5. Extrajudicial Executions
290. Almost all of the killings by paramilitary groups are selective.
These groups generally seek out individuals included on lists of suspected guerrilla
collaborators provided by security forces or other sources and assassinate them. Thus, in
effect, the massacres committed by paramilitary groups differ from individual or multiple
extrajudicial executions only in the sheer number of victims killed in a single incident
rather than any difference in method.
291. For example, on May 29, 1996, members of the ACCU paramilitary
group entered into the La Zumbadora banana plantation in the municipality of Turbo. They
gathered the workers together and consulted a list which they carried. They detained and
then proceeded to execute two workers, Plutarco Ramírez and Marcos Chala.
292. The paramilitaries have been accused by armed dissident groups of
executing family members of known armed dissidents. For example, the ELN blames
paramilitary groups for the death of the sister of Nicolás Rodríguez, a leader in that
dissident organization, in November of 1996 in Cúcuta, Department of Norte de
293. The Commission once again reiterates that all attacks on the life
of civilians, who do not or no longer participate directly in hostilities, constitute
grave violations of international humanitarian law. The relatives of members of armed
dissident groups do not lose their civilian status and immunity from deliberate attack by
virtue of their familial relations. Paramilitary organizations who extrajudicially execute
these or any other civilians, on the grounds of suspected loyalty to or cooperation with
armed dissident groups, thus violate international humanitarian law. Where paramilitary
organizations engage in such executions with the collaboration, tolerance or acquiescence
of State agents, the executions also constitute arbitrary deprivations of the right to
life, in violation of Article 4 of the American Convention, and result in State
responsibility for human rights violations.
6. Forced Disappearances and Arbitrary Deprivation of
294. Statistics provided by non-governmental organizations indicate
that paramilitary groups committed approximately 50 forced disappearances in 1995 and
approximately 96 disappearances in 1996.( 146 )
Frequently, persons who are detained and taken away by paramilitary groups appear dead
soon thereafter. Sometimes the bodies of the victims are mutilated or are buried in mass
graves, making the identification of corpses extremely difficult. In this way, the
paramilitaries hinder or block the search by the family members for information regarding
the fate of the victims.
295. An example of forced disappearance by the paramilitaries occurred
in September of 1996, when paramilitary groups detained and carried away 12 individuals in
the municipality of Codazzi, Department of Cesar. Approximately 20 members of the ACCU
entered the town and took the twelve victims from their homes, accusing them of
cooperation with armed dissident groups. The paramilitaries left pamphlets announcing the
arrival of the ACCU to the area.
296. Recently, in a case which caused a strong reaction in Colombian
society, paramilitary groups forcibly disappeared 35 persons in
Barrancabermeja, in the
Magdalena Medio region. On May 16, 1998, a paramilitary group identified as the
Self-Defense Organization for Santander del Sur and Cesar entered into a street party. The
group extrajudicially executed 11 persons at the scene and then carried away 35 more
victims. The national umbrella organization for the paramilitaries, the AUC, took credit
for the massacre and soon reported that the 35 disappeared persons had been killed.
297. Paramilitary groups have also allegedly detained family members of
armed dissidents. For example, paramilitaries from the Magdalena Medio region of Colombia,
allegedly acting in conjunction with State agents, detained Jorge Nicolás
brother of imprisoned ELN leader Felipe Torres, on March 9, 1997. He has not been seen or
heard from since that time.
298. While it is extremely concerned by this type of paramilitary
activity, the Commission finds it necessary to clarify that not all detentions of persons
by paramilitaries can be labeled disappearances, even where the captive does not later
reappear. The term "forced disappearance" refers only to those acts which
deprive a person of his freedom, which are:
perpetrated by agents of the state or by persons or groups of
persons acting with the authorization, support, or acquiescence of the state, followed by
an absence of information or a refusal to acknowledge that deprivation of freedom or to
give information on the whereabouts of that person.( 147
299. Thus, it is proper to refer to forced disappearances by
paramilitary groups only when they act with the authorization, support or acquiescence of
the State in detaining an individual.
300. Nonetheless, where they are carried out against members of the
civilian population who do not pose any direct threat to their military operations, these
detentions by paramilitary groups may be considered to constitute arbitrary deprivations
of liberty, in violation of international humanitarian law. In addition, in many cases
where the victim of such a detention does not reappear, it may be legitimately presumed
that he is not being treated properly by his captors or has been killed. In those cases,
the paramilitary group's actions would constitute violations of the duty imposed by
international humanitarian law to treat with respect and to refrain from acts of violence
against all persons held in detention. Killings of individuals held under the control of
paramilitaries would, of course, constitute extrajudicial executions violative of
international humanitarian law. The information provided to the Commission indicates that
paramilitary groups have frequently incurred in these types of violations of international
humanitarian law when they have detained and carried away individuals.
301. The Commission also concludes that paramilitary groups are
responsible for forced disappearances with the authorization, support or acquiescence of
the State, in a significant number of cases. A governmental investigatory commission
created by President Samper as a result of the public outrage regarding the attack in
Barrancabermeja described above recently issued its report finding ties between the
paramilitary group responsible and the Colombian Military Forces. One Army official has
been detained and is accused of active participation in the massacre, while nine other
officials are being investigated for alleged acts of omission in relation to the violent
incident. Such forced disappearances violate multiple provisions of the American
Convention, as noted above, and also trigger State responsibility.
302. Paramilitary groups in Colombia also engage in torture. According
to statistics provided to the Commission, members of these groups tortured 108 individuals
in 1996 and more than 34 in 1995.( 148 ) The acts of
torture committed by paramilitary groups constitute approximately 75% of the total number
of acts of torture which took place in 1996.( 149 )
In the majority of the cases involving these groups, the torture victim is found dead. The
statistics regarding the incidence of torture are thus based largely on the number of
corpses found with signs of torture.
303. The paramilitary groups in Colombia have employed horrifying
techniques of torture, including the use of chainsaws and other techniques to dismember
their victims. For example, on February 21, 1996, in the community of Las
Cañas, in the
municipality of Turbo, Department of Antioquia, members of the ACCU paramilitary group
tortured and then killed Edilma Ocampo and her daughter Stella Gil. The paramilitaries,
some of whom wore hoods, arrived at the home of the victims at 10:30 a.m. Stella's three
children were present at the time. The paramilitary members tied the hands of the victims
and told them that they would receive a special treatment, since they were guerrillas. The
two women were taken out of the house approximately 100 meters and were beaten and
decapitated in front of the three children. The victimizers then opened the stomachs of
the victims, from the waist to the neck. They then placed Stella's dead body on top of
Edilma's body and threatened the other residents of the community to leave the area or
suffer the consequences. These actions obviously constitute acts of physical torture
against those who are killed as well as psychological torture against those who are forced
to witness these events and who are threatened with similar consequences.
304. As the Commission noted above, international law absolutely
prohibits the use of torture under all circumstances. Whenever paramilitary groups commit
acts of torture in the context of the armed conflict, they incur in grave violations of
humanitarian law. Where paramilitary groups commit acts of torture with the collaboration,
tolerance or acquiescence of State agents, the State faces international responsibility
for a violation of Article 5 of the American Convention.
8. Threats, Acts Designed to Spread Terror Among the
Civilian Population and Food and Medicine Blockades
305. Many of the acts of paramilitaries are designed to spread terror
among the civilian population. In fact, although all of the violent actors in Colombia
issue threats and engage in other acts intended to intimidate the civilian population,
actions of this type committed by the paramilitary groups are undoubtedly the most extreme
and frequent. Acts of torture, such as those described above, are clearly directed at
instilling fear in the population as well as eliminating the individual victims. Selective
extrajudicial executions, carried out with list in hand of alleged dissident sympathizers,
are also often designed to leave the population in general with a clear threat of future
306. The paramilitaries often enter small towns and order the
inhabitants to leave their homes to congregate in a central park or plaza. The
paramilitaries then inform the inhabitants that they have a list of persons to be killed
or that the inhabitants must leave within a given period of time. For example, in December
of 1997, a paramilitary group arrived in the community of La Encerrada in the municipality
of Llano Rico, Department of Chocó. The group gathered the members of the community and
told them that they had five days to leave their homes. The members of the group stated
that they were going to fight the guerrillas and "clean" the area. Faced with
the knowledge that the paramilitaries had begun to kill peasants in nearby communities,
the inhabitants of La Encerrada became afraid and were forced to flee.
307. The paramilitaries also often leave pamphlets or paint graffiti on
the walls announcing their presence in areas of new incursions. These notices of
paramilitary presence usually are calculated to instill fear in the inhabitants of the
area. The Commission was given a copy of a flier prepared by the United Self-Defense Group
of Colombia - General Santander Company (Autodefensas Unidas de Colombia - Compañía
General Santander). In the flier, this paramilitary group denounces the activities of the
armed dissident groups and lists the names of various persons who allegedly worked with
those groups to carry out political killings. The flier states that the named individuals
should leave the area in eight days.
308. Acts and threats of violence which are designed to spread terror
among the civilian population, such as those committed by paramilitary groups in Colombia,
are violative of the express terms of Article 13 of Protocol II. They also constitute
violations of the right to humane treatment and respect for emotional integrity, protected
in Article 5 of the American Convention, where they are carried out with the
collaboration, tolerance or acquiescence of the State.
309. In addition, these acts of violence and threats often have the
express or implicit objective of forcing civilians to leave their homes and communities
for fear that they will be the next victims of paramilitary violence. The actions of
paramilitary groups resulting in such displacement violate numerous provisions of
310. Paramilitary groups also establish blockades of food and medicine,
which limit or entirely prevent civilian access to supplies, in certain areas of the
country. For example, during its visit to the Urabá region of Antioquia, the Commission
received testimony from a wide variety of sources indicating that the paramilitary group
operating the paramilitary roadblock between Apartado and San José often stopped vehicles
carrying food supplies to the community of San José de Apartadó. The paramilitary group
generally refused to allow the vehicles to proceed and frequently stole the supplies. The
Commission also received testimony to the effect that the paramilitary groups in the area
had prohibited local stores from stocking or selling medicine. Many local residents stated
that the paramilitary groups had purchased or taken over most of the local stores in order
to control the flow of food and medicine. According to these residents, these takeovers
were open and notorious. All of the residents appeared to know which businesses were run
by paramilitaries. However, the local security forces had taken no action to control the
311. The Commission does not have sufficient information to conclude,
at this time, that the paramilitary groups have acted in a manner which contravenes the
prohibition against starvation of civilians set forth in Article 14 of Protocol II. The
actions of the paramilitaries in blocking civilian access to food and medicine are
nonetheless of an extremely serious nature. They certainly violate the spirit of Protocol
II which seeks to prevent the parties from using access to food as a means of controlling
civilians and involving them in the conflict. In addition, where these actions are carried
out with the cooperation, acquiescence or tolerance of the State, they constitute
violations of the right to humane treatment, and possibly the right to life, protected in
the American Convention.
312. In addition, the information received by the Commission indicates
that the paramilitary food and medicine blockades often serve as tool to achieve the
forced displacement of persons. The paramilitaries sometimes use a combined strategy,
including limitations on access to supplies as well as threats of violence and actual
violence, to force civilians out of an area in furtherance of the paramilitaries' goal to
"clean" an area. As noted above, the forced displacement of persons implies
serious violations of human rights and humanitarian law.
9. The Forced Displacement of Persons
313. The information provided to the Commission indicates that
paramilitary groups are responsible for the majority of the forced displacement of persons
which occurs in Colombia each year. The Commission will discuss this issue further in
Chapter VI, which specifically deals with issues relating to forced displacement.
10. Attacks on Health Services
314. 306.Paramilitary groups in Colombia have, on occasion, attacked
medical personnel and medical facilities and vehicles. For instance, paramilitaries
carried out such an attack on December 25, 1997. On that date, a group of armed men, who
identified themselves as members of the ACCU paramilitary group, entered the town of San
Juan del Ité, in the municipality of Yondó, Department of Antioquia. The armed men shot
their weapons into a crowd of indigenous residents of the community who were gathered to
celebrate Christmas. One person was shot and seriously injured. The family members of the
victim took him to a health center in Puerto Berrío, but the personnel there decided that
he should be transferred to a facility in Medellín and placed him in an ambulance.
However, after traveling only a few kilometers, armed men, presumably members of the same
paramilitary group, halted the ambulance and forced its occupants to exit the vehicle.
They then shot and killed the injured man as well as his brother who had accompanied him
to the hospital. International humanitarian law clearly prohibits attacks of this nature.
11. Recruitment of Minors
315. The Commission has received information indicating that the armed
dissident groups continue to recruit minors. The Commission will discuss this issue in
Chapter XIII, which specifically deals with issues relating to minors.
G. THE CONVIVIR
316. The Commission considers it necessary to analyze the status and
activities of the so-called CONVIVIR in this Chapter relating to violence in Colombia for
several reasons. First, the creation and existence of the CONVIVIR as such have certain
consequences for the violence and the armed conflict taking place in Colombia. Second, the
Commission has begun to receive information indicating that some CONVIVIR have directly
carried out acts of violence in violation of human rights and international humanitarian
317. The CONVIVIR were first created by decree on February 11, 1994,
although this decree did not employ the name "CONVIVIR". Decree 356, issued on
that date, set forth the rules and regulations which would govern different guard and
private security services ("servicios de vigilancia y seguridad privada"). These
rules provided for the establishment of "special guard and private security
services" ("servicios especiales de vigilancia y seguridad privada") which
would consist of groups of civilians who would be allowed to carry weapons and who would
work with the Colombian Military Forces. The Superintendency for Guard and Private
Security Services (Superintendencia de Vigilancia y Seguridad Privada) was given the
authority to regulate and supervise the various guard and security services established in
318. On April 27, 1995, the Superintendency issued a resolution
establishing that the special guard and private security forces would be referred to as
"CONVIVIR." In a subsequent resolution dated October 22, 1997, the
Superintendency determined that the name CONVIVIR should no longer be used. The Commission
notes that it continues to refer to these groups by the name CONVIVIR, because this is the
term generally used by the public and the groups themselves.
319. On February 14, 1997, the constitutionality of the CONVIVIR and of
Decree 356 was formally challenged in a complaint before the Constitutional Court. On
November 7, 1997, the Constitutional Court decided to affirm the constitutionality of
Decree 356 and of the CONVIVIR.( 150 ) The Court did
place some restrictions on the functioning of the CONVIVIR and declared unconstitutional
the provision which allowed these groups to carry weapons designated for
"restricted" use. Members of the CONVIVIR may thus use only personal weapons and
are not allowed any special permit to use weapons designated as "restricted" or
"for exclusive use of the Military Forces."
320. After the Constitutional Court decision, the Government also
issued new rules regarding the creation and operation of the CONVIVIR. The Government
announced that it would not authorize the creation of new CONVIVIR in conflict areas.
Also, the Government would require information regarding the criminal history of persons
who wish to become members of CONVIVIR. Finally, the Government would require a clearer
delineation by each CONVIVIR of the area in which it intends to operate.
321. Statistics regarding the exact number of CONVIVIR groups and
members in existence are difficult to obtain and depend on which private security groups
are treated as CONVIVIR. However, various sources indicate that there exist approximately
414 CONVIVIR associations. The President of the National Federation of CONVIVIR
Associations, Carlos Alberto Díaz, indicated to the press in December of 1997 that he
believed that membership in the CONVIVIR well exceeds 120,000 men.( 151 )
322. The legal regime permits the CONVIVIR only to engage in
self-defense and information-gathering activities. The law also foresees significant
cooperation between the groups and the State's Military Forces. However, as noted earlier
in this Chapter, based on interviews with members of various CONVIVIR and other sources,
the Commission has found that some of these groups also actually gather intelligence and
otherwise cooperate with the Military Forces in their counter-insurgency operations. This
type of work apparently includes identifying individuals believed to support armed
dissident groups for subsequent attack by the Military Forces or by paramilitary groups
working in collaboration with the Military Forces. The CONVIVIR clearly identify their
mission with the counter-insurgency objectives of the Military Forces. The President of
the CONVIVIR Federation stated to the press on July 6, 1997 that "we are convinced
that the guerrillas will only negotiate on the day that we have them on their knees."
2. Impact of the Existence of the CONVIVIR on the Armed
Conflict and Violence
323. As noted above, the Commission considers that the status and
activities of the CONVIVIR create serious difficulties under international humanitarian
law. Based on the information available to the Commission, it appears that members of some
CONVIVIR have abused their status as civilians by assuming the role of a combatant, in
violation of international humanitarian law. As a result, these CONVIVIR members lose
their immunity from attack, at least during the time that they directly engage in
324. The direct participation in hostilities of even some of their
members is particularly troubling, since it blurs the distinction between civilians and
combatants and, thereby, degrades the protection of the civilian population from the
effects of hostilities. This problem is aggravated by the fact that the membership of the
CONVIVIR groups is generally kept confidential. It is thus all the more difficult to
distinguish members of the CONVIVIR from those members of the civilian population who have
never participated directly in hostilities.
325. This type of blurring of the distinction between civilians and
combatants has perhaps been the cause of violent incidents in the municipality of El
Dorado, Department of Meta. El Dorado is located in the traditionally conflictive and
violent Alto Ariari region of the Department of Meta. However, for the last several years,
a fragile peace had apparently been achieved and no homicides were reported in the
community. The creation of a CONVIVIR in the town in March of 1997 led to attacks on the
population by armed dissident groups, resulting in the violent death of four persons.
326. In addition, by creating legal armed civilian groups, the
Colombian State has made it more difficult and dangerous to combat illegal paramilitary
groups. The State's Military Forces and investigative and prosecutorial authorities will
be forced to struggle constantly to distinguish between those armed civilian groups which
are legal and those which are illegal before taking any measures. This distinction becomes
particularly important when the Military Forces seek to carry out military operations
against paramilitary groups. Before executing any such operation, they will be required to
ensure that the proposed targets are combatants in paramilitary groups and not members of
CONVIVIR who have not directly participated in the hostilities or who have ceased to do
so. Because the distinction between members of paramilitary groups and CONVIVIR will be
difficult in some circumstances, civilians who enjoy immunity attack may be placed in
327. The Commission has also received numerous complaints indicating
that the legal figure of the CONVIVIR has been utilized by paramilitary groups as cover
for their illegal violent actions. The Commission considers that, by creating the CONVIVIR
without a mechanism for adequate control by any supervisory authority, the State has
created conditions which allow for this type of abuse.
328. The Superintendency for Guard and Private Security Services has
openly stated that it does not have sufficient resources or personnel to supervise
properly the numerous CONVIVIR which have formed. Until recently, this office did not even
have statistics regarding the number of such groups in existence.
329. This lack of control permits members of paramilitary groups to
join or even form legal CONVIVIR groups to carry out their activities. Connections of this
nature between members of paramilitary groups and CONVIVIR have been discovered on several
occasions. For example, a member of the paramilitary group which carried out the massacre
of 14 persons in the community of La Horqueta, municipality of Tocaima, Department of
Cundinamarca on November 21, 1997 was killed during the attack. The individual who was
killed was identified as Luis Carlos Mercado Gutiérrez. It was later revealed that this
individual was named as the legal representative of an officially recognized CONVIVIR
registered for operation in San Juan de Urabá, Department of Antioquia.( 152 )
330. On other occasions, illegal paramilitary groups simply identify
themselves as CONVIVIR without obtaining official authorization to act as such. However,
the Superintendency for Guard and Private Security Services does not maintain or make
readily accessible clear lists and other information regarding the existing official
CONVIVIR groups and does not investigate alleged instances of abuse of the CONVIVIR title.
These illegitimate groups may thus freely make use of the name and the authority which it
invokes to carry out illegal and violent acts.
3. Violent Acts Committed by the CONVIVIR
331. The Commission has also received a significant number of
complaints indicating that CONVIVIR groups have committed acts of violence against
civilians.( 153 ) For example, the disappearance of
Jaime Pedraza Mora in the municipality of Sopó, Department of Cundinamarca, has been
attributed to members of a CONVIVIR group acting in the area. The victim was last seen on
February 1, 1997.
332. The Commission also received detailed information regarding the
death of Gustavo Cabieles in the municipality of Acacias, Department of Meta on September
20, 1997, allegedly at the hands of CONVIVIR members. According to the information given
to the Commission, Mr. Cabieles had entered into a dispute, the day before his murder,
with a neighbor who announced that he would send for the CONVIVIR. On the morning of
September 20, an individual approached Mr. Cabieles, claiming that he was from the
CONVIVIR, and warned him that he should leave town immediately or suffer the consequences.
The same individual entered into Mr. Cabieles' home later in the day and shot him to
333. The Office of the Prosecutor General of the Nation recently
ordered the arrest of four members of a CONVIVIR who allegedly participated in the
massacre of ten persons on August 14, 1997 in the community of El Carmen, near
Department of Antioquia. Prosecutorial authorities are also investigating complaints that
the head of the CONVIVIR in Dabeiba, Department of Antioquia, threatened public
transportation operators. The CONVIVIR leader allegedly told the operators that they would
face reprisals if they agreed to transport displaced persons arriving in the town after
the massacre of 14 peasants in the area in November, 1997.
4. Legal Consequences Deriving from the Creation and
Activities of the CONVIVIR
334. Based on its prior experience with similar armed civilian
organizations in other countries of the hemisphere and on the previous experience in
Colombia with legalized civilian defense groups which developed into paramilitary
organizations, the Commission is extremely concerned about the CONVIVIR in Colombia. As
noted above, the Commission believes that these organizations have been created and have
sometimes acted in a manner which is not compatible with international humanitarian law
and which creates significant difficulties for the State in complying with its duties
under international humanitarian law and human rights law.
335. The Commission further notes that members of CONVIVIR groups, when
they act as such, must be considered State agents. These individuals enjoy membership in a
group which is authorized by the State and which carries out activities in coordination
with the State's public security forces. They therefore act under color of official
authority. Thus, when members of these groups carry out extrajudicial killings or other
acts of violence, the State faces international responsibility, pursuant to the American
Convention, for the violations of the right to life and physical integrity which occur.
336. In its observations to this Report, the State argued that the
CONVIVIR do not act as State agents. The State suggested that the security services in
Colombia act in the private, rather than the public, realm. According to the State, the
fact that it regulates and licenses the security services does not convert those services
into State agents.
337. The Commission agrees that the mere licensing of private security
services would not convert them into State entities. However, the CONVIVIR are not just
like other private security services which only receive a license to operate from the
State. The 1994 decree setting forth the legal regime for the various security services
established a special category, among all the security services, of "special guard
and private security services," which would come to be known as the
decree provided that these "special" services would collaborate with the
Military Forces and would carry arms for that purpose. The legal norms which govern the
CONVIVIR still provide for this special relationship between the CONVIVIR and the Military
Forces and give the military an important role in approving the creation of CONVIVIR and
training and supervising existing CONVIVIR associations. This close working relationship
between the Military Forces and the CONVIVIR is what, under the above described
circumstances, gives CONVIVIR members State agent stature.( 154 ) The communities where they act unquestionably believe
that the members of the CONVIVIR act as State agents, demonstrating the degree to which
their actions are cloaked with State authority.
338. In any case, the Commission has verified that in certain areas of
the country the CONVIVIR participate both in intelligence and counterinsurgency operations
for the Armed Forces and that, as already explained in this Chapter of the Report, they
have occasionally been involved in acts of violence. These elements demonstrate that, in
practical terms, the nature of the activities carried out by the CONVIVIR operating in the
areas of conflict place their members in a role that can be identified with that of State
agents in terms of the international responsibility of the State.
339. The Commission was pleased to learn of the recent decision of the
president of the National Federation of CONVIVIR to dismantle the majority of the CONVIVIR
associations. The Commission hopes that the appropriate State authorities, particularly
the Superintendency for Guard and Private Security Services, will exercise sufficient
control and supervision to ensure that those associations which renounce their licenses
effectively demobilize. The Commission notes that this unilateral decision on the part of
the CONVIVIR in no way alters the legal regime which provides for the existence of the
H. INDIVIDUAL CRIMINAL RESPONSIBILITY FOR SERIOUS VIOLATIONS
OF HUMAN RIGHTS AND HUMANITARIAN LAW
340. Upon concluding this analysis of the violence in Colombia and the
violations of human rights and international humanitarian law which regularly occur, the
Commission wishes to clarify and elaborate on a subject of great concern. In its press
release issued upon the conclusion of its on-site visit to Colombia in December, 1997, the
Commission, in deploring the violent acts carried out in Colombia, pointedly noted that:
The Commission is of the view that . . . massacres, like other cases
of violations of human rights and/or of international humanitarian law, could constitute
crimes of an international character which would incur the individual criminal
responsibility of the authors, who may be prosecuted in any State in which they happen to
341. In this regard, the Yugoslav Tribunal has authoritatively
determined that customary law imposes individual criminal responsibility for "serious
violations of Common Article 3, as supplemental by other general principles and rules for
the protection of victims of internal armed conflict, and for breaching certain
fundamental principles and rules regarding means and methods of combat in civil
strife"( 155 ). The Tribunal indicated that
these principles and rules reflect "elementary considerations of humanity widely
recognized as the mandatory minimum for conduct in armed conflicts of any kinds. No one
can doubt the gravity of the acts at issue, nor the interest of the international
community in their prohibition."( 156 )
342. The Statute of the Yugoslav Tribunal permits prosecution of
individuals responsible for grave breaches of the Geneva Conventions of 1949, violations
of the laws or customs of war, genocide and crimes against humanity.( 157 ) In a similar vein, the U.N. Security Council expressly empowered the
International Tribunal for Rwanda to prosecute persons for crimes against humanity,
including systematic murder, torture and rape, as well as for serious violations of common
Article 3 and Protocol II.( 158 )
343. Individual criminal responsibility under the statutes of both the
Yugoslav and Rwanda Tribunals extends to any person who planned, instigated, ordered,
committed or otherwise aided and abetted in the planning, preparation or execution of
these serious crimes. Both of the statutes impose criminal liability for many of the most
flagrant violations of humanitarian law routinely committed by member of the warring
parties in Colombia as well as those human rights crimes which may be considered crimes
344. Along these same lines, the international community most recently
took the long-awaited decision to establish a permanent international criminal court. That
tribunal will be responsible for trying individuals for violations of the laws of war and
crimes against humanity, such as systematic murder, torture and forced disappearance of
persons, without restrictions limiting jurisdiction to incidents occurring in a specific
geographic locale or within a specific timeframe.
345. Also relevant to this discussion is a letter sent in 1995 by a
representative of the International Committee of the Red Cross to the Prosecutor of the
Yugoslav Tribunal on the subject of amnesty for violations of Protocol II. In that letter,
the ICRC clarified that Article 6(5) of Protocol II, which provides for the widest
possible amnesty at the conclusion of hostilities, cannot be interpreted as supporting
impunity for violations of international humanitarian law.( 159 ) Over the years, this Commission has had the opportunity in several
key cases to state its views and crystalize its doctrine on the subject of amnesties.
These decisions have uniformly found that amnesty laws and comparative legal measures that
preclude or terminate the investigation and prosecution of State agents who may be
responsible for serious violations of the American Convention or Declaration violate
multiple provisions of these instruments.( 160 )
These views have been confirmed by the Inter-American Court on Human
Rights. The Court has established that States parties have the duty "to investigate
human rights violations, prosecute those responsible and avoid impunity"( 161 ) and has defined impunity as the lack of
investigation, pursuit, detention, prosecution and punishment of those responsible for
human rights violations. The Court has stated that States have the obligation to employ
all available legal means in order to avoid this kind of impunity which allows for the
chronic repetition of human rights violations and leaves the victims and their families
powerless.( 162 )
States parties to the American Convention cannot invoke the
application of their domestic law, in this case amnesty laws, in order to disregard their
obligation to ensure the full and proper functioning of justice for the victims.( 163 )
346. The international community has sent a clear and unmistakable
message through its recent actions. It will not tolerate serious infringements of agreed
to rules embodying elemental considerations of humanity. The international community has
made these serious violations of the laws and customs of warfare, as well as crimes
against humanity, crimes of universal jurisdiction and branded their perpetrators as
347. It should also be remembered that humanitarian law and the
American Convention and other universal and regional human rights instruments share a
common nucleus of non-suspendible rights and guarantees and a common purpose of upholding
human life and dignity. Where serious violations of fundamental rules and principles of
humanitarian law also constitute violations of the American Convention, these violations
are no less serious infringements of human dignity or matters of grave international
concern. Thus, where violations of international humanitarian law coincide with human
rights violations, universal criminal jurisdiction exists in relation to those violations
even where they do not rise to the level of crimes against humanity. Whatever their label,
all of these violations are international crimes and every State has a duty to repress
them and a right to prosecute or else extradite the offender(s). The violent actors in
Colombia would do well to ponder the consequences of their illicit acts.
Based on the foregoing, the Commission makes the following
All parties to the internal armed conflict in Colombia should,
through their command and control structures, respect, implement and enforce the rules
governing hostilities set forth in international humanitarian law, with particular
emphasis on those norms providing for the protection of civilians.
The Colombian State should intensify training in human rights and
international humanitarian law directed towards State agents, particularly members of the
State's security forces.
The Colombian State should take additional measures to disseminate,
to State agents and to the population in general, information and materials relating to
human rights and international humanitarian law.
The Colombian State should take immediate energetic measures to
prevent violations of human rights and international humanitarian law by State agents.
These measures should include serious, impartial and effective criminal investigations
into all cases involving alleged human rights and humanitarian law violations, as a
priority and as an especially crucial element of prevention. In particular, the State
should seek out, apprehend and prosecute all persons who planned, ordered and/or
perpetrated serious violations of human rights and international humanitarian law.
The Colombian State should remove from service those members of the
security forces who have been identified as having taken part in human rights violations
while awaiting a final decision in any disciplinary or criminal proceedings which might
have been initiated.
The Colombian State should take immediate and energetic measures to
combat, dismantle and disarm all paramilitary and other proscribed self-defense groups
operating in Colombia. These measures should include the prosecution and sanction of the
members, supporters and leaders of those groups in conformity with the law.
The Colombian State should derogate the legal norms which establish
the so-called CONVIVIR groups.
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146 ) See
1995 Comisión Colombiana Report, at 5; 1996 Comisión Colombiana Report, at 6.
Inter-American Convention on Forced Disappearance of Persons, Art. II (emphasis added).
148 ) See
1996 Comisión Colombiana Report, at 8, 63. It should be noted that the statistics for
1996 include those acts of torture committed by paramilitary groups against members of
"marginal groups" while the statistics for 1995 do not.
149 ) See id.
150 ) See
151 ) See
"Nos limitamos a dar información", El Espectador, December 7, 1997.
152 ) The State
has informed the Commission that the Superintendency for Guard and Private Security
Services cancelled the operational license for the La Palma CONVIVIR association which had
operated in San Juan de Urabá by Resolution 8244 of February 9, 1998.
153 ) In its
observations regarding this Report, the State asked the Commission to specify which
CONVIVIR were being denounced for having taken parts in acts of violence. The State
suggested that the Commission had made an unfair generalization regarding the involvement
of the CONVIVIR in acts of violence. The Commission considers that it has adequately
described in the text of this Report specific incidents and groups which have been pointed
out as having committed human rights violations. The Commission also notes that the State
has recognized, in its observations, that "37 complaints of irregular actions have
been received, eight of which involve specifically named Convivir groups."
154 ) See IACHR,
Report No. 32/96, case 10.553 (Guatemala), Annual Report of the IACHR 1996, para. 57. In
this Report the Commission found that the members of the civilian self-defense patrols
(PAC) in Guatemala acted as State agents because they were coordinated by the Ministry of
Defense, received training and arms from the Army and were formed and terminated by the
Army. The Commission notes that, in the case of Colombia, the determination that the
members of the CONVIVIR act as State agents is separate from any conclusion regarding
whether the members of these organizations participate in the armed conflict. That
question is discussed above.
155 ) Tadic Case,
156 ) Id.,
157 ) See
Articles 2 through 5 of the Yugoslav Tribunal Statute.
158 ) See
Articles 3 and 4 of the Courts Statute in Resolution 955 (1994), 8 November 1994,
S/Res. 1955, at 4.
159 ) See
Report of the International Law Commission on the Work of its Forty Sixth Session, Note by
the Secretary General, U.N. Doc. A/49/355, September 1, 1994.
160 ) Report
28/92, Argentina, Annual Report of the IACHR 1992-1993, para. 41; Report 29/92,
Uruguay, Anuual Report of the IACHR 1992-1993, para. 51; Reports 34/96 and 36/96,
Chile, Annual Report of the IACHR 1996, para. 76 and 78 respectively; Report 25/98,
Chile, Annual Report 1997, para. 71; Report 1/99, El Salvador, Annual Report of the
IACHR 1998, para 106.
161 ) I/A Court
HR Loayza Tamayo Case, Reparations, Judgment of November 27 1998, para. 170.
162 ) I/A Court
HR Paniagua Morales et al. Case, Judgment of March 8 1998. Series C No.37, para.
163 ) I/A Court
HR Loayza Tamayo Case, Reparations, Judgment of November 27, para. 168.