Auto 004 of 2009

In 2004, the Constitutional Court of Colombia decided case T-025, where it declared an unconstitutional state of affairs in regards to the situation of millions of internally displaced persons (IDPs) due to the country’s armed conflict. The unconstitutional state of affairs was due to the massive human rights violations associated with systemic failures in the safeguarding of IDPs by the State. In order to put an end to the unconstitutional state of affairs, the Court established a structure for follow-ups that consisted of two types: (1) special proceedings to evaluate the progress made by various state agencies, in which agencies were required to provide periodic reports on their compliance with the Court’s orders; and (2) autos de seguimiento, additional written materials from the court which expanded and clarified the Court’s orders in T-025, with specific focus on groups of persons at greater vulnerability and disproportionately impacted by the internal armed conflict. Auto 004 of 2009 is one of such orders, referring specifically to the situation of Indigenous Peoples. 

Date of the Ruling: 
Jan 26 2009
Colombia Constitutional Court, Second Chamber of Review
Type of Forum: 

In this Auto, the Court was gravely concerned with the threat that internal displacement posed to the existence of Indigenous Peoples in Colombia. The Court attributed this threat to three main factors: (1) rupture of structures and community disintegration; (2) culture shock outside of their ancestral lands; (3) getting caught in the middle of the violence. 

The disintegration of Indigenous communities is a result of both threats on their ancestral lands as well as threats in their urban settings during and post-displacement. As to the first reason, the occupation of armed factions of Indigenous territories has been pervasive and consistent throughout the armed conflict. Indigenous Peoples’ territories are used as battlegrounds– including the installation and disbursement of land mines, as centers of operation for armed factions, and have generally been occupied by armed actors. 

This has not only generated fear and tension within Indigenous Peoples’ of their safety and wellbeing, but has also resulted in the targeting of Indigenous Peoples by armed actors. The Court found that Indigenous Peoples are frequently accused of being collaborators and informants are thrust into the middle of the conflict between factions. This means that they are not trusted by either armed factions, State factions, or otherwise, given that they are caught in the middle and the various armed groups thus treat them with skepticism and mistrust. 

The targeting results in increased and severe violence against Indigenous Peoples. For instance, the armed actions have systematically used extrajudicial killings against Indigenous leaders who try to advocate for their communities. They have also destroyed homes and crops, limited the mobility of Indigenous people across their lands, stolen food and goods, forcibly recruited minors into the armed operations, forced prostitution of Indigenous women and girls, murdered and threatened teachers and human rights defenders, used Indigenous people as human shields during shooting confrontations, and occupied community spaces, such as schools and community centers. 

Beyond the armed factions intruding into Indigenous Peoples’ ancestral lands, third-party actors engaged in illicit activities on their land have also used the chaos of the armed conflict to occupy Indigenous territory for their illicit profit-making activities. This has been facilitated by the lack of title ownership by Indigenous Peoples to their ancestral territories , which emboldens actors to “invade” said lands for their illegal activities. These include mining, monoculture plantations, and timber harvesting, among others. These activities run counter to the relationship Indigenous Peoples have with their land and thus complicates the ability of these communities to pass down cultural values and knowledge deeply tied with the land. Additionally, this is compounded by their inability to connect and pass down this knowledge when their lands fall victim to over-deforestation and serious environmental harm. 

During the armed conflict, armed factions also used occupied Indigenous land to plant profit-making crops such as coca leaves. This led the State to fumigate large swaths of coca leaf plantations, through the use of planes, which proved seriously destructive to Indigenous Peoples access to food, access to healthy, uncontaminated water, as well as leading to health concerns, including dermatological and respiratory complications. 

The compounded suffering in their ancestral lands led thousands of Indigenous Peoples in Colombia to leave, the majority of them deciding to congregate in urban settings and cities. This in turn has led to new challenges in this new setting. For one, the Indigenous Peoples’ structures– which rely heavily on ties to ancestral lands– are threatened without this important marker in the urban setting. The distance from their lands also complicates their ability to preserve cultural memory and cultural practices because they are unable to farm and eat traditional foods and have no way to perform traditional medicinal practices without their access to lands. This culture shock is transferred onto younger generations living in cities and urban environments, who, without these socio-cultural markers, do not understand the weight and importance of cultural norms such as respect for elders. 

Even beyond the extermination of cultural norms, Indigenous Peoples in urban settings face serious barriers to accessing basic needs because they may not speak Spanish,  may not read and write, may be apprehensive of loud and vast city landscapes, and may not fare well in spaces where they do not know their peers and thus cannot be in solidarity with their communities. 

This is compounded by structural discrimination. The Court found much of the dire and severe situation of Indigenous Peoples in Colombia due to the armed conflict was due to structural discrimination by the State. For instance, even though the State had initiated two projects aimed at understanding the particular situation of Indigenous Peoples displaced by the armed conflict, the Court found that it had taken the State seven years only to design how these programs would be implemented. The Court expressed shock over the “generalized indifference when faced with the horror that Indigenous communities have had to experience throughout the last years– indifference which itself is a disparagement of basic constitutional postulates that govern us as a social state of law based on respect for ethnic and cultural diversity” (our translation). 

Specifically, Indigenous women report having to fight for visibility of their situation. As one Indigenous woman stated during public hearings,

we are left in charge of our families, accepting activities that are not traditional to our cultures, such as domestic work, or in the worst case, even selling our bodies. As Indigenous women, we have to fight to be recognized as displaced persons, to fight to have access to health and education that is not our own, to eat food that is foreign to our culture and our bodies, to see that our families to not disintegrate and our children do not lose our culture.

The Court saw the situation of internally-displaced Indigenous Peoples to affect both their collective and individual rights to life, personal safety, freedom from cruel and inhumane treatment, and dignity. This is on top of the numerous human rights violations that affect the general displaced population identified by the Court in T-025 of 2004. 

Many Indigenous persons, unable to cope with the serious affectations to their existence as ethnic groups, as well as more basic things like extreme poverty, return home, only to be revictimized by armed factions that occupy their ancestral lands. 

Understanding the main priority to be avoiding the extermination of Indigenous Peoples, the Court issued the following orders:

  • Within six months, implement a program for the Guarantee of Rights of Indigenous Communities Affected by Displacement, which must include prevention and mitigation aspects to the numerous affectations of human rights suffered by these communities; and
  • Specific protection measures for all thirty ethnic groups who are at risk of extinction, including the prevention of internal displacement. 
Enforcement of the Decision and Outcomes: 

Auto 266 followed up on the decision and found a low compliance level. The Court found severe situations of discrimination, stigmatization, and marginalization in urban spaces as well as an accelerated loss of cultural life in their territories. In the urban setting, this included extreme poverty, marginalization and food insecurity, inability to access clean water and basic hygiene. Additionally, the follow-up report noted Indigenous people in urban settings are unable to practice cultural norms central to their continued existence because they are focused on surviving through these highly precarious living situations in displacement. 

Structural discrimination also continues rampant, with Indigenous and Afro-Colombians being relegated to substandard housing, including coliseums, schools, sport stadiums, abandoned hospitals and economically depressed zones in the outskirts of cities. These substandard housing structures, which are themselves decrepit and run down, further exacerbate tensions within the communities and result in increased incidents of intrafamily violence, lack of respect for elders, and traditional authority figures, and rift in younger generations with their cultural and ethnic background, among others. 

This also extends to Indigenous Persons who remained in their territories, due to the continued deterioration of their lands by armed actors and illegal actors with economic interests. This includes a pervasive practice of forced recruitment into armed groups and forced labor in the production of cocaine and other drugs. 

For those who left and then returned, fleeing situations of extreme poverty and precarity in urban settings, the return is complicated by the lack of knowledge of how to operate their lands upon return, and the lack of interest and investment by the younger generations in reconnecting with their ancestral lands. 

To all of this, the Court found pervasiveness of lack of funds allocated to deal with this problem, as well as systemic lack of coordination to implement the ordered programs, thus necessitating further judicial oversight of the plight of internally displaced Indigenous Peoples. 

Autos 173 of 2012 specifically surveyed the situation of the Indigenous peoples of Jiw o Guayabero and Nukak from the regions of Meta and Guaviare. Auto 382 of 2010 surveyed the situation of the Indigenous peoples of Hitnú o Macaguán in the region of Arauca. 

Significance of the Case: 

The armed conflict greatly expedited the speed with which Indigenous Peoples in Colombia feel the threat to extinction of their cultures. Not only do they suffer from the structural discrimination that has led to them not having ownership of ancestral lands, for instance, but they also suffer disproportionately at the intersection of identities. For instance, Indigenous women, as Auto 092 showed, are at a much higher risk of being victims of sexual violence than non-Indigenous women and girls. This pattern rings true for other intersecting lines, such as disability, and age. Therefore, it is promising that the judiciary document the jarring statistics on the impacts of displacement on Indigenous communities, and it is also imperative that the State continue to work towards fulfilling the minimum requirements as outlined by the Court.