REPORT ON THE DEMOBILIZATION PROCESS IN COLOMBIA§
III. CONTEXT: ORIGIN AND CHARACTERISTICS OF THE INTERNAL ARMED CONFLICT IN COLOMBIA
1. On February 6, 2004, the Member States of the Organization of American States (OAS), meeting in the Permanent Council, unanimously expressed their “unequivocal support for the efforts of the Government of President Álvaro Uribe Vélez to find a firm and lasting peace” in the Republic of Colombia, as well as their interest in the Organization accompanying these efforts.[1] Several weeks earlier, then-Secretary General of the OAS César Gaviria and President Álvaro Uribe Vélez had signed an agreement on establishing a Mission to Support the Peace Process in Colombia (hereinafter “the MAPP/OAS Mission”) with a mandate to verify initiatives to bring about a ceasefire and end of hostilities, demobilization, disarmament, and reintegration into society of the illegal armed groups that operate in Colombia.[2] The Permanent Council’s resolution authorizes the establishment of the MAPP Mission and at the same time highlights the need to “ensure that the role of the OAS is fully consistent with the obligations of its Member States with respect to the effective exercise of human rights and international humanitarian law.”[3]
2. In its resolution, the Permanent Council invited the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”)[4] to provide advisory services to the MAPP/OAS Mission. During its 119th session, held in February-March 2004, the IACHR in plenary considered the invitation, and on April 7, 2004, the Commission presented its points of view to the Permanent Council through its Executive Secretary, Santiago Canton. On that occasion, the Commission indicated that it would continue carrying out its mandate to promote and protect human rights in Colombia pursuant to the American Convention on Human Rights (hereinafter “the American Convention”) and the Charter of the OAS, and that together with those permanent monitoring functions, it would develop its role of advising the MAPP Mission, subject to provision of the necessary funds. In addition, it was noted that the IACHR would adopt measures aimed at establishing liaisons and channels of communication with the members of the MAPP/OAS Mission in Colombia in order to provide advisory services, monitor the process of demobilization both through the channels established in conjunction with the MAPP and autonomously, and report periodically to the Permanent Council, the international community, and public opinion.
3. On May 10, 2004, as the first step in its advisory function, the IACHR forwarded to the MAPP/OAS Mission background information in the form of case-law and doctrinal writings on peace processes and administration of justice to be taken into account in the demobilization process, with a view to carrying out the objective established by the Permanent Council to ensure that the role of the OAS unfolds in keeping with the obligations of its Member States with regard to the full observance of human rights and international humanitarian law. On May 26, 2004 the Commission made contact with the MAPP/OAS Mission in the wake of the kidnapping of the indigenous Governor of the Embera-Katío of the upper Sinú, Ovidio Domicó, by the AUC in the vicinity of Tierralta, department of Córdoba.[5] The Embera-Katío indigenous people are protected by precautionary measures issued by the IACHR,[6] in keeping with Article 25 of its Rules of Procedure.[7] Hours after the efforts made, Ovidio Domicó’s release was secured.
4. From July 11 to 17, 2004, a delegation of the IACHR headed by Vice-President and Rapporteur for Colombia, Susana Villarán, and the Executive Secretary of the IACHR, Santiago A. Canton, travelled to Colombia to examine the initiatives for the demobilization of illegal armed groups as well as the applicable legal regime and mechanisms aimed at ensuring that the process unfolds in keeping with the State’s international obligations. During its visit, the delegation of the IACHR held meetings with high-level government authorities, including the Vice-President of Colombia, Francisco Santos; the Minister of Foreign Affairs, Carolina Barco; the Minister of Defense, Jorge Alberto Uribe Echavarría; the High Commissioner for Peace, Luis Carlos Restrepo Ramírez; and the Attorney General of the Nation, Luis Camilo Osorio. The delegation also visited the offices of the MAPP/OAS Mission in Bogotá, where it was received by Sergio Caramagna and his staff. In addition, it traveled to the city of Medellín, where it met with Mayor Sergio Fajardo Valderrama and the staff in charge of the program for demobilization of the Bloque Cacique Nutibara, and with officials of the Office of the Special Prosecutor (Fiscalía Especializada) of Medellín and members of what is known as the Facilitating Commission (Comisión Facilitadora) of Antioquia. During those meetings, the IACHR received the invaluable assistance of staff of the regional office of the MAPP/OAS Mission in Medellín.
5. The delegation of the IACHR also met with representatives of various civil society organizations, including peace organizations, human rights organizations, and members of the Church. During its stay in the city of Medellín, the IACHR had the opportunity to hear the viewpoints of persons who have benefited from the collective demobilization of members of the Bloque Cacique Nutibara, affiliated with the organization known as “Corporación Democracia.” In addition, the IACHR received complaints of human rights violations in the neighborhoods and districts in which this AUC Bloque operates.
6. The IACHR wishes to highlight the willingness displayed by the authorities of the State during its delegation’s visit to Colombia. The Commission was afforded all the guarantees and cooperation needed to gather information and complete its observation successfully. The IACHR would also like to express gratitude for the cooperation of all of those who provided information or testimony to the Commission.
7. The IACHR has analyzed the situation based on the input obtained, both through the channels of cooperation with the MAPP Mission in Colombia, and through contacts with other entities of the international community, civil society, the government, and its on-site observation. Having considered all of the above, the IACHR presents its first report on the mandate entrusted to it in Resolution CP/RES. 859, in the framework of its powers to publish reports and its mission of promoting and protecting human rights in the Member States.
8. This report constitutes an initial approach to the question of the negotiations between armed actors and the Government of Colombia with the participation of the MAPP Mission as verifier, and the challenges vis-à-vis the State’s international obligations in the area of human rights. It sets forth the conclusions reached by the IACHR as a result of its observation of the situation, and includes a series of recommendations for those who are participating actively in the process.
9. In order to properly appreciate the nature and significance of the negotiations and agreements reached with some leaders of the AUC, consideration must be given to the historical context and the situation in which they are being pursued, as well as to the international obligations of the State. Accordingly, after making reference to the principles and standards of international law that should guide the efforts aimed at overcoming the internal armed conflicts, the report provides an overview of the origins of the internal armed conflict in Colombia, its impact on the civilian population, and the legislative measures adopted in the past to clear the way for the armed actors’ return to civilian life. The report then presents the IACHR’s observations on current peace efforts as materialized, respectively, in the processes of individual demobilization and collective demobilization, and in the formation of a “placement zone” (“zona de ubicación”), and the legal framework in which they are being pursued.
II. PRINCIPLES AND STANDARDS FOR OVERCOMING ARMED CONFLICTS
AND THEIR CONSEQUENCES FOR THE CIVILIAN POPULATION
10. The successful development of a process of demobilization of actors involved in a prolonged internal armed conflict that aspires to the non-repetition of crimes of international law,[8] violations of human rights, and grave breaches of international humanitarian law calls for the clarification of the violence and reparation of its consequences. Realistic expectations of peaceful coexistence under the rule of law should be based on measures that address the challenges posed by the construction of a culture of tolerance and the rejection of impunity. The international community has identified a series of guidelines with respect to truth, justice, and reparations that draw on the experiences of different societies and the principles of law reflected in the obligation of states to administer justice in keeping with international law.
11. The norms of the inter-American system that are binding on the Member States of the OAS are part of this body of law. The experiences in this hemisphere in the context of peacemaking efforts have led both the Commission and the Inter-American Court of Human Rights to interpret, among other things, the obligation of the Member States to ensure compatibility of recourse to the granting of amnesties or pardons for persons who have risen up in arms against the State with the State’s obligation to clarify, punish, and make reparation for violations of human rights and international humanitarian law.
12. The obligations of the Member States of the Organization of American States in the area of human rights derive from the Charter of the OAS[9] and the American Declaration of the Rights and Duties of Man[10] as well as the human rights treaties ratified by them. The States party to the American Convention on Human Rights have obligated themselves to respect the human rights and fundamental freedoms recognized in the Convention, and to ensure for all persons subject to their jurisdiction the free and full exercise of rights and freedoms, without any discrimination on grounds of race, color, sex, language, religion, opinion, national or social origin, economic status, birth, or any other social condition. In addition, they have agreed to adopt legislative and other measures that may be necessary for giving effect to the rights and freedoms protected in the American Convention in those cases in which the exercise of those rights and freedoms is not yet guaranteed.[11] In addition to the American Convention, the Member States have adopted other treaties to complement and expand the rights protected therein.[12]
13. These instruments should be interpreted and applied in light of the norms and principles that govern international legal obligations generally, and human rights obligations in particular, primarily the principles of good faith and of the supremacy of international treaties over domestic law.[13] In addition, the states’ commitments under international human rights law are applicable both in peacetime and in the context of armed conflicts.[14] In this context, it has been recognized that the states’ human rights obligations differ from their other international commitments in that, on ratifying such treaties, they bind themselves not only in relation to other states parties, but also, and mainly, with respect to the persons under their jurisdiction. Moreover, the norms of interpretation of the American Convention require that the organs of protection – the Inter-American Commission and the Inter-American Court – consider higher standards of protection provided for in other treaties ratified by the State. Those treaties include the International Covenant on Civil and Political Rights,[15] the United Nations Convention relating to the Status of Refugees[16] and its Additional Protocol,[17] the United Nations Convention on the Rights of the Child,[18] the International Convention on the Elimination of All Forms of Racial Discrimination,[19] the Vienna Convention on Consular Relations,[20] and the Geneva Conventions of 1949[21] and their Additional Protocols of 1977.[22]
14. This normative framework, in force for most of the Member States of the OAS, is reinforced by customary law as well as by the guidelines agreed upon in the context of intergovernmental organizations such as the United Nations. The international provisions in force for the Member States, their interpretation through the case-law and the guidelines compiled by the intergovernmental organs coincide in identifying truth, justice, and reparation as fundamental and inescapable challenges in rebuilding a culture of peace, tolerance, respect for the law, and rejection of impunity. The IACHR will next develop these concepts and explore the standards and obligations arising therefrom.
A. The right to know the truth about the crimes of international law perpetrated
during the conflict
15. One of the most serious and immediate effects of the large-scale violence of internal armed conflicts consists of what many – challenging the language – define as the “invisibilization” of the victims.[23] The absence of effective remedies for attaining the intervention of State institutions leaves the most unprotected sectors of the civilian population – indigenous peoples and Afro-descendant communities, displaced children and women, to cite some examples — at the mercy of armed actors who opt for strategies that not only generate terror and the forced displacement of survivors, but that also have the effect of rendering it difficult to clarify what happened, relegating those killed to oblivion, and propagating the state of confusion that obstructs deciphering the causes of violence and putting an end to them through the rule of law.
16. In the face of this situation, the right to truth should not be restricted through legislative or other measures. The IACHR has established that the existence of factual or legal impediments, such as adopting amnesty laws, to access to information about the facts and circumstances surrounding the violation of a fundamental right, and that stand in the way of initiating the judicial remedies in the domestic jurisdiction, are incompatible with the right to judicial protection provided for at Article 25 of the American Convention.[24] The process aimed at determining the truth requires the free exercise of the right to seek and receive information, the formation of investigative commissions,[25] and the adoption of the measures needed for authorizing the judiciary to undertake and complete the respective investigations.[26]
17. The Inter-American Court has established in its case-law that the right to the truth is subsumed in the right of the victim or his or her next-of-kin to obtain from the competent organs of the State clarification of the facts and the prosecution of the persons responsible in keeping with the standards of Articles 8 and 25 of the American Convention.[27] For its part, the Human Rights Committee of the United Nations has also ruled on the duty of states to judicially determine the circumstances in which human rights violations take place and the responsibility of those implicated, as part of the reparation owed to the victim’s next-of-kin.[28]
18. In any event, the enjoyment of the right to know the truth regarding the commission of crimes of international law is not limited to the victims’ next-of-kin. The Inter-American Commission and the Inter-American Court have stated that societies affected by violence have, as a whole, the unwaivable right to know the truth of what happened as well as the reasons why and circumstances in which the aberrant crimes were committed, so as to prevent such acts from recurring.[29] Society as a whole has the right to learn of the conduct of those who have been involved in committing serious violations of human rights or international humanitarian law, especially in the case of mass or systematic violations; to understand the objective and subjective elements that helped create the conditions and circumstances in which atrocious conduct was perpetrated, and to identify the legal and factual factors that gave rise to the appearance and persistence of impunity; to have a basis for determining whether the state mechanisms served as a context for punishable conduct; to identify the victims and the groups they belong to as well as those who have participated in acts victimizing others; and to understand the impact of impunity.[30]
19. These principles and standards are particularly relevant in situations in which the ferocity of the methods used by the actors in the conflict and the constant acts of retaliation against the civilian population, human rights defenders, and officials willing to investigate complaints diligently and to administer justice, lead surviving victims and witnesses to remain silent. In these cases, intimidation, the suppression of evidence, and the deficient functioning of the justice system all compound the silence of the victims and witnesses, contributing to impunity and the repetition of crimes of international law.
B. The right to justice and the judicial clarification of crimes of international
law perpetrated during the conflict
20. Whenever the conduct of those who participate in the armed conflict results in the commission of, inter alia, assassinations, forced disappearances, rape, forced movement or displacement, torture, inhumane acts aimed at intentionally causing death or serious harm to physical and psychological integrity, attacks on the civilian population or their property, and recruitment of boys and girls under 15 years of age,[31] the States have, in-keeping with customary international law and treaty law, the peremptory obligation to investigate the facts and prosecute and punish the persons responsible. These are imprescriptable crimes of international law, not subject to amnesty, which, as they have not been duly clarified, may give rise to the international responsibility of the State and open the door to universal jurisdiction to establish the individual criminal liability of the persons involved.[32]
21. The states are under an obligation to combat impunity by all legal means available, since it fosters the chronic repetition of human rights violations and the total defenselessness of the victims and their next-of-kin.[33] In the inter-American system, this obligation of the States is reflected in Articles XVIII and XXIV of the American Declaration[34] and Articles 1(1), 2, 8, 25 of the American Convention.[35] Pursuant to these provisions and their authoritative interpretation, the Member States of the OAS have the duty to organize the government apparatus and all the structures through which government authority is exercised so that they are capable of legally ensuring the free and full exercise of human rights, and to prevent, investigate, prosecute, and punish their violation. This obligation is independent of whether the perpetrators of the crimes are state agents or private individuals.[36] Where crimes of public action are concerned, i.e. subject to prosecution sua sponte, it is up to the State to bring the criminal action, and it is responsible for taking the initiative to set the procedure in motion, in compliance with its obligation to guarantee the right to justice for the victims and their next-of-kin, seriously and not as a mere formally condemned ex ante to be fruitless.[37]
22. The protections derived from the right to due process and judicial protection applicable in international and non-international armed conflicts, provided for in the Geneva Conventions, correspond substantially to the protections of international human rights law, and require that the states prosecute and punish persons who commit or order the commission of gross violations of international humanitarian law.[38] No derogation from these obligations is allowed on grounds of the continuation of the conflict. In those cases in which, for example, international humanitarian law prescribes minimal due process standards, the states cannot resort to derogations permissible under international human rights law. This view finds support in Articles 27 and 29 of the American Convention, prohibiting derogations inconsistent with a state’s other obligations under international law as well as any interpretation of the Convention that restricts the effective exercise of a right or freedom recognized pursuant to another convention to which the state is a party.[39]
23. Some states affected by internal armed conflicts and their consequences have issued amnesty laws when implementing mechanisms for achieving peace and national reconciliation. Nonetheless, the granting of amnesties and pardons should be limited to punishable conduct in the nature of political crimes or common crimes linked to political crimes insofar as, having a direct and close relationship with the political criminal conduct, they do not constitute serious violations under international law. Those responsible for committing such crimes should not benefit unduly from grounds of exclusion from punishment, such as the prescription of the crime and prescription of the punishment, the granting of territorial or diplomatic asylum, the refusal to extradite a person for the commission of crimes punished by international law, or the granting of amnesties or pardons.[40]
24. In this sense, the IACHR has consistently established that while the adoption of provisions aimed at granting an amnesty to persons responsible for the crime of taking up arms against the state may be a useful tool in the context of effort to achieve peace, amnesty laws as well as similar legislative measures that impede or consider concluded the investigation and prosecution of crimes of international law impede access to justice and render ineffective the obligation of the states party to respect the rights and freedoms recognized in the Convention and to ensure their free and full exercise.[41]
25. For its part, the Inter-American Court of Human Rights has emphasized that the states party to the American Convention cannot invoke provisions of domestic law, such as amnesty laws, to fail to abide by their obligation to ensure the complete and proper functioning of the justice system.[42] In its judgment in the Barrios Altos Case it established that
all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.[43]
The Court concluded that, as these amnesty laws were incompatible with the American Convention, they had no legal effect and could not constitute an obstacle to investigating, identifying, and punishing the persons responsible for violations of rights enshrined in the American Convention.[44]
26. In summary, whenever amnesty laws or similar legislative measures render ineffective and meaningless the obligation of the states party to ensure judicial clarification of the facts of crimes of international law, they are incompatible with the American Convention, independent of whether the violations in question may be attributed to state agents or private persons.
27. The states must adopt the measures necessary to facilitate victims’ access to adequate and effective remedies both for reporting the commission of these crimes and to attain reparation for the harm suffered and in this way help prevent their repetition. The “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law” provide that the states must: (a) make known, by official and private mechanisms, all remedies available against violations of international human rights and humanitarian law norms; (b) adopt, during judicial, administrative, or other proceedings that have a negative impact on the victims’ interests, measures to protect their privacy, as appropriate, and guarantee their security, and that of their next-of-kin and witnesses against any act of intimidation or retaliation; and (c) use all appropriate diplomatic and legal means for the victims to be able to exercise their right to pursue remedies and obtain reparation for violations of international human rights and humanitarian law norms.[45]
28. Observance of the rule of law requires that individuals, institutions, and the state itself act under the rule of its laws, consistent with the principles of non-discrimination, legality, due process, and independence of the judiciary. The right to an effective remedy before the competent national judges or courts is one of the basic pillars of the rule of law in a democratic society,[46] and international law demands that the states guarantee that human rights violations are investigated, that the persons responsible are prosecuted and punished, and that they provide as well for reparation for the harm caused the victims. The Inter-American Court has highlighted the intrinsic connection between the duties of the state to respect, guarantee, and uphold human rights, and effective judicial protection.[47] In this regard, the Court has indicated that in order to fully guarantee the rights recognized by the American Convention, it does not suffice to investigate the facts and prosecute the persons responsible, but it is necessary, as well, for the state activity be aimed at making reparation to the injured party.
C. Victims’ right to reparation for the harm caused
29. The equality of citizens before the law and legal institutions is one of the fundamental aspects of the rule of law. Re-establishing the conditions of equality that make it possible for the victims of the conflict to recognize their status as citizens and regain trust in the institutions is of fundamental importance for attaining peace. The victims of crimes committed during an armed conflict have the right to adequate reparation for the harm suffered, which should take the form of individual measures of restitution, compensation, and rehabilitation, measures of satisfaction generally, and guarantees of non-repetition, making it possible to re-establish their status quo ante, without discrimination.[48]
30. The applicable standards establish that individual measures should be sufficient, effective, prompt, and proportional to the gravity of the crime and the extent of the harm suffered, and should be aimed at re-establishing the victim’s situation before the violation.[49] These measures may consist of re-establishing rights such as personal liberty, in the case of persons who have been detained or kidnapped, and return to the place of residence in the case of displaced persons. In addition, the victims who have been dispossessed of their lands or properties for fear of the violence of the actors in the armed conflict have the right to restitution.[50]
31. When restitutio in integrum[51] is not possible because of the nature of the crime, the persons responsible must compensate the victim or his or her next-of-kin for the damages resulting from the crime. The state should endeavor to pay compensation to the victim when the person responsible for the illicit conduct has been unable or unwilling to carry out his or her obligations.[52] In addition, the situation of the victim may require measures of rehabilitation such as medical and psychological care, legal services, and social support services.
32. General guarantees of satisfaction require measures aimed at remedying the injury suffered by the victim, including the cessation of continuing violations; verification of the acts constituting international crimes; public and complete disclosure of the results of the investigations aimed at establishing the truth of what happened, without giving rise to unnecessary risks for the security of victims and witnesses; the search for the remains of the dead or disappeared; the issuance of official declarations or judicial decisions to re-establish the dignity, reputation, and rights of the victims and of the persons linked to them; public recognition of the events and the responsibilities; recovery of the memory of the victims; and teaching the historical truth.[53]
33. Guarantees of non-repetition require that measures be adopted aimed at preventing new human rights violations. They require dissolving parastatal armed groups; derogating laws that favor the commission of human rights violations or international humanitarian law; effective control of the Armed Forces and security forces by the civilian authorities; resorting to military courts exclusively for service-related crimes; strengthening the independence of the judiciary; protecting the work of judicial officers, human rights defenders, and journalists; training for citizens and state agents on human rights issues and compliance with the codes of conduct and ethical standards; and creating and improving mechanisms for preventive intervention and conflict resolution.[54]
III. CONTEXT: ORIGIN AND CHARACTERISTICS OF THE INTERNAL
ARMED CONFLICT IN COLOMBIA
A. Historical Origins
34. After having left behind the bipartisan (Liberal vs. Conservative) civil wars of the XIX and early XX centuries, Colombian society faced a period known as "La Violencia" after the change in government in 1946 that saw power change hands from the Liberal Party to the Conservative party. In the 1950s, a violent confrontation occurred between the two political groups and the persecution of Liberal Party members in the rural areas laid the foundation for the rise of armed groups. The fall of the military government of General Rojas Pinilla on May 10, 1957 ushered in a period of reconciliation during which Liberals and Conservatives participated in the government through the Frente Nacional, or National Front, taking turns in government, in an effort to maintain stability. During this period, the armed resistance groups linked to the Liberal party disbanded, laid down their arms, and rejoined civilian life.
35. In the 1960s, 1970s, and 1980s, new revolutionary groups organized, and there was renewed violence. That period saw the emergence of the Fuerzas Armadas Revolucionarias de Colombia ("FARC"), the Ejército de Liberación Nacional ("ELN"), the Ejército Popular de Liberación ("EPL"), the Movimiento 19 de Abril ("M-19"), the indigenous guerrilla group Movimiento Armado Quintín Lame, the Autodefensa Obrera ("ADO"), and movements that emerged as dissident factions of the foregoing groups, such as the Ricardo Franco, among others. The rise of these groups and the failure of efforts to reach peace agreements spurred on the development of a new type of violence called "bandolerismo" or banditry, which in the mid-1960s reached critical proportions. Drug-trafficking emerged in this context as a destabilizing factor, through the violence used by the drug cartels to control politics and the trade in cocaine in the late 1970s.
36. The State reacted to the resurgence of violence and in 1965 promulgated, as a transitory provision, under the state of emergency, Decree 3398, which provided at its Article 25 that “… all Colombians, men and women, not included in the call to obligatory service, may be used by the Government in activities and jobs with which they would contribute to re-establishing normalcy.”[54] The decree also indicates at Article 33, paragraph 3 that “the Ministry of National Defense, through the authorized commands, may provide, when it considers it advisable, as private property, arms that are considered as being exclusively for the use of the Armed Forces,” with which groups of civilians armed legally.[55] This Decree became permanent legislation in 1968[56] and the so-called “self-defense groups” were formed under these provisions, with the support of the military forces and National Police.
37. These paramilitary self-defense groups had ties to economic and political sectors in certain parts of the country, and were especially strengthened in the late 1970s and early 1980s. During that period, the paramilitary groups also established close ties with drug-trafficking. Many of their key leaders became landowners and used violence to defend the drug business and their economic interests vis-à-vis the attempts of the dissident armed groups to extort and expropriate them. By the 1980s, it became clear that these groups were responsible for committing selective assassinations and massacres of civilians.
38. Among the criminal acts perpetrated at that time by the paramilitary groups was the massacre of 19 merchants who were traveling from Cúcuta to Medellín in a caravan of vehicles in 1987. The merchants and drivers were stopped in Puerto Boyacá by a paramilitary group that acted with the sponsorship and collaboration of the official forces in the area. The victims were assassinated and their remains destroyed and cast into a tributary of the Magdalena river. The Inter-American Court of Human Rights established the responsibility of the Colombian State for that massacre in view of its role in the formation of these groups under the legislation then in force and the direct participation of members of the National Army in the commission of acts violative of the American Convention.[57] This massacre of civilians by paramilitary forces, with the collaboration of state agents, was followed by the assassination on January 18, 1989, at the hands of the same paramilitary group, of the members of the judicial commission that had traveled to the area to investigate the fate of the 19 merchants. The alleged responsibility of state agents in this massacre, known as the La Rochela massacre, is being examined by the IACHR.[58]
39. After the La Rochela massacre the State began to adopt measures, including legislative measures, to counter the armed control exercised by paramilitary groups in several parts of Colombia. On April 19, 1989, the Colombian Government promulgated Decree 0815[59] by which Articles 25 and 33(3) of Decree 3398 were suspended to ensure that they would not be interpreted as legal authorization for organizing armed civilian groups in violation of the Constitution and statutory law.[60]
40. On June 8, 1989, the State issued Decree 1194 “by which additions are made to Legislative Decree 0180 of 1988, to punish new forms of criminal conduct, as it is required for re-establishing public order.” In its section on considerations, the law states that “the events unfolding in the country have shown that there is a new form of crime entailing the commission of atrocious acts by armed groups, ill-named “paramilitary,” constituted in death squads, bands of paid assassins, self-defense or private justice groups, whose existence and activities has a serious detrimental impact on the country’s social stability, which should be repressed so as to re-establish public order and peace.”[61] Accordingly, this decree is an instrument for defining the crimes of promoting, financing, organizing, directing, fostering, and carrying out acts “aimed at obtaining the formation or entry of persons to armed groups of the sort commonly known as death squads, bands of paid assassins, or private justice groups, mistakenly called paramilitary groups.”[62]
41. Considering that members of the military forces and National Police maintained ties with these groups, Decree 1194 also defined as a crime training or equipping “persons in military tactics, techniques, or procedures for undertaking criminal activities” and stipulated as an aggravating factor that the conduct was committed by active and retired members of the military forces or National Police or by state security bodies. As the Inter-American Court of Human Rights has established, even though the state alleges that it does not maintain an official policy of encouraging the formation of paramilitary groups, this does not release it from responsibility for the interpretation, for years, of the legal framework that gave them cover; for their disproportionate use of the armaments it provided to them; and for failing to take the measures necessary to prohibit, prevent, and duly punish their criminal activities. Moreover, members of the military forces and National Police in certain areas of the country encouraged the self-defense groups to take an offensive attitude towards any person considered a guerrilla sympathizer.[63]
42. In parallel fashion, successive governments undertook to negotiate peace with dissident armed groups. In the early 1990s, several thousand members of the M-19, part of the EPL, and the Quintín Lame demobilized as a result of the peace agreement that they reached with the government. The FARC and the ELN did not demobilize, and, according to figures provided by the Ministry of Defense, as of 2003 they had, respectively, approximately 13,000 and 4,000 members. For their part, and despite legal prohibitions, the paramilitary groups continued to operate and in the 1990s they were responsible for a large number of political killings in Colombia. In approximately 1997, the paramilitary groups consolidated nationwide in an organization called Autodefensas Unidas de Colombia (hereinafter “the AUC”), organized in rural and urban units (bloques), whose publicly-stated purpose was to act in coordinated fashion against the guerrillas. According to figures provided by the Ministry of Defense, by 2003 the AUC had approximately 13,500 members. These forces, paid and well-equipped, are organized in a series of units (bloques) known by the names Norte, Central Bolívar, Centauros, Calima, Héroes de Granada, Pacífico, Sur del Cesar, Vencedores de Arauca, and Élmer Cárdenas, which operate through 49 fronts with a presence in 26 of Colombia’s 32 departments and in 382 of its 1,098 municipalities.
43. The illegal armed groups – both guerrillas and paramilitaries— have created a confusing combination of simultaneous alliances and clashes with drug-trafficking forces and with the official forces. In addition, after relative success in the offensive against the drug cartels in the mid-1990s, these groups assumed the business of controlling the initial phases of narcotics production. The FARC and the ELN, and, since the mid-1990s, the paramilitary groups, also extort and kidnap. In recent decades, organized crime has had an impact on national life as well, affecting elements such as elections and the operation of the judicial system in large parts of Colombian territory.
44. The problem of violence in Colombia is long-standing and very complex. The stability of democratic institutions is negatively impacted by profound social inequalities and high indices of violence whose significance cannot be reduced to terrorist violence alone. This is a situation that demands solutions, the search for which cannot be further delayed. Nonetheless, the road to peaceful coexistence is not simple: successive governments have failed in their efforts to eradicate the violence or have had only partial or relative successes. Given this context, the complexity of the situation will no doubt require extraordinary efforts to regain peace and ensure the rule of law for all Colombians.
B. The impact of the conflict on the civilian population
45. In the last 15 years, the excesses committed by the actors in the internal armed conflict –in particular by the AUC and the FARC-EP— have taken the form of serious violations of human rights and/or international humanitarian law against the civilian population. Specifically, massacres have been used as a strategy against members of the most vulnerable sectors such as indigenous peoples, Afro-descendant communities, and the displaced, and selective assassinations and forced disappearances were committed against human rights defenders[64], judicial officers, trade union and social movement leaders, journalists, and candidates for elective office who are repeatedly designated as military targets, mainly by the AUC. The dissident armed groups –mainly the FARC-EP— have also used tactics such as detonating explosives indiscriminately[65] and kidnapping[66] in violation of the most basic principles of international humanitarian law, resulting in numerous civilian victims.
46. The concentration of violence in certain areas of the country appears to reflect strategic objectives of military and economic domination. The departments hardest hit have been Antioquia, Bolívar, Magdalena, Norte de Santander, Cauca, Meta, Arauca, Caquetá, Cundinamarca, and Chocó, although there have been violent acts and displacement in every department. The presence of the armed actors in local districts and municipalities has translated into constant acts of violence against or punishment of members of the community, who are perceived to be sympathizers of adversary groups merely because they never presented a resistance, now or in the past,[67] while also imposing models of conduct in the community and acts of social cleansing.
47. At least three stages have been identified in the dynamic of the conflict over the last 15 years.[68] In an initial phase from 1988 to 1991 the parties faced the consequences of the failure of a series of peace initiatives, culminating in the violent rejection of the 1991 Constitution by the FARC. This period was followed by a second stage, from 1992 to 1996, during which the intensity of the conflict diminished and stabilized. Finally, a third stage, from 1997 to 2002, brought a renewed intensity to the conflict, especially in 2000 and 2001, with peaks of paramilitary violence against the civilian population,[69] including members of the Army, the Police, the FARC, and AUC killed in combat, and, significantly, civilians who were not legitimate military targets and were defenselessness.
48. The IACHR has repeatedly stated its concern over the failure of the courts to clarify the facts in the overwhelming majority of these incidents.[70] In those cases in which it is possible for the organs of the inter-American system to exercise their jurisdiction, for example, in cases in which state agents are alleged to be responsible by act or omission for the death out of combat of persons who cannot be considered legitimate military targets, the IACHR has processed petitions alleging the violation of rights protected in the American Convention. A large number of complaints have been resolved by the Commission[71] and in some cases, they have been referred to the jurisdiction of the Inter-American Court of Human Rights.[72]
49. Official sources allege that as of 2003, there has been a decline in the number of homicides and massacres perpetrated both by dissident armed groups – the FARC-EP, ELN, and EPL— and by the AUC. According to these sources, there was a 29% reduction in the number of homicides perpetrated by dissident armed groups and a 63.7% reduction in the number of homicides perpetrated by the AUC from August 2002 to June 2003, in relation to the period from August 2001 to June 2002[73] and an 84% drop in the number of massacres perpetrated in the same period by the AUC. The trend in 2004 suggests a 53% reduction in the number of victims of massacres, in relation to the historical high in early 2002. As the IACHR has already indicated, this decline in the number of massacres has been attributed to a change in strategy geared to committing more selective homicides, which in turn have a lesser impact and allegedly a smaller political cost,[74] together with the partial compliance of the unilateral cease-fire that resulted from the rapprochement between the Government and the AUC to reach demobilization agreements.
50. Other sources note that the levels of sociopolitical violence have remained high from 2002 to 2004, with more than 6,000 persons killed out of combat.[75] The statistics prepared by the CINEP and Justicia y Paz data bank record 4,457 deaths from January to December 2003 attributable to extrajudicial executions because of abuse of authority (199), political persecution or intentional homicide (1,150), homicides involving violations of international humanitarian law (422), death in combat (1,849), and political assassinations by undetermined perpetrators (837).[76] These statistics attribute the commission of 2,378 of these deaths to paramilitary groups and 235 to the Army. In addition, they attribute a total of 294 homicides to the FARC-EP and the ELN, not counting other serious breaches of international humanitarian law.[77]
51. Even though official sources refer to a 120% increase in the number of arrests of members of paramilitary groups and a 49% increase in the number killed in 2003, the continuation of acts of violence perpetrated against the civilian population has led the IACHR to express its concern over the manner in which paramilitary groups operate in vast areas of Colombian territory despite the presence of the military forces and the National Police. The Commission has repeatedly stated its position on the State’s responsibility for the ties and degrees of cooperation between some members of the security forces and paramilitary groups in the commission of acts that constitute serious human rights violations.
52. The widespread violations of human rights and/or international humanitarian law perpetrated against the civilian population, mainly in rural areas, are aimed at causing terror and displacement, and the unlawful appropriation of land and other property,[78] continues to exacerbate the humanitarian crisis affecting more than two million persons in Colombia. Given this situation, it is necessary to find ways to put an end to the violence and to re-establish lasting peaceful coexistence.
C. Background on efforts to resolve the internal armed conflict in Colombia
and its legal framework
53. Successive governments have undertaken efforts to end, through negotiations, the political violence that has affected Colombia in recent decades. These efforts have been focused on reaching agreements for the demobilization of illegal armed groups. The agreements were formalized under provisions adopted either by executive decree or by statutes passed by the National Congress. These provisions provided procedural benefits such as termination of the criminal actions or of the penalty imposed in absentia in relation to the commission of political crimes, for example rising up in arms against the State, for those who demobilized.
54. In March 1981, during the administration of President Julio César Turbay Ayala (1978-1982), the Colombian Congress declared, by Law 37 of 1981,[79] a conditional amnesty favoring those in arms who had perpetrated political crimes and crimes related to political crimes. The law included an exception for kidnapping, extortion, and homicide out of combat, among others, and also excluded from the benefit those who were free illegally as a result of having escaped after having been taken prisoner. This provision, applied retroactively, set a four-month period for availing oneself of this benefit. In February 1982, by application of Legislative decree 474, it was declared that the criminal action and the penalty had extinguished in the case of political crimes and crimes related to them.[80]
55. On November 19, 1982, under the administration of President Belisario Betancur (1982-1986), the Congress declared a general amnesty for political and politically-related crimes by means of Law 35.[81] In June 1985 the Congress authorized the President of the Republic to grant pardons to those convicted of political crimes, with the possibility of extending the measure to related crimes.[82] In December 1989, under the administration of Virgilio Barco Vargas (1986–1990), the Congress authorized the President to grant a pardon to those who had committed political crimes before the entry into force of Law 77.[83] One month later, the Government regulated Law 77 of 1989, on the granting of pardon, which set the framework for the peace agreement signed by the National Government and the M-19 on March 9, 1990.[84]
56. In January 1991, the administration of President César Gaviria Trujillo (1990-1994) adopted measures that made it possible to extinguish the penalty and the criminal action for political and related crimes by Decree 213.[85] This provision provided a framework for the peace agreements entered into between the National Government and the Partido Revolucionario de los Trabajadores (“PRT”) (January 25, 1991), the EPL (February 15, 1991) and the Movimiento Quintín Lame (May 27, 1991). The powers of the Executive and the Legislative branches to grant pardons and amnesties were defined in Articles 150 and 201 and transitory article 30 of the Constitution adopted in July 1991.[86] In August 1991 the Government adopted Decree 1943 as a framework for the peace agreement signed with the “Ernesto Rojas” Commands, on March 20, 1992.[87] In December 1993, Congress established grounds for extinguishing the criminal action and the penalty in cases of political and related crimes, by Law 104[88] as a framework for the peace agreements signed in 1994 with the Corriente de Renovación Socialista (CRS), the Milicias Urbanas of Medellín, and the “Frente Francisco Garnica” of the Coordinadora Guerrillera.
57. In December 1995, during the administration of President Samper Pizano, the Congress through Law 241 modified and expanded Law 104 of 1993, making it possible to grant legal benefits to the self-defense groups, or autodefensas, if they would first voluntarily leave the organization and surrender to the authorities.[89] In December 1997, Congress adopted Law 418[90], which in its Title III establishes grounds for extinguishing the criminal action and penalty in political and related crimes. In addition, the provision extends in time Law 104 of 1993, which had already been extended, modified, and expanded by Law 241 of 1995. This legislation covered the peace agreement signed by the National Government and the MIR-COAR on July 29, 1998, under Decrees 1,247 of 1997 and 2,087 of 1998.
58. The administration of Andrés Pastrana issued Resolutions No. 85 of October 14, 1998 and No. 39 of 1999 by which the so-called “zona de distensión” (literally, “zone for easing of tensions,” often referred to as a “demilitarized zone”) was established in the municipalities of San Vicente del Caguán (in the department of Caquetá) and La Macarena, Mesetas, Uribe, and Vista Hermosa (in the department of Meta), in-keeping with the definition of Law 418 of 1997. The objective of establishing this zone– with a total area of 42,139 km2— was to demarcate a space for negotiations with the FARC. These resolutions had the effect of suspending arrest warrants in force for those participating in the negotiations. The zone was originally established on October 23, 1998, for a period of three years and four months, and was extended in December 1999 by Resolution No. 92. Also in December 1999, the Congress extended Law 418 of 1997, by adopting Law 548.[91] The decree of the zona de distensión was extended again in June and December 2000. At the same time, the Congress adopted Law 589, which provided that forced disappearance, forced displacement, genocide, and torture are excluded from any pardon and/or amnesty.[92]
59. Since the zona de distensión was established and the dialogue began, with the assistance of the international community, there was an upturn in the acts of violence perpetrated by illegal groups. The FARC were involved in attacks and kidnappings that took a toll of civilian victims. Finally on February 21, 2002, after almost four years, the talks broke off as the immediate consequence of the kidnapping of Jorge Eduardo Gechem Turbay, Chairman of the Senate’s Peace Committee. President Pastrana immediately suspended the zona de distensión, thus ending his administration’s effort to negotiate with the main dissident armed group.
60. These efforts to reach agreements for demobilizing members of illegal groups
paid off in some cases with partial or relative gains, which have not ended
the violence. The demobilization mechanisms have not been accompanied by comprehensive
measures to provide relief to the victims of the violence nor to clarify the
many criminal acts that remain unpunished, and therefore the factors generating
the conflict in large measure persist. In addition, many of those who have benefited
from past demobilizations have been victims of retaliatory attacks[93]
and others have eventually chosen to join other illegal armed groups, re-engaging
in the conflict.[94] In any event, the mechanisms for demobilizing
armed groups have not had the impact required to break the circle of violence
in Colombia.
IV. CURRENT EFFORTS TO DEMOBILIZE ILLEGAL GROUPS AND THEIR LEGAL FRAMEWORK
61. After the election and inauguration of President Álvaro Uribe Vélez in August 2002, some leaders of the AUC made public their intent to negotiate terms for the demobilization of their forces, and on December 1, 2002, they declared a unilateral cease-fire. In the ensuing months, representatives of the Government initiated contacts with members of the AUC and on July 15, 2003, a preliminary agreement was reached setting goals for demobilization by December 31, 2005. One of the main issues discussed by the parties –and in public debate—related to the incentives for demobilization in view of the arrest warrants and requests for extradition outstanding against members of the AUC who have committed serious human rights violations[96] and have been involved in drug-trafficking.[97]
62. The current legal framework for individual and collective demobilizations rested and continues to rest, then, on Law 418 of 1997 which was extended by Congress by Law 782 in December 2002.[98] These laws establish, inter alia, that a cessation of procedure (cesación de procedimiento), a resolution of preclusion of the investigation (resolución de preclusión de la instrucción), or a resolution of dismissal (resolución inhibitoria) may be granted on behalf of those who confess and have been or were accused of or tried for political crimes, and have not been convicted by a firm judgment,[99] provided that they choose to participate in an individual or collective demobilization.[100] According to these provisions, those who have benefited from a pardon or with respect to whom a cessation of procedure has been ordered may not be tried or prosecuted for the same facts giving rise to the granting of benefits.[101] Both Law 418 and Law 782 echo the limitation of benefits for those who have been involved in conduct constituting atrocious acts of ferocity or barbarism, terrorism, kidnapping, genocide, and homicide committed when the victim[102] is hors de combat.[103]
63. The negotiations between the Government and the leaders of the AUC involved in the process have revolved around establishing a legal framework that encourages demobilization of the members of the AUC who are not in a position to benefit from the extinguishment of the penalty provided for by Law 782, noted supra. The first initiative resulting from this effort found expression in Enacting Law No. 85 of 2003, which made it possible to have sentences other than imprisonment for persons who have committed serious violations of human rights and/or international humanitarian law, presumably as an incentive for their demobilization and reincorporation to civilian life. After its debate in Congress and in the face of the serious concerns expressed by members of civil society, the Office of the United Nations High Commissioner,[104] the international community in general, and the IACHR[105], the bill was withdrawn and reworked.
64. This reformulation, called “Pliego de modificaciones al Proyecto de Ley Estatutaria No. 85 de 2003” (“List of Modifications to Enacting Law No. 85 of 2003”), was introduced in Congress in April 2004, and is pending consideration as of this writing. The bill proposes a new formula by which members of armed groups that have ceased hostilities and signed a peace agreement with the National Government may benefit from alternative penalties, despite their involvement in those violations of human rights and international humanitarian law that barred extinction of the criminal action or penalty under the provisions of Law 782.[106] The bill provides that the power to grant benefits under the alternative penalties provisions rests with the President of the Republic, after receiving a favorable opinion from a “Tribunal for Truth, Justice, and Reparation.”[107] If the Tribunal provides an unfavorable opinion, the proceedings are referred back to the judge to enforce the sentences imposed. The President retains the power to deny the benefit, even in the event that the Tribunal has rendered a favorable opinion.
65. The bill provides for the creation of a Special Prosecutorial Unit for Truth, Justice and Reparation (Unidad Especial de Fiscalía para la Verdad, la Justicia y la Reparación), to take actions that would normally fall to the Office of the Attorney General in view of the scope of its authority. Under the bill, the Executive determines who may benefit from penalties that are alternatives to those established by the criminal courts. The demobilized identified by the Government would remain under the jurisdiction of the Tribunal for Truth, Justice, and Reparation, which would be responsible for certifying that they meet the requirements for acceding to the benefits provided for by law, issuing its opinion on the viability of applying the benefits of alternative penalties to them, reducing the sentence that should be enforced, imposing accessory penalties, and determining appropriate the acts of reparation and acts for ending the armed conflict or attaining peace.[108] The decision of the Tribunal for Truth, Justice, and Reparation is non-appealable, and it is not subject to any remedy.[109]
66. The bill defines “alternative penalty” as that part of the sentence imposed whose enforcement will consist of the effective deprivation of liberty for a period not less than five years and not greater than ten years.[110] These terms give rise to questions regarding their proportionality to the nature, magnitude, and frequency of the crimes attributed to the illegal armed groups in general, and the AUC in particular, particularly in the last seven years.[111] The bill provides that on quantifying the alternative penalty, the Tribunal for Truth, Justice, and Reparation should consider, inter alia, the “personal qualities” of the person convicted and sentenced and “his or her contribution to ending the armed conflict or attaining peace.”[112] In addition, it provides that the time spent by the beneficiary in a zone of concentration decreed by the National Government under Law 782 of 2002 – such as the “zona de ubicación” (“zone of placement”) of Santafé de Ralito—shall be included as part of the time served under the sentence.[113]
67. The bill highlights the importance of positive acts for overcoming the armed conflict, and achieving peace and the reconciliation of Colombian society.[114] Nonetheless, it does not impose as conditions for access to the procedural benefits basic demands to determine the truth of what happened, attain justice, and make due reparation to the victims. Specifically, it makes no reference to acts aimed at revealing the truth of the crimes committed by the beneficiary or collaborating with the justice system to determine what happened, nor does it refer to the declaration and restitution of property acquired through criminal activities. These omissions threaten to deprive the victims of their right to judicial protection and adequate reparation, in the face of realities such as individual and collective displacement from rural areas due to the action of these illegal armed groups and the unlawful appropriation of lands.
68. As the bill indicates, once the prison term is served, the suspension of the sentence will depend on behavior during a test period of supervised release.[115] Once the supervision period is over, the judge, titled the Judge of Enforcement of Penalties and Security Measures for Truth, Justice and Reparation, will grant the definitive release of the person convicted so long as he or she has effectively served the alternative penalty involving deprivation of liberty, has fully satisfied the obligations of compensation and reparation that may have been imposed, has performed positive acts to further the demobilization, and has refrained from committing intentional crimes and from possessing arms during the test period.[116]
69. The bill seeks to satisfy the individual and collective right to the truth by preserving the files of the Tribunal for Truth, Justice and Reparation on the demobilized beneficiaries, to which the public would have access once the cases are finalized.[117] As indicated supra, the bill does not make reference to acts aimed at revealing the truth of the crimes committed by the beneficiary or any other relevant information to establish what happened to the thousands of victims of the conflict.
70. In any event, as of this writing, there is talk of preparing several other legislative proposals, advocated by different sectors with alternatives for the process of demobilization of the AUC, the applicable judicial procedures, and possible ways of making reparation to the victims of the conflict. The IACHR hopes that these alternative proposals will be consistent with the framework of the State’s international obligations with respect to truth, justice, and reparation.
71. Despite the lack of legislative definition of the procedural benefits to be obtained by those who decide to join an eventual demobilization, the process of dialogue between the so-called “negotiating high command” (“estado mayor negociador”) of the AUC and the Government continued to progress in the course of 2004. This negotiation co-exists with the regime of individual and collective demobilization in force for all the members of illegal armed groups who wish to return to civilian life that is regulated by Decree 128 of 2003. The next section sets forth a series of observations on these unfolding processes at the individual and collective levels, and on the cessation of hostilities proposed by the negotiating high command of the AUC.
A. Individual demobilization as a permanent strategy for disarming illegal armed
groups
72. Despite sharing the effect of reincorporating members of illegal armed groups into civilian life, the objectives of individual and collective demobilizations are not necessarily identical. Unlike collective demobilizations – identified with the development of peace negotiations with the leadership of illegal organizations — individual demobilizations seek to dismantle these organizations from their base, offering their members the opportunity to avail themselves of procedural, social, and economic benefits in exchange for their surrender and cooperation with the authorities. It is a strategy in force at all times to attain the disarmament of the illegal armed groups, with the active and permanent participation of the Ministry of Defense and the Ministry of Interior and Justice.
73. As indicated supra, the regime for individual demobilization in force is governed principally by Law 418 of 1997, extended and modified by Law 548 of 1999 and Law 782 of 2002, which are regulated by Decree 128 of 2003.[118] Decree 128 of 2003 establishes the procedure for the demobilized to avail themselves of the benefits of their demobilization. Specifically, it establishes that persons who intend to avail themselves of the benefits in the areas of health,[119] protection and security,[120] and economic payments for collaborating through the provision of information on activities of illegal organizations[121] and for surrendering their weapons,[122] should go before judges, prosecutors, military or police authorities, representatives of the Inspector General (Procurador), representatives of the Human Rights Ombudsman, or local or regional authorities, who will immediately inform the Office of the Attorney General of the Nation and the military garrison closest to the place of surrender.[123]
74. From the moment the person approaches the authorities, the Ministry of Defense should cover his or her basic needs for shelter, food, clothes, and transportation, and protect his or her personal integrity. Next, the demobilized person is made available to the Ministry of Interior,[124] which is responsible for coordinating with the Office of the Attorney General and the Superior Judicial Council the designation of prosecutors and juvenile judges to define a person’s legal situation. The Office of the Human Rights Ombudsperson is responsible for ensuring the designation of public defenders to work exclusively for the defense of the demobilized person, and the Presidential Human Rights Program is responsible for ensuring, in general, respect for his or her rights.[125]
75. Although the provisions of Decree 128 of 2003 are mostly aimed at regulating the provision of social benefits, it also refers to the right to avail oneself of legal benefits, such as pardon, conditional suspension of the enforcement of a sentence, cessation of the procedure, preclusion of the investigation, or resolution of dismissal based on the certification issued by the Committee on Laying Down Arms (Comité de Dejación de Armas: CODA).[126] On regulating the provisions of Laws 418 of 1997, 548 of 1999, and 782 of 2002, Decree 128 expressly conditions access to legal benefits on the demobilized person being tried or having been convicted of committing crimes which “…under the Constitution, the law, or international treaties signed and ratified by Colombia, cannot receive such benefits.”[127] In other words, those who are being tried or have been convicted of crimes other than rising up in arms against the State that are considered not subject to amnesty by application of the Constitution, the American Convention on Human Rights or other human rights treaties, and Laws 418 and 782 (which defines them as “… atrocious acts of ferocity or barbarism, terrorism, kidnapping, genocide, and homicide committed out of combat and placing the victim in a defenseless state”), among others, may not benefit from pardon, conditional suspension of enforcement of the sentence, cessation of proceedings, preclusion of the investigation, or a resolution of dismissal, by means of individual demobilization.
76. Given that a large number of the members of illegal armed groups responsible for committing crimes against the civilian population have not given sworn statements to investigators or have been declared to be in absentia, it has been argued that the restriction in Article 21 of Decree 128 of 2003 allows atrocious crimes in respect of which no investigation has been formally launched to remain in impunity.[128] According to this interpretation, the certification of the Committee on Laying Down Arms would prevent judicial proceedings from going forward against persons who have not been tried or convicted prior to their demobilization. On this topic, judicial officers involved in the processes of individual and collective demobilization assured the IACHR during its on-site visit of July 2004 that the procedural benefits to which the legal regime in force refers would only be applicable to the crime of “conspiracy to engage in criminal conduct” (“concierto para delinquir”) because of the affiliation of the demobilized person to an illegal armed group.[129] Under this interpretation, therefore, a resolution preventing the prosecution from pursing charges for the crime of concierto para delinquir should not impede investigations into other crimes where the demobilized person does not have a judicial record at the time the resolution is issued.
77. In summary, the gaps and ambiguities in the terms of Articles 13 and 21 of Decree 128 give rise to a lack of clarity as to the scope of the procedural benefits to which the demobilized would have a right, and juridical insecurity for all the parties involved, in particular the victims of human rights violations and their next-of-kin. The high levels of impunity and the ineffectiveness of the administration of justice in Colombia – which have been the subject of repeated pronouncements and recommendations by the IACHR and the Office of the United Nations High Commissioner for Human Rights — demand that the future investigation of the crimes perpetrated by the actors to the conflict be supported by clear provisions that are consistent with the international obligations of the State. At the same time, the transparency generated by clear language in the instruments used to facilitate the demobilization of members of illegal groups may contribute to the legitimacy, and therefore success, of a process aimed at achieving peace.
78. The figures provided by the Ministry of Defense to the IACHR during its on-site observation indicate that from August 2002 to July 2004, 2,604 members of the FARC (approximately 15% of its members), 727 members of the ELN (15% of its members), and 1,176 members of the AUC (approximately 19% of its members) demobilized under this legal regime. It should be noted that 20% of the demobilized are children. At the same time, these figures should be compared with the continuous forced recruitment of children and adults by all the illegal groups. In this regard, government sources have indicated that prior to the declaration of their intent to demobilize, in 2002, the AUC were growing at a rate of 58% annually.[130] Since then, according to these same sources, the paramilitary ranks have grown 10% annually.
79. Finally, it should be noted for the record that after the visit of the IACHR, the Ministry of Defense adopted a new instrument “to enable the Government to provide the demobilized with mechanisms that offer them an opportunity to develop a life plan safely and with dignity.”[131] Decree 2767 of August 31, 2004, expands the regime of economic benefits already established in Decree 128 of 2004 for collaborating through the provision of information on the activities of illegal organizations. Under this new instrument, the economic benefits for collaborating are generally geared to activities involving cooperation with the military forces and National Police related to crime control in Colombian territory.[132] Efforts aimed at fostering conditions for the successful reincorporation to society of those who have formalized their intent to put down their arms are valid and desirable. At the same time, the use of civilians in tasks to support the military forces and National Police must be evaluated with caution since it could reproduce the circumstances that originally led to the creation of the groups that are now the object of demobilization efforts.
B. Collective demobilization: The experience of the Bloque Cacique Nutibara[133]
80. On November 25, 2003, the process commenced whereby 874 members of the so-called “Bloque Cacique Nutibara” laid down their arms. It was one of the most aggressive urban fronts of the AUC which for several years had been operating in the city of Medellín. This process of demobilization agreed upon at the local level with the outgoing authorities of the local government of Medellín was considered a pilot scheme for the collective demobilization of AUC members. The demobilized forces remained concentrated at La Ceja, in the outskirts of the city until December 16, 2003, in order for the authorities of the Ministry of Defense, the Ministry of Interior, and the Office of the Special Prosecutor of Medellín to determine their judicial situation and to issue the respective identification papers, in-keeping with the legal framework established by Laws 418 and 782 and Decree 128, analyzed supra. When this stage was completed, the local government of Medellín – through the new administration that took office in 2004— began developing the “Return to Legality” (“Regreso a la Legalidad”) program, to implement social benefits for the 868[134] who demobilized, to support their reincorporation into civilian life. These benefits include, inter alia, projects for training, income and employment generation, and psychosocial accompaniment.
81. During its visit to the city of Medellín in July 2004, the IACHR received information from the local government authorities involved in the process and from the Office of the Special Prosecutor of Medellín. It also had an opportunity to meet with representatives of demobilized persons in the organization known as Corporación Democracia, and to receive complaints and testimony from persons who live in areas where the Bloque Cacique Nutibara has operated. It should be recalled that as of the events of October 2002,[135] the IACHR has closely monitored the human rights situation in the comunas of the city of Medellín. The Commission’s July 2004 visit complemented its previous visit in June 2003,[136] when a delegation of the IACHR visited the areas of the city most affected by the paramilitary presence and control.
82. The testimony, complaints, and information received indicate that despite a certain decline in the number of incidents of political violence – a general trend since 2003, as analyzed supra—paramilitary domination persists in certain comunas of Medellín, along with acts of violence, harassment, and intimidation against those who do not express support for the project backed by these groups. Specifically, members of these groups and, allegedly, persons whop have benefited from individual and collective demobilizations seek to legitimate their influence in the community organizations known as juntas de acción comunal and to maintain their control over everyday activities in the comunas by the use of violence, extortion, and intimidation. The testimonies received by the Commission refer to the perpetration of 130 forced disappearances in 2003 and 97 disappearances from January to July of 2004, as well as the discovery of mass graves. They also refer to assassinations,[137] with the emphasis on the use of bladed weapons instead of firearms.[138] Complaints of collaboration between the paramilitary groups and the official forces persist,[139] as do fears of lodging complaints before the judicial and oversight authorities, together with a sense of defenselessness vis-à-vis the legitimacy that the procedural benefits of demobilization are said to have given to members of the Bloque Cacique Nutibara. Also apparent is the aggravation of the neediest and poorest sectors of the comunas of Medellín vis-à-vis the investment in education, social security, and productive projects benefiting those who demobilized. These factors have resulted in the intra-urban displacement of dozens of families, forced to abandon their homes,[140] thus strengthening what they characterize as “the reign of silence” (“el reino del silencio”).[141]
83. For many years the comunas of Medellín have been a focus of violence not only committed by illegal armed groups (FARC, Comandos Armados Populares: CAP, AUC, etc.), but also by the members of gangs, known variously as bandas, combos, and parches,[142] who constantly shuttle between the tenuous boundaries separating common crime, organized crime, and political violence. This violent situation has not diminished significantly with the demobilization of November 2003, since it has not modified the problems stemming from impunity, the lack of legitimate activity by the official forces, and the struggle for the control of urban areas.
84. Indeed, from the information available, it cannot be inferred that the 868 demobilized who express the commitment of the Bloque Cacique Nutibara constitute a significant or representative share of those who participate actively in the political violence that has derived from the armed conflict in Medellín, an urban area with thousands of active gangs, made up of approximately 25 youths each. In effect, as statistics compiled by the local government of Medellín indicate, 65% of the demobilized of the Bloque Cacique Nutibara are youths ages 18 to 25 years. In addition, a review of their criminal records undertaken by the Office of the Special Prosecutor of Medellín, after the concentration at la Ceja, indicates that most of the youths have not been implicated in crimes related to human rights violations. In fact, the information to which the IACHR had access during its visit to Medellín indicates that only 360 of the 868 demobilized have proceedings pending, which refer to offenses such as theft (hurto calificado), extortion, forgery, failure to pay alimony, drug-trafficking, and domestic violence, among others. At the time of the visit, only one of them was implicated in the investigation of crimes related to alleged human rights violations.
85. While, as has been indicated repeatedly by the IACHR and the Office of the United Nations High Commissioner for Human Rights, there are serious shortcomings in the effectiveness of the administration of justice in Colombia and there is clear reticence on the part of the victims to come forth and report serious human rights violations out of fear of reprisal, the outlook suggests that the demobilized of the Bloque Cacique Nutibara are not representative of the more violent elements in the AUC. Consequently, any expectation for a positive impact of their demobilization on the violent actions of the armed groups is low, and should be greeted with caution.
86. Despite the firm statements by the Corporación Democracia to the effect that the demobilization of the members of the Bloque Cacique Nutibara is directed by the orders given by Adolfo Paz, alias “Don Berna” – a member of the negotiating high command of the AUC— the statistics compiled by the local government of Medellín reveal another reality: 75% of those who have joined the program seek access to benefits that enable them to work a change in their individual situation. The objective of a process of this nature is to ensure that such a change does not result in the eventual return of demobilized persons to the ranks of another illegal armed group, which is one of the phenomena that have contributed to perpetuate the armed conflict in Colombia.
C. The process of negotiating conditions for the return to civilian life with
the Negotiating High Command of the AUC (zona de ubicación in Santafé de Ralito)
87. As indicated supra, what is known as the “negotiating high command” of the AUC[143] and the administration of President Uribe continue the process of dialogue, which is aimed at demobilizing a number of paramilitary fronts in 2004 and 2005. The Bloque Élmer Cárdenas, commanded by José Alfredo Berrío alias “El Alemán”, whose influence extends throughout the department of Chocó and the Urabá region – one of the epicenters of the armed conflict — is not a party to the negotiation. Nor are the Autodefensas Campesinas de Casanare, led by Héctor Germán Buitrago, alias “Martín Llanos.” While there has been an official announcement of the intent to carry out military actions against “Martín Llanos,” there has been no news of pronouncements or actions aimed at combating the constant attacks by the Bloque Elmer Cárdenas on the civilian population, in particular against the Afrodescendant communities that live in the lower Atrato, which in some cases are protected by precautionary and provisional measures.[144]
88. On May 13, 2004, an agreement was reached on the establishment of a zona de ubicación, or “placement zone,” in Tierralta, Córdoba,[145] which was implemented through Resolution 092 of 2004. This Resolution had the effect – under the provisions of Law 782 of 2002— of suspending the arrest warrants for the members of the AUC who are within the perimeters of its 368 km2 area during the period it is in effect, in principle until December 1, 2004.[146] This agreement defines the purposes of the zona de ubicación as follows: to facilitate the consolidation of the process of dialogue between the Government and the AUC; to contribute to the enhancement and verification of the cease of hostilities; to move towards defining a timetable for the concentration and demobilization of the members of the Autodefensas Unidas de Colombia; to allow for an exchange between the negotiating table and all the national and international sectors; and to facilitate citizen participation in the process. While the suspension of the arrest warrants did not become effective until July 1, 2004, the authorities refrained from executing them while they were in effect, during the discussions that have been ongoing since December 2002.
89. As for the role of the MAPP/OAS mission, the agreement provides that it will receive an inventory of the weapons, war matériel, and munitions in the possession of the members of the self-defense groups in the zone. The members of the self-defense groups will refrain from making, storing, bringing in or removing arms, war matériel, and/or additional munitions, and the MAPP/OAS Mission will receive a report on the means of communication and communication equipment in the possession of civilians or self-defense forces being used in the zone. It also establishes as one role of the Mission the execution of a process of information and awareness-raising with the communities that live in the zone. The agreement establishes that the MAPP/OAS Mission will undertake its mission of verifying the commitments acquired and the cessation of hostilities at the national level with the support of a Verification Committee made up of one member of MAPP/OAS, one delegate from the Office of the High Commissioner for Peace, and one delegate of the AUC. The agreement entrusts this Committee with adopting a procedure for taking in and addressing complaints, information, or reports in relation to implementation of the cessation of hostilities.
90. The agreement does not establish guarantees of security for the civilian population living within the perimeter of the 368 km2 of the zona de ubicación who –beyond the presence of members of the MAPP/OAS Mission— are deprived of the presence of the military forces or National Police and of the judicial and oversight authorities. In effect, the agreement establishes that the official forces are in charge of the security perimeter in the zone and an internal security cordon to protect the AUC. As already indicated, under Law 782 for as long as the zone is in force, the arrest warrants for and offensive operations against the members of the AUC who are within the delimited territory are suspended.
91. As of the date this report was adopted, the negotiating goals that led to the establishment of the zona de ubicación continue to be pursued, and it appears that there has been some progress in negotiating timelines for demobilizing the members of the AUC units (bloques) that are participating in the dialogue. During the first days of August 2004, the Uribe administration called for the immediate demobilization of AUC units located in the Eastern Plains or Llanos Orientales (made up of the departments of Meta, Casanare, Vichada, and Arauca), involved in repeated confrontations in violation of the cease of hostilities. On August 1, 2004, an agreement was reached to demobilize the autodefensas in the Eastern Plains (Bloque Centauros, Autodefensas Campesinas de Meta y Vichada, and Bloque Vencedores, of Arauca), which together are said to have more than 6,000 combatants.[147] In December 2004, 1,400 members of the Frente Catatumbo,[148] which is part of the Bloque Norte of the AUC led by Salvatore Mancuso, demobilized. Two additional AUC fronts gathered in areas designated by the Government for that purpose in, respectively, late November and early December 2004.
92. Progress has been made in coordinating the logistical aspects of the concentration of some fronts despite the lack of a definition of the applicable legal framework and the constant violations of the cease of hostilities declared by the AUC. On May 28, 2004, the High Commissioner for Peace himself stated that “the tendency of the AUC to commit criminal actions increases month by month, especially homicides” and that there had been increased attacks against the civilian population.[149] The Office in Colombia of the United Nations High Commissioner for Human Rights has also issued statements regarding acts of violence perpetrated in Valle del Cauca, attributing them to the AUC and characterizing them as “… another clear breach of the commitments assumed by paramilitary groups today at the negotiating table in Santafé de Ralito”.[150]
93. The IACHR has received allegations of human rights violations allegedly perpetrated in areas with a presence of bloques led by members of the negotiating high command, such as Antioquia, Córdoba, Norte de Santander, la Guajira, Cesar, Arauca, Tolima, Cauca, and Caldas, among others. The situation of violence against the indigenous communities that live in the Sierra Nevada de Santa Marta led to a request for provisional measures before the Inter-American Court of Human Rights on behalf of the Kankuamo indigenous people pursuant to Article 63(2) of the American Convention,[151] and the issuance of precautionary measures on behalf of the women leaders (“liderezas”) of the Wayúu indigenous people pursuant to Article 25 of the Commission’s Rules of Procedure. In addition, the IACHR has paid particular attention to the situation of the Embera-Katío people of the upper Sinú river basin, who live in their ancestral territories adjacent to the Tierralta area and the zona de ubicación of Santafé de Ralito, as well as the reservations (resguardos) of the Embera-Chamí in Caldas and Risaralda, who are also protected by precautionary measures.
94. The process is in a crucial stage in which both the negotiations and respect for the cease-of-hostilities commitments should be guided by the principles and standards set forth in international law for resolving armed conflicts, and the content of the state’s obligation to ensure justice, truth, and reparations for all persons under their jurisdiction.
95. The IACHR is aware, given the magnitude, duration, and complexity of the internal armed conflict in Colombia, that there are no easy answers, and that the search for political solutions to deactivate the factors and groups participating in the internal armed conflict is fundamental. This requires substantive proposals which, based on such a difficult reality, will assist the peace process, an initiative that all very much hope will make progress in Colombia.
96. Despite the commitment to a cessation of hostilities by the AUC, acts of violence against and intimidation of the civilian population continue. Deactivating the complex network of illegal armed groups that have joined the armed conflict in Colombia requires putting an end to the constant succession of acts of violence by paramilitary groups, whether or not part of the process, and the guerrillas, against the civilian population; and ensuring that these crimes are properly clarified in the courts. The consequences of the violence and displacement for hundreds of thousands of victims of the conflict and their exclusion from the process of seeking a negotiated solution stand in the way of the search for truth and access to justice and reparation.
97. The members of the paramilitary fronts involved in the process of demobilization now being fostered by the government have been repeatedly accused of responsibility for serious violations of human rights and international humanitarian law, including massacres of defenseless civilians, selective assassinations of social leaders, trade unionists, human rights defenders, judicial officers, and journalists, among others, acts of torture, harassment, and intimidation, and actions aimed at forcing the displacement of entire communities. In some cases the Inter-American Commission and the Inter-American Court have established the responsibility of the State, as these grave violations of the American Convention on Human Rights were perpetrated with the acquiescence of state agents.
98. The organs of the inter-American system, the Office of the United Nations High Commissioner for Human Rights, and human rights organizations in Colombia and abroad have made statements to the effect that the process of demobilization should be accompanied by guarantees of respect for the international obligations of the State. For the time being, the process has moved forward without the support of a comprehensive legal framework that clarifies the conditions under which persons responsible for committing human rights violations are to demobilize, or their relationship with the peace process. No efforts have yet been identified to establish the truth of what has happened and the degree of official involvement in paramilitarism. In addition, the issue of reparation for the harm caused to the victims of acts of violence and displacement, including control over lands, does not appear to be addressed with appropriate levels of participation. The conditions under which the members of illegal armed groups join the demobilization process should be closely monitored to ensure it does not become a conduit towards impunity.
99. In view of the foregoing, the IACHR recommends the adoption of a comprehensive legal framework that establishes clear conditions for the demobilization of illegal armed groups, in accordance with the State’s international obligations. This legal framework should provide for the situation of those who have joined processes for individual and collective demobilization to clarify their situation. Moreover, genuine mechanisms of participation should be put in place, in secure conditions, for the victims of the conflict, so as to ensure access to truth, justice, and reparation.
100. The efforts at peacemaking and demobilization of armed groups should be strengthened on the basis of legitimacy and participation, so as to offer the beneficiaries a genuine opportunity for reintegration into society and guarantees of protection in the face of possible violent reprisals. This legitimacy should in turn be nurtured through a real commitment vis-à-vis the agreements reached in light of international standards, to end the use of violence and intimidation against the civilian population, to submit to the law, and to provide reparations for the victims. The development of a culture of peace, tolerance, respect for the law, and rejection of impunity requires the participation of all Colombians, in particular those who have directly suffered the consequences of the conflict. It is an endeavor that must be consolidated on the basis of truth, justice, and reparation.
Notes_____________
§ Pursuant to the advisory function entrusted by the Permanent
Council of the OAS by Resolution CP/Res. 859 (1397/04) “Support to the
Peace Process in Colombia.”
[1] Permanent Council of the OAS, Resolution CP/RES. 859 (1397/04) ”Support to the Peace Process in Colombia,” first operative paragraph.
[2] “Agreement between the Government of Colombia and the General Secretariat of the OAS for Monitoring of the Peace Process in Colombia,” signed January 23, 2004, by the Secretary General of the OAS, César Gaviria, and President Álvaro Uribe Vélez.
[3] Permanent Council of the OAS, Resolution CP/RES. 859 (1397/04) ”Support to the Peace Process in Colombia,” third operative paragraph. The Permanent Council also instructed the Secretary General to report quarterly on the work of MAPP/OAS and “its continued ability to contribute … to the fulfillment of the values and principles contained in the Charter of the Organization of American States and the Inter-American Democratic Charter.” The first report was given on May 17, 2004 by the Advisor to the Secretary General, Jorge Mario Eastman, who made reference to an agreement signed by the Colombian Government and the AUC to establish a zone of concentration, where the MAPP/OAS Mission would verify the development of the peace process. On August 5, 2004, the Director of the MAPP Mission, Sergio Caramagna, presented a second oral report to the Permanent Council of the OAS in which he outlined progress in the work done. A major part of his report was intended to highlight the important financial support provided by the Government of Colombia to the MAPP Mission –which, indeed, has enabled it to operate from the moment it was set up— as well as the efforts to expand the sources of financing. On September 28, 2004, the “Second quarterly report of the Secretary General on the Mission to Support the Peace Process in Colombia (MAPP/OEA), pursuant to resolution CP/RES. 859 (1397/04)” OEA/Ser. G CP/doc.3944/04, was submitted in writing. On December 8, 2004 the MAPP Mission presented a third oral report before the Permanent Council which included information on the demobilization of approximately 3,000 AUC members during November and the beginning of December, 2004 and on a donation by the Netherlands.
[4] The IACHR is a principal and autonomous organ of the Organization of American States (OAS), whose mandate arises from the Charter of the OAS and the American Convention on Human Rights, and which acts in representation of all the member countries of the OAS. It is made up of seven independent experts elected by the General Assembly in their personal capacity. The IACHR holds regular and special sessions various times a year during which its members deliberate and adopt reports and other types of decisions. At present the members of the IACHR are commissioners José Zalaquett, President; Clare Kamau Roberts, First Vice-President; Susana Villarán, Second Vice-President; Paulo Sérgio Pinheiro, Evelio Fernández Arévalos, Freddy Gutiérrez, and Florentín Meléndez. They are assisted by the Executive Secretary, Santiago Canton. The directives of the IACHR are carried out by an Executive Secretariat, which operates permanently from OAS headquarters in Washington, D.C.
[5] See IACHR, “CIDH expresa preocupación por el secuestro del gobernador indígena en la República de Colombia”, Press Release 14/04, Washington D.C., May 26, 2004.
[6] On June 4, 2001, the IACHR issued precautionary measures on behalf of Kimi Domicó, Uldarico Domicó, Argel Domicó, Honorio Domicó, Adolfo Domicó, Teofan Domicó, Mariano Majore, Delio Domicó, Fredy Domicó, and other members of the Embera-Katío indigenous community of the Upper Sinú allegedly kidnapped by the AUC in the resguardo and neighboring areas, in Tierralta. The State was asked to urgently take the measures needed to establish the whereabouts and protect the life and personal integrity of the above-mentioned persons, to take the measures needed to protect all other members of the Embera-Katío indigenous community of the upper Sinú, with the agreement of the petitioners of the precautionary measures, and to clarify judicially the acts of violence against the indigenous community. After the State’s response the parties continued to submit information and observations in relation to these precautionary measures. Annual Report of the IACHR 2001, OEA/Ser./L/V/II.114 doc. 5 rev.
[7] Article 25 of the Commission’s Rules of Procedure provide that: “(1) In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons. (2) If the Commission is not in session, the President, or, in his or her absence, one of the Vice-Presidents, shall consult with the other members, through the Executive Secretariat, on the application of the provision in the previous paragraph. If it is not possible to consult within a reasonable period of time under the circumstances, the President or, where appropriate, one of the Vice-President shall take the decision on behalf of the Commission and shall so inform its members. (3) The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures. (4) The granting of such measures and their adoption by the State shall not constitute a prejudgment on the merits of a case.”
[8] The expression “crime of international law” was adopted by the Special Rapporteur Cherif Biassiouni in a final report submitted pursuant to resolution 1999/33 of the Commission on Human Rights on “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” and “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law,” attached to the report. See United Nations, Economic and Social Council, E/CN.4/2000/62 January 18, 2000, p. 3.
[9] The Member States of the OAS are – by dint of having ratified the Charter of the OAS — obligated to respect and ensure the human rights provisions that are part of the Charter. See, for example, OEA AG Res. AG/RES. 314 (VII-0/77) of June 22, 1977; OEA AG/RES. 370 (VIII-0/78) of July 1, 1978; OEA AG/RES. 1829 (XXXI-0/01) of June 5, 2001. See also, I/A Court H.R. (Interpretation of the American Declaration on the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights), Advisory Opinion OC-10/89 of July 14, 1989, Series A No. 10, paras. 43-46; and IACHR, Report No. 48/01, Case 12,067, Michael Edwards et al. (Bahamas), Annual Report of the IACHR 2000, para. 107.
[10] The American Declaration is a source of legal obligations for all the Member States of the OAS, including those states that have not ratified the American Convention on Human Rights. See I/A Court H.R. (Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights), Advisory Opinion OC-10/89, July 14, 1989, Series A No. 10, paras. 43-46. In addition, the Commission has established that the right to life, the right to liberty, and the right to due process and a fair trial, protected in the American Declaration, have acquired the status of customary norms of international law. IACHR Report No. 19/02, Alfredo Lares Reyes et al. (United States), Annual Report of the IACHR 2001, para. 46.
[11] See Articles 1 and 2 of the American Convention on Human Rights, adopted in San José, Costa Rica, on November 22, 1969, at the Inter-American Specialized Conference on Human Rights, Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 rev. 10, January 31, 2004.
[12] Of these, special mention should be made of: the Inter-American Convention to Prevent and Punish Torture, signed at Cartagena, Colombia, December 9, 1985, at the 15th regular session of the General Assembly; the Inter-American Convention on Forced Disappearance of Persons, adopted in Belém do Pará, Brazil, June 9, 1994, at the 24th regular session of the General Assembly; the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, adopted in Belém do Pará, Brazil, June 9, 1994, during the 24th regular session of the General Assembly; and the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, signed in San Salvador, El Salvador, November 17, 1988, at the 28th regular session of the General Assembly. All of these appear in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser.L/V/I.4 rev. 10, January 31, 2004.
[13] See the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, Article 27, which provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” See also I/A Court H.R., Advisory Opinion OC-14/94, International Responsibility for the Promulgation and Enforcement of Laws in violation of the Convention (Articles 1 and 2 of the American Convention on Human Rights), December 9, 1994, Series A No. 14, para. 35, where it recognizes: “Pursuant to international law, all obligations imposed by it must be fulfilled in good faith; domestic law may not be invoked to justify nonfulfillment. These rules may be deemed to be general principles of law and have been applied by the Permanent Court of International Justice and the International Court of Justice.” See P.C.I.J., The Greco-Bulgarian Communities-Advisory opinion [1930] PCIJ 1 (31 July 1930); P.C.I.J. Treatment of Polish Nationals and other Persons of Polish Origin or Speech in the Dantzig territory - Advisory opinion [1932] PCIJ 1 (4 February 1932); P.C.I.J. Free zones of Upper Savoy and the District of Gex [1932] PCIJ 3 (7 June 1932).
[14] Article 27 of the American Convention on Human Rights establishes the grounds for suspension of guarantees in emergency situations, and the non-derogable rights. See IACHR, Report No. 5/97, Abella (Argentina), Annual Report of the IACHR 1997, para. 158; IACHR Report No. 109/99, Coard et al. (United States), Annual Report of the IACHR 1999. See, by way of analogy, Article 4 of the International Covenant on Civil and Political Rights, and ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, July 8, 1996, ICJ Reports 1996, which confirms that “the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.” See also ICJ Advisory Opinion of 9 July 2004 “Legal consequences of the construction of a wall in the occupied Palestinian territory” http://www.icj-cij.org/icjwww/ idocket/imwp/imwpframe.htm, paras. 127, 128, and 129.
[15] International Covenant on Civil and Political Rights, adopted December 16, 1966, in force since 1976.
[16] UN Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150.
[17] Protocol relating to the Status of Refugees, October 4, 1967, 606 U.N.T.S. 267.
[18] United Nations Convention on the Rights of the Child, Resolution AG 44/25, Annex 44, UN GAOR Supp. (No. 49), 167, UN Doc. A/44/49 (1989), November 20, 1989.
[19] International Convention on the Elimination of All Forms of Racial Discrimination, December 21, 1965, 660 U.N.T.S. 195.
[20] Vienna Convention on Consular Relations, April 24, 1963, 596 U.N.T.S. 261.
[21] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31, which entered into force on October 21, 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, which entered into force October 21; Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, which entered into force October 21, 1950, Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, which entered into force October 21, 1950.
[22] First Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, which entered into force December 7, 1978. Second Additional Protocol relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, which entered into force on December 7, 1978.
[23] Principle V(8) and (9) of the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law” defines a victim in the following terms: “A person is ‘a victim’ where, as a result of acts or omissions that constitute a violation of international human rights or humanitarian law norms, that person, individually or collectively, suffered harm, including physical or mental injury, emotional suffering, economic loss, or impairment of that person’s fundamental legal rights. A ‘victim’ may also be a dependant or a member of the immediate family or household of the direct victim as well as a person who, in intervening to assist a victim or prevent the occurrence of further violations, has suffered physical, mental, or economic harm.” It goes on to make the following clarification: “A person’s status as ‘a victim’ should not depend on any relationship that may exist or may have existed between the victim and the perpetrator, or whether the perpetrator of the violation has been identified, apprehended, prosecuted, or convicted.” See United Nations, Economic and Social Council, Final Report of the Special Rapporteur Cherif Biassiouni pursuant to Resolution 1999/33 of the Commission on Human Rights on “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” and “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law,” attached to the report, E/CN.4/2000/62 January 18, 2000, p. 8.
[24] IACHR, Report No. 25/98, Cases 11,505, 11,532, 11,541, 11,546, 11,549, 11,569, 11,572, 11,573, 11,583, 11,585, 11,595, 11,652, 11,657, 11,675, and 11,705 (Chile) in Annual Report of the Inter-American Commission on Human Rights 1998.
[25] Such undertakings have worked with significant results in terms of the right to truth in some countries of the region, such as Argentina, Chile, El Salvador, Guatemala, and Peru.
[26] See IACHR, Chapter V “Areas in which steps need to be taken towards full observance of the human rights set forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights” Annual Report 1985-1986, OEA/Ser.L/V/II.68, Doc. 8 rev. 1, p. 205.
[27] I/A Court H.R., Bámaca Velásquez Case, Judgment of November
25, 2000, Series C No. 70,
para. 201.
[28] UNHRC, Communication No. 107/1981, Uruguay, CCPR/C/19/D/107/1981, [1983] UNHRC 16 (21 July 1983). See also, Theo Van Boven, Special Rapporteur, Commission on Human Rights, United Nations, “Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms,” Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 45th session, item 4 of the provisional agenda, U.N. Doc. E/CN.4/Sub.2/1993/8 (1993).
[29] See IACHR, Chapter V “Areas in which steps need to be taken towards full observance of the human rights set forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights,” Annual Report 1985-1986, OEA/Ser.L/V/II.68, Doc. 8 rev. 1, p. 205, and I/A Court H.R., Barrios Altos Case, Judgment of March 14, 2001, Series C No. 75.
[30] See “Patrones internacionales en materia de verdad, justicia y reparación para lograr la superación del conflicto armado interno”, Remarks by Mr. Michael Früling, Director of the Office in Colombia of the United Nations High Commissioner for Human Rights, during the “Jornadas de concertación social para superar el fenómeno de paramilitarismo,” First Committee of the Senate, April 2, 2004, Bogotá.
[31] See Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, U.N. SCOR, 48th Session, UN Doc S/Res/827, May 25, 1993, Articles 3 and 5; Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, UN SCOR, 49th Sess., UN Doc S/Res/955, (1994), Articles 3 and 4; and the Final Act of the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, done at Rome July 17, 1998, A/CONF.183/10, Resolution E, A/CONF.183/C.1/L.76/Add.14, 8; and Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), corrected by the proces-verbaux of November 10, 1998 and July 12, 1999, entered into force July 1, 2002, Articles 6, 7, and 8.
[32] Final Act of the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, done at Rome, July 17, 1998, A/CONF.183/10, Resolution E, A/CONF.183/C.1/L.76/Add.14, Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), as corrected by the proces-verbaux of November 10, 1998 and July 12, 1999, entered into force July 1, 2002. See Article 29 on non-applicability of statute of limitations and Article 17 on the Court’s jurisdiction. See also, “Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity” adopted by the UN General Assembly by Resolution 2391 (XXIII) of November 26, 1968.
[33] The Inter-American Court has defined impunity as the failure to investigate, prosecute, arrest, try, and impose punishment on persons responsible for human rights violations. See I/A Court H.R., Paniagua Morales et al. Case, Judgment of March 8, 1998, Series C No. 37, para. 173. See also Bámaca Velásquez Case, Judgment of November 8, 2000, Series C No. 70, para. 211; Loayza Tamayo Case, Judgment of November 27, 1998, Series C No. 42, paras. 168 and 170.
[34] American Declaration, Article XVIII: “Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.” Article XXIV: “Every person has the right to submit respectful petitions to any competent authority, for reasons of either general or private interest, and the right to obtain a prompt decision thereon.”
[35] Article 25 of the American Convention provides that: “(1) Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. (2) The States Parties undertake: (a) to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; (b) to develop the possibilities of judicial remedy; and (c) to ensure that the competent authorities shall enforce such remedies when granted.”
[36] I/A Court H.R., 19 Merchants Case, Judgment of July 5, 2004, para. 140; Juan Humberto Sánchez Case, Judgment of June 7, 2003, Series C No. 99, para. 142; Bámaca Velásquez Case, Judgment of November 25, 2000, Series C No. 70, para. 210; “Panel Blanca” Case (Paniagua Morales et al.), Judgment of March 8, 1998, Series C No. 37, para. 174; and Velásquez Rodríguez Case, Judgment of July 29, 1988, Series C No. 4, paras. 172 and 174.
[37] From its first judgments, the Inter-American Court established that an investigation must have an objective and be assumed by the state as its own legal duty, and not as a step taken by private interests that depends on the procedural initiative of the victim or his or her next-of-kin, or on the private offer of evidence, without an effective search for truth by the government authorities. See I/A Court H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988, Series C No. 4, para. 177; Villagrán Morales et al. Case (The “Streetchildren” Case), Judgment of November 19, 1999, Series C No. 63, para. 226.
[38] See Article 49 of Convention I, Article 50 of Convention II, Article 129 of Convention III, and Article 146 of Convention IV, approved by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, August 12, 1949”, which provide: “The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention…. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts….” See also Article 85 of the first Protocol Additional to the Geneva Conventions of 12 August 1949, and comment in ICRC Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Sandoz, Swinarski & Zimmermann eds., Nijhoff, 1987, pp. 991 ff.
[39] See IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/ll.116 Doc. 5 rev. 1 corr. (2002).0
[40] Commission on Human Rights, United Nations, Question of the impunity of perpetrators of human rights violations (civil and political), Final Report prepared by Louis Joinet, U.N. Special Rapporteur on Impunity, pursuant to Resolution 1996/119 of the Sub-Commission. E/CN.4/Sub.2/1997/20 Rev. 1 (1997), Principles 26 to 35. When it comes to judging perpetrators of crimes of international law, the penalties involving deprivation of liberty should be imposed for the corresponding offenses. Extending benefits involving reduction of penalties should depend on positive and effective actions of collaboration aimed at determining who perpetrated the offenses, their circumstances and motives, the harm caused, and –as appropriate— locating the victims’ remains. In addition, those convicted of such crimes should remain, for a reasonable time, judicially disqualified from holding official positions and performing public functions. See “Patrones internacionales en materia de verdad, justicia y reparación para lograr la superación del conflicto armado interno”, Remarks by Mr. Michael Früling, Director of the Office in Colombia of the United Nations High Commissioner for Human Rights, “Jornadas de concertación social para superar el fenómeno del Paramilitarismo,” First Committee of the Senate, April 2, 2004, Bogotá.
[41] IACHR Report 28/92, Argentina, Annual Report of the IACHR 1992-1993, para. 41; Report 29/92, Uruguay, Annual Report of the IACHR 1992-1993, para. 51; Reports 34/96 and 36/96, Chile, Annual Report of the IACHR 1996, paras. 76 and 78 respectively; Report 25/98, Chile, Annual Report of the IACHR 1997, para. 71; and Report 1/99, El Salvador, Annual Report of the IACHR 1998, para. 170.
[42] I/A Court H.R., Loayza Tamayo Case, (Art. 63(1) American Convention on Human Rights), Judgment of November 27, 1998, Series No. 42, para. 170.
[43] I/A Court H.R., Barrios Altos Case (Chumbipuma Aguirre et al.), Judgment of March 14, 2001, Series C No. 75, para. 41.
[44] Id. These criteria coincide with the position expressed by other intergovernmental organs. The Human Rights Committee of the United Nations stated its concern over amnesties granted by Decree-laws Nos. 26479 and 26492, and concluded that those laws were incompatible with the State’s international obligations. See Preliminary Observations of the Human Rights Committee, Peru, CCPR/C/79/Add.67, July 25, 1996. In addition, the United Nations Committee Against Torture stated its concern over the practice of promulgating amnesty laws that foster impunity in torture cases. See Summary record of the public part of the 333rd meeting: Panama and Peru. 20/05/98. CAT/C/SR.333.
[45] See United Nations, Economic and Social Council, Final Report of Special Rapporteur Cherif Biassiouni pursuant to Resolution 1999/33 of the Commission on Human Rights on “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” and “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law,” attached to the report, E/CN.4/2000/62 January 18, 2000, p. 9.
[46] I/A Court H.R., Castillo Páez Case, Judgment, November 3, 1997, Series C No. 34, para. 82. See also I/A Court H.R., The Mayagna (Sumo) Community of Awas Tingni Case, August 31, 2001, Series C No. 79, para. 112.
[47] I/A Court H.R., Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987, Series C No. 1, para. 90.
[48] The Inter-American Court has noted that measures of reparation should tend to wipe out the effects of the violations committed. See I/A Court H.R. Mack Chang Case, Judgment of November 25, 2003, para. 237; Cantos Case, Judgment of November 28, 2002, Series C No. 97, para. 108; Caracazo Case, Reparations (Art. 63(1) American Convention on Human Rights), Judgment of August 29, 2002, Series C No. 95, para. 78. Those measures include the different ways in which a state may address its international responsibility, which under international law consist of measures of restitution, compensation, rehabilitation, satisfaction, and measures of non-repetition. See United Nations, Final report submitted by Theo Van Boven, Special Rapporteur for Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Humanitarian Law, E/CN.4/Sub.2/1990/10, July 26, 1990. See also, I/A Court H.R., Blake Case. Reparations (Art. 63(1) American Convention on Human Rights), Judgment of January 22, 1999, Series C No. 48, para. 31; Suárez Rosero Case, Reparations (Art. 63(1) American Convention on Human Rights), Judgment of January 20, 1999, Series C No. 44, para. 41; Castillo Páez Case, Reparations (Art. 63(1) American Convention on Human Rights), Judgment of November 27, 1998, Series C No. 43.
[49] See United Nations, Economic and Social Council, Final Report of the Special Rapporteur Cherif Biassiouni pursuant to Resolution 1999/33 of the Commission on Human Rights on “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” and “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law,” attached to the report, E/CN.4/2000/62 January 18, 2000, p. 10, Principles IX(15) and X(21)(22)(23).
[50] See interview with Salvatore Mancuso in El Espectador of November 3, 2004, in which he states: “it’s true that in the course of the conflict we have acquired some properties that have served as infrastructure for the defense scheme. You tell me that we’ve expropriated lands. I’ll tell you something: when I was trained in the self-defense scheme, the ones who were being displaced were the ranchers, the peasant farmers. In other words, displacement goes way back.” See also, “Los señores de la tierra. Grupos paramilitares se están apoderando, a sangre y fuego, de las tierras más valiosas del país. Las víctimas están desesperadas y no tienen quién les devuelva su patrimonio,” in La Semana Issue No. 1152, May 31 to June 7, 2004, p. 224, in which reference is made to the methods and strategies used by paramilitary groups in different regions of the country to usurp titles through assassination, forced displacement, issuing unregistered deeds, and corruption.
[51] I/A Court H.R., Blake Case, Reparations (Art. 63(1) American Convention on Human Rights), Judgment of January 22, 1999, Series C No. 48, para. 31; Suárez Rosero Case, Reparations (Art. 63(1) American Convention on Human Rights), Judgment of January 20, 1999, Series C No. 44, para. 41.
[52] See United Nations, Economic and Social Council, Final Report of the Special Rapporteur Cherif Biassiouni pursuant to Resolution 1999/33 of the Commission on Human Rights on “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” and “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law,” attached to the report, E/CN.4/2000/62 January 18, 2000, p. 10, Principle IX(16)(17)(18)(19).
[54] Decree No. 3398 of December 24, 1965, “By which the national defense is organized” (“Por el cual se organiza la defensa nacional”).
[56] Law 48 of 1968, “By which some legislative decrees are adopted as legislation, powers are granted to the President of the Republic and the assemblies, and reforms are introduced to the Substantive Labor Code and other provisions are issued” (“Por la cual se adoptan como legislación permanente algunos decretos legislativos, se otorgan facultades al Presidente de la República y a las asambleas, y se introducen reformas al Código Sustantivo del Trabajo y se dictan otras disposiciones”).
[57] See I/A Court H.R. “19 Merchants” Case, Judgment of July 5, 2004, Series C No. 109, para. 124.
[58] See IACHR, Admissibility Report No. 42/02, La Rochela Massacre (Colombia), Annual Report of the IACHR 2002.
[59] Decree 0815 “suspending some provisions incompatible with the state of siege.”
[60] Decree 0815 reads: “That bands of paid assassins, death squads, self-defense or private justice groups, mistakenly called paramilitaries, are responsible for acts that disturb the public order; That by Legislative decree 3398 of 1965, adopted as permanent legislation by Article 1 of Law 48 of 1968, the use of civilian personnel in activities and jobs for re-establishing normalcy was authorized; That the interpretation of these provisions by some sectors of public opinion has caused confusion as to their scope and purposes in that they may be taken as legal authorization to organized armed civilian groups that end up acting outside the Constitution and the laws; That operations to re-establish public order are an exclusive function of the Army, the National Police, and the state security forces; That the National Government considers, in the exercise of the constitutional responsibilities incumbent on it, that in the current circumstances that fact of the laws mentioned being in force hinders re-establishment of public order; That it is necessary to suspend those laws, since their interpretation by some sectors of public opinion contributes to creating an environment of confusion that stands in the way of pooling efforts to achieve reconciliation and have a negative impact on the action of the Army, the National Police, and security forces, to the extent that they erode the necessary solidarity of all sectors of the Nation; That the National Government has always fought the existence of armed groups operating outside of the Constitution and the laws, and that accordingly it considers it necessary to suspend those laws, so that there not be any ambiguity whatsoever about the will of the Executive and of the Army , National Police, and security forces to confront those who are part of those groups, organize them, financial them, promote them, in on any way collaborate with them….”Decree 0815 “suspending some laws incompatible with the state of siege.” See also, Supreme Court of Justice, Judgment of May 25, 1989, Justice Fabio Morón Díaz writing for the Court, declaring unconstitutional para. 3 of Article 33 of Legislative Decree 3398 of 1965.
[61] Decree 1194 “which adds to Legislative decree 0180 of 1988, to enact new criminal law definitions, as the establishment of public order so requires,” of June 8, 1989.
[63] I/A Court H.R. “19 Merchants” Case, Judgment of July 5, 2004, Series C No. 109, para. 124.
[64] See, for example, Report No. 5/03 Jesús María Valle Jaramillo, P519/2001, Colombia, Annual Report of the IACHR 2003. Human rights defenders continue to be targets of constant attacks by the actors in the armed conflict, mainly the AUC in areas in which there is a frequent presence of the military forces or National Police, in an effort to stop their investigations and reports of grave acts of violence, aimed at judicially clarifying such incidents and making reparation to the victims. In addition, they have been confronted repeatedly by statements by President Uribe himself, calling into question their legitimacy and indicating that their orientation and activities are to be investigated. Indeed, the IACHR has received reports indicating that over the last two years there have been situations in which human rights defenders and social leaders have been deprived of liberty for prolonged periods, without the evidence needed to open proceedings. In this regard, the IACHR has been consistent in stating that the punitive power of the State and its judicial apparatus should not be manipulated to harass those who are devoted to legitimate activities.
[65] See, for example, Office in Colombia of the United Nations High Commissioner for Human Rights, “Informe de la Oficina en Colombia del Alto Comisionado de las Naciones Unidas para los Derechos Humanos sobre su Misión de Observación en el Medio Atrato” May 20, 2002 http://www.hchr.org.co/documentoseinformes/informes/tematicos/informes.php3?cod=1&cat=.
[66] See, for example, IACHR Press Release 13/03 “The IACHR deplores the death of the Governor of Antioquia and other FARC hostages,” Washington D.C., April 7, 2003 in http://www.cidh.org/ Comunicados/Spanish/2003/13.03.htm.
[67] See, for example, Report No. 41/02 Admissibility P11,748, José del Carmen Álvarez Blanco et al. (Pueblo Bello), Colombia, October 9, 2002, Annual Report of the IACHR 2002. The case regarding the massacre of the campesino farmers of Pueblo Bello was referred to the jurisdiction of the Inter-American Court on March 23, 2004.
[68] Jorge Restrepo, Michael Spagat, and Juan Vargas, “The Dynamics of the Colombian Civil Conflict: A New Data Set,” Royal Holloway College, University of London, June 2003.
[69] Noche y Niebla, Banco de datos, CINEP and Justicia y Paz, 2002. See also Cifras de violencia 1996-2002 Justice and Security Bureau, National Planning Department (Departamento Nacional de Planeación), 1996-2002, Vol. 0 No. 1.
[70] The IACHR has expressed its points of view on the general human rights situation in Colombia periodically in chapter IV of its annual reports for 1995, 1996, 1999, 2000, 2001, 2002, and 2003, and in its “Third Report on the Human Rights Situation in Colombia”, OEA/Ser.L/V/II.102 Doc. 9 rev. 1, February 26, 1999.
[71] Report 1/92 Orlando García Villamizar et al. Case 10,235, Annual Report of the IACHR 1991. Report 33/92 Alirio de Jesús Pedraza, Case 10,581, Annual Report of the IACHR 1992-1993. Report 32/92 Martín Calderón Jurado, Case 10,454, Annual Report of the IACHR 1992-1993. Report No. 2/94 Pedro Miguel González Martínez et al. (19 workers of the Honduras and La Negra Farms), Case 10,912, Annual Report of the IACHR 1993. Report No. 1/94 Álvaro Garcés Parra et al., Case 10,473, Annual Report of the IACHR 1993. Report No. 24/93 Olga Esther Bernal Dueñas, Case 10,537, Annual Report of the IACHR 1993. Report No. 23/93 Irma Vera Peña, Case 10,456 Annual Report of the IACHR 1993. Report No. 22/93 Patricia Rivera et al. Case 9,477, Annual Report of the IACHR 1993. Report No. 15/95 Hildegard María Feldman, Case 11,010, Annual Report of the IACHR 1995. Report 3/98 Tarcisio Medina Charry, Case 11,221, Annual Report of the IACHR 1997. Report 26/97 Arturo Ribón Ávila, Case 11,142, Annual Report of the IACHR - 1997. Report No. 5/98, Álvaro Moreno Moreno, Case 11,019, Annual Report of the IACHR 1997. Report No. 62/99 Santos Mendivelso Coconubo, Case 11,540, Annual Report of the IACHR 1998. Report No. 61/99 José Alexis Fuentes Guerrero et al., Case 11,519, Annual Report of the IACHR 1998. Report No. 36/00 Caloto, Case 11,101, Annual Report of the IACHR 1999. Report No. 35/00 Los Uvos, Case 11,020, Annual Report of the IACHR 1999. Report No. 7/00 Amparo Tordecilla Trujillo, Case 10,337, Annual Report of the IACHR 1999. Report No. 62/09 Riofrío Massacre, Case 11,654, Annual Report of the IACHR 2000. Report No. 63/01 Prada González and Bolaño Castro, Case 11,710, Annual Report of the IACHR 2000. Report No. 64/01 Leonel de Jesús Izasa Echeverri, Case 11,712, Annual Report of the IACHR 2000.
[72] The IACHR has referred applications on the international responsibility of the Republic of Colombia to the Inter-American Court in the cases regarding the disappearance of Isidro Caballero Delgado and María del Carmen Santana perpetrated in Cesar in 1989; the massacre of civilians in Las Palmeras (Putumayo) perpetrated in 1991; the massacre of 19 merchants in the middle Magdalena valley in 1987; the massacre of civilians in Mapiripán (Meta) perpetrated in 1997; the disappearance of civilians in Pueblo Bello (Córdoba) in 1990; and the massacres of civilians in Ituango (Antioquia) perpetrated in 1996 and 1997.
[73] Ministry of Defense of the Republic of Colombia, Informe Anual de Derechos Humanos y Derecho Internacional Humanitario 2002 y Avances Período Presidencial, 2003, p. 167.
[74] See Annual Report of the Inter-American Commission on Human Rights 2003, Chapter IV, Colombia, para. 13.
[75] See CCJ “Colombia: en contravía de las recomendaciones internacionales sobre derechos humanos. Balance de la política de seguridad democrática y la situación de los derechos humanos y derecho humanitario. Agosto de 2002 a agosto de 2004,” pp. 10 to 14.
[76] CINEP and Justicia y Paz, “Cifras de la violencia política enero-diciembre de 2003” and “Los Derechos Fundamentales” in Noche y Niebla 28, p. 27.
[78] See interview with Salvatore Mancuso in El Espectador of November 3, 2004, in which he states: “it’s true that in the course of the conflict we have acquired some properties that have served as infrastructure for the defense scheme. You tell me that we’ve expropriated lands. I’ll tell you something: when I was trained in the self-defense scheme, the ones who were being displaced were the ranchers, the peasant farmers. In other words, displacement goes way back.” See also, “Los señores de la tierra. Grupos paramilitares se están apoderando, a sangre y fuego, de las tierras más valiosas del país. Las víctimas están desesperadas y no tienen quién les devuelva su patrimonio,” in La Semana Issue No. 1152, May 31 to June 7, 2004, p. 224, in which reference is made to the methods and strategies used by paramilitary groups in different regions of the country to usurp titles through assassination, forced displacement, issuing unregistered deeds, and corruption.
[79] Law 37 of 1981 (March 23) by which a conditional amnesty is declared. Official Gazette No. 35760, May 14, 1981, p. 442.
[80] Legislative Decree No. 474 of 1982 (February 19) By which measures are issued aimed at the prompt re-establishment of internal public order.
[81] Law 35 of 1982 (November 19) by which an amnesty is decreed and provisions issued aimed at re-establishing and preserving peace. Official Gazette No. 36133 bis, November 20, 1982, p. 529.
[82] Law 49 of 1985 (June 4) granting an authorization to
the President of the Republic, regulating the exercise of the power to grant
pardons, and issuing other provisions. Official Gazette No. 37000, June 5, 1985,
p. 1079.
[83] Law 77 of 1989 (December 22) authorizing the President of the Republic to grant pardons and regulating cases of cessation of criminal proceedings and issuance of writs of prohibition (autos inhibitorios) in pursuit of the policy of reconciliation. Official Gazette No. 39116, December 22, 1989, p. 1.
[84] Decree No. 0206 of 1990 (January 22), regulating Law 77 of 1989 by the President of the Republic of Colombia, in the exercise of the powers granted by Article 120(3) of the Constitution, Official Gazette No. 39152, January 22, 1990, p. 1.
[85] Decree No. 0213 of 1991 (January 23), issuing measures aimed at re-establishing public order, by the President of the Republic of Colombia, in the exercise of the powers conferred on him by Article 121 of the Constitution, and developing Decree 1038 of 1984, Official Gazette No. 39642, January 23, 1991, p. 1.
[86] Article 150(17) provides that Congress has the power to “Grant, by two-thirds majority vote of the members of each Chamber, and for serious motives in the public interest, general amnesties or pardons for political crimes. In the event that those favored are exempted from civil liability with respect to private persons, the State will be obligated to pay any compensation where it is due.” Article 201 provides: “It is up to the Executive, in relation to the Judiciary: 1. To provide judicial officers, in keeping with the laws, the assistance necessary to enforce their rulings. 2. To grant pardons for political crimes, in keeping with the law, and to report to Congress on the exercise of this power. In no case may such pardons include the responsibility of the persons so favored with respect to private persons.” Transitory Article 30 provides: “The National Government is authorized to grant pardons or amnesties for political and related crimes, committed prior to the promulgation of this Constitution, to members of guerrilla groups who rejoin civilian life in the terms of the policy of reconciliation. To that end, the National Government will issue the corresponding regulations. This benefit may not be extended to atrocious crimes or homicides committed out of combat or taking advantage of the defenselessness of the victim.” Constitution of Colombia, Gaceta Constitucional No. 116, July 20, 1991.
[87] Decree No. 1943 of 1991 (August 12) By which measures are issued on pardon and amnesty in the exercise of the power conferred on the President of the Republic of Colombia by Article 30 of the transitory provisions of the Constitution. Official Gazette No. 39964, August 12, 1991, p. 1.
[88] Law 104 of 1993 (December 30) by which some instruments for seeking co-existence, effective justice, and other provisions are adopted. Official Gazette No. 41158, December 30, 1993, p. 1.
[89] Law 241 of 1995 (December 26) extending the effect, modifying, and adding to Law 104 of 1993. Official Gazette No. 42719, February 14, 1996, p. 1.
[90] Law 418 of 1997 (December 26) by which some instruments for seeking co-existence, effective justice, and other provisions are adopted. Official Gazette No. 43201, December 26, 1997, p. 4.
[91] Law 548 of 1999 (December 23) “extending the effect of Law 418 of December 26, 1997 and issuing other provisions.”
[92] Law 589 of 2000 (July 6) “by which the crimes of genocide, forced disappearance, forced displacement, and torture are defined; and issuing other provisions,” Official Gazette No. 44,073 of July 7, 2000.
[93] See, for example, IACHR, Report No. 5/97, Case 11,227 (Colombia) Admissibility, Annual Report of the IACHR 1996, referring to allegations of persecution of members of the Unión Patriótica (UP), which was established as a political party after the peace negotiations between the FARC and the administration of Belisario Betancur. See also IACHR, Report No. 63/01, Case 11,710 (Colombia) in Annual Report of the IACHR 2000, on the extrajudicial execution of two members of the Corriente de Renovación Socialista (CRS) involved in the negotiation to demobilize members of the ELN who had joined the CRS in the context of the peace negotiations carried out in 1993.
[94] Some demobilized members of the EPL have entered the ranks of the paramilitary groups. In addition, this alliance has been the basis for both the FARC and the dissident wing of the EPL to attack those who demobilized and formed part of the political grouping Esperanza Paz y Libertad. See IACHR, Third Report on the Human Rights Situation in Colombia OEA/Ser. L/V/II.102 doc 9 rev 1., para. 96. See also IACHR, Report No. 55/04, P475/2003 (Colombia) Admissibility.
[96] See, for example, Regular Judgment of the Second Criminal Court of the Specialized Circuit of Antioquia of April 22, 2003, convicting and imposing a 40-year prison sentence on Salvatore Mancuso, current leader of the negotiating high command of the AUC, for committing the El Aro massacre.
[97] See, for example, “US indicts leaders of Colombian terrorist organization on narcotic trafficking charges,” Press Release of the United States Attorney, Southern District of New York, of July 22, 2004, making reference to the proceedings against Diego Fernando Murillo, alias Adolfo Paz or “Don Berna” and Vicente Castaño Gil, alias “El Profe,” both members of the negotiating high command of the AUC.
[98] Law 782 of 2002 (December 23) extending the effect of Law 418 of 1997, extended and modified by Law 548 of 1990, and modifying some of its provisions, Official Gazette No. 45043, December 23, 2002, p. 1. In January 2003, the Government adopted Decree 128, which regulated Law 418 of 1997, extended and modified by Law 548 of 1999 and Law 782 of 2002, on returning to civilian life. Decree 128 regulates the legal, socioeconomic, educational, economic, and other benefits derived from rejoining civilian life as a result of the process of demobilization. In addition, the Decree makes reference to protection and attention for minors who lay down their weapons, providing, among other things, in keeping with the Constitution, the laws, and international treaties, that any use of minors in intelligence activities is prohibited. Moreover, it establishes the functions of the Operational Committee on Laying Down Arms (CODA: Comité Operativo para la Dejación de las Armas), whose role is to evaluate the will of the demobilized person to rejoin civilian life, and to assess the circumstances in which the person voluntarily left the armed organization, among other functions.
[99] If the person is deprived of liberty, the governmental authorities should accord preference to the processing of requests for legal benefits, and in the ruling granting the petition for preclusion of the investigation or cessation of the proceeding, the order for the arrest of the beneficiary should be revoked, and the arrest warrants issued should be canceled. In this section the law does not establish any restriction for granting the benefits mentioned. Article 60 of Law 418 modified by Article 24 of Law 782. Grounds for extinction of the action.
[100] Article 50 of Law 418 modified by Article 19 of Law 782 notes that the National Government may grant the benefit of pardon to nationals who have been convicted by firm judgment for conduct constituting a political crime when the illegal armed group with which a peace process is being pursued, of which the applicant is a member, has displayed its will to rejoin civilian life. In addition, the law provides that this benefit may be granted, upon request, to those nationals who individually and voluntarily give up their activities as members of armed groups, having displayed their will to rejoin civilian life. In other words, the law provides for grounds for extinguishment of the action and of the penalty for proceedings that involve negotiations with illegal groups and with persons who seek to rejoin civilian life individually.
[101] Article 62 of Law 418. Nonetheless, Article 43 clarifies that these benefits may be annulled if the beneficiary commits any intentional crime within two years.
[102] Law 782, at Article 6, defines a victim of political violence as a member of the civilian population who suffers harm to his or her life, physical integrity, or property because of terrorist attacks, combat, kidnappings, attacks, and massacres in the context of the armed conflict. The displaced and minors who take part in the hostilities are also considered victims.
[103] Article 50 of Law 418 modified by Article 19 of Law 782. Law 418, December 26, 1997. Official Gazette No. 43201 of December 26, 1997. Law 782 of 2002 (December 23), extending the effect of Law 418 of 1997, extended and modified by Law 548 of 1990 and modifying some of its provisions, Official Gazette No. 45043, December 23, 2002. It should be clarified that there are doubts as to whether these limitations would only apply to demobilized persons already subject to judicial proceedings, closing off the possibility of withdrawing the granting of legal benefits to those who, already reintegrated into civilian life, could be subject to allegations of crimes committed in the past. This issue will be addressed in greater detail infra when analyzing the provisions of Decree 128 of 2003.
[104] See “Observaciones sobre el Proyecto de Ley por la cual se dictan disposiciones en procura de la reincorporación de miembros de grupos armados que contribuyan de manera efectiva a la paz nacional”, remarks by Mr. Michael Frühling, Director of the Office in Colombia of the United Nations High Commissioner for Human Rights before the First Committee of the Honorable Senate of the Republic, Bogotá, September 23, 2003.
[105] The IACHR has indicated as follows: “The government has also promoted approval of a bill relating to the imposition of alternative penalties which would allow the executive branch to suspend prison sentences against those found responsible for human rights violations in return for their commitment to demobilize. This bill is currently the subject of public debate and it is vital for Colombian society as a whole to be engaged in its scrutiny. This debate must be pursued in light of the clear and firm jurisprudence developed by the inter-American system on the validity and scope of legislation that has the effect of amnesty laws in favor of State actors. This jurisprudence established that States have the obligation to investigate, prosecute, and punish violations of human rights committed by private parties. Although organs of the inter-American system have not yet considered the question of granting amnesty or other forms of pardon for non-state actors as part of negotiations to put an end to a conflict and demobilize members of armed groups outside the law, the IACHR shares the concerns expressed by the Office in Colombia of the United Nations High Commissioner about the measures proposed by President Uribe. The experience gained by the IACHR over several decades shows that enactment of laws that limit the scope of judicial proceedings intended to clarify and redress basic human rights violations committed during a domestic armed conflict actually hinders the quest for true reconciliation and peace.” IACHR, Chapter IV, Colombia, Annual Report of the IACHR 2003, para. 19.
[106] List of Modifications to Enacting Law No. 85 of 2003-Senate, Chapter III “Alternative Penalties Mechanism,” Article 5: Peace Agreement.
[107] The Tribunal for Truth, Justice and Reparation, made up of three members who meet the qualifications required for serving as a judge on the Supreme Court of Justice, would have jurisdiction throughout the national territory to judge members of illegal armed groups included in peace accords signed with the National Government. List of Modifications to Enacting Law No. 85 of 2003-Senate, Chapter II “Institutions for Carrying Out the Present Law,” Article 2, Tribunal for Truth, Justice and Reparation.
[109] List of Modifications to Enacting Law No. 85 of 2003-Senate, Chapter III “Alternative Penalties Mechanism,” Article 13: Acceptance of the favorable opinion by the President.
[110] List of Modifications to Enacting Law No. 85 of 2003-Senate, Chapter I “Definitions,” Alternative Penalty.
[111] In this respect, it should be recalled that the strategies of violence used and the acts perpetrated by these groups against the civilian population, which were addressed supra in this Report, have frequently been characterized as crimes against humanity, and when the Colombian courts have ruled on them, they have been punished with substantially lengthier prison sentences. See, for example, Regular Judgment of the Second Criminal Court for the Specialized Circuit of Antioquia of April 22, 2003, convicting and imposing a 40-year prison sentence on Salvatore Mancuso for his participation in the El Aro massacre.
[112] The following are also provided for as penalties accessory to the alternative penalty: 1. Disqualification from performing public functions. 2. Prohibition on the right to possess and bear arms. 3. Expulsion from the national territory in the case of foreigners upon conclusion of the alternative sentence involving deprivation of liberty. 4. Prohibition on approaching or communicating with the victims, except for the acts of symbolic reparation. List of Modifications to Enacting Law No. 85 of 2003-Senate, Chapter IX “Accessory penalties.”
[113] List of Modifications to Enacting Law No. 85 of 2003-Senate, Chapter III “Alternative Penalties Mechanism,” Article 13: Acceptance of the favorable opinion by the President.
[114] List of Modifications to Enacting Law No. 85 of 2003-Senate, Chapter VII “Truth, Reparation, Positive Acts on behalf of Peace.”
[115] The period would be five years, if the alternative prison sentence actually imposed is less than six years, and ten years, if the alternative prison sentence is six years or more. List of Modifications to Enacting Law No. 85 of 2003-Senate, Chapter V “Verification”, Article 18: Period of Supervision.
[116] List of Modifications to Enacting Law No. 85 of 2003-Senate, Chapter VI “Annulment and Definitive Liberty.”
[117] List of Modifications to Enacting Law No. 85 of 2003-Senate, Chapter II “Institutions for Carrying Out the Present Law,” Article 2, Tribunal for Truth, Justice and Reparation.
[118] Decree 128 of 2003 (January 22) regulating Law 418
of 1997, extended and modified by Law 548 of 1999 and Law 782 of 2002 on reincorporation
into civilian life. Official Gazette No. 45073 of January 24, 2003,
p. 10.
[119] Article 7 of Decree 128 provides that the demobilized individual and his or her family group will receive health services through the hospital network, to which end it will suffice to have a certification issued by the Ministry of National Defense. Once certified by the Operational Committee on Laying Down Arms, CODA, he or she will be able to access the benefits provided for in the Subsidized Regime of Social Security in Health, with the following family group: spouse or common-law spouse, parents, children, and disabled younger or older siblings.
[120] Article 8 of Decree 128 provides that the Ministry of National Defense or the Ministry of Interior, as the case may be, will coordinate the measures needed with the Departamento Administrativo de Seguridad (DAS), and the National Police, to provide security to the demobilized or reincorporated individual and his or her family group, as necessary.
[121] Article 9 of Decree 128 provides that “the demobilized individual who voluntarily wishes to make an effective contribution to justice by providing information helpful in preventing terrorist attacks, kidnappings, or who provides information that makes it possible to free kidnapped persons, find arms caches, communications equipment, proceeds of drug-trafficking or of any other unlawful activity carried out by illegal armed organizations, in keeping with the legal provisions in force or the arrest of ringleaders, will receive a sum of money from the Ministry of National Defense in keeping with the results, pursuant to the regulation issued by this Ministry.”
[122] Article 10 of Decree 128 provides that the demobilized person who delivers arms, munitions, explosives, and weapons of mass destruction will receive from the Ministry of National Defense a sum of money, pursuant to the regulation issued by that Ministry.
[124] The Decree provides that the physical delivery of the demobilized person by the Ministry of Defense is made official by a document setting forth the initial data describing the person, his or her fingerprint, and the circumstances of his or her demobilization from the armed group to which he or she belonged. The Ministry of Interior will take the steps for delivering to the demobilized person the military passbook (libreta militar), identification papers, and the certificate of the judicial record. Id., Article 6.
[125] It should be noted that the IACHR has not received any complaints of failure to grant the benefits provided for by Decree 128. Nonetheless, it has received highly credible complaints and testimony regarding questionable accusations leveled at human rights defenders and social leaders by demobilized persons who have been paid in exchange for the information resulting in the accusations.
[126] Article 13 of Decree 128 establishes that “In keeping with the law, the demobilized who had been part of illegal armed organizations with respect to whom the Operational Committee on Laying Down Arms (CODA) issues the certification that is the subject of Article 12(4) of the present Decree, shall have the right to pardon, conditional suspension of enforcement of the penalty, cessation of proceedings, preclusion of the investigation, or the resolution of dismissal, depending on the status of the proceedings.”
[127] Article 21 of Decree 128 provides: “… Those who are being tried for or have been convicted of crimes which, according to the Constitution, the laws, or international treaties signed and ratified by Colombia cannot receive such benefits shall not enjoy any of the benefits indicated….”
[128] See CCJ, “Colombia: en contravía de las recomendaciones internacionales sobre derechos humanos. Balance de la política de seguridad democrática y la situación de los derechos humanos y derecho humanitario. Agosto de 2002 a agosto de 2004”, pp. 72 and 73.
[129] See Criminal Code (Law 100 of 1980) Title V, Crimes against Public Security. Chapter One: On Conspiracy, Terrorism, and Instigation. Art. 186. Conspiracy to engage in criminal conduct. (Modified. Law 365 of 1997, Art. 8) “When various persons conspire for the purpose of committing crimes, each of them shall be punished, for that mere fact, by imprisonment of three (3) to six (6) years. If they despoil or act with arms, the penalty shall be imprisonment of three (3) to nine (9) years. When the conspiracy is to commit crimes of terrorism, drug-trafficking, kidnapping for extortion, extortion, or to form death squads, private justice groups, or bands of paid assassins, the penalty shall be imprisonment for ten (10) to fifteen (15) years and fine of two thousand (2,000) to fifty thousand (50,000) times the monthly minimum salary. The penalty shall be double to triple for those who organize, foster, promote, direct, head, constitute, or finance the conspiracy or association to engage in criminal conduct.”
[130] Presentation by Carlos Franco, Director of the Presidential Program for Human Rights and International Humanitarian Law, in the event “Peace Process in Colombia with the AUC,” Wilson Center, Washington D.C., June 24, 2004.
[131] Considering paragraphs of Decree 2767 of 2004 (August
31) Official Gazette No. 45657 of
August 31, 2004.
[132] Articles 2 and 4 of Decree 2767 of 2004 (August 31) Official Gazette 45657 of August 31, 2004. “Article 2 Benefits for collaborating. The demobilized or reincorporated person who voluntarily wishes to make an effective contribution to justice or to the military forces or National Police by providing information helpful for preventing or clarifying crimes will receive from the Ministry of National Defense, once he or she has been certified by the Operational Committee on Laying Down Arms, CODA, an economic payment depending on the result, in keeping with the procedure issued by this Ministry.” “Article 4 Other benefits. The demobilized or reincorporated persons who voluntarily wish to develop activities of cooperation with the military forces or National Police may receive from the Ministry of National Defense, an economic payment in keeping with the procedure issued by this Ministry.”
[133] The demobilization of members of the Bloque Cacique Nutibara in Medellín is not the only recent experience of collective demobilization. On December 7, 2003, 168 members of the Autodefensas Campesinas de Ortega demobilized in the village of El Edén, district of Ortega, Department of Valle del Cauca. On November and Dicember 2004, 1,400 members of the Frente Catatumbo demobilized and two more AUC Frentes concentrated in designated areas.
[134] While the initial figure of demobilized concentrated in La Ceja was 874 persons, due to different circumstances, six of them were left out of the process.
[135] IACHR, Press Release No. 40/02 “IACHR concerned over the situation of Comuna 13 in the city of Medellín, Colombia,” Washington D.C., October 18, 2002. Http://www.cidh.org/Comunicados /Spanish/2002/40.02.htm.
[136] The pertinent part of Press Release 15/03 states: “The IACHR delegation was able to visit various neighborhoods within Medellín’s Comuna 13 and to take testimony from members of the community on selective murders, forced disappearances, and other acts of violence and intimidation allegedly perpetrated by paramilitary groups despite the presence of law enforcement personnel. The Commission heard consistent reports that many of these events had not been reported to judicial authorities because the population feared reprisals. The IACHR completed its observation in a series of interviews with officials of the Medellín City Hall, staff of the local inspector’s and prosecutor’s offices, the commander of the Fourth Army Brigade, and the police chief. The Commission’s Rapporteur for Colombia recognized the efforts of law enforcement personnel, in particular the National Police, to restore order and the authority of the state in this outlying district, whose inhabitants have been plagued for years by the activities of criminal groups such as the FARC and the ELN. Nevertheless, it expressed concern over the potential consolidation of paramilitary groups who would continue to commit serious crimes in Comuna 13. Professor Goldman urged the authorities to take the necessary measures to dismantle paramilitary structures operating in the area, to establish the state as the sole authority, and to end the climate of insecurity and fear which is interfering with judicial inquiries into the selective killings and disappearances perpetrated since a law enforcement presence was established in the area. Also raised were concerns relating to judicial proceedings against the detainees in a series of law enforcement operations carried out with the participation of the CTI and the Inspector’s Office.” See Press Release 15/03 “IACHR Rapporteur concludes working visit to the Republic of Colombia, June 27, 2003 at http: //www.cidh.org/Comunicados/Spanish/ 2003/ 15.03.htm.
[137] One of the testimonies received stated that “a street corner” was used “… as a slaughterhouse, and the neighbors were forced to clean the blood.”
[138] One of the testimonies received states “... no longer so much trigger, but club and knife, so as not to make noise.” Reference was also made to the use of bags to drown the victims.
[139] Mention is made, inter alia, of the collaboration of demobilized persons and paramilitaries with the Special Antiterrorist Command (Comando Especial Antiterrorista, CEAT).
[140] See El Colombiano, Medellín, June 13, 2004, p. 12ª, which speaks of 72 displaced families. The testimony indicates that the houses of the displaced have been occupied or leased by paramilitaries.
[141] One of the testimonies received states: “what reigns is silence … no one dares denounce, for when they return, they’re waiting for them…. No one dares open their mouth, out of fear.”
[142] The expressions “bandas,” “combos,” and “parches” are used in the city of Medellín to refer to the greater or lesser number of youths who make up the so-called “new urban tribes” or “gangs” (“pandillas”).
[143] The so-called “negotiating high command” of the AUC is made of Salvatore Mancuso, Vicente Castaño (alias “El Profe”), Adolfo Paz (alias “Don Berna”), Javier Montáñez, “Jorge 40,” Julián Bolívar, Hernán Hernández, Miguel Arroyave (who was reportedly assassinated on September 19, 2004), Ernesto Báez, and Ramiro Vanoy, in representation of the units known as the bloques Norte, Central Bolívar, Centauros, Calima, Héroes de Granada, Pacífico, Sur del Cesar, and Vencedores de Arauca. It should be recalled that these bloques are made up of some 40 fronts, which in turn have hundreds of combatants each. It is also said that the following persons are in the zona de ubicación: Guillermo Torres, Pablo Sevillano, Pablo Mejía, Gabriel Galindo, Marlón Pérez, Pedro Fronteras, John Santamaría, and Juan Carlos Sierra. The presence of Juan Carlos Sierra in the zone has been the subject of pronouncements by the Government through a press release by the Ministry of Defense dated September 26, 2004, stating that Juan Carlos Sierra, alias “El Tuso”, is not recognized as a member of the AUC since “this individual is sought by Interpol through a red circular and sought by a U.S. judge for conspiracy to manufacture and sell cocaine. As such, he cannot participate in the conversations in Santafé de Ralito.” The press release clarifies that the arrest warrant outstanding for Sierra is valid both outside and inside the zona de ubicación.
[144] See, for example, the Resolution of the Inter-American Court of Human Rights of March 6, 2003. Provisional measures requested by the Inter-American Commission on Human Rights with respect to the Republic of Colombia. Case of the communities of Jiguamiandó and Curbaradó.
[145] The agreement provides that “a. The Colombian State and the Colombian legal order shall have full effect in the territory of the zona de ubicación. b. The National Government and the OAS Support Mission, MAPP/OAS, shall each have offices in the zona de ubicación, security for which shall be the responsibility of the Colombian official forces. c. Exiting and reentering the zone by the members of the Autodefensas Unidas de Colombia shall be authorized and guaranteed by the National Government, shall be limited and granted only for developing activities related to the peace process. d. The Committee for Security and Coexistence shall operate permanently in the zona de ubicación; it shall be made up of one delegate from the Office of the High Commissioner for Peace, one delegate from the OAS Support Mission (MAPP/OAS), and one delegate from the Autodefensas Unidas de Colombia. The following shall be permanently invited: the Church, one delegate from the Ministry of Defense, the local government of Tierralta, the office of the Governor of Córdoba, one delegate from the community, and/or other entities as agreed upon. e. The Committee for Security and Coexistence shall make decisions and coordinate actions on: logistics, security, internal regulations on coexistence and conduct, communications, and entry of visitors to the zone. f. The members of the Autodefensas Unidas de Colombia shall refrain from: engaging in unlawful activities, recruiting persons, using pressure or threats in relation to residents or visitors, engaging in armed training; and ordering or coordinating illegal actions from the zone. g. Should there be a violation or breach of Colombian law, the competent authorities shall address the situation, in keeping with the legal order in force. h. The entry, exit, and mobility in the zone shall be guarantees for the residents and those persons who engage in activities in that territory. i. The Committee for Security and Coexistence shall define a communications policy and shall regulate media access to the zona de ubicación.” “Acuerdo Entre Gobierno Nacional y las Autodefensas Unidas de Colombia para la Zona de Ubicación en Tierralta, Córdoba” Santa Fe de Ralito, May 13, 2004.
[146] The agreement provides that the zone will be in force for six months, which could be extended depending on the needs of the process, and that in the event that the zone ceases to be in force due to a coordinated decision or unilaterally, the members of the Autodefensas Unidas de Colombia will have a period of five days to evacuate the zone. The OAS Mission to Support the Peace Process (MAPP/OAS) will verify compliance with this guarantee, with the accompaniment of the Church.
[147] Second Quarterly Report of the Secretary General on the Mission to Support the Peace Process in Colombia (MAPP/OAS), pursuant to Resolution CP/Res. 859 (1397/04) OEA/Ser.G CP/doc. 3944/04, September 28, 2004, p. 7.
[148] The Catatumbo Front, which operates in Norte de Santander and Santander, is said to be made up of some 300 men under the orders of Salvatore Mancuso; it has been accused of being responsible for the massacre at La Gabarra, on May 29, 1999.
[149] High Commissioner for Peace, Press release, May 28, 2004; El Tiempo, May 28, 2004. High Commissioner for Peace, May 28, 2004. See also, statements by Sergio Caramagna, September 25, 2004, in which he recognizes that there have been violations of the ceasefire in Antioquia and La Guajira.
[150] In a press release of October 5, 2004, the Office in Colombia of the United Nations High Commissioner for Human Rights condemned the assassination of at least 11 persons, all members of the same family, perpetrated October 3, 2004, at the “La Cascada” farm in the district of Villagorgona, municipality of Candelaria (Valle del Cauca). Among the victims were pregnant women and minors. The press release indicates that “according to official information collected by the Office, this serious crime has been attributed to members of a paramilitary group belonging to the Autodefensas Unidas de Colombia -AUC- that operates in the zone. This massacre is in addition to other acts of violence committed in those municipalities of Valle del Cauca where paramilitaries operate closely connected to criminal gangs that clash over interests related to the illegal drug business. The Office notes that this massive assassination appears to be yet another act of clearly violating the commitments taken on by paramilitary groups today at the negotiating table in Santafé de Ralito.” http://www.hchr.org.co/publico/comunicados /2004/ comunicados2004.php3?cod=37&cat=15.
[151] I/A Court H.R., Resolution of July 5, 2004, on provisional measures requested by the Inter-American Commission on Human Rights with respect to the Republic of Colombia. Pueblo Indígena Kankuamo.