COLOMBIA: VII International Caravana of Jurists report

„Confronting impunity: Protect Lawyers and Judicial Independence“ is the title of the  VII International Caravan of Jurists Report in Colombia, in which 6 delegates from the International Observatory for Lawyers in Danger participated. The full report is now available in English and is summarised below.

 Executive Summary of VII Caravane Report

This report  documents the findings of the visit in August 2022 by the VII International Caravana of Jurists to Colombia.

The backdrop to the Caravana was the high murder rate of human rights defenders (HRDs) and social leaders, the alarming increase in territorial violence, and the acceleration of repression and criminalisation of social protest in recent years. As the delegation commenced, the incoming Petro government was promising to fully implement the Peace Agreement. Delegates were also aware of concerns about the Duque government’s failure to fulfill key commitments in the Agreement. With this in mind, the VII Caravana focused on the need for an independent judiciary and the protection of human rights lawyers and defenders, to confront impunity and guarantee access to justice for all.

Convening first in Bogotá for preliminary meetings with Colombian colleagues, the Caravana delegates travelled to four regions, Bolívar (Cartagena), Norte De Santander (Cúcuta), Santander (Bucaramanga) and Valle Del Cauca (Cali)  to meet with lawyers, human rights defenders, civil society organisations, representatives of rural communities, victims and survivors, judges and other justice system operators, and additional state authorities. On their return to the capital, delegates met with representatives of national and international non-governmental organisations, the judiciary and the Special Jurisdiction for Peace (JEP), and state entities such as the Public Prosecutor’s Office and the National Protection Unit (UNP).

The realities were even more concerning than expected. The Caravana heard testimonies that confirm the lack of progress in implementing the Peace Agreement over the last four years and point to complex and systemic realities that stand in the way of a just and enduring peace.

Summary of Observations of the VII Caravana

The Caravana was concerned to learn of the persecution of groups attempting to enforce the implementation of the Peace Agreement and the challenges that victims-survivors of historic and recent state violence continue to face in their quest for justice and accountability.

Among the Caravana’s other observations:

• Armed conflict, violence and instability continues in marginalised urban centres and rural areas affected by high to critical levels of ‘territorial violence’ and the associated adverse effects. Efforts to address the sources of these attacks have made little to no progress. Indeed, the number of illegal armed actors and their areas of influence have expanded.
• The number of grave human rights violations is elevated and includes phenomena such as child recruitment and unchecked gender-based violence, particularly in the border area of Cúcuta, and continued high murder rates of social leaders and HRDs.
• Rights advocates, community and social leaders operate at high risk and do not enjoy meaningful security guarantees and protection.
• The land issue is far from resolved; conflict over land and the violent forced displacement and confinement of communities and the targeting of their leaders and members, continues.
• There are patterned repressive responses to those who exercise their rights to dissent, associate together, mobilise in protest, and participate in other non-violent expressions of their opposition to dominant economic and political realities.
• The judiciary’s independence is challenged on multiple levels and denied or delayed justice and impunity is prevalent. The threats range from political interference to severe under-resourcing; contempt for and the non-implementation of judicial decisions; high risks, threats and murders of individual judges and justice operators; along with the lack of state security guarantees and protection. The state’s treatment of alleged judicial misconduct also remains a serious concern.
• The legal profession continues to be imperilled, experiencing various threats and attacks against them personally and in terms of other obstacles that hinder and interfere with their ability to carry out their professional activities.

Recommitment to territorial and comprehensive implementation of Peace Agreement

Of critical importance and integral to achieving a just and lasting peace is a recommitment to the territorial and comprehensive implementation of the Peace Agreement (and the recommendations of the Truth Commission and other bodies).^[1] The Peace Agreement marked a major milestone and provided the general basis for beginning the transition to peace in committing to address the structural causes of the decades-long conflict. Over six years since the Peace Agreement was signed, the Caravana is very concerned by the lack of progress in implementing the core commitments, along with the continuity and indeed, intensification of the violence, armed conflict and human rights violations.

This was evident in the accounts of representatives of Indigenous, Afro-Colombian and campesino communities and organisations in the regions visited. Caravana delegates to Cúcuta learned about the lack of progress in implementation of comprehensive rural reform and the drug problem; the status of these commitments is that they have stalled  and the participation of communities has been downgraded (in terms of PDETs and PNIS). Moreover, forced eradication has not only been renewed, it has intensified in recent years. Efforts of social organisations – such as the Catatumbo Association of Campesinos (ASCAMCAT) to push for implementation of the Agreement have been met with violence and stigmatisation, which renders them even more vulnerable.

The land issue has not been resolved. The Caravana delegates to Cucuta, Bucaramanga and Cartagena heard alarming testimonies about ongoing efforts to displace rural inhabitants and deter them from organising to meet their fundamental needs of access to their territories and productive land to sustain their families and meet basic needs. Emblematic examples include the threats to two campesino communities in Cesar department, Pitalito and 20 de Julio, one incident taking place during the Caravana and another in November 2022; and the situation of Afro-Colombian communities trying to  protect the environmental health health of and ensure access to the land and water sources of their livelihoods in growing crops and fishing from the adverse effects of the government’s project to reroute the Canal del Dique. Again, these efforts have been met with threats and attacks against these communities and their lawyers and HRDs.

Regarding efforts to ensure accountability for historical and recent grave crimes and human rights violations, and protection from ongoing violence by a plethora of illegal armed actors, social leaders, campesino, Indigenous and Afro-Colombian rights defenders remain at elevated risk of attacks and murders. Massacres continue in the regions characterised by high levels of territorial violence. These areas feature both state impunity and also state absence. This combination has proved intractable, and addressing it is the crucial task.

Human rights advocates at high risk – still ‘no respite for human rights lawyers’

The Caravana is extremely concerned by reports during and after the delegation that threats, attacks and insecurity continue to be the norm for the legal profession, particularly, human rights lawyers, as with human rights defenders more generally. Lawyers still run high risks in carrying out their representation work, whether in border regions and other rural areas of armed conflict, when representing displaced or confined communities and land defenders, or individuals arbitrarily detained and criminalised in the contexts of universities and social protests.

The report sets out detailed accounts of individual lawyers and lawyers’ collectives in Bogota and the regions visited. Chapter 3 examines specific cases of lawyers attacked in the course of efforts to represent victims of the repression during the national strike. Chapter 4.2 sets out additional cases in other contexts: the university, the countryside and urban areas, as lawyers attempt to perform their professional duties in cases against state and private actors, in contexts that challenge the dominant political and economic status quo. In all regions visited, Caravana delegates heard testimonies of stigmatisation, judicialisation (set-ups) and criminalisation, threats and attacks against lawyers and their families, and their clients. The situation for the ‘defenders of the defenders’ continues to be untenable.

State failures to implement meaningful security guarantees and protection measures

And yet, the State has not fulfilled its obligations to protect the legal profession and to fulfill its duties under the UN Basic Principles of the Role of Lawyers. Chapter 4.2 also elaborates the detailed critiques and recommendations of lawyers and HRDs regarding the policies and protection schemes of the National Protection Unit (UNP). The critiques are extensive, and amount to a failure of the system to provide timely, flexible, differentiated and adequate measures, including in accordance with measures ordered by the Inter-American human rights system. To the contrary, the schemes and policies are critiqued as further endangering the purported beneficiaries, and as constituting another mechanism for surveillance, and to hinder their vital work. Several lawyers and collectives reported that they are not protected but rather exposed to additional dangers. One of the women lawyers groups, ASOCOLEMAD, has shared the UNP’s communications in response to serious security incidents, which can only be described as convoluted and time-wasting, if not obstructionist. In the meantime, these and other lawyers continue to be at grave risk.

Moreover, the positions taken by the  National Protection Unit (UNP) at the Caravana’s meeting in Bogota do not instill confidence that vital changes will be forthcoming. The Caravana is concerned that in order for protection measures to fulfill their role, meaningful changes in the UNP’s restrictive policies must take place and the UNP must be adequately resourced so that it can carry out its mission properly.

Prevention of course is the ultimate answer, which starts with the commitment of sufficient financial, human and technical resources to the judiciary and the Attorney General’s Office, and in particular, to units responsible for investigating crimes and human rights violations, to facilitate impartial, independent and effective investigations of human rights violations and crimes in a prompt and impartial manner – and address the impunity that facilitates these crimes.

Structural threats to an independent judiciary and the rule of law

The Caravana was able to confirm numerous of the systemic threats to an autonomous judiciary identified by others.The threats are varied and include troubling examples of political interference and cooptation of judicial bodies, which featured strongly during the last government.

Other problems are the grossly insufficient financial, technical and human resources that threaten the system’s independent functioning and deny and delay justice for victims and survivors. The Caravana heard compelling accounts of the system’s incapacity to function properly due to the lack of adequate staffing (with particular mention of judges and prosecutors) and staggering workloads. Caravana delegates to Cartagena heard that there are many unfilled prosecutorial positions and inadequate numbers of qualified judges. Cartagena delegates heard  from judges handling a 200% increase in their caseloads. Cúcuta delegates spoke to prosecutors with impossible workloads, for example, one charged with addressing several thousands of reported threats.

The issue of weak or ineffective state control mechanisms and inter-institutional coordination was highlighted by Human Rights Ombudsman staff in Cucuta. They reported that while their staff duly issued early warnings of death threats  – part of the scheme for providing security guarantees – these warnings went unattended by the state entities charged with taking further action, and moreover, there was no sanction for this inaction.

Other themes are the ongoing stigmatisation of judges and the contempt for their decisions through non-implementation. The land restitution judges and magistrates carry a heavy workload that is unsustainable in terms of the number of cases, their complexity and the further requirement of conducting oversight of the execution of their decisions

The VII Caravana has registered the alarming continuation of threats and attacks on justice operators taking various forms, including murder. Delegates were alarmed to hear from judicial branch functionaries of threats and harassment by state security forces, as with accounts of insecurity and violence so extreme, in places like Tibú in North Santander, which saw the murder of prosecutor Esperanza Navas and the subsequent threats against and displacement of the rest in her office in June 2021, such that there is no judicial (prosecutorial) branch presence in that high conflict zone. Cartagena delegates spoke with judges about the lack of security and high levels of risk, particularly for judges in the land restitution branch; judges share vehicles, which is inadequate, and do not have personal security provisions. As one former judge observed, it is not normal that the state does not protect judges and justice operators, and effective security guarantees and protection must be implemented going forward.

Finally, as with earlier delegations, the Caravana is concerned by evident threats to the impartial investigation and prosecution of complaints of judicial misconduct, whether through disciplinary or criminal channels. Given the continuation of these concerns since earlier Caravanas (for example, in 2012 and 2014), the Caravana calls on the current government to review the cases of judges previously sentenced and currently jailed for alleged misconduct, various of whom the Caravana delegates met in Cartagena.

The government should also closely examine and remedy the problematic scope and/or application of criminal offences such as the ‘delito de prevaricato’. One of the emblematic cases is that of Judge Arney Payares, who is serving his criminal sentence. The VII Caravana shares the concerns expressed by previous Carvavana judges’ monitoring visits in 2012 and 2014^[3] regarding the grave threat to the ambit and independence of judges to interpret the law and decide cases. It remains of serious concern and a potential violation of international human rights law commitments – when legal opinions can form the basis of criminal prosecution and removal from office.

Prospects for an enduring peace with justice

The Caravana concludes that Colombia is far from being post-conflict; the conflict and sources of violence evidently continue, and with particular severity in rural and Indigenous territories and Afro-Colombian and peasant communities, but also in cities and marginalised urban settings.

At the same time, the Caravana was inspired by the creative, persistent efforts of Colombians to obtain justice and surmount impunity. Among these, this report describes several examples: (a) the People’s Tribunal of Siloé, an grassroots initiative to obtain justice and challenge impunity in the context of the 2021 national strike; (b) community protection measures underway in Indigenous and campesino territories to ensure effective protection against violations of their rights under human rights and international humanitarian law; and (c) efforts to challenge the ICC’s problematic decision to close its preliminary examination of Colombia.

There are many obstacles in the path to an enduring peace with justice. The VII Caravana affirms that the challenges for the current government and civil society are numerous and the future is uncertain. It calls on the international community to redouble its accompaniment and support of the efforts and sacrifices of Colombians to bring about the stable and just peace that is so fervently sought.

Call to action

Colombia is experiencing a human rights and impunity crisis that will escalate unless concrete steps are taken urgently to address the challenges identified in this report and others cited, particularly with regard to the comprehensive implementation of the Peace Agreement. The Caravana urges Colombia to consider and implement the recommendations of the Truth Commission Report and those contained in the UNOCHR’s report on Territorial Violence and the Colombia en Riesgo Report.^[5] We also call on the Colombian government to fully implement the UN Basic Principles on the Role of Lawyers, to take steps to ensure adequate and early protection measures for lawyers, human rights defenders, social leaders and their communities, so as to guarantee access to justice and guarantees of non-repetition.