INTER-AMERICAN COURT OF HUMAN RIGHTS

CASE OF THE SANTO DOMINGO MASSACRE v. COLOMBIA

JUDGMENT OF NOVEMBER 30, 2012

(Preliminary objections, merits and reparations)

In the case of the Santo Domingo Massacre,

the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”), composed of the following judges:

Diego García-Sayán, President

Manuel E. Ventura Robles, Vice President

Leonardo A. Franco, Judge

Margarette May Macaulay, Judge

Rhadys Abreu Blondet, Judge

Alberto Pérez Pérez, Judge

Eduardo Vio Grossi, Judge, and

also present,

Pablo Saavedra Alessandri, Secretary, and

Emilia Segares Rodríguez, Deputy Secretary,

in accordance with Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter also “the American Convention” or “the Convention”) and with Articles 31, 32, 65 and 67 of the Rules of Procedure of the Court[1] (hereinafter “the Rules of Procedure”), delivers this Judgment, structured as follows:

CasE OF THE SANTO DOMINGO MASSACRE V. COLOMBIA

Table of contents

i. INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE …………………………….. 4

II. PROCEEDINGS BEFORE THE COURT ………………………………………………………………… 6

III. PRELIMINARY OBJECTIONS …………………………………………………………………………. 7

A. First preliminary objection: “Lack of competence ratione materiae” ……………………………………… 7

A.1. Arguments of the Commission and allegations of the parties ………………………………………… 7

A.2. Considerations of the Court ……………………………………………………………………………………………… 9

B. Second preliminary objection: “Failure to exhaust domestic remedies” ………………………………… 10

B.1. Arguments of the Commission and allegations of the parties ………………………………………… 10

B.2. Considerations of the Court ……………………………………………………………………………………………… 12

IV. COMPETENCE ………………………………………………………………………………………………. 14

V. evidence …………………………………………………………………………………………………….. 14

A. Documentary, testimonial and expert evidence ……………………………………………………………………… 14

B. Admission of the documentary evidence ………………………………………………………………………………… 15

C. Admission of the statements of the presumed victims and the testimonial and expert evidence ………………………………………………………………………………………………………………………………………………………… 16

VI. FACTS …………………………………………………………………………………………………………. 16

A. Context in the Department of Arauca 17

B. Events that preceded the bombardment of December 13, 1998 19

C. The bombing of the village of Santo Domingo on December 13, 1998, and subsequent events……………………………………………………………………………………………………………………………………………… 21

C.1. Undisputed facts ………………………………………………………………………………………………………………… 21

C.2. Disputed facts 23

D. Displacement of the inhabitants of Santo Domingo 25

E. Sacking, pillaging and destruction of property 26

F. The investigations into the death and injury of the presumed victims owing to the bombing of the village of Santo Domingo and subsequent events 26

F.1. The military criminal and the ordinary criminal jurisdictions 26

F.2. Ordinary criminal jurisdictio 30

F.3. Disciplinary jurisdiction 32

G. Contentious-administrative proceedings 33

VII. MERITS ……………………………………………………………………………………………………….. 35

VII-1. RIGHTS TO JUDICIAL GUARANTEES AND TO JUDICIAL PROTECTION ………………. 35

A. Arguments of the Commission and allegations of the parties 35

A.1. State act called “acknowledgment of responsibility” 35

A.2. Regarding the domestic investigations and proceedings 37

B. Considerations of the Court 39

B.1. Ruling on the purpose of this case and the State’s act called “acknowledgement of responsibility” 39

B.2. Obligation to investigate and domestic proceedings 45

VII-2. RIGHTS TO LIFE, TO PERSONAL INTEGRITY AND MEASURES OF PROTECTION FOR CHILDREN, AND OBLIGATION TO ADOPT DOMESTIC LEGAL PROVISIONS …………………. 51

A. Arguments of the Commission and allegations of the parties 51

A.1. Right to life 51

A.2. Right to personal integrity 52

A.3. Right to measures of protection for children 53

A.4. Obligation to adopt domestic legal measures 54

B. Considerations of the Court 54

B.1. The obligations to respect and guarantee the rights to life and to personal integrity and measures of protection for children 54

B.2. The launch of an AN-M1A2 cluster bomb on Santo Domingo 56

B.3. The presumed machine gun attack 68

B.4. The alleged violation of measures of protection for children 69

B.5. The alleged violation of the right to integrity of the next of kin 70

B.6. The alleged non-compliance with Article 2 of the Convention 71

B.7. Conclusions 72

VII-3. RIGHTS TO FREEDOM OF MORVEMENT AND RESIDENCE, AND TO PROPERTY …… 72

A. Arguments of the Commission and allegations of the parties 72

A.1. Alleged violation of the right to freedom of movement and residence 72

A.2. Alleged violation of the right to propertya 73

B. Considerations of the Court 74

B.1. Right to freedom of movement and residence 74

B.2. Right to property 77

VII-4. RIGHT TO HONOR ……………………………………………………………………………………… 81

A. Arguments of the Commission and allegations of the parties 81

B. Considerations of the Court 81

VIII. ReparatIONS …………………………………………………………………………………………....

(ApPlicaTIOn OF artIClE 63(1) OF THE AMERICan CONVENTION)………………………… 82

A. Injured party 83

B. Obligation to investigate 84

C. Measures of satisfaction, rehabilitation, restitution, and garantees of non-repetition 84

C.1. Measures of satisfactio 85

C.2. Measures of rehabilitation 86

C.3. Other measures requested 87

D. Compensation 90

E. Costs and expenses 94

F. Means of complying with the payments ordered 95

IX. OPERATIVE PARAGRAPHS …………………………………………………………………………….. ..96

ANNEX I 99

ANNEX II 100

ANNEX III 101

I

INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE

1.  In a brief of July 8, 2011 (hereinafter “submission brief”), the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the Commission”) submitted to the Court’s jurisdiction, in accordance with Articles 51 and 61 of the Convention, case 12,416 against the Republic of Colombia (hereinafter also “the State” or “Colombia”).

2.  In general, the proceedings before the Commission occurred as follows: the initial petition was lodged before the Commission on April 18, 2002, by the following organizations: the Comisión Interfranciscana de Justicia, Paz y Reverencia con la Creación, the “Joel Sierra” Regional Human Rights Committee, the “José Alvear Restrepo” Lawyers’ Group, the Humanidad Vigente Corporación Jurídica, and the Center for International Human Rights of the Northwestern University School of Law (hereinafter “the petitioners”). On March 6, 2003, the Commission approved Admissibility Report No. 25/03.[2] On March 24, 2011, the Commission approved Report on Merits No. 61/11 (hereinafter “Merits Report”) under Article 50 of the Convention, in which it concluded that the State was responsible for various violations of the Convention and made certain recommendations to the State.[3] This report was notified to the State on April 8, 2011, and it was granted two months to report on compliance with the recommendations. In a communication of June 7, 2011, the State requested an extension to present information in this regard, and this was granted until June 30, 2011. In view of the State’s failure to present information, the Commission decided to submit the case to the Court, for “all the facts and human rights violations described in Merits Report 61/11.” The Commission appointed Commissioner María Silvia Guillén and the Commission’s Executive Secretary at the time, Santiago A. Cantón, as delegates, and Elizabeth Abi-Mershed, Deputy Executive Secretary, and Silvia Serrano Guzmán and María José Veramendi, lawyers of the Executive Secretariat, as legal advisers.

3.  According to the Commission, the case refers to an alleged bombardment perpetrated by the Colombian Air Force on the village of Santo Domingo, municipality of Tame, department of Arauca, on December 13, 1998. In its Merits Report, the Commission considered that, on December 13, 1998, at 10.02 a.m., the crew of a helicopter of the Colombian Air Force (FAC) launched a cluster device, composed of six fragmentation bombs, on the urban area of the village of Santo Domingo, resulting in the death of 17 civilians, including four boys and two girls, and 27 injured civilians, including five girls and four boys. The Commission noted that the members of the Armed Forces who formed the crew of the aircraft were aware that these persons were civilians. In addition, it considered probable that, following the explosion, the survivors and injured were machine-gunned from a helicopter when they tried to assist the injured and to flee the village. It considered that the foregoing resulted in the displacement of the population of Santo Domingo, after which the empty homes were sacked or pillaged. Furthermore, the case refers to the alleged lack of judicial protection and failure to observe judicial guarantees.

4.  Based on the above, the Commission asked the Court to declare that the State was internationally responsible for the violation of the following rights, in relation to Article 1(1) of the Convention:

a) The right to life, contained in Article 4(1) of the American Convention, to the detriment of Levis Hernando Martínez Carreño, Teresa Mojica Hernández de Galvis, Edilma Leal Pacheco, Salomón Neite, María Yolanda Rangel, Pablo Suárez Daza, Carmen Antonio Díaz Cobo, Nancy Ávila Castillo (or Abaunza), Arnulfo Arciniegas Velandia (or Calvo), Luis Enrique Parada Ropero and Rodolfo Carrillo;

b) The right to life, in relation also to Article 19 of the Convention, to the detriment of the boys Jaime Castro Bello, Luis Carlos Neite Méndez, Oscar Esneider Vanegas Tulibila and Geovani Hernández Becerra, and the girls Egna Margarita Bello and Katherine (or Catherine) Cárdenas Tilano;

c) The rights to life and to personal integrity contained in Articles 4(1) and 5(1) of the American Convention, to the detriment of Alba Yaneth García, Fernando Vanegas, Milciades Bonilla Ostos, Ludwing Vanegas, Xiomara Garcfa Guevara, Mario Galvis, Fredy Monoga Villamizar (or Fredy Villamizar Monoga), Mónica Bello Tilano, Maribel Daza, Amalio Neite González, Marian Arévalo, José Agudelo Tamayo, María Panqueva, Pedro Uriel Duarte Lagos, Ludo Vanegas, Adela Carrillo, Alcides Bonilla and Fredy Mora;

d) The rights to life and to personal integrity, to the detriment of the boys Marcos Neite (5), Erinson Olimpo Cárdenas (9) and Ricardo Ramírez (11), and the girls Hilda Yuraime Barranco (14), Lida Barranca (8), Yeimi Viviana Contreras (17), Maryori Agudelo Flórez (17), Rosmira Daza Rojas (17) and Neftalí Neite (17);

e) The right to property established in Article 21(1) and 21(2) of the Convention, to the detriment of the victims who were stripped of their possessions, as well as of the survivors who lived in the village of Santo Domingo and whose homes and belongings were destroyed or looted;

f) The right to freedom of movement and residence established in Article 22(1) of the Convention, to the detriment of the persons who were displaced from the village of Santo Domingo;[4]

g) The rights to judicial guarantees and judicial protection, established in Articles 8(1) and 25 of the American Convention, to the detriment of the victims who were injured and the next of kin of the victims indicated in annex 1 to the Report, and

h) The right to personal integrity, to the detriment of the next of kin of the victims indicated in annex 1 of the Merits Report.

5.  For their part, in general, the representatives of the presumed victims (hereinafter “the representatives”) concurred with the facts indicated by the Commission. They alleged that the events took place within the framework of a counterinsurgency operation known as “Relámpago II,” conducted by the 18th Brigade of the National Army, with air support from the Colombian Air Force and United States personnel at the service of a foreign company, associated with security and surveillance work for a multinational company that exploited an oilfield in the area, and with resources provided by another company, under a contractual relationship with State institutions. They alleged that the acts of sacking and looting of the homes occurred while the territory was under the control of the Colombian National Army. In addition, the representatives alleged that measures were taken to divert responsibility for the bombing from the military forces and their senior commanders by the National Army and by the Colombian Air Force, by disseminating a version according to which members of the “Colombian Revolutionary Armed Forces (hereinafter also “FARC”) guerrilla had used the civilian population as a human shield and had allegedly placed a car bomb that had caused the deaths. The representatives agreed, in general, and according to their own assessments, with the violations alleged by the Commission and indicated that the State had also violated to right to honor and dignity and the obligation to adopt domestic legal provisions, contained in Articles 11 and 2 of the Convention, respectively, to the detriment of the victims and their next of kin. Consequently, they asked the Court to order the State to make diverse measures of reparation, and to pay costs and expenses.

6.  The State asserted that the Commission’s affirmations were not in keeping with the reality. In particular, it indicated that, to counter the FARC’s unlawful activities, a military operation was planned and executed as of December 12, 1998; that, when a situation of tactical disadvantage and risk for the safety of the soldiers arose, on the morning of the following day an aerial attack with an AN-MIA2 device was planned and ordered in the place where the guerilla were concentrated in an area with dense vegetation known as “mata de monte” [woodland bushes] which is more than 500 meters from the village of Santo Domingo. In other words, it alleged that the Colombian Air Force did not launch any bomb in the urban center of Santo Domingo and that the deaths that occurred were caused by a bomb installed by the FARC guerrilla in a truck in the main street of the village, acts and damage that cannot be attributed to the State, which complied fully with its obligations to protect the civilian population. In addition, it argued that the looting was carried out by members of the FARC who remained in the village after December 13, 1998. It argued that it had not violated the right to the truth by not investigating the masterminds, because a final criminal judgment exists in which a member of the FARC has been convicted of the facts. The State also proposed an “acknowledgment of responsibility” for the violation of the right to judicial guarantees and to judicial protection of the victims and their next of kin, because, owing to flaws in the evidence that was presented during the criminal proceedings in first and second instance against the pilots of the [Colombian Air Force] aircraft, […] the right of the victims to accede to the truth and an investigation with the guarantees [contained] in Colombian law was violated.”

II

PROCEEDINGS BEFORE THE COURT

7.  The submission of the case by the Commission was notified to the State and to the representatives on September 19, 2011.

8.  On November 21, 2011, the representatives[5] presented their brief with pleadings, motions and evidence (hereinafter “pleadings and motions brief”), in keeping with Articles 25 and 40 of the Rules of Procedure.