54
human rights […], and who have not crossed an internationally recognized State border.” 188
173. This Court has established that, given the complexity of the phenomenon of internal
displacement and the wide range of human rights that are affected or put at risk, and in view of
the circumstances of special vulnerability and defenselessness in which displaced persons
generally find themselves, their situation can be understood as a de facto condition of lack of
protection. This situation, in accordance with the American Convention, obliges States to adopt
positive measures to reverse the effects of their situation of weakness, vulnerability and
defenselessness, including with respect to the actions and practices of private third parties. 189
174. In this sense, the Court has stated that the right of movement and residence can be
violated by de facto restrictions if the State has not established the conditions or provided the
means to exercise it, for example when a person is a victim of threats or harassment and the
State does not provide the necessary guarantees so that he or she can live and move around
freely in the territory in question, even when the threats and harassment come from non-State
actors. Likewise, the Court has indicated that the lack of an effective investigation of violent acts
can propitiate or perpetuate exile or forced displacement. 190
175. The Court recalls that the obligation to guarantee the right to movement and residence
must also take into in consideration the actions taken by the State to ensure that displaced
populations can return to their places of origin without the risk of their rights being violated. In
this sense, the Court reaffirms that the State’s obligation to protect the rights of displaced
persons entails not only the duty to adopt preventive measures but also to provide the necessary
conditions for a dignified and safe return to their places of habitual residence or their voluntary
resettlement in another part of the country. To this end, their full participation in the planning
and management of their return or reintegration must be guaranteed. 191
176. Furthermore, in accordance with its constant case law on indigenous matters, in which it
has recognized that the relationship between indigenous peoples and their territory is vital to
maintain their cultural structures and their ethnic and material survival, 192 the Court has
considered that the forced displacement of indigenous peoples, or of their members, from their
communities can place them in a situation of particular vulnerability. This situation has
destructive effects on the ethnic and cultural fabric, which generates a clear risk of cultural or
physical extinction of indigenous peoples, for which it is essential that States adopt specific
protection measures, considering their particular characteristics, as well as their customary law,
values, traditions and customs, in order to prevent and reverse the effects of this situation.
177.
As was established (supra paras. 94 to 98), the Maya Achí people of the village of
Cf. Commission on Human Rights, United Nations Guiding Principles on Internal Displacement, supra, para. 2.
In this regard, the OAS General Assembly has recommended that States use these Guiding Principles as the basis for
developing their policies and integrating these into their domestic legislation to promote their implementation. Cf.
AG/RES. 2508 (XXXIX-O/09) “Internally Displaced Persons.” Adopted at the fourth plenary session held on June 4, 2009,
second operative paragraph. Available at: www.oas.org/dil/esp/AG-RES_2508-2009.doc.
189
Cf. Case of the Mapiripán Massacre v. Colombia. Judgment of September 15, 2005. Series C No. 134, para.
179, and Case of Displaced Afrodescendant Communities of the Cacarica River Basin (Operation Genesis) v. Colombia,
para. 315.
190
Cf. Case of the Moiwana Community v. Suriname, paras. 119 and 120, and Case of Human Rights Defender et
al. v. Guatemala. Preliminary objections, merits, reparations and costs. Judgment of August 28, 2014. Series C No. 283,
para. 166.
191
Cf. Case of Chitay Nech et al. v. Guatemala. Preliminary objections, merits, reparations and costs. Judgment
of May 25, 2010. Series C No. 212, para. 149, and Case of the Displaced Afrodescendant Communities of the Cacarica
River Basin (Operation Genesis) v. Colombia, para. 220.
192
The Court has determined that the culture of members of the indigenous communities corresponds to a
particular way of life, of being, seeing and acting in the world, based on their close relationship with their traditional
lands and natural resources, not only because these are their main means of subsistence, but also because they are a
component of their worldview, their religious beliefs and, consequently, their cultural identity. Cf. Case of Chitay Nech
et al. v. Guatemala, para. 147, and Case of the Kaliña and Lokono Peoples v. Suriname. Merits, reparations and costs.
Judgment of November 25, 2015. Series C No. 309, para. 130.
188