Amicus brief on killings of human rights defenders in Colombia

José Fernando Reyes Cuartas

Colombian Constitutional Court

Palace of Justice

Bogotá, D.C. – COLOMBIA

Case: T8018193, 11001310304520200002500

Subject: Human Rights Watch Amicus Curiae on abuses against human rights defenders

José Miguel Vivanco, on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34th floor, New York, United States, presents this amicus brief to the Honorable Constitutional Court of Colombia in the case T8018193, 11001310304520200002500 concerning ongoing abuses against human rights defenders and social leaders in Colombia. We respectfully state:

1. Purpose and Summary of this Submission

Human Rights Watch respectfully requests that the Colombian Constitutional Court accept this submission and consider its factual and legal arguments, which are relevant to the court’s assessment of this case.  

Human Rights Watch regularly monitors the human rights situation in Colombia, including killings and other abuses against human rights defenders and social leaders in the country. Most recently, in February 2021, Human Rights Watch published a comprehensive report documenting killings of human rights defenders in the country in the last five years, as well as serious shortcomings in government efforts to prevent the killings, protect defenders, and hold those responsible to account. The 127-page report, “Left Undefended: Killings of Rights Defenders in Colombia’s Remote Communities,” is attached to this amicus brief.

The high number of killings and abuses against human rights defenders in Colombia raise very serious concerns. Given the significant shortcomings in the government’s response to this issue, we support the petitioners’ request for this court to engage in periodic monitoring of the situation.

This brief is structured as follows: Section II provides an overview of killings and other abuses against human rights defenders in Colombia. Section III summarizes the applicable international standards. Section IV provides an overview of action by the Colombian government to prevent abuses and protect human rights defenders. Similarly, section V examines efforts to hold those responsible for these abuses to account.  

2. Killings of Human Rights Defenders in Colombia

Colombia has had the highest number of human rights defenders killed since 2016 in any country in Latin America.[1]

Authorities’ failure to exercise effective control over many areas previously controlled by the Revolutionary Armed Forces of Colombia (FARC) has in large part enabled the violence against human rights defenders. The government has deployed the military to many parts of the country but has failed simultaneously to strengthen the justice system and ensure adequate access to economic and educational opportunities and public services.[2] Human Rights Watch’s research shows that these failures have significantly limited government efforts to undermine armed groups’ power and prevent human rights abuses.[3]

The limited state presence in many, mostly rural, areas means social organizations—including Neighborhood Action Committees, Afro-Colombian community councils, and Indigenous groups—often play a prominent role in performing tasks typically assigned to local government officials, including protecting at-risk populations and promoting government plans. This increases the visibility of the social organizations’ leaders, including human rights defenders, exposing them to risks.

Armed groups often oppress human rights defenders, trying to use them to impose “rules” within communities. That increases the possibility that groups will target them for real or perceived non-compliance or for allegedly supporting an opposing party.

Support by human rights defenders for some initiatives started under the peace accord has also placed them at risk. Human rights defenders have been killed for supporting or participating in projects to replace coca crops—the raw material of cocaine—with food crops. Many peasants in Colombia grow coca because it is their only profitable crop, given weak local food markets, inadequate roads to transport their products for sale, and lack of formal land titles. Government plans to give peasants economic and technical support for crop substitution have at times been implemented slowly and face fierce opposition by armed groups, who may use violence and threats to force communities to continue growing coca.

More than 450 human rights defenders have been killed nationwide in Colombia since 2016, according to the UN Office of the High Commissioner for Human Rights (OHCHR).[4] Despite a peace process with the FARC, reported killings have increased as armed groups have stepped into the breach left by the FARC, fighting for control over territory, engaging in illegal activities, and using violence against civilians to enforce their control.

The work of rights defenders, such as opposing the presence of armed groups or reporting abuses, has sometimes made them targets. Some have been killed during broader attacks by armed groups against civilians. OHCHR documented:

• 41 such killings in 2015
• 61 in 2016
• 84 in 2017
• 115 in 2018
• 108 in 2019[5]
• 90 in 2020 and was verifying 25 others[6]

Other sources report even higher figures. The Human Rights Ombudsperson’s Office has documented over 700 cases since 2016, while Somos Defensores, a rights group, has reported over 600.[7] Both the Human Rights Ombudsperson’s Office and Somos Defensores report an increase in killings of human rights defenders between 2019 and 2020.[8]  The Human Rights Ombudsperson’s Office has documented 182 killings of human rights defenders ocurring in 2020—the highest figure at least since 2016.[9]

As of January 2021, the main categories of human rights defenders killed in that period, as identified by OHCHR, include the following:[10]

• Communal leaders: 130 cases
• Community leaders: 67 cases
• Indigenous leaders: 69 cases
• Peasant leaders: 33 cases
• Afro-Colombian leaders: 18 cases
• Trade unionists: 12 cases
• Victims’ rights activists: 10 cases

Indigenous leaders are disproportionately represented among those killed. According to OHCHR, approximately 16 percent of all the human rights defenders killed between 2016 and January 2021 were Indigenous leaders. Only 4.4 percent of Colombia’s population is estimated to be Indigenous.[11]

Data from OHCHR and the Human Rights Ombudsperson’s Office suggests that defending human rights homicide in Colombia may put women at a heightened risk of violence. Between 10 and 15 percent of the human rights defenders killed in Colombia since 2016 were women.[12] Comparatively, women account for roughly 8 percent of the total number of homicides in the country between 2016 and November 2020.[13]

These killings have been most common in areas with lack of state presence, and high levels of poverty and illegal economies, including drug trafficking and production, illegal mining, extortion, illegal logging, and smuggling.[14]

Colombian authorities have yet to identify those responsible for many cases of killings of human rights defenders (see section V below). However, based on progress achieved in investigations and prosecutions of 263 cases of killings occurring between 2016 and March 2021 and documented by OHCHR, the Attorney General’s Office believes that armed groups were responsible for the majority of those cases, 181.[15]

Authorities believed public security forces were the perpetrators in another 10 cases (including 7 under investigation in the military justice system), and said that evidence in 78 others points to people who did not have links to armed groups or who acted in their “own interest.”[16]

Cases involving armed groups allegedly include[17]:

• FARC dissident groups:  69 cases
• Small armed groups (known in Colombia as “groups of ordinary organized crime,” or “type C” groups):  35 cases
• Gaitanist Self-Defense Forces of Colombia (Autodefensas Gaitanistas de Colombia, AGC), or Gulf Clan: 25 cases
• National Liberation Army (Ejército de Liberación Nacional, ELN): 22 cases
• Popular Liberation Army (Ejército Popular de Liberación, EPL): 12 cases
• Caparros: 7 cases
• Organized crime groups (known in Colombia as “organized criminal organizations” or “type B” groups):  11 cases

Human rights defenders have also faced other abuses, in addition to killings. The Human Rights Ombudsperson’s Office has registered 2,829 threats against human rights defenders occurring between January 2016 and June 2020, including 859 against women human rights defenders.[18] Most of them were death threats.[19] At least three women human rights defenders have been raped since 2016, according to OHCHR and the Human Rights Ombudsperson’s Office.[20]  

3. Applicable International Law

Colombia is a party to core international human rights treaties that protect the rights to life, to physical integrity, and to liberty, among others.[21]

Governments are obligated to protect these rights effectively, including by taking adequate preventive measures to protect individuals from reasonably foreseeable threats to their lives from non-state actors, including criminals, organized crime, and armed groups.[22] As part of this obligation, governments need to disband irregular armed groups that are responsible for deprivations of life.[23]

Governments are also obligated to ensure effective remedies for victims of violations of human rights.[24] This includes effectively, promptly, thoroughly and impartially investigating violations and holding those responsible for abuses to account as well as ensuring access to justice and reparations for the victims.[25]

While states’ obligations apply to all people within their jurisdiction, the Inter-American Court of Human Rights has recognized increased duties to protect the life and personal integrity of human rights defenders and ensure their ability to do their work, particularly taking into account their heightened vulnerability as a result of their work.[26] The Inter-American Commission on Human Rights has called on states to establish an “integral protection policy” for human rights defenders and has mentioned that such a policy should be developed with the participation of civil society groups, address the situation in a comprehensive and inter-institutional manner, and respond to the specific risks confronted by each defender, taking into account the characteristics of each defender’s work.[27]

The disproportionate impact of the killings of human rights defenders on Indigenous people in Colombia also raises concerns about de facto discrimination under international human rights law, which guarantees the right to equal treatment and protection under law.[28] The International Convention on the Elimination of All Forms of Racial Discrimination, which Colombia has ratified, prohibits policies and practices that have either the purpose or effect of restricting rights on the basis of ethnicity.[29]

In Colombia, international humanitarian law applies to hostilities between government forces and some non-state armed groups. The intensity of the hostilities and the level of organization of specific armed groups—including the ELN, EPL, AGC, and former fighters of the FARC’s Eastern Bloc—rise to the level of a non-international armed conflict.[30]

Applicable law includes Common Article 3 to the Geneva Conventions of 1949 and other treaty and customary laws of war, which apply to non-state armed groups as well as national armed forces. International human rights law also applies at all times, including during armed conflict.[31]

During armed conflicts, all parties to the conflict, whether state forces or non-state armed groups, are bound by applicable international humanitarian law. Individuals who commit serious violations of the laws of war with criminal intent—intentionally or recklessly—are responsible for war crimes,[32] which states have an obligation under international law to investigate, prosecute, and punish.[33] The laws of war prohibit willful killings and deliberate and indiscriminate attacks on civilians.

Commanders who knew or should have known about violations but failed to stop them or punish those responsible may be criminally responsible, as a matter of command responsibility.[34]

4. Government Action to Protect Human Rights Defenders

Colombia has a broad range of policies, mechanisms, and laws designed to prevent abuses against human rights defenders and other people at risk. However, implementation has been inadequate.

The Colombian government has two longstanding systems in place that have proven important to the protection of human rights defenders, though both suffer from insufficient funding and other constraints:

• The National Protection Unit, an office under the Ministry of the Interior, has been charged since 2011 with protecting people at risk. To its credit, it has granted individual protection measures to hundreds of human rights defenders, providing cellphones, vehicles, bulletproof vests, or bodyguards. However, while the National Protection Unit provides individual protection schemes in response to reported threats, the vast majority of human rights defenders killed since 2016 had not received threats or been able to report them to prosecutors, as required to access protection. (see Left Undefended, pp. 72-78)
• The Early Warnings System in the National Ombudsperson’s Office has a presence in multiple regions of the country where there are few other state actors, and specifically monitors threats to rights. Colombian law requires authorities to respond rapidly to prevent potential abuses flagged by the office through what are called “early warnings,” and the office has issued scores of such alerts identifying risks to human rights defenders in hundreds of municipalities in the country. However, national, state, and municipal authorities charged with taking action based on the Early Warning System’s recommendations have repeatedly failed to do so or have reacted in a pro-forma and unsubstantial way, leading to scant impact on the ground.(see Left Undefended, pp. 82-87.)

Additionally, in recent years, Colombian authorities have created an array of other mechanisms, some of which were established under the 2016 peace accord. The problems with these mechanisms include:

• The large number of protection mechanisms, which diffuses resources and wastefully duplicates efforts. (see Left Undefended, pp. 68-70.)
• Slow implementation of government plans to protect entire at-risk communities and non-governmental organizations that protect rights through collective protection programs. The government has yet to implement a comprehensive Ministry of the Interior protection plan, established under Decree 660 of 2018. (see Left Undefended, pp. 96-98.) Efforts by the National Protection Unit to implement its own collective protection programs have faced significant budgetary and other constraints, and the unit has rejected the vast majority of the collective protection measures requested. (see Left Undefended, pp. 78-80.)
• The failure by President Iván Duque’s administration to periodically convene the National Commission of Security Guarantees, a body charged with designing policies to prevent killings of human rights defenders. Their work has to date been unsubstantial and had no concrete results. (see Left Undefended, pp. 91-95.)
• The vague and unclear mandate of a 2018 action plan by the Ministry of the Interior to protect human rights defenders, known as the Timely Action Plan, which has meant it has scant impact on the ground. (see Left Undefended, pp. 99-101.)
• The failure by the Office of the Presidential Advisor for Stabilization and Consolidation to implement a plan announced in 2019 to protect civilians who participate in plans to replace coca crops, including human rights defenders. (see Left Undefended, pp. 101-102.)
• Lack of progress in implementing a 2019 plan by the Ministry of the Interior to protect community leaders in Neighborhood Action Committees. (see Left Undefended, pp. 103-104.)
• Lack of progress in developing a new policy to protect human rights defenders and other community leaders, which has been under discussion between the Ministry of the Interior and human rights groups since August 2018. (see Left Undefended, pp. 104-105.)

5. Government Action to Ensure Accountability

Efforts to bring perpetrators to justice have been more meaningful. Authorities have passed directives and created specialized units to prosecute killings of human rights defenders, achieving significant progress compared to previous periods in Colombian history.

From a total of 458 cases involving killings of human rights defenders documented by OHCHR, authorities have achieved 66 convictions.[35] As of March 2021, another 101 cases were being tried in the ordinary justice system, and at least one perpetrator has been charged in each of 31 other cases.[36] The Attorney General’s Office considers that over 68 percent of the cases have been “clarified,” meaning, that it has at least issued an arrest warrant.[37]

Little progress has been made in recent years in convicting those who order or encourage the homicide of human rights defenders.[38] In January 2021, the Attorney General’s Office told Human Rights Watch that it had “identified” the “intellectual authors” (known as “determinadores” in Colombia) allegedly responsible for 57 of the over 400 killings of human rights defenders documented by OHCHR since 2016. The Attorney General’s Office indicated that, in total, it had identified 85 “intellectual authors,” including 10 who had been convicted, 12 who had been indicted, and 11 who had been charged.[39] 

Another weakness in prosecutions of those responsible for killing human rights defenders appears to be the quality of the judges’ rulings.[40] According to Human Rights Watch’s review of 34 convictions, in the majority of the rulings, the judges did not indicate the motivation behind the homicide, did not indicate whether the defendant belonged to an armed group, or whether others, in addition to the defendant, may be implicated, and did not include an analysis of the broader context in which the homicide was committed, including the presence of armed groups and other situations of risk. In only a handful of cases, the judges applied an aggravating factor under Colombian criminal law applicable when a “human rights defender” is killed due to his or her work.

Many investigations and prosecutions face significant hurdles. Key shortcomings include:

• Too few prosecutors, judges, and investigators in the areas most affected by these killings. (see Left Undefended, p. 116-119.)
• Failure to date to establish a “special team” of judges President Duque announced in May 2019 to try cases involving killings of human rights defenders. (see Left Undefended, p. 117.)
• Limited capacity of special bodies created under the peace accord to handle these cases—including the Special Investigation Unit and the Police’s Elite Team—, including few staff members; some have faced budget cuts. (see Left Undefended, p. 118-120.)
• Limited support—often marred by delays—from police officers and the military for prosecutors and investigators visiting crime scenes. (see Left Undefended, pp. 120-122.)

The Inspector General’s Office, which conducts disciplinary investigations of government officials, has not made any meaningful progress in investigating and prosecuting killings of human rights defenders.

In June 2017, the office passed a directive prioritizing investigations of abuses against human rights defenders, as well as of officials failing to take appropriate action to prevent such crimes.[41]As of March 2020, the office has opened 17 disciplinary investigations into killings of human rights defenders and other activists, including 9 killings of defenders documented by OHCHR.[42] Sixteen investigations concerned officials alleged to have played an active role in the homicide and one in which the official under investigation allegedly failed to comply with his “legal duty to protect.”[43] All of the cases remained in preliminary phases; nobody had been charged.[44]

6. Petition

For the abovementioned reasons, we ask this Honorable Court to:

1. Accept Human Rights Watch as a Friend of the Court in this case;
2. Take into account the facts, arguments and international standards presented in this brief when evaluating this case; and
3. Grant the petitioners’ request to conduct periodic monitoring of the actions taken by Colombian authorities to address this situation.

José Miguel Vivanco

Human Rights Watch