"Ombudsman proves impact of fumigation on 11 projects for alternative development," Defensoría del Pueblo de Colombia, February 12, 2001

"Ombudsman proves impact of fumigation on 11 projects for alternative development," Defensoría del Pueblo de Colombia, February 12, 2001

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Ombudsman Resolution

After investigating complaints

Ombudsman proves impact of fumigation on 11 projects for alternative development

OMBUDSMAN RESOLUTION No. 004

February 12, 2001

IN CONSIDERATION OF:

Ombudsman Report Number 1 by the Delegate Ombudsman for Collective Rights and the Environment, entitled: “Fumigaciones y Proyectos de Desarrollo Alternativo en el Putumayo” (Fumigation and Alternative Development Projects in Putumayo) dated February 9, 2001.

AND FURTHER CONSIDERING:

1. As set out in detail in the above-referenced Ombudsman Report, which is attached hereto and forms an integral part of this Resolution, representatives of the indigenous communities Cofanes, Awa, Paeces, Sionas and Pastos which are located in Putumayo have filed verbal and written complaints with the Ombudsman Office regarding the impact on their lands of fumigation that was carried out in December, 2000.

2. That the chemical eradication activities affected, among others, the tribes and villages of Santa Rosa de Guamuéz, Nueva Isla, Nuevo Horizonte, Tierra Linda, the Buenavista and Cofán reserves, the Yarinal Reserve and the Palestina indigenous community. This chemical eradication also affected places such as El Hacha, Santa Helena, Piñuña Blanco, El Tablero and several areas located along the Putumayo River.

3. That the Ombudsman Office established an inter-institutional commission to go to the area, verify the complaints filed by the community representatives, and evaluate the impact of the fumigation, mainly in the lands where indigenous peoples are located and where projects are being carried out in coordination and financed by entities such as “Plante”, “Corporación para el Desarrollo Sostenible del Sur de la Amazonía” / (Association for Sustainable Development in the Southern Amazon) – Corpoamazonía, “Unidades Municipales de Asistencia Técnica Agropecuaria” / (Municipal Units for Technical Assistance to Agriculture and Fishing) –UMATAS, “Empresa Colombiana de Petróleos” –ECOPETROL, “Red de Solidaridad Social” and the United Nations.

4. That pursuant to the above determination, the Commission carried out, among others, the following activities:

4.1 Visits to reserves, indigenous tribes, farms and plots belonging to peasants and local inhabitants, to carry out a general evaluation of the effects of fumigation. During these visits, the commission recorded declarations and complaints, gathered information, took pictures and samples, and filmed videos. In Map No. 1, the area visited by the Inter-institutional Mission is set out and referenced in Attachment 1. Map No. 2 indicates the projects that had been the object of fumigation, and states the state entity that is financing or supporting these projects. In the attached photographs one can see the effects of fumigation on grazing fields, yucca, corn and plantain crops, as well as the damage to the fish-raising tanks, and in general to the natural vegetation.

4.2 Visits to the projects organized under the Alternative Development Plan, by other state entities, and by international organizations. In Table Number 1, there is a brief description of the site and impact suffered by each project, and these impacts are described in the Report in reference.

4.3 Recording complaints regarding the Voluntary Eradication Pacts within the framework of the Colombia Plan. These are found in the File prepared by the Delegate Ombudsman, called Fumigation in Putumayo, December, 2000 – February, 2001.

5. That the Ombudsman Office reviewed the pacts and agreements that, since 1998, have been promoted by the Plante, both with respect to indigenous peoples as well as peasant farmers in the region. In addition, the Office reviewed a document issued by the Plante: “Building Social Pacts for Alternative Development in nine municipalities in Putumayo State” (“Construcción de Pactos Sociales de Desarrollo Alternativo, en nueve municipios del Departamento del Putumayo”). These pacts are part of the Colombia Plan.

6. That in the Ombudsman Office a meeting was held with the National Director of Anti-Narcotics and the Assistant Director of the Plante. At this meeting, the Ombudsman set out the topics discussed in Report No. 1 by the Delegate Ombudsman for Collective Rights and the Environment. He also mentioned the concern by the Ombudsman Office due to the lack of coordinated management between the various State entities with respect to the dusting operations in Putumayo.

7. That in support of the foregoing, we submit the procedure on December 22nd, whereby the Plante delivered 17 maps of the 41 projects under its management to the National Department of Anti-narcotics. Moreover, we also mention a flight over the area made by officials from the Anti-narcotics Police and the Plante officials, at which time they identified the projects belonging to the Plante. Nonetheless, this appeared not to be an obstacle to the dusting activities that were carried out after this fly-over.

8. That during the visit to this state, peasant farmers and local inhabitants expressed their concern about the contradictory messages they have been receiving regarding the fumigation. IN fact, while some government representatives involved with the Colombia Plan activities have stated that this method of eradication will not be used in places where negotiations are ongoing agreements have been signed, other officials said that the fumigation will only cease when the actual voluntary eradication agreements have been signed. This position is in fact, confirmed by the events set out in the report.

9. That, in summary, one can observe a great lack of coordination among the entities in charge of the National Plan for the Fight against Drugs, Colombia 1998 – 2002, as well as between this group and those in charge of carrying out the Colombia Plan.

10. That, despite having received from the Director of the Anti-narcotic Police a communication revealing the decision to “remove the operative units in the south of the country” the Ombudsman Office is of the opinion that, based on the current legislation in force, this decision may only be taken by the National Anti-narcotics Council[1].

11. That the investigation carried out by the Ombudsman Office has been limited to the actions of fumigation by the State, and based on the verification undertaken, this has affected crops and areas that were under agreements for crop substitution, either signed agreements or pre-agreements (contract of intention), or were the object of alternative development projects. There is no doubt that the communities and peasant farmers committed to this policy to modify certain patterns of production, once they had determined on an individual basis the areas, type of crop to eradicate, project to be undertaken, persons and communities involved, financing, and other aspects of this complex negotiation between public authorities and private individuals, had a legal interest in the matter which should have removed them from the fumigation operations undertaken by the State.

The main obligation or commitment assumed by the State in this case should have been its abstaining to act, in this specific case meaning not fumigating the areas that were the object of crop substitution, and in addition, it had promised to provide financial support to ensure that other socioeconomic options could be found to substitute those derived from the illegal economy.

The fumigation that was carried out, despite the stipulations of the agreement, places the State in the situation of a party who has breached a contract that it entered into, and which it could not breach without sacrificing its word of honor. Beyond the legal transgression, both the substitution agreements and the pre-agreements had given rise to the collective belief that voluntary assumption of eradication of the illegal crops would save the community from aerial fumigation operations. The public behavior, in the cases mentioned in this resolution, does not fulfill the reasonable expectations of the peasant farmer communities who decided to sign the pacts.

As has been shown, the fumigation mentioned in this resolution destroyed not only illegal crops – which were the target of manual eradication – but also other crops necessary for the subsistence of those who had signed the pacts. Now, these persons and the communities are facing both the ruin of their family economy as well as a serious hunger problem. Given the precarious conditions of this group of people, the action by the State can be seen as a violation of their right to subsistence, which translates into a grave harm to the physical integrity and dignity of the families and their members. The intention was to foster a policy that would strengthen the community and move it away from marginality and illegality. However, the arbitrary behavior described herein has produced the opposite effect to the one desired.

The authorities should immediately correct their acts. The application of public policy requires diligence and coherence by the authorities responsible. Otherwise, the desired goals will not be attained, and even if they are, it will be done at the cost of the violation of the peoples’ human rights. According to the information gathered by the Ombudsman Office, the administration of the actions was not done in a coordinated and efficient manager by the various State agencies. Instead of State unity, there was a contradiction within the State, to the point that the result was a flagrant breach of binding agreements and promises.

Given the violation of human rights of the affected population, the State should spare no effort to repair the damage caused by its actions, materially and otherwise. The situation of the persons and communities affected also requires that immediate action be taken to help them satisfy their basic needs, since without this assistance, their survival may be seriously threatened.

12. That, finally, taking into account the facts and background set out above, and the jurisdiction of the Ombudsman Office, which is set out herein below:

- It is the function of the Ombudsman to supervise the exercise and enjoyment of human rights, pursuant to article 282 of the Colombian Constitution and Law 24 of 1992.

- It is the duty of the Ombudsman to make recommendations and observations to the authorities or individuals in the event of threats to or violation of human rights, pursuant to article 9, paragraph 3 of Law 24 of 1992..

- It is the duty of the Ombudsman to file regular reports on the results of investigations and publicly denounce violations of human rights, according to the stipulations set out in article 9, paragraph 22, Law 24 of 1992.

BE IT RESOLVED THAT:

1. IT IS RECOMMENDED THAT within the next 48 hours following the issuance of this Resolution, the National Anti-narcotics Council shall meet and order the immediate suspension of the fumigation of illegal crops in Putumayo state and in any other area of the country until:

- The National Department of Anti-narcotics and the Anti-narcotic Police have available the geographic references for all the projects financed by the Plante or by other national and international institutions, whether part of the Colombia Plan or not, where the objective of said plan is alternative development and the improvement of socioeconomic, environmental, and cultural conditions of the population living in the areas affected by the illegal crops.

- A determination is taken regarding the treatment of the communities who have demonstrated their intention to perform manual eradication, through the signing of pre-agreements, or any other similar declaration, but where the process of negotiation with the State has not yet finalized with the signing of a “Pacto de Erradicación Manual y Desarrollo Alternativo” or Pact for Manual Eradication and Alternative Development.

- The National Anti-narcotics Council, in a plenary session, should approve the geographically referenced information and agree not to fumigate any of the projects mentioned therein, pursuant to the stipulations set out in article 3 of Resolution 005 of 2000, issued by this entity.

2. THE OMBUDSMAN OFFICE EXHORTS the entities and organs responsible for the drafting and execution of the National Plan for the Fight against Drugs, Colombia 1998 – 2002, to comply with the application of the coordinating mechanisms set out in the Law, regulations and documentation of the Plan. In the event these are insufficient, they should create whatever is necessary to avoid contradictions and additional prejudice to the population.

3. THE OMBUDSMAN OFFICE EXHORTS the entities and organs responsible for the drafting and execution of the National Plan for the Fight against Drugs, Colombia 1998 – 2002, to coordinate their respective administrations to create conditions that will encourage confidence in the communities, and particularly, in terms of the negotiating processes that will foster manual eradication of illegal crops and the putting into place of alternative development programs.

4. THE OMBUDSMAN OFFICE EXHORTS the National Anti-narcotics Council to demand the effective fulfillment of the phase to identify areas of illegal crops as set out in article 2 of Resolution No. 005 of 2000.

5. THE OMBUDSMAN OFFICE EXHORTS the Inter-institutional Technical Committee, as stipulated in article 6 of Resolution No. 005 of 2000, to define the procedures for complaints presented regarding the fumigation carried out in Putumayo since December, 2000.

6. THE OMBUDSMAN OFFICE RECOMMENDS that a representative of the Presidential Plante program be named as a member of the National Anti-narcotics Council, and therefore, requests the respective regulatory changes be undertaken.

7. THE OMBUDSMAN OFFICE EXHORTS the National Anti- narcotics Council, the National Anti-narcotics Department and the Anti-narcotics Police to ensure respect for the right of indigenous peoples to employ coca leaves for traditional purposes, in that this plant is fundamental to their physical and cultural integrity, and in this regard, to ensure that the fumigation does not prevent these traditional uses.

8. THE OMBUDSMAN OFFICE URGES the Red de Solidaridad Social to immediately attend to the nutritional needs of the Putumayo communities affected by the fumigation.

9. THE OMBUDSMAN OFFICE URGES the Red de Solidaridad Social to encourage the active participation of the indigenous authorities or their representatives in the Municipal Committees to assist the Displaced Populations, and work together with these representatives to develop a strategy for food distribution.

10. THE OMBUDSMAN OFFICE REQUESTS the National Department of Indigenous Affairs under the Ministry of the Interior to, as part of its mandate, call upon the national government institutions responsible for servicing the indigenous communities in Putumayo, to meet and draft comprehensive contingency plans, designed to guarantee the right to life and physical integrity and protect the collective rights of the population. In addition, this group should follow up, monitor, and verify compliance with the measures adopted pursuant to such plans.

11. THE OMBUDSMAN OFFICE EXHORTS the National Government to define the necessary procedures for the immediate indemnification of the communities affected by the dusting operations in Putumayo carried out during the months of December and January.

12. THE OMBUDSMAN OFFICE ORDERS the National Department of Legal Recourses of the Ombudsman Office to file the relevant legal actions for the effective protection of the rights of the indigenous communities in Putumayo where these have been affected by the fumigation, to ensure the respective indemnification of damages, unless the respective entities, within a reasonable time limit, restore the rights that were infringed.

13. THE OMBUDSMAN OFFICE ORDERS the Delegate Ombudsman for Collective Rights and the Environment and the Delegate Ombudsman for Indigenous Peoples and Ethnic Minorities to follow up on this Resolution.

14. THE OMBUDSMAN OFFICE SUBMITS a copy of this Resolution to the members of the National Anti-narcotics Council, the Vice President of the Republic of Colombia, the Councilor for Peaceful Coexistence and Citizens’ Safety, the Ministry of the Interior, the Directors of the Colombia Plan, the Plante, the Red de Solidaridad Social and the National Anti-narcotics Department.

15. THE OMBUDSMAN OFFICE WILL INCLUDE this report and Resolution, as well as the results of the follow-up thereto in its Annual Report, which will be presented by the Ombudsman to the Colombian Congress.

EDUARDO CIFUENTES MUÑOZ
Colombian Ombudsman

As of February 21, 2001, this document was also available online at http://www.defensoria.org.co/resolucionambienteteng.htm