I/A Court H.R., Case of the Afro-descendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 20, 2013. Series C No. 270.

Non official brief

 This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2014-2-e.pdf

 

Headnotes:

 

Since the events of this case took place in the context of a non-international armed conflict, it is appropriate to interpret the scope of the treaty-based obligations in a way that is complementary with international humanitarian law, bearing in mind the latter’s specificity in this area.

 

The measures of basic assistance provided by a State during a period of displacement are insufficient if the physical and mental conditions that those displaced have to face for a period of time are not in keeping with the minimum standards required in such cases. The overcrowding, the food, the supply and management of water, as well as the failure to adopt measures with regard to health care, may reveal non-compliance with the State’s obligation to provide protection following a displacement, with the direct result of the violation of the right to personal integrity of those who suffered the forced displacement.

 

Overcrowded conditions, lack of privacy, and harm to the family structures reveal that, while a situation of displacement lasts, the State did not take the positive measures required to ensure the due protection and integrity of the displaced families, whose members were split up or separated.

 

If the State fails to take sufficient positive measures in favour of children in a context of greater vulnerability, in particular while they are from their ancestral territories, it is responsible for the violation of the rights of the child.

 

The illegal exploitation of the collective property of a community and the failure of the authorities to protect the right to collective property, as well as the lack of rectification by domestic administrative and judicial remedies constitutes a violation of Article 21 of the American Convention on Human Rights (hereinafter, «ACHR»).

 

The failure to guarantee that the decisions of domestic courts that protect the rights of the communities to their collective property are complied with fully, constitutes a violation to the right of judicial protection recognised in Articles 25.2.a and 25.2c ACHR.

 

It is pertinent to establish a measure of reparation that seeks to reduce psychosocial problems insofar as it has been verified that the harm suffered by the victims relates not only to aspects of their individual identity, but also to the loss of their roots and their community ties. When providing the psychological treatment, the specific circumstances and needs of each person must be considered, so that they are provided with collective, family and individual treatment as agreed with each of them, and following an individual evaluation.

 

International law establishes the individual entitlement of the right to reparation. Nevertheless, in scenarios of transitional justice in which States must assume their obligations to make reparation on a massive scale to numerous victims, which significantly exceeds the capacities and possibilities of the domestic courts, administrative programs of reparation constitute a legitimate way of satisfying the right to reparation. In these circumstances, such measures of reparation must be understood in conjunction with other measures of truth and justice, provided that they meet a series of related requirements, including their legitimacy – especially, based on the consultation with and participation of the victims; their adoption in good faith; the degree of social inclusion they allow; the reasonableness and proportionality of the pecuniary measures; the type of reasons given to provide reparations by family group and not individually; the distribution criteria among members of a family (succession order or percentages); parameters for a fair distribution that take into account the position of the women among the members of the family or other differentiated aspects, such as whether the land and other means of production are owned collectively.

 

Summary:

 

I. From 24 to 27 February 1997, the Colombian military carried out «Operation Genesis» in the area of the Salaquí River and the Truandó River, a zone near the territories of the Afro-descendant communities of the Cacarica River basin, in the department of El Chocó. At the same time, paramilitary groups of the United Self-Defense Forces of Córdoba and Urabá advanced from the north, uniting with the military on the banks of the Salaquí and Truandó. This resulted in the death and dismemberment of Marino López Mena and the forced displacement of several hundreds of people, many of whom were members of the Afro-descendant communities that lived on the banks of the Cacarica River, to Turbo, Bocas de Atrato, and Panama. The operation also led to the destruction of individual and collective property. Additionally, the forced displacement suffered by the communities of the Cacarica led to the disuse of their property and to illegal exploitation of their territories on the part of logging companies, with the tolerance of the State.

 

On 25 July 2011, the Inter American Commission on Human Rights submitted the case, alleging violations to Articles 4, 5, 8.1, 19, 21, 22 and 25 ACHR.

 

II. On the merits, the Court found Colombia internationally responsible for the violation of Articles 5.1 and 22.1 ACHR, with relation to Article 1.1 ACHR, to the detriment of the members of the Afro Descendant Communities of the Cacarica River. It further declared Colombia to be internationally responsible for violations of Articles 4.1, 5.1 and 5.2 ACHR, with relation to Article 1.1 ACHR, for the death of Marino López Mena. It also declared a violation to Article 5 ACHR with relation to Articles 19 and 1.1 ACHR, to the detriment of the children of the Afro Descendant Communities. The State was also found responsible for the violation of the communities´ collective property under Articles 21 and 1.1 ACHR. Finally, the Court declared Colombia responsible for violating Articles 8.1 and 25.1 ACHR, in relation to Article 1.1 ACHR, to the detriment of the next of kin of Marino López and the Community Council of the Communities of the Cacarica River Basin.

 

The Court declared that the Colombia had violated its obligations under the right to personal integrity and right to movement, contained in Articles 5.1 and 22.1 ACHR, due to:

 

  1. the forced displacement to the detriment of the Communities of the Cacarica Basin due to paramilitary action in the framework of «Operation Genesis»; and
  2. the incompliance of the State of its obligation to guarantee humanitarian assistance and a safe return to the forcefully displaced members of the community, for about three to four years.

 

The Court also determined the violation of Colombia´s obligation to prevent, protect and investigate the death of Marino Lopez Mena, under Article 4.1 ACHR, and further determined that there was collaboration between public officials and paramilitary units in the implementation of Operation Cacarica, during which Mr. Lopez was killed.

 

The Court further found that the State violated Articles 5 and 19 ACHR for the lack of positive actions for the benefit of the children of the displaced community, and of those that were born in displacement, due to their particular vulnerability, especially while they were outside their ancestral territories, where they suffered overcrowding, lack of access to education, health and adequate food.

 

Furthermore, the Court declared a violation of the right of collective property of the Afro Descendant Community, protected under Article 21 ACHR, due to the illegal dispossession of their ancestral lands. The Court also declared Colombia´s international responsibility for the lack of investigation of the case, especially with regard to the state officials with ties to paramilitary structures, which constituted a violation of Articles 8.1 and 25.1 ACHR.

 

Finally, the lack of an effective remedy against the illegal wood exploitation held within the lands of the communities within the Cacarica basin, and the lack of effectiveness of those decisions that sought to protect the collective rights of the community over their property, constituted violations to Articles 25.2.a and 25.2.c ACHR.

 

Accordingly, the Court ordered, inter alia, that the State: carry out a public act of acknowledgement of international responsibility; continue the investigation of the case; provide adequate and priority treatment to the victims of the case; return the lands of the Communities of the Basin of the Cacarica River; guarantee that the conditions of the territory are adequate for security and a decent life for those returning from displacement and for those who have already returned; and guarantee that the victims of the case receive the compensation provided for under domestic law.