Inter-american court of human rights

552 Cf. Human Rights Office of the Public Prosecution Service, Decision of September 30, 2002, cited in the Case of the Ituango Massacres v. Colombia, para. 125.100.

553 Cf. Testimony of Javier Ernesto Ciurlizza Contreras, expert witness proposed by the Commission, before the Inter-American Court of Human Rights during the public hearing on February 12, 2013. Anthropological appraisal provided by Jesús A. Flores López, proposed by the representatives, before the Inter-American Court of Human Rights, on February 12, 2013.

554 Cf. Affidavit prepared by Federico Andreu Guzmán in the Case of the Mapiripán Massacre v. Colombia, p. 32 and the Case of the La Rochela Massacre v. Colombia, para. 57(a).

555 Cf. United Nations, Commission on Human Rights, Report of the Representative of the Secretary General on internally displaced persons submitted in accordance with Commission resolution 1999/47, E/CN.4/2000/83/Add.1, para. 25 (evidence file, folio 1571); United Nations High Commissioner for Human Rights, Reports on the Situation of Human Rights in Colombia, E/CN.4/2001/15, 20 March 2001, para. 131 (evidence file, folio 2601); E/CN.4/2005/10, 28 February 2005, p. 3 para. 3, p. 4 para. 4, p. 50 points 5 to 8 (evidence file, folios 2337 and 2348); E/CN.4/2004/13, 17 February 2004, paras. 23, 24, 65 and 73 (evidence file, folios 2382, 2383, 2392, and 2393); E/CN.4/2003/13, 24 February 2003, paras. 9, 34, 44, 74, 75 and 77; (evidence file, folios 2445, 2450, 2452, 24659 and 2460); E/CN.4/2002/17, 28 February 2002, para. 62. (evidence file, folio 2520); E/CN.4/2000/11, 9 March 2000, paras. 25, 110 and 111 (evidence file, folios 2640, 2657 and 2658); E/CN.4/1998/16, 9 March 1998, paras. 29, 90, 91 and 175 (evidence file, folios 744, 751 and 762); United Nations, Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant. Fifth periodic report. Colombia, 18 September 2002, CCPR/C/COL/2002/5, para. 452; Office of the United Nations High Commissioner for Human Rights, Regional Representative for Latin America and the Caribbean, Compilation of concluding observations of the Human Rights Committee on countries of Latin American and the Caribbean (1977-2004 ), pp. 162, 164 and 179; See also: Reports of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) (by year of the CEACR session) CEACR 2009/80th session. Colombia. Individual observations. ILO Convention 169, individual observation 2008. See also: United Nations, UNHCR. Application of General Assembly resolution 60/251 of 15 March 2006, entitled “Human Rights Council”, Report presented by the Representative of the Secretary-General on the human rights of the internally displaced persons, Walter Kälin, para. 1.

556 See Annex I.

557 Specifically, the State indicated that the “Government’s first direct approach to the issue was by CONPES document 2804 of 1995, in which it approved the National Program for Comprehensive Assistance to People Displaced by Violence. Owing to institutional shortcomings, a new CONPES document was issued, No. 2924 of 1997, entitled National System for Comprehensive Assistance to People Displaced by Violence […]. Nevertheless, in view of the urgency of the situation, the Executive and the Legislature combined efforts and Law 387 of 1997 was enacted. This law ordered comprehensive attention to the displaced population based on three stages of attention to displacement: Prevention, Humanitarian attention, and Economic stabilization […].” The State indicated that, “even though at the time of the events, Law 387 of 1997 was not in force adopting measures to prevent forced displacement, and to provide attention, protection, and economic stabilization and consolidation to those displaced internally owing to the violence in the Republic of Colombia, which came into force on July 18 that year, as of that time, the attention and reparation to those displaced came under the coordination of the former Social Solidarity Network that carried out activities to strengthen the management mechanisms and instances that, at the different territorial levels, implemented the System of Comprehensive Attention to the Displaced Population.” The State also indicated that it had: “(i) provided emergency humanitarian assistance to the population that moved from the Cacarica River basin to Bocas del Atrato and to the municipality of Turbo; (ii) in order to ensure the sustainability of the return of the inhabitants, it had created a verification commission with the participation of a substantial number of Government ministries and institutons and international Governments and cooperation agencies, as well as representatives of the presumed victims; (iii) within this framework, programs on health, housing, production projects, and family reunification and attention were implemented, among many other actions designed to attend to the displaced population, and (iv) the Government also ordered the granting of collective land titles over more than 100,000 hectares, to the communities of the river basin.” It also mentioned as a positive measures the award of collective titles to the land, and the intervention of different entities that provided assistance, including the Joint Verification Commission, the Social Solidarity Network, and the Colombian Social Welfare Institute.

558 In particular, it described the “Additional programs and assistance to those delivered under the CMV. In addition to the aid delivered under the CMV, it should be indicated that, in Colombia, under the current National Development Plan: Prosperity for All, a new institutional framework has been designed that reveals the State’s efforts to guarantee social inclusion and mobility so that all Colombians, regardless of the region they come from, their status as victims of armed conflict, their ethnic origin, gender, age, or disability, have equal opportunities to accede to the beneits of development and, thus, to take advantage of the fundamental tools that will allow them to construct their own destiny. […] Program: Más Familias en Acción […] Strategy: Food Security Network. On March 31, 2008, the National Council for Economic and Social Policy approved the National Food Security and Nutritional Policy (PSAN). […] Production inclusion: […] Income-generation policy for communities living in extreme poverty and/or displacement […].”

559 The State indicated that in “compliance with the agreements and commitments made, the Ministry of Education has executed the following activities” Education: during the emergency or humanitarian assistance stage: training of young volunteers from the community in the Pavarandó camp in order to provide teachers, adults and youth with conceptual and methodological tools to develop alternative educational procedures to the established models. […] Education Compensation Fund […] Technical Assistance. […] Provisions of 400 desks […] Teacher training […] Actions of the Chocó Regional Office of the ICBF [Colombian Family Welfare Institute] in the Cacarica River basin […]. Health: the State informs the Court […] that the basic services have been provided through the Health Brigades coordinated by the Ministry of Social Protection and the Turbo Hospital. In some cases, people have been attended in the Turbo and Apartadó hospitals and, at times, when necessay, they are transferred to Medellín […].”

560 Regarding the women heads of household, the Commission affirmed that the “changes in roles and responsibilities arising from the displacement are fundamentally associatd with the need to guarante the basic needs of the families and with the opportunities they find to achieve this,” as a result of which “the displaced women have had to assume responsibility for the financial support of their families, to learn to acknowledge and solve their own problems in the world at large, when they have to go to the different State and private agencies to obtain humanitarian assistance,” among other activities.

561 Cf. Case of Chitay Nech et al. v. Guatemala, para. 141.

562 Cf. Case of the Mapiripán Massacre v. Colombia, para. 179, and Case of the Río Negro Massacres v. Guatemala, para. 174.

563 Cf. Colombian Constitutional Court, Judgment T-025 of January 22, 2004 (evidence file, folios 4363 and ff.). See also: Case of the Ituango Massacres v. Colombia. Preliminary objection, merits, reparations and costs, para. 211.

564Cf. United Nations, Economic and Social Council, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, E/CN.4/2005/48, 3 March 2005, para. 38. Also, Case of the Mapiripán Massacre v. Colombia, para. 175, and Case of the Ituango Massacres v. Colombia. Preliminary objection, merits, reparations and costs, para. 212.

565 Cf. United Nations, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, E/CN.4/2003/13, 24 February 2003, para. 94 (evidence file, folio 3717).

566 Cf. Case of the Mapiripán Massacre v. Colombia, para. 175, and Case of the Ituango Massacres v. Colombia. Preliminary objection, merits, reparations and costs, para. 213.

567 Cf. Colombian Constitutional Court, Judgment T-025 of January 22, 2004 (evidence file, folios 897 and ff.), and its follow-up rulings, including Ruling 005 of January 26, 2009, on protection of the fundamental rights of the Afro-descendant population victim of forced displacement, in the context of the unconstitutional state of affairs declared in Judgment T-025 of 2004 (evidence file, folios 1681 and ff.); Ruling 092 of April 14, 2008, on measures of protection for the fundamental rights of the women victims of forced displacement (evidence file, folios 2756 and ff.); report of the national Government to the Constitutional Court on progress with regard to the unconstitutional state of affairs declared in Judgment T-025 of 2004 (evidence file, folios 13280 and ff.); Law 1448 of 2011, on victims and land restitution (referred to in “The transitional justice arrangement in force in Colombia,” provided by the Vice Minister of Justice, Miguel Samper, deponent for information purposes proposed by the State, during the hearing held before the Inter-American Court of Human Rights on February 11, 2013, evidence file, folio 16521), and its regulations, Decree 4800 of 2012 (referred to in “The transitional justice arrangement in force in Colombia,” provided by the Vice Minister of Justice, Miguel Samper, deponent for information purposes proposed by the State, during the hearing held before the Inter-American Court of Human Rights on February 11, 2013 (evidence file, folio 16522)

568 Cf. National Planning Department, Document No. 2804, “National Program for Comprehensive Assistance to People Displaced by Violence,” Santafé de Bogota, D.C., September 13, 1995 (evidence file, folios 45537 and ff.); CONPES document No. 2924, “National System for Comprehensive Assistance to People Displaced by Violence,” Santafé de Bogota, D.C., May 28, 1997 (evidence file, folios 45559 and ff.); CONPES document No. 3616, “Guidelines for the income-generation policy for the communities living in extreme poverty and/or displacement, Bogota, D.C., September 28, 2009 (evidence file, folios 45579 and ff.); CONPES document No. 3057, “Action Plan for prevention of and attention to forced displacement,” Santafé de Bogota, D.C., November 10, 1999 (evidence file, folios 45721 and ff.); CONPES document No. 3115, “Distribution of the Sectoral Budget to comply with CONPES 3057, Action Plan for prevention of and attention to forced displacement,” Santa Fe de Bogota, D.C., May 25, 2001 (evidence file, folios 46113 and ff.); CONPES document No. 3400, “Goals and prioritization of budgetary resources to attend the population displaced by violence in Colombia,” Bogota, D.C., November 28, 2005 (evidence file, folios 46123 and ff.).

569 Cf. Colombian Constitutional Court, Judgment T-025 of January 22, 2004 (evidence file, folios 897 and ff.). See also: Case of the Ituango Massacres v. Colombia. Preliminary objection, merits, reparations and costs, para. 214.

570 Cf. Note of the Ministry of Foreign Affairs of August 27, 2009, para. 111 (evidence file, folio 7597): Visits to provide comprehensive care in 2005, and one in 2006, for medical-surgical care; food, medicines, and psychosocial care; in coordination with Comunidad Hábitat Finanzas (CHF), schools were constructed in the districts of Bogota (1), San Higinio (1) and El Limón (1), and 150 temporary shelters were erected in San Higinio, Bocas del Limón, La Tapa, Puente América, Santa Lucia and Barranquilla.

571 Cf. Joint Verification Commission, Management Report, March 2004 (evidence file, folios 4986 and ff.).

572 See Annexes I and III.

573 Cf. Case of Gelman v. Uruguay. Merits and reparations. Judgment of February 24, 2011. Series C No. 221, para. 125, and Case of Artavia Murillo et al. (“In vitro fertilization”) v. Costa Rica. Preliminary objections, merits, reparations and costs. Judgment of November 28, 2012. Series C No. 257, para. 145. See also, Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17, para. 66.

574 Cf. Case of Gelman v. Uruguay, para. 121, and Case of Forneron and daughter v. Argentina. Merits, reparations and costs. Judgment of April 27, 2012. Series C No. 242, para. 44.

575 Case of the Mapiripán Massacre v. Colombia. Merits, and reparations, para. 156, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 239.

576Cf. Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 238.

577 Cf. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02, para. 65, and Case of Forneron and daughter v. Argentina, para. 48.

578 Cf. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02, para. 60, and Case of Atala Riffo and daughters v. Chile. Merits, reparations and costs, para. 108.

579 Cf. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02, para. 61, and Case of Furlán and family members v. Argentina, para. 126.

580 Cf. Management Report of the Joint Verification Commission of March 2004 (evidence file, folios 4986 and ff.).

581 See Annex II.

582 See Annex III.

583 Cf. Case of Atala Riffo and daughters v. Chile. Merits, reparations and costs, para. 78; Proposed amendments to the Naturalization Provisions of the Constitution of Costa Rica. Advisory Opinion OC-4/84 of January 19, 1984. Series A No. 4, para. 53 and Case of the Xákmok Kásek Indigenous Community v. Paraguay. Merits, reparations and costs. Judgment of August 24, 2010 Series C No. 214, para. 268.

584Cf. Case of the Xákmok Kásek Indigenous Community v. Paraguay, para. 271, Case of Atala Riffo and daughters v. Chile. Merits, reparations and costs, para. 80.

585 Cf. Proposed amendments to the Naturalization Provisions of the Constitution of Costa Rica. Advisory Opinion OC-4/84, paras. 53 and 54, Case of Barbani Duarte et al. v. Uruguay. Merits, reparations and costs, para. 174, and Case of Atala Riffo and daughters v. Chile. Merits, reparations and costs, para. 82.

586 Cf. Case of Atala Riffo and daughters v. Chile. Merits, reparations and costs, para. 82.

587 Among this property, they indicated “the school, the health center, the women’s store, the meeting place, a football field, a power plant, an engine, working animals, and a collective vehicle […].”

588 The representatives indicated that “the State has not disputed the fact that companies were illegally exploiting the territory while the victims were in a situation of forced displacement and that, owing to these illegal actions, the Constitutional Court issued a protection order (amparo) ordering the suspension of logging, and the Public Prosecution Service opened disciplinary proceedings against the local environmental authorities who had allowed the illegal exploitation of the territory.”

589 Cf. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Preliminary objections. Judgment of February 1, 2000. Series C No. 66, para. 148, and Case of the Kichwa Indigenous People of Sarayaku v. Ecuador. Merits and reparations. Judgment of June 27, 2012. Series C No. 245, para. 145.

590 Cf. Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, reparations and costs. Judgment of June 17, 2005. Series C No. 125, paras. 125, 124, 135 and 137, and Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, para. 146.

591 Cf. Law 31 of July 19, 1967, approving ILO Convention 107 concerning the protection and integration of indigenous and tribal peoples in independent countries, adopted by the fourtieth session of the General Conference of the International Labour Organization.

592 Cf. Law 70 of 1993, Law 99 of 1993, and transitory article 55 of the 1991 Colombian Constitution (supra para. 131). Annex 1 of the National Council for Economic and Social Policy, CONPES 3169 of May 23, 2002, “Policy for the Afro-Colombian population,” indicates the municipalities that form the “Pacific Basin” and, in particular, includes the municipality of Riosucio, which encompasses the Cacarica River basin (evidence file, folio 45944).

593 Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 271. In addition, relevant rules of Customary International Humanitarian Law in this case are: “Rule 8. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage. Rule 9. Civilian objects are all objects that are not military objectives. Rule 10. Civilian objects are protected against attack, unless and for such time as they are military objectives.” Henkaerts, Jean-Marie, Doswald Beck, Louise, Customary International Humanitarian Law, volume I, Rules, ICRC, Cambridge University Press, 2005, pp. 29 to 36.

594 Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 272.

595 United Nations, Commission on Human Rights, Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39, E/CN.4/1998/53/Add.2, 11 February 1998. Addendum: Guiding Principles on Internal Displacement.

596 Cf. Case of Uzcátegui et al. v. Venezuela. Merits and reparations. Judgment of September 3, 2012. Series C No. 249, para. 204, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 273.

597 The representatives indicated that the Afro-Colombian victims in this case were owners of material goods represented by: (a) Houses: the family home, generally made of wood with a zinc roof, and another where, among other elements, instruments for planting and work tools were kept”; (b) the homes had beds, mattresses, radio, tables and chairs, clothes, bed linen and netting to avoid mosquitos at night, cooking utensils, including pots and pans, dishes, buckets, glasses, cutlery, grinder, pestle and mortar, pressure cooker”; (c) “Boat: wooden dug-out made by people in the community for mobilization by river, to transport crops and to exchange products with other communities”; (d) “Crops: rice, corn, plantain, cacao, fruit trees, such as mango, coco palm, palmheart, avocado pear, lime, orange, zapote, pineapple, mandarine orange (each family group had these trees)”; (e) “Work tools such as machetes, rake, spade, hoe, hammer, axe, chain saw and saw,” and (f) “Domestic animals that they used for their daily work and for their subsistence, such as hens, pigs, dogs, cats, working animals, ducks, turkeys, horses, and others.”

598 Among this property, the representatives indicated that the most important were: (a) the school; (b) the heatlth center; (c) the women’s store; (d) the meeting place; (e) the football pitch; (f) the power plant; (g) the working animals, and (h) a collective vehicle.

599 As observed in the Chapter on facts, the paramilitary units launched grenades at the roofs of the houses.Cf. Indictment in the hearing on the partial indictment of Diego Luis Hinestroza Moreno, Medellin Justice and Peace Courts, May 30, 2008 (minutes 23:43 to 24:15) (evidence file, folio 1472). See also: Testimony of Luis Aristarco Hinestrosa (step-brother of Marino Lopez) of April 13, 2007, before the National Human Rights Unit (evidence file, folio 17338), and Testimony of J.V.R. on March 3, 2007, before the National Human Rights Unit in proceeding No. 2332 (evidence file, folio 17333).

600 As observed in the Chapter on Facts, the paramilitary units ransacked the homes of the inhabitants of Cacarica.

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