Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee

COMISIÓN COLOMBIANA DE JURISTAS Organización no gubernamental con status consultivo ante la ONU

Filial de la Comisión Andina de Juristas (Lima) y de la Comisión Internacional de Juristas (Ginebra).

___________________________________________________________________ Personería jurídica: resolución 1060, Agosto de 1988, Alcaldía Mayor de Bogotá Calle 72 No. 12- 65 Piso 7 Tel: (571) 3768200 – 3434710 Fax : (571) 3768230

Email : [email protected], [email protected], Apartado Aéreo 58533 Bogotá, Colombia

Alternate Report to the Fifth Colombian State Report to the

United Nations Human Rights Committee Translated from Spanish by Joy Bourdeau

July 2003

Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003

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Table of Contents

INTRODUCTION ……………………………………………………………………………….. 1 I. GENERAL SITUATION OVERVIEW ………………………………………………………. 1

A. Absence of or Non-application of Human Rights and Humanitarian Law Policies ……… 1

1. Andrés Pastrana Arango’s Government (1998-2002) ……………………………………. 1 2. Álvaro Uribe Vélez’s Government (2002-2006) ………………………………………… 4

a. “Democratic Security” Policy ………………………………………………………………………….. 4 b. Informers’ Network ……………………………………………………………………………………. 5 c. Peasant Soldiers ………………………………………………………………………………………… 5

B. Paramilitarism ……………………………………………………………………………… 7 1. State Responsability in the Phenomenon of Paramilitarism, Lack of Combat against These Groups …………………………………………………………………… 7 2. Massacres Committed by Paramilitary Groups ……………………………………….... 8

a. Mapiripán (Meta) Massacre …………………………………………………………………………… 8 b. El Salado (Bolívar) Massacre ………………………………………………………………………….. 10 c. Chengue, Settlement in Ovejas (Sucre) ………………………………………………………………... 11 d. Another 626 Massacres Committed by the Paramilitary ……………………………………………… 11

3. Secret Negotiations, Legalization, and Impunity ……………………………………… 12 C. Breaches of Humanitarian Law Committed by Guerrilla Groups, Paramilitary Groups and State Agents ………………………………………………………………………….. 14

1. Taking Hostages and Kidnappings ……………………………………………………. 14 2. Use of Prohibited Weapons …………………………………………………………… 17 3. Attacks against Local Mayors and Public Servants …………………………………… 22 4. Massacres ……………………………………………………………………………… 23

D. Impunity and Administration of Justice …………………………………………………. 23

1. Status of Criminal Investigations of Violations of Human Rights ……………………. 23 2. Military Criminal Justice ……………………………………………………………… 24 3. Attacks on Prosecutors, Judges and Lawyers …………………………………………. 25 4. Reservation to the Competence of the International Criminal Court ………………….. 26

E. Peace Talks ………………………………………………………………………………. 26

1. Andrés Pastrana Arango’s Governement (1998-2002) ………………………………….. 26 a. Peace Talks with the Farc ………………………………………………………………………….…. 26 b. Peace Talks with the Eln ……………………………………………………………………………. 27 c. Balance ……………………………………………………………………………………………….. 28

2. Álvaro Uribe Vélez’s Government (2002-2006) ………………………………………… 28 F. Forced Displacement …………………………………………………………………….. 30


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II. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS IMPLEMENTATION ANALYSIS …….……………………………………………………… 33 A. The Responsibility to Respect and Guarantee the Rights Contained in the Covenant (Article 2, Number 1) …………………………………………………………………….……. 33

1. Andrés Pastrana Arango’s Government (1998-2002): National Security Law……………. 33 2. Álvaro Uribe Vélez’s Government (2002-2006): Constitutional Reform Bill of Law ……. 34

B. Existence of an Effective Recourse (Article 2, Number 3) …………………………………….. 37

1. Attorney-General’s Office ……………………………………………………………… 37 a. Retrogression in the Attorney-General’s Office ………………………………………………………. 37 b. Constitutional Reform of the Attorney-General’s Office ……………………………………….…….. 38

2. Tendency to Dismantle the Social, Democratic Rule of Law …………………………… 39 C. States of Exception (Article 4): Declaration of the State of Exception on August 2002 .…… 40

1. The Declaration Did Not Adjust to Article 4 of the Covenant …………………….….. 40 2. The State of Interior Commotion: An Excessive, Useless recourse…………………… 42 3. Arbitrary Restrictions to the Right to Freedom (Article 9), to the Right to Free Movement (Article 12), to Foreigners’ Rights (Article 13) and to the Right to Privacy (Article 17) ……………………………………………………………………. 44 4. Attacks against the Civilian Population ……………………………………………….. 46

D. Right to Life (Article 6) ……………………………………………………………………. 48

E. Tortures and Cruel, Inhuman or Degrading Treatment (Article 7) ………………………….. 49 F. Situation of Human Rights Defenders, Social Leaders and Union Leaders (Articles 2, 6, 18, 19, 21, 22 y 27) ……………………………………………………………… . 56

1. Violations of Human Rights Defenders’ Human Rights ……………………………….. 56 2. State Policy on Human Rights Defenders ………………………………………………. 56 3. Public Servants’ Attitude regarding Human Rights Defenders …………………….…… 57 4. Situation under the Recent State of Internal Commotion ………………………………. 58

(Arbitrary arrests, Initiation of Criminal Investigations without Grounds, Property Searches of Homes and Headquarters)

G. The Situation of Women (Articles 2, 3, 6, 7, 19, 21, 23 y 25) ………………………………….. 60 H. Prison Population (Articles 6, 7, 9 y 10) ……………………………………………………… 63 I. Children (Articles 6, 23, 24) …………………………………………………………………. 64 J. Indigenous and Afro-Colombians Populations (Articles 1, 2, 6 y 27) ……………………….. 67

III. RECOMMENDATIONS …………………………………………………………………….. 69


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Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the

Colombian Commission of Jurists July 2003

The situation of human rights and humanitarian law in Colombia continues to deteriorate. Since May 1997, date on which the Human Rights Committee analyzed the fourth periodical report presented by the Government of Colombia, violations of human rights and breaches of humanitarian law have dramatically increased. The suggestions and recommendations that the Human Rights Committee had made have not been attended, nor have those that the United Nations High Commissioner for Human Rights made, nor those that the Human Rights Commission and its thematic mechanisms made. On the contrary, human rights and humanitarian law have been disrespected through measures adopted by the successive governments, which is clearly contrary to international human rights law. The United Nations High Commissioner for Human Rights describes the situation in Colombia as follows:

“The human rights violations are taking place in a context of serious, massive and systematic repetitive practices (...) The breaches of international humanitarian law also constitute a widespread practice occurring on a large scale...”1

Today, an average of 20 persons are killed every day due to the sociopolitical violence. In 1998, the average was 10 persons per day. The security policies of the government inaugurated in August 2002 are having harmful effects on the human rights situation.

This report provides an overview of the situation of human rights and humanitarian law in Part I and analyzes the status of the implementation of some of the articles in the International Covenant on Civil and Political Rights in Part II. Finally, in Part III, it offers some suggestions as to the recommendations that the Human Rights Committee could present to the Colombian State. I. GENERAL SITUATION OVERVIEW A. Absence of or Non-Application of Human Rights and Humanitarian Law Policies 1. Andrés Pastrana Arango’s Government (1998 – 2002) President Andrés Pastrana Arango’s Government created a policy called “Policy for the Promotion, Respect, and Guarantee of Human Rights and for the Application of International Humanitarian Law, 1998-2002”, which was submitted to the country on August 12, 1999. Said policy contained important aspects; if it had been applied, some improvement of the situation would have been seen.

1 Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia , 24 February 2002, document E/CN.4/2002/17, par. 72 and 73. See also: Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia, 24 February 2003, document E/CN.4/2003/13, par. 10 and 14 executive summary. See also: Report of the United Nations High Commissioner for Human Rights on the human rights situation in Colombia , 8 February 2001, document E/CN.4/2001/15, par. 250 and 251.


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However, the essential parts of the policy were not applied and were even openly contradicted in important aspects by later government decisions; therefore, the policy did not result in a decrease of the sociopolitical violence or in a decrease of the number of violations of human rights. From July 1998 to June 2002, 23.734 persons (18.386 cases with allegedly identified perpetrators, 4.245 cases under study) were victims of extrajudicial executions, sociopolitical homicides, forced disappearances and deaths in combat. The percentages that represent the participation of the various perpetrators of violations of human rights have changed. In 1988, violations of human rights allegedly perpetrated by direct Public Forces actions represented 50%. That percentage gradually dropped year after year. From July 1998 to June 1999, that percentage was 17.6%. Also, there was a gradual increase year after year in the percentage attributed to paramilitary groups; from 20% in 1993, it rose to almost 40% from July 1998 to June 1999. The total number of deaths caused by all of the responsible parties together had remained the same and, as it was mentioned, it later started to increase, the total number reached in 2001 having doubled. Faced with such facts, the President of the United Nations Human Rights Commission stated in his Statement on the Situation of Human Rights in Colombia, approved by consensus in April 2000,

“[T]he Commission expresses its deep concern at the deterioration of the human rights and humanitarian situation in Colombia during 1999 characterised by a decline in reported human rights violations which is offset by an increase notably in abuses and killings by the paramilitary.”2

Along the same lines, in that same year 2000, the Office of the High Commissioner for Human Rights sustained,

“[a]cts that can be attributed to the latter (paramilitary groups) also constitute human rights violations which, by act or omission, therefore also entail the international responsibility of the State. This consideration is based on the fact that these groups have the support, acquiescence or toleration of State officials and benefit from the lack of an effective response by the State.”3

Some of the concerning aspects of the 1998-2002 government related to human rights are described below. Regarding the Military Criminal Code, approved in August 1999, Government actions were aimed at restricting the scope of the Constitutional Court guidelines that had limited military jurisdiction over crimes strictly related to military service.4 The Code provides that the crimes of genocide, forced disappearance and torture are under the competence of ordinary jurisdiction; this would exclude other violations of human rights that had been

2 Statement made by the Chairperson of the Commission Concerning the Situation of Human Rights in Colombia (56th session), Geneva 19 April 2000 (OHCHR/STM/00/22). 3 Report of the United Nations High Commissioner for Human Rights on the Office in Colombia , March 2000 (E/CN.4/2000/11), Paragraph 25. 4 See infra, point I.D.2, Military Criminal Justice.


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provided for in the original bill of law regulations (Articles 2 and 3) from the jurisdiction of ordinary courts. The Constitutional Court, upon controlling the regula tion, reiterated that all violations of human rights must be under the jurisdiction of ordinary justice and that, therefore, the crimes mentioned in the Military Criminal Code do not constitute a conditioned list.5 The Government also attempted to indefinitely suspend the Military Criminal Code from entering into effect, a situation that was finally settled by the Constitutional Court.6 As to a bill of law that typified genocide, torture, forced disappearance, and forced displacement, far from encouraging this bill of law, the Government hindered it from entering into effect by arbitrarily objecting without any justification to the classification of political genocide. It argued that the author of that crime had to be a legal group because, if it were an outlawed group, it would be impossible for the Public Force to perform its constitutional duty of confronting illegal armed actors. Through non-existing defects of form, the Government also objected the article that granted competence to ordinary justice to try such crimes. Also, the prohibition to invoke due obedience in the case of behavior leading to serious violations of human rights was excluded when this law was processed in Congress. The Government did not take any action to avoid that from happening. Ultimately, the article on genocide was modified in accordance with the Government’s demand and the article on jurisdiction was excluded. The Constitutional Court declared the qualification of the author of the crime of political genocide unconstitutional, establishing that it would be discriminatory to only protect from political genocide those who act in a legal manner. This would restrict the effectiveness of international treaties. In addition, military forces cannot combat outlawed armed groups through genocide.7 It is worth commenting that in the “Policy for Promotion, Respect, and Guarantee of Human Rights and of the Application of International Humanitarian Law, 1998-2002”, adopted by the Government in August 1999, full support to this complete bill of law had been formally announced. However, the Government objected to the law after Congress approved it in December of that same year. Furthermore, through Act 387 dated July 18, 1997, regulations were adopted for the prevention of forced displacement. In 2000, Decree 2569 that partially regulated the Act was issued. Far from having satisfactory results, it had serious defects. For example, it set forth the end of the condition of displaced person through a unilateral Government decision, if a displaced person does not collaborate sufficiently, and it set forth a term within which a displaced person must submit the declaration enabling him/her to be acknowledged as such by the State and, thus, enabling him/her to receive humanitarian aid. It imposed on displaced persons the obligation of assuming the responsibility if they wish to return to their homes, in spite of the fact that the State may not consider that there are guarantees for such return and, finally, it limited the budget for all State attention programs.

5 Constitutional Court 2000 Sentence C-368, Presiding Judge Carlos Gaviria Díaz. 6 Article 608 in this Code provided for the Code entering into effect one year after issued, provided that the Military Criminal Justice administration statute law was in force. The Constitutional Court declared this provision unconstitutional because the Constitution does not provide for a Military Criminal Justice statute law. That declaration of unconstitutionality provoked the failure of a Military Criminal Justice statute law bill of law that the government had presented, through which it sought to broaden military criminal jurisdiction anew and postpone the new Military Criminal Code from entering into effect for one more year. 7 Constitutional Court 2002 Sentence C-317, Presiding Judge Clara Inés Vargas.


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Likewise, through law 684 on security and national defense, dated August 13, 2001, the Government endangered the effectiveness of the social, democratic state of law by ignoring its duty to respect the rights acknowledged in the Internationa l Covenant on Civil and Political Rights and to guarantee them to all individuals. Below, this report will refer more to that law, which the Constitutional Court declared totally unconstitutional in April 2002,8 in our analysis of the implementation of the Covenant (Section II.A.1.). 2. Álvaro Uribe Vélez’s Government (2002-2006) This Government’s policy of security is based on disrespecting the principle of distinction between combatants and the civilian population. Besides implementing policies that are openly contrary to that principle, the President of the Republic stated that he does not believe in it when he affirmed, “We do not call this violence a conflict. We do not acknowledge its actors as combatants. They are terrorists.”9 The Office in Colombia of the United Nations High Commissioner for Human Rights had to draw attention to the need to distinguish between combatants and non-combatants to protect the civilian population, through a document named “About the importance of the humanitarian principle of distinction in the armed conflict”, 10 made public only days after the President gave his declaration. a. “Democratic Security” Policy

The present Government has said that its human rights policy is its “democratic security” policy. However, that policy disrespects the regulations of humanitarian law by involving the civilian population more and more in the armed conflict. It has led the State to pursue and attack the civilian population by using exceptional measures. In addition, it suggests a trend toward dismantling the social, democratic state of law. This report will make reference to these concerns. The government policy transfers the obligation of ensuring security to the citizenry and uses it as an instrument through which to win the war. The policy guidelines suggest, for example, that the citizenry “will be a fundamental part in information gathering (for military intelligence).”11 Also, the security policy was inspired by the idea that one of the main security problems is the fact that armed actors “camouflage themselves among the civilian population”; this is expressed in 2002 Decree 2002 on internal commotion. 12 Thus, the door is open to 8 Constitutional Court 2002 Sentence C-251, Presiding Judges Eduardo Montealegre and Clara Inés Vargas. 9 “Guerilla Fighters are Combatants, says the UN” (“Guerrilla es combatiente, dice la ONU”), El Tiempo Newspaper, July 1st, 2003, Pages 1-1 and 1-6. 10 Office in Colombia of the United Nations High Commissioner for Human Rights, About the importance of the humanitarian principle of distinction in the armed conflict, June 30, 2003, www.hchr.org.co

11 Presidency of the Republic, National Planning Department (DNP is the Colombian acronym), National Development Plan Foundations, 2002-2006, Toward a Community State (Bases del Plan Nacional de Desarrollo, 2002-2006, Hacia un Estado Comunitario), Bogota, DNP, 2002, Page 34; 2003 Bill of Law No.169, through which the National Development Plan, Toward a Community State is issued, Article 3 . By order of the Colombian Political Constitution (Art icle 339), every government is bound to adopt a national development plan and in its general portion it must indicate national long-term proposals and objectives, mid-term state action goals and priorities, and general strategies and orientations for economic, social, and environmental policy for the corresponding period.

12 2002 Decree 2002, 3rd whereas clause.


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multiple breaches of humanitarian law because military operations are hereby aimed at attacking and pursuing principally the sectors of the civilian population who they consider suspects in aiding guerrilla fighters, and not aimed at paramilitary groups or guerrilla fighters in a military ambit. Programs such as the informers’ network program or the peasant soldiers program are a fundamental part of the policy. b. Informers’ Network

The Government hereby seeks to convert at least one million civilians into Public Force informers, pursuant to the Development Plan. A confidential Government document on the security policy states that the Government aspires to incorporate the population at large into the informers’ network. These persons will do surveillance on their neighbors and inform Army and Police authorities of any event that or person who intends to alter the public order, based on each informer’s criteria, and they will receive rewards in exchange for the information that they supply. That is to say that civilians will be performing military intelligence duties. The Government has said that the informers’ networks will be “under the control, supervision, and evaluation of the military and police commanders and of State security organizations located in each one of the regions.”13

In the National Development Plan, the Government has indicated that “private surveillance companies”14 are among those who form the collaborators’ networks; that is to say that the collaborators’ networks are also made up of armed persons. Thus, unarmed civilians who perform military intelligence duties and armed persons who are part of private surveillance companies will all be under Public Force control.

This measure was put into execution less than 48 hours after the President of the Republic took office. In addition to the arbitrary nature of the informers’ criteria to indicate “suspicious” persons, the Public Force has used this measure to commit abuses. Some of its members have acted in the company of hooded informers and, based on their indications, have made arbitrary detentions without prior court order. In many cases, the information supplied by these informers is used without adequate evaluation and may even be the sole grounds for detention; it is also used as evidence in criminal trials. Furthermore, there are denouncements regarding the Public Force’s use of minors as informers.15

c. Peasant Soldiers The Government announced that it would incorporate at least 15,000 peasants into a program called “Peasant Soldiers” from August 2002 to March 2003. It expected that when that period ended, 100,000 young persons would have incorporated themselves into the program. 16 The new recruits are considered part-time military personnel; they wear a

13 Presidency of the Republic, National Planning Department (DNP), Op. cit., Page 36. 14 Ibidem. 15 This is evident in the case of the arbitrary detention of community leaders María del Socorro Mosquera, Mery del Socorro Naranjo, and Teresa Yarce in Medellín (Antioquia) on November 12, 2002. See infra Quote 172. Members of the Arauca Peasant Association (ACA is the Colombian acronym) also publicly made this denouncement when this organization was in a meeting held with International Union Mission in the headquarters of United Workers Union (CUT is the Colombian acronym) on February 4, 2003. 16 Armed Peasants (“Campesinos armados”), Semana (Week) Magazine, August 26, 2002, Page 26.


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uniform and are under the military command hierarchy. The other part of the time they live at home and carry out their normal work or study activities.17 At June 17, 2003, 15.120 peasant soldiers in 420 municipalities throughout the country had incorporated themselves into the Army ranks.18

The Government’s purpose is for the civilian peasant population to become involved in attending soldiers. According to the Minister of Defense, “as these people are part of the population, this gradually creates a cooperation web with the Public Force; we need to have the people on our side. It is the only way to win the war.”19 Obliging the civilian population to cooperate in this manner in maintaining public order converts the civilian population into a military objective for armed actors and reverses the role of who has the responsibility for human rights.

In practice, military authorities have begun to mix the program of the informers’ network and the peasant soldiers program, thus denying more and more the possibility of persons who do not participate in the hostilities. One high-ranking military commander indicated that the program “is effective because if you multiply 35 persons20 (peasant soldiers) by all of their relatives and acquaintances, you can easily obtain an informers’ network throughout the municipality.”21

As peasant soldiers continue living at home, they and their families run the risk of being attacked either at home or in their workplaces. After her visit to Colombia in November 2001, the Special Rapporteur on Violence against Women indicated that many women were victims of aggression for the mere fact of being related to a combatant.22 These attacks against peasant soldiers’ wives, companions, daughters, sons, and relatives have already begun to occur.23 In a recent report, the Office of the Procurator warned that “this has led to making a sector of the civilian population more visible as a “military target” for the insurgents: the peasant soldiers’ families.”24

In a communication addressed to the President of the Republic in August 2002, the United Nations High Commissioner for Human Rights, Ms. Mary Robinson, stated:

"I hereby express my concern regarding some of the measures regarding public order and citizen security, which the Colombian Government announced recently , as they might be incompatible with international regulations on human rights and humanitarian law. Within the context of generalized violence and degradation caused by the conflict, mechanisms such as the informers' network and peasant soldiers' taking their weapons home after their hours of service may contribute to the civilian population being involved in carrying out

17 Ibidem. 18 “Yesterday Eight Platoons of Peasant Military Personnel Were Sent to Seven Villages” (“Ayer se despacharon ocho pelotones de militares campesinos para siete poblaciones”), El País Newspaper, www.elpais.com, June 17, 2003. 19 “Armed Peasants” (“Campesinos armados”), Semana Magazine, August 26, 2002, Page 27. 20 The Commander is Referring to the 35 Peasant Soldiers Who Are Part of the Program in Guaduas (Cundinamarca). 21 “I Want to Protect my Fatherland” (“Yo quiero proteger a mi patria”), El Espectador Newspaper, February 24, 2002, www.elespectador.com 22 Report of the Special Rapporteur on Violence against Women, Its Causes and Its Consequences, Ms. Radhika Coomaraswamy, United Nations document E/CN.4/2002/83/Add.3, Executive summary. 23 “Peasant Soldiers Relatives Threatened” (“Amenazan a familiares de soldados campesinos”), Diario La Libertad Newspaper, February 27, 2003, www.lalibertad.com; “Peasant Soldiers, Yes or No?”, El Tiempo Newspaper, June 3, 2003, Page 1-2. 24 National Attorney General’s Office, The Rehabilitation and Consolidation Zone in Arauca, Special Report(La zona de rehabilitación y consolidación de Arauca, Informe especial), www.procuraduria.gov.co/noticias/indexno.html, May 19, 2003, Bogota, Page 6.


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war operations or exposed to situations of risk provoked by the gradual disappearance of the principle of distinction."25

In addition, Colombia’s experiences enable us to affirm that these forms of civilian collaboration with the Public Force to carry out military actions (of intelligence, information or combat) lead to paramilitarism. In the year 2001, the Office of the High Commissioner for Human Rights indicated that in Colombia, historically speaking, legislation and State policies have had an undeniable role in broadening the present magnitude and characteristics of paramilitarism.26 B. Paramilitarism

1. State Responsibility in the Phenomenon of Paramilitarism, Lack of Combat

against These Groups

“The State is legally responsible both for the attacks carried out directly by Colombian armed forces and for those committed by paramilitary organizations, to which State support, acquiescence or connivance have been contributory factors. The existence of links between the official army and/or civil servants and paramilitaries and the absence of sanctions for violations is a matter of great concern.”27

The last Chairman Statement of the United Nations Commission on Human Rights on the situation of human rights in Colombia, issued on April 25, 2003, stated that “The Commission strongly deplores the persistence of links between paramilitary groups and members of State forces (…) It urges the Government of Colombia to implement fully the measures adopted to combat, repress and dismantle paramilitary groups, as well as to investigate and bring the links between military forces and the paramilitaries to an end.”28 In its 2003 report, the Office in Colombia of the United Nations High Commissioner for Human Rights included the topic of paramilitarism as one of the issues of special concern:

“In their activities, the paramilitaries continued to take advantage of the lack of action, tolerance or complicity shown by public officials in several regions of the country. In many of these areas, the paramilitaries have replaced the Government in important aspects of public life, including the use of armed force”. (…) “Paramilitary activities continued to be a destabilizing factor as far as the rule of law was concerned, especially on account of the links maintained with paramilitary groups by public officials and of the Government’s own inconsistent response to the situation. The ambiguity of the Government’s commitment was reflected in discrepancies between statements by the authorities about their efforts to combat paramilitarism and the facts as observed by the Office in Colombia under its mandate. Paramilitary control is more

25 Communication Made by Ms. Mary Robinson, United Nations High Commissioner for Human Rights, addressed to the President of the Republic on August 26, 2002, available at www.hchr.org.co 26 United Nations, High Commissioner for Human Rights Office, Report Made by the United Nations High Commissioner for Human Rights in Colombia, February 8, 2003, Document E/CN.4/2001/15, Paragraph 131. 27 Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on Human Rights Defenders, April 2002, (E/CN.4/2002/106/Add.2), Paragraph 280. 28 Chairperson's Statement "Situation of Human Rights in Colombia” (59th session), Geneva 25 April 2003 (OHCHR/STM/CHR/03/2), Paragraph 30.


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marked in urban areas, where paradoxically the security forces and the authorities are also more active; this is constantly an element in complaints of collusion between public officials and the paramilitaries. Statements by civilian and military authorities denying the presence of paramilitary groups in their areas, even though that presence is common knowledge…”29

Among the elements that illustrate the absence of a decided policy to eradicate paramilitarism, the statistics on deaths in combat prove that the Public Force rarely has a military confrontation against the paramilitary: the number of guerrilla fighters killed in combat by the Public Force is much higher than the number of paramilitary killed in combat by the Public Force. The same occurs with arrests and detentions of persons accused of being guerrilla fighters or paramilitary fighters. At no time have the Colombian authorities shown signs of conceiving much less carrying out an armed confrontation plan against paramilitary groups. The Second Commander of the Army went so far as to publicly state in 1998 that it was not a constitutional duty of the Military Forces to pursue the paramilitary. 30 2. Massacres Committed by Paramilitary Groups

The paramilitary groups have been the perpetrators of the greatest number of massacres committed during the period covered by this report. Due to limited space, we will only refer to three massacres committed by paramilitary groups to illustrate common patterns: a) in these massacres there was a great number of civilians tortured and killed, b) in the three cases, the authorities were informed of the imminent attack but did not take any action to avoid it, c) there were denouncements made regarding the participation, either by action or by omission, of Public Force members in the events, which we will affirm in each one of the cases, d) and finally, one of the consequences of these massacres was massive forced displacement of population. a. Mapiripán (Meta) Massacre

On July 15, 1997, more than 200 paramilitary fighters entered the town of Mapiripán, cut off all incoming and outgoing communication, and controlled the town from July 15 to July 20. The paramilitary fighters detained several settlers and took them to the slaughterhouse where they tortured and killed them, in some cases after having mutilated them.31 From July 16 to July 20, 49 persons were assassinated under these circumstances. As a consequence of the massacre, approximately 70% of the population left the municipality as of July 21.32 The paramilitary fighters were in the municipality for five days; during that time the public force never appeared. On July 15, the judge of the municipality reported the situation to 29 Report of the United Nations High Commissioner for Human Rights on the Office in Colombia , February 2003 (E/CN.4/2003/1 3), Paragraphs 34 and 74. 30 See United States of America State Department Report, 1999, Country Report on Human Rights Practices, (Chapter on Colombia). 31 Resolution for the legal situation of Brigadier General Jaime Humberto Uscátegui Ramírez, Attorney General´s Office, Human Rights Unit, May 20, 1999. In: Constitutional Court 2001 Sentence SU-1184, Presiding Judge Eduardo Montealegre Lynnet. 32 Human rights and political violence data bank, Cinep y Justicia y Paz (BCJP), Night and Mist (Noche y niebla), Overview of Human Rights and Political Violence in Colombia (Panorama de derechos humanos y violencia política en Colombia), Bogota, BCJP, No. 5, 1997.


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the pertinent authorities through official document (oficio) 2919, but he never received an answer.33 Investigations 34 established that the Army troops, under the command of General Jaime Uscátegui, received the paramilitary who arrived at the San José del Guaviare Airport and that General Uscátegui assured that the local troops who could have been present in Mapiripán to protect the population were located somewhere else. General Uscátegui ignored the warnings regarding the massacre and ordered a subordinate to forge documents to cover up his complicity in the events.35 General Uscátegui was investigated for these events through military criminal justice and was found guilty of “misfeasance in office through omission” (prevaricato por omisión) and absolved of the charges of crimes against humanity, terrorism, forgery of documents, and conspiracy. 36 The military court sentenced General Uscátegui to 40 months of prison, but the Constitutional Court voided the sentence because the case had to be under civil court competence.37 On March 11, 2003, the Attorney General´s Office ordered the detention of the retired general as he was considered “alleged perpetrator of the crimes of aggravated homicide and aggravated kidnapping, by improper omission”. General Uscátegui appealed that decision, 38 but the decision was held through a writ dated April 25, 2003.39 Colonel Hernán Orozco, who alerted general Uscátegui regarding the massacre, was sentenced through military criminal court justice to 38 months of jail, for “not insisting in sending troops”. The colonel had requested that his case be transferred to ordinary court justice because he feared that military justice could not guarantee him a fair trial. Colonel Orozco had cooperated with civilian authorities and his testimony helped the Attorney General´s Office to file charges against General Uscátegui for forming paramilitary groups.40 Through a writ dated March 10, 2003, the Attorney General´s Office issued a resolution of accusation against Colonel Orozco as material author of the crime of ideological forgery of a public document and precluded the investigation of his being an alleged perpetrator of the crimes of aggravated homicide, aggravated kidnapping, terrorism, and conspiracy. 41

33 Enquiry of Officer Orozco Castro and copy of the substitute official document, quoted by the National General Prosecutor’s Office Human Rights Unit in its decision dated June 21, 1999 regarding the conflict of positive competence promoted by the National Army Commander in the official documents filed under UDH 244 and 443 regarding Brigadier General Jaime Humberto Uscátegui and four other officers of the Colombian National Army; in: Inter-American Human Rights Commission, Report 34/01, Case 12.250, February 22, 2001, Paragraph 13. 34 Prosecutor’s Office 12 delegated to the regional judges in San José del Guaviare initiated the preliminary investigation on July 23, 1997. 35 Declaration made by the Regional Prosecutor in San José del Guaviare at the time of the events, quoted by the of the Attorney General´s Office, Human Rights Unit, in its decision dated June 21, 1999 regarding the conflict of positive competence promoted by the National Army Commander in the official documents filed under UDH 244 and 443 regarding Brigadier General Jaime Humberto Uscátegui and four other officers of the Colombian National Army; in: Inter-American Human Rights Commission, Report 34/01, Case 12.250, February 22, 2001, Paragraph 13. 36 “Retired General Uscátegui Requested Overseeing for his Trial” (“General (r) Uscátegui pidió veeduría para su proceso”), El Colombiano Newspaper, March 12, 2003, Page 12-A. “Uscátegui Detained again”, El Tiempo Newspaper, March 12, 2003, Page 1-9. 37 Constitutional Court 2001 Sentence SU-1184, Presiding Judge Eduardo Montealegre Lynnet. 38 “Uscátegui detained again” (“Nueva detención de Uscátegui”), El Tiempo Newspaper, March 12, 2003, Page 1-9. 39 Attorney General´s Office, Human Rights Unit UNDH Case 244, information supplied on May 13, 2003 by Colectivo de Abogados José Alvear Restrepo. 40 “The Attorney General´s Office Ordered the Detention of Retired General Jaime Humberto Uscátegui” (“La Fiscalía General ordenó la detención del general retirado Jaime Humberto Uscátegui”), www.eltiempo.com, March 11, 2003. 41 Attorney General´s Office, Human Rights Unit UNDH Case 244, information supplied on May 13, 2003 by Colectivo de Abogados José Alvear Restrepo.


10

General Carlos Eduardo Ávila Beltrán, leader of the battalion in charge of protecting and controlling Mapiripán on the date of the massacre, is still in active service. In addition, in October 2002 he was called upon to be a candidate for promotion, in spite of having been sanctioned by the Office of the Procurator with a “severe reprimand” for his participation in the events of serious violations of human rights in Mapiripán. In the criminal court trial regarding the massacre in Mapiripán, ordinary criminal court justice sentenced Army Colonel Lino Sánchez, Commander of Mobile Brigade No. 2 on the date of the massacre, to 40 years of prison on June 19, 2003. In the same writ, Sergeant José Millar Urueña and Sergeant Juan Carlos Gamarra were sentenced to 32 and 22 years of prison, respectively. The leader of the paramilitary group United Self-defense Groups of Colombia (Autodefendas Unidas de Colombia, AUC is the Colombian acronym), Carlos Castaño, was also sentenced to 40 years of prison as intellectual author of the massacre.42

b. El Salado (Bolívar) Massacre

On February 16, 2000, 300 paramilitary arrived at El Salado, a settlement in El Carmen de Bolívar. They assassinated 45 persons after accusing them of being guerrilla collaborators. Also, they destroyed all of the houses and commerce. Proof of the liberty that the paramilitary group had to act is that, out of the 45 persons assassinated, 17 were shot down in the village park, 8 more in the church and the rest at home or while escaping. Many of the women assassinated were first sexually abused. The assassinations were carried out with extreme cruelty. The paramilitary remained in El Salado until February 19, day on which they left the village on foot. The massacre of the peasants generated the forced displacement of at least 450 families. Social organizations and the Catholic Church had alerted the authorities of the possible occurrence of the massacre and had requested that measures be taken to avoid an attack on the village.43 However, the State had not taken any measure to protect the village. In the zone there are two military bases that patrol the region. In spite of the fact that mobilizing the troops on land takes two hours, Navy Infantry troops arrived at the village three days after the attack, one half hour after the paramilitary group had left. The Attorney General’s Office appeared three days after the events had occurred. From February 22 to February 23 it disinterred bodies and identified 28 of them, among which, the corpse of a six-year-old girl and the corpse of a sixty-five-year-old woman. In spite of the fact that there had been reports of sexual abuse, no evidence was gathered to establish the occurrence of such facts or the identity of the alleged perpetrators. The investigation that was initiated is not making inquiries regarding sexual offenses. The Office of the Procurator is carrying out a disciplinary investigation of nine members of the Public Force, including Retired Rear-admiral Rodrigo Quiñónez who is also being investigated for another massacre. In March 2001, the Attorney General’s Office proffered

42 “Castaño Condemned to 40 Years” (“Condenan a castaño a 40 años”), El Tiempo Newspaper, June 20, 2003, Page 1-3. 43 Human Rights and Sociopolitical Violence data bank of Cinep y Justicia y Paz (BCJP), Night and Mist (Noche y niebla) – Overview of Human Rights and Political Violence in Colombia (Panorama de derechos humanos y violencia política en Colombia), Bogota BCJP, No. 15, 2000, Page 112.


11

a resolution for the indictment of 15 persons belonging to the AUC, for the crimes of aggravated homicide and paramilitarism. Carlos Castaño Gil, maximum leader of the paramilitary group, is also being investigated. c. Chengue, Settlement in Ovejas (Sucre) Massacre

On January 17, 2001, 34 peasants were assassinated by the AUC in the settlement of Chengue, in the municipality of Ovejas. Several of the victims were assassinated with firearms, others had their throats cut and others were murdered with stone and wood clubs. After assassinating the civilians, the paramilitary burned 30 houses. The massacre generated the forced displacement of more than 900 persons out of a population of approximately 1.200 inhabitants44. The population had warned the authorities beforehand of the imminent massacre through a right to petition document signed by 95 settlers in the region sent to the President of the Republic on October 6, 2000, filed under No. 231486. However, the processing of the request was limited to transferring it to officials in the Ministry of the Interior and in the Ministry of Defense, as well as to the Governor of Sucre and to the Mayor of Ovejas, without specifying or recommending any special actions. Nor would any follow-up have been given to the measures, had there been any adopted. The Military Forces replied on December 1, 2000, assuring that the zone that the First Infantry Brigade had jurisdiction over was very extensive and that this made it difficult from an operational point of view to constantly cover all of the areas considered critical. At least seven of the persons who had signed the communication sent to the authorities were assassinated during the paramilitary attack. In August 2002, the Office of the Procurator filed charges against National Navy Retired Rear-admiral Rodrigo Quiñónez (mentioned before in relation to the El Salado massacre), and against Lieutenant Commander Camilo Martínez, Major Víctor Salcedo, Sergeant Major Rubén Darío Rojas and Sergeant Major Euclides Bossa.45 Rodrigo Quiñónez was also involved in the criminal trial for this massacre. In October 2002 he answered an enquiry for the Attorney General´s Office, which did not impose a securing measure on him. It did, however, deny his request for preclusion and ordered gathering evidence. In spite of being under investigation, Quiñónez was named military attaché to the Embassy of Colombia in Israel, where he performed his duties until November 2002. d. Another 626 Massacres Committed by the Paramilitary These three massacres committed by paramilitary groups illustrate the common patterns that characterize this type of multiple violations of human rights. However, we find it

44 Human Rights and Sociopolitical Violence data bank of Cinep y Justicia y Paz (BCJP), Night and Mist (Noche y niebla)– Overview of Human Rights and Political Violence in Colombia(Panorama de derechos humanos y violencia política en Colombia), Bogota, BCJP, No. 19, 2001, Page 58. 45 “Charges against General Quiñónez” (“Cargos al General Quiñónez”), El Espectador Newspaper, www.elespectador.com, Bogota, August 25, 2002.


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necessary to clarify that 953 massacres were committed from July 1996 to June 2001. The responsibility for 66% (629) of these massacres, representing 69.29% (4.037) of the victims, was allegedly attributed to the paramilitary. 46 3. Secret Negotiations, Legalization, and Impunity

In November 2003, the present Government initiated dialogues with the paramilitary groups. To do so, pursuant to Colombian legislation, it was necessary to eliminate the condition that previously existed of acknowledging political status to an outlawed armed group, for the Government to be able to initiate the dialogues.47 The Government has initiated negotiations with the paramilitary groups on the basis of impunity for their war crimes and crimes against humanity. El Tiempo newspaper asked the Minister of the Interior and of Justice about the measures that the Government would adopt to ensure that this process would not lead to impunity. The Minister answered, “No, nobody is going to guarantee that”. The Minister added that any process of amnesty or pardon assumes impunity and that “the Government is willing to forget about the past. There are some limitations of a legal order that will be studied and that we will have to overcome using a lot of imagination.”48 The Ombudsman stated that he was alarmed by the Government’s plans and indicated that it is not the State’s duty to investigate and punish crime. The Ombudsman indicated that “no crime against humanity can be amnestied or pardoned”, and he pointed out that impunity cannot be the price to pay for peace in Colombia.49 2003 decree 128,50 Article 13 indicates that persons demobilized who were part of outlawed armed organizations “will be entitled to pardon” if a government organization called Operational Committee for Abandoning Arms (CODA is the Colombian acronym)51 certifies that the demobilized person belongs to an outlawed organization and confirms his/her will to abandon it.52 The expression “will be entitled to” means that the certification issued by CODA is the sole requirement to obtain pardon. That is to say that, once the certification is issued, pardon is automatic. That means that, before making the decision of whether or not the

46 Source: Colombian Commission of Jurists (CCJ) database. 47 The reform was made through 2002 law 782 that modified 1997 law 418. 48 “Drug Trafficking Ends this Year” (“Narcotráfico se acaba este año”), El Tiempo Newspaper, Bogota, January 12, 2003, Pages 1-2 y 1-3. 49 “The Ombudsman Considers the Minister of the Interior’s Declarations Unfortunate” (“Defensor considera desafortunadas las declaraciones de Mininterior”), El Tiempo Newspaper, January 15, 2003, Page 1-9. 50 January 22, 2003 decree 128 that regulates 1997 law 418, extended and modified by 1999 law 548 and by 2002 law 782 regarding re-entry into civilian society. 51 CODA is made up of one delegate from the Ministry of Justice and of the Interior, one delegate from the Ministry of National Defense, one official from the Ministry of the Interior Re-incorporation Program, one delegate from the Attorney General´s Office, one delegate for the Director of the Colombian Family Welfare Institute, and one delegate for the Ombudsman Office. CODA has the following functions: to certify that the applicant belongs to an outlawed armed organization; to evaluate the circumstances of voluntary abandonment; to evaluate the demobilized person’s will to re-enter into civilian life; to certify the demobilized person’s belonging to an outlawed armed organization and his/her will to abandon it; and to process requests for postponement or suspension of the execution of a sentence and pardon before the judges for sentence execution and the Ministry of the Interior, of Justice and of Law. The composition and functions of CODA are contained in 2003 Decree 128, articles 11 and 12. 52 See 2003 decree 128, Articles 11, 12, 13 and 21.


13

benefit is to be granted, the behavior for which the person would be pardoned will not be determined in court. The person would be exonerated from criminal responsibility before determining if he/she committed war crimes or crimes against humanity. The decree contains a provision (Article 21) that apparently would ensure the right to justice, but that in reality is not an effective safeguard. Pursuant to the provision, after CODA’s initial exoneration, the prosecutor or the judge could limit such exoneration if the person has been previously tried or sentenced for crimes that cannot be pardoned or amnestied, pursuant to Colombian law, the Constitution or international treaties ratified by Colombia. 53 In other words, if the person has not been tried or sentenced for such crimes, the judge or the prosecutor will not be able to limit the scope of the right to pardon conferred upon by the CODA certification. Pursuant to Colombian law, a person tried is a person who answered an enquiry or who has been declared an absent defendant. Given the impunity that exists in Colombia, persons sentenced or tried for such crimes are very few. This means tha t almost all of the members of the paramilitary groups (calculated at more than 10,000 persons) and of the guerrilla groups (calculated at near 22,000 persons 54) could be pardoned by virtue of a certification from CODA, an organization presided by the Minister of the Interior. It also means that the victims and the society could not find this out in time or be able to oppose any efficacious remedy to prevent that crimes against humanity go unpunished through this method. Amnesties and pardons may occur as a result of a negotiation process, but these benefits must be contained within a perspective of reconciliation and can only take place once the victims’ right to truth, justice and indemnity have been ensured.55 In addition, the policy of “confidentiality”, which has given rise to this negotiation behind closed doors, is merely a cover; it ignores the victims’ right to know the truth. The People’s Ombudsman requested that these negotiations be transparent and open to public opinion because the country has the right to complete, accurate information. 56 The manner in which the Government is holding these dialogues is concerning because they do not appear to be thought out for the purpose of leading to a peace process. On the contrary, they appear to be aimed at giving the members of the paramilitary groups a legal condition and having them participate, under legal conditions, in the armed conflict. The informers’ network and the peasant soldiers programs are propitious programs for demobilized persons from the paramilitary groups to join.

53 Article 21, Paragraph 2. 54 Presidency of the Republic, National Planning Department, Op. cit., Page 26. 55 See Inter-American Human Rights Court, the case of Barrios Altos against Peru, Paragraph 41. 56 “The Ombudsman Considers the Minister of the Interior’s Declarations Unfortunate” (“Defensor considera desafortunadas las declaraciones de Mininterior”), El Tiempo Newspaper, January 15, 2003, P age 1-9.


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C. Breaches of Humanitarian Law Committed by Guerrilla Groups, Paramilitary Groups and State Agents

In the Colombian armed conflict, all of the combatant groups breach humanitarian regulations and disrespect the basic princip les of humanitarian law, such as the principle of distinction between combatants and noncombatants, the principle of immunity for the civilian population, and the principle of proportionality. 1. Taking Hostages and Kidnappings57 From July 1996 to March 2003 (a period of 6 years and 9 months), there were 18.684 kidnapping victims. The responsibility for the kidnapping of 11.644 persons (62.32%) was attributed to combatant groups, representing two thirds of the kidnappings. The kidnapping of 10,687 persons (57.20%) was attributed to the guerrilla groups and that of 957 (5.12%) was attributed to paramilitary groups. 5,867 (31.40%) kidnappings were allegedly attributed to common delinquents.58 No alleged perpetrator was identified for the remaining 1,173 kidnappings59(See Chart 1, Column 8).

The number of persons who are victims of kidnapping in Colombia is a reflection of the degrading climate of violence that this country is undergoing. During the period under study, there was a gradual increase in the number of cases of kidnapping. In 1996-199760 1.754 persons were kidnapped, whereas from 2001 to 2002, 3.115 persons were victims of kidnapping. Despite having recorded a decrease in the number of kidnappings from 2002 to 200361 (with 1.893) as compared to the previous three years, we foresee that the total number for this year will be at the same level recorded from 1997 to 1999.

The average number of persons kidnapped per day went from five in the year 1996-1997 to seven in 2002-2003. In 1999-2000 and 2000-2001 an average of more than nine persons kidnapped per day was recorded. After this constant serious increase from 1996-1997 to 2000-2001, the average of kidnapped persons per day slightly decreased: in 2001-2002 it dropped to eight persons and in 2002-2003 to seven. However, we must keep observing to

57 The International Convention against the Taking of Hostages Article 1 stipulates the following: “Any person who seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third party, namely a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do so or to abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages within the meaning of this Convention”. The Convention was adopted by the United Nations General Assembly through Resolution 34/146 dated December 17, 1979 (Plenary Session 105). Protocol II, Additional to the Geneva Conventions, Article 4, Letter c), prohibits taking hostages at all times and in all places. “This sub-Paragraph reaffirms a prohibition which is already container in common article 3, (…). It should be noted that hostages are persons who are in the power of a party to the conflict or its agent, willingly or unwillingly, and who answer with their freedom, their physical integrity or their life for the execution of orders given by those in whose hands they have fallen, or for any hostile acts committed against them”. International Committee of the Red Cross, Comments to Protocol II Additional to the Geneva Conventions dated August 12, 1949, regarding protection to victims of armed conflicts of a non-international nature (Protocol II), Geneva, Martinus Nijhoff Publishers, 1986, Item 4537. 58 The kidnappings allegedly attributed to common delinquents and to unidentified perpetrators are not considered breaches of humanitarian law. However, we contribute the statistical information on them to give a general overview of the situation of persons kidnapped in Colombia. That is why, the average of kidnapping victims per day is broken down by the total number of victims and also by the subtotal of kidnappings perpetrated by paramilitary and guerrilla groups. 59 The National Police breaks down the kidn appings whose alleged perpetrators were not identified until July 2000. 60 In this document the period begins on July 1, 1996 and ends on March 31, 2003. One year begins on July 1 of a year and ends on June 30 of the following year. 61 For the purpose of this report, the year 2002-2003 starts on July 1, 2002 and ends on March 31, 2003.


15

see if this decrease really represents a constant downward trend for the future (See Chart 1, Column a, Row M).

The increase in the number of kidnappings was mainly due to kidnappings committed by combatant groups. The kidnappings perpetrated by combatant groups went from 743 in 1996-1997 to 2,168 in 2001-2002, which means an increase of 191.79% (See Chart 1, Row I).

Of the 11,644 kidnappings perpetrated by combatant groups, 91.78% (10.687 victims) are allegedly attributed to guerrilla groups and 8.22% (957 victims) to the paramilitary (See Chart 1, Column 8a and c, Rows G to I). Of the 11,644 kidnappings, 83.79% (9.756 persons) are allegedly attributed to the Revolutionary Armed Forces of Colombia (Farc is the Colombian acronym) and to the National Liberation Army (Eln is the Colombian acronym), broken down as follows: Farc 44.04% (5.128) and Eln 39,75% (4.628).

The paramilitary groups were the alleged perpetrators of the kidnapping of 957 persons, corresponding to 8.22% of the total kidnappings committed by combatant groups. The paramilitary groups went from 33 victims in the first year to 235 in 2001-2002 and to 121 so far in 2002-2003. In 2000-2001, the highest number of persons kidnapped allegedly by paramilitary groups was recorded: 301 victims (See Chart 1, Column c, Row H). As to State agents, it is important to highlight that there were cases in which active or retired members of the Public Force were involved in committing kidnappings.62 Unfortunately, the National Police Criminological Investigation Center did not report specific figures on these cases in its statistics.

Girls, boys and women are victims of kidnapping by combatant groups. In spite of their condition of vulnerability and despite both national and international pressure for combatant groups not to kidnap minors and to free girls and boys that they have in their power, combatant groups maintain them kidnapped for long periods of time.

62 On October 30, 1998, in Bogota, the Israeli entrepreneur Benjamín Khoudarí was kidnapped and assassinated by his captors. Colonel Jorge Plazas Acevedo was detained for the kidnapping and assassination. On the date of the events he was Intelligence Director of the XIII Army Brigade based in Bogota. Also, Lieutenant Alexánder Parga Rincón and Sergeant Guillermo Lozano Guerrero were involved; they were under the Colonel’s orders. Three more military personnel were investigated. In 1999, the Office of the Procurator issued a writ of accusation against Colonel Plazas, Lieutenant Alexánder Parga and Sergeant Juan José Mosquera, Sergeant Guillermo Lozano, and Sergeant José Ramírez, for the crimes of kidnapping, forced disappearance, assassination and illicit enrichment. In November 2002, Bogota Specialized Judge Number 2 sentenced Colonel Plazas Acevedo to 40 years of prison for the kidnapping and assassination of the Israeli entrepreneur, and John Alexis Olarte to 10 years of prison for the crimes of accessory to kidnapping and conspiracy. “Ex-Colonel sentenced to 40 years of jail for assassinating an entrepreneur” (“Condenado a 40 años de cárcel un ex coronel por el asesinato de un empresario”), El Espectador Newspaper, November 7, 2002, www.elespectador.com. On February 22, 2001, in Bogota, the Japanese citizen Chikao Muramatsu, Vice-president of the company Yasaki Ciemel, and Efraín Díaz, who was driving the vehicle in which the Japanese entrepreneur traveled, were kidnapped by the common delinquents gang “Los Calvos” (Skinheads). On the afternoon of the kidnapping, Police Officers Rubén Darío Toro Bedoya and Jorge Eliécer García Fuentes, who at that time worked in the General Police Directorate and in the Congress of the Republic respectively, installed a blockade on Calle 103 and Autopista Norte, they were in uniform and had their military-issue weapons on them. The policemen stopped the vehicle in which the victims were traveling. Moments later eight more individuals arrived on the scene, among them Rodrigo Bermúdez, alias “El Capi”, and alias “Oscar Javier”, two ex-policemen companions of Toro and García. That same day Efraín Díaz was freed. One week later it was made known that the Farc had the Japanese entrepreneur in their power and that they were demanding USD 27,000,000 to free him. Rodrigo Bermúdez confessed that on that same day of February 22 Chikao Muramatsu had been delivered to the Farc guerrilla fighters: he also confessed that he was working under the orders of “Capuleto”, a Colonel in active service in the Armed Forces. On June 24, 2002, Bogota Specialized Criminal Court Six sentenced Rodrigo Bermúdez and Guillermo Díaz for the crimes of extortive kidnapping and public document forgery. Police Officers Toro Bedoya and García Fuentes were also investigated. The Farc is still holding Chikao Muramatsu. “Corrupt ex-police officers behind kidnapping of Japanese” (“Condenado a 40 años de cárcel un ex coronel por el asesinato de un empresario”), El Tiempo Newspaper, March 4, 2002, www.eltiempo.com; “Two of the ‘Los Calvos’ gang sentenced” (“Condenan a dos de la banda ‘Los Calvos’”), El Tiempo Newspaper, June 25, 2002, Page 2-9; “Sentences for the kidnappers of the Japanese industrialist Chikao Muramatsu” (“Condenas por el secuestro del industrial japonés Chikao Muramatsu”), El Espectador Newspaper, June 25, 2002, www.elespectador.com.


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Number of victims by

alleged perpetator

Percentage attributed to each group

Percentage attributed to combatants


alleged perpetator




alleged perpetator




alleged perpetator



a b c a b c a b c a b c

% % % % % % % %1b=1a÷1aK 1c=1a÷1aI 2b=2a÷2aK 2c=2a÷2aI 3b=3a÷3aK 3c=3a÷3aI 4b=4a÷4aL 4c=4a÷4a I

A National Liberation Army (Eln) 271 15,45% 36,47% 693 28,32% 41,23% 749 26,44% 41,52% 521 15,79% 28,77%B Popular Liberation Army (Epl) 47 2,68% 6,33% 53 2,17% 3,15% 118 4,17% 6,54% 274 8,31% 15,13%C Che Guevara Revolutionary Army (Erg) 0,00% 0,00% 3 0,12% 0,18% 2 0,07% 0,11% 3 0,09% 0,17%D People's Revolutionary Army (Erp) 5 0,29% 0,67% 32 1,31% 1,90% 17 0,60% 0,94% 35 1,06% 1,93%E Jaime Bateman Cayón (Jbc) 3 0,17% 0,40% 5 0,20% 0,30% 6 0,21% 0,33% 0,00% 0,00%F Revolutionary Armed Forces of Colombia (Farc) 384 21,89% 51,68% 871 35,59% 51,81% 827 29,19% 45,84% 820 24,86% 45,28%G Subtotal: Guerrilla groups (aG=aA:aF) 710 40,48% 95,56% 1.657 67,72% 98,57% 1.719 60,68% 95,29% 1.653 50,11% 91,28%H 33 1,88% 4,44% 24 0,98% 1,43% 85 3,00% 4,71% 158 4,79% 8,72%

I 743 42,36% 100% 1.681 68,70% 100% 1.804 63,68% 100% 1.811 54,90% 100%

J 1.011 57,64% 766 31,30% 1.029 36,32% 1.488 45,10%

K 1.754 100% 2.447 100% 2.833 100% 3.299 100%

L 2,04 4,61 4,94 4,96


alleged perpetator




alleged perpetator




alleged perpetator




alleged perpetator



a b c a b c a b c a b c

% % % % % % # % %5b=5a÷5aL 5c=5a÷5aI 5b=5a÷5aL 5c=5a÷5aI 5b=5a÷5aL 5c=5a÷5aI 6a=1a:5a 6b=6a÷6aL 6c=6a÷6a I

A National Liberation Army (Eln) 1.063 31,80% 50,26% 866 27,80% 39,94% 465 24,56% 35,17% 4.628 24,77% 39,75%B Popular Liberation Army (Epl) 35 1,05% 1,65% 41 1,32% 1,89% 18 0,95% 1,36% 586 3,14% 5,03%C Che Guevara Revolutionary Army (Erg) 12 0,36% 0,57% 8 0,26% 0,37% 10 0,53% 0,76% 38 0,20% 0,33%D People's Revolutionary Army (Erp) 93 2,78% 4,40% 74 2,38% 3,41% 36 1,90% 2,72% 292 1,56% 2,51%E Jaime Bateman Cayón (Jbc) 1 0,03% 0,05% 0,00% 0,00% 0,00% 0,00% 15 0,08% 0,13%F Revolutionary Armed Forces of Colombia (Farc) 610 18,25% 28,84% 944 30,30% 43,54% 672 35,50% 50,83% 5.128 27,45% 44,04%G Subtotal: Guerrilla groups (aG=aA:aF) 1.814 54,26% 85,77% 1.933 62,05% 89,16% 1.201 63,44% 90,85% 10.687 57,20% 91,78%H 301 9,00% 14,23% 235 7,54% 10,84% 121 6,39% 9,15% 957 5,12% 8,22%

I 2.115 63,27% 100% 2.168 69,60% 100% 1.322 69,84% 100% 11.644 62,32% 100%

J 918 27,46% 376 12,07% 279 14,74% 5.867 31,40%K 310 9,27% 571 18,33% 292 15,43% 1.173 6,28%

L 3.343 100% 3.115 100% 1.893 100% 18.684 100%

M 5,79 5,94 4,82

Gue

rrill

a gr

oups

Average victims per day (aL= aK ÷ 365) (cL= aI ÷ 365)

Number of victims and percentage of alleged authorship, per periodJuly 1996 to March 2003

4

July 1999 to June 2000

#

9,04

#

July 2000 to June de 2001

6,919,16 8,53

Total victims

5 7

July 2002 to March 2003 (9 months***)

86

July 2001 to June de 2002

3


Subtotal: Guerrilla groups and paramilitary (aI=aG + aH)

4,81Average victims per day (aL= aK ÷ 365) (cL= aI ÷ 365)

Total victims (L=aI+aK)

2


1


#

###

7,766,70

#

Total victims (L=aI+aK)

Alleged perpetrators

Gue

rrill

a gr

oups

Common delinquents*Non-identified perpetrators**

Paramilitary

Subtotal: Guerrilla groups and paramilitary (aI=aG + aH)

Common delinquents*

Paramilitary groups

Alleged perpetrators

Chart 1Breaches of humanitarian law in Colombia

Right to freedom Taking hostages and kidnappings

N.B.: The acts attributed to paramilitary as alleged perpetrators do not exclude the eventual participation of State agents by action or omission.

Notes:

Source: National Police, Criminology Investigations Center, Kidnappings recorded in the country by perpetrators from 1995 to 2003, magnetic support, May, December 2002, April and May 2003.

*: The kidnappings allegedly attributed to common delinquents (Row J) and to non-identified perpetrators (Row K) are not considered as breaches of humanitarian law. However, statistical information on said kidnappings ispresented to showa generaloverview of the situation of kidnapping victims in Colombia. For this reason, the average of victims of kidnapping per day has been broken down into thetotal of victims and into thesubtotalof victimsof paramilitary and guerrilla groups.

***: The average per day for the period from July to March is calculated based on 274 days.**: The National Police has broken down the kidnappings committed by non-identified perpetrators only since July 2000.


17

Combatant groups in Colombia do not respect humanitarian regulations. They breach, among others, the principle of distinction between combatants and noncombatants and the principle of immunity for civilian persons. The Government, on the other hand, has not shown efficacious policies against kidnapping to ensure the safety and protection of civilian persons from violations of humanitarian law committed by combatant groups. In spite of petitions and proposals made by the families of kidnapped persons and by social and human rights organizations, the absence of will on the part of the Colombian State and of the guerrilla groups has impeded any advance in signing a humanitarian agreement in which the guerrilla groups would commit to discontinue kidnapping and where the freeing of all kidnapped persons would be achieved.63 2. Use of Prohibited Weapons In Colombia, from July 1996 to June 2003, 355 persons lost their lives due to the use of prohibited weapons. The great majority of them were civilians, not combatants: 253 (71.27%) of the victims were civilians and 102 (28.73%) were combatants. 107 persons died from the use of anti-personal land mines: 27 civilians (25.23%) and 80 combatants (74.77%). As a consequence of the use of other prohibited weapons, such as gas cylinders64 or booby traps, 226 civilians (91.13%) and 22 combatants (8.87%) died. a. Civilians Killed due to the Use of Prohibited Weapons During the period analyzed, 253 civilians lost their lives as a consequence of combatant groups using prohibited weapons. Of them, 27 persons died as a consequence of the explosion of anti-personal land mines and 226 died due to other prohibited weapons (See Chart 2 Row G, Column 6 and Chart 3 Row G, Column 6). Of the 27 civilian victims of anti-personal land mines, 17 (62.96%) of the cases were allegedly attributed to the guerrilla groups and two (7.41%) to State agents. The death of eight victims (29.63%) was allegedly attributed to one of the non- identified combatant groups. Of the victims who died due to anti-personal land mines, almost half (44.44%) belonged to groups identified as vulnerable. One third of the victims (9) were girls and boys and more than 10% of the victims were women (3 victims) (See Chart 2, Row G). As a consequence of the use of other prohibited weapons (gas cylinders and booby tramps), 226 civilians died during this period. The guerrilla groups were identified as those allegedly responsible for the death of 220 victims (97.35%), the paramilitary for two (0.88%), and the combatant group allegedly responsible for the death of four victims (1.77%) was not identified. Out of the 226 persons killed, more than half, that is 129 victims (57.07%), were girls and boys and women: 64 were minors, 65 women and 16 victims were youths (See Chart 3, Row G).

63 “Humanitarian Agreement Proposed in Farallones de Cali” (“Proponen acuerdo humanitario en Farallones de Cali”), El Tiempo Newspaper, April 24, 2002, www.eltiempo.com, “Although Discussions on the Topic Are Strengthening, a Humanitarian Agreement is Farther away than it Seems” (“Aunque el tema toma fuerza, un acuerdo humanitario esta más lejos de lo que parece”), Semana Magazine, November 18, 2002, www.semana.com. 64 Gas cylinder: a handmade weapon with indiscriminate effects, difficult to aim at a concrete objective, intended to act as a mortar. In most cases it does make impact on the military target against which it is aimed or, even if it does impact the military objective, it is so powerful that it causes damage to protected persons and goods.


18

a b a b a b a b a b a b c a b c

% % % # % % # Average per day

1b=1a÷6a 2b=2a÷6a 3b=3a÷6a 4a=1a:3a 4b=4a÷6a 5b=5a÷6a 6a=4a+5a 6c=6a÷365

A July 1996 to June 1997 1 33,33% 0,00% 1 33,33% 2 66,67% 1 33,33% 3 100% 0,01 2B July 1997 to June 1998 1 20,00% 0,00% 4 80,00% 5 100% 0,00% 5 100% 0,01 1 1C July 1998 to June 1999 0,00% 0,00% 1 100% 1 100% 0,00% 1 100% 0,003 1D July 1999 to June 2000 0,00% 0,00% 4 100% 4 100% 0,00% 4 100% 0,01 1 1E July 2000 to June 2001 0,00% 0,00% 1 20,00% 1 20,00% 4 80,00% 5 100% 0,01 1F July 2001 to June 2002 0,00% 0,00% 6 66,67% 6 66,67% 3 33,33% 9 100% 0,02 3 1

G Total victims (G=aA:aF) 2 7,41% 0 0,00% 17 62,96% 19 70,37% 8 29,63% 27 100% 9 0 3

• Data base in human rights and political violence of Cinep and Justice and Peace (BCJP), Noche y niebla (Night and Fog Review) - Panorama of human rights and political violence inColombia, Bogotá, BCJP, n.° 1 a 24, July 1996 to June 2002.

Youths ***

Girls and boys **

Women ****

# # # # %

Periods

2 543

Guerrilla groups

State agents Paramilitary


Right to life

Civilians killed due to the use of prohibited weapons: anti-personal land mines Number of victims and percentage of alleged authorship, per period*


1

One of the previous groups

unidentified

Number of victims divided according to

specific groups

7

Cases with identified

alleged perpetrators

Total victims

6

Sources:

N.B.: The acts attributed to paramilitary as alleged perpetrators do not exclude the eventual participation of State agents by action or by omission.

****: Column 7c only represents female victims over 25 years of age. Female victims under 26 years of age are recorded in their corresponding group of age: victims under 18 years of age, inColumn 7a; and young victims from 18 to 25 years of age, in Column 7b.

**: The Convenant on the Rights of Children , Article 1, defines a girl or a boy as a person under 18 years of age.*: A period starts on July 1 of a year and ends on June 30 of the following year.

• Communications of State authorities reporting cases of sociopolitical violence.

• Written denouncements in the Comisión Colombiana de Juristas files • Papers: El Colombiano, El Espectador, El Tiempo .

Notes:

***: Includes victims are classified as youths according to the source or the news item expressing this classification without mentioning the age of the victim, and victims whoseexpressed age isbetween 18 and 25, inclusive.


19

a b a b a b a b a b a b c a b c

% % % # % % #Promedio

diario1b=1a÷6a 2b=2a÷6a 3b=3a÷6a 4a=1a:3a 4b=4a÷6a 5b=5a÷6a 6a=4a+5a 6c=6a÷365

A July 1996 to June 1997 0,00% 0,00% 3 100% 3 100% 0,00% 3 100% 0,01 2 1B July 1997 to June 1998 0,00% 0,00% 0,00% 0 0,00% 1 100% 1 100% 0,003

C July 1998 to June 1999 0,00% 0,00% 11 100% 11 100% 0,00% 11 100% 0,03 1D July 1999 to June 2000 0,00% 0,00% 29 100% 29 100% 0,00% 29 100% 0,08 2 6E July 2000 to June 2001 0,00% 0,00% 16 84,21% 16 84,21% 3 15,79% 19 100% 0,05 3 7F July 2001 to June 2002 0,00% 2 1,23% 161 98,77% 163 100,00% 0,00% 163 100% 0,45 57 15 51

G Total victims (G=aA:aF) 0 0,00% 2 0,88% 220 97,35% 222 98,23% 4 1,77% 226 100% 64 16 65


Right to life

Civilians killed due to the use of other prohibited weapons: gas cylinders and booby traps


* The definition of period is the same used in Chart 2.

PeriodsState agents

2

Paramilitary

543

Guerrilla groups

1

Sources: The same used in Chart 2.Notes:

%

Cases with identified alleged

perpetrators


unidentified

Total victims

6

Number of victims divided according to

specific groups

7

** The definition of girls and boys, youths and women is the same used in Chart 2.

Number of victims and percentage of alleged authorship, per period*July 1996 to June 2002

Youths **

Girls and boys **

Women **

# # # #


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b. Combatants Killed due to the Use of Prohibited Weapons From July 1996 to June 2002, 587 combatants were victims of violations of humanitarian law upon being killed outside of combat or as a consequence of the use of weapons prohibited by humanitarian regulations. Of these, 485 (82.62%) were killed outside of combat, 80 (13.63%) died as a consequence of the explosion of anti-personal land mines, and 22 combatants (3.75%) were killed due to the use of other prohibited weapons (See Chart 4, Row G). Of the 80 combatants victims of anti-personal land mines, the alleged responsib ility is attributed to the guerrilla groups for 70 victims (87.5%). In 10 of the cases (12.5%) the combatant group responsible was not identified. Guerrilla fighters were allegedly responsible for 21 deaths of combatants (95.45%) as a consequence of the explosion of other prohibited weapons. One case (4.55%) was allegedly attributed to one of the unidentified combatant groups. The use of prohibited weapons by combatant groups shows disrespect and total disregard of humanitarian regulations, especially by the guerrilla fighters, because they are responsible for the death of 328 victims (92.39%): 241 victims of booby traps or gas cylinders and 87 victims of anti-personal land mines. The high number of victims due to the use of prohibited weapons, in addition to the serious ignorance of humanitarian law by the combatant groups, is because of the lack of a real, efficacious policy regarding State prevention in cases in which alerts are given regarding possible attacks by combatant groups on municipalities or confrontations in zones near villages. This is illustrated by the serious case in Bojayá (Chocó) where, on May 2, 2003, as a consequence of the explosion of a gas cylinder used by the Farc, 119 persons died who were in church in Bellavista protecting themselves from the cross fire between the paramilitary and the guerrilla fighters. This situation could have been prevented if the State had attended the early alerts sent by the Office in Colombia of the United Nations High Commissioner for Human Rights, the Ombudsman’s Office, and human rights non-governmental organizations.


21

a b a b c d e f a b c

% % % # % # Promedio diario

1b=1a÷3a 2b=2a÷3a 2d=2c÷3a 2e=2a+2c 2f=2e÷3a 3a=1a+2e 3c=3a÷365

A July 1996 to June 1997 73 90,12% 8 9,88% 0,00% 8 9,88% 81 100% 0,22

B July 1997 to June 1998 50 94,34% 2 3,77% 1 1,89% 3 5,66% 53 100% 0,15

C July 1998 to June 1999 50 87,72% 4 7,02% 3 5,26% 7 12,28% 57 100% 0,16

D July 1999 to June 2000 75 85,23% 13 14,77% 0,00% 13 14,77% 88 100% 0,24

E July 2000 to June 2001 114 92,68% 5 4,07% 4 3,25% 9 7,32% 123 100% 0,34

F July 2001 to June 2002 123 66,49% 48 25,95% 14 7,57% 62 33,51% 185 100% 0,51

G Total victims (G=aA:aF) 485 82,62% 80 13,63% 22 3,75% 102 17,38% 587 100%

Number and percentage of combatant victims per modality of breach, per period*July 1996 to June 2002

1

Combatants killed outside

of combat Anti-personal land mines

3

Other prohibited weapons

Subtotal victims

Periods


Right to life

Combatant victims

Note:* The definition of period is the same used in Chart 2.

Total victims

#

Combatants killed in combat due to the use of prohibited weapons

#

2

%#

Sources: The same used in Chart 2.


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3. Attacks against Local Mayors and Public Servants Since 1996, in Colombia candidates for elected posts and public servants have been the object of threats,65 kidnappings and assassinations by combatant groups.66 These threats have come principally from guerrilla groups. This situation has produced the resignation and forced displacement not only of mayors but also of local administration public servants in general. Since 2002 the situation has worsened.

In a public communiqué dated July 10, 2002, the Farc demanded that all departmental, municipal and town-level public servants resign, under the following terms:

“ Since it is the State that we are confronting, in a prolonged battle that becomes worse every day, as the State has cancelled all possibilities of a negotiated political end to the violence, in coherence with our political-military ideology and in reciprocity to the measures adopted by the State against the Farc–Ep, we, the Farc–Ep, have therefore decided to demand that all departmental, municipal and town-level public servants resign, not because of who they are personally, but because they represent the State.67

This has seriously perturbed local democratic life and has hindered the exercise of the State authority in municipalities and even nationwide, given the general nature of this phenomenon. However, the situation must not be confronted by using exceptional measures, which is precisely what President Álvaro Uribe Vélez’s Government did through 2002 Decree 1837, through which a state of internal commotion was declared. These exceptional measures did not reestablish normality in the municipalities that suffered the consequences of the threats nor did they guarantee the security of the threatened public servants. In spite of the fact that 170 local mayors, out of the 420 who carried out their administration from exile in 2002,68 have returned or frequently go to their towns, 60% of them have not been able to return to their municipalities. In the provincial department of 65 “Eln Threatening Councilmen again” (“Concejales vuelven a la mira del Eln”), El Espectador Newspaper, July 30, 1998, Page 11 A; “Mayor and Aldermen Threatened by the Self-defense Groups” (“Alcaldes y ediles, en la mira de las autodefensas”), El Espectador Newspaper, December 17, 1998, Page 12A. 66 On August 15, 1997, in Simití (Bolívar), Eln Héroes de Santa Rosa front guerrilla fighters kidnapped 11 municipal administration public servants. Among the persons kidnapped, there were eight councilmen (Buenaventura Donoso Mayorca, David Torres Ruiz, Efraín Hernández Díaz, Fernando Barbas Ortiz, Hermídez Díaz Mendoza, Ismael Lario Miz, Miguel Rodríguez and Vicente Mejía Ortiz), one candidate for mayor (Gustavo Troncoso Gómez), one candidate for councilman (Tobías Uribe Velandia), and the municipal treasurer Alvis Araújo . The guerrilla fighters freed the politicians on August 26 of that same year, demanding that all of the candidates give up their political aspirations. Human Rights and Political Violence Data Bank of Cinep y Justicia y Paz (BCJP), Night and Mist (Noche y niebla) – Overview of Human Rights and Political Violence in Colombia (Panorama de derechos humanos y violencia política en Colombia), Bogota, BCJP, No. 5, 1997, Page 67. On May 21, 1999, in the city of Medellín (Provincial Department of Antioquia), the AUC paramilitary group kidnapped Piedad Córdoba de Castro, Senator of the Republic for the Liberal Party and, at that time, President of the Senate Human Rights Commission. Carlos Castaño Gil, maximum commander of this paramilitary group, claimed the responsibility for the kidnapping. On June 4, 1999, in the municipality of Necoclí (Antioquia), Senator Córdoba was freed. Human Rights and Political Violence Data Bank of Cinep y Justicia y Paz (BCJP), Night and Mist (Noche y niebla) – Overview of Human Rights and Political Violence in Colombia (Panorama de derechos humanos y violencia política en Colombia), Bogota, BCJP, No. 12, 1999, Page 84; “AUC Claims Responsibility for Kidnapping Piedad Córdoba” (“Auc reivindican plagio de Piedad Córdoba”), El Colombiano Newspaper, May 23, 1999, Page 10A. 67 “The Farc reply to the State and explain to the people” (“Las Farc responden al Estado y le explican al pueblo”), Farc press release, July 9, 2002, www.farcep.org 68 “The good and the bad of the peasant soldiers program, three months after its implementation” (“Lo bueno y lo malo del programa de soldados campesinos, tres meses después de haber comenzado”), El Tiempo Newspaper, June 2, 2003, www.eltiempo.com.


23

Arauca,69 the threats to local leaders not only continued but were also extended to other public servants. This was the case of the municipality of Arauquita where the threats by the Farc to the mayor and the councilmen70 were extended to all municipal administration public servants.71 Another concrete case occurred in the provincial department of Tolima. According to Alfredo Bocanegra, Government Secretary, “all mayors in Tolima are in danger.”72 On May 29, 2003, the Farc assassinated Belisario Tao Useche, mayor of the municipality of San Antonio.73 We add to these acts, Attorney General’s Office detentions of mayors and public servants accused of alleged connections with guerrilla groups. Later, they were freed because the Attorney General’s Office could not find any grounds on which to investigate them. 74 4. Massacres

From July 1997 to June 2001, there were 953 massacres committed, as we mentioned above (See supra I.B.2.d). 629 massacres (66%), representing 4,037 victims (69.29%), were allegedly attributed to the paramilitary; 114 massacres (11.96%), representing 658 victims (11.29%), were attributed to the guerrilla groups; and 26 massacres (2.73%), representing 204 victims (3.5%), were attributed to State agents. The combatant group allegedly responsible for 18 massacres, representing 100 victims (1.72%), was not identified. For 166 massacres, representing 827 victims (14.19%), the alleged perpetrator was not identified (See Chart 20, Columns 6a and 6c). D. Impunity and Administration of Justice

1. Status of Criminal Investigations of Violations of Human Rights

The situation of impunity regarding violations of human rights and breaches of humanitarian law in Colombia is broadly acknowledged. It is worsening now due to the bias of the present Attorney General’s Office administration; we will refer more to this topic in this report. Rarely are these violations investigated or tried and, when investigations are opened, they do not prosper. Nor do they lead to identifying the responsible parties. On many occasions the various United Nations human rights protection mechanisms have alluded to this fact:

69 Provincial department of Colombia in which three of its seven municipalities, Arauca, Arauquita and Saravena, were defined as “rehabilitation and consolidation zones” (or militarized zones) through Decree 2929 “through which some zones defined in Decree 2002 are set off” by authority of the Decree that declared an internal state of commotion. 70 “Due to Farc threats, Arauquita has no mayor and no council” (“Arauquita se quedó sin alcalde y concejo por amenazas de las Farc”), El Colombiano Newspaper, March 9, 2003, Page 3–A. 71 Office of the Procurator, The Rehabilitation and Consolidation Zone in Arauca, Special Report (La zona de rehabilitación y consolidación de Arauca, Informe especia), www.procuraduria.gov.co/noticias/ indexno.html, May 19, 2003, Bogota, Pages 7 and 8. 72 “Assassination Attempt against San Antonio Mayor” (“Atentaron contra el Alcalde de San Antonio”), El Nuevo Día Newspaper, May 29, 2003, www.elnuevodia.com.co 73 “San Antonio (Tolima) Mayor Dead” (“Falleció el alcalde de San Antonio (Tolima)”), El Tiempo Newspaper, May 30, 2003, Page 1-4. 74 “Villahermosa Mayor and Ombudsman Defend Themselves” (“Alcalde y personero de Villahermosa se defienden”), El Tiempo Newspaper, May 25, 2003, Page 1-14.


24

“The Special Representative is deeply concerned about the climate of impunity that surrounds human rights violations in Colombia. She considers that impunity contributes significantly to the perpetuation of violence…”75 “The administration of justice continues to suffer from serious weaknesses and deficiencies that help bolster the high rates of impunity for major human rights violations and breaches of international humanitarian law.”76 “The frequent occurrence of impunity continues to affect the administration of justice. In this respect, the Office was unable to observe any significant progress in terms of trials, whether criminal or disciplinary, of public officials responsible for serious human rights violations 77. Some senior military officials, either in active service or retired, who have been accused of ties to the paramilitaries and serious human rights violations, have escaped judicial proceedings, either because a military court has intervened or on account of decisions by the Attorney-General’s Office or the Office of the Procurator-General78.”79

2. Military Criminal Justice On August 5, 1997, the Constitutional Court issued 1997 Sentence C-358, in which it established the criteria to determine the ambit of military criminal jurisdiction. The sentence restricted the jurisdiction to crimes strictly related to service, within which a violation of human rights cannot be included. The Court warned that, in case of doubt as to whether a crime is related to service, the doubt should be absolved by acknowledging competence to ordinary justice to try the case. However, in reality, that jurisprudence is not being obeyed. “The military courts have continued investigating cases of human rights violations and breaches of international humanitarian law committed by members of the security forces despite a restrictive constitutional interpretation of their jurisdiction and the amendment of the military and ordinary Penal Codes80.”81 Military unit commanders with judicial duties continue to provoke collisions of competence in cases under Attorney General’s Office investigation. Some of these collisions of competence are decided in favor of the military criminal justice, such as, for example, the cases of Brigadier General Jaime Humberto Uscátegui and Lieutenant Colonel Hernán Orozco Castro, investigated for their participation in the Mapiripán (Provincial Department of Meta) massacre that occurred in May 1997. Likewise, the High Judicature Council put under the competence of military criminal court justice the

75 Report Submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on Human Rights Defenders, April 2002, (E/CN.4/2002/106/Add.2), Paragraph 280. 76 Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia, February 2002 (E/CN.4/2002/17), Paragraph 243. 77 Note from the quoted text: The Freedom of Association Committee of the Governing Body of the International Labour Organization (ILO) reports that out of all the cases of murders, kidnappings, attacks or threats perpetrated against trade unionists which it had examined, in only one had potential culprits been identified. See report GB.285/9, para. 376. 78 Note from the quoted text: Examples include General Rito Alejo de Río, General Fernando Millán and Admiral Rodrigo Quiñones. 79 Report of the United Nations High Commissioner for Human Rights on the Office in Colombia , February 2003 (E/CN.4/2003/1 3), Paragraph 82. 80 Note from the quoted text: The aerial attack by the Colombian Air Force which killed dozens of civilians in Santo Domingo (Arauca) in December 1998 is still under military jurisdiction, while military courts have taken cases such as the reported collusion between members of the 14th Army Brigade in Segovia and members of AUC in August 2002. 81 Report of the United Nations High Commissioner for Human Rights on the Office in Colombia , February 2003 (E/CN.4/2003/1 3), Paragraph 82


25

investigation for the crime of forming and encouraging private justice groups, against Brigadier General Fernando Millán Pérez and another high-ranking officer assigned to the Army Fifth Brigade.82 Also, cases where the Inter-American Commission on Human Rights has established State responsibility are tried under military criminal justice.83 Although it is true that some cases have been transferred to ordinary justice, the figures shown by the military forces contain crimes that do not represent serious violations of human rights (corruption, drug trafficking, theft) and others that, appearing as homicides, personal injury and rape, do not correspond to the most important cases of violations of human rights that have had an essential impact on the situation of Colombia.84 In addition, 87% of the transferred cases correspond to acts committed by low-ranking military personnel (from soldiers to captains). No process against any officer with the rank of colonel or general was transferred to ordinary court justice during the period from August 1997 to April 1999.85 3. Attacks on Prosecutors, Judges, and Lawyers

The effects of the sociopolitical violence on prosecutors, judges, and lawyers (victims of threats and aggression because of their profession) aggravate the situation of impunity. From January 1999 to December 2001, 272 prosecutors, judges, lawyers, members of the judiciary branch were victims of sociopolitical violence in Colombia.86 2001 was the annual period with the greatest violence against this sector, with a total of 125 victims, representing an average of one victim every three days.

“The Special Representative considers that the lack of adequate protection for judicial officials in the performance of their functions, as well as for witnesses and victims, is an important factor contributing to impunity in Colombia. Attacks, threats and intimidation are regularly experienced by judicial officials. At least 39 judges, lawyers and prosecutors were victims of attacks between February 2000 and June 2001. Most of them are targets

82 More information in: Danilo Rojas Betancouth, “Impunity and Conflicts of Jurisdiction”, in Pensamiento jurídico (Legal Thought), Bogota, Universidad Nacional de Colombia, Volume 15, September 2002, Page 303. 83 The assassination of Leonel de Jesús Isaza Echeverri, allegedly committed by Nueva Granada Battalion soldiers assigned to the Army V Brigade, is an example of this situat ion. Military Criminal Attorney´s Office 11 is forwarding the investigation of the extra-judicial execution of Leonel de Jesús Isaza Echeverri and of the violation of the personal integrity of María Fredesvinda Echeverry and of the minor Lady Andrea Isaza Pinzón. In spite of the fact that the Inter-American Commission on Human Rights in its report No. 64 dated April 6, 2001, made the recommendation to the Colombian State that it should carry out “an impartial, effective investigation under ordinary court jurisdiction for the purpose of judging and punishing those responsible for the extra-judicial execution of Mister Leonel de Jesús Isaza Echeverry”. The Military Criminal Instruction Court that is trying the case refused to transfer the dossiers to ordinary court justice through communication dated September 4, 2001 because it considered that the investigated acts occurred “in acts while in service, which are the exclusive competence of Military Criminal Court Justice”. 84 This information is taken from the document Administration of the Honorable Supreme Court (Gestión del honorable Tribunal Superior)published by the Military Forces General Command, corresponding to the period from August 1997 to April 1999, Bogota, mimeo, Page 7. 85 See Colombian Commission of Attorneys (CCJ), Overview of Human Rights and Humanitarian Law in Colombia , 2000 Progress Report (Panorama de derechos humanos y derecho humanitario en Colombia, Informe de avance sobre 2000), Bogota, CCJ, October 2000, Pages 42-43. A recent case in which, despite all of the evidence, it has not been permitted that ordinary court jurisdiction assume the case, is the one related to Florentino Castellares Gil, the minor Nilson Hernández Jerez and his mother Monguí Jerez Suárez, in Cantagallo (Bolívar), whose rights to life and to personal integrity were allegedly violated by members of the Public Force, on September 24, 2002. The military criminal court justice is presently trying this case. 86 This report takes into account cases of members of the judiciary branch who are not necessarily lawyers. Municipal ombudsmen are frequently lawyers who work under the Public Ministry. Public servants of the Attorney General´ s Office Technical Investigation Corps (CTI is the Colombian acronym) are also included as are the agents of the same entity who did or do exercise judicial labors.


26

because of their investigations into the activities of paramilitary groups. It has been reported that judicial officials are even more vulnerable when they are investigating cases involving high State officials or public servants (i.e. the Chengue, Gabarra and Tibú investigations); this compromises the responsibility of the State.”87

The vulnerability of these public servants is ever increasing, not only because the State does not offer adequate protection programs but also because it does not confront the causes of these attacks and because the violations of human rights of which these persons are victims remain unpunished. 4. Reservation to the Competence of the International Criminal Court

On August 5, 2001, Colombia ratified the Statute of Rome. Notwithstanding, it declared the reservation contained in article 124 thereof. That means that, for a period of seven years starting on November 1, 2002, the Court will not be competent to try war crimes committed in Colombia or committed by Colombian nationals. In spite of the fact that the reservation made pursuant to said article can be withdrawn at any moment, the present Government stated that it would maintain it, arguing that this represents “an open window” to an eventual peace process.88 Obtaining peace in Colombia assumes justice for the crimes committed against the population. Given the magnitude of the problem of impunity and rejection of justice, the International Criminal Court is a tool for victims and the State must guarantee the possibility for them to accede to it under any circumstance.

E. Peace Talks

1. Andrés Pastrana Arango’s Government (1998 – 2002)

a. Peace talks with the Farc During President Andrés Pastrana Arango’s Government, peace talks were forwarded with the Farc guerrilla group. The formal initiation of the peace talk process was on January 7, 1999, after decreeing the demilitarization of a 42,000 km2 zone. From the very beginning, the process was submitted to continuous serious incidents that almost ended it. The attempt to dialogue was badly designed from the beginning because it was not based on a serious Government policy for the protection and respect of human rights and of humanitarian law. Nor was it based on a respectful Farc behavior regarding the inhabitants’ rights. The Farc committed serious breaches of humanitarian law and used the demilitarized zone for other purposes than the peace talks (for holding kidnapped persons, as a refuge for carrying out military operations outside the zone, not allowing the Prosecutor’s Offices to function, and installing guerrilla tollbooths).

87 Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on Human Rights Defenders, April 2002, (E/CN.4/2002/106/Add.2), P aragraph 188. 88 “The exception is still effective: Government” (“Por ahora sigue la salvedad: Gobierno”), El Tiempo Newspaper, September 4, 2002, Page 1-11.


27

It is understandable that the demilitarized zone had to be controlled to prevent abuses from being committed there. The problem is that the Government always tried to control it in a manner that was not transparent. The peace talks went through a serious crisis in January 2002. The Government said that it would not suspend military flights over the zone or controls over foreigners who wished to visit the zone because these were measures that had existed from the beginning of the process. It was obvious that the measures had actually been unilaterally adopted in October 2001. If the Government had said that the zone required controls for the process to work properly, even if those controls were never agreed upon, its attitude would have been perceived as more transparent and there would have been fewer motives for doubting its will for peace. Also, if the Farc had not gotten up from the table several times to express the undeniable need that the State confront paramilitary groups, there would have been fewer doubts regarding the Farc’s real commitment to seeking a political solution to the armed conflict. The Government terminated the peace talks with the Farc on February 20, 2002, announcing the end of the demilitarized zone. The arguments regarding controls over the zone and the proof of violations of humanitarian law and of criminal law committed within the zone were the grounds the Government gave for making its decision. b. Peace Talks with the Eln

The peace talks with the Eln differed from those with the Farc. Before the beginning of the Pastrana administration, the Eln had made a proposal for dialogue and negotiation including the direct participation of different sectors of the civilian society and accepted that representatives from different sectors of the society be facilitators. This guerrilla group showed itself willing to adopt determinations aimed at respecting the rights of the civilian population and reducing the intensity of the armed conflict. However, it did not practice what it announced. The agreements entered into in Havana with the Eln in December 2000 and January 2001, regarding establishing a demilitarized zone, proved that it was in fact possible to negotiate a demilitarized zone to forward peace talks with guerrilla groups, subject to specific game rules to guarantee the rights of the population and the civilian authorities’ remaining in the zone, and even to prevent the guerrilla group from using the area to strengthen itself militarily. This had not been achieved with the Farc. In addition, the Eln accepted that the behavior of the parties in the zone was subject to national and international verification. The establishment of a demilitarized zone to forward the peace talks with the Eln did not fail for lack of game rules. It failed because the social organizations in the region (some influenced by the paramilitary) were opposed to it and because of the Government’s intention to shift to the Eln, the guerrilla group in the southern territory of the provincial department of Bolívar, the responsibility of combating the paramilitary groups who were fighting for the control of this territory. The Government’s arguments regarding the responsibility of “freeing” the region from paramilitary groups clearly prove that the


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Government did not contemplate serious, decided commitments to confront the paramilitary within its policies.

In spite of difficulties, the peace talks continued. Andrés Pastrana Arango’s Government’s unilateral termination of the peace talks with the Eln in May 2002 does not seem to have any other explanation than the Government’s lack of willingness to continue negotiating the conditions for a truce with cease fire and end to the hostilities. c. Balance

A balance of the peace talks between Andrés Pastrana Arango’s Government and the Farc and the Eln guerrilla groups enables us to conclude that the dialogues were not included in a State policy for peace. The Government did not have any plan or any coherent methodology for the negotiations. It merely started to dialogue in a totally improvised manner without measuring the consequences of its actions. The Government did not have a clear understanding of what it was willing to negotiate in a substantive agenda, nor of what it should demand in order to initiate dialogues or as compensation for its “shows” of peace. The Government’s establishing the demilitarized zone to forward conversations with the Farc without establishing any game rules for protection to the population or to civilian authorities and the unilateral termination of the dialogues with the Eln clearly illustrate this fact. The actions of the guerrilla groups against the civilian population and the civilian objects greatly contributed to the failure of the peace talks with Andrés Pastrana Arango’s Government. The problem was not only their breaches of humanitarian law, but also about their speeches to justify those actions and deny their responsibility for them. The failure of these processes, especially the failure of the process with the Farc that lasted three years without any tangible result, resulted in promoting an attitude definitely inclined toward a military solution to the conflict, without many scruples regarding respect of human rights and of humanitarian law.

2. Álvaro Uribe Vélez’s Government (2002 – 2006) The present Government has not shown any real willingness to initiate a process of peace talks with the guerrilla groups. On the contrary, the measures that the Government has taken within the framework of the “democratic security policy” seek to intensify the war. The informers’ network, the peasant soldiers program, granting pardons and amnesties for those who individually abandon the ranks of outlawed armed groups, and the new re-entry program are all aimed at strengthening the Armed Forces and encouraging a policy of denouncement. This Government’s attitude is to confront the guerrilla groups and seek reconciliation with the paramilitary groups. From its very beginnings, it established a space for negotiations with the paramilitary groups, forwarded in absolute confidentiality. As we mentioned in the previous section on negotiations with the paramilitary, the Government promoted a legislative reform to enable it to negotiate with these groups and issued decree 128 to grant


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amnesties and pardons to the members of outlawed armed organizations.89 Although these pardons can be granted to any deserters (including guerrilla fighters), most of the natural beneficiaries of 2003 decree 128 will be paramilitary fighters who are members of the groups with which the Government negotiates peace, who do not have any legal actions against them.

On the contrary, the Government’s attitude toward guerrilla groups is diametrically opposed. Through his many declarations, the President of the Republic has made the possibility of a negotiation with the guerrilla groups more and more remote. Expressions such as “horde of bandits”, referring to the Farc, or “there will be no demilitarized zone, not even one millimeter”, in response to the petitions made by this group to establish a demilitarized zone, have been interpreted as a complete negative to negotiation. 90 The President has been emphatic in classifying the Farc as a terrorist group; he has not used this classification to refer to paramilitary groups. At the High Institute of War (Escuela Superior de Guerra), the President stated,

“The friendly get-together has ended, the cajoling treatment is finished, fawning the terrorists is over and done with; we have to isolate the terrorists, and defeat them and defeat them (sic). We have to recover our jungles for their ecology, for their resources and we have to take the terrorists out of there too.

Let this division flourish, for us to know how to proceed, to destroy those professional assassins and give an opportunity to those who preserve some noble ideological goal.”91

Days later the President stated, “We have to finish them off [the guerrilla]. No more privileges for Marulanda and company.”92 On the other hand, with an attitude that appears contradictory, the Government has promoted an ambitious re-entry program. According to Ministry of Defense figures, 86% of ex-combatants who have entered the program since August 2002 are from guerrilla groups.93 However, it is worth mentioning that these are individual demobilizations, not included in the framework of a peace process, and that they have generated a debate because, far from being a tool for peace, they are being used as an instrument of war. In fact, the Government’s objective is for demobilized persons to become informers. Vice-minister of Defense Andrés Peñate accepted that the demobilization policy could become a central element of the “democratic security policy”. 94 As to the role of the United Nations within an eventual peace process, the Government has displayed contradictory attitudes. Although it stated that the participation of this organization is necessary, there is no clarity as to what role the United Nations would play and the Government has strongly attacked the Special Representative of the Secretary 89 See supra , point I.B.3, Secret Negotiations and Impunity. 90 “Is Uribe Closing the Door to the Farc?” (“¿Uribe cierra la puerta con las Farc?”), El Tiempo Newspaper, April 17, 2003, Page 1-9. 91 “Uribe is Studying the Possibility of Lifting the Reservation to the ICC” (“Uribe está estudiando levantar la reserva a la CPI”), El Tiempo Newspaper, May 9, 2003, Pages 1-2. 92 “Parole for Atrocious Crimes” (“Libertad condicional para delitos atroces”), El Tiempo Newspaper, May 17, 2003, Page 1-6. 93 “Peace Policy or Weapon of War?” (“¿Política de paz o arma de guerra?”), El Tiempo Newspaper, May 18, 2003, Pages 1-2 and 1-3. 94 Ibidem.


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General for Colombia, Mr. James Lemoyne, the person responsible for this topic. Reacting to recent declarations made by Mister Lemoyne, the Minister of Defense stated that they “defended terrorist interests” and that his declarations were “a justification for the Farc, a terrorist organization internationally acknowledged as such, to recur to violence.”95 All of the above demonstrates the Government’s lack of willingness to establish a serious peace process within the framework of a policy of human rights and humanitarian law, guaranteeing the participation of the civilian society in general and of victims in particular. For now, the initiatives forwarded, presented as alleged steps toward seeking reconciliation, are aimed at promoting individual desertion in exchange for legal or economic benefits for those who supply information. This is a war strategy, essentially aimed at combating guerrilla groups and legalizing paramilitary groups. F. Forced Displacement

During the last six years, forced displacement has dramatically increased. According to Human Rights and Displacement Consulting Office (Codhes is the Colombian acronym), a non-governmental organization specialized in this field, approximately 1.924.853 persons were forcibly displaced from 1997 to 2002.96 In 2002, 412.553 persons were forcibly displaced, more than doubling the number in 1996 (approximately 180.000 displaced persons): this represents an average of 1.130 displaced persons per day. Forced displacement is one of the most serious expressions of massive, systematic violations of human rights and breaches of humanitarian law in Colombia. It is a mechanism of repression against the civilian population that is one of the counter-insurgent military strategies and simultaneously the population has been the victim of guerrilla group actions and of armed confrontation. Forced displacements frequently coincide with actions to control territories that are either militarily or economically strategic. Most forced displacements occur after massacres, selective assassinations, forced disappearances, generalized threats, and indiscriminate bombings. They also happen after an intensification of the armed confrontation. 97 Paramilitary groups, which have consolidated themselves through Public Force action, acquiescence or omission, continue to be the main parties responsible for forced displacements; they were responsible for 30%

95 “United Nations Representative’s Declarations Defend Terrorist Interests” (“Declaraciones de enviado de la ONU defienden intereses de terroristas”), El Espectador Newspaper, May 20, 2003, www.elespectador.com 96 Annual statistics pursuant to Codhes: 1997: 257.000 displaced persons; 1998: 308.000 displaced persons; 1999: 288.000 displaced persons; 2000: 317.375 displaced persons; 2001: 341.925 displaced persons; 2002: 412.553 displaced persons. Social Solidarity Network (Red de Solidaridad Social) (RSS is the Colombian acronym), a government entity in charge of coordinating State attention for displaced populations, estimated that 1.002.360 persons had been forcibly displaced during this period (1997-2002). Annual statistics according to RSS: 1997: 9.643 displaced persons; 1998: 32.587 displaced persons; 1999: 25.129 displaced persons; 2000: 265.982 displaced persons; 2001: 322.959 displaced persons; and 2002: 346.060 displaced persons. The discrepancy between the figures is due in part to the methods and sources used. The State figures only gather the figures originating from the registration of displaced persons in the Sole Registry System (SUR is the Colombian acronym). That system does not cover all of the national territory and the mechanism to become registered in SUR in many cases implies time-consuming formalities without clear criteria for inclusion or rejection. In addition, many displaced persons have expressed their reluctance to register with the authorities for fear of suffering harassment or being fingered. 97 During the year 2000, 42% of the forced displacements were generated by intimidations and threats, 20% out of fear, 11% after massacres, 10% by intentional homicides of protected persons and extra-judicial executions, and 8% by actions of war. Codhes – Information System on Displacement and Human Rights (Sisdes), “Year 2000 national survey of homes”, in Support Group to Organizations of Displaced Persons (GAD), Report on Forced Displacement in Colombia, January 2000 – May 2001 (Informe sobre el desplazamiento forzado en Colombia, enero de 2000 – mayo de 2001), Bogota, GAD, August 2001, Pages 6-7.


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of the cases in the year 2003. State agents were directly responsible in less than 1% of the cases and guerrilla groups were responsible for 14% of the cases.98 The State’s noncompliance of its duty to protect persons during forced displacement leads to the fact that most displaced persons remain for several years in conditions of social, economic, and cultural exclusion. Displaced communities and their leaders are frequently victims of discrimination and of violations of their fundamental rights in the places where they are received and this has provoked successive displacements. Especially concerning is the effect that forced displacement has on women and children (who represent more than 50% of the displaced population), and on ethnic groups, such as Afro-Colombian and Indigenous populations. The constant increase in the number of victims of forced displacement is proof of the Colombian State’s lack of willingness to adopt a total policy to attend forcibly displaced populations, which would work in connection with a general human rights policy. The progress obtained by the creation of the regulatory and institutional framework to attend forced displacement since 1997, when law 387 was adopted, has not resulted in concrete actions to prevent forced displacement or in actions to protect the displaced population’s fundamental rights. Since forced displacement was classified as a crime in 2001,99 there is no information about any investigations that have been able to pinpoint the perpetrators, much less punish them. Emergency attention has not been adequate either, among other reasons, due to insufficient budget allotment. The State has not developed programs to guarantee definitive, lasting solutions or to indemnify the violated rights of the victims of forced displacement. Since August 2002, the policies of the Government of President Álvaro Uribe Vélez have meant a leap backwards in attention to forcibly displaced populations. The policy of “democratic security”, which disregards the principles of distinction and of immunity for the civilian population, endangers civilians and may increase forced displacement. In addition, the State has not taken efficacious actions in situations of risk that were alerted by non-governmental organizations and by the Ombudsman´ s Office to prevent forced displacement. To illustrate, we mention the case of forced displacement of 150 persons in the Afro-Colombian community of Jiguamiandó (provincial department of Chocó) in March 2003, the successive displacements of indigenous in the communities of Sierra Nevada de Santa Marta (provincial departments of Magdalena, Cesar, and Guajira) and the massive displacements in November 2002 and January 2003 in the eastern part of the Provincial Department of Antioquia. The repeated violations of human rights and breaches of humanitarian law that provoke forced displacement calls in question the functionality of the early alert system within the framework of the democratic security policy. Not even the reform of that prevention and

98 In 52% of the cases two or more actors would be the responsible parties and in the rest of the cases the responsible parties are not known, see United Nations document, Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia, E/CN.4/2003/13, February 24, 2003, Paragraph 88. 99 Crime incorporated in Heading II (Crimes against Persons and Goods Protected by International Humanitarian Law), Penal Code Article 159.


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protection instrument in October 2002100 encouraged the definition and application of a prevention policy based on the principles of a social State of law that would ensure the processes of justice, truth, and indemnity for victims, among others and thus avoid the repetition of events that violate human rights. The absence of guarantees of protection has also affected displaced populations in the places where they arrive, as they are frequently victims of assassinations, threats and, hostilities there too. The Government’s economic reforms, aimed at meeting the fiscal adjustment commended by international financial institutions and at giving a priority to military expense over social expense, have made the possibility of ensuring the displaced population’s basic needs even more difficult. The reform or elimination of State agencies that are members of the National Displaced Population Attention System101 has made developing specific programs for the displaced population difficult. This is the case of the Colombian Institute for Agrarian Reform (Incora is the Colombian acronym) and the National Institute for Urban Reform (Inurbe is the Colombian acronym) in charge of facilitating the access to land and to dignified housing, respectively.102 For health, the reform regarding financing sources for attending displaced populations has made access to service and the quality of the provided service considerably difficult.103 Within this framework of rationalization and re-allotment of resources, the Government has given priority to returning displaced populations instead of relocating or resettling them. This decision, along with the lack of protection that persons in a situation of forced displacement face, has led to returns that do not comply with the principles of willingness, safety, and dignity. In the case of the return of near 170 persons on October 26, 2002 to the municipality of La Palma (Cundinamarca), a process accompanied by local and national authorities, the information received on the increase of selective assassinations in this municipality after the return is concerning and the report of victims of anti-personal land mines in the settlements where the population returned is also concerning. 104 This set of policies disregards the guiding principles for internal displacements,105 especially those of guaranteeing lasting solutions and total indemnity to the victims.

100 In October 2002, the Government created the Inter-institutional Early Alert Committee made up of the Ministry of the Interior and of Justice, the Ministry of Defense, and the Vice-presidency of the Republic. It was responsible for studying risk reports issued by the Ombudsman’s Office and for generating and transmitting early alerts. According to the Government, “from the time it entered into operation in November 2002 to the end of the month of February 2003, the Committee has studied, generated and transmitted 13 early alerts, out of a total of 27 risk reports sent by the Ombudsman’s Office”. See: Colombia Government’s answer to the report of the High Commissioner on the Situation of Human Rights in Colombia , United Nations document E/CN.4/2003/G/64, April 2, 2003, Pages 7 and 8. 101 The National System of Total Attention to Populations Displaced by Violence was created by 1997 Act 387 (Heading II). Its purpose is to totally attend the population displaced by violence in order to enable its re-entry into Colombian society within the framework of voluntary return or resettlement. 102 March 10, 2003 Decree 555 that creates the National Housing Fund “Fondavivienda” to replace the National Institute Social Interest Housing and Urban Reform - Inurbe, does not clearly establish the obligation that Inurbe had pursuant to Act 387 Article 19, to develop special housing programs to attend the needs of displaced populations. Also, through 2003 Decree 1292 Incora was terminated and liquidated. The decree set forth that Incoder would assume Incora’s functions; however, in the objectives of that institution there is no mention whatsoever of forced displacement. 103 November 2002 Circular 042 issued by the Ministry of Labor and Social Security on sources of financing for health attention to displaced populations conditions health service provision to displaced persons to the town hall of the municipality of origin assuming the economic responsibility for such services. 104 “The Return to La Palma” (“El retorno a La Palma”), El Tiempo Newspaper, October 27, 2002, Pages 1-26. 105 Report of the Special Representative of the Secretary General on Internal Displacement, Mr. Francis M. Deng, E/CN.4/1998/53/Add.2, February 11, 1998.


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II. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS IMPLEMENTATION ANALYSIS

A. The Responsibility to Respect and Guarantee the Rights Contained in the

Covenant (Article 2, Number 1)

1. Andrés Pastrana Arango’s Government (1998 – 2002): National Security Law

During Andrés Pastrana Arango’s Government, law 684 on security and national defense was issued on August 13, 2001. Said act put the effectiveness of the social, democratic rule of law in jeopardy and went against the State’s responsibility to respect the rights acknowledged in the International Covenant on Civil and Political Rights and guarantee them to all individuals subject to its jurisdiction. First, this law granted undue powers and prerogatives to the military forces, such as attributing them functions of judicial police. It did away with the time limit of 36 hours to turn over a person captured in flagranti to a judicial authority. This means that the military forces will be able to detain persons for an indefinite period of time and interrogate them in the military quarters, all of which is expressly prohibited in the 1991 Constitution. Second, this law created new mechanisms of impunity for the Public Force through measures such as diminishing the time periods granted to carry out disciplinary investigations for violations of human rights. Under the pretext of regulating "the legitimate use of force", law 684 also authorized establishing the presumption that State security agents act in legitimate defense, thus, instituting a legal ground to justify violations of human rights in order to waive the criminal responsibility for such violations. Third, this law invented a new state of exception not provided for in the Constitution, consisting of the so-called “theaters of operations”. These were zones in the national territory where the Pub lic Force would prevail over local civilian authorities, thus enabling a restriction of fundamental rights, contrary to the Constitution and to international treaties. Fourth, this law went against the Rule of law because, not only during a state of exception but at all times and in all places, through different means, it established the primacy of military authority over civilian authority, which contradicted the Constitution and Colombia’s international commitments. In practice, this law took away the President of the Republic’s constitutional power to be leader of the Public Force as it delegated that power to the Minister of Defense and to the military commanders. Using the same logic, it obliged the Attorney General´ s Office to submit reports to the national Government and to the Ministry of Defense, which is against the independence of the judicial branch. Along the same lines, it established for all civilian authorities the duty to furnish any information that military commanders might request. Fifth, this law destroyed the principle of separation of powers because it enthroned a fourth power (different from the legislative, executive and judicial powers), the "national power", in which public authorities and citizens were merged without any distinction


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regarding their responsibility in performing the State security and defense functions proper to a Rule of law. If this law were fully applied, the country would be ruled by anti-democratic principles by virtue of which citizens would be obliged to collaborate in order to obtain some “national objectives” defined secretly by the high-ranking military and by the President of the Republic’s representatives, as in any totalitarian State. The Constitutional Court declared 2001 law 684 completely unconstit utional through 2002 Sentence C-251, based on the following considerations: The three branches of public power cannot be merged under the executive power to adopt public order policies based on ends also defined by the executive branch, and the primacy of civilian power over military power must be guaranteed. In accordance with the principle of pluralism, the society and the State cannot merge under the command of the executive power and much less ignore the autonomy of citizens and their basic freedoms, such as the freedom of expression and communication, and the right to exercise political opposition. Individuals cannot be totally subordinated to the executive power nor to the Public Force. In compliance with provisions contained in international treaties, pursuant to which the civilian population is distinguished from combatants, the civilian population cannot be imposed duties that involve it in the armed conflict. The legal regime of a security policy and the regulations that it develops cannot be more burdensome regarding rights than a regime under a state of exception. Nor can powers be granted to authorities that legally and operationally go beyond those they could be granted under a state of exception. The security policies implemented cannot violate fundamental rights. Finally, the Constitutional Court declared that it is possible that functions and procedures relating to security and national defense be expressed as a system, “under the condition that the duty that an individual has to collaborate with justice to confront criminal manifestations should not disregard the individual’s freedom or imply that the individual replaces the authorities or excuses them from carrying out their basic duties in a social Rule of law.”106 2. Álvaro Uribe Vélez’s Government (2002 – 2006): Constitutional Reform Bill of Law After the declaration of unconstitutionality of 2001 Security law 684, and based on the difficult situation of public order in Colombia and on the international fight against terrorism, the new Government found a perfect context to state that the Political Constitution of Colombia, and consequently the Constitutional Court, hinder the State from having the tools it needs to fight delinquency.

106 Press Release on the Unconstitutionality of the Security and National Defense Law (2001 Act 684), Constitutional Court, April 11, 2002. 2002 Sentence C-251, presiding judges: Eduardo Montealegre and Clara Inés Vargas, April 11, 2002.


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One year after the declaration of unconstitutionality of 2001 law 684, President Álvaro Uribe submitted a constitutional reform bill of law on April 23, 2003. The bill of law (2003 Legislative Act 223), which has been approved in four of the eight debates that it must go through, seeks to restrict the right to intimacy and the right to freedom without any prior court order and grants powers of judicial police to the military forces. That is to say that Articles 15, 28, and 250 of the Political Constitution would be reformed. The bill of law statement of causes presented by the Ministry of Defense argues that granting functions of judicial police to the military forces is valid because there is a need for the military forces to participate in maintaining public order and in fighting terrorism. Therefore, the bill of law provides for military forces to participate in judicial police units under the responsibility of the Attorney General’s Office and for them to have the functions of collecting evidence, gathering and analyzing information, performing searches and making arrests without a warrant, doing wire tapping and recording private communications, in addition to other functions granted to them through a statute law. The Chairperson’s Statement on the situation of human rights in Colombia, adopted on April 25, 2003 after negotiation with the Government of Colombia, expressly called upon the Colombian State to abstain from granting, by law, permanent powers of judicial police to the Public Force. The requirement (paragraph 13 in the Chairperson’s Statement) imposes on the Government the obligation of withdrawing the constitutional reform bill of law presently being discussed in Congress. On April 4, 2003, the United Nations High Commissioner for Human Rights expressly urged the Government and the Congress to “not to introduce any rules in the Colombian legal system that would enable members of the military forces to exercise police or other functions incompatible with the independence of the justice system.”107 This is not the first time that the United Nations has urged the Colombian Government not to grant powers of judicial police to the military forces. Along the same lines, in 1997 the United Nations Human Rights Committee stated, after studying the fourth periodical report on Colombia:

"The Committee is concerned that the military and members of security or other forces allegedly continue to exercise special powers over civilians and civilian authorities, including judicial authorities, granted to them through the establishment of Special Public Order Zones by decrees no longer in force. The Committee is particularly concerned by the fact that the military exercise the functions of investigation, arrest, detention and interrogation. The Committee expresses its deep concern at the recent proposals for constitutional reform aiming at suppressing time-limits on states of emergency, eliminating the powers of the Constitutional Court to review the declaration of a state of emergency, conceding functions of the judicial police to military authorities…”108

107 Report of the United Nations High Commissioner for Human Rights on the human rights situation in Colombia , February 2003 (E/CN.4/2003/1 3), Paragraph 169. 108 Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, CCPR/C/79/Add.76, 59 session, 5 May 1997, Paragraphs 19 and 23.


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In addition, after its visit to Colombia in 1988, the Working Group on Enforced or Involuntary Disappearances cautioned that powers of judicial police granted to military forces facilitate forced disappearances.109 Likewise, the Special Rapporteurs on torture and on extrajudicial, summary or arbitrary executions, who visited Colombia in 1994, stated in their report to the Commission on Human Rights in 1995 that “arrests and gathering of evidence for prosecution, should be carried out exclusively by civilian judicial police.”110 And the Special Rapporteur on the independence of judges and lawyers, who visited Colombia in 1996, reiterated the above.111 In a similar manner, after its third visit to Colombia in 1999, the Inter-American Commission on Human Rights recommended “[t]he State should take measures to ensure that the State’s public security forces do not exercise improper influence over the administration of criminal justice or individual criminal proceedings.”112 According to its mandate, the Office of the High Commissioner for Human Rights in Colombia sent a communiqué to all the members of Congress on May 13, 2003, indicating the reasons for which the bill of law is contrary to the obligations of the Colombian State regarding human rights. In Geneva, the United Nations High Commissioner for Human Rights issued a pronouncement along the same lines on May 22, 2003, reaffirming the observations expressed by the Director of its Office in Colombia. Through the Minister of Defense, the Government of Colombia reacted to the communiqué from the Office of the High Commissioner. In radio declarations, she stated that Mister Michael Frühling, Director of the Office in Colombia, should not criticize the judicial police powers for the military, “because in his country, Switzerland (sic) the military had those powers”. Afterwards, in the Congress of the Republic, she said that it was not certain that the Government had promised the United Nations Commission on Human Rights that it would not present the constitutional reform bill of law, and that, at any rate, if someone had promised that, it had been done without consulting the President of the Republic. However, it is important to mention that the Chairperson's statement of the Commission on Human Rights was adopted in consensus with the Government of Colombia represented by the Vice-president of the Republic and by the Director of the Presidential Human Rights and Humanitarian Law Program, along with the Permanent Representative of the Mission of Colombia before the United Nations in Geneva.

109 Report of the Working Group on Forced and Involuntary Disappearances, Report Made in Colombia by Two Members of the Group (October 24 to November 2, 1988), Document E/CN4/1989/18/Add.1, February 1989, Paragraph 132. 110 Joint report of the Special Rapporteur on the Question of Torture, Mr. Nigel S. Rodley, and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mr. Bacre Waly Ndiaye, document E/CN.4/1995/111, Paragraph 119. 111 Report of the Special Rapporteur on the Independence of Judges and Lawyers, document E/CN.4/1998/39/Add. 2, Paragraph 185. 112 Inter–American Commission on Human Rights, Third Report on the Human Rights Situation in Colombia, 26 February 1999, OEA/Ser.L/V/II.102, doc. 9, rev. 1, Chapter V, E, Paragraph 9.


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B. Existence of an Effective Recourse (Article 2, Number 3)

1. Attorney-General’s Office a. Retrogression in the Attorney-General’s Office

Human Rights Unit of the Attorney-General’s Office had made some efforts from 1995 to 2001113 to overcome impunity and had made advances in investigations against high-ranking officers of the Public Force involved in violations of human rights. The present Attorney General stopped these small but significant advances short when he assumed his post on July 31, 2001. In an ostensible, decided manner, the Attorney General has taken the importance away from violations of human rights committed by members of the Public Force and by the paramilitary. To do so, he has unduly interfered, in detriment of the victims’ rights, in investigations underway. United Nations human rights mechanisms have stated their concern regarding these events: the High Commissioner, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on violence against women, and the Special Representative of the Secretary General on human rights defenders.114

“The Office is concerned about the changes that have occurred since the appointment of the new Attorney-General - affecting the orientation of his Office and involving the dismissal of certain officials, among other things - which have raised serious fears about the prospects for strengthening the institution and its commitment to combating impunity. Several events have called into question the independence and autonomy of prosecutors in their investigations into human rights violations, particularly those involving paramilitary groups and public officials. One example of this is the investigation of General Rito Alejo del Río for organizing and supporting military groups: a warrant for pre-trial detention was issued after he had made a statement. Both the Vice-President of the Republic and the Minister of Defence publicly criticized the issuance of the arrest warrant by the prosecutor in charge of the case; this constitutes serious interference in the administration of justice. The new Attorney-General expressed disagreement with the preventive injunction, a position that led to the resignation of both the Deputy Attorney-General and the Director of the Human Rights Unit of the Attorney-General’s Office.”115

From the beginning of his administration, the Attorney General criticized the fact that the Human Rights Unit of the Attorney-General’s Office concentrated on cases against members of

113 To attend insistent recommendations from the international community regarding impunity in some manner, the Human Rights and International Humanitarian Law Unit began to function in 1995; it had competence throughout the Colombian territory for some cases of violations of human rights and breaches of International Humanitarian Law. 114 See Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia (document E/CN.4/2002/17, Paragraphs 110, 244 to 252, 359 and 383), Report of the Special Rapporteur on the Independence of Judges and Lawyers, Dato' Param Cumaraswamy (Document E/CN.4/2002/72, Paragraphs 27 to 36), Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on human rights defenders (Document E/CN.4/2002/106/Add. 2, Paragraphs 195 to 200), Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Ms. Radhika Coomaraswamy (Document E/CN.4/2002/83/Add. 3, Paragraphs 16 to 21), Speech Made by the United Nations High Commissioner for Human Rights, Miss Mary Robinson, to the Human Rights Commission when presenting her report on Colombia, April 17, 2002. 115 Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia, February 2002 (E/CN.4/2002/17), Paragraphs 244 and 245.


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the Public Force. “Over a dozen current and former justice officials described Osorio as having damaged morale among prosecutors and investigators and undermined the prospects of achieving justice in key cases.”116 The Attorney General is not empowered to intervene in the decisions that the other prosecutors must make while carrying out their investigative and accusatory activities. However, the Attorney General has arbitrarily intervened in investigations underway and has even dismissed prosecutors for their having ordered investigations against Army generals.117 After her visit to Colombia in October 2001, the Special Representative of the Secretary-General on human rights defenders wrote:

“This case (the investigation of General Rito Alejo del Río) calls into question the autonomy and independence of the investigating prosecutor. The Inter-American Commission on Human Rights, in a press release dated 13 August 2001, expressed serious concern at these events which, “by inhibiting and restraining the task of the Unit, restrict the independence and efficiency of the administration of justice and the battle against impunity in Colombia”. The concerns expressed by various sources with regard to the lack of autonomy and independence of the Fiscalía was reinforced when prosecutor Monica Gaitán, who was investigating the Chenge massacre, was forced to leave the Fiscalía after the investigation began to show clear involvement by high public officials in the massacre.”118

Based on an investigation being made by Human Rights Watch, until the month of November 2002, 15 months after the new Attorney General took office, at least 9 prosecutors and investigators of human rights cases had been dismissed and another 15 had been forced to resign or had felt obliged to do so.119 b. Constitutional Reform of the Attorney-General’s Office

Through 2002 Legislation Act 03 (an act aimed to reform the Constitution), and through the new Attorney-General initiative, the constitutional policy of the Attorney-General’s Office was reformed. The reform goes against the independence of the prosecutors as it empowers the Attorney-General to intervene in the decisions that the other prosecutors must make while carrying out their investigative and accusatory activities120 and enables the Attorney-General’s Office to conserve the power to make arrests, perform physical searches,

116 Human Rights Watch, A WRONG TURN: The Record of the Colombian Attorney General's Office, www.hrw.org, November 2002. 117 For example, Prosecutor Luis Augusto Sepúlveda, who was carrying out the investigation of the assassination attempt made on December 15, 2000, against Wilson Borja, President of the National Federation of State Public Servants (Fenaltrase is the Colombian acronym), was dismissed after having ordered the initiation of a criminal investigation against two national Army generals for their alleged involvement in the event. After Prosecutor Sepúlveda was dismissed, the new prosecutor, to whom the Attorney General assigned the case, granted temporary freedom to those under investigation as the term for that case had expired, without the defense attorney having so requested. The written denouncements regarding these events can be found in the Colombian Commission of Jurists files. 118 Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on Human Rights Defenders, April 2002, (E/CN.4/2002/106/Add.2), Paragraph 196. 119 Human Rights Watch, A Wrong Turn: The Record of the Colombian Attorney General's Office, www.hrw.org, November 2002. 120 Constitutional Court 1994 Sentence C-558, presiding judge: Carlos Gaviria Díaz stated, “Attorney-General’s Office is not allowed, nor is any other Attorney-General’s Office public servant, to interfere in the decisions that the other prosecutors must make while carrying out their investigative and accusatory activities, or to indicate to them criteria regarding how they must handle the cases under their charge, or how they must interpret the law, as this would go against the principles of independence and functional autonomy for the prosecutor”.


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search locations, make seizures, and do wire taps without prior court order.121 Allowing the Attorney-General’s Office to conserve these functions negatively affects the impartiality that the criminal system must offer to those undergoing justice because the Attorney-General’s Office will be the judge of a case and a party to it simultaneously, and State prosecution will have an unusual preeminence over the defense. 2. Tendency to Dismantle the Social, Democratic Rule of Law

The national Government, headed by the Minister of the Interior, submitted to the consideration of the Congress a bill of law for the constitutional reform of the administration of justice122 through which it is intended to reform, among other institutions, the “acción de tutela”, a special legal action of protection of fundamental rights,123 the powers of the Constitutional Court124 and the structure and functions of the High Council of the Judicature.125 This reform bill of law tends to restrict individuals’ access to the legal action of protection of fundamental rights (tutela) as well as its scope and potential to protect fundamental rights. One of the most serious effects of the reform would be the impossibility to file a legal action of protection of fundamental rights in any place; the restriction of rights susceptible to a legal action of protection of fundamental rights;126 the judges who try legal actions of protection of fundamental rights being prohibited from imposing on the defendants obligations that are of “impossible compliance”;127 the elimination or restriction of legal actions of protection of fundamental rights against court writs;128 and the restriction of the legal action of protection of fundamental rights against individuals.129

121 2002 Legislative Act No. 3 Article 2 that reforms Political Constitution Article 250. 122 Bill of law for 2002 Legislation Act No. 10 - Senate “through which the Political Constitution is reformed regarding administration of justice”. The bill of law was presented on October 29, 2002 and was later withdrawn because Congress did not have enough time to process it. The Government announced that it would resubmit it and it has reiterated its interest in passing these reforms. The bill of law will be presented again in the legislature session beginning on July 20, 2003. See “Justice Reform Criticized” (“Críticas a reforma de la justicia”), El Tiempo, Newspaper, June 30, 2003, Page 1-3, “The acción de tutela will be limited” (“Limitarán acción de tutela”), El Tiempo, Newspaper, july 6, 2003, Page 5-B. 123 Pursuant to Political Constitution Article 86, “all persons shall be able to file at all times and in any place a legal action of protection of fundamental rights to claim to the court, on their own or through a person acting on their behalf, through a preferential, summary proceeding, the immediate protection of their fundamental constitutional rights that have been violated or threatened by the action or omission of a public authority”. This legal action of protection of fundamental rights corresponds to what is known as a “recurso de amparo ” or a “writ of injunction” in other countries. 124 The Constitutional Court has the responsibility of safeguarding the integrity and supremacy of the Constitution. Political Constitution, Article 241. 125 The High Judicature Council is part of the judicial branch and, among others, its functions are to practice the judicial profession; to examine the behavior and punish the misconduct of judicial branch public servants as well as of attorneys in the practice of their profession; to keep control over the performance of judicial agencies and offices, and to settle conflicts of competence that arise among the different jurisdictions. 126 The constitutional reform intends to eliminate the possibility of filing the legal action to protect economic, social and cultural rights, collective rights and environmental rights, rights inherent to human beings not mentioned in the Constitution, and human rights acknowledged in international treaties but not acknowledged as fundamental in the Constitution. 127 The reform would be openly contradictory to the essence itself of human rights. The Constitution would be acknowledging some fundamental rights the rights (to life, to freedom, to intimacy, to free development of the personality, to due process, et c…), but at the same time would be admitting that, on some occasions (based on the criteria of the judges or public authorities), such rights would be of “impossible compliance”. 128 The Constitutional Court has jurisprudence that enables, in an exceptional manner, voiding court writs that are ostensibly unconstitutional or arbitrary or that in reality correspond to de facto methods. 129 This means, among other aspects, that the legal action of protection of fundamental rights violated in a scenario of private labor relations would not be in order, neither would the immediate protection of women and children who are victims of inner-family violence.


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Some of the most serious consequences of the reform on the Constitutional Court’s powers would be that the Court could not decide on lawsuits against laws two years after such laws are issued; it could not deeply examine the constitutionality of decrees that declare states of exception (which, among others, contradicts the Human Rights Committee’s recommendation made in May 1997);130 and it could not issue orders in trials on constitutionality. 131 The justice reform bill of law contains regulations that would enable the executive branch to intervene in the judicial branch’s functions. It proposes eliminating the High Council of the Judicature and assigning its functions to a new body in which the Minister of the Interior and of Justice would directly participate. It further proposes the creation of the post of Judicial Branch Executive Director132 and empowering the President of the Republic to create or modify justice administration statutory law. 133 C. States of Exception (Article 4): Declaration of the State of Exception on August

2002

1. The Declaration Did Not Adjust to Article 4 of the Covenant

On August 11, 2002, four days after taking office, the present Government declared a state of internal commotion (state of exception).134 In 1997, the Human Rights Committee stated its concern regarding the frequency of the declarations of a state of exception; it reiterated its recommendation to the Colombian State to abstain from using this figure unless the requirements provided for in International Covenant on Civil and Political Rights article 4 were first met. In 1992, that recommendation had been issued, and in the Committee’s judgment, it had not been followed.135 The requirements of article 4 were not met because, although the Colombian situation is very severe, it must and can be resolved through ordinary measures. Precisely, the lack of proper policies to attend the needs of the population in an ongoing, normal manner is what has led to the difficult situation in Colombia. The international recommendations that so state have been ignored by the successive Colombian Governments.

130 Concluding Observations by the Human Rights Committee: Colombia. 05/05/97 , Document CCPR/C/79/Add.76, May 1997, Paragraphs 23 and 36. 131 This means that the Court will have to limit itself to stating if the regulation in question is constitutional or not, but it will not be able, for example, to order the Congress to issue a new law replacing the one declared unconstitutional within a certain period of time or it will not be able to order restitution of money to persons who have made payments based on a regulation declared unconstitutional. 132 The bill of law speaks of a Judicial Branch Executive Director to be responsible for executing the justice budget, collecting the revenues to which the State is entitled for rendering said service, and for giving the material support needed to all judicial branch components. The reform bill of law does not establish how this Executive Director will be chosen or who will be his/her immediate superior. Thus, the door is open for this post to be provided for by the executive branch and, consequently, this gives rise to the Government’s direct intervention in the judicial branch. 133 T his proposal is clearly a Government intervention in matters corresponding to the Congress of the Republic. 134 Through Decree 1837 dated August 11, 2002, the Government declared a state of internal commotion for 90 days. The Government has the faculty to extend a state of internal commotion up to two periods of 90 days each. The Government extended the state of internal commotion for the two 90-day periods, through November 2002 Decree 2555 and Decree 245 dated February 5, 2003. Through 2003 Sentence C-327, the Constitutional Court declared the second extension unconstitutional, presiding judge: Alfredo Beltrán Sierra. 135 United Nations Human Rights Commission: Examination by the Committee of the Fourth Newspaper Report Submitted by Colombia , Document CCPR/C/79/Add.75, 59th Period of Sessions, April 9, 1997.


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One of the causes invoked by the Government in the declaratory Decree did meet the characteristics of novelty and exceptionality required by article 4 in the Covenant, but it did not meet the condition established in the Colombian Constitution that the Nation would have to lack ordinary attributions to face the situation at hand, a condition that is set forth as well in the Guidelines to prepare legislative provisions regarding states of exception, pursuant to which: “measures normally compatible with the Constitution and laws presently in force must be clearly insufficient to counter the threat.”136 The situation here were threats made by the Farc to provincial departmental, municipal and settlement leaders after the rupture of the peace talks with the prior Government in February 2002. Besides being extremely severe, that situation was new and exceptional because it was of a general nature and could potentially endanger organized life in local communities. In addition, being a threat challenging authorities throughout the country, it also could possibly jeopardize organized life and institutionalism throughout the country (See supra, I.C.3, attacks against mayors, and public servants). However, the Colombian Political Constitution grants authorities multiple powers that would be sufficient for them to fulfill their duty of ensuring the life, honor and property of the citizens and to guarantee, in particular, the security of local leaders threatened by the Farc if the political will to do so existed. Ordinary legislation confers powers to the authorities to issue arrest warrants for the members of armed outlawed groups, to dismiss Public Force members who, due to action or omission, are involved in human rights violations and forming paramilitary groups, and, in general, gives them mechanisms to fight or neutralize acts of violence, undertake military campaigns and police operations, as well as to administer justice. Promoting a serious, sound peace process aimed at achieving respect for human rights and international humanitarian law, signing humanitarian agreements and a general agreement on human rights such as the agreement proposed by the Office of the High Commissioner for Human Rights in Colombia and, in general, implementing recommendations made by human rights inter-governmental institutions are also means through which the State can guarantee the rights of its people and ensure that public order is maintained. Through 2002 Sentence C–802, the Constitutional Court declared the constitutionality of 2002 Decree 1837 that declared a state of interior commotion, with the caveat, however, that it would review each decree issued during the commotion. It effectively did so and declared some measures decreed within the framework of the state of exception unconstitutional. Three Court judges stated their disagreement to the majority decision of the Constitutional Court to declare 2002 Decree 1837 enforceable. One of the judges stated a position openly opposite to the majority position:

“The conditions set forth in the Constitution, in international treaties, in UN and OAS Courts and in their human rights bodies, in the statutory law for states of exception, or in the Constitutional Court’s jurisprudence are not met here. That is because the events are not supervening and the State has ordinary powers to maintain normalcy, already embodied in many acts and laws that must be applied.

136 Guidelines for the Drafting of Legal Norms Regarding States of Exception adopted at the meeting of experts called by the Special Rapporteur on the question of human rights and states of emergency, document E/CN.4/Sub.2/1991/28.


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The only thing missing is the political will to do so. Therefore, I abstain from voting because the majority found the internal commotion decree constitutional, but I believe that it is completely unconstitutional.”137

The crisis of human rights and humanitarian law in Colombia is structural; it is not due to present conditions. That is why it must be overcome by taking permanent measures. Due to their temporary nature, exceptional measures do not have the virtue of responding to a situation of the magnitude of the present situation of Colombia.138 2. The State of Interior Commotion: An Excessive, Useless Recourse

In the last 50 years Colombia has lived many periods of under a state of exception (3 out of every 4 years: 75%). The historical failure of exceptional measures has been proven; these declarations have led to violence instead of leading to peace. Today, violations of human rights in Colombia are “severe, massive, and systematic” and breaches of humanitarian law occur in a “recurrent, massive, and systematic manner.”139 The repeated declarations of states of exception have not affected the illegal armed groups; on the contrary, the number of persons joining the guerrilla groups and the paramilitary groups has increased. Graph A shows the alarming increase of the number of assassinated and disappeared persons in Colombia because of sociopolitical violence between 1980 and 2001. Today, the zones with the greatest presence of Public Force where special measures have been applied to control public order by virtue of the declaration of the state of exception (“rehabilitation and consolidation zones,” which we refer to below) are the ones where an increase in the level of socio-political violence is evident (see Points 3 & 4 below).

137 Judge Jaime Araújo Rentería abstained from voting on 2002 Sentence C-802, Dossier R.E.116, October 2, 2002. According to Judge Araújo, “the alleged acts are not supervening and the Government has ordinary power to maintain normal conditions, embodied in many acts and laws. What is missing is the will to apply, for instance, the act approving the International Criminal Court. It was not necessary to restrict the Colombian people’s rights even more.” (Constitutional Court press release, October 2, 2002). 138 The Government issued the following decrees on interior commotion: decree 1837 dated August 11, 2002 through which a state of internal commotions declared; decree 1838 dated August 11, 2002, through which a tax on net worth is creat ed; decree 1885 issued August 20, 2002 through which 2002 decree 1838 creating a tax on democratic security was added; decree 1900 dated August 23, 2002 through which criminal and criminal procedure measures were adopted against criminal organizations and other provisions are issued; decree 1959 dated August 23, 2002 through which the National Development Plan is extended for the 2002 fiscal period; decree 1975 dated September 3, 2002 through which 1996 Act 333 is suspended and the legal action and formalit ies for asset forfeiture are regulated; decree 2001 dated September 9, 2002 through which the competence of circuit specialized criminal court judges are regulated; decree 2002 dated September 9, 2002 through which measures are issued to control public order and define rehabilitation and consolidation zones; decree 2132 dated September 26, 2002 through which the addition to the National Development Plan, contained in decree 1959 dated August 30, 2002 is settled for the fiscal period of 2002; decree 2180 dat ed September 30, 2002 through which Articles 4 and 6 in 2002 decree 1900 on hydrocarbon and byproduct contraband are modified; decree 2255 dated October 8, 2002 through which measures are issued for the normal operation of municipal councils; decree 2555 dated November 8, 2002, through which the state of internal commotion is extended; decree 2748 dated November 25, 2002 through which criminal procedural regulations are issued; decree 2749 dated November 25, 2002, through which an addition to the National Development Plan is made for the 2002 fiscal period; decree 2929 dated December 3, 2002 through which the zones defined in 2002 decree 2002 are delimited; decree 2965 dated December 5, 2002 through which the addition to the National Development Plan contained in Decree 2749 dated November 25, 2002 is settled for the 2002 fiscal period; decree 3075 dated December 16, 2002 through which special sessions of the Congress of the Republic are called; decree 245 dated February 5, 2003 through which the state of internal commotion extended; decree 900 dated April 10, 2003 through which an addition is made to the National Development Plan for the 2003 fiscal period. 139 Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia , document E/CN.4/2001/15, March 2001, Paragraphs 250 and 251. See also: Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia, March 2002, document E/CN.4/2002/17, Paragraphs 72 and 73. See also: Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia, February 2002, document E/CN.4/2003/13, Paragraph 10 in the executive summary.


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• Permanent Committee for the Defense of Human Rights, Press bulletin , Bogota, 1981 to 1991.

• National Police, Revista Criminalidad (Criminality Review), Bogota, 1980 - 2001.• National Police, Criminology Investigations Office, Bogota, 1996.• Jaime Torres et al., Colombia: Repression 1970 – 1981 , Bogota, Cinep, 1982.• Javier Giraldo, “The Models of Repression”, Revista Solidaridad (Solidarity Review), Bogota, No. 100, November 1988.

Note: Due to information problems, data on homicides and extrajudicial executions of socially isolated persons before 1988 is not included.

Evolution of the human rights situation and sociopolitical violence in Colombia

Graph ANumber of persons killed and disappeared due to sociopolitical violence per year

1980 - 2001

Sources:• Inter-congregational Justice and Peace Commission (CIJP), Information Bulletin , Bogota, CIJP, volumes 1 to 8, 1988 - 1995.• Popular Research and Education Center (Cinep), Human rights report,Bogota, Cinep, mimeo, 1995.• Data base in human rights and political violence of Cinep and Justice and Peace (BCJP), Noche y niebla (Night and Fog Review) - Panorama of human rights and political violence in Colombia , Bogota, BCJP, No. 1 to 20, July 1996 to June 2001.

0

1.000

2.000

3.000

4.000

5.000

6.000

7.000

1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001

Political homicides and extra-judicial executions Forced disappearancesHomicides and extra-judicial executions against socially marginalized persons SubtotalCombatants killed in combat and civilians killed during cross fire Total


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Colombia’s President delimited two “rehabilitation and consolidation zones” (specially militarized zones) and designated their military commanders. One was made up of nine municipalities in the provincial department of Bolivar and of 15 municipalities in the provincial department of Sucre. The second rehabilitation and consolidation zone consisted of three municipalities in the provincial department of Arauca.140 According to the report of the Ombudsman on these zones, since the declaration of the “rehabilitation zone” in Arauca, no paramilitary fighter has been captured in any of the three municipalities that make up the zone, in direct contrast to the great number of detentions made there.141 A similar comment seems to be included in the Report of the United Nations High Commissioner for Human Rights on the human rights situation in Colombia:

“At the same time as the security forces intensified their counter-insurgency operations in the rehabilitation zones, which cover areas traditionally under guerrilla control, paramilitary groups penetrated some places, as in the town of Sincelejo and other municipalities in Sucre, such as Chalán and Ovejas. In other places, such as Arauca, they maintained their presence despite the military operations.”142

The repeated declarations of a state of exception over the past 50 years, counteracted by the public order disruption in the country during the same period, demonstrate that this crisis cannot be resolved through extraordinary measures that restrict rights. 3. Arbitrary Restrictions to the Right to Freedom (Article 9), to the Right to Free

Movement (Article 12), to Foreigners’ Rights (Article 13), and to the Right to Privacy (Article 17)

In the above-mentioned “rehabilitation and consolidation zones”, the military commanders were empowered to exert power over civil authorities, telling them how to manage public order. Decree 2002 issued in 2002 established the obligation for the population of the mentioned zones to obtain permits for free movement. The provincial department Governor had the authority to delegate to the Police Commander the extension of such permits for free movement. Therefore, those permits began to be effectively controlled by the Military Commander as he was converted into the superior of the police forces in those zones, under the provisions of the state of exception. Whoever did not carry that permit could be “temporarily detained” up to 24 hours.143

140 The municipalities in the provincial department of Bolívar are Mahates, María la Baja, Calamar, El Guamo, San Juan Nepomuceno, San Jacinto, Carmen de Bolívar, Córdoba, and Zambrano. The municipalities in the provincial department of Sucre are San Onofre, Colosó, Chalán, Ovejas, Toluviejo, Sincé, Galeras, El Roble, San Pedro, Corozal, Sincelejo, San Juan de Betulia, Los Palmitos, Morroa, and Buena Vista. The municipalities in the provincial department of Arauca are Arauca, Arauquita, and Saravena (see Resolution 129, 2002 that carries out Article 12 in Decree 2002). Subsequently, through 2002 decree 2929, the Arroyohondo municipality was added to the rehabilitation zone in the provincial department of Bolivar, and the San Benito Abad municipality was added to the Sucre rehabilitation zone. 141 See Office of the Ombudsman, Project for Defense Support in the Rehabilitation and Consolidation Zones, First Report of Activities (Proyecto de apoyo defensorial en las zonas de rehabilitación y consolidación), Bogota, March, 2003, www.defensoria.org.co/espanol/informestematicos 142 Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia, February 2003 (E/CN.4/2003/1 3), Paragraph 69. 143 2002 decree 2002, articles 15 and 16.


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2002 Decree 2002 granted permission to make detentions nationwide without arrest warrants, through figures that do not exist in the Colombian legislation, such as “temporary detention” or “preventive arrests”, as the case may be. Said detentions were not made due to flagrancy or within the framework of a criminal case, but due to “indications of the person’s involvement or plans to become involved in committing a crime” or because there were “circumstances that made it impossible to obtain a court order” and there was an “insurmountable urgency and need to protect a fundamental right in grave, imminent danger.” In particular, in the “rehabilitation and consolidation zones” whoever had a phone at home and had not notified it to the authorities or whoever circulated in the area without authorization or did not carry his or her Identification Document could be arrested without a warrant. Likewise, any person transporting food or any other type of cargo could be arrested without a warrant in those zones if there was any indication that could result in an assumption by any police agent or soldier that the cargo was intended to assist some criminal organization or its members.144 The decree restricted the transit and stay of foreigners in the rehabilitation and consolidation zones. The governors of said zones had the power to reject or authorize the transit or stay of foreigners, depending on the conditions of public order.145 This treatment - openly discriminatory - was based on Whereas Clause 8 in Decree 2002, pursuant to which “it is necessary to prevent the presence of foreign criminals who may train, give instructions to or join existing criminal organizations in the country.”146 This treatment also implies a violation of the principle of assumption of innocence. The Court declared the power of the military commanders in the zones, to gather and keep information on the place of residence and customary occupation of the residents and people passing through or entering the zones, unconstitutional. 147 In spite of the Court sentence, population census taking continued and occasionally the information was gathered using violent, degrading methods, such as cordoning off certain areas in the town, massively, arbitrarily detaining the people who were in those areas, and even marking their bodies with indelible ink. On November 12, 2002, at dawn in Saravena (provincial department of Arauca), under the name of “Operation Heroic”, the municipality was cordoned off by military and police patrols who imprisoned at least 500 people in the town coliseum. 148 These persons were submitted to verbal violence, they were censed and then marked on their legs and arms with seals dunked in indelible ink.149 On November 12 and November 13, two thousand 144 Ibídem, articles 15,16, 18, 20, and 21. 145 2002 decree 2002, article 22. 146 On September 17, 2002 the following persons were detained for extradition purposes: Jacques Brovekaert, Jam Verike and Mirielle Barletta. They were members of an international mission accompanying the National Peasant Gathering held on September 16, 2002. In the municipality of Chalán, Sucre, the following persons were detained for extradition purposes on Sept. 18: Ana Andrés Ablanedo and Daniel Justo Gutiérrez of Spanish nationality. They belong to the NGO named Sodepaz. They were part of the mission accompanying the mentioned Peasant Gathering. 147 Authorization contained in 2002 Decree 2002 Article 17. Constitutional Court, 2002 Sentence C-1024, presiding judge: Alfredo Beltrán Sierra. 148 “Dead Calm in Saravena” (“La calma chicha en Saravena”), El Tiempo Newspaper, December 1, 2002, Page 1-20. 149 Databank on Human Rights and Political Violence; Cinep y Justicia y Paz (BCJP), Following-up on the State of Commotio n: Virtual Bulletin No 5, Period: November 8 to December 18, 2002 (Seguimiento al estado de conmoción), Bogota, BCJP, Mimeo, Page 13.


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(2,000) persons were also detained in Saravena. Of the detainees, 49 were submitted to court, many of them members of social or trade union organizations.150 Acting against the provisions in Article 4 of the treaty, the Minister of Defense has stated that the Government “is planning on converting the measures adopted during the state of internal commotion into permanent legislation.”151 In effect, he began to do so afterwards through a constitutional reform bill of law presented on April 23, 2003 to authorize judicial police functions to the military forces, property searches, arrests, and wire tapping without a warrant, as well as census-taking in populations (see supra II.A.2). 4. Attacks against the Civilian Population

Decree 2002 dated September 9, 2002 contains the main measures for restricting rights and freedoms, which were adopted during the sate of interior commotion. The decree is founded on the idea that, among the main supports to criminal group actions are “on one hand, the infiltration of its members among the civilian population and their hiding their telecommunications equipment, weapons, and ammunition in towns and, on the other hand, the constancy of supplies in the places where they remain.”152 The text of the mentioned regulation evidences disregard for universally acknowledged principles, such as assumption of innocence. It creates a situation of State security agencies suspecting all civilians, and thus encourages the violation of the most fundamental rules of humanitarian law, such as the principle of distinction and the obligation to protect civilians from the danger of military actions. In view of the above, the effects of applying such measures have deteriorated the situation, far from leading to an improvement of the security and human rights crisis. Disobedience of the rules of humanitarian law has resulted in violent military operations in highly populated zones, even at the cost of seriously violating the civilian population’s rights. Indiscriminate attacks have been accompanied by abuses, such as massive arbitrary detentions. These abuses have been committed especially against poor, socially isolated populations, as well as against social leaders and human rights defenders.153 The Office of the Procurator and the Office of the Ombudsman have submitted reports with an assessment of the situation in the “rehabilitation and consolidation zones”, in which they report on how the civilian population has become a victim of violations of human rights. The figures are highly concerning:

150 See Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia, February 2003, E/CN.4/2003/13, Paragraph 68. 151 “The Government Extends the State of Interior Commotion” (“Gobierno prorrogaría estado de conmoción interior”) El Espectador Newspaper, November 30, 2002, www.elespectador.com 152 2002 decree 2002 whereas clause 3. 153 In Medellín, the Armed Forces seriously breached humanitarian law by disregarding the principles of distinction and proportionality. On October 13, 2002, “Orion Operation” was initiated in a highly populated socially isolated neighborhood, using helicopters with artillery. Sixteen persons were killed, 34 wounded (among them several minors), and 179 persons were detained, of whom 21 had arrest warrants (“Kidnapped Person Rescued in Commune 13” (“Rescatan a plagiado en la Comuna 13”), El Colombiano Newspaper, October 20, 2002, Page 3A).


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With respect to the right to life and the right to personal integrity, according to the Office of the Procurator report,154 during the five months preceding the declaration of the rehabilitation zone, 23 homicides were committed in the municipality of Saravena, whereas during the five months following the declaration, from September 2002 to February 2003, 30 were committed. Likewise, during the first semester of 2002, 23 civilians and 31 members of the Armed Forces were wounded whereas from August to October 2002, 63 civilians and 4 members of the Armed Forces were wounded, an indication that the civilian population has become even more involved in the armed conflict. With respect to restrictions to the right to personal freedom, of which civilians have been the main victims, the Office of the Procurator report denounces a series of massive detentions where people were identified, photographed and filmed, and later set free in most cases.155 With respect to restrictions to the right to intimacy, it is concerning that, according to the Office of the Procurator report, the National Army conducted 294 property searches and 1,078 “physical searches on persons” during the time the state of internal commotion was in force in Arauca:

“This procedure has not been sufficiently explained and even less justified from a legal point of view because while some members of the Army indicate that it is a procedure that the Attorney-General’s Office supports, the Attorney-General’s Office denies its involvement. (...). The truth is that it is a strategy used by the Army, taking advantage of the state of internal commotion, to enter civilians’ homes, with their alleged consent.”156

Nothing hinders such searches, and especially the “physical searches of persons”, from continuing after the state of interior commotion ends. With respect to the independence of the judicial power, the Procurator report mentions that a Attorney General’s support office operates inside the military installations of the 18th Brigade in the city of Arauca. The Procurator recommendation is for that office to stop operating in the military installations. Also, the application of the program “Soldier for a day” is especially concerning. It consists of girls and boys going to the battalion to play with the soldiers who are in uniform and armed. The children are asked questions about their parents, about whether or not they are guerrilla members, if they have weapons, what they think about the Army, etc. One of the games consists of the children shooting at the soldiers with toy guns or making

154 Office of the Procurator, The Arauca Rehabilitation and Consolidation Zone, Special Report (La zona de rehabilitación y consolidación de Arauca, informe especial), Bogota, Mimeo, May 2003, Page 11. 155 Besides massive detentions at Arauca on Nov. 12 - 13 2002, mentioned above, the Colombian Commission of Jurists has learnt that in September 2002, at El Oasis, municipality of Arauquita (Arauca), in an Army operation, 46 people were forced out of their homes and detained against their will. On the other hand, on February 14, 2003, disregarding the Constitutional Court sentence l, the Army and Police took a census and took photographs of people at the Arauca marketplace (see Procurator of the Nation, op. cit., Page 18). 156 Office of the Procurator General, The Rehabilitation and Consolidation of Arauca, Special Report (La zona de rehabilitación y consolidación de Arauca, informe especial), Bogota, Mimeo, May 2003, Page 20.


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a gun out of their hand. In turn, the soldiers give the children play money with Army propaganda inviting guerrilla fighters to desert or surrender, on one side of the bill. The Office of the Procurator has recommended the Army in Saravena reevaluate applying this program. The population requested the Inter-American Commission on Human Rights cautionary measures aimed at protecting minors because the program contradicts national and international rules on protection to children. Lastly, the Procurator report renders accounts of denouncements against members of the Armed Forces committing violations of human rights regarding the right to life and the right to personal freedom, just to mention two.157 The Procurator Office has been performing a labor of certification, attention, and court follow-up on 36 homicides and 5 forced disappearances.158 Also, this Office has 3 homicides and 1 forced disappearance in the preliminary enquiry stage.159 The last report of the United Nations High Commissioner for Human Rights on the human rights situation in Colombia also informs of abuses committed by members of the Armed Forces in the “rehabilitation and consolidation zones.”160 D. Right to Life (Article 6) From July 1996 to June 2003, 37,759 persons were killed or disappeared due to socio-political violence in Colombia (see Chart 5, Column 8a, Row F). Out of these victims, 24,355 (64.5%) died at home, on the street or in their workplace (see Chart 6, Column 8a, Row F and Graphs B, C, D, E), and 13,404 (35.5%) died in armed confrontations of combatant groups. The worsening of the humanitarian situation is obvious if we take into account the fact that the number of victims of violations of the right to life per year at the end of the period under study is near double what it was at the beginning of the same period, already too many. In fact, the victims of violations of the right to life rose from 3,571 in the 1996-1997 period to 6,978 in the 2002-2003 period, representing an increase of 95.4% in the number of persons killed or disappeared for socio-political reasons. The daily average of persons killed or disappeared illustrates the alarming increase in the socio-political violence that Colombia has experienced in the last five years. This average doubled from 1996-1997 to 2002-2003: from ten victims a day to near 20. The most significant increase occurred in 1999-2000: from an average of over 11 victims per day (1998-1999), the number grew to over 15, representing an increase of almost four victims a day. Not including persons killed in combat, the number of victims of extra-judicial executions, sociopolitical homicides,161 and forced disappearances doubled during the five-year period under study: the figure went from 2,311 victims in 1996-1997 to 4,426 in 2001-2002 and to 3,956 in 2002-2003. Consequently, the average number of victims per day also doubled; during the first period, it was over six victims assassinated or disappeared and during the 157 Ibidem, Pages 23 and 24. 158 Ibidem, Pages 12 and 13. 159 Ibidem, Pages 23 and 24. 160 Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia, document E/CN.4/2003/13, February 2003, Paragraph 68. 161 Sociopolitical homicides include homicides of socially marginalized persons.


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last period, it was over 13 (see Chart 6, Column 8c). The increase is constant and progressive. The average of six victims a day that had remained constant during the first two annual periods within our five-year period rose to seven victims in the third period, to ten victims in the fourth period, and skyrocketed to 12 in the period 2001-2002 (see Chart 6, Column 8c). In fact, for extra-judicial executions, sociopolitical homicides, and forced disappearances, all of the averages doubled between 1996 and 2001. On an average, the victims of extra-judicial execution and political homicide went from over five a day to 11 a day. Victims of forced disappearance rose from over one every other day to over one a day, and homicides or extra-judicial executions of socially isolated persons passed from more than one every three days to near one a day. 162 Regarding extra-judicial executions, sociopolitical homicides, and forced disappearances for which the responsible parties were identified, 79.2% of these cases are allegedly attributed to State agents: 5.8% due to direct action and 73.4% due to omission, tolerance or acquiescence of or support to violations and breaches perpetrated by paramilitary groups. In 20.8% of the cases the alleged responsibility is attributed to guerrilla groups (see Chart 6, Column 1 to 3, Row F). In many of the crimes committed by the paramilitary, there has been an active or passive participation of the Armed Forces. In the crimes where such participation does not exist or that there is no proof of its existing, the Colombian government is still involved because of its lack of a decided, coherent policy to prevent the violations, carry out serious investigations against paramilitary groups and the State agents who in one way or other support them, and punish the perpetrators of the violations. During the five-year period under study, the policy developed by the Government has not gone beyond brash pronouncements. Until such pronouncements result in tangible actions, such as elementary compliance with arrest warrants issued by the Prosecutor’s Office, there will be no reason to diminish the State’s responsibility in the paramilitary’s violating human rights and breaching humanitarian law. E. Tortures and Cruel, Inhuman or Degrading Treatment (Article 7) During the five-year period under study, 1.214 persons were victims of torture. From 1996-1997 to 2000-2001, the average of victims per day went from more than one victim every other day to near one per day, respectively. Of them, after being tortured, 1.079 (88,66%) were murdered and 138 (11,34%) were spared their life. The number of victims of this crime increased more than 45% from the first period to the fifth period of the five-year period under study. This proves that violations of human rights and breaches of humanitarian law have been committed using a high degree of cruelty. Out of the total number of victims tortured, 55.68% of the cases were attributed to the paramilitary, 11.37% to State agents, and 6.92% to guerrilla groups. For the rest of the torture cases, no combatant group was identified as the alleged perpetrator (See Chart 7 and Graphs F and G).

162 The figures for forced disappearance May be under-recorded. Based on Asociación de Familiares de Detenidos-Desaparecidos (Association of Relatives of Detainees and Disappeared Persons, ASFADDES is the Colombian acronym) figures, the number of victims of forced disappearance is greater.


50

a b a b a b a b a b a b c a b a b c

% % % # % % # %Average per day

% #Average per day

1b=1a÷8a 2b=2a÷8a 3b=3a÷8a 4a=1a:3a 4b=4a÷8a 5b=5a÷8a 6a=4a+5a 6b=6a÷8a 6c=6a÷365 7b=7a÷8a 8a=6a+7a 8c=8a÷365

A July 1996 to June 1997 939 26,30% 1.385 38,78% 753 21,09% 3.077 86,17% 219 6,13% 3.296 92,30% 9,03 275 7,70% 3.571 100% 9,78B July 1997 to June 1998 702 20,20% 1.352 38,90% 933 26,84% 2.987 85,93% 178 5,12% 3.165 91,05% 8,67 311 8,95% 3.476 100% 9,52C July 1998 to June 1999 727 17,60% 1.572 38,06% 1.261 30,53% 3.560 86,20% 239 5,79% 3.799 91,99% 10,41 331 8,01% 4.130 100% 11,32D July 1999 to June 2000 1.135 20,42% 2.022 36,39% 1.021 18,37% 4.178 75,18% 329 5,92% 4.507 81,10% 12,35 1.050 18,90% 5.557 100% 15,22E July 2000 to June 2001 954 14,41% 2.460 37,15% 1.130 17,07% 4.544 68,63% 535 8,08% 5.079 76,71% 13,92 1.542 23,29% 6.621 100% 18,14F July 2001 to June 2002 1.694 22,81% 1.970 26,53% 1.486 20,01% 5.150 69,35% 954 12,85% 6.104 82,20% 16,72 1.322 17,80% 7.426 100% 20,35G July 2002 to June 2003 2.107 30,19% 1.334 19,12% 1.315 18,84% 4.756 68,16% 915 13,11% 5.671 81,27% 15,54 1.307 18,73% 6.978 100% 19,12

H Total victims (H=aA:aG) 8.258 21,87% 12.095 32,03% 7.899 20,92% 28.252 74,82% 3.369 8,92% 31.621 83,74% 6.138 16,26% 37.759 100%

(to define their sociopolitical violence

nature)

(regarding their social or political violence nature)

Periods

Sources:

Total persons killed

4 73

Confirmed cases

Cases under study

***

Unidentified perpetrators

State agents



5 6

ParamilitaryGuerrilla groups

1

Number of persons killed and percentage of alleged authorship, per period***July 1996 to June 2003

Confirmed cases and cases under study

### # %#

8

Chart 5Violations of human rights and sociopolitical violence in Colombia

Right to life

Extrajudicial executions, sociopolitical homicides*, forced disappearances and deaths in combat**



unidentified

Subtotal persons killed

**: Deaths in combat include both the combatants killed in combat and the civilians killed during confrontations between armed actors. *: The sociopolitical homicides include homicides of socially excluded persons.Notes:

• Data base in human rights and political violence of Cinep and Justice and Peace (BCJP), Noche y niebla (Night and Fog Review) - Panorama of human rights and political violence in Colombia, Bogotá, BCJP,n.° 1 a 27, July 1996 to April 2003.

• Newspapers: El Colombiano, El Espectador, El Tiempo .• Written denouncements in the Comisión Colombiana de Juristas files.

• Communiqués from State authorities reporting cases of sociopolitical violence.

2

***: The definition of period is the same used in Chart 2.

****: The category of cases under study records cases that had indications of being politically motivated; such indications were sufficient to not reject them but insufficient to classify them in a definitive manner.They have been recorded for the purpose of presenting the overall universe of known cases. Their definition implies that they must continue to be followed up for the purpose of gathering more information.


51


% % % # % % # % Average per day

% # Average per day


A July 1996 to June 1997 152 6,58% 1.378 59,63% 322 13,93% 1.852 80,14% 184 7,96% 2.036 88,10% 5,58 275 11,90% 2.311 100% 6,33B July 1997 to June 1998 147 6,67% 1.338 60,74% 278 12,62% 1.763 80,03% 129 5,86% 1.892 85,88% 5,18 311 14,12% 2.203 100% 6,04C July 1998 to June 1999 115 4,37% 1.520 57,82% 514 19,55% 2.149 81,74% 149 5,67% 2.298 87,41% 6,30 331 12,59% 2.629 100% 7,20D July 1999 to June 2000 127 3,25% 1.977 50,64% 507 12,99% 2.611 66,88% 243 6,22% 2.854 73,10% 7,82 1.050 26,90% 3.904 100% 10,70E July 2000 to June 2001 103 2,09% 2.413 48,98% 469 9,52% 2.985 60,60% 399 8,10% 3.384 68,70% 9,27 1.542 31,30% 4.926 100% 13,50F July 2001 to June 2002 127 2,87% 1.882 42,52% 628 14,19% 2.637 59,58% 467 10,55% 3.104 70,13% 8,50 1.322 29,87% 4.426 100% 12,13G July 2002 to June 2003 152 3,84% 1.220 30,84% 600 15,17% 1.972 49,85% 677 17,11% 2.649 66,96% 7,26 1.307 33,04% 3.956 100% 10,84

H Total victims (H=aA:aG) 923 3,79% 11.728 48,15% 3.318 13,62% 15.969 65,57% 2.248 9,23% 18.217 74,80% 6.138 25,20% 24.355 100%

***: The definition of cases under study is the same used in Chart 5.

State agents



7

*: The definition of sociopolitical homicides is the same used in Chart 5.**: The definition of period is the same used in Chart 2.

Subtotal victims


Total victimsParamilitary

Confirmed cases and cases under study(regarding their social or political violence nature) (to define their

sociopolitical violence nature)

1 2 3 4 5 6 8

Guerrilla groups


unidentified

%#

Notes:Sources: The same used in Chart 5.

### #



Right to life

Extrajudicial executions, sociopolitical homicides* and forced disappearances outside of combat Number of victims and percentage of alleged authorship, per period**


Periods

Confirmed cases

Cases under study

***


52

Violations of human rights and sociopolitical violence in Colombia

Right to life

Graph BNumber of victims by identified alleged perpetrators per period

Extrajudicial, sociopolitical homicides and forced disappearances outside combat


1 5 21 4 71 1 51 2 7

1 0 31 2 71 5 2

1 . 3 7 8

1 . 3 3 8

1 . 5 2 0

1 . 9 7 7

2 . 4 1 3

1 8 8 2

1 . 2 2 0

3 2 22 7 8

5 1 45 0 7

4 6 96 2 86 0 0

1 . 8 5 2

1 . 7 6 3

2 . 1 4 9

2 . 6 1 1

2 . 9 8 5

2 6 3 7

1 . 9 7 2

0

500

1.000

1.500

2.000

2.500

3.000

State agents Paramilitary Guerrilla groups Cases with identified allegedperpetrators

1996 - 1997 1997 - 1998 1998 - 1999 1999 - 2000 2000 - 20012001-2002 2002-2003

Source: Graphs B and C were prepared using data from chart 6, columns 1, 2, 3 and 4.

Graph CNumber of victims outside of combat per period, by identified alleged perpetrators

127152103

152147

115 127

1882

1.220

2.413

1.977

1.520

1.3381.378

628600

469

322 278

514 507

0

500

1.000

1.500

2.000

2.500

1996 - 1997 1997 - 1998 1998 - 1999 1999 - 2000 2000 - 2001 2001-2002 2002-2003

State agents Paramilitary Guerrilla groups


53

Violations of human rights and sociopolitical violence in Colombia

Right to life

Graph DNumber of victims per period

Extrajudicial executions without trial, sociopolitical homicides and forced disappearances outside of combat


2 . 3 1 1 2 . 2 0 3

2 . 6 2 9

3 . 9 0 4

4 . 9 2 6

4 . 4 2 6

3 . 9 5 6

0

500

1.000

1.500

2.000

2.500

3.000

3.500

4.000

4.500

5.000

T o t a l v i c t i m s d u e t o s o c i o p o l i t i c a l v i o l e n c e o u t s i d e c o m b a t

1996 - 1997 1997 - 1998 1998 - 1999 1999 - 2000 2 0 0 0 - 2 0 0 12001-2002 2002-2003

Source: Graphs D and E were prepared using data from chart 6, columns 6c, 8a and 8c.

Graph EAverage of victims outside of combat per day per annual period

10,84

12,13

13,50

10,69

7,20

6,046,33

7,26

8,50

7,82

5,185,58

6,30

9,27

5

7

9

11

13

15

1996 - 1997 1997 - 1998 1998 - 1999 1999 - 2000 2000 - 2001 2001-2002 2002-2003

Total average per dayAverage number of confirmed cases per day


54


% % % # % % # %Average per day

% #Average per day


A July 1996 to June 1997 47 21,76% 156 72,22% 3 1,39% 206 95,37% 5 2,31% 211 97,69% 0,58 5 2,31% 216 100% 0,59

B July 1997 to June 1998 40 21,05% 107 56,32% 6 3,16% 153 80,53% 8 4,21% 161 84,74% 0,44 29 15,26% 190 100% 0,52

C July 1998 to June 1999 9 6,57% 89 64,96% 5 3,65% 103 75,18% 3 2,19% 106 77,37% 0,29 31 22,63% 137 100% 0,38

D July 1999 to June 2000 36 10,08% 199 55,74% 24 6,72% 259 72,55% 11 3,08% 270 75,63% 0,74 87 24,37% 357 100% 0,98E July 2000 to June 2001 6 1,91% 125 39,81% 46 14,65% 177 56,37% 8 2,55% 185 58,92% 0,51 129 41,08% 314 100% 0,86F Total victims (F=aA:aE) 138 11,37% 676 55,68% 84 6,92% 898 73,97% 35 2,88% 933 76,85% 281 23,15% 1.214 100%


Sources:

Notes:*: The definition of period is the same used in Chart 2.**: The definition of cases under study is the same used in Chart 5.

• Data base in human rights and political violence of Cinep and Justice and Peace (BCJP), Noche y niebla (Night and Fog Review) - Panorama of human rights and political violence in • Communications of State authorities reporting cases of sociopolitical violence.• Papers: El Colombiano, El Espectador, El Tiempo .• Written denouncements in the Comisión Colombiana de Juristas files.

Number of victims and percentage of alleged authorship, per period*July 1996 to June 2001

%##

Cases under study

***

Periods

# # #


Right to personal integrity

Torture: victims killed and victims left alive

State agents ParamilitaryGuerrilla groups

(regarding their social or political violence nature)Confirmed cases and

cases under study

87

(to define their sociopolitical

violence nature)

Confirmed cases

1 2 3 4 5 6

Total victims




unidentified

Subtotal victims



55

Violations of human rights and sociopolitical violence in ColombiaRight to personal integrity

Graph FNumber of victims by identified alleged perpetrators, per period

Torture: victims killed and victims left alive


4 74 0

9 3 66

1 5 6

1 0 789

1 9 9

1 2 5

3 6 52 4

4 6

5 8 3 1 1 8 52931

8 7

1 2 9

2 1 61 9 0

1 3 7

3 5 7

3 1 4

0

50

100

150

200

250

300

350

400

450

State agents Paramilitary Guerrilla groups One of the previousgroups

unidentified

Unidentifiedperpetrators

Total

1996 - 1997 1997 - 1998 1998 - 1999 1999 - 2000 2000 - 2001

Sources: Graphs F and G were prepared using data from chart 7, columns 1, 2, 3 y 4.

Graph GNumber of victims by period, per identified alleged perpetrators

6

47 40

9

36

125

199

89107

156

46

3 6 5

2411

385

85

2931

87

129

216190

137

357

314

0

50

100

150

200

250

300

350

400

1996 - 1997 1997 - 1998 1998 - 1999 1999 - 2000 2000 - 2001

State agents ParamilitaryGuerrilla groups One of the previous groups unidentifiedUnidentified perpetrators Total


56

F. Situation of Human Rights Defenders, Social Leaders, and Union Leaders (Articles

2, 6, 18, 19, 21, 22, and 27) Human rights defenders in Colombia have their rights systematically violated. The aggression to which they are submitted is the work of State agencies, the paramilitary, and guerrilla groups. In October 2001, the Special Representative of the Secretary-General on human rights defenders and stated her deep concern for the situation of the defenders:

“The Special Representative is deeply concerned over the climate of intimidation and insecurity in which human rights defenders carry out their work. She notes a pattern of serious abuses of human rights defenders, including threats, disappearances, killings and forced displacements. The Special Representative notes that all sectors of the civil society are affected by violence, including State officials working on human rights issues. Certain groups are still more targeted than others, among them trade unionists, ethnic minorities, internally displaced persons and women. The Special Representative is extremely concerned for the safety of trade unionists and indigenous leaders, in the light of the scale of violent attacks against them”.163

1. Violations of Human Rights Defenders’ Human Rights

From July 1996 to May 2003, seventy-four human rights defenders were victims of political homicides or extra-judicial executions. Added to this figures is that of the union leaders victims of violations to the right to life and the right to personal integrity: between June 1997 and December 2001, 365 union members were the victims of political homicides, extra-judicial executions and forced disappearances. 2. State Policy on Human Rights Defenders

The State policy on human rights defenders issues is inefficient, as can be seen by the above-mentioned statistics. Human rights defenders have constantly demanded the State issue an integral policy, not one limited to offering some protective measures against attacks (such as armoring NGO headquarters, supplying telecommunications equipment or bulletproof vests) or to offering emergency measures (such as tickets and internships abroad) once the defenders have been threatened. Human rights defenders want a State policy that will eliminate the cause of the attacks, that punishes those responsible for them, and that efficaciously fights impunity for crimes against human rights defenders. Up to now, the protection has been limited to scarce resources allocated to a program under the responsibility of the Minister of the Interior and these resources are insufficient to meet the growing needs for protection. As we mentioned before, the existing policies are not a real solution because they do not guarantee the absence of threats against human rights defenders.

163 Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on Human Rights Defenders, April 2002, (E/CN.4/2002/106/Add.2), executive summary.


57

After her visit to Colombia in 2001, the Special Representative of the Secretary-General on human rights defenders stated “the most basic rights of human rights defenders have been consistently violated in recent years in Colombia and that these violations are never or rarely properly investigated”. 164 3. Public Servants’ Attitude Regarding Human Rights Defenders

The former government issued 1999 presidential instruction 07 ordering all government authorities, including security agencies, to abstain from questioning the legitimacy of the labor performed by human rights organizations and from making false accusations or from acting in such a manner as to slander or encourage hostility against human rights defenders. However, the normal situation is that public servants publicly state that the work performed by human rights defenders is a tool used by the guerrilla groups. High-ranking military commanders have made statements along those lines; the Corp of Retired Generals and Admirals published a book in 2002 titled Esquilando al lobo 165 (Unveiling the Wolf), which erroneously states that human rights NGOs are forwarding the “legal war” for the guerrilla groups, that they cooperate with the guerilla to promote investigations against members of the Armed Forces. The present Minister of the Interior and Justice launched this book on July 10, 2002, one month before taking office, but after he had been publicly announced as main member of the new President elect’s cabinet.

“The Special Representative has been informed that legal proceedings are sometimes initiated against human rights defenders by military officers who usually charge them with slander or defamation, the crime of rebellion or the organization of illegal groups. These proceedings are part of a strategy to silence human rights defenders. Legal action is usually initiated against human rights defenders who have published reports on the alleged involvement of military officials with armed dissident groups. According to a report on Colombia published in 1999 by the Inter-American Commission on Human Rights, such proceedings were brought against 11 human rights defenders in the Department of Antioquia alone between May 1996 and August 1997.”166

In the same fashion, persons with close ties to the Government consider NGOs as a sector allied to the guerrilla groups. On Monday, March 31, 2002, the weekly magazine Cromos published an interview with Mr. Pedro Juan Moreno Villa, who is known as – and in effect introduces himself as – an advisor to the President for security and intelligence matters and who was former Governor’s Secretary during the period when President Uribe was Governor of the provincial department of Antioquia. Mr. Moreno criticized the NGOs of being criminals, using the following terms:

“What I proposed is to centralize in one place and under one chief the intelligence now dispersed among the different forces (...) One information that must be broken down by analysts who are knowledgeable about and experts on each one of the targets: Farc, Eln, Epl, drug traffickers, the paramilitary, NGOs, common delinquents.

164 Ibidem, Paragraph 43. 165 Esquilando al lobo (Unveiling the Wolf) , Corps of Retired Generals and Admirals of the Military Forces, Bogota, September 2002. 166 Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on Human Rights Defenders, April 2002, (E/CN.4/2002/106/Add.2), Paragraph 97.


58

Intelligence has a lot of work with the NGOs because they are the ones who have trashed this country. Many are leftist. NGOs are mechanisms that were invented by the subversive and perpetrators of violence to enable them to position themselves (...) Subversion also works there using those masks, they work protected in those organizations.”

The present Government of Colombia has an openly hostile attitude against human rights NGOs. It appointed Plinio Apuleyo Mendoza Ambassador to Portugal. For years now, he has accused several NGOs by name of working for guerrilla groups. After he was appointed, this public servant (a columnist for a newspaper) wrote a farewell Column, stating that he was going to begin his diplomatic career and, once again, he attacked human rights NGOs by name, accusing them of being accomplices of the guerrilla groups. The Government did not ask Mr. Mendoza to retract those accusations. On the contrary, a few days later, the Government inaugurated him in his new post. This type of accusations, made in the context of an armed conflict such as the one Colombia is experiencing, increases the risk of being a human rights defender.

“It has been reported to the Special Representative that the killing of human rights defenders is usually related to the fact that they are accused of collaborating with either the guerrillas or the paramilitary groups. Another reason for attacking human rights defenders is the independent positions they take vis-à-vis the armed factions by denouncing the serious abuses committed by all parties to the conflict. It is also linked to the fact that they defend and make requests in favour of civilians or certain communities.”167

On many occasions, human rights defenders have requested that the relevant authorities clean up the intelligence files where false information involving the defenders in crimes is kept. NGOs have requested that such information be corrected or transferred to judicial authorities when it contained the indication that they may have committed a crime, for the judicial authorities to lead an investigation with all gua rantees. Unfortunately, in spite of this request being supported by the Report submitted by the Special Representative of the Secretary-General on human rights defenders on her mission to Colombia, the intelligence files have not been cleaned up. Many persons who appear in these reports have been murdered. The United Nations High Commissioner for Human Rights has reiterated this recommendation. 168 4. Situation under the Recent State of Internal Commotion (Arbitrary Arrests, Initiation of

Criminal Investigations without Grounds, Property Searches of Homes and Headquarters)

The defenders’ situation has worsened with the present Government, and in particular due to the declaration of a state of internal commotion. Since August 2002, violations of human rights defenders’ right to freedom, right to intimacy, and right to due process have increased. In this context, the United Nations Commission on Human Rights stated its “concern at the alleged existence of a campaign to create a climate of hostility towards

167 Ibidem, Paragraph 47. 168 Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia, February 2003, document E/CN.4/2003/13, Paragraph 161.


59

non-governmental organizations that work in the field of human rights.”169 Under the recent state of internal commotion, human rights defenders were victims of arbitrary detentions, criminal investigations without grounds, and property searches of their homes and headquarters.

The Public Force have arbitrarily arrested renowned social leaders and human rights defenders against whom there were no judicial investigations at the time of the arrest, without their being an arrest warrant issued. In these situations, the arrest initiative comes from the Public Force and is frequently founded on false information obtained from the informers’ network. In many cases judicial investigations are initiated after the arrest, usually based on alleged crimes of rebellion170 or terrorism. 171 On other occasions, the Attorney General´ s Office “accompanies” the Public Force to make the arrest. In addition to the Public Force’s arbitrary manner of proceeding, the Attorney General´ s Office has initiated judicial investigations against persons publicly known to be social leaders and human rights defenders, practically through orders by members of the Military Forces and the Police, based on information from the informers’ network and from collaborators. In violation of their right to intimacy, members of the Public Force have entered and searched human rights defenders’ homes, without a search warrant. In spite of not finding anything that could incriminate the person in punishable actions, the members of the Public Force warn the human rights defenders that “they have seized incriminating items” and they threaten them. For instance, they tell the persons that they had better “watch their back” or they warn them that they had better leave the area. Normally the evidence found against the person, allegedly seized during the entry and search, are never used in any judicial proceeding. 172

169 Chairperson's Statement "Situation of Human Rights in Colombia” (59th session), Geneva, 25 April 2003 (OHCHR/STM/CHR/03/2), Paragraph 35. 170 The crime of rebellion is defined in Colombian criminal code article 467 as the use of weapons to defeat the National Government or to suppress or modify the constitutional regime. 171 Pursuant to the Colombian criminal code article 343, the crime of terrorism consists of causing the population or part of it to be in a state of commotion or terror or maintaining it in such a state, by committing acts that endanger the life or physical integrity or the freedom of people, or that endanger communication facilities or means of communication, transportation, processing or conduction of fluids or motive forces, to take advantage of the capacity to cause destruction. 172 Among the cases of arbitrary arrest regarding which the Colombian Commission of Jurists has received information, there are: the arbitrary detention of María del Socorro Mosquera, Mery del Socorro Naranjo, and Teresa Yarce, community leaders in Medellín (Antioquia) on November 12, 2002, in Medellín (Antioquia); and the torture and arbitrary detention of Juan Carlos Celis, leader of the Social Movement for Peace on December 11, 2002, in Bogota. Another case is that of Raúl Herrera, a faming union leader arrested September 12, 2002, due to alleged denouncements by an informer accusing him of being a dangerous member of the guerrilla who was organizing the peasant gathering held on September 16, 2002. He was set free two days later, but the informer received a reward. Another case is that of Nelson Reina and Héctor Grijalba, union leaders of Fensuagro (National Federation of the Farming Unions) and Sintrapreagricun, respectively: they were arbitrarily detained by members of the Public Force during the national strike on September 16, 2002 summoned by the workers’ unions in Colombia. On May 16, 2003, Eduardo Peña and Ronald Peña, from the Arauca Peasants Association, were also arbitrarily detained. Among the cases of criminal investigations without legal grounds regarding which the Colombian Commission of Jurists has been informed, there are: the case of Hernando Hernández, former president of the Colombian State Oil Company Union (USO is the Colombian acronym) and executive member of the United Workers’ Union (CUT is the Colombian acronym); and the case of Álvaro Tapias and Julio Avella, from the NGO Andas. Among the cases of home entry and searches regarding which the Colombian Commission of Jurists has received information, we mention the followings: in Cali (Provincial Department of Valle) on August 16, 2002, the entry and search of the home of Jesús Antonio González Luna, Director of the Human Rights Department of the CUT union; in Arauca on September 20, 2002, the entry and search of the home of the peasant leader Pedro Jaime Mosquera; in the municipality of Calarcá, on January 8, 2003, the entry and search of the home of Policarpo Camacho and Gloria Holguín, Fensuagro leaders; and in Santander, on March 5, 2002, the entry and search of the


60

Several social and human rights organizations headquarter have been entered and searched during the period in which the internal commotion has been in force. In some cases the property searches have been conducted without a search warrant; in others, the search warrant has been issued by the Attorney General´s Office, without any legal grounds whatsoever. G. The Situation of Women (Articles 2, 3, 6, 7, 19, 21, 23, and 25) In Colombia, women are the victims of many types of violence: inner- family violence, common violence, and violence related to the armed conflict. Regarding the latter, after her visit to the country in November 2001, the United Nations Special Rapporteur on Violence against Women reported that the situation of violence that women in Colombia face, which is ample and systematic, is also determined by the consequences that the internal armed conflict has on them:

“[A]lthough men are the most common victims of summary executions and massacres, violence against women, particularly sexual violence by armed groups, has become a common practice within the context of a slowly degrading conflict and a lack of respect for international humanitarian law. Women have been abducted by armed men, detained for a time in conditions of sexual slavery, raped and made to perform domestic chores. Women have been targeted for being the female relatives of the “other” side. After being raped some women have been sexually mutilated before being killed. Furthermore, survivors explain how paramilitaries arrive in a village, completely control and terrorize the population, and commit human rights abuses with total impunity.”173

The Special Rapporteur made a series of recommendations that President Andrés Pastrana Arango’s Government did not implement. Furthermore, the present Government has developed a security policy that does not seek to follow the recommendations made by the Special Rapporteur and other human rights protection agencies. The present Government’s security policy introduces the logic of war inside families, through initiatives such as the informers’ network, the peasant soldiers program, and mandatory military service for women.174 As to the impunity of crimes against women, the Attorney General´s Office National Human Rights and International Humanitarian Law Unit has no case of sexual violence underway at present.

Due to sociopolitical violence, 1,073 adult women lost their lives during the five-year period under study (see Chart 8, Column 8a, Row F and graphs H and I); the average of adult women victims killed per day doubled during the five-year period: it went from one adult woman killed every other day to over one killed every day (see Chart 8, Column 8c).

home of, and subsequent arrest of, Teresa Báez Rodríguez, President of Sintraclínicas (Clinic and Hospital Workers Union) and CUT union leader. Among the cases of entry and search of social and human rights organizat ions headquarters regarding which the Colombian Commission of Jurists has received information, we mention the following: Permanent Assembly of the Civil Society for Peace headquarters in Bogota, on October 25, 2002; the entry and search of the headquarters of the International Cooperation NGO Terre des Hommes Italy, in Bogota, on November 11, 2002; and the entry and search of the headquarters of the CUT union in Bucaramanga (provincial Department of Santander) on December 20, 2002. 173 Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Ms. Radhika Coomaraswamy, (E/CN.4/2002/83/Add.3), executive summary. 174 See supra, section: I.A.2.


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% % % # % % # % Average per day

% # Average per day


A July 1996 to June 1997 11 7,24% 90 59,21% 22 14,47% 123 80,92% 11 7,24% 134 88,16% 0,37 18 11,84% 152 100% 0,42B July 1997 to June 1998 9 7,44% 78 64,46% 12 9,92% 99 81,82% 5 4,13% 104 85,95% 0,28 17 14,05% 121 100% 0,33C July 1998 to June 1999 16 7,92% 82 40,59% 57 28,22% 155 76,73% 20 9,90% 175 86,63% 0,48 27 13,37% 202 100% 0,55D July 1999 to June 2000 3 1,19% 113 44,66% 45 17,79% 161 63,64% 19 7,51% 180 71,15% 0,49 73 28,85% 253 100% 0,69E July 2000 to June 2001 5 1,45% 162 46,96% 35 10,14% 202 58,55% 44 12,75% 246 71,30% 0,67 99 28,70% 345 100% 0,95F Total of victims (F=aA:aE) 44 4,10% 525 48,93% 171 15,94% 740 68,97% 99 9,23% 839 78,19% 234 21,81% 1.073 100%

21

Confirmed cases and cases under study(to define their


(regarding their social or political violence nature)Confirmed cases

Cases under study ****

*: The definition of women is the same as Chart 2.**: The definition of sociopolitical homicide is the same used in Chart 5.

#

Sources: The same used in Chart 7.Notes:

Subtotal women victims

#

Periods

3

#

Paramilitary Guerrilla groups

# #


5


8

Total women victims

7


unidentified

4 6

****: The definition of cases under study is the same used in Chart 5.

%



Right to life

Extrajudicial executions, sociopolitical homicides** and forced disappearances outside of combat Women * victims

State agents



Number of women victims and percentage of alleged authorship, per period***



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Violations of human rights and sociopolitical violence in ColombiaRight to life

Graph HNumber of victim women per period by alleged perpetrators



Women victims

11 91 6 3 5

90788 2

113

162

22 12

5 7 45

3 5

11 52 0

1 9

44

18 1 727

73

9 9

152

1 2 1

2 0 2

2 5 3

3 4 5

0

50

100

150

200

250

300

350

400

State agents Paramilitary Guerrilla groups One of the previousgroups unidentified


Total

1996 - 1997 1997 - 1998 1998 - 1999 1999 - 2000 2000 - 2001

Source: Graphs H and I were prepared using data from chart 8, columns 1, 2, 3, 5 and 8.

Graph INumber of women victims outside of combat per period, by alleged perpetrators

5119

16 3

162

113

827890

35

2212

5745

115

20

19

4417

1827

9973

152

121

202

253

345

0

40

80

120

160

200

240

280

320

360

400

1996 - 1997 1997 - 1998 1998 - 1999 1999 - 2000 2000 - 2001State agents ParamilitaryGuerrilla groups One of the previous groups unidentifiedUnidentified perpetrators Total


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These high averages evidence that groups that must be provided special protection, pursuant to the Colombian Constitution and to international human rights protection instruments, are not safe from socio-political violence. Members of women organizations continue being victims of threats, homicides, forced displacement, and other violations of human rights on account of the work they perform for the defense and promotion of human rights. The armed actors do not respect the neutrality of such organizations, as their members always claim. According to the last report made by the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, the lack of equality between men and women persists in matters of employment and income. As to inner- family violence, women are the victims in 91% of the cases to which this report refers.175 H. Prison Population (Articles 6, 7, 9, and 10) On April 28, 1998, through 1998 Sentence T-153, the Constitutional Court informed the President of Colombia and other State authorities of the “notorious existence of a state of unconstitutional affairs in the jail system.”176 The Court requested that the President of the Republic “make use of his powers, as supreme administrative authority of the country and fundamental participant in the legislative process, and please perform all necessary activities to end this sensitive situation concerning the preservation of public order and the chronic, systematic violation of the most basic human rights.”177 Afterwards, in October 2001, invited by the United Nations High Commissioner for Human Rights, a mission on human rights in penitentiaries visited 15 detention centers in five cities throughout the country. The mission established that: “Around 22.327 persons live in the prisons visited by the Mission; according to the National

Penitentiary Institute (INPEC in the Colombian acronym) the total number of prisoners in the country is 54.551. In the police stations that were visited, the approximate number of prisoners was 400, for a total of 1.527 persons in the metropolitan area, and about 5.000 at the national level.

The Mission observed a pattern of grave, systematic and generalized violations of the human rights obligations of the Colombian State in the prisons and the detention centers at the police stations throughout the country. The conditions under which the vast majority of the detained people are kept, as well as the treatment they get from the judicial and penitentiary authorities and from the police, constitute flagrant violations of their human rights178.”

175 Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia, document E/CN.4/2003/13, February 2003, Paragraphs 21 and 22 in the annex. 176 The purpose of the figure of a state of unconstitutional matters is “to seek to solve situations of fundamental rights of a general nature – as they affect many persons – whose causes are of a structural nature, that is to say, usually not originated exclusively by the authority facing the legal action; therefore, their solution demands the joint action of different agencies.” (In: Constitutional Court April 1998 Sentence T-153, Presiding Judge: Eduardo Cifuentes Muñoz). 177 Constitutional Court April 1998 Sentence T-153, Presiding Judge: Eduardo Cifuentes Muñoz. The sentence set forth that “according to the statistical report provided by the INPEC Planning Office, at October 31, 1997, the jail population in Colombia totaled 42,454 personas, out of which 39,805 were men and 2,649 women; 19,515 were accused and awaiting trial, 12,294 had been sentenced in court and 10,645 had been sentenced in appeals court. As the total space in the jails was for 29,217 prisoners, there is an over-population of 13,237 people, with which that overcrowding reached 45.3%”. 178 Detention centers in Colombia: an unconstitutional state of affairs and in flagrant violation of human rights. Report of the International Mission on Human Rights and Prison Situation, presented to the Office of the High Commissioner for Human Rights in Colombia. Bogotá, October 31, 2001, www.hchr.org.co/documentoseinformes


64

The prison crisis, far from improving, has gotten worse. Authorities have maintained a negligent attitude with respect to persistent overcrowding and extremely bad detention conditions, as well as to the progressive annual increase of prisoners killed, injured, and disappeared inside the prisons. Most of the recommendations that the mission made after visiting the country in 2001, as well as the Constitutional Court demands, have not been attended. I. Children (Articles 6, 23, and 24) The situation of children is a matter of great concern. Not only has it worsened but also children’s rights continue being affected by the armed conflict, by inner-family violence, sexual abuse, child labor, discrimination, and limited access to economic, social and cultural rights.

From July 1996 to June 2001, at least 451 girls and boys 179 were killed due to socio-political violence out of combat (see Chart 9, Column 8a, Row F and graphs J and K); from the first period to the last period, the average per day increased from one minor killed every seven days to over one every three days (see Chart 9, Column 8c). Also, 909 youths were killed under these same conditions of violence;180 on an average, the figure went from near one youth killed every other day during the first period to over one youth killed every other day during the last period.

In October 2000, the Committee on the Rights of the Child examined the Colombian State’s report.181 The Committee stated that the general climate of violence has led to systematical violations of children’s rights and that the direct effects of the armed conflict have hindered most boys and girls in Colombia from exercising many of their rights. It also stated that the generalized poverty and socioeconomic disparity affect children. The final comments referred to the following topics: children’s rights in the peace process; children affected by the armed conflict; children victims of forced displacement; violations to the right to life, survival and development; birth record deficiencies; tortures and bad treatment; legislation for minors; institutional reform (role of the Colombian Family Welfare Institute); policies to protect children; information on children’s rights; lack of dissemination of the Convention on the Rights of the Child; gaps in adoption legislation; justice for minors; limitation of resources; race and gender discrimination; lack of a family environment; sexual and physical abuse, deficient health care; lack of resources for disabled children; limited education, entertainment and cultural activities; child labor and economic exploitation; and last but not least, sale of children, enslaving children, and kidnapping children. In view of these problems, the Committee expressed its concern, as well as the need for State action to resolve these issues.

179 The Convention on the Rights of the Children article 1 defines a girl or a boy as a person less than 18 years of age. 180 The classification of youths includes victims regarding whom the source or news report called them such without specifying their age and victims whose age was stated from 18 to 25 years of age. 181 Final observations of the Committee on the Rights of the Child: Colombia , document CRC/C/15/Add.137.


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% % % # % % # % Average per day % # Average

per day1b=1a÷8a 2b=2a÷8a 3b=3a÷8a 4a=1a:3a 4b=4a÷8a 5b=5a÷8a 6a=4a+5a 6b=6a÷8a 6c=6a÷365 7b=7a÷8a 8a=6a+7a 8c=8a÷365

A July 1996 to June 1997 7 14,00% 23 46,00% 11 22,00% 41 82,00% 1 2,00% 42 84,00% 0,12 8 16,00% 50 100% 0,14B July 1997 to June 1998 10 14,93% 40 59,70% 5 7,46% 55 82,09% 3 4,48% 58 86,57% 0,16 9 13,43% 67 100% 0,18C July 1998 to June 1999 14 14,43% 42 43,30% 36 37,11% 92 94,85% 0,00% 92 94,85% 0,25 5 5,15% 97 100% 0,27D July 1999 to June 2000 12 11,43% 35 33,33% 15 14,29% 62 59,05% 6 5,71% 68 64,76% 0,19 37 35,24% 105 100% 0,29E July 2000 to June 2001 17 12,88% 62 46,97% 11 8,33% 90 68,18% 9 6,82% 99 75,00% 0,27 33 25,00% 132 100% 0,36F Total victims (F=aA:aE) 60 13,30% 202 44,79% 78 17,29% 340 75,39% 19 4,21% 359 79,60% 92 20,40% 451 100%

Number of girls and boys victims and percentage of alleged authorship, per period***


Subtotal girls and boys

victims

21

State agents




Right to life

Extrajudicial executions, sociopolitical homicides** and forced disappearances outside of combat Girls and boys* victims


8

Total girls and boys victims

7


unidentified

4 6

****: The definition of cases under study is the same used in Chart 5.

%


#

Periods

3

#

Paramilitary Guerrilla groups

# #

5


*: The definition of girls and boys is the same used in Chart 2.**: The definition of sociopolitical homicide is the same used in Chart 5.

Confirmed cases and cases under study(to define their


(regarding their social or political violence nature)Confirmed cases

Cases under study ****

#

Sources: The same used in Chart 7Notes:


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Violations of human rights and sociopolitical violence in Colombia Right to life

Graph JNumber of girls and boys killed per period by alleged perpetrators



Girls and boys victims

71 0

1 4 1 21 7

2 3

4 04 2 3 5

6 2

1 1 5

3 6

1 51 1

1 36

9 89 5

3 73 3

5 0

6 7

9 7

1 0 5

1 3 2

0

50

100

150

State agents Paramilitary Guerrilla groups One of the previousgroups unidentified


Total

1996-1997 1997-1998 1998-1999 1999-2000 2000 - 2001

Source: Graphs J and K were prepared using data from chart 9, columns 1, 2, 3, 5 and 8.

Graph KNumber of girls and boys killed outside of combat per period, by identified alleged

perpetrators

17

7

1014

12

62

35

4240

23

1111

5

36

15

1 3 6 9

8 95

37

33

132

50

67

97

105

0

20

40

60

80

100

120

140

1996-1997 1997-1998 1998-1999 1999-2000 2000 - 2001

State agents Paramilitary

Guerrilla groups One of the previous groups unidentified

Unidentified perpetrators Total


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According to the United Nations Human Rights High Commissioner’s Report on the Situation of Human Rights in Colombia dated 2000,182 children suffer in a greater manner from the consequences of the internal armed conflict, resulting in a large number of victims, among which we underpin some cases of girls raped by combatants, a high index of kidnappings perpetrated by guerrilla groups, as well as innumerable cases of forced recruitment of children. Likewise, the report indicates that there is a persistent lack of integral care for minors who have abandoned the conflict. There is discriminatory treatment for minors who voluntarily leave the ranks and for minors captured and forced to do so; the first may resort to State protection whereas the latter are punished as criminals. Moreover, the report states that from January to June 2000, 54.34% of displaced persons were minors. Finally, outside of the situation of conflict itself, the report highlighted the increasing denouncements of inner-family violence and sexual abuse. Afterwards, in his report for the year 2001,183 besides reiterating what had been said in the previous report on the situation of children in the armed conflict, the High Commissioner indicated that 54% of the children in Colombia have unsatisfied basic needs and 10.28% live in conditions of misery. 184 With respect to displaced minors, he affirmed that out of the 213,855 people displaced from January 2000 to June 2001, 103,403 (48.35%) were under 18 years of age. In addition, in 2001 there were 2.7 million children working in conditions of high risk to their mental and physical health.

Finally, in his report for the year 2002185 the High Commissioner reported a situation that, instead of improving, evidences how children’s rights continue to be violated in the same ambits, without the Government having adopted clear measures to fight against such violations.

J. Indigenous and Afro-Colombian Populations (Articles 1, 2, 6, and 27) The situation of ethnic groups has progressively and systematically worsened, as they continue suffering violations of their civil and political rights, especially the right to life, as well as racial discrimination, intolerance, and social exclusion. On the other hand, their economic, social and cultural rights have been affected by their poverty and the evident conditions of exclusion. The internal armed conflict makes this situation even worse, posing a threat to the very existence of these groups. Likewise, another concerning aspect is the constant death threats against leaders of the ethnic minorities and against those who provide them legal or humanitarian assistance.

182 Report of the United Nations High Commissioner for Human Rights on the Colombian Human Rights Situation, February 8, 2001, document E/CN.4/2001/15 Paragraphs 76 to 80. 183 Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia, February 28, 2002, document E/CN.4/2002/17, Paragraph 130. 184 According t o National Planning Department. 185Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia, February 24, 2003, document E/CN.4/2003/13, Paragraphs 24 to 26 of the attachment.


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The special vulnerability of ethnic groups is evidenced by the ongoing violations of the human rights of the native Indian and Afro-Colombian populations, especially illegal or extra-judicial executions, forced disappearances, death threats, and displacement.

According to the report on Colombia for the year 2000 prepared by the Office in Colombia of the United Nations High Commissioner for Human Rights:

“The members of illegal armed groups were responsible for the bulk of the violent incidents affecting ethnic groups. However, the Office has also had complaints relating to events in which the indigenous population was subjected to arbitrary killings, detentions, unreasonable restrictions on freedom of movement, illegal seizures of property and disproportionate use of force by the security forces.”186

The effective enforcement of ethnic communities’ rights has also been hindered by the many State authorities’ disregard for native indigenous legislation, by permanent conflicts regarding land tenancy, and by the strategies to control the territory by diverse armed actors. Thus, the native indigenous’ right to their ancestors’ territory stipulated in the Colombian Constitution is being breached.

Indigenous peoples are victims of fumigation, machine gunning, bombing, entry and search, and State non-compliance of its obligations in agreements in place. The armed groups act as occupation armies; they exert pressure on youths to join their ranks, and they encourage forced displacement, increasing the ethnocide. According to 1993 law 48, Colombian indigenous are exempt from mandatory military service. However, as we mentioned before, the present Government’s security policies have led to a high degree of militarization in Colombia and have involved the civilian population in the conflict even more than before. Through the “peasant soldier” program (see supra I.A.2.c), members of the indigenous populations have been recruited into the Army against their will. The affected native Indian communities have denounced this as forced recruitment. However, the Public Force has presented the new recruits as “peasant soldiers.” The installation of the first native Indian platoon forced the communities in the affected zone to file a legal action to protect their fundamental rights (similar to the relief remedy called “writ of injunction” that exists in other countries) requesting that the program be suspended in indigenous territories and the release of the indigenous from the platoon. 187 Moreover, there is a bill of law on mandatory military service in Congress, which states that, “Following the principle of universality, without any distinction due to economic, social or education considerations, all Colombian men are bound to define their military situation”(2003 Senate bill of law 194, article 1). If this bill of law is approved, it could lead to mandatory military service for indigenous, in spite of their having been protected by law

186 Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia , March 2001 (E/CN.4/2001/1 5), Paragraph 183. 187 “Peasant Soldiers, Yes or No?”(“Soldados campesinos, ¿sí o no?”) El Tiempo Newspaper, June 3, 2003, Page 1-2, “Recruitment of Indigenous”( “El reclutamiento de indígenas”) El Tiempo Newspaper, April 24, 2003, Page 1-10, “Indigenous Forced to be Soldiers?”( “¿Soldados indios a la fuerza?”) El Tiempo Newspaper, March 27, 2003, Page 1-5, “Writ of Injunction by Indigenous Soldiers”( “Tutela por soldados indígenas”) El Tiempo Newspaper, June 10, 2003, Page 1-5.


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from doing so until now. Although the project does not expressly mention indigenous, the fact that it invokes universality for military service, without any distinction, among others, of social condition, leads us to fear that the exoneration from mandatory service granted to indigenous through 1993 act 48 may be eliminated. Furthermore, the economic, social and cultural situation of the native indigenous and Afro-Colombian populations is a matter of concern. A high percentage of these peoples live in extreme poverty and socially isolated conditions.188 They see their traditional relationships with the environment affected or they are exposed to the danger of losing their cultural identity and, in some cases, even of disappearing as an ethnic group. The forced displacement phenomenon that has affected these groups is one of the factors that clearly endangers their cultural identity. Finally, in spite of the fact that the Colombian Political Constitution acknowledges the rights of ethnic minorities, they continue suffering due to racial discrimination and intolerance. In this sense, the Committee for the Elimination of Racial Discrimination stated its concern for the insufficient representation of these communities in State institutions, for racial discrimination, and for the conditions of extreme poverty and social isolation that these communities suffer.189

III. RECOMMENDATIONS Taking into account the serious situation of human rights in Colombia, evidenced by the Colombian State’s non-compliance of its obligations under the Civil and Political Rights Treaty, among others, we believe the Human Rights Committee should make the following recommendations: 1. Establish and implement a human rights and humanitarian law policy that adjusts to international law. The objective of this policy must be to guarantee all of the rights of the population, efficaciously confronting the causes for violations of human rights and ensuring punishment for those who commit such violations. The policy must especially be based on the acknowledgment and real application of the principle of distinction between combatants and non-combatants, this principle being the marrow of humanitarian law and human rights. To do so, the Government should correct the manifestations through which it has rejected the effectiveness of said principle in Colombia and should eliminate or amend the government policies and projects based on such rejection. 2. Dismantle the informers’ network program and the peasant soldiers program and abstain from implementing any other initiative that, like these, may involve the civilian population in the conflict even more, contrary to the principle of distinction between combatants and non-combatants, and that may lead to the possible formation of paramilitary groups in Colombia, as historically has happened with this type of initiatives. 188 “Particularly concerning is the situation of the Afro-Colombian considered as one of the poorest in the country. According to the Ombudsman’s Office, 98% of the Afro-Colombian populations lack basic public utilities and 80% of their homes are characterized by being isolated and overcrowded. In the provincial department of Chocó, with a 90% Afro-Colombian population, 82% have unsatisfied basic needs.” Source: Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia, document E/CN.4/2003/13, February 2003, Paragraph 96. 189 See: CERD/C/304/Add.76, Paragraphs 13 and 17.


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3. Promote signing a Global Human Rights and Humanitarian Law Agreement, as the United Nations High Commissioner for Human Rights Office has repeatedly proposed, to guarantee respecting the civilian population during hostilities. 4. Withdraw the constitutional reform proposal through which the military forces would be granted jud icial police powers, whereby they could authorize arrests, entry and searches, and wire tapping without a warrant, and authorize population registration or census-taking, at the will of the military commanders. 5. Dismantle the paramilitary groups , which includes investigating, trying and punishing those who have committed violations of human rights and breaches of international humanitarian law. 6. Investigate and punish all State agents who have committed violations of human rights and who have collaborated, whether by action or omission, with paramilitary groups, and suspend them from service while criminal investigations are being forwarded in ordinary justice. 7. Guarantee the independence and autonomy of the judicial branch, by eliminating the powers that enable the Attorney General to have inherence in criminal proceedings that are not directly under its charge. 8. Ensure that the Attorney General’ s Office acts impartially and independently in all investigations, particularly in those where public servants are involved in violations of human rights. In this context, the Human Rights and International Humanitarian Law Unit must be strengthened, to guarantee expert personnel and safety for them. 9. Withdraw the reservation to the competence of the International Criminal Court, so that it can try war crimes committed in Colombia or by Colombian citizens. 10. Establish a peace process, within the framework of a policy of respect for human rights and humanitarian law, which guarantees the effective participation of the civilian society. The process must guarantee truth, justice and indemnity for the victims of violations of human rights and breaches of humanitarian law. Impunity of such crimes cannot be the price to pay for a peace agreement, not with any of the armed groups. 11. Prevent forced displacement, protect its victims and adopt measures for displaced persons to be able to overcome their condition, by offering lasting solutions. Treat the phenomenon from a perspective of reestablishing the infringed rights of the victims. Guarantee overcoming the condition of being a displaced person by using alternatives of resettlement or return in conditions of willingness, dignity, and safety, without involving the population in the armed conflict. Promote a visit by the Representative of the Secretary General for Internally Displaced Persons, Mister Francis Deng, for him to follow up on his 1999 mission.


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12. Develop and strengthen mechanisms and institutions for the protection of rights, such as the legal action to protect fundamental rights, the Constitutional Court, the Ombudsman’s Office and local ombudsman offices, and abstain from carrying out any initiative to weaken them. 13. Respect article 4 of the Covenant, which stipulates that a state of exception can only be ordered if the strict requirements to do so are met, without arbitrarily and disproportionately restricting the population’s rights, respecting the principle of the temporary nature of such measures and the competence of the Constitutiona l Court to legally verify that the state of exception complies with regulations. 14. Guarantee and protect the right to life for all inhabitants of Colombia, through effective measures for preventing violent acts and punishing violent actors, in favor of all social actors, without discrimination, and, above all, using a serious human rights and humanitarian law policy. 15. Guarantee that human rights defenders, union leaders and social leaders can freely carry out their activity, without harassment or attacks against their life, personal integrity, and freedom. The Government must order authorities and public servants to respect the work of human rights organizations, clean up intelligence files with information on human rights defenders, and guarantee that crimes against human rights defenders be investigated and tried. 16. Guarantee and protect women’s rights, through a total policy that eliminates all forms of discrimination against women and ensures them real equality. The State must adopt the measures needed to protect women from inner- family violence and from violence due to gender issues within the framework of the armed conflict, by reviewing regulations regarding inner-family violence to ensure an effective judicial remedy and by implementing the recommendations made by the Special Rapporteur on Violence against Women. It must guarantee women’s right to free association and grant protection to leaders of women’s organizations. The State must take effective measures to fight against the impunity of crimes committed against women. The State must ratify the Facultative Protocol of the Convention for the Elimination of All Forms of Discrimination against Women. 17. Guarantee the prison’s population’s rights, in particular the right to life, the right not to be submitted to tortures or cruel, inhuman or degrading treatment, and in general, the right to humane, respectful treatment. Measures must be taken to eliminate overcrowding in detention centers, to separate persons awaiting trial from those sentenced, and to avoid the entry of weapons into the jails, to name a few. Taking away a person’s freedom as a securing measure must be the exception, and freedom the rule. The Colombian State must acknowledge the competence of the Committee against Torture to decide on individual complaints, pursuant to articles 21 and 22 in the Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment, and must ratify the Facultative Protocol of the Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment.


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18. Guarantee children’s rights, through a policy that integrally guarantees children’s rights, including prevention, protection and punishment measures. The State must pay special attention to the problem of recruiting minors into the ranks of the guerrilla groups and paramilitary groups, by adopting measures to prevent it, punishing those responsible, and properly attending minors who have voluntarily withdrawn from the conflict. Along these lines, it must guarantee re-establishing the rights of minors who have abandoned the conflict, pursuant to the provisions in the Inter-American Human Rights Court Consultation Opinion CO 17 dated August 28, 2002. The Colombian State must ratify the two Facultative Protocols to the Convention on the Rights of the Child, regarding children’s participation in armed conflicts and the sale of children, child prostitution, and child pornography. 19. Guarantee the rights of Afro-Colombian communities and of indigenous populations , through a policy that guarantees respect for their life, autonomy, territory, and culture, and attend their request to not be involved in the conflict. The State must take measures to protect the leaders of these communities and to guarantee their right to free association and to participating in politics. It must also vanquish the impunity of crimes against persons belonging to these groups. The Colombian State must acknowledge the competence to try individual complaints, provided for in article 14 of the International Convention for the Elimination of All Forms of Racial Discrimination.


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Special Petition to the Human Rights Committee As we have illustrated in the body of this report, the Committee made very weighted recommendations in 1994, as well as in 1997. Unfortunately, the situation of Colombia has considerably worsened and this worsening makes the Colombian State’s non-observance of said recommendations obvious. Not only has it ignored the recommendations but also, on many occasions, it has decidedly acted aga inst them. Consequently, it is urgent to take efficacious measures to prevent the Human Rights Committee’s decisions from being disrespected or, in the best of cases, that they solely appear on paper, in order to efficaciously contribute to overcoming the extremely serious human rights crisis in Colombia. Therefore, it would be appropriate for the Human Rights Committee to adopt a special recommendation along those lines, such as offering the Colombian Government a follow-up mechanism on the application of the recommendations. Such mechanism could consist of the integration of a small group of experts from the Committee itself, which would have the duties of deliberating with the Colombian Government the application of the recommendations, supervising their effective application, and informing that fact to the Committee in a prudentially short period of time (for example, six (6) months), given the magnitude of the crisis.

Bogota, July 2003