6
Conventions, as these instruments and the American Convention are part of a very
comprehensive international corpus juris for protection of children, which the States must
respect. 8
27.
The petitioners argue that the arbitrary deprivation of the lives of six children and the
wounding of nine others, while some of them were in their homes and others were on the road that
passes through the village, constitutes a gross violation of human rights. In that regard, they hold
that the military forces omitted to adopt special measures of protection to safeguard the lives and
integrity of the victims, given that the cluster bomb was launched at a residential area where there
were children visibly present.
28.
The petitioners hold that the State is responsible for violation of Articles 8(1) and
25(1) of the Convention in connection with Article 1(1) thereof, due to that the investigations
carried out by the military criminal courts and in the ordinary jurisdiction have created a climate of
impunity, inasmuch as the State failed its duty to observe due diligence in conducting the
investigation and the latter has not resulted in appropriate punishment for those responsible and
reparation for the victims.
29.
They argue that the fact that the military criminal courts initially took up the
investigation of the facts in the instant case constitutes a violation of the rights to a fair trial and
judicial protection, since that jurisdiction does not afford the guarantees of a competent,
independent and impartial tribunal to investigate cases of human rights violations, as the IACHR and
the Inter-American Court have stated on numerous occasions. 9 The petitioners also argue that the
military criminal courts’ trial of this case prevented the victims from having access to an adequate
remedy in terms of investigation, prosecution, and punishment of those responsible, and that it
repeatedly obstructed justice.
30.
They also claim that after the investigation was referred to the ordinary jurisdiction
the proceeding was carried out without regard to the principle of reasonable time. They argue that
only three FAC servicemen were included in the investigation and ultimately convicted as the
physical perpetrators of the attack; however, the architects, that is, the high-ranking military
officers, both in the Air Force and in the Army, were not included in the proceedings, which has
enabled the crimes to go unpunished.
31.
The petitioners hold that the State is responsible for violation of the right to property
recognized in Article 21 of the Convention owing to the destruction and/or damage of the homes by
the cluster bomb and the later looting of the homes of the residents of Santo Domingo. They say
that the inhabitants of Santo Domingo were forced to displace themselves after the attack, which
constitutes a violation of the right to freedom of movement protected in Article 22 of the American
Convention. Finally, they assert that the State has failed to discharge its duty to adopt measures
designed to ensure protection for human rights, which constitutes a violation of Article 2 of the
American Convention.
8
The petitioners cite I/A Court H.R., Case of the “Mapiripán Massacre v. Colombia, Judgment of September 15,
2005, Series C No. 134, par. 153; I/A Court H.R., Case of the “Juvenile Reeducation Institute” v. Paraguay, Judgment of
September 2, 2004, Series C No. 112, par. 148, and I/A Court H.R., Case of the Gómez Paquiyauri Brothers v. Peru,
Judgment of July 8, 2004. Series C, No. 110, par. 166.
9
The petitioners refer to I/A Court H.R., Case of the Massacre of Pueblo Bello v. Colombia, Judgment of January
31, 2006, Series C, No. 140, par. 189; I/A Court H.R., Case of Palamara Iribarne v. Chile, Judgment of November 22, 2005,
Series C No. 135, par. 124; I/A Court H.R., Case of the “Mapiripán Massacre” v. Colombia, Judgment of September 15,
2005, Series C No. 134, par. 202; and I/A Court H.R., Case of Lori Berenson Mejía v. Peru, Judgment of November 25,
2004, Series C No. 119, par. 142; IACHR. Report No. 43/02, Case 12.007, Leydi Dayán Sánchez, Colombia, October 9,
2002, pars. 23-25; IACHR. Third Report on the Situation of Human Rights in Colombia (1999), p. 175, and IACHR. Second
Report on the Situation of Human Rights in Colombia (1993), p. 246.