Colombia: One of the most serious cases in regard
to the right to life. The Committee expresses its
disappointment at the Government's inaction

Still in 1989, in its 265th Report in which it examined Case No. 1477, the Committee "pointed out that, without doubt, it found itself confronted with one of the most serious cases it had received concerning the respect for the right to life, and that the dramatic situation of violence facing Colombia impeded the full exercise of trade union activities".

Consequently, the Committee expressed "its disappointment, reiterates the conclusions and recommendations it reached at its November 1988 meeting and is obliged to conclude at its present meeting that the Government has not yet adopted all the necessary and appropriate measures required from it to guarantee the right to life to trade union leaders and unionists, which is a fundamental prerequisite for the exercise of the rights contained in Convention No. 87".(9) 

Ten years have subsequently elapsed and none of the governments in power during that period has taken appropriate measures to protect the life of trade unionists, trade union leaders and social activists and, far from dismantling and controlling paramilitary groups, as demanded during that period, they have grown stronger and larger, particularly in areas with a substantial military presence, and they have extended their geographical presence to virtually the entire country.

The need for measures to eradicate paramilitary activity,
to identify and punish the murderers of trade unionists
and to avoid a repetition of violent acts against
trade union members and leaders

The Committee on Freedom of Association has taken timely, persistent, repeated and energetic action against impunity in Colombia. The Government has continued its traditional stance of paying lip-service to action but, in practice, it shows no political will to remedy the serious matter of the impunity of the murderers of trade union members and trade union leaders and, instead of effectively combating paramilitary activity, it has allowed it to increase, to the point where today members of paramilitary groups exercise their criminal activities throughout virtually the entire country.

In its third meeting in 1990, the Committee re-examined the situation of violence and impunity in Colombia, in the context of its study of Cases Nos. 1434 and 1477. In the recommendations contained in its 275th Report it stated that:

Moreover, on that occasion, the Committee expressed its concern because, according to the Colombian Government itself, "only with very rare exceptions have the judicial inquiries undertaken since 1986 made it possible to identify or condemn the persons allegedly responsible for the murders and disappearances".(11) 

In its examination of Cases Nos. 1434 and 1477 during its first meeting of 1993, the Committee regretted the difficult situation affecting the country and "deeply deplores once again the serious nature of the allegations concerning the death and disappearance of trade union officials and trade unionists" and "urges the Government to inform it whether judicial inquiries have been opened with the intention of clarifying the facts and judging and sentencing the guilty parties in order to prevent a recurrence of such situations".(12) 

In 1994, during its examination of Case No. 1686 against the Government of Colombia, the Committee in its 294th Report stated in paragraph 296 that "as regards the alleged murder of trade union officials and trade unionists, the Committee expresses its deep concern at the serious nature of these events which it deplores and repudiates". The Committee recalled that "trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists; it is for governments to ensure that this principle is respected" [see Digest of decisions and principles of the Freedom of Association Committee, 1983, 3rd edition, para. 70].

In 1995, when the Committee re-examined Case No. 1761 and Case No. 1787, as stated in its 297th Report, the Committee urged the Government "to take steps to ensure that judicial inquiries are carried out immediately to clarify all the alleged facts [crimes against trade unionists and trade union officials], determine responsibilities and punish the authors of the assassination of the trade union officials ..." which it went on to list.(13) 

The Committee reminded the Colombian Government that "it is the responsibility of governments to guarantee respect" for the principle that "the rights of workers' and employers' organizations can be exercised only in a climate that is free from violence, pressure or threats of any kind".

On that occasion, the Committee noted "that in previous cases judicial investigations were unable to identify the guilty parties in the case of acts of violence similar to those alleged" and that therefore the Committee "expresses the hope that in this case the facts will be clarified and the guilty parties punished" and reminded the Government that "the absence of judgements against the guilty parties creates in practice a situation of impunity which reinforces the climate of violence and insecurity ..." [see 292nd Report, Cases Nos. 1434 and 1477 (Colombia), para. 255].(14) 

The Government of Colombia: Between indifference and inaction.
Impunity continues

In 1997 and 1998, the Committee once more examined the case of violence against trade union members and trade union leaders in Colombia. In 1997, in paragraph 294(b) and (c) of its 306th Report, the Committee stated:

The Colombian Government's indifference prompted the Committee to draw the attention of the Governing Body of the International Labour Office to the Colombian situation, (in particular, Case No. 1787), as being one of the three most serious cases in regard to freedom of association, together with Nigeria and Sudan.(16) 

The Committee took note of the Government's communications of 29 May and 24 July 1997 and concluded: "First, before analysing the allegations and observations communicated by the Government, the Committee once again wishes to express its grave concern at the allegations which refer to a large number of murders, disappearances, as well as physical aggression, detentions and death threats against trade union officials, members and their families, as well as raids on trade union headquarters and trade union members' homes. In this respect, the Committee notes with alarm that for practically the whole of 1997 the complainants have presented allegations of violent acts against trade union leaders and members. The Committee deplores that in spite of the seriousness of the situation the Government's replies have been limited to a very reduced number of allegations. The Committee requests the Government to take steps to remedy this situation".(17) 

Subsequently, in paragraphs 84, 85 and 86, the Committee refers to the grave situation of impunity and calls for concrete action by the Government to remedy it. The Committee stated:

These paragraphs, which are cited from the most recent examination of Case No. 1787 against the Government of Colombia demonstrate that the Government's indifference and inaction have played their part in exacerbating the impunity that reigns in Colombia. In Colombia today, the exercise of trade union activities poses a serious threat to life and personal integrity, despite the fact that the Constitution currently in force recognizes and guarantees the rights of freedom of association.

Taking stock of the past year: Facts bear out the
Committee's conclusions

In giving a brief overview of the events of the past year, we must begin with a recent occurrence. On Saturday, 18 April, the lawyer Eduardo Umaña Mendoza was murdered in his home; he was not only a prominent defence counsel for political prisoners, having devoted his professional life to bearing the banner of human rights, but at the time of his death he was also defence counsel for members of the Workers' Trade Union (USO) who were being tried by the faceless courts. In 1997, he succeeded in proving that some of the cases had been based on false testimony by witnesses who testified several times as though they were different people, which was made possible by the fact that their identity was not revealed. The cowardly manner in which Umaña was murdered denotes the level of criminal involvement and intent which has generated increasing terror in the country.

Two days prior to Umaña's murder, a former popular activist who had ceased her involvement in organizational activities some years previously, was murdered in her home in Bogotá. On 27 February, the President of the Human Rights Committee of Medellín, Jesús María Valle Jaramillo, was murdered in his office; he was a well-known defence counsel for political prisoners and popular activists in his region.

A further ten massacres have occurred in the past four months, most of them directed against rural workers. On 16 May, 12 individuals were massacred in the urban area of the oil centre of Barrancabermeja and 34 persons disappeared during the same attack by paramilitary forces. That event gave rise to a strike by oil workers, in the broader context of a civic strike which received the general support of the citizens of Barrancabermeja.

Human rights violations against trade union members and leaders during 1997 are briefly outlined in Chapter III of this report.

The divergence between national legislation and
Conventions Nos. 87 and 98

The Substantive Labour Code entered into law in 1950. It is clear that a restrictive approach to freedom of association rights prevailed in the minds of the authors of the initial draft. For instance, standards relating to trade union membership and collective bargaining were not applicable to "public servants" simply because they were public servants, regardless of their level of responsibility in the state administration; trade unions were not permitted to engage in political activity in federations and confederations; they were denied the right to call or declare strikes and strikes were banned in "public services" which were understood in the broadest sense. The authors of the Code drafted legislation in such a way as to accommodate excessive interference by the administrative authorities in the establishment and activities of trade unions.

This restrictive attitude on the part of the first authors became more marked during the years of the military government (1953-57) which employed its powers under a state of emergency to introduce numerous amendments to trade union legislation, including the attribution to the administrative authority of decisions regarding the legality of strikes (Ministry of Labour), which had formerly been exercised by labour judges. Colombia lived for over 40 years under martial law in a state of emergency, and the civilian governments which succeeded the dictatorship adopted the method of introducing reforms to the Code under emergency powers. This entire body of regulations, which had originally been intended to serve an interim purpose, was subsequently adopted without further democratic discussion as permanent legislation.

In 1991, the new Constitution sought to remedy the contradictions between domestic legislation and international labour conventions. Article 53 of the Constitution provided that duly ratified international labour conventions were part of domestic law.(18) 

It would be only logical to conclude that any legal provisions which were contrary to the Conventions to which Colombia was party were relegated, or more accurately, replaced under the above-mentioned constitutional mandate. But the State did not view the matter in this light. The Ministry of Labour and Social Security continues to take the standards embodied in the Code as its reference, the judges of the Republic continue to treat the provisions which are contrary to the conventions as applicable and employers cling to many of the laws and decrees which are contrary to the body of international standards.

(a) The Committee of Experts on the Application of
Conventions and Recommendations

This divergence between the law and practice, and Conventions Nos. 87 and 98 has been known to the Committee of Experts on the Application of Conventions and Recommendations for over ten years, and it has addressed observations and direct requests to the Colombian Government which have not been complied with by any of the three Governments in power between 1987 and 1998.

The requirements of the Committee of Experts in 1987

We will continue the approach adopted in the first part and review the main observations of the ILO's Committee of Experts since 1987, in order to demonstrate how the Colombian authorities, which should have been responsible for acting on these observations, in fact ignored them.

In 1987, the Committee of Experts made observations which primarily related to those aspects of national legislation which implied interference in the internal administration of trade unions and those which hampered the right of trade unions to promote and defend the interests of workers, on the basis that such provisions were contrary to Convention No. 87.

In regard to interference in the internal administration of trade unions, the observation of 1987 stated: "The Committee has referred to the following points:" and went on to mention that the provisions of the Substantive Labour Code and associated standards which, among other things, allowed the Ministry of Labour to approve or reject amendments to the constitutions of unions, those under which public servants may exercise control over the internal management of trade unions, the strict regulation of trade union meetings, the presence of authorities at general assemblies convened to vote the calling of a strike, the obligation to be Colombian for election to trade union office, the requirement that the Ministry of Labour must approve the election of trade union officers, the suspension, with loss of trade union rights, of leaders who have been responsible for the dissolution of a union, etc. In conclusion on this point, having noted the statement by the Government relating to the scope of articles 485 and 486 of the Substantive Labour Code, "the Committee considers that section 486 confers on public officials excessively wide powers of intervention in trade union affairs, contrary to Article 3, paragraph 2, of the Convention, which provides that the public authority shall refrain from any interference which would restrict the rights recognised in the Convention", ending with the statement that "the Committee repeats its comments on the other provisions, to which the Government does not refer".

In regard to the restrictions on trade unions in promoting and defending the interests of workers, the Committee of Experts stated: "The Committee would also refer again to the following provisions on which it has already commented but which are not mentioned in the report of the Government" and went on to list, among others, the prohibition on trade unions from holding meetings on political matters, the prohibition of federations and confederations from calling a strike, the prohibition of strikes in non-essential services, the power of the President to order the termination of a strike affecting the interests of the national economy and to submit disputes to arbitration, the automatic dismissal of trade union leaders who have intervened or participated in an illegal strike.

It closed its observation by stating that: "the Committee would be grateful if the Government would indicate in its next report the measures it could adopt to bring the legislation into conformity with the Convention in the light of the above comments".(19) 

It is clearly apparent from the substance of the observation that the Committee of Experts had been studying these matters prior to 1987.

Observations by the Committee of Experts between 1989 to 1991

In the light of the promulgation of the new Constitution in 1991, we will jointly review the statements of the Committee of Experts between 1989 and 1991 inclusive, given that the Committee issued no observations on Colombia in regard to the Conventions on freedom of association (Nos. 87 and 98) in 1988.

In 1989, the Committee of Experts not only took note of the Government's statement, but also of the comments by the CUT, the Government's response to the comments, and also the 259th Report of the Committee on Freedom of Association.

On that occasion, the Committee of Experts supported the Committee on Freedom of Association's report. In regard to the murders and atmosphere of violence, "it refers to the conclusions of the Committee on Freedom of Association" and "in particular, the Committee of Experts, as the Committee on Freedom of Association has already done, expresses its deep concern at the alarmingly violent situation confronting Colombia, which in general makes it impossible for the normal living conditions of the population to be maintained and prevents the full exercise of trade union activities".(20) 

The second part of the Committee's comments appears under the title "Provisions of the legislation criticized by the Committee in previous comments",(21)  with the observation divided into the two groups of standards identified in the observation of 1987, and covering the same points originally noted.

In 1989, the Committee of Experts "concludes that the legislation is contrary to the provisions of the Convention on many points" and, "requests the Government to consider the in-depth reform of the trade union legislation that is in force in order to bring it into conformity with the requirements of the Convention and to report on any measures that it adopts in this respect".(22) 

In the same year, the Committee of Experts examined Convention No. 98 and asked the Government: "to take measures to amend the legislation (sections 414 and 416 of the Labour Code) in order to grant public servants who are not engaged in the administration of the State the guarantees set out in the Convention, which include the negotiation of collective agreements and adequate protection against acts of anti-union discrimination".(23) 

In 1990, the Committee of Experts examined Convention No. 87 in extenso and, using the formula "... the Committee recalls the divergences existing between the national legislation and the Convention:", and goes on to repeat all the points mentioned above, including reference to the violation of the Convention inherent in the requirement that 75 per cent of members of a trade union should be Colombian.

On that occasion, the Committee of Experts, "notes that the assurances given by the Government in its last report concerning the creation of a special committee to examine the whole of the labour legislation, which is now outdated in the light of its comments, in order to bring the legislation into conformity with ILO Conventions" and concludes by stating that the Committee "trusts that the revision of the legislation that has been announced will make it possible to achieve firm results as regards all the points that have been raised".(24) 

As early as 1991,(25)  the Committee of Experts was pleased to know that Act No. 50 of 1990 had "made a number of improvements to the previous provisions as regards freedom of association and collective bargaining", which it went on to list. "Nevertheless, the Committee regrets that Act No. 50 has omitted to take into account certain comments that the Committee has been making for many years on the provisions of the legislation that are incompatible with the Convention. These comments concern the following points:" and the report goes on to list all the observations made in previous years, with the addition of a major discrepancy with the Convention which Colombia had used to sanction social protest, namely "the prohibition of strikes when they are called for the purpose of requiring the public authorities to take action in relation to matters which fall within their exclusive preserve".

It emphasized that there remained "many provisions that are still not in accordance with the Convention" and invited the Government to "take the necessary measures as soon as possible to bring the law and practice into full conformity with the Convention".

In respect to Convention No. 98, the Committee of Experts repeated the importance of the right to collective bargaining and protection for public servants.

From the new Colombian Constitution to 1997, six years
of discrepancy between national legislation and practice
and Conventions on freedom of association

In 1992,(26)  the Committee noted the Government's report, the discussions at the Conference in 1991 and the report of the direct contacts mission in 1991. It noted with interest the provisions of the new Constitution and the repeal of particular legal provisions which were contrary to Convention No. 87.

However, it also emphasized those provisions of the legislation which remained in force and were incompatible with the Convention. In keeping with the usual manner in which it grouped its observations regarding Colombia in connection with Convention No. 87, it made reference, among others, to the following: the requirement that two-thirds of the members should be Colombian to establish a trade union; the supervision of the internal management and meetings of unions by public servants; the presence of the authorities at general assemblies convened to vote on the calling of a strike; the prohibition on federations and confederations from calling a strike; the prohibition of strikes in non-essential services; the possibility of dismissing trade officers who have intervened or participated in an illegal strike.

It urged the Government to continue to take measures to adapt its legislation to the requirements of the Convention.

In 1992, the central issue in connection with Convention No. 98 continued to be collective bargaining by public servants and the protection against persecution, for trade union activity in the same sector.

The following year,(27)  the Committee of Experts noted that there had been some progress in 1992, "but pointed out that there were still a number of provisions which were not in conformity with the Convention" and listed those which it had previously indicated in earlier years and which, despite the introduction of the new Constitution in 1991, continued to be implemented, and it repeated its request to the Government to continue to take measures with a view to adapting legislation to the Convention.

In 1994,(28)  the Committee of Experts confined its attention regarding freedom of association to the submission of observations to Colombia regarding Convention No. 98, emphasizing the right of public employees who were not engaged in the direct administration of the State to negotiate collectively and to protection against acts of discrimination. It asked the Government in its next report "to provide information on any changes in the legislation in this respect".

In 1995 and 1996, the Committee of Experts made further observations on the discrepancies between domestic legislation and Conventions Nos. 87 and 98. In 1995,(29)  its observation related to Convention No. 87 and repeated what it had been saying since 1987, stating that "the Committee again expresses the hope that the Standing Tripartite Committee provided for in the National Constitution will be set up in the near future", and "asks the Government to ensure that the amendments made to labour legislation by the above Committee takes account of all the comments that the Committee of Experts has been making for many years". In 1996,(30)  the Committee's observation dwelt on Convention No. 98 and restated the right of public servants to negotiate their working conditions collectively.

In 1997, after reviewing its earlier comments,(31)  the Committee of Experts noted with interest the Government's statement that "it has prepared a Bill envisaging the repeal or amendment of various provisions of the Substantive Labour Code criticized by the Committee, and that the authorities of the Ministry of Labour have undertaken to submit this Bill to the Congress of the Republic during the current legislative period".

In connection with Convention No. 98, the Committee restated the right of public employees who were not engaged in the administration of the State to benefit from collective bargaining. "The Committee expresses the firm hope that the Congress will adopt the Bill as soon as possible to bring the legislation into conformity with the Convention."

On how the Bills passed by the Government to adapt legislation
to the Conventions on freedom of association were shelved

In its report to the 86th Session of the Conference, the Committee of Experts recalled that in its previous observation it had noted that the Government had prepared a Bill with the assistance of the ILO mission on freedom of association which visited the country in October 1996, and identified the provisions to be repealed or amended under that Bill. It also recalled that the Government had prepared a preliminary draft of a Bill defining the concept of essential public services and containing other provisions for the peaceful settlement of collective labour disputes with a view to adapting legislation to international standards.

On that occasion "the Committee notes that the Government has indicated that the Congress of the Republic decided to shelve the above-mentioned Bill and that, in these circumstances, the Ministry of Labour is studying the possibility of submitting to Congress the Labour Statutes referred to in article 53 of the Constitution and to include in it the amendments embodied in the shelved Bill. The Committee therefore stresses the need to amend or repeal with the utmost dispatch the above-mentioned provisions of the Substantive Labour Code in order to bring the legislation into compliance with the Convention".(32) 

With regard to the preliminary draft on essential public services, the Committee "observes that the Government has not mentioned in its report whether the preliminary draft Bill in question has been finally drafted with the aim of presenting it to the Congress of the Republic". The Government naturally made no mention of this draft since it was never presented to Congress.

With respect to Convention No. 98, the "Committee recalls that for many years it has been emphasizing the need for public employees who are not engaged in the administration of the State to benefit from the right to collective bargaining, and that in its previous observation it noted that a Bill guaranteeing this right for public employees had been submitted to the Congress of the Republic" and "in this respect, the Committee regrets to note that the Government states that the Congress of the Republic decided to shelve the Bill in question".(33) 

"The Committee expresses the hope that the Government will, as soon as possible, take measures to bring the legislation into conformity with the Convention."

Furthermore, it recalled that it had previously requested the Government to keep it informed regarding the need for industrial or branch unions to comprise more than 50 per cent of the workers in an enterprise in order to be able to bargain collectively and on the right for federations and confederations to bargain collectively. It observes that the Government had not responded to that observation and requested it to take measures to amend the legislation so as to guarantee industrial or branch unions which did not compromise more than 50 per cent of the workers concerned the possibility to bargain collectively.

The International Labour Conference of 1997.
Colombia: Promises that are not kept

The discussions within the Conference's Committee on the Application of Standards over the last ten years in examining Colombia's failure to comply with Conventions Nos. 87 and 98 regarding freedom of association might likewise be reviewed. However, the discussion will be confined to the debate which occurred during the 85th Session, 1997.

In connection with the draft Bill drawn up with assistance of the mission which visited the country in 1996, a Government representative stated that "the Bill was not an isolated act of the Government, much less a simple announcement as a way to escape criticism in this forum. On the contrary, it was an indication of a government policy oriented towards the promotion and respect of human rights, with special emphasis on the international labour Conventions which Colombia would fulfil".(34) 

The speaker also referred to the punishment of social protest and indicated that a committee had been established to revise of the penal laws and to lift summary discretion concerning certain penal processes related to workers. He went on to refer to a Bill on collective bargaining and collective contracts in the public sector, 18 articles which had been agreed upon by the social partners.

In fact, the Bills referred to by the Government representative of Colombia were shelved by the Congress of the Republic. Despite the fact that the Government had at its disposal constitutional instruments to urge the Congress to discuss and approve the Bills, the Government failed to do so, abandoning them and failing to show the interest claimed in the discussion before the Conference's Committee on the Application of Standards.

In addition, a full year elapsed during which the Bill on essential services and the right to strike was not submitted for discussion by the Congress of the Republic.

Lastly, while it is true that a committee exists that is responsible for reviewing provisions punishing social protest, the fact of the matter is that after 11 months of work, the trade union federations and human rights NGOs left the negotiating table on account of the Government representatives' determination to scupper all progress and agreements achieved, thereby returning to square one. This breakdown of talks happened in March, and the Government has made absolutely no sign that it wishes to recognize the progress achieved previously or to clarify with the trade union movement the differences set down in writing.

The numerous endeavours of the ILO

It should be made clear that, in addition to the action taken by the supervisory bodies of the ILO, as mentioned, the International Labour Office has made numerous attempts to assist the Government of Colombia in bringing legislation into conformity with international labour Conventions and, in so doing, to comply with the mandate of article 53 of the Constitution.

Hence, over the last ten years, the following direct contacts missions on the subject of freedom of association have been made to Colombia:

The reports of the missions were duly reviewed by the supervisory bodies.

In addition, the Lima Regional Office has always been available to provide advisory assistance to the Colombian Government.

Conclusions

On the basis of the contents of this report, we may conclude in summary that:

  1. Over the last 11 years violence has been the main obstacle to the exercise of freedom of association, taking over 1,500 lives and causing several thousand obligatory geographical transfers and several hundred disappearances of workers.
  2. The main problem in connection with the exercise of freedom of association in Colombia lies in the impunity protecting criminals who murder, cause to disappear, torture, impose geographical transfer and harass trade union members and leaders. This impunity has long existed and the State has taken no effective measures to eliminate it. The Government has shown no genuine political will to promote the identification, prosecution, trial and punishment of the criminals involved.
  3. Colombian labour legislation and certain provisions of the Penal Code are contrary to Conventions Nos. 87 and 98.
  4. The Colombian State, represented by the Government, does not honour the international commitments ensuing from its position as a Member of the International Labour Organization and, ignoring the principles of international law of pacta sunt servanda and good faith, fails to abide by the decisions and recommendations of the supervisory bodies.

C. Decisions taken by the Governing Body
at its 273rd Session (November 1998)

207. At its 273rd Session (November 1998), the Governing Body considered that it would be inconsistent with the judicial nature of the procedure provided for in article 26 and the following articles of the Constitution that there should be any discussion in the Governing Body on the merits of the complaint while a proposal to refer the complaint to a commission of inquiry is pending before the Governing Body and until the Governing Body has before it the contentions of the government against which the complaint is filed, together with an objective evaluation of these contentions by an impartial body.

208. The Governing Body observed that the Committee on Freedom of Association has been examining a number of complaints submitted by workers' organizations alleging violation of union rights in Colombia. In some of these cases, the Governing Body has approved the provisional conclusions drawn up by the Committee. Other cases have been held in abeyance by the Committee to await the contentions of the Government. It recalled that the Committee of Experts on the Application of Conventions and Recommendations recently drafted observations to the Government of Colombia regarding the observance of the Conventions referred to in the complaint submitted under article 26 of the Constitution and that in 1998 the Committee on the Application of Standards of the Conference discussed some matters relating to the observance, in practice and under law, of Convention No. 87.

209. The Governing Body recalled that it had previously agreed (154th Report of the Committee on Freedom of Association, paragraph 33) that, in cases such as the present one, where various complainants have had recourse to the different procedures established by the Organization concerning the implementation of Conventions and the protection of freedom of association, it would be desirable to coordinate these procedures and to take account of the Committee's mandate to examine complaints in this connection. In the present case, the Governing Body observed that the complaint filed by a number of delegates to the Conference, under article 26 of the Constitution, largely concerned matters which were already before the Committee in the context of the special freedom of association procedure. It considered that in deciding on the appropriate measures to be taken regarding this latest complaint, it would be useful if it had the recommendations of the Committee on the pending cases and on the complaint submitted under article 26.

210. The Governing Body therefore took the following decisions at its November 1998 meeting:

(a) the Government of Colombia, as the Government against which the complaint has been filed, should be requested by the Director-General to communicate its observations on the complaint so as to reach him not later than 15 January 1999;

(b) that the Governing Body, during its 274th Session, should decide, in the light of: (i) the information provided by the Government of Colombia in connection with the complaint; and (ii) the recommendations of the Committee on Freedom of Association regarding the complaint and the cases which are still pending, whether they should be referred as a whole to a commission of inquiry.

211. Furthermore, the Governing Body considered that, in the event of a commission of inquiry being appointed, its members would be designated in accordance with the same criteria, and would serve in the same conditions, as the members of commissions previously appointed under article 26 of the Constitution. They would serve as individuals in their personal capacity, would be chosen for their impartiality, integrity and standing, and would undertake by a solemn declaration to carry out their tasks and exercise their powers as members of the Commission "honourably, faithfully, impartially and conscientiously". A solemn declaration in these terms would be in the nature of that made by judges of the International Court of Justice. The Officers will make proposals concerning other arrangements at the appropriate stage.

D. The Government's reply

212. In a communication dated 15 January 1999, signed by Mr. Camilo Reyes Rodríguez, Ambassador and Permanent Representative of Colombia to the United Nations Office and other international organizations at Geneva, the Government submitted the observations and information requested by the Governing Body. The Government's observations about the complaint concerning the non-observance by Colombia of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), made by delegates to the 86th (1998) Session of the Conference under article 26 of the Constitution of the ILO are reproduced in full below.

Background

  1. During the 86th Session of the International Labour Conference, Workers' delegates from 26 countries made a complaint under article 26 of the Constitution of the ILO.
  2. At its 273rd Session (November 1998) the Governing Body decided to ask the Government of Colombia to communicate its observations on the complaint not later than 15 January 1999. It also requested the recommendations of the Committee on Freedom of Association regarding the complaint and the cases which were still pending, and whether they should be referred as a whole to a commission of inquiry.
  3. In a communication dated 23 December 1998, the Chief of the Freedom of Association Branch of the International Labour Office informed the Government of Colombia that the cases still pending before the Committee on Freedom of Association were the following: 1787, 1948, 1955, 1962, 1964, 1973, 1916 and 1925.

Content and scope of the complaint

The complaint filed by Workers' delegates to the 86th Session of the International Labour Conference was based on the one hand on the cases pending before the Committee on Freedom of Association and on the other on the observations made to the country by the Committee of Experts on the Application of Conventions and Recommendations owing to the failure of the Government of Colombia "to adopt appropriate measures for the satisfactory observance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)".(35) 

The complaint centres on the idea that the State of Colombia is persecuting the trade union movement and trying to eradicate it. The workers consider there to be two facets to the policy being pursued. Firstly, there is the violent persecution and physical elimination of workers and trade union officials because of their activities: the complaint alleges that "in Colombia, over the last decade, violence has been brought to bear on trade union members and officials because of their activities".(36)  It also notes that "acts of violence against trade unionism may be attributed to state agents, members of paramilitary forces and action by guerrilla groups".(37) 

At the same time, there is the use of impunity as a way of facilitating and perpetuating the policy of physical extermination: "The Government has shown no genuine political will to promote the identification, prosecution, trial and punishment of the criminals involved."(38)  "Violence against trade union officials and members is certainly the main factor obstructing freedom of association in Colombia, exacerbated by increasing impunity and the absence of the political will to eradicate it."(39) 

The second facet of this macabre policy is the alleged lack of political will to bring national legislation into conformity with the international labour Conventions ratified by the country and in particular Conventions Nos. 87 and 98. "In addition, our report focuses on the manner in which Colombia has ignored the requirements of the Committee of Experts on the Application of Conventions and Recommendations to bring domestic legislation and national practice into conformity with the provisions of Conventions Nos. 87 and 98."(40)  "This year we wish to draw attention to the most serious aspects of the complex situation of freedom of association violations in Colombia, namely ... (b) absence of the political will to bring legislation into conformity with the provisions of Conventions Nos. 87 and 98."(41)  Rather than being directed at the physical disappearance of individuals, this aspect of the policy targets the trade union movement in general, by applying legislation which, being contrary to the Conventions in question, serves essentially to prevent it from operating.

Legal basis of the complaint

"... we request that the complaint be examined by a commission of inquiry which would draw up its report as provided in article 26, paragraph 3, of the ILO Constitution ...".(42) 

Content and scope of the declarations by the
Government of the Republic of Colombia

The Government of the Republic of Colombia makes the following basic declaration:

With respect to the allegations concerning the death of workers and trade union officials it declares:

In Colombia there is no government policy of persecution, either against workers and trade union officials or against the trade union movement. The structure of the Colombian State, its institutions and the supervisory mechanisms of the public authorities make it impossible for a policy which represses the rights and freedoms of citizens to exist or to be implemented. The acts of violence against workers and trade union officials are the result of the complex climate of violence in the country, to which the State has been responding with significant measures in the areas where the violence originates. We do not claim ignorance of the problem of violence that is ravaging the country. On the contrary, all the measures taken by the State, and in particular by the present Government, with respect to the peace process are specifically aimed at broadening areas for consultation and dialogue in order to achieve peace and allow Colombians, including, of course, workers and trade union officials, to live together in peace.(43) 

The peace process in which the Government of Colombia is currently engaged therefore constitutes irrefutable evidence of an ongoing state policy to achieve the peaceful coexistence for Colombians that is so eagerly sought. Achieving this peace would no doubt contribute significantly to the full application of human rights given that it would imply the disappearance of not the only but certainly one of the principal causes for the transgression of those rights. The fact that this is a state policy can be seen in the various peace processes pursued in the past which resulted in a number of insurgent movements being incorporated into civilian life. The Government refers to these in Appendix I.

From a standpoint that does not take due account of all the factors contributing to the complexity of the problem, the violence is attributed to the Government of Colombia and it is asked to stop any further violence against the Colombian people. This results in inappropriate diagnoses and solutions. We are heartened by the conviction that the Committee on Freedom of Association and the Governing Body will recognize the complexity of the problem of violence and will understand the Government's clarifications in this respect.

As regards the divergence between domestic legislation and international labour Conventions, and in particular Conventions Nos. 87 and 98 that are the focus of the complaint, the Government states that it has been and that it continues to be state policy to comply with the Constitution of the International Labour Organization and the international Conventions ratified by the country. In addition, naturally, to also complying with the requests of the supervisory bodies, as long as they are in keeping with the provisions of the Conventions and the political and legal structure of Colombia.

Colombia has consistently pursued this policy, not as an act of liberality of successive governments, but as an expression of the country's political, institutional and legal structure, which obliges the State to promote and respect the rights and freedoms of its citizens.

The most representative advances in its legislation occurred with Act No. 50 of 1990. The Committee of Experts recognized the magnitude of the results by describing Colombia, in various parts of its General Survey of 1994, as one of the few "cases of progress" throughout the world with respect to these Conventions.

Allegations relating to the death of
workers and trade union officials

The complainants' claims

The following quotations from the submitted complaint serve to summarize it:

"In Colombia, over the last decade, violence has been brought to bear on trade union members and officials because of their activities."(44) 

"Acts of violence against trade unionism may be attributed to state agents, members of paramilitary forces and action by guerrilla groups."(45) 

"This report focuses on the matter of the impunity of the perpetrators of violations of the rights of trade union members and officials. Violence against trade union officials and members is certainly the main factor obstructing freedom of association in Colombia, exacerbated by increasing impunity and the absence of the political will to eradicate it."(46) 

"Society as a whole has been permeated by the intolerance demonstrated by the protagonists in the prolonged armed conflict."(47) 

"Civil and political rights of the Colombian population and of trade union members and leaders in particular, such as the right to life, integrity and personal liberty, are violated with impunity."(48) 

The Government's declaration

The Government reiterates the complexity of the problem of violence in Colombia which the following conclusions serve to illustrate. These conclusions should be carefully examined and evaluated within their particular social, economic and military context. The corresponding figures have been taken from national statistics.

To conclude this section the Government would like to recall the words of the ILO direct contacts mission to Colombia in 1996 which stated in its report:

Allegations relating to the legislative disparities between
domestic legislation and Conventions Nos. 87 and 98

The complainants' claims

The following quotations from the complaint serve to summarize this point:

"Colombia has ignored the requirements of the Committee of Experts on the Application of Conventions and Recommendations to bring domestic legislation and national practice into conformity with the provisions of Conventions Nos. 87 and 98."(49) 

"Despite the sustained endeavours of the Committee of Experts to urge the Colombian Government to comply with the Convention and to promote the necessary reforms, the situation today is as it was ten years ago."(50) 

The Government's declaration

In 1976 Colombia ratified Conventions Nos. 87 and 98, thereby confirming its position vis-à-vis the ILO's international standards.

The ratification of Conventions is subject to two provisos: first, that the process of adapting legislation shall take the necessary time for institutions, particularly socio-industrial ones that are so sensitive to change, to assimilate the amendments, adapt themselves and in this way guarantee that they last.

The second premise lies in the conviction that the commitments entered into when ratifying an instrument are contained in the text of that instrument.

As regards the first proviso, the executive branch and the international community understand that the process of amending legislation is a permanent, continuous and time-consuming one, which is not due to the legislative or executive branches' lack of political will -- although it is relatively easy to present and sell this idea -- but because of the actual nature of law as a science.

Article 19, paragraph 5(d), of the Constitution of the ILO makes provision for the fact that adjustment processes do not all take place at one specific time when all relevant changes are made and after which the law is frozen. If we also consider the work of the supervisory bodies, in particular the Committee of Experts, we find that the number of countries on which comments have been made with respect to Conventions Nos. 87 and 98 has grown disproportionately. Comments have risen by 260 per cent for Convention No. 87 and by 755 per cent for Convention No. 98. The increase cannot be put down to the number of ratifications over the same period, which was only 65 per cent for Convention No. 87 and 69 per cent for Convention No. 98.

It can be concluded from the above that disparities between national legislation and Conventions do not necessarily and irremediably prove the existence of a state policy to repress the trade union movement, as the complainants insinuated in their complaint. If this were the case, a shadow of doubt would hover not only over all the Members cited in Report III of the reports prepared by the Committee of Experts, particularly those on which some type of comment has been made concerning Conventions Nos. 87 and 98, but also over the effectiveness of the Organization's international cooperation. There are even less grounds for such a rash conclusion if the results achieved by a country during the process of adapting its legislation have been recognized by the Organization itself as "cases of progress". This is exactly what has happened with Colombia.

Three points illustrate the Colombian policy of compliance with the ILO: (a) the results achieved through the enactment of legislation over the past decade to overcome the discrepancies between domestic legislation and Conventions Nos. 87 and 98; (b) the efforts made by the executive branch to obtain parliamentary approval of bills submitted to promote the harmonization of legislation; (c) the current Government's intention to submit a bill with the same objective to the Congress of the Republic.

Results achieved through the enactment of legislation
to overcome the legislative discrepancies with
Conventions Nos. 87 and 98, with particular
reference to Act No. 50 of 1990

Guided by the terms with which the Committee of Experts recognized the progress achieved through the enactment of Act No. 50 of 1990, describing Colombia in its 1994 Survey on freedom of association as one of the major "cases of progress" in the world in 1983-93 with respect to Conventions Nos. 87 and 98, we can state that considerable results have been achieved in the process of adjustment to international labour legislation, and that these results are a tangible reflection of a state policy of recognition of and respect for trade union rights. In other words, it is clear that Colombia has fulfilled its obligations with respect to the adoption of measures to give effect to the provisions of these Conventions, as will be shown below.

The Committee has on numerous occasions noted with satisfaction the progress made by Colombia, but it appears that these statements were not given sufficient attention by the complainants when they prepared and drafted their complaint. Here are some examples:

(1) "The Committee noted with satisfaction the repeal of the provisions which required ministerial approval of amendments to the rules of first-level trade unions, federations and confederations" (p. 50, para. 111); (2) "The Committee noted with satisfaction that the provisions making the election of officials subject to approval by the administrative authorities had been repealed" (p. 51, para. 115); (3) "The Committee noted with satisfaction the repeal of provisions which regulated trade union meetings too strictly" (p. 57, para. 128); (4) "In the case of Colombia, the Committee noted with satisfaction the repeal of s.379(a) of the Substantive Labour Code which prohibited trade unions from intervening in political matters" (p. 58, para. 130); (5) "The Committee noted with satisfaction that s.39 of Act No. 50 of 1990 increased the amount of sanctions applicable in the event of acts that interfere with the right of association" (p. 100, para. 222); (6) "Significant improvements have also been achieved in other areas: (...) establishment of organizations without prior authorization (...) and to organize their administration and their meetings freely" (both these cases are referred to as examples of Colombia) (p. 122, para. 268); lastly, the statement made with respect to Convention No. 98 that "These cases of progress mainly concern measures strengthening the protection against anti-union discrimination", where Colombia is cited as an example (p. 125, para. 278) (emphasis added).

The Government of Colombia is very surprised at the complainants' insistence on the need to reform domestic legislation in the areas underlined in the above paragraph, which were amended in 1991 as the Committee of Experts itself notes.

In addition to the above reforms, Act No. 50 of 1990 established the automatic recognition of the legal status of trade unions (section 364 of the Substantive Labour Code and article 39 of the Constitution); eliminated the possibility of cancelling or suspending the legal status of trade unions, with these procedures only being possible through legal means (section 380(2) of the Substantive Labour Code and article 39 of the Constitution); eliminated the restriction on the right of enterprise management staff to form associations and extended the guarantee of trade union immunity (section 406 of the Substantive Labour Code); permitted the establishment of mixed unions made up of public officials and state employees (section 414 of the Substantive Labour Code); repealed the provisions that regulated trade union accounting (former section 397 of the Substantive Labour Code) and made it a requirement to issue reports on money management (former section 427 of the Substantive Labour Code).

Also, and in order to guarantee freedom of negotiation, relevant changes were made such as eliminating the mediation stage which required the Ministry of Labour to be involved in out-of-court settlements between the parties, and extending the direct settlement stage (section 434 of the Substantive Labour Code); allowing the presence at the negotiating table of up to two advisers from second- and third-level trade union organizations (section 434(2) of the Substantive Labour Code). These amendments also reflect the intention of the Colombian Government to expand and guarantee trade union rights in keeping with the spirit of the Conventions.

As regards the strengthening of the right to negotiate, it is important to note the provision that prohibits the existence of collective agreements in enterprises where more than a third of the workers belong to the trade union (section 70 of Act No. 50 of 1990).

Particular mention should be made of the special protection accorded to trade union immunity under article 39 of the Constitution, which now also protects all workers who have submitted a list of claims, further guaranteeing the right to negotiate by establishing that such workers "... shall not be dismissed without proven just cause from the date the list is submitted and during the time fixed by law for each of the stages of dispute settlement", according to the interpretation given to section 25 of Decree No. 2351 of 1965 by the Labour Division of the Supreme Court of Justice in its decision of 5 October 1998.

The legal institution of trade union immunity, inter alia, makes it impossible to pursue a policy of suppression of the trade union movement.

Likewise, the workers state in their complaint, with respect to a draft bill pertaining to "essential services" that: "The Government naturally made no mention of this draft since it was never presented to Congress."(51)  It is impossible that workers are unaware of the existence of the numerous laws that have been enacted to define and regulate the essential services: Act No. 31 of 1992, Act No. 100 of 1993, Act No. 142 of 1994, Act No. 270 of 1996, inter alia. Also, a judicial decision handed down by the Constitutional Court coincided with the views of the Committee of Experts by stating that "whether a public service is essential or not can be seen if the activities constituting it contribute directly to the protection of property, the satisfaction of interests or the fulfilment of values associated with the respect, observation, exercise and effectiveness of fundamental rights and freedoms" (decision of 27 October 1994).

Furthermore, and subject to its inclusion in the next report on Convention No. 98, the Government refers to the enactment of Decree No. 801 of 1998 in accordance with which the decision to opt for arbitration courts, in the case of trade unions of which less than half of the workers in an enterprise are members "... will be taken by an absolute majority of the workers of the enterprise who are members of this or these trade unions ..." (section 1(2)).

We repeat that the nature and extent of these measures were noted by the Committee of Experts in its 1994 Survey in the following terms: "These cases of progress mainly concern measures strengthening the protection against anti-union discrimination." If this is the case then is it conceivable to claim the existence of a policy to eliminate the trade union movement and its leaders or to declare that the Colombian Government is indifferent to the principles established in Conventions Nos. 87 and 98?

Allow us to emphasize the significance of Colombia's achievements in this area. In the case of Convention No. 87, only 41 cases were recognized in the Committee of Experts' survey as cases of progress. As for Convention No. 98, the number was even lower, just 18 countries were mentioned.

Efforts by the Colombian Government to obtain
parliamentary approval of bills submitted to
promote the harmonization of legislation

The policy of compliance with the ILO is also reflected in government efforts to gain National Congress approval of bills submitted to it for this purpose. In order to avoid hasty judgements which could lead to mistaken conclusions, these efforts must be viewed within the limits imposed by the actual structure of a State where power is shared between three branches, and where the legislative branch has the autonomy to approve such bills or not.

The Government's involvement in this respect is in preparing the bills -- the ILO has provided technical assistance to Colombia in this area -- in presenting them to the Congress of the Republic and in the attention that the ministers have given to requests made by its committees to explain the scope, nature and relevance of the bills.

It is therefore wrong to state "in the absence of any steps by the Government to employ the instruments provided for by the Constitution to promote them".(52)  "In the light of the above, it may readily be concluded that ILO Convention No. 87 is systematically violated."(53) 

The current Government's political will to submit
a bill to the Congress of the Republic to promote
the harmonization of legislation

In order to give continuity to the state policy of compliance with the ILO and also that of promoting trade union rights and freedoms, the Government of President Andrés Pastrana will submit for consideration by the Congress of the Republic, at the first constitutional opportunity, a bill that we will describe below.

Nevertheless, the Government does not wish a significant and in fact exceptional fact to be overlooked which is that Colombia has incorporated into its Constitution, in article 53, a provision whereby "International labour agreements duly ratified are part of domestic legislation".

While it is clear from a legal point of view, as stipulated in that article, that ILO Conventions are part of legislation and consequently individuals could request their immediate application without the need for an act or decree to enact them, or to become embroiled in the legal inefficiency involved in the application of conflicting legislation by the judges or administrative authorities who are responsible for settling disputes or requests to which these standards apply, it is also clear that the Government, as a reflection of its desire to comply with the ILO, has accepted the position of the Committee of Experts which advocates the explicit and formal harmonization of national legislation with Conventions, and the express repealing or amending of all legislation that does not comply in order to pave the way for social justice.

This is an additional reason why the Government has prepared the above-mentioned bill, in which it explicitly takes up the recommendations of the Committee of Experts which have not yet been incorporated into the various parts of the Substantive Labour Code.

Conclusions

The Government of Colombia does not understand the profound contradiction contained in the complaint submitted by the Workers' delegates. According to their statements, the policy of persecuting the trade union movement has appeared and become increasingly acute over the last decade: "In Colombia, over the last decade, violence has been brought to bear on trade union members and officials because of their activities."(54)  What is unclear to anyone reading the complaint with care is why precisely this coincides with the very decade when the greatest progress has been made in the area of legislative harmonization, as the actual complaint begrudgingly recognizes when it refers to the progress described by the Committee of Experts in respect of Act No. 50 of 1990.

That was in fact the year when, in the throes of one of its worst periods of violence and on the Government's initiative, the Congress of the Republic approved Act No. 50 which led to extensive amendments to earlier legislation and which incorporated numerous observations that the Committee of Experts had made about the country.

In view of the above, we are compelled to conclude that the claims with which the workers end the sections relating to the alleged violations of Conventions Nos. 87 and 98 are false: "In the light of the above, it may readily be concluded that ILO Convention No. 87 is systematically violated."(55)  "Despite the sustained endeavours of the Committee of Experts to urge the Colombian Government to comply with the Convention (No. 98) and to promote the necessary reforms, the situation today is as it was ten years ago (1989). The Government continues to fail in its duty to adhere to Convention No. 98."(56) 

E. Text of the annexes to the Government's observations

213. The text of the annexes sent by the Government is given below.

Annex I

Violence in Colombia: Context and complexity;
implications for basic rights and international
humanitarian law

Introduction

1.1. The purpose of this document is to describe the context of the situation of internal armed conflict affecting Colombia and which above all is an indispensable framework of reference for understanding the events which have resulted in acts of violence being carried out against unionized workers in the country, a matter which has come to the attention of the Committee on Freedom of Association of the International Labour Organization (ILO) because of the supposed relationship between these events and international labour Conventions Nos. 87 and 98 ratified by the Colombian State. The description and analysis of the social, political, economic and military context of the present situation in the country are intended to offer an integrated and more objective vision of the problem of violence in Colombia.

1.2. The central purpose of this document is to show that there is no State policy to encourage violence against social organizations and movements in Colombia. It also emphasizes the need to explain the extreme complexity of the phenomenon of violence affecting the Colombian nation, which is indispensable to an interpretation of the situation as a whole, as well as the factors contributing to the infringement of basic rights, the identity and the role of those responsible for such violations, the role of the Colombian State in this context and the possible responses and actions to bring an end to all these acts of abuse, including those which indirectly affect the freedom of association and trade union rights of Colombian workers.

1.3. An explanation and evaluation of the Colombian case in the above-mentioned terms will furthermore enable a series of conclusions to be drawn about the nature of the acts of violence which have come to the attention of the ILO. These conclusions, which are based on a comprehensive review of the origins of these acts, provide a basis for determining the responsibilities involved. The conclusions, the reasons for which are contained in the following pages, can be listed as follows:

Characteristics of the violence in Colombia

2.1. The country is beset simultaneously by different kinds of violence which require various kinds of parallel action by the Colombian State. The existing kinds of violence can be classified according to their type or scope as follows: (1) violence due to ordinary crime; (2) violence in everyday life; (3) violence of a political kind; (4) violence resulting from drug trafficking. These therefore are the four main sources of violence affecting the Colombian nation and which must be dealt with by the State with its limited financial, material and human resources. However, as will be explained below, there are links at different levels between the various forms of violence and the authors of such acts, which make it more difficult to reduce them.

2.2. Taken together, the various kinds of violence noted above in the seven main cities of the country occurred at a rate of 2,960 conflicts per 100,000 inhabitants in 1997, according to the National Household Survey carried out in that year.(57)  Of these, in the 11.9 per cent of households affected by such conflicts, 84.6 per cent were of a more serious nature since they involved acts of a criminal kind, whereas only 3.2 per cent concerned labour disputes.(58)  This last figure is emblematic of the Colombian situation, indicating a very low rate of labour disputes, as compared to matters of a criminal kind which normally concern acts of violence, where the indicators are very high. This reflects a fairly peaceful labour situation, although there are also serious problems due to the criminal nature of most of the conflicts and the way in which they are resolved (by violence), all of which is consistent with the situation of internal armed conflict and rampant crime. There is little doubt about the link between the conflicts of a criminal kind and violence as an explicit phenomenon. Although some of the criminal offences do not involve acts of violence, the offences which are most frequently carried out in Colombia do involve the use of violence.(59) 

The crime situation is even more serious, especially since the above-mentioned data from the National Household Survey refer to an urban area (the seven main cities) and not to the rural areas, where crime is rife. Here, because of the nascent state of industrialization, labour disputes are few and far between.(60) 

As regards the settlement of labour disputes, special importance is attached to the development of protective action (protection under the Constitution) as an effective and efficient mechanism for safeguarding basic rights. The statistics of the Constitutional Court concerning the settlement of cases of this kind show that in 1997 citizens made use of this instrument mainly to seek protection of their rights of petition (13,746 cases, equal to 26.25 per cent of the total), equality (6,859 cases, equal to 13.10 per cent of the total), due process (6,227 cases, equal to 11.89 per cent of the total), and work (5,939 cases, equal to 11.34 per cent of the total). Social security and the payment of pensions and wages also played an important role (2,515 and 1,080 cases, respectively, equal to 4.8 per cent and 2.6 per cent of the total), while one of the rights least invoked was that of freedom of association (393 complaints, equal to 0.75 per cent of the total in 1997).

In 1998 there was a slight improvement in the general problem of the crime rate as compared with 1997. In 1998 the number of murders recorded was 2,577 less than in 1997, an important achievement in terms of lives, but not satisfactory since the number of murders in Colombia in 1998, 26,350, was catastrophically high; massacres, of which the self-defence groups are to a large extent responsible, showed a slight reduction, with a total of three less than in 1997, although their rate is still very high, with 112 massacres in 1998; the number of cases of kidnapping with extortion by the guerrillas increased on a massive scale in 1998 to a total of 2,388, up from 1,833 in 1997; in 1998 acts of terrorism using explosives totalled 1,680, a figure which was also higher than that of 1997; cases of physical injury in 1998 totalled 37,430, which was 5,147 less than in 1997.(61) 

All the types of violence described at the beginning of this section play a role in the acts of murder and personal injury. Seventy per cent of massacres are carried out by self-defence groups on the extreme right and most of the other cases by guerrilla groups. Ordinary criminals and guerrilla groups are responsible for carrying out acts of abduction and bank robberies. Acts of terrorism are also carried out by guerrilla organizations and drug-trafficking groups. Ordinary thefts and the stealing of automobiles are in most cases the work of common criminals.

The crime rate is very high, indicating a massive degree of delinquency, regarding which the Colombian State must recognize the enormous difficulties involved in controlling the situation, despite its enormous efforts, its political will, and the considerable investments required in the fields of justice, security and defence.

Since 1990 murders have been committed with alarming frequency. According to 1996 data, Colombia has the second highest murder rate in the Americas, equal to 67 murders per 100,000 inhabitants.(62) 

Ordinary crime which includes a wide range of offences has in the last ten years achieved a relatively stable historical average of 200,000 offences per year.(63)  Apart from the problems of corruption, environmental attacks, sexual offences and other relatively serious punishable acts, crimes against the life and physical integrity of persons, as well as attacks against economic wealth, are the most common.

As regards murders, 40 per cent of the total number of deaths which occurred in 1996 seem to have had a link with other criminal activities, while 31 per cent of deaths appeared to be the result of a settlement of accounts, which in principle would link 71 per cent of the murders with ordinary crime and drug trafficking.(64)  Between 1958 and 1990, according to apparent crime statistics, there were a total of 2,718,400 offences against property.(65)  Between 1991 and 1996 a total of 601,541 offences against property were recorded, costing an estimated 3.4 billion pesos.(66)  Between 1958-90 a total of 1,111,177 cases of physical assault were reported.(67)  In the period 1991-96, 192,070 cases of physical assault resulting in a disability of more than 30 days for the victims were recorded, requiring approximately 109,000 million pesos' worth of medical attention.(68) 

Since ordinary crime affects various sectors of the civilian population without any special kind of discrimination, persons who have held prominent positions in various activities in the political, social, economic or labour life of the country have also become its victims. By way of example, mention can be made of the murder of María Arango Fonnegra (Case No. 787), who had a long working career in the Colombian popular movement and in human rights, and who was a well-known activist on the political left. The case is unusual since as a result of Arango's former links with the Communist Party, the crime was interpreted as a political one. However, Arango's death was the work of common criminals who were trying to prevent the political leader, who had already many years before her assassination retired from all political activity, from recovering 85 million pesos out of which they had swindled her.(69)  The two intellectual authors, an accomplice and the material author of the murder were arrested on the orders of the Procurator-General of the Nation.(70) 

Another similar case was the assassination of Alfonso Vargas, who was at the time Secretary General of the General Confederation of Democratic Workers (CGTD), who was also a victim of common delinquency.

The violence of everyday life, which is different from that of organized crime and the result of a socio-cultural environment in which it has become a means of resolving disputes, is also reflected in the crime statistics, and cannot be ignored in attempts to create an atmosphere of peaceful co-existence. The most serious manifestations of this kind of violence consist of murders, acts of physical assault and deaths resulting from the illegal practice of abortion in inappropriate conditions.(71)  Murders resulting from quarrels or brawls, which might be considered a typical product of this kind of violence, accounted for 21 per cent of the total number of cases in the period 1991-96.(72) 

As regards violence of a political kind, the most frequent cases involve murder, physical injury, massacres, abductions and extortion. Between 1958 and 1990 acts of subversion resulted in a total of 27,304 deaths, of which 3,326 were in the national police and the military forces and 23,978 were of civilians.(73)  It has thus been the defenceless civilian population which has been the main victim of the action of the armed groups. In the shorter period from 1976 to 1990, 687 guerrillas were killed in clashes with the public forces but at the same time 2,395 guerrillas were captured.(74)  In the period 1985-96 the armed conflict was relatively intense, resulting in 4,325 clashes between the public forces and the guerrillas, 2,974 acts of sabotage and 1,126 skirmishes, which resulted in 16,625 deaths: 4,552 civilians, 4,400 members of the armed forces (police and the military) and 7,673 guerrillas.(75) 

The Colombian guerrillas have carried out more kidnappings than any other revolutionary group in the world in a country like Colombia which also has the highest number of such cases in the world. Between 1976 and 1990 4,451 civilians were abducted.(76)  Political delinquency was responsible in the period 1985-86 for the kidnapping of 4,853 civilians, out of a total of 6,204 civilians abducted.(77)  The figures for 1997 and 1998, according to information from the Presidential Programme for the Defence of Individual Freedom, show a total of 1,443 abductions involving ransoms in 1997 and 1,294 up to the month of September 1998. Of these totals, 364 in the year 1997 and 370 in 1998 up to the month of September were due to subversive elements. As regards political abductions involving the payment of ransoms, in 1998, between January and September a total of 258 acts of this kind were reported, most of which were the work of the FARC (48.84 per cent) and the ELN (35.66 per cent). These figures do not include members of the public forces kidnapped by the subversive elements, who at present number more than 300 persons.

These crime figures do not include data on illicit drug trafficking, another of the fronts on which the Colombian Government, for political and ethical reasons, internal reasons and responsibility towards the international community, must act and deploy all its human, financial and material resources. Organized crime in Colombia is the second largest producer of coca leaf in the world, the raw material used for the manufacture of cocaine, although Colombia holds a world record in the destruction of illicit crops by manual methods and air fumigation; Colombian criminals continue to grow marijuana (cannabis) and engage in contraband activities; there is a growing cultivation of poppies, a necessary ingredient in the manufacture of heroin, and Colombian organized crime is the main distributor of cocaine in the world. In the same way, the Colombian State must give special attention to the identification and confiscation of the astronomical quantities of illicit money which may result from this trafficking, the control of chemical substances used in the manufacturing processes of the drugs and the secondary crimes resulting from the supply and demand of prohibited drugs. Mention should also be made of the resources and programmes for the development of alternative activities in the areas affected by the illicit crops, and which constitute a priority for the national Government.

The surface area used for the cultivation of coca leaf was 45,000 hectares in 1995, with 5,000 hectares being used for the cultivation of marijuana (1995).(78)  The illegal drug trade generates between 2,000 and 5,000 million dollars a year, with an accumulated capital from production and trafficking activities estimated at around $66,000 million in recent years.(79)  These figures show the enormous challenge faced by the Colombian State in waging a battle which goes well beyond the resources which the State, with limited assistance from the international community, has at its disposal. In the same way, the figures illustrate the enormous capacity of the drug-trafficking groups to generate crime and violence.

Drug trafficking plays a major role in the murders committed in the country. "The most violent departments are to be found in areas known to be under the influence of drug traffickers and in the new departments where illicit crops are being grown."(80)  The record of gangs of illicit drug dealers in carrying out acts of violence is a long one, and reached a high point in the narco-terrorist war against the State and members of civil society who opposed their plans.(81) 

In addition to carrying out indiscriminate terrorist acts against the civilian population in an attempt to force the State to halt its action against them and attacks against State officials which have resulted in the loss of life of magistrates, members of the police, ministers of State, etc., the drug traffickers also launched a mortal attack against the representatives of civil society. Gangs of drug traffickers murdered a selected number of political leaders (including four presidential candidates), journalists and trade union officials. They were also actively involved in the kidnapping of State officials and members of their families, journalists and political leaders. The groups of drug traffickers also play a role in the organization and financing of self-defence groups which are responsible for carrying out massacres of peasants and trade union workers. Furthermore, there is a clear link between the groups of drug traffickers on the one hand and the armed conflict and the crime rate on the other, and these groups have actively participated in the carrying out of murders, massacres, acts of terrorism and kidnappings.

As regards the characteristics of the victims of the criminal actions described in the previous paragraphs, most of them are not trade union leaders and workers, and they are affected by the violence only to the extent that they are involved in the internal armed conflict or are the victims of ordinary crime. However, their violent persecution is not the result of their trade union activities.(82) 

On the contrary, violence has affected the entire Colombian population in degrees determined by the characteristics of the internal armed conflict and the methods and types of violence used. Since the conflict is essentially rural, it is the peasant population which has been most affected. Peasants have also been the main victims of the massacres carried out by self-defence groups on the extreme right. In the case of the massacre of trade union workers, as will be seen below, these have been concentrated in the region of Urabá (Department of Antioquia), which is engaged in the industrial exploitation of bananas. Acts of extortion have been carried out against landowners and peasants who are considered small and medium-sized landowners. Families of all social classes have been the victims of kidnappings, especially in the upper middle class urban residential areas, as well as the owners of large and medium-sized rural estates.

In 1996, 93 per cent of murder victims were male, and the remaining 7 per cent women; 19 per cent were aged between 21 and 25, and 18.1 per cent between 26 and 30; 59 per cent of the murders occurred on the public thoroughfare; and 50 per cent of those who died were found to be under the effect of intoxicating substances.(83) 

The social, economic and political costs of the various kinds of violence carried out in the country are astronomical. Only the economic costs can be calculated and the figures reflect the enormous efforts made by the State and society to contain the violence, cushion its effects or simply to pay the costs. These include the losses of life in terms of human capital, the losses resulting from terrorism, the sums paid for extra medical costs and private insurance, additional military expenditure, the sums paid in respect of kidnappings and ransoms, as well as the loss of material goods due to the attacks carried out against property.

Thus in the period between 1991 and 1996, the gross cost of the internal armed conflict was equal to 9 per cent of the gross domestic product (GDP), a sum of 6.1 billion pesos, equal to an annual average of 1.5 per cent of the GDP. In the same way, since 1989 the country has been faced with levels of military expenditure above the average for Latin America, exceeding that average by an estimated 3.7 billion pesos in the period 1991-96 alone.(84) 

The violence produced by ordinary crime, in addition to the damage it causes in terms of the loss of lives and goods, has the serious effect of distracting the attention of the State security forces and its agencies in general and which could otherwise be focused on combating other forms of violence. Given the scope of ordinary crime as described in the previous paragraphs, it is clear that the State has to invest large amounts of material, human and financial resources to fight it.

The costs of the armed conflict, the investment required to curb the various kinds of crime and the expenditure required to protect the lives of the persons and groups who are most vulnerable to violence have strangled the public finances. In recent years, the country has invested around US$1,000 million a year just to combat drug trafficking.(85) 

Over and above the enormous expenditure which the State and society have been required to make, mention should also be made of certain economic indicators concerning the nation's income which only compound the costs resulting from the violence. Colombia has been faced with a high and continuous deficit in its trade balance, amounting to US$4,100 million in 1995, US$4,756 million in 1996 US$4,790 million in 1997.(86)  The picture is not very encouraging in this respect, since the international price of coffee, the main traditional product of Colombia, remained low throughout 1998, under US$1.3 per pound, whereas the price of oil, a product in which the country had placed its well-founded hopes, fell to one of the lowest international levels in history, US$10.83 per barrel. Industrial growth in 1998 was equivalent to zero, while the external debt rose to US$31,665 million.(87)  The fiscal deficit in 1998 was equivalent to 6.6 per cent of the GDP, a high-risk level for the economy as a whole.

The authors of the violence

The authors of the criminal violence in Colombia are many. In addition to the gangs and individuals who carry out acts of common delinquency and ordinary citizens who engage in acts of violence, specific groups have been established which have considerable economic and coercive powers, and a highly developed structure within the sphere of organized crime and political delinquency. This section will describe the characteristics of these groups. The acts of violence carried out by the guerrilla organizations, self-defence gangs and groups on the extreme right and the gangs and groups linked to drug trafficking are amongst the most serious and extensive. There are first of all the guerrilla groups, which are the oldest subversive armed organizations in the Americas, as well as the only active groups alongside two guerrilla organizations in Peru and two in Mexico.

The main subversive armed group active in Colombia, the self-styled Revolutionary Armed Forces of Colombia (FARC), was established as such in 1966, although its roots go back to armed groups which operated from the beginning of the 1950s.(88)  The organization is mainly made up of persons of peasant extraction. The FARC has followed an orthodox communist line and supported the traditional communist parties known for their pro-Soviet views.(89)  However, the organization is a product of the historical period known in Colombia as "the Violence" which occurred between 1946 and 1964.(90) 

The FARC is still today an autonomous political-military organization which cannot be described as the armed wing of a political party.(91)  As regards its objectives, "the Revolutionary Armed Forces of Colombia were established to fight and seize power for the people, to establish themselves as the people's army in opposition to the army which is in the service of the bourgeoisie and the exploiting classes".(92) 

Its structure comprises a "secretariat" which functions as the executive of the guerrilla organization, as well as a "central staff" under the general direction of the organization which is headed by Manuel Marulanda Vélez (alias "Tirofijo"). (93)  There then follow a number of "blocs", which are responsible for a specific territorial region, grouped together into "fronts", which constitute the major basic units into which the military apparatus is divided. The "blocs" are in turn directed by their respective "commander" and "staff" and the same structure is reproduced in the "fronts".(94)  At present, the FARC has seven "blocs" and 66 "fronts", with an estimated total force of between 7,000 and 8,000 armed fighters. In general, the organization has a rigid hierarchical and vertical structure.

Initially and for most of its 33 years of subversive activity, the FARC guerrillas were active in remote regions along the agricultural frontiers of the country, where they claimed to be defending the interests of small-scale rural landowners(95) , while at the same time gaining strength and power. During this period the organization increased its membership, weapons, financial resources and its military experience. At present, it has demonstrated its advanced attack capacity, which has led to a new stage in the armed conflict. Since the "Seventh Conference" held in 1982 the organization has established a plan to expand into strategic zones of economic importance in the agricultural and commercial sectors, because of the natural resources existing there or as a basis of access to regions of political, economic or social importance. Of the 33 departments which make up the political and territorial division of the country, they are absent in only eight. In 1995, the organization was present, in varying degrees, in a total of 522 municipalities, out of the 1,069 in the country.(96) 

In these circumstances, they control certain areas enabling them to establish communication corridors with other regions where military fronts are concentrated. They therefore have considerable capacity to bring together major military units (approximately 2,000 guerrillas) from different regions to attack major targets such as national army bases or relatively large towns. Their weapons are typical of infantry-based warfare, backed up in some fronts with heavy machine-guns and light artillery such as mortar.

The so-called National Liberation Army (ELN) was established in 1965, like other guerrilla organizations of Latin America, under the inspiration of the Cuban revolution and the theory of revolutionary "focal points".(97)  "In its programme principles, the National Liberation Army states: 'The National Liberation Army has arisen from the need of the Colombian people to have a conscious and aggressive armed wing which is capable of allowing it, through a direct confrontation with its enemies, to take power and establish a social system which is consonant with the development of the country and which frees the masses from the exploitation to which they have been subject throughout all their history'".(98) 

For more than a decade the organization attempted without any success to develop its model of insurgency, without establishing any real presence on the national territory or achieving any political or military influence and with a small number of members. By the middle of the 1970s it had been reduced to a number of small gangs, following an offensive by the national army and the death of most of its leaders.(99)  However, after a period of minimal survival, when it remained as an endemic phenomenon with a very low level of activity and little impact, the organization was given a new lease of life thanks to economic resources acquired from acts of extortion against multinational companies drilling for oil or installing oil infrastructure plants. This new capital enabled it to finance the establishment of new armed columns which would serve as a basis for the development of military and economic financing activities, all of which led to a sustained growth in its subversive activities, the size of its forces and territorial presence.

The ELN obtains most of the necessary resources for financing its military activities from the kidnapping of persons (nationals and foreigners), the extortion of entrepreneurs and other members of the civilian population, interest on its accumulated capital and, to a lesser extent, attacks on banking establishments or other individuals.(100) There is no evidence to conclude that it has benefited from the production or trafficking of illegal drugs.(101)  Its most destructive action has involved the blowing up of pipelines which transport oil, causing serious damage to the national economy and the environment.(102) 

Most of the leaders of the ELN are from the middle class.(103)  It is organized into "fronts" or "columns" which operate with considerable military and political autonomy in obtaining financing resources, and for this reason hierarchical dependency on its "central command" is both weak and relative. It has 35 "fronts" and around 3,000 armed fighters. Following the death from natural causes of its main leader in 1998, the former Spanish priest Manuel Pérez, the leadership was taken over by Nicolás Rodríguez Bautista (alias "Gabino").

The main ELN units are located in areas which have natural resources, and in particular, in oil-producing regions or those adjacent to the pipelines which transport crude oil. According to 1995 data, these units were present in 280 municipalities.(104) 

The so-called People's Liberation Army (EPL) is the third guerrilla organization in the country. It is made up of remnants of the former guerrilla movement of the same name established in 1967 by the Marxist Leninist Communist Party (PC/ML).(105)  The PC/ML had split from the traditional Communist Party, which it accused of being "revisionist", and adopted what in leftist terminology is known as the "pro-China" line.

The EPL was made up of members of the middle class, who were its leaders, and peasants. Its main area of influence was in the north-east region (border region between the departments of Córdoba and Antioquia) and in the adjacent region of Urabá (department of Antioquia). With the political reforms introduced in China following the death of Mao Tse Tung, the movement began to follow the policy guidelines of Enver Hoxa in Albania. Finally, in 1980 the EPL and its political wing abandoned Maoism(106)  and in 1984 began a process of negotiations with the Colombian State which was successfully concluded in 1991 with the demobilization of the guerrilla group and the granting of an amnesty to those members who accepted the peace process. This was followed by the founding of a legal political movement called "Esperanza, Paz y Libertad", which retains the EPL acronym, and whose members are engaged in a serious dispute with the FARC, an organization which is attempting to take control of its former areas of military and political influence.(107)  A dissident minority of the guerrilla group which continues to identify itself as the People's Liberation Army, led by Francisco Caraballo, continues its armed rebellion.(108) 

A fourth guerrilla group is the Jaime Bateman Movement, made up of a group of dissidents from the former group of rebels known as the Movimiento 19 de Abril (M-19), which refused to accept the peace process concluded with this organization. The M-19 emerged in 1970, although it was only in 1974 that it began military operations. Its members came from the middle class, and in particular the professional class. The Jaime Bateman Movement is a minor group which is active in the departments of El Valle and Tolima, and its size is the equivalent of one of the FARC's fronts. It participates in sporadic kidnappings and skirmishes with the public authorities.

The fifth group of rebels consists of a minute terrorist organization which operates under the names of the People's Revolutionary Organization (ORP) and the Jorge Eliecer Gaitán Movement (JEGA) and has been involved in kidnappings and selective murders.(109)  Its operations have been carried out on a fairly discontinuous basis, and its main leader is Hugo Antonio Toro Restrepo, alias "Comandante Bochica". It has no presence in rural areas, or any "fronts" or armed columns. It is active in the departments of Risaralda and Quindío.

The guerrilla movement has a total of approximately 10,000 armed fighters. In 1995 its territorial presence included 622 municipalities of the 1,069 which make up the Colombian territory.

On the ideological fringe there are also the armed groups of the extreme right, whose origins vary and which have different forms of organization. They are generally known in the mass media as "paramilitary" groups, in the universal sense of this term, since the groups which are known by this name in Colombia have no organic link with the State. Indeed, in Colombia, unlike other countries which have waged war against rebel groups, there are no real paramilitary forces to combat the guerrillas.(110)  The self-defence peasant groups of Guatemala, the civil defence forces of El Salvador and the peasant patrols of Peru were all official or officialized paramilitary structures which were armed, maintained and directed by the military forces of their respective countries to fight the war against the guerrillas. In Colombia, the so-called "paramilitary" organizations are in fact armed groups on the extreme right, which operate outside the law, and are therefore pursued by the authorities of the Colombian State.

Two characteristics can be mentioned concerning the establishment of the above-mentioned gangs: (a) the existence of various groups, many of them lacking continuity and with complex origins; (b) the influence of drug-traffickers in association with other social sectors, in the most significant cases.

In Colombia many anti-subversive "social cleansing"(111)  groups have operated which are organized like military forces or which function as hired assassins.(112)  Most of these groups have had a short existence, have been relatively unstructured, with a very weak sense of ideology, discourse and practice, devoid of any sense of ethics and with a fairly restricted and local scope of action. The urban groups emerged as a means of fighting against common delinquency, sometimes as an alternative to or simultaneously with their own illicit activity. The rural groups were mainly engaged in anti-subversive activities and to a lesser extent in the fight against certain kinds of common delinquency, and on many occasions were linked to illicit business activities, in particular concerning drug trafficking.

Of the various groups which were active, mention may be made of such organizations as "Alfa 83", "Los Tiznados", "Terminator", "Muerte a Abigeos-Maos", "El Embríon", "Pro Limpieza del Valle del Magdalena Medio", "Movimiento Anticomunista Colombiano", "Los Grillos", "El Escuadrón Machete" and "Falange". These groups are no longer active.

The more sophisticated groups which emerged in the first half of the 1980s were the direct descendants of the drug-trafficking organizations headed by Gonzalo Rodríguez Gacha and Pablo Escobar.(113)  An alliance was formed with the brothers Fidel and Carlos Castaño for the establishment of private armed "self-defence" groups.(114) 

The original groups were established in the area of the Magdalena Medio (a region in the departments of Boyacá, Cundinamarca, Antioquia and Santander) and in the north-west part of the department of Antioquia, in the central region of the country, where the drug traffickers had acquired estates, in response to the extortion activities carried out by the guerrillas against rural land owners.(115) 

The self-defence groups of the Magdalena Medio went through various operational stages, in line with the political and military objectives which they were pursuing. During the first phase, they eradicated the guerrilla groups of the Magdalena Medio region. In the second stage, they pursued a campaign to exterminate activists of the Patriotic Union, a legal leftist political front, founded by the Communist Party and the FARC (the political participation of the guerrilla movement, represented by rebels who had been granted amnesty, was a result of the 1984 peace process), in reprisal to FARC interference in the drug-trafficking business, and with which they concluded a temporary alliance, which soon led to irreconcilable disputes.(116)  During a third stage, they carried out campaigns of terror, which included massacres, in regions under the influence of the EPL (Urabá) or the FARC (north-west part of the department of Antioquia).(117)  In the final stage, when the groups were more closely linked to the security forces of the drug traffickers or their gangs of hired assassins, they participated in the assassination of many leading figures in the country (for example, in the murder of Luis Carlos Galán, the Liberal Party presidential candidate) and the serial murder of members of the national police.(118)  These self-defence groups, with a unified hierarchical command, originated in a specific region but over time they spread throughout the entire country.(119) 

The second stage in the development of the self-defence groups, in which remnants of the group organized in the Magdalena Medio have participated, has been centred on the rural areas of the department of Córdoba, to which the self-defence groups from north-west Antioquia, under the leadership of the brothers Fidel and Carlos Castaño, moved. The Castaño brothers, who were being sought by the Colombian State on various charges, soon extended their organization to the region of Urabá in the region of Antioquia. At one time, they clashed with Pablo Escobar's supporters, which resulted in a bloody private war between the two groups.

The self-defence groups have also pursued a territorial strategy aimed at achieving power at the local level, with the use of violence being combined with the acquisition of land which has given them an additional influence in social, economic and political terms, as well as bringing them obvious benefits.

During the offensive which they launched in 1997, the United Self-Defence Groups of Colombia (AUC) extended their activities to regions where the guerrillas have been traditionally present (departments of Bolívar, El Chocó, Santander and Meta), clashing with members of the ELN and the FARC. However, their main tactic consists of carrying out massacres against the civilian population, as a means of destroying the social base of the guerrilla movement or forcing the guerrillas into combat. In the same way, they undertake the selective assassination of political activists suspected of maintaining links with the guerrilla movement; these figures have included defenders of human rights, trade union officials and workers. Guerrilla leaders and members of their families have also been kidnapped.

According to data available for 1993, the self-defence groups were present in 138 municipalities, although the figure has certainly risen since the launching of their national offensive in 1997.(120)  The estimated membership of the AUC fluctuates between 4,000 and 5,000.(121) 

The armed groups operating in Colombia also include the squadrons of the drug-trafficking groups. The drug traffickers, in addition to their links with the self-defence organizations, have their own military and security apparatus, which is used to combat the state security forces, eliminate enemies or competitors in their illegal business and kidnap and assassinate state officials or leading figures of civilian society who have acted against their interests or expressed criticism of their activities.(122)  There is a long list of presidential candidates, ministers of State, journalists, trade union leaders, members of the police, political activists, Supreme Court magistrates, judges, prosecutors, entrepreneurs, competitors in the drug-trafficking business, and family members of all these persons, who have been murdered. The groups of traffickers have also used terrorism as a tactic for achieving their objectives by blowing up planes in flight, destroying automobiles with explosives on the public thoroughfare as well as on the premises of state agencies or private enterprises.

They have acted in this way to defend their economic interests and to escape legal action or to force the derogation or non-application of measures authorizing the extradition of nationals to foreign countries to be tried on drug-trafficking charges.

In most cases, the drug traffickers have not established any special or well-known groups themselves but have used their enormous economic resources to hire armed gangs or death squads.

Furthermore, one of the most common activities of the drug-trafficking groups has been the infiltration of institutions of the State or civil society through corrupt channels.(123) 

In general, these organizations have used their armed forces in a combined manner in the fight against anything considered to be Communist and as a means of establishing appropriate conditions for the illicit drug trade.(124) 

Evolution of the internal armed conflict

The strategy devised and implemented by both the FARC and the ELN consists of rapidly increasing and diversifying their financial resources, increasing their number of fronts by the splitting up of existing ones and infiltrating the local everyday life of the areas under their influence.(125) 

In order to increase and diversify their economic resources, the guerrillas have engaged in various illicit activities which have enabled them to acquire large amounts of capital. To a large extent, the means used by the guerrillas to obtain these resources have led to clashes with the drug-trafficking gangs.

The confrontation between the drug traffickers and the guerrilla organizations, and in particular the FARC is one of the factors which has most contributed to the worsening, spread and intensity of the violence in Colombia. The first consequence of the conflict unleashed between the drug traffickers and the guerrillas was a wave of atrocious murders.(126)  The drug-trafficking gangs launched a series of selective assassinations targeted against political leaders and activists on the political left and social and trade union leaders. This extended the conflict to the cities and to the civilian population.

In the southern region of the country, where the largest amounts of illicit crops are grown and where virtually the entire peasant population is engaged in this activity, FARC guerrillas have established a broad social base of support and which has also come into conflict with the State security forces. Indeed, since the armed forces are required to destroy the illegal crops and at the same time carry out military operations against FARC columns in order to neutralize them, their work has generated considerable hostility amongst the civilian population which sees these military detachments as forces which are trying to deprive them of their sources of survival. One possible means of offsetting the negative effects of the problem of the illicit crops lies in the "crop replacement programmes". However, these programmes have had only limited success since the traditional agricultural crops do not attract the international prices paid for the raw material used in cocaine and heroine production.

The use of criminal means to obtain economic resources rapidly has become a common practice of the guerrilla organizations. Although for some this implies a loss of their political objectives, it remains true that the use of such methods has become a means of achieving their political goals.(127) 

The Colombian guerrilla movement has abandoned all sense of ethics, on the pretext that the end justifies the means, although the main consequence has been the rapid accumulation of enormous wealth which it has enjoyed. "As a result, the income of the guerrillas rose from 349,000,000 pesos in 1991 to more than 1 billion pesos in 1996, i.e. 0.58 per cent of the GDP. Between 1991-96, income rose to 3.6 billion in 1995, i.e. 5.3 per cent of the GDP."(128) 

"Kidnapping, robbery and extortion by the guerrillas brought them an income of 1.7 billion between 1991 and 1996."(129)  These figures also illustrate another problem, namely the difficulty of convincing the members of the guerrilla movement to lay down their arms, since the criminal activities which they carry out provide them with a lucrative means of survival and an authentic style of life, which is sometimes, in the case of persons who joined the guerrilla movement when they were children, the only one they have known.

The expansion of the guerrilla fronts has also been rapid since 1982. There has also been an increase in fire power, resulting in spiralling violence, a greater number of victims and a broadening of the civilian sectors of society affected. In the same way, the growth of subversion has placed greater pressure on the public forces which have had to work double in combating an enemy which only fights when it is sure of its numerical superiority and which, in general, attacks and then escapes to mountainous and forest regions where it is difficult to pursue. Here it should be noted that the armed forces are also required to allocate a large number of their troops to protecting indispensable infrastructure work and resources, such as bridges, hydroelectric plants, dams, highways, power lines, telecommunication antennae, etc., thus immobilizing their units.

As regards the strategic objective of establishing effective power at the local level, the use of violence against all those who do not support their political project is, if not the only, then at least the preferred tactic of these groups. This violence, which is carried out with the above-mentioned objective, has been used against different social and political organizations, including those related to other guerrilla organizations, against the municipal authorities, represented by mayors and councillors,(130)  employers and workers of commercial and industrial enterprises or those engaged in the building of works of infrastructure, as well as landowners and peasants carrying out agricultural activities.

As regards the first point, the guerrilla organizations have acted against trade union officials and workers, in line with their strategy of acquiring control of labour organizations or preventing them from being influenced by other political views. This can be seen above all in the region of Urabá (Department of Antioquia) where workers and leaders of SINTRAINAGRO ( trade union of banana production workers) have been systematically persecuted by the guerrillas.

Acts of aggression by the FARC and the dispute between the EPL-Caraballo and the "Esperanza, Paz and Libertad" political movement have a long history and have always involved the questions of the armed territorial control of a region, in this case Urabá, and control of labour organizations, in this case the trade union of banana production workers and the community organizations of the populations of the region. The conflict, when set in the above-mentioned context, dates back to the struggle between the FARC and the People's Liberation Army (EPL) before its disbanding and the political agreement concluded with the Colombian State in 1991.

In contrast to the above and as confirmation of the fact that the evolution of the problem in the case if Urabá was not directly related to the worker-employer relations, it should be noted that although there were sometimes periods of tension which were only to be expected given the prevailing situation of violence, the relationship between enterprises and their workers was normal during the period of truce between the guerrillas. "In the end, the agreements resulted in the drafting and signature of 229 different collective labour agreements; at the same time, for the current year, there was a 30 per cent increase in banana production and an increase in banana exports of around 15 per cent."(131) 

In other cases, guerrilla violence has been targeted on workers and employers engaged in the growing of African palm oil, with workers being forced to suspend production under threat or as a result of actual acts of violence. Another particular example concerns the terrorist action perpetrated against the Nare cement factory (in the Department of Antioquia) which resulted in its destruction and subsequent unemployment for tens of workers.

In some cases, trade union members or leaders have been arrested on charges of "rebellion" and terrorism" on the orders of the Procurator-General of the Nation. As already noted, the Office of the Procurator-General of the Nation is a jurisdictional body which is completely independent of the executive. Its judicial decisions, which are handed down autonomously, within the framework of the guarantees of due process, require in the case of an arrest warrant the existence of proof of criminal responsibility.(132) 

The trade union central organizations have clearly stated that trade union organizations are neutral as regards the internal armed conflict and that the purpose of the trade union activities which they carry out is not to collaborate with or contribute to the political objectives of the guerrilla movement but to defend the interests and objectives of the workers.

The guerrilla offensive to improve their strategic position at the local level has also included greater presence and activity in the regions producing a large part of the national wealth.(133)  This has been accompanied by a demonstration of force in the replacement of official local authorities, as for example in the last regional elections, when the rebels issued death threats against the candidates of 23 municipalities in the department of Cundinamarca alone.(134)  Between 1995 and August 1997, the guerrillas, and to a lesser extent the self-defence groups, assassinated two Members of Parliament, a governor, 26 municipal mayors and 141 town council members.(135)  In 1997, 920 election candidates had to withdraw as a result of threats and 121 were kidnapped.(136)  Even so, it is worth noting that despite this wave of violence, the elections took place, with the highest elector participation rate in the history of Colombia.

When they are not attempting to replace the authorities with other power structures, the guerrillas use their strength to bring pressure to bear on decisions taken by local administrations. Thus the guerrillas in the municipalities located in these regions, as part of their strategy for constructing local power bases, pressure the municipalities into diverting funds from the public treasury towards works and programmes proposed by the rebels themselves. With this kind action, they not only increase their local influence and appear to the public as the champions of works in the public interest but contribute to the fragmentation of unity in the state organization, as well as obtain additional financial resources.

With the precise objective of defending the civilian population and democratic institutions, the Colombian State, in accordance with its constitutional and legal obligations, has done everything possible to halt the violence. Even so, and despite some success obtained, the public forces have had to pay a high price. In an ambush against a convoy of the national army in Puerres (department of Nariño) in 1996, 31 soldiers were killed. In an attack on the military base of Patascoy (department of Nariño) carried out by the FARC on 21 December 1997, 11 soldiers were killed and 18 kidnapped. In an attack (1998) by the FARC on the city of Mitú (department of Vaupés) 110 members of the police and the military were killed, as well as ten civilians, and 63 members of the police were kidnapped. In an attack (1998) by the FARC against the municipality of Miraflores (department of Guaviare), the headquarters of the main anti-narcotics base of the national police, from which most of the fumigations of illicit crops were carried out, around 100 persons were killed, most of whom were members of the police and the national army, 150 were injured and 125 uniformed members of the police and the army kidnapped. In an assault by the FARC (1998) against the military base of La Uribe (department of Meta), several members of the security forces were killed or kidnapped. The FARC (1998) destroyed the military base of Las Delicias (department of Caquetá) in an attack which killed many soldiers. In El Billar (department of Caquetá) they also attacked a battalion of the national army, resulting in a large number of deaths. In 1998, more than 500 members of the national police lost their lives in carrying out their duty. At present, 226 soldiers and 184 members of the police are being held by the guerrillas.

The subject of human rights is of vital importance in the development and consequences of the conflict. In a country which is faced with a serious internal armed conflict, members of the public forces may be involved in violations of human rights, despite the reprobation of such conduct by the State. It is also clear that the Colombian State and its institutions can only establish themselves as an alternative to the guerrilla groups and to the search for an easy life through criminal activity if they pursue democracy, defend the legal order, encourage the participation of citizens and promote basic rights, acting as guardians of human rights and the implacable enemies of those who violate such rights.

Although isolated members of the State security forces have committed infringements of human rights, these practices are neither approved or tolerated, since this type of conduct is contrary to the official policy of the Colombian State and, its very principles and nature. However, these ideas would be a dead letter if they were not put into practice through clear policies for the prevention and repression of infringements of human rights which may be committed by State officials, and effective results in terms of the behaviour of its armed institutions. As regards the first point, a clear policy has been established through a number of measures which will be described and analysed in the next two sections of this report. As regards the product of such policy, the significant reduction in the infringement of human rights by the public forces is an indication of what has in fact been achieved.(137) 

The paradoxical aspect of the human rights situation is the contradictory behaviour of the guerrilla forces themselves: "The guerrilla groups have a very ambiguous concept of the subject. They understand the respect of human rights as an obligation incumbent upon the State and see its violation by the public forces as an opportunity which should not be missed to make denunciations to the national and international public opinion, with a view to discrediting their legitimacy and discouraging support. On the other hand, however, they see the violations of human rights which they themselves carry out systematically and frequently as being fully justified, since they are directed towards the achievement of high objectives. In other words, noble ends justify atrocious means."(138) 

In this context, special importance is to be attached to the statement by the United Nations High Commissioner for Human Rights concerning the violation of human rights and international humanitarian law by the guerrilla organizations in Colombia.(139) 

For their part, the self-defence groups are no less redoubtable an enemy for the Colombian State. Their main strategy consists of imposing states of terror, resulting in the forced displacement of the population, through the carrying out of massacres or threats to do so. Since the civilian population in the regions where the guerrillas are active must, out of fear or self-interest, collaborate with the guerrillas, the United Self-Defence Groups of Colombia (AUC), in an attempt to undermine support from the population, has sought to create an even greater sense of fear or threat to their survival. Thus, for the self-defence groups any person suspected of helping the guerrillas must be assassinated.(140)  These groups are therefore one of the main sources of human rights violations in Colombia.

With these methods the self-defence groups are trying to: (a) forcibly displace the civilian population and deprive the guerrillas of their sources of logistical support and information; (b) force the guerrillas to engage in open combat to avoid attacks against the civilian population; (c) to gain the support of sectors of the civilian population for their cause, by setting it against the guerrillas under the threat of greater violence or enticing it with various means.

Within this process military clashes between the self-defence groups and the FARC in 1998 spread throughout the departments of El Chocó and Córdoba and, between the ELN and the self-defence groups in the south of the department of Bolívar. In all cases the civilian peasant and indigenous populations suffered the most.

Caught between the crossfire, the civilian population has been forced to migrate to areas not affected by the armed conflict or to the cities.

The self-defence groups have also committed attacks or engaged in combat against the armed forces and other state authorities and thus become another source of violence to which the attention and resources of the public forces and their units must be directed. Mention can be made of the following examples:

In the place known as La Rochela the self-defence groups ambushed a judicial commission, killing all its members, judges and members of the judicial police. In the department of El Meta, in October 1997, they attacked the members of another committee of inquiry, assassinating 11 persons including prosecutors, officials of the Judicial Research Technical Body (CTI) of the Office of the Procurator-General, officials of the Administrative Security Department (DAS) and officers of the national army. In the municipality of Villanueva (department of Guajira) the self-defence groups attacked members of the national police.(141)  In San Diego (department of Cesar) clashes occurred between the army and a command unit of the Peasant Self-Defence Organizations of Córdoba and Urabá (ACCU), which resulted in the capture of two delinquents and one death.(142) 

Tens of members of the self-defence groups have been arrested on the orders of the Office of the Procurator-General of the Nation. The repressive action by the State against the self-defence groups has also achieved significant results, including the capture of 120 members of the self-defence groups in 1998, out of a total of 248 members of the self-defence groups currently in prison.(143)  In the same way, persons suspected of being involved in the organization and command of the self-defence groups, such as Victor Carranza, have been captured and have been brought before the criminal courts.

The connection between the self-defence groups and the drug traffickers, who are both engaged in a process of accumulating productive land, is a further problem. "What is problematic in all this process is the fact that the system of buying and controlling land is linked with the intense violence of paramilitary activity, in which attacks against the civilian population are used as a means of forcing out the guerrillas."(144)  This problem is made even more difficult to resolve by the enormous economic capacity of the drug traffickers to acquire and maintain arms.

The action of the self-defence groups and the drug-trafficking gangs is a further element which threatens the authority of the State and the national legal order, as well as the essential principles of the social State based on the rule of law, all of which is negated by the practices of the self-defence groups. The self-defence groups and the drug-trafficking gangs pursue a political programme which is also a programme of regional power that is not only different from but contrary to that promoted by the Colombian State, and thus their activities are contrary to the stability and functioning of the national institutions.

"The enormous capital which organized crime reaps from the drug industry has become the main source of violence, corruption and social deterioration, and is a major obstacle to development."(145) 

Within the development of the conflict, "truth" is one of the first victims. Controlling information, manipulating it and bringing it into line with immediate political objectives are practices frequently used to gain the upper hand, to slander adversaries and to conceal or deflect responsibilities. In this connection mention can be made of the following flagrant examples:

The murder of Elsa Alvarado and Mario Calderón, employees of a non-governmental organization (NGO), whose various functions include the monitoring of human rights in Colombia. In this case, the assassination of Alvarado and Calderón was presented to public opinion and the mass media as a crime against the defenders of human rights. In fact, both were working on projects dealing with the protection of the environment on behalf of the NGO to which they were attached.

The assassination of Eduardo Umaña Mendoza, a criminal law specialist, who was known in the country as a human rights activist and a defending counsel in criminal cases. His death was categorically presented outside the country as the result of his participation as counsel for the defence of a number of members of the Workers' Trade Union (USO) being investigated by the Office of the Procurator-General of the Nation on charges of participating in terrorist attacks. However, no evidence has been given or exists in support of such a conclusion.

The assassination, noted earlier, of María Arango Fonnegra, which was seen as the work of self-defence groups on the far right, because of her links with the political left and the popular movement, was, as noted earlier, the result of an ordinary crime.

In the massacre at Machuca (department of Antioquia) on 18 October 1998, the National Liberation Army (ELN) blew up a stretch of the pipeline on the outskirts of this town, as a result of which a total of 72 civilians were burned to death, and several dozen were seriously burned, when the spilt fuel caught fire. The ELN leaders accused the National Army of having set the oil on fire, so as to be able to accuse the ELN of carrying out an attack against the civilian population. It was only several days later, when they were no longer able to deny their responsibility for the events, that the ELN leaders recognized that the fire and the death of civilians were due to a "lack of foresight" on the part of the guerrillas who had carried out the terrorist attack.

As has been pointed out on different occasions, the death threats and violations of the human rights of members of trade union organizations are not a result of their trade union activity, but their participation in militant political activities. Thus for example several trade union leaders have been given protection under the protection programme established for the Patriotic Union (UP), not only because of their status as trade unionists, but because they are members of the UP or even other groups on the political left. This is the case with Wilson Borja, president of FENALTRASE, member of the UP, and Jesús González, head of the human rights secretariat of the Single Central Organization of Workers (CUT) (and who is not a member of the UP). Under this programme, which is intended to protect members of the UP, and which has also helped to protect members of other political groups, persons who have been threatened may freely choose persons to act as their bodyguards, who are trained and armed by the State, which also provides official vehicles and pays for their wages.

The problem of violence and the evolution of the armed conflict have also had an effect on the functioning of institutions, and in particular, the administration of justice, resulting in congestion and thus increasing the possibility of crimes going unpunished. Each criminal judge is allocated an average of 442.8 new criminal cases a year. However in 1997 alone a total of 402,952 new criminal cases were initiated.(146)  This increase in new cases is greater than the number of criminal cases which are actually dealt with and, which, although high, is at all events too low given the large number of cases which enter the system, as well as those pending from previous years. This can be seen from the fact that the annual average number of cases concluded per penal judge is 385.35.(147) 

The task of administering justice in a rapid and effective manner by the courts has also been affected by the use of violence against judicial officials. In addition to the above-mentioned attacks by self-defence groups, the drug-trafficking groups and guerrillas have also assassinated officials of the judiciary. In the period 1979-1991, a total of 515 officials of the judiciary were victims of acts of violence, including 278 murders.(148)  As a result of this situation, the carrying out of judicial inquiries in regions controlled by the guerrillas and self-defence groups is extremely difficult.

However, as one of the positive signs in the development of the internal armed conflict, it is symptomatic that the municipalities with a higher rate of participation in the democratic electoral process are those which have the lowest rates of violence, whereas those municipalities in which there is a presence of some illegal armed group (guerrillas, self-defence groups, drug traffickers) have the highest rates of violence.(149)  The moral is clear: there is a need for more democracy and civilian participation and less interference by armed groups which claim to represent the interests and aspirations of the population.

In concluding this section, it should be pointed out that in accordance with the characteristics of the violence described above, and in particular those forms of violence carried out by members of the public forces acting outside the framework of the law and in association with self-defence groups, and the crimes committed by the self-defence groups themselves and the guerrilla organizations against the civilian population, all these acts are infringements of international humanitarian law the examination of which, within the framework of the international community, falls within the competence of the international bodies established by international law. Thus as noted earlier, Colombia, as a state party to the main international instruments regarding human rights and international humanitarian law, provides an adequate response, within the framework of the bodies established for such purposes by conventions or otherwise, to representations made to it, and presents the reports due in respect of its international obligations in this sphere.

State activity in the face of violence

The protection of human rights and international humanitarian law are crucial elements in the policy of the Colombian State, the importance and seriousness of which are neither disregarded nor given mere lip-service. This was made perfectly clear by the President of the Republic, Andrés Pastrana, in his presentation of the "Agenda for the protection of human rights" in Colombia: "The Colombian State recognizes the serious and grave nature of the human rights situation and I say this as President of the Republic in my capacity as representative of the State and the popular will." The second highest-ranking official of the Colombian State, the Vice-President of the Republic, Gustavo Bell, has thus been entrusted with coordinating the efforts made by the various state bodies with a view to protecting human rights and giving all the necessary collaboration to the Human Rights Unit of the Office of the Procurator-General of the Nation. For the same reasons, the present Government has continued the process of adopting measures to protect the basic rights of the Colombian population, within a state policy which had already established important guidelines.

The Political Constitution issued in 1991 established the Office of the Ombudsman, a body which is autonomous in administrative and financial terms, and the functions of which are to protect the rights of citizens. The Office of the Ombudsman, through its office responsible for the protection of human rights, maintains a permanent presence in the most crucial areas of conflict, receives denunciations concerning violations of basic rights and carries out the necessary inquiries for the adoption of the appropriate political or legal measures.

One of the main objectives of the 1991 constitutional reform was to modify the structure and functioning of the administration of justice, within a policy primarily directed at improving efficiency and fighting impunity. The changes introduced by the 1991 Constitution include the establishment of the Constitutional Court, the creation of the Superior Council of the Judicature and the organization of the Office of the Procurator-General of the Nation, as well as recognition of the indigenous jurisdiction. At the same time expenditure on justice increased during the following six years by 49 per cent.(150) 

The Political Constitution of 1991 established the concept of protection under the Constitution as an extraordinary and expeditious legal means of providing citizens with an effective instrument for the protection of their basic rights.

Since 1990 the national police has undergone a thorough process of review and restructuring, aimed at excluding from the institution any members with a record of involvement in cases of human rights violations or corruption. Under the programme for the restructuring of the police force, 8,500 uniformed members were dismissed from the institution in the last three years. These measures were considered necessary to re-establish public confidence in the police, an essential prerequisite if the police forces were to be able to carry out fully their responsibilities for the protection of citizens' rights. In general, the results achieved over a number of years have been very satisfactory, as can be seen in various indicators, such as for example the significant reduction in the number of denunciations of human rights violations perpetrated by members of the police and the repeated expressions of international support for the success of the Colombian police in combating crime. Also in recent years there has been an increase in the size of the police force, which at 103,000 members is equivalent to that of the United States, a country with a much higher population.

One of the strategies used to combat the violence consists of the elimination of the economic sources which have financed the activities of those who practice it. This was the purpose of Act No. 333 of 1996, which provided the authorities with an effective legal instrument for cancelling the ownership of unlawfully acquired property.(151)  At present the Office of the Procurator-General of the Nation has before it 123 cases involving the cancellation of unlawfully acquired property, and in respect of which assets of a value of 364,000 million pesos have been confiscated.(152) 

The nation has fully committed itself to the policy being developed to strengthen justice, with a view to combating impunity, restoring the authority of the State, protecting the lives, property and basic rights of its citizens. Colombia is the Andean country with the highest number of magistrates in the region, 4,800, followed by Venezuela which has 1,272; it has the highest number of jurisdictional units in the region, 3,259, far ahead of Venezuela, the second country in the region, with 1,270; and the greatest territorial distribution in its judicial system, with 33 circumscriptions, compared with 25 in Peru, the country with the second highest number in the region; Colombia has invested most in its legal system, 425,865,029 dollars in 1998, almost twice that of the second-ranking country in the region and has the highest per capita judicial budget indicator in the Andean region, 35.7, well above that of the second-ranking State, Venezuela, with an indicator of 10.7.(153)  Colombia has invested 1.25 per cent of its GDP in the justice sector, the highest index in the last 27 years, with the very recent exceptions of 1994 and 1995.(154) 

An empirical evaluation of the work carried out by the judicial authorities against organized crime shows that significant progress has been made. Thus between 1992 and 1995 a study of the judicial proceedings undertaken revealed that 120 groups involved in organized crime had been dismantled and all their members captured. These included bands of ordinary criminals, but also a large number of self-defence groups, militia and hired assassins.(155) 

The main groups in the country engaged in drug trafficking, some of which are involved in the financing and organization of self-defence groups, were thrown into disarray with the capture or death of their leaders and main members. These groups include the gangs of Pablo Escobar (dead), Carlos Ledher (imprisoned), Gonzalo Rodríguez Gacha (dead), the Rodríguez Orejuela brothers (imprisoned), José Santacruz (dead), Nelson Urrego (captured), Reinaldo Murcia (captured).

The great efforts made to improve the functioning of the administration of justice have enabled progress to be made, as can be seen from the main management indicators. In 1998 Colombia had one judge per 12,305 inhabitants.(156)  Between 1992 and 1995 7,012 sentences were handed down in cases involving terrorism, homicide, massacres, drug trafficking, insurrection and other serious offences by organized crime.(157)  Similarly, in 1997 the military criminal courts handed down 822 sentences against members of the armed forces for various offences.(158)  In 1998 other measures were taken such as the condemnation by the military criminal courts of two officials and two subofficials who participated in the death of 13 persons in Riofrio (Department of El Valle). The national Government also decided to set up a Special Committee for the Promotion of Human Rights Investigations, which operates at the highest level of the public administration and provides an additional means of action against crime.(159) 

The Office of the Procurator-General of the Nation set up a Human Rights Unit consisting of a specialized group of highly qualified investigators, provided with all the economic resources indispensable for carrying out their work, to deal with the most problematic cases of violence. At present the Human Rights Unit has before it 864 cases and has managed to capture 259 accused persons. Of the persons who have been captured and against whom proceedings have been taken by the Office of the Procurator-General there are a total of 120 members of self-defence organizations and 90 guerrillas (1998),(160)  and 248 persons suspected of being members of self-defence organizations have been arrested.(161)  The successful action of the Office of the Procurator-General includes the capture and prosecution of the alleged heads of the self-defence groups. Between September 1997 and February 1998, 29 members of the self-defence groups were killed by the public forces.(162) 

In 1998 extradition was re-established within the Colombian legal system which means that persons committing crimes outside the country can no longer seek refuge within the national frontiers. This measure affects the heads of the drug- trafficking groups, who are among the main protagonists of the violence affecting the country.

The investigation of crimes against defenders of human rights has been given special attention by the Colombian authorities. In this respect, the Office of the Procurator-General of the Nation has achieved positive results in its examination of all the cases, leading to the capture of the main co-participants in the five crimes. These include the murders of Eduardo Umaña Mendoza (arrests made), Jesús María Valle Jaramillo (five persons arrested). To these must be added the cases of the above-mentioned murders of María Arango Fonegra (four persons arrested); and Elsa Alvarado and Mario Calderón (five persons arrested).

Important results were achieved in 1998 in the fight against crime. A total of 6,298 persons were arrested on charges of murder, 14,281 persons were arrested by the Committee on Offences involving Physical Injury; 217 persons who had been abducted were freed by the national police, the highest number of cases involving the freeing of kidnapped persons in the history of the country; 386 kidnappers were captured; stolen property worth 550,000 million pesos was recovered.(163)  The measures taken to combat the production of and trade in illicit drugs, the main source of violence in the country, include the destruction of a total of 63,140 hectares of illicit coca and poppy crops; the confiscation of 55 ton of cocaine, 39 ton of marijuana, 350 kilos of heroin and morphine; the destruction of 190 laboratories used for processing drugs; the capture of 1,364 persons accused of drug trafficking; the confiscation of 1,127 tonnes of solid chemical substances and 1,866,257 liquid gallons used for the processing of drugs.(164) 

The national Government decided to dismantle and dissolve brigade XX of the national army responsible for military intelligence, following suspicion that some of its members had participated in human rights violations and subversive activities against the legitimately established Government.(165)  Although there is no conclusive judicial evidence on the criminal activities of certain members of the brigade, the national Government acted decisively since it was not prepared to tolerate even any suspicion about a unit of the armed forces.

As regards the alleged relationship between members of the public forces and illegal self-defence or private "justice" groups, the Government has been clear and transparent in recognizing that these are isolated incidents and have in no way been an expression of state policy, and that such cases are at all events punished with the full force of the law. As regards this matter, which is of essential importance for the Colombian State and the international community, it is essential to bear in mind the report of the Office of the United Nations High Commissioner for Human Rights, which is the international body responsible for examining infringements of human rights and international humanitarian law. The conclusions of the above-mentioned report, state that the collaboration or acquiescence of members of the public forces in activities carried out by private justice groups has been of an occasional nature.(166) 

Similarly, a Human Rights Office has been established within the Ministry of National Defence with responsibility for prevention policy and the promotion of a culture of respect of human rights within the military institution. The Human Rights Manual for Members of the Military Forces is an obligatory study text in the military academies.

The national Government has decided to undertake a reform of the Military Penal Code under which cases of infringement of international humanitarian law or human rights by members of the military or the police will be excluded from the competence of the military criminal courts and transferred to the ordinary courts. Although the infringements of human rights committed by members of the public forces occupy a secondary place in general statistics.(167)  the purpose of the reform of the Military Penal Code is to give total transparency to criminal proceedings under way against members of the armed forces by eliminating all possible suspicion of any favouritism which they might receive in sentences handed down by the military authorities.(168)  However, the proposed reform will to a large extent constitute a recognition of the legal texts of jurisprudence and judicial decisions that, in a healthy interpretation of law and the Constitution, have been handed down by magistrates.(169)  These legal decisions have stated that crimes against humanity may not be considered as having been carried out in the exercise of duty or pursuant to functions of an inherently military kind which as such would benefit from military protection.

In accordance with the above-mentioned legislative changes, effective steps have also been taken to amend ordinary penal legislation, with a view to strengthening the existing legal instruments and fully incorporating standards on human rights and humanitarian international law into the internal legal system.(170)  In this respect, on the initiative of the Procurator-General of the Nation, an integrated draft text of the Penal Code was presented to the Congress of the Republic, the revision and discussion of which have made rapid progress in Parliament.

The penal legislation in force provides sanctions for various infringements of human rights or international humanitarian law according to a classification of kinds of criminal offences within the penal statute.(171)  The new draft text introduces a systematic classification which includes specific and heavier sanctions for these and other violations and expressly recognizes the relevance of human rights and international humanitarian law to the Colombian penal system. This importance had already been established by the Constitutional Court, for example when it ruled that human rights as enshrined in international treaties signed by the Colombian State were the essential yardstick to the constitutional interpretation of the legal order.(172) 

The reforms proposed by the draft text of the Penal Code include the creation, as autonomous and special concepts, of the offences of "forced disappearance" (section 161),(173)  "genocide" (section 100), "advocacy of genocide" (section 101), "murder of a protected person" (section 135),(174)  "assault of a protected person" (section 136), "torture of a protected person" (section 137), "use of unlawful means and methods of war" (section 138), "acts of perfidy" (section 139),(175)  "acts of terrorism" (section 140), "acts of barbarity" (section 141), "inhuman and degrading treatment and biological experiments on a protected person" (section 142), "acts of racial discrimination" (section 143), "taking of hostages" (section 144), "illegal detention and prevention of due process" (section 145), "involuntary support of an act of war" (section 146), "plundering on the field of battle" (section 147), "failure to provide measures of support and humanitarian assistance" (section 148), "hindering of health and humanitarian measures" (section 149), "destruction and seizing of protected goods" (section 150), "destruction of property and equipment used for health purposes" (section 151), "destruction or unlawful use of cultural goods and places of worship" (section 152), "attack against plant and installations containing dangerous sources of power" (section 153), "acts of reprisal" (section 154),(176)  "deportation, expulsion, transfer or forced displacement of the civilian population" (section 155), "attacks against subsistence and acts of devastation" (section 156), "failure to adopt measures to protect the civilian population" (section 157),(177)  "unlawful recruitment" (section 158), "exaction or arbitrary contributions" (section 159), "destruction of the environment" (section 160) as well as an increase in the sanctions applicable to the crime of "torture" (section 173).(178) 

Pursuant to the above, the national Government signed on 10 December 1998 the Statute of the International Criminal Court.

As can be seen from this report, both international humanitarian law and international law respecting human rights, as well as their principles and concepts, have been at the heart of the entire strategy for achieving an immediate reduction of the violence affecting Colombia, as a preliminary stage to the humanization of the conflict, which is an indispensable step to the achievement of more comprehensive agreements for the total elimination of the internal armed conflict. This is also the purpose of the incorporation of standards of international humanitarian law into the Colombian Penal Code, but at the same time the matter has also been raised in conversations with several of the armed groups participating in the internal conflict.

The Colombian State has set up a system for protecting threatened persons which involves several state agencies. The protection of the life, integrity and freedom of persons in situations posing a risk of human rights violations is also a matter of crucial importance if the rights of the civilian population are to be not only established on paper, but guaranteed in an effective manner. The protection of the population and, within the population, of those persons or social groups in situations of risk, is provided by various state agencies.

In particular, the Administrative Security Department (DAS) provides personal protection to threatened persons or persons who are potential targets of terrorist action. However, this is a relatively difficult task, given the large number of vulnerable persons and groups directly threatened with death or other reprisals by armed groups,(179)  a situation which is further compounded by the limited economic and staff resources of state bodies. All this has resulted in the strengthening of special projects, with priority being given to the most vulnerable groups, such as the programme for protecting defenders of human rights in the country, under which special powers were given to the Special Administrative Unit for Human Rights of the Ministry of the Interior, since these persons are one of the highest risk groups in Colombia.(180)  The programme which covers different threatened persons, includes, according to the respective security studies, the provision of escorts, vehicles, bulletproof jackets, security training courses, television cameras, the cost of transfer to other cities, communication equipment, arms, economic assistance for personal maintenance, installation of security alarms and doors, etc.(181) 

The Human Rights Unit of the Ministry of the Interior has also established a programme for protecting political leaders, many of whom are also trade union leaders. These include the special protection programmes for Nelson Berrío, an official of the Workers' Trade Union (USO); Hector Fajardo, leader of the CUT; Tarcisio Mora, a leader of the Colombian Federation of Teachers (FECODE); Jesús Bernal, an official of SINTRACREDITARIO; Wilson Borja, a leader of FENALTRASE; Domingo Tovar, an official of the CUT.(182) 

However, measures taken to protect threatened persons are pointless without their own collaboration. This was unfortunately and clearly demonstrated in the assassination of the vice-president of the Single Central Organization of Workers (CUT), Jorge Ortega, who a few days before his death had refused the personal protection services offered to him by the State.(183) 

The Inter-Institutional Commission on Workers' Human Rights, set up by Decrees Nos. 1413 of 1997 and 465 of 1998, is another of the mechanisms established by the Colombian State to monitor human rights and deal with acts of violence. The Commission is made up on a participatory basis of state agencies and representatives of the organizations of civil society. Members of the Commission include the Minister of Labour, the Minister of the Interior, the Minister of Justice, the Minister of Defence, the Presidential Adviser for Social Policy, the Presidential Adviser for Human Rights, the Presidential Adviser for Displaced Persons, as well as representatives of non-governmental organizations (NGOs): five representatives of the worker central organizations, the President of the Episcopal Conference, the President of the José Alvear Restrepo College of Lawyers, the Director of the Colombian Commission of Jurists, the Procurator-General of the Nation and the Ombudsman.(184)  The Commission has a detailed workplan which is carried out collectively with state agencies, trade union organizations, and the non-governmental human rights bodies which make up the Commission.

The search for a negotiated solution to the armed conflict

For all the social and political forces of the nation, as represented in the State and civil society, the conclusion of a political agreement with the authors of the violence, and in particular with the guerrillas, is a priority objective in the search for peace. The possibility of achieving a lasting peace agreement, through negotiations with the subversive armed groups, would put an end to the internal armed conflict which is bleeding the country.

The ending of the internal armed conflict would have a number of favourable implications for a new and constructive development of the nation; the enormous resources which at present have to be invested in security and other activities relating to the defence of society and institutions could be used to generate employment and social well-being; a number of essential rights would be fully restored, which are necessary conditions for the development of society but which have been adversely affected by the process of the internal conflict.

If the internal armed conflict were ended by way of political negotiations an immediate repercussion would be that a series of supervisory functions and proactive, direct and indirect functions, would come into play, all of which are positive. With respect to the supervisory functions, which are of a direct nature as they relate to the occurrence and origin of the conflict, we should mention the end of the acts of violence which have seriously affected the rights to life, personal freedom, personal safety, the population's free choice of where to live, etc. The sphere of supervisory functions of an indirect nature, given their connection with the origins of the armed conflict, would cover such rights as freedom of association and trade union rights, free enterprise, etc. Among the proactive functions we should mention the creation of an environment of tranquillity and safety to attract investment and generate work and wealth.

In specific areas relating to social rights, such as freedom of association and trade union rights, which have attracted the interest of the International Labour Organization, and have been indirectly affected by the internal armed conflict, political negotiations with the perpetrators of the violence should efficiently eliminate the original, real factors which led to the violence.

Peace is then a way of generating the appropriate conditions for the population to be able fully to exercise all their social, economic and political rights where, in turn, the fulfilment of such rights constitutes the fundamental objective to be achieved by the State and civil society. Even if, in order to create the conditions for peace, which are seen as a way of consolidating the population's rights as citizens, the State has not renounced the monopoly of force, nor the duty to protect that it must provide an instrument, is currently under political negotiation with the armed insurgents that will not only help to develop these conditions but which is also a mechanism that can save lives, suffering, property, financial resources and time in conflict settlement.

The option of conducting political negotiations with armed groups situated on the fringes of the law is not unknown in the country's history, nor unrealistic in ideological or political terms. In Colombia's recent history, the State has successfully conducted a number of political negotiation processes with guerrilla groups, the principal effect of which was to reduce violence and its negative consequences, at the same time as creating better living conditions for the population. These peace processes led to the demobilization of certain guerrilla groups such as the 19th of April Movement (M-19) and the Popular Liberation Army (EPL), with only relatively minority dissident factions not laying down their arms; the Socialist Renewal Current (CRS), the Workers' Revolutionary Party (PRT) and the "Quintín Lame" group, whose constituents all came over to the side of the law.

The President of the Republic, Andrés Pastrana, established and is personally leading a peace process that the country is aware of and fully supports, as well as the strategy developed to apply it. This policy made provision for a political solution to the armed conflict based on negotiations with the insurgent movements as well as the adoption of substantive reforms of a political, economic and social nature.

The President said during the campaign period: "I am basing myself on the fact that what the guerrilla forces want to see is a change in the country's political and economic structures, the principal features of which can be found in the agendas for reconciliation that the insurgent groups made known some time ago. These agendas relate to substantive aspects which can and should be addressed by the Government during negotiations, which makes the war even more senseless. Negotiation would not only put an end to the confrontation, but it would guarantee that by way of broad agreement on a new plan for the country the basis for true reconciliation among Colombians would be put into place".(185) 

On the same occasion, the now President of the Republic was emphatic in saying that "peace must be the product of the meeting of the whole of Colombian society, which is why its definitive agenda must be the product of its active participation. Society at present is not only demanding an end to the confrontation, but is expressing its views on the new country the Colombians would like to see. Both expressions should represent an inescapable mandate for the parties to the conflict. These demands by civil society impose a new approach to negotiation which is not just limited to considering the subjects for discussion defined by the parties, but implies the creation of a broad, representative and plural space so that the peace agenda and its negotiation can be the result of democratic opinions. From this standpoint the participants should be the national Government and the leading members of the guerrilla movements, hopefully with a unified mandate, with the active involvement of civil society".

The current administration's peace policy is based on these convictions and all the decisions that have been made, both of a substantive and of a procedural nature, are intended to facilitate this process.

In the Government's view the peace process should begin and political negotiations should transcend the insurgency as it is an inescapable and unconditional duty of the State as a whole to overcome the objective conditions that caused it.

Overcoming poverty, achieving social justice and promoting and stimulating human rights are an essential part of the current peace policy. This is why the President of the Republic decided that the "national development plan" would be a plan for peace and why he proceeded to establish 'Plan Colombia', first announced during his inauguration as President. Through 'Plan Colombia' programmes and projects will be implemented which are designed to redress the economic and social situation in the country's most depressed areas.(186) 

'Plan Colombia' is designed in such a way that all Colombians can participate in decisions concerning its application, including the members of the insurgent forces, for the President of the Republic was serious when he said "I accept with realism that I will negotiate with insurgent forces which have stated their decision to be joint protagonists in rebuilding the nation". 'Plan Colombia' is coordinated by the High Commissioner for Peace, Víctor G. Ricardo.

The Government has worked hard to obtain the necessary resources to finance 'Plan Colombia'. Together with the contribution provided in the national budget, so-called "peace bonds" have already been established, a tax contribution by members of society who have greater financial capabilities, and further mechanisms are being set up to obtain other voluntary contributions from the private sector. Likewise, a widespread foreign operation is under way, as part of this Government's diplomatic efforts in pursuit of peace, to obtain resources through international cooperation. Definite and encouraging commitments have already been made in this respect by friendly countries and the multilateral bank.

The government operation also involved setting the scene for political negotiations with the insurgent forces. As the President said "the time has come to take the agenda of the guerrilla forces seriously as a condition to ending the stalemate of mutual distrust". The Head of State had previously said that "when the substantive agendas for reconciliation that were submitted by the insurgent movements were examined, particularly the platform for reconciliation consisting of ten points from the FARC and of 12 points from the ELN, it was easy to see that all the issues they contain are negotiable".

The President also noted that "the process should reconcile the urgent need to end the armed confrontation with the need to exhaust a full agenda for lasting peace, the fulfilment of which involves the whole nation, including the insurgent organizations. The first step in this respect must be to overcome the procedural difficulties which are the only ones standing in the way of dialogue".

As demonstrated above, the commitment of the Head of the State of Colombia, President Andrés Pastrana, to the peace and reconciliation policy was total, and this was widely recognized by public opinion.(187) 

His peace policy is unreservedly supported by all the country's political and social forces, including the opposition political parties, the associations of trade and industry, the trade unions and the non-governmental organizations (NGOs).

When he was a candidate to the first magistracy, in an action which demonstrated his open and public commitment to peace, President Andrés Pastrana met personally with Manuel Marulanda Vélez and members of the FARC staff to agree to the terms of the peace talks.(188) 

Since August 1998, when he was inaugurated as President of the Republic, the Government of Andrés Pastrana, as a clear demonstration of this will to seek a negotiated peace agreement, authorized the clearance of five of the country's municipalities covering a total area of 43,000 km2 in order to establish an "area of détente". This "area of détente", to be in force between 7 November 1998 and 7 February 1999, was created in order to provide an appropriate setting to begin negotiations and to offer security guarantees to FARC leaders, and implied the withdrawal of all the military forces and national police from the specified area.

In addition to the establishment of the "area of détente", the political nature of the FARC and the ELN was also recognized. President Andrés Pastrana endorsed a meeting of members of civilian society and some non-governmental state agencies with delegates from the National Liberation Army (ELN) in Mainz (Germany) to begin talks with this guerrilla organization. It then also authorized, with the approval of the Attorney-General of the Nation, the temporary release from prison of ELN leaders for the purpose of holding a meeting with the guerrilla group at a place chosen by the leadership of the subversive organization, in order to advance in the process of dialogue.(189)  The Government of President Andrés Pastrana not only agreed to, but also clearly supported, the holding of a "National Convention" on Colombian territory organized by the ELN with the participation of state representatives and members of civilian society, the latter selected by the ELN, where the peace talks will take place. The Government also recognized three members of the FARC as representatives of this organization to the peace talks, after having obtained the withdrawal of the arrest warrants issued against them.

Within the peace strategy established by the State of Colombia it is important to point out that the national Government agreed to hold peace talks with the FARC and the ELN under two difficult and generous terms that demonstrate the efforts being made to achieve progress using this approach: (i) holding peace talks without demanding the fulfilment of any prerequisites; (ii) holding peace talks in the midst of the conflict, that is to say without the guerrilla organizations declaring a ceasefire or stopping abductions and other criminal actions.

At the same time, the State of Colombia and the members of civilian society participating in the talks with the guerrilla groups have been seeking ways of reducing the repercussions of the internal armed conflict, until the peace process reaches a permanent and firm agreement to end it. The Government invited the subversive groups to order a "ceasefire" during the Christmas festivities, an initiative that was agreed to by the dissident group of the Caraballo Popular Liberation Army (EPL) and the United Self-Defence Forces of Colombia (AUC). The National Liberation Army (ELN) agreed not to abduct persons over the age of 65 or minors although this offer was only adhered to in a limited fashion. The Government was able to discuss with the guerrilla forces the possibility of not recruiting minors into armed groups. The Government began discussions with the guerrillas on stopping planting anti-personnel mines, which claim the greatest number of victims among the civilian population. The Government prevailed upon the Congress of the Republic to pass the first legislative initiatives to make available the necessary legal powers to engage in negotiations with the armed insurgent groups. The Government, in compliance with legal provisions, studied the viability of legal means to negotiate the exchange of police and military personnel abducted by the guerrilla forces for the liberation of detained subversives, as requested by the rebels. Also, with the participation of members of civilian society, the guerrilla groups were invited to release all those they had abducted, a request that, while it was not complied with by the guerrillas, was partially successful as seen in the case of the 16-year old girl abducted by the FARC, when she went with her mother to pay the ransom for her father's release.(190) 

Given the dynamics of the peace process championed by the Government, not even the self-defence forces have been able to avoid its impetus. Together with representatives of the Peace Council, the United Self-Defence Forces (AUC) signed the so-called "Paramillo Knot Agreement", where they agreed to discuss the foundations of a convention to humanize the conflict at the same time as providing information on their readiness to participate in a "national peace assembly".(191)  And although the Government was cautious and prudent on the subject of the self-defence or private "justice" groups, being of the view that dialogue with them would have to take place separately once the necessary conditions have been met, these initial indicators of the AUC's position are positive for the future of the peace process.

In this undertaking the Government has sought and obtained international understanding and support with a view to providing the peace process with new instruments to gradually build mutual confidence and to seek its public and financial cooperation in order to achieve the objectives set by the parties.

The participation of the international community presupposes acceptance that the peace process does not depend solely and exclusively on the will and actions of the Colombian Government, but that it also involves civil society and the insurgent groups which have their own wills and actions, meaning that this is a complex process which is neither controlled nor monopolized by the Government. Consequently the cooperation of the international community, as the President of the Republic has indicated, must respect the negotiations of the parties to the conflict, as it is these parties which can make peace a reality and not the international community. The specific tasks of the international community, in accordance with the progress and dynamics of the peace process, are manifold. It can work to facilitate meetings and appropriate conditions for negotiation, can act as witness to commitments obtained, and as an authority to inspect and monitor adherence to the agreements reached.

It is in this way that the Government has formulated and put into practice diplomacy for peace, a foreign policy based on calls to the international community to support, on all fronts, the negotiated political end to the Colombian conflict.

The Government of President Andrés Pastrana received offers of cooperation in the peace process, developed carefully and with due regard for political implications, from the Governments of the United States,(192)  Costa Rica,(193)  Cuba,(194)  Spain(195)  and Venezuela,(196)  members of the European Parliament,(197)  etc., which realized that their actions to promote the peace process must come under the leadership of the Colombian Government which is responsible for promoting the process. Similarly, the United Nations Office of the High Commissioner for Human Rights monitored national peace efforts, contributing to the policy developed by the Government.

Violence engenders more violence. The Government is very much aware of this lesson of experience in its exchanges with the self-defence and private justice groups. The President has realized that their existence "is one of the most perverse expressions of the worsening of the conflict", adding forcefully and grimly that "these groups essentially contradict the principle of the monopoly of the arms in the State's possession and are an extremely serious factor in the war. For this reason peace cannot be envisaged without silencing their weapons, which is something that will have to be done on a platform separate to peace negotiations with the guerrilla forces and under the exclusive responsibility of the State". The President stated his commitment to using all his powers and his utmost political will to prevent any criminal links being established between any of the state agents and the paramilitary groups and also to investigate all denunciations, ensuring the effectiveness of the investigations and the punishment of any wrongful conduct.

The Government respects and requires strict compliance with the provisions of international humanitarian law in respect of the confrontation. It has been and it will continue to be inflexible in this stance, denouncing both nationally and internationally attacks against those who are not participating in the hostilities and against civilian property, as well as the use of any means or methods of fighting that are prohibited by humanity. The State of Colombia is ready to sign a special agreement in this area with the armed protagonists which will establish the mechanisms to examine the combatants' behaviour and respect vis-à-vis the civilian population and its property.

Respect for these humanitarian dictates will be the parameter for decisions pertaining to pardon and justice. Civilized peoples have set the moral limits of amnesties and reprieves in accordance with these dictates and Colombia will do the same.

The biggest demonstration of the State of Colombia's peace policy was the meeting held with the FARC on 7 January 1999 with the aim of beginning negotiations with that guerrilla organization. In the presence of the President of the Republic, and in spite of the last-minute absence of Manuel Marulanda Vélez, the negotiating tables were set up and FARC participated, as witnessed by representatives of the international community and over 300 national and international journalists.

At the negotiators' meeting held on 11 January 1999 the parties involved submitted their agendas for reconciliation, which shared a number of common points.

The Government submitted a ten-point agenda, as follows:

  1. Unconditional protection of human rights and respect for international humanitarian law.
  2. Economic and social structure.
  3. Political and state reform.
  4. Alternative development and crop replacement.
  5. Environmental protection.
  6. Strengthening of the justice system.
  7. Land reform.
  8. "Paramilitarism".
  9. International community support for the process.
  10. Viability of instruments for peace.

The reconciliation agenda of the FARC included the following ten points:

  1. Political solution to the serious conflict affecting the country.
  2. The military doctrine of national defence will be Bolivarian.
  3. National, regional and municipal democratic participation in decisions which could endanger the future of society.
  4. Development and economic modernization with social justice.
  5. Fifty per cent of the national budget will be invested in social welfare.
  6. Those with the greatest wealth will pay the highest taxes in order to achieve the effective redistribution of income.
  7. Agrarian policy that will democratize credit, technical assistance and marketing.
  8. Exploitation of natural resources such as oil, gas, coal, gold, nickel, emeralds, etc., for the benefit of the country and its regions.
  9. International relations with all countries under the principle of respect for the free self-determination of peoples and for mutual benefit.
  10. Solving the matter of the production, commercialization and consumption of drugs and hallucinogens.

It should be emphasized with respect to these agendas for negotiation that they constitute the first step in building a joint agenda for negotiation, change and transformation in the political, social and economic life of the country. Peace talks are no longer just a promise or an expectation, they are already being developed on the joint agenda mentioned.

Likewise, it is imperative to stress the fact that the role of the international community in the peace process is part of the proposed agenda for negotiation.

The peace process has begun; its first firm and serious steps reflect the unrestricted will of the State of Colombia, expressed in the generous and conciliatory attitude of the national Government under the leadership of President Andrés Arango.

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Annex II

The political institutional system in Colombia

Colombia is a State subject to the rule of law. In this section we will explain the detailed workings of the Colombian Constitution and the way in which it acts as a fundamental focus that serves as the source and touchstone of the State's institutional system. For this purpose it is necessary to provide details of a legal, political and cultural nature about the structure of the State and the numerous social elements that comprise and define it. Although this account is not an exhaustive one, it will provide a broader and more precise picture of the State of Colombia.

Background

In the context of the agitated and complex history of the Western world, Colombia is a country that 188 years ago threw off the yoke of colonial imperialism. Since its very birth as an independent and sovereign State, our country has suffered the effects of successive waves of violence and far-reaching internal clashes, that are inherent in the shaping of any national identity. The Colombian people have faced these clashes with unwavering determination to create a democratically spirited nation which embodies the greatest conquests of the cultural consolidation of western political traditions, thereby assimilating the country's unique socio-cultural circumstances.

Following a long line of constitutional endeavours which served to give concrete form to the population's democratic aspirations and to strengthen the State's sovereignty, the nation consolidated itself as a legally organized political unit through the Constitution of 1886. The practical basis of the new institutional system was the fact that the acknowledgement and establishment of a constitutional State is that State's dynamic course and fundamental principles is the only way of achieving the ideal of democracy. Likewise, the division of powers into three branches guaranteed the balance of the branches of public authority capable of resisting and transforming the radical social, demographic and political changes that occurred during the 105 years that the Constitution was in force, during which time the political map of the nineteenth century became more flexible adapting itself to the necessities of its modernization.

Among other legal concepts in the Constitution, the following are worthy of mention:

(i) Prior to the appearance of European constitutional courts, Colombia gave the Constitution jurisdictional control, establishing the public action of unconstitutionality, that is to say, that any citizen may bring an action before the Supreme Court against a national law which in their view violates constitutional provisions. Since 1910 this has provided a specific defence for fundamental rights threatened or infringed by the legislator, in such a way that the power held by the citizens in effect controlled political power.

(ii) The 1886 Constitution was refined and improved through a process of vigorous exchanges between the nation and the legal authorities. Thanks to the Constitution's social provisions the democratic election of mayors became a reality in 1888, followed by the social reform of the State in 1936 when the more privileged were required to shoulder obligations that bound them to an arrangement linking privilege to a strict system of social justice along the lines of noblesse oblige.

(iii) Likewise, with an illustrious vision of equity and the condemnation of discrimination, the whole range of rights was always universal, making it automatically impossible for the system to impose any type of sectarian persecution.

(iv) The law of laws broadened its spectrum to include a variety of concepts, with its leaning towards justice being the most important attribute it manifested in the social institutions. In this way the proper process was strengthened by specific characteristics and easily accessible controls for its enforcement, in the administrative as well as the judicial sphere.

(v) In the international sphere, the constitutional reform of 1945 allowed the sovereignty assigned to primary powers to be transferred to supranational legislation such as the Andean Pact, it being understood that the decisions contained in this Pact were legally binding for Colombia, provided that it remained a signatory to the international treaty.

(vi) Unlike other Latin American political models, Colombia reduced the power of the presidency, so that the huge power held by this body would gradually be lessened until it became an element in the political universe characterized by the three branches being in equilibrium with each other. We thank the Colombians that dictatorships are a much more distant phenomenon for us than is the case for our Latin American brothers.

1991 Constitution

In spite of the merits of the 1886 Constitution, all the social partners realized that in order to achieve a more just, tolerant and pluralistic society integrating all sectors of the population and providing legitimate opportunities for dialogue for the most dissimilar forces, it was necessary to make significant changes to the Constitution. Extensive deliberations led to the 1991 Constitution.

The advent of the present Constitution has no historic precedents in our country. Up until 1990, political initiatives from the various social levels had to be channelled according to a rigid two-party formula which, in the majority of cases, was not in keeping with the high mobility of a multifaceted society. Thus the vital energy of the constituent process sprang from actors who up until that time had been timid in the constitutive processes of power in such a way that the mandate of the Constituent Assembly came from the basic participation of the student movements, the trade union organizations, independent intellectuals of different ideological beliefs, minority political movements, dissident armed groups who were returning to the path of institutional participation,(198)  among many others. This new and vigorous political reality, together with the traditional parties and the direct patronage of the State resulted in a change of direction which gains its constitutional legitimacy from a juridical dialogue founded on the social rule of law, a charter of fundamental rights and guarantees, the development of participative democracy and a series of specific citizens' actions in defence of their fundamental rights.

The fundamental principles of the State

The structure of the State of Colombia requires that its various cogs work together harmoniously and legitimately to achieve the aims declared by society and incorporated into the Constitution. Beginning with the preamble,(199)  the people of Colombia, in the exercise of their sovereign power, state that it is the essential aim of the Constitution to "ensure its members life, peaceful coexistence, work ... " and the other fundamental values that determine the boundaries of the state policy.

A State subject to the social rule of law

The first article of the Constitution stipulates that "Colombia is a State subject to the social rule of law"; within the mechanics of modern constitutionalism beginning with the revision of the liberal state model, the social element in the formation of the State is fundamental to the development of a constitutional State. In other words, the State of Colombia is not only compelled to operate in a manner strictly in accordance with the law of the nation in each manifestation of its power, but also its work must be directed at satisfying the problems arising from the country's social and economic realities. The constitutional State thus illuminates the Constitution and is the basis of the supremacy of equality, participative democracy, freedom and social welfare as the reflection of the collective interest, with the prerogative of respect for legality being a given.

Sovereignty

While national sovereignty constituted the backbone for the establishment of the State of Colombia, the huge and dramatic changes in the concept of nation States have made their way into the Colombian political consciousness which regards that concept as being neither rigid nor immutable and which, on the contrary -- for the sake of the universal ideals of globalization -- adopted a more flexible view of sovereignty to enable Colombia to join the ranks of the global community, it being understood that that flexibility will not imply the deterioration or erosion of the principle of the autonomy of peoples or of freedom which constitutes the very essence of national liberty as the guiding principle of reciprocal and equitable international relations. The Constitution is generous in harmonizing national legislation with the rules of globalization, as the following examples show:

(i) The preamble establishes that one of the aims of the Constitution is "to promote the integration of the Latin American community", a necessity at a time when regional communities are embarking on huge projects.

(ii) Article 9 of the Constitution categorically stipulates that "the external relations of the State are based on national sovereignty, on respect for the self-determination of peoples, and on the recognition of the principles of international law approved by Colombia" which clearly demonstrates the country's acknowledgement that the foundation of its international commitments lies in respect for other nations subject to international law, to instruments concluded with them and to the observance of those elementary principles which the Colombian people, as a sovereign power, have incorporated into their legislation.

(iii) Article 44 confirms that the fundamental rights of children include the rights upheld in the Constitution, national laws and international treaties ratified by Colombia.

(iv) Article 53, paragraph 4, provides that "international labour agreements duly ratified are part of domestic legislation". Under this constitutional provision, such agreements automatically become part of domestic legislation, repealing any earlier legislation that is contrary to them. In addition, those that recognize human rights and that prohibit their limitation in states of emergency, according to article 93 "have priority domestically". We can therefore say that our legal system gives international agreements superior status and legal force.

(v) Article 94 provides that "the enunciation of the rights and guarantees contained in the Constitution and in international agreements in effect should not be understood as a negation of others which, being inherent to the human being, are not expressly mentioned in them"; the description of fundamental rights does not depend on an act of capricious will by the State; they are inherent in human beings and it is for the State to recognize and protect them given that they are in essence intangible, imprescriptible and universal. For this reason rights are considered on a much broader level than the possibility of a State to condition them.

(vi) The importance of international law and the commitment entered into by the State of Colombia in this respect can be seen in an entire chapter of the Constitution which is exclusively dedicated to international relations. Chapter 8 of Title VII stipulates, inter alia, the internal procedure to incorporate international treaties into national legislation and the basic elements necessary for its validity, a procedure that involves the three branches of political authority, each working in harmony with the others, but acting as checks and balances, the source of a true constitutional State. In addition, this chapter indicates that: "The State will promote the globalization of political, economic, social and ecological relations on the basis of fairness, reciprocity, and the national interest" (article 226).

Transnational equality has been the central factor in the establishment of the international community. As Colombia sees it, this presupposes that making sovereignty more flexible in favour of globalization requires as a determining factor that the transfer of competence to various international instruments is implicit, strict and being an essential part of the process this means that each country, as international treaty writers unanimously claim, "only acquires obligations when it ratifies an agreement to the extent that they objectively express the provisions contained therein";(200)  in other words the international instrument incorporates all the obligations required of the State and elements that it does not contain cannot be derived from it.

Decentralization and territorial autonomy

Colombia is organized as a unitary republic which does not mean that its internal political structure is monolithic or that there is a monopoly of central power. The principal reality and tendency that shapes the Constitution right from the very start is the embodiment of territorial autonomy as an essential basis for the whole of society to develop in accordance with its regional needs and characteristics. This autonomy, while neither legislative nor jurisdictional, does contain essential elements for the self-governing of regions and municipalities. These elements are:

(i) As a result of the distribution of competence among the various levels of the civil service involved in local government, the central Government can only do what has not been assigned to the territorial bodies by way of legislation. In other words the boundaries are clearly established between regional powers and the powers of the central State so that it cannot in any way intervene in matters that are their responsibility.

(ii) The local government political authorities are autonomous in their administrative decisions with respect to the central power once the territorial authorities such as the governors, mayors, deputies and town councillors are democratically elected by the electorate.

(iii) As a form of expression of state unity, the local authorities, like all other authorities, must comply with national judicial rulings.

Fundamental rights and guarantees

The Constitution of Colombia could be seen as a recipient of the immense effort of Western culture to develop solid and effective constitutions in the face of the previously absolute power of the State. The Colombian Constitution enshrines rights, at various levels, making it an imperative for the State to defend and promote them. However, the importance of this wide range of rights does not lie in merely declaring them, but in the practical and direct mechanisms available to individuals and the community to make them effective and the clear obligation of the State of Colombia to promote and extend the culture of fundamental rights through all its agencies. By way of information only we will provide a summary of some universal rights and freedoms and the ways in which they are protected in Colombia.

Rights. Article 11, the right to life. Without the shadow of a doubt this is the essential core around which all other rights evolve. Article 12, the right to personal safety. Article 13, the right to equality, where the State is required to promote the conditions necessary in order that equality may be real and effective and to adopt measures in favour of groups which are obviously discriminated against or marginalized. Article 15, the right to privacy (habeas data). Article 16, the right to free personal development without limitations other than those imposed by the rights of others. Article 21, the right to dignity. Article 25, the right to work under dignified and equitable conditions. Article 29, the right to due process with respect to all legal and administrative measures. Article 39, the right to freedom of association. Article 40, the right to vote and be elected. Article 48, the right to social security. Article 49, the right to health. Article 51, the right to live in dignity. Article 55, the right to collective bargaining. Article 56, the right to strike, except in the case of essential public services. Article 67, the right to education. Article 79, the right to enjoy a healthy environment.

Freedoms. Article 18, freedom of conscience. Article 19, freedom of religion. Article 20, freedom of expression and of thought. Article 24, freedom of movement. Articles 27 and 67, freedom of teaching, training and professorship. Article 38, freedom of association.

Mechanisms for the protection of rights

In addition to the judicial actions established in the usual legislative provisions of different codes and statutes there are certain judicial actions or remedies designed specifically to protect fundamental rights. We would like to make particular mention of the following:

Writ of protection (constitutional guarantee of protection). Established in article 86 of the Constitution, this is the supreme safeguard of the power of the individual vis-à-vis violations of fundamental rights by the administration. The major advantage of the writ of protection lies in the far-reaching scope of application accorded to it under the law, meaning that anyone can claim before any judge at any time and in any place the immediate protection of their fundamental rights if these have been infringed or threatened by any action or omission by any public authority, and the order must be complied with immediately through a preferential and summary proceeding (ten days for the first petition and 20 for the second). The writ of protection is currently being revised by the Constitutional Court which, as the highest body for the judicial defence of the Constitution, has made this form of protection sufficiently effective to counteract any possible irresponsible actions by the State. The defence of rights using this provision extends beyond the sphere of individual cases and has become the most effective judicial remedy and the principal safeguard in the protection of fundamental rights in Colombia. The constitutional guarantee of protection has allowed all citizens to become familiar with and aware of the content of fundamental rights, thus enhancing their central power in the political fabric.

The right of petition. Established in article 23 of the Constitution, this mechanism makes it possible for everyone to present petitions to the state authorities and establishes the corresponding obligation of the State to satisfy the requirements, without any exception, through the prompt resolution of the petition. This right is vital for democracy and gives people basic and fundamental control over administrative acts, as well as a degree of power which the State is expressly prohibited from withdrawing.

Action for performance. This is a public action which allows everyone to be granted the performance of a legislative provision or administrative act by way of a judicial ruling on any legal standards that have not been applied by the administration. It constitutes an extension of citizens' powers to intercede as a vibrant and dynamic political voice before the State, and the concrete application of the classical ideals of democracy where the power of the citizen determines the sphere of power of the public authorities.

The public rights of action under article 88 of the Constitution came into being with the Colombian Civil Code (1873), but given their importance, were integrated into the Constitution in 1991. This action allows for "the protection of collective rights and interests related to the homeland, space, public safety and health, administrative morality, the environment, free economic competition, and others of a similar nature".

Democracy

The true possibility of constitutional provisions becoming a reality in the daily life of a society and of the society having a definite influence on the Constitution lies in the capacity that each citizen has of freely expressing himself before the democratic institutions and directly influencing the structure of power and decision- taking.

Forms of participative democracy

The 1991 Constitution contains a wide range of mechanisms for democratic participation, including:

(i) Referendums to repeal laws. These are presented in general terms in article 103, while article 170 provides that "A group of citizens corresponding to one-tenth of the electoral rolls may solicit from the electoral organization the holding of a referendum for the repeal of a law" and continues in the second paragraph "This law will be repealed if half plus one of the voters who participate in the referendum so decide ...".

(ii) Referendum. Among the various formulas established with respect to constitutional reform this type of participation is twofold. Article 375 provides that a number of citizens totalling at least 5 per cent of the electoral rolls in force may submit Bills for the reform of the Constitution to the Congress of the Republic. But the Constitution goes even further, requiring that constitutional reforms approved by the Congress must be submitted to a referendum when they involve fundamental rights and their guarantees, procedures of popular participation or reforms of Congress itself, if 5 per cent of the citizens who make up the electoral rolls so decide (article 377). In the territorial sphere, article 307 requires that the conversion of a region into a territorial entity shall be submitted to a referendum by the citizens of the regions concerned.

(iii) Popular consultation. This is another of the ramifications of direct participation by the electorate in the taking of political decisions that are important for the State. Article 104 allows the President of the Republic to consult the electorate so it is the people who decide "on matters of great national importance". This provision extends to the regional sphere, according to the provisions of article 105, which gives governors or mayors the same possibilities for consultation in their respective spheres of competence.

(iv) Legislative initiatives. According to article 155, legislative Bills or those involving constitutional amendments may be introduced by a number of citizens equal to or greater than 5 per cent of the existing electoral rolls.

(v) Repeal of the mandate and programmatic vote. The most significant democratic feature of the relationship between governors and governed is the provision in the Constitution of the right to repeal the mandate. This demonstrates that the democratic government goes beyond the sphere of popular legitimation and comes under that of political responsibility for its mandate, distancing the shadow of full autonomy towards its electorate which had been seen as immutable since it was justified by Abbot Sieyes. In this way certain individual duties within the Colombian Government must comply with a government programme developed prior to election which means that voters do not vote for political colours or trends but for the programme that satisfies their concerns as citizens. In the event of the government official not fulfilling the programmes, the mandate is repealed.

Representative democracy

In Colombia the following political authorities are elected by way of universal and direct vote: President of the Republic, Vice-President of the Republic, senators, representatives to the legislative body, governors, mayors, municipal and district councillors, deputies to departmental assemblies, members of local administrative boards and when appropriate the members of the Constituent Assembly.

Basic structure of the State and the transfer of powers

Article 113 of the Constitution gives a general description of the basic structure of the State of Colombia. "The branches of government are the legislative, the executive and the judiciary. In addition to the organs which constitute them, there are others, autonomous and independent, for the execution of other functions of the State. The various organs of the State have separate functions but cooperate harmoniously to achieve their goals."

Since it was established as a political theory by John Locke and later lauded by the Baron of Montesquieu, up until the present time, one maxim of the constitutional State remains unchanged: the transfer of powers has been the formula whereby political systems have kept their applicability and philosophical and political consistency sufficiently capable of rationally understanding and promoting the democratic evolution of societies.

While it would be a considerable effort to describe in detail the functions assigned to the branches of the public authorities and the supervisory bodies in Colombia, it is necessary to explain the main ways in which our system takes up the universal principles of the division and autonomy of powers if one wishes to draw any empirical knowledge from its practical foundations and not to just engage in presumptive speculation lacking sufficient information.

The bastion of our political culture has been the maintenance of and firm respect for the spheres of competence that the Constitution has assigned to the various branches of power. This allows balance to be maintained in a variety of ways, namely:

Relations between the executive branch and the legislative branch. Our political system, while it does not allow such close relations between these branches as in a parliamentary system, opens sufficient channels for communication to allow them to work together harmoniously and in a manner which respects the constitutional State. With the structure of Congress being bicameral, this does not only offer the advantage of a pluralist structure open to the needs of minorities and regions, but it also operates as the internal reflection of the legislature. As the direct depository of the sovereign will of the Colombian people and the basic forum for democratic debate, the Congress autonomously issues the laws which generally strengthen the State's legislation, and its role as legislator can be neither delegated nor transferred. The relations of the legislative with the executive branch are expressly described in the Constitution and obey the framework of the firmest possible respect for the division of powers. The following points must be taken into account during the issuing of laws: (i) as an inherent part of the division of powers, the national Government can submit Bills to Congress (articles 154, 189, 200), discuss them, promote them and defend them through the ministers of the corresponding branch, but never through any institutional means demand the approval of the Bill or repeal any legislative faculty as this would constitute a devastating blow for the balance of the public authorities which has become an imperative aspect of our political structure; (ii) the President of the Republic as "Head of State, head of Government and supreme administrative authority" (article 115), has the constitutional obligation to punish (article 157 NI 4), promulgate, obey and see to the strict compliance of the laws enacted by Congress (article 189, No. 10). Once it is understood how the functions of the executive and legislatives branches overlap, as far as the legislative process is concerned, it is clear that those branches have no possibility of repealing functions expressly stipulated in the Constitution, which in turn takes up the most important developments in the constitutional State.

Relations between the executive branch and the judicial branch. Article 230 of the Constitution is categoric in stipulating that "In their decisions, the judges are bound exclusively by the rule of law." The most delicate equilibrium among the branches of public authority definitely consists of the respect that judicial decisions deserve within a democracy. Following the tortuous path taken by the judicial courts of the world it is clear today that the cultural development of a people can be measured by the degree of respect for and autonomy of a nation's judges. It is easy to see from this fundamental principle that the aspiration of founding a jurisdiction uninfluenced by the political and administrative changes taking place in the other branches of public authority is specified in article 228 of our Constitution which states: "The administration of justice is a public function. Its decisions are independent. ... The functioning of the judiciary will be decentralized and autonomous."

It is the duty of the Government, in addition to respect and deference for its decisions as the essential nucleus of the division of powers, to do the following in conjunction with the judiciary branch: "Lend the necessary assistance to the judicial officials to make their decisions effective, in accordance with the laws" (article 201, No. 1). It is impossible to come to the exotic conclusion that the Government can oblige the judges of the republic to distort their judicial decisions.

Relations between the legislative branch and the judicial branch. In keeping with the Constitution, the judiciary and the legislature work autonomously; there is no possibility of their functions crossing over or becoming mixed up. Ultimately, their function is to ensure the application of the law to cases assigned to the judiciary. The Constitutional Court as "the custodian of the integrity and supremacy of the Constitution" should, in the terms of the Constitution, declare the unconstitutionality of the laws issued by Congress.

Supervisory bodies

In addition to the branches of public authority, there are other autonomous and independent bodies which supervise the State's activities and their repercussions on society. They are designed to ensure that the operation of the State faithfully adapts itself to the supreme goals contained in the Constitution and the laws.

The Government Procurator's Office, comprised of the Attorney-General of the Nation and the People's Advocate. The work of the Attorney-General is in essence to supervise compliance with the Constitution, laws, judicial decisions and administrative acts; to protect human rights and ensure their effectiveness; to defend the interests of society and communities; to exercise additional vigilance over those performing public duties, exercising disciplinary power over all state officials. It thus complements the balance of power, basically in respect of the work of officials and the defence of the institutional system. The tools available to this body and its full autonomy ensure its effectiveness and preponderance in monitoring the way the State is run. The People's Advocate, inspired by the figure of the Ombudsman, fulfils the vital role of promoting and providing information on the free exercise of human rights, strengthening his power as intermediary between the state agencies and the society in order to promote the full enjoyment of such rights.

The Office of the Comptroller-General of the Republic is responsible for supervising the fiscal management of the administration and, more generally, ensuring that the nation's assets are managed in accordance with the Constitution and legislation.

We hope that a critical and committed reading of this description of Colombia's institutional system will give a clearer picture of the country.

Annex III

Position of the Colombian employers
in respect of the complaint made by the workers
of the country to the ILO and of the possibility of
naming a commission of inquiry for the country

Introduction

During the 86th Session of the International Labour Conference in Geneva, Switzerland in June 1998, the Colombian workers, with the support of the workers' delegates of 26 ILO member States and by virtue of article 26 of the ILO Constitution, made a complaint against the Colombian Government alleging non-observance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

In particular, the main aspects of the complaint can be summarized as follows:

In view of the above, the Colombian employers and businesses, in the interest of a better understanding of the reality in the country, wish to present their position in respect of the allegations made by the workers. This position is set forth below.

General considerations concerning
the violence in Colombia

There are few countries like Colombia where there exists such a complex phenomenon of violence. Indeed, the roots of this violence, its authors and its signs are so heterogeneously connected that they are extremely difficult to describe and the ultimate cause in respect of a particular act of violence is almost impossible to determine.

The following comments, rather than presenting an exhaustive or integral analysis of this phenomenon (of which, of course, there is an abundance in the country) are aimed at putting into context a sad reality whose solution requires the efforts and understanding of all, especially of international organizations.

From the time of its independence from the King of Spain, almost 180 years ago, Colombia has endured a high number, almost without interruption, of internal conflicts. It is enough to say that these conflicts, up until the middle of this century, have in most cases been due to various policies and leaders characteristic of a new republic.

In this respect, while it may be accurate to state that the violence in the country had a predominantly political origin, this is not so clear as concerns the present-day situation where it is necessary to add other elements to the political component such as drug-trafficking, contraband and common delinquency.

The simultaneous violence of so many and so powerful adversaries has undoubtedly disabled the ability of state entities and authorities to respond, and moreover has wreaked havoc at all levels of society. This is why in Colombia, as paradoxical as it may seem, everyone has been a victim of the violence. To give an idea, even if only superficial, of the level to which violence has risen in the country one can note that during the 1980s, homicides in Colombia began to increase at a rate of 8 to 9 per cent a year which raised the number from 9,000 in 1980 to 28,000 in 1991.

Such a spiral of violence hurts both the social fabric and its institutions, including those of the State. The case of the administration of justice provides a good illustration of this, as was appreciated in the analysis made by the Corporación Excelencia en la Justicia (a private, non-governmental organization) and from which the following extracts come:

Citizens' faith in the state judicial system and the need which exists for it is reflected in the way in which the individuals of a society seek to resolve the problems and conflicts which they live. According to the results of the most recent criminality module in the national home survey by DANE (level 90, December 1995), only 31 per cent of Colombian residents in the 11 most important cities of the country have reported to the authorities when they have been confronted with a crime. Sixty-two per cent did nothing, 1 per cent said that the matter was "resolved" and almost 5 per cent responded to the attack by their own means. The positive side of these figures is that they indicate that recourse to the justice system has increased because only an estimated 20 per cent of crimes were reported to the competent authorities in the 1980s. Nevertheless, the percentage of crimes reported continues to be very low and the fact that 5 per cent of the population acknowledge having sought justice by their own means is disturbing.

Within this framework, the notion which ignores the victimized position of the state entities and authorities of the country appears partial. Such a position, while in no way justifying the excesses and omissions of one or the other, does explain many of them. It is inadmissible to pretend now that these excesses constitute a policy or a reasoning of the Colombian State since, no matter how general they may be, the unprepared observer will be able to note that they are contrary to the constitutional standards, the thinking and directives of most of the executive, legislative and judicial authorities.

If a state policy -- because it can be properly qualified as such -- specifies the active cooperation of most of the levels of the State, it must be concluded that there would be no state policy in the absence of such an active cooperation.

If in Colombia there is not full implementation of the constitutional rights and guarantees, this is not due to a lack of will on the part of most public authorities and entities, but rather and precisely to the contrary, as we have said before, due to a decrease in their capacity to act.

The consequences of the statement that there is a state
policy against freedom of association in Colombia

The Colombian employers and businesses thus share to a certain degree the considerations contained in the complaint presented by the Colombian workers in the sense that the State carries out a policy of persecution against the trade union movement, although this is a partial and simplistic statement which does not acknowledge the complex reality of violence in Colombia and is furthermore inaccurate in that it does not correspond to the standards of the national Constitution or of the directives, nor does it reflect the will of most of the public bodies and authorities.

Nor can we agree with the assertion that the high number of deaths of trade union leaders and violent acts against them (acts which we abhor, condemn and regret) constitute irrefutable proof of a state policy against workers' freedom of association.

The different authors generating violence in Colombia

We disagree, in the first place, because the authors of violence in Colombia are so numerous that such deaths and attacks can come from any one of them. If they are committed by the military or public servants, this is due, as indicated above, not to the existence of a state policy but rather to motives solely and exclusively attributable to the persons concerned.

That violent and criminal acts in Colombia do not come only from the military and/or public servants acting in an isolated manner is something recognized by the studies of conflict undertaken in the country, such as those by international organizations for the defence of human rights, as can be noted in the sections below from the paper "Armed Conflict and Deterioration of Freedom in Colombia" by Dr. Alfredo Rangel and from the reports of Human Rights Watch published in 1998 and 1999.

(a) Paper "Armed Conflict and Deterioration of Freedom in Colombia" by Dr. Alfredo Rangel for the international seminar "Personal and Collective Freedom in Colombia, Reflections for its Construction", organized by the President of the Republic, Programme for the Defence of Personal Liberty:

(b) Human Rights Watch, "Annual Report on the Situation of Human Rights in the World", 1998, chapter concerning Colombia:

(c) Human Rights Watch, "Annual Report on the Situation of Human Rights in the World", 1999, chapter concerning Colombia:

The impact of the violence on all social sectors

The second reason for which we disagree with the link made by the workers between the high level of trade unionists affected and a state policy directed against them derives from the reality that is impossible to ignore. This is that all social sectors have a high level of victims.

The figures speak for themselves. According to the crimes reported to the National Police, the number of murders between 1994 and 1998 were:
 

Month

1994

1995

1996

1997

1998

January

2 134

2 312

2 087

2 224

2 021

February

1 997

1 943

2 002

1 999

1 833

March

1 906

2 105

2 085

2 192

1 920

April

2 082

1 915

2 056

2 098

1 807

May

2 335

2 091

2 267

2 262

1 851

June

2 285

2 128

2 300

2 096

1 679

July

2 116

2 193

2 196

2 077

1 921

August

2 191

2 131

2 279

2 205

1 971

September

2 331

1 993

2 232

1 961

1 788

October

2 252

2 089

2 155

1 888

1 971

November

2 269

1 875

2 368

2 023

1 948

December

2 535

2 439

2 435

2 188

2 423

Total

26 433

25 214

26 462

25 213

23 133

According to the complaint presented by the workers, the acts of violence including assassinations, disappearances, death threats and abductions against trade union leaders and activists, registered by the ILO within the framework of Case No. 1787, totalled 192. These lamentable acts, which have many causes and which we condemn, do not amount to more than 1 per cent of the violent acts which occur annually in Colombia. The violent acts that the rest of the Colombians have to contend with daily due to the generalized violence that characterizes the country are also to be condemned.

In effect, in the case of kidnappings, the Free Country Foundation, a non-governmental organization which promotes a policy to fight this terrible crime, presented the following figures of the sectors most affected between January and December 1998.
 

Social groups

Total

Social groups

Total

Without establishment

5 576

Geologists

4

Politicians

394

Photographers

3

Business persons

296

Industrialists

3

Minors

131

Entrepreneurs

3

Farmers

110

Shareholders

2

Engineers

105

Masons

2

Drivers

63

Peasants

2

Employees

58

Carpenters

2

Farmers

52

Accountants

2

Students

45

Economists

2

Foreigners

42

Nurses

2

Public forces

41

Advertisers

2

Housewives

30

Supervisors

2

Doctors

23

Social workers

2

Administrators

19

Zoo technicians

2

Educational staff

18

Indigenous persons

2

Journalists

16

Professional workers

2

Executive business persons

15

Dentists

1

Lawyers

15

Analysts

1

Landowners

12

Artists

1

Subcontractors

10

Insurance workers

1

Technicians

10

Assistants

1

Transport workers

8

Poultry farmers

1

Public employees

8

Bacteriologists

1

Pensioners

7

Biologists

1

Musicians

7

School guardians

1

Tax authorities

7

Comptrollers

1

Architects

7

Traders

1

Secretaries

7

Writers

1

Pilots

6

Ex-mayors

1

Veterinarians

6

Worksite supervisors

1

Coffee growers

4

Radiologists

1

Mechanics

4

Priests

1

Construction workers

4

Total

2 216

From the previous figures we count, for example, amongst the "politicians" all those who are elected by popular vote, especially mayors.

Obviously, all crimes committed against a trade unionist are reprehensible; however, this condemnation should be extended equally to the rest of the affected population. In other words, without attenuating the gravity of the acts committed against the trade unionists in Colombia, we consider that such facts should not be used to give an inexact or partial picture of the situation in the country. The commission of these criminal acts as well as the misrepresentation of these acts are to be condemned.

Finally, it would seem useful to present a picture of the high incidence of violence in Colombia which directly affects the whole country. We are in agreement with the document "The economic cost of crime and violence in Colombia: 1991-96" written by Edgar Trujillo Ciro and Martha Elena Badel Rueda and published by the National Department of Planning:

In this complex Colombian context where all sectors suffer equally, it is not admissible that only one of them is entitled to the exclusive status of victim and even less so that this be attributed to a state policy against this sector.

The existence of a state policy in favour
of human rights in Colombia

Contrary to what the workers affirm in their complaint, in Colombia there is a state policy in favour of human rights, a policy that has multiple and different manifestations.

The most significant manifestation of this state policy in favour of human rights is demonstrated by the strength and compromise of the highest authorities and public entities. For example, it would be appropriate to mention that a Presidential Adviser for Human Rights had existed since 1987 as an adviser to the President of the Republic and who has the role of reducing the violations of fundamental human rights, in particular violations of the right to life, personal integrity and freedom, relations with the armed conflict and the political violence in the country. This position is so important that the Government actually designated the Vice-President of the Republic to personally and directly oversee it.

In the Defence Ministry there is the Secretariat for Human Rights and Political Matters who depends directly on the Ministry. Moreover, in the military forces and police units, there exist offices for human rights and international humanitarian law. The function of the Secretariat and the above-mentioned offices includes the increase in the respect for human rights and international humanitarian law on the part of the military forces and national police; the enforcement of the efficiency of the internal control mechanisms and of sanctions for violations of human rights; the consecration of the respect of human rights and of international humanitarian law as a fundamental aspect of the strategy of the military forces and the national police in their fight against subversion, drug-trafficking and delinquency.

In the Office of the Comptroller-General of the country there exists the National Unit of Human Rights and the Office of International Matters which, automatically or following a complaint, are responsible for investigating crimes and accusing those presumed to have violated the penal law before the competent courts. It should not be forgotten that the Office of the Comptroller-General is an institution which depends on the judicial branch and not the executive branch.

The Ombudsman is to be found in the Office of the Procurator-General of the Nation, a supervisory body of the public administration. The function of the Ombudsman is to mediate and find a solution to the conflict generated by violations of human rights especially concerning acts of genocide, torture and disappearances of persons which are incurred through the exercise of their functions by the members of the Ministry of National Defence, the Military Forces and National Police, the officials who were personnel of the entities bound to these institutions and the additional officials and public servants.

In the Public Defender's Office, an entity which forms part of the public administration, there is a department of promotion and information on human rights that is charged with, among other things, the responsibility for making recommendations and comments to authorities and to individuals in cases of threats or of violations of human rights, and to disseminate knowledge regarding the political constitution of Colombia, particularly with regard to fundamental rights, social, economic, cultural, collective rights and the environment.

The multiplicity of legislative instruments and regulations that govern one or more aspects of the peace process, along with international humanitarian law that penalize violations of human rights is another manifestation of the existence in Colombia of a national policy which is markedly different from that suggested by the workers in the representation presented by them to the ILO. In addition and by way of illustration, the following is a list of some of the above-mentioned legislative instruments and regulations:

(a) Law No. 171 of 1994, through which the second additional Protocol to the Geneva Conventions of 12 August 1949 is approved, relative to the protection of victims of armed conflicts.

(b) Decree No. 1290 of 1995, which establishes the commission for the analysis and assistance in the application of the recommendations formulated by the international bodies of human rights, under the Ministry of Foreign Relations.

(c) Law No. 282 of 1996, which creates the Presidential Programme for the Defence of Personal Liberty.

(d) Law No. 288 of 1996, by means of which are established instruments for the compensation of damages suffered by victims of human rights violations in accordance with the provisions of certain international human rights bodies.

(e) Decree No. 1396 of 1996 which creates the Commission of Human Rights of Indigenous Peoples.

(f) Law No. 387 of 1997, by means of which measures are adopted for the prevention of forcible displacement, attention to, protection of, consolidation and stabilization and social economic stabilization of internally displaced persons due to violence in Colombia.

(g) Law No. 409 of 1997 through which the Inter-American Convention for the prevention and sanctioning of torture is approved.

(h) Decree No. 1454 of 1997, which establishes the National Committee for the Defence of Human Rights and the Application of International Humanitarian Law in the Colombian rural sector.

(i) Decree No. 2895 of 1997, which establishes a block of investigations into private justice groups.

Other examples of the goodwill of the national authorities in this area include the signing on the part of the Colombian Government of the instrument creating the international criminal court that was approved in Rome in July 1998, as well as the petition that the Colombian Government presented for the broadening of the mandate and extension of the stay, for an additional year, of the Office of the United Nations High Commission on Human Rights in Colombia.

Now, turning to the specific case of the human rights of the workers, Decree No. 1413 of 27 May 1997 established the Inter-institutional Commission for the Promotion and Protection of the Human Rights of the Workers. The composition of this Commission, which is as follows, clearly demonstrates the commitment of the Government in this important area:

In addition, there have been public and repeated declarations from the highest national authorities supporting human rights. In this regard, the following should be cited:

On 19 January 1999, the High Commissioner for Peace, Dr. Victor G. Ricardo, presented a declaration containing the position of the national Government with regard to the Autodefensas de Colombia, AUC. The following paragraph is taken from that declaration:

On 15 December 1998, the President of the Republic, Dr. Andrés Pastrana Arango, stated categorically that the legitimate authority of the State "cannot respond to barbarism with barbarism", and he added that:

On 10 December 1998, during the celebration of the 50th anniversary of the Universal Declaration of Human Rights, the President of the Republic, in stating that there are those in the "State" who have found the "scapegoat" that permits them to throw stones and accuse others while maintaining their innocence, also stated that "if the State accepts its responsibility, all of us and each of us individually, as a community, collectively and by association are equally guilty".

We, as Colombian employers and businesses, take these last words of the Head of State as indicating that the affirmations and minor complaints that in the area of human rights have been realized against the State, apart from being imprecise and inexact, do not contribute to the solution of an extremely complex problem. Consequently, while we reject and condemn those violent acts that the trade unionists have suffered, we declare that these acts in no manner can be attributed to any national policy. The violence to which the trade unionists have fallen victim is not different from that which businesses and employers suffer and, generally, all Colombians.

National legislation in relation to
ILO Conventions Nos. 87 and 98

The Colombian employers and businesses also cannot support the second reason put forth in the complaint of the Colombian workers against the Government, concerning the Government's lack of will to introduce the necessary reforms to bring the legislation into conformity with ILO Conventions Nos. 87 and 98; such an assertion fails to acknowledge in any way the efforts made during the last decade to bring the legislation into conformity -- efforts that even the Committee of Experts has noted with satisfaction.

Among the efforts that have been made, particular mention must be made of Law No. 50 of 1990 which introduced a number of changes to the collective relations chapter of the Labour Code, specifically strengthening anti-union discrimination provisions and those promoting freedom of association; a right protected by article 39 of the Constitution in the following terms:

The Constitution also provides that "International labour Conventions that have been ratified are incorporated into internal legislation".

Thus, the assertion that in Colombia there is a state policy to repress the trade union movement and an explicit desire to obstruct the bringing into conformity of the legislation with the applicable ILO Conventions, is unjustified; moreover, in addition to the constitutional provisions already mentioned, Law No. 26 of 1976 and Law No. 27 of 1976, incorporate into the internal law Conventions Nos. 87 and 98 respectively.

What has happened is that there has been a lapse in the process, which was not a result of anti-union state policies, but of the normal development of every process of aligning legislation, since the changes do not come about automatically, which is further complicated by the fact that the adoption of these changes do not depend on only one state entity.

In Colombia, the state structure is divided into three branches of public power -- the legislature, the executive and the judiciary -- and each has its own characteristics and each is autonomous. As a result, changes to labour law provisions must be adopted by the Parliament of the Republic and not imposed by the executive whose competence ends after presenting and defending the Bills.

After the promulgation of Law No. 50 of 1990, the Government drafted and presented Bills for the consideration of the Parliament of the Republic, aimed at bringing the laws into full conformity with ILO Conventions Nos. 87 and 98. The reason that these were not ultimately approved was because the activities of the Parliament were focused on other subjects arising out of the existing circumstances of public disorder which had to be addressed urgently.

In summary, the Government cannot be accused of not having acted with due diligence in the implementation of the changes in order to bring the legislation into full conformity with Conventions Nos. 87 and 98.

On the other hand, the true will of the State in relation to labour and trade union relations is reflected in article 56 of the National Constitution, which creates a permanent commission made up of government, employer and worker representatives, in order to promote sound labour relations, assist in resolving collective labour disputes, and to reach agreements on labour and wage policies. This Committee was established pursuant to Law No. 278 of 1996, and has met a number of times concerning a variety of matters. It is important to point out that the members reached an agreement concerning the legal minimum wage for 1998.

The ILO can attest to the activities in the country to promote a new culture of labour relations based on mutual agreement and dialogue between the social partners, and of the spirit of economic coordination and social equilibrium, since many of these activities were carried out under the auspices of the ILO.

In conclusion, as has been stated with respect to the violence in Colombia, judgement cannot be made on the basis of generalities and the facts must not be viewed out of context.

F. Decision taken by the Governing Body
at its 274th Session (March 1999)

214. At its 274th Session (March 1999), the Governing Body decided to postpone its decision on the appointment of a commission of inquiry and the nomination of its members until the 276th Session (November 1999).

G. Decisions taken by the Committee on Freedom of Association
and by the Governing Body at its June 1999 meeting

215. At its June 1999 meeting, the Governing Body approved and adopted the following decision made by the Committee:

H. The Government's new reply

216. In a communication concerning the cases pending before the Committee, the Government forwarded information concerning certain questions which had been addressed in the complaint presented by virtue of section 26 of the Constitution of the ILO, in particular with respect to the acts of violence (see the part of the report pertaining to Case No. 1787, paras. 16 to 90). In its communication dated 12 August 1999, the Minister of Labour and Social Security stated the Government had given particular attention to the fact that the Committee on Freedom of Associaiton in its 314th Report had restricted itself to presenting conclusions and recommendations only in respect of the pending cases (Cases Nos. 1787, 1948, 1955, 1962, 1964 and 1973) and had not pronounced itself in respect of the complaint made under article 26 of the ILO Constitution. As indicated by the Government in the sixth sitting of the Governing Body in March 1999 "... in this report, the Committee on Freedom of Association demonstrates its prudence and the seriousness with which it assumes the completion of its task and also shows the complexity of the subject which does not permit simplistic views nor hasty judgements and that, to the contrary, calls for a decision from the body constitutionally responsible, this Governing Body, which will scrutinize directly and in detail this vast subject with a fair evaluation of the assertions, arguments, replies, denials and precision that my Government has made on the basic elements of the complaint ...". In addition, the Minister of Labour and Social Security transmitted the following communication dated 1 September 1999:

217. In a communication dated 23 September 1999, the Minister of Labour stated the following:

218. At its meeting for the adoption of its report, the Committee was informed that a communication from the Government was received in the ILO on 11 November 1999. In conformity with its usual practice, the Committee did not take this communication into consideration at its present meeting as it was received too late.

I. The Committee's recommendations

219. The Committee notes the contents of the complaint submitted pursuant to article 26 of the Constitution of the ILO and the Government's reply thereto. The Committee deplores that no significant progress in the cases pending before it has taken place and trusts that the Governing Body will take this into account when coming to its decision on whether a commission of inquiry should be established or not.

Geneva, 12 November 1999.

(Signed) Max Rood,
Chairperson.

Points for decision:

9. See 265th Report, in Official Bulletin, Vol. LXXII, 1989, Series B, No. 2, p. 150, paras. 491 and 493.

10. See 275th Report, in Official Bulletin, Vol. LXXIII, 1990, Series B, No. 3, p. 67, para. 203(a).

11. See 275th Report, in Official Bulletin, Vol. LXXIII, 1990, Series B, No. 3, p. 67, para. 203(b).

12. See 286th Report, in Official Bulletin, Vol. LXXVI, 1993, Series B, No. 1, para. 359.

13. See 297th Report, in Official Bulletin, Vol. LXXVIII, 1995, Series B, No. 1, paras. 464 and 483.

14. See 297th Report, in Official Bulletin, Vol. LXXVIII, 1995, Series B, No. 1, paras. 477 and 478.

15. See 306th Report, in Official Bulletin, Vol. LXXX, 1997, Series B, No. 1, para. 294.

16. See para. 9 of the 309th Report, adopted by the Governing Body in March 1998.

17. See para. 82 of the 309th Report.

18. Constitution, article 53, paragraph 4: "International labour agreements duly ratified are part of domestic legislation."

19. See the report of the Committee of Experts on the Application of Conventions and Recommendations, General Report and observations concerning particular countries. Report III (Part 4A) to the International Labour Conference, 73rd Session, 1987. All the quotations in this chapter correspond to pp. 160-162 of this document.

20. See report of the Committee of Experts on the Application of Conventions and Recommendations, General Report and observations concerning particular countries. Report III (Part 4A) to the International Labour Conference, 76th Session, 1989, pp. 142-143.

21. op. cit., p. 144.

22. op. cit., pp. 145-146.

23. op. cit., p. 268.

24. For all references to 1990, see report of the Committee of Experts on the Application of Conventions and Recommendations, General Report and observations concerning particular countries. Report III (Part 4A) to the 77th Session of the International Labour Conference, 1990.

25. For all references to 1991, see report of the Committee of Experts on the Application of Conventions and Recommendations, General Report and observations concerning particular countries. Report III (Part 4A) of the International Labour Conference, 78th Session, 1991.

26. For all references to 1992, see report of the Committee of Experts on the Application of Conventions and Recommendations, General Report and observations concerning particular countries, Report III (Part 4A) to the International Labour Conference, 79th Session, 1992.

27. For all quotations referring to 1993, see report of the Committee of Experts on the Application of Conventions and Recommendations, General Report and observations concerning particular countries, Report III (Part 4A) to the International Labour Conference, 80th Session, 1993.

28. For all references to 1994, see the report of the Committee of Experts on the Application of Conventions and Recommendations, General report and observations concerning particular countries, Report III (Part 4A) to the International Labour Conference, 81st Session, 1994.

29. For all references to 1995, see report of the Committee of Experts on the Application of Conventions and Recommendations, General Report and observations concerning particular countries, Report III (Part 4A) to the International Labour Conference, 82nd Session, 1995.

30. For all references to 1996, see report of the Committee of Experts on the Application of Conventions and Recommendations, General Report and observations concerning particular countries, Report III (Part 4A) to the International Labour Conference, 83rd Session, 1996.

31. For all references to 1997, see report of the Committee of Experts on the Application of Conventions and Recommendations, General Report and observations concerning particular countries, Report III (Part 1A) to the International Labour Conference, 85th Session, 1997.

32. See report of the Committee of Experts on the Application of Conventions and Recommendations, General Report and observations concerning particular countries, Report III (Part 1A) to the International Labour Conference, 86th Session, 1998, pp. 171-172.

33. See report of the Committee of Experts on the Application of Conventions and Recommendations, General Report and observations concerning particular countries, Report III (Part 1A) to the International Labour Conference, 86th Session, 1998, pp. 229-230.

34. See International Labour Conference, 85th Session, Provisional Record, p. 19/81.

35. GB.273/15/2, 273rd Session, Geneva, Nov. 1998.

36. op. cit., p. 12.

37. op. cit., p. 11.

38. op. cit., p. 25.

39. op. cit., p. 11.

40. op. cit., p. 11.

41. op. cit., p. 12.

42. op. cit., p. 10.

43. The appended document: "Violence in Colombia: Context and complexity. Implications for fundamental rights and international humanitarian law" (from now on referred to as Appendix I) provides information on the characteristics of the violence prevalent in Colombia.

44. op. cit., p. 12.

45. op. cit., p. 11.

46. op. cit., p. 11.

47. op. cit., p. 11.

48. op. cit., p. 13.

49. op. cit., p. 11.

50. op. cit., p. 10.

51. op. cit., p. 23.

52. op. cit, p. 8.

53. op. cit., p. 9.

54. op. cit. p. 12.

55. op. cit., p. 9.

56. op. cit., p. 10.

57. Republic of Colombia, Superior Council of the Judicature: Indicadores de la justicia, Santafé de Bogotá, Consejo Superior de la Judicatura Sala Administrativa, 1998, p. 96.

58. 2.9 per cent were administrative and 8.8 per cent were family related. See in this connection Republic of Colombia, Superior Council of the Judicature: Indicadores ..., op. cit., p. 97.

59. These crimes are those of murder, physical assault, abduction and aggravated robbery. Source: national police.

60. Agro-industrial development is relatively limited and includes the cultivation of bananas, African oil-palm, flowers and sugar cane.

61. Source: National police.

62. National Planning Department: La paz: el desafío para el desarrollo, Santafé de Bogotá, Tercer Mundo and National Planning Department, 1998, p. 50.

63. Source: National police.

64. National Planning Department, La paz ..., op. cit. p. 51.

65. Republic of Colombia, national police, Criminalidad ..., op. cit., p. 387.

66. National Planning Department, La paz ..., op. cit., pp. 70 and 71. At the end of 1998 the exchange rate was 1,542.11 pesos to US$1.

67. Republic of Colombia, national police, Criminalidad ..., op. cit., p. 386. These figures do not include wilful personal injury.

68. National Planning Department, La paz ..., op. cit., p. 72.

69. As noted above, the exchange rate as of 31 Dec. 1998 was 1,542.11 Colombian pesos to US$1.

70. Report of the Procurator-General of the Nation, dated 10 Dec. 1998.

71. Twenty-three per cent of the deaths of pregnant women in Colombia are due to malpractice in the performance of abortions. In this connection see Lucero Zamudio: "El aborto en Colombia; dinámica sociodemográfica y tensiones socioculturales", in La justicia en nuestro tiempo, Bogotá, Universidad Externado de Colombia (forthcoming), pp. 13 and 14.

72. National Planning Department, La paz ..., op. cit., p. 51.

73. Republic of Colombia, national police, Criminalidad ..., op. cit., p. 391.

74. Republic of Colombia, national police, Criminalidad ..., op. cit., p. 393.

75. National Planning Department, La paz ..., op. cit., p. 75.

76. Republic of Colombia, national police, Criminalidad ..., op. cit., p. 394.

77. National Planning Department, La paz ..., op. cit. pp. 69 and 75.

78. United Nations, International Drug Control Programme, World drug report, Oxford, Oxford University, 1997, pp. 264 and 265.

79. Francisco Thoumi: Economía política y narcotráfico, Santafé de Bogotá, Tercer Mundo, first reprinting, 1996, pp. 204 and 207.

80. National Planning Department, La paz ..., op. cit. pp. 52 and 53.

81. An analysis of the violence resulting from drug trafficking can be found in Germán Silva García: Será justicia? Criminalidad y justicia penal en Colombia, Santafé de Bogotá, Universidad Externado de Colombia, 1997, pp. 319 ff.

82. The case of Urabá is an exception, where the clashes, in all cases political, between the FARC and the EPL have had repercussions at the trade union level.

83. National Planning Department, La paz ..., op. cit., pp. 50-52.

84. National Planning Department, La paz ..., op. cit., pp. 7, 82 and 83.

85. Alonso Salazar. La cola del lagarto, Medellín, Grupo Enlace del Ministerio de Comunicaciones and Corporación Región, 1998, p. 118.

86. ECLAC. Preliminary overview of the economy of Latin America and the Caribbean, 1997.

87. ECLAC. Preliminary overview..., op. cit.

88. On this background, see Mons. Germán Guzmán, Orlando Fals Borda, Eduardo Umaña Luna, La violencia en Colombia, Bogotá, Tercer Mundo, Vol. 1, 2nd edition, 4th reprinting, 1963, pp. 46 and 48. See also Carlos Arango Z., FARC veinte años, Bogotá, Aurora, 2nd edition, 1984, pp. 61 ff.

89. On these links, see for example Jacobo Arenas, Diario de la resistencia de Marquetalia, Abejón Mono, 2nd edition, 1972, p. 81. See also Jacobo Arenas, Cese al fuego, Bogotá, Oveja Negra, 2nd edition, 1985, p. 75, and Fernando Landazabal Reyes, Conflicto social, Medellín, Bedout, 1982, pp. 262 and 263.

90. "The Violence" originated in the political quarrels between the two traditional parties (Liberals and Conservatives) which left an estimated 300,000 persons dead during the period in question. The conflict moved towards a solution with a political reconciliation agreement concluded in 1958, known as the "National Front", which granted an amnesty to the different groups which had taken up arms. However, some groups continued their activities up until around 1964, after which only a part of the Communist factions continued to operate and refused to accept the rule of law. Concerning the final phase of the period of violence, see Gonzalo Sánchez, Donny Meertens, Bandoleros, gamonales y campesinos, Bogotá, El Ancora, 3rd edition, 1985, pp. 42, 47 and 48.

91. For decades the doctrine of the "combination of all forms of struggle" was advocated, and which included action carried out within the framework of the law as well as subversive acts. However, whereas the FARC is a real power based on the force of arms, the political parties on the left, including the Communist Party, have obtained only derisory levels of support in recent elections, which has not even allowed them to gain seats in Parliament. This explains the political predominance of the FARC and its model of revolution based on violence.

92. Statement by Manuel Marulanda Vélez, in Carlos Arango Z., FARC ..., op. cit., p. 95.

93. He has been the historical leader of the FARC since the period of "the Violence". Its main ideologue, Jacobo Arenas, died of natural causes a few years ago.

94. The basic organization is described in Jacobo Arenas, Cese ..., op. cit., p. 95.

95. William Ramírez Tobón, Estado, violencia y democracia, Bogotá, Tercer Mundo and National University, 1990, pp. 59 ff.

96. Jesús Antonio Bejarano et al., Colombia: Inseguridad, violencia y desempeño económico en las áreas rurales, Bogotá, FONADE and Universidad Externado de Colombia, 1997, p. 132.

97. According to this theory, Latin America possessed the appropriate objective conditions for the development of a revolution because of the poverty and marginalization of the population of its countries, although it lacked the indispensable subjective conditions, i.e. the formation of guerrilla groups which could act as politically conscious and organized nuclei to promote and direct the revolutionary process. Thus the creation of a guerrilla "focal point" was all that was needed to begin the revolution. See Ernesto "Che" Guevara, Obras completas, Buenos Aires, Cepe, 2nd edition, 1973, p. 27. However, social research has shown that political subversion or crime in general have not thrived any better or more intensely in countries with poor socio-economic conditions; on the contrary, they have prospered in nations, regions and areas in which there is greater relative wealth. Furthermore, the evolution of the insurrectionist movements in Latin America has demonstrated the failure of the revolutionary focal point strategy.

98. Ulises Casas, Origen y desarrollo del movimiento revolucionario colombiano, Bogotá, 1980, p. 124.

99. During the Anorí Operation (1974) the organization suffered serious losses inflicted by the Colombian army, and its military structure was destroyed. The disappearance of its leaders was the result, in part, of internal purges, in which its leaders were executed (Víctor Medina Morón, Ricardo Lara Parada, Jaime Arenas) or expelled and sent into exile (Fabio Vásquez Castaño) and, in part, the result of armed clashes with State forces (Camilo Torres, Domingo Laín, Manuel and Antonio Vásquez Castaño).

100. ELN income for the period 1991-1996 has been estimated at 1,314,999 million pesos. In this connection, see National Planning Department, La paz ..., op. cit., p. 78.

101. Germán Silva García, Delito ..., op. cit., p. 75.

102. The repair of damage caused to pipelines in the country cost the State petroleum enterprise 592,000 million pesos between 1986 and 1996, a figure which was greater than that of the justice budget for 1998. In this connection, see National Planning Department, La paz ..., op. cit., pp. 7 and 8.

103. Fernando Landazabal Reyes, Factores de violencia, Bogotá, Tercer Mundo, 1981, p. 113.

104. Jesús Antonio Bejarano et al., Colombia: Inseguridad ..., op. cit., p. 132.

105. Fabiola Calvo O., Diez hombres. Un ejército. Una historia, Bogotá, ECOE, 1985, p. 37.

106. Fabiola Calvo O., ibid., p. 121.

107. In particular, leaders and workers of SINTRAINAGRO, a trade union organization of the banana-producing region in Urabá, are being assassinated.

108. Francisco Caraballo was subsequently arrested and is currently serving a term of imprisonment.

109. The group is known for the kidnapping of Juan Carlos Gaviria, brother of the Secretary General of the Organization of American States (OAS) and for the assassination attempt against the lawyer Antonio José Cancino.

110. Some years ago the legislation which authorized such forces was declared unconstitutional by the Court.

111. The "social cleansing" groups frequently active in urban areas proceeded to assassinate destitute persons, young persons suspected of having links with crime and persons with a criminal record. These groups have had little continuity, emerging and disappearing shortly afterwards and apparently lacking in any solid structure.

112. The militia are an urban phenomenon, established by the M-19 and then the ELN in some cities as part of their revolutionary project, and in particular in Medellín, towards the middle of the 1980s; in many cases, they subsequently evolved into self-defence groups against delinquency in certain neighbourhoods, or into juvenile gangs engaged in crime or into groups of hired assassins. The gangs of hired assassins, which in part arose from the militia, in many cases became part of the military apparatus or security forces of the drug traffickers. Their main activity consisted of carrying out murders in exchange for the payment of money, with their victims generally being magistrates or public prosecutors, members of the police and politicians campaigning against drug traffickers. On this subject, see: Alonso Salazar, J. et al., La génesis de los invisibles, Santafé de Bogotá, Society of Jesus Programme for Peace, 1996, pp. 142-145.

113. Pablo Escobar and Gonzalo Rodríguez Gacha were killed by the national police. Fidel Castaño is presumed dead, although it has not been possible to confirm his death.

114. Ciro Krauthausen, Luis Fernando Sarmiento, Cocaína ..., op. cit., p. 97.

115. It has been estimated that the drug traffickers acquired more than a million hectares of the best land in the country. At present, many of these properties have been seized and legal proceedings have been started to terminate ownership rights, given their unlawful acquisition.

116. The war unleashed by the self-defence groups in the Magdalena Medio region resulted in the assassination of more than 1,000 activists of the Patriotic Union, including its presidential candidate Jaime Leal, who was vice-president of FENALTRASE and president of ASONAL JUDICIAL, a trade union organization of state workers. The persons murdered included a large number of trade union leaders and workers.

117. In particular in the region of Urabá, there have been mass-scale assassinations of SINTRAINAGRO workers employed in banana production.

118. This period saw the beginning of the dissolution of the self-defence groups, not only as a result of the relentless war waged by the drug traffickers against the Colombian State, but due to internal divisions between the drug traffickers. The main leaders of the self-defence groups of the time were murdered as a result of internal quarrels or killed by the national police. Concerning the assassination of members of the police, Pablo Escobar had offered to pay a sum of money for each member of the police killed and a higher amount for each police official assassinated, which resulted in a wave of executions.

119. Víctor and Henry Pérez, the main military leaders of the self-defence groups of the Magdalena Medio, died in separate incidents.

120. Jesús Antonio Bejarano et al., Colombia: Inseguridad ..., op. cit., p. 131.

121. National Planning Department, La paz ..., op. cit., p. 79.

122. See Germán Silva García, ¿Será ..., op. cit., pp. 323 ff.

123. This has led to the initiation of numerous criminal proceedings and the handing down of sentences against political and social leaders, as well as former State officials, who have been found guilty of illicit enrichment and other drug-related offences.

124. Ciro Krauthausen, Luis Fernando Sarmiento, Cocaína ..., op. cit., p. 96.

125. Jesús Antonio Bejarano et al., Colombia: Inseguridad ..., op. cit., p. 118. Concerning diversification and economic expansion and the establishment of power at the local level, see National Planning Department; La Paz ..., op. cit., p. 74.

126. Ciro Krauthausen; Luis Fernando Sarmiento. Cocaína ..., op. cit., pp. 95 and 204.

127. On the use of banditry as a means of action and political revolution as an end, see: Germán Silva García. Delito ..., op. cit., pp. 75 and 76; and Alfredo Rangel Suárez, Colombia: Guerra ..., op. cit., pp. 148 ff.

128. National Planning Department. La Paz ..., op. cit., p. 81.

129. National Planning Department. La paz ..., op. cit., p. 81.

130. The mayor is the political head of a municipality and elected by popular vote. A municipal council is a municipal assembly and its members are also elected by popular vote.

131. William Ramírez Tobón, Urabá ..., op. cit., p. 58.

132. According to the Code of Criminal Procedure, the preventive detention of a citizen requires the existence of a witness account or at least serious evidence of responsibility.

133. Jesús Antonio Bejarano et al., Colombia: Inseguridad ..., op. cit., p. 136.

134. "FARC: prohíben elecciones en 23 municipios", in El Tiempo, Santafé de Bogotá, 23 Oct. 1997.

135. "Violencia se ensaña con políticos", in El Tiempo, Santafé de Bogotá, 10 Aug. 1997.

136. "Cifras de la violencia política en el país", in El Tiempo, Santafé de Bogotá, 14 Sep. 1997.

137. Source: Reports of the Office of the Procurator-General of the Nation.

138. National Planning Department. La paz ..., op. cit., p. 19.

139. Report by the United Nations High Commissioner for Human Rights, document E/CN.4/1998/16, pp. 10 and 11.

140. In this connection, see the statements by Carlos Castaño, head of the AUC, in which he distinguishes between activists of the democratic left and activists of the left "which render services to the war", in "La Izquierda no es un objectivo militar", in El Tiempo, Santafé de Bogotá, 29 Sep. 1997.

141. See "Nuevo rumbo de los derechos humanos en Colombia", in El Tiempo, Santafé de Bogotá, 11 Dec. 1998.

142. "Temor a paras en Media Luna", in El Tiempo, Santafé de Bogotá, 14 Dec. 1998.

143. Sources: Office of the Procurator-General of the Nation and Office of the High Commissioner for Peace.

144. Alonso Salazar, La cola ..., op. cit., p. 111.

145. Alonso Salazar, La cola ..., op. cit., p. 118.

146. Republic of Colombia, Superior Council of the Judicature, Indicadores ..., op. cit., pp. 114 and 116.

147. Republic of Colombia, Superior Council of the Judicature, Indicadores ..., op. cit., p. 27.

148. Republic of Colombia, Ministry of Justice and Law, Crimen organizado y justicia, Santafé de Bogotá, Ministry of Justice and Law, 1995, p. 32.

149. National Planning Department, La paz ..., op. cit., pp. 42 and 43.

150. Source: Ministry of Finances and Public Credit.

151. Republic of Colombia, Ministry of Justice and Law, Extinción de dominio sobre bienes, Santafé de Bogotá, National Printing Office, 1996, pp. 8 ff.

152. Source: Office of the Procurator-General of the Nation.

153. United Nations High Commissioner for Human Rights; Andean Commission of Jurists, Justicia en cifras, Lima, United Nations High Commissioner for Human Rights and Andean Commission of Jurists, 1998, pp. 111, 112, 115, 116 and 117.

154. Republic of Colombia, Superior Council of the Judicature, Indicadores ..., op. cit., p. 16.

155. Republic of Colombia, Ministry of Justice and Law, Crimen ..., op. cit., p. 276.

156. Republic of Colombia, Superior Council of the Judicature. Indicadores ..., op. cit., p. 67.

157. Republic of Colombia, Ministry of Justice and Law, Crimen ..., op. cit., p. 207.

158. Source: Ministry of Defence.

159. Gustavo Bell Lemus. Statement by the Vice-President of the Republic, Gustavo Bell Lemus, at the celebration of the fiftieth anniversary of the Universal Declaration of Human Rights, 1998. See also Decree No. 2429 of 1998.

160. Source: Office of the Procurator-General of the Nation.

161. Source: Office of the High Commissioner for Peace.

162. Source: Document submitted by the Deputy Minister of External Relations to the United Nations Committee on Human Rights, March 1998, p. 11.

163. Source: National police.

164. Source: National police.

165. An order has gone out for the capture of an official with the rank of colonel, suspected of being involved in the assassination of the Conservative politician Alvaro Gómez Hurtado.

166. Report of the United Nations High Commissioner for Human Rights, document E/CN.4/1998/16, pp. 175 and 178.

167. According to non-governmental sources, endorsed by the United Nations High Commissioner for Human Rights, 76 per cent of the acts of socio-political violence were due to "paramilitary groups", or more accurately, "self-defence" groups, 18.6 per cent to the guerrillas and 4.4 per cent to the public forces. Cf. the report of the United Nations High Commissioner for Human Rights, document E/CN.4/1998/16, p. 8.

168. "Límites al fuero militar", in El Tiempo, Santafé de Bogotá, 11 Dec. 1998.

169. Reference may be made in this connection to ruling C-358 of the Constitutional Court, dated of 5 August 1997.

170. Article 214 of the Constitution states: "In all cases the rules of international law will be observed." See in this connection Jorge Ortega Torres (editor). Constitución Política de Colombia, Santafé de Bogotá, Temis, 1991, p. 99. The Constitutional Court has also ruled the following: "The rules of international humanitarian law are now -- as expressly stipulated by the Constituent Assembly -- obligatory standards in themselves which do not require prior ratification or the issuing of regulatory standards. They are applicable in all cases as the Constitution itself specifically stipulates." See in this connection Constitutional Court, ruling 574, 1994.

171. For example, provision was already made for the criminal offence of "torture" but acts of genocide are punished under the heading of "murder", forced disappearance under "kidnapping", etc.

172. Ruling of the Constitutional Court C-225, 18 May 1995.

173. Its classification as a crime had been proposed for some time by different international bodies and experts, and more recently, by the President of the United Nations Commission on Human Rights in a statement on Colombia (6 April 1998).

174. The concepts of persons and goods protected under international humanitarian law are fully developed in this and the following provisions. The text states: "A combatant who, on the occasion of and during an armed conflict causes the death of a person protected under the international conventions respecting humanitarian law ratified by Colombia, shall be sentenced to imprisonment of (...)." See Republic of Colombia, Gaceta del Congreso, Santafé de Bogotá, No. 139, National Printing Office, 6 Aug. 1998, p. 29.

175. "A combatant who, on the occasion of and during an armed conflict and in order to prejudice or attack adversary, pretends to be a protected person or makes improper use of protection marks such as those of the Red Cross or the Red Crescent (...) shall as a result of this conduct alone be sentenced to imprisonment of (...)." See Republic of Colombia, Gaceta, ... op. cit., p. 29.

176. "A combatant who on the occasion of and during an armed conflict carries out acts of reprisal or acts of hostility against protected persons or goods shall be sentenced to imprisonment (...)." Republic of Colombia, Gaceta ..., op. cit., p. 30.

177. "A person who on the occasion of and during an armed conflict is forced to disregard the measures for the protection of the civilian population shall be sentenced to imprisonment of (...)." Republic of Colombia, Gaceta ..., op. cit., p. 30.

178. As regards the cited sections of the draft text, see Republic of Colombia, Gaceta ..., op. cit., pp. 22, 29, 30, 31 and 32.

179. In this respect, mention may be made of the frequent statements by guerrillas that their "military objectives" include persons of the civilian population or state officials, such as popularly elected mayors or employees of the National Registry Office responsible for organizing and supervising the democratic electoral processes. Similarly, the self-defence groups or armed gangs on the extreme right regularly draw up and publish long "blacklists" of individuals threatened with assassination. Furthermore, a large number of persons must be protected from possible attacks by drug-trafficking groups, for which, as the recent history of Colombia shows, the assassination of individual persons and even massacres are one of the favourite tactics used against the State and civilian society.

180. "Mea culpa", op. cit., in El Tiempo, 11 Dec. 1998.

181. Source: Ministry of the Interior.

182. Source: Ministry of the Interior.

183. "Jorge Ortega rechazó escoltas, asegura el Ministro del Interior", in El Tiempo, Santafé de Bogotá, 22 October 1998. An offer was made on 6 October 1998 to provide the trade union leader with two agents of the Administrative Security Department (DAS) to protect him, following an assessment of his personal security risks, but they were refused by Ortega, who wished to choose his escorts from persons in his confidence. This is possible under the protection programme but requires time to train the escorts chosen by the person, as well as the allocation of the necessary resources to arm them and equip them with vehicles.

184. Decree No. 1413 of 1997, s. 12.

185. The quoted statements by the President of the Republic, Andrés Pastrana, were provided by the Office of the High Commissioner for Peace.

186. "Pastrana Lanzó: 'Plan Colombia' in El Tiempo, Santafé de Bogotá, 20 Dec. 1998.

187. See, for example, Sergio Ocampo Madrid. "Pastrana o la audacia por la paz", in El Tiempo, Santafé de Bogotá, 27 Dec. 1998.

188. Something that had never happened before in Colombia.

189. "Gobierno avala encuentios ELN y sociedad civil", in El Tiempo, Santafé de Bogotá, 7 Oct. 1998.

190. "Liberada anoche Lina María", in El Tiempo, Santafé de Bogotá, 19 Dec. 1998.

191. "AUC convocarán asamblea nacional de paz", in El Tiempo, Santafé de Bogotá, 11 Dec. 1998.

192. It made cooperation with the peace process one of its priorities, given that finding a solution to the armed conflict in Colombia has important implications in areas such as drug-trafficking.

193. It facilitated the holding of meetings with the guerrilla forces on its territory.

194. Juan Carlos Iragorri: "Fidel Castro, listo para ser facilitador de la paz", in El Tiempo, Santafé de Bogotá, 18 Oct. 1998. Also, "Pastrana pedirá a Cuba que sea garante", in El Tiempo, Santafé de Bogotá, 28 Dec. 1998.

195. "Apoyo iberoamericano en bloque al proceso de paz", in El Tiempo, Santafé de Bogotá, 16 Oct. 1998.

196. "Chávez envía mensaje de paz a FARC", in El Tiempo, Santafé de Bogotá, 19 Dec. 1998.

197. "No tienen más opción que la paz", in El Tiempo, Santafé de Bogotá, 28 Dec. 1998.

198. Of the 70 delegates democratically elected to the Constituent Assembly, 19 belonged to the political movement M-19, which at one time was the movement which had the broadest electoral support during elections.

199. It should be noted that unlike many preambles in different constitutions, the Colombian one is legally binding and is not simply a collection of the Constitution's good intentions.

200. Barroso Figueroa, José: "Derecho Internacional del Trabajo", Porrúa (ed.), Mexico, 1987.