Australian Indigenous Law Reporter
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REPORT OF THE SPECIAL RAPPORTEUR ON THE SITUATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF INDIGENOUS PEOPLE, MR RODOLFO STAVENHAGEN
361st Session of the Commission on Human Rights
Mission to Columbia
E/CN.4/2005/88/Add.2
81. The precarious human rights situation of Colombia’s indigenous peoples reflects the gap between progressive domestic legislation and the ineffectiveness of the institutions responsible for protecting these peoples, against a background of internal armed conflict involving numerous warring parties whose actions directly affect indigenous communities’ chances of survival.
82. The spread of narcotics cultivation and trafficking, and efforts to combat that spread, notably by spraying fields from the air, have had an adverse effect on indigenous peoples’ environment, economy, social life, health and culture.
83. Certain small indigenous communities in the Amazon region are especially vulnerable, and indeed are in real danger of extinction as peoples.
84. Of particular concern are the conditions of indigenous people who have been internally displaced or who are refugees from the violence, in particular women and children.
85. There have been delays in implementing the constitutional provisions on the establishment and consolidation of indigenous reserves and cabildos. Indigenous jurisdiction is still a fragile part of Colombia’s justice system.
86. Some economic development programmes, including certain commercial farming, forestry, mining and oil-drilling activities, have had adverse effects on the living conditions of the indigenous communities involved.
87. The social and human development indicators of the indigenous peoples are still below the national average. The various State social programmes for indigenous peoples have had little impact on their communities owing to the lack of resources, trained personnel or the necessary institutional mechanisms.
88. The indigenous peoples demand that the armed groups respect their neutrality in the internal conflict; they are making efforts to carry through their own development plans, which require support of various kinds that is at present lacking.
89. Specifically, the indigenous organizations and communities demand the application of constitutional principles, the implementation of the relevant legislation and compliance with the rulings of the Constitutional Court and of the international human rights bodies.
…
Conflict, human rights and international humanitarian law
90. The State and the armed groups have an obligation to comply at all times with international humanitarian law and to respect human rights. It is suggested that a broadbased independent commission be established to ensure full compliance.
91. Priority should be given to the indigenous peoples’ demand that all the armed groups respect their neutral and demilitarized zones. Indigenous peace zones, free from all military operations and subject to international supervision, should be created as a matter of urgency.
Internally displaced persons
92. The displaced indigenous population, and women and children in particular, should be accorded priority attention by the State and international organizations. Women, particularly mothers, should receive special assistance.
93. It is vital to secure food supplies for indigenous communities, and in particular for the displaced populations in conflict zones, and to ensure the free passage of food aid to the neediest groups.
94. Regulatory legislation giving full and effective application to the constitutional provisions on the human rights of indigenous peoples should be passed as soon as possible.
95. Any draft legislation, draft constitutional reform or other initiative which introduces into the law provisions that violate indigenous peoples’ rights or the principle of diversity should be withdrawn.
96. The other branches of government should fully respect the powers of the Constitutional Court, and refrain from limiting the scope of the amparo procedure, which is one of the principal mechanisms for the defence of indigenous peoples’ human rights.
Indigenous women
97. The Special Rapporteur recommends the establishment of an effective mechanism for the protection and promotion of the rights of Colombia’s indigenous women, with the aim of forestalling violations of their fundamental rights and promoting their active involvement in decisions affecting their lives and their active development within their communities.
98. Existing programmes on the provision of basic social services should be extended so as to improve the situation of indigenous women and children in rural areas, and in particular displaced women and children, with regard to health and education.
Indigenous rights defenders and human rights defenders
99. Programmes should be set up in conjunction with civil society organizations and human rights defenders active in indigenous affairs, as a means of joining forces to ensure the attainment of the Government’s laudable aims in terms of the promotion and protection of the human rights of indigenous people.
Military service
100. Indigenous people should continue to be excluded from the bill on compulsory military service. Congress should not approve any law limiting or restricting the autonomy and freedoms of social and human rights NGOs.
101. Schemes for children and youngsters such as the network of informers, the introduction of peasant soldiers and the “soldiers for a day” programme should be discontinued.
Administration of justice
102. Prosecution services should investigate and apply the law in all complaints concerning abuses and violations committed against members of indigenous communities by members of the armed forces or the police.
103. The relevant State bodies should apply, with immediate effect and without exception, the precautionary measures established by the Inter-American Commission on Human Rights for various indigenous peoples.
104. The Anti-Terrorist Statute should under no circumstances be invoked against any indigenous people charged with an offence as a result of involvement in legitimate action to resist, oppose or protest against violations committed against them by any armed group.
105. No indigenous people should be detained by the armed forces unless a warrant for their arrest has been issued by a competent judicial authority. The duties of the military and the judiciary should be kept strictly separate, including in conflict zones.
The environment and spraying
106. Except where expressly requested by an indigenous community which has been fully apprised of the implications, no aerial spraying of illicit crops should take place near indigenous settlements or sources of provisions.
Sustainable development and basic social services
107. The State should promote and extend the coverage of alternative sustainable development projects, under development plans drawn up by the indigenous communities, and to that end should request the fullest possible international cooperation.
108. No investment or infrastructure projects, harvesting or mining of natural resources or new production projects should be encouraged without full and legitimate prior consultation and the involvement of the indigenous peoples. An agreed approach to the consultation process should be worked out.
109. As part of the plans for free education for all - which the State is under an obligation to provide - the bilingual and intercultural education programme should be reinforced in indigenous areas, and the role of private educational establishments should always be limited to supplementing the work of the State.
110. The Government’s plans to provide health service coverage to the entire indigenous population should embrace and protect traditional medicine and its practitioners within the indigenous communities.
111. State entities working with indigenous populations should produce and make use of statistics disaggregated by ethnic group, so that they can focus their work more effectively.
It is recommended that they should work out a suitable methodology in cooperation with academic and research institutions.
112. The armed groups should refrain from recruiting minors, and those already recruited should be returned to their families immediately and given appropriate care by specialist State institutions.
113. The Special Rapporteur urges the indigenous peoples to continue to stand up to the various groups involved in the armed conflict and reaffirm their tradition of peace and mutual respect. He recommends that they continue to try to establish forums for dialogue with civil society and other sectors campaigning for human rights and peace in Colombia.
114. The Special Rapporteur recommends that the United Nations and the international community at large continue to provide cooperation for the construction of a peaceful, just society. He appeals in particular for special attention to continue to be paid to the situation of Colombia’s indigenous peoples, applying a strong gender perspective, and for an approach aimed at ensuring respect for indigenous human rights when devising policies and initiatives for the various agencies in the country.
115. Lastly, as a matter of particular urgency, international cooperation should be mobilized to prepare an emergency programme of aid to the indigenous communities in danger of extinction, particularly in the Amazon region. In this context, it is recommended that advice should be sought from the new United Nations focal point on the prevention of genocide.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2005/61.html