مجلس حقوق الإنسان
الدورة السادسة عشرة
البند 3 من جدول الأعمال
تعزيز وحماية جميع حقوق الإنسان المدنية والسياسية والاقتصادية والاجتماعية والثقافية، بما في ذلك الحق في التنمية
تقرير الخبيرة المستقلة المعنية بقضايا الأقليات، غاي ماكدوغال
إضافة
بعثة إلى كولومبيا* **
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موجز |
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يحظر الدستور والقانون في كولومبيا التمييز العنصري، ويحميان المساواة ويُعززانها من باب القانون ويُقران بالتنوع الإثني في البلد. وترمي سياسات حكومية عديدة إلى معالجة الفوارق القائمة. ورغم ذلك، لا تزال آثار الرق متجليةً في التهميش الاجتماعي والاقتصادي للكولومبيين المنحدرين من أصل أفريقي، والسود، والرايسال والبالنكيرو. وإذا كان البلد يعيش عموماً تراجعاً في الاقتتال والنزاع المسلح، فإن العديد من الجماعات الكولومبية المنحدرة من أصل أفريقي وقادتها، لا سيما على طول ساحل المحيط الهادئ، لا يزالون يعانون هجمات عنيفة. ويعتقد الضحايا أن مرتكبي تلك الجرائم في حقهم من العقاب فالتون. |
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* يُعمَّم موجز هذا التقرر بجميع اللغات الرسمية. أما التقرير نفسه، الوارد في مرفق هذا الموجز، فيعمَّم كما ورد، باللغة التي قدِّم بها وبالإسبانية فقط.
** تأخر تقديم هذه الوثيقة.
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وترمي أعمال العنف والترويع الآن إلى سلب السود ما يملكون من الأراضي، بما فيها المخصصة لزراعة نبات الكوكا والاتجار بها بشكل غير مشروع. ثم إن الخطط الإنمائية الجديدة الموضوعة على مستوى الاقتصاد الكلي والمصالح التجارية الساعية إلى امتلاك الأراضي واستغلال الموارد الطبيعية هي أيضا حوافز لنزع الملكية. وهكذا يرى المشردون العائدون إلى أراضيهم أن أشخاصاً آخرين قد ادعوا في غيابهم ملكيتها أو حقوق استغلالها. ورغم غزارة التشريعات والمبادرات الحكومية على مستوى السياسة العامة والبرامج، يظل واقع الحال متجسداً في ضعف التنفيـذ، وقلة الموارد والنتائج التي هي أبعد ما تكون عن تلبية احتياجات الكولومبيين المنحدرين من أصل أفريقي. |
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Annex
Report of the independent expert on minority issues on her mission to Colombia (1-12 February 2010)
Contents
Paragraphs Page
I. Introduction............................................................................................................................................... 1–2 4
II. Overview..................................................................................................................................................... 3–5 4
III. Legal framework and enforcement mechanisms................................................................................. 6–15 5
IV. Discrimination and poverty................................................................................................................. 16–32 6
A. Discrimination and racism........................................................................................................... 16–21 6
B. Afro-Colombians’ disproportionate experience of poverty.................................................. 22–27 8
C. Responses of the Government to discrimination and poverty............................................. 28–32 9
V. Violence and displacement.................................................................................................................. 33–66 10
A. Disproportionate displacement of Afro-Colombians............................................................. 33–43 10
B. Afro-Colombian women’s experience of violence and displacement.................................. 44–47 12
C. Responses of the Government to violence and displacement.............................................. 48–51 13
D. Responses of security forces..................................................................................................... 52–53 14
E. The Office of the Ombudsman................................................................................................... 54–56 14
F. Transitional justice, reparations and restitution..................................................................... 57–62 15
G. Findings of the Constitutional Court........................................................................................ 63–66 16
VI. Dispossession of Afro-Colombian lands.......................................................................................... 67–70 17
VII. The right to consultation and participation in decision-making.................................................... 71–83 18
A. Political participation................................................................................................................... 71–73 18
B. Community Councils................................................................................................................... 74–77 18
C. The right to free, prior and informed consultation and consent........................................... 78–83 19
VIII. Conclusions and recommendations................................................................................................. 84–101 20
I. Introduction
1. The independent expert visited Colombia between 1 and 12 February 2010 and was honoured to meet with President Álvaro Uribe Vélez and numerous senior Government representatives. She consulted leaders of Afro-Colombian communities and met directly with hundreds of community members. She thanks the Government of Colombia for its cooperation with her mandate, the non-governmental organizations (NGOs) and individuals that provided information and the Office of the High Commissioner for Human Rights in Colombia for its exceptional support. Since her visit a new Government has been elected under President Juan Manuel Santos.
2. The independent expert’s evaluation of minority issues in Colombia is based on the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (A/RES/47/135) and other relevant international standards, from which she has identified four broad areas of concern relating to minorities globally. These are: (a) the protection of minorities’ survival, through combating violence against them and preventing genocide; (b) the protection and promotion of the cultural identity of minority groups and the right of national, ethnic, religious or linguistic groups to enjoy their collective identity and to reject forced assimilation; (c) the guarantee of the rights to non-discrimination and equality, including ending structural or systemic discrimination and the promotion of affirmative action when required; and (d) the guarantee of the right to effective participation of members of minorities in public life, especially with regard to decisions that affect them.
II. Overview
3. The story of Afro-Colombians begins with slavery and gross violations of the rights of African descendants. As slaves escaped coastal plantations, they were forced to find refuge in geographically remote regions of the Pacific and Atlantic coasts. They built communities and livelihoods under extreme climate conditions, in isolation and poverty. Consequently, Afro-Colombians have a special attachment to their ancestral lands, as a source of refuge and survival and the environment in which their distinct cultures have been maintained.
4. According to the 2005 census, Afro-Colombians make up 10.62 per cent (4,311,757) of the population. However, the National Statistics Department (Departamento Administrativo Nacional de Estadistica – DANE) and the Ombudsman’s office acknowledge deficiencies in data gathering, stating that the actual figure is close to 25 per cent, or 10.5 million people. The census failed to accurately capture the demographic and socio-economic reality of the Afro-Colombian population[1]. Certain Afro-Colombian areas were considered inaccessible and population estimates replaced verified statistics.
5. The focus of the independent expert was on communities who identify as Afro-Colombian, Black, Raizal[2] and Palenquero[3]. She visited Bogotá and Colombia’s Caribbean/Atlantic and Pacific Coastal regions where Afro-Colombian communities are prominent, including Cartagena, San Basilio de Palenque, Turbaco (Bolívar), Urabá region and Curvaradó (Chocó/Antioquia), Apartado, Quibdo (capital of Chocó), Cali, Buenaventura (Valle del Cauca) and the municipality of Suárez (Cauca).
III. Legal framework and enforcement mechanisms
6. Colombia’s Constitution provides under article 7 that the State “recognizes and protects the ethnic and cultural diversity of the Colombian Nation”. The right to equality and non-discrimination is incorporated into the Constitution via components including: (a) a general principle whereby all persons are born free and equal before the law and shall be given equal protection and treatment by the authorities; (b) prohibition of discrimination; (c) the State’s duty to promote conditions for ensuring that equality is real and effective for all persons (art. 13); and (d) the possibility of instituting special measures to improve the circumstances of groups that are discriminated against or marginalized (art. 13)[4].
7. An institutional framework exists to formulate policies to protect the rights of ethnic groups. The Department of Indigenous, Minority and Roma Affairs and the Department of Black, Afro-Colombian, Palenquero and Raizal Community Affairs exist within the Ministry of the Interior and Justice. Additionally, the Vice-President chairs the national Intersectoral Commission for the Advancement of the Afro-Colombian, Palenquera and Raizal People.
8. Law 70 of 1993 “In Recognition of the Right of Black Colombians to Collectively Own and Occupy their Ancestral Lands” is the primary national legislation dedicated to the rights of Afro-Colombians and is exemplary in its provisions to protect and promote their rights. Article 1 states: “The object of the present Law is to recognize the right of the Black Communities that have been living on barren lands in rural areas along the rivers of the Pacific Basin, in accordance with their traditional production practices, to their collective property”. Law 70 establishes a wide range of collective and individual rights including the right to education and protection of cultural identity.
9. Law 70 establishes the process for the granting of collective property title based on a technical evaluation of requests and information including a physical description of the land, ethno-historic antecedents, demographic description, and details of traditional practices of production. Collective territories are to be “non-transferable, imprescriptible, and non-mortgageable”[5]. Article 5 requires each community to form a Community Council as its primary internal administrative body in order to receive adjudicable lands as collective property.
10. On the basis of Law 70, the Government states in its 2008 report to the Committee on the Elimination of Racial Discrimination (CERD/C/COL/14), that at that time collective titles had been allocated for 5,128,830 hectares, benefiting 60,418 families. The Colombian Institute for Rural Development (Instituto Colombiano de Desarrollo Rural – INCODER) has processed applications for collective titling since 2008 that have increased the total by an additional 454,152 hectares. In aggregate, that is an estimated five per cent of the national territory.
11. Afro-Colombian land rights under Law 70 do not include rights to renewable and non-renewable natural resources or rights to the subsoil. However, under the provisions related to use of the land and protection of natural resources and the environment, article 24 establishes that “For purposes of land resource exploitation priority will be given to proposals from members of the Black Communities”.
12. The newly elected Government of Juan Manuel Santos has announced that it is giving a high priority to human rights and that significant progress has been made towards a human rights National Action Plan[6]. A National Development Plan currently under discussion has a chapter devoted to human rights. The new Government has created a Presidential Programme for Afro-Colombian Affairs whose Director is Afro-Colombian and has committed to form a High Level Commission responsible for recommendations to improve the living conditions of ethnic minorities. Human rights provisions already exist in a number of public policy instruments at the national and provincial levels. There is currently a human rights policy for the Ministry of Defence.
13. In 2000, the Presidential Programme for Human Rights and International Humanitarian Law was created under the Vice Presidency[7]. Its objective was to design a national policy that would increase collaboration among Government institutions, including the offices of the Procurator General, the Attorney General, the Superior Council of the Judiciary, the Ombudsman, the National Planning Department, and the Ministry of the Interior and Justice.
14. The Office of the Ombudsman (Defensoría del Pueblo) is independent, in compliance with the Paris Principles, and has responsibility for ensuring the protection and promotion of human rights. The Ombudsman has a Division for Ethnic Minorities. It reports annually on human rights issues to the Congress of the Republic, receives complaints and provides assistance, information, and public defence lawyers for criminal processes. The Ombudsman has established an important early warning/risk assessment system. The Office of the Attorney General has established a unit for the prosecution of human rights and international humanitarian law violations.
15. Colombia has ratified human rights treaties most relevant to minorities including the International Convention on the Elimination of All Forms of Racial Discrimination. Article 93 of the Constitution establishes that international human rights treaties and agreements have primacy in domestic law and that the Constitution must be interpreted in conformity with them.
IV. Discrimination and poverty
A. Discrimination and racism
16. The legacy of slavery endures and is manifested in socially and economically marginalized communities facing racist attitudes and structural discrimination. The Government acknowledges that: “Afro-Colombian and indigenous communities are still victims of various forms of racial discrimination …, a complex cultural problem with its roots in the history of Colombia and Latin America, which has engendered a scenario in which the indigenous and Afro-Colombian communities have been traditionally subject to marginalization, poverty and vulnerability to violence”. The Government notes that its recognition of these problems has promoted meaningful affirmative action programmes to reduce inequality in the provision of public services and to close social gaps experienced by Afro-Colombians and other historically vulnerable populations.
17. The 2005 census introduced ethnic categories in an effort to provide statistical information required to inform public policies and affirmative action programmes to combat discrimination against Afro-Colombians. However, there is still very little official socio-economic data disaggregated by race or ethnicity to reveal inequalities experienced by Afro-Colombians. Even the human rights statistics of the Presidential Programme for Human Rights and international humanitarian law differentiate between homicides against indigenous people, trade unionists or politicians, but do not have a category for Afro-Colombian victims[8]. When considered together with the gross statistical undercount of Afro-Colombians, it seems probable that Government policies are ill-informed about the extent of the problems facing Afro-Colombian communities.
18. Afro-Colombian representatives highlight pervasive structural discrimination, including access to quality education, employment and participation in economic life, housing, effective political participation and access to justice. The estimated illiteracy index within the Afro-Colombian population is 30 per cent, compared with the national average of 16 per cent[9]. Nearly 10 per cent of Afro-Colombian children from 6 to 10 years of age do not access primary education, with the percentage believed to be far higher in some regions[10].
19. Afro-Colombians are grossly underrepresented in public sector employment, rarely represented at senior levels and face discriminatory barriers in private sector employment. Due to discrimination and poor educational achievements the employment opportunities of Afro-Colombians are largely limited to the informal sector in such areas as itinerant trading. Most rural communities rely on subsistence farming and, in some areas, on small-scale mining. Afro-Colombian women noted their overrepresentation as domestic workers and unskilled staff, often the only employment available to them.
20. In 1999, the Committee on the Elimination of Racial Discrimination, in its concluding observations (CERD/C/304/Add.76), described “de facto racial segregation in urban centres” and discrimination which results in Afro-Colombians being consigned to the poorest neighbourhoods and low quality housing. The independent expert’s consultations revealed that this situation continues in 2010. Discrimination in access to public places reportedly persists, despite at least one high-profile prosecution of a nightclub for denying entry to young Afro-Colombians[11]. The Government asserts that such incidents are not prevalent throughout the country. Afro-Colombians report that the media perpetuates negative racial stereotypes and images of Afro-Colombian people, trivializes their problems and gives little attention to their contributions to society.
21. Discrimination, poverty, and violence have had far-reaching impacts on Afro-Colombian culture and community structures. For example, community members in San Basilio de Palenque, where inhabitants maintain unique cultural elements of their African heritage, described to the independent expert how discrimination, loss of territory, poor access to education, public services and economic opportunities have led to social problems and cultural erosion. The Government, however, notes its commitment to ensuring the survival of Afro-Colombian, Black, Raizal and Palenquero cultures, languages and identities.
B. Afro-Colombians’ disproportionate experience of poverty
22. The map of high-density Afro-Colombian populations overlaps almost completely with the map of areas of extreme poverty. Some Afro-Colombian rural areas and town ghettos experience extreme poverty rates of over 60 per cent and lack access to social services and assistance programmes. The five departments with the highest percentage of the population in poverty and with the lowest quality of life are those with the highest concentrations of Afro-Colombians (Bolívar, Cauca, Córdoba, Chocó, and Nariño). Surveys and Government sources[12] reveal disturbing statistics. Some 80 per cent of Afro-Colombians do not have basic needs met. The 2005 census revealed that nearly 15 per cent of Afro-Colombians go hungry one or more days a week, over double the national average. Nearly a quarter of Afro-Colombians lack sufficient income to ensure a basic nutritional diet. Access to clean water, sanitation and electricity is at markedly lower levels for many Afro-Colombians. Chocó has the lowest per capita level of social investment and ranked last in education, health, and infrastructure.
23. Life expectancy for Afro-Colombian women (66.7 years) is nearly 11 years less than the national average, while for men (64.6 years) it is nearly 6 years less. In Chocó, the child mortality rate is 54 per 1,000, compared with Medellín where it is 8 per 1,000[13]. The average female infant mortality rate for the Afro-descendant population is 43.9, while the national average is 21[14]. The maternal mortality national average is 74.9 deaths for every 100,000 live births, while in Chocó the rate is 227.4[15]. Access to health-care services is extremely poor for many, particularly rural communities.
24. Those living in the most remote and inaccessible rural localities face particular and extreme challenges. The Government highlights problems of service delivery to such areas including lack of access and infrastructure for development and ongoing security concerns in areas strategically important for illegal armed groups. Afro-Colombian representatives believe that discrimination and neglect are important components in the poor delivery of services.
25. In predominantly Afro-Colombian urban centres, including Quibdó and Buenaventura, levels of poverty are disproportionately high and living conditions markedly deprived. Many Afro-Colombians live in poverty on the margins of urban centres as a consequence of violence and forced displacement from rural areas. Displaced rural communities, particularly women and children, have few resources and are ill-equipped for hostile urban areas where they have few options for income generation. As many as 80 per cent of displaced Afro-Colombians live in the poorest and most dangerous areas of major cities.
26. Colombia’s Constitutional Court cites research showing that 96.5 per cent of Afro-Colombians registered as displaced are living below the poverty line[16]. According to 2005 Census data, 30 per cent of displaced Afro-Colombians did not have sufficient money to eat for at least one day a week and 69 per cent of displaced Afro-Colombian children had no access to education.
27. In Buenaventura, Colombia’s largest port, estimated to be over 90 per cent Afro-Colombian, private and Government interests have brought huge investment and wealth to development of the port; however the city remains among the poorest and most neglected in Colombia. Most Afro-Colombians endure poor wages and labour conditions and substandard housing. Thousands displaced from the surrounding region live in conditions of poverty.
C. Responses of the Government to discrimination and poverty
28. State officials and institutions described to the independent expert a plethora of policy initiatives and programmes for Afro-Colombian communities including: the Long-term Integral Plan for Black, Afro-Colombian, Palenquera and Raizal Peoples 2006-2010; the National Development Plan “Community State: Development for All”, 2006-2010; the National Development Plan Resources 2006-2010 for Afro-Colombian People; the Goals and Advancements of the State’s Policy for the Pacific (CONPES 3491, 2007); “Affirmative Action Policy for Black or Afro-Colombian People” (CONPES 3310, 2004); and the Formulation of the Long-term Integral Plan Proposal for Black, Afro-Colombian, Palenquera and Raizal people.
29. In 2008, the Government established the Intersectoral Commission for the Advancement of the Afro-Colombian, Palenquera and Raizal People. Headed by the Vice-President, it includes key ministries and Government departments, advisors, municipal representatives, and legal representatives for Community Councils. The Commission’s objective was to evaluate living conditions and present recommendations to improve Afro-Colombians’ economic and social advancement and the enjoyment of their civil rights[17].
30. The Commission’s recommendations seek to address issues including racism and discrimination, low participation in political life and decision-making, weak institutional capacity, inequality in education and access to employment, lack of recognition and social valuing of diversity, poor legal security of collective property rights, and limited access to subsidy programmes. Consultations with officials however revealed that implementation currently remains at the planning stages.
31. Notable in regard to international cooperation, in January 2010, Colombia and the United States signed a joint Action Plan on Racial and Ethnic Equality with the objective of cooperation to promote equality and to eliminate racial and ethnic discrimination. They are to cooperate in areas covered under bilateral initiatives and recommendations from the Intersectoral Commission.
32. Regardless of the number of Government programmes, communities and NGOs described a reality of poor consultation, weak implementation, inadequate resources and failure to deliver sufficient tangible results. For example, housing subsidies for displaced persons do not cover the market costs of housing and few have additional resources to cover the deficit. It is evident that financial resources allocated to projects are too often failing to trickle down to the communities which urgently need services.
V. Violence and displacement
A. Disproportionate displacement of Afro-Colombians
33. Decades of armed conflict between the Government, paramilitaries and guerrilla forces have played out largely in Afro-Colombian territories. Paramilitary groups have been officially demobilized and the official position of the Government is that the “armed conflict” has ended, even though some violence continues[18]. Nevertheless, in every rural Black community that the independent expert visited she heard credible stories of ongoing violence, murders and threats. Whole communities are forced to flee their lands to seek security in towns and hostile urban environments. Communities believe that there is impunity for those who commit crimes against them.
34. While large-scale massacres and atrocities are now less common, the opinion expressed to the independent expert in many communities that she visited is that the names, uniforms or tactics of illegal armed groups may have changed, but violence remains in the form of selective murders, disappearances, intimidation and forced confinement. Their experience is that demobilization has not put an end to the violence; paramilitaries have regrouped under new names such as “Las Águilas Negras” (the Black Eagles) or “Los Rastrojos”. Afro-Colombian communities still report consistently high levels of violence and intimidation.
35. Non-governmental organizations report an alarming escalation in the violence in recent months, including some 20 murders of Afro-Colombian leaders in 2009, either that had not been investigated or where investigations had produced no results[19]. The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions[20] documented ongoing killings by illegal armed groups and members of the security forces, including cases of “false positives”[21]. He confirmed that “Indigenous and Afro-Colombian communities have been victimized by all parties to Colombia’s conflicts” and that “historically, paramilitaries, sometimes in collusion with State forces, appropriated land from the indigenous or Afro-Colombians and committed massacres to intimidate local populations or overcome their resistance”. The Government states that these acts constitute criminal phenomena which do not indicate a State policy or pattern of racial or ethnic discrimination, and, further, that important steps have been taken to investigate such acts and punish those responsible.
36. The phenomenon of “confinement” of communities (through violence, threats and economic blockade) is a cause for concern. Those in areas occupied by illegal armed groups that wish to exert control over territories and movement within them are sometimes confined to localities through force. Curfews are enforced and normal access to rivers, agricultural fields, bordering territories or markets is denied. Affected Afro-Colombian communities may consequently have little access to basic necessities and limited opportunities to continue their farming and economic activities.
37. Afro-Colombian territories are strategically important for illegal armed groups involved in narcotics production and trafficking. While violence and threats remain the initial forces propelling displacements, the motivations have changed over recent years. New macro-economic development plans have targeted these regions for one-crop agri-business investments including palm oil and banana cultivation; and for mining concessions, ranching and logging operations. Aerial fumigation by the Government to control illicit crops has also reportedly caused massive displacement and health problems due to the poisoning of lands otherwise used for legitimate food crops. The Government does not recognize fumigations as a cause of displacement; therefore these IDPs are not eligible for registration as displaced and are unable to access certain assistance programmes.
38. The experiences of communities inhabiting the river basins of Curvaradó and Jiguamiandó were described during the independent expert’s visit to Curvaradó. Community sources estimate that 3,000 Afro-Colombians were forcibly displaced from their collective territory, where they conducted small-scale sustainable agriculture. The region is strategically important to different armed groups and was the scene of military operations during the 1990s, causing initial displacements. This rich, bio-diverse region was subsequently sought after by agro-business “megaprojects”, including large-scale palm oil cultivation. Consequently, populations were displaced by paramilitaries, narco-traffickers, and those seeking to acquire lands illegally for plantations and cattle ranching. One community member recalled being warned “if you don’t leave, we’ll negotiate with your widow”.
39. In 2007, the NGOs the National Association of Displaced Afro-Colombians (AFRODES) and Global Rights reported that a total of 252,541 people had been displaced from collective Afro-Colombian territories located in 50 municipalities. That represented 79 per cent of the population registered as eligible for the right to collective land title. As of the end of 2009, NGOs estimated that Afro-descendants represented almost a third of Colombia’s displaced population[22], and that over 12 per cent of all Afro-Colombians are living in a situation of forced displacement[23]. These estimates are considerably higher than the numbers officially registered[24].
40. In 2009 and 2010, mass displacements of Afro-Colombians continued. On 17 August, 2009, 117 community members were displaced due to confrontations between illegal armed groups for control of the BajoBaudó River area. Intensive aerial fumigation of crops in collective territories in Guapí, Cauca, reportedly caused the internal displacement of 56 persons. During late 2009, three major internal displacements were recorded by AFRODES as a consequence of intensive aerial fumigations, Colombian army operations, and confrontations with illegal armed groups. On 2 March 2010, combat between the military and FARC allegedly caused displacement of 576 Afro-Colombians in the municipality of López de Micay, Cauca. Fumigation in January 2010 reportedly caused the displacement of 48 people to the Municipality of Guapí.
41. In Chocó in 2010, confrontations between armed groups caused forced displacement in Antioquia. On 5 January, 96 persons of the Afro-Colombian Community Puerto Luis in Alto Baudó were displaced due to confrontations between army forces and National Liberation Army guerrillas. On 15 and 16 February, 11 families were forcibly displaced in the rural area of Barrancón at Urrao municipality in Antioquia due to combats between military forces and FARC guerrillas. On 29 March, 234 members of the Dipurdú community in Medio San Juan in Chocó were forcibly displaced as a consequence of intimidation by “Los Rastrojos”, a new illegal armed group. On 17 April roughly 100 Afro-Colombian persons abandoned their lands in Itsmina and San Juan towns, Chocó, due to confrontations between illegal armed groups. On 15 August, 180 Afro-Colombians of the Unión Berrecuy community at Medio Baud&oa