OEA/Ser.L/V/II.53
doc. 22
30 June 1981
Original:  Spanish

REPORT ON THE SITUATION OF HUMAN RIGHTS
IN THE REPUBLIC OF COLOMBIA

 4.       On April 27, in the early hours of the morning, the captors of the Dominican Republic Embassy and the hostages, accompanied by the members of the Inter-American Commission on Human Rights, Colombian Government officials, members of the Asociación Colombiana Pro-Derechos Humanos, and representatives of the Red Cross went to the El Dorado international Airport of Bogotá to board an airplane flying the Cuban flag and to depart for Havana.

          Several hostages were released moments before the flight took off.  Others were set free in the Cuban capital, following a period of captivity that has lasted 61 days.

          5.       During the on-site investigation, the Commission released a document in which it reaffirmed its ideas on the subject of human rights, subversion and terrorism.  That document, published in the Colombia media, reads as follows:

HUMAN RIGHTS, SUBVERSION AND TERRORISM

          The Inter-American Commission on Human rights has had a clear view on this matter for a number of years.  This opinion was set forth again in a recent Commission document.

          The Commission believes that the doctrine set forth in its document has a broader scope and is valid in relation to all the states that make up the Organization of American States.

          That document reads:

The Importance of this issued and its invocation as a justification for the Government’s conduct in the matter of respect for human rights, provides sufficient reason for the Commission to restate is as clear terms as possible, its thinking in this regard.  Basically this issue can be analyzed by attempting to answer two questions that were repeatedly put to the Commission, both before and during the on-site observations:

i.        Why doesn’t the Commission investigate terrorist acts? In other words, why is it that the Commission concerns itself exclusively with actions attributable to governments?, and

ii.        To what extent does the Commission take terrorism and subversion into account when assessing the conduct of governments as regards the observance of human rights?

a)       The lack of jurisdiction of the IACHR to investigate acts imputed to terrorist groups of subversive organizations

The simple and legally precise answer to the first question is that the sovereign states of the Organization of American States have not chosen to five the Commission jurisdiction to investigate terrorism and subversion.

          Obviously the commission on its own, is not competent to establish its statutory norms in accordance with the changing preferences of its members.  Its basic structure, including, of course, its functions and powers, are determined by the norms, which the member states of the OAS have agreed to establish.  Even the most cursory review of these norms reveals that the task of the Commission –as, in general, that of all other intergovernmental bodies set up for the protection of human rights—is to investigate only those actions attributable to governments.

          Juridical considerations, however, are not the only consideration.  The practical consequences, ere the Commission to investigate terrorist or subversive activities, would be truly serious.  In effect, if the Commission, in violation of its mandate, were to agree to process a denunciation involving some alleged act of terrorism, in so doing it would implicitly place terrorist organizations on an equal footing with government, as the Commission would have to transmit the denunciation to the subversive organization which allegedly is responsible for the act and request that it make such observations as it deems appropriate.  Undoubtedly, such organizations would be very pleased to be dealt with as if they were government.  But, what government in the hemisphere could tolerate an implicit recognition of quasi-governmental status for an organization of this king?

          In many instances, it has been the strategy of subversives not just to acknowledge but also to openly boast of their terrorist acts.  If responsibility for the act has been acknowledged already, for the Commission formally to attribute responsibility to the terrorists would serve no purpose other than that of further publicizing their actions.

In summary, those who attack the Commission for not accepting denunciations concerning terrorist acts committed by subversive groups, not only ignore the legal norms applicable to bodies such as the IACHR, but implicitly seek to elevate the international status of such groups and to help spread their propaganda.

          On the other hand, it is not the Commission’s role to substitute for the State in investigating and punishing violations committed by individuals.  However, it falls to the Commission to protect individuals whose rights have been injured by agents of organs of the State.  The ultimate reason for international bodies to protect human rights, as in the case of the IACHR, lies in the need to have means of recourse when human rights have been violated by state agents or organs.

          Further, it is the sense of the Commission that its cooperation in the campaign against terrorism consists in faithfully carrying out the function assigned to it, that is, in promoting the effective observance of human rights on the part of government, since, as experience has demonstrated, in countries where government fulfill their obligations of promoting economic and social development, and maintain public order without violating human rights, terrorist groups never encounter massive popular support and their fate, inevitably, is to fail.

b.       The limits of the State’s repressive action

The Commission now wishes to address the second question.  Do the existence of terrorists and the threats to subvert the public order influence the Commission’s assessments or evaluations with respect to the observance of human rights in a given country? Within the limits to be described below the obvious answer is yes.

          The Commission repeatedly has emphasized the obligation of governments to maintain public order and preserve the safety of their inhabitants.  To the end, governments must energetically prevent and repress acts of violence, whether they be committed by public officials or private individuals, and regardless of whether their motivation may be considered political or not.

          In the life of any nation, threats to the public order or to the personal safety of its inhabitants, by persons or groups that use violence, can reach such proportions that it becomes necessary, temporarily, to suspend the exercise of certain human rights.

          The majorities of the constitutions of the American States accept such limitations, and even provide for the temporary institution of states of emergency or states of siege in such circumstances.  Of course, in order for such measures to be adopted, extremely serious circumstances must intervene, as the institution of such regimes must be in response to the necessity of preserving those rights and freedoms which have been threatened by the disturbance of the public order and personal safety.

          However, it is equally clear that certain fundamental rights can never be suspended, as is the case, among others, of the right to life, the right to personal safety, or the right to due process. In other words, under no circumstances, may governments employ summary execution, torture, inhumane conditions of detention, or the denial of certain minimum conditions of justice as the means to restore public order.  These measures are proscribed in constitutions and in international instruments, both at the regional and at the global level.[5]/

          In this regard, it is important to recall the words spoken by His Holiness Pope John Paul II at the OAS on October 6, 1979.  After acknowledging that at times special measures may be adopted, he added the following:

          …they never, never justify an attack on the inviolable dignity of the human person and on the authentic rights that protect this dignity.  If certain ideologies and certain ways of interpreting the legitimate concern for national security were to result in subjugating man and his rights and dignities to the State, they would to that extend cease to be humane and would be unable, without gross deception, to claim any Christian reference.  In the thinking of the Church it is a fundamental principle that social organization is at the service of man, not vice versa.  That holds true also at the highest levels of society, where the power of coercion is wielded and where abuses, when they occur, are particularly serious.  Furthermore, a kind of security with which people do not identify, because it does not protect them in their very humanity, is only a farce: as it grows more and more rigid, it will shoe symptoms of growing weakness and rapidly approaching ruin.

          Each government that confronts a subversive threat must choose, on the one hand, the path of respect for the rule of law, or, on the other the descent into state terrorism.  When a government enjoys broad popular support, the choice of the first method will always be successful, as various countries have demonstrated both in the distant and more recent past.

          As has already been pointed out, respects for the rule of law does not preclude, under certain circumstances, the adoption of extraordinary measures.  When the emergency situation is truly serious, certain restrictions may be imposed, for example, on the freedom of information, or limitations on the right of association, within the framework established in the constitution.  In more extreme cases, persons may be detained for short periods without it being necessary to bring specific charges against them.  It is true that such measures can ultimately pose the risk that the rule of law will be lost, but that is not inevitable provided that government act responsibly: if they register arrest and inform the families of the detainees of the detentions; if the issue strict orders prohibiting torture; if they carefully recruit and train security forces, weeding out sadists and psychopaths, and lastly, if there is an independent Judiciary to swiftly correct any abuse of authority.

          6.       On April 27, the Commission concluded the first stage of its on-site investigation and issued its second press released.  On April 28, the Commission issued press release No. 3 to clarify the different interpretations of its previous press release. [6]/

D.       Oral Courts Martial

          1.       During the on-site investigation, the Commission went to the Baraya Batallion of Bogotá to attend the public phase of the Oral Court-Martial against presumed members of the Fuerzas Armadas Revolucionarias Colombianas (FARC).

          2.       At that time, the Commission met with the presiding officer, the members, the prosecutor and the legal advisor of the military court and gathered information about the applicable law, the procedures followed an the mechanisms used in the trials.  The Commission also spoke separately to several of those being tried in the military court and with their defense attorneys.

          In this part of the on-site investigation, the Commission was not able to attend the Oral Court-Martial against presumed members of the M-19 movement since the Court-Martial was not in its public phase, but was able to do so later on, starting in March 1981.

E.       Activities undertaken after the Commission’s visit

          1.       After the first part of the on-site investigation was over, attorneys from the Executive Secretariat of the Commission remained in Colombia during the second stage of the investigation.

          2.       Form this point on, Commission attorneys and Secretariat staff members have visited Colombia periodically to carry our the following activities:

a)       To attend the Oral Courts-Martial against the alleged members of the FARC, at the Baraya Batallion of Bogotá; of the M-19, a t the La Picota penitentiary in Bogotá, and at Ipiales, in de Department of Nariño.

b)       To observe in Cali, on June 20, 1980, the sentencing by the Oral Courts-Martial of three members of the M-19 movement;

c)       Interviews and conversations with Colombian government officials.

d)      Interview with representatives of human rights groups; 

e)       Interviews with members of the Oral courts-martial;

f)       Interviews with the  defense attorneys of alleged members of the M-19 movement and the FARC; 

g)      Investigation of special cases;

h)      Receipt of documents relating to the situation of human rights in Colombia; 

i)       Conversations about medical care of several prisoners;

j)       Visits to the La Picota Central Penitentiary of Bogotá. 

k)      Visit to the Military Institutes Brigade;

l)       Visits to the cavalry school and interview with its Commander, who turned over documents about the interrogation system of the prisoners and photographs of the detention facilities of that military center; 

m)     Receipt of forms and other documents requested from the Government;

n)      Other conversations regarding the observation of human rights in Colombia.

F.       Method followed in drafting this report

          1.       In drafting this report, the Commission followed primarily the method used in preparing documents of this type after making an on-site investigation, in accordance with the corresponding regulatory provisions.

          2.       In consideration of the foregoing, the Commission used the evidence gathered in the course of its investigation.  These include analysis and review of the status of human rights before, during and after the on-site investigation carried out in Colombia.

          In doing so, the Commission has taken into account the charges made, and the testimony and information received at its headquarters, as well as during the course of its activities in Colombia.  Individual complaints and pertinent testimony and information have been appropriately processed.

          3.       During its stay in Colombia, the commission interviewed Government authorities and held hearings with representatives of different sectors of Colombian society.  Likewise, it exchanged ideas and listed to those persons who wishes to express their points of view.  Public authorities, representative organization of different types, and individuals all gave the Commission documents and information, which, after being examined, were helpful in preparing this report.

          4.       Furthermore, a study was made of Colombian law, internal jurisdictional procedures and applicable international norms in this area.  Also consulted were other documents which in some way or another contributed to a better and more objective understanding of the real situation in Colombia and in that context, of the situation of human rights there.

          5.       This report includes a number of chapters on different aspects of the human rights situation in Colombia.  Those chapters include, in the pertinent parts, several cases regarding charges, which are still being processed.  Therefore, the Commission wishes to clarify that its inclusion of those cases does not make any prejudgment with respect to the finding, which the Commission will eventually issue, on these cases in accordance with its Rules of Procedure. [7]/

          6.       The Commission wishes to point out that, for reasons of time and insufficient background information, it is not including tin this report a chapter on economic, social and cultural rights.  However, it retains its interest in this area for the purpose of conducting this work in the future, in accordance with the resolution of the OAS General Assembly at it tenth regular session held in Washington, D.C. in November, 1980.  In that session, the General assembly took note of the annual report, and the special reports of the Commission and stated that it shares the concern of the Commission in emphasizing the importance of economic, social and cultural rights within the context of human rights for the comprehensive development of the human person, and reaffirms that the effective protection of human rights must also encompass social, economic and cultural rights. 

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5.      In view of the relevance of the Oral Courts-Martial to the permanence of human rights, the attorneys of the Commission Secretariat will remain in Colombia as long as necessary and will follow closely the procedures carried out in those Courts-Martial.  Those attorneys will also perform other duties.