From Responsibility to Response: Assessing National - Brookings

Benchmark 5 Ensure a Legal Framework for Upholding IDPs’ Rights
tension and disturbances, general violence, massive
human rights violations, and infringement of international
humanitarian law.” 6 However, while national
legislation addresses the specific needs of IDPs and supports
their efforts to realize their rights, implementation
remains a problem in many instances.
Colombia’s Constitutional Court has actively sought to
ensure better protection for and assistance to IDPs. The
Colombian constitutional order has incorporated the
Guiding Principles as “mandatory criteria for interpreting
the scope of IDPs’ fundamental rights.” 7 The court
used the Guiding Principles and its own previous case
law in the landmark Decision T-025 of 2004 and in its
subsequent rulings and awards (autos) on IDP-related
issues, which have greatly expanded the legal framework
for addressing a range of IDP issues. 8 In Decision
T-025, the court, after reviewing over 100 claims (tutelas)
of IDPs, ruled that an “unconstitutional state of
affairs” existed due to the gap in policy—as reflected in
Law 387—and the government’s resources and capacity
to protect and assist IDPs. 9
While Article 10 of Law 387 stipulates the right of
IDPs to compensation and restitution, the government
has not done enough to establish measures enabling
them to realize that right. The Constitutional Court’s
6 Government of Colombia, Law 387 of 1997, Brookings-
LSE Project on Internal Displacement, “National and
Regional Laws and Policies on Internal Displacement:
Colombia” (www.brookings.edu/projects/idp/Laws-and-
Policies/colombia.aspx).
7 Federico Guzman Duque, “The Guiding Principles
on Internal Displacement: Judicial Incorporation
and Subsequent Application in Colombia,” in Judicial
Protection of Internally Displaced Persons: The Colombian
Experience (Washington, D.C.: Brookings-Bern Project on
Internal Displacement, November 2008), p. 175, (www.
brookings.edu/idp).
8 Rulings include Decision T-821 of 2007, Auto 092 of 2008,
and Autos 004, 005, and 008 of 2009.
9 Constitutional Court of Colombia, Decision T-025 of
2004, Brookings-LSE Project on Internal Displacement,
“National and Regional Laws and Policies on Internal
Displacement: Colombia.”
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Decision T-821 in October 2007 ordered the government
to ensure respect for victims’ right to reparation
and property restitution. In January 2009, the
Constitutional Court ordered the government to comprehensively
address land rights issues and to establish
mechanisms to prevent future violations. The “Victims’
Law” (Law of Victims and Land Restitution), which
would have fulfilled those requirements, was defeated
in Colombia’s House of Representatives in June 2009
during the presidency of Alvaro Uribe. 10 However, the
landmark law was passed by Congress on 24 May 2011
under the administration of Juan Manuel Santos. In the
law the government acknowledges for the first time ever
the existence of an internal armed conflict in Colombia,
and recognizes as “victims” those individuals or communities
whose rights were violated under international
humanitarian law or international human rights law. 11
The law regulates reparation for all victims of the armed
conflict, including through land restitution or compensation
for IDPs, aiming to give back two million hectares
of land to IDPs by 2014 (see further, Benchmark 10).
The government has reportedly set aside $1.2 billion
for the 2011 budget to begin to fund restitution efforts
and claims can be filed until 2025. 12 As some parts of
Colombia’s Civil Code prevent the restitution of land in
conflict-affected areas, it is unclear how or whether that
will be an issue with the newly passed Law of Victims
and Land Restitution. 13
10 “Ley de Víctimas se hunde ante presión del Gobierno,”
El Espectador, 18 June 2009 (www.elespectador.com/
noticias/politica/articulo146500-ley-de-victimas-sehunde-presion-del-gobierno).
11 Government of Colombia, Ley 1448 del 10 junio de 2011
[Law 1448 of 10 June 2011], available at Brookings-LSE
Project on Internal Displacement, “National and Regional
Laws and Policies on Internal Displacement: Colombia,”
(www.brookings.edu/projects/idp/Laws-and-Policies/
idp_policies_index.aspx).
12 Dan Molinski, “Colombia Finance Minister Promises
Funding for War Victims,” Dow Jones Newswires,
published in Colombia Reports, 27 May 2011 (http://
colombiareports.com/colombia-news/news/16546finance-minister-promises-funding-for-war-victims.
html).
13 See further IDMC, Building Momentum for Land