Indigenous peoples and afro-Colombians
Normative Protection and Policy Development
The Guiding Principles on Internal Displacement contain various articles spelling out the protection of minorities. First the Guiding Principles are to be applied without discrimination of any kind, including on the basis of race and ethnic or social origin (4.1). Furthermore, Principle 9 declares that states are under a particular obligation
to protect against the displacement of indigenous peoples, minorities, peasants, pastoralists, and other groups with a special dependency on and attachment to their lands. Additionally, principle 6 re-states that minorities shall be protected against displacement when based on policies of apartheid, ethnic cleansing or similar practices aimed at/or resulting in altering the ethnic, religious, or racial composition of the affected population.
In Colombia, the rights of displaced ethnic and racial minorities have been advanced by the differential approach established by the Constitutional Court in decision 004 and 005 of January 26, 2009, taken as part of the process of verification of rights launched after the declaration of the ‘unconstitutional state of affairs’ caused by the precarious situation of IDPs. In decisions 004 and 005, the Court declared that indigenous and afro-Colombians, respectively, have been affected by the armed conflict in an enhanced manner. It ruled that indigenous groups ‘are in danger of being culturally and physically exterminated by the conflict, and have been the victims of very serious violations of their individual and collective rights and of International Humanitarian Law, all of which has resulted in their individual and collective forced displacement.” (Constitutional Court of Colombia, Auto 004 of January 26, 2009. pp. 35. Translation is ours). Likewise, in decision 004, it ruled that “the fundamental rights of [afro-Colombian individuals and communities] are being massively and continuously ignored.” In both cases, the Court ordered the government to implement specific plans to protect these groups.
Profile of the displaced indigenous and afro-Colombians; Causes of displacement.
There are about one million indigenous persons in Colombia. Almost the entirety of the indigenous populations in Colombia has been a victim of forced displacement. (UNHCR, 8 August 2008). The smallest groups are in risk of disappearing. Currently, between 16,6% and 22,5% of the entire displaced population in Colombia is afro-Colombian (Comisión de Seguimiento a la Política Pública sobre Desplazamiento Forzado, 4 June 2008). The number of displaced afro-Colombians has increased steadily over time: in 2003, 6% of the displaced population was afro-Colombian, and in 2005, according to the Government census, this group made up 10% of the displaced population. Likewise, in 2008, 6,5% of the total IDP population belonged to an indigenous group, compared to 3,4% in 2005.
Displacement is used as a mechanism to appropriate their land: armed groups use indigenous territories for their purposes because of the location of those territories (Inter-American Commission on Human Rights, 29 December 2007). Indigenous territories also affected by development projects. (OHCHR, 2008) Moreover, indigenous communities are displaced because of armed confrontations, forced recruitment and minefields (Minority Rights International, 11 March 2008).
Inadequacy of the Governmental response
In its decision related to the response for displaced afro-Colombians
(Constitutional Court of Colombia, Auto 005, 26 January 2009), the Constitutional Court of Colombia wrote “[…] to date, a policy focusing on the special needs of the displaced afro-Colombian population is missing: attention to this population is limited to programs and policies designed for the displaced population in general, and, to make matters worse, the afro-Colombian displaced population has a marginal access to this attention” (Constitutional Court of Colombia, Auto 005, 26 January 2009, para. 132. IDMC Translation). Likewise, ruling on the response for displaced indigenous groups
in Colombia, the Constitutional Court of Colombia wrote (in auto 004): “in view that the state response to the situation of indigenous peoples has been merely formal and has meant the release of policy documents with no practical effects, the Constitutional Court concludes that the Colombian State has gravely ignored its constitutional duties in this respect” (Constitutional Court of Colombia, Auto 004, 26 January 2009,
pp. 38. IDMC Translation). Consequently, the Constitutional Court ordered the Colombian government to design and implement ‘Programs to Guarantee the Rights of Indigenous Peoples affected by Internal Displacement.’
Safety and Security of person and subsistence rights
The conjunction of afro-Colombians’ special attachment to their land, and the ongoing violence in the ancestral territories by them inhabited, has created a situation of particular risk for their security of person
. In 2006, the UN Office of the High Commissioner for Human Rights in Colombia wrote ‘ethnic groups, in particular (…) afro-Colombians, have been the victims of extra-judicial executions, assassinations, threats, illegal arrests and sexual violence, actions attributed to illegal armed groups and, on occasion, to members of the Public Forces” (UN Office of the High Commissioner for Human Rights, 20 January 2006, Para. 84). In addition to the ongoing violence against them and their leaders, many of them who have been threatened, attacked, or murdered, (for a full reference of the known cases of threats and assassinations of leaders, see Constitutional Court of Colombia, Auto 200, 13 August, 2007) the collective ownership of land has been disrupted by re-arrangements of land collectively-owned by afro-Colombians, caused by large-scale mono-crop projects. Supra
note 6, para. 91 (Constitutional Court of Colombia, Auto 005, 26 January 2009, para. 132. IDMC Translation).
Albeit having its own particularities, the situation of indigenous Colombians is roughly similar. Their leaders continue to be targeted, and displacement continues to threaten their way of life, dependent on their attachment to land.
Data show that afro-Colombians experience a lower enjoyment of the right to work
than the rest of the displaced population. 68,9% of heads of household reported that they had been working the week before a national survey was administered, compared to 72,2% of the rest of the displaced population. Only 11,4% of the displaced afro-Colombian population earns the minimum salary or more. When gender is factored in, the situation of afro-Colombian women is even more precarious: only 5,3% of them earns minimum salary. For indigenous displaced persons, the right to work shows higher levels of fulfillment than for afro-Colombians, the most important gap being gender: the rate of women that are working is 30% lower than that of men. The data in this paragraph and following paragraphs, unless otherwise noted, come from the ‘V Report to the Constitutional Court’ by the Civil Society Commission for the Monitoring of Public Policy on Internal Displacement, Comisión de Seguimiento a la Política Pública sobre Desplazamiento Forzad
Pertaining the right to housing
, afro-Colombians live in housing of lower quality and have less access to services than the rest of the IDP population. For instance, only 35,7% has access to services, compared to 50% for the rest of the displaced population. Only 4,5% of the displaced afro-Colombians live in housing complying with minimum standards (stability of ownership title, materials, services), compared to an already low 5,5% for the rest of the displaced population. Members of indigenous groups also show a worrisomely low enjoyment of the right to housing: only 2,5% of those displaced live in housing complying with minimum standards, compared to the 5,5% for the rest of those displaced.
, displaced afro-Colombians, especially those not included in the registry for displaced persons, have an affiliation rate to the public health system of 60%, compared to 75,3% for the rest of the population. Likewise, beyond displacement, afro-Colombians in general have lower affiliation rates than the rest of the Colombian population (Observatory on Racial Discrimination, 31 December 2008, pp. 48). The precarious access to health by afro-Colombians is paired with the more precarious determinants of health faced by IDPs in general, stemming from their proximity to violence and their being forced to flee. For their part, indigenous IDPs not registered in the Registry of Displaced Persons show the lowest rates of affiliation to the health system (67,6% for men and 66% for women).
Rates of access to education
for displaced afro-Colombians are equally despairing: afro-Colombian displaced people over 15 years of age have higher illiteracy rates than the rest of the displaced population (22,4% vs. 20%). This is merely a reflection of the larger gap between literacy for afro-Colombians in general and the rest of the Colombian population, which is about half. (Observatory on Racial Discrimination, 31 December 2008, pp. 48). It is encouraging that no significant gaps are found in the enjoyment of this right to education by indigenous IDPs and the rest of the IDP population.
There exist marked disparities in the enjoyment of rights between afro-Colombians and indigenous peoples, on the one hand, and the rest of the displaced population, on the other, disparities that are largely related to widespread discrimination. Complicating the situation of these groups, judicial remedies to combat discrimination and unequal enjoyment of rights are next to inexistent in Colombia. There are four rules against discrimination included in the Criminal Code and other codes, but none of them provide a legal channel for complaints. Thus most complaints come via the exceptional or subsidiary constitutional tutela
complaint—this is precisely how the Constitutional Court came to declare the unconstitutional state of affairs in the response to internal displacement, referred to above. Thus, complaints against discrimination have not adequately redressed rights. (Observatory on Racial Discrimination, 31 December 2008, pp. 60)
Right to Consultation
ILO Convention 169 on Indigenous and Tribal peoples establishes the right to consultation when decisions that affect the rights of these peoples are going to be taken. The violation of this right clearly increases risk of displacement. As reported by a platform comprising hundreds of NGOs to the Universal Periodic Review conducted by the Human Rights Council of the United Nations, this right has not been respected, as recently adopted rules affect indigenous populations, restricting the growth of "resguardos" of Wounáan, Embera, Eperara y Awá indigenous groups (Colombian NGO platforms, 31 July 2008, Report for the Universal Periodic Review of Colombia, July, 2008).
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