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Social programs and humanitarian assistance do not substitute for the reparation of the victims
1. COMISIÓN COLOMBIANA DE JURISTAS Con el apoyo de:
Organización no gubernamental con estatus consultivo ante la ONU
Filial de la Comisión Internacional de Juristas (Ginebra) y de la Comisión Andina de Juristas (Lima)
UNIÓN EUROPEA
PERSONERÍA JURÍDICA: RESOLUCIÓN 1060, AGOSTO DE 1988 DE LA ALCALDÍA MAYOR DE BOGOTÁ
Bulletin No 33: Series on the rights of the victims and the application of Law 975*
Social programs and humanitarian assistance do not substitute for the reparation of the
victims
This past December 4th, the Constitutional Court issued Sentence C-1199 of 2008, through which it
declared unconstitutional Paragraph 2 of Article 47 of Law 975 of 2005, which stipulated that:
Social services provided by the government to the victims in conformity with the norms and laws
in force, are part of reparation and rehabilitation. The Court adopted this decision on the
occasion of an unconstitutionality suit against several provisions of the law of justice and peace
filed by the non-governmental organization, DeJusticia.
In its ruling, the Constitutional Court concludes that the above-mentioned norm is unconstitutional
for two reasons. In the first place, the Court starts out from the recognition of conceptual and
juridical differences among three institutions: social programs (social policies for the effective
guarantee of economic, social, and cultural rights), humanitarian assistance, and comprehensive
reparation of the victims of human rights violations:
With regard to this topic, the Court begins by recognizing the conceptual separation
that exists between the government s social services, humanitarian assistance in case
of disasters (regardless of their origin), and the reparation of the victims of human
rights violations. Indeed, as the actors involved maintain, and is accepted by all the
intervening parties, we are dealing with obligations and actions that are clearly
distinguishable in what concerns their source, their frequency, their recipient, their
duration, and various other aspects. Likewise, the Court accepts that, for these same
reasons, none of such actions can replace another to the point of justifying the denial of
any specific obligation owed by the State to any specific person on the basis of having
provided another or other benefits having different sources and purposes. 1
Secondly, the Court considers that the norm object of the suit generated confusion among the three
types of measures mentioned, which would result in, for example, due reparation to the victims
being curtailed because social services are being provided by the State. In this sense, the Court
warns that under this law some victims could obtain no amount or benefit at all by way of
reparation (or, paradoxically, could even end up owing the State) because of the social services of
which they may have been beneficiaries. To the Court, this situation would cause detriment to the
victims right to comprehensive reparation and is constitutionally unacceptable in a context of
transitional justice.
Several reasons lead us to highlight the importance of the Constitutional Court s decision. Indeed,
through this decision the Constitutional Court begins to draw a more precise line between the
formulation and implementation of social programs aimed at overcoming poverty and the
satisfaction of economic, social, and cultural rights, humanitarian assistance, and formulas for the
reparation of victims of human rights violations. This presupposes acknowledging the autonomy of
*
The present publication has been prepared with the support of the European Union and its content is the sole
responsibility of the Colombian Commission of Jurists. In no way should it be thought to reflect the point of view of the
European Union.
1
Constitutional Court, Sentence C-1199 of 2008, M.P.: Nilson Pinilla Pinilla.
Calle 72 Nº 12-65 piso 7 PBX: (571) 3768200 (571) 3434710 Fax: (571) 3768230
Email: ccj@coljuristas.org Website: www.coljuristas.org
Bogotá, Colombia
2. the right of the victims to comprehensive reparation and the specific nature of the measures that the
State must take to guarantee it. Reparation has as at its origin the harm caused to the victim, and in
consequence its extent and materialization depend on the type of harm the victim has suffered.
Furthermore, although there is a material dimension to reparation, there is also (in contrast to social
programs and humanitarian assistance) a symbolic dimension to reparation that must be satisfied,
since the harm that leads to reparation most often is irreparable.
Likewise, the Court s sentence leads us to warn about the risks of adopting as formulas for
reparation traditional mechanisms and procedures that were designed to deal with situations that do
not correspond to the circumstances of the victims of human rights violations. 2 Indeed, as the Court
points out, the benefits derived from social programs must be granted to all persons, without
distinction or condition as part of the solidarity of the State with the neediest, and as the fulfillment
of economic, social, and cultural rights, and therefore they cannot replace the specific mechanisms
that must be put in place for the reparation of human rights violations. Thus, the benefits derived
from social programs must not be perceived by the victims as measures of reparation of the violence
they have suffered, but rather as benefits they receive as a result of their condition as citizens.
Similarly with the humanitarian assistance that aims to take care of the most pressing needs of the
victims of calamitous situations (victims of the armed conflict or simply of natural disasters) but
that does not aim to restore their rights, which constitutes one of the objectives of reparation of
human rights violations. Thus, the construction of social citizenry through an effective guarantee of
economic, social, and cultural rights and humanitarian assistance of victims of emergency situations
cannot be mixed up with reparation measures for those who have been the victims of human rights
violations.
The clearest example of how the confusion created by the norm in Law 975 of 2005 would affect
the right to comprehensive reparation is the case of the victims of forced internal displacement.
Indeed, according to the norm declared unconstitutional, all benefits derived from social programs
in which the displaced could be included (Families in Action, Together Network, Women Savers in
Action, Food Security Network, family and housing subsidies), and humanitarian assistance
measures (geared to help, assist, and protect the displaced population and to take care of their needs
for food, personal hygiene, provisions, cooking utensils, medical and psychological attention,
emergency transportation and transitory housing under decent conditions3) could have been deduced
from the reparation that the displaced population has a right to. Thus, the norm declared
unconstitutional would have attributed reparation effects to measures that, it must be said, have not
even fulfilled the purpose for which they were created in the first place (the enjoyment of economic,
social, and cultural rights by the entire population, progressively overcoming poverty, and
assistance to victims in emergency situations) and about which all kinds of concerns have been
expressed, since, generally, they lack a rights perspective and are limited to conditioned cash
handouts. 4
2
Precisely one of the flaws pointed out by the Constitutional Court in its judicial decree 218 of 2006 is the lack of
specificity of the policy of assistance to the displaced population in its different manifestations. Constitutional Court,
judicial ruling 218 of 2006, M.P.: Manuel José Cepeda Espinosa.
3
Article 15 of Law 387 of 1997, through which measures are adopted for the prevention of forced displacement; the
care, protection, consolidation, and socioeconomic stabilization of the internally displaced population in the Republic of
Colombia.
4
A balance of the state s measures with relation to the displaced population can be found in Judicial Ruling 008 of 2009
by the Constitutional Court . M.P.: Manuel José Cepeda Espinosa. The distinction between humanitarian assistance and
reparation had already been drawn by the Constitutional Court in the Declaration on the rights of every person victim of
forced displacement, included in Sentence T-025 of 2004. Constitutional Court, Sentence T-025 of 2004, M.P.: Manuel
José Cepeda Espinosa.
2
3. Fortunately, the Constitutional Court corrected this flaw in Law 975 of 2005 considering that the
inclusion of social services as part of reparation and rehabilitation was contrary to the effective
enjoyment by the victims of their fundamental right to comprehensive reparation for the crimes
committed by the beneficiaries of the law of justice and peace.
Bogotá, March 11, 2009.
For further information, please contact: Gustavo Gallón Giraldo, Director CCJ (Tel. 571-376 8200, ext.
115).
3