7
17.
That in order to make the rights enshrined in the America Convention effective,
the State Party is obliged, erga omnes, to protect all people under its jurisdiction. In the
Court’s opinion, said general obligation is imposed not only with regard to the State’s
power but also with regard to actions of individual third parties, even irregular armed
groups of any nature. The Court observes that given the special characteristics of the
present case and the general conditions of irregularity in the area it is necessary to
maintain the protection, through provisional measures, of all the members of the Peace
Community, in light of that established in the American Convention and the principles of
International Humanitarian Law. Specifically, the State must guarantee and ensure that
the principle of distinction is guaranteed with regard to the members of the Peace
Community, who are civilians oblivious to the internal armed conflict.8
18.
That the Court observes how under the protection of the present measures grave
acts of violence have occurred against the members of the Peace Community. In this
regard, the Constitutional Court of Colombia in its judgment T - 1025 of December 3,
2007, indicated in its ratio decidendi, among others, that:
27. With regard to the events occurred in San José de Apartadó it is evident that the State
has not done enough to prevent the community from being the victim of so many crimes.
Failure to comply with the duty of protection is very grave. But just as grave is the lack of
results in the criminal investigations started due to those crimes. Therefore, the Constitutional
Court will proceed to issue a series of orders in seeking to achieve respect of the right of the
members of that Community to access justice and know the truth about the crimes, as well as
obtain comprehensive reparation.
Thus, in first place, it is necessary that the Solicitor General of the Nation prepare a careful,
complete, precise, and updated inventory regarding the crimes that have affected the Peace
Community, identifying each of the victims by name. For this it can use the database
prepared by the Community itself, if it is willing to hand over said information. Based on this
result, the Prosecutor’s Office must (i) establish which is the current state of all the criminal
procedures in process due to the crimes committed against members of the Peace Community
or people that offered them services. This task includes knowing the total number of
processes, who the prosecutors that are following the investigations are, which is the latest
progress, and the date on which the crimes occurred; (ii) establish what crimes are not yet
being the object of criminal persecution, in order to open the corresponding procedures; (iii)
identify the investigations at a standstill, in order to impulse them; and (iv) define priorities in
such a way that the parties responsible for the most grave crimes are in effect punished. A
report on these activities must be sent to the Review Chamber and the Ombudsman no later
than the first day of March 2008.
Second, it is necessary that the Prosecution establish the processes in progress before the
military criminal justice system due to crimes of which the members of the Peace Community
or the people that offer them services were victims, so it may decide in which cases,
according to the criminal norms in force and the jurisprudence of this Corporation, it must
propose a collision of competence so that the Prosecutors’ Office may assume the
corresponding investigation. It must also establish which has been the fate of the processes in
which the Prosecutors’ Office has issued an accusation and sent the procedure to the
competent criminal judges. A report must be sent to the Chamber of Review and the
Ombudsman regarding the result of these activities no later than the first day of March 2008.
[…]”
19.
That the Inter-American Court values the decision of the Constitutional Court of
Colombia, since the sense and scope of the same adjusts to the object of protection of
the present measures and helps in the implementation of the same. In this sense, this
8
Cfr., inter alia, Matter of the Peace Community of San José de Apartadó, supra note 6, Considering
clauses number nine and twenty, and Matter of the Communities of Jiguamiandó and Curbaradó. Provisional
Measures regarding Colombia. Order of March 15, 2005, Considering Clauses number eight and twenty-eight.