Vereda La Esperanza v. Colombia

States Must Conduct Effective Investigations into Serious Human Rights Abuses Committed During Armed Conflict

During a six month period in 1996 more than 16 people disappeared from the Colombian village of La Esperanza, including three children. There is evidence that the Colombian military and paramilitary forces worked together to bring about the enforced disappearances. The Inter-American Court of Human Rights is considering whether the Colombian authorities have made sufficient effort to carry out an effective investigation, and the scope of the legal obligation to do so amidst an armed conflict.

Facts

Between June 21 and December 27, 1996, the Magdalena Medio Self-Defense Group (Autodefensas del Magdalena Medio, or AMM), supported by the Colombian military, destroyed the community of Vereda la Esperanza, located in the agrarian municipality Carmen de Viboral, situated between the mountains that surround the Medellin-Bogota highway in the department of Antioquia.

The attacks led to the forced disappearances of twelve community members (among them three youths and one woman), and the extrajudicial execution of one of them because of his alleged ties to guerillas of the Popular Liberation Army (Ejército Popular de Liberación). The majority of the victims were related to one another, as well as to other members of the community.

The assault on the village was carried out with the awareness and collaboration of Colombian army troops operating from a nearby military base.

In 1999, after unsuccesful efforts to secure an adequate investigation domestically, CJL brought a case on behalf of the victims before the Inter-American Commission on Human Rights. The petitioners argued inter alia that Colombia’s investigation of the events was inadequate and failed to meet the standards set out by the American Convention. CEJIL joined the case in 2010.

Colombia submitted that the investigations were adequate, and justified the investigations’ failures to “shed light on the crimes” by noting, inter alia, “the high degree of complexity involved in the case.” 

Open Society Justice Initiative Involvement

The Justice Initiative’s amicus curiae brief to the Inter-American Court of Human Rights relied upon comparative legal perspectives from the European Court of Human Rights (ECthR), UN Human Rights Committee, and other authorities to support the Commission’s approach to show that investigations into disappearances and unlawful killings committed during armed conflict must be effective. The brief also demonstrated that high numbers of allegations and practical difficulties do not obviate the obligation to conduct effective investigates. Citing situations of armed conflict, other situations of extensive violence, and situations where various difficulties arose when conducting investigations, such as occurred in Algeria, Bosnia and Herzegovina, Iraq, Nepal, Russia, Sri Lanka, and Turkey, the brief noted that human rights bodies have dealt with such situations and have repeatedly agreed that these challenges do not diminish the obligation to conduct an effective investigation.

Arguments

The brief notes that for an investigation to be “effective” under human rights law, it must be thorough, independent and impartial, prompt and expeditious, allow for family participation and public scrutiny, and be capable of identifying and punishing those responsible:

• Thorough. For an armed conflict-related investigation to be effective it must be thorough, meaning that the State must make a serious attempt to find out what happened. Any deficiency that undermines an investigation’s ability to establish the facts or the identity of the perpetrators may mean that it was not effective. In cases of enforced disappearances, particular emphasis is placed on the State’s obligation to seek information about the fate of the victims due to the grave nature of the violation.
• Independent and impartial. An independent and impartial investigation into armed conflict-related enforced disappearances and unlawful killings requires that the individuals responsible for, and who carry out, the investigation are independent from those implicated in the events. As the European Court of Human Right (ECtHR) explained, “this means not only a lack of hierarchical or institutional connection but also a practical independence.”
• Prompt and expeditious. For an investigation to be effective it must be commenced promptly and conducted expeditiously, even in situations of armed conflict. The requirement of promptness also requires States to undertake an effective investigation on their own motion where an arguable claim is made, or the authorities have reasonable grounds to suspect that a serious human rights violation has occurred.
• Accessible to family participation and public scrutiny. An effective investigation requires family participation and public scrutiny, both of which enable victims’ families to access the investigation and secure accountability in practice as well as in theory. The ECtHR has explained that in all cases “the victim’s next-of-kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.”
• Capable of identifying and punishing those responsible. The ECtHR, African Commission on Human and Peoples’ Rights, and the U.N. Human Rights Committee have repeatedly determined that investigations into armed conflict-related enforced disappearances and killings should be capable of leading to the identification and punishment of those responsible.

The Justice Initiative brief also brought to the Court’s attention case-law from the ECtHR that even if both sides of a conflict prefer to broker an arrangement that does not “attempt to bring out to the light of day the reprisals, extra-judicial killings and massacres that took place or to identify those amongst their own forces and citizens who were implicated,” such limiting arrangements and their underlying political sensitivities “can have no bearing on the application of the provisions of the Convention.”