident groups acting in Colombia. For the purposes of this analysis, the Commission will apply international human rights norms, particularly the American Convention on Human Rights (the "Convention" or the "American Convention"), and will also refer to international humanitarian law, where relevant.

B. LEGAL FRAMEWORK FOR THE ANALYSIS

1. Role and Competence of the Commission

2. Before discussing its concerns and other matters relating to the violence and ongoing hostilities in Colombia, the Commission believes it useful to clarify various issues concerning its competence to investigate and condemn acts of violence. In accordance with the legal framework established by member states of the Organization of American States (the "OAS"), the Commission is expressly charged with monitoring and promoting respect for and defense of fundamental human rights by each of those states.( 1 ) The Commission's duty, therefore, is to apply human rights instruments to cases and situations involving State responsibility.

3. Under the individual petition procedure set forth in its Statute and the American Convention on Human Rights, the Commission's jurisdiction extends only to situations where the international responsibility of a member State is at issue.( 2 ) Thus, the IACHR is authorized to receive, investigate and decide cases lodged against member States for the acts or omissions of their agents and organs that allegedly violate the human rights guaranteed in the American Convention or the American Declaration of the Rights and Duties of Man (the "Declaration"). The Commission's jurisdiction also encompasses cases of transgressions of these same rights by private persons or groups who are, in effect, State agents or when such transgressions by private actors are acquiesced in, tolerated, or condoned by the State.

4. The Commission as well as the Court have also consistently pointed out that the State has a duty under the American Convention and the Declaration to prevent and to investigate acts of violence committed by private parties and to prosecute and punish the perpetrators accordingly. The Commission thus may process individual cases alleging the failure of a State to comply with this duty. At the same time, the Commission recognizes that in situations of civil strife the State cannot always prevent, much less be held responsible for, the harm to individuals and destruction of private property occasioned by the hostile acts of its armed opponents.

5. As noted in its two previous country reports on Colombia, OAS member States opted deliberately not to give the Commission jurisdiction to investigate or hear individual complaints concerning illicit acts of private persons or groups for which the State is not internationally responsible. If it were to act on such complaints, the Commission would be in flagrant breach of its mandate, and, by according these persons or groups the same treatment and status that a State receives as a party to a complaint, it would infringe the sovereign rights and prerogatives of the State concerned.

6. This limitation on its competence to process individual complaints does not mean that the Commission has been indifferent or silent in the face of atrocities and other violent acts committed by dissident armed groups, drug traffickers and other private actors in Colombia and other OAS member States. Outside of the context of individual cases, the Commission has frequently referenced the atrocities committed by armed dissident groups in its press releases, in communications with governments and in its reports on the situation of human rights in the various member States of the OAS. In this regard, for example, the Commission stated in its "Second Report on the Situation of Human Rights in Colombia:"

[T]he Commission is . . . emphatic in its condemnation of the terrible aggression perpetrated against the Colombian people by irregular armed groups. The Commission considers the use of terrorism, whatever its form, to be utterly reprehensible as are blackmail, extortion, kidnapping, torture and assassination.( 3 )

7. A relatively recent expression of the Commission's condemnation of illicit acts committed by an armed dissident group in Colombia is found in the following text of an official press release issued by the Commission on April 1, 1998:

The Inter-American Commission on Human Rights has learned that the Revolutionary Armed Forces of Colombia ("Fuerzas Armadas Revolucionarias de Colombia" - FARC), on March 23, set up a roadblock for almost eight hours on the highway which connects Bogotá to the western plains of Colombia. During the period which the roadblock was in place, the armed dissident group halted the movement of those who traveled on this highway, many of whom were returning to Bogotá after an extended weekend, and detained several persons. The FARC subsequently freed some individuals but continued to hold others under its control. According to information received by the Commission, the FARC have threatened to execute the persons who remain in captivity.

The Commission has indicated, on other occasions, that international norms absolutely prohibit, in any armed conflict, executions and any other act of violence against members of the civilian population who do not participate directly in the hostilities. These norms also prohibit the taking of hostages and arbitrary deprivation of liberty. The Commission reaffirms its prior statements on this occasion and energetically repudiates any violation of these international law norms committed against any individual.

The IACHR again emphasizes that the most diverse lines of thought recognize essential values which require respect for human dignity, even in conflict situations. The IACHR, with absolute independence and objectivity, has consistently and uniformly expressed this same position in a coherent manner, in respect of the States in this hemisphere and, in appropriate cases, in reference to the actions of non-State groups. This has occurred, as is public knowledge, in situations which have taken place in various member States of the Organization, including Colombia.

For these reasons, the Inter-American Commission on Human Rights, through this press release, exhorts the group which holds under its control several persons kidnapped in the roadblock which the FARC put in place on March 23 to respect the lives, security and health of those individuals and to proceed to liberate them immediately.( 4 )

8. The Commission has been equally clear that when organized private groups take up arms to overthrow an elected government, the State has a right under domestic and international law to use legal and appropriate military force to put down such insurrection in order to defend its citizenry and the constitutional order. However, during such situations of internal hostilities, the Commission has received from Colombia and other OAS member States numerous complaints alleging serious violations of the fundamental rights guaranteed in the American Convention and Declaration arising out of the conduct of military operations by State security forces and its other agents. In order to properly judge the specific claims raised in such petitions, the Commission has found it necessary at times either to directly apply rules of international humanitarian law, i.e. the law of armed conflict, or to inform its interpretations of relevant provisions of the American Convention by reference to these rules.

9. As the Commission noted in recent decisions against Colombia and other States,( 5 ) the American Convention continues to apply during situations of internal armed conflict. Indeed, even when Article 27 of the Convention is invoked, permitting States to temporarily suspend the free exercise of certain rights during genuine emergency situations, including internal hostilities, that same article also absolutely prohibits States parties to this instrument from ever suspending a core of fundamental human rights and guarantees, including inter alia, the prohibitions against arbitrary deprivations of life and the right to be free from cruel, degrading and inhumane treatment and torture, including rape. Where a State is responsible for violating these fundamental rights during an internal armed conflict or other emergency situation, the State may thus also be responsible for an additional violation of Article 27 in some cases. The Commission notes that the Colombian Constitution also specifically provides that, even in states of emergency or exception, "[i]t will not be possible to suspend human rights nor fundamental liberties."( 6 )

2. The Commission's Use of International Humanitarian Law

10. Nonetheless, although one of their underlying purposes is to prevent warfare, the American Convention and other universal and regional human rights instruments were not designed specifically to regulate in detail internal conflict situations and, thus, they do not contain specific rules governing the use of force and the means and methods of warfare. International humanitarian law, in contrast, does not generally apply in peacetime and its fundamental purpose is to place restraints on the conduct of warfare so as to diminish its effects on the victims of the hostilities.

11. Thus, the Commission invokes the norms provided by both human rights law and international humanitarian law in analyzing specific petitions involving alleged abuses by State agents and their proxies which arise in the context of internal armed conflicts. The Commission proceeds in this manner because both sets of norms apply during internal armed conflicts, although in many cases international humanitarian law may serve as lex specialis, providing more specific standards for analysis. Of course, it should be noted that the Commission will apply human rights norms alone in those cases involving alleged abuses by State agents which do not occur in the context of the hostilities.

12. As previously noted, complaints alleging, for example, arbitrary deprivation by State agents of the right to life protected under the American Convention clearly fall within the Commission's jurisdiction. In this regard, both Article 4 of the Convention and humanitarian law applicable to internal armed conflicts protect this essential right and, thus, prohibit summary executions in all circumstances. However, the Commission in certain instances may not be able to resolve such a case, where it is connected with an armed conflict, by reference to Article 4 of the American Convention alone. This is because the Convention is devoid of rules that either define or distinguish civilians from combatants and other military targets. Nor does the Convention specify the circumstances under which it is not illegal, in the context of an armed conflict, to attack a civilian or when civilian casualties as a consequence of military operations do not imply a violation of international law. Consequently, the Commission must necessarily look to and apply definitional standards and relevant rules of international humanitarian law as sources of authoritative guidance in its resolution of this and other claimed violations of the American Convention in combat situations.

13. For the same reasons which frequently require the Commission to refer to international humanitarian law in resolving individual cases, the Commission also finds it necessary to utilize humanitarian law along with human rights law, in general reports such as this one, for the purpose of analyzing a State's international responsibility relating to violence, where much of that violence occurs in the context of an armed conflict. Moreover and importantly, humanitarian law rules governing internal hostilities apply equally to and expressly bind all the parties to the conflict, i.e. State security forces, dissident armed groups and all of their respective agents and proxies. In contrast, human rights law generally applies to only one party to the conflict, namely the State and its agents. Humanitarian law thus may provide the Commission, in the preparation of a report such as this one, with a set of accepted legal standards that enable it to examine the conduct not only of the State's security forces, but of its armed opponents as well, and to note and classify the acts of violence that infringe these standards.( 7 )

14. If the Commission could not refer to international humanitarian law in preparing reports such as this one, it would be placed in the extremely difficult situation of being asked to analyze the conduct of armed dissident groups without reference to any previously-established standards. The General Assembly of the OAS has, on several occasions, passed resolutions recommending that the Commission "refer to the actions of irregular armed groups" in reporting on the human rights situation in the member States of the inter-American system. The General Assembly passed such resolutions, for example, during its regular session in Chile in 1991 and in the Bahamas in 1992.( 8 ) As noted above, international human rights law norms, including the American Convention on Human Rights, the American Declaration on Human Rights and other instruments, only apply where State responsibility is alleged. International humanitarian law provides the only legal standard for analyzing the activities of armed dissident groups. It is therefore absolutely necessary that the Commission reference international humanitarian law in order to fairly and adequately address the activities of those groups in its reporting.

15. The Commission is mindful that because of the peculiar and confusing conditions frequently attending combat, the ascertainment of crucial facts relating to situations arising in the context of hostilities often cannot be made with clinical certainty. Accordingly, the Commission believes that the appropriate standard for judging the belligerent actions of those engaged in hostilities must be based on a reasonable appreciation of the overall situation prevailing at the time the action occurred and not on the basis of speculation or hindsight. The appropriate classification of and attribution for claimed violations of the Convention and international humanitarian law connected with hostilities will depend on the particular circumstances involved. Where the attending circumstances are unclear or unknown, the Commission may not, in good faith, be able to attribute responsibility for the claimed violation to the proper party and thus may abstain from reaching a conclusion regarding the alleged violation of international law.

16. The Commission has taken the opportunity in several individual cases to note that, apart from what has already been said, its competence to apply or consult humanitarian law rules is also supported by the text of the American Convention, by its own case law and by the jurisprudence of the Inter-American Court of Human Rights.( 9 ) The Commission has especially noted that in those situations where the American Convention and humanitarian instruments apply concurrently, Article 29(b) of the American Convention necessarily requires it to take due notice of and, where appropriate, give legal effect to applicable humanitarian law rules.( 10 )

17. In its observations regarding this Report, the Colombian State questioned the manner in which the Commission has invoked the application of international humanitarian law. The State suggested that, by applying international humanitarian law to armed dissident groups as well as to the State, the Commission has placed these two parties to the armed conflict on the same level and failed to adequately condemn the illegal and arguably atrocious acts committed by the armed dissident groups.

18. The Commission believes that it has made clear that it does not consider the State and armed dissident groups to be on the same level. The State has a unique status with certain rights duties and obligations under international law. For example, as a party to the American Convention and other human rights treaties, the Colombian State has freely assumed the sole responsibility and basic duty of respecting and ensuring the human rights protected in these instruments to all persons subject to its jurisdiction. This duty and responsibility cannot be abdicated by the State during civil strife or any other emergency situation. The fact that humanitarian law rules are equally binding on the government and dissident armed forces in no way affects the status of either party to the conflict and, thus, cannot be interpreted as legitimizing the cause for which the dissidents have taken up arms, much less recognition of their belligerence. It merely means that the contending parties have the same obligation to respect the restraints and prohibitions applicable to the waging of hostilities. As the Commission notes in this Report, humanitarian law does not preclude the State from punishing members of dissident armed groups for the commission of crimes under its domestic law. Therefore, the Colombian State is perfectly free to try such persons for each and everyone of their violent acts that transgress its laws even if those acts otherwise do not violate humanitarian law. Such trials, however, must afford defendants the due process safeguards set forth in applicable human rights and humanitarian law treaties binding on the Colombian State.

19. However, the Commission's role is not to apply domestic criminal law to the acts of the armed dissident groups. Instead, the Commission must analyze the acts of armed dissident groups in the light of applicable international law norms, which are those of international humanitarian law. The Commission notes that Colombian State agents have, in fact, repeatedly asked the Commission to analyze the activities of armed dissident groups in conformity with international humanitarian law. For example, during its on-site visit to Colombia, high-level authorities of the Military Forces provided the Commission with bound volumes of violations of international humanitarian law allegedly committed by armed dissident groups. Civilian authorities and National Police officers have also frequently presented to the Commission materials regarding alleged humanitarian law violations committed by armed dissident groups. The Commission has always granted proper weight to the information included in materials provided by the State and has used them, where appropriate, in the preparation of this Report.

3. The Internal Armed Conflict and Applicable Norms in Colombia

20. The Commission is not required to determine whether the nature and level of the domestic violence in Colombia constitute an internal armed conflict or to identify the specific humanitarian law rules governing the conflict. This is because Colombia, unlike other States that all too frequently choose to deny the existence of such hostilities within their territory for political or other reasons, has openly acknowledged the factual reality of its involvement in such a conflict and the applicability of Article 3 common to the four 1949 Geneva Conventions ("common Article 3"), the 1977 Protocol Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of Non-International Armed Conflicts ("Protocol II"), and other customary law rules and principles governing internal armed conflicts.( 11 ) The Colombian Constitution itself clearly establishes that, "[i]n all cases international humanitarian law norms will be respected."( 12 )

21. Indeed, few OAS member States other than Colombia have so publicly embraced international humanitarian law. Nor have other States genuinely sought to the same extent to disseminate, with the invaluable assistance of the International Committee of the Red Cross ("ICRC"), basic precepts of international humanitarian law to its security forces, the other parties to the conflict and its citizenry at large. The Colombian government and vast sectors of civil society believe that respect for basic rules of humanitarian law is indispensable to "humanize" the conflict and, thereby, contribute to conditions propitious for negotiations between the warring parties and the eventual restoration of peace.( 13 )

22. The Commission wishes to express its emphatic support for these policies and goals. However, it has noted with alarm that, despite these dissemination efforts and professed policies, the conflict in Colombia during the past several years has been increasingly characterized by massive and systematic violations of the most fundamental human rights and humanitarian law rules, committed by all sides, particularly against the civilian population.

C. THE APPLICABLE LEGAL NORMS

1. Human Rights Law

a. The Right to Life

23. The right to life is the most fundamental of all human rights. The right to life has special importance, because it is the crucial basis for the exercise of all other rights. Article 4 of the American Convention provides that, "[e]very person has the right to have his life respected. . . . No one shall be arbitrarily deprived of his life."

24. As noted above, the contours of the right to life may change in the context of an armed conflict, but the prohibition on arbitrary deprivation of life remains absolute. The Convention clearly establishes that the right to life may not be suspended under any circumstances, including armed conflicts and legitimate states of emergency.( 14 )

25. The Colombian Constitution similarly recognizes the centrality of the right to life, providing that: "The right to life is inviolable." ( 15 ) The Colombian Constitution further provides that the death penalty will not be applied in Colombia.

b. The Right to Humane Treatment

26. As a State party to the American Convention, Colombia is bound by Article 5 of that instrument which provides, in relevant part, that:

1. Every person has the right to have his physical, mental and moral integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.

The prohibition on torture and cruel and unusual treatment is also non-derogable, even in times of armed conflict or declared states of emergency.( 16 )

27. The concept of torture is distinguished from cruel and inhumane treatment principally based on the characteristics, the motivation and the degree of severity of the treatment in question.( 17 ) In the inter-American human rights system, torture is understood to be:

any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.( 18 )

28. The Colombian State has signed the Inter-American Convention to Prevent and Punish Torture, which details and expands upon the duties and responsibilities set forth in Article 5 of the American Convention, and the Colombian legislature has approved its ratification. Colombia has not yet deposited its instrument of ratification, because the Constitutional Court is engaging in its obligatory review of the treaty. Nonetheless, in the interim, the State has a good faith obligation to refrain from any act which would be inconsistent with the treaty's object and purpose. In addition, Colombia has ratified the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

29. The Colombian Constitution provides the parallel domestic norm to Colombia's international obligations in this area. The Constitution specifically establishes that, "[n]obody will be subject to torture nor cruel, inhuman or degrading treatment or punishment."( 19 )

c. Prohibition on Forced Disappearances

30. The forced disappearance of persons is considered to be a particularly grave violation of international human rights law. In addition, the systematic practice of the forced disappearance of persons constitutes a crime against humanity.( 20 )

31. The Inter-American Court of Human Rights has held that "the forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obliged to respect and guarantee."( 21 ) Similarly, the preamble to the Inter-American Convention on Forced Disappearance of Persons reaffirms that forced disappearance of persons "violates numerous non-derogable and essential human rights enshrined in the American Convention on Human Rights, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights."( 22 )

32. The forced disappearance of persons generally entails a violation of the right to life and the right to humane treatment already discussed. A disappearance also violates, at a minimum, the right to juridical personality, the right to personal liberty and the right to due process of law and judicial protection.

33. In the inter-American human rights system, a forced disappearance is considered to be:

the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.( 23 )

34. The Colombian State has signed, but not yet ratified, the Inter-American Convention on Forced Disappearance of Persons, which provides detailed provisions regarding the State's responsibility to prevent, investigate and prosecute forced disappearances. As noted above in connection with the Inter-American Convention to Prevent and Punish Torture, pursuant to its signature, the State is obliged by international law principles to act in good faith to avoid engaging in any acts which would be inconsistent with the treaty's object and purpose. In any case, the duties and obligations set forth in the Convention on Forced Disappearance of Persons do not, in practice, expand upon those established in international customary law and the American Convention which are already binding upon the State.

35. Colombian domestic law also provides for a clear prohibition on the forced disappearance of persons. The relevant provision of the Colombian Constitution establishes that, "[n]o one will be subjected to forced disappearance."( 24 )

Notes______________________

( 1 ) See Charter of the Organization of American States, art. 106 ("There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters."); American Convention on Human Rights, art. 41 ("The main function of the Commission shall be to promote respect for and defense of human rights."). 1 ) See Charter of the Organization of American States, art. 106 ("There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters."); American Convention on Human Rights, art. 41 ("The main function of the Commission shall be to promote respect for and defense of human rights.").

( 2 ) See American Convention on Human Rights, art. 44; Statute of the Inter-American Commission on Human Rights, arts. 19-20.

( 3 ) IACHR, Second Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.84, Doc. 39 rev., at 247 [hereinafter Second Report].

( 4 ) IACHR, Press Release No. 5/98, April 1, 1998.

( 5 ) See IACHR, Report No. 26/97, Case No. 11.142 (Colombia), September 30, 1997, at par. 171; IACHR, Report No. 55/97, Case No. 11.137 (Argentina), December 22, 1997, at par. 158.

( 6 ) Political Constitution of Colombia, art. 214(2).

( 7 ) The Commission notes that the Colombian State has challenged the right of the Commission to apply humanitarian law in individual cases concerning alleged excesses by its security forces but has never challenged the Commission’s right to use humanitarian law in the preparation of general reports such as this one.

( 8 ) See "Strengthening of the OAS in the Area of Human Rights," Resolution adopted at the eleventh plenary session of the twenty-first regular session of the General Assembly, Santiago, Chile, June 3-8, 1991, AG/RES. 1112 (XXI-O/91), OEA/Ser.P/XXI.O.2, 20 August 1991, Volume 1, at 78; "Annual Report of the Inter-American Commission on Human Rights," Resolution adopted at the eighth plenary session of the twenty-second regular session of the General Assembly, Nassau, The Bahamas, May 18-23, 1992, AG/RES. 1169 (XXII-O/92), OEA/Ser.P/XXII.O.2, 21 June 1992, Volume 1, at 62.

( 9 ) See, e.g., IACHR, Report No. 26/97, Case No. 11.142 (Colombia), September 30, 1997, par. 175; IACHR, Report No. 55/97, Case No. 11.137 (Argentina), December 22, 1997, par. 162.

( 10 ) Article 29(b), the so-called "most-favorable-to-the-individual clause", provides that no provision of the American Convention shall be interpreted as "restricting the enforcement or exercise of any right or freedom recognized by virtue of the laws of any State Party or another convention to which one of said states is a party."

( 11 ) See, e.g., Constitutional Court Decision No. C-574, October 28, 1992. The Commission also notes that the armed dissident groups in Colombia make frequent reference to international humanitarian law norms, treating them as applicable. The ELN has specifically declared that it considers itself to be bound by the 1949 Geneva Conventions and Protocol II. See Public Declaration by Commander Manuel Pérez to the press, July 15, 1995.

( 12 ) Political Constitution of Colombia, art. 214(2).

( 13 ) When the municipal elections were held on October 26, 1997, more than eight million voters cast an additional ballot for peace. Through this ballot, the citizenry voted in favor of asking the parties to the armed conflict to respect international humanitarian law. See Technical Secretariat of the Citizenry Mandate for Peace, Life and Liberty, "Toward Compliance with the Mandate of the Citizenry in Favor of Peace, Life and Liberty," November, 1997.

( 14 ) See American Convention on Human Rights, art. 27.

( 15 ) Political Constitution of Colombia, art. 11.

( 16 ) See American Convention on Human Rights, art. 27.

( 17 ) See United Nations Human Rights Commission, General Comment 7 (16º Session), doc.A/37/40, par. 2.

( 18 ) Inter-American Convention to Prevent and Punish Torture, art. 2.

( 19 ) Political Constitution of Colombia, art. 12.

( 20 ) See Inter-American Convention on Forced Disappearance of Persons, pmbl., par. 6; Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law, 1997, at 74.

( 21 ) Velásquez Rodríguez Case, Judgment of July 29, 1988, par. 155.

( 22 ) Inter-American Convention on Forced Disappearance of Persons, pmbl., par. 3.

( 23 ) Inter-American Convention on Forced Disappearance of Persons, art. II.

( 24 ) Political Constitution of Colombia, art. 12.