I/A Court H.R., Case of the Mapiripán Massacre v. Colombia. Merits, Reparations and Costs. Judgment of September 15, 2005. Series C No. 134.

Non official brief

 This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2006-2-e.pdf

 

Headnotes:

 

Acts committed by private third parties against civilians may be attributed to a State if there has been support, direct or indirect collaboration, tolerance or acquiescence by public authorities in the infringement of the rights enshrined in the American Convention on Human Rights, or omissions that enabled these violations to take place. An example would be the failure to investigate them properly.

 

States are obliged to accord preferential treatment to displaced persons, and to take positive steps to reverse the effects of the displacement, even if this has happened through the actions of private third parties.

 

The right of freedom of movement is violated when internally displaced persons are, to all intents and purposes, prevented from returning home due to concerns about inadequate safety measures, and when the State has not carried out a proper investigation as to the facts that led to the internal displacement with a view to punishing those responsible.

 

Reparation of a right protected by the American Convention on Human Rights cannot be restricted to a mere civil liability and to a payment of compensation to the victim's next of kin. Rather, the State is under an obligation to identify and prosecute those responsible.

 

Breaches of certain human rights, for example the rights to life, personal liberty and to humane treatment, are made even worse if an effective investigation does not take place and the culprits are not brought to justice. Compliance with Article 4 ACHR (the right to life) in this context does not simply impose a negative obligation on the State to ensure that nobody is arbitrarily deprived of his life. It also imposes the positive obligation on the State to take any steps necessary to protect and preserve the right to life. This includes all State institutions such as police forces and armed forces.

 

In cases of extra-legal executions, the State has the duty to begin, ex officio and promptly, a serious, impartial and effective investigation. This is not to be perceived as a mere formality. The onus should not be on the victims or their representatives to bring about such an investigation.

 

The Court has the authority and even the duty to apply the relevant legal provisions to a case, even if the parties do not explicitly invoke them.

 

Special protective measures are necessary for children who are the victims of human rights violations in internal armed conflicts.

 

Military criminal jurisdiction must have a limited and exceptional scope, only applicable to crimes with a direct effect on the legal issues surrounding military orders.

 

Summary:

 

I.   On 5 September 2003, the Inter-American Commission on Human Rights filed an application before the Court against the State of Colombia in relation to the "Mapiripán Massacre". The Commission asked the Court to determine whether the State had violated Articles 4, 5 and 7 ACHR, in relation to Article 1.1 ACHR, to the detriment of the alleged victims of the massacre. The Court also had to decide whether the State had contravened Articles 8.1 and 25 ACHR, in relation to Article 1.1 ACHR, to the detriment of the alleged victims and their next of kin. The representatives alleged, in addition, a violation of Articles 19 and 22 ACHR. The State of Colombia submitted its acquiescence to a violation of Articles 4.1, 5.1, 5.2, 7.1 and 7.2 ACHR to the detriment of the victims of the massacre, and partially acknowledged its international responsibility for the facts of the case.

 

II.  In its Judgment of 15 September 2005, the Court noted that between 15 and 20 July 1997, over one hundred members of a paramilitary group known as the "Autodefensas Unidades de Colombia" (referred to here as "AUC") intimidated and terrorised the inhabitants of Mapiripán. They impeded their free movement, kidnapped, tortured, killed approximately forty nine individuals, including children, and threw their remains in a river. As a result, many inhabitants had to seek refuge elsewhere. The Court held that the massacre could not have been prepared and carried out without the logistical support, collaboration, and acquiescence of the Armed Forces of Colombia. Eight years after the massacre, most of those responsible had yet to be identified and brought to trial.

 

The Court held that the State had violated the rights to life, humane treatment, and personal liberty under the American Convention on Human Rights, of the "approximately 49 individuals" for which the State had acknowledged responsibility, as well as Articles 5.1 and 5.2 ACHR, to the detriment of the victims' next of kin. The State infringed the rights of the child, to the detriment of certain specified minors of Mapiripán. The State also infringed the rights to freedom of movement and residence to the detriment of the identified displaced persons, many of whom were children. Finally, the State violated the rights to a fair trial and to judicial protection, under Articles 8.1 and 25 ACHR, to the detriment of the victims' next of kin.

 

The Court ordered the State to take various measures:

 

  -  to investigate the facts and prosecute those responsible;

  -   to identify each victim who had been executed or who had "disappeared", as well as their next of kin;

  -  to ensure a safe and secure return to Mapiripán for the displaced;

  -  to put in place permanent training schemes on human rights and international humanitarian law for the Colombian Armed Forces;

  -  to recompense the victims and their next of kin for the material and moral damage, as well as their costs and expenses.

 

Judge Cançado Trindade and Judge ad hoc Zafra Roldán wrote separate opinions.

 

Supplementary information:

 

On 7 March 2004, the Court issued a Judgment on Preliminary Objections and Acknowledgement of Responsibility in the case in point. It also issued a Resolution on Provisional Measures on 27 June 2005, in order to protect the lives and personal integrity of twenty individuals and their families.