Cxhab Wala Kiwe, July 18, 2012
Translated by Eunice Gibson, CSN volunteer translator
Delegate in Colombia for the United Nations High Commissioner for Human Rights
Ref: Unconstitutionality of military bases and of the militarization of indigenous territories
Please accept our warm regards.
Last week we delivered to the President of the Republic a document labeled Statement by the indigenous authorities of northern Cauca Province, organized as Cxhab Wala Kiwe—ACIN (Association of Indigenous Councils) and the CRIC (Regional Indigenous Council of Cauca Province). There we put forward several proposals in an attempt to find a different way to achieve tranquility and safety in the indigenous territories. A copy of the document is attached.
At the conclusion of the Council of Ministers, the President repeated what we have heard at various times from presidents: that no part of Colombian territory will ever be demilitarized and that he intends to send more military forces. Later on the generals repeated that there can be no part of the country prohibited to the Armed Forces. With his words, the President admitted that our territories are militarized. Given what we have seen these days, it ought to be clear to you that militarization has brought us no safety, much less tranquility.
In our document we explained that we are planning some activities to bring harmony to our territory. Those activities consist in taking down the guerrilla encampments, dismantling the Army’s trenches and bases, and recovering our land and property, as ordered by indigenous authorities. And we insist that the government has to recognize that the Indigenous Guard is ready, practically and legally, to guarantee the safety and tranquility of the people who live in our territories.
We share with you the legal basis for our decisions, and to show you that it is the President and the Armed Forces who are acting outside the law. This situation must be corrected immediately, as required by the rule of law.
a. The government may not occupy real property.
The Constitutional Court, in Sentencia (Decision) T-303/97, referring to the occupation of a ranch for military purposes and for the installation of a military base, stated as follows:
– . . . The military authorities are also bound, in all of their activities, by the aforementioned constitutional guarantee and, as a result, they are not allowed to act simply by force, creating situations that disobey the mandates of the Constitution and the law. Accepting the contrary would mean ignoring the very fundamentals of the rule of law.
Article 59 of the Constitution establishes that “in case of war, or solely to carry out its requisites, the necessity for expropriation may be decreed by the government without prior indemnification” and it adds that “in the instant case the real property may only be occupied temporarily, to carry out the demands of the war, or to use its products for the war effort” (emphasized by the Court).
As can be seen, in peacetime, occupation of real property is not permitted.
“ . . . It is clear that, regardless of the existence of the armed conflict that the Army faces with the guerrillas and other illegal groups, in this case the extraordinary requirements imposed by Article 59 of the Constitution do not exist. The war referred to there is not different from that contemplated in Articles 173 – number 5-, 189 –numbers 5 and 6 and 212 of the Constitution. Besides, in order for that to happen, there would have to be a declaration by the President, with the permission of the Senate, or a circumstance in which, also by a decision of the Chief of State, there is a need to repel foreign aggression.
So not every armed conflict constitutes war, as is erroneously understood by the Mayor of Pensilvania.
In addition, the occupation has as its only purpose attending to the necessities of the war and using all products for that effort.”
In the case, the Court adds:
“Of course the rights of the plaintiff and his family to the inviolability of their home and their privacy (Articles 15 and 28 of the Constitution) which deserve immediate protection, were violated.”
Summing up: Any occupation of private real property in peacetime is prohibited, and it is only permitted in case of war; the internal armed conflict is not synonymous with war, because the Constitution is referring to foreign wars. Occupying private real estate without complying with these regulations is acting by force, that is to say, outside the law. As a result, the government cannot shield itself by claiming the existence of the conflict in order to occupy our reservations and our indigenous community property without our permission.
b. The expropriation of indigenous reservations and ethnic community land is prohibited by the Constitution.
The indigenous reservations are private collective property. In Decision SU-510 of 1998, the Constitutional Court held:
“( . . . ) constitutional rulings (Constitution, Articles 58, 63, and 229, and related international law, OIT (International Labor Organization) Convention No. 169, Articles 13 and 19) hold that the collective ownership that indigenous communities exercise over their reservations and territories is in the nature of a fundamental right, not only because those territories constitute their principle means of subsistence, but also because they form part of their cosmic vision and their religion. With regard to ownership of their territories, the indigenous communities possess all of the prerogatives that Article 669 of the Civil Code provides for those who hold title to property, which includes the duty of third parties to respect those rights.
As private properties, the reservations have the same prerogatives as any parcel of real estate, in particular the rights of the owners—in this case the indigenous people represented by their traditional authorities—to be the ones who grant explicit permission to private citizens or public officials to remain, to transit, or to make use of the property, except for the easements that are provided for in the regulations. In that case, prior consultation would be required.
It is important to remember this fact when we insist that the reservations and other communal land belonging to the indigenous people are not public property and are not taxable property. Thus the government cannot occupy them or use them as if there were no restrictions on private property. The government may only intervene, enter, or remain in the reservations or indigenous communal lands if it has express authorization from the owners, or if there is a court order that requires it. And the order would have to come from an indigenous judge.
If the Army needs to establish permanent installations in normal times, the only route the government could take would be to acquire the property by direct negotiation with the owner or by expropriation or condemnation. Of course, they would have to declare the public benefit of the “security installations” that they are going to build, something that does not exist in the rural areas. Considering that the indigenous people are opposed to being invaded militarily and we do not agree with those bases, the only option that the government has is expropriation. In the Court Decision that we have cited, there is no reference to expropriation, because that was not what was sought by the tutela (civil rights suit) even though it does suggest that that would be the appropriate procedure.
Nevertheless, the Constitution is clear in pointing out that that this procedure is prohibited in the reservations and indigenous communal lands and lands of ethnic groups. We reproduce it here:
Article 63. Property for public use, conservation parks, communal lands belonging to ethnic groups, reservation lands, the nation’s archeological heritage and other properties designated by law are inalienable and cannot be lost by adverse possession or by attachment.
Summing up: The government may not freely take over private real estate, in this instance the reservations. They are private collective property. If it is necessary to set up a military base, they will have to acquire or expropriate the property. The indigenous people oppose lending our lands for that purpose. It can only be done by expropriation, but this is expressly prohibited by the Constitution. Thus the government may not establish military bases in our territory.
c. The government is obligated to carry out a previous consultation to seek prior, free and informed consent in case of military operations.
Convention 169 of the International Labor Organization, ratified by Law 21 of 1991, is part of our constitutional jurisprudence, therefore it controls over any other regulation inferior to the constitution. The Convention provides that governments are obligated to:
“consult with the people who are concerned, by means of appropriate procedures and particularly through their representative institutions, whenever legislative or administrative measures that would affect them directly are being considered.” (Article 5)
But the Court has been more exact. In Decision T-769 in 2009, referring specifically to military presence in indigenous territories, it stated:
Next, the reasons why the aboriginal communities in the region do not consider the entry of the Armed Forces in their territory to be a guarantee of safety must be analyzed objectively and the Minister of National Defense has already ordered that to be done. The Constitutional Court has been clear in declaring that independent of whether the direct impact on the communities is considered positive or negative, any action that could affect them directly must be the subject of consultation. (Emphasis added.)
In the concluding part of that same Decision, the Court ordered:
IT IS ORDERED that the Minister of National Defense analyze objectively and rectify the reasons why the indigenous and African-descended communities that have always lived in the region irrigated by the Jiguamiandó, Uradá, and Murindó Rivers do not consider the entry of the Armed Forces into their territories to be a guarantee of their safety.
In the case of the High Mountain Battalion announced for Tacueyó and for all of the permanent or temporary bases, which the communities opposed because we consider the military presence as a risk and not as a mechanism of protection, it is obvious that that consultation ought to have taken place. There we could present our legal, social, cultural and political arguments that demonstrate that in fact the militarization in no way guarantees the security of the communities.
But there’s more. The “United Nations Declaration on the rights of indigenous people” prohibits carrying out military actions in indigenous territories, in the following terms:
1. Military activities shall not be carried out in the lands or territories of the indigenous people unless it is justified by a serious threat to the public interest or unless it is freely accepted or solicited by the indigenous people concerned.
2. Governments shall carry out effective consultations with the concerned indigenous people, using the appropriate procedures and, in particular, using their representative institutions, before using their lands or territories for military activities. (Emphasis added.)
The government can argue that there is a sufficiently relevant threat to the public interest so that military action in our territories is merited. We will discuss this argument later. But it is obvious that that threat should be analyzed in the framework of the consultations that the government is obligated to conduct.
All right then. The effective consultations referred to in the Declaration must seek and achieve prior, free, and informed consent, reached in good faith and using culturally appropriate procedures. None of this has been done. On the contrary, they have stated openly that there will be no consultation. And to fill out the picture of disrespect for national and international legal systems, the commanders of the Armed Forces have stated more than once that the FARC have promoted our position. That not only violates those laws, but also commits the crime of defamation. Retired General Cely and the Minister of Defense will have to prove that the indigenous governors have acted at the behest of the illegal groups that we have denounced insistently, or they will have to retract this publicly.
The government may also argue that it has not ratified the Declaration and that it is not binding, as the government has argued earlier. Permit us, Mr. President, to point out that both arguments are fallacious. The Declaration, just like the Universal Declaration of Human Rights, does not require any ratification. It is the consensual expression of humanity on what is believed about the rights of indigenous people. When the government of Uribe Vélez abstained from voting, that in no way changed the will of the majority. Besides that, the Constitutional Court has already held that the Declaration is a source of rights and that it is part of international customary law, in the same sense as has been held by the Inter-American Commission on Human Rights (CIDH) and the United Nations Relator for Indigenous People. In Decision T-704/2006, the Court held:
“The jurisprudence of the Inter-American Court, together with the criteria issued in other international documents such as the Universal Declaration of the Rights of Indigenous People, cited earlier, constitute an important guide for the interpretation of fundamental constitutional rights.”
In Decision SU 383 of 2003, the Court stated that “In the draft of the declaration, it was foreseen that the rights enumerated and set forth constitute the minimal regulations for the survival and well-being of the indigenous people.”
d. The militarization of the indigenous territories is not an improvement in the security of the indigenous people.
We do not wish to end this communication without presenting the basic reason for our opposition to the presence of military bases and the High Mountain Battalion in the indigenous territory. They are useless to achieve the purpose that the government has said it is pursuing: the security of the indigenous communities. Our experience with the presence of the Armed Forces in the indigenous communities and territories is long and the facts demonstrate, on the contrary, that these measures produce greater vulnerability. The document that we delivered yesterday proves that.
This is because of two principal facts, although there are many more causes. In the first place because the actors use methods that cannot protect the civilian population, and because the clustering of the military attracts the enemy, increasing attacks and confrontations. In the second place, because the Army and the Air Force in our territories have been characterized by their abuses, accusations, murders of noncombatants, illegal occupation of homes, and indiscriminate machine-gunning, all of it against the indigenous communities.
The United Nations Declaration was sensitive to these arguments presented by indigenous people all over the world and because of that it included a specific reference. The Declaration says:
Emphasizing the contribution of demilitarization of the lands and territories of the indigenous people to peace, progress, economic and social development, and to understanding and friendly relations among the nations and the peoples of the world.
As we have said repeatedly, in reality the national police play no role in protecting the community in the village limits, because they have to stay protected in their bunker. In rural areas they never appear, not to mention that their military weapons (They all carry long guns.) are worthless there. It is the Indigenous Guard that guarantees order in the indigenous territories except when they are discomposed by the presence of the Armed Forces.
The President of the Republic and successive commanders of the Military Forces have repeated in different settings there is no place and there can be no place in the national territory where the presence or the actions of the Armed Forces are prohibited. Stated thus, without any clarification or nuance, it is a false statement because the Armed Forces are obliged, like everybody else, to respect the Constitution and the laws, and both include explicit prohibitions of their behavior, their presence, and their actions.
If this means that the Army and the Police may come and go or act in any place in the country, with the simple permission, authorization or order of a government official (civilian or military) that is also wrong, as we have pointed out. If what they are trying to say is that the Army and the Police may intervene in any part of the country, that is true, if they are obeying legal and constitutional regulations. In this case, they are not respecting applicable laws and on the contrary, the President of the Republic and the military commanders are openly and knowingly disobeying them.
Because of all of the foregoing, we request that you and your agencies intervene to urge the national government to order that the military installations illegally placed in our properties and territories be taken down, because they are a violation of our fundamental rights. And as the Court said in Decision T-303/97, the order should include “the departure of military personnel as well as the removal of goods, weapons, munitions and installations that have been established on the property”. Along with that, we request that the Public Defender’s Office and the Inspector General undertake investigations of the public officials who have been violating the Constitution and the laws.
We will await your response.
Association of Indigenous Councils of Cxhab Wala Kiwe –ACIN
CARLOS ANDRÉS ALFONSO
(This translation may be reprinted as long as the content remains unaltered, and the source, author, and translator are cited.)
*note: Cxhab Wala Kiwe is the name in the native language for the territory they refer to.