Inter-american court of human rights

409 Similarly, the Commission noted that, during the paramilitary incursions, acts of violence were perpetrated agains the members of the Cacarica communities and stressed, in particular, accusations, shooting to intimidate the population, throwing grenades onto the roofs of dwellings, ransacking property and burning buildings, together with the order to displace to Turbo. The Commission also indicated that, from a comprehensive reading of the context, the background and the events of the present case, in the area and at the period of the events, “a systematic pattern of operations of the kind described” existed, under which the acts were perpetrated against a background of “systematic violence suffered by members of the Cacarica Afro-descendant communities, which constitutes a crime against humanity.” Lastly, it stated that, according to the rules of sound judicial discretion, it was “implausible” that paramilitary forces had been able “to enter so freely and operate, without interruption, in an area where the Colombian Armed Forces were present, committing a series of extremely serious and large-scale crimes over several days.”

410 They stated that the events described constituted a violation of Article 4(1) of the Convention, because they show that the State, through members of the paramilitary strategy and in the context of Operation “Genesis” violated that right to the detriment of Marino López.

411 It also observed that “the operations carried out by the Air Force were executed exclusively over previously identified military objectives; they sought to neutralize illegal armed groups that were undermining public order, and were thus in keeping with the constitutional mandate and the goal of protecting the civilian population and its property.”

412 It added that, according to “the Court’s case law, in order to affirm the existence of (and even to characterize) a pattern, it is not sufficient to argue that there was generalized violence or that this violence was perpetrated against members of one group.” It indicated that it was “necessary to establish a very specific moment and a modus operandi for the conducts, which clearly did not occur in this case.”

413 In this regard, it underlined that the judgment delivered by the Eighth Criminal Court of the Bogota Special Circuit on August 23, 2012, indicated that “the acts were committed only and exclusively by members of the illegal self-defense groups or paramilitary groups, without any type of collaboration or acquiescence by Colombian State agents.”

414 The State mentioned that, although there is a first instance judgment convicting General Rio for the crime against Marino Lopez, “this is based on the theory of the ‘command responsibility’ in an organized power structure,” which “supposes that the accused is part of the criminal organization, not that the criminal organization acted ‘under the instructions or direction and control of the State’”; thus it considered that, “in any case, the murder of Marino Lopez would be only and exclusively the responsibility of those who are sentenced and convicted, when the case is res juzgata, and their conduct could never give rise to the international responsibility of the State.”

415 The State indicated, specifically, that the “the Government’s first direct approach to the issue was in CONPES document 2804 of 1995, in which it approved the National Program for Comprehensive Assitance to People Displaced by Violence. It added that, owing to institutional shortcomings, a new CONPES document was issued in 1997, No. 2924 entitled National System for Comprehensive Assistance to People Displaced by Violence, which modified the institutional framework previously proposed. […] Nevertheless, in view of the urgency of the situation, the Executive and the Legislature combined efforts and Law 387 of 1997 was enacted. This law ordered comprehensive attention to the displaced population based on three stages of attention to displacement: Prevention, Humanitarian attention, and Economic stabilization […].” The State indicated that, “although, at the time of the events, Law 387 of 1997 was not in force adopting measures to prevent forced displacement, and to provide attention, protection, and economic stabilization and consolidation to those displaced internally owing to the violence in the Republic of Colombia, this law came into force on July 18 that year and, as of that time, attention to and reparation for those displaced came under the coordination of the former Social Solidarity Network which carried out activities to strengthen the management mechanisms and instances that, at the different territorial levels, implemented the System of Comprehensive Attention to the Displaced Population.” “The State: (a) provided emergency humanitarian assistance to the population that moved from the Cacarica River basin to Bocas del Atrato and to the municipality of Turbo; (b) in order to ensure the sustainability of the return of the inhabitants, it created a verification commission with the participation of a substantial number of Government ministries and institutons and international Governments and cooperation agencies, as well as representatives of the presumed victims; (c) within this framework, programs on health, housing, production projects, and family reunification and attention were implemented, among many other actions designed to attend to the displaced population, and (d) the Government also ordered the award of collective land titles over more than 100,000 hectares to the communities of the river basin.”

416 Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of November 19, 1999. Series C No. 63, para. 144, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 190.

417Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits, paras. 144 and 145, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 190.

418 Case of Loayza Tamayo v. Peru. Merits. Judgment of September 17, 1997. Series C No. 33, para. 57, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 191.

419Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits, para. 165, Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 191.

420Cf. Case of the Moiwana Community v. Suriname. Preliminary objections, merits, reparations and costs. Judgment of June 15, 2005. Series C No. 124, para. 110, and Case of the Massacres of El Mozote and nearby places v. El Salvador. Merits, reparations and costs, para. 186.

421 Cf. Case of the Mapiripán Massacre v. Colombia, para. 188, and Case of the Massacres of El Mozote and nearby places v. El Salvador. Merits, reparations and costs, para. 186.

422 Cf. Case of Chitay Nech et al. v. Guatemala. Preliminary objections, merits, reparations and costs. Judgment of May 25, 2010. Series C No. 212, para. 149, and Case of the Massacres of El Mozote and nearby places v. El Salvador. Merits, reparations and costs, para. 188.

423 Cf. Case of Chitay Nech et al. v. Guatemala, para. 149, and Case of the Massacres of El Mozote and nearby places v. El Salvador. Merits, reparations and costs, para. 188.

424 Cf. Case of the Ituango Massacres v. Colombia. Preliminary objection, merits, reparations and costs, para. 179, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 187.

425 It should be recalled that international humanitarian law must be applied by the parties in the context of non-international armed conflicts, provided that the events correspond to situations that occur because of and during an armed conflict. In this case, there is no dispute about the fact that the situation must be analyzed by the Court interpreting the American Convention in light of the pertinent provisions of international humanitarian law. Cf. Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, footnote 254.

426 See, in particular, Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted on August 12, 1949, at Geneva. Entry into force: October 21, 1950, and ratified by Colombia on November 8, 1961.

427 Colombia has been a party to Additional Protocol II to the 1949 Geneva Conventions and relating to the Protection of Victims of Non-International Armed Conflicts since August 14, 1995.

428 Cf. Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 187.

429 Cf. Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, paras. 212, 214 and 216.

430 Cf. Case of the Mapiripán Massacre v. Colombia. Merits, and reparations, para. 172 and Case of the Moiwana Community v. Suriname. Preliminary objections, merits, reparations and costs, paras. 113 to 120. Also, see Colombian Constitutional Court, Judgment C-225 of May 18, 1995, para. 33: “In the Colombian case, also, the application of these rules by the parties in conflict is particularly urgent and important, because the armed conflict that the country is experiencing has severly affected the civilian population, as shown, for example, by the alarming data on the forced displacement of persons.” Similarly, the Guiding Principles on Internal Displacement developed by the Representative of the Secretary-General of the United Nations (cf. United Nations Guiding Principles on Internal Displacement E/CN.4/1998/53/Add.2 of 11 February 1998) may also be useful as a criterion for the hermeneutic interpretation of the content of the right to freedom of movement and residence established in Article 22 of the American Convention.

431 Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits, para. 139, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 188.

432 Cf. Case of the Pueblo Bello Massacre v. Colombia. Merits, para. 111, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 188.

433 Cf. Case of Velásquez Rodríguez v. Honduras, Merits, para. 166, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 189.

434 Case of Velásquez Rodríguez v. Honduras. Merits, para. 174, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 189.

435 Cf. Case of Velásquez Rodríguez. Merits, para. 164, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 188.

436 Cf. Case of the Mapiripán Massacre v. Colombia. Merits, and reparations, para. 111, and Case of the Pueblo Bello Massacre v. Colombia. Merits, para. 113.

437 Cf. Case of the Pueblo Bello Massacre v. Colombia. Merits, para. 123, and Case of Valle Jaramillo et al. v. Colombia. Merits, reparations and costs. Judgment of November 27, 2008. Series C No. 192, para. 78.

438 The Court is not a higher or appeal court to decide the disagreements between the parties concerning specific implications of the evidence or of the application of domestic law on aspects that are not directly related to compliance with international human rights obigations. Cf. Case of Nogueira de Carvalho et al. v. Brazil. Preliminary objections and merits. Judgment of November 28, 2006. Series C No. 161, para. 80, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 193.

439 Case of Nogueira de Carvalho et al. v. Brazil, para. 80, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 193.

440 Cf. Affidavits of January 21, 2013, prepared by Jhon Jairo Mena, Eleodro Sanchez Mosquera, Marco Fidel Velásquez and Ernestina Valencia Teheran (evidence file, folios 14982, 14983, 15011, 14950 and 15021) and the testimony of M.A.C.M. before the Prosecutor General’s Office, National Human Rights and International Humanitarian Law Unit, on December 11, 2002 (evidence file, folio 632).

441 Cf. Report of the United Nations High Commissioner for Human Rights on the Office in Colombia to the fifty-fourth session of the Commission on Human Rights. E/CN.4/1998/16, 9 March 1998, para. 103 (evidence file, folio 752). See also: United Nations, Commission on Human Rights, Report of the Representative of the Secretary-General on internally displaced persons submitted in accordance with Commission resolution 1999/47, E/CN.4/2000/83/Add.1 (evidence file, folios 712,713 and 715).

442 Cf. Amnesty International. Colombia. Return to hope - forcibly displaced communities of Urabá and Medio Atrato region, June 2000 (evidence file, folio 1157); Secretariado Nacional de Pastoral Social, Bogota, “Situación de Guerra and de Violencia en el Departamento del Chocó 1996-2002,” November 2002, pp. 32, 40, 76 (evidence file, folio 8773).

443 Prosecutor General’s Office, document and Powerpoint presentation “Operation Cacarica” (evidence file, folios 19258 and 19263); Prosecutor General’s Office, Dossier on the Elmer Cárdenas Bloc, Report No. 260 of June 25, 2012 (evidence file, folio 45156); 14th Prosecutor, National Human Rights and International Humanitarian Law Unit, Indictment of December 26, 2008, in file 2332: “[…] since it is therefore appropriate to conclude that there was a common project between the self-defense forces and the Army, on the one hand, the ACCU, and its desire for political and territorial domination and, on the other, the Army and its desire to conquer the FARC subversive group […]. In this region of Chocó department, especially in the area between the municipalities of Riosucio, Carmen de Darién and Murindó (Antioquia), where […] at the time of the event, […] the Elmer Cárdenas paramilitary front of the Self-Defense Forces were present, together with the 57^th and 34^th Fronts of the Revolutionary Forces of Colombia, the combined group that we will hereinafter call “Collusion between Self-Defense and Paramilitary Forces” and members of the Army’s 15^th and 17^th Brigades, who maintained, either individually or in alliances, continuous confrontations with the known results […]” (evidence file, folios 8862 and 8863); “[…] Conclusion II: The death of Marino Lopez Mena was not isolated; it formed part of a strategy of paramilitary consolidation, occupation of territory, and subjection of a common enemy (emphasized in the original) […] inflicting terror in order to achieve the displacement of a non-combattant civilian population, possession of territory and, thus, achieving a point of the conflict that was positive for Castaño’s objective and profitable for del Rio’s interests […]” (evidence file, folio 8873); […] Conclusion III: One of the strategies included in the agreement between the Self-Defense Forces and the Army was simultaneous attacks: on the one hand, Operation Genesis by the Army and, on the other hand, the AC Elmer Cárdenas Group (perpetrators of the murder). The effect was felt throughout the territory to be taken over; we observe that the sound of the explosive devices launched during this action naturally had disastrous effects in Salaquí, but was also felt in a place called Bijao, so that it can be concluded that the effect was felt by all those located in these river valleys. Equally disastrous and generalized was the effect of the death of Marino, because it resulted in displacements throughout the territory; consequently, it merges into a single context, in other words, Operation Genesis and the action of the Elmer Cárdenas Bloc giving rise to a third group called “Collusion between Self-Defense and Paramilitary Forces,” which carried out the joint task that, in addition, generated an immense terror, and resulted in the death of some individuals, such as Marino Lopez Mena, and sent others “mad,” and led to the destruction of the context of their life […] (evidence file, folio 8875); “[…] The Operations took place simultaneously and the illegal group remained for at least 10 days, clearly proving the relationship between General Rito Alejo del Río and the paramilitary group to facilitate, through a third combined group, the common objectives mentioned above […]. It has been proved that, in the sector or area of the Cacarica and Salaquí (adjoining), there was a simultaneous and joint operation formed, on the one hand, by the so-called Genesis (military) and, on the other, the death of Marino Lopez (self-defense forces), where aircraft (planes and helicopters) were used with the capacity to cross this reduced air space in instants, because the distance is 36.35 kilometers […]. There were no confrontations between the troops and the self-defense forces; to the contrary, they met in a place called “Bocachica” and moved across the area of Operation Genesis together in helicopters of the State […]” (evidence file, folios 8877 and 8878). Prosecutor General’s Office, National Human Rights and International Humanitarian Law Unit, Decision on legal situation in case file No. 426 of July 31, 2001 (evidence file, folio 40373); Arguments of the Prosecutor General’s Office cited by the Eighth Criminal Court of the Bogota Special Circuit in the judgment in proceedings under file No. 2009-063, of August 23, 2012 (evidence file, folio 44393).

444 Cf. Colombian Military Forces, National Army, 17th Brigade, Intelligence report attached to Operations Order No. 004 “Genesis” (evidence file, folios 5515 and 5516).

445 Cf. Testimony of Colonel Germán Castro, witness proposed by the State, before the Inter-American Court of Human Rights during the public hearing on February 11, 2013.

446 Cf. Statements made before the Prosecutor General’s Office, National Human Rights and International Humanitarian Law Unit by: J.E.V.R. on November 5, 2008, L.C.L. on September 7, 2005, Luis Aristarco Hinestrosa on April 13, 2007, José Bermudis on December 19, 2002, Margarita Vergara on November 11, 2002, and J.A.Q. on March 3, 2007 (evidence file, folios 16998, 17459, 17341, 619, 642 and 17229); Testimony of A.M.V. cited in the indictment decision of the 14th Prosecutor, National Human Rights and International Humanitarian Law Unit, in file 2332 (evidence file, folios 17537 and 17538); Affidavits of January 21, 2013, prepared by Jerónimo Pérez Argumedo, Alicia Mosquera Hurtado and Ángel Nelis Palacio (evidence file, folios 14923 and 14972) and Letter of the Peasant Communities displaced from Riosucio Chocó, to the Ministry of the Interior, Human Rights Administrative Unit, Directorate for Attention to those Displaced by the Violence, dated April 4, 1997 (evidence file, folio 607).

447 Cf. Colombian Military Forces, National Army, 17th Brigade, Operations Order No. 004 “Genesis” of February 1997 and Report of March 6, 1997 (evidence file, folios 5521 to 5524, 5528 to 5530).

448 Cf. Affidavit dated January 31, 2013, prepared by María Paulina Leguizamón Zarate, expert witness proposed by the State (evidence file, folio 15456), and Testimony of Luis Emilio Cardozo Santamaría, expert witness proposed by the State before the Inter-American Court of Human Rights during the public hearing on February 12, 2013.

449 Cf. Fredy Rendón Herrera. Collective voluntary confessions of the candidates of the Elmer Cárdenas Bloc concerning Operation Genesis – Cacarica before the Justice and Peace Unit, 48th Delegate Prosecutor, Medellín, April 28 and 29, 2010, and Statements of candidates of the extinct AC Elmer Cárdenas Bloc, regarding the so-called “Operation Cacarica (Genesis), of October 24, 2007, and March 13, 2009 (evidence file, video minutes 14:17 16:03, 12:07 and 9:49:28, folios 19174, 19194, 19229, 19230 and 19231); Luis Muentes Mendoza, Collective voluntary confessions of the candidates of the Elmer Cárdenas Bloc concerning Operation Genesis – Cacarica before the Justice and Peace Unit, 48th Delegate Prosecutor, Medellín, April 28, 2010 (evidence file, video minute 16:06, folio 19175); William Soto Salcedo, Collective voluntary confessions of the candidates of the Elmer Cárdenas Bloc concerning Operation Genesis – Cacarica before the Justice and Peace Unit, 48th Delegate Prosecutor, Medellín, April 29, 2010 (evidence file, video minute 10:24, folio 19183); Diego Luis Hinestroza Moreno, Collective voluntary confessions of the candidates of the Elmer Cárdenas Bloc concerning Operation Genesis – Cacarica before the Justice and Peace Unit, 48th Delegate Prosecutor, Medellín, April 29, 2010 (evidence file, video minute 11:11, folio 19186); Alberto García Sevilla, Collective voluntary confessions of the candidates of the Elmer Cárdenas Bloc concerning Operation Genesis – Cacarica before the Justice and Peace Unit, 48th Delegate Prosecutor, Medellín, April 29, 2010 (evidence file, video minute 11:20, folio 19189); Franklin Hernandez Seguro, Statements of candidates of the extinct AC Elmer Cárdenas Bloc regarding the so-called “Operation Cacarica (Genesis), of August 6, 2008 (evidence file, video minute 14:47, folio 19243).

450 Cf. Map of the region, Communities before the displacement (evidence file, folio 5389).

451 Distance calculated by the Court based on the coordinates provided by the State and not contested by the representatives.

452 Cf. Colombian Agrarian Reform Institute, Decree 841 of April 26, 1999 (evidence file, folio 47058).

453

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