T 025 De 2004 Analysis Essay

03

3. Domestic Policies Concerning the Displaced Population

Internal displacement has grown acutely in Colombia: in 2002, due to the resurgence of armed conflict, 411,779 people were affected by displacement, 20% more than in 2001. Although there were no numbers of this magnitude in subsequent years, they increased between 2003 and 2007, as the number of affected individuals grew from 207,607 to 305,966 (CODHES, 2003; 2007). This situation, considered grave by many national and international agencies, represents violations of fundamental social, economic, and cultural rights enshrined in the Colombian Constitution. One of the most important rights being violated is the right to physical protection, which the State must enforce indiscriminately for every citizen (Article 13)11.

Although internal displacement spurred by the violence of the armed conflict has been considered a systematic problem since the 1980s, it was only in the 1990s that the Colombian state started to develop a body of norms dedicated to solving the problem12.

CONPES 280413, approved in 1995, sought to define those internally displaced with whom the state would work, as well as to outline strategies of prevention, protection, humanitarian and emergency aid, and access to government programs. In 1997, the government approved CONPES 2924, which defined a new institutional structure integrating all public and private organizations charged with serving populations displaced by violence. In addition, this document proposed the creation of a National System of Integrated Support for Persons Displaced by Violence (SNAIPDV, its acronym in Spanish), a National Plan, a National Assistance Fund for Displaced People, and a National Information Network.

In the same year, the government approved Law 387, a normative instrument frequently referred to when discussing displacement in Colombia. Its importance is derived from the fact that it is largely responsible for inserting the subject of internal displacement into the Colombian regulatory framework. According to Law 387, the Colombian state defines the internally displaced as “all people forced to migrate within the national territory, abandoning their place of residence or habitual economic activities because their lives, physical integrity, security, or personal liberty were made vulnerable or were directly threatened due to any of the following situations: internal armed conflict, internal disturbances and tensions, generalized violence, massive human rights violations, infractions of international humanitarian law, or other circumstances emanating from the abovementioned situations that cause potential or actual drastic alterations in public order.” (Law 387, Article 1).

Law 387, approved in 1997, expressly recognizes the rights of the internally displaced and, for the first time, makes the State responsible for formulating policies and adopting measures for displacement prevention14, as well as for providing for the care, protection, consolidation and socio-economic stabilization of the displaced population. Since the promulgation of the law, the internally displaced are protected by the rights enumerated in Article 2, including: the right to access a definitive solution to their situation; the right of return to their place of origin; the right to not be subjected to forced displacement and to not have their freedom of movement unlawfully restricted.

To achieve these ends in a manner consistent with the recommendations of CONPES 2824, the government created SNAIPDV (National System of Integrated Support for Persons Displaced by Violence) and the National Council for Integral Support for Persons Displaced by Violence (CNAIPDV, its acronym in Spanish). Created by Law 387 (Article 6), the Council emerged as the institution responsible for policy formulation and budgeting for programs serving the displaced population. These programs, in turn, are implemented by SNAIPDV (created by Article 5 of the same law), the institution responsible for the execution of policies meant to serve the displaced population.

On December 12, 2000, the Colombian government issued Decree 2569, which consists of regulations related to Law 387. The Decree also named the Social Solidarity Network (RSS, its acronym in Spanish) as the agency responsible for national, departmental, and municipal coordination of SNAIPDV programs. The Social Solidarity Network is an agency within the Colombian social welfare system for which the President of the Republic has direct responsibility. The RSS has the capacity for action on the national level and coordinates the social, economic, judicial, political, and security measures adopted by the government in its efforts to overcome and prevent internal displacement. It should be noted that the Decree also created a Unified Registration System for Displaced People (SUR, its acronym in Spanish), which will be discussed in more detail below.

Decree 2569 also specifies the criteria that constitute an end to the condition of displacement. According to Article 3, the Colombian state will no longer recognize an individual as displaced once he or she complies with one of the following conditions: return15, resettlement, or relocation, accompanied by access to economic activity (“socio-economic stabilization,” under Law 387); exclusion from the Unified Registration System for Displaced People (SUR), in conformity with the conditions listed in Article 14, or by request of the interested party.

There is a specific policy formulated by the Colombian government that merits special attention. It concerns emergency humanitarian aid: temporary and immediate assistance aimed at the rescue, care, and support of the displaced population through the provision of food, healthcare, psychological care, housing and emergency transport. The displaced have the right to emergency humanitarian aid for a maximum of three months, which can be renewed for the same length of time. The value of transitional housing, food assistance, and personal hygiene items is limited to 1.5 times the minimum wage (Articles 20 to 24).

One institution that has played a relevant role in defending the rights of internally displaced people is the Ombudsman’s Office of Colombia, which has an office dedicated exclusively to the displaced population. With the help of the UNHCR, the Ombudsman’s Office implemented the “Community Defense” project, which is especially active in areas with a high concentration of indigenous people (such as Bajo Atrato, Medio Atrato, the Cacarica Coast, Costa Vallecaucana, Costa Nariñense, Tierralta, Sierra Nevada de Santa Marta, Catatumbo and Northeast Antioqueño). The objective of the project is to strengthen the presence of the Ombudsman in these areas and, through such presence, prevent forced displacement with an in locusimplementation of prevention policies.

The Attorney General’s Office, the body with the greatest control over the exercise of public power, has also acted to safeguard human rights and intervene in defense of the public interest. The Attorney General’s Representative for Prevention in the fields of human rights and ethnic affairs, through the coordinating body for forced displacement services, has created a Monitoring and Evaluation Model for the agencies and service providers that form part of SNAIPDV. The prosecutor has developed software that is used to assist in the prevention and monitoring of the activities of those directly involved in policies meant to assist the displaced population.

According to evaluations by the Ombudsman’s Office and the UNHCR, the laws aimed at mitigation and prevention of forced displacement that were implemented during the 1990s in Colombia were comprehensive. The adopted legislation conforms with the principles of international humanitarian law and refugee law, promoted by entities like the UNHCR and the International Committee of the Red Cross (ICRC). However, there were fundamental structural flaws in the implementation process16. Particularly, institutional design and execution were evaluated as poor by the Ombudsman and by the UNHCR. It is precisely this asymmetry between advances in the body of norms and the deficiencies observed in the implementation of the policies serving the displaced population that led the Constitutional Court to vigorously assert its position on January 22, 2004. In its T-025 judgment, the Court held that several inconsistencies observed in the policies serving the displaced population constituted what the Court called “an unconstitutional state of things” (COLOMBIA, 2004).

Between 1997 and 2004, the Constitutional Court issued 17 judgments with orders directed to the entities responsible for implementing the policies serving the displaced population, orders that did not help the displaced population17 to become less vulnerable and more easily vindicate their legal rights. The Court grounded its reasoning in the insufficient protection given to the displaced, due to: i) the extreme vulnerability of the displaced population and, specifically, the grave deterioration of the situation in regard to food and health care; ii) the failure of the responsible authorities to protect the displaced population in an effective and timely manner18; and iii) the lack of results with respect to the health care policies of the displaced population as well as to access to education for displaced youth (COLOMBIA, 2004, pp. 24-6). In the Court’s understanding, this situation was the result, primarily, of insufficient resources, which did not increase as the phenomenon became worse, and of the Colombian state’s institutional inability to respond efficiently to the needs of the displaced population, factors which incur the Court’s demands in the face of responsible authorities. Accordingly, the Court ordered the national and local authorities in charge of serving the displaced population to ensure consistency between their obligation and the amount of resources allocated to the protection of the rights of the displaced (COLOMBIA, 2004, p.89).

In August 2006, the Constitutional Court concluded that:

“despite the fact that important advances have been communicated to the Court in areas critical to the well-being of the displaced population, it has not been demonstrated that the unconstitutional state of things – declared in Judgment T/025 of 2004 – has been overcome, and neither have the advances been moving quickly enough and in a sustainable manner in that direction” (COLOMBIA, 2006, p. 3).

This position is maintained in File 008 of January 26, 2009 (COLOMBIA, 2009). In addition to vehemently criticizing the content of the reports19 sent to the Constitutional Court by the entities in charge, in response to Judgment T-025, the Court identified ten areas in which the state failed to adequately protect the displaced, including: i) the lack of planning in the system meant to assist the displaced; ii) problems in the proper recording and classification of the displaced population; iii) an insufficient budget to implement policies to assist the displaced population; iv) the lack of specificity in the policies designed to assist the displaced population, in its different manifestations; v) the lack of protection of indigenous and Afro-Colombian groups, which have been particularly affected by internal displacements in recent months; vi) little security provided to displaced persons as they return to and settle on their original lands; and vii) the absence of a focus on prevention in policies to assist displaced persons, particularly in the security operations conducted by the state. Below, we will direct our attention to some of these points in particular.

Decentralization – certainly one of the central pillars in the policies to assist the displaced population – is directly linked to many of the items above. This is because decentralization improves the state’s ability to respond to the complex situation of forced displacement, which has manifested itself differently throughout communities across Colombian territory. In addition, the decentralization of the public policies in question would permit the local authorities and departments to collaborate with the national government to offer greater protection to the populations most affected by forced displacement, by sharing and utilizing technical information of great precision.

However, as noted by the Constitutional Court, the disorderly way in which decentralization has been executed results in a situation of political fragmentation, which impedes its consistent implementation and the evaluation of the results of such policies, thus preventing further development thereof. In large part, this is due to: (i) a lack of political will on the part of local administrators and departments in assisting the displaced population, whose situation becomes even more grave given the emergency nature of the problem; (ii) a shortage of resources on the sub-national level for specific programs dedicated to assisting displaced persons, as well as a general lack of resources to overcome the problem; (iii) the hierarchical nature of decentralized national entities, whose actions are determined more by agency mandates and the actions of the central government than by regional needs; (iv) the exclusion of civil society from policy formulation and evaluation; and (v) a lack of technical knowledge concerning the problem, as well as a lack of clarity regarding the function of each entity, amongst local committees and departments (OMBUDSMAN’S OFFICE OF COLOMBIA, 2003, p. 112-3).

One of the effects of the weakness inherent in policy decentralization is a lack of programs aimed at strengthening communities’ self-sufficiency. The shortcomings mentioned above weaken programs dedicated to building social capital, which increases these communities’ dependence on state-sponsored social programs.

Law 387, as well as many decisions of the Constitutional Court, recognizes the exceptional vulnerability of the displaced population. Even though the Court recommended special policies and dedicated resources toward assisting displaced people, the government has remained reticent toward the idea. According to the Ombudsman’s Office, the Special Program is limited to humanitarian assistance coordinated by the Social Solidarity Network and to the regulation of the homes and lands of the displaced – neither of which is being implemented (OMBUDSMAN’S OFFICE OF COLOMBIA, 2003, p. 104).

This conduct only exacerbates the problem by incorporating the internally displaced into existing government-sponsored social service programs. As mentioned in the previous section, those internally displaced persons who arrive in cities (about 80%, according to the Ombudsman’s Office) – some of whom lack documentation – are isolated from the social support networks available to them in their places of origin, are unfamiliar with information and service systems that operate in the urban centers and cannot compete with the local poor for resources.

Reintegration into a productive life — one of the basic conditions for return or resettlement of the displaced – becomes increasingly more difficult as a person remains displaced for long periods of time, far from his or her place of origin. More importantly, a displaced person has the right to choose where he or she wishes to live. In the case where the person would like to return to his or her place of origin, the state is obligated to offer information about the security situation there and offer protection to the displaced person in question.

Although there are legal provisions that assign responsibility to national and local entities in the resettlement of the displaced population20, there are still no regular and clearly-defined programs within their institutions dedicated to solving the problem.

A clear example of this is the lack of regulations to address compensation for human rights violations, a point directly related to the conditions and possibilities for return of internally displaced populations. In Colombia, there are no laws punishing those responsible for forced displacement, nor is there jurisprudence related to material and moral21 reparations for those displaced by violence.

In addition to the faults mentioned above, there are no mechanisms in place to evaluate the programs currently serving displaced populations. In the words of the Ombudsman, “they are very worried about the products, but not worried about the impact” (2003, p. 113). On this point, the Constitutional Court expresses a concern about the existence of several sets of indicators in each of the entities that are part of the SNAIPDV. It is believed that such a deficiency can be overcome through greater participation of local agencies and departments in its development, which relates to the deficiencies in the decentralization of policies that assist the displaced population.

It is equally worrisome to note the lack of political attention paid to the development of programs to prevent displacement, which would guarantee both its mitigation and of the suffering and trauma that result from displacement. The Constitutional Court emphasizes that even the security operations or fumigation undertaken by the Colombian government is accompanied by preliminary analyses about its possible impacts on the local population. Until recently, the Early Warning System, a project of the Ombudsman’s Office of Colombia that allows the government to detect early on potential cases of displacement, was also not functioning adequately, in large part because of its dependence on the successful decentralization and coordination of policies assisting the displaced population. According to the Ombudsman’s Office of Colombia, the country needs a group with technical expertise in crisis management, capable of assessing and evaluating on a daily basis, the implications of armed operations – including those of the Armed Forces – involving the civilian population.

In regard to the registry of the displaced population, there are presently two separate systems that organize information within the National Information Network: the SUR and the System for Estimation through Alternative Sources (SEFC, its acronym in Spanish). The SUR quantifies the demand for Colombian government programs aimed at displaced peoples in terms of territory and population. Only those who register within one year of the event that forced their relocation are counted as internally displaced within the SUR. The SUR is the only channel through which displaced people have access to government-sponsored programs.

On the other hand, the SEFC is a global model of displacement that registers information at the national level according to events of expulsion, arrival, return, and resettlement in the 35 territorial units delineated by the RSS. The SEFC seeks to record the total number of people displaced by violence, regardless of whether they request assistance from the state.

The figures released by these governmental systems – according to which 2,649,139 Colombians had been displaced through August 2008 – differ greatly from those released by the UNHCR, which reported that three million Colombians had been displaced through December 2007, and those released by non-governmental organizations such as CODHES, which reported 4,361,355 displaced Colombians through June 2008. Amongst the factors explaining this difference, it is noteworthy that the figures released by the government are cumulative since 1999 – in contrast to the CODHES figures, which are cumulative since 1985 – and that intra-urban displacement and displacement resulting from fumigations were not included. Still, since the displaced have one year after their displacement to register, this period constitutes a gap in the government’s data. More than fundamental divergences in how the calculations are made, it is particularly problematic that there are systems of registry in non-governmental organizations where the statistics about the internally displaced are greater than those released by the government by hundreds of thousands of individuals. It is thus evident that the SUR underestimates the size of the humanitarian crisis in Colombia, which directly affects the formulation of national policies about the issue. The Constitutional Court affirms this point: “As a consequence, the public policies formulated to assist the internally displaced are based on assumptions that do not correspond to the actual size of the problem to be addressed” (COLOMBIA, 2006, p.9).

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