Submission for the Universal Periodic Review of Colombia

I.  Overview of the human rights situation

The government and the country’s then-largest guerilla group, the Revolutionary Armed Forces of Colombia (FARC), reached an agreement in 2016 to end their 52-year armed conflict. The agreement provides a historic opportunity to curb human rights abuses, but its justice component contains serious shortcomings that risk letting war criminals escape justice. The Special Jurisdiction for Peace, the judicial system created by the parties to try war-time abuses, has yet to be put in place. In June 2017, the UN mission in Colombia verified that the FARC had handed over its weapons and demobilized.

However, civilians continue to suffer serious abuses by the National Liberation Army (ELN) guerrillas and paramilitary successor groups that emerged after a demobilization process a decade ago. Violence associated with the conflict has forcibly displaced more than 7.7 million Colombians, generating one of the world’s largest populations of internally displaced persons (IDPs). Human rights defenders, trade unionists, journalists, indigenous and Afro-Colombian leaders, and other community activists face death threats and violence, mostly from guerrillas and successor groups. Perpetrators of violence against civilians are rarely held accountable.

II. Justice component of the peace accord

In its 2012 UPR, Colombia voluntarily pledged to “adopt all necessary measures to combat impunity of human rights violations.” Nonetheless, Human Rights Watch has very serious concerns that the justice provisions of the peace agreement with the FARC could result in confessed war criminals not receiving any meaningful punishment. When the government announced the final peace accord, we congratulated President Santos on certain improvements as compared to the initial agreement, and urged him to use the implementing legislation to address shortcomings that remained unsolved.[1] Unfortunately, the implementing legislation fails to address many of these issues while also introducing new flaws that undermine the possibility of achieving meaningful justice for atrocities committed during the armed conflict. The main shortcomings in the justice component of the peace accord include the following:

1. The accord provides that war criminals who fully and promptly confess their crimes be exempt from any time in prison and will be subject to modest and vaguely-defined “restrictions of rights and liberties”. While the Final Peace Agreement provided a little more clarity regarding these sanctions, there remain ambiguities and loopholes that should be addressed in the implementing legislation of the accord, to ensure that war criminals do not escape meaningful punishment.[2] Unfortunately, the “Statutory” bill on the Special Jurisdiction for Peace the government introduced in August 2017 —one of the key legislative proposals to implement the peace agreement— merely reiterates the language included in the final version of the peace accord and provides little clarity on sanctions regarding members of the armed forces.[3]
2. In April 2016, the Colombian congress passed Constitutional Amendment 1 of 2017. The amendment establishes a special definition of “command responsibility” for army soldiers that would require prosecutors to prove specific conditions —such as showing that the criminal actions were committed “within the area of responsibility assigned to the unit under [the commander’s] command”— that are not required under international law and are arguably inconsistent with the breadth of accountability international law seeks to uphold.[4]  The prosecutor of the International Criminal Court, Fatou Bensouda, has repeatedly raised concerns about this troubling definition of “command responsibility.”[5]
3. While the Final Peace Agreement provides that amnesties would not cover serious human rights violations, the “Amnesty Law” passed last December includes language that could allow people responsible for atrocities to benefit from amnesties. For example, the law allows those responsible for certain war crimes to benefit from amnesties if they are able to show that their crimes were not committed in a systematic manner.[6] However, Colombia’s obligation to investigate, and where appropriate prosecute, war crimes covers all war crimes, regardless of whether they are deemed to be “systematic.”
4. The “Statutory” bill, if passed, would suspend all criminal prosecutions of conflict-related abuses until the Special Jurisdiction for Peace is put in place. [7] While this may be reasonable for FARC guerrillas who are carrying out the reintegration process –provided they are subject to rigorous supervision– there is no equivalent reason to extend such accommodation to state agents who are not demobilizing and would have no practical difficulties in facing time in court. High-level officials from the Attorney General’s Office told Human Rights Watch in June 2017 that they estimated that the Special Jurisdiction for Peace would require the transfer of cases around the year 2022.[8] If this estimate is correct, the new provision in the “Statutory” bill would cause significant delays to already prolonged cases and could also reduce the evidence available at the Special Jurisdiction for Peace to test confessions or confront those accused who do not confess to any crimes.

Recommendations:

• Fix the serious flaws in the justice component of the peace accord with the FARC to ensure that those responsible for atrocities are appropriately investigated and prosecuted and receive punishments that are proportionate to the gravity of the crime.

III. Impunity of top commanders involved in “false positive” killings

From 2002 through 2008, army brigades across Colombia routinely executed civilians. Under pressure from superiors to show “positive” results and boost body counts in their war against guerrillas, soldiers and officers abducted victims or lured them to remote locations under false pretenses—such as promises of work—and killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. There has been a dramatic reduction in cases of alleged unlawful killings attributed to security forces since 2009, though credible reports of some new cases continue to emerge.

In its 2012 UPR, Colombia accepted recommendations to “continue its fight against impunity” and to ensure that “all allegations of human rights abuses by military personnel are investigated promptly and effectively.” Authorities have indeed made progress in prosecuting mid and low-level soldiers implicated in these killings. As of September 2017, the Attorney General’s Office had achieved convictions in cases against 1,200 mid and low-level soldiers, including against 11 army colonels.[9] (These include multiple convictions against the same individual in different cases.)

Authorities have failed, however, to prosecute senior army officers involved in the killings and instead have promoted many of them through the military ranks. In November 2016, the Senate approved promotions sought by the Defense Ministry of five officers against whom there is credible evidence of involvement in “false positives.”[10]

Gen. Rodríguez Barragan continued, at time of writing, to command the armed forces, despite strong evidence implicating him in false-positive killings.[11] Retired Gen. Jaime Alfonso Lasprilla Villamizar was Colombia’s Defense attaché in Washington between November 2015 and May 2017.[12] According to the Attorney General’s Office, he commanded a brigade likely responsible for the killing of 55 civilians between 2006 and 2007.[13]

In January, the Attorney General’s Office sent retired Gen. Henry William Torres Escalante to trial for his alleged role in the killing of two farmers in 2007. No progress has been achieved in prosecuting other cases against generals allegedly responsible for “false positive” killings. In March 2016, prosecutors summoned retired Gen. Mario Montoya Uribe, who commanded the army when killings peaked, for a hearing in which he was to be charged. The Attorney General’s Office later backtracked; despite compelling evidence implicating him in “false positives,” Montoya has yet to be charged.[14]

Recommendations:

• Vigorously investigate and prosecute commanders who are credibly alleged to bear criminal responsibility in “false positive” killings, including as a matter of “command responsibility,” as defined under international law.

IV. Killings of activists

In its 2012 UPR, Colombia accepted recommendations to ensure appropriate protection of human rights defenders operating in the country. However, reports of killings of community activists continue to be high. The office of the UN High Commissioner on Human Rights in Colombia reported that 60 rights defenders were killed in 2016, a significant increase from the 41 it had documented in 2015.[15] The office reported 29 cases between January and July 2017.[16]

Numerous abuses against rights activists have been committed in areas where FARC used to have a military presence. As FARC demobilizes, crime and activities by other armed groups have surged in many of these areas, especially where illegal mining and drug trafficking are profitable. Among the municipalities that had a FARC presence and with high levels of abuses against activists are Tumaco, in Nariño; El Tambo, in Cauca; and El Bagre, in Antioquia. According to the office of the UN High Commissioner on Human Rights in Colombia, more than 60 percent of the killings they reported in 2017 took place in areas where FARC previously had a military presence.[17]

Killings also frequently occur in areas where illegal economic activities, such as mining and drug production, are high. According to the office of the UN High Commissioner on Human Rights in Colombia, more than 90 percent of the killings they reported in 2016 and 2017 took place in such areas.[18]

Recommendations:

• Improve protection of activists, including by putting in place measures to increase the presence of the government institutions in areas formerly controlled by the FARC, and establishing additional measures of protection in areas where the Early Warning System in the human ombudsman’s office identifies potential risks and threats to activists;
• Prioritize criminal investigations on homicides of activists, human rights defenders, and other social leaders.

V. The humanitarian crisis of the Wayuu indigenous people

In its 2012 UPR, Colombia accepted recommendations to take measures to reduce infant mortality and to redouble efforts to improve the quality of life of vulnerable groups, in particular of indigenous and Afro-Colombian people.

Despite these commitments, the Wayuu indigenous people in the eastern province of La Guajira continue to suffer from high death rates due to malnutrition, particularly among children under 5 years old.

In December 2015, the Inter-American Commission of Human Rights (IACHR) requested the Colombian government to take precautionary measures, including immediate ones, to address the “emergency” of Wayuu children in Uribia, Manaure, Riohacha, and Maicao, four municipalities in La Guajira.[19] Following the IACHR ruling, Colombian high courts ordered the government to address the situation in multiple rulings.[20] In January 2017 the IACHR expanded the measures to cover pregnant women and those breastfeeding their children.[21]

On visits to La Guajira in July 2016 and June 2017, Human Rights Watch documented the crisis and shortcomings in the governments’ response. Our research indicates that the crisis is caused by extremely limited access to food and water compounded with high levels of poverty and equally limited access to basic services. According to Human Rights Watch interviews with local prosecutors, corruption and mismanagement plays a significant role in the limited public services offered in the province, including water.[22] Wayuu people’s struggle with food insecurity is due to high levels of poverty preventing them from purchasing sufficient quantities of food, as well as limited access to water that prevents the Wayuu from growing enough food to augment the shortfall.[23] Limitations in access to water for hygiene also affect peoples’ health, leading to diarrhea and other sickness which could further foster malnutrition.[24] Wayuu leaders also attribute partial blame for the crisis to the control exercised by former paramilitary groups over more profitable sectors of the local economy, as well as restrictions in food that can be obtained from Venezuela due to the humanitarian crisis in that country, both of which they say are driving up the cost of food.[25]

On February 21, 2017, the government of Colombia announced a plan to intervene to help provide water and health services in La Guajira.[26] But the number of malnutrition deaths continues to be high. According to official statistics, 23 children under age 5 died of malnutrition in La Guajira during the first half of 2017.[27] While this represents a significant decrease compared to the 38 cases reported by the government in the first six months of 2016, it is an increase compared to the average deaths in the first half of the previous three years and roughly doubles the cases in 2015, when the IACHR requested the precautionary measures.[28]

The Wayuu people are disproportionally affected by malnutrition. Between 2014 and 2016, deaths of indigenous children comprised over 85% of all malnutrition deaths in La Guajira, although, according to the latest official figures available, from 2014, Wayuu people represent 38% of the population in that province.[29] Nationwide, Wayuu children dying of malnutrition amount to roughly 12% of the deaths of children under 5, although Wayuu people represent less than 1% of the national population, according to the latest available figures, from 2014.[30]

Limited access to safe water has forced Wayuu people to rely on unsafe water sources, including jagüeys –unprotected dug wells where Wayuu people traditionally gather rain water–and wells and watermills with salty water, for consumption, cooking, hygiene, laundry and washing.[31] Reliance on these sources of water have led to communicable diseases, including diarrhea which further aggravates malnutrition.[32] Colombia’s National Institute for Health told Human Rights Watch that 11 indigenous children in La Guajira died of acute diarrhea in 2015 and 21 in 2016.[33]

Recommendations:

• Urgently put in place measures to ensure that Wayuu people in La Guajira are able to secure sufficient quantities of water and food.
•  Prioritize criminal and disciplinary investigations in cases of corruption in La Guajira, particularly those allegedly affecting the public supply of water and food.

VI. Forced displacement

Colombia accepted, in its last UPR, a recommendation to “intensify the Government presence in the rural areas whose communities are victims of abuses, such as forced displacement.” Nonetheless, forced displacement continues to be high in many areas of the country. For example, in Litoral de San Juan, in southern Chocó, the conflict between the ELN guerrillas and the Gaitanist-self Defenses of Colombia (AGC) continues to displace hundreds of families. In 2016, the number of people displaced represented 20 percent of the population.[34] 

Under Colombia’s Victims Law, municipal governments must provide victims with humanitarian assistance, including decent shelter and food, as soon as they ask to be registered as victims. The law provides that if a municipal government is unable to offer such aid, a provincial government or national agency must assist. Yet Human Rights Watch has documented serious shortcomings in government assistance to the displaced.[35]

The government’s implementation of land restitution under the 2011 Victims’ Law continues to move slowly. The law was enacted to restore millions of hectares of abandoned land and land stolen by armed groups and civilians to internally displaced Colombians. As of August 2017, the courts had issued rulings in just 5,400 of more than 106,000 claims received.[36]

Recommendations:

• Increase support from the national and provincial governments to municipalities that are not able to provide adequate housing and food to displaced people, as required under Colombian law.