Inter-american court of human rights


Obligation to investigate



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Obligation to investigate

B.1. Arguments of the Commission and of the parties


  1. The Commission asked the Court to order the State to conduct the investigations, in a complete, impartial and effective manner, into the events that led to the forced displacement of the Afro-descendant communities of the Cacarica associated in CAVIDA and of the women heads of household who live in Turbo, as well as into the torture and murder of Marino López.689

  2. The representatives agreed with the Commission and also asked the Court to order the State to create a special unit within the Prosecutor General’s Office to conduct the comprehensive investigation of the human rights violations analyzed herein, as well as of the connections between paramilitaries, State agents,690 and companies that exploited the territory that the members of the communities of the Cacarica river basin were forced to abandon.691 They indicated that different State agencies should take part in this investigation and it should not be cut short by the application of mechanisms such as amnesty laws, the statute of limitations, or plea bargaining. Lastly, they asked for measures of protection for the victims who take part in these investigations and that the State guarantee that extradited paramilitary leaders provide any information they have on this case.

  3. The State did not present specific arguments on these requests by the Commission and the representatives.

B.2. Considerations of the Court


  1. In this Judgment, the Court has declared, as partially acknowledged by the State during the processing of the case (supra para. 17), the violation of the right to judicial guarantees and judicial protection because the State failed to comply with its obligation to investigate and prosecute and punish, as appropriate, within a reasonable time, all those responsible for the facts of this case (supra paras. 397 and 398).

  2. Consequently, as ordered in other cases,692 the State must use all necessary means to continue the investigations that are open effectively and with the greatest possible diligence, and also open any that are necessary in order to individualize, prosecute and eventually punish all those responsible for the facts of this case, and remove any obstacles de facto and de jure that could maintain impunity.

          1. Measures of satisfaction, rehabilitation and restitution


  1. The Court will establish measures that seek to repair the non-pecuniary damage, as well as measures of a public scope and repercussion.693 International case law and, in particular, that of the Court has established repeatedly that the judgment constitutes per se a form of reparation.694 Nevertheless, considering the circumstances of the case sub judice, and based on the adverse effects on the communities of the Cacarica area and the consequences of a non-pecuniary nature arising from the violations of the American Convention declared to their detriment, the Court finds it necessary to analyze the pertinence of measures of satisfaction, rehabilitation and restitution and guarantees of non-repetition.

  2. The Court also takes note of the Commission’s general request for reparation, “both at the individual and at the community level, using specific mechanisms, for the victims of the Afro-descendant community of the Cacarica associated in CAVIDA and the women heads of household living in Turbo.” The Commission considered that this should be provided based on a differentiated perspective695 that recognized the impact of Operation Genesis on the community, and that required the participation of the community at all times.

  3. The representatives asked that, when awarding reparation, community, gender, ethnic, and age factors should be taken into account. The State did not present specific arguments on these requests by the Commission and the representatives.

C.1. Measures of satisfaction

C.1.1. Publication and dissemination of the Judgment


  1. The representatives of the victims asked the Court to order the State to “publish the judgment of the Inter-American Court in a national newspaper with widespread circulation and in a local newspaper, as well as significant aspects of the judgment on private and public television channels at peak (AAA) times.” The Commission did not make this observation and the State did not refer to the representatives’ request.

  2. The Court finds it pertinent to order, as it has in other cases,696 that, within six months of notification of this Judgment, the State publish, once, in the Official Gazette of Colombia and in a national newspaper with widespread circulation, the official summary of this Judgment prepared by the Court and that, the entire Judgment be uploaded and remain available for one year on an official website of Colombian State institutions and organs.

C.1.2. Public act to acknowledge responsibility


  1. The Commission asked the Court to order the State to acknowledge its responsibility for the events denounced in the case and to organize a public act to make reparation to the victims. The representatives asked that the State be ordered to hold a “public event in Cacarica and in Bogota to acknowledge the Colombian State’s responsibility” in relation to the events that took place in the municipality of Riosucio, in the Cacarica river basin. The State did not present specific arguments in relation to these requests by the Commission and of the representatives.

  2. The Court establishes that the State must hold a public act to acknowledge its international responsibility for the violations declared in this Judgment. The determination of the place and characteristics of the act must be previously consulted and agreed with the members of the community. The acknowledgement should take place during a public ceremony in the presence of senior State authorities and members of the community and must be widely publicized in the media. The State has one year as of notification of this Judgment to organize this ceremony.697

C.1.3. Other measures of satisfaction


  1. The representatives asked the Court, as measures designed to support the Afro-Colombian culture and its traditions: (a) the publication of a book,698 the making of a film,699 and a radio series;700 (b) the elaboration and implementation of a plan to strengthen its cultural identity, executed based on the national policies of the Ministry of Culture in conjunction with the Ministry of Communications, which should include the creation of cultural centers in each settlement,701 and (c) other related measures.702 In addition, they requested measures relating to the construction and maintenance of museums and monuments: (d) the construction of the Museum of Afro-Colombian Heritage in Bogota with a replica in Cacarica;703 (e) the financing of the project for a monument “in memory of Marino López” and “for the forced displacement in five points,”704 and (f) the conservation and recognition of existing monuments.705 Lastly, they requested the creation of an inter-institutional commission to investigate the events that occurred in the municipality of Riosucio, Cacarica river basin.

  2. The State indicated that the Social Solidarity Network had already made a “documentary video on the proceedings, and supported the production of a CD with songs alluding to the displacement and return of these communities.” In addition, it indicated that it had “co-financed the setting up of a community radio station in the Cacarica area.” The Commission did not present specific arguments in relation to these requests by the representatives and the State’s observations.

  3. The Court does not find it necessary to order the measures requested by the representatives, because the delivery of this Judgment and the reparations ordered herein are sufficient and adequate.

C.2. Measures of rehabilitation


  1. The Commission asked the Court to order the State to guarantee “technical assistance for rehabilitation.” The representatives indicated that the State should: (a) improve the existing health centers in the humanitarian zones;706 (b) facilitate the training of health promoters,707 and accept victims with the appropriate training as health promoters; (c) ensure to all the victims, including those living in Turbo, affiliation to a “State health company,”708 and (d) promote the implementation of “bio-social assistance” programs in each settlement, as well as programs of psychosocial care.709 The State did not present specific arguments with regard to these requests of the Commission and of the representatives.

  2. The Court recognizes and appreciates the achievements of the State authorities as regards proving health care services to the displaced population. However, owing to the sufferings of the victims, the Court, as it has in other cases,710 orders certain measures of rehabilitation. It does so, taking into account that, to date, according to the expert opinion of Juan Pablo Franco, the Ministry of Social Protection is designing a program of psychosocial assistance;711 in other words, that this has not yet entered into force and, consequently, these victims require appropriate psychosocial care, taking into account that the Constitutional Court itself has categorized their health coverage as “extremely poor.”712

  3. Since it has been verified that the harm suffered by the victims relates not only to aspects of their individual identity, but also to the loss of their roots and their community ties, it is pertinent to establish a measure of reparation that seeks to reduce psychosocial problems. In order to contribute to the reparation of this harm, the Court considers that the State must provide, free of charge, the adequate and priority treatment that these persons require, following their consent, within six months of notification of this Judgment, and for as long as necessary, including the provision of medicines. When providing the psychological treatment, the specific circumstances and needs of each person must be considered, so that they are provided with collective, family and individual treatment as agreed with each of them, and following an individual evaluation. The State must provide this treatment through the national health services, and to this end, the victims should access the domestic reparation programs to which this Judgment refers (infra paras. 471 to 473), specifically the programs established to implement the measures of rehabilitation. The victims should be given immediate and priority access to health care services, regardless of the corresponding time frames established by domestic law, avoiding obstacles of any kind.

C.3. Measures of restitution


  1. The Commission requested, in general, that the State take measures that guarantee the improvement of the quality of life of the members of CAVIDA and the women heads of household who live in Turbo,713 based on their special needs and ensuring their full participation on an equal footing.

  2. The representatives requested measures that they described as “ethno-educational” and which included: (a) the creation of an institutional educational project (PEI);714 (b) improvement of the schools in the humanitarian zones; construction of two new high schools in each zone,715 and other higher education establishments;716 (c) promotion of training processes so that the victims can train as teachers and provide their services to the community,717 and (d) other measures.718

  3. They also requested another series of reparations in order to improve: (a) production capacity: feasibility study and market research for products harvested or made by the members of the community,719 and elaboration of individual and community production projects for the women of CAVIDA and those in Turbo who have not returned;720 (b) housing: setting up of eco-villages, improvement of housing in the two humanitarian zones,721 with special characteristics in the case of housing for women,722 and provisions of “decent housing, adapted to the family unit,” for the women displaced in Turbo and the companion of Marino López; (c) provision of public services and communications: dragging rivers723 to allow mobility between the communities;724 mobile telephone coverage,725 appropriate waste management and treatment,726 potable water, community aqueducts and clean energy, and (d) recreation activities for the children.727

  4. In its final written arguments, the State mentioned a series of educational measures implemented during the “stage of emergency or humanitarian assistance” that included the delivery of materials and the training of teachers,728 and also the current assistance of the “Familias en Acción” program, which includes special measures related to education.729 Regarding the improvement in communications, the State referred to the contract for civil works to improve and maintain the Perancho River,730 regarding which the representatives had requested its dragging. In made no mention of the other measures requested by the Commission and the representatives.

  5. In the instant case, the Court has been able to considered proved that, as a result of the forced displacements caused by the paramilitary incursions, the victims in the case had to abandon their territories, homes and belongings (supra para. 111). In addition, as recognized by the State itself, and as has been indicated by the Delegate Ombudsman for prevention of the risk of violations of human rights and international humanitarian law,731 the armed actors in the conflict continue to be present in Riosucio, which fosters a situation that gives rise to violence and insecurity.

  6. The Court indicates that, as a result of the State’s failure to comply with its obligation to ensure the right to collective ownership (supra paras. 353 and 358), the communities of the Cacarica have suffered harm that goes beyond the mere detriment to their collective wealth. The body of evidence reveals that they have a special relationship with the lands they inhabit and that, consequently, they were profoundly affected not only by being dispossessed of these lands, but also by the fact that the illegal exploitation of the natural resources by third parties was permitted. Accordingly, in order to avoid a repetition of such acts, the Court orders the State to restore the efective use, enjoyment and possession of the territories recognized by law to the Afro-descendant communities assembled in the Cacarica Community Council.

  7. The Court is also aware that the members of the Cacarica communities feel inseure, particularly owing to the presence of armed agents. It is possible that this situation will not change until public order is re-established and until effective investigations and judicial proceedings are conducted that result in the clarification of the facts and the punishment of those responsible. Therefore, the Court considers, as it has in other cases,732 that the State must guarantee that the conditions of the territories that the State must restitute, as well as of the place where the members of the Cacarica communities live at present, are adequate for the safety and decent life of those who have returned and also of those who have not yet done so. To this end, the State must send periodically – at least once a month – official representatives to the territories from which these persons were displaced and, in particular, to the Peace Communities (“Esperanza de Diós” and “Nueva Vida”), for the five years that follow notification of this Judgment, in order to verify the situation of public order and, consequently, they must meet with the communities or the designated representatives of the latter. If, during these monthly meetings, the inhabitants of the communities express concern about their safety, the State must take the necessary measures to guarantee this, and these measures must be designed in collaboration with the beneficiaries of such measures.

  8. The Court finds that it is not appropriate to order other additional measures requested by the representatives. Nevertheless, the domestic reparation programs refer specifically to housing programs and to land restitution mechanisms, as well as to other measures of rehabilitation, satisfaction and non-repetition.733 Consequently, the victims in this case should also have access to these other forms of reparation within, at most, one year of notification of this Judgment.
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