Special Concerns and Recommendations in regards to Internal Displacement and the Human Rights of Internally Displaced Persons in Colombia

Martes 10 de octubre de 2006, por Prensa - Colectivo

Special Concerns and Recommendations in regards to Internal Displacement and the Human Rights of Internally Displaced Persons in Colombia

1. The limited application of international norms and recommendations in regards to forced displacement.

Colombia has a sophisticated regulatory and institutional framework in regards to forced displacement, as reflected in Law 387 of 1997 , the recognition of the United Nations Guiding Principles on Internal Displacement as part of the framework of the constitution , and the existence of an institution in charge of coordinating public policy on this matter . However, this framework has not been effectively applied due to a lack of political will on the part of national and local authorities, which has translated into insufficient budgetary allotment, directing assistance for internally displaced population toward social assistance programs for populations in a situation of poverty (health, education, nutrition, land, and housing), the omission of many public institutions in creating assistance programs specifically for the internally displaced population, and the inexistence of mechanisms ensuring specific approaches for women, children, the elderly, and ethnic groups in situations of internal displacement.

The National Plan for Assistance to the Displaced Population lists the legal obligations of the institutions belonging to the National System for Assistance to the Displaced Population, provided for in law 387, and places the response to forced displacement within the logic of the government policy of “democratic security,” which consists in the public force recovering and controlling territory, and the civilian population participating and cooperating in counterinsurgency tasks. This disregards the principle of distinction and violates human rights. Additionally, this plan tries to liken the responsibility of the national and international NGO’s with the primary responsibility of the State regarding forced displacement .

In 2005, the government recognized that $3.9 trillion pesos would be required to fund public policy for assistance to internal displacement from 2007 to 2010, of which $989 billion would have to be provided by local authorities. Later, the government stated that it had designated $1.3 trillion pesos for the policy of prevention and assistance to internal displacement for 2005 and 2006, which is insufficient since the allocation of national long-term financing is still not guaranteed, and many local authorities continue not to fulfill their legal obligations regarding assistance to internally displaced population.

During the current presidential administration (from August 2002 to December 2005), it is estimated that more than one million persons have been forcibly displaced, along with the corresponding increases in the violations to the rights of the internally displaced population. The State’s response continues to have serious deficiencies and voids concerning the different phases of forced displacement, including the duty to prevent the causes forcing persons into displacement to protect their lives, the special protection for their rights during displacement, and the comprehensive reparation for the rights that have been violated.

The policy of “democratic security” does not provide protection against internal displacement, or as it happens, since many of the actions of this policy go against the obligations of the Colombian State, which are indicated in international recommendations and the Guiding Principles on Internal Displacement. The government’s denial of the mass and systematic violations to human rights and humanitarian law, as well as of the existence of an armed conflict, has obstructed the application of effective measures in favor of the population at risk or in a situation of internal displacement. One of the most concerning aspects of the government policy is the process of negotiation with paramilitary groups, which has not contributed to preventing internal displacement or to protecting the rights of the internally displacement population.

In spite of the valuable contributions by international cooperation, and in particular the missions of the representative of the United Nations Secretary-General for internally displaced persons and of the director of the Inter-Agency Internal Displacement Division, the government has not adopted measures for the effective and comprehensive application of international recommendations in order to confront the causes of forced displacement, and to protect the rights of the internally displaced population. To the contrary, in some aspects the government has implemented actions that go against these recommendations, without having carried out a sensible monitoring of their application.

The institutional response begins to favor under-reporting the internally displaced population , and substitutes prevention and protection during the forcible displacement for the policy of “democratic security.” After two years of inactivity, the National Council for Assistance to the Displaced Population reconvened in 2004 in order to carry out the requirements of Ruling T-025, but the deficiencies of the State response have not been resolved, and the unconstitutional state of affairs has yet to be surmounted regarding the rights of the displaced population as stated by the Constitutional Court .

In regards to these concerns, we recommend the Special Representative to:

• Urge the government to reformulate policies that violate the rights of the internally displaced population, to especially guarantee that all internally displaced persons (including those that have been displaced as a consequence of aerial fumigations) have access to State assistance programs, and to adjust the National Plan for Assistance to the Displaced Population to the Guiding Principles on Internal Displacement;

• Urge the government to incorporate in public policies special measures to protect, in a differentiated and favorable manner, the rights of indigenous people and Afro-Colombian communities, as well as internally displaced women and children;

• Urge the international community to, in accordance with the complementary nature of international cooperation, refrain from supporting initiatives that may supplant the primary responsibility of the State in regards to internal displacement or that may violate the rights of internally displaced persons;

• Achieve closer coordination with other special mechanisms of the United Nations and especially those dealing with the rights of women, children, ethnic groups, human rights defenders, and the restitution of housing and property for refugees and internally displaced persons;

• Propose a plan to the government for applying the recommendations formulated by the Representative, and for establishing the mechanisms allowing for accountability concerning the State response to the internally displaced population, the civil society and the international community;

• Provide advice to the United Nations agencies present in Colombia so they monitor the application of the recommendations of the Representative and UNHCR in regards to internal displacement.

2. Registry is the first obstacle in gaining access to State protection.

As former Representative Francis M. Deng warned in 1999, the long and intricate process of registry continues to be one of the displaced population’s main obstacles to enjoying the special protection of their rights. The regulation of the process of registry in the Sole Registry of the Displaced Population (SUR), which defined the criteria of the temporality and appreciation of the declaration, registry and exclusion, restricts the access of the internally displaced population .

The SUR does not record intra-urban and intra-village displacement, as well as displacement caused by fumigations. The SUR also does not include internally displaced persons that, due to fear or incredulity concerning the State’s response, decide not apply for assistance. In many municipalities, the Public Affairs Ministry does not have sufficient capacity to receive the declaration, and not all regional units have the technical means to update the SUR.

The SUR does not comply with its original mission of identifying the characteristics and needs of the internally displaced population, as well as maintaining updated information on the assistance provided, the situation of their rights, especially regarding groups with particular needs (ethnicity, age, women heads-of-households), and contributing to evaluating and designing policy.

The Comptroller General’s Office estimates that the displaced population is under-reported by 30% . The Social Ministry National Secretariat found that only 71% of the declared displaced persons are registered with the SUR, and only 56% of those registered receive assistance. Additionally, from the moment of registry in the SUR, registered households must wait for more than three months until they receive their first government aid . There have also been complaints by registered displaced persons that they have been denied assistance because their names do not appear in the database due to “technical difficulties.”

In regards to the registry of internally displaced persons, we recommend the Representative to:

• Urge the government to eliminate the one-year limit in making a declaration before the Public Affairs Ministry, as established in Decree 2569 of 2000;

• Urge the government to abide by Constitutional Court jurisprudence on matters concerning the internally displaced population , and to eliminate the obstacles for their registry in the SUR and the causes for their exclusion, as indicated in Decree 2569 of 2000.

3. The returns promoted by the authorities lack conditions of voluntary nature, security and dignity.

The banner project of the government is the return of thirty thousand families to their homes from 2002 to 2006. According to government figures, in May 2006, the return of 26,148 families had been carried out, which corresponds to the 87.16% of the goal .

But far from being a success, many of returns promoted by the government have lacked conditions of a volunteer nature, security, and dignity. The persons are forced to return due to the absence of opportunities for social and economic integration in their place of arrival, and for relocation alternatives . The promises by the authorities to provide security and economic support to those returning are not fulfilled. State assistance is limited to immediate assistance solutions and military responses, which does not attack the causes of forced displacement and does not protect the life and integrity of the returnees.

Additionally, government authorities do not support the returnees from the communities not participating in the programs related to the democratic security policy. The Afro-descendant, mestizo and indigenous communities that have returned on their own accord to demand their rights to land, truth, justice and reparation, such as the communities that have created humanitarian zones in Alto Ariari (Department of Meta), Cacarica and Curvaradó (Department of Chocó), as well as the indigenous communities from Cauca that resist forced displacement, have been accused by authorities of collaborating with guerrilla groups. In some cases, the Prosecutor General’s Office has opened baseless legal processes against these communities. These baseless accusations expose them to an even greater risk, including being victim to death threats and attacks by paramilitary groups.

In regards to return and lasting solutions for internal displacement, we recommend the Representative to:

• Urge the Colombian government to apply the Guiding Principles on Internal Displacement for lasting return alternatives, as well as local relocation and reintegration. In any case, the Colombian Government should refrain from promoting returns when conditions do not exist of voluntary nature, security and dignity, in accordance with protecting internally displaced persons from being forcibly returned;

• Urge the authorities to design programs for lasting solutions and allocating land in such a way that the rights of the internally displaced population are favorably protected, which presumes guaranteeing truth, justice and comprehensive reparation.

4. The pronounced interest for the cessation of the condition of displaced persons.

The National Plan for Assistance to the Displaced Population made Social Action and the National Planning Department responsible for designing the sectorial indicators regarding satisfaction of needs to make it possible to establish what it was that led to socio-economic stabilization and the cessation of the condition of displaced person.

In this sense, the government is advocating a reform of Decree 2569 of 2000, which is focused on the reasons for the cessation of the condition of displaced person when the victims return, relocate or access an economic activity. This initiative, which is based on economic criteria, ignores that overcoming the condition of victim of internal displacement requires reparation of harm caused by the displacement, restitution of the abandoned property or compensation or indemnity for the loss, reintegration to the place of origin or place of relocation, guarantee and protection of human rights, and the guarantee of non-repetition.

This initiative also considers the cessation of the condition of displaced person at the request of the interested party, which is contrary to the principle of the non-resignation of rights, and opens the door for internally displaced persons to be coerced into renouncing the special protection of their rights.

In regards to this concerning aspect, we recommend the Representative to:

• Urge the national authorities to abandon their attempts to force a definition of cessation of the condition of displaced person, until the causes have ceased that gave rise to the forced displacement, until there is a full guarantee of non-repetition, and when the victims can effectively enjoy their rights, as established by the Guiding Principles on Internal Displacement, in accordance with international parameters regarding the enjoyment and exercise of human rights.

5. Impunity seriously threatens the rights of the victims of forced displacement.

The process of negotiation between the Colombian government and paramilitary groups has not affected the military and economic structures of these groups, has not led to their demobilization, and therefore has not led to these groups ceasing their aggressions against the civilian population. This process has completely ignored the rights of the victims of internal displacement to truth, justice and comprehensive reparation.

The right to truth is not guaranteed, since no legal or administrative control mechanism exists that ensures the clarification of the acts of forced displacement in which demobilized persons participated. More than 90% of the demobilized persons have benefited from amnesties and pardons established in Decree 128 of 2003, which frees from any criminal responsibility or investigation the demobilized persons that, when they turned themselves in, did not have an open investigation against them . In spite of the recent Constitutional Court provisions , the remaining 7% of the demobilized persons will benefit from Law 975 of 2005 and Decree 4760 of 2005, which also do not fully guarantee the right to truth .

In terms of attaining reparation for the harm suffered and preventing its repetition, the right to justice has also been violated . In December 2005, the Prosecutor General’s Office was aware of 2,362 cases for the crime of forced displacement, 97% of which were in a preliminary phase without having determined the occurrence and conduct, and without identifying a supposed responsible party . 2.45% of this total is in the pre-trial phase, and less than 0.5% of the cases reached a trial phase . Therefore, in about 97% of the cases the crime of forced displacement remains in impunity, due to the fact most cases are filed since the responsible parties are able to benefit from the previously mentioned pardons and amnesties.

The right to reparation, which must be “materialized by way of individual measures of restitution, indemnity and rehabilitation, measures of satisfaction of general reach, and guarantees of non-repetition that allow reestablishing their situation without discrimination ,” also does not have guarantees established. The national judicial framework does not hold the conditions for the comprehensive reparation of the victims of forced displacement, including the restitution of the more than four million hectares of lands principally seized by the paramilitary groups that benefit from the necessary legal guarantees to legalize their illegal appropriation .

Only since 2004 has the Sole Declaration Format included information related to properties abandoned by internally displaced households, but until now the actions carried out by INCODER “have not guaranteed the right to the property of land by internally displaced population .”

Given that the civil justice system lacks effective mechanisms for making reparations to the victims of internal displacement, many cases are processed through the petition for tutela. The contentious jurisdiction, which has group actions and the action for direct reparation, is not effective because the courts do not take into account the fact that internally displaced persons lack the deeds that prove ownership. Furthermore, Law 387 of 1997 and Decree 2007 of 2001 have not been implemented in a way that ensures the effective protection of their land. The courts apply the thesis of “act by a third party,” affirming that an illegally armed group, rather than the State, is to be charged for this violation, which limits the possibilities for the reparation of the victims of internal displacement. Law 975 of 2005 also interprets reparation as a private matter between the paramilitaries and the victims.

In regards to Law 975 of 2005, the Inter-American Commission on Human Rights has warned that “this omission threatens to deprive the victims of their right to legal protection and adequate reparation, in regards to such situations as individual and collective displacement from rural areas caused by actions of illegally armed groups and the undue appropriation of land .”

Even though the Constitutional Court ordered the inclusion of both legal and illegal property in responding for the indemnity of the victims, the State does not have effective mechanisms to identify the property in the hands of the paramilitaries, especially when front men are protected as established in Article 13 of Decree 4760 of 2005, according to which the Prosecutor General’s Office may apply the principle of opportunity - the discretionary decision not to investigate - in regards to third parties that have participated in the negotiation of illicit property.

Since the Reparation Fund, contemplated in Law 975 of 2005, does not manifest the priority of restitution in favor of the victims, and because the property turned over by the paramilitary groups represents a very reduced portion of the total, internally displaced persons will be those who are principally prejudiced with the validity of this provision, as they will definitively lose the ownership of their property, and in the best of cases will access an indemnity.

Lastly, in terms of the displaced communities that request for the adjudication of land, INCODER is offering the inclusion in projects jointly with persons demobilized from paramilitary groups, implementing in this way a framework for “forced reconciliation.”

Furthermore, the pro-government congressional majority advances proposals in direct opposition to the rights of the internally displaced, such as congressional bill 319 of 2005, which aims to legalize the property of land through summary procedures. This bill does not offer guarantees for internally displaced persons to eventually claim their rights concerning the abandoned property. Moreover, the approval of the bill would facilitate the legalization of those properties by those who have acquired them after having caused the forced displacement of their original owners or holders .

In regards to this theme, we recommend the Representative to:

• Request the Colombian State to carry out investigations on the crime of forced displacement, and report the results of these investigations to the Representative.

• Promote that the State applies the United Nations Principle on Housing and Property Restitution for Refugees and Displaced Persons , and urge the UN agencies present in the country to monitor and evaluate this application.

• Warn the Congress of the Republic about the inconvenience of congressional bill 319 relating to a special process for legalize property deeds, and other legislative initiatives that violate the human rights of the internally displaced population.

• Issue a statement on the inconvenience of Law 975 of 2005 and Decree 128 of 2003 for internally displaced persons, because, in accordance with the concept of the Office of the High Commissioner for Human Rights, these norms do not guarantee the rights of the victims of internal displacement to truth, justice and reparation.

• Urge authorities to suspend programs and projects that demand victims of internal displacement to become affiliated to projects jointly with former members of paramilitary groups.

6. The absence of conditions for the participation of internally displaced in the formulation of public assistance policies.

Authorities have formally established some legal forms of participation ordered by law, such as the Municipal and Departmental Committees for Assistance to Displaced Population, and others stipulated in the National Plan for Assistance to Displaced Population, such as the National Table to Strengthen Organizations of Displaced Population.

Nevertheless, the participation of this population continues to be very limited due to the “direct intervention” of some authorities, and due to the absence of actions to keep this population completely and opportunely informed. The government does not take into account their claims and proposals, and does not consider them in regards to designing and evaluating public assistance policies and programs.

At the insistence of the Constitutional Court, authorities have released information to some organizations and NGO’s, but they have not shared this information with the communities and persons displaced in the municipalities and places outside of Bogotá. Therefore, these persons are unable to participate in the formulation of public assistance policy, and in the adoption of the corrections to this policy as established by the Court in the Ruling T-025 of 2005.

In most cases, authorities have invited some organizations from the displaced population to participate in the sessions of the National Council for Assistance to Displaced Population or some of the Assistance Committees, but they have done so without due advance notice, and without providing the agenda and documents with the themes to be handled.

Additionally, the active participation of the representatives of this population in questioning the performance of the authorities, or in presenting proposals that favor the protection of their rights, are seriously conditioned by the presence of military and police authorities in the Municipal and Departmental Committees for Assistance to the Displaced Population.

Some of the determining obstacles for their participation are the baseless accusations, threats and attacks against the members of the displaced communities and against those supporting the displaced communities. Nevertheless, the authorities have not adopted measures directed at neutralizing the structural risk factors, such as the public statements made by public functionaries and the freedom of action enjoyed by paramilitary groups.

In regards to the right to participation, we recommend the Representative to:

• Urge the Government to publicly respect and support the legitimacy of the work carried out by organizations from the displaced population, and the NGO’s that support this population in the defense of their rights.

• Urge authorities to provide the necessary information and indispensable conditions so that internally displaced persons may exercise their right to participate locally and nationally in the decisions that affect them.

June 5, 2006

Afiliaciones

Afiliado a la Federación Internacional de Derechos Humanos
y la Organización Mundial contra la Tortura
Estatus Consultivo en la OEA

José Alvear Restrepo

Nace en Medellín el 1 de julio de 1913 en el seno de una familia de profundas convicciones religiosas y bajo los parámetros de la ideología del partido conservador. Realiza sus estudios en la Facultad de Derecho de la Universidad de Antioquia, donde se gradúa de Abogado con una brillante tesis titulada: "Conflictos del trabajo: la huelga"

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