PRELIMINARY OBSERVATIONS OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS AFTER THE VISIT OF THE RAPPORTEURSHIP ON THE RIGHTS OF AFRO-DESCENDANTS AND AGAINST RACIAL DISCRIMINATION TO THE REPUBLIC OF COLOMBIA

       III.         PRINCIPAL CONCERNS WITH RESPECT TO THE SITUATION OF
                   AFRO-DESCENDANTS IN COLOMBIA

34.              In spite of the constitutional and jurisprudential safeguards and the existence of international obligations with respect to equality before the law, elimination of racism and racial discrimination, and plans for the improvement of the situation of Afro-descendants, the information gathered by the Rapporteurship from official sources and civil society organizations has led it to identify at least three areas of particular concern: Poverty and exclusion of the Afro-Colombian population; the armed conflict and its impact on the Afro-Colombian population; and failure to investigate crimes committed against Afro-Colombians and obstacles to the effective enjoyment of their right to collective land ownership.
 

A.         Poverty and exclusion of the Afro-Colombian population

35.              According to the census of 2005, with all of its aforementioned limitations in terms of identification of the entire Afro-Colombian population, Afro-Colombians present the lowest social and economic indicators and lack access to basic services to meet fundamental needs in the areas of health care, education, housing, and clean water.[39]

36.              The 2005 census revealed that the infant mortality rate (number of deaths of children aged one year or younger per 1,000 live births) in the Afro-descendant population is nearly twice the national average.  Specifically, the Afro-descendant infant mortality rate is 48.1%, compared with 26.9% for the Colombian population as a whole.   In the case of Afro-descendant girls, the rate is 43.9%, compared with 21% for girls in the country overall.[40]

37.              As regards life expectancy at birth, for Afro-descendant men this indicator is 64.6 years, as opposed to 70.3 years for the population overall.  In the case of Afro-descendant women, this indicator is 66.7 years, compared with 77.5 years for women in the country as a whole.[41]  According to official data from the DANE quality-of-life survey, in 2003 only 49% of Afro-Colombians had national health insurance.[42]

38.              It was found that 10% of Afro-descendant children aged six to 10 do not have access to education, which is 27% higher than the nonattendance rate in mestizo children.  In terms of secondary education, the coverage shortfall for Afro-descendant children aged 11 to 14 is 12%.  In all, 27% of Afro-Colombian children aged 15 and 16 do not attend secondary school.[43]

39.              During his visit, the Rapporteur received numerous testimonies from members of Afro-Colombian communities and civil society organizations to the effect that Afro-descendants suffer discrimination arising from unequal access to basic services, as well as limited access to opportunities for social and economic advancement and civil and political participation.[44]

40.              For its part, the Colombian State has mentioned, with respect to spending on the Afro-descendant population in the country, that the national government allocates a significant amount of funds to poverty alleviation and also to increasing the coverage of basic services, including health care, clean water, and basic sanitation in rural and urban areas, as well as sewage systems. For their part, municipal governments implement investment programs in such areas as housing, sport, culture, agricultural development, and roads, among others.[45]
 

41.              The State mentions that the National Development Plan sets out specific investments, goals, and programs for the Afro-descendant population in the 2006-2016 period worth an estimated 13 billion Colombian pesos.  It indicates that 8.7 billion pesos would be spent on the poverty reduction strategy, 3.9 billion pesos on high and sustained growth, and the rest on other programs.  At the same time 8.2 billion pesos have been earmarked for the mostly Afro-descendant population that lives in the municipalities of the Pacific region.  The State observes that these funds will benefit approximately 1,209,877 people living in 45 municipalities in five departments of Colombia’s Pacific region.[46]

42.              However, one of the difficulties with many development policies has been the shortage of funds for their full implementation.  Representatives of the Afro-descendant movement have drawn attention to the fact that State-sponsored development plans have no effect in practice.  They hold that where special initiatives have been implemented, they have been too localized and limited to accomplish quantifiable results.

43.              In this regard, the Commission notes that there is a divide between the legislation and policies in place and their effective implementation and impact on enjoyment of rights for Afro-Colombians.  Despite these initiatives, the Afro-descendant population continues to experience social exclusion and marginalization arising from persistent structural discrimination in both the public and private spheres.

44.              The disparities in social and economic conditions between Afro-descendants in Colombia and the rest of the country's population are closely linked to the structural discrimination that Afro-Colombians have endured for generations and which persists to this day.  The lack of equitable and effective access to social services hinders the social enfranchisement of this population.

45.              In sum, despite the fact that policies have been designed with the aim of fostering the advancement of the Afro-Colombian population, they have not been effectively implemented and the accomplishment of results in terms of equal enjoyment of rights and elimination of structural discrimination remains an enormous challenge.

B.       Effects of the armed conflict on the Afro-Colombian population

46.              In recent decades Colombia has been assailed by an armed conflict that has affected hundreds of thousands of people.  The armed actors in the conflict -- guerrilla groups, security forces, and paramilitary groups -- have committed human rights violations and serious breaches of international humanitarian law against the civilian population.[47]

47.              The concentration of violence in certain areas of the country seems to be the result of strategic objectives for military and economic domination.  The worst-affected geographical areas include those where Afro-descendants comprise a large percentage of the population.  The presence of armed actors in those districts and municipalities has led to constant acts of violence against civilians in the form of massacres, selective executions, forced disappearances, bodily harm, sexual violence, acts of harassment, and forced displacement.

48.              The rural areas inhabited by Afro-Colombian communities have been particularly afflicted by the conflict and their inhabitants victims of acts of violence and forced displacement.  The areas particularly badly hit include Urabá,[48] the areas alongside the Atrato River and its tributaries in the Department of Chocó, and the areas in the vicinity of the Rivers Naya and Yuruma in the Departments of Cauca and Valle del Cauca.

49.              The violence arising from the armed conflict has had a crosscutting adverse effect on these areas in terms of settlement, labor relations, and the development of social and political actors.  Illegal armed groups have used this region as a corridor along which to traffic arms and drugs and have cleared the land in order to plant coca.

50.              Faced with this situation, the Afro-descendant civilian population in this part of the country has been forced to live with the presence of illegal guerrilla groups -- predominantly, the Revolutionary Armed Forces of Colombia (FARC-EP) -- and paramilitary groups -- specifically, the United Self-Defense Forces of Colombia (AUC) and the Self-Defense Forces of Córdoba and Urabá (ACCU).  The security forces are also present in the zone, in the form of units of the National Police, the Navy (principally in the Gulf of Urabá and the River Atrato and its tributaries), and the 17th Brigade of the National Army, headquartered at Carepa, Antioquia.

51.              The agreements reached by the government of President Álvaro Uribe Vélez and paramilitary leaders led to the collective demobilization of individuals identified as members of 34 units of the AUC, with international verification by the MAPP/OAS Mission.  The government has also engaged in dialogue with other armed guerrilla groups, some of which have joined the collective demobilization process.[49] The legal framework of the process, established, inter alia, by Law 975 of 2005 (“Justice and Peace” Law), provides a series of procedural benefits and reduced penalties for those who, having been involved in the commission of crimes, participate in the demobilization process.[50]

52.              Official figures indicate that, 49,176 members of illegal armed groups (AUC, FARC, ELN) were demobilized between 2002 and 2008.  This figure includes both those who demobilized collectively and the approximately 17,500 persons connected with paramilitary or guerrilla groups who individually handed over their weapons.  In spite of these figures, which reflect the number of armed actors in the conflict, and based on information released by the armed forces on captures and deaths in action of members of paramilitary and guerrilla groups, illegal armed groups remain active in Colombia.
 

53.              Despite efforts to disband the armed structure of the AUC, illegal armed groups continue to be involved in acts of intimidation and violence committed against vulnerable populations, community leaders, and human rights defenders.  In his reports to the Permanent Council of the Organization, the Secretary General of the Organization has identified the existence of acts of violence subsequent to the demobilizations, according to information obtained in the field by the MAPP/OAS Mission.  According to these reports, this situation involves a variety of processes: (1) Regrouping of demobilized combatants into criminal gangs that exert control over specific communities and illegal economic activities; (2) sectors that have not demobilized; and (3) the emergence of new armed players and/or the strengthening of a number that already existed in areas abandoned by demobilized groups.^[51]

54.              The IACHR has received complaints about groups that operate under the names of Autodefensas Gaitanistas  and Renacer in the Urabá region; and Águilas Negras  in various parts of the country.  The MAPP/OAS Mission identified instances of rearming in 153 municipalities along a corridor that extends eastward from Urabá through south Córdoba, Bajo Cauca, south Bolívar and then northward.[52]  These are areas where the United Self-Defense Forces of Córdoba and Urabá originally emerged and consolidated as the United Self-Defense Forces of Colombia a little over a decade ago.  In its reports, the MAPP/OAS Mission highlights the activities of the armed group commanded by Daniel Rendón Herrera, alias "Don Mario" (brother to Freddy Rendón, alias “El Alemán”, the leader of the demobilized Élmer Cárdenas Bloc), which is troubling the communities in the Urabá region of Antioquia with intimidation, acts of violence, recruitment, extortion, and drug trafficking.[53]  The MAPP/OAS Mission also reported activities by illegal groups in the Department of Nariño.

1.          The impact of violence on the Afro-Colombian population

55.              The Afro-Colombian population has been the victim of massacres, selective executions, disappearances, torture and cruel and inhuman treatment, sexual violence, acts of intimidation, and threats on the part of the actors in the armed conflict, who seek to extend their control over the territory by means of forced displacement, terrorizing the civilian population, extracting information on enemy groups, and perpetrating acts of "social cleansing".[54]

56.              The violations of human rights and of international humanitarian law committed against the civilian population, especially in rural areas, are aimed at inducing terror and displacement, as well as the illegal appropriation of land and other property, causing an ongoing humanitarian crisis.  The information received regarding the massacres perpetrated in Mutatá (District of Pavarándo, Antioquia) in May 1997 and January 1998; Dabeiba (Antioquia) in November 1997; Riosucio (Chocó) in December 1997; Buenaventura (Valle) in May 2000; and Alto and Bajo Naya (Cauca) in April 2001,[55] are some examples of acts of violence perpetrated by the AUC against members of Afro-descendant communities.  In some cases it has been alleged that the acts of violence have been carried out due to omissions by, or with the acquiescence or collaboration of, members of the security forces.

57.              The Afro-descendant community councils in the Urabá region; on the banks of the Atrato River and its tributaries, and in the Naya zone, have been the target of acts of violence by armed groups on account of their claims to collective title deeds on properties under Law 70 of 1993 as well as their rights recognized in the 1991 Constitution.  These are lands with valuable natural resources that have been transformed into theaters of violence by armed groups vying for their control.[56]

58.              During his visit, the Rapporteur received testimony about the massacre perpetrated by paramilitary groups in the Naya area, which left tens of persons dead, including women and children, and prompted the forced displacement of hundreds of families from the region.[57]  It is alleged that one of the objectives of the perpetrators was to take control of territories occupied for generations by Afro-descendants for which collective title deeds have not yet been issued, despite applications from the community councils.  The lack of security in which the inhabitants of the area live led the Commission to order precautionary measures in their favor on January 2, 2002.[58]

59.              In addition, leaders of community councils who have pressed claims to title deeds, sought effective respect for collective ownership of the land by these communities, and opposed armed groups, have been targets of selective assassinations, acts of violence, and harassment.  It has been said that "Afro-Colombians who defend their cultural and territorial autonomy have been classified as subversive and therefore persecuted, displaced, disappeared and murdered."[59]  In the course of the visit of the Rapporteur to Colombia, and in the framework of hearings, community representatives and human rights defenders provided information on attacks against leaders who defend the land rights of Afro-descendant communities and denounce violence against communities.[60]

60.              The assassination and disappearance of community leaders or community council members, as well as other community figures, is particularly harmful to Afro-descendants because they are a store of unique and rich knowledge about the cultural heritage of their communities and are important as persons who pass on traditions and cultural practices within their communities.[61]  These individuals also perform a key role in fomenting social cohesion and unity, and are vital for the development and implementation of the long-term vision of their communities.  In this regard, the deaths of leaders or community members as a result of the violence have prevented Afro-Colombian communities from exercising their right to hold traditional funerals for the deceased.[62]  In particular, in cases in which members of communities have been targeted in attacks as a result of defending collective rights to land and opposing the hostile occupation of their lands by persons with economic interests or parties in the conflict, the families or community members face an additional risk or are prevented altogether from providing a proper burial, holding a wake for the dead, and other funerary practices.

61.              In particular, the community council of the Jiguamiandó Basin and the families of the Curvaradó Basin in the Municipality of Carmen del Darién, Chocó Department, who were granted precautionary measures by the Commission on November 7, 2006,[63] and later provisional measures by the Inter-American Court on March 6, 2003,[64] have been the target of acts of violence as well as the murder of community leaders, such as Orlando Valencia in October 2005 and Walberto Hoyos in October 2008.[65]

62.              On July 24, 2007, the IACHR granted precautionary measures in favor of the leaders of the Council of Black Communities of the West Nariño Highlands (COPDICONC).  The available information suggests that the residents of six communities in the Department of Nariño, and particularly the COPDICONC leaders, have been victims of harassment, death threats, and detentions by armed groups operating outside the law as well as the security forces.  COPDICONC leaders have also reportedly been the target of harassment by members of paramilitary groups and guerrilla units, who accuse them of collaboration with the enemy.[66]

63.              Afro-descendant human rights defenders have also been targeted by threats and acts of intimidation. On October 1, 2003, the IACHR adopted precautionary measures in favor of Jorge Isaac Aramburó, a teacher and human rights defender who works in the Yurumanguí and Cajambre Basins in the Municipality of Buenaventura.  The information available suggests that the beneficiary has been declared a military objective and that 10 members of his family have been murdered since September 2000.[67]

64.              Furthermore, human rights organizations that promote and defend the rights of Afro-descendants have been subjected to harassment and threats.  On March 7, 2003, the Commission granted precautionary measures on behalf of Carlos Rosero and members of the human rights organization Black Communities Process (PCN).  The information available suggests that staff members of this organization have received threats against their lives and wellbeing because of their activities.[68]

65.              The Commission has also ordered precautionary measures for the Inter-Ecclesiastical Commission for Justice and Peace, which represents the community council of the Jiguamiandó Basin and the families of the Curvaradó Basin before the Inter-American Court; the Afro-descendant families who comprise CAVIDA in the precautionary measures adopted by the Commission;[69] the Afro-descendant communities in Bajo Naya in the precautionary measures adopted by the Commission;[70] and the communities in La Balsita, Dabeiba in the precautionary measures issued by the Commission.[71]  In August and September 2008, members of the Inter-Ecclesiastical Commission for Justice and Peace who work with the community council of Jiguamiandó and the families of Curvaradó received constant threats and one of its members was temporarily kidnapped by the so-called Águilas Negras.  The Commission has also received information about acts of intimidation against international mentors of these communities, such as Peace Brigades International.

66.              The Commission sets particularly high store by the work of Afro-Colombian human rights defenders who become the target of violence for defending the identity and collective rights of their communities, and the activities of the organizations they represent. The State should give special attention to their protection through means appropriate to their situation, and ensure their safety and the continuity of their work.

67.              Afro-descendants who live in urban areas have also suffered the effects of violence and forced displacement.[72]  One place particularly noted for its violence is the city of Buenaventura, situated in the municipality of the same name, in the Department of Valle del Cauca, where 83% of the population are of African descent.[73]

68.              Buenaventura is known for its poverty, including lack of access to drinking water and adequate health care, high rates of infant mortality and illiteracy, and widespread unemployment.[74]   At the same time, the strategic location of the Port of Buenaventura as a gateway to the Pacific Ocean has led private actors with commercial interests and, particularly, the parties in the conflict, to wage a struggle for control of the port, the city, and the outlying districts. 

69.              As a result, the residents of Buenaventura suffer the effects of violence and confrontations between outlawed armed groups who seek to ensure the circulation of illicit substances and armament as well as control of the area.  During his visit, the Rapporteur received testimony that suggests that those worst-off as a result of the violence are women and children, who are often wounded or killed during attacks and confrontations between armed groups.  For their part, youths are affected by forced conscription by paramilitary and guerrilla groups.  Community leaders are also targeted by attacks.[75]

70.              The Rapporteurship received testimony about Afro-descendant youths being arrested by the security forces on suspicion of belonging to a guerrilla group, then tortured, disappeared or killed.[76]  The testimony received suggests that members of the security forces in alliance with paramilitary groups have openly declared their intention to kill Afro-descendants, with statements such as, "We are not here to protect blacks; we came to do our job, which is to kill Afros."[77]

71.              It is alleged that, egged on by incentives to obtain positive results in implementing the democratic security policy, there is a practice of arbitrary detention and violation of the rights to life and personal integrity of Afro-descendant youths, based on the presumption that they belong to paramilitary or guerrilla groups.  This is mirrored by a systematic practice of abuse against this segment of the Afro-descendant population.[78]

72.              The situation has been described as "chaotic" and spreads "collective panic" in the community.[79]  It has caused the forced displacement of the civilian population of Buenaventura.  One of the representatives of the civil society organizations affected by the displacement explained that

[…] the situation in Buenaventura is critical.  At present, a massacre is being carried out against the communities.  On the weekend there were eight murders and an even larger number of persons disappeared.  The attackers dismember them, kill them in front of children, women and the elderly, to sow terror in the communities.  Such was the case in Barrio Lleras Camargo, from where many of the displaced families come.  They drive out the families and build businesses; that happened eight months ago.  Buenaventura is the main port on Colombia's Pacific coast, with enormous biodiversity, a vast jungle, water, and economic resources… water resources. Geographically it is of strategic importance to the national economy.  Most of its residents are of African descent.  Displacement takes two forms since it may be regional or national… All of this creates panic in the population and that is why they leave.  And when they leave their homes they cannot return to the area because it is inhabited by the AUC, who occupy the homes, and therefore they lose their property rights.  When the people go to another city, such as Cali, the districts of Aguablanca and Charco Azul, those who come from Buenaventura and Chocó are persecuted and then the members of the AUC threaten and kill them.  There is a strategy of alienation.  Or they have to sell their properties for very little money.[80]

73.              The Commission notes that the plight of Afro-Colombians in Buenaventura constitutes a humanitarian and human-rights crisis that requires urgent measures on the part of the State to protect civilians from the threats to their lives and forced displacement.

74.              In its comments, the State cites official figures that signal a decline in the number of homicides committed in Buenaventura.  Specifically, the State mentioned that there were 408 homicides in 2006, 312 in 2007, and 192 from January to November 2008.[81]  It attributes this trend “to the work of the security forces with the community.”

75.              As regards the situation in other cities in the country, in the course of his visit, the Rapporteur heard testimony on the situation in the Lleras Camargo district of the city of Cali, Department of Valle del Cauca, mostly inhabited by displaced Afro-descendants whose lands were occupied by private companies, and where there were 200 reported homicides in the first part of 2007.[82]

76.              With respect to the situation of Afro-descendant youths in the city of Cali, on November 6, 2003, the Commission adopted precautionary measures in favor of members of the Asociación de Grupos Juveniles Libertad (ASOLIBERTAD).  This organization works with juvenile offenders at high risk in the District of Aguablanca, a place where approximately half a million people, many of them displaced Afro-descendants, live in poverty.  The information available suggests that they are victims of harassment and singling out by members of the security forces as a result of complaints of police brutality against youths in the district.[83]

77.              The Rapporteurship notes that conditions in cities in other parts of the country, notably Quibdó (Department of Chocó) and Tumaco (Department of Nariño) are similar in terms of poverty, violence, and humanitarian crisis for Afro-descendants.

78.              In its comments on this report, the State mentions that the acts of armed violence reported in the country are not racially motivated, but “[…] stem primarily from the dynamics of social problems and the link that exists between the activities of illegal armed groups and illicit cultivation, as well as the aim of said actors to control areas of particular geopolitical importance.[84]

79.              The Commission observes that Afro-Colombians suffer particularly from the violence generated by the conflict owing to the context of inequality and structural discrimination in which they find themselves.[85]  They live in areas that the actors in the conflict regard as strategically important for their economic interests and, therefore, have been subjected to acts of violence on a large scale designed to force the displacement of the civilian population from both rural and urban zones, in addition to selective killings and attacks on their personal integrity.  The true dimension of the violence against Afro-descendants is kept hidden by the absence of disaggregated estimates by which to determine the degree to which they are affected in comparison with the rest of the population.

80.              During the visit, the Rapporteur received testimonies that indicate that members of the security forces stationed in the worst-hit areas have not responded effectively in order to avert attacks against Afro-descendants and, in some cases, have acquiesced to and collaborated in acts of violence perpetrated by illegal armed groups, or taken part in acts of stigmatization that endanger them.[86]

81.              The State informed the Commission in its comments that the Ministry of Defense adopted a comprehensive policy on human rights designed to protect Afro-Colombian communities.  In particular, Directive 07 of 2007 sets out a series of measures and initiatives designed to improve protection for Afro-Colombian communities, which include to “establish a permanent dialogue with the community councils and representatives of Afro-descendant communities; steer the actions of the security forces in order to ensure the preservation of these communities, refraining from acts that endanger their integrity; refrain from unfounded statements that might jeopardize the integrity of members of these communities; implement preventive measures to deter acts by illegal armed groups in the collectively owned territories of these communities; comply in a timely manner with their requests for protection; work in coordination with other State agencies committed to preventing the forced displacement of these communities […]; designate a liaison or point of contact between the legal representatives of these communities and the military and police authorities in each region, in order to provide them with assistance, listen to their grievances, receive information, and build mutual trust; and design military and police training programs, as well as training workshops or seminars on human rights and international humanitarian law that include an ethnic component that covers the individual and collective rights of black, Afro-Colombian, raizal and palenquera communities.”[87]

82.              The directives adopted by the Ministry of Defense the address certain conduct by members of the security forces that curtail the rights of Afro-descendants, such as lack of consultation, stigmatization, failure in the duty to provide protection, failure to provide assistance in the humanitarian crisis, and racism and racial discrimination.  However, the principal mechanism for repairing the consequences of the violence and prevent it in the future consists of the use of judicial channels to investigate the responsibility of its agents and third parties in violations of the fundamental rights of Afro-descendants, so as to ensure that the acts of gross violence perpetrated against them do not remain in impunity and, thus, help to avoid their repetition.

2.                  The impact of forced displacement on the Afro-Colombian population

83.              The armed groups that commit acts of violence and intimidation in order to cause forced displacement seek to control strategically located territories rich in natural resources and biodiversity, which are very often occupied by Afro-descendant communities.[88]  In most cases, the families that make up these communities are forced to abandon their lands after enduring attacks, looting and intimidation.[89] 

84.              The violence that has blighted communities and community councils in rural areas as well as Afro-descendants who live in certain urban zones has meant that over the years close to one million Afro-descendants have become internally displaced.[90]  Afro-Colombians are said to account for more than 30% of the total number of people displaced by the armed conflict and approximately 90% of those displaced from municipalities with collectively owned territories.[91]

85.              The Commission notes that a high number of incidents of mass displacement continue to be recorded in Colombia.[92]  Furthermore, in the first half of 2008 there was a rise in the number of persons displaced in the departments of Chocó, Cauca and Nariño, where most of the Afro-descendant population lives.[93]  The Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin, has said that Colombia remains the State with the highest number of internally displaced persons in the western Hemisphere.[94]

86.              In the course of his visit, the Rapporteur heard numerous accounts concerning the impact of internal and intra-urban displacement on entire communities.  For example, the mass displacement of communities from the Bajo Calima region in the Department of Valle del Cauca, as a result of the activities of paramilitary groups;[95] the displacement of the Afro-Colombians who reside in the city of Buenaventura, who up on their return found that their homes had been occupied by order of paramilitary groups; and the occupation of the lands of the Community Council of Jiguamiandó and Curvaradó by companies involved in the biofuel industry.[96]  During the visit, the Rapporteur also received testimonies on the impact on food crops and drinking water sources of aerial spraying of illicit crops, and the resulting displacement of Afro-descendants that live in rural areas.[97]

87.              In the course of his visit, the Rapporteur received the following testimony on the cultural and spiritual link that Afro-descendant communities have with the land:

We cannot conceive of an Afro-Colombian community without its land, which means that the community would disappear without it [..] The territory is not only a physical space, but also embodies social and spiritual relations, so that when they bomb the forest, they bomb our natural resources, the mollusks, the crustaceans and, even though they say the attacks are not indiscriminate because they are not aiming at our homes, they destroy the land off which the communities live.[98]

Forced displacement interferes substantially with their livelihoods, pursuit of cultural practices, and traditional ways of life, as well as their participation in community life.

88.              In addition to this, the precariousness generated by displacement enhances their vulnerability because of the lack of access to work, food, housing, health care, and education.  The immediate consequences of the mass displacement of Afro-Colombians have been increased impoverishment and social exclusion.  Uprooted, forced from their lands, Afro-Colombians have to deal with a radical, traumatic, and abrupt change in their family structure, geographic surroundings, culture, community, and socioeconomic position.  In the words of a member of the Jiguamiandó community Council,

We have become beggars who ask the State for assistance, when before we needed no one’s help because we lived off the land.

89.              Among the effects of the social stigmatization that displaced Afro-Colombians suffer are that many children will have a reduced likelihood of attending school after resettlement; adults face new difficulties in finding employment, especially for members of rural communities who emigrate to urban centers, where their traditional agricultural skills serve them little; and women endure other dimensions of discrimination for reasons of race and gender, which subjects them to even greater stigmatization in their places of residence.

90.              Forced displacement and its consequences have a disproportionate impact on Afro-Colombian women. Women constitute approximately 50% of the displaced Afro-Colombian population and half of them are family heads.[99]  The IACHR Rapporteurship on the Rights of Women has mentioned that displaced Afro-Colombian women suffer acts of racism, ridicule and stigmatization by the receiving communities.[100]  Any public policy on displacement of Afro-Colombian communities should include special considerations for women victims of violence and displacement, in order to offer them a solution and reparation appropriate to their situation.[101]

91.              The Commission's attention has also been drawn to situations in which displaced Afro-Colombian families continue to face risks to their security in receiving communities, in their return attempts, or in their resettlement in other areas.

92.              For example, on December 17, 1997, the Commission requested that precautionary measures be adopted on behalf of tens of families displaced by violence towards the area of Turbo.  Some of them had been given refuge in the Municipal Sports Hall while others had been taken in at shelters specially built for that purpose.[102]  On January 11, 1999, the Commission confirmed that these precautionary measures should remain in place for the people at the displaced persons camp at the Turbo Sports Hall and Bocas del Atrato.[103]  The precautionary measures remain in effect to this day to protect the displaced persons who are currently part of the communities grouped under the organization CAVIDA and resettled on their collectively owned territory on the Cacarica River.  In June 2003, the Commission made an on-site visit to the CAVIDA collective territory and received testimonies from the beneficiaries of those precautionary measures, and also from those protected by the measures granted in favor of the communities in Dabeiba and Naya, as well as the communities in Jiguamiandó and Curvaradó.[104]
 

93.              During the visit, the Rapporteur had a meeting at the Presidential Agency for Social Action and International Cooperation, which designs State assistance programs for displaced persons, covering the areas of prevention, humanitarian assistance, and social and economic reintegration.  On that occasion, reference was made to the National Plan for Comprehensive Assistance to the Displaced Population, which has been in operation since 1997, and to the Displaced Persons Single Register, to which internally displaced persons must sign up to establish their status as such, after which they are entitled to State assistance for six months.[105]  On that occasion, no concrete responses were forthcoming with respect to implementation of differentiated programs for the Afro-descendant population.

94.              In its comments on this report, the State drew attention to the adoption by the National Council for Comprehensive Assistance to the Displaced Population in 2006 of Decision 3, which "sets out measures for ensuring the right of the displaced population to be protected against discriminatory practices;" Decision 8, adopted by the same agency in 2007, which "adopts measures to identify and enhance the differential measures underway as part of the policy on assistance to displaced persons;” and the Protection Program for the Rights of Displaced Afro-descendant Women, designed by the Bureau for Black, Afro-Colombian, Raizal and Palenquera Community Affairs of the Ministry of Interior and Justice.[106]  It is unclear, however, what budget funding has been allocated to implement these programs and Decisions, how much progress has been made in their implementation, or what results have been achieved.  The Rapporteur received testimonies according to which many displaced persons do not officially register with the Displaced Persons Single Register and more than half of those that do so fail to receive the assistance offered by the State.[107]  Particularly in remote communities, access to registration is limited.

95.              Indeed, the situation of many displaced Afro-Colombians does not meet the conditions set by official agencies to entitle them to assistance, protection, preventive measures, resettlement and reintegration, due to the fact they have been forced from their lands by the activities of private persons involved in the biofuel or mining industries, and even as a result of the implementation of State-sponsored aerial spraying programs to eradicate illicit coca cultivation.

96.              In this regard, the Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons has said,

The mix of military and punitive measures used to eradicate illicit cultivation of narcotic plants, or the negative impact of aerial spraying on food security in affected areas may also exacerbate a general sense of insecurity and helplessness that, in turn, is conducive to individual and mass displacement. In several of the places visited, the attention of the Representative was also drawn to economic interests linked to the development of agro-industrial activities (bananas, oil palms, etc.) and the exploitation of mineral resources that allegedly have an interest to dislodge peasants and small farmers from their lands.  In other cases, natural disasters or development activities, also involving illegal appropriation of land, cause the involuntary departure of persons negatively affected by them.[108]
 

Coupled with this is the displacement caused by the activities of the security forces or paramilitary groups in regions where the authorities say that the armed groups have joined the collective demobilization process.[109]

97.              This situation is cause for concern as regards coverage for displaced families not officially recognized by the State, who do not receive immediate assistance and are not considered in the design of policies for protection and reparation of internally displaced persons.

98.              Whatever the situation, the IACHR has received testimonies to the effect that many displaced persons from parts of the country inhabited by Afro-descendant communities feel unprotected by the State and that they have only received humanitarian assistance from the Delegation of the International Committee of the Red Cross.[110]

99.              In this connection, the IACHR recalls that the Guiding Principles on Internal Displacement provide that “[e]very human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence” and that the prohibition of arbitrary displacement includes not only armed-conflict situations, but also “large scale development projects, which are not justified by compelling and overriding public interests.”[111]  Principle 3 provides, “1. National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction. 2. Internally displaced persons have the right to request and to receive protection and humanitarian assistance from these authorities. They shall not be persecuted or punished for making such a request.”[112]

100.          The roots of the conflict have to do with territorial control and, therefore, are bound up with the causes of forced displacement.  Reaching lasting solutions to displacement involves providing reparation to the civilian population for the harm caused during the conflict as well as peace-building initiatives.  The State should move forward with the design and effective implementation of differentiated displacement prevention and response programs that specifically target Afro-descendant populations.  It must also ensure protection for communities affected by displacement, as well as guaranteeing lasting solutions that include either return or resettlement of the displaced persons in conditions that respect their fundamental rights, reparation for damages, and long-term prevention measures.

C.       Investigation of crimes committed against Afro-descendants and obstacles to the effective enjoyment of collective land ownership

101.          The IACHR has repeatedly expressed its concern over the lack of judicial resolution regarding most of the acts of violence that have affected Afro-descendant communities and caused their displacement in the midst of the armed conflict.[113]  Colombia faces the challenges connected with the fact that armed groups and members of the security forces have been found to bear responsibility for the perpetration of multiple crimes in the framework of the conflict, as well as providing reparation to the victims.  The IACHR has stated that “establishing the truth about what happened during the conflict, searching seriously for justice through the determination of the responsibility of the perpetrators vis-à-vis the victims, and the reparation of the damage cause -- far from generating obstacles for the agreements that can lead to peace building -- constitute basic pillars of its strength.”[114]  It is vital that any peace-building process include investigation and reparation of acts of violence, displacement, and discrimination suffered by Afro-descendants.

102.          In spite of the fact that the socioeconomic levels of the Afro-descendant communities that reside in the inter-oceanic corridor between the Urabá zone and the Pacific coast are the lowest in the country, the territories that they inhabit are of enormous strategic value and rich in biodiversity and natural resources.  Consequently, not only are they victims of institutional neglect on the part of the State, but they have also suffered particularly cruelly at the hands of armed actors and economic actors, the latter very often in alliance with the former.[115]  The violations of human rights and of international humanitarian law committed against Afro-descendant communities are aimed at inducing terror and displacement, as well as the illegal appropriation of land.[116]

103.          Another factor leading to displacement and the seizure of land is the expansion of the biofuel industry through the planting of African oil palm, a single crop well-known for its harmful effect on the soil and biodiversity.  Although it is planted in an attempt to stimulate development in Afro-Colombian communities, and has ostensibly received active encouragement from the State with official funding,[117] in many instances this activity has been undertaken without consulting the communities concerned or against their will, through the illegal seizure of collectively owned land.  In the course of his visit, the Rapporteur received testimonies alleging collusion between armed groups and private actors with financial interests in the development of natural resources or biofuel crop cultivation.[118]  According to the testimonies and information received by the IACHR, after the communities are forcibly displaced by armed groups, private companies move into develop the land and their natural resources.  In the words of one of the displacement victims interviewed by the IACHR,

it cannot be that after our displacement, the murders, the theft of our property and destruction of our cultural traditions, that MULTIFRUIT is now developing our lands.[119]

104.          It is alleged that 61% of Afro-Colombians who have received property deeds have been displaced and that they have been unable to return to their homes because of the violence and subsequent hostile takeover of their lands by third parties.[120]

105.          The complaints received raise serious questions as to whether or not the State is meeting its obligations under Law 70.  Law 70 of 1993, adopted pursuant to Transitional Article 55 of the Constitution, introduced a general legal framework to protect the property rights and cultural identity of Afro-descendant communities in the Pacific watershed. Article 7 of this law provides that once collective land had been awarded to a community, that land must be considered “inalienable, imprescriptible and non-attachable.”  The Colombian Rural Development Institute (INCODER), the government agency that issues title deeds on these lands, has issued collective titles for 5,199,252 hectares of land to Afro-descendant communities in Colombia's Pacific coast region (equivalent to more than 4% of the country's territory).[121]   Of the total portion of land earmarked for the collective titling process (5.6 million hectares), titles have been granted on a total of 5,242,264 hectares, which constitutes 93% of the original proposal.  To conclude the program all that remains is to issue titles on 357,736 hectares.[122]  Although these figures reflect considerable progress in terms of collective land titling in favor of community councils, violence, displacement, seizures, and fraud prevent Afro-descendants from effectively enjoying their land rights as well as contribute to the humanitarian crisis.

106.          The State mentioned that between 2002 and 2006 new prior consultations were held on development projects in areas predominantly inhabited by Afro-descendant communities and that another four were held in 2007.[123]  The State asserted in its comments that it has created a mechanism for holding regular consultations with Afro-descendant leaders and community councils on issues connected with the situation of the population, which includes restoration of the Bureau for Black, Afro-Colombian, Raizal and Palenquera Community Affairs at the Ministry of Interior and Justice,[124] which, inter alia, organizes consultations to ensure that the interests of Afro-descendant communities are reflected in the government's national development plans.[125]

107.          In this regard, the Rapporteurship received accounts of numerous cases in which the right to consultation was repeatedly violated by national and transnational actors, both with and without the acquiescence of the authorities and, in some cases, with the support of paramilitary groups.[126]  The Rapporteurship was also told that the failure to consult communities was not limited to oil palm cultivation, but also included hostile occupation by actors interested in the development of a series of natural resources found on the lands of Afro-Colombians.

108.          In the case of the Community Councils of Jiguamiandó and Curvaradó, the Rapporteur received testimonies about acts of violence, manipulation, and fraud to the detriment of displaced communities by outlawed armed groups, as well as usurpation of lands by oil palm companies.  It was alleged that communities with collective titles were forcibly displaced after which the land was purchased by third parties without their knowledge.[127]

109.          In November, 2008 the Commission conducted a working visit to Colombia during which it received information about three strategies for illegally obtaining property titles on the collective territories of these community councils: fraudulent acquisition of titles, cloning of decisions of award of property titles, and accession to lands by alluvium.[128] 

110.          With respect to fraudulent acquisition of titles, it was alleged that approximately 100 unlawful property titles have been identified either because they were not listed in the public deeds register or because the registration was time-barred. The foregoing meant that those private citizens who held property titles which had not been registered at the time the collective territory was established were unable to attest that the land was private property in accordance with Article 36 of Law 200 of 1936 and, therefore, the territories were subsumed under the collective title.

111.          As to cloning, a number of decisions were reportedly detected that were not in the INCODER inventory but had been "cloned."  Thus, the effect of the cloned decisions is the same as that of time-barred registration given that, since they did not appear in the INCODER inventory, they are not valid for the purposes of the attesting private property.

112.          With respect to accession by alluvium, a number of property titles were apparently claimed by accession with the argument that sediment from the River Curvaradó had created an area of 17,000 hectares.  The strategy appears to have consisted of updating the area and boundaries of the properties initially adjudicated by INCORA (forerunner of INCODER) alleging that the alluvium had occurred and that, as a result, the neighboring properties had acceded to thousands of hectares.

113.          The State has informed about some progress in the process of legal and material restitution of the territories usurped from communities.  It observes that 9,895 hectares and 19,448 hectares, respectively, were legally recovered for the Community Councils in the Jiguamiandó and Curvaradó basins.[129]  However, so far actual material restitution of the lands to the Afro-descendant communities has not been accomplished yet.  Specifically, 21,000 hectares of land have not yet been restored and remain under illegal occupation, of which 3,644 hectares correspond to oil palm plantations and 1,300 hectares to cattle ranches.[130]  In addition, 800 hectares belonging to the Community Councils of Alto Mira and Frontera in the Department of Nariño have reportedly not been returned.[131]

114.          The Rapporteur also received testimonies from residents of Bajo Calima with a collective land title who were displaced by violence.  They say that the State forced them to return to their lands where they found that the new residents had settled, which gave rise to disputes over ownership.[132]

115.          The Commission also notes the persistence of obstacles to sustainable development    for communities on their territories and to full exercise of community property rights, due to a scarcity of resources and funds for development of their lands.[133]  In most cases they receive no economic support, credit, or any other forms of government assistance to undertake sustainable productive projects.  Indeed, the central government does not allocate the Community Councils the necessary funds for the development of their collective territories, as Law 70 guarantees.  Generally speaking, these bodies do not have access to credit or direct subsidies, which are vital components for the development of their communities.  Furthermore, Afro-descendant communities are dependent on local governments, which control their development opportunities and design the relevant policies.  In this regard, several sources confirmed that many local governments in predominantly Afro-descendant municipalities are inefficient, short of funds, lacking in administrative capacity, and, in many cases, corrupt.  Moreover, most municipal authorities are not completely familiar with the protections that Law 70 grants to Afro-descendant communities.

116.          The Commission is troubled by the partial and sometimes negligible implementation of Chapter VII of Law 70, which recognizes the right to development of Afro-descendant communities.  Although the Commission values the legislation in force and its jurisprudential interpretations, it remains concerned at the divide that exists between this, its actual application, and the implementation of public and budgetary policies by which to ensure the right of these communities to collective land ownership and sustainable development, as well as improving their situation in terms of access to basic services, with a differentiated approach.

117.          As regards reparation of the harm caused to Afro-descendants in the context of the conflict, the IACHR has expressed its concern that the Justice and Peace Law places upon the perpetrators and, in some cases, the units to which they belonged, sole responsibility for paying reparations.[134]  In that regard, it considered that, beyond the available criminal justice machinery, the State should define a policy on reparations designed to resolve injury caused by paramilitary violence, consistent with its budgetary possibilities, and based on the standards of international human rights law, by providing streamlined and low-cost administrative mechanisms for accessing economic reparations programs. This should be without prejudice to other forms of intangible reparations, collective reparations, and social programs and services that might be established for the population affected during the conflict.[135]  In its Principal Guidelines for a Reparations Policy the IACHR notes,[136] inter alia, that a reparations policy ought to ensure the right of victims to comprehensive reparation for damages caused both by illegal armed groups and by the acts or omissions of State agents, based on measures that offer restitution, compensation, rehabilitation, and satisfaction. The IACHR also mentioned that said policies should be guided by the principle of comprehensiveness and conform to the parameters established by the inter-American system in reparations awarded in similar situations, which have been partially adopted in the recent case law of Colombian contentious-administrative tribunals.

118.          Decree 1290/08, which was adopted on April 22, 2008, created “the program on individual reparation through administrative proceedings for victims of organized armed groups operating outside the law,” thereby establishing an administrative reparations program.[137]   The mechanism proposed by the decree only provides assistance to victims of demobilized armed groups and is essentially based on a compensation plan with fixed parameters, measurable in minimum wages.   This law does not introduce compensation mechanisms for victims of forced displacement.

119.          It is up to the State to establish mechanisms that ensure the rights of Afro-Colombian victims to comprehensive reparation for the harm caused both by illegal armed groups and by the acts or omissions of State agents, based on measures of restitution, compensation, rehabilitation, and satisfaction in accordance with differentiated reparation parameters that include recognition and respect for identity, culture, territories, and consultation on all decisions that affect them.  Such mechanisms should take into account the effects of the conflict on the ownership and possession of individual and collective territories, and aim at the creation of streamlined and effective mechanisms for ensuring restitution of lands to victims of dispossession.  This mechanism should not be exclusive of the administrative proceedings provided for by Decree 1290 of 2008 or the mechanism contained in the Justice and Peace Law.
 

IV.        CONCLUSIONS AND RECOMMENDATIONS

120.          The disparities in social and economic conditions between Afro-descendants in Colombia and the rest of the country's population are closely linked to the social exclusion that this segment of the population has suffered for generations.  Despite the existence of laws and policies to promote the advancement of the Afro-Colombian population, equal enjoyment of rights and elimination of structural discrimination remain an enormous challenge for this population, which remains invisible through neglect.

121.          Stigmatization by the armed actors, the failure of the security forces to do their duty to protect them, omissions in the provision of assistance in the humanitarian crisis that affects displaced persons, land seizures, impunity, and, in general, racism and racial discrimination, all afflict Afro-Colombians, who, moreover, have particularly suffered greatly as a result of the armed conflict. 

122.          The Commission is concerned by the absence of a broad policy to promote racial equality, social enfranchisement of excluded Afro-descendant communities, and non-discrimination, through administrative, legislative, judicial, and institutional means.  In spite of the history of social exclusion, poverty, and neglect that this segment of the population has suffered, as there is still no clear official recognition with respect to the structural discrimination that plagues Afro-Colombians.  In the course of his visit, the Rapporteur noted that in some cases, the authorities recognized that racial discrimination had persisted in Colombian society, but denied that discrimination had any impact in terms of equal enjoyment of rights for Afro-Colombians or on their access to basic services.

123.          In order to adopt policies that effectively help to eradicate racism and overcome the racial inequalities that afflict the Afro-descendant population in Colombia, the State must recognize the impact of racism in society, the existence of structural discrimination, and the adverse effects of both on the exercise of fundamental rights by Afro-Colombians.  In that sense, it is important to recognize and examine the link that exists between racism in Colombian society, racial discrimination in public and private spheres on the part of State and non-State entities, and the prevailing conditions of poverty and social exclusion that Afro-Colombians endure.  Specifically, it is necessary to design and implement multidisciplinary public programs and policies to improve the situation of Afro-Colombians, given the multitude of social factors that have a bearing on their inadequate human rights situation.

124.          In that regard, the Commission reiterates the need to have in place procedures to improve information gathering on the social and economic conditions of the Afro-descendant population, in order to identify their basic needs and ensure the protection that the State has the obligation to provide to this group.  The availability of such statistics has a direct bearing on the adoption of policies and regulations aimed at stimulating economic development in Afro-Colombian communities and at protecting and respecting their traditions and cultural identity.

125.          The Commission values the various initiatives and measures of a legislative and administrative nature adopted by the Colombian State with a view to ensuring respect for the human rights of the Afro-Colombian population.  In particular, it considers it important to draw attention to the crucial progress toward recognition and improvement in the protection of the rights of Afro-descendants as well as protection of their cultural identity, through Law 70 of 1993, and to the various related legislative, policy, administrative and institutional instruments.  However, these initiatives demand a long-term commitment on the part of the State together with additional funding to ensure their implementation in full. There is also the resulting need to implement supplementary policies and special mechanisms to ensure the full exercise of rights and fundamental freedoms for Afro-Colombians.  In this context, the Commission reiterates its commitment to work with the State in the search for adequate solutions to the problems detected.

126.          The Commission encourages the Colombian State to honor its undertaking to promote social and economic equality and equity for Afro-descendant communities by providing sustained, long-term support to initiatives for their effective implementation and to special mechanisms to ensure their full realization.

127.          In view of these Preliminary Observations, the Commission recommends that the State:

1.                  Adopt measures to meet the obligation to protect Afro-Colombians and the community councils to which they belong from violence, especially in the case of children, women, and their leaders.

2.                  Adopt strategies with a differentiated approach to prevent forced displacement of Afro-Colombians, taking into account their social, economic, and cultural ties with their lands and communities; attend to the needs of displaced persons in keeping with the parameters established by the Guiding Principles on Internal Displacement and the decisions of the Constitutional Court; and, reach lasting solutions to their situation that respect their fundamental rights.

3.                  Investigate, prosecute, and punish crimes against Afro-Colombians.  Create a program that recognizes displaced persons as victims of the conflict and places Afro-Colombians in a separate category for the purposes of restitution of lands and comprehensive preparation.

4.                  Ensure that the specific needs of Afro-Colombians are met in the design and implementation of policies and public services.

5.                  Effectively ensure the right to prior consultation of any Afro-Colombian communities that might be affected by public or private activities which would have an impact on their territories or development conditions.

6.                  Design and implement special policies, programs, and services for the advancement of Afro-Colombian communities, particularly in the areas of poverty reduction, education, health care, housing, and investment in traditional livelihoods, in accordance with Law 70. Ensure the existence of favorable conditions for the use and enjoyment of collectively titled lands.

7.                  Adopt coordinated legislative, policy, and institutional measures to eradicate racial discrimination that include steps to protect and ensure the right to nondiscrimination, in addition to creating the appropriate oversight mechanism.