Admission of the statements of the presumed victims, the expert witnesses, a deponent for information purposes, and a witness
The Court finds it pertinent to admit the statements and opinions provided during the public hearing and by affidavit, to the extent that they are in keeping with the purpose defined by the President in the Order requiring them87 and with the purpose of this case, and they will be assessed in the corresponding chapter, together with the other elements of the body of evidence. In accordance with this Court’s case law, the statements made by the presumed victims cannot be assessed alone, but must be examined with all the other evidence in the proceedings, because they are useful insofar as they can provide additional information on the presumed violations and their consequences.88
VIII
FACTS
The factual framework includes different events, some of which took place in the context of or during the military operation known as “Genesis” conducted in Februry 1997, as well as incursions by paramilitary groups or members of the United Self-Defense Forces of Colombia (hereinafter also “AUC”) carried out at the same or almost the same time, in the Cacarica river basin (also called Operation “Cacarica”). Forced displacements of Afro-descendant communities who had inhabited the territories of the Cacarica river basin ancestrally occurred in this context. The Commission and the parties have also referred to the living conditions faced by the groups that were displaced during the following years, including their safety, and their return to the Cacarica territories, as well as to other events related to the dispossession and exploitation of the natural resources and territories of these communities by private companies. Lastly, the parties thave referred to events related to the investigations and to the different judicial proceedings conducted in relation to the events.
The following facts of the case will be described in this chapter: (a) the geographical and demograhic context and the situation of public order in the Urabá Chocóano region; (b) the background to Operations “Génesis” and “Cacarica”; (c) the implementation of Operations “Génesis” and “Cacarica”; (d) the death of Marino López; (e) the alleged forced displacement; (f) the events following the displacement; (g) the return of those displaced and the presumed continuation of the acts of violence against those who had been displaced from Cacarica; (h) the alleged illegal logging on the collective territory, and (i) the jurisdictional proceedings.
Context
A.1. Geographical location
The Urabá region is located in the extreme northwest of Colombia and constitutes the point where Central and South America meet. The departments of Chocó, Antioquia and Córdoba converge in this region, which is a forested area with abundant vegetation and numerous rivers which make it a zone of great biodiversity.89 The natural border between the departments of Chocó and Antioquia is the Atrato River. The department of Antioquia (Urabá) is composed of 11 municipalities.90 Meanwhile, the department of Chocó (Urabá or Darién) consists of four municipalities.91
The Chocó department (Urabá) is also characterized by its diversity and water resources, and the fact that it is a tropical rainforest.92 The main access route is the Atrato River and its tributaries, the Truandó, Cacarica, Jiguamiandó, Salaquí and Jarapetó Rivers,93 even though, as the State underlined, without this being contested, there is also land access by a highway in poor conditions that communicates Riosucio with the district of Belén de Bajirá and the municipality of Chigorodó.94 In addition, this region, which surrounds the Gulf of Urabá and the border with Panama, is a strategic corridor for access to both the Pacific and the Atlantic Oceans.95
A.2. Demographics
The Cacarica river basin is inhabited mainly by descendants of Africans originally brought over and subjected to slavery in the Americas during colonial times. These people gradually organized themselves into communities and settled along the rivers, in villages or in settlements dependent on the rivers, creeks and streams.96 As indicated by the representatives and not contested by the State, these people settled the Cacarica river basin in the process of seeking land following the abolition of slavery in the mid-nineteenth century, at which time a process of migration started from the southern Pacific side of Colombia towards the southern part of Chocó,97 then to Medio and Bajo Atrato.98 Thus, by the mid-twentieth century, the settlement of the department by the Afro-descendant people was firmly established.99
The Community Council of the Communities of the Cacarica River basin is composed of the following communities: Balsagira, Balsita, Bocachica, Bogota, Bocas del Limón, Peranchito, Quebrada Bonita, Quebrada del Medio, La Honda, Las Mercedes Barranquilla, La Virginia Perancho, Las Pajas, Montañita Cirilo, Puente América, Puerto Berlín, Puerto Nuevo, San Higinio, San José de Balsa, Santa Lucía, Teguerre Medio, Varsovia, Vijao Cacarica and Villa Hermosa la Raya, all of them 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.100
The region’s economy is basically that of self-sufficiency, and depends on growing subsistence crops (“pancoger”), artisanal fishing, hunting and logging.101 As regards the living conditions of the inhabitants of the area – predominantly Afro-descendants102 — many of their basic needs are not met.103 In this regard, the Court takes note that the Colombian Constitutional Court104 and the Ombudsman’s Office,105 together with other public entities,106 inter-governmental agencies involved in the international protection of human rights,107 and non-governmental organizations108 have referred to the context of marginalization, vulnerability and segregation that these communities continue to endure, despite the social assistance measures implemented by the State. This was acknowledged by the State’s expert witness, María Paulina Leguizamón Zarate, who referred to the “Operation Genesis report,” which indicates that the region of the Chocóano and Antioqueño Urabá is characterized by “continued abandonment by the State in terms of social assistance, not only as regards education, where the coverage is among the lowest in the country, but also as regards health and, above all, sustainable development.”109 The same report emphasized that Chocó department “has been characterized by having a corrupt public administration, not only because of the diversion of public funds, but also owing to the award of permits or the corruption of public officials by logging companies, the illegal expansion of palm plantations and, in general, all kinds of mining exploitation.”110
A.3. Public order situation and acts of violence against the Cacarica communities
The Urabá region is of major geostrategic importance in the armed conflict, in particular for the illegal armed groups, given its geographical location and its biological wealth (supra paras. 83 and 84). This geographical location is favorable for the international trafficking of arms, chemical products, and illegal drugs. It is also a strategic territory from a military perspective because it serves as a hiding place and is a corridor to the southwest and the Bajo Cauca Antioqueño, the Sinú Valley, and the Nudo de Paramillo and a corridor to the western part of Antioquia. Consequently, “for more than three decades, the Urabá has been an epicenter of the armed conflict, which has extended to nearby areas, especially to Chocó.”111
Regarding the situation of violence in the Urabá region, it is an undisputed fact that the illegal armed groups have sought out this region as a corridor; that the banks of its rivers are used by the illegal armed organizations to commit crimes, and that the Darién Chocóano is used by these groups for trafficking arms and illegal drugs.112 In addition, the State indicated, and the parties did not contest this, that, in the southwestern part of the municipality of Riosucio, the illegal armed groups are cutting down native species extensively, in order to plant coca, oil palms and bananas.
With regard to the illegal armed groups that were active in the region, the evidence presented by the Prosecutor General’s Office indicates that the guerrilla appeared during the 1960s with the entry of the FARC, the People’s Liberation Army (hereinafter also “EPL”113) and the National Liberation Army (hereinafter “ELN”). Meanwhile, the paramilitary groups entered the area starting in 1988 and their presence was “reinforced” after 1994 by the Peasant Self-Defense Forces of Córdoba and Urabá (hereinafter “ACCU”).114 The evidence indicates that the Self-Defense Forces present in the region were composed of former members of the EPL.115 These groups “have fought to maintain their presence, expanding or contracting according to the rhythm and circumstances of the armed conflict, as well as to the alliances and rivalries based on the illegal activities and strategic advantages.”116
In 1996 and 1997, the illegal armed groups that were involved in criminal activities in the Urabá were self-defense groups (or paramilitaries); in other words, “blocs” or “groups”117 of the ACCU118 and members of the guerrilla, especially the FARC 57th Front.119 It was also around this time that the armed conflict was “extended” and intensified in the Urabá region.120 According to the evidence in the case file, this exacerbation of the conflict in the region was related, among other reasons, “to large-scale military operations that included dropping bombs and that were aimed against the 57th and 34th Fronts, especially in the northern part of the department, in the municipalities of Riosucio, Ungula and Acandí,”121 and with “the intense and ferocious armed incursion” and subsequent consolidation of the paramilitary groups.122
The historical presence of the guerrilla in the region123 was opposed and disputed by the paramilitary groups, most of who came from Urabá Antioqueño. Particularly, as of the mid-1990s, when its first activities commenced, carrying out a “pacification” process “that is still remembered owing to the wave of terror and the destruction of the social tissue and the community organization.”124 As of 1996, the paramilitary units of the AUC began to advance upriver, using threats, intimidation, persecution, economic blockades, and murders that affected several communities of the municipality of Riosucio, the Cacarica River and Curvaradó.125 Little by little the actions of the illegal armed groups expanded, “causing massive displacements, that resulted in social chaos in this region.”126 In addition, “loyalties” emerged as a necessary condition for the inhabitants of the area to remain there, with no place for neutrality.127
Regarding the above, the Ombudsman’s Office indicated that, “since 1996, the communities of the Bajo Atrato have been subjected to continuing pressure by the FARC and the AUC [United Self-Defense Forces of Colombia]. It would appear that the organizational processes of the communities, before and after the forced displacement, impaired the latter’s ability to control the population.” The Office added that the “the intention of the communities to maintain their autonomy in the face of these armed agents limited the possibility of the guerrilla and the self-defense forces using them,”128 and that, also, “the latter consider this intention a threat to their plan to control the territory and to establish ways of exploiting the territory that are in keeping with their funding needs.”129In this situation, the presence of illegal armed agents, added “to the historical absence of the State in certain parts of the region,” permitted the dominant armed group to try and impose lines of conduct on the population as they saw fit.130
As indicated, the Afro-Colombian population of the region had to support the presence on its territory of different illegal armed groups, accompanied by threats, murders and disappearances, which led to their displacement.131 Also, as revealed by the body of evidence, during the second half of the 1990s, the region was the scenario of large-scale forced displacements. According to the information provided by the Ombudsman’s Office, in 1997, more than 15,000 people were displaced from the region of Bajo Atrato Chocóano.132 In 2002, the mass displacement increased and led to a sustained humanitarian crisis in the Bajo Atrato, unprecedented in the history of the country.133 In addition, the continued violation of human rights and international humanitarian law by the armed groups has prevented the completion of the return of the communities displaced from Bajo Atrato.134
