IX.3.
DISPOSSESSION AND EXPLOITATION OF THE TERRITORIES OF THE AFRO-DESCENDANT COMMUNITIES OF THE CACARICA
(Artículo 21 of the Convention)
Arguments of the Commission and of the parties
The Commission indicated that the communities displaced from the Cacarica river basin who had been victims of the ransacking and destruction of their villages and who were displaced were prevented “from enjoying their property, lands, and the resources of traditional use found there.” The Commission also argued that the Afro-descendant communities of the Cacarica “maintain a close bond with their land, as part of their ancestral tradition, and therefore both their traditional lands as well as their natural resources must be safeguarded by Article 21 of the American Convention, in its collective dimension.” The Commission also considered that the right to property of the communities of the Cacarica river basin had been “affected due to the neglect and deterioration of their lands and both their moveable and immoveable, community and individual property,” and that the displacement impaired their ability to work, which resulted in loss of earnings. It also indicated that the right to property of the Afro-descendant communities was affected “during the time of the displacement because they had no access to the right to the use and enjoyment of the natural resources on their traditional lands - such as wood - among other resources traditionally used by members of the communities.”
The representatives added that the Afro-descendant communities of the Cacarica have “an almost umbilical relationship with the land, a vital relationship that can be perceived by the words they use, according to which the land is their mother and also their father, because they receive all its benefits,” and that, owing to Operation Genesis, “the victims in this case were arbitrarily deprived of the use and enjoyment of their property, in both its individual and communal dimension.” They also stated that the “displacement was accompanied by the ransacking and destruction of both individual and collective property.”587 Furthermore, they indicated that the violent incursion, the occupation and destruction of the spaces of their community and family life, of the places they lived in and planted, had profound effects on their way of life and survival, on their culture and ancestral identity, and as a result it “violated […] the sphere of protection of Article 21” of the Convention.
Furthermore, they noted that “the territory from which they were displaced was exploited illegally by logging companies, while the territory was controlled by paramilitary groups that prevented the return of its ancestral inhabitants.” They indicated, in particular, that “these companies exploited the timber resources of the Cacarica area irrationally, by mechanical means, and this has had an extremely harmful effect on the land, the forestry resources, and the living conditions of the ethnic minorities who inhabit the areas that were logged […]”; moreover, they accused the company MADARIEN of being the “direct beneficiary of different areas of the Colombian economy.” They added that “the illegal operations of the companies have caused severe environmental damage to the collective territory of which the victims in this case are the ancestral owners.”
Based on the above, the representatives considered that the State’s “responsibility had been constituted because it deliberately allowed the illegal exploitation of resources by private companies, which were supported by paramilitary groups, and had not taken effective measures to repair the environmental damage that this situation had caused and to guarantee that the said activities did not continue,” and “nor had it taken effective steps to stop companies from carrying out projects in the territory of the Cacarica River basin that affect the use and enjoyment of the land and natural resources by the victims in this case.”588
The State indicated that it was not internationally responsible for the violation of the right to property of the inhabitants of the Cacarica River basin, because “there is no causal nexus between the violation of the right […] to property and the action deployed by State agents,” and neither has there been an “omission that can be attributed to State agents.” Regarding the “company projects and environmental damage during the transitional period of the return to the territory” cited by the representatives, the State indicated that “these are situations that, on the one hand, occurred after the events of Operation Genesis and, on the other, are unconnected to those events.”
Considerations of the Court
Regarding the presumed violations of the right to property, the Court notes that the arguments of the parties and the Commission include allegations relating to two aspects: (1) the harm to the individual and collective property of the communities of the Cacarica River basin, and (2) the presumed illegal exploitation of the territories of the Community Council of the Communities of the Cacarica River basin.
B.1. The harm to the individual and collective property of the communities of the Cacarica River basin
The presumed victims are members of Afro-descendant communities that settled in the Cacarica river basin in a process of seeking land following the abolition of slavery in the mid-nineteenth century, at which time a migratory process commenced from the southern part of the Pacific region of Colombia to the southern part of Chocó, then to the Medio and Bajo Atrato. Thus, the Community Council of the Communities of the Cacarica River basin is composed of communities that have been located in the jurisdiction of the municipality of Riosucio, Chocó department, between the left bank of the Atrato River and the right bank of the Cacarica River (supra para. 86).
The Court recalls that, in the context of the right to property of members of indigenous peoples, Article 21 of the Convention protects the close ties that indigenous and other tribal peoples or communities, such as the Afro-descendants, have to their land, as well as to the natural resources of the ancestral territories and the incorporeal elements related to them.589 Due precisely to this intrinsic connection that the members of the indigenous and tribal peoples have to their territory, the protection of the right to the ownership, use and enjoyment of this territory is necessary to ensure their survival.590
As indicated (supra para. 131), in 1967, the Colombian State had already enacted a domestic law recognizing to the “black communities” the right to collective ownership of the territory they had occupied ancestrally.591 Similarly, other subsequent laws recognized the right to collective ownership of these territories; for example, Law 70 of August 31, 1993, which recognized “to the black communities who have been occupying vacant land in the rural areas along the rivers of the Pacific Basin, in keeping with their traditional practices of production, the right to collective ownership.”592 Thus, under the protection granted by both domestic and the international law, at the time covered by the factual framework of this case, the communities of the Cacarica River basin enjoyed special protection of their right to collective ownership. The State did not contest the ownership of these rights by the Community Council of the Cacarica River basin.
Also, these communities are settled in a region of significant geo-strategic importance in the armed conflict, in particular for the illegal armed groups, owing to its geographical location and its biological wealth, which favors the international trafficking of arms, chemical inputs, and illegal drugs, and it is also a strategic territory from a military perspective. The illegal armed groups have sought out this region as a corridor for their movements, for trafficking arms and narcotics, and encourage the logging of native species, in order to plant coca, oil palm and banana.
According to Rule 7 of Customary International Humanitarian Law, “[t]he parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.”593 Also, Rule 133 stipulates that “[t]he property rights of displaced persons must be respected.”594 Principle 21.3 of the United Nations Guiding Principles on Forced Displacement indicates that “[p]roperty and possessions left behind by internally displaced persons should be protected against destruction and arbitrary and illegal appropriation, occupation or use.”595
The Court has also found in other cases that, owing to the circumstances in which the facts occurred and, especially, owing to the socio-economic situation and vulnerability of the presumed victims, the harm caused to their property may have a greater effect and scope that it would have had for other persons or groups in other conditions.596
Chapter IX-1 of this Judgment established the State’s responsibility for the paramilitary incursions in the Cacarica River basin. This Court also notes that the representatives and the Commission indicated that both “individual”597and “communal”598 property of the Cacarica communities had been harmed for two main reasons: (a) owing to the destruction599 and ransacking600 that took place during Operation “Cacarica,” and (b) owing to the damage produced by the lack of use, particularly of the communal lands.
The Court notes that the destruction of the homes of the inhabitants of the communities of the Cacarica River basin, in addition to constituting a major financial loss, resulted in the inhabitants losing their basic means of subsistence, which means that the violation of the right to property in this case was particularly serious. Thus, the Colombian Constitutional Court has established that “property should be considered a fundamental right, provided that it is related to the maintenance of material conditions of existence, and that disregarding it affects equality and the possibility of leading a decent life.”601
Lastly, the Court notes that although the Commission and the representatives argued the violation of the right to private property owing to the destruction caused during the paramilitary incursions, as well as to the damage produced by the disuse of this property and the loss of use of it, “to the detriment of the members of the Afro-descendant communities of the Cacarica associated in CAVIDA and the women heads of household who live in Turbo,” it is also true that they did not individualize the victims or identify the property that had been seized from each of the displaced persons or communities. However, taking into account the specific circumstances of the case, the context in which the events occurred, and the fact that the State has not contested the legal considerations related to this violation of that right, the Court considers that the State is responsible for the acts related to the paramilitary incursions that caused or supported the violation of the right to collective property contain in Article 21 of the Convention, to the detriment of the members of the displaced communities of the Cacarica.602
B.2. The illegal exploitation of the territories of the Community Council of the Communities of the Cacarica River basin
The ties between the territory and the natural resources traditionally used by the indigenous and tribal peoples, and that are necessary for their physical and cultural survival as well as the development and continuity of their world vision, are protected by Article 21 of the Convention. This is to ensure that they are able to continue living their traditional way of life and that their distinctive cultural identity, social structure, economic system, customs, beliefs and traditions will be respected, ensured and protected by the States.603 Lack of access to the territories may prevent indigenous communities from using and enjoying the natural resources required to provide their subsistence through their traditional activities,604 and to practice their traditional health care systems, and other socio-cultural functions. This may expose them to precarious and infrahuman living conditions, to greater vulnerability to diseases and epidemics, and subject them to situations of extreme lack of protection.605
In this case, the Court notes that the logging activities ignored the Law concerning the black communities and its regulatory decree that governs the participation of the communities in the design, coordination and execution of the plans, programs and projects for economic development on their territories, as well as the role of the black authorities in the administration and management of their territories. In this regard, the Ombudsman’s Office has indicated that neither “CODECHOCÓ nor the logging companies implemented mechanisms to ensure the right to participation of the Community Council, through its management and administration organs.”606 Also, CODECHOCÓ granted logging permits to lower community councils that form part of the Cacarica High Council, thus causing internal divisions among them, and weakening and fragmenting community development management.607 In this regard, the actions of CODECHOCÓ have been insufficient to avoid the violation of the different rights mentioned above, because CODECHOCÓ, as an environmental authority, has not used its policing function effectively to deal with the illegal exploitation.608
Based on all the above, the Court finds that the exploitation of the collective property of the communities of the Cacarica River basin was carried out illegally; furthermore, there is evidence that the authorities failed to protect the right to collective property even though they were aware, because of several on-site visits, of the illegal exploitation that was underway. In this regard, the domestic administrative or judicial remedies were not effective to rectify this situation.
The Court notes that neither the representatives nor the Commission referred in their arguments to which safeguard measures that protect the right to collective property had been violated by the State. Consequently, the Court is unable to rule in this regard, without prejudice to considering that the violation of the right to collective property contained in Article 21 of the Convention, has been proved sufficiently, because the exploitation activities were illegal, as recognized by the organs of the domestic jurisdiction (supra para. 143).
Consequently, the Court concludes that the State is responsible for the violation of the right to collective property contained in Article 21 of the Convention, in relation to Article 1(1) of this instrument, of the members of the Community Council of the communities of the Cacarica river basin.
