Auto 092 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 092 of 2008 is one of such orders, referring specifically to the situation of displaced women.
Auto 092’s purpose is twofold: (1) a declaratory judgment as to the ways in which displaced women’s rights are structurally violated during armed conflict; and (2) the adoption of four comprehensive measures for the guaranteeing of the rights of women displaced by armed conflict and the prevention of the disproportionate impact based on gender as a result of the armed conflict and forced displacement.
The Court relied on varied constitutional mandates and international obligations to conclude that the State was required to adopt a strict differential approach in the prevention and redress of the forced displacement of women. Moreover, the Court declared that the Colombian authorities have a constitutional and international imperative to identify and assess the risks specific to women who are exposed to the armed conflict, and to act in the strongest possible way to prevent disproportionate displacement and safeguard victims. This included ordering the state of Colombia to comply with its international obligations under Convention on the Elimination of Discrimination against Women (CEDAW), the Inter-American Convention to Prevent, Punish and Eradicate Violence against Women of Belém do Pará, the Rome Statute of the ICJ, and United Nations Security Council Resolution 1325.
Before outlining the action items the Court ordered the state to address the situation of displaced women, it first visibilized, categorized and characterized how women suffer in contexts of armed conflict. The Court did so in two ways. First, it declared ten (10) main risks for women in the context of armed conflict: (1) sexual violence, sexual exploitation, or sexual abuse; (2) exploitation and slave-like-conditions in the ambit of domestic work and gendered roles in a patriarchal society by the players in the armed conflict; (3) forced recruitment of women’s childrens by the players in the armed conflict, or threats against them, which are aggravated when women are the heads of household; (4) risks derived from being in contact with relatives or persons that are members of armed factions; (5) risks derived from being a member/associated with social, community, or political organizations led by women and promoting human rights in areas affected by the armed conflict; (6) persecution, assassination, and forced disappearance; (7) risks derived when women’s economic provider is persecuted, assassinated or disappeared; or risks derived from the disintegration of a woman’s social support network; (8) forced eviction from their lands; (9) heightened discrimination and vulnerability faced by Indigenous and Afrodescendant women; and (10) risks derived from the loss or absence of their economic provider during the lengthy process of displacement.
Next, the Court identified eighteen (18) ways in which forced displacement impacts women in a differentiated, specific and acute manner due to their gender. The Court divided them into two categories: (a) structural patterns of violence and gender discrimination, which existed in Colombian society before the armed conflict but that are exacerbated during the armed conflict, affecting displaced women more acutely; and (b) issues that only displaced women experience, and which non-displaced women and even displaced men do not experience.
The first set include: sexual violence and sexual abuse, including forced sex work, sexual slavery, and human trafficking; gender-based intrafamily and community violence; violation of reproductive rights, especially as it concerns girls, adolescent girls, and breastfeeding women; being forced into head-of-household positions without the minimum resources needed for basic subsistence, as required by principles of dignity, especially in the case of women caring for young children, women with health conditions, women with disabilities, and older women; aggravated barriers in accessing education; aggravated barriers in accessing employment/entering the labor market; domestic work exploitation, including human trafficking; aggravated barriers in obtaining title to lands, and protection of titles for their future relocation; acute discrimination against Indigenous and Afrodescendant women; violence against women leaders or women who acquire public visibility due to their promotion of social, civil and human rights; discrimination against women in public spheres, i.e. violation of their right to participation; and lack of information about their rights as victims of the armed conflict.
The second category includes the issues specific to displaced women: need for specialized psychological care; barriers to being registered in the Displaced Persons register; lack of training by government employees when serving displaced women resulting in hostile and insensitive treatment towards them; disregard towards displaced women who are not heads of household; and the structural reluctance of the government to extend Emergency Humanitarian Assistance to eligible women.
This declaratory effort highlighted the invisibility of gender-based discrimination due its structural and generalized practice across Colombian society, which existed before the armed conflict, but undoubtedly became exacerbated by it. Once the information was recognized, systematized and organized by the Court, it would be easier to demand accountability and specific steps by the government to address the issue. Indeed, the Court found that to properly address the violations of displaced womens’ rights, the Colombian government had to understand the complexity of the violations of women’s rights, and from then, create policies aimed at not only repairing the violations, but also preventing them in the future.
As such, the Court ordered the creation of thirteen specific programs to counteract the heightened risks to women displaced by the armed conflict, covering issues such as sexual violence, health promotion, educational assistance, access to land, assistance for Indigenous and Afro-descendent displaced women, prevention of violence against women leaders, the right to truth, justice and reparation, and psycho-social assistance for victims of the conflict. The thirteen specific programs are as follows: Prevention of Disproportionate Impact from Displacement; Prevention of Sexual Violence Against Women; Prevention of Intrafamily and Community Violence; Promotion of Health; Support to Women Heads of Household; Access to Employment Opportunities and Prevention of Domestic and Labor Exploitation; Educational Support for Women 15 Years and Older; Protection to Indigenous Women; Protection to Afrodescendant Women; Promotion of the Participaiton and Prevention of Violence against Women Leaders; Justice, Truth, Reparations, and Non-Repetition; and Elimination of Barriers to Access the Systems of Protection. The creation of these programs would institutionalize an effective response to the situation of displaced women, by mandating the programs to design follow-up mechanisms and by ordering the government to allocate ample resources to carry out the various programs’ missions.
Second, the Court established two constitutional presumptions regarding displaced women: (1) the forced displacement of women constitutes an acute violation of their rights, which requires immediate redress from authorities; and (2) humanitarian emergency aid should be extended automatically to displaced women until they reach a state of self-sufficiency, dignity and socioeconomic stability. Third, the Court adopted individual orders for the specific protection of 600 women displaced by the armed conflict. Finally, the Court referred to the Colombian Attorney General information related to 183 cases of sexual crimes committed during the internal armed conflict for investigation and prosecution. It also ordered the creation of a program focused on redressing the injuries of displaced women who experienced sexual violence in armed conflict.
In response to Auto 092, the government formally committed to achieving gender equality within the displaced population in its National Development Plan of 2010-2014. Additionally, it established laws in 2011 and 2014 (Law 1448 and Law 1719 respectively) that guarantee access to justice for victims of sexual violence, especially during the armed conflict, and established pathways for the restitution of lands. It allocated billions of pesos to these efforts, for a duration of 10 years. Furthermore, the government issued reforms to the Penal Code to expand categorization of sexual crimes, to include forced sterilization, forced pregnancy, and forced nudity, among others. It also created a Group on Women and Gender, tasked with shedding light on the impacts on specific rights for displaced women in receiving aid and obtaining reparations, among others, in order to properly address them. Finally, in 2013, the government concluded its work on a guide on public policies geared towards prevention of risks, protection and guarantee of displaced women’s rights in the armed conflict.
Unfortunately, the creation of the programs and budget allocations has not resulted in effective implementation. On December 18, 2017, the Court issued yet another follow-up report, Auto 737, focusing on the displaced women’s issues addressed in Autos 092, 098, and 009, persisting in the context of post-conflict Colombia.
In that follow-up, the Court gave the National Government’s response a grade of “low,” finding no compelling information or evidence that the thirteen programs had been established, nor that the constitutional presumptions had been effectively applied. In regards to the creation and implementation of the thirteen programs, by 2017: "85% of actions were 100% completed, 3% of actions had significant progress between 80-99%, while 9% of the total number of actions were between 80-99%, while 9% of the remaining actions had progress of less than 80% compliance, and another 3% had no progress and another 3% did not report.” In regards to the individual orders of protection required by the Court for 600 women, by 2017 only 100 of those women had been properly attended to.
With Auto 092, the Court visibilized, characterized, and categorized the effects of forced displacement and internal armed conflict on women. While women make up a significantly disproportionate part of the IDP population, it was not until this judgment that women IDPs were recognized as right-holders suffering specific impacts from the conflict, as well as the recognition of the systemic nature of the gender-based violence and discrimination they experience. This recognition allows the State of Colombia to tailor reparations and remedies that address these specific injuries, which are unique to them.
