Santo Domingo Massacre v Colombia

• Jurisdiction: Derecho Internacional
• Judge: Franco,Macaulay,Garcíá-Sayán,Blondet,Ventura Robles,Vio Grossi,Pérez Pérez
• Date: 30 November 2012
• Court: Inter-American Court of Human Rights

Inter-American Court of Human Rights

Preliminary Objections, Merits, Reparations and Costs.

(Garcíá-Sayán, President, Ventura Robles, Vice-President, Franco, Macaulay, Blondet, Pérez Pérez and Vio Grossi, Judges)

Request for Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs. 19 August 2013

(Garcíá-Sayán, President, Franco, Macaulay, Blondet, Pérez Pérez and Vio Grossi, Judges)2

Santo Domingo Massacre

and

Colombia 1

International tribunals — Inter-American Court of Human Rights — Preliminary objections by Colombia — Whether Court lacking jurisdiction ratione materiae — Non-international armed conflict — Application of international humanitarian law — Interpretation of scope of provisions of American Convention on Human Rights, 1969 using international humanitarian law — Whether failure to exhaust domestic remedies — Whether remedy of contentious — administrative jurisdiction always necessary — Article 46 of American Convention on Human Rights — Whether preliminary objections to be rejected

International tribunals — Inter-American Court of Human Rights — American Convention on Human Rights, 1969, Article 67 — Interpretation of judgment — Request for interpretation of judgment by representatives of victims — Impossibility of requesting modification or expansion of judgment through request for interpretation — Whether Court having jurisdiction to determine applicable domestic provisions or indicate persons entitled to recourse — Whether request admissible

Human rights — Right to a fair trial — Judicial protection — Articles 8 and 25 of American Convention on Human Rights, 1969 — Whether acknowledgement of responsibility substantiated — Assessment of activities carried out by ordinary, military, disciplinary and contentious-administrative jurisdictions — Whether scope of military criminal jurisdiction restrictive and exceptional — Whether Colombia violating Articles 8 and 25, in relation to Article 1(1) of American Convention on Human Rights

Human Rights — Right to life — Humane treatment — Children — Obligation to adopt domestic legal provisions — American convention on Human Rights, 1969, Articles 4, 5, 19 and 2 — Right to humane treatment of next of kin of victims — Application of juris tantum presumption regarding direct family members — Protection measures for children — Special obligation to protect children in non-international armed conflict — Whether Colombia violating Articles 4, 5, 19 and 2, in relation to Article 1(1) of American Convention on Human Rights

Human Rights — Right to freedom of movement and residence — Right to individual property — Articles 22 and 21 of American Convention on Human Rights, 1969 — Evolutive interpretation of Article 22 of American Convention protecting right not to be forcibly displaced within State Party — Additional Protocol II to Geneva Conventions and customary international humanitarian law used to interpret scope of Article 21 of American Convention — Whether States to take into account greater vulnerability and increased harm to property rights of people living in poverty — Whether Colombia violating Articles 22 and 21, in relation to Article 1(1) of American Convention on Human Rights

Human rights — Right to honour — Article 11 of American Convention on Human Rights, 1969 — Whether State submitting individuals or groups to hatred, stigmatization, public scorn, persecution or discrimination by means of public declarations by public officials — Whether lack of evidence — Whether Colombia violating Article 11, in relation to Article 1(1) of American Convention on Human Rights

Damages — Reparations — Monetary and other reparations — Damages for pecuniary and non-pecuniary loss — Beneficiaries — Injured victims and next of kin of victims not receiving reparation under domestic contentious-administrative jurisdiction — Establishment of domestic reparation mechanism for benefit of beneficiaries — Requirement of public act of acknowledgement of international responsibility — Other non-pecuniary remedies, Article 63(1) of American Convention on Human Rights, 1969

War and armed conflict — Non-international armed conflict — Applicable law — Relationship between humanitarian law and human rights — 1977 Additional Protocol II to the Geneva Conventions — Precautions in attack — Cluster bomb launched on village and machine-gun attack on civilians — Principle of distinction between civilians and combatants — Principle of proportionality

Summary:3The facts:—The district of Arauca was located in the northeast of Colombia, bordering Venezuela. Santo Domingo was a village in the municipality of Tame with a population of 247 persons living in 47 houses. This area was strategically important because of oil exploration, the oil pipeline, and the transit of legal and illegal merchandise to Venezuela. During the 1990s, militarization in Arauca increased after the Colombian Revolutionary Armed Forces (“FARC”) guerrilla had arrived (the National Liberation Army, or ELN, guerrilla had been active there since the mid-1970s). In 1996, Ecopetrol and Occidental Petroleum Corporation undertook to give financial support to Armed Forces units for security because the difficult public order situation affected the operation of the pipeline. In 1998, a situation of generalized violence existed in Arauca.

On 12 December 1998, a fair was held in Santo Domingo with visitors from nearby villages present. The Armed Forces noted that a plane had landed, which they presumed carried money or weapons for drug-trafficking activities. Troops from the 36th Counter-Guerrilla Battalion and units of the Air Force became engaged in hostilities with a group of armed men. The Armed Forces began a military operation that lasted several days. Around 4 p.m. on 12 December 1998, several aircraft flew over the area, firing very close to the village of Santo Domingo. The Armed Forces units were given orders to search the area, starting at 6 a.m. on 13 December 1998. That morning, several aircraft flew around Santo Domingo, including an armed helicopter and a helicopter carrying a cluster bomb. At 10:02:09 a.m., the crew of a Colombian Air Force helicopter launched that bomb, resulting in seventeen deaths, including those of six children. Twenty-seven other people, including ten children, were injured. The inhabitants of Santo Domingo moved to neighbouring villages from early morning; the displacement increased following the explosion which damaged and destroyed property. After the inhabitants had left, several properties were damaged and pillaged.

Accounts of the facts differed between the parties regarding (i) whether the bomb was used against the urban area of Santo Domingo, and (ii) whether the

Armed Forces attacked villagers with machine guns. Inhabitants' testimony that the bomb was directed at the village of Santo Domingo was supported by the Attorney General's ballistics and explosives examination report, a judgment of the 12th Criminal Court of the Trial Circuit of Bogota DC (“the 12th Criminal Court”) (in which the pilots of the Colombian Air Force helicopter were declared responsible for deaths and injuries caused) confirmed by the Superior District Judicial Court of Bogotá (“the Superior Court”), measures taken in the contentious-administrative jurisdiction (reflecting proceedings in the criminal jurisdiction) as well as by the disciplinary proceedings conducted. However, members of the Air Force stated that a light bomb was directed not at the village, but at a wooded area more than 500 metres from the village. They argued that civilians were victimized by an explosive device of the FARC, so that the deaths and injuries could not have been caused by the State. Inhabitants testified that after 10 a.m. on 13 December 1998, the Colombian Air Force attacked people on the highway who were leaving the village from the aircraft with machine guns, which the State denied.

On 14 December 1998, investigations were opened simultaneously in civil and military criminal jurisdictions. On 17 December 1998, a regional prosecutor of the National Human Rights Unit opened a preliminary investigation. In the military criminal jurisdiction, on 28 December 1998, the court abstained from opening criminal proceedings against members of the 36th Counter-Guerrilla Battalion. On 20 May 1999, the Military Preliminary Criminal Investigation Unit decided not to open an inquiry against members of the Air Force.

On 21 November 2000, by ministerial decision, the Commander-in-Chief of the Military Forces set up a special Military Preliminary Criminal Investigation Unit (“UIPME”) to investigate the facts. On 9 February 2001, the UIPME ordered formal proceedings to be instituted against the helicopter crew and, on 14 June 2001, imposed preventive detention on these individuals for the presumed perpetration of culpable homicide and bodily harm. After a dispute about which jurisdiction was competent to hear the case, on 6 February 2003, the Disciplinary Jurisdictional Chamber of the Superior Council of the Judicature (responding to a requirement of the Constitutional Court) decided that the ordinary civil justice system had jurisdiction.

On 19 December 2003, the Human Rights Unit of the Prosecutor's Office indicted three members of the Air Force—a captain, a lieutenant and a flight technician—as presumed perpetrators of culpable homicide and bodily harm. They were found guilty on seventeen counts of manslaughter and eighteen counts of negligent bodily harm. On 21 September 2007, the 12th Criminal Court sentenced them to 72 months' imprisonment and imposed a fine, as well as prohibiting them from exercising public functions while imprisoned. The Prosecutor's Office changed the legal classification so that, on 24 September 2009, two of the men were sentenced for seventeen counts of homicide and eighteen counts of bodily harm with wanton disregard for human life, and sentenced to 380 months'...