Landmark Rulings, Lagging Implementation: Two Decades of Colombia Constitutional Court Decisions on Unconstitutional State of Affairs regarding Internally Displaced Persons
The decades-long armed conflict in Colombia has resulted in numerous deaths, injuries, and broader trauma and irreversible alteration of the fabric of Colombian society. One of the most affected populations in this conflict has been that of the people who have seen themselves forcibly displaced to flee violence and conflict-induced poverty. In 2004, the Constitutional Court of Colombia officially recognized the disproportionate impact of violations flowing from the conflict on displaced persons by declaring, through case T-025, an unconstitutional state of affairs in Colombia in regards to the displaced population.
The Court was moved to make this pronouncement after the court system became flooded with petitions for aid and relief by displaced persons, which had been set up provisionally by the Colombian national government to address their ongoing plight. Overwhelmed by thousands of petitions, the Court decided to address these issues in a structural, as opposed to individualized, manner. This way, relief could reach more displaced persons beyond the ones that had gotten over the myriad hurdles to have their cases heard before a court.
The T-025 decision and subsequent cases are a clear example of an engaged judiciary, taking affirmative steps to redress the structural issues plaguing Colombian society in the context of the armed conflict. By declaring a state of unconstitutional affairs, the judiciary was able to establish an oversight mechanism that would monitor the improvements it ordered the national government to implement. Indeed, not only did the Court issue the T-025 decision, declaring the state of emergency, but it also, from 2004 until 2020, has continuously issued autos de seguimiento--or follow up cases--that provide a differential analysis about the intersectional barriers affecting distinct groups within the displaced population who, because of their identities, suffer a disproportionate harm than compared to the general displaced population. The topics of said autos include women, Indigenous Peoples, Afro-Colombians, persons with disabilities, children, and human rights defenders (HRDs), as well as the effects of the sexual violence and the COVID-19 pandemic on the displaced population. Each auto included a set of steps that the government must implement to move one step closer to overcoming the unconstitutional state of affairs. Finally, each auto also had its own follow-up procedure, to ensure compliance with the Court’s orders.
Despite the landmark rulings advancing access to justice that T-025 and its subsequent autos represent, the implementation of these orders has been severely lacking. The unconstitutional state of affairs remains in place in Colombia today. While the Court has recognized some national government’s progress, much remains to be done to ensure that the economic, social and cultural and other human rights of the displaced population in the country are protected.
- T-025 Generally
In Colombian jurisprudence, an unconstitutional state of affairs exists when there is a (1) massive and recurring violation of fundamental rights of a certain population; (2) the massive violation of fundamental rights cannot be attributed to a single, specific circumstance but is rather structural in nature and linked to systematic governmental failures vis-a-vis the population at hand; and (3) individual claims of relief are insufficient because ; (4) massive relief is needed for the broader affected population.
The extent of structural violations of the rights of displaced persons was clear in 2004. The Court found that in that year 92% of displaced persons had unsatisfied basic needs, 80% of the displaced population was living in poverty, 63.5% had insecure housing, and 49% lacked access to appropriate public utilities. In terms of education, 25% of displaced children between 6-9 years of age did not attend school and more than half (54%) of displaced youth between the ages of 10-25 did not attend school. In terms of health, persons experiencing displacement had six times higher mortality rates than the national average.
In light of these severe conditions, the Court was concerned with the violation of the rights to (1) life; (2) dignity and physical, psychological and moral integrity; (3) family and family unity; (4) basic subsistence and the fundamental right to a minimum subsistence income, which guarantees safe access to essential food and water, basic shelter and housing, appropriate clothing, and essential medical services and sanitation – this includes emergency humanitarian aid and special assistance to persons not in a condition to assume their own self-sufficiency, such as children, older adults, and women caretakers; (5) health; (6) freedom from discrimination on the basis of the condition of being displaced; and (7) education until the age of fifteen.
Second, the crisis was not attributable to one single governmental entity. The underfunding of programs for displaced persons was pervasive across various governmental entities. Additionally, the Court found the state had failed to properly inform displaced persons of the various legal avenues of relief they could pursue and thus were not availing themselves of the (minimal) resources afforded to them by the state. This injury was exacerbated by the fact that the government had conditioned aid on the filing of certain requests for relief, which many did not know of and thus could not access. This decision also applied the framework of “unconstitutional state of affairs” because multiple entities were contributing to ongoing violations.
Third, individual claims of relief were insufficient to address the violations at hand. As noted, many displaced persons were unaware of the relief they could receive. However, even if the Court heard every single claim of relief, the government had not allocated enough funds to properly execute the relief ordered by the Court. Additionally, the type of aid allocated--mostly monetary--fell severely short of the structural change needed in Colombian society to truly redress the harms displaced persons suffered.
By declaring an unconstitutional state of affairs, the Court was thus able to outline the various constitutional duties and obligations of the national government and order specific policies to begin to redress the structural problems plaguing the national response to forcibly displaced people. Apart from their constitutional duties, the Court emphasized that the International Covenant on Economic, Social and Cultural (ICESCR) requires that States design and implement public policies that are conducive to the progressive realization of Covenant rights, noting: that inaction is not permissible; that States must utilize “all appropriate means”, including not only legal, but also administrative, financial, educational and social means; and that the measures must be targeted at advancing the enjoyment of rights, making “full use of the maximum available resources.”
The Court’s order had three main components. First, the Court tasked the National Council for Comprehensive Assistance to the Population Displaced by Violence (the Council)--the body charged with formulating the policy and securing the budget for the displaced population--with designing and implementing a plan of action to overcome insufficiency of resources and flaws in institutional capacity. The Council was given two months to define the dimension of the budgetary effort needed, as well as to establish how the State, territorial entities and international cooperation will contribute to this effort. Second, the Court ordered the relevant administrative agencies to comply with the thousands of aid requests already filed, without delay. Finally, as part of the oversight process, between 2007 and 2008 the Court held hearings on specific at-risk groups within the displaced population to directly address the situation of these groups and to issue more specific orders tailored to the needs of each subgroup.
- Follow-Up Decisions [Autos de Seguimiento]
The Court’s follow-up decisions to T-025, called autos de seguimiento, systematically documented specific conditions of displaced persons that constitute violations of fundamental rights. Through them, the Court furthered an intersectional and differentiated analysis of how the armed conflict and displacement affected certain groups disproportionately--namely, women, children, Indigenous Peoples, Afro-Colombians, human rights defenders, and persons with disabilities. Due to the serious underreporting and invisibilizing of these groups more broadly, the documentation of their specific conditions was a crucial first step in understanding the scope of the measures needed to redress their injuries.
The surveying of risks and harms suffered by the displaced population allowed the Court to order programs tailored to address these specific needs. For instance, Auto 092 of 2008 outlined eighteen ways in which forced displacement impacts women in a differentiated, specific and acute manner, due to their gender. Some of these included gender-based intrafamily and community violence; violation of reproductive rights; aggravated barriers in accessing education; aggravated barriers in accessing employment/entering the labor market; domestic work exploitation, including human trafficking; and aggravated barriers in obtaining title to lands. The Court also identified ten main risks for women in the context of armed conflict and displacement, including sexual violence, sexual exploitation, or sexual abuse; persecution, assassination, and forced disappearance; and risk derived from the disintegration of the woman’s social support network. In response, the court ordered the creation of 13 programs tailored to the most pressing needs of women, including, among others, Prevention of Sexual Violence Against Women; Prevention of Intrafamily and Community Violence; Support to Women Heads of Household; Access to Employment Opportunities and Prevention of Domestic and Labor Exploitation; and Educational Support for Women 15 Years and Older.
In Auto 009 of 2015, responding to the armed factions’ (including the military) systemic use of sexual violence against women to monopolize control over communities, the Court ordered Ministry of Education to carry out obligatory public education campaigns on gender discrimination and gender violence, especially in regions where displaced persons are concentrated. It also ordered trainings for the Colombian military on sexual violence and ordered memory, truth and reconciliation projects by the Administrative Special Unit for the Attention and Whole Reprations of Victims of the Armed Conflict, National Center on Historic Memory, and High Commissioner on Women’s Equity. To combat the pervasive undercounting of sexual violence crimes, the Court also ordered a comprehensive diagnostic of how discrimination and structural gender violence influence media, the economic sphere, social life, cultural, productive, educational and other areas.
State failures to recognize and account for certain groups increase violations against displaced populations. The Court stated in Auto 251 of 2008, upon discussion of the States’ lack of official data gathering regarding disabilities, “since people with disabilities are not seen, it is presumed that they are not there, and thus they are not included.” Serious undercounting also affected Afro-Colombian displaced persons. This also resonates with the experiences of displaced Indigenous women, who told the Court how they had to fight to be recognized by the State at all, but also to be recognized as displaced so as to receive aid.
Indeed, the documentation of the Court of the specific issues plaguing the displaced population helps combat invisibilization of, including in relation to Indigenous Peoples with ways of life threatened due to displacement. Auto 004 of 2009 documents how displacement is leading to the extermination of cultural norms of Indigenous Peoples connection with their ancestral territories, relocating to urban settings where their language is not spoken, where they are unable to access medicinal and traditional foods, and where they are forced to perform activities--such as domestic work--which are not traditional to their cultures. In response to the urgency of this crisis, the Court ordered the government to, within six months, to (1) 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; and (2) establish specific protection measures for all thirty ethnic groups who are at risk of extinction, including the prevention of internal displacement.
Auto 005 of 2009 finds displaced Afro-Colombians, like Indigenous Persons, are at a heightened risk of (1) violation of territorial autonomy; (2) destruction of collective territories; (3) violation of multiple human rights, including territorial sovereignty, right to participation, autonomy, cultural identity, development within the community’s own cultural aspirations, security, food sovereignty and multiple civil, political, social and cultural rights; (4) exacerbation of racism and discrimination; and (5) inability to enforce their right to free, prior and informed consultation and consent. In response, the government was able to tailor specific remedies, including plans for: immediate humanitarian aid, prevention of displacement; reduction of discrimination against the Afro-Colombian population; provision of housing and income to the displaced population; protection and strengthening of the social and cultural fabric of the Afro-Colombian communities; returning of displaced Afro-Colombians to their territory. The Court noted that due to structural discrimination, many Afro-Colombian communities at the time of the conflict did not own proper title to their collectively occupied lands, and thus this made it easier for armed factions and illegal, economic interest groups to invade their lands and forcibly displaced the original communities. Similarly, upon attempting to return to their lands, they were unable to make official claims to them due to their lack of title ownership.
Another important pattern that emerged during the autos was how the conflict and subsequent displacement further exacerbated the existing disparities in Colombian society prior to the conflict. For instance, in Auto 092, the Court engaged in an important analysis of why it is that women--and women HRDs--suffer disproportionately from armed conflict and displacement. Women human rights defenders are persecuted and attacked because of their gender identity and also because of their leadership and organizing roles. In terms of their gender identity, violence against these women is a “strategy to intimidate those responsible, who take the macho stereotypes in force as a way to impose or justify their actions.” For women HRDs, the Court notes:
Their leadership is are perceived by the armed actors as actions that subvert or encourage the disregard for the female roles assigned to women in a patriarchal society, in which the prototype of the "good woman" limits her intervention to the private sphere, to domestic work, to caring for husbands, sons and daughters, and dependents. While women human rights defenders challenge these patriarchal patterns and the widely accepted and discriminatory gender stereotypes, the persecution and aggressions against them are perpetrated to maintain and reinforce the traits of violence and structural gender discrimination.
This leadership, thus, threatens the armed forces’ “monopoly of control” as women HRDs are able to organize groups to resist the systematic violence they inflict.
As noted in Auto 006 of 2009, existing discrimination based on disability are also aggravated in the context of displacement including via: exclusion from aid due to structural prejudice by public officials; physical and and transportation barriers (as well as distance issues) when trying to access aid centers; barriers to information and communication concerning legal rights; and loss of support network (at risk of being abandoned during displacement).
The Court not only tied the disproportionate impact of displacement and armed conflict on distinct groups to structural discrimination broadly, but also connected this experience to the specific treatment of bureaucratic government officials to the denial of aid. On numerous occasions throughout the various autos, the Court ordered for the training and education of public officials in various agencies--from public benefits to the district attorney’s office--on trauma-informed care, and on unlearning classist, sexist, and racist prejudices and biases. Areas of concern for redress with training included exclusion from aid due to structural prejudice and discrimination by public officials against persons with disabilities; prosecutors’ degrading treatment of women who are trying to bring cases against their perpetrators; and officials refusing to recognize the value of the work of women human rights defenders, instead perceiving their work as hindrances to government institutions.
The Court adopts an intersectional approach. As previously mentioned, the Court noted how women HRDs’ role in resisting the violence generated by the armed conflict has made them the targets of violence by various armed factions, who see women’s leadership as threatening to the patriarchal status quo as well as to their interests in the conflict. The Court also applied this analysis to the disproportionate impact of armed conflict and displacement on Indigenous and Afro-Colombian women, as well as women with disabilities. For instance, the Court also found that adolescent Indigenous girls experience an aggravated risk of sexual violence. The statistics referred to by the Court are jarring:
- Between 2002 and 2009, over one thousand Indigenous Persons were murdered, 15% of which were women and girls.
- Between 2008 and 2011, 71% of sexual violence cases of persons with disabilities were against girls and women.
- Between 2007 and 2012, 97% of sexual violence cases of persons with disabilities were against women.
Similar disproportionate impacts are documented with regards to Indigenous and Afro-Colombian adolescents with regard to access to education.
Due to the different experiences and perspectives offered by the various groups subject of the autos, it was important for the Court to include the same persons who were suffering under displacement into the conversation about how to properly issue remedies. Indeed, this was central to the court orders for the national government on practically all of the auto orders.
Beyond the creation of tailored programs, the second type of remedy ordered by the Court was declaratory. In Auto 092, the Court established two constitutional imperatives regarding displaced women: (1) the forced displacement of women constitutes an acute violation of their rights, which requires immediate protection from the authorities; and (2) the automatic extension of humanitarian emergency aid to displaced women until they reach a state of self-sufficiency, dignity and socioeconomic stability. It acknowledged the free, prior and informed consent doctrine for Indigenous Peoples and Afro-Colombian tribal communities in Autos 004 and 005.
The final type of remedy was the resolution of individual petitions filed by displaced persons. This included 18,000 petitions for babies, children and adolescents, 600 petitions for protection from displaced women, 183 cases of sexual crimes committed during the conflict against women, among others.
Among the oversight mechanisms available to the Court was the ability to follow-up on the status of implementation of the autos de seguimiento. This allowed continuous follow-up, extending the Court’s jurisdiction in the various autos over time until the national government properly implements the Court’s orders. The intent behind the follow-up was to monitor structural reform addressing the conditions that led to the massive violation of fundamental rights. Thus, the unconstitutional state of affairs would be overcome once the Court was able to see the actual results--mainly the effective enjoyment of fundamental rights--of the programs it asked the state to implement, and thus would not be satisfied simply with a perfunctory implementation of the orders.
To evaluate the government’s progress, the court set up flexible parameters of high, medium, low, and non-compliance. High compliance was met when the government fully incorporated the Court’s orders and when results indicated actual progress in the conditions of the displaced population. Medium compliance signified that some, or most, plans ordered by the Court were implemented and demonstrated some positive markers of progress. Low compliance was found when the state had defective plans that were poorly implemented and that showed partial or limited results. Finally, non-compliance would be found where there were absolutely no plans or actions towards improving the conditions of the displaced population.
In all of the autos noted above, the Court found low compliance by the State. In most cases, the State did not even meet the baseline requirements outlined by the Court. Often, the Court found the State provided insufficient information about its efforts to complete the programs. For instance, in Auto 098 of 2013, five years after Autos 092 and 009, the Court found the national government had not provided any significant information on the implementation of the programs ordered. Two years after that, now seven years post-Auto 092 and 009, the Court still had received no compelling information about the effective creation and implementation of the programs ordered in the original autos. Concretely, this meant that women continued to suffer the grave consequences of the systemic use of sexual violence against them, could not resort to the state for protection without suffering repercussions, continued to face discrimination and prejudice from the prosecutor’s office regarding their claims, and continued to be marginalized in the labor market, among many other grave repercussions as a result of governmental inaction.
The Court also found the situation of Indigenous Peoples and Afro-Colombians continued to be stagnant, with both communities facing extreme poverty and violence in urban settings and the continued deterioration of their ancestral lands by armed factions and illegal economic activities. In terms of the situation of children, the Court also found low compliance, with continued high levels of extrajudicial killings, forced recruitment, forced disappearances, deaths from field mines, and pervasively high incidences of sexual violence. In a seven year follow up, the Court found that in 2015, around 87.5% of regions in Colombia continued to experience issues of forced recruitment of children by the various armed factions yet government coordination for mitigating these risks remained ineffective. For example, even though in 2011, the national government had identified 118 cases of risk to children, it intervened only in 46 of those cases. A 2018 follow-up report, now 10 years after the original auto, found no improvement on the condition of displaced children. For example, of the over 2 million children displaced between 2010 and 2016, the government had only enrolled 13,351children in programs for specialized support and protection.
- Significance of the Case
T-025 and its follow-up cases demonstrate the positive elements of access to justice practices in Colombia’s jurisprudence and court practices. However, the decisions lack implementation, due to the inability and/or unwillingness of the State to act on the Court’s orders.
Nonetheless, the casesserve as an official acknowledgement of the suffering of the displaced population, through an intersectional lens. Indeed, the judiciary is engaging in this process in an allied manner to the displaced population and incorporating it significantly in the drafting of this decision, by using the public hearings and testimonies as central to its fact gathering mission. The judiciary in this sense is holding its other “arms” or branches of government accountable to this population, which gives the struggle of the displaced population for accountability more legitimacy. Indeed, the only way that the State will overcome the unconstitutional state of affairs vis-a-vis the displaced population is when it achieves a change to oppressive structures in society--racism, sexism, ableism, classism--that the armed conflict made exponentially worse.
Second, the unconstitutional state of affairs framework has made significant impacts. Due to its fact-finding and follow-up mechanisms, it is able to trace exactly how much or how little the State has actually progressed. This is central to governmental transparency and governmental accountability. The legal framework has been referenced and applied outside of Colombia by other jurisdictions to deal with systematic human rights violations, such as the widespread violation of the rights of persons deprived of liberty in Brazil.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.