Auto 251 of 2008

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 251 of 2008 is one of such orders, referring specifically to the dire situation of children and adolescents. 

Date of the Ruling: 
Oct 6 2008
Colombian Constitutional Court, Second Chamber of Review
Type of Forum: 

Under Colombian constitutional law, children must receive priority in care and safeguarding of their rights. Despite this, over fifty percent of the internally displaced population in Colombia is made up of children and adolescents below the age of 18. The Court in this case found that the governmental response has been largely inexistent and inefficient in resolving the myriad violations of childrens’ human rights. For one, the current aid system for displaced persons does not treat children as rights-holders themselves, but rather as beneficiaries or dependents of their parents, who are deemed the “official” right holders for purposes of receiving government aid. This renders their situation invisible. Additionally, children have not been granted the constitutionally recognized priority they deserve, nor have they been treated with a differentiated response that recognizes and mitigates childrens’ disproportionate impact from displacement. Further, the response has been delayed and fragmented, non-specific to the needs of children, and lacking in resources and a preventative focus.

Generally, children are disproportionately affected by a set of intersectional factors, which the Court summarized as follows: (1) lack of protection when faced with many risks to their personal safety; (2) hunger and malnutrition; (3) chronic health issues; (4) educational access issues; (5) psychological issues; (6) limited access to recreational activities; (7) inability to exercise their right to participation and organization; and (8) inability to access protections as defenseless victims of the armed conflict. 

First, the Court found children experience high levels of risk to their personal integrity. This threat is heightened during the emergency phase of displacement, where the absence of family and caretakers means higher lack of protection and higher risk of harm. Indeed, this initial stage of displacement marks the highest incidences of child labor, sexual violence, child trafficking, intrafamily violence, and kidnapping. Additionally, the forced recruitment of children into armed factions threatens their personal safety, along with the explosions of abandoned mines throughout their communities.
Second, the Court found that displaced childrens’ “principal cause of suffering” was hunger. Displaced children experience chronic malnutrition, even from the womb, with 23% of pregnant women reported to be nutritionally deficient. Food programs, while making an effort, fall significantly below the demand for food needed by displaced children. This is particularly harmful for children and adolescents because it stunts their developmental growth. 

Third, displaced children experience chronic health concerns, many of them stemming from malnutrition and access barriers to hygiene. Children and adolescents in displaced communities die from (1) gastrointestinal issues; (2) respiratory conditions; (3) dermatological diseases or (4) preventable viral diseases. These conditions are largely avoidable. However, displaced children have no access to basic public services nor basic sanitation, so they live amongst trash, human and animal feces, and no sewer systems. Additionally, temporary housing is built precariously with weak materials that are not water nor wind resistant. This, combined with the fact that children do not have access to proper clothes, weakens their immune system and causes respiratory issues. Among other health issues noted by the Court, the following were of gravest conditions: lack of vaccine access, adolescent pregnancy, lack of access to sexual and reproductive health; prenatal care, and oral hygiene. 

Barriers to accessing proper health care exacerbate the situation, including the long distances children need to traverse to receive care, the significant portion of displaced children who have not been registered within the system of social protection to receive care; and the municipalities will refuse service to people from different municipalities. 

Fourth, displaced children face serious barriers to accessing education, due in part to: lack of monitoring; living long distances away from schools; lack of necessary school materials; child labor taking up their school time; mistreatment and racial and gender discrimination in the school setting; teen pregnancy; and safety concerns related to the armed conflict that limit their mobility. This is a direct violation of Article 28 of the Convention on the Rights of the Child which guarantees the right to education for every child, in a context with conditions of equality of opportunities. 

Fifth, the continuous situation of trauma stemming from violence, forced displacement, poverty, hunger, sickness, discrimination, stigmatization, maladaptation, uprooting, cultural shock, and broad dispossession, deeply affects childrens’ psychological health, leading to cognitive and emotional difficulties. Children, unable to process their grief in a safe space and for a reasonable length of time, remain in a constant state of fear and anxiety. 

Sixth, displaced children have a pronounced need to exercise their right to recreation through play and access to opportunities and recreational spaces apt for their ages. This would mitigate the multiple psychological issues that afflict displaced children. Children themselves have voiced this desire to the Court during public hearings. However, due to displacement, there are hardly any safe recreational spaces, no toys, no energy to play due to their hunger and malnutrition, and no time to play due to child labor, among many other reasons.  

The Court found that all of these factors are felt more acutely by displaced children in a few specific scenarios. First, as alluded to earlier, the emergency phase of displacement not only threatens the physical safety of children but also marks the highest moments of psychological vulnerability, uprooting, and fear, propagated by lack of information and uncertainty about their rights and existing structures to protect them. During this time, family nuclei are disintegrated or reconfigured, with primary caretakers disappearing or being separated from their children, and with women becoming heads of their households and older adults assuming more primary caretaking roles. During this time, caretakers are precarious; they do not know where nor who to turn to for help, and they often lack access to shelters and sanitation. This precarity disproportionately affects children in the family unit and thus this initial period of displacement marks the highest incidences of child labor, sexual violence, child trafficking, intrafamily violence, kidnapping, and forced recruitment. 

Children are especially vulnerable to becoming victims of generalized crime during the armed conflict, including forced recruitment, forced bomb carrying, human trafficking, sexual violence, among others, which leads them to migrate. In 2006, around 11,000 to 14,000 children were recruited into armed factions of the internal conflict. Around 1 in 4 children who are serving in an armed faction are under the age of 18. This extends across the entire country. Usually, child recruits engage in three types of activities: active combat, tactical support to active combatants (night watch, messengers, clear out forests, bury combatants); and helping active combatants with basic needs (cook, wash clothes, care for the sick, agricultural work). Girls suffer continuous sexual violence. Similarly, children forcibly recruited into drug trafficking face serious threats to their safety and health, due to their primary roles being in the production of the drug itself. 

The causes of such a prevalent phenomenon can be attributed to the lack of reporting in communities, authorities’ inaction, and the general invisibility of these children, as well as the lack of family members around or general safety nets and support networks. 

The second scenario with most acute human rights violations for children occurs during the infancy to adulthood phase (0 to 6 years of age). This is because there is a high risk of children becoming orphaned or separated from their parents or caretakers. During these stages, children need the most food and nutrition, yet they are still malnourished even though they are the ones that most eat. Additionally, children in these ages experience health issues more acutely, many of them brought on by avoidable causes such as malnutrition and lack of hygiene. 

Finally, adolescents face aggravated violations to their human rights during displacement. While they experience some of the most aggravated risks to their personal safety, adolescents are largely invisible to the society as a whole. Despite this stage being critical for the development of their identity, they receive the least amount of protection/attention from public policies aimed to protect the displaced population. For instance, they are the last age group to receive food distributions and due to lack of information and knowledge on reproductive health, they face major issues with sexual health. Finally, adolescents between the ages of 15 and 18 are mostly ignored by authorities regarding their right to education. 

Adolescents are also frequent victims of codes of personal conduct imposed on occupied communities. Teenagers who are in a time of personal development and growth, are stifled in matters of identity and expression. For instance, adolescent girls cannot wear shirts with cleavage or short skirts, and boys cannot leave their hair long nor use bracelets. In general, they are not allowed to play on the street and they have to abide by the curfew. Not abiding by these rules can lead to forced labor, torture, and even extrajudicial killings and is also a direct cause to forced displacement. 

In response to this situation, the Court ordered the creation of three pilot programs for children and adolescents that focus on three main components: prevention of forced recruitment of children, prevention of mines and munities exploding on children, and prevention of victimization of children through the use of social control rules by armed factions. Additionally, the Court ordered the creation of another twelve programs throughout the country tailored to each specific region and the specific challenges children and adolescents face there. Finally, the Court ordered the government to resolve the pending petitions of 18,000 individual cases of babies, children and adolescents. Within this order, the Court gave the government fifteen days following the publication of the decision to provide emergency humanitarian aid to help parents keep their children in school. Additionally, it requested an expert analysis of nutrition, health, educational, psychological health and measures to improve them for all 18,000 children, ordered the 18,00 children be registered as their own beneficiaries in a program for protection of children and requested detailed reports on the compliance of these orders for all 18,000 children.

Enforcement of the Decision and Outcomes: 

Auto 333 of 2015 found that children continue to be affected severely by the armed conflict. In 2012, the Court reports around 65 children died due to the explosion of field mines, and 43 children died as a result of crossfire between armed factions. Between 2012 and 2013, around 381 cases of forced recruitment of children were reported. Notably, a significant portion of the children affected are Indigenous. The Court found that from 3,918 cases of children affected by forced recruitment, over 500 of those children belonged to Indigenous Peoples. Around 87.5% of regions in Colombia continued to experience issues of forced recruitment of children by the various armed factions. This was exacerbated by the inconsistent information gathering of the national government, as well as the incomplete and lacking response in the face of verified risks to children. For instance, even though in 2011, the national government had identified 118 cases of risk to children, it intervened only in 46 of those cases. 

Auto 765 of 2018 found a continuous low level of compliance by the government in implementing measures to lower the deadly and harmful consequences of the armed conflict and displacement on children and adolescents. It summarized statistics on the effects of the conflict on children: by 2018, 481 children had been victims of mine explosions, 295 children were tortured, 587 had been kidnapped, 1,610 had been victims of forced imprisonment and sexual violence, 6,330 has been forcibly disappeared, 37,434 had been victims of homicide or extrajudicial killings, and 97,349 lived under constant threats of death or serious bodily harm. Of the over 2 million children displaced between 2010 and 2016, only 13,351 had entered programs for specialized support and protection. In 2017, 24% of deaths due to field mine explosions were children. 

Significance of the Case: 

This case attempts to document and improve the conditions of the most vulnerable population in the armed conflict and in displaced settings. Children are particularly vulnerable to violence because they lack the tools to defend themselves and to protect themselves from trauma. Additionally, the deprivation of health, education, food, personal integrity, and other essential rights, is particularly damaging for children and adolescents who are still developing themselves physically, mentally and emotionally.