UNITED
NATIONS |
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A |
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General
Assembly |
Distr. GENERAL A/HRC/10/032
.2009 Original:
ENGLISH and SPANISH
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HUMAN RIGHTS COUNCIL
Tenth
session
Item 2 of
the provisional agenda
ANNUAL REPORT OF THE UNITED NATIONS
HIGH COMMISSIONER
FOR HUMAN RIGHTS AND REPORTS OF THE
OFFICE OF THE HIGH
COMMISSIONER AND OF THE
SECRETARY-GENERAL
Report of the United Nations High
Commissioner
for Human Rights on the situation of
human rights in
[Draft: 31 DECEMBER 2008]
Summary
The
report analyzes the most important developments related to human rights and
international humanitarian law in
The
report covers the period between January and December 2008 and focuses on a
number of issues that have been considered priorities. OHCHR Colombia continues to work on other
matters of interest and concern, which will be the subject of regular
follow-up.
Violations
of human rights and international humanitarian law by the guerrilla groups and
the Colombian Armed Forces, as well as the activities of illegal armed groups
and drug traffickers, coupled with underlying structural problems such as
inequitable distribution of wealth, discrimination and stigmatization of
vulnerable groups, impunity, and difficulties in accessing justice continue to
limit full enjoyment of human rights. In
this respect, the Government has made great efforts to strengthen the rule of
law, mainly through increasing regional State presence in locations previously
under the control of illegal armed groups. However, serious violations of human
rights continued to take place.
Stigmatization
of human rights defenders, opposition leaders and social activists by some
Government officials continued, putting at risk their life, security and
valuable work.
Regarding
extrajudicial executions, the Government demonstrated goodwill and made
significant efforts, which should continue in order to guarantee the
effectiveness of and strict compliance with institutional policies. As of
October 2008, the number of complaints and the number of registered victims
show that institutional policies adopted by the Ministry of Defence and the
Army High Command to combat such practices
have not had a significant impact in reducing the occurrence of these
acts. The report concludes that the extraordinary measures recently taken,
including separating from service some of the most senior military commanders,
have reinforced the zero tolerance policy for human rights violations. It is suggested that these measures be
accompanied by greater operational control over military units, followed by
rigorous and rapid investigations of allegations of extrajudicial execution.
All
parties to the conflict continue to breach international humanitarian law. Moreover, as in the past, the Revolutionary
Armed Forces of
The
report further states that the complexity, variety, evolving nature and
unpredictability of the illegal armed groups which have emerged after the
paramilitary demobilization continue to be a major challenge to the rule of
law. These groups continue to pose
serious risks to the civilian population and a comprehensive response from the
competent authorities is required to address the situation.
It
is acknowledged that the rights to truth, justice and reparations have been
given more prominence in the political and public agendas in 2008. However, to date, few have effectively
enjoyed these rights with victims of actions or omissions of State agents being
particularly marginalized in the process.
The
economic growth of previous years has not resulted in sufficient progress in
the achievement of the Millennium Development Goals. In addition, the gap between those who have
opportunities to generate income and those who do not has not been reduced.
Finally,
the report summarizes some of the main activities undertaken by OHCHR Colombia
during 2008 and proposes nine recommendations to different actors that are
expected to contribute to improving the situation of the human rights and
implementing provisions of international humanitarian law in the country.
The
High Commissioner acknowledges the spirit of cooperation existing between the
Government and her office in the country. The High Commissioner also notes the
openness of the Government to addressing human rights challenges, as
demonstrated during the UPR process.
CONTENTS
Paragraphs Page
Introduction
.. 1 - 5 5
I. Context
... 6 - 8 5
II. Human rights and
international humanitarian law
.. 9 - 89 6
Extrajudicial executions
... 9
- 15 6
Illegal and arbitrary detention
.... 16 - 17 8
Torture, cruel, inhuman and degrading treatment
or punishment
... 18
- 21 8
Enforced disappearance
... 22 - 26 9
International humanitarian law
...... 27 - 41
10
(i)
Guerrilla groups
................ 28 - 34 10
(ii)
The security forces
..... 35 - 37 11
(iii) Kidnapping
................ 38 -
41 11
Illegal armed groups which emerged after demobilization
of paramilitary organizations
.. 42
- 49 12
Justice
........ 50 - 62 13
(i)
The Justice and Peace Law
....... 50 - 54 13
(ii)
Investigation into alleged links
between
members of congress and
paramilitary groups .... 55 - 57 15
(iii) Military Justice System
. 58 - 59
15
(iv) Sexual violence
. 60 - 62 16
Victims
.. 63 -
71 16
Economic, social and cultural rights
.. 72
- 74 18
Vulnerable groups
... 75 -
89 19
(i)
Human rights defenders and
trade union
members
... 75 - 79 19
(ii)
Indigenous and Afro-Colombian groups
and
communities
. 80 - 83 20
(iii) Internally Displaced Persons (IDPs)
.. 84
- 87 21
(iv) Other vulnerable groups
. 88 - 89 22
III.
Main activities of OHCHR Colombia
.. 90 - 97 22
IV.
Recommendations
. 98 - 99 23
Annex
Representative cases
of violations of human rights and breaches
of international
humanitarian law
.. 25
Introduction
1.
The
report covers the period between January and December 2008 and focuses on a
number of issues that have been considered priorities. OHCHR Colombia continues to work on other
matters of interest and concern, which will be the subject of regular
follow-up.
2.
As
reported in 2007, the Government of Colombia and the Office of the High
Commissioner agreed to extend the mandate of the Office in
3.
The
High Commissioner visited
4.
The
Special Representative of the Secretary-General for Children in Armed Conflict
visited
5.
On
10 December,
I. Context
6.
7.
In
2008, the most relevant political and security-related developments affecting
the human rights situation were: a) extrajudicial executions, and the measures
taken by the Government to address them; b) the tension between the Government
and the Supreme Court of Justice as a result of the latters investigations
into alleged links between members of Congress and paramilitary groups (known
as parapolitica); c) the
extradition to the United States in May 2008 of 13 of the most prominent
paramilitary leaders[3]
investigated in cases under Law 975 (Justice and Peace Law)[4];
d) military successes against the FARC-EP, the death of its leader and founder;
and the release, rescue or escape of individuals kidnapped by this guerrilla
group; e) the increased civic awareness demonstrated through mass mobilizations
against illegal armed groups and in favour of respect for human rights; and f)
the economic slowdown in the context of the world financial crisis and the
significant impact felt in the last quarter of the year from the crackdown of
illegal investment schemes that lured thousands of people with promises of high
payouts.
8.
Progress
in the achievement of the Millennium Development Goals remains slow. This is of particular concern with respect to
closing the gap between those who have more opportunities, settled particularly
in the major urban centres, and those excluded from development and
marginalized with respect to goods and services provided by the State, living
mainly in rural areas and depressed urban areas.[5]
II. Human rights and
international humanitarian law
Extrajudicial executions
9.
In
2008, OHCHR Colombia continued to work with the Ministry of Defence to directly
bring alleged cases of extrajudicial executions to the attention of senior
military commanders. In January 2008, the Ministry of Defence issued a
Comprehensive Human Rights and International Humanitarian Law Policy for the
security forces, which included, among other initiatives, the establishment of
operational legal advisers within the Ministry to ensure that military
operations comply with international humanitarian law standards. In addition,
senior civilian and military officials have repeatedly and publicly stated that
they were willing to adopt measures to protect and respect human rights,
including eradicating extrajudicial executions.
10.
In October 2008, the President separated three
Generals from service, as well as over 24 more officers including four
Colonels, and took other disciplinary measures for an "inexcusable lack of
diligence on the part of officers in the rigorous investigation of alleged
cases of irregularities in their jurisdiction".[6] This was an important signal to reinforce
the announced "zero tolerance" policy for human rights
violations. In November 2008, the Chief
of Army resigned, the Ministry of Defence announced a number of measures[7]
and the President initiated discussions with senior military commanders to
address complaints of extrajudicial executions.
11.
The
number of complaints about extrajudicial executions and the number of
registered victims[8]
showed that institutional policies adopted by the Ministry of Defence and the
Army High Command to combat this practice have not, as of October 2008, led to
a significant decrease in these acts.
This indicates the need for renewed efforts to guarantee the
effectiveness and strict compliance with institutional policies established to
prevent and sanction extrajudicial executions.
12.
As
of November 2008, the Attorney Generals Office has initiated investigations on
112 cases of alleged extrajudicial executions which occurred in 2008.[9] In addition, about 473 additional cases, most of which occurred in 2006 and
2007, were referred to the Attorney Generals national Unit of Human Rights and
International Humanitarian Law in 2008. This
Unit is currently investigating 716 cases related to over 1,100 victims. These figures confirm that extrajudicial
executions are not isolated events, but an extensive practice committed by a
large number of military units throughout the country. During 2008, according
to information obtained by OHCHR Colombia, in some locations such as Antioquia,
reports of cases have increased.
13.
In
addition to the trends described in previous reports of the High Commissioner,[10]
the emergence of new modalities of extrajudicial executions suggests greater
complexity and sophistication in the planning and execution of this crime.
OHCHR Colombia was able to confirm the existence of networks pretending to
offer employment to victims in places far away from their home towns,
facilitating their transport to such places, where they were executed and
presented as "death in combat".
According to a number of investigations, these networks (possibly
including members of the army) allegedly reported the victims as members of
guerrilla groups or other illegal armed groups which emerged after the
paramilitary demobilization, and prepared intelligence reports to corroborate
such affiliations. At the same time,
victims have repeatedly been reported as unidentified persons, even if they
carried identity documents, or their identity was known. This practice seems to
aim at avoiding the identification
of persons reported missing and hampering investigations.
14.
The
absence of effective control by army commanders might have created fertile
ground for this very serious violation of human rights. Economic incentives, additional days of leave
and recognition given without proper control of those who presented these
"deaths in combat", might have also encouraged the establishment and
continuation of this disturbing practice.
At the same time, the lack of a clear message rejecting such a practice
inside the army could have allowed the perpetuation of such violations.
15.
Additional
actions and greater collaboration between the Ministry of Defence and the
Attorney Generals Office are needed to eradicate and sanction extrajudicial
executions. The Procurator General and
the Attorney General should intensify efforts to investigate cases in the
shortest possible time.
Illegal and arbitrary detention
16.
In
some locations, such as
17.
Victims
of these violations, including human rights defenders and community leaders,
are usually held without proper legal justification, sometimes for periods up
to two years. In addition, in Antioquia
and Chocσ, several cases of illegal detention carried out by the army have been
reported. Moreover, OHCHR Colombia
received reports of actions by the National Police, particularly detentions,
without appropriate legal justification, of individuals belonging to vulnerable
sectors of society, especially from poor neighbourhoods in
Torture, cruel,
inhuman and degrading treatment or punishment
18.
OHCHR
Colombia was informed of cases of cruel, inhuman and degrading treatment
attributed to members of the security forces in Antioquia,
19.
In
Chocσ and
20.
In
the prison of
21.
The
Government has taken important steps to train public officials and military
officers on international standards with a view to preventing torture. However, as acknowledged by the Government,
challenges remain.[11] The Government would take a significant step
forward by acceding to the Optional Protocol to the Convention Against Torture
(OPCAT).
Enforced disappearance
22.
OHCHR
Colombia continued to monitor cases of enforced disappearance, particularly in
certain municipalities, such as
23.
Victims
of disappearances are usually young unemployed men from poor families and/or
inhabitants of poor neighbourhoods or isolated rural areas. Human rights defenders and trade union
members are also among the victims of disappearances.
24.
The
Attorney Generals Office has investigated 111 cases of enforced disappearance
in 2008. Most of these cases were
referred to its national Unit of Human Rights and International Humanitarian
Law, after preliminary investigations by Special Impact Commissions.[12] This Unit also conducted a total of 39
exhumations, but the remains recovered are still in the process of
identification. Other exhumations during
the reported period, as referred to below, have been conducted in the framework
of the Justice and Peace Law.
25.
A
pilot phase of the National Plan for the Search for Disappeared Persons, which
focused on the situation in Casanare, was largely limited to collecting
information for referring to the Attorney Generals Office and training public
officials. As acknowledged by the Government, this and other positive
institutional developments, such as the establishment of the National Search
Commission and the Rapid Search Mechanism, would require further efforts to be
effective. Victims organizations and
judicial authorities agree that there has been limited effectiveness in the
matching of information and, overall, a degree of negligence in the functioning
of the above-mentioned institutions.[13] These organizations have further criticized
the requirement that a "declaration of presumed death" be made, in
order to, among other things, receive humanitarian assistance from the
Government. In their view, this
requirement inflicts additional emotional damage on the families and
"re-victimizes" them.
26.
The
ratification of the International Convention for the Protection of All Persons
from Enforced Disappearance, as the Government voluntarily committed itself to
during the UPR examination in December 2008, would be a step toward
guaranteeing a more comprehensive and effective response to the claims of
victims.
International humanitarian law
27.
OHCHR
Colombia continued to record serious breaches of international humanitarian law
committed by all parties to the conflict. Moreover, as in the past, the FARC-EP
and the ELN continued to refuse to be bound by international humanitarian law.
(i) Guerrilla groups
28.
Among other cases, selective killings and the
massacre of four coca leaf eradicators in
29.
The
FARC-EP continued undertaking indiscriminate attacks, seriously affecting the
civilian population, such as the launching of explosives which killed three
individuals in Corinto (Cauca) in May 2008; acts of terrorism, such as the
attacks on the Cali Palace of Justice (Valle del Cauca), which resulted in the
death of four persons and wounded 26, in September 2008, and the one on the
village of Ituango (Antioquia) in August 2008, in which 55 persons were injured
and seven, including one child, died.[14]
30.
Increased
planting of anti-personnel mines by guerrilla groups has caused a high number
of civilian and military casualties, among them children.[15] These were the cases, for instance, in the
death in Palmira (Valle del Cauca) of a pregnant woman and her nine-month-old
daughter in January 2008; the three children who died in the Awα indigenous
reservation of Planadas de Telembi (Nariρo) in June 2008; and the case of a
6-month old child and her 17-year old mother wounded in Valdivia (Antioquia) in
October 2008. Moreover, in December
2008, two persons inside a Colombian Institute of Family Welfare (ICBF) vehicle
travelling to San Vicente del Caguan (Caqueta), died as a result of a road-side
explosive allegedly triggered by the FARC-EP.
31.
The
FARC-EP and ELN continued to recruit children for intelligence, logistical
support and direct involvement in hostilities.
For example, in
32.
There
were reports of forced displacement caused by threats and acts of violence attributed
to the FARC-EP and the ELN. Other
situations of forced displacement were the result of armed confrontation
between these guerrilla groups, as was the case in
33.
Several
cases of sexual violence against women and girls were attributed to the
FARC-EP, such as the assault against a 14-year old girl, who had been recruited
in
34.
Ambulances
and medical missions continued to be threatened and attacked by the
FARC-EP. For example, two wounded
soldiers were taken out of an ambulance and killed in Yarumal (Antioquia) in
April 2008 by members of this guerrilla group.
(ii) The security forces
35.
OHCHR
Colombia recorded indiscriminate attacks, allegedly carried out by members of
the security forces, which affected the civilian population.
36.
In
several communities of Chocσ, such as Quibdσ and
37.
OHCHR
Colombia also observed that members of the army occupied civilian properties,
particularly houses, schools and places of recreation. This was reported, for instance, in relation
to the school belonging to the indigenous communities of the reservation Nasa
Kwe΄sx Kiwe (Valle del Cauca).
(iii) Kidnapping
38.
According
to the Ministry of Defence, through FONDELIBERTAD,[16]
the number of kidnapped persons in
39.
Guerrilla
groups continued taking hostages. In
Nuqui (Chocσ), in January 2008, the FARC-EP kidnapped six tourists; in
40.
Also
in January and February, the FARC-EP unilaterally released five former
congressmen and one former vice-presidential candidate. Subsequently, in a bloodless military
operation in July 2008, a former presidential candidate, three American
citizens and 12 members of the security forces were rescued.[17] Finally, in October 2008, another
former congressman managed to escape.
However, the FARC-EP still holds many other persons, some of whom are
portrayed by this guerrilla group as being exchangeable against imprisoned
FARC-EP members, as part of so-called humanitarian exchanges.
41.
Under
the circumstances, consideration may be given to understanding systematic,
protracted and widespread taking of hostages, who are kept under the most
inhuman conditions, as a crime against humanity. As repeatedly expressed by the High
Commissioner, the release, rescue and escape of the above-mentioned individuals
should not allow other kidnapped persons to be forgotten.
Illegal armed groups which emerged after demobilization of paramilitary
organizations
42.
OHCHR
Colombia continued to monitor the operations of several illegal armed groups,
which have emerged throughout the country after the paramilitary
demobilization, particularly in Antioquia,
43.
The
ranks of these groups include many demobilized and non-demobilized former
members of paramilitary organizations who were recruited voluntarily or
forcibly. Reports indicate that those who resist engagement are killed, or are
forced to flee in order to preserve their life.
Middle-ranking members of the former United Self-Defence Groups of
Colombia (AUC)[18]
are said to play commanding roles within these groups.
44.
Even
if these groups may function under some form of hierarchy, they are far from
being structured as military-type organizations and they do not appear to
exercise exclusive territorial control.
Furthermore, in many areas, they do not seem to act in a coordinated,
sustained or concerted manner.
45.
A
significant number of murders, death threats and other crimes for which these
groups are responsible seem to bear the characteristics of "social
cleansing". However, in general,
their actions appear to correspond to the settling of personal disputes
relating to drug-trafficking activities.
Likewise, and unlike other types of criminal groups, they appear to be,
in some instances, enforcing "social control". In addition, some of
them profit from the economic and political structures that the former
paramilitary organizations left behind.
46.
In
different locations, the names of some of these groups, such as the "Black
Eagles (Aguilas Negras), and others
related to the former AUC or suggesting paramilitary re-arming similar to the
former AUC, have been indiscriminately used by criminal organizations and
unknown individuals in order to instil fear and generate confusion.
47.
In
places such as Antioquia, Chocσ, Guaviare and
48.
Despite
the above, OHCHR Colombia continues to receive information confirming that some
of these groups do indeed operate as the former paramilitary organizations
did. Such groups do have military
structures and responsible hierarchy, as well as the capacity to exercise
territorial control. In addition to
being able to plan, carry out and sustain military-type operations, they do act
with a political and ideological orientation, similar, if not equal, to the former
AUC. These groups have been located
particularly in Guaviare, Meta and Vichada, as the self-styled
"Anti-terrorist revolutionary army of
49.
Regardless
of their characterization, the violence generated by all illegal armed groups
which emerged after the paramilitary demobilization cannot be considered as a
mere common crime issue. Their crimes,
committed in the context of the armed conflict, produce an alarming level of
violence against the civilian population.
Their complexity, variety, evolving nature and unpredictability continue
to be a major challenge to the rule of law.
They continue to pose serious risks to the civilian population and a
comprehensive, effective and timely response is required from the competent
authorities to address this phenomenon.
This response should, among other things, recognize the dimensions of
the problem, adopt adequate operational changes, including in rules of engagement,
to fight them, as well as take preventive actions to protect the civilian
population.
Justice
(i) The Justice and Peace Law
50.
Proceedings
under the Justice and Peace Law, which confers the benefit of a maximum of
eight years of imprisonment to demobilized persons who truly contribute to the
discovery of truth, justice and reparation of victims, continued to progress
very slowly.[19] As of 31 October 2008, out of 3,637
individuals facing charges under the Law,[20]
only 1,626 have been subject to the first procedural step, known as voluntary
depositions (versiones libres).[21] The Supreme Court of Justice decided in 2008
that it would not be necessary to wait for the completion of the voluntary
depositions in order to bring partial indictments. However, at the date of the finalization this
report, only 20 persons have been partially indicted, and no one has yet been
convicted.
51.
This
makes it evident that there will be fewer individuals tried under this Law than
originally foreseen. Further, not all
those facing charges are accused of serious crimes, over which the Law has
competence, and above all, there is no certainty that all demobilized
individuals who have committed serious crimes have been charged. Unfortunately, more than three years after
this law was adopted, the expectations for it are yet to be fulfilled.[22]
52.
During
the phase of voluntary depositions, a number of events have been brought to
light, which have allowed the Attorney Generals Office to initiate or reopen
investigations of cases, previously left unaddressed.[23] These cases include several relating to
senior public officials allegedly linked with paramilitary groups as well as
those in which the victims were trade unionists or members of the political
party Union Patriσtica.[24] Other cases, however, remain unpunished, due
to the refusal of those facing charges under the Justice and Peace regime to
fully collaborate with other units of the Attorney Generals Office. This demonstrates the urgent need to review
the Law, in order, for instance, to compel those facing charges to provide in a
comprehensive and timely manner all information that they may possess to enable
the Attorney Generals Office to bring other individuals to justice. OHCHR Colombia urges the Government to
consider reforms that would improve and accelerate the implementation of
Justice and Peace Law.
53.
One
of the most concrete results of implementing the Law continues to be the
exhumation of clandestine graves, and other places where victims of the
paramilitaries have been disposed of, as well as the recovery of human
remains. According to the Attorney
Generals Office, during 2008, over 410 clandestine graves have been found and
the remains of over 560 victims recovered, making an estimated total of 1,420
clandestine graves and remains of 1,750 bodies, since the initiation of the
voluntary depositions. However, an
additional effort still seems to be required to accelerate the proper
identification and handover of the remains to the families, in accordance with
acceptable international standards. The international community should also
increase its support to the Colombian authorities to resolve this particular
issue. At the date of the finalization of this report, only the remains of 249
victims have been delivered to the families.
54.
The
extradition in May 2008 of 13 of the most prominent demobilized paramilitary
leaders to the
(ii) Investigation into alleged links between members of Congress and
paramilitary groups
55.
The
Constitution states that members of Congress should be investigated and tried
only by the Supreme Court of Justice without appeal. In this context, the Supreme Court continued
its investigations into alleged links between members of Congress and
paramilitary groups and expressed serious concerns about the Governments
criticism of these investigations, portrayed as attempts to undermine judicial
independence.
56.
At
the date of the finalization of this report, 72 Congressmen face charges as a
result of the investigations before the Supreme Court, of which 11 have been
convicted and four acquitted.
Twenty-five of these congressmen have resigned in order not to be
investigated by the Supreme Court, but by the Attorney Generals Office. Furthermore, the Attorney Generals Office
has investigated over 250 additional cases of a similar nature against senior
public officials, including ministers, governors, mayors or directors of major
public institutions. This confirms the
extent of infiltration by paramilitary groups within the State, and the need to
continue combating this phenomenon.
57.
These
judicial processes constitute a positive step in the struggle against impunity
and the strengthening of the rule of law, which needs to be preserved and
shielded from any politicisation. In
this respect, the Supreme Court could further solidify its decisions, by, for
instance, considering rigorous arrests warrants and preventive imprisonment, as
well as ensuring consistent decisions and guaranteeing the right to appeal.
(iii) Military Justice System
58.
OHCHR
Colombia was encouraged that the
59.
Between
January and November 2008, military judges referred 148 cases to the Attorney
Generals Office, which is more than double the number of referrals made in
2007.[25] Nonetheless, military judges still accept
jurisdiction in cases which should be tried in civilian courts. In some instances, they even ordered parallel
investigations into cases that the Attorney Generals Office was
investigating. In this context, the
Attorney Generals Office should retain exclusive competence over serious
violations of human rights and international humanitarian law and accelerate
the investigation of cases it receives.
(iv) Sexual violence
60.
Crimes
of sexual violence in the context of the armed conflict remain characterized by
a high level of impunity. For example,
in the context of the voluntary depositions of the Justice and Peace Law, 15
cases of sexual violence have been mentioned, of which only four have been
confessed.[26]
61.
In
an effort to combat sexual violence, and in the context of the follow-up to its
2004 decision T-025 regarding displaced persons,[27]
the Constitutional Court ordered the Government in April 2008 to develop plans
to prevent sexual violence and to provide assistance to displaced women who are
victims of sexual acts (Order 092).[28] Furthermore, the Court ordered, as part of
Order 092, the Attorney Generals Office to pursue investigations in 182
specific cases. Nonetheless, no progress
concerning these investigations has been reported to date.
62.
In
investigating these crimes, as is the case with other crimes, the Attorney
Generals Office faces structural problems, including insufficient resources,
weak data consolidation capacity, lack of appropriate investigative frameworks
and coordination difficulties.
Victims
63.
Previous
reports of the High Commissioner highlighted the need to guarantee the rights
of all victims and the importance of placing them at the centre of relevant
public debates. In 2008, the plight of victims and their rights gained momentum
within the political and public agendas.
Among the victims, women have faced the most obstacles and
stigmatization in the pursuit of justice, and have suffered most severely from
displacement due to fear of reprisals and threats.[29]
64.
The
adoption by the Government of Decree 1290 in April 2008, creating an
administrative reparation programme for victims of illegal armed groups, was a
positive step to improve compliance with the right to reparations. The Decree, however, does not apply to
victims of State agents and therefore requires other mechanisms to provide
benefits to all victims without discrimination.[30]
65.
A
draft law known as the "Statute or Law of victims",[31]
currently under discussion in Congress, even if not perfect, may serve to fill
some of the gaps and shortcomings of the Decree 1290. However, OHCHR Colombia expressed serious
concerns that the draft law, after legislative discussions in the First
Committee of the House of Representatives, has become discriminatory. The draft law, as it currently stands,
excludes certain persons from having access to a reparations programme, for
example, future victims, same sex couples and victims of breaches of
international humanitarian law. In
addition, the draft law does not allow victims of acts or omissions by State
agents to have direct access to administrative reparations. This imposes conditions on these victims even
more onerous than those currently in force to gain access to reparations
through courts.[32]
66.
The
judiciary has also paid special attention to the rights of victims. In various decisions, courts have, for
example, confirmed the right of victims to participate in the voluntary
depositions under the Justice and Peace Law; the need to take into account a
gender perspective when considering protection mechanisms; the relevance of
non-monetary reparations; and that providing regular social services does not
amount to a form of reparation.[33]
67.
Public
accounts about the sufferings of those kidnapped by the FARC-EP and of families
of victims of extrajudicial executions have generated a feeling of rejection
and solidarity across the Colombian society.
The media has helped to create social awareness, and the international
community has supported the initiatives aimed at protecting and promoting the
rights of victims. This has allowed
victims organizations to achieve greater visibility and effectiveness in their
work.
68.
There
has been some progress in finding out the truth about past crimes, which has
helped to develop a better social understanding of the importance of enjoying
the right to truth. The "voluntary
depositions" under the Justice and Peace Law have confirmed the numerous
human rights reports previously presented, and allowed many victims to recover
their memories and mourn their dead.
Nonetheless, obstacles such as the slow pace of court proceedings,
failure to collaborate, and, sometimes, even failure to attend the sessions by
those facing charges under the Law, or unsatisfactory participation by the
victims in these sessions, must be addressed as a matter of urgency.[34]
69.
Other
initiatives on this subject are also important, such as the report on the
crimes committed in
70.
The
right to justice continues to be restricted by prevailing impunity, lack of
access to justice, and structural flaws in the administration of justice. These restrictions have also been identified
even in special and newly established judicial procedures, such as those under
the Justice and Peace Law.
71.
The
protection of victims and their organizations continues to be a challenge,
which must be faced by the competent authorities with decisive and effective
action.
Economic, social and cultural rights
72.
Poverty,
extreme poverty and inequity continued to be of concern, despite the
Governments programmes to reduce it, affecting particularly indigenous
communities, Afro-Colombian groups, internally displaced persons, women,
persons with disabilities and children.
OHCHR Colombia received reports noting with concern that limited
enjoyment of the right to food has led, in some communities, to acute
malnutrition. Likewise, limited
availability of housing and precarious employment are also of concern.
73.
With
the reform of the legal framework regulating strikes, important international
principles have been incorporated into the national legislation. For instance, it is now for courts to decide
on the legality of strikes, rather than the Government as was previously the
case, and the acceptance of both parties is required before an arbitration
tribunal may be called to resolve a strike situation. Additionally, Congress is currently
considering adopting legislative measures to ensure the right to water. The ratification process for the Convention
on the Rights of Persons with Disabilities has begun, although its Optional
Protocol has not been signed by the Government.
74.
Several
of the Millennium Development Goals indicators do not reflect sufficient
progress. Despite the economic growth of
recent years, for instance, poverty, measured in terms of income, has not
substantially decreased. Moreover, fewer
than 48% of children have access to preschool education; adolescent pregnancy
continues to increase and now affects more than 20.5% of women aged 15-19; 16%
of Colombian houses are in precarious and undignified conditions.[36]
Vulnerable groups
(i) Human rights defenders and trade union members
75.
OHCHR
Colombia recorded a significant number of attacks in 2008 against human rights
defenders and trade union members, principally in Antioquia, Arauca, Bogotα,
Nariρo,
76.
Official
figures from the Ministry for Social Protection recorded 23 murders of trade
unionists during the first semester of 2008, most of which occurred in
Antioquia and Cauca.[38] A national union federation, the Central Unitaria de Trabajadores (CUT),
however, reported a total of 41 persons murdered from 24 different labour
organizations, during the same period.
77.
Although
in many cases murders and threats against these vulnerable groups have been
attributed to members of illegal armed groups that emerged after the
paramilitary demobilization, as well as to members of the FARC-EP and the ELN,
members of the security forces have also allegedly been involved.
78.
In
the current context of polarization and confrontation between Government
officials and members of the non-governmental organization community, threats
against and stigmatization of human rights defenders, opposition leaders and
social activists have become more intense.[39] As mentioned above, some senior Government
officials have frequently and publicly expressed negative comments regarding
their work. During the civic
mobilization against crimes committed by members of the AUC in March 2008, a
breakdown in the dialogue between civil society and the Government was
evident. As a result, the concerted
elaboration of a National Human Rights Action Plan remains stalled.
79.
OHCHR
Colombia recognizes the efforts of the Government in strengthening the Ministry
of Interior protection programme, which provides for the protection of, among
others, human rights defenders. However,
the challenge to minimize the risks to the life and safety of human rights
defenders remains, in particular due to the stigmatization of their legitimate
work.
(ii) Indigenous and Afro-Colombian groups and communities
80.
Indigenous
and Afro-Colombian communities are particularly vulnerable, mainly because they
occupy territories of strategic importance to parties to the internal armed
conflict and networks of drug traffickers.
These territories are also of strategic value to Colombian and
international companies. The rights of
these communities to life, to not be forcibly displaced, to prior, free and
informed consultation on decisions affecting their communities, and to freedom
of movement are violated.[40]
81.
Afro-Colombian
populations in Nariρo and Chocσ, as well as the Awα, Nasa,
82.
Indigenous
communities, such as the Kofαn and the Siona in Putumayo, the Coreguage in
Caqueta,
83.
In
November 2008, there were several mobilizations of indigenous organizations
seeking to claim the legitimate rights of their communities. Among the issues of concern to these
communities, concerns which the Afro-Colombians share, collective rights and
ownership of productive lands have been especially emphasized. During these events, OHCHR Colombia observed
excessive use of force by the National Police.[41] The lack of internal oversight and the use of
different police forces without unified and responsible command might have
encouraged these excesses. Furthermore,
OHCHR Colombia is concerned at the stigmatization of the indigenous communities
and their leaders by Government officials and members of the security forces.
(iii) Internally Displaced Persons (IDPs)
84.
All
the figures show a continuous growth in the numbers of IDPs, with a
disproportionate effect on communities located in regions where the armed
conflict is most intense.[42] Among the causes of displacement in some
locations, OHCHR Colombia is especially concerned at actions of illegal armed
groups which emerged after the paramilitary demobilization aiming at stripping
civilian populations of their lands.
Other factors which cause concern include the increased use of anti-personnel
mines by the FARC-EP and the ELN; the intensification of forced recruitment by
these guerrilla groups, and armed confrontations between them;[43]
the eradication of illegal crops; and the operations of security forces against
illegal armed groups.
85.
OHCHR
Colombia received information about the unresolved murder of nine IDPs and of
threats against at least another 250, many of whom were leaders of IDP
organizations. Furthermore, OHCHR
Colombia observed that Acciσn Social, the
Government entity in charge of assisting IDPs, sometimes agrees to register
IDPs only under pressure of legal actions (acciones
de tutela). IDPs suffering this
restriction of their rights are normally those who claimed to have been
forcibly displaced by illegal armed groups or the counter-insurgency actions of
security forces.
86.
Constitutional
Court decision T-025 of 2004, and subsequent orders, indicated the persistence
of an "unconstitutional state of affairs", with respect to the
assistance provided to IDPs. In
87.
OHCHR
Colombia continues to value the relevance of an
Ombudsman Institution with a presence throughout the country. However, it was noted
with concern that the established early warning system of the Ombudsman (SAT) is
not fully and effectively utilized. In particular, it was noted that risk
situations reported by the early warning system, which should be acted upon by
the Ministry of Interior-led Inter-institutional Early Warning Committee
(CIAT), produced fewer alerts.[45]
(iv) Other vulnerable groups
88.
In
2008, there were restrictions on freedom of expression, often manifested
through threats against journalists, particularly in the interior of the
country, and new modes of intimidation of the media, including bringing legal
actions for defamation.
89.
OHCHR
Colombia continues to be concerned with the situation of lesbian, gay,
bisexual, transgender and transsexual persons (LGBTT), whose rights to life and
to non-discrimination because of their sexual orientation have been violated.
The organization Colombia Diversa
reported 67 murders of LGBTT in 2006-7.
III. Main activities of OHCHR
90.
As
of November 2008, OHCHR Colombia received 1,262 complaints and followed-up on
1,257 of them. A total of 231
observation missions were undertaken, which represented a total of 656 days in
the field. Such missions constitute the
most substantive way to collect information for case analysis on the human
rights violations. OHCHR Colombia participated in a large number of meetings
with authorities and representatives of civil society in order to improve its
access to information and analysis. Many
of these meetings took place in the most remote locations where the
consequences of the armed conflict are most acute.
91.
OHCHR
Colombia provided the Ministry of Defence with ongoing advice on human rights
and international humanitarian law and supported the recent process of
identifying and reviewing cases of alleged extrajudicial executions. OHCHR
Colombia provided advice during the drafting process of the Decree 1290 to the
Government and on the draft law of victims during legislative deliberations.
92.
OHCHR
Colombia is in the process of compiling and reviewing all recommendations so
far made to
93.
With
respect to the rights of women, OHCHR Colombia supported the follow-up process
on
94.
OHCHR
Colombia continued to support the elaboration of the National Human Rights
Action Plan until it became stalled, as well as the production of the National
Human Rights Education Plan. As part of
a project co-financed by the European Union, OHCHR Colombia organized a series
of workshops, training and negotiation sessions to ensure that municipal
development plans incorporate a human rights perspective. In this project, competent authorities were
provided with methodological tools for developing such plans. OHCHR Colombia
also provided human rights training tools to the School for Public
Administration.
95.
OHCHR
Colombia trained 180 military judges on human rights, and produced a guide, as
well as a leaflet for victims, regarding enforced disappearance. In addition, OHCHR Colombia participated in
the organization of an international seminar on enforced disappearance,
entitled "Without Trace" in June 2008.
96.
At
the request of the Ministry of Interior/Department for Ethnic Affairs, OHCHR
Colombia organized seminars and produced a publication on the right of
indigenous communities to prior, free and informed consultation on decisions
affecting these communities. OHCHR Colombia further supported the Ministry by
strengthening reconciliation centres (centros
de convivencia ciudadana)[46]
and training public officials in charge thereof.
97.
OHCHR
Colombia issued 26 statements on a variety of matters of concern and
distributed 98.675 copies of
81 different human rights publications, reports and compact disks to public
officials, representatives of civil society and the general public. In the context of the 60th anniversary of the
Universal Declaration of Human Rights, in addition to the commemorative
celebration of 10 December, OHCHR Colombia published a large number of
pedagogical materials to explain the content and spirit of the Declaration.
IV. Recommendations
98.
The
High Commissioner reiterates all her previous recommendations that have not been
implemented, or have been only partially implemented, and again urges the
Government, illegal armed groups and civil society at large to give priority to
full respect for human rights and international humanitarian law.
99.
The
High Commissioner calls for dialogue and negotiations to achieve lasting peace
and encourages all actors to consider, in particular, the following
recommendations:
(a)
The
High Commissioner calls on
all parties to the conflict to fully accept and abide by international
humanitarian law, respecting, without exception, the life, integrity and
property of the civilian population. The
High Commissioner further requests
members of illegal armed groups to immediately and unconditionally release all
kidnapped persons, including those who, taking part in hostilities, are subject
to prolonged periods of deprivation of liberty with total disregard for the
minimum human treatment required by international humanitarian law.
(b)
Recognizing
the concern expressed by the Government about the gravity of extrajudicial
executions, and its willingness to address the issue, the High Commissioner urges the Government to
implement fully and quickly the measures announced to eliminate the practice of
extrajudicial executions and to intensify cooperation with the Attorney
Generals Office for the rapid investigation, judgment and punishment of these
crimes.
(c)
The
High Commissioner encourages
the Attorney Generals Office to accelerate proceedings under the Justice and
Peace Law, as well as to ensure that all demobilized members of illegal armed
groups who have committed serious crimes be tried under the Law and effectively
contribute to the rights to truth, justice and reparations for victims.
(d)
The
High Commissioner calls on
the judicial authorities, in particular the Attorney Generals Office, and the
oversight mechanisms to strengthen disciplinary investigations and control with
a view to increasing protection of human rights defenders and trade union
members, including in the cases of their public stigmatization for their work,
and to combat impunity. In particular,
the High Commissioner encourages
the Government and the Procurator General to decisively support such
investigations regarding public officials.
(e)
The
High Commissioner urges the
Government to guarantee the rights of the civilian population against the
actions of illegal armed groups which emerged after the paramilitary
demobilization, by implementing prompt and effective measures of prevention and
protection.
(f)
The
High Commissioner encourages
the Government to take specific preventive measures in order to eliminate the
disturbing trends of increased displacement, and to protect the displaced
population, taking better advantage of the Ombudsmans Early Warning System.
(g)
The
High Commissioner calls upon
the Government and the judicial authorities, in particular the Attorney
Generals Office, to ensure that necessary material, human and financial
resources are provided so that crimes of sexual violence and crimes against
women are effectively prevented, investigated, judged and punished.
(h)
The
High Commissioner recommends
that the Government address the rights of all victims without discrimination,
and that it intensify its efforts to reach consensus on policies consistent
with international standards, with a view to placing victims at the centre of
its policy agenda and ensuring that the rights to truth, justice and
reparations are effectively enjoyed by all.
(i)
The
High Commissioner urges the
Government to give priority to the achievement of the Millennium Development
Goals as part of its social policy, securing the provision of appropriate
resources and paying particular attention to the situation of the most
vulnerable.