III. POSITIONS OF THE PARTIES A. Position of the Petitioners 7. The petitioners allege that on December 13, 1998, a helicopter of the Colombian Air Force (FAC) dropped a cluster bomb in the hamlet of Santo Domingo, situated in the department of Arauca, and that as a result of the explosion, 17 were killed, including six children, and that 25 others were wounded, including nine children. The deceased were identified as Oscar Esneider Vanegas Tulibila, ten years old; Luis Carlos Neite Méndez, five years old; Egna Margarita Bello, five years old; Geovani Fernández Becerra, 17 years old; Levis Hernando Martínez Carreño; Teresa Mojica Hernández de Galvis; Edilma Leal Pacheco; Salomon Neite; Jaime Castro Bello, four years old; María Yolanda Rangel; Leonardo Alfonso Calderón; Katherine Cárdenas Tilano, seven years old; Pablo Suárez Daza; Carmen Antonio Díaz Cobo; Nancy Avila Castillo; Arnulfo Arciniegas Velandia, and Luis Enrique Parada Ropero. At the hearing held on February 25, 2003, the petitioners presented a list identifying the wounded, which has been included as part of the record of the case, but they requested that the names be not disclosed, in consideration of the risks to their personal safety. 8. They allege that the victims were non-combatant civilians who were unarmed and that there was no military necessity or legitimate justification for the attack. The petitioners allege that the bombing had been ordered, or at least made known to high-level officers of the FAC, and that after the attack, the Colombian Air Force prevented access to medical care for the wounded, and that members of the Army took advantage of the situation to pillage the hamlet.1 They argue that these facts constitute violations of Articles 4 and 5 of the American Convention on Human Rights. In the hearing of February 25, 2003, they also made reference to the alleged violation of Article 21 of the American Convention. 9. The petitioners allege that the FAC obstructed the investigation by attributing responsibility to the guerrillas groups, by propagating a false version of the facts with falsified evidence, in order to cover up the responsibility of the members of the Army involved. The petitioners provided copies of official documents and testimonies allegedly refuting the FAC’s hypothesis.2 They also note that Mr. Angel Trifilo Riveros, a survivor of and witness to the massacre, was murdered on January 24, 2002, allegedly by members of paramilitary groups in collaboration with members of the Army. 10. The petitioners also allege that the State failed to comply with its duty to investigate the facts and prosecute those responsible, in accordance with the standards of Articles 8, 25, 1(1), and 2 of the American Convention. They argue that the State has failed to adopt measures to prosecute those responsible before the ordinary jurisdiction nor has taken steps to grant reparation to the victims and their next-of-kin. They argue that no criminal investigation whatsoever has been undertaken in relation to the possible responsibility of high-ranking officers. 11. The submission by the petitioners includes, as an attachment, a copy of the decision handed down on December 8, 2000 by an unofficial Opinion Tribunal that convened in Chicago, in the United States, as a source of information about the facts of the case. This decision includes a list of the persons killed as a result of the events that are the subject matter of this case. B. Position of the State 12. The State alleges that the petitioners’ claim is inadmissible under Article 46(1) of the American Convention, due to the fact that domestic remedies have not been exhausted, since the outcome is still pending in the criminal, disciplinary, and contentious-administrative 1 2 Petition dated April 18, 2002. The petitioners make reference to the December 10, 1999 report of the Ballistic Forensic Laboratory of the National Institute of Forensic Medicine and Forensic Sciences of Colombia, the April 28, 2000 report of the Technical Investigative Corps (CTI) of the Procuraduría General de la Nación; and the May 1, 2000 report by the U.S. Federal Bureau of Investigation. 2