undoubtedly had a positive effect toward overcoming the grave situation that has
principally characterized the members of the Kankuamo Indigenous Community. These
effects have been recognized by both the Commission and the representatives. In this
respect, the measures adopted by the State to address and counteract said situation
have already been indicated. It is also important to note that the State has complied with
its duty to report to the Tribunal periodically on the steps taken to implement these
measures.
31.
In view of the principle of complementary and subsidiary nature that guides the
Inter-American Human Rights System, an order to adopt or maintain original measures is
justified in situations contemplated under Article 63(2) of the American Convention, with
regard to which the ordinary guarantees existing in the State are insufficient or
ineffective or when the domestic authorities cannot or do not wish to make them
prevail15. From the court file of the Tribunal, it spring that the domestic authorities have
been aware of the situation of the Kankuamo Indigenous Community since the measures
were ordered by this Court. This allows for the reasonable assumption that they will
continue adequately exercising all due Convention related oversight16, likewise with
regard to the protective measures to be required going forward, if applicable.
32.
For all these reasons, the Court views positively the efforts made by the State and
the active participation of the representatives of the beneficiaries and finds that the
factual situation that, in 2004, led to the adoption and maintenance of these measures to
the benefit of the members of the Kankuamo Indigenous Community, does not persist.
The situation of risk facing these individuals has evidently not been eliminated, but the
information presented by the State, the Commission, and the representatives does not
allow for the conclusion that the situation of the community or the specific factors of risk
that they could be facing, meet the standard of gravity verified previously. In any case,
the urgency and imminence of the situation no longer coincide.
33.
This Tribunal is aware that the alleviation and correction of the situation present
in this matter is a short, medium, and long term process requiring a collection of actions
on the part of the different State’s authorities in the administrative, judicial, and
legislative areas. Moreover, the Tribunal emphasizes that, according to information on
record in this matter, the Colombian Constitutional Court has issued a series of decisions
addressing the situation of displacement in broad terms17, as well as others deriving
from them and that also address the problem of the members of the Kankuamo
Indigenous Community, among others18. The Court also notes that the State count on a
Human Rights Protection Program, which depends on the Ministry of Interior and Justice
and which, through the Regulation and Risk Evaluation Committee (“CRER”) conduct risk
studies and recommend the most convenient measures to protect the population, in this
case, the members of the Kankuamo Indigenous Community. However, many aspects of
said State’s actions do not fall under the supervision of the implementation of provisional
measures. Because of this and for the aforementioned reasons, the Court deems it is
appropriate to rescind such measures. The foregoing does not prevent the Tribunal from
ordering provisional measures if, in the future, the three conditions established in article
63(2) of the American Convention are met again.
15
Matter of the Mendoza Prisons, supra note 13, considering clause forty-five.
16
Matter of the Mendoza Prisons, supra note 13, considering clause forty-five.
17
For example, Judgment T-025/04 of the Colombian Constitutional Court on the unconstitutional
situation of the displaced population.
18
In this respect, Court Order 004/09 of the Colombian Constitutional Court on the displacement of
different indigenous peoples in Colombia.
14