by Sebastián Albuja
The Internal Displacement Monitoring Centre (IDMC) recently published its latest overview of the situation of internal displacement in Colombia. Among other things, this document highlights the latest decision by the Constitutional Court of Colombia ruling that, seven years after it started monitoring the situation of IDPs and the Governmental response, the conditions that IDPs face in Colombia still amount to a widespread and generalized violation of their human rights (what the Court calls an ‘unconstitutional state of affairs’; or an estado de cosas inconstitucional or ECI, in Spanish.)
The Court first declared an ECI in relation to the situation of IDPs on January 22, 2004, and since then it has maintained oversight of the process towards overcoming the ECI, issuing over 100 follow-up decisions and holding nearly a dozen hearings with stakeholders. This is not the first time that the Court has ruled that a widespread or structural violation of rights exists in Colombia. It did so for the first time in 1997 and since then on seven subsequent occasions, on issues ranging from prison overcrowding to shortcomings of the national healthcare system.
Much valuable commentary has been written about the role of the Court in shaping and defining IDP policy in Colombia, including by those leading the process from within the bench, as well as about the Court’s invaluable contributions to comparative jurisprudence in the development of social policies in the global South, including in India, South Africa and a number of other Latin American countries. The aim of this inquiry is to examine the implications of the Court’s latest decision regarding the question of the end of displacement.
International actors have for some time engaged with this question and have sought to provide guidance to help IDPs to sustainably overcome their situation of vulnerability. The Framework for Durable Solutions, produced after a collaborative process of consultations and testing, and endorsed in December 2009 by the Inter-Agency Standing Committee, provides valuable principles, criteria, and indicators to both guide and assess human rights-based efforts to end internal displacement (including many relating to land and property).
IDPs are the ones who subjectively decide when they no longer consider themselves to be displaced—some displaced people may never see themselves as IDPs while others do not wish to be considered IDPs, or may see their displacement as a permanent condition in their lives. But from a policy and programmatic perspective, having the right elements to determine when durable solutions have been attained by IDP populations as a whole matters, as it does from the perspective of those of us working on estimating global IDP figures.
The Framework advises that the criteria it sets forth are meant to be indicative, and should be adapted and analyzed according to context. It is up to actors in each context (governments, UN, civil society organizations, etc.) to apply the criteria provided by the Framework, but in practice it may be difficult for such actors, including government officials, to make an objective determination about the end of a situation of displacement, particularly where these decisions are influenced by politics. Such assessments typically support official return programs or the durable solutions selected by Governments in countries with the largest situations of displacement, and ignore altogether the vulnerabilities of people choosing other settlement options.
For these and other reasons, such determinations are unadvisable unless certain conditions are met. Those conditions, present in the Colombian case, include that the assessment (a) is done by an impartial third party, (b) uses a priori normative criteria to measure and evaluate conditions empirically, and (c) is guided by human rights principles. In countries with a strong international presence, international actors could be in the position to make such a call, but it is unclear that their legitimacy as foreign actors would be enough to support such a judgment. So, in reality, it is only a process of adjudication as the one led by the Constitutional Court that can lead to a general assessment that a situation of displacement has ended.
This said, seven years after the Court has ruled its way into displacement policy, how will it rule its way out? Legal scholars in Colombia—who, by the way, support the Court’s position and the ECI regarding displacement—have nevertheless wondered how and when the Constitutional Court will rule that the ECI has ended—and, effectively, that displacement has ended. They have argued that the ECI is and should be a temporary mechanism, of analogous but opposite nature to the state of emergency (analogous in the sense that, as the state of emergency, it is meant to be temporary, but opposite in the sense that, while the state of emergency restricts certain rights, the ECI seeks to ensure that rights are fulfilled), and as such should be used with restraint and should last for a finite period of time. Its prolonged use would be a sign of its inefficacy and could also bring a devaluation of the constitutional and political value of the mechanism.
The Court, while not specifically referring to the IASC Framework in its decisions, has developed twenty process and outcome indicators reflecting the criteria and principles set forth in the Framework, but has not referred to those indicators systematically since they were adopted in 2008. Its latest decision in October this year, ruling that after seven years the ECI persists, does not apply these indicators systematically. In a decision of 2004 following the seminal ruling T-025, the Court set forth four levels of fulfillment of its directives to the Government, that would serve to evaluate to what extent these were being applied. Nevertheless, this ruling has not been used by the Court in the years that followed.
So, while the indicators developed by the Court are the cornerstone of its verification process, it is still not clear when, according to the Court, vulnerability will no longer exist, i.e., what will be an acceptable level of enjoyment of rights for the ECI to be lifted. For example, the Court established indicators for the fulfillment of the basic necessities of life such as the following: “number of families that have access to adequate and enough food, number of IDP families that have access to adequate housing, number of IDPs affiliated to the subsidized health system.”
But the Court has not determined when these indicators will have been fulfilled: is it when all IDPs enjoy full access to all their rights, or when all IDPs enjoy full access to a group of core rights, or when a percentage of IDPs enjoy access to all their rights, or when most IDPs enjoy their rights within and acceptable range according to an index as proposed here, and so on and so forth? Further, is the level of enjoyment of rights by IDPs going to be compared to that of the non-displaced population, in a context where the non-IDP population does not have the full enjoyment of their rights, including economic and social rights?
The Court has written repeatedly in its decisions that “the criterion to declare the end of the ECI is not a budget increase, the redesign of new policies, the adoption of new or better legislation, the creation of new administrative structures, the periodic delivery of assistance to IDPs, or the passage of time, but the effective fulfilment of the rights of IDPs.” This criterion seems to go beyond the standard contained in the Framework on Durable Solutions, which refers to vulnerabilities related to displacement.
While the Framework determines that Governments have obligations of result (and conduct) to raise IDPs up to the level of the non-displaced population, at which point the standard of progressive realization applies to IDPs as it does to the rest of the population, the Court’s criterion seems to create a higher requirement of fulfilment for IDPs in the long run, based upon results beyond displacement-specific vulnerabilities. If so, this would be problematic, because it would counter the principle of equality before the law by giving IDPs a different standard than the rest of the population.
If this is the case, the concern of some observers about an eventual devaluation of the ECI may be well-founded. But beyond legal arguments—and to keep things in perspective—the real threat is not that IDPs will enjoy too much rights but that they will continue to live in deplorable conditions by any objective standards and in comparison to the rest of the population. So it is important for the Court to continue monitoring both process and outcomes in IDP response, but at some point it will have to clarify according to what standards it will rule that the ECI has ended.