Considerations of the Court

Considerations of the Court

315. 
     This Court has indicated in other cases that, owing to the complexity of the phenomenon of internal displacement and the broad range of human rights it affects or jeopardizes, and based on the circumstances of special vulnerability and defenselessness in which those displaced usually find themselves, their situation can be understood as a de facto situation of lack of protection.⁵⁶¹ According to the American Convention, this situation obliges the States to adopt measures of a positive nature to reverse the effects of their said situation of weakness, vulnerability and defenselessness, even in relation to the actions and practices of private third parties.⁵⁶²
     
316. 
     The Colombian Constitutional Court has referred to the situation of vulnerability of the displaced as follows: “owing to the circumstances that surround internal displacement, the persons […] who are obliged ‘to abandon their place of residence and their usual economic activities hastily, and migrate to another place within the borders of national territory’ in order to flee from the violence generated by the internal armed conflict and by the systematic disregard for human rights or international humanitarian law, are exposed to a much greater degree of vulnerability, which entails a gross, massive and systematic violation of their fundamental rights and, for the same reason, warrants granting special attention from the authorities. Those displaced by the violence are in a situation of weakness that makes them deserving of special treatment by the State.”⁵⁶³
     
317. 
     Similarly, the Constitutional Court has indicated that the vulnerability of the displaced is accentuated by their rural origins and, in general, has a particularly intense effect on women who are heads of household and represent more than half the displaced population. Internal displacement also creates a security crisis, because the groups of internally displaced become a new source or resource for recruitment by paramilitary, drug-trafficking and guerrilla groups.⁵⁶⁴ Among the many adverse effects of the resettlements resulting from the internal forced displacement, in many cases, the return home of the displaced is carried out without the necessary conditions of security and dignity for them.⁵⁶⁵ In addition to the severe psychological effects, the following have been stressed: (a) loss of land and dwelling; (b) marginalization; (c) loss of home; (d) unemployment; (e) deterioration in living conditions; (f) increase in diseases and in mortality; (g) loss of access to property; (h) food insecurity, and (i) social dislocation, impoverishment, and an accelerated deterioration of living conditions.⁵⁶⁶
     
318. 
     As verified in other cases, the Court takes note that, in order to deal with the problem of internal displacement, Colombia has taken a series of measures⁵⁶⁷ at the legislative level (including the recent Law on victims and land restitution), and also the administrative and judicial levels, including numerous laws, decrees, documents of the National Council for Economic and Social Policy (CONPES),⁵⁶⁸ presidential decrees and directives. Nevertheless, as this Court has already indicated in other cases, the Constitutional Court has established “the existence of an unconstitutional state of affairs in the situation of the displaced population owing to the discrepancy between the severity of the effects on the rights recognized by the Constitution and developed by the law, on the one hand, and the volume of resources devoted to ensuring the effective enjoyment of those rights and the institutional capacity to implement the corresponding constitutional and legal mandates, on the other.”⁵⁶⁹
     
319. 
     In this case, the representatives and the Commission indicated that the State had failed to comply with its obligations to ensure the rights to personal integrity, to honor and dignity, to the protection of the family, and measures of protection for children, to the detriment of the persons displaced from the Cacarica river basin. They also indicated that the State had not complied with its obligation to ensure and respect the rights without any discrimination based on race or color, and the right to equal protection of the law owing to the harm caused by Operation Genesis, the paramilitary incursions, and the subsequent forced displacement suffered by the Afro-descendant communities of the Cacarica associated in CAVIDA and by the women heads of household who live in Turbo.
     

B.1. Rights not to be displaced and to personal integrity

320. 
     Starting in January 2000, one segment of the communities displaced from Cacarica began the process of returning to their territory, while another group of the displaced population chose to locate definitively in the town where they had taken refuge following the respective agreement signed with the Government (supra para. 125). Meanwhile, the displaced who returned to Cacarica had remained in a situation of displacement for between three and four years (supra para. 126). Also, there is evidence that, at that time, the factors that had led to the displacement in 1997 persisted in the region, above all the situation of violence and the presence of illegal armed groups. In particular, it is considered to be a proven fact that the communities of “Esperanza en Dios” and “Nueva Vida” continued to be subjected to threats, harassment and acts of violence by the armed groups (supra para. 129).
     
321. 
     It has been proved that, between 150 and 320 of the families displaced towards the end of February 1997 were accommodated in the Turbo sports arena and in two shelters built with the aid of international agencies and Government resources, through the former Social Solidarity Network (supra para. 117). Most of these families remained in Turbo and in the El Cacique - Bahía Cupica (Chocó) hacienda for more than two years. Numerous families were split up or separated as a result of the displacement. It has also been possible to verify that, in Turbo, the living conditions of the displaced were characterized by overcrowding, absence of privacy, lack of basic health care services, unbalanced and insufficient nutrition, and insufficient or poor quality water. In November 1997, aid was officially suspended to 75 families “due to lack of funds.” All the foregoing led to the proliferation of diseases, with the risk of an epidemic. The Court has also been able to confirm that the measures taken by the State to protect the population were insufficient (supra para. 118).
     
322. 
     During the time that the displacement lasted for those who returned, the State provided limited aid for the return: (a) humanitarian aid to 10 families who underwent voluntary repatriation from Jaqué (Panama) to Nueva Vida in 2004; (b) actions in the Cacarica river valley addressed at providing attention to the communities;⁵⁷⁰ (c) food for Cupica and Turbo from May 1999 and January 2000, respectively, until December 2000, valued at 1,243,475,684 Colombian pesos; (d) payment of public services of water and electricity for Turbo and the two shelters, valued at 68,233,062 Colombian pesos, and (e) provision of “toiletry kits, dishes, cooking utensils and stoves valued at 172,676,618 Colombian pesos.⁵⁷¹
     
323. 
     The measures of basic assistance provided by the State during the period of displacement were insufficient, because the physical and mental conditions that those displaced had to face for almost four years were not in keeping with the minimum standards required in such cases. The overcrowding, the food, the supply and management of water, as well as the failure to adopt measures with regard to health care, reveal non-compliance with the State’s obligation to provide protection following the displacement, with the direct result of the violation of the right to personal integrity of those who suffered the forced displacement.
     
324. 
     Consequently, the State failed to comply with its obligations to ensure humanitarian assistance and a safe return, within the framework of the right to freedom of movement and residence, and the protection of the right to personal integrity, recognized in Articles 22(1) and 5(1) of the American Convention, in relation to Article 1(1) of this instrument, to the detriment of the Cacarica communities that were in a situation of forced displacement over a three- to four-year period.⁵⁷²
     

B.2. Right to protection of the family

325. 
     The Court has indicated in other cases that the right to protection of the family involves, among other obligations, that of promoting as extensively as possible, the development and enhancement of the family unit.⁵⁷³ In this case, the Court notes that there is information on overcrowded conditions, lack of privacy, and harm to the family structures (supra para. 118). This reveals that, while the situation of displacement of the Cacarica communities lasted, the State did not take the positive measures required to ensure the due protection and integrity of the displaced families, whose members were split up or separated.
     
326. 
     Nevertheless, neither the Commission nor the representatives presented sufficient information to determine the specific characteristics of the families within the community life of the Afro-descendant communities of the Cacarica. Thus, although they provided some information on the displacement conditions, when indicating that these communities had a communal lifestyle, the Commission and the representatives failed to explain or provide grounds for the specific ways in which the members of these communities exercised their rights of the family or, consequently, the specific harm that the events caused. Therefore, the Court has insufficient evidence to analyze the facts under Article 17 of the Convention.
     

B.3. Rights of children and adolescents

327. 
     The Court has established that the alleged violations of other articles of the Convention of which children are presumed victims must be interpreted in light of the corpus iuris of the rights of the child. This means that in addition to granting special protection to the rights recognized in the American Convention, Article 19 establishes an obligation of the State to respect and to ensure the rights recognized to children in other applicable international instruments.⁵⁷⁴ It should be recalled that the Court has indicated that “the special vulnerability owing to their condition as children is even more evident in a situation of internal armed conflict, […] because they are the least prepared to adapt or respond to this situation and, sadly, it is they who suffer its excesses disproportionately”;⁵⁷⁵ hence, in this context, adequate attention must be provided to them and the appropriate measures taken to facilitate the reunification of families that have been temporarily separated.⁵⁷⁶
     
328. 
     In addition, any decision of the State, society or the family that entails a limitation to the exercise of any right of a child must take into account the principle of the best interests of the child and be rigorously in keeping with the provisions that regulate this matter.⁵⁷⁷ This regulating principle of the normative on the rights of the child is based on the dignity of the human being, on the inherent characteristics of children, and on the need to foster their development taking full advantage of their potential. Similarly, it should be noted that, in order to ensure, to the fullest extent possible, the prevalence of the best interests of the child, the preamble to the Convention on the Rights of the Child establishes that the child requires “special safeguards and care,” and Article 19 of the American Convention indicates that the child must receive special “measures of protection.”⁵⁷⁸ Hence, it is necessary to assess not only the requirement of special measures, but also the particular characteristics of the situation in which the child finds himself.⁵⁷⁹
     
329. 
     Regarding the conditions at the displacement sites, the Court has been able to verify that the State carried out a series of actions designed to provide assistance to the communities once they returned to the Cacarica region (supra para. 127). In particular, the State provided complete information on the assistance given to the Peace Communities.⁵⁸⁰ Nevertheless, the Court has also observed that the persons who were at the displacement sites suffered, for at least three years, from different types of scarcities and violations of their right to integrity (in terms of conditions of hygiene, and access to health care and essential basic services, among other elements) (supra para. 118). The Court notes that this lack of attention is especially serious when those affected are persons in a situation of special vulnerability, such as children.
     
330. 
     In the instant case, it has not been disputed that, as a result of the facts of the case, several hundreds of persons from the Cacarica River communities had to displace, among whom were children,⁵⁸¹ while others were born in conditions of displacement.⁵⁸² Consequently, the State is responsible for the violation of the rights of the child, because it failed to take sufficient positive measures in their favor in a context of greater vulnerability, in particular while they were far from their ancestral territories, a time during which they were affected by the lack of access to education and health care, by overcrowding, and a lack of adequate nutrition.
     
331. 
     The Court considers that the State failed to comply with its obligation to provide special protection to the children affected by the incursions and the subsequent forced displacements, because it failed to comply with its special obligation to protect them in the context of a non-international armed conflict. Therefore, the Court concludes that the State is responsible for the violation of the rights to personal integrity of the displaced children, as well as of those who were born in a situation of displacement, recognized in Article 5 of the American Convention, in relation to Articles 1(1) and 19 of this instrument.
     

B.4. Other alleged violations

332. 
     Regarding the obligation to guarantee rights without discrimination, the Court has established that Article 1(1) of the Convention is a general norm the content of which extends to all the treaty’s provisions and establishes the obligation of the States Parties to respect and ensure the full and free exercise of the rights and freedoms recognized therein “without any discrimination.” In other words, whatever its origin or form, any treatment that could be considered discriminatory in relation to the exercise of any of the rights guaranteed in the Convention is per se incompatible with it.⁵⁸³ States are obliged to adopt positive measures to reverse or modify any discriminatory situations that exist in their societies that affect a specific group of persons. This entails the special obligation of protection that the State must exercise with regard to actions and practices of third parties who, with its tolerance or acquiescence, create, maintain or encourage discriminatory situations.⁵⁸⁴
     
333. 
     Furthermore, the Court reiterates that while Article 1(1) refers to the general obligation of the State to respect and ensure, “without any discrimination,” the rights contained in the American Convention, Article 24 protects the right to “equal protection of the law.”⁵⁸⁵ Thus, Article 24 of the American Convention prohibits legal or factual discrimination, not only with regard to the rights established in this treaty, but also with regard to all the laws enacted by the State and their application. In other words, if a State discriminates in the respect and guarantee of a Convention-based right, it would be failing to comply with the obligation established in Article 1(1) and the substantive right in question. If, to the contrary, the discrimination relates to an unequal protection of the domestic law or its application, the fact must be analyzed in light of Article 24 of the American Convention.⁵⁸⁶
     
334. 
     In the instant case, the parties and the Commission have not presented arguments indicating which domestic laws, or their application, would be contrary to the American Convention. Therefore, the Court is unable to analyze the alleged violation of the right to equality and non-discrimination under Article 24 of the Convention, but only under Article 1(1) of the Convention in relation to Articles 11(2) and 17 thereof.
     
335. 
     The Court notes that the representatives and the Commission have presented arguments on presumed discriminatory acts based on expressions or statements by members of the paramilitary units when the events occurred, which allegedly denoted racist stereotyping with regard to the ethnic origin and color of the skin of the Cacarica population. Similarly, they have indicated that, during these incursions and at the time of the voluntary confessions made before the special Justice and Peace jurisdiction, the paramilitaries identified both Marino López and other inhabitants of the Cacarica region as collaborators with the guerrilla.
     
336. 
     In this regard, the Court notes, first, that no evidence was provided to prove that these statements were made by State agents or tolerated in the latter’s presence. Nor do the arguments or the evidence in the case file reveal that public officials promoted versions of the events of the case in which members of the Afro-descendant communities of the Cacarica were considered collaborators and members of guerrilla groups. Furthermore, regarding the confessions made during domestic procedures, it is not for the Court to rule on the international responsibility of the State in relation to expressions used by the accused who have testified in exercise of their right of defense, or who are candidates to receive certain benefits under the special judicial proceedings.
     
337. 
     Second, the Court notes that other allegations concerning the obligation to ensure rights without discrimination were also presented in relation to the absence of differentiated attention for the displaced owing to their condition of greater vulnerability. In this regard, the Court takes note that neither the Commission nor the representatives have presented specific arguments or information that would allow it to analyze these presumed violations in light of the provisions of the American Convention. In particular, they did not explain the specific actions that the State should have taken to comply with that obligation. Consequently, the Court has insufficient evidence to assess the State’s alleged failure to comply with the said obligations.
     
338. 
     Regarding the arguments of the representatives related to Articles 11(1) and 2 of the Convention, the Court will not rule in this regard, because it considers that the facts have been analyzed sufficiently, and the violations conceptualized under the right to personal integrity, to the protection of the family, and the measures of protection for children, under Articles 5, 17 and 19 of the American Convention, in relation to Article 1(1) of this instrument.