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Friday, August 24, 2007

Inter-American Court of Human Rights Condemns the Colombian State for Extrajudiciary Execution

Translated and sent by the Jose Alvear Restrepo Lawyers’ Collective

On July 4, 2007, Inter-American Court of Human Rights Condemned the Colombian
State for the Extrajudicial Execution of the Nasa Indigenous Person German Escué

Inter-American Court Condemns the Colombian State for the Extrajudicial
Execution of the Nasa Indigenous Person German Escué
José Alvear Restrepo Lawyers’ Collective
Colectivo de Abogoados “José Alvear Restrepo” (CCAJAR)  
August 8, 2007
Bogotá, Colombia
On the night of February 1, 1988, while his family was asleep, members of the
national army illegally and violently entered the home of Germán Escué. At the
time, several of his family members were there, including his newborn baby
girl. The military unit, commanded by Corporal Camacho Riaño, began to search
the house. While asking him where the weapons were, they called him a
guerrillero and beat him. Finally, they tied him up, forced him out his
mother’s home, and then murdered him.
Germán Escué was a recognized community leader. Since he was a child, he had
been participating in the political and cultural life of his community,
Vitoyó, assuming an early defense of their rights. While still a young man,
Germán became the substitute Cabildo Governor and the administrator for the
community store. At the side of his father, Mario Pasú, he fought for the
defense of their territory as well as to eliminate the practice of terraje, a
feudal practice in which indigenous families work without pay for the large
non-indigenous landowners.
According to the Court, for the Paez people the loss of this leader meant
“dismemberment and harm to the integrity of the collective; frustration due to
the all of the trust deposited in him to help them achieve a good life; and
feelings of loss due to the collective effort undertaken with the support of
his [C]ommunity to be able to carry out his mission as a special person.” [1]
While this case was being processed, the Colombian state recognized its
international responsibility for the violation to the right to life, personal
freedom, personal integrity, and the protection of judicial guarantees.
“[…] a request for pardon and solidarity with [the family members], expressing
we may not be able to make reparations for all of the harm that has been
caused, but we will do everything in our power to be able to accompany you and
fulfill our role as society in making reparations to the persons who have been
affected by these acts, which never should have occurred and were carried out
by State agents who irresponsibly and in clear violation to their authority
incurred in acts affecting citizens such as yourselves who never should have
suffered the severity of the corresponding acts. […]” [2]
The Court accorded values to this recognition of responsibility and determined
the scope of each one of the violations, especially in terms of justice by
clearly establishing “the 19-year delay in the national justice system for the
present case is exceptionally unreasonable” [3] and that the authorities must
undertake serious and diligent investigative action. According to the Court,
in order to follow up on all of the logical lines of investigation, due
procedure in the investigative processes requires that these processes take
into account the complexity of the acts, the context and the circumstances in
which they occurred, and the patterns explaining their commission. Minimally
and especially in cases concerning extrajudicial executions, judicial
authorities should attempt to: a) identify the victim; b) recover and preserve
the probatory material related to the acts; c) identify possible witnesses and
obtain their testimony; d) determine the cause, manner, place, and time in
which the illicit act took place, as well as any other pattern or practice
which could have caused the act; and e), in cases of death, differentiate
between natural, accidental, suicidal and homicidal death.
Additionally, the Inter-American Court also considered the Colombian State
responsible for arbitrary and abusive intervention in the home of Germán and
his family.
Lastly, although the Court positively valued the turning over of the victim’s
remains to his family members and Community, which made it possible to bury
the victim in accordance to traditions, uses, and customs of the Paez People,
the Court also bore in mind that the family members waited four years for the
Colombian State to turn over the remains of Mr. Escué Zapata and determined
that the prolonged wait for more than two years had spiritual and moral
repercussions on the family members, since in accordance with Nasa culture
“once a Nasa child is born, the umbilical cord is planted in the Mother Earth
[…] in order to germinate life. Now, when he dies, we also plant him, as
opposed to burying him, so life will be there. But to take him away is
disrespectful of the culture, of Mother Earth. Taking him from his bosom is
like cutting out the womb of the woman who saw him conceive, procreate, and
grow. It is a considerable cultural affectation and creates deharmonization
and decontrol of the territory.” [4]
As a result, the Inter-American Court ordered a series of satisfaction
measures and guarantees of non-repetition in favor of the Nasa people, the
victims, and his family members:
a.     The Court stipulated the State must effectively undertake the criminal
processes presently in course -as well as those to open in the future- in
order to determine the corresponding responsibilities for the acts of this
case and apply the consequences envisaged by Law. Additionally, the State
should exhaust the lines of investigation concerning the execution of Mr.
Escué Zapata in order to establish the truth of the acts.
b.     The State must ensure the family members of the victim have full access and
capacity to act in all of the stages and instances of said investigations and
processes, in accordance with national law and the norms of the American
Convention. The State must also publicly divulge the results of these
processes so Colombian society –and especially the Paez indigenous community-
may know what really occurred in the present case.
c.     Fund for Community Development: The Court also considered that the recovery
of the memory of Mr. Escué Zapata must be undertaken through works to the
benefit of the community in which he exercised a certain kind of leadership.
In order to achieve this, the State must designate, USD $40.000,00 (forty
thousand US dollars) to a fund named in honor of Germán Escué Zapata so the
Community may invest this money in works or services of beneficial collective
interest, in accordance with their own ways of consultation, decision-making,
uses, customs, and traditions, independently of the public works designated
for this region in the national budget.  
d.     Higher education for the daughter of Germán Escué: the State must provide
Myriam Zapata Escué with a scholarship to undertake university studies in a
Colombian public university chosen by her and the State. The scholarship
should cover all of the expenses throughout her university studies, including
academic material, food, and housing. The State should also provide transport
from the city where the beneficiary studies to her Community so she may easily
maintain ties, traditions, uses, and customs, as well as contact with her
family on a regular basis.
e.     Comprehensive medical treatment: The Court stipulated the State’s
obligation to provide –without any charge whatsoever- specialized medical,
psychiatric and psychological treatment, including the provision of
medication, once consent is expressed for said treatment. When treatment is
provided, the particular circumstances and needs of each person –especially
their customs and traditions- must be considered in such a way that suitable
treatment is provided.  
f.     Publication of the judgment in a nationally distributed newspaper in the
Spanish and Nasa Yuwe languages.  
g.     Public recognition of responsibility: In order to make reparations for the
harm caused to the victim and his family members, the Court considered the
State must undertake a public act –previously agreed upon with the family
members and their representatives- to recognize its responsibility with
respect to the violations stated in this judgment. This act must be undertaken
as a public ceremony in the Jambaló Indigenous Reservation with the presence
of senior State authorities. This act must also allow the leaders of the
Community and the family members to participate if they so desire. [5] The
State must also provide the necessary means to facilitate the presence of said
persons in this act. [6] Furthermore, the State must carry out said act in the
Nasa Yuwe and Spanish languages as well as take into account the traditions,
uses, and customs of the Community members.
[1] Anthropological expert witness testimony provided by Esther Sánchez de
Guzmán on January 19, 2007. (Merit file, volume III, page 611.) Case Escué
Zapata vs. Colombia. Inter-American Court of Human Rights. Judgment of July 4,
2007. [Translator’s note: the excerpts of the judgment are not official
[2] This statement made by Mr. Camilo Ospina, Colombian Ambassador before the
OAS, during the public hearing for this case. Case Escué Zapata vs. Colombia.
Inter-American Court of Human Rights. Judgment of July 4, 2007.
[3] Taken from paragraph 103 of the judgment. Case Escué Zapata vs. Colombia.
Inter-American Court of Human Rights. Judgment of July 4, 2007.
[4] Statement made by Flor Ilva Trochez on January 29 and 30, 2007. Taken from
paragraph 153 of the judgment. Case Escué Zapata vs. Colombia. Inter-American
Court of Human Rights. Judgment of July 4, 2007.
[5] The judgment makes reference to Plan de Sánchez Massacre Case vs.
Guatemala, (Art. 63.1 American Convention on Human Rights) Judgment of
November 19, 2004, Series C No. 116, paragraph 100; Sawhoyamaxa Indigenous
Community Case, supra note 20 paragraph 201; and Sisters Serrano Cruz Case,
supra note 20, paragraph 194.
[6] The judgment makes reference to Plan de Sánchez Massacre Case vs.
Guatemala, Reparations, supra note 147, paragraph 100; and Sisters Serrano
Cruz Case, supra note 20, paragraph 194.

"Peace is not possible as long as such profound, disproportionate, and aggravating
differences exist in the fate of persons and peoples." - José Alvear Restrepo

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