IACHR

ANNEX - Preliminary Observations

IACHR Concludes Visit to Colombia's Border with Venezuela

September 28, 2015

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Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) concluded its visit to the border of the Republic of Colombia with the Bolivarian Republic of Venezuela from September 10 to 12, 2015. The purpose of the visit was to monitor the human rights situation of Colombian migrants, refugees, and asylum-seekers who have been deported or have returned to Colombia following the closure of the main border crossing point between San Antonio in Táchira state, Venezuela, and Cúcuta, Department of Norte de Santander, Colombia, on August 19, 2015, and the declaration of a state of emergency by the President of the Bolivarian Republic of Venezuela, Nicolás Maduro, on August 21, 2015.

In accordance with the rules that govern its mandate, the IACHR sought the necessary consent from the Republic of Colombia and the Bolivarian Republic of Venezuela; however, it only received an affirmative response from the Republic of Colombia, with the result that the visit could only include that country. The IACHR regrets deeply the lack of a response from the Government of the Bolivarian Republic of Venezuela to the request to visit Venezuela and observe in situ the human rights situation that prompted this visit.

The IACHR delegation was composed of Commissioner José de Jesús Orozco Henríquez, Rapporteur for Colombia; Commissioner Felipe González, Rapporteur on the Rights of Migrants and Rapporteur for Venezuela; Executive Secretary Emilio Álvarez Icaza; and Karin Mansel and Álvaro Botero, specialists of the IACHR Executive Secretariat. In the course of its visit, the IACHR delegation visited Bogotá as well as Cúcuta and Villa del Rosario in the border area of the Department of Norte de Santander, Colombia. The IACHR also had meetings with Colombian state officials, civil society organizations, victims of human rights violations, and representatives of the United Nations system, the Mission to Support the Peace Process in Colombia of the Organization of American States (MAPP/OAS), and the International Organization for Migration (IOM) in Colombia.

During the visit, the IACHR delegation visited the Simón Bolivar International Bridge and the informal crossing or trail located in the area known as La Playita on the banks of the River Táchira on the border between Colombia and Venezuela. The IACHR also visited five shelters set up for deportees and people who had returned to Colombia: the shelters at El Morichal, the one at Francisco de Paula Santander University, the one at the Scalabrinian Missionaries Migration Center, and two hotels in Villa del Rosario. At the time of the visit, the Colombian State had plans to house 2,968 people at 23 temporary shelters and hotels in the municipalities of Cúcuta and Villa del Rosario.

The Commission would like to thank the President of Colombia, Juan Manuel Santos, his government, and the Colombian people for all the facilities provided for conducting the visit. In particular, the IACHR values and is grateful for the support and information furnished by government authorities at the national, departmental, and local level, in addition to that provided by civil society organizations and international agencies. The Commission would like to express particular appreciation and thanks to the persons affected who approached it to present testimonies, complaints, and communications.

Throughout the visit the IACHR saw for itself the serious humanitarian crisis that is affecting the deportees and people who returned out of fear and because of the grave situation in which they found themselves in Venezuela. The IACHR has verified that the Colombian State has been raising the quality of its response, particularly in terms of making available accommodation, healthcare, and food. Therefore, the IACHR would like to express its recognition for the State of Colombia’s efforts and hopes that the quality of the response is maintained for as long as this humanitarian crisis continues and until lasting comprehensive solutions have been reached that ensure full integration for all those affected in Colombian society.

During its visit, the IACHR received troubling reports about the way in which the deportations from Venezuela were carried out, suggesting that those individuals suffered multiple human rights violations and were subjected to collective expulsion. In this context, the IACHR received serious complaints alleging violations of the rights to liberty and to personal security and integrity; to equality before law; to protection of honor, personal reputation, and private and family life; to protection for mothers; to protection for children; to residence and movement; to the preservation of health and to well-being; to education; to work; to inviolability of the home; to property; of protection from arbitrary arrest; to judicial protection and due process of law; and to seek and receive asylum; as well as of the principle of non-refoulement.

The Commission notes that historically there has been a dynamic of sustained migration between Colombia and Venezuela. The impact of Colombia's internal armed conflict and other forms of violence, as well as the search for opportunities for better employment and a better life have acted as expulsion and attraction factors that have led Colombians to migrate to Venezuela in significant numbers in recent decades. According to the United Nations Population Division, by 2013 there were 820,000 Colombians living in Venezuela.

Time and again, the Commission received testimonies and information to the effect that on August 21, 2015, the situation became critical at the migration points of Villa del Rosario in Colombia, and San Antonio del Táchira, in Venezuela, due to the arrival en masse of deportees from Venezuela or persons who had decided to return to Colombia for fear of deportation. The closure of the frontier would also appear to have severely impaired the social dynamics of that border area—where historically people living on both sides of the frontier had typically moved freely—causing serious harm in terms of access to health services, education, work, and goods and services. As a result of these circumstances, this zone is in the grip of a humanitarian crisis.

The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) reported that between August 21 and September 9, 1,482 Colombians had been deported from Venezuela through the departments of Norte de Santander, La Guajira, Arauca, and Vichada. According to the OCHA, a further 19,952 Colombians had returned to Colombia owing to the situation that they faced in Venezuela, where many of them were having difficulties getting food and obtaining access to health care services as well as being subjected to discrimination and persecution, not only by the authorities, particularly the Bolivarian National Guard, but also, in some cases, by private citizens. The total number of deportees and returnees came to 21,434 people.

During its visit, the IACHR received a report from the Colombian Ombudsman, Jorge Armando Otálora Gómez, which stated that between August 22 and September 7, 1,654 complaints had been registered corresponding to 345 deportees and 1254 returnees. The report indicated that 73 percent of those who filed complaints had been in an irregular immigration status in Venezuela. Of the complaints received, 931 were lodged by women and 723 by men. Furthermore, the complaints filed registered a total of 2,027 children, 439 adolescents, and 195 older persons adversely affected by the grave humanitarian situation caused. The report also indicated that 60 percent claimed to live in conditions of extreme poverty, which had been made worse by the loss of their homes, property, goods and chattels, and jobs upon their departure from Venezuela. The Ombudsman's Office also reported that 26 percent of this group said that they had been victims of the armed conflict in Colombia.

The Ombudsman's report also recorded that a further 94 complaints were received between September 8 and 10, taking the total number of complaints received to 1,748. The report also registered 623 complaints of physical and verbal abuse, 554 instances of family separation, 302 acts of theft or dispossession of property, 203 demolitions of homes, 187 instances of withholding and/or destruction of identity documents, 106 deprivations of liberty, and 6 cases of sexual violence. Also registered were 2 cases of deportation of refugees, 2 cases of deportation of asylum-seekers, and 2 cases of forcible return.

Upon visiting the shelters and hotels, the IACHR noted that many of the deportees and people who had returned on their own initiative were families with young children, some of whom were days old, and even cases of children who had been born in the shelters a few days earlier. The IACHR also observed pregnant women, chronically ill people, and older persons. Some of these individuals, particularly the children, were Venezuelan nationals. People to whom the IACHR delegation spoke said that they had lived in Venezuela for several years, including periods that went from a year and a half to more than 40 years.

As to their reasons for having migrated to Venezuela, a significant portion of the deportees and returnees who provided the IACHR delegation with information said that they had already been internally displaced in Colombia more than once as a result of the violence generated by the armed conflict or because of natural disasters, and that those and other situations had led them subsequently to migrate to Venezuela.

A substantial proportion of those interviewed by the IACHR said that they had been deported en masse and that those procedures did not offer the guarantees of due process. As regards the different ways in which the deportations or returns of Colombians had occurred since these events began, many told the IACHR that on August 21, agents of the Bolivarian National Guard (GNB) had knocked on their doors or demolished their homes. They then demanded to see their identity documents and, upon identifying them as Colombian nationals, requisitioned their homes, evicted them, and took them to a field where they were made to stand in the sun without water, food, or toilet facilities for several hours—as many as 12 hours in some cases. They said that the agents told him that they were to undergo a census or “legalization.” They were then driven in groups aboard military convoys to Simón Bolivar International Bridge. Some said that, once there, they had a complete set of fingerprints taken, were photographed, and then deported. Others said that the agents gave them 24 hours to leave the country.

The persons interviewed consistently said that during these operations they were victims of theft of their effects and money by agents of the GNB, and that their homes were demolished together with their goods and chattels. Some claim to have been shoved and beaten by the agents, while others said that the children were mistreated and scolded. At the same time, some deportees said that they had not suffered mistreatment.

Of the persons interviewed by the IACHR, almost half said that they had decided to return on their own initiative because of fear of harassment of Colombians in Venezuela, as well as the impossibility of buying food or obtaining other services because, as Colombians, they were refused sale or access. They said that for some months they had not been allowed to buy food in the markets, where people had also been detained by the GNB. Among the acts of harassment, some people interviewed described being insulted for being Colombian by agents of the GNB, who repeatedly referred to them as “paramilitaries” or “paracos” (Tr: slang for paramilitary) if they were men, and “whores” in the case of women. They also said that for some time various Venezuelan officials had being issuing public statements, blaming Colombians for crime and the lack of certain products in Venezuela, which had fomented discrimination against Colombians.

As regards people who returned to Colombia of their own accord, the information supplied by them consistently indicated that they had decided to return upon seeing how the authorities were carrying the deportations and that they had reached Colombia by crossing the River Táchira along trails on the border in the Department of Norte de Santander. Some said that they had paid money to GNB agents to enable them to cross the frontier.

CIDH visita la frontera de Colombia con Venezuela

Equality and non discrimination: Immigration operations targeting Colombians

The Commission notes that when the state of emergency was declared and the border closed, there was a military buildup in the frontier region involving the deployment of an additional 1,500 troops to Táchira. The IACHR received information that Venezuelan officials had raided and destroyed homes located along the bank of the River Táchira, where shantytowns mainly inhabited by Colombians had sprung up.

The Commission has rejected identity control operations or immigration or police raids based on the national origin of a particular group of people, carried out in public places and neighborhoods with a high concentration of migrants in order to detain those with irregular status. The IACHR considers that the immigration raids and operations in neighborhoods and areas predominantly inhabited by Colombians amounted to a practice that violated the principle of equality before the law enshrined in Article II of the American Declaration.

Integrity and inviolability of the home and property: Excessive use of force in evictions

The IACHR delegation received testimonies from Colombians deported from Venezuela stating that Venezuelan officials had removed them from their homes either forcibly or by means of deception and that the officials committed abuses and used excessive force before proceeding arbitrarily and collectively to deport them. The Commission received copious reports that Venezuelan officials marked homes “R” (for revisada or “checked”) and painted the letter "D" (for demolish) on the homes of Colombian nationals, before proceeding to demolish those homes, after evicting and arbitrarily deporting the people who had lived there. The way in which the operations were carried out (by violently bursting into homes or using deception) meant that these people were prevented from taking their documents and goods and chattels with them. The Commission notes that this information is consistent with the information compiled by the Ombudsman's Office in its report.

The Commission believes it necessary to emphasize that within any immigration control procedure, States are obliged to guarantee that their authorities respect the rights to life and physical and psychological integrity of all persons, regardless of their immigration status. Likewise, the IACHR recalls that rape and other forms of sexual violence against a detainee by an official of the State must be regarded as an especially grave and abhorrent form of torture, given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim. In particular, sexual violence against women is a gross violation of human rights.

The Commission also notes that at the time of their detention and subsequent expulsion, the deportees had no opportunity to gather their goods and chattels, personal effects, and cash that they had in their homes. In such circumstances, the Commission considers that the expulsion of the victims implied the de facto loss of all those items that remained in Venezuelan territory, which constitutes an unlawful and arbitrary deprivation of that property. Furthermore, in many cases, property was destroyed with the violent entry to, and demolition of, their homes by the Venezuelan authorities, in violation of the rights to property and inviolability of the home.

Immigrantion detention

According to the information supplied by persons interviewed and civil society organizations, the Venezuelan authorities detained Colombian nationals for periods of 12 to 14 hours (in some cases for days, reportedly), including children, persons with disabilities, people with chronic illnesses, and older persons, in places without the most basic sanitary facilities (without access to drinking water or food), without a court order, and without the possibility to challenge their detention. Reportedly, the detained persons were then summarily and collectively expelled to Colombian territory.

In keeping with Article XXV of the American Declaration and as the IACHR has held, the standard for the exceptionality of pre-trial detention must be even higher where detention of migrants is concerned because immigration violations ought not to be construed as criminal offenses. The facts under examination have also disclosed violations of the prohibition against the detention of child and adolescent migrants.

In the context of the practices used in the detention of Colombian migrants in Venezuela, the Commission considers it important to reiterate that international standards establish that detention must be applied only as an exceptional measure and after having analyzed the necessity in each case. In all cases, states must avoid prolongation of detention and must ensure that it is as brief as possible. Furthermore, in addition to the effects that immigration detention can have on the right to personal liberty, detention can frequently have serious consequences for a detained migrant's personal integrity and his or her physical and mental health.

With regard to the situation of child and adolescent migrants, the Commission believes it necessary to underline that when they are deprived of their liberty they are at greater risk of torture and mistreatment owing to their vulnerability and unique needs. For that reason, the Commission considers that even short-term detention of child migrants is not only a violation of the rights of the child, but also amounts to cruel, inhuman, and degrading treatment.

Collective expulsions

In the course of its visit, the IACHR delegation was told that after being forcibly evicted from their homes, the Colombians were collectively deported from Venezuelan territory in a summary and arbitrary manner. The Commission wishes to recall that the Venezuelan State has an obligation to analyze and adopt a separate reasoned decision on each deportation that it carries out. Accordingly, the Commission reiterates that collective expulsions are manifestly contrary to international law. The IACHR recalls that the declaration of a state of emergency cannot abrogate the prohibition against collective expulsions.

The Commission has also established that collective expulsions generate multiple human rights violations. The summary manner in which expulsions of this type are carried out also results on occasion in the expulsion of nationals, residents, or persons in need of international protection, many of whom are often children.

Due process for migrants

The IACHR also received abundant information concerning multiple instances of arbitrary and collective deportation of Colombians from Venezuela since early 2015. However, the Commission observes that since the closure of the frontier and the declaration of a state of emergency by the Venezuelan State in August 2015, the situation created by the deportations has worsened significantly. The information gathered by the IACHR suggests that these deportations are being carried out arbitrarily and in disregard of the due process guarantees of migrants, the principle of family unity, the best interests of the child, the right to humane treatment, and the right to property of these persons. The Foreign Status and Migration Law (Ley de Extranjería y Migración) (Law No. 37.944 of 2004) requires an administrative proceeding to be instituted against anyone with irregular immigration status in Venezuela, which at a minimum includes a notice of initiation of proceedings, a hearing, and an unchallengeable final decision.

The IACHR reiterates that, in keeping with international norms and standards, immigrants subject to proceedings that may lead to deportation must be afforded minimum guarantees. These include: (i) the right to be heard by the relevant authority in the context of the deportation proceeding and to have sufficient opportunity to exercise their right to a defense; (ii) the right to interpretation and translation; (iii) the right to have legal representation; (iv) the right to consular protection from the moment of detention; (v) the right to receive notification of a deportation order; (vi) access to an effective remedy to appeal a deportation decision; (vii) the right to appeal a deportation decision; and (viii) the right to suspension of deportation while the matter is under appeal. The information gathered by the Commission during the visit indicates that none of these guarantees was observed by the Venezuelan authorities in the context of the deportations carried out after August 21, 2015.

The right to seek and receive asylum and the principle of non refoulement

According to information provided by the OCHA, more than 150 Colombian asylum-seekers and refugees have been identified among the deportees and returnees. The information gathered by the IACHR suggested that in the framework of these events Colombian refugees and asylum seekers have apparently been deported or forcibly returned from Venezuela to Colombia. The IACHR delegation interviewed multiple individuals who were recognized as refugees or in the process of seeking asylum in Venezuela.

Article XXVII of the American Declaration recognizes the right to seek and receive asylum, the cornerstone of which is the principle of non refoulement. The Commission finds it necessary to recall that the obligation of states not to expel, repatriate, or return refugees or asylum-seekers to territories where their life or liberty are in danger is a basic principle of protection enshrined in the Convention relating to the Status of Refugees that admits no reservations. In many respects, the principle is the logical complement to the right to seek and receive asylum. It has become a standard of international law that is mandatory for all states. Furthermore, international human rights law has established non refoulement as a fundamental component of the absolute prohibition of torture and other cruel, inhuman, or degrading treatment or punishment. The Commission notes that Venezuela acceded to the 1967 Protocol to the Convention relating to the Status of Refugees on September 19, 1986.

The information gathered by the Commission indicates serious violations of the right to seek and receive asylum and of the principle of non refoulement, particularly in relation to the deportation or return of refugees and asylum-seekers to Colombia. Of the people interviewed, a considerable number of those who were recognized as refugees or applying for asylum in Venezuela said that they had been deported by Venezuelan officials to Colombia where their life, liberty, or physical integrity were reportedly at risk as a result of different forms of persecution and, in particular, violence connected with Colombia’s armed conflict. Some of them said that upon displaying their letter of asylum application or documents that identified them as refugees, they were torn up by GNB agents.

The IACHR is also concerned about the impact of the closure of the Colombia-Venezuela border on the right of refugees to seek international protection, which is limited when frontiers are closed, as it prevents the entry and departure of persons who are victims of persecution in their countries of origin and are entitled to international protection.

Family life and best interests of the child

The IACHR has also received a host of reports that many of those deported had been separated from their families, particularly parents who were separated from their minor children. In some case, adults have allegedly been deported to Colombia without their children and other family members. There were also cases reported of children and adolescents born to Colombian parents in Venezuela being retained. A number of women interviewed said that they had decided to return to Colombia after GNB agents threatened to take their Venezuelan children away from them, saying that "the children are for the fatherland." In addition, a number of people who were in Colombia said that they had been unable to return to Venezuela after the frontier was sealed, which had prevented them from being reunited with their families who were on the Venezuelan side.

The Commission notes that the Venezuelan authorities did not adopt special measures of protection for children who were deported; nor were those children identified at the time of their detention and deportation; nor were special measures adopted to keep them and their families separate from other adult detainees or to ensure their right to a hearing in connection with those matters. In addition, they were not given water, food, diapers, or access to special care. The Commission also received information concerning the adverse impact of the deportations on family dynamics, particularly because of the distress and anxiety that the families who were separated are suffering, especially when those separations involve children. Given the possibility that parents or relatives of persons entitled to Venezuelan nationality may be deported, the IACHR considers that proceedings that could l result in the deportation of such persons must take into consideration the principle of the best interests of the children of migrants and the right of the person subject to deportation proceedings to protection of his or her right to a family life and the principle of family unity, in keeping with human rights norms and standards.

In light of the information gathered and of the Venezuelan State's human rights obligations, the Inter-American Commission urges the Venezuelan State to adopt the following measures:

Establish jointly with the Colombian State a mechanism that would allow all the families separated as a result of the deportations that have occurred since August 21, 2015, to be reunited.
Implement jointly with the Colombian State a mechanism that would allow restitution of the property, goods and chattels of those deported and returned from Venezuela since August 21, 2015. With respect to property, goods and chattels that cannot be restored, adopt necessary measures to compensate the persons concerned for the loss of said property.
Put an immediate stop to any collective, arbitrary, and/or summary expulsion and to urgently adopt all necessary measures to guarantee that any undocumented migrant has access to immigration proceedings that provide guarantees of due process prior to deportation and that the principle of family unity be protected.
Adopt all necessary measures to ensure the enforcement of international standards on the use of force in immigration control operations; that migrant detention is used as an exceptional measure; the prohibition of the detention of child and adolescent migrants; detention in conditions commensurate with human dignity; and the prohibition of mass expulsions.
Adopt all necessary measures to ensure that refugees and asylum-seekers of Colombian origin are not deported or returned to Colombia.

Obligations of Colombia as the host state of deportees and returnees

With regard to the mass arrival of Colombians and, to a lesser extent, Venezuelans in Colombian territory, the IACHR received information about various measures that are being implemented by the Colombian state, civil society organizations, and international agencies to provide humanitarian assistance and protect the rights of those affected by the grave humanitarian crisis that has unfolded as a result of these mass deportations and returns. The Commission acknowledges the importance of the Colombian state's response, the emergency financial decrees that have been enacted, and the coordinated efforts of various state entities in delivering prompt assistance to address the extreme vulnerability of those affected by the mass deportations and returns from Venezuela.

Between late August (when the situation on the Colombia-Venezuela border began) and September 12, the Colombian State registered 15,176 people (including both deportees and returnees) in the Consolidated Disaster Victim's Registry (Registro Único de Damnificados - RUD), administered by the National Disaster Risk Management Unit (Unidad Nacional para la Gestión del Riesgo de Desastres - UNGRD). The RUD provides registered individuals with access to the institutional services offered by the Colombian state in terms of accommodation, rent allowances, access to health and education services, access to training through the National Training Service (SENA), access to jobs, and a host of other assistance measures targeting these people, which are made available by Colombian State institutions. In the course of the visit, the Commission was told about the concern of civil society organizations and people affected by the humanitarian situation regarding the decision of the Colombian State to close the RUD on September 9. In that regard, the Colombian authorities announced that the RUD would not be closed but that they would continue to analyze individual cases of people who might qualify for the registry and that it would do so more stringently in order to prevent fraudulent registrations.

In light of the ongoing deportation and return of Colombians via informal crossing places at other points along the Colombia-Venezuela border, the Commission urged the Colombian State to ensure that the RUD remained open to anyone who needed it for as long as the situation continued, as the officials with whom the Commission met had said it would. In light of the severe vulnerability of these individuals' predicament, the RUD needs to take their circumstances into account so that they can be effectively registered in the RUD and qualify for the humanitarian assistance and offer of institutional services envisaged by the Colombian State.

Given the serious vulnerability and defenselessness of the deportees and returnees, the Inter-American Commission underscores the importance that Colombian State adopt all necessary measures to ensure access for everyone affected to the RUD and to provide them with essential basic services, including access to housing, food, healthcare, and work, and that the necessary measures be adopted to enable the reunification of families and the recovery of their goods and chattels. The IACHR also appeals to the State of Colombia to implement measures to ensure the sustainable socioeconomic reintegration of deportees and returnees over the long term. Such programs should be based on differential approaches that take into account the vulnerability of each returnee and ensure that equal treatment is accorded in terms of state assistance and access thereto for all those who have returned from Venezuela.

The Commission was also troubled by reports concerning the situation of people who are not in Colombian state shelters—also known as the "self-sheltered,” who reportedly do not have the same level of access as the people in the shelters to the humanitarian assistance and offer of institutional services envisaged by the Colombian State. There were also concerns and about the situation of individuals who had arrived informally in other municipalities in the country and about Colombians in Venezuela who intend to return to Colombia, particularly those who return after the RUD is closed.

During the visit, the Commission also received worrying information about the increase in Venezuelans reportedly migrating to Colombia to escape different forms of persecution, and about the prospect of increased Venezuela migration and the need for the Colombian State to take the necessary steps to ensure effective access to international protection for anyone who may require it.

The Inter-American Commission will continue to monitor this and other serious problems that it has documented in the course of this visit and, using its various mechanisms, will put forward recommendations for overcoming this serious humanitarian crisis and ensuring comprehensive reparation for the human rights violations that have come to light in this situation.

No. 109A/15