COMISIÓN COLOMBIANA DE JURISTAS                              Organización no gubernamental con status consultivo ante la O...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee,                        ...
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee
Upcoming SlideShare
Loading in …5
×

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

2,251 views
2,180 views

Published on

Published in: Education
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
2,251
On SlideShare
0
From Embeds
0
Number of Embeds
4
Actions
Shares
0
Downloads
2
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

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

  1. 1. 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). Alternate Report to the Fifth Colombian State Report to the United Nations Human Rights Committee Translated from Spanish by Joy Bourdeau July 2003___________________________________________________________________ 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 : ccj@col..net.co, ccj@coljuristas.org, Apartado Aéreo 58533 Bogotá, Colombia
  2. 2. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003 Table of ContentsINTRODUCTION ……………………………………………………………………………….. 1I. 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 i
  3. 3. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003II. 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 Go vernment (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) ……………………….. 67III. RECOMMENDATIONS …………………………………………………………………….. 69 ii
  4. 4. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, 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 2003The situation of human rights and humanitarian law in Colombia continues to deteriorate.Since May 1997, date on which the Human Rights Committee analyzed the fourthperiodical report presented by the Government of Colombia, violations of human rightsand breaches of humanitarian law have dramatically increased. The suggestions andrecommendations that the Human Rights Committee had made have not been attended, norhave those that the United Nations High Commissioner for Human Rights made, nor thosethat the Human Rights Commission and its thematic mechanisms made. On the contrary,human rights and humanitarian law have been disrespected through measures adopted bythe successive governments, which is clearly contrary to international human rights law.The United Nations High Commissioner for Human Rights describes the situation inColombia 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...”1Today, an average of 20 persons are killed every day due to the sociopolitical violence. In1998, the average was 10 persons per day. The security policies of the governmentinaugurated 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 inPart I and analyzes the status of the implementation of some of the articles in theInternational Covenant on Civil and Political Rights in Part II. Finally, in Part III, it offerssome suggestions as to the recommendations that the Human Rights Committee couldpresent to the Colombian State.I. GENERAL SITUATION OVERVIEWA. Absence of or Non-Application of Human Rights and Humanitarian Law Policies1. Andrés Pastrana Arango’s Government (1998 – 2002)President Andrés Pastrana Arango’s Government created a policy called “Policy for thePromotion, Respect, and Guarantee of Human Rights and for the Application ofInternational Humanitarian Law, 1998-2002”, which was submitted to the country onAugust 12, 1999. Said policy contained important aspects; if it had been applied, someimprovement 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 HumanRights Situation in Colombia, 24 February 2003, document E/CN.4/2003/13, par. 10 and 14 executive summary. See also: Report of theUnited Nations High Commissioner for Human Rights on the human rights situation in Colombia , 8 February 2001, documentE/CN.4/2001/15, par. 250 and 251. 1
  5. 5. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003However, the essential parts of the policy were not applied and were even openlycontradicted in important aspects by later government decisions; therefore, the policy didnot result in a decrease of the sociopolitical violence or in a decrease of the number ofviolations of human rights. From July 1998 to June 2002, 23.734 persons (18.386 caseswith allegedly identified perpetrators, 4.245 cases under study) were victims ofextrajudicial executions, sociopolitical homicides, forced disappearances and deaths incombat. The percentages that represent the participation of the various perpetrators ofviolations of human rights h ave changed. In 1988, violations of human rights allegedlyperpetrated by direct Public Forces actions represented 50%. That percentage graduallydropped 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 paramilitarygroups; from 20% in 1993, it rose to almost 40% from July 1998 to June 1999. The totalnumber of deaths caused by all of the responsible parties together had remained the sameand, as it was mentioned, it later started to increase, the total number reached in 2001having doubled.Faced with such facts, the President of the United Nations Human Rights Commissionstated in his Statement on the Situation of Human Rights in Colombia, approved byconsensus 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.”2Along the same lines, in that same year 2000, the Office of the High Commissioner forHuman 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.”3Some of the concerning aspects of the 1998-2002 government related to human rights aredescribed below.Regarding the Military Criminal Code, approved in August 1999, Government actionswere aimed at restricting the scope of the Constitutional Court guidelines that had limitedmilitary jurisdiction over crimes strictly related to military service. 4 The Code providesthat the crimes of genocide, forced disappearance and torture are under the competence ofordinary jurisdiction; this would exclude other violations of human rights that had been2 Statement made by the Chairperson of the Commission Concerning the Situation of Human Rights in Colombia (56th session), Geneva19 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. 2
  6. 6. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003provided for in the original bill of law regulations (Articles 2 and 3) from the jurisdictionof ordinary courts. The Constitutional Court, upon controlling the regula tion, reiteratedthat all violations of human rights must be under the jurisdiction of ordinary justice andthat, therefore, the crimes mentioned in the Military Criminal Code do not constitute aconditioned list. 5 The Government also attempted to indefinitely suspend the MilitaryCriminal Code from entering into effect, a situation that was finally settled by theConstitutional Court. 6As to a bill of law that typified genocide, torture, forced disappearance, and forceddisplacement, far from encouraging this bill of law, the Government hindered it fromentering into effect by arbitrarily objecting without any justification to the classification ofpolitical 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 itsconstitutional duty of confronting illegal armed actors. Through non-existing defects ofform, the Government also objected the article that granted competence to ordinary justiceto try such crimes. Also, the prohibition to invoke due obedience in the case of behaviorleading to serious violations of human rights was excluded when this law was processed inCongress. The Government did not take any action to avoid that from happening.Ultimately, the article on genocide was modified in accordance with the Government’sdemand and the article on jurisdiction was excluded. The Constitutional Court declared thequalification of the author of the crime of political genocide unconstitutional, establishingthat it would be discriminatory to only protect from political genocide those who act in alegal manner. This would restrict the effectiveness of international treaties. In addition,military forces cannot combat outlawed armed groups through genocide. 7 It is worthcommenting that in the “Policy for Promotion, Respect, and Guarantee of Human Rightsand of the Application of International Humanitarian Law, 1998-2002”, adopted by theGovernment in August 1999, full support to this complete bill of law had been formallyannounced. However, the Government objected to the law after Congress approved it inDecember of that same year.Furthermore, through Act 387 dated July 18, 1997, regulations were adopted for theprevention of forced displacement. In 2000, Decree 2569 that partially regulated the Actwas issued. Far from having satisfactory results, it had serious defects. For example, it setforth the end of the condition of displaced person through a unilateral Governmentdecision, if a displaced person does not collaborate sufficiently, and it set forth a termwithin which a displaced person must submit the declaration enabling him/her to beacknowledged 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 wishto return to their homes, in spite of the fact that the State may not consider that there areguarantees for such return and, finally, it limited the budget for all State attentionprograms.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 Justiceadministration statute law was in force. The Constitutional Court declared this provision unconstitutional because the Constitution doesnot provide for a Military Criminal Justice statute law. That declaration of unconstitutionality provoked the failure of a Military CriminalJustice statute law bill of law that the government had presented, through which it sought to broaden military criminal jurisdiction anewand 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. 3
  7. 7. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003Likewise, through law 684 on security and national defense, dated August 13, 2001, theGovernment endangered the effectiveness of the social, democratic state of law byignoring its duty to respect the rights acknowledged in the Internationa l Covenant on Civiland Political Rights and to guarantee them to all individuals. Below, this report will refermore to that law, which the Constitutional Court declared totally unconstitutional in April2002,8 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 distinctionbetween combatants and the civilian population. Besides implementing policies that areopenly contrary to that principle, the President of the Republic stated that he does notbelieve in it when he affirmed, “We do not call this violence a conflict. We do notacknowledge its actors as combatants. They are terrorists.”9 The Office in Colombia of theUnited Nations High Commissioner for Human Rights had to draw attention to the need todistinguish between combatants and non-combatants to protect the civilian population,through a document named “About the importance of the humanitarian principle ofdistinction in the armed conflict”, 10 made public only days after the President gave hisdeclaration.a. “Democratic Security” PolicyThe present Government has said that its human rights policy is its “democratic security”policy. However, that policy disrespects the regulations of humanitarian law by involvingthe civilian population more and more in the armed conflict. It has led the State to pursueand attack the civilian population by using exceptional measures. In addition, it suggests atrend toward dismantling the social, democratic state of law. This report will makereference to these concerns.The government policy transfers the obligation of ensuring security to the citizenry anduses it as an instrument through which to win the war. The policy guidelines suggest, forexample, that the citizenry “will be a fundamental part in information gathering (formilitary intelligence).”11Also, the security policy was inspired by the idea that one of the main security problems isthe fact that armed actors “camouflage themselves among the civilian population”; this isexpressed in 2002 Decree 2002 on internal commotion. 12 Thus, the door is open to8 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.co11 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 planand in its general portion it must indicate national long-term proposals and objectives, mid-term state action goals and priorities, andgeneral strategies and orientations for economic, social, and environmental policy for the corresponding period. 12 2002 Decree 2002, 3rd whereas clause. 4
  8. 8. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003multiple breaches of humanitarian law because military operations are hereby aimed atattacking and pursuing principally the sectors of the civilian population who they considersuspects in aiding guerrilla fighters, and not aimed at paramilitary groups or guerrillafighters in a military ambit. Programs such as the informers’ network program or thepeasant soldiers program are a fundamental part of the policy.b. Informers’ NetworkThe Government hereby seeks to convert at least one million civilians into Public Forceinformers, pursuant to the Development Plan. A confidential Government document on thesecurity policy states that the Government aspires to incorporate the population at largeinto the informers’ network. These persons will do surveillance on their neighbors andinform Army and Police authorities of any event that or person who intends to alter thepublic order, based on each informer’s criteria, and they will receive rewards in exchangefor the information that they supply. That is to say that civilians will be performingmilitary intelligence duties. The Government has said that the informers’ networks will be“under the control, supervision, and evaluation of the military and police commanders andof State security organizations located in each one of the regions.”13In the National Development Plan, the Government has indicated that “privatesurveillance companies” 14 are among those who form the collaborators’ networks; that isto say that the collaborators’ networks are also made up of armed persons. Thus, unarmedcivilians who perform military intelligence duties and armed persons who are part ofprivate surveillance companies will all be under Public Force control.This measure was put into execution less than 48 hours after the President of the Republictook 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 ofits members have acted in the company of hooded informers and, based on theirindications, have made arbitrary detentions without prior court order. In many cases, theinformation supplied by these informers is used without adequate evaluation and may evenbe 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 asinformers. 15c. Peasant SoldiersThe Government announced that it would incorporate at least 15,000 peasants into aprogram called “Peasant Soldiers” from August 2002 to March 2003. It expected thatwhen that period ended, 100,000 young persons would have incorporated themselves intothe program. 16 The new recruits are considered part-time military personnel; they wear a13 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, andTeresa Yarce in Medellín (Antioquia) on November 12, 2002. See infra Quote 172. Members of the Arauca Peasant Association (ACA isthe Colombian acronym) also publicly made this denouncement when this organization was in a meeting held with International UnionMission 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. 5
  9. 9. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003uniform and are under the military command hierarchy. The other part of the time they liveat home and carry out their normal work or stud y activities. 17 At June 17, 2003, 15.120peasant soldiers in 420 municipalities throughout the country had incorporated themselvesinto the Army ranks. 18The Government’s purpose is for the civilian peasant population to become involved inattending soldiers. According to the Minister of Defense, “as these people are part of thepopulation, this gradually creates a cooperation web with the Public Force; we need tohave the people on our side. It is the only way to win the war.”19 Obliging the civilianpopulation to cooperate in this manner in maintaining public order converts the civilianpopulation into a military objective for armed actors and reverses the role of who has theresponsibility for human rights.In practice, military authorities have begun to mix the program of the informers’ networkand the peasant soldiers program, thus denying more and more the possibility of personswho do not participate in the hostilities. One high-ranking military commander indicatedthat the program “is effective because if you multiply 35 persons 20 (peasant soldiers) by allof their relatives and acquaintances, you can easily obtain an informers’ networkthroughout the municipality.”21As peasant soldiers continue living at home, they and their families run the risk of beingattacked either at home or in their workplaces. After her visit to Colombia in November2001, the Special Rapporteur on Violence against Women indicated that many womenwere victims of aggression for the mere fact of being related to a combatant. 22 Theseattacks against peasant soldiers’ wives, companions, daughters, sons, and relatives havealready begun to occur. 23 In a recent report, the Office of the Procurator warned that “thishas led to making a sector of the civilian population more visible as a “military target” forthe insurgents: the peasant soldiers’ families.”24In a communication addressed to the President of the Republic in August 2002, the UnitedNations 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 out17 Ibidem.18 “Yesterday Eight Platoons of Peasant Military Personnel Were Sent to Seven Villages” (“Ayer se despacharon ocho pelotones demilitares 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.com22 Report of the Special Rapporteur on Violence against Women, Its Causes and Its Consequences, Ms. Radhika Coomaraswamy, UnitedNations 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, February27, 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 yconsolidación de Arauca, Informe especial), www.procuraduria.gov.co/noticias/indexno.html, May 19, 2003, Bogota, Page 6. 6
  10. 10. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003 war operations or exposed to situations of risk provoked by the gradual disappearance of the principle of distinction."25In addition, Colombia’s experiences enable us to affirm that these forms of civiliancollaboration 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 HighCommissioner for Human Rights indicated that in Colombia, historically speaking,legislation and State policies have had an undeniable role in broadening the presentmagnitude and characteristics of paramilitarism. 26B. Paramilitarism1. 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.”27The last Chairman Statement of the United Nations Commission on Human Rights on thesituation of human rights in Colombia, issued on April 25, 2003, stated that “TheCommission strongly deplores the persistence of links between paramilitary groups andmembers of State forces (…) It urges the Government of Colombia to implement fully themeasures adopted to combat, repress and dismantle paramilitary groups, as well as toinvestigate and bring the links between military forces and the paramilitaries to an end.”28In its 2003 report, the Office in Colombia of the United Nations High Commissioner forHuman 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 more25 Communication Made by Ms. Mary Robinson, United Nations High Commissioner for Human Rights, addressed to the President of theRepublic on August 26, 2002, available at www.hchr.org.co26 United Nations, High Commissioner for Human Rights Office, Report Made by the United Nations High Commissioner for HumanRights 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 Chairpersons Statement "Situation of Human Rights in Colombia” (59th session), Geneva 25 April 2003 (OHCHR/STM/CHR/03/2),Paragraph 30. 7
  11. 11. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003 marked in urban areas, where paradoxically the security forces and the authorities are also more active; this is constantly an element in complaints of c ollusion 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…”29Among the elements that illustrate the absence of a decided policy to eradicateparamilitarism, the statistics on deaths in combat prove that the Public Force rarely has amilitary confrontation against the paramilitary: the number of guerrilla fighters killed incombat by the Public Force is m uch higher than the number of paramilitary killed incombat by the Public Force. The same occurs with arrests and detentions of personsaccused of being guerrilla fighters or paramilitary fighters. At no time have the Colombianauthorities shown signs of conceiving much less carrying out an armed confrontation planagainst paramilitary groups. The Second Commander of the Army went so far as topublicly state in 1998 that it was not a constitutional duty of the Military Forces to pursuethe paramilitary. 302. Massacres Committed by Paramilitary GroupsThe paramilitary groups have been the perpetrators of the greatest number of massacrescommitted during the period covered by this report. Due to limited space, we will onlyrefer 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 thethree cases, the authorities were informed of the imminent attack but did not take anyaction to avoid it, c) there were denouncements made regarding the participation, either byaction or by omission, of Public Force members in the events, which we will affirm ineach one of the cases, d) and finally, one of the consequences of these massacres wasmassive forced displacement of population.a. Mapiripán (Meta) MassacreOn July 15, 1997, more than 200 paramilitary fighters entered the town of Mapiripán, cutoff all incoming and outgoing communication, and controlled the town from July 15 toJuly 20. The paramilitary fighters detained several settlers and took them to theslaughterhouse where they tortured and killed them, in some cases after having mutilatedthem. 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 themunicipality as of July 21. 32The paramilitary fighters were in the municipality for five days; during that time the publicforce never appeared. On July 15, the judge of the municipality reported the situation to29 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 RightsUnit, 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 HumanRights and Political Violence in Colombia (Panorama de derechos humanos y violencia política en Colombia), Bogota, BCJP, No. 5,1997. 8
  12. 12. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003the pertinent authorities through official document (oficio) 2919, but he never received ananswer. 33Investigations 34 established that the Army troops, under the command of General JaimeUscátegui, received the paramilitary who arrived at the San José del Guaviare Airport andthat General Uscátegui assured that the local troops who could have been present inMapiripán to protect the population were located somewhere else. General Uscáteguiignored the warnings regarding the massacre and ordered a subordinate to forge documentsto cover up his complicity in the events. 35 General Uscátegui was investigated for theseevents through military criminal justice and was found guilty of “misfeasance in officethrough omission” (prevaricato por omisión) and absolved of the charges of crimes againsthumanity, terrorism, forgery of documents, and conspiracy. 36 The military court sentencedGeneral Uscátegui to 40 months of prison, but the Constitutional Court voided thesentence 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 wasconsidered “alleged perpetrator of the crimes of aggravated homicide and aggravatedkidnapping, by improper omission”. General Uscátegui appealed that decision, 38 but thedecision was held through a writ dated April 25, 2003. 39Colonel Hernán Orozco, who alerted general Uscátegui regarding the massacre, wassentenced through military criminal court justice to 38 months of jail, for “not insisting insending troops”. The colonel had requested that his case be transferred to ordinary courtjustice because he feared that military justice could not guarantee him a fair trial. ColonelOrozco had cooperated with civilian authorities and his testimony helped the AttorneyGeneral´s Office to file charges against General Uscátegui for forming paramilitarygroups. 40 Through a writ dated March 10, 2003, the Attorney General´s Office issued aresolution of accusation against Colonel Orozco as material author of the crime ofideological forgery of a public document and precluded the investigation of his being analleged perpetrator of the crimes of aggravated homicide, aggravated kidnapping,terrorism, and conspiracy. 4133 Enquiry of Officer Orozco Castro and copy of the substitute official document, quoted by the National General Prosecutor’s OfficeHuman Rights Unit in its decision dated June 21, 1999 regarding the conflict of positive competence promoted by the National ArmyCommander in the official documents filed under UDH 244 and 443 regarding Brigadier General Jaime Humberto Uscátegui and fourother 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 AttorneyGeneral´s Office, Human Rights Unit, in its decision dated June 21, 1999 regarding the conflict of positive competence promoted by theNational Army Commander in the official documents filed under UDH 244 a 443 regarding Brigadier General Jaime Humberto ndUscátegui and four other officers of the Colombian National Army; in: Inter-American Human Rights Commission, Report 34/01, Case12.250, February 22, 2001, Paragraph 13.36 “Retired General Uscátegui Requested Overseeing for his Trial” (“General (r) Uscátegui pidió veeduría para su proceso”), ElColombiano 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 AbogadosJosé Alvear Restrepo.40 “The Attorney General´s Office Ordered the Detention of Retired General Jaime Humberto Uscátegui” (“La Fiscalía General ordenó ladetención 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 AbogadosJosé Alvear Restrepo. 9
  13. 13. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003General Carlos Eduardo Ávila Beltrán, leader of the battalion in charge of protecting andcontrolling Mapiripán on the date of the massacre, is still in active service. In addition, inOctober 2002 he was called upon to be a candidate for promotion, in spite of having beensanctioned by the Office of the Procurator with a “severe reprimand” for his participationin the events of serious violations of human rights in Mapiripán.In the criminal court trial regarding the massacre in Mapiripán, ordinary criminal courtjustice sentenced Army Colonel Lino Sánchez, Commander of Mobile Brigade No. 2 onthe date of the massacre, to 40 years of prison on June 19, 2003. In the same writ, SergeantJosé Millar Urueña and Sergeant Juan Carlos Gamarra were sentenced to 32 and 22 yearsof prison, respectively. The leader of the paramilitary group United Self-defense Groups ofColombia (Autodefendas Unidas de Colombia, AUC is the Colombian acronym), CarlosCastaño, was also sentenced to 40 years of prison as intellectual author of the massacre. 42b. El Salado (Bolívar) MassacreOn February 16, 2000, 300 paramilitary arrived at El Salado, a settlement in El Carmen deBolívar. 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 theparamilitary group had to act is that, out of the 45 persons assassinated, 17 were shot downin the village park, 8 more in the church and the rest at home or while escaping. Many ofthe women assassinated were first sexually abused. The assassinations were carried outwith extreme cruelty. The paramilitary remained in El Salado until February 19, day onwhich they left the village on foot. The massacre of the peasants generated the forceddisplacement of at least 450 families.Social organizations and the Catholic Church had alerted the authorities of the possibleoccurrence of the massacre and had requested that measures be taken to avoid an attack onthe 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 thatmobilizing the troops on land takes two hours, Navy Infantry troops arrived at the villagethree 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. FromFebruary 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 ofthe fact that there had been reports of sexual abuse, no evidence was gathered to establishthe occurrence of such facts or the identity of the alleged perpetrators. The investigationthat was initiated is not making inquiries regarding sexual offenses. The Office of the Procurator is carrying out a disciplinary investigation of nine membersof the Public Force, including Retired Rear-admiral Rodrigo Quiñónez who is also beinginvestigated for another massacre. In March 2001, the Attorney General’s Office proffered42 “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 ofHuman Rights and Political Violence in Colombia (Panorama de derechos humanos y violencia política en Colombia), Bogota BCJP,No. 15, 2000, Page 112. 10
  14. 14. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003a resolution for the indictment of 15 persons belonging to the AUC, for the crimes ofaggravated homicide and paramilitarism. Carlos Castaño Gil, maximum leader of theparamilitary group, is also being investigated.c. Chengue, Settlement in Ovejas (Sucre) MassacreOn January 17, 2001, 34 peasants were assassinated by the AUC in the settlement ofChengue, in the municipality of Ovejas. Several of the victims were assassinated withfirearms, others had their throats cut and others were murdered with stone and wood clubs.After assassinating the civilians, the paramilitary burned 30 houses. The massacregenerated the forced displacement of more than 900 persons out of a population ofapproximately 1.200 inhabitants44 .The population had warned the authorities beforehand of the imminent massacre through aright to petition document signed by 95 settlers in the region sent to the President of theRepublic on October 6, 2000, filed under No. 231486. However, the processing of therequest was limited to transferring it to officials in the Ministry of the Interior and in theMinistry 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 havebeen given to the measures, had there been any adopted. The Military Forces replied onDecember 1, 2000, assuring that the zone that the First Infantry Brigade had jurisdictionover was very extensive and that this made it difficult from an operational point of view toconstantly cover all of the areas considered critical. At least seven of the persons who hadsigned the communication sent to the authorities were assassinated during the paramilitaryattack.In August 2002, the Office of the Procurator filed charges against National Navy RetiredRear-admiral Rodrigo Quiñónez (mentioned before in relation to the El Salado massacre),and against Lieutenant Commander Camilo Martínez, Major Víctor Salcedo, SergeantMajor Rubén Darío Rojas and Sergeant Major Euclides Bossa. 45Rodrigo Quiñónez was also involved in the criminal trial for this massacre. In October2002 he answered an enquiry for the Attorney General´s Office, which did not impose asecuring measure on him. It did, however, deny his request for preclusion and orderedgathering evidence. In spite of being under investigation, Quiñónez was named militaryattaché to the Embassy of Colombia in Israel, where he performed his duties untilNovember 2002.d. Another 626 Massacres Committed by the ParamilitaryThese three massacres committed by paramilitary groups illustrate the common patternsthat characterize this type of multiple violations of human rights. However, we find it44 Human Rights and Sociopolitical Violence data bank of Cinep y Justicia y Paz (BCJP), Night and Mist (Noche y niebla)– Overview ofHuman 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. 11
  15. 15. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003necessary to clarify that 953 massacres were committed from July 1996 to June 2001. Theresponsibility for 66% (629) of these massacres, representing 69.29% (4.037) of thevictims, was allegedly attributed to the paramilitary. 463. Secret Negotiations, Legalization, and ImpunityIn November 2003, the present Government initiated dialogues with the paramilitarygroups. To do so, pursuant to Colombian legislation, it was necessary to eliminate thecondition that previously existed of acknowledging political status to an outlawed armedgroup, for the Government to be able to initiate the dialogues. 47The Government has initiated negotiations with the paramilitary groups on the basis ofimpunity for their war crimes and crimes against humanity. El Tiempo newspaper askedthe Minister of the Interior and of Justice about the measures that the Government wouldadopt 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 orpardon 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 toovercome using a lot of imagination.”48The Ombudsman stated that he was alarmed by the Government’s plans and indicated thatit 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 thatimpunity cannot be the price to pay for peace in Colombia. 492003 decree 128,50 Article 13 indicates that persons demobilized who were part ofoutlawed armed organizations “will be entitled to pardon” if a government organizationcalled Operational Committee for Abandoning Arms (CODA is the Colombian acronym) 51certifies that the demobilized person belongs to an outlawed organization and confirmshis/her will to abandon it. 52The expression “will be entitled to” means that the certification issued by CODA is thesole 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 the46 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 lasdeclaraciones 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 delegatefor the Director of the Colombian Family Welfare Institute, and one delegate for the Ombudsman Office. CODA has the followingfunctions: to certify that the applicant belongs to an outlawed armed organization; to evaluate the circumstances of voluntaryabandonment; to evaluate the demobilized person’s will to re-enter into civilian life; to certify the demobilized person’s belonging to anoutlawed armed organization and his/her will to abandon it; and to process requests for postponement or suspension of the execution of asentence and pardon before the judges for sentence execution and the Ministry of the Interior, of Justice and of Law. The compositionand functions of CODA are contained in 2003 Decree 128, articles 11 and 12.52 See 2003 decree 128, Articles 11, 12, 13 and 21. 12
  16. 16. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003benefit is to be granted, the behavior for which the person would be pardoned will not bedetermined in court. The person would be exonerated from criminal responsibility beforedetermining if he/she committed war crimes or crimes against humanity.The decree contains a provision (Article 21) that apparently would ensure the right tojustice, but that in reality is not an effective safeguard. Pursuant to the provision, afterCODA’s initial exoneration, the prosecutor or the judge could limit such exoneration if theperson has been previously tried or sentenced for crimes that cannot be pardoned oramnestied, pursuant to Colombian law, the Constitution or international treaties ratified byColombia. 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 pardonconferred upon by the CODA certification. Pursuant to Colombian law, a person tried is aperson who answered an enquiry or who has been declared an absent defendant. Given theimpunity 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 morethan 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 theMinister of the Interior. It also means that the victims and the society could not find thisout in time or be able to oppose any efficacious remedy to prevent that crimes againsthumanity go unpunished through this method.Amnesties and pardons may occur as a result of a negotiation process, but these benefitsmust be contained within a perspective of reconciliation and can only take place once thevictims’ 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 acover; it ignores the victims’ right to know the truth. The People’s Ombudsman requestedthat these negotiations be transparent and open to public opinion because the country hasthe right to complete, accurate information. 56The manner in which the Government is holding these dialogues is concerning becausethey do not appear to be thought out for the purpose of leading to a peace process. On thecontrary, they appear to be aimed at giving the members of the paramilitary groups a legalcondition and having them participate, under legal conditions, in the armed conflict. Theinformers’ network and the peasant soldiers programs are propitious programs fordemobilized 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 lasdeclaraciones de Mininterior”), El Tiempo Newspaper, January 15, 2003, P age 1-9. 13
  17. 17. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003C. Breaches of Humanitarian Law Committed by Guerrilla Groups, Paramilitary Groups and State AgentsIn the Colombian armed conflict, all of the combatant groups breach humanitarianregulations and disrespect the basic princip les of humanitarian law, such as the principle ofdistinction between combatants and noncombatants, the principle of immunity for thecivilian population, and the principle of proportionality.1. Taking Hostages and Kidnappings 57From July 1996 to March 2003 (a period of 6 years and 9 months), there were 18.684kidnapping victims. The responsibility for the kidnapping of 11.644 persons (62.32%) wasattributed to combatant groups, representing two thirds of the kidnappings. The kidnappingof 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 allegedlyattributed to common delinquents. 58 No alleged perpetrator was identified for theremaining 1,173 kidnappings 59 (See Chart 1, Column 8).The number of persons who are victims of kidnapping in Colombia is a reflection of thedegrading climate of violence that this country is undergoing. During the period understudy, there was a gradual increase in the number of cases of kidnapping. In 1996-1997 601.754 persons were kidnapped, whereas from 2001 to 2002, 3.115 persons were victims ofkidnapping. Despite having recorded a decrease in the number of kidnappings from 2002to 200361 (with 1.893) as compared to the previous three years, we foresee that the totalnumber 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 1996-1997to seven in 2002-2003. In 1999-2000 and 2000-2001 an average of more than nine personskidnapped per day was recorded. After this constant serious increase from 1996-1997 to2000-2001, the average of kidnapped persons per day slightly decreased: in 2001-2002 itdropped to eight persons and in 2002-2003 to seven. However, we must keep observing to57 The International Convention against the Taking of Hostages Article 1 stipulates the following: “Any person who seizes or detains andthreatens to kill, to injure, or to continue to detain another person in order to compel a third party, namely a State, an internationalintergovernmental organization, a natural or juridical person, or a group of persons, to do so or to abstain from doing any act as anexplicit or implicit condition for the release of the hostage commits the offence of taking of h ostages within the meaning of thisConvention”. 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 whoare in the power of a party to the conflict or its agent, willingly or unwillingly, and who answer with their freedom, their physicalintegrity or their life for the execution of orders given by those in whose hands they have fallen, or for any hostile acts committed againstthem”. 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 ofhumanitarian law. However, we contribute the statistical information on them to give a general overview of the situation of personskidnapped in Colombia. That is why, the average of kidnapping victims per day is broken down by the total number of victims and alsoby 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 June30 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. 14
  18. 18. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003see 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 bycombatant groups. The kidnappings perpetrated by combatant groups went from 743 in1996-1997 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) areallegedly attributed to guerrilla groups and 8.22% (957 victims) to the paramilitary (SeeChart 1, Column 8a and c, Rows G to I). Of the 11,644 kidnappings, 83.79% (9.756 persons) areallegedly attributed to the Revolutionary Armed Forces of Colombia (Farc is theColombian acronym) and to the National Liberation Army (Eln is the Colombianacronym), broken down as follows: Farc 44.04% (5.128) and Eln 39,75% (4.628).The paramilitary g roups were the alleged perpetrators of the kidnapping of 957 persons,corresponding to 8.22% of the total kidnappings committed by combatant groups. Theparamilitary groups went from 33 victims in the first year to 235 in 2001-2002 and to 121so far in 2002-2003. In 2000-2001, the highest number of persons kidnapped allegedly byparamilitary 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 orretired members of the Public Force were involved in committing kidnappings. 62Unfortunately, the National Police Criminological Investigation Center did not reportspecific figures on these cases in its statistics.Girls, boys and women are victims of kidnapping by combatant groups. In spite of theircondition of vulnerability and despite both national and international pressure forcombatant groups not to kidnap minors and to free girls and boys that they have in theirpower, 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. ColonelJorge Plazas Acevedo was detained for the kidnapping and assassination. On the date of the events he was Intelligence Director of theXIII 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 writof accusation against Colonel Plazas, Lieutenant Alexánder Parga and Sergeant Juan José Mosquera, Sergeant Guillermo Lozano, andSergeant 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 theIsraeli entrepreneur, and John Alexis Olarte to 10 years of prison for the crimes of accessory to kidnapping and conspiracy. “Ex-Colonelsentenced to 40 years of jail for assassinating an entrepreneur” (“Condenado a 40 años de cárcel un ex coronel por el asesinato de unempresario”), El Espectador Newspaper, November 7, 2002, www.elespectador.com. On February 22, 2001, in Bogota, the Japanesecitizen Chikao Muramatsu, Vice-president of the company Yasaki Ciemel, and Efraín Díaz, who was driving the vehicle in which theJapanese entrepreneur traveled, were kidnapped by the common delinquents gang “Los Calvos” (Skinheads). On the afternoon of thekidnapping, Police Officers Rubén Darío Toro Bedoya and Jorge Eliécer García Fuentes, who at that time worked in the General PoliceDirectorate and in the Congress of the Republic respectively, installed a blockade on Calle 103 and Autopista Norte, they were in uniformand had their military-issue weapons on them. The policemen stopped the vehicle in which the victims were traveling. Moments latereight more individuals arrived on the scene, among them Rodrigo Bermúdez, alias “El Capi”, and alias “Oscar Javier”, two ex-policemencompanions of Toro and García. That same day Efraín Díaz was freed. One week later it was made known that the Farc had the Japaneseentrepreneur in their power and that they were demanding USD 27,000,000 to free him. Rodrigo Bermúdez confessed that on that sameday of February 22 Chikao Muramatsu had been delivered to the Farc guerrilla fighters: he also confessed that he was working under theorders of “Capuleto”, a Colonel in active service in the Armed Forces. On June 24, 2002, Bogota Specialized Criminal Court Sixsentenced Rodrigo Bermúdez and Guillermo Díaz for the crimes of extortive kidnapping and public document forgery. Police OfficersToro Bedoya and García Fuentes were also investigated. The Farc is still holding Chikao Muramatsu. “Corrupt ex-police officers behindkidnapping 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 TiempoNewspaper, June 25, 2002, Page 2-9; “Sentences for the kidnappers of the Japanese industrialist Chikao Muramatsu” (“Condenas por elsecuestro del industrial japonés Chikao Muramatsu”), El Espectador Newspaper, June 25, 2002, www.elespectador.com. 15
  19. 19. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003 Chart 1 Breaches of humanitarian law in Colombia Right to freedom Taking hostages and kidnappings Number of victims and percentage of alleged authorship, per period July 1996 to March 2003 1 2 3 4 July 1996 to July 1997 to July 1998 to July 1999 to June 1997 June 1998 June 1999 June 2000 Number of Number of Number of Number of Percentage Percentage Percentage Percentage Percentage Percentage Percentage Percentage Alleged perpetrators victims by attributed to attributed to victims by attributed to attributed to victims by attributed to attributed to victims by attributed to attributed to alleged alleged alleged alleged each group combatants each group combatants each group combatants each group combatants perpetator perpetator perpetator 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 IA 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% Guerrilla groupsC 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 Peoples 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 Paramilitary groups 33 1,88% 4,44% 24 0,98% 1,43% 85 3,00% 4,71% 158 4,79% 8,72%I Subtotal: Guerrilla groups and paramilitary (aI=aG + aH) 743 42,36% 100% 1.681 68,70% 100% 1.804 63,68% 100% 1.811 54,90% 100%J Common delinquents* 1.011 57,64% 766 31,30% 1.029 36,32% 1.488 45,10%K Total victims (L=aI+aK) 1.754 100% 2.447 100% 2.833 100% 3.299 100%L Average victims per day (aL= aK ÷ 365) (cL= aI ÷ 365) 4,81 2,04 6,70 4,61 7,76 4,94 9,04 4,96 5 6 7 8 July 2000 to July 2001 to July 2002 to Total March 2003 June de 2001 June de 2002 victims (9 months***) Number of Number of Number of Number of Percentage Percentage Percentage Percentage Percentage Percentage Percentage Percentage Alleged perpetrators victims by attributed to attributed to victims by attributed to attributed to victims by attributed to attributed to victims by attributed to attributed to alleged alleged alleged alleged each group combatants each group combatants each group combatants each group combatants perpetator perpetator perpetator 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 IA 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% Guerrilla groupsC 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 Peoples 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 Paramilitary 301 9,00% 14,23% 235 7,54% 10,84% 121 6,39% 9,15% 957 5,12% 8,22%I Subtotal: Guerrilla groups and paramilitary (aI=aG + aH) 2.115 63,27% 100% 2.168 69,60% 100% 1.322 69,84% 100% 11.644 62,32% 100%J Common delinquents* 918 27,46% 376 12,07% 279 14,74% 5.867 31,40%K Non-identified perpetrators** 310 9,27% 571 18,33% 292 15,43% 1.173 6,28%L Total victims (L=aI+aK) 3.343 100% 3.115 100% 1.893 100% 18.684 100%M Average victims per day (aL= aK ÷ 365) (cL= aI ÷ 365) 9,16 5,79 8,53 5,94 6,91 4,82Source: 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.Notes:*: 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 National Police has broken down the kidnappings committed by non-identified perpetrators only since July 2000.***: The average per day for the period from July to March is calculated based on 274 days.N.B.: The acts attributed to paramilitary as alleged perpetrators do not exclude the eventual participation of State agents by action or omission. 16
  20. 20. Alternate Report to the fifth Colombian State Report to the United Nations Human Rights Committee, presented by the Colombian Commission of Jurists, July 2003Combatant groups in Colombia do not respect humanitarian regulations. They breach,among others, the principle of distinction between combatants and noncombatants and theprinciple of immunity for civilian persons. The Government, on the other hand, has notshown efficacious policies against kidnapping to ensure the safety and protection ofcivilian persons from violations of humanitarian law committed by combatant groups. Inspite of petitions and proposals made by the families of kidnapped persons and by socialand human rights organizations, the absence of will on the part of the Colombian State andof the guerrilla groups has impeded any advance in signing a humanitarian agreement inwhich the guerrilla groups would commit to discontinue kidnapping and where the freeingof all kidnapped persons would be achieved. 632. Use of Prohibited WeaponsIn Colombia, from July 1996 to June 2003, 355 persons lost their lives due to the use ofprohibited 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 personsdied 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 gascylinders64 or booby traps, 226 civilians (91.13%) and 22 combatants (8.87%) died.a. Civilians Killed due to the Use of Prohibited WeaponsDuring the period analyzed, 253 civilians lost their lives as a consequence of combatantgroups using prohibited weapons. Of them, 27 persons died as a consequence of theexplosion of anti-personal land mines and 226 died due to other prohibited weapons (SeeChart 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 wereallegedly attributed to the guerrilla groups and two (7.41%) to State agents. The death ofeight victims (29.63%) was allegedly attributed to one of the non- identified combatantgroups. 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 andboys 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 boobytramps), 226 civilians died during this period. The guerrilla groups were identified as thoseallegedly 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 129victims (57.07%), were girls and boys and women: 64 were minors, 65 women and 16victims were youths (See Chart 3, Row G).63 “Humanitarian Agreement Proposed in Farallones de Cali” (“Proponen acuerdo humanitario en Farallones de Cali”), El TiempoNewspaper, April 24, 2002, www.eltiempo.com, “Although Discussions on the Topic Are Strengthening, a Humanitarian Agreement isFarther 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. Inmost 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 sopowerful that it causes damage to protected persons and goods. 17

×