IACHR

Press Release

Annex to Press Release 144/12

IACHR'S Preliminary Observations on Its Onsite Visit to Colombia

December 7, 2012

Bogotá, Colombia—The Inter-American Commission on Human Rights (IACHR) carried out an onsite visit to Colombia December 3-7, 2012, in response to an invitation from the State, in order to observe the human rights situation in the country. The delegation was composed of the Chair, José de Jesús Orozco Henríquez; the First Vice-Chair, Tracy Robinson; the Second Vice-Chair, Felipe González; and Commissioners Rosa María Ortiz and Rose-Marie Antoine, as well as Executive Secretary Emilio Álvarez Icaza L., Assistant Executive Secretary Elizabeth Abi-Mershed, and staff of the Executive Secretariat.

During the visit, the various IAHCR delegations visited Bogotá (D.C.), Quibdó (Chocó), Medellín (Antioquia), and Popayán (Cauca). The delegation held meetings with Colombian President Juan Manuel Santos; Vice President Angelino Garzón; Defense Minister Juan Carlos Pinzón; the Minister of Justice and Law, Ruth Stella Correa Palacio; the Minister of the Interior, Fernando Carrillo Flórez; the Minister of Foreign Relations, María Ángela Holguín; the Vice Minister of Multilateral Affairs of the Ministry of Foreign Relations, Patti Londoño Jaramillo; the Ministry of the Interior's Vice Minister for Participation and Equality of Rights, Aníbal Fernández de Soto; the Vice Minister of Criminal Policy and Restorative Justice, Farid Samir Benavides; the Vice Minister of Public Health and Social Services, Martha Lucía Ospina Martínez; the Director of the Presidential Program for Human Rights and International Humanitarian Law, Alma Viviana Pérez; the Director of the National Protection Unit, Andrés Villamizar; the Director of the Unit for the Support and Integral Reparation of Victims, Paula Gaviria Betancur; the Director General of the Special Administrative Unit for the Management of Restitution of Dispossessed Lands, Ricardo Sabogal Urrego; the Director of the Administrative Department for Social Prosperity, Bruce Mac Master; the Director General of the National Penitentiary and Prison Institute, Brig. Gen. Gustavo Adolfo Ricaurte Tapia; and the Director General of the State Legal Defense Agency, Adriana Guillén Arango. The delegation also met with representatives of these ministries and offices, as well as representatives of the Ministry of Agriculture and Rural Development, Ministry of Culture, Ministry of Labor, Ministry of Health and Social Protection, Ministry of Education, Ministry of Housing, the National Police, the Land Unit, the Colombian Institute of Rural Development, the Presidential High Council on Women's Equity, the Colombian Institute of Family Welfare, the National Agency for Overcoming Extreme Poverty, and other offices of the executive branch. The IACHR also met with officials of the Office of the Prosecutor General of the Nation (Justice and Peace Unit, Human Rights Unit, and Context Analysis Unit), among other authorities. The delegation held a meeting with the Attorney General of the Nation, Alejandro Ordóñez Maldonado; Paula Andrea Ramírez Barbosa, Prosecutor-Delegate on Criminal Affairs and for Prevention in Human Rights Matters and Ethnic Affairs; Ilva Myriam Hoyos Castañeda, Prosecutor-Delegate for the Rights of Children, Adolescents, and Families; as well as the Human Rights Ombudsman, Jorge Armando Otárola, and the Mayor of Bogotá, Gustavo Petro. In the Congress, the IACHR met with the President of the Senate, Roy Barreras Montealegre, and with the President, Vice President, and members of the Human Rights Commission. In the judiciary, the IACHR was received by the full chamber of the Supreme Court of Justice, the Vice President of the Council of the State, and members of the Constitutional Court.

The IACHR also held meetings with civil society organizations. In Bogotá, the Commission met with the following organizations: Movimiento de Víctimas de Crímenes del Estado (MOVICE), Fundación Nydia Erika Bautista, Colectivo Mujeres al Derecho, Corporación REINICIAR, Comisión Interclesial de Justicia y Paz, Colectivo de Abogados José Alvear Restrepo (CCAJR), Consultoría para los Derechos Humanos y el Desplazamiento (CODHES), Comité Permanente por los Derechos Humanos (CPDH), Coordinación Nacional de Desplazados, Comisión Colombiana de Juristas (CCJ), Consejería en Proyectos (PCS), Colombia Diversa, SISMA Mujer, Central Unitaria de Trabajadores (CUT), Confederación de Trabajadores en Colombia (CTC), Organización Nacional de Indígenas de Colombia (ONIC), Federación Colombiana de Periodistas, Fundación para la Libertad de Prensa, Movimiento Nacional Cimarrón, Afrolíder, CEUNA, AFRODES, Fundepac, Proceso de Comunidades Negras (PCN), Universidad Santo Tomás, Asociación Afrodesplazados, Global Rights, Movimiento "Cárceles al Desnudo," Fundación Comité de Solidaridad con los Presos Políticos (FCSPP), Unión de Trabajadores Penitenciarios, Coalición Colombiana Contra la Tortura, Grupo de Interés Público/Universidad de los Andes, Humanidad Vigente, Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia (COALICO), Defensa de Niños Internacional (DNI), Fundación Antonio Restrepo Barco, Aldeas Infantiles SOS Colombia, Alianza por la Niñez Colombiana, Fundación KIDSAVE Colombia, Fundación Creciendo Unidos, Pastoral Penitenciaria, Fundación Telefónica, Liga de Mujeres de Desplazados, Casa de la Mujer, Narrar para Vivir, Organización Femenina Popular (OFP), Movimiento Social de Mujeres contra la Guerra y por la Paz, Profamilia, Centro de Derechos Reproductivos, Humanas Colombia, Liga de Mujeres Desplazadas, and Women's Link Red Nacional de Mujer. The Commission also met with representatives of the Alianza de Organizaciones Sociales y Afines por una Cooperación para la Paz y la Democracia en Colombia (Alliance of Social and Like-Minded Organizations for Cooperation for Peace and Democracy in Colombia); Coordinación Colombia-Europa-Estados Unidos (Colombia-Europe-United States Coordination Group); Plataforma Colombiana de Derechos Humanos Democracia y Desarrollo (Colombian Platform for Human Rights, Democracy, and Development); and people in their individual capacity.

In Quibdó, the IACHR met with the following organizations: Comunidades Negras de la Asociación Campesina Integral del Atrato (COCOMACIA), Consejería en Proyectos (PCS), Asociación de Jóvenes Desplazados (AJODENIO), Asociación de Desplazados Afrodescendientes Neutrales del Chocó (ADACHO), Diócesis de Quibdó, Asociación de Cabildos Indígenas Wounaan, Embera Dobida, Katío, Chamí y Tule del Chocó (OREWA), Comisión Vida, Justicia y Paz (COVIJUPA), Red Departamental de Mujeres Chocoanas, Movimiento Sueco por la Reconciliación (SWEFOR), and Asociación de Desplazados del Dos de Mayo (ADOM).

In Medellín, the IACHR met with representatives of the following organizations: Asociación Campesina del Norte de Antioquia (ASCNA), Corporación Jurídica Libertad, Asociación de Hermandades Agroecológicas y Mineras de Guamocó (AHERAMINGUA), Movimiento Ríos Vivos, Fundación Conceptos Integrados (IPC), Fundación Sumapaz, Corporación para el Desarrollo Comunitario y la Integración Social (CEDECIS), Grupo Interdisciplinario por los Derechos Humanos (GIDH), Red Colombiana de Mujer por los Derechos Sexuales y Reproductivos, Colectivo de Derechos Humanos, Comuna 8, Ruta Pacífica de las Mujeres, Red Nacional de Mujeres, Asociación de Mujeres de las Independencias (AMI), Altavista, CSPP, Universidad de Antioquia, Asociación Campesina San José de Apartadó, Asociación Campesina de Ituango, and Corporación Acción Humanitaria por la Convivencia y la Paz del Nordeste Antioqueño (CAHUCOPANA).

In Popayán, the Commission met with the following departmental authorities: the Governor, the Ministry of Defense, high-level military and police officials, the Ministry of the Interior, the Office of the Human Rights Ombudsman, and the area office of the Prosecutor General's Office. It also met with representatives of the following organizations: Ruta Pacífica de las Mujeres, Corporación Comunitar, Proceso de Mujeres Maciceñas, CIMA, Corporación Justicia y Dignidad, Red de Derechos Humanos FIC, Corporación Suyana, Red por la Vida y Derechos Humanos, Comisión Interclesial de Justicia y Paz, JAC "El Mango," Movimiento Campesino Cajibro, Solidaridad Internacional, ANTHOC, COMAC, JAC El Vergel, Asociación de Cabildos Indígenas del Norte del Cauca (ACIN), Consejo Regional Indígena del Cauca (CRIC), Fundación Sol y Tierra, USAID Human Rights Program, Fundación Tierra y Paz, and CCAJAR.

Finally, the delegation met with other international bodies and agencies, such as the Representative of the United Nations Office of the High Commissioner for Human Rights (UNOHCHR) in Colombia, Todd Howland, and the Deputy Representative, Juan Carlos Monge, as well as other officials from that office; the Chief of the OAS Mission to Support the Peace Process (MAPP/OEA), Marcelo Álvarez, Deputy Chief Rikard Nordgren, and the person in charge of the Justice and Peace section, Daniel Millares; and members of the International Committee of the Red Cross. In addition, the IACHR met in Popayán with the MAPP/OEA field team and the office of the UNOHCHR.

Parallel to its visit, the IACHR presented its report on The Situation of People of African Descent in the Americas and its Second Report on the Situation of Human Rights Defenders in the Americas.

The Commission thanks the government of Colombia for the invitation to conduct this visit, and it especially thanks the authorities and the Colombian people for the hospitality they showed the delegation and for the assistance they provided during the visit. Likewise, the Commission appreciates and values the information provided by the government, civil society organizations, and other stakeholders.

Based on the information it received during the visit and other input, in the next few months the IACHR will prepare a country report on the human rights situation in Colombia. In that report, the IACHR will offer recommendations designed to support the State in its efforts to meet its obligations under the American Convention on Human Rights.

I. Positive Measures to Protect Human Rights

Through this visit, the IACHR has been able to appreciate that the State has made significant progress in the development of its institutional structure for the protection of human rights. The Commission appreciates and welcomes the major impetus the government of Colombia has given to public policies on human rights and to the strengthening of assistance for victims of human rights violations and the protection of people at risk, as well as the significant investment in both human and financial resources that the State is making in these areas. The Inter-American Commission also welcomes Colombia's important efforts in terms of legal initiatives, policies, and practices focused on building the foundations for achieving a lasting solution to the internal conflict.

The IACHR is aware of the complex situation Colombia faces after more than five decades of violence and its impact on the civilian population. In this regard, the IACHR welcomes the beginning of the peace negotiations. Moreover, the Inter-American Commission was pleased to receive information on the progress made with regard to the demobilization of some illegal armed groups and the protection of Colombian citizens. The IACHR notes that under the Justice and Peace Law, it has been possible through "voluntary statement" proceedings (versiones libres) to bring to light systematic human rights violations.

The Commission heard with satisfaction that the government is committed to ensuring that the peace process is built on the pillars of truth, justice, and integral reparation. In this regard, the Commission would like to draw attention to the enactment of Law No. 1448, of 2012—also known as the "Law of Victims and Restitution of Lands," which orders measures to provide attention, assistance, and integral reparation to victims of the internal armed conflict—and to the government's inter-institutional approach to its implementation. In particular, the IACHR takes note of the State's expressed efforts to ensure that integral reparation for victims of the conflict, regardless of who may have been responsible for the violation, is seen by all sectors of Colombian society as an obligation of the State and a necessary step to build peace.

The Commission was pleased to receive the information provided about the creation of programs developed by the National Protection Unit to protect the lives and personal integrity of women, indigenous peoples, Afro-descendants, displaced persons, human rights defenders, and others who are at risk, particularly in the context of the armed conflict. The IACHR draws particular attention to the institutional and financial support the program is receiving; the implementation of physical protection schemes for the beneficiaries; the incorporation of a differentiated approach with respect to the risks faced by women, among other groups in a situation of vulnerability; the establishment of committees (known as CERREMs) to evaluate risks and recommend measures; and the large number of beneficiaries who are protected by the program.

Notwithstanding the significant progress, the Commission received information from beneficiaries of the program suggesting that important challenges remain in its implementation. In particular, human rights defenders said that the execution of protection measures in the interior of the country and in rural areas represents greater challenges when compared to the measures implemented in urban areas. On this point, civil society provided consistent information on the lack of institutional coordination among the key actors responsible for implementing the program in the aforementioned areas, and the need to implement differentiated protection approaches for groups that are vulnerable, beyond recognizing such approaches in current legislation.

With regard to this topic, and in order to have more information on the implementation of precautionary measures handed down by the IACHR, several meetings were held with authorities of the State and with beneficiaries of precautionary measures and their representatives. In this regard, the Commission commends the National Protection Unit's position to reaffirm its commitment to comply with precautionary measures that are granted and to implement them immediately, without first carrying out risk studies, once it has been notified of the decision by the IACHR. In addition, the Commission calls attention to the information it received concerning a recent decision issued on September 19, 2012, by the Superior Court of Bogotá, which underscores that it is exclusively up to the Commission to decide whether to lift precautionary measures it has granted.

II. Transitional Justice: Truth, Justice, and Reparation

The framework of transitional justice in Colombia has been an issue of central interest to the Commission for a number of years. The IACHR recognizes the dimensions and complexities of the conflict, and that a lasting solution is an indispensable condition for the full exercise of human rights. In this regard, the Commission has valued a series of steps taken by the State in the last few years.

    Legal Framework for Peace

During this visit, the Commission received information from various actors about fundamental changes being made to this framework. One of the key changes is the adoption of the Legal Framework Law for Peace approved in June of 2012. Although its provisions must still be developed through statutory laws, and will therefore not enter into immediate effect, its focus, design, and provisions mark a conceptual change and provoke a number of concerns in the area of human rights.

The Legal Framework for Peace sets forth approaches to deal with the legal situation of illegal armed groups, with the objective of bringing about peace through the application of the criteria of prioritization and selectivity. The law enables the Congress, through a subsequent law at the government's initiative, to approve the criteria by which certain human rights violations or violations of international humanitarian law will be chosen for investigation. The law also establishes that Congress may authorize that the criminal investigation of those cases that are not chosen for investigation may be renounced.

The Commission heard arguments in the sense that this new law seeks to correct problems with the Law of Justice and Peace—more specifically the fact that, with more than 35,000 members of the paramilitaries demobilized, it has only been possible to produce 10 criminal sentences, of which only two are final, according to the information provided by the State. Authorities of the executive branch indicated that this had generated a situation of impunity, which the Legal Framework for Peace would seek to correct. Specifically, the State reported that the new comprehensive strategy consists of the criminal prosecution of those leaders most responsible for international crimes, through the application of criteria such as selection, which makes it possible to reveal patterns of victimization; reparation for victims through mechanisms created in the Law of Victims and Restitution of Lands; judicial and non-judicial mechanisms such as the Center for Historical Memory and the Truth Commission; and measures to ensure non-repetition in the most affected areas.

With respect to the principles that are included in the reform, the concept of prioritization would, in principle, be consistent with the importance of and necessity to obtain the judicial clarification of the responsibility of the most important leaders. However, the Commission considers the concept of selectivity and the possibility of renouncing the investigation and prosecution of serious human rights violations to be problematic insofar as these would be inconsistent with the obligations of the State. The inter-American human rights system has repeatedly emphasized that victims of grave human rights violations have the right to judicial protection and guarantees in order to obtain the investigation and criminal prosecution of the perpetrators in the courts of ordinary jurisdiction. The jurisprudence of the inter-American system further indicates that the obligation to ensure the judicial protection necessary to protect fundamental rights is not subject to suspension, even in times of war.

    Military Criminal Jurisdiction

Another of the key changes in the framework of transitional justice in Colombia is the constitutional reform on military criminal jurisdiction, which is currently under debate in the Congress and which, if adopted, would significantly amplify the scope of that jurisdiction. Congressional authorities informed the Commission that of the eight debates necessary for its approval, seven have been carried out, and the last may take place in December of 2012.

If the bill is approved as currently formulated, the Commission considers that various provisions would be incompatible with the American Convention on Human Rights. It must be noted that the draft has ambiguous provisions that would depend on subsequent implementing legislation; consequently this creates legal uncertainty.

Under the provisions of the draft as currently formulated, it would be the military criminal justice system that would carry out the first investigation activities following a presumed crime committed by a member of the public force. The initial steps of an investigation serve as the basis for taking certain central decisions and for developing any subsequent stages, and therefore have a very particular importance in the administration of justice.

Second, with respect to the determination as to which jurisdiction has competence, the draft establishes that, exceptionally, in cases of doubt, a joint commission composed of representatives of the military and civil jurisdictions will be able to intervene in order to decide. In this sense, the bill inverts the current rule that cases would normally be heard in the ordinary jurisdiction, and that the transfer to military jurisdiction would be the exception.

Third, the draft under debate contemplates that crimes committed in relation to military activities would be judged under the system of military criminal justice. Although the draft excludes crimes against humanity and a series of grave human rights violations (it refers to forced disappearance, extrajudicial execution, sexual violence, torture, and forced displacement) from being judged in military courts, it establishes that other grave human rights violations would be heard before courts of military jurisdiction, for example war crimes and arbitrary detentions, among others.

In this regard, the standards of the inter-American human rights system emphasize the obligation of the State to ensure the investigation of human rights violations before the courts of ordinary jurisdiction, both in times of peace and in times of war. The Inter-American Court of Human Rights has said that:

In a democratic State of law, the military criminal jurisdiction shall have a restrictive and exceptional scope and be directed toward the protection of special juridical interests, related to the tasks characteristic of the military forces. Therefore, the Tribunal has previously stated that only active soldiers shall be prosecuted within the military jurisdiction for the commission of crimes or offenses that based on their own nature threaten the juridical rights of the military order itself.

According to the information received, the draft constitutional reform further sets out that any conduct that could constitute a crime committed in the framework of a military operation would be investigated and heard before the military jurisdiction, with certain exceptions, and international humanitarian law would apply exclusively. Under international public law, and as the Inter-American Commission and Court have maintained, in certain circumstances, both sets of norms will apply in a complementary manner. In this regard, the Commission is concerned about the vision that the draft reform appears to reflect in the sense of understanding international humanitarian law and international human rights law as mutually exclusive bodies of law.

On the basis of the inter-American standards that require States to judge human rights violations in courts of ordinary jurisdiction, various countries of the region have adopted reforms to significantly restrict the scope of military jurisdiction. Colombia has been one of those countries. Over the last 15 years, through changes of law, jurisprudence, and practice, Colombia has ensured that human rights violations committed by members of the security forces would be judged by courts of ordinary jurisdiction. Important reforms along the same lines have taken place in Argentina and more recently in Mexico. The draft constitutional reform on military criminal jurisdiction currently under debate would reverse that progress. The adoption of the constitutional reform as it is currently drafted, even after the changes introduced during the seventh debate, would constitute a serious setback and put at risk the victims’ right to justice. The IACHR urges Congress not to enact the law in this version and to make changes that accord with its constitutional duty to comply with the standards of the Inter-American System of Human Rights.

    Law of Victims and Restitution of Lands

The Commission wishes to highlight the adoption of the Law of Victims and Restitution of Lands (Law 1448). One of its crucial points is that it will open the possibility of reparation and the return of lands that had been seized to any person harmed as a consequence of violations of international human rights or international humanitarian law within the scope of the internal armed conflict. The law represents a fundamental advance in transitional justice and also addresses a differential focus with respect to groups in situations of vulnerability.

The implementation of the Law of Victims and Restitution of Lands represents multiple challenges for the Colombian State. It concerns an ambitious program of administrative reparations, the implementation of which poses an economic challenge and has shown the necessity that the institutions created by the law work in a coordinated way with previously existing organizations in the transfer of information and optimization of resources. This has also emphasized the need for the State to confront in a decisive and assertive manner the serious situations of insecurity that persist in many regions of the country, including those in which the restitution of lands is being carried out. The presence of illegal armed groups and the existence of illegal activities and violence jeopardize the return of the displaced from these regions. In this sense, the Commission underlines that the restitution of lands can be achieved only if efforts are intensified through protection mechanisms that are flexible and differentiated, institutions at the local level are strengthened, and the struggle against organized crime and corruption continues. Additionally, the Commission emphasizes the necessity that processes for administrative reparation be accompanied by the possibility of filing a judicial claim that guarantees victims access to truth and justice.

III. Population Groups in a Special Situation of Vulnerability

Notwithstanding the solid institutional structure that exists in Colombia, which is particularly evident in Bogotá, the IACHR verified in its field visits that the State faces profound obstacles in terms of enforcing the law and implementing existing programs in other regions and departments, especially in rural areas and with regard to certain population groups. In fact, government authorities themselves recognized that corruption at the local level and the low degree of political and social development have constituted significant obstacles for the implementation of public policies in certain regions such as Chocó.

In addition, the Commission observe that despite the government's efforts, illegal armed groups continue to be involved in committing acts of harassment and violence against the civilian population, especially against women, indigenous peoples, Afro-descendant communities, social leaders, human rights defenders, and children and adolescents. The IACHR also observes the gravity of the situation of internal displacement in the country. According to the State of Colombia, the total number of displaced persons is approximately 3.9 million, while the organization Consultoría para los Derechos Humanos y el Desplazamiento (CODHES) estimates the number at 5.3 million. These figures mean that between 8.6% and 11.2% of Colombia's population are internally displaced persons.

The IACHR will now offer some preliminary observations on the human rights situation of these population groups.

    The Invisibility of Afro-Descendants in the Official Agenda

The Commission is pleased to note that during the visit, the Colombian authorities acknowledged people of African descent as a group in a situation of vulnerability and referred to a series of plans, programs, and public policies that would include a differentiated approach with respect to these communities. However, the Commission observes with concern that, from the information received, these have not been implemented in any meaningful way and that Afro-descendants in Colombia still exist in a situation of extreme inequality and invisibility, and repeatedly confront violations of their fundamental rights to dignity, property, non-discrimination, and even to life.

In addition, the Commission received consistent information demonstrating that the continuing situation of direct and indirect discrimination with respect to the Afro-descendant population in Colombia is further aggravated in the context of the armed conflict and organized violence. Further, that this disproportionately impacts Afro-descendants because of their vulnerability and geographical location. This perspective was also confirmed by the Quibdó Human Rights Ombudsman, who, like numerous civil society groups and victims, referred to ongoing situations of large-scale forced displacements, disappearances, massacres, extrajudicial executions, sexual violence, and recruitment of children in Afro –descendant communities, and indicated that these human rights violations remain unpunished. The Commission also notes with concern the special vulnerability of women of African descent, including Afro-Colombian women leaders, as well as the serious allegations concerning a policy of violence focused on Afro-descendant youth.

While a system of both individual and collective reparations is in place in law, the Commission heard that few Afro-descendants had benefitted from it, despite lengthy time periods. Civil society further reported that even in those cases in which the collective titling of lands has been achieved, that does not constitute a guarantee of the effective use and enjoyment of the territory on the part of Afro-descendant communities, since in many cases mining concessions have been granted or permitted to companies for those properties, often illegally. In this regard, the Commission also received information that the right to consultation enshrined in Colombian and international law is not being respected in relation to infrastructure and mining projects. The Commission notes that although Colombia has experienced solid economic development in recent years, there has been no concomitant improvement in the lives of Afro-descendants, who continue to be deprived of equal opportunities to advance their livelihoods, such as in work, housing, and health. Indeed, according to the information the Commission received, the development of economic mega-projects has deteriorated the situation of Afro-descendant communities through an increase in forced displacements, the degradation of the environment, and a negative impact on their livelihoods and local economies. Accordingly, the Commission welcomes the information from the State that affirmative action is part of the development plan for the Afro-descendant community, since the Commission believes that such action is essential to address the historical inequities confronted by Afro-descendants in Colombia.

The Commission also received information on the situation of acute risk faced by leaders of African descent, and certain difficulties in attaining effective protection by authorities of the State. Along these lines, the Commission learned of the case of Miller Angulo Rivera, a leader who was reportedly killed in Tumaco, Nariño, on December 1, 2012, after his name was mentioned along with other leaders in threats made against the organization AFRODES on November 14, 2012, by the group "Las Águilas Negras."

    Violence against Children and Adolescents

The Commission received information on aspects concerning the rights of children and adolescents in general and in the context of the internal armed conflict, as well as in the framework of the peace talks and other related legal and institutional initiatives. Thus, for example, the Commission received troubling information regarding the intensity of violence suffered by children and adolescents in every sphere, including violence on the part of public security forces and illegal armed groups. The Commission also received troubling information on the recruitment of children and adolescents by illegal armed groups, and took note of information on the lack of appropriate, effective prevention measures, the lack of an effective judicial response, and the situation of impunity surrounding this topic, as well as the need for appropriate social reintegration programs and the inclusion of this issue in the peace talks. The Commission received information concerning the sexual violence that girls, in particular, reportedly suffer at the hands of different players in the conflict, including public security forces. It also received troubling information on the continued existence of antipersonnel landmines in the vast majority of departments in the country and the impact this has on the lives and safety of children and adolescents. In terms of the Law of Victims and Restitution of Lands, the Commission received information on difficulties related to its implementation, particularly the lack of an approach that takes into account the differentiated impact of the effects of the internal armed conflict on children and adolescents. Children and adolescents who are of African descent or indigenous, or who belong to other historically excluded groups, have been especially affected by such phenomena as forced displacement and other consequences of the armed conflict.

By way of example, during the visit the Commission continued to receive information concerning the lack of access to essential public services and the grave food situation and high levels of child malnutrition in areas of the country with greater indigenous and Afro-descendant populations. Finally, the Commission also received information concerning the system of adolescent criminal responsibility and the lack of effective, sustainable measures that place a higher priority on reintegration into society than on repression.

The Commission appeals to the State to strengthen implementation of the programs and public policies it has adopted in fulfillment of its obligations toward children and to guarantee them a safe environment for their integral development.

    Women in the Context of the Armed Conflict

The IACHR received information on legislation and jurisprudence that protect the rights of women in Colombia. However, the Commission notes that there is a gap between the recognition of the rights of women on paper, and reality. This distance is explained by delays in the implementation and the limited resources assigned in the budget, and is more notorious in the departments outside Bogota. Moreover, even though the State has made efforts to train the public officials in gender matters, the IACHR received information on circumstances where State agents imposed their beliefs and stereotypes instead of applying the law in terms of the right to equality and non-discrimination, including regarding sexual and reproductive rights. The Commission considers it necessary for the State to adopt concrete measures to make real for the inhabitants of Colombia the progress achieved in laws and judgments.

The Commission received alarming information on the high level of violence that women suffer. In particular, information was received on sexual violence to which women are subjected by actors in the armed conflict. Especially worrisome is the information received in Cauca about sexual contact between military troops and adolescent girls. In Cauca, the military and the Prosecutor General's Office informed the Commission of the existence of only one complaint on sexual violence on the part of public force personnel. The Office of the Human Rights Ombudsman in Cauca explained that there is a low level of reporting of sexual violence cases, especially when the perpetrators are military officers, due to the fear to make a complaint on the part of members of a community that has a day-to-day military presence, as well as to the perception that they would not receive enough protection against possible reprisals, and because the circumstances of the conflict and of displacement for many of these women have generated a high level of distrust of the State institutions and authorities. The IACHR listened to information in Cauca on the lack of meaningful access to reproductive health services to which victims of sexual violence are entitled on paper.

In addition, the organizations presented information on other types of violence that women suffer, including homicides and other physical assaults and degradations, especially when they are human rights defenders. Civil society organizations were consistent in saying that defenders and women in general are in a situation of lack of protection. They also informed the Commission that in regions where the majority of the population is indigenous or Afro-descendant, the situation of insecurity is allegedly accentuated. Indigenous women emphasized that the protection they need must be integral, which means it must have regard to their concerns about State encroachment on their lands.

Furthermore, even though the State informed the IACHR about the gender approach of its programs and public policies, local organizations that defend the rights of women said that challenges remain for this approach to be integral. As an example, displaced women indicated that they face grave difficulties to access land restitution because they lack the means to demonstrate their link to that land and because of agricultural land policies and gender policies that have impacted negatively on their full ownership of land. State authorities have recognized the existence of this problem, indicating that in rural areas, the titles to lands are mainly registered to men, and that many women have a right to the land by virtue of informal links that are not easy to prove. The Commission invites the State to develop sufficient flexibility, as part of its differential approach to implementing to the Victims Law, to ensure that inter-American standards relating to reparations with a gender perspective are fully realized by these displaced women.

    Situation of the Rights of Indigenous Peoples

The IACHR values the information provided by State authorities about the existence of permanent spaces for dialogue and consensus-building with indigenous peoples in Colombia, as well as about efforts that have reportedly been made to adopt a differential approach when it comes to indigenous peoples' human rights. The IACHR observes that, in general terms, Colombia has a legal framework conducive to the protection of the rights of indigenous peoples which rests primarily on the 1991 Constitution and on the international instruments the State of Colombia has adopted in this area. The IACHR recognizes, further, that the Constitutional Court has been carrying out an extremely important role in the protection of the rights of indigenous peoples in Colombia. The Commission also notes that the legally recognized indigenous territories in Colombia comprise nearly one third of the country's territory. This reflects significant progress, since, as the IACHR has indicated previously, the recognition and titling of indigenous peoples' ancestral territories is key for the exercise of the rest of their individual and collective rights.

Despite this legal framework and the existence of certain programs designed to address and protect the rights of indigenous peoples, as explained to the IACHR, the information received during the visit indicates that this has not translated into an effective protection of the rights of indigenous peoples. To the contrary, the IACHR received information concerning numerous developments that demonstrate that indigenous peoples are acutely and disproportionately affected by the internal armed conflict and that the armed conflict has intensified in their territories in 2012.

Specifically, the acts of violence the IACHR learned about include the following: indiscriminate attacks related to the high level of militarization of indigenous territories and the control of these territories by actors in the conflict, resulting in numerous violations of the right to life and to the physical and cultural integrity of the communities; the forced recruitment of indigenous children and the use of children in intelligence activities and in the transport of military supplies; acts of sexual violence committed against indigenous women and girls, and the significant underreporting of these incidents due to fear; and the confinement of indigenous communities, which keeps them from having access to their traditional areas for hunting, fishing, or gathering. The Commission also received information indicating that so far in 2012 there have been 19 murders of indigenous leaders and authorities, including traditional doctors and journalists; 23 indigenous victims of antipersonnel landmines, 11 of whom reportedly have been children between 9 and 18 years of age; and 41 events involving large-scale displacements, which have involved the mobilization of 11,596 indigenous persons, reportedly double the figure from the previous year, among other events of utmost concern to the IACHR. In this context, during the visit, beneficiaries of precautionary measures of the Awá indigenous people reported the forced disappearance of five persons, the murder of seven members of the community, and the forced displacement of 1,725 persons, which allegedly took place in 2012.

The representatives of the indigenous peoples with whom the Commission met stated that it is precisely because of this differentiated and profound impact of the conflict that they view the beginning of a peace process and its successful conclusion so positively. However, they also expressed their concern about the possible impact that negotiations involving access to and control over lands may have on their right to collective ownership of their ancestral territories, which has been recognized nationally and internationally by the State of Colombia.

Of particular concern to the IACHR is the situation of indigenous peoples in the department of Cauca, which the Commission has been monitoring primarily through the precautionary measures granted to the Nasa people of the Toribio, San Francisco, Tacueyo, and Jambalo reserves, as well as through those granted to CRIC and ACIN leaders. That is why, during the visit, a sub-delegation of the IACHR traveled to that department, where it met with indigenous organizations and authorities and with various regional authorities. Based on the information it was provided, the IACHR is greatly concerned about the large presence of armed actors in the indigenous reserves, which impedes the full enjoyment of the collective rights of indigenous peoples and causes their members to become victims of different forms of violence. In particular, the IACHR was informed about multiple violations of the right to life and physical integrity of indigenous persons, including children, as a consequence of armed confrontations; threats to, attacks on, and murders of indigenous authorities and leaders, including traditional doctors; the forced displacement of communities; and the granting of numerous mining concessions in indigenous reserves that correspond to the areas with the highest military presence. The IACHR was also informed about a process of dialogue between government and indigenous authorities in which certain agreements have reportedly been reached. The IACHR encourages the State to continue such actions, particularly those geared toward effective compliance with the individual and collective precautionary measures granted by the IACHR, with the full agreement of the beneficiaries.

Moreover, the IACHR is extremely concerned about the information it received indicating that many indigenous peoples in Colombia are in the process of extinction, despite the Constitutional Court’s establishment, through Judicial Decree 004 of 2009, of a program to guarantee rights and the creation of plans to safeguard ethnic groups against the armed conflict and forced displacement—plans that, according to the information the Commission received, are not being implemented effectively. Likewise, the IACHR was informed that among the factors posing the highest risk to the physical and cultural existence of indigenous peoples in Colombia are the infrastructure and economic development plans and projects being devised and implemented within their territories without a prior, free, and informed consultation process being carried out and, where applicable, without consent being obtained, as established in the standards of the inter-American system. Moreover, according to the information the IACHR received, more than 500 applications for titling or for territorial delimitation or demarcation are still pending resolution by government authorities, yet concessions have reportedly been granted over some of these territories.

    Discrimination against LGBTI Persons

During its visit, the IACHR received information on the human rights situation of lesbian, gay, bisexual, trans, and intersex persons (LGBTI) in Colombia. The Ministry of the Interior informed the IACHR that, concomitantly with the visit, the government launched a public awareness campaign on the rights of LGBTI persons. In addition, the Commission received information on Decree No. 4530 issued in 2008, which provided that the Ministry of the Interior, through its Office on Indigenous, Minority, and Roma Affairs, would design programs to provide technical and social assistance and support to this population. In this context, meetings have taken place between the Ministry of the Interior and leaders of the LGBTI population, in which agreement was reached to create a Technical Support Committee made up of LGBTI activists and leaders and to move forward with regional meetings.

The Inter-American Commission is deeply concerned about information it received on the high levels of violence against LGBTI persons. According to civil society organizations, between 2010 and 2011 there were reportedly 271 cases in which lesbian, gay, trans, bisexual, or intersex persons were murdered for motives that could have to do with their sexual orientation, gender identity, or gender expression. Trans persons, especially, are said to be the victims of a high percentage of these murders. In addition, multiple sources reported that at least seven human rights defenders from the LGBTI population had been killed in the same period. The IACHR is concerned about the high level of impunity in which these crimes reportedly remain, since a large percentage of the criminal investigations are apparently closed or are processed as crimes of passion without pursuing investigative avenues related to the victims' sexual orientation or gender identity.

The State did not provide data that would enable verification of the situation, given that no appropriate system for collecting specialized information on LGBTI persons exists. The absence of data that would make it possible to adequately assess the human rights situation of LGBTI persons in Colombia presents an obstacle for the design of a policy. Although the authorities informed the Commission that work is being done toward that end, the civil society organizations were consistent in indicating that after three years of meetings, no public policy yet exists on this matter.

The Commission was also informed about the existence of laws and judgments of the Constitutional Court of Colombia that, in principle, would allow the State to ensure nondiscriminatory conduct on the part of the authorities, but that these laws and judgments are not being followed consistently by the various public agencies, especially at the local level. In addition, nongovernmental organizations indicated that between 2010 and 2011 they had recorded 63 cases of alleged police abuse, including arbitrary arrests, cruel, inhuman, and degrading treatment, and torture. The State should ensure that existing laws and case law in this area are enforced by all agencies of the State, and that a public policy on this matter is adopted. Moreover, the IACHR considers it especially necessary to train public authorities at the departmental and municipal level with regard to the need to respect and guarantee the human rights of this segment of the population.

    Human Rights of Persons Deprived of Liberty

During the course of this visit, the IACHR Office of the Rapporteur on the Rights of Persons Deprived of Liberty visited the "El Redentor" Work Center for Juveniles, the "La Picota" Metropolitan Complex of Bogotá, and the Bogotá Model Prison, and received information from civil society organizations and authorities directly involved in running prisons. The Inter-American Commission recognizes the transparency shown by the authorities in presenting the information that was requested, the openness and facilities provided during the prison visits, and the clear commitment expressed by the highest-level authorities to consider the challenges related to prisons as a priority issue on the national government's agenda. Moreover, in its visit to El Redentor, the delegation observed that this establishment has workshops, classrooms, libraries, sports and recreation areas, and specialized staff, meaning that in principle it seems to offer the appropriate conditions in which adolescents who break the law can carry out their sentences.

On the other hand, the IACHR observes that Colombia continues to face grave problems with respect to observance of the human rights of persons in custody, particularly with regard to the constant increase in the prison population, which results in truly critical levels of overcrowding, particularly in certain prisons. For example, the Commission noted that at the time of its visit, La Picota held 7,788 inmates, while its capacity is for 4,973, and the Model Prison held 7,381 inmates, while its capacity is for 2,907. The rise in the projected increase of the prison population, according to information provided by the authorities, is because of recent legislative reforms that have expanded the catalog of crimes and drastically restricted inmates' access to alternatives to prison time, and because criminal judges have interpreted the adversarial criminal system in such a way that does not favor the principle of liberty. In this regard, the IACHR reminds that State that under international human rights law, subjecting persons who are deprived of liberty to certain levels of overcrowding may in itself come to constitute a form of cruel, inhuman, and degrading punishment in violation of Article 5 of the American Convention, and it recommends that the State of Colombia implement public policies to reduce and stabilize the number of persons who are incarcerated. The stabilization of the prison population is a prerequisite in the design of any comprehensive public policy geared toward people who have been convicted of crimes.

Historically, the prison system has also been one of the spheres in which the Colombian armed conflict has had a significant impact. This has been reflected very directly in serious acts of violence that have taken place in certain prisons in the past, and especially in prisons such as La Picota, which houses a large number of people who were involved in the armed conflict, who in addition are subject to different legal frameworks.

The Inter-American Commission also continued to receive consistent complaints concerning the poor quality of health-care services provided in prison facilities by the company CAPRECOM, a fact that was expressly recognized by various authorities. In this regard, the IACHR underscores that providing adequate medical care to inmates is a fundamental obligation derived from the State's position as guarantor of the rights of persons deprived of liberty, an obligation whose legal grounds is the right to respect for personal integrity. Additionally, the Commission reiterates that even in those cases in which the State has delegated the provision of health-care services in prisons to companies or private agents, it continues to be responsible for the adequate provision of such services.

    Displacement

The Commission received information concerning the grave situation of displacement in Colombia as a consequence of the violence from the armed conflict. According to official figures, the total number of displaced persons is around 3.9 million. For its part, CODHES indicated that in 2012, as of November 20, 119 events involving large-scale displacements had been reported, a figure 63% higher than that of the entire previous year, equivalent to 42,724 people. According to CODHES, the departments that have been the most affected so far in 2012 have been Cauca (34 events, 9,598 people), Nariño (18 events, 7,761 people), Valle del Cauca (12 events, 5,613 people), Putumayo (10 events, 5,453 people), and Antioquia (10 events, 3,596 people). Women and indigenous and Afro-Colombian populations are the most affected by this phenomenon.

The State has indicated that the Law of Victims and Restitution of Lands constitutes the primary measure that has been adopted to prevent internal displacement and to protect the displaced and make it possible to find solutions to this problem.

In Cauca, the IACHR received information from civil society indicating that 2,268 people were displaced in that department in 2011, with Popayán the city that has received the largest number of displaced persons in relation to the size of its population. The municipalities of Guapi and Argelia in Cauca and Simití in the department of Bolívar stand out for having the largest number of people expelled.

Both civil society and the Cauca Human Rights Ombudsman stated that one of the causes of recent forced displacements is to keep children from being recruited by the FARC and the ELN, such as has happened in southern Tolima. Civil society sources indicated that nine large-scale displacements have taken place this year in the towns of El Carmelo, Huasanó, El Placer, and La Cuchilla due to clashes between the FARC and the National Army.

Moreover, information was received on the situation of humanitarian neglect of displaced persons in Policarpa (Nariño) and the increase in pressure exerted by illegal armed groups against this population. For their part, displaced persons from the towns of Vergel and El Pedregal (Cauca), who are beneficiaries of IACHR precautionary measures, indicated to the Commission that they are in a state of abandonment. In addition, displaced persons from the municipality of Argelia indicated that they are still not recognized as victims of the armed conflict in view of the fact that they were displaced by illegal armed groups after demobilization. These three groups stated that security conditions do not exist for them to be able to return to their places of origin and that their relocation has not been implemented. In addition, the IACHR received information concerning the State’s failure to effectively implement the precautionary measures for the Awá indigenous people and the four indigenous reserves of the Nasa people. For its part, the collective of displaced women reported on the failure to adopt effective measures for compliance with Judicial Decree 092 of the Constitutional Court, issued in 2008.

The departmental government of Cauca reported that in this department 150,000 people have been recorded as displaced since 2005. It indicated that besides the conflict, the causes of displacement include the various forms of violence as a result of drug trafficking, illegal mining, and organized crime. It indicated that to counteract these effects, projects are being implemented to support campesinos’ sugar cane and quinoa crops and fish farming, among other endeavors, so as to empower the communities.

The Human Rights Ombudsman, for his part, indicated that efforts are being carried out to prevent displacements, and that encouragement and accompaniment are being offered for victims' voluntary return with security and dignity. A recent accompaniment was recently carried out in the municipality of Miranda.

    Multiple Levels of Risk Faced by Human Rights Defenders

During its visit, the IACHR observed the special role that human rights defenders have played in reporting grave human rights violations committed during the armed conflict, and the important support they provide in the processes to seek and consolidate peace in Colombia. The Commission also received information on the impact the conflict has had on human rights defenders' enjoyment of their rights and on the possibilities that they can carry out their work under safe conditions.

The IACHR recognizes that the State of Colombia has undertaken important efforts to help improve the situation of insecurity in which human rights defenders have historically carried out their activities. The Commission points to the development of key public policies such as the National Protection Unit, the National Dialogue on Guarantees, and the issuance of guidelines designed to make it easier for human rights defenders to perform their work under safe conditions.

Nevertheless, the Commission observed that a number of human rights defenders in Colombia are especially vulnerable, since often in addition to the risk they face because they belong to populations affected by the conflict—such as persons of African descent, indigenous people, campesinos, women, and LGBTI persons—their role as society leaders tends to place them at greater risk due to the specific causes they pursue, which may be incompatible with the interests of the actors involved in the armed conflict. The Commission also received information from journalists who indicated that they had engaged in self-censorship in view of potential reprisals, both by authorities and by armed groups, when they do their work of investigating or disseminating news of public interest that could include human rights violations committed in the context of the conflict.

During the visit the Commission received information indicating that, despite the government's efforts, there are still cases in which human rights defenders are killed or disappear, or are followed. In addition, following the deactivation of the Administrative Department of Security (DAS), human rights defenders who may have been subject to intelligence activities reportedly do not have access to information about them and cannot request that it be corrected, updated, or purged from the files. In addition, the Commission confirmed that there has been an increase in the number of threats signed by illegal armed groups (such as "el Ejército Anti-restitución," "La Empresa," "Rastrojos," and "Águilas Negras") and delivered through fliers, telephone calls, and notes left at the offices of civil society organizations. While the Commission has noted the National Protection Unit's positive efforts to protect human rights defenders who are threatened, the information the IACHR received indicates that the investigations tend not to be effective in deactivating the sources of risk. This leaves the door open for threats to be repeated, perpetuating the situation of risk and seriously discouraging their work in defending human rights.

Conclusion

The State of Colombia has launched important public policies to address the complex situation resulting from the internal armed conflict the country has suffered over the course of more than five decades of violence. During the visit, the IACHR verified a series of legislative, administrative, and judicial measures that seek to overcome the situations that constitute violations of human rights and to walk towards peace for Colombian society. Among those efforts, the Commission especially notes the progress made with the rendering of "voluntary statement" proceedings (versiones libres) in the Justice and Peace processes, with the goal of uncovering the truth; the progress toward granting reparation to the victims of the conflict through the “Law of Victims and Restitution of Lands,” and the work of the National Protection Unit to protect persons at risk. The Commission also recognizes the work of the Constitutional Court in guaranteeing the rights of Colombians.

A large part of the human rights violations in Colombia are related to the historical impact of the armed conflict in the country. In addition, as a consequence of the failure to effectively and completely dismantle the armed structures of paramilitary groups and illegal armed groups such as the FARC and the ELN, violence continues to severely impact on the rights of Colombia’s inhabitants, especially those of women, indigenous peoples, Afro-descendant communities, social leaders, human rights defenders, LGBTI persons, children and adolescents, and persons living in extreme poverty.

These groups are in a special situation of vulnerability and require a differentiated approach, due to the multiplicity of causes that affect their rights. This situation is especially aggravated in contexts of discrimination and historical social exclusion to which they have been subjected in some regions of the country. In particular, the Commission expresses its concern over the serious humanitarian crisis that affects some of these groups that have been victims of forced displacement, a situation that was verified throughout the visit and that requires a more effective response on the part of the State to address their grave circumstances and the concrete damage they have suffered.

An important part of the challenges Colombia faces has to do with ensuring justice, truth and adequate reparation to the victims of the conflict. Along these lines, the IACHR considers that the State must strengthen the work of the institutions that have a role in the functions of investigation and administration of justice, especially in the implementation of the Justice and Peace Law. The IACHR recognizes that the State is at a historic moment for the construction of peace in the country and has observed that the State is developing legislation towards that goal. The Commission believes that the construction of peace is inextricably linked to the investigation, prosecution, and reparation of human rights violations, in particular those perpetrated by agents of the State or with their support or acquiescence. In this regard, the Commission considers it imperative that the State adopt a human rights perspective when making decisions that correspond to the framework of transitional justice in such way as to guarantee Colombians access to justice in accordance with the international obligations the State has assumed. In this sense, if the draft constitutional reform on military justice is approved as it is currently worded, the Commission considers that several provisions would be incompatible with the American Convention on Human Rights.

No. 144A/12

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