FOLLOW-UP REPORT TRUTH, JUSTICE AND REPARATION: FOURTH REPORT ON HUMAN RIGHTS SITUATION IN COLOMBIA
The objective of this chapter is to follow up on the recommendations made in the report Truth, Justice and Reparation: Fourth Report on the Situation of Human Rights in Colombia (hereinafter “Report on Truth, Justice, and Reparation” or “the report of the IACHR”) approved by the Inter-American Commission on Human Rights (hereinafter “IACHR” or “Inter-American Commission”) on December 31, 2013. In December 2012, the IACHR made an on-site visit to Colombia and subsequently prepared the country report that is the subject of this follow-up report. On August 28, 2014, the IACHR published the report1 and on the same date it transmitted a copy to the State, in keeping with Article 60 of its Rules of Procedure, and granted it four months to submit information about compliance with the recommendations contained in it. On Monday December 29, 2014, the State of Colombia presented the information requested.
The Commission considers that the general recognition by the State that the recommendations of the report are aimed at offering “tools for overcoming the challenges for ensuring and protecting human rights,” and that their “implementation will represent a positive change for the holders of rights,” is a result of the commitment taken on by the State to effectively address the problems and challenged identified, as this is a necessary element for making decisive progress implementing the protections and guarantees required for victims of human rights violations in Colombia. In that sense, the IACHR recognizes what was noted by the State when it indicates that “there are innumerable obstacles and challenges to overcome,” but that “the Government of Colombia, as part of an unbending policy of the State will continue to redouble efforts to guarantee the human rights of all inhabitants of the national territory…,” as well as its openness to the commitment of the IACHR to continue working with the State to seek solutions.2 The State also noted the importance of the report of the Commission in seeking to achieve a “positive transformation” on the situation of human rights in Colombia, in particular the recognition of fundamental issues such as the “peace talks.”3
In the report Truth, Justice, and Reparation, the Commission recognized that Colombia is at a historic moment in which the Government and the FACR-EP may reach a peace agreement. The Commission is pleased to note that at present the parties engaged in negotiations in Havana since 2012 have reached agreement on three of the six points of the agenda4 defined in the “General Agreement to end the conflict and build a stable and lasting peace”5 and that the parties continue advancing in the process of dialogue on the remaining issues pending.
In particular, the Commission notes that since July 2014, the parties in the dialogue process initiated a cycle of conversations on the agenda point regarding victims of the armed conflict. In that regard, “mechanisms for the direct participation” were agreed upon for various groups of victims to go the negotiating sessions in Havana to address the negotiating parties. The delegations of both the National Government and the Revolutionary Armed Forces of Colombia-People’s Army (hereinafter “FARC-EP”) acknowledged that giving the victims a voice in the process “will provide fundamental input for discussions on this point.”6 By agreement of the negotiating parties, the groups of victims were chosen through a selection process conducted by the United Nations in Colombia and the Centro de Pensamiento y Seguimiento al Proceso de Paz (Center for Thought and Monitoring of the Peace Process) of the Universidad Nacional with the accompaniment of the Conference of Catholic Bishops of Colombia. As of December 2014, five delegations of victims had participated in the process7 and the cycle of conversations on this point of the agenda was continuing.8 Moreover, according to available information, as of December 2014, the FARC-EP announced a “unilateral ceasefire and cessation of hostilities.”9
In view of this circumstance, the Commission reiterates that the consolidation of a process of dialogue, and the expectations of achieving a stable and lasting peace in Colombia, are crosscutting themes in the country’s human rights situation. In that context, while the dynamics for attaining peace are complex, full observation of the State’s human rights obligations should be central in the peace process, not only to contribute to the possibility of an accord, but in its consolidation and implementation when it comes to ending the violations stemming from the conflict, and prevent their repetition in the future; and how the possible establishment of peace in Colombia would guarantee its inhabitants respect for their fundamental rights.
Moreover, the Commission considers it positive that the State conducted a process of disseminating the content of the follow-up report to various governmental and state authorities, and observes as a good practice the inter-institutional exercise deployed to present meticulous and detailed information on the State’s efforts in respect of human rights during the 2013-2014 period, as well as the analysis of the 134 recommendations included in the report Truth, Justice and Reparation.10
The State undertook a “classification of the recommendations considering progress made” and presented the information on follow-up in groups as follows: (i) 12 “recommendations not shared,” referred to recommendations “in which the Colombian State finds that their content does not take into account the processes developed in the country or are at odds with rights and guarantees in the Colombian legal framework, and in each chapter the considerations taken into account for each one of them are presented.”11; (ii) 15 “recommendations implemented satisfactorily,” (iii) 104 “recommendations in the process of implementation, and (iv) one recommendation of which “the State takes note” referred to a recommendation “that necessarily entails further governmental analysis of the its content and scope.”12
In the report Truth, Justice, and Reparation, the Commission analyzed the human rights situation in the Republic of Colombia particularly mindful of the context of the continuation of the internal armed conflict and the impact it has had on the protection, enjoyment, and exercise of these rights. Through its monitoring of the general human rights situation in Colombia, the IACHR has found that due to the internal armed conflict, the Colombian situation entails additional complexities stemming from the systematic and generalized violence, which is part of the daily lives of the inhabitants of Colombia, and which takes a particularly high toll on the most vulnerable sectors of the population. At the same time, the IACHR recognized and valued the important public policies undertaken by the State to address this complex reality and the impetus that the Government has given to attending to the victims of human rights violations and protecting persons at risk, as well as the significant investment in human and financial resources in these areas.
The Commission’s analysis also took into account that the Colombian armed conflict has gone through major changes in terms of the dynamics and the actors involved over the more than 50 years it has lasted. The Commission has noted that a crucial point has been the Law on Victims and Restitution of Lands (Law 1448 of 2011), that the existence of an armed conflict, (which had been denied for a period of time) and its legacy, has been acknowledged, and that this allows for the reparation of victims and the return of lands that had been forcibly taken by paramilitary group, on occasion with the collusion of the security forces.
In addition, the IACHR has noted that the violence stemming from the failure to effectively and completely dismantle the armed structures of paramilitary groups continues to have a severe impact on the rights of the inhabitants of Colombia. Therefore, the State also maintains specific duties to dismantle those Autodefensas who did not participate in the collective demobilizations carried out from 2003 to 2006, and who continue operating in Colombian territory. In this regard, the IACHR observed with concern the elements of continuity that one finds between the former Autodefensas and the so-called “emerging criminal bands” (BACRIM, for “bandas criminales emergentes”), which the State characterizes as “organized crime” structures “different in nature and scope” from the paramilitary groups.
In this respect, the Commission reiterated in its report that the grave situation of impunity in cases involving grave human rights violations and breaches of international humanitarian law (hereinafter “IHL”) by all actors in the conflict in Colombia, as well as the failure to clarify the dynamics, scope, composition, and structure of the former Autodefensas and the illegal armed groups that came about after the demobilization of paramilitary organizations, are systematic obstacles not only for ensuring victims’ rights, for also for having detailed and precise information that makes it possible to characterize these groups, dismantle the ties that feed them, and adopt the appropriate political and legal measures to confront them.
In addition, the report of the Commission took into account the legal mechanisms such as the “Legal Framework for Peace” (Marco Jurídico para la Paz), the implementation of the Justice and Peace Law, , and the mechanisms that have been adopted by the Office of the Attorney General for setting priorities in investigating, by which the State is developing the design of a model of transitional justice applied to a non-international armed conflict that has not ended. In its report, the IACHR examined the general standards on judicial guarantees and judicial protection, pertinent considerations regarding their application from the standpoint of international human rights law and international humanitarian law, given their complementary nature and the framework governing transitional justice processes. Furthermore, and taking account of the observations presented by the State regarding its understanding of the obligations incumbent upon it in the context of transitional justice, the Commission made a number of considerations on how the State´s international obligation in this area must be accommodated in the design of a strategy of transitional justice that comports with jurisprudence constante of the inter-American system´s organs for the protection of human rights and the applicable rules of IHL.
In this framework, the Commission first reiterated that overcoming impunity is essential for achieving justice and preventing the repetition of human rights violations. Secondly, that in order for any transitional justice system to stablish a lasting peace, it must function as an incentives system useful in getting at the truth, identifying and punishing those responsible, and redressing the victims, and when crafting legal mechanisms, those international obligations must be fully observed, both in their scope and application. Third, the Commission reiterated to the State that it is imperative that the peace agreements and the provisions of transitional justice that will pave the way for Colombian society´s transition to a stable and lasting peace are implemented in harmony with the State´s international obligations and offer real prospects for fulfillment.
In light of the above, the Commission emphasized that while it is true that the concept of prioritization would be in principle consistent with the importance and necessity of judicially establishing the responsibility of the most important leaders, it is no less true that the concept of selectivity and the possibility of waiving the investigation and prosecution of serious human rights violations would in principle be incompatible with the State obligations.
On January 30, 2015, the Commission forwarded to the State a copy of the preliminary draft of this section of its 2014 Annual Report, in keeping with Article 59(10) of its Rules of Procedure, and asked that it submit its observations within one month. On February 27, 2015, the Commission received the State’s observations and comments which, as relevant, were incorporated into this final version approved by the Commission on March 9, 2015.
This follow-up chapter is divided into nine sections focused on the measures adopted by the State to carry out the Commission’s recommendations. The chapter follows the structure used in the report of the IACHR to which this is the follow-up report. In each section the recommendations made by the Commission in the respective chapters are recalled and referred to, and the main areas of progress and main challenges identified by the IACHR are analyzed in light of the information submitted by the State and civil society, as well as the information that the Commission has collected in its monitoring of the general human rights situation in the country. To that end the Commission has drawn on the information received during public hearings, investigations pursued at its own initiative, input from the mechanism of cases and petitions, precautionary measures, and the requests for information under the power established in Article 41 of the American Convention on Human Rights (hereinafter “the American Convention”); as well as the information available from other public sources, and the decisions and recommendations of specialized international agencies, among others. Finally, the Commission presents its conclusions and reiterates the importance of the Colombian State fully carrying out the recommendations made in the report of the IACHR.
FOLLOW-UP ON THE RECOMMENDATIONS
LIFE, HUMANE TREATMENT, AND PERSONAL LIBERTY
That it adopt, as soon as possible, the measures necessary to prevent State agents from committing violations of human rights and international humanitarian law. Those measures should include: (a) a serious, impartial, and effective investigation into all cases that involve alleged violations of human rights and IHL, as well as of all those persons who have planned, ordered, and/or perpetrated such acts; and (b) intensive training in human rights law and IHL.
That it adopt the appropriate measures for the members of the security forces who are allegedly involved in cases of violations of human rights or IHL to be suspended from active duty until a final decision is issued in the disciplinary or criminal proceedings in such cases.
That it adopt, as soon as possible, the measures necessary to dismantle the Autodefensas who did not participate in the collective demobilizations from 2003 to 2006, and to dismantle the armed groups that emerged after the demobilization of the paramilitary organizations or that continue to pursue the same objectives.
That it adopt the appropriate measures to adequately prevent forced disappearances.
That it adopt the measures necessary for having a registry with public access that is updated, unified, and vetted concerning persons who have been forcibly disappeared in Colombia, with information broken down by age, gender, ethnicity, and people, among others.
That it adequately investigate, clarify, and punish the cases of forced disappearance that are still in impunity.
That it adopt the relevant measures to guarantee the effectiveness of the Urgent Search Mechanism or any other mechanism that makes it possible to immediately recover disappeared persons.
That it continue making progress in recovering the bodies of the disappeared, identifying them correctly, and appropriately delivering them to their next of kin.
That it ensure that those cases under the rubric of “false positives” go forward in terms of prosecuting and punishing the direct perpetrators and the masterminds and that it continue following up on the 15 measures stipulated by the Ministry of Defense in 2008, with a view to preventing extrajudicial executions.
That it adopt the measures necessary for ensuring the protection of civilians and that contribute to a precise delimitation of proportionality in the use of force in the context and outside of the situation of armed confrontation.
That it adopt the corresponding measures to ensure that extrajudicial executions are investigated in the competent jurisdiction, i.e. the regular jurisdiction. In addition, the Commission urges the State to give impetus to proceedings under way in cases of extrajudicial executions, and culminate them within a reasonable time, in keeping with the standards of due diligence in investigations
The Commission has repeatedly stated that despite the demobilitzation of the the Autodefensas Unidas de Colombia (hereinafter “the AUC”), violence stemming from the armed conflict persisted, and reports continued of crimes, human rights violations, and violations of IHL against the civilian population being committed by illegal armed groups and members of the armed forces and National Police. In this framework, in the report Truth, Justice and Reparation, the Commission presented an analysis on the complex situation resulted after the demobilization process, considering that the official position of the Colombian State is that after the collective demobilization of the Autodefensas, the phenomenon of paramilitarism has ended in Colombia, and therefore the groups that operate at present are part of the country´s organized crime problem, which is why they are characterized as “emerging criminal bands.”
In this regard, the Commission reiterated that, according to information documented by the institutions and national organizations, as well as the pronouncements of international organisms and the inter-American system´s organs, and despite the efforts aimed at dismantling the armed structure of the AUC, illegal armed groups continued to be involved in committing acts of harassment and violence against vulnerable populations, social leaders, and human rights defenders, among others. In this regard, and in keeping with the information available during the visit, the Commission again observed that these illegal armed groups that came about after the demobilization ceremonies, have been identified with serious human rights violations; and also identified the elements of continuity between the former Autodefensas and its actions.13 As explained by the Commission, this different perception of the Government has a substantial impact both on the State´s response to those groups, the status of victim of the conflict of those persons affected by the actions of those groups, and the application of the domestic legal framework. In view of this, the IACHR recommended that the State take the necessary measures to effectively dismantle the Autodefensas and the armed groups that emerged after the demobilization of the paramilitary organizations or that continue to pursue the same objectives.
The Commission notes that the State indicated in its report that does not share the first part of this recommendation and that measures were being implemented to dismantle post-demobilization armed groups. In this regard, the State pointed out that:
Criminal bands are armed structures depending on drug trafficking, devoid of political, ideological and counterinsurgency will profile, that emerged after the demobilization of the Autodefensas, as a criminal expression of different actors, to leverage finance infrastructure based on drug trafficking, which was used by paramilitary groups and drug cartels.14
Without prejudice to the above, the Commission acknowledges and appreciates the State’s indication that “victims of the so-called criminal gangs are currently included in the Single Registry of Victims, for purposes of humanitarian assistance and in the case of victims of displacement,” which, the State emphasized, demonstrates its commitment to ensuring that victims are served “regardless of who their assailants are.”15Additionally, the State asserted in general that it was taking “several measures to end criminal activity” of these groups, among them named it that the National Police has “strengthened the strategy to combat the BRACRIM,” the implementation of “comprehensive strategy for prosecution,” the work of municipal courts and the creation of “Mobile Units against Bands and Criminal Networks” (Unidades Móviles contra las Bandas y Redes Criminales). The State indicated that 1,241 members of criminal bands have been arrested, including “86 ringleaders,” and in 2014 “552 convictions against members of criminal bands were issued.”16
Moreover, the State indicated that it did not share the recommendation on measures for the members of the security forces who are allegedly involved in cases of violations of human rights or IHL, to be suspended from active duty, since “…respecting the autonomy of the competent authorities, Colombia has a legal framework that enables the provisional suspension under strict terms, always guaranteeing due process and the presumption of innocence of the officials under investigation.”17
Also, the State considered “successfully” fulfilled the recommendation to prevent State agents from committing violations of human rights and IHL, and provided information on the measures taken in this regard. Specifically, the State reported the training programs for officials of the military criminal justice and, in general, members of the security forces, and others measures taken by the Ministry of Defense “to cooperate with the administration of justice.” In addition, the State indicated that the “competence between the ordinary and military courts are clearly demarcated.”18 On this issue, the Commission will present its considerations in the respective section on setbacks in military criminal justice in Colombia.
The Commission takes note of the information provided by the State, and in view of its observations regarding the actions of the illegal armed groups that emerged after the demobilization of paramilitary organizations, reiterates its considerations on the need for the Colombian government to continue implementing effective mechanisms aimed to ensuring the dismantling of the criminal bands and paramilitary structure or that continue to pursue the same objectives. The IACHR reiterates its concern on the elements of continuity between the former Autodefensas and the so-called “emerging criminal bands”, so again observes that the State maintains specific duties to dismantle the groups known as “Autodefensas” who did not participate in the collective demobilizations. As described below, the IACHR has continued to received information on the actions of illegal armed groups who are identified as a phenomenon of continuity of paramilitaries in Colombia.
The Commission also deems it relevant that the State takes into account the considerations regarding that the characterization of the illegal armed groups that emerged after the demobilization of paramilitary organizations should be done on a case-by-case basis with a specialized analysis that takes into account the origin of paramilitarism and the elements of international responsibility of the State. They State should intensify its efforts to clarify the dynamics, scope, composition, and structure of the former autodefensas and the illegal armed groups that emerged after the demobilization of the paramilitary organizations.
Furthermore, in the report Truth, Justice and Reparation, the Commission noted with concern that eh forced disappearance of persons continues to be widespread in Colombia, and despite the efforts made by the State, the gains thus are incipient in relation to the number of disappeared persons, therefore effective plans or policies for effectively addressing the situation remained pending. The IACHR also referred to the information received on continued extrajudicial executions by members of state security forces, phenomenon intensified in the past decade, and became known as the cases of “false positives”. In this regard, the Commission reiterated the utmost importance that the State adopts the measures needed to ensure the protection of civilians and to precisely determine proportionality in the use of force in the context, as well as outside of the context of armed confrontation. One aspect of particular concern to the Commission was the information related to the limited number of persons responsible who have been sanctioned for extrajudicial executions, in addition to the difficulties associated with some cases of extrajudicial executions going before the military criminal jurisdiction.
In light of the foregoing, the Commission recognizes the information provided by the State on the results obtained in the processing of cases of forced disappearances and extrajudicial executions in Colombia.19 As regards forced disappearance, the Commission takes note that the State indicated that the recommendations related to this topic, are “being implemented.” In particular, the IACHR highlights that the State reported that these cases have already been included in the strategy of prioritization adopted by the Office of the Attorney General, and that the cases are currently known both by the ordinary courts and transitional justice, under the Justice and Peace Law.20 According to the State, under this strategy “…in late 2013, over 1800 cases of disappearances were charged…involving nearly two thousand nine hundred victims” and in November 28, 2014, the first judgment against Salvatore Mancuso and 11 others was issued, with 609 counts of forced disappearance, among other crimes.21
In relation to the component referring to truth, the State reported that applicants in the process of availing themselves of Law 975 (postulados) “have contributed to identifying and locating” of 5,693 persons who were disappeared and that have been located in 4,400 excavations of individual graves, according to figures updated to October 31, 2014. It also noted that the bony remains of 2,691 persons have been delivered to their family members in ceremonies held for this purpose.22 The State also indicated that between 2010 and 2014, the ordinary courts issued 133 convictions and to August 31, 2014, 464 cases were assigned to the ordinary jurisdiction, 430 of which were “active”.23 It noted that there have been significant efforts to advance in the collection and documentation of the cases, and also under the strategy of prioritization, in June 14, were lodged before the Justice and Peace Chambers of the Superior Courts in Bogotá, Medellín, Barranquilla and Bucaramanga, requests for indictments that include “686 acts of forced disappearance involving 1,002 alleged victims.”24
Regarding the existence of a registry with public access that is updated, unified and vetted concerning who have been forcibly disappeared in Colombia, the State pointed out that the National Registry of Disappeared Persons (RND) is a “registry with public access and unified” that is being “constantly updated” and is currently “being refined” since January 2014,25 and reiterated that the “Network Information System of Corpses and Disappeared Persons” (SIRDEC) is its main platform. The IACHR notes that the information provided by the State shows that there are still being defined the measures to include in the RND, disaggregated information with differentiated variables as ethnic groups, indigenous populations and age.26
As to the effectiveness of the Urgent Search Mechanism, the information provided by the State is mainly related to training programs for officials involved in its operation, and other follow-up activities to promote the implementation of the National Plan to Search for Disappeared Persons.27 In addition, the State reported on the adoption in August 2014, of a protocol for the “proper delivery of bodies and remains to their relatives”, in accordance with the provisions of Law 1408 of 2010.28
The Commission notes the State´s efforts and initiatives aimed at ensuring the rights of the relatives of the victims of forced disappearance, and the will of the State to continue advancing in the delivery of bodies to the respective relatives, as well as the efforts deployed in the prevention, investigation and punishment of this crime. As part of the updated information submitted by the State, it underscored Decree 303 of February 20, 2015, which regulates several aspects of this area, namely: the creation of the “Databank of genetic profiles of disappeared persons” and the “Inter-Institutional Committee of Forensic Genetics,” as well as the earmarking of “financial and psychosocial support for the relatives of victims at the time they receive the bodies that have been located and identified,” among others.29
Nonetheless, the Commission notes again that those efforts should be stepped up considering that the forced disappearance of persons continues to be widespread in Colombia, and that the gains made are still incipient compared to the number of persons disappeared. As reported, the State is moving forward in establishing a concrete universe of persons disappeared enabling their search and identification, but the results of measures taken so far reveal precisely those aspects of concern that the Commission stated in its report as for the under-registration of forced disappearances and the persistence of this phenomenon, among other aspects. For example, the updated figures provided by the State indicate that as to June 2014, the RND had a record of 92,872 people, 68,353 of which would continue disappeared or no information on their location was available30, representing an increase of more than 50 thousand new records compared to the information provided by the State in 2013.31
Further, the Commission reiterates that even when the SIRDEC implementation started un 2007, the State has not completed loading the information, according to the framework of the norms in effect. The Commission neither received updated information from the State on the results of the National Plan to Search for Disappeared Persons considering the obstacles identified by the IACHR in its report Truth, Justice and Reparation. Similarly, the IACHR reiterates that as to the recovery of bodies, the State should also address without delay, seriously and with due diligences the cases in which the victims were cast into rivers or the sea, or incinerated in crematoria to not to leave trace, as well as considering the negative impact of the construction of dams in the middle of the conflict and in areas where bodies or persons disappeared and assassinated, and common graves, may be found.
In this framework, the Commission has continued receiving information on the persistence and seriousness of this phenomenon in the country. In particular, during its 153rd session, the IACHR received information on the occurrence of serious crimes such as forced disappearances and homicides, in a context in which the armed conflict is taking a major toll in the Colombian Pacific region. While at the the hearing on the Human Rights Situation in the Pacific Region of Colombia, the State presented detailed information on the measures taken to protect the population, recognizing the serious situation of violence that takes place in this region due to the presence of illegal armed actors, civil society said that between January and October 2014, at least 50 cases of forced disappearances were reported. In turn, the Office of the Human Rights Ombudsman has indicated that “according to data from the Information System of the Registry of Disappeared and Corpses (SIRDEC) for what happened in 2014, a total of 53 cases of disappearance were reported in the department of Chocó, the municipalities of Quibdó and Riosucio accounting for 59% of the cases on record in the department.”32 Also, Human Rights Watch reported that in that year were committed “more than 45 disappearances in just three neighborhoods in the city during two months”, and that the cases of dismemberment could point to a “routine practice” of armed groups “paramilitary successors”, consisting in “dismembering the people they disappear.”33
In this regard, the MAPP/OAS recently shared its concern over the persistence of the phenomenon of forced disappearances, with special reference to the situation in the Department of Nariño and the Pacific Coast. In its nineteenth report, the Mission to Support the Peace Process of the OAS noted that this phenomenon “continues to be rendered invisible given the difficulty in measuring and quantifying this problematic,” and that “the perception is that the dynamics is increasing and that the post-demobilization groups are directly responsible for these actions”34.
For its part, the Working Group on Enforced or Involuntary Disappearances of the United Nations noted in its 2014 report that remain the alarming figures on enforced disappearances in Colombia, in particular the worrying number of human rights defenders victim to that practice. The Working Group noted the “shortcomings regarding the search of the disappeared, the protection of the relatives and accountability for that crime,” and encouraged the State to “speed up the process for the identification of remains and strengthen its efforts to combat impunity.”35
In light of the foregoing, the Commission considers that the State should continue making efforts to achieve full compliance with its international obligations in this area. In particular, about overcoming the situation of impunity, the Commission reiterates that progress in the judicial proceedings is fundamental for determining the whereabouts of the disappeared, accordingly the information given by the perpetrators should be supplemented by effective and comprehensive investigative measures that take on the phenomenon and the possible victims in a thoroughgoing manner, guaranteeing the broad participation of family members in the process.
On the other hand, for several years the Commission has received information on continued extrajudicial executions by members of state security forces. In the report Truth, Justice and Reparation, the Commission observed with satisfaction that according to the information that is publicly known, the phenomenon known as “false positives,” began to diminish; however, it indicated that major challenges persisted in relation to follow-up on the internal measures taken with a view to preventing extrajudicial executions.
On this topic, the State reiterated that “…the behavior of its agents outside the legal, constitutional and political framework is unacceptable,” and highlighted that “…the National Government has taken strong measures emphasized in the prosecution of those who committed acts of this kind and to prevent future events of this nature.” For example, the State referred to the implementation of the “Comprehensive policy on human rights and international humanitarian law” of the Ministry of National Defense, “reducing complaints of occurrence of these behaviors,” and the “sentences issued” in these cases.36
Specifically on the implementation of the recommendations, the State informed that the measures stipulated by the Ministry of Defense in 2008 are still in force, and “are constantly implemented,” and there have been “notable improvements in preventing homicides of protected persons”, among other things, due to the “extensive training” program in human rights and IHL for members of the armed forces and National Police.37 Furthermore, the State considered “successfully” fulfilled the recommendations on the protection of civilians and precise delimitation of proportionality in the use of force,38 as well as prosecuting the cases of extrajudicial executions. On this last point, the State reiterated that is excluded from the scope of military jurisdiction “[human rights] violation cases because such behaviors are not related to the service.”39
As for the investigation of these cases, the State reported that as of August, 2014, the Office of the Attorney General had registered “2,380 cases under investigation…2,212 of which are active,” 266 convictions (“that affect 934 persons”), and 2,244 persons were deprived of liberty for these acts. Similarly, the State emphasized that from January 1 to October 31, 2014, in all 106 persons have been convicted, and between July 2013 and May 2014, 135 members of the National Army had been retired from active service by firm judgments on “aggravated homicide and homicide of a protected person.”40Additionally, the State reported that in 2014, the Superior Council of the Judiciary decided 258 conflicts of jurisdiction between the ordinary and military courts, six of which were assigned to the latter, but none of the cases referred acts “that could be characterized as homicides of a protected person.”41
The Commission takes note of the information provided by the State and welcomes the increase in the proceedings initiated and in the number of convictions, compared to the information available at the time of the preparing the country report that is the subject of this follow-up chapter. Nonetheless, the IACHR reiterates that according to the available figures, the number of investigations a advanced stages of the process as well as the number of persons responsible who have been sanctioned is still limited in relation to the total number of cases. This is in addition to the difficulties associated with some extrajudicial executions going before the military criminal jurisdiction, according to the information available to the Commission at the time the report Truth, Justice and Reparation was drafted. In this regard, the IACHR acknowledges the State’s assertion that the military court system would not be hearing and deciding those types of cases at the present time and that “the Superior Council of the Judiciary has been especially careful in the examination of the conflicts of jurisdiction brought before it, sending to the regular court system any case in which there is doubt about the occurrence of an event of this nature.”42 Nevertheless, and as discussed below, the Commission has identified several challenges concerning new legislative proposals that seek to expand the scope of said jurisdiction to manage cases of human rights and international humanitarian law violations. As discussed later in this report, the State’s position with regard to the matter is that, “the proposed reforms establish clear parameters for distinguishing between the jurisdiction of the regular justice system and the military justice system […]” and that acts such as extrajudicial executions are excluded because they “break the link to the service ipso jure.”43
In addition, the Commission takes into account the information received during the 153 Period of Sessions, at the hearing on “Policy and legislation on reparations for human rights violations in Colombia,” in which civil society reported on the difficulties in access to justice in the context of the accusatory system, reflected in the “sluggishness and poor results” in investigating and punishing those responsible for the extrajudicial executions of humble peasants or persons of low socioeconomic status by the military forces, and then presenting them as guerrilla fighters killed in combat, in exchange for economic benefits or job-related benefits, in the phenomenon known as the “false positives.”
The organizations noted that in overall figures, the situation of impunity in these cases in the accusatory system is “alarming.” They reported that, according to the management report of the Office of the Attorney General, in 2014, 2,403 cases of extrajudicial executions were assigned to the Human Rights Unit, with a total of 4,773 members of the armed forces and National Police identified as persons under investigation, of these, only 472 have been convicted. They also noted that the sluggishness in the investigation of the cases has undermined victims’ rights. For example, they mentioned the so-called “false positives” of Soacha, in which after seven years, the mothers and relatives of the 16 youths assassinated and presented as guerrillas killed in combat, they continue to face many obstacles in their struggle against impunity.44
In light of the above, the Commission reiterates that the State should initiate, develop, and culminate the relevant investigations in the regular criminal jurisdiction, according to the standards of due diligence and in a reasonable period, to clarify the cases of extrajudicial executions and punish the persons responsible. In that regard, the investigation should be geared to identifying not only those directly responsible, but also the structure that favored or encouraged those acts. Also, it is of the utmost importance that the State continues to adopt the measures necessary to ensure the protection of civilians and to precisely delimit the proportionality of the use of force in the context as well as outside of the context of armed confrontation.