By Rodrigo Uprimny, EL ESPECTADOR, February 5, 2022
(Translated by Eunice Gibson, CSN Volunteer Translator)
Decision SU-020/22 from last week, which declared a “State of Unconstitutional Affairs” (ECI in Spanish) because of the threats and murders of former FARC combatants who have reincorporated into civilian life, is at the same time obvious, as it doesn’t discover anything new, and of transcendental importance, for its possible impact. I will explain this apparent paradox.
The Court declares an ECI when i) there exists a massive violation of the fundamental rights of a population which ii) is not a result of isolated events, but rather is a failure by certain authorities to carry out their obligations, so that iii) individual civil rights actions don’t work and it’s necessary iv) that the judge responsible for interpreting the Constitutional must formulate general orders to the relevant authorities.
The security situation for the reincorporated ex-combatants is critical, as more than 300 of them have been murdered. And even though there was a reduction last year, the number of killings continued to be very high: 54, which is to say, more than one per week. And at any rate, the Duque administration’s record is appalling: 2019 and 2020 are the worst years, with 78 and 71 murders respectively.
This serious situation of insecurity for the reincorporated ex-combatants is complicated and derives from various factors, but one of them is that the government has refused to apply vigorously Point 3.4 of the Peace Agreement. It created a “system of security guarantees” for the demobilized and the social leaders, with individual and collective protection measures, and with institutional mechanisms such as the National Commission for Security Guarantees. Duque, instead of stepping on the gas at that point, hit the brakes, drastically, not just because of his antipathy toward the Agreement, but also because he supposedly had better strategies. But his strategies have failed, as demonstrated by the numbers on murders of social leaders and ex-combatants who reincorporated.
The Decision sets forth those events, which had been reported earlier by the United Nations Verification Mission in Colombia and by the Security Council. These agencies have also called for compliance with the system of guarantees required by the Agreement. It was obvious that the ECI had to be declared, so that the Court could order the government, among other things, to put that system of guarantees in place and carry out the Agreement. Nevertheless, that doesn’t take away the importance of the Decision, because of the impact that it could have.
The Court has declared a dozen ECI’s in the past, based on different problems, such as the situation in the prisons, the rights of the displaced, the notary public contests, or the bureaucratic delays in processing at Colpensiones. Some of those ECI, like the ones at Colpensiones or the notaries, were lifted, because the situation got a lot better. In other cases, like that of the displaced people, the ECI has been maintained for years, and has been lifted only partially, as the situation continues to be critical.
In spite of those differing outcomes, the academic consensus is that the ECI generally have an enormous and positive impact, especially if, as on this occasion, the Court retains jurisdiction to monitor compliance with the Decision. Thus, the declaration of an ECI places the problem in the center of the national debate, and obliges the government to react. The orders and the monitoring by the Court generate discussions on the matter, and also, other actors participate in those, such as academics or civil society, provoking a “jurisprudential dialog” that improves transparency and the quality of public policies.
The Duque administration, which has advanced a great deal in certain components of the reincorporation of ex-combatants, now has the opportunity to overcome this terrible failure to guarantee the security and the lives of the ex-combatants who reincorporated. That is the minimum obligation that a government assumes in any peace process. That opportunity cannot be wasted.
 Colpensiones is a pension management agency in Colombia.