HUMAN RIGHT DEFENDERS
A. INTRODUCTION AND LEGAL FRAMEWORK
1. The member States of the Organization of American States ("OAS"), including Colombia, have generally recognized the important role which human rights defenders play in promoting greater awareness and observance of human rights and, in this manner, in safeguarding democracy and the values of the inter-American system. Throughout the world, human rights defenders work individually or in groups, institutions or non-governmental organizations on human rights issues. They may carry out educational, promotional or litigation activities in an effort to seek greater protection for human rights. Recognizing the importance of the work carried out by human rights defenders, the OAS General Assembly has, on several occasions, issued pronouncements regarding the importance it attaches to ensuring respect for and protection of human rights defenders. For example, in its Resolution AG/RES. 1044 of June 8, 1990, the General Assembly decided to reiterate its recommendation to the governments of the member States "that they provide the guarantees and facilities needed to non-governmental human rights organizations so that they may continue their efforts to promote and defend human rights, and that they respect the freedom and integrity of the members of the organizations." The United Nations Human Rights Commission recently recognized the importance of the work of human rights defenders and reaffirmed the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms.( 1 )
2. Numerous provisions of the American Convention on Human Rights (the "Convention" or the "American Convention") are relevant for an analysis of the situation of human rights workers. Among others, the provisions of Articles 4 and 5 of the Convention, protecting the rights to life and humane treatment, apply to all persons, including human rights workers. Similarly, the rights to due process and judicial protection, set forth in Articles 8 and 25 of the Convention, provide norms for the protection of human rights workers, as well as the rest of the population.
3. Several other articles of the Convention may have particular relevance for human rights workers. Among others, Article 13 of the Convention, providing for the right to freedom of thought and expression, plays an important role in the analysis of attacks against human rights workers. Article 15, establishing the right of assembly, and Article 16, establishing the right to freedom of association, also provide protections relevant to human rights workers.
4. The new Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms (the "Draft Declaration") approved by the United Nations Commission on Human Rights also establishes certain principles which provide guidance in analyzing the rights of human rights defenders. This instrument provides that, "[e]veryone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels."( 2 ) For the purpose of promoting and protecting human rights, all persons have the right to meet and assemble peacefully and to form, join and participate in non-governmental organizations or to communicate with such organizations.( 3 ) The Draft Declaration also provides that all persons have the right to make complaints regarding the policies and actions of individual officials or governmental bodies regarding human rights violations.( 4 )
5. Despite the existence of these protections, most international observers agree that the most basic rights of Colombia's human rights defenders have been consistently violated in recent years. The Office of the United Nations High Commissioner for Human Rights reported that, in 1997 alone, twenty members of human rights organizations were killed.( 5 ) Several of those killed were well known domestically and internationally for their work in this field. According to information received by the Commission, human rights workers have also been subjected to other types of attacks on their rights, including threats and physical violence as well as arbitrary criminal prosecutions.
6. The recent increase in the violence and harassment directed against human rights defenders corresponds to the degradation of the conflict in the past years and even months. The legitimate work of human rights defenders, including the denunciation of the serious abuses committed by the parties to the armed conflict, has led certain actors to seek to silence them through a variety of methods.
7. As noted above, human rights defenders play a valid and productive role in society in times of conflict as well as peace. The Commission has observed directly the committed, objective and extremely positive work carried out by human rights organizations in Colombia.
8. However, with alarming frequency, members of the State security forces and paramilitary groups presume, based on human rights workers' legitimate human rights promotion and protection activities, that these individuals are involved in illegal activities or that they have become combatants and legitimate objects of attack. An individual may never be treated as a criminal or otherwise attacked based on the exercise of his rights to freedom of thought, speech, assembly, etc… Thus, for example, speech in criticism of the human rights record of the Army or the government may never result in reprisals against the speaker. Nor may expressions of sympathy with one or more of the parties to an armed conflict.
9. The Commission therefore emphatically rejects the argument of some members of paramilitary groups and their sympathizers suggesting that certain human rights defenders may be considered "parasubversives", based on their alleged support of or sympathy toward armed dissident groups, and have thus forfeited the protection due to them as civilian non-combatants. This suggestion is decidedly incompatible with the basic principles of international law.( 6 )
10. With these clarifications in mind, the Commission will proceed to analyze the various abuses perpetrated against human rights workers in Colombia with reference to the norms of the American Convention and other relevant instruments. The Commission will then analyze the response of the State in relation to the current situation of human rights workers.
B. THE CURRENT SITUATION OF HUMAN RIGHTS WORKERS
11. The non-governmental organization Amnesty International convened an international conference on the protection of human rights defenders in Latin American and the Caribbean in 1996. The conference was held in Bogotá from May 22 to 25, 1996.( 7 ) The final declaration of this conference included the following statements:
Conditions in the region are not always conducive to defending human rights; there are dangers involved in defending and promoting victims' rights, and often the defenders themselves become victims of imprisonment, torture, murder and forced disappearance.
Despite abundant government rhetoric in support of human rights, which is part of the political and social transition and the economic transformation occurring in the region, there continues to be a huge gap between discourse and reality. New forms of harassment and repression emerge, including campaigns to destroy the reputation of individuals and institutions, attempts to criminalize activities that are part of efforts to defend human rights, and legal restrictions placed in the way of acquiring the means needed to defend human rights.
These statements regarding the situation of human rights workers in general are relevant to human rights workers in Colombia.
1. Attacks on the Lives and Personal Integrity of Human Rights Workers
12. Many human rights workers in Colombia receive constant threats against their lives in reprisal for their work. These threats sometimes come in the form of anonymous phone calls and notes. In other cases, unknown individuals approach human rights workers and inform them that they must discontinue their work or suffer the consequences. These threats themselves constitute an attack on the mental integrity of the victims. The threats have a particularly strong effect, because human rights defenders know that many such threats are eventually carried out.
13. The members of the Association of Family Members of Detained and Disappeared Persons in Colombia (Asociación de Familiares de Detenidos-Desaparecidos - "ASFADDES") have received reiterated threats dating back to 1992 when a high-level officer of the Colombian Army accused the group of identifying with armed dissident groups.( 8 ) The Commission first requested that the Colombian Government adopt precautionary measures on behalf of the president of the organization on September 20, 1994. The Commission subsequently received information denouncing renewed threats against the organization in the first part of 1997. The Commission thus reiterated its request for precautionary measures on February 25, 1997.
14. When a bomb exploded in the Medellín office of ASFADDES on June 24, 1997, the Commission petitioned the Inter-American Court of Human Rights (the "Court") for the adoption of provisional measures on behalf of 17 persons related to the organization. The President of the Court ordered the adoption of provisional measures for the protection of these persons on July 22, 1997. The Court in plenary ratified that decision on November 11, 1997. Yet, some members of the organization continued to receive threats.
15. María Eugenia Cárdenas, the regional director for ASFADDES in Riosucio, Department of Caldas, received very serious threats during this time. On one occasion, an unknown individual approached her on the street, carrying a grenade, and threatened that he would blow up the ASFADDES office in Ríosucio. José María Cárdenas, Ms. Cárdenas' first cousin, was subsequently tortured and killed in the village of Bajo Pirza, in the Department of Caldas, on December 3, 1997.( 9 ) Most recently, in July of 1998, the current General Secretary for the organization, José Daniel Alvarez, received a phone call threatening his life.
16. Physical attacks and extrajudicial executions of human rights defenders, preceded or not by threats, are common in Colombia. Several leading human rights activists were killed in 1997 and 1998. On May 19, 1997, Mario Calderón Villegas, Elsa Constanza Alvarado Chacón and Carlos Alvarado Pantoja were killed in their Bogotá apartment. The attackers entered the victims' apartment building at 2 am to commit the murder. Mario Calderón and Elsa Alvarado were members of the Center for Investigation and Popular Education (Centro de Investigación y Educación Popular - "CINEP"). CINEP is a well-respected non-governmental organization which carries out research, writing and education on a wide variety of issues facing civil society in Colombia. Carlos Alvarado was Elsa Alvarado's father. These murders had a particularly strong impact on Colombian society, because this type of political violence previously had not often affected persons living in the capital. The Human Rights Unit of the Office of the Prosecutor General of the Nation ordered the arrest and preventive detention of several suspects in this case. The Commission has received information which indicates that the Human Rights Unit formerly named Carlos and Fidel Castaño Gil, leaders of the paramilitary group known as the Peasant Self-Defense Groups of Córdoba and Urabá (Autodefensas Campesinas de Córdoba y Urabá - "ACCU"), as suspects in the investigation.( 10 )
17. These deaths were followed by the murder of Jesús María Valle on February 27, 1998. Mr. Valle was the president of the "Héctor Abad Gomez" Permanent Committee for the Defense of Human Rights for Antioquia (Comité Permanente para la Defensa de los Derechos Humanos de Antioquia "Héctor Abad Gomez"). He was killed in his office in Medellín at 2:30 in the afternoon. Three previous presidents of the Permanent Committee for the Defense of Human Rights in Antioquia were killed in 1987 and 1988. Mr. Valle had repeatedly denounced violence in the municipality of Ituango and other areas of the Department of Antioquia. He had alleged that paramilitary organizations and State public security forces acted in cooperation in carrying out massacres and other violent acts against the civilian population in Antioquia. Soon after Mr. Valle's death, the government offered a substantial monetary reward for information leading to the identification of the perpetrators of this murder. The Commission has received information indicating that two brothers, presumably members of a paramilitary group, were captured on September 16, 1998. One of the two brothers is suspected of direct involvement in the murder of Mr. Valle. Four additional suspects remain in detention in relation to the investigation. These four individuals are cattle ranchers from Mr. Valle’s town of origin, Ituango.( 11 )
18. Several months later, on April 18, 1998, well-known criminal defense lawyer and human rights defender, Eduardo Umaña Mendoza was also killed in Medellín. Several individuals arrived around midday at his home, where he was working, and proceeded to tie up his secretary and assassinate him. Mr. Umaña had apparently reported to authorities and friends shortly before the attack that he was aware of a plot to kill him. The murder caused a strong reaction in Colombian society. As a result, the Colombian government offered a large reward for information leading to the capture of those responsible for the murder of Mr. Umaña. The case is currently being investigated by the Human Rights Unit of the Office of the Prosecutor General of the Nation. Six suspects have been detained in relation to this crime. A preventive detention order has been issued against them.
19. Armed dissident groups have been known to attack human rights workers believed by these organizations to support other actors in the armed conflict. However, responsibility for acts of violence against non-governmental human rights workers is most frequently attributed to paramilitary groups. Many different sources also suggest that the State's security forces may cooperate with paramilitary groups in planning and executing some of the killings. The Commission reiterates that, where paramilitary groups act as State agents or with the approval, acquiescence or tolerance of State agents, the State becomes internationally responsible for the human rights violations which they commit. The attacks described above would, in those circumstances, constitute flagrant violations of Articles 4 and 5 of the American Convention. In addition, to the extent that these attacks constitute reprisals against the victims for their work in human rights, they also result in violations of the right to freedom of thought and expression guaranteed in Article 13 of the Convention. In some cases, they may also constitute violations of the right to association and freedom of assembly, established in Articles 15 and 16 of the Convention.( 12 ) On February 1, 1999, the "Autodefensas Unidas de Colombia" took responsibility for the kidnapping of John Jairo Bedoya Carvajal, Jorge Heriberto Salazar, Claudia María Tamayo and Olga Ruth Rodas, members of the Popular Institute for Training (IPC). The IACHR expressed its emphatic condemnation of these events and requested that the lives and physical integrity of the hostages be respected and that they be released immediately.( 13 ) The hostages were eventually released in groups of two on February 8 and 18 respectively.
20. The Commission is concerned that some of the threats and violence against human rights workers in Colombia have targeted or affected individuals who have provided information to the Commission. The Commission met with Dr. Jesús María Valle on two occasions during 1997 to receive information about the human rights situation in the Department of Antioquia. The first meeting was held in February with a small special delegation of the Commission which visited Colombia to discuss the status of several cases in friendly settlement proceedings. The second meeting was arranged as part of the Commission's on-site visit in December. In addition, Dr. Valle's organization has presented several individual cases before the Commission, and its members have frequently travelled to Washington to attend hearings at the Commission.
21. The Commission has learned that another individual who met with this body during the December on-site visit was subsequently killed. While in Puerto Asis, Putumayo, the Commission met with a local human rights committee, composed of governmental and non-governmental representatives. Alcibiades Enciso Galvis, then mayor of Puerto Asis and member to the committee, expressed to the Commission that he had received threats against his life. Mr. Galvis left the mayorship at the end of 1997 and moved to Cali, Department of Valle. Unknown individuals killed him there on January 30, 1998.
22. Attorneys from the Colombian Commission of Jurists (Comisión Colombiana de Juristas) and the "José Alvear Restrepo" Lawyers' Collective (Corporación Colectivo de Abogados "José Alvear Restrepo") have also frequently received threats. Both of these non-governmental organizations have brought numerous individual petitions before the Commission and have appeared frequently in hearings before this body in Washington, D.C.
23. In the press release it issued on March 6, 1998, at the end of its 98º session, the Commission reminded Colombia and all of the member States of the OAS that Article 59 of the Regulations of the Commission provides that, "the government shall grant the pertinent guarantees to all those who provide the Commission with information, testimony or evidence of any kind [during an on-site visit]." In relation to the safety of individuals who present information to the Commission regarding individual human rights cases, the Inter-American Court has held that, "it is the responsibility of the Government to adopt security measures for all citizens, an undertaking that is all the more crucial in the case of persons involved in proceedings before the organs of the inter-American system for the protection of human rights."( 14 ) Similarly, the United Nations Draft Declaration provides that all individuals have the right, individually and in association with others, to communicate with intergovernmental organizations and to access and communicate with international bodies with competence to receive communications on human rights matters.( 15 )
24. The Commission is deeply concerned that individuals who have provided the Commission with information on the general human rights situation in Colombia or on individual cases have subsequently suffered attacks in violation of their rights to freedom of expression, personal integrity and life established in the Convention.
2. Legal Actions Initiated Against Human Rights Workers
25. Human rights defenders have frequently faced legal actions. The Commission has received information indicating that some of these legal proceedings are not initiated to determine rights and responsibilities in conformity with the law but rather to harass human rights workers.
26. Some of the legal proceedings involve slander suits brought by Army officers against human rights workers. For example, General Harold Bedoya, then commander of the Army and subsequently commander of the Military Forces, brought one such suit against Father Javier Giraldo. Father Giraldo is the director of the Intercongregational Commission for Justice and Peace (Comisión Intercongregacional de Justicia y Paz - "Justicia y Paz"), a human rights organization which has presented several cases to the Commission.( 16 )
27. The Commission has also learned of cases where criminal proceedings have been brought against human rights defenders. In some cases, these proceedings have moved forward to advanced stages, including the detention of human rights workers. These proceedings usually charge human rights workers with the crimes of rebellion or organization of illegal groups. The Commission has received numerous credible complaints indicating that these proceedings are not based on acceptable evidence but rather form part of a strategy by some members of the State's security forces to harass and intimidate human rights defenders. One non-governmental organization estimates that such proceedings were brought against 11 human rights workers in the Department of Antioquia alone between May, 1996 and August, 1997.
28. Again, the Commission recognizes that the Colombian State has the right to prosecute any individual responsible for committing illegal acts, including acts of support for armed dissident groups which constitute crimes under domestic law. However, human rights defenders may not be presumed to have committed such illegal acts based solely on their human rights activities, including the legal defense of individuals accused of supporting armed dissident groups.
29. The Commission has received information indicating that the criminal proceedings against human rights defenders are generally initiated in reliance on reports from the military regarding the alleged involvement of these persons with armed dissident groups. However, these military reports often fail to provide any concrete evidence linking human rights defenders to armed dissident groups. The reports instead treat the human rights activities carried out by these persons as evidence of such ties.
30. Criminal proceedings must always comply with the requirements of due process, including in the case of human rights workers. However, prosecutors from the regional justice system housed in military brigades have initiated almost all of the criminal proceedings brought against human rights workers. The Commission has described in depth the lack of due process guarantees in such proceedings in Chapter V, relating to the administration of justice. In that Chapter, the Commission noted the significant control which members of the State's security forces have over investigation in the regional justice system, particularly in the initial stages.
31. The case of Jesús Ramiro Zapata provides an example of a criminal proceeding allegedly brought to harass the accused human rights defender. Mr. Zapata is coordinator for the Human Rights Committee for Segovia (Comité de Derechos Humanos de Segovia). As such, he has applied pressure to advance the investigations into massacres which took place in Segovia, Department of Antioquia in 1988 and 1996. These massacres were allegedly carried out by paramilitaries in cooperation with State security forces.( 17 ) Mr. Zapata also belongs to the human rights organization known as "Colectivo Semillas de Libertad."
32. On May 26, 1996, just one month after the second Segovia massacre, a regional prosecutor, accompanied by members of the Bomboná Army Battallion, searched Mr. Zapata's home. The members of the search unit claimed to find items implicating Mr. Zapata in illegal activities. However, witnesses state that the soldiers planted those items when they arrived. Similarly, on July 17, 1996, a local prosecutor detained Mr. Zapata without an arrest warrant. To justify the illegal arrest, the prosecutor decided to open a proceeding against Mr. Zapata for falsification of public documents. The prosecutor justified this action on the grounds that the photograph on his identification card "looked strange."
33. Most recently, on August 22, 1997, the regional prosecutor at the IV Brigade opened an additional investigation. The origin of this proceeding lies with a military intelligence report. That report makes broad critical statements regarding the organization "Colectivo Semillas de Libertad" to suggest that the group is linked to subversive activity. The report states that the focus of the organization's work is with the "alleged" promotion and protection of human rights. The report then notes that the organization has a division devoted to providing legal assistance to criminal defendants accused of subversive activities. The report further states that, "various State security agencies agree that the true nature of 'Colectivo Semillas de Libertad' is a façade organization for the subversion, particularly the Eln." The report also makes note of the fact that the organization has denounced "supposed human rights violations" committed by the State's security forces. The report provides no information regarding its sources. It also fails to set forth specific details or evidence regarding the charges levied against the organization, much less regarding Mr. Zapata individually.
34. The regional prosecutor's office used this report as the basis to open a criminal investigation against all of the members of "Colectivo Semillas de Libertad." At the same time, the prosecutor granted powers to the Administrative Department of Security (Departamento Administrativo de Seguridad - "DAS") to carry out further investigations into the case, including through the use of phone line intervention.
35. Another military report has led to the initiation of a criminal investigation against Alirio Uribe of the "José Alvear Restrepo" Lawyers' Collective. That military report apparently links Mr. Uribe to criminal activity on the grounds that he provides legal assistance to criminal defendants. The report states that Mr. Uribe is "dedicated to having bandits held in various jails declared 'political prisoners.'"
36. Another case involving criminal investigations into human rights defenders resulted in a strong public reaction. On May 13, 1998, several prosecutors, accompanied by 20 soldiers from the Army Special Forces unit, entered the offices of the human rights organization Justicia y Paz to carry out a search warrant. That search warrant was legally issued, and the soldiers allegedly came only to ensure the security of the search. However, members of the organization who were present stated that the soldiers mistreated them and even asked some members of the office to kneel down. The soldiers also apparently videotaped computer screens containing information about human rights cases.
37. It appears that the search was intended more to intimidate the human rights defenders at Justicia y Paz than to carry out any legitimate investigation. The warrants for the search were issued only on a vague report by the Army suggesting that the organization might be linked to the killing, on the same day as the search, of Ex-general Fernando Landazábal Reyes. Nor has the Army explained why it was necessary to send twenty soldiers from a special forces unit to an office which contains only a small number of human rights workers with no violent history. The Army could not easily allege that the office also contained dangerous persons, because the military had conducted surveillance of the office before the search. Among those present during the search was Sister Nohemí Palencia. Ms. Palencia is currently the beneficiary of an Inter-American Court decision ordering the Colombian government to adopt provisional measures for her protection.
38. Individuals accused or investigated in these criminal proceedings are sometimes subsequently extrajudicially executed. In January of 1997, the regional prosecutors at the XVII Brigade initiated an investigation of the officers of the National Association of Solidarity Assistance (Asociación Nacional de Ayuda Solidaria - "ANDAS"). The members of that organization were named in a criminal investigation involving charges of rebellion, terrorist murder and organized crime. The security forces arrested Martha Inés Zapata Urrego, Ana Herminta Rengifo Durango and Gerardo Nieto Yantén in relation to this proceeding.
39. Several union leaders, including Eugenio Córdoba and Ramón Alberto Osorio Beltrán, were detained in connection with the same investigation. All of the suspects were released 15 days after their detention. However, on April 15, 1997, Ramón Antonio Osorio Beltrán was disappeared. No further information has been received regarding his fate. On June 23, 1997, Eugenio Córdoba was killed at 10:00 p.m. in Quibdó.
40. Military reports again served as the basis for the investigation and the detentions in the ANDAS case. The military documents submitted in the case include a letter from the commander of the XVII Brigade to the Director for Regional Prosecutors for Medellín in which the general suggests that human rights defenders serve as the political arm of the guerrilla movement by exerting pressure against the legal authorities through complaints of human rights abuses. A report from another official made use of the fact that several members of ANDAS also belong to the Communist and Patriotic Union political parties. The report by this official denounced a link between the detainees and the armed dissident movement on the grounds that the structure of the Communist Party and the ELN armed dissident group are similar.
41. In August of 1997, Ana Herminta Rengifo Durango and other officers of ANDAS were again arrested. In September of 1997, while several ANDAS members were held in detention on charges of rebellion, the president of the Cartagena section of ANDAS was shot and killed. On December 19, 1997, a new prosecutor assigned to the case decided that there were serious flaws in the evidence against Ms. Rengifo and ordered her release.
42. The Commission is extremely concerned that criminal proceedings have been utilized as a means of harassment and intimidation of human rights workers. State agents are responsible for conducting these proceedings. The State's prosecutors necessarily initiate such proceedings. As noted above, they often also act in coordination with members of the State's security forces. These proceedings appear to be arbitrary and inconsistent with the requirements of due process. As such, the State may well incur international responsibility for violation of Articles 8 and 25 of the American Convention.
43. In addition, these proceedings may rise to the level of an assault on the personal integrity of the victims, in violation of Article 5 of the Convention. Criminal proceedings are converted into a tool of harassment directed at human rights workers. As a result, the victims' right to mental and moral integrity is compromised, in violation of Article 5 of the Convention. The Commission also understands that the proceedings are sometimes used to publicly identify human rights workers considered by the State's security forces as "enemies of the State." Certain members of the State's security forces and/or members of paramilitary groups then treat these individuals as military targets. The criminal proceedings thus sometimes place in danger the physical integrity and the life of those accused, in violation of the rights set forth in Articles 4 and 5 of the Convention.
3. Intelligence-Gathering Activities Directed at Human Rights Defenders
44. Numerous human rights organizations have complained to the Commission regarding intelligence activities conducted by the State's public security forces into the activities of human rights organizations and their members. Despite repeated denials by members of the State's public security forces,( 18 ) it is now unquestionable that these forces have targeted human rights organizations and their members for intelligence-gathering activities. As noted above, military intelligence reports regarding members of human rights organizations have been introduced in various criminal proceedings. Members of DAS have also confirmed that they have conducted intelligence activities relating to members of ASFADDES. It was publicly acknowledged that the warrant for the search raid at the Justicia y Paz offices was granted on the basis of military intelligence reports.
45. The Commission recognizes that the State's public security forces may be required to conduct intelligence operations, pursuant to law, in order to fight crime and protect the constitutional order. However, based on the information which it has received, the Commission finds several difficulties with the intelligence operations currently carried out against human rights organizations and their members in Colombia.
46. First, the Commission is again concerned that the State security forces direct intelligence activities against human rights organizations and their members based solely on their status as such. The State security forces appear to assume automatically that human rights organizations and their members present a danger to the public order.
47. For example, when asked to explain intelligence activities directed at ASFADDES, the director of the Office of the Inspector General of DAS directed a letter to ASFADDES asserting that these actions were based on duties assigned to DAS by Decree 2100 of 1992, Article 42. That article provides that DAS should search for information "about situations, circumstances, decisions, people, events, organizations, and means that could influence, damage, alter or limit the internal public order … or allow [DAS] to establish the characteristics and plans of organized crime or activities of foreigners in the country, when public order could be disturbed as a result."
48. This letter suggests that DAS considers ASFADDES to constitute a possible threat to public order.( 19 ) Yet, the letter provides no explanation or evidence supporting a presumption that the organization or its members might constitute such a threat. Nor does the letter set forth reasons for believing that the organization might be utilized, by its members or others, to stage an attack on the public order. It must be assumed, therefore, that DAS targeted ASFADDES based on the organization's connection to human rights work.
49. Second, the Commission has received complaints regarding the manner in which intelligence information about human rights workers and their organizations is gathered. This information indicates that members of the State's security forces obtain financial and other private documents without proper authorization. The Commission has received information indicating that the State's security forces have also engaged in telephone line intervention, secretly taping conversations, without judicial orders.
50. One case of telephone line intervention received public attention when a member of the Colombian Senate announced publicly that he possessed transcripts of phone conversations sustained with members of MINGA (Association for Alternative Social Promotion - Asociación para la Promoción Social Alternativa). The senator claimed that military intelligence cassette recordings of intercepted telephone conversations proved his claim that the human rights organization worked with armed dissident groups. Members of the Office of the Prosecutor General of the Nation subsequently confirmed that their Office had issued no order permitting the phone tapping which took place.
51. When State security forces carry out these types of secret and intrusive intelligence activities without proper authority, they violate Colombian domestic law as well as the right to privacy set forth in the American Convention. The Colombian Constitution provides that "correspondence and other private forms of communication are inviolable. They may only be intercepted or inspected pursuant to a judicial order, in those cases allowed by law, with the proper formalities."( 20 ) Article 11 of the Convention provides that nobody may be the object of "arbitrary or intrusive interference with his private life, his family, his home, or his correspondence."( 21 )
52. The Commission has also received complaints indicating that the State's public security forces sometimes undertake intelligence activities in a manner calculated to harass or intimidate the human rights workers subjected to intelligence-gathering operations. For example, agents of the public security forces sometimes request detailed personal information regarding individuals which, if revealed, might place these persons in danger. The Commission has received complaints indicating that agents of the State's security forces sometimes make requests for this information through repeated personal visits or telephone calls. When those requesting the information are asked to identify themselves or to make their requests in writing, they sometimes fail to do so. The State's public security forces sometimes also conduct surveillance operations in which human rights workers constantly observe unknown individuals, sometimes armed, following them during their daily activities.
53. Human rights workers are aware that many individuals who have been killed have reported receiving threatening phone calls or being followed shortly before their deaths. The intelligence-gathering techniques of the State's security forces thus often cause extreme consternation in human rights workers in the context of the violence in Colombia. Certain intelligence-gathering techniques may even lead to violations of the right to mental integrity, protected in Article 5 of the Convention.
54. Third, the Commission is concerned about the use which is made of intelligence information. The Commission understands that the majority of intelligence information is not utilized to aid in the prosecution of human rights workers through incorporation into judicial proceedings. Rather, the State's security forces apparently maintain intelligence files largely for their own use. The Commission believes that legitimate intelligence information should be used to facilitate criminal prosecution or legal military operations. The Commission considers that intelligence files should not be maintained as a means of maintaining control over general information regarding the citizenry.
55. The Commission is also extremely concerned about reports which indicate that military intelligence is sometimes used to facilitate extrajudicial executions of human rights workers by members of the State's security forces or paramilitary groups acting with the approval or acquiescence of State agents. Such executions of course result in State responsibility for flagrant violations of the right to life protected in Article 4 of the American Convention.
56. Finally, the Commission has received information and complaints regarding access to intelligence information gathered by the State's public security forces. The Colombian Constitution provides that all persons "have the right to access, update and collect information about them which has been gathered in the data banks and archives of public and private entities."( 22 ) Colombian law thus provides that individuals may access information about themselves in government files. The Commission does not perceive any reason why military intelligence files would be excluded, as a rule, from this requirement.
57. However, the State's public security forces have traditionally refused to allow individuals to learn the content of intelligence files. During its on-site visit, the Commission asked several of the State entities which gather intelligence whether an individual might request to be shown intelligence information pertaining to that person. These entities replied that there does not exist a mechanism whereby individuals who believe they have been the objects of intelligence gathering may request to see the intelligence files relating to them. That information is made available only if a judicial proceeding is subsequently initiated against the individual involved. He is then allowed, as part of his right to prepare a defense, to review the intelligence information which becomes part of the judicial file.
58. Yet, individuals have a right to know about the intelligence information which has been gathered about them even when they are not faced with a criminal proceeding based on that information. Without access to such information, individuals cannot correct any information which is erroneous. This point was underlined when then Minister of Defense, Gilberto Echeverri Mejia, announced after the Justicia y Paz raid that any person "who knows with certainty that there are reports containing false information in the archives" should inform the Ministry of Defense so that the appropriate corrections might be made.( 23 ) It is patently impossible for persons to come forward to inform the military of inaccuracies in the records about them if they do not have access to those records. The right to privacy also guarantees individuals the right simply to learn that the State has decided to gather information about them even where that information does not contain any errors.
59. The Commission believes that there may exist some limited cases in which the State security forces could not be required to reveal intelligence information to individuals, for example, where the release of such information might endanger national security. However, the security forces cannot make the decision regarding the release of intelligence information without any external control. Appropriate independent authorities must have the ability to access intelligence information and to decide whether it may be held in confidentiality. Such independent control is also necessary to ensure that the security forces have acted within their competence and according to proper procedures in obtaining intelligence information.
60. In the past, however, civilian State agents were not authorized access to intelligence information gathered by the State's security forces. After the death of human rights defender Eduardo Umaña, then President Samper announced that the Procurator General of the Nation would review the military's intelligence files. This decision was made in response to repeated petitions from non-governmental organizations who believe that their members may be referred to as members of armed dissident groups in the intelligence files.
61. The Commission considers this decision to be one of utmost importance. The Commission considers that the Procurator General should conduct its review of intelligence files with a view to determining which files should be released to individuals mentioned therein. In addition, the Procurator General should review materials which do not relate to any individual, but rather to entire organizations. Although individuals may not be able to demand access to this information pursuant to current law, the Procurator General should nonetheless analyze the appropriateness of the information included in these intelligence files and the methods utilized to obtain this information.
62. The Commission will continue to closely follow the issue of access to intelligence files regarding human rights organizations and their members. The Commission is confident that the Procurator General will assume the new task of reviewing intelligence files with the utmost seriousness and that the State's security forces will fully and openly cooperate by providing all intelligence files regarding human rights organizations and their members to the Procurator General.
4. The Consequences of the Violence and Harassment Directed at Human Rights Organizations and their Members
63. The attacks on human rights organizations and their members, including violent attacks as well as legal and other forms of harassment and intimidation, have serious consequences for human rights defenders. The attacks are often intended to eliminate directly human rights workers who are seen by the armed actors as enemies in the internal armed conflict. They also often seek to silence the opinions of human rights defenders, including the criticisms and complaints which these persons may level against the State's security forces, the government or others. In order to achieve this objective, the attacks often aim to cause the complete disintegration of human rights organizations.
64. The experience of the Civic Human Rights Committee for Meta (Comité Cívico de los Derechos Humanos del Meta) illustrates such a coordinated effort to destroy individual members and eventually force the disintegration of a human rights organization. The Department of Meta has suffered greatly as a result of the political violence in Colombia.
65. In 1991, the Civic Human Rights Committee for Meta was founded. The new organization brought together 35 labor, peasant, medical and other organizations to work with individuals who denounced violations of their human rights in the context of the political violence. Soon after the organization was founded, however, members of the State's security forces began to request information from its members and to follow them to their homes. Some members also began to receive threats.
66. The next attack on the organization came when several members of a medical organization which worked with the Civic Human Rights Committee were killed. Over the years, other members were killed, threatened and forced to flee. As a result, in 1995, the organization decided to close its doors. At that time, four members had been killed, three disappeared and 25 displaced. The majority of the members had withdrawn from the organization for fear of being killed or disappeared. A few remaining individuals decided to continue to carry out the work of the organization.
67. On November 22, 1995, the Commission requested the Colombian State to adopt precautionary measures to protect the lives and physical integrity of these remaining individuals who labored under consistent threats. On October 13, 1996, one of the persons protected by the Commission's measures, Josué Giraldo, was assassinated. As a result, on October 18, 1996, the Commission requested that the Court order the Colombian State to adopt provisional measures to protect Mr. Giraldo's family members and the few persons who continued to work with the organization.( 24 ) On October 29, 1996, the President of the Court adopted provisional measures. The Court ratified the President's decision ordering the adoption of provisional measures on February 7, 1997.
68. However, even after the adoption of provisional measures by the Court, the crime against Mr. Giraldo has not been resolved and the threats against the remaining members of the Civic Human Rights Committee have continued. One of the members, Sister Noemí Palencia, was moved by her religious community to Bogotá to protect her safety. Another member, Gonzalo Zárate, felt it necessary to renounce his human rights work to provide himself with a margin of safety. The Civic Human Rights Committee effectively no longer exists as a result of the constant attacks which it has suffered.
69. In cases such as that of the Civic Human Rights Committee, a wide range of rights which should be enjoyed by human rights defenders are infringed. Many human rights workers who are not killed must nonetheless leave Colombia or at least the area in which they have lived and worked in order to protect themselves.
70. Human rights organizations are also frequently required to cease their activities as a result of attacks. In the last several years, ASFADDES, Amnesty International, the Civic Human Rights Committee of Meta and the Committee for Solidarity with Political Prisoners (Comité de Solidaridad con los Presos Políticos - "CSPP") have closed down some or all of their offices in Colombia in response to harassment or danger. Individual human rights defenders are also often forced to abandon their work in the defense of human rights in order to obtain some measure of safety.
71. Those who attack human rights workers and their organizations are allowed to achieve their illegitimate goals when they remove and/or silence human rights defenders in this manner. In turn, the victims suffer violations of numerous rights which, at times, lead to State responsibility. Those who are internally displaced suffer a violation of their right to freedom of movement and residence, guaranteed in Article 22 of the Convention. They may also suffer violations of a series of other rights in their condition as internally displaced persons.( 25 )
72. When human rights organizations are forced to close their offices, the attacks interfere with the rights of members of human rights organizations to assembly and to freedom of association, in violation of Articles 14 and 15 of the Convention.
73. When individual members are forced to abandon their activities, they also suffer violations of their right to freedom of association. They will also generally suffer a violation of the right to freedom of thought and expression protected in Article 16 of the Convention. Some of these individuals, who have chosen to exercise their profession or occupation with human rights organizations, may be forced to halt such exercise and choose a new profession or a new direction for their work. The United Nations Draft Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms condemns this type of persecution of human rights workers. That instrument establishes the right of all individuals "to the lawful exercise of his or her occupation or profession."( 26 )
C. THE RESPONSE OF THE COLOMBIAN STATE TO THE SITUATION FACED BY HUMAN RIGHTS WORKERS
74. The response of the entities of the Colombian State to the grave situation faced by human rights workers has shown some improvement in recent years but has, nonetheless, not always been adequate. As noted in Chapter IV, the Colombian Government and the State's public security forces have stepped up education and training in human rights with some favorable results.
75. However, some high level officials of the State have shown through their public statements a lack of commitment to the work of human rights organizations and the protection of human rights workers. Some of these statements may even increase the danger for human rights workers. The statements sometimes suggest that non-governmental human rights organizations collaborate with armed dissident groups or plan campaigns against the State's security forces. In the context of the political violence in Colombia, some members of the State's security forces or members of paramilitary groups might understand these statements to constitute a license to attack members of non-governmental human rights organizations.
76. Ex-President Samper made statements on several occasions indicating that human rights workers acted inappropriately in criticizing the Army. In an October 11, 1995 speech he announced that he would rather have military leaders fighting subversives in the mountains than in tribunals, being forced to respond to unfounded allegations from their enemies.
77. Several important military commanders have criticized human rights work more directly. Several months before the killings of CINEP members Mario Calderón and Elsa Constanza Alvarado, then Army Commander and subsequently Military Forces Commander Manuel José Bonett stated that the work of human rights groups "has done much harm [to the Army]." He specifically mentioned the work of CINEP and indicated that the accusations which the organization makes regarding human rights abuses form part of a campaign to discredit the Army.( 27 )
78. Several retired military officials who continue to enjoy significant influence over Colombian society have also made statements calling into question the work of human rights organizations. For example, in October, 1997, a group of influential retired generals began circulating a report on non-governmental human rights organizations. The report suggests that non-governmental human rights organizations have "decided to support the subversive process in Colombia through a systematic attack on the state of law and, at the same time, through direct or indirect support of the political and military war which is taking place."( 28 ). Neither the President nor other high-level officials in the Colombian Government have responded to these statements by reasserting the importance of human rights work before the Colombian public.
79. After the death of CINEP members Mario Calderón and Elsa Constanza Alvarado, Presidential Directive No. 11 was issued in July 1997 to all government authorities, including the public security forces. The directive reaffirmed the government's support for non-governmental human rights organizations and commanded all representatives of the State to recognize the legitimacy of their work. The directive also ordered all public servants to, "abstain from formulating false accusations or acting in a way which would undermine the right to defense, the due process of law and the honor of those being accused."
80. The Commission applauds the decision to issue this directive. Public and formal recognition of the legitimacy of human rights groups by high-level government officials may be one of the most effective means of protecting human rights workers.
81. Unfortunately, State entities may not have taken adequate steps to ensure effective observance of the directive. Some of the serious violent attacks as well as arbitrary criminal proceedings against human rights workers mentioned above occurred shortly after the directive was issued. The Commission nonetheless is confident that the entities of the Colombian State will strive to ensure its effective implementation in the future.
82. The Colombian State has also made important strides in the immediate protection of human rights workers who have received threats or who are otherwise believed to be in danger. In the past, such workers had no real means of petitioning for protection and support from the Colombian State when they faced danger. State entities sometimes tried to find methods for protecting these workers through established programs for the protection of witnesses in criminal proceedings or for the protection of demobilized guerrillas. However, these programs were not designed to meet the needs or to protect the rights of threatened human rights workers.
83. For example, the program for the protection of witnesses, operated through the Office of the Prosecutor General of the Nation, was directed toward providing protection for witnesses who had provided information about former colleagues in drug-trafficking, corruption and terrorism cases. In general, the threats were received from organized criminal organizations rather than from members of the State's own security forces or paramilitary groups, as is often the case with human rights workers.
84. This program also generally requires participants to leave their traditional place of residence and even to change their identities. The Commission has consistently maintained the position, in the various provisional measures proceedings taking place before the Inter-American Court, that human rights defenders should not be required to leave their work and their homes, families and friends in order to obtain protection. The Commission has expressed its belief that such a requirement allows those responsible for attacking human rights workers to succeed in removing or silencing human rights workers. The Commission has thus always firmly held that the State should provide protection to human rights defenders in their current communities adequate to allow them to continue their work in human rights.
85. Most of the protection programs also placed emphasis on personal protection in the form of armed bodyguards. These programs sought to assign members of the State's security forces to serve as bodyguards for human rights workers. The Commission found this solution to be unsatisfactory as well. Many human rights workers have a justified lack of trust in members of the State's security forces. In provisional measures proceedings before the Court, the Colombian State recognized that there exists a situation of tension between the public security forces and human rights workers which derives from situations in which members of the security forces have, upon occasion, committed abuses against human rights defenders.
86. In addition, human rights workers who seek protection often denounce that they are being subjected to threats or intimidation from members of the State's public security forces or from paramilitary groups acting in cooperation with the public security forces. In these cases, human rights workers understandably do not want to receive protection from the State entities which they believe to be persecuting them. This reluctance to accept members of the security forces as armed escorts receives further support in the fact that the bodyguards will, in that capacity, obtain access to personal information about the human rights workers they are assigned to protect. Access to this information by members of the State's security forces may compromise the safety of the protected human rights defenders.
87. For example, in the case of the Civic Committee for Human Rights for Meta, the State assigned armed bodyguards from the public security forces to protect Islena Rey Rodriguez. Ms. Rey complained that the guards followed her throughout the day and thus learned detailed information about her schedule, her meetings and her acquaintances. Yet, the guards did not appear to react when, on several occasions, unknown armed individuals approached her or her offices. The Civic Committee for Human Rights for Meta always asserted that members of the State's security forces in Villavicencio, working in cooperation with paramilitary groups, had executed Josué Giraldo and other members of the human rights organization. Ms. Rey thus felt that constant accompaniment by members of those security forces placed not only her, but also her acquaintances, in even greater danger.
88. In addition to pointing out difficulties with the forms of protection initially offered to human rights workers by the Colombian State, the Commission strongly suggested that the State develop and implement the alternative human rights defenders protection program set to be administered by the Ministry of the Interior. Law 199 of 1995 had provided for the establishment of a General Direction Special Administrative Unit for Human Rights (Dirección General Unidad Administrativa Especial para los Derechos Humanos) in that Ministry which would oversee several programs including a Program for the Protection of Witnesses and Persons Threatened in relation to Cases of Human Rights Violations (Programa de Protección a Testigos y Personas amenazadas en casos de violación de los derechos humanos). The necessary implementing regulations were approved in 1996.
89. However, the Program did not actually begin to operate until mid-1997. Even then, representatives of the Colombian State recognized that the program could not operate fully because it was underfunded and understaffed. The Program was forced to depend almost exclusively on other State entities and existing protection programs to obtain the necessary funds and protection devices, such as bulletproof vests. Non-governmental human rights organizations also had doubts about the types of programs which were planned.
90. Finally, in 1998, the Program has begun to serve as an effective tool for the protection of human rights workers. The Program has received new infusions of State funding. In addition, the Committee for Evaluation of Risks (Comité de Evaluación de Riesgos), created pursuant to the Program's implementing legislation, has begun to provide a rapid response mechanism for cases of danger involving human rights workers.
91. The Committee for Evaluation of Risks includes representatives of various State offices as well as several delegates for civil society. The committee is responsible for evaluating requests for protection assistance from human rights workers and others. Where the committee determines that a significant risk does exist, it proceeds to take actions to provide the necessary protection. In general, the committee must await a formal risk evaluation from the State's security forces in order to grant protection. However, in urgent cases, this requirement may be waived and protection may be provided pending the final risk evaluation.
92. The Commission has found that, in cases of threats and harassment which have come to its attention in recent months, the committee has provided a quick and useful response. The Commission understands that the committee has immediately taken up most, if not all, of the cases in which the Commission has recently requested the State to adopt precautionary measures.
93. The committee has provided information regarding the protection which it has arranged between August, 1997 and February, 1998. According to that information, the committee has issued 45 bulletproof vests and 10 cellular phones to be used for contacting designated officials in the case of emergency. The committee has also purchased and installed physical protection devices for the offices of human rights organizations. These devices include closed-circuit televisions, bulletproof doors, alarms, additional lighting, etc… These devices have been provided for eight offices belonging to four different human rights organizations. The committee has also offered safety-training courses for 50 persons.
94. Some of the difficulties, which originally arose as the committee sought to adopt protection programs, are now being worked out as well. For example, members of the State's security forces generally conduct risk evaluations, which serve as the basis for the assignment of protection. However, proper risk evaluations require human rights workers to provide detailed information about many aspects of their lives. As noted above, human rights workers frequently do not trust members of the State's security forces and are extremely reluctant to provide them with personal information for safety reasons. The committee has thus tried to accommodate the preferences of the persons to be protected regarding the entity which will carry out the risk evaluations. In at least one case, the committee arranged for members of the Technical Investigation Corps (Cuerpo Técnico de Investigaciones - "CTI") of the Office of the Prosecutor General of the Nation, rather than any of the public security forces, to conduct the risk evaluation.
95. On April 23, 1998, after the killing of human rights activist Eduardo Umaña, the Colombian Government took the additional step of agreeing to allow human rights workers to name their own bodyguards where armed personal protection is necessary. The individuals selected by human rights defenders to serve as their bodyguards will be formally hired and trained by the State for that purpose. The Government also announced at this juncture its decision to request review of military intelligence files by the Office of the Procurator General.
96. The Commission considers these steps taken in favor of protecting human rights defenders to be extremely positive. The Commission congratulates the Colombian State on its initiative in this regard and expresses its hope that these measures will lead to improvements in the human rights situation of human rights defenders.
97. The Commission nonetheless deems it necessary to make several observations regarding the State's reaction to the situation of human rights defenders. First, the State acted very slowly in adopting these concrete measures to protect human rights workers. Non-governmental human rights organizations petitioned repeatedly for the adoption of many of these measures for a period of years. These petitions were presented even more vigorously and insistently after the murders of Mario Calderón and Elsa Alvarado in May of 1997. Yet, the State did not adopt most of the important measures, such as the review of intelligence files, until one year later. Several important human rights defenders, including Jesús María Valle and Eduardo Umaña, were killed before the State acted.
98. In addition, many of the recent government proposals for addressing the situation of danger faced by human rights workers fail to place emphasis on the adequate criminal investigation of attacks against human rights workers and the sanction of the perpetrators. As the Inter-American Court has repeatedly noted in provisional measures proceedings, these investigations play a crucial role in protecting individuals in danger against attack.
99. As long as the perpetrators of violations against human rights defenders continue to act with impunity, human rights activists will continue to face a serious threat to their lives and physical integrity. To date, very few criminal investigations into acts of violence committed against human rights workers have reached successful conclusions. For example, the criminal proceeding relating to the murder of Civic Committee for Human Rights activist Josué Giraldo, while under the protection of the Commission's precautionary measures, has not advanced. Two years after the crime occurred, no formal suspects have been named and the criminal investigation has not moved past the preliminary investigation stage.
D. ATTACKS AGAINST STATE HUMAN RIGHTS OFFICIALS
100. State agents who work on the issue of human rights have themselves come under attack upon occasion. At the national level, members of the Unit for Human Rights of the Office of the Prosecutor General of the Nation have received threats. The Commission made reference in Chapter V to specific threats made against some of the members of this Unit. In addition, the Commission has received information indicating that functionaries at the Ministry of the Interior who work with displaced persons and other human rights issues have also been threatened. Some State human rights workers at the national levels have been forced to leave their positions or even to leave the country as a result of threats.
101. State agents involved in human rights work at the local level are even more vulnerable to attack. Local representatives of the Office of the Human Rights Ombudsman and local government liaisons ("personeros") have frequently been subjected to serious attacks on their lives and physical integrity.
102. Local representatives of the Office of the Human Rights Ombudsman receive complaints regarding human rights violations and carry out work for the protection and promotion of human rights throughout the country. Many of these representatives have been threatened. For example, local representatives of the Office have been threatened in the Urabá region of Antioquia and in Villavicencio, Department of Meta.
103. The personeros are local government officials charged with serving as the most immediate liaison between the government and the people. They are thus responsible, for example, for receiving from the population complaints regarding human rights abuses and channeling those complaints to the appropriate authorities
104. Between 1992 and March of 1996, eight personeros were killed. Since March 1996, at least five more personeros have been killed. Many other personeros have received threats. For example, on July 13, 1997, the personero for the municipality of San Calixto, Department of Norte de Santander, received a hand-written death threat. A paramilitary group calling itself Catatumbo Self-Defense Groups (Autodefensas del Catatumbo) signed the threat. The threat stated: "Personero: you have exactly eight days to leave Norte de Santander and especially San Calixto. Catatumbo Self-Defense Groups. Death to guerrilla supporters and collaborators, after you, many more will follow." Eight personeros in Antioquia have resigned out of fear for their lives.
105. In some areas of the country, the personeros serve as the only representative of the State. This is common, for example, in the Ariari region of the Department of Meta. In the municipality of Lejanías in this region, even the local police left after their headquarters were destroyed in a guerrilla attack. In these areas abandoned by the State, armed dissident groups have obtained significant control over some municipalities. Recently, paramilitary groups have more and more frequently obtained control over other areas. This battle for control over small regions and municipalities make the personeros vulnerable to attacks from both paramilitary groups and armed dissident groups. This conflict situation is aggravated even further by the fact that many local government officials in these areas, including personeros, belong to alternative political parties, such as the Patriotic Union. Members of the Patriotic Union have been treated by some members of the State's security forces and paramilitary groups as the political branch of the guerrilla movement. Members of the Patriotic Union have thus constantly been subjected to violent attacks.
106. In addition, because of the traditional control by armed dissident groups over many towns, members of the State's security forces often see the local personeros as representatives of the armed dissident groups. The personeros thus fear attacks from the State security forces as well. For example, the State's security forces have suggested that the local personero and members of the city council for Lejanías participated in the attack by armed dissident groups on the local police station in that town. After the police left the town, a local Army unit was installed. The commander of this Army unit stated publicly that, "the subversion is ahead of us because it has become involved in the very town."
107. The State has refused to provide protection for the personero for Lejanías, even in these circumstances. In response to a request from the Office of the Procurator General to provide protection for the personero, the DAS responded that, "it is humanly impossible to send missions of this nature [protection] . . . when it would be necessary to place DAS agents from this division in serious danger, because of the serious and permanent disturbance in the public order in the region."( 29 )
108. The prior personero for the municipality of El Castillo, in the Ariari region of Meta, was killed as part of this political conflict, and the current personero believes that her life is in danger. The continuing situation of danger faced by the personeros in this region is so great that they find it difficult to obtain life insurance policies.
109. Since 1995, the Office of the Prosecutor General of the Nation has been asked to transfer some or all of the cases involving murders of personeros to the Unit of Human Rights to allow for more effective investigation of the serious pattern of violence against these government representatives. The Commission understands that no decision has yet been taken as to whether this request will be granted.
110. The information possessed by the Commission indicates that State agents, particularly members of the State's security forces, are responsible for some of these attacks on the life and personal integrity of governmental human rights workers. The Commission has also received information indicating that paramilitary groups, acting in cooperation with State agents, have committed some of the attacks. In these cases, the State becomes responsible for extremely serious violations of Articles 4 and 5 of the Convention to the detriment of its own human rights functionaries.
111. In other cases, private actors and members of armed dissident groups have been responsible for threats and acts of violence against the State's human rights workers. However, the State may face some responsibility even in those cases. The State has not acted adequately to defend and protect its human rights workers. To the knowledge of the Commission, high-level officials have not spoken out aggressively in support of the State's threatened functionaries.( 30 ) The State has also failed, in most cases, to complete effective investigations into the threats and attacks on State human rights workers.
Based on the foregoing, the Commission makes the following recommendations to the Colombian State:
The State should continue and intensify education and dissemination efforts
in order to impress upon all State agents and all members of the Colombian citizenry
the importance and validity of the work of human rights defenders and human
rights organizations. To this end, the State should widely disseminate the new
United Nations Draft Declaration on the right and responsibility of individuals,
groups and organs of society to promote and protect universally recognized human
rights and fundamental freedoms.
The State should take measures to ensure that its security forces understand
that human rights activists and organizations may not be presumed to participate
in illegal and/or dissident activities based solely on their activities for
the promotion and protection of human rights. The State should ensure, in this
context, that its security forces fully understand that they may not presume
that human rights workers or organizations have engaged in criminal activity
or have directly participated in the armed conflict based on the exercise of
their protected rights to freedom of speech, assembly, etc….
The State should take all measures necessary to guarantee the safety of human
rights workers. The State should conduct serious, impartial and effective criminal
investigations into incidents of violence directed at human rights workers,
sanctioning the perpetrators, as a crucial means of preventing further violent
State agents should refrain from initiating legal proceedings intended to
harass human rights activists. Such actions are arbitrary and constitute abuses
of power and legal process.
The State should review the justifications and revise the procedures for intelligence-gathering
activities targeted at human rights defenders and their organizations based
on the analysis contained in this Chapter.
The State should provide a procedure for granting individuals access to intelligence
information gathered about them. This procedure should include a mechanism for
independent review by civilian authorities of decisions made by the security
forces to deny access to that information.
The Procurator General of the Nation should carefully review the intelligence
files made available to him to ensure the appropriateness and accuracy of the
information as well as to exercise supervision over the methods utilized to
obtain the information. The State’s security forces should cooperate fully with
the Procurator General as he carries out his review of intelligence files.
The State should continue to fully fund and implement its Program for the
Protection of witnesses and persons threatened in relation to cases of human
rights violations operating within the Ministry of the Interior.
State officials should refrain from making statements which suggest that non-governmental
human rights organizations and their members act improperly or illegally when
they engage in activities for the protection and promotion of human rights.
High-level State officials might consider the possibility of making clear and
unequivocal statements confirming the legitimacy and importance of the work
of non-governmental human rights defenders and their organizations.
The State should take special measures to ensure the safety of its own State functionaries who work in the area of human rights. These measures should include public statements of support for State human rights workers by the appropriate State authorites and the adequate investigation and sanction of the perpetrators of attacks against them.
( 1 ) Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted on December 9, 1998.
( 2 ) Draft Declaration, Art. 1.
( 3 ) See id., Art. 5.
( 4 ) See id., Art. 9(3).
( 5 ) Report of the United Nations High Commissioner for Human Rights, E/CN.4/1998/16, March 9, 1998, par. 113.
( 6 ) The competent State agencies have the right and the duty to prosecute individuals who participate in illegal activities. However, the Commission wishes to emphasize that the involvement of individuals in human rights work cannot alone serve as a basis for prosecuting them. Even if some of these persons were involved in illegal activities - outside of the context of their human rights work and the armed conflict - they could not be subjected to acts of violence under any circumstances.
( 7 ) Amnesty International subsequently held several follow-up conferences in other countries.
( 8 ) The Commission processes the case relating to threats and harassment of members of ASFADDES under number 11.764. The reference to this case in the present Chapter in no way constitutes a prejudgment of its admissibility or merits.
( 9 ) Based on these incidents, the Commission asked the Court to extend the provisional measures that it had ordered to include Ms. Cárdenas specifically. The President of the Court granted that petition on December 22, 1997. The Court in plenary ratified that decision on January 21, 1998. The State has provided information indicating that the National Police is currently providing protection to Ms. Cárdenas.
( 10 ) "Los Castaño vinculados al caso CINEP," El Tiempo, September 23, 1998.
( 11 ) "Los ‘paras’ implicados en crimen de Jesús M. Valle," El Tiempo, September 17, 1998.
( 12 ) The Commission has previously held that where individuals suffer reprisals for the exercise of a right, a violation of that right occurs. See IACHR, Report No. 3/98, Case 11.221 (Colombia), April 7, 1998, par. 76; IACHR, Report No. 32/96 (Guatemala), October 16, 1996, par. 62.
( 13 ) Press communique 2/99 of February 4, 1999. The Commission also urged the State to intervene decidedly and take all necessary steps to find these persons and protect their personal integrity as well as to investigate and prosecute those responsible. International law protects the right to personal integrity of every person and prohibits summary executions and hostage taking under any circumstance , both in times of peace and armed conflict. The mere political, professional or institutional afiliation of these human rights defenders in no way can justify depriving them of their life or liberty.
( 14 ) Order of the President of the Inter-American Court of Human Rights of April 24, 1996, Provisional Measures Requested by the Inter-American Commission on Human Rights, Serech y Saquic Case, ratified by the plenary of the Court in Order of the Inter-American Court of Human Rights of June 28, 1996, Provisional Measures Requested by the Inter-American Commission on Human Rights, Serech and Saquic Case.
( 15 ) Draft Declaration, Arts. 5(c), 9(4).
( 16 ) The Commission shares the opinion of the Colombian State that all persons, including members of the military, have the right to initiate legal actions. However, the Commission’s concern relates to the fact that, in some casees, members of the military and other State agents have initiated legal actions for the illegitimate purpose of intimidating, harassing human rights defenders. Such actions would constitute violations of human rights. According to complaints received by the Commission, the legal action initiated by General Bedoya is one of those cases. The State makes assurances that its domestic courts will administer justice and will sanction, if necessary, frivolous complaints. However, the Commission has received information indicating that the courts do not always act in this way when the complainants are high-level State officials and the defendants are human rights defenders.
( 17 ) These massacres are referenced in Chapter IV of this Report.
( 18 ) In the meeting held with high-level officials of the Colombian Armed Forces, including the commanders of the Army and of the Military Forces, during its on-site visit, the Commission asked these officials whether the Military Forces maintained intelligence files on human rights organizations. The Commission received a negative reply.
( 19 ) DAS provided a follow-up letter which sought to explain the invocation of this decree. In that letter, DAS suggested that it was necessary to carry out intelligence activities as a means of protection for the organization as well.
( 20 ) Political Constitution of Colombia, Art. 15.
( 21 ) The European Court of Human Rights has held that the similar provision set forth in the European Convention of Human Rights extends to telephone conversations, even though they are not expressly mentioned. The European Court also held that secret intelligence activities generally may not be carried out unless authorized by a judge, except in special circumstances where there exist other adequate mechanisms of control, which act independently from the security forces which seek to carry out the intelligence activities. See ECHR, Klass and others v. Germany, Judgment of September 6, 1978, Series A, vol. 28.
( 22 ) Political Constitution of Colombia, art. 15.
( 23 ) "La version oficial," El Tiempo, May 15, 1998.
( 24 ) At this time, the Commission also opened case number 11.690. The reference to the case in this Chapter in no way constitutes a prejudgment of its admissibility or merits.
( 25 ) The violations suffered by displaced persons are discussed further in Chapter VI.
( 26 ) See Draft Declaration, Article 11.
( 27 ) El Espectador, February 23, 1997.
( 28 ) Manuel Guerrero, Juan Salcedo and Adolfo Clavijo, Evaluación del Conflicto Interno Colombiano, Organizacines No Gubernamentales y Derechos Humanos, October 1997, p. 10.
( 29 ) See Letter from Lieutenant Coronel Miguel Evan Cure, Sectional Director of DAS for the Department of Meta, to Jesús Orlando Gómez López, Office of the Procurator General of the Nation, April 16, 1997.
( 30 ) In this connection, the State points out that Presidential Directive 07, of June 10, 1997, established that public pronouncements on this subject could only be issued by the Ministries of the Interior, Foreign Affairs and Justice and the Office of the Presidential Adviser for Human Rights. The purpose of this Directive was to introduce clarity and coherence into the governmental pronouncements regarding this issue. However, the existence of this Directive does not relieve the State, or perhaps more specifically the named entities, of the responsibility to make the relevant statements.