Even though this case has been processed as “Marino López et al.” and as “Operation Genesis,” the Commission and the representatives have alleged violation of the Convention in relation to a broader factual framework described in the merits report. Also, in addition to alleging that the State was responsible for the death of Mr. López and for the forced displacement of the communities, presumably as a result of the bombing carried out in the context of Operation Genesis, it was also alleged that this displacement occurred because of activities of collaboration, acquiescence or connivance between members of the Armed Forces and the paramilitary groups that took part in the so-called “Operation Cacarica.” Furthermore, it was alleged that the State is responsible for the conditions faced by those who were displaced in both Turbo and Bocas de Atrato in the years following the events of February 1997, as well as for the dispossession and illegal exploitation of their communal territories before, during and after those events.
In this regard: (a) on February 24, 1997, the military counterinsurgency operation known as “Genesis” was initiated in the area of the Salaquí and Truandó Rivers, municipality of Riosucio, Chocó, during which at least seven objectives established in the respective military operations order were attacked (supra para. 101); (b) in parallel and simultaneously, within the framework of what later became known as “Operation Cacarica” by the authorities who investigated the events, paramilitary units of the “Chocó Bloc” and of the “Pedro Ponte” Group moved into the area of the Cacarica River basin, several kilometers to the north of the place where Operation Genesis was being implemented, threatening and terrorizing the inhabitants of the region, ordering them to abandon their possessions and displace (supra para. 102); (c) during these incursions, on February 26, 1997, these paramilitary units killed Marino López in the village of Bijao (supra para. 108), and (d) over a period of time that partly coincided with the implementation of Operation Genesis, a large group of inhabitants of the Cacarica river basin was forced to displace to Turbo, Bocas de Atrato and the Republic of Panama (supra para. 111). After the forced displacement, these groups of people faced difficult, unsafe and even precarious living conditions in the places where they settled provisionally, following which several hundred of these people returned to territories in the Cacarica region.
Consequently, in order to determine the scope of the State’s responsibility in relation to these events, the Court will analyze the following: 1. Operation Genesis and the paramilitary raids (“Operation Cacarica”) as causes of the forced displacement of the communities of the Cacarica river basin and of the death of Marino López (Articles 4(1), 5(1) and 22 of the Convention); 2. The condition of displacement faced by the communities following the events of February 1997 (Articles 5(1), 11, 17, 19, 22 and 24 of the Convention); 3. The dispossession and illegal exploitation of the teritories of the Afro-descendant communities of the Cacarica region (Article 21 of the Convention), and 4. The investigations and criminal and other proceeding (Articles 8(1) and 25 of the Convention).
IX.1
“OPERATION GENESIS” AND THE PARAMILITARY INCURSIONS (“OPERATION CACARICA”) AS CAUSES OF THE FORCED DISPLACEMENT OF THE COMMUNITIES OF THE CACARICA RIVER BASIN AND THE DEATH OF MARINO LÓPEZ
(Articles 4, 5 and 22 of the Convention)
Arguments of the Commission and of the parties
Rights to life and to personal integrity The Commission affirmed that, in the instant case, the State had “ordered and executed a military operation, during which the bombing caused harm to the civilian population, without preventive or protective measures having been taken.” Regarding the counterinsurgency military operation known as “Operation Genesis,” it indicated that the State had “general and special duties to protect the civilian population under its care, derived from international humanitarian law,” and observed that the bombing during this operation, “was carried out indiscriminately,” without respecting the pertinent provisions of international humanitarian law that, in this case, are the principles of distinction, proportionality and precaution. It also indicated that these “bombings […] comprised a series of actions that caused fear and endangered the security and personal integrity of the members of the Cacarica Afro-descendant communities; and caused their displacement.” The Commission also indicated that there were “clear indications about the operational coordination between members of the Army and paramilitary groups,” in particular, “the dynamic of the development of both operations.”409
Regarding the death of Marino López, the Commission indicated that this was not an isolated event, but “took place against a predetermined background and with a specific objective: to terrorize the population to achieve its forced displacement.” It added that, “beyond the assessment of the evidence on the material responsibility for the torture and murder of Marino López, the criteria of State responsibility must be applied for the acts committed by members of a paramilitary group, given that it did not act with due diligence to adopt the measures required to protect the civilian population in keeping with the circumstances described.” Consequently, the Commission indicated that the human rights violations that were committed on the occasion of the torture and extrajudicial execution of Marino López can be attributed to the State, as well as failure to comply with the obligation to take the necessary measures to prevent them and to protect his life in violation of Articles 4(1), 5(1) and 5(2) of the Convention, in relation to its Article 1(1).
The Commission also considered that both the said torture and the extrajudicial execution of Marino López had also resulted in the international responsibility of the State owing to the violation of the right to personal integrity of his next of kin, in violation of Article 5(1) of the American Convention, in relation to Article 1(1) of this instrument.
The representatives agreed with the Commission and added that “[t]he responsibility of the State of Colombia for the violation of the right to life in this case is based on two circumstances: the first, owing to the violation of the right of Marino López not to be deprived of his life arbitrarily and, second, owing to the State’s failure to comply with its obligation to protect and ensure the creation of conditions for those persons subject to its jurisdiction to be able to enjoy life in decent conditions.”410 The representatives indicated that the State was also responsible for the violation of Articles 1 and 8 of the Inter-American Convention to Prevent and Punish Torture because the treatment of which Marino López was a victim also accorded with the definition of torture. Lastly, they indicated that “the murder of Marino López has not been investigated effectively and, even today, none of those responsible has been convicted, nor have those who benefited from it been identified or punished”; thus, the State “failed to comply with mandates of the Convention concerning respecting and ensuring inalienable rights.”
The representatives added that the human rights violations should be interpreted taking into consideration the fact that the victims were Afro-descendants, the principles and norms of international humanitarian law, and their character of crimes against humanity, because they took place in a context of systematic attacks on the civilian population.
Meanwhile, the State indicated that Operation Genesis was a legitimate military operation; that it was planned, prepared, executed and consolidated under the Constitution, observing the parameters defined by international humanitarian law during all its stages, and with the participation “exclusively [of] regular troops” members of the Colombian Military Forces.411 Similarly, the State indicated that Operation Genesis was planned, designed and implemented in accordance with international humanitarian law and “the use of force was addressed only and exclusively against military objectives that had been duly and carefully identified during its planning.” The State denied that this operation was the cause of the forced displacement of the inhabitants of the Cacarica River basin, because it was conceived to be executed […] in the areas of the basins of the Salaquí and Truando Rivers,” and not there; and also because the “forced exodus resulted from an illegitimate order given by the FARC.”
The State also argued that if it were established that the possible fear that might be caused by the legitimate use of force, and the decisions taken by the population based on that fear give rise to the international responsibility of the State, “it would be impossible for [the State] to comply not merely with its right, but with its obligation, to try and neutralize those who commit violent acts, and to combat crime.”
Furthermore, the State denied the assertion by the representatives of the presumed victims that a paramilitary strategy existed that was a generalized policy of Colombia. In this regard, it affirmed that it had never been the State’s policy to act in conjunction with the illegal self-defense groups, or allow or tolerate, by act or omission, their criminal activities. “The existence of the paramilitary movement, and its unfortunate and casuistic connivance with some members of the State’s Armed Forces have been recognized previously by the Court […], but in none of those cases did the Court consider that the State had an institutional policy addressed at encouraging or strengthening the illegal self-defense groups.”
The State also indicated that, in this case, the circumstances of a systematic pattern alleged by the Commission were not present, and that the expression “crime against humanity” could not be understood unless it was “to assess the legal consequences of the violations that have been alleged in the case and that, therefore, this assessment lacks legal consequences as regards the domestic criminal investigations that are underway.”412
Regarding the death of Mr. López Mena, the State affirmed that “this deplorable act, the authorship of which has been claimed by those demobilized from the illegal self-defense groups […] bears no relationship to, and even less is associated with, the process of planning, preparation and execution of Operation Genesis.” It also asserted that “there is no evidence based on which it can be inferred that [regular troops took part] in the execrable murder of Marino López Mena” or that the forced displacement of the inhabitants of the Cacarica River basin can be attributed to this. Furthermore, the State indicated that it cannot be held internationally responsible for the violation of his right to life because it was not State agents who murdered him, neither was it State agents who gave the order to kill him, and “above all, State agents were not present on the day the events occurred.”413
In this regard, it indicated that the theory of the international responsibility of the State is based on customary law, even in relation to human rights, and that “the risk theory according to which the State responds merely because it is the State, has no legal basis.”414
Freedom of movement and residence The Commission and the representatives argued that, as a result of the bombing during ‘Operation Genesis,’ the paramilitary incursions in the Cacarica river basin, and the acts of violence that occurred in this context, which included the torture and death of Marino López, as well as the threats made by the paramilitaries against the civilian population, the Afro-descendant communities, and especially the women and children, the population was obliged to forcibly displace. Accordingly, the State was responsible for the violation of Articles 2, 5 and 17 of the Convention in relation to Articles 11(1), 19, 22 and 24 of this instrument.
The Commission emphasized that the State had incurred international responsibility for the forced displacement on two different but interrelated levels: for its active role in originating it, and for the failure to provide an adequate and effective response following it.
The representatives affirmed that the State had “severely violated the right to freedom of movement of the victims of this case,” based on “three fundamental elements to establish this responsibility”: (a) the “absolute restriction of freedom of movement of the members of the communities on the days when the paramilitaries and the soldiers carried out the incursion in the Cacarica river basin”; (b) “the massive forced displacement of the communities of the Cacarica, originated by the State itself by the action of the Armed Forces and the paramilitary strategy, which it directed towards Turbo,” and (c) the fact that the “State has not taken measures to ensure the integral return of the communities to their territories, and to their family and community life.”
The representatives asked that the Court bear in mind the “State’s responsibility in light of international humanitarian law […] in accordance with the obligations to respect and to ensure” under Article 29 of the Convention; the aggravated responsibility of the State because the facts took place within a “pattern of systematic violence against the civilian population that severely affected a human group in a situation of evident vulnerability,” and because the investigation into the facts “has not been conducted in keeping with the standards of due diligence.” Lastly, the representatives also considered that the facts of this case should be classified as crimes against humanity, insofar as “there was a plan to commit a systematic attack against the Afro-descendant communities that inhabit the Cacarica River basin.”
The State affirmed its “rejection and disagreement with the position of the Commission and of the representatives indicating that [the State] had the overall and abstract responsibility for the existence of the illegal armed groups, known as self-defense or paramilitary groups.” It also underscored the “absence of evidence” that would prove “the causal nexus between the displacement alleged by the ‘victims’ and the events that occurred between February 24 and 27, 1997, at the time of Operation Genesis”. Nevertheless, and as an example of the efforts made to attend to and resolve the phenomenon of displacement in the region, the State outlined “a series of measures, actions and policies implemented in good faith as a result of what happened and that included monitoring the return to the Cacarica region of the displaced communities that had settled in Turbo, Bahía Cupica and Bocas del Atrato.” On this basis, it concluded that “the forced displacement of the inhabitants of the Cacarica cannot be attributed to the State, because, as described, the civilian population was not, and is not, an objective of operations undertaken by the Colombian Armed Forces.”
The State also observed that, in “these proceedings it has been proved sufficiently that the mobilization of the population of the communities that inhabit the river valley was not caused by an act or omission that can be attributed to State agents.” Thus, it indicated that “the displacement was a de facto situation that was not caused by the Armed Forces,” and it underlined the “series of actions [undertaken] in favor of the displaced.”415
