E/CN.4/1995/111
page 32
105. While the institutional political structure is highly centralized, there
are sizeable parts of the country where the central Government’s writ barely
applies. This may be because the area is mainly controlled by insurgent
forces or because, in the absence of a specific legal framework for the
actions of the State’s own forces in the areas referred to as zonas rojas,
these forces are accustomed to having a free hand. Further, elements of the
security forces are commonly considered to have formed alliances with (if not
to have been subverted or corrupted by) drug trafficking organizations and
paramilitary groups, some of which the armed forces set up themselves.
Alliances between drug trafficking organizations and insurgent groups were
also reported.
106. Human rights violations are frequent in the context of operations of the
security forces directed against the armed insurgency or drug traffickers.
The Special Rapporteurs fully understand the difficulties faced by the
Government when confronted with guerrillas and other armed groups, both
responsible for numerous acts of violence and clearly lacking respect for the
lives and physical integrity of state agents and civilians. However, this
does not justify excessive and arbitrary use of force on the part of the
security forces. There is no excuse for extrajudicial, summary or arbitrary
executions or torture, nor for their perpetuation through impunity.
107. Yet, the impunity enjoyed by human rights violators in Colombia is almost
total. The military judiciary claims, and generally obtains, competence to
deal with cases involving security forces personnel accused of human rights
violations. The military justice system can be tough and effective in
prosecuting and punishing disciplinary offences involving manifest
disobedience of orders. But it has proved itself equally effective in
guaranteeing impunity for violations of the ordinary criminal law in respect
of acts (murder, torture, kidnapping) committed in the line of duty. Thus,
Colombia clearly fails to fulfil its obligation under international law to
carry out exhaustive and impartial investigations with a view to identifying
those responsible, bringing them to justice and punishing them. 34/
Although in a number of cases, administrative tribunals have granted
compensation to victims or their families for damages suffered at the hands of
state agents, the tribunals conducting criminal proceedings against the same
agents do not find grounds for their conviction. This strongly suggests the
lack of institutional willingness to hold the authors of human rights
violations responsible.
108. Those in favour of military jurisdiction over human rights violations
committed by members of the security forces have based their argument on the
interpretation of acts committed "in connection with" military service, as
contained in article 221 of the Constitution. The Special Rapporteurs wish to
express their concern at the fact that the Constitution, which refers to
respect for human dignity and human rights among its fundamental principles,
is interpreted in a way that continues to allow for virtually total impunity.
Furthermore, the fact that the members of the chamber of the Superior Council
of the Judicature that decides in cases of conflict of competence are elected
by Congress is not easily reconcilable with the fundamental principle of
independence of the judiciary from the legislature.
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