THE RIGHTS OF INDIGENOUS PEOPLES
A. INTRODUCTION AND LEGAL FRAMEWORK
1. In its "Second Report on the Situation of Human Rights in Colombia," published in 1993, the Commission (the "Commission," the "IACHR" or the "Inter-American Commission") analyzed the situation of the 600,000 Colombians who are indigenous. According to the 1991 Political Constitution of Colombia, the indigenous communities are considered to be an invaluable national resource and a major cultural and social asset. These Colombian citizens are organized in 81 ethnic groups, speak 75 different languages, and occupy 25% of the national territory.
2. In its 1993 report, the Commission also analyzed the wide-ranging set of constitutional provisions that recognize and protect indigenous rights in Colombia, and in particular their rights to ethnic and cultural diversity, respect for their languages, bilingual education, respect for their cultural identity, special status for their community and resguardo lands, and their cultural heritage. In an important advance, the 1991 Constitution recognizes the right of the authorities of the indigenous peoples to exercise judicial functions within their territories, in accordance with their own rules and procedures.
3. The Constitution also provides for important rights to political participation, as exercised nationally and through local self-government. Nationally, two Senate seats have been set aside for legislators representing the indigenous peoples, and up to five seats in the lower chamber of the National Congress, by Constitutional provision.
4. At this time there exist predominantly indigenous organizations and political parties (including the Movimiento Indígena, the Alianza Social Indígena ("ASI"), and the Movimiento de Autoridades Indígenas), which have been elected to seats in the Congress and as mayors.
5. Law 21 of 1991 regulates the rights of the Colombian indigenous peoples, and ratifies and incorporates into domestic law International Labour Organization ("ILO") Convention 169, "Concerning Indigenous and Tribal Peoples in Independent Countries." At present several other laws and decrees to protect the indigenous peoples are in force.( ;1 )
6. The globalization of communications, the recognition of the value of the ecosystem in large geographic areas of Colombia, such as the Amazon basin and the biogeographic Chocó, and the increase in international trade all impact on the process whereby social, economic, and political relations are becoming internationalized. At the same time, these trends influence the law, giving rise to a growing body of legislation regulating international relations. The indigenous peoples of Colombia are also affected by these trends. They themselves form alliances and federations that transcend the limits of the national state, they negotiate with international corporations (e.g. Monsanto Pharmaceuticals Corporation), and they form entities to support international development agencies (such as the project advisory councils, for example, in the case of the Panamanian-Colombian Darién).( 2 )
B. RECENT ADVANCES IN THE RECOGNITION AND DEVELOPMENT OF THE HUMAN RIGHTS OF THE INDIGENOUS PEOPLES
7. The Colombian Government informed the Commission( 3 ) that Government policy, as set forth in the 1994-1998 National Development Plan, "The Social Leap Forward," was geared to consolidating the rights of indigenous peoples, guaranteeing their participation in national life, articulating existing institutions and spaces of coordination, and creating opportunities needed for attaining respect for their social and cultural particularities as well as for their unique organizational forms.
8. In developing this plan, on April 5, 1995, the National Council for Economic and Social Planning ("CONPES") approved the "Program for Ethnic Support and Strengthening of the Indigenous Peoples of Colombia 1995-1998," whose strategies involve: legal developments in terms of indigenous rights; recognition of their own systems of control and social regulation, including improvement in the dialogue between the indigenous jurisdiction and the national judicial system; adoption of territorial and sectoral support programs, with the indigenous communities; formation of the Indigenous Territorial Entities ("ETI"); continuation of the legalization and issuance of clear titles for indigenous territories; encouragement of knowledge and understanding by the state entities of indigenous values, uses, and customs; and the linkage of indigenous communities to government economic and social development programs.
9. The Commission calls attention to the broad reach granted by the Colombian Government to some of the rights included in the Commission's Proposed American Declaration on the Rights of Indigenous Peoples.( 4 ) The Proposed Declaration should be understood to provide guiding principles for inter-American progress in the area of indigenous rights. The Government of Colombia noted the scope that it assigns to some of these rights pursuant to its legal regime as follows:
The right to an identity as an indigenous people, which involves the right to be different and to be free from discrimination in relations with the State and society.
The right to territory, understood as sufficient habitat and space to reproduce culturally as a people.
The right to autonomy in the various spheres of life as a people, i.e. government, justice, education, health, social and economic reproduction, etc., in order to regulate ethnic reproduction and cultural changes.
The right to participation, in the various spheres of national life, and the right to prior consultation on the measures, plans, programs, and projects that may affect their ethnic identity, their territories, or the natural resources situated therein.
The right to development, in the sense of future development of their social groups, their culture, and improvement of their own quality of life, in accordance with their cultural and social systems and the life plans they devise or carry out as peoples, and their own development in terms of their intercultural relationship with national development.
10. In order to implement these principles, the Government of Colombia adopted a variety of legal instruments. These include Decree 1396/1996, creating the Commission on Human Rights of the Indigenous Peoples (under the Ministry of Interior), with broad representation of State agencies and indigenous organizations.
11. This decree calls on the ILO, the IACHR and the Bishops' Conference of Colombia to participate, pursuant to their mandates, on said Commission, which has broad powers to ensure the protection and promotion of the human rights of the indigenous communities and their members, and especially their rights to life, humane treatment, and liberty. One of the first initiatives of this new entity occurred in the wake of the massacre of 13 Coreguaje Indian teachers, in August of 1997, and the latent threats to the Coreguaje by the forces participating in the internal armed conflict. The IACHR notes that, until now, the efforts at cooperation between it and the Commission on Human Rights of the Indigenous Peoples has not been fluid, largely because the IACHR has not received timely and complete information regarding the issues to be treated by the indigenous rights commission and the meetings which take place. The IACHR expresses its strong interest in collaborating with the Commission on Human Rights of the Indigenous Peoples in the future.
12. Government policy in favor of indigenous rights is being implemented in regards to educational issues through Act 115 of 1996, by which the Ministry of Education develops a "National Ethnic Education Program," establishing the framework for teaching the languages and cultures of the various ethnic groups in their territories.
13. Plans begun in the early 1990s to facilitate the training of indigenous professionals are beginning to bear fruit. A total of 176 indigenous persons are currently enrolled at the National University in Bogotá. Other universities, such as those of Los Andes, Amazonía, Cauca, and Antioquia, have initiated specific programs on indigenous cultures and languages.
14. The Department of Indigenous Affairs of the Ministry of Interior has also carried out a program to support and ethnically strengthen the indigenous peoples of Colombia in the 1995-1998 period, covering ethnic education, improvement of health services, including traditional medicine, and the allocation of lands to the communities whose lands had not yet been recognized. The program also aims to protect the ecosystems and forests situated in indigenous territories.
15. The Colombian State has informed the Commission that the Government of President Pastrana has developed policies to address many of the problems faced by indigenous communities. Those policies are included in its National Development Plan 1998-2002. The plan relating to indigenous persons includes a commitment to promote traditional indigenous forms of conflict resolution and to expand the coverage of the special jurisdiction granted to indigenous communities in their territories. The Government has also made a commitment to clarify the respective authority of the State and the indigenous communities in relation to natural resources and the environment with an emphasis on prior consultation with the communities regarding exploration and exploitation of natural resources.
C. RECOGNITION BY THE STATE OF INDIGENOUS LANDS
16. Over the last several years, the Colombian State has taken steps toward the recognition of indigenous rights in relation to their traditional territories. The State has established policies and programs to allow for the formal recognition and registration of indigenous lands deserving of special protection, known as resguardos and reservas.
17. In 1993, there were 302 resguardos, totalling 26 million hectares, corresponding to 310,000 indigenous persons. In 1996, the number of resguardos had increased to 408, with a total area of almost 28 million hectares, corresponding to 80% of the indigenous population and covering 25% of the national territory. Of these lands, 73% are in the Amazon region. There are also 19 reservas indígenas which are home to 1,535 families.
18. In the Amazon region, 77.8% of the indigenous population has received legal recognition of their territories, in the Orinoco basin 85.6% have received recognition, and in the Pacific Coast region, 63%. In these three regions, 84,115 persons from indigenous communities have received property titles to 18,724,540 hectares.( 5 )
19. Many of these transfers are effectuated through collective land grants of undeveloped lands. As several Colombian laws have recognized that the indigenous peoples had the right to have the State recognize their full ownership over such areas, not as a discretional act of the State but rather as an obligation, these proceedings do not constitute mere transfers but rather should be seen as a process of "production of evidence establishing the prior ownership of the communities."( 6 )
20. Decree 1397 of 1996 created the National Commission on Indigenous Territories (under the Ministry of Agriculture and Rural Development), with broad state and indigenous representation, primarily to "coordinate the programming of the annual actions of constituting, expanding, restructuring, and securing clear title to resguardos, and the conversion of indigenous reserves as required, based on the needs of the indigenous communities."
D. DIFFICULTIES INVOLVED IN TITLING NEW LANDS
21. At this time, some 5 million hectares are in the process of being claimed by indigenous communities. The Commission has received information indicating that the general success in the recognition of indigenous lands is currently being hindered by a State bureaucratic problem. There are 80 cases in which the procedures for demarcating and assigning indigenous lands have been brought to a standstill by the demand for a Certificate of Preservation of the Environment, which is a legal requirement. The State itself fails to provide the certificate to the indigenous communities that are the petitioners in these claims. Since the Colombian Institute for Agrarian Reform ("INCORA" - the government institution in charge of land reform and adjudicating both collective and individual parcels) cannot complete its allocations without this certificate, the conveyances have been brought to a halt.
22. An additional problem is the existence of settlers and non-indigenous farms that have established themselves on indigenous lands, or lands claimed by indigenous groups, by de facto occupation or by titles that are forged or obtained by controversial means. Such land conflicts are often linked to the activities of paramilitary groups that seek to appropriate resguardo lands or lands in the process of being claimed. The penetration of indigenous lands by landowners or peasants from outside is aggravated by the fumigation of the coca crops, which leads growers to leave their lands and penetrate indigenous lands.
23. While some 30 million hectares of indigenous lands have been recognized, these claims and even the possession of lands already recognized are hindered and opposed in some cases by threats, harassment, and violence. Various actors are responsible for these acts of violence and threats, but frequently they are carried out by large landowners acting in cooperation with paramilitary groups and, in many cases, members or units of the Colombian State public security forces.
24. One case in point relates to the resguardo belonging to the Zenú indigenous community in San Andrés de Sotavento, in the Departments of Córdoba and Sucre. The Zenú community has waged a 70-year struggle for rights to territory, consisting of 83,000 hectares, granted to the community by the Spanish Crown in 1773. INCORA has been purchasing land from landowners, totalling 15,000 hectares to date. However, the landowners in the area have sought to maintain control over the land through violent attacks. Paramilitary groups are often utilized to carry out these aggressions. According to members of the indigenous community, the attacks by the paramilitaries are often permitted by the security forces in the area. For example, vehicles with tinted windows which are recognized by all as belonging to paramilitaries in the region pass by police posts without difficulty.
25. In 1994 the chief community leader, or cacique, was assassinated along with three other indigenous leaders. In 1996 one indigenous leader, the secretary of the Cabildo Mayor (local indigenous government) and three other members of the indigenous community, were also killed. These last three were taken from their homes and shot in the town square. On June 3, 1996, the Junta Central, or governing board, for the Cabildo of San Andrés de Sotavento received death threats. Three months later Alberto Chito Malo, a leader of that cabildo and a civil engineer, was assassinated; he had been looking into the death of his brother two years earlier, as well as irregularities in the transfer of monies from the national treasury to the Zenú resguardo.
26. The National Indigenous Organization of Colombia ("ONIC") attributes these assassinations to paramilitary groups in the area who seek to stop the restitution of the resguardo to its indigenous owners. The Office of the Human Rights Ombudsman has also confirmed that the indigenous community has been the object of attacks by paramilitary groups. Indigenous leaders and one national senator blame "landowners and the political leaders in the area."( 7 )
27. In 1996 and 1997, the IACHR asked government authorities to adopt precautionary measures on behalf of the Zenú indigenous leaders. Nonetheless, the attacks and threats against the Zenú indigenous community continued, as well as forced searches of their homes and interruption of their ceremonies by paramilitary forces and other persons who identified themselves as members of the Colombian police and army. On November 3, 1997, the corpses of two leaders who had been kidnapped a few days earlier were found. A third member of the community was disappeared at the end of 1997. As a result of the continued violence, the Commission was forced to petition the Inter-American Court of Human Rights for the adoption of provisional measures to force the Colombian State to protect the leaders of the Zenú indigenous community. The Court ordered the adoption of provisional measures on June 19, 1998.( 8 )
E. NATURAL RESOURCES AND INDIGENOUS TERRITORIAL RIGHTS
28. Colombian legislation guarantees the indigenous communities the right to the usufruct of the renewable natural resources found in their territories. With the participation and agreement of each community, indigenous inspectors of the natural resources have been appointed in the resguardos since 1987.
29. The rights of the indigenous peoples over their lands are limited by various constitutional principles, in particular with respect to the resources in the subsoil, which are owned by the State. However, consultation with the indigenous peoples must be carried out before any exploitation of those resources takes place, as provided by ILO Convention 169 and Colombian law.
30. The Colombian Constitution provides that "the exploitation of natural resources in the indigenous territories shall be without detriment to the cultural, social, and economic integrity of the indigenous communities. In the decisions adopted with respect to that exploitation, the Government shall encourage the participation of the representatives of the respective communities."( 9 )
31. In Colombia, the mineral resources of the subsoil belong to the Nation, but the area of the resguardos is considered an indigenous mining reserve (reserva minera indígena).( 10 ) The indigenous peoples can enter into agreements with third persons regarding the development of activities involving the exploration and exploitation of mineral resources, and their authorities have the right to indicate, within the indigenous mining zones, places that may not be subject to exploration or exploitation because of their social or religious significance.( 11 )
32. The Commission has received complaints alleging that the provisions regarding natural resources and indigenous territorial rights are not always fully respected. The Commission is currently processing an individual petition regarding the rights of the U´wa indigenous community in relation to exploration which international oil companies, in cooperation with the Colombian State oil company (ECOPETROL), seek to carry out on their traditional lands.( 12 ) The indigenous community alleges that it was not properly consulted when ECOPETROL granted a license to the international oil companies to begin exploration of the area with a view to oil drilling in the near future. The community also alleges that, if proper consultations were carried out, it would become clear that oil drilling cannot take place on their land without causing irreparable damage to their religious, economic and cultural identity and rights. The case has become more complicated as a result of serious delays in the process for defining the status of the traditional U´wa territories. These delays are apparently related, at least in part, to the debate over oil exploitation on the U´wa land. Both the Colombian State and the petitioners have made known to the Commission their interest in seeking a friendly settlement of this case.
F. MEGAPROJECTS AND THEIR IMPACT ON INDIGENOUS LANDS AND CULTURES
33. According to indigenous leaders,( 13 ) the magnitude of several megaprojects which are planned and which would affect indigenous territories poses a special problem. These megaprojects place at risk the great natural wealth contained in indigenous territories. Of the 30 million hectares of indigenous lands, approximately 6 million are rich in minerals, oil, and timber forests, many of them in fragile jungle lands and marshlands. Infrastructure megaprojects such as those being planned for the Chocó, the Darién, and the inter-oceanic canal entail hazards that could prove fatal to the survival of the indigenous peoples that live in those areas.
34. In this context, the indigenous leaders pointed out the importance of the successful effort to halt temporarily the opening of a highway between Colombia and Panama that would complete the Pan American Highway at a great cost to the environment and the native indigenous and Afro-American populations that inhabit the area. However, the indigenous leaders indicated to the Commission that they believed that this and other projects continue to pose a serious potential risk to indigenous lands and peoples.
35. In the Colombian Amazon, where the indigenous peoples cover one-third of the area, i.e. a basin of 406,000 square kilometers (and where 180,000 square kilometers have been transferred to them in recent years), they must contend not only with the fragile plant life ecology in the face of these large-scale infrastructure and development projects, but also with their own low population density. In the Colombian Amazon, 54% of the 52 ethnic groups have a population of less than 500, only 28% a population greater than 1,000 members, and only six ethnic groups with a population of over 5,000.
G. THE IMPACT OF POLITICAL VIOLENCE ON THE INDIGENOUS COMMUNITIES
36. Indigenous communities and families are particularly hard-hit by the violence afflicting Colombia. More than 500 indigenous leaders were assassinated in the last 25 years for political reasons. Non-governmental organizations reported that 25 indigenous persons were killed between October, 1996 and September, 1997 alone. This violence comes from the State´s public security forces, paramilitary groups, armed dissident groups, drug traffickers and common criminals. Threats and illegal attempts by armed dissident groups and paramilitaries to recruit indigenous youths into armed service are also common.( 14 ) Political violence in Colombia is concentrated in the rural areas, particularly those which are most distant, which is generally where the indigenous resguardos are to be found.
37. The attacks tend to displace the indigenous populations from their settlements, leading them to increase the numbers of internal refugees. Villages, peoples, and groups of families have been displaced from their lands, oftentimes losing their cultural and social integrity and their habitat. As a result of this violence, some indigenous groups have sought to declare their neutrality and their unwillingness to collaborate with any of the armed actors, including the Army. This, too, has caused violent reprisals. In the words of indigenous leaders:
we are facing these five fronts, and neutrality doesn't always work. We tell all of the groups 'no' to recruitment. So long as we are autonomous we can make ourselves respected, but we don't have the strength to impede the action of illegal groups.
38. Indigenous leaders are also assassinated for the purpose of intimidating the indigenous communities and taking over their lands. From 1990 to 1996, more than 87 indigenous leaders have been assassinated. The violence is particularly tragic in the Urabá region, in the Departments of Chocó and Antioquia.
39. The indigenous leaders argue that, of these actions, the most devastating are those of the paramilitary groups, since not only do the paramilitaries attack the indigenous communities accusing them of supporting or trading with the guerrillas, but they are also interested in taking their lands. In the Department of Córdoba, approximately 30 indigenous leaders were murdered in the 1995-1996 period, apparently killed by paramilitary groups to appropriate their lands. The relation, sometimes close, between paramilitary groups and State public security forces is analyzed in Chapter IV of this Report.
40. According to information received by the Commission, in May 1997 Misael Domico, and in October 1997 Edgar Domico, Mario Domingo Domico, and David Domico, leaders and teachers in the Embera Katío community of Aguas Claras, in the municipality of Mutatá, Department of Antioquia, were kidnapped by members of the paramilitary organization Autodefensas Campesinas de Córdoba y Urabá ("ACCU"). To date there has been no news as to their whereabouts.( 15 )
41. The Commission has also received information indicating that paramilitary groups have made known their presence in Caloto and other municipalities in the north of the Department of Cauca. They have threatened members of the Paez indigenous community residing in that area. The presence of the paramilitary groups was denounced in an official report prepared by the National Police. However, the authorities, particularly from the Office of the Governor of the Department, have refused to act, arguing that there does not exist adequate proof of the presence of the paramilitary groups. The Commission wishes to highlight the fact that this situation is taking place in an area very near the scene of the massacre known as "Caloto" or "El Nilo". That massacre was carried out by paramilitaries in coordination with State security forces. The Colombian State has accepted its international responsibility in relation to that massacre in the context of a procedure for friendly settlement of the case processed by the Commission under the number 11.101. Based on its analysis of the new incidents, on January 7, 1998, the Commission requested that the State adopt precautionary measures to protect 12 members of the Paez community in Caloto.
42. The civilian population of the municipality of El Carmen de Atrato, Department of Chocó, was subjected to threats by paramilitary groups who accused them of collaborating with the guerrillas. As a result, several were murdered and many were forced to flee their lands and seek refuge.
43. In the Department of Guaviare, in the Amazon region, the nomadic Nukak-Makú in recent years saw half of their population wiped out, with only 370 survivors alive today.
44. In addition, the indigenous communities suffer the infiltration of guerrillas onto their lands, placing them at risk, whether due to their own presence and action, or due to military and paramilitary actions against them. The guerrillas are also a cause of direct violations.
45. Credible information received by the Commission indicates that on August 19, 1996, the "Cacique Calarcá Guerrilla Front" of the National Liberation Army ("ELN") guerrilla group assassinated and took credit for the death of an indigenous mayor, accusing him of financing paramilitary groups. The victim had previously assured and demonstrated to the municipal council that these accusations were false. This case is that of the assassination of Marden Arnulfo Betacur Conda, mayor and leader of the Paez indigenous community, former governor of the resguardo of Jambaló, and a director of the Regional Indigenous Council of the Cauca ("CRIC").( 16 )
46. The Commission discussed, in Chapter IV of this Report, the international responsibilities of the different actors for these types of violent acts, pursuant to human rights and international humanitarian law. The Commission nonetheless considers it important to repeat here that the State incurs responsibility for violations of the right to life and the right to physical integrity, guaranteed in Articles 4 and 5 of the American Convention, when State agents or paramilitary groups acting with the assistance or tolerance of State agents commit these acts. These attacks against civilians also constitute violations of humanitarian law when committed by any of the actors in the armed conflict.
47. The Commission notes that the indigenous peoples can and want to be part of any peace process. In fact, in some cases indigenous organizations have protested that they have been left out of conversations between the Government and armed dissident groups, even when they address, in part, regions with indigenous territories, and in which the indigenous peoples have developed projects and plans of their own to facilitate local peace.
H. THE CREATION OF "SPECIAL PUBLIC ORDER ZONES" AND HUMAN RIGHTS
48. In its struggle against drug trafficking and armed dissident groups, the Colombian State has used the measure of establishing "special public order zones" for the stated purpose of facilitating necessary police and military operations. The creation of these "zones" has facilitated violations that affect indigenous communities.( 17 )
49. One striking case involves several members of the community of Arhuaca, accused of supporting the ELN guerrillas, who were kidnapped, tortured, and three of them assassinated by State public security forces. While the administrative investigations pointed clearly to State agents as the perpetrators, the officers and soldiers responsible for these violations were given the option of retiring from the military. The accused were declared innocent in the criminal courts.( 18 )
I. ILLICIT CROPS AND THEIR IMPACT ON THE INDIGENOUS PEOPLES
50. For the indigenous peoples of Colombia, law enforcement activities against illicit crops (especially coca, poppy, and marijuana) and their trafficking has special consequences entailing increased violence, invasion of indigenous territories by settlers who grow coca, and the loss of cultural identity and deterioration of their unique organizations and authorities. The impact is accentuated in Colombia, as the production of illicit crops is not an extension of ancestral indigenous commercial practices, but rather a relatively new phenomenon.
51. The Commission has received information indicating that although some indigenous persons appear to be involved directly with illicit crops (e.g. poppy in Cauca, coca in the Orinoco basin and middle Amazon region), in other cases the drug trade affects them more than it involves them. One study found that "41.12% of the [Colombian] indigenous are affected by such crops, and in some cases involved in them."( 19 ) A total of 17.01% of the illicit crops in Colombia are located in indigenous resguardos or reservas, i.e. within legally-recognized indigenous territories: 18.95% of the poppy crops; 71.43% of the marijuana crops; and 10.8% of the coca crops.( 20 )
52. The Commission recognizes that the State has full rights to combat the production and trafficking of narcotics. However, the Commission is concerned that, according to information provided by indigenous groups, the actions taken in this struggle have an adverse effect on the Colombian indigenous population. The Commission has received complaints which allege that chemical fumigation of illicit crops has caused harm to the physical health of the indigenous population, as well as to animals and legitimate crops. It has also been alleged that the agents aboard aircraft used in the fumigation efforts often fire indiscriminately before flying down to the level necessary for the dispersion of the chemicals. On the other hand, the indigenous groups have denounced the lack of programs and assistance which would allow for the development of alternative legal crops.
53. The indigenous communities have also alleged that the fight against drugs has resulted in the militarization of many areas where illegal crops are grown and where significant indigenous populations also reside. This militarization creates an environment propitious for violations of the human rights of the indigenous inhabitants. This problem is aggravated by the fact that the Colombian government and military associate the production and trafficking of narcotics with the guerrilla movement. As a result, the areas where illegal crops are grown have been converted into war zones. This situation affects negatively the indigenous persons who reside in these areas, including those who produce narcotics as well as those who do not. These persons are frequently accused of collaborating with armed dissident groups.
54. In its visit to Puerto Asís, Department of Putumayo, the Commission had the opportunity to interview indigenous leaders and members of the indigenous communities in that area who state that they are especially exposed to the different types of violence since the economy of the region is based primarily on drug-trafficking.
55. The Commission also received a situation report from the Regional Indigenous Organization for Putumayo (Organización Zonal Indígena de Putumayo - "OZIP") that included the same types of complaints as those noted by the indigenous in the rest of the country, but in addition reflected the particularly severe internal displacement of the indigenous population to other areas, due to the growing invasion of settlers, especially those involved in growing illicit crops, guerrilla activities and the repression against those activities.
56. The Commission received reports of leaders, who were accused of collaborating with the guerrillas, being threatened and tortured by paramilitary groups and State security forces. The reports indicate that such repression involves troops from both sides of the border, since Puerto Asís is very close to the border between Colombia and Ecuador.
57. The Commission was able to confirm the profound uncertainty and risks to which the indigenous who live in the areas with extensive illicit crops are exposed, due to the prevalent and uncontrolled violence that occurs in relation to economies of this type, and to the parallel incursions of guerrilla and paramilitary forces pursuing their own aims, which take advantage of the special situation in these areas. The Commission is concerned that the special rights of indigenous persons, as well as basic human rights such as the right to life and physical integrity, are not receiving full protection under these circumstances.
Based on the foregoing, the Commission makes the following recommendations to the Colombian State:
The State should continue to take special measures to protect the life and physical integrity of indigenous persons. These measures should include the investigation and sanction of the perpetrators of acts of violence against indigenous persons.
The State should take appropriate measures to ensure that the process of legal demarcation, recognition and granting title to land and use of natural resources to indigenous communities is not hindered or delayed by bureaucratic difficulties.
The State should ensure that indigenous communities enjoy effective control over lands and territories designated as indigenous territories, resguardos or other community lands without interference by individuals who seek to maintain or to take control over these territories through violence or any other means in detriment of the rights of the indigenous peoples.
The State should ensure that the exploitation of natural resources found at indigenous lands should be preceded by appropriate consultations with and, to the extent legally required, consent from the affected indigenous communities. The State should also ensure that such exploitation does not cause irreparable harm to the religious, economic or cultural identity and rights of the indigenous communities.
The State should ensure that major development projects in or near indigenous lands or areas of indigenous population, carried out after complying with the requirements of the law, do not cause irreparable harm to the religious, economic or cultural identity and rights of indigenous communities.
The State should take special measures, in connection with its actions against illicit drug trafficking and production, to ensure the physical safety of indigenous persons and to respect their other rights, land, property, culture and organization.
( 1 ) In the above-noted 1993 report, the Commission develops its analysis of the legislation and institutions that recognize and protect indigenous rights, as well as the difficulties in ensuring the compatibility of the powers of the territorial indigenous authorities and of the indigenous "cabildos" (local indigenous government) with the municipal authorities elected through the political party structure.
( 2 ) Julio Tresierra, Derechos de los Pueblos Indígenas sobre los recursos naturales del bosque tropical, Report to the Inter-American Development Bank, 1997, at 7.
( 3 ) Note No. 1353 from the Ministry of Foreign Relations, December 30, 1997.
( 4 ) Adopted by the IACHR in February 1997. The text of the draft declaration is included in Chapter IV of the Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95, Doc. 7 rev., March 14, 1997.
( 5 ) Tresierra, at 8.
( 6 ) Roque Roldán, El problema de la legalidad de la Tenencia de la Tierra y el Manejo de los Recursos en Regiones de la selva Tropical de Sudamérica, 1993, cited by Tresierra.
( 7 ) Comisión Colombiana de Juristas, Colombia, Derechos Humanos y Derechos Humanitario: 1996, at 26.
( 8 ) The individual case in relation to the Zenú indigenous community is processed by the Commission under the number 11.858. The reference to the case in this Chapter in no manner implies a prejudgment of its admissibility or merits.
( 9 ) Political Constitution of Colombia, Art. 330.
( 10 ) Decree 710 of 1990, Art. 1.
( 11 )Id., art. 130; Tresierra, at. 13.
( 12 ) This petition is being processed by the Commission as Case No. 11.754. The reference to the case in this Chapter in no manner constitutes a prejudgment of the admissibility or the merits of the petition.
( 13 ) Interview with ONIC leaders, December 17, 1997.
( 14 ) The Commission notes that the law in Colombia provides that members of indigenous communities are not required to serve in the military.
( 15 ) Amnesty International, May 30 and October 27, 1997.
( 16 ) Letters from CRIC, the Cabildos Indígenas of northern Cauca, and the Alianza Social Indígena, August 20, 1996 and September 10, 1996; Communiqué from the Frente Cacique Calarcá, Ejército de Liberación Nacional, undated.
( 17 ) United Nations Commission on Human Rights, Report of the Rapporteur for the Mission in Colombia on Implementation of the Program of Action for the third decade of the struggle against racism and racial segregation, E/CN 4199/71, ADD 1. I.2.
( 18 ) United Nations Human Rights Committee, Decision 612/1995, CCPR/C/60/D/612/1995.
( 19 ) C.S. Perafan-Simmonds, Impacto de cultivos ilícitos en Pueblos Indígenas de Colombia, Indigenous Peoples and Community Development Unit, Department of Social Programs and Sustainable Development, Inter-American Development Bank, November 17, 1997.
( 20 ) Id.