The right to food and housing for Internally Displaced Persons in Colombia and the Democratic Republic of Congo (DRC): geographical distance does not forcibly mean different situations

Author: Cristiano d’Orsi
Senior Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg

Author: Juan Pablo Serrano Frattali
Member of research group Social Anthropology of Motricity of the University of Granada

Colombia and the Democratic Republic of Congo (DRC) are the countries with the largest population of Internally Displaced Persons (IDPs) in South America and Africa, respectively, the third, and the second in the world (Syria heads the world ranking).[1] Internal displacement in Colombia constitutes a widely recognized phenomenon, having become an essential reference point for internal migration studies.[2] At the end of 2020, Colombia counted the highest number of IPDs in South America because of conflict and violence (4.9 million). In 2020, however, while Colombia counted 170,000 new IDPs, 106,000 of whom resulted from conflict and violence, Brazil counted 380,000 new IDPs, all due to natural disasters.[3] Violence continued in Colombia notwithstanding Covid-19 restrictions. Many combatants with the Revolutionary Armed Forces of Colombia (FARC) disbanded and reintegrated into society after the 2016 peace deal,[4] but dissident factions have since emerged, and paramilitary groups continue to exercise significant territorial control.[5] The department of Nariño, close to Ecuador, has been historically a hotspot of conflict and displacement given its strategic location on drug-trafficking routes.[6]

In the same period, DRC counted 2,488,000 new IDPs (2,209,000 because of conflict),[7] with a hotspot in the Ituri province, in the northeast of the country, bordering Rwanda, where tensions between Hema and Lendu communities became increasingly violent as the armed faction of the Lendu community carried out indiscriminate attacks on civilians.[8] The provinces of North Kivu, South Kivu, Maniema and Tanganyika also remain conflict hotspots, and ethnic tensions continue to be among the main causes of displacement in eastern DRC.[9] In DRC, the total number of IDPs as of the end of 2020 (because of conflict and violence) amounts to 5,268,000 persons, while “only” 64,000 are displaced because of natural disasters.[10]

This precarious situation has undermined the rights of IDPs to an adequate standard of living, especially food and housing, two of the very basic rights for all people worldwide, as prescribed by article 11(1) of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR).[11] Its 1991 General Comment No. 4 confirms, “The right to adequate housing applies to everyone” (para 6). Additionally, all beneficiaries of the right to adequate housing should have sustainable access; inter alia, to means of food storage, as well (para 8(b)).[12]

At the Inter-American level, although the 1969 American Convention on Human Rights (ACHR) deals primarily with civil and political rights, it includes in article 26 a general provision on economic, social and cultural rights. The ACHR refers indirectly to the right to an adequate standard of living when it mentions in article 26 the commitment of states parties to adopt measures to guarantee the realisation of the “rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter”.[13] In this case, the “Charter” refers to the 1948 Charter of the Organization of American States (OAS Charter) and most notably to articles 26-27 (“Economic standards”) and 28-29 (“Social standards).[14] The first Additional Protocol to the ACHR is in the area of economic, social, and cultural rights (Protocol of San Salvador, 17 November 1988), was ratified by Colombia on 10 November 1997.[15] Several articles of this protocol, such as article 12 (“Right to food”) but also article 3 (“Obligation of non-discrimination”) and 4 (“Inadmissibility of restrictions”) have been disregard vis-à-vis the conditions of the IDPs in Colombia in these last years,[16] particularly Afro-Colombians and indigenous people.[17]

At the African level, the 1981 African Charter on Human and Peoples’ Rights (Banjul Charter) does not explicitly promote the right to an adequate standard of living, housing and/or food. [18] However, these rights are not outside the scope of interpretative possibilities open to the African supervisory bodies, being covered by a combined reading of articles 5 (“Prohibition of torture and cruel, inhuman and degrading treatment”) and 14-18 of the Banjul Charter. The African Commission on Human and Peoples’ Rights (ACHPR) confirmed this interpretation in the decision following the communication The Social and Economic Rights Action Centre et al. v. Nigeria (communication no. 155/96) where it found violations of the rights to housing and food (paras 63 and 66).[19] In 2019 the ACHPR called on African states to adopt “appropriate policy, institutional and legislative measures to ensure the full enjoyment of the right to food which includes constantly accessible and quality food that meets the requirement of nutrition and cultural acceptability” (Resolution No. 431 on the Right to Food and Nutrition in Africa) (para 1).[20] Earlier, in 2017, the same institution was very concerned that most vulnerable groups, including IDPs, were those mostly affected by food insecurity on the continent (Resolution No. 374 on the right to food and food insecurity in Africa) (Preamble).[21]

At the domestic level, Colombia enacted a law on the protection of IDPs in 1997 (Law No. 387), article 15(1) of which provides that, in the case of displacement, the Government will take responsibility to assist the displaced, including in the area of food and temporary housing. Additionally, article 19(14) also provides that “The National Institute of Urban Reform, INURBE, shall develop special housing programs to address the needs of populations displaced by violence”.[22] In January 2004, the Constitutional Court delivered judgment T-025/04.[23] The Court formally declared that IDPs’ inhumane living conditions needed to be addressed by all of the competent authorities (para 5.3). The Court noted that due to action or omission by the authorities in providing displaced populations with effective protection, thousands of people suffer continuous violations of their human rights, including the right to food and the right to housing (para 6). Overall, the Court noted that the violations of rights of IDPs were not attributable to the actions or omissions of a single authority, but were due to deep-seated structural failures.

The Colombian Constitution formally recognizes the human right to adequate food (arts 45, 46 and 65),[24] which sets the foundation for a comprehensive legal framework that promotes food donation. This right is reflected in national food safety laws, including the recently adopted Law No. 1990 of 2019, and other laws relevant to food rescue and recovery. Before Law No. 1990, the President of Colombia executed the national food law for the protection of human health in 1979, which contains regulations related to food safety (especially Article 243).[25] Law No. 1990 deplores food loss and waste, promotes more sustainable food systems, and improve the food and nutrition security of the Colombian population.[26] The Colombian Constitution also recognizes the right to housing in several articles (especially 51 and 64). On 14 January 2021, the Colombian Government enacted the new Colombian Housing and Habitat Law. Through the new law, the Colombian Government is seeking to reduce the country’s housing deficit by increasing access to government housing subsidies and expanding the mortgage market by relaxing current conservative origination and underwriting practices in place since the last mortgage crisis of 1998-2002.[27]

In DRC, the right to food is guaranteed by the Constitution through its article 47.[28] This right has been strengthened through the adoption of the 2011 law on the fundamental principles of the agriculture (article 1(2)).It is worth mentioning also the 2018 Decree No. 18/033 on the creation, organization and functioning of the National Fund of Habitat (Fonhab), which among its objectives, also is mandated to fund the building of affordable housing (Article 3(2)).[29] Concerning IDPs, in the country there is still only a draft law on IDPs dating back to 2014 that, until 2021, has not been formally adopted. However, both articles 13(2) and 43 (1)(2) of the draft law obliges the state (“pouvoir public”) to assist the IDPs with food and shelter during the displacement (the two articles basically overlap in their core meaning).[30]  However, at the continental level, the African Union  adopted the first legal instrument for the continental protection of the IDPs (Kampala Convention)[31]in 2009. The DRC has, however, not yet acceded to the Convention because, although it signed it in 2010, it has not ratified the convention.[32] As such, DRC is not formally bound to article 9(2)(b) (“Obligations of states parties relating to protection and assistance during internal displacement”) of the Kampala Convention which obliges state parties to provide IDPs “[w]ith adequate humanitarian assistance, which shall include food, […] shelter […] and any other necessary social services”. In uncertain legal framework, the situation on the field is not certainly better with IDPs deprived of their rights to food[33] and housing.[34]

While there is not yet an analogous American instrument to the Kampala Convention applicable to Colombia, the Guiding Principles on International Displacement, still represent a significant reference for the protection of IDPs worldwide.[35] Principles 18(2) contends: “At the minimum, regardless of the circumstances, and without discrimination, competent authorities shall provide internally displaced persons with and ensure safe access to: a) Essential food and potable water; b) Basic shelter and housing […]”.[36]

The situation, possibly, has even worsened with the COVID-19 pandemic that has also heightened IDPs vulnerabilities and restrictions have put barriers to responses and efforts towards durable solutions. The health concerns caused by the Covid-19 virus undermines the right to an adequate right to food and housing for IDPs. In DRC, where a large part of IDPs are children;[37] immunisation faces major challenges such as lack of security and poor infrastructure that have delayed the vaccination campaign, especially in the conflict zones.[38] The situation is not very dissimilar in Colombia, where the official deaths from the virus surpassed 100,000 in early October 2021.[39]

Certainly the governments of Colombia and DRC have the responsibility for ensuring that IDPs are granted their rights and receive both humanitarian and non-humanitarian assistance.[40] National and departmental/provincial authorities should respond in an appropriate manner, ensuring at least minimum fundamental rights for the displaced. By contributing to the bridging of certain gaps, governmental organizations, non-governmental organizations (NGOs) and other stakeholders can play an important supporting role in implementing policies and programmes geared towards sustainable solutions. While there are difficulties in addressing certain fundamental problems faced by IDPs (such as poverty and violence), humanitarian assistance through strengthening IDPs coping mechanisms in the early stages, can contribute to the implementation of sustainable solutions, providing clear policies and programmes that can be put into practice by the government. In both countries, existing policies need to be implemented to ensure that basic rights of the civilian population are protected, food and housing included. Although there are legislative and institutional means to protect civilians from the ongoing violence, on many occasions it does not appear that these are enforced. At this point, both the governments of the two countries (and the armed groups involved in the crises) should ensure respect for international humanitarian law (IHL), in particular the principles of limitation, distinction and proportionality, in order to avoid displacement, when feasible, and ensure the protection of the people who are displaced. The existing policies and mechanisms also need to be strengthened and adapted to enable IDPs to be more autonomous, both economically and socially. While the emergency needs of the assisted IDPs are generally met during the first months of displacement, existing programmes do not ensure sustainable solutions for the displaced population in the long term, particularly in terms of access to housing. As such, we question the possible discrepancies between what is provided for within the legal frameworks and what is current being implemented, in order to help IDP families to become self-reliant and less vulnerable. This situation needs to be coupled with the present situation that IDPs are also at greater risk of anxiety, depression and other forms of distress, and these may be aggravated by the psychological impact of lockdowns and other measures designed to contain the pandemic.[41]

Finally, we expect to explore the opportunity whether a strong advocacy campaign highlighting the IDP situation could be launched. Displaced populations do not always have a voice or the ability to increase public awareness of their situation. An advocacy campaign could greatly strengthen national and international understanding of IDPs’ needs and aspirations in order for them to improve their lives and livelihoods. Attempts of a campaign of this kind have been undertaken both in Colombia[42] and in DRC[43] by several NGOs but until now, with no major success.

[1] https://www.nrc.no/global-figures/

[2] https://www.epsjournal.org.uk/index.php/EPSJ/article/view/89/83

[3] https://www.internal-displacement.org/sites/default/files/publications/documents/grid2021_idmc.pdf

[4] https://www.opendemocracy.net/en/democraciaabierta/si-se-ha-cumplido-con-lo-acordado-v%C3%ADctimas-instituciones-y-paz-en/

[5] https://www.crisisgroup.org/latin-america-caribbean/andes/colombia/colombia-peace-withers-amid-pandemic

[6] https://insightcrime.org/news/brief/drug-trafficking-violence-colombia/

[7] https://www.internal-displacement.org/sites/default/files/publications/documents/grid2021_idmc.pdf

[8] https://www.thenewhumanitarian.org/feature/2020/05/05/Ituri-Congo-Hema-Lendu-CODECO-demobilisation

[9] https://www.humanitarianresponse.info/en/operations/democratic-republic-congo/document/rd-congo-aper%C3%A7u-des-besoins-humanitaires-d%C3%A9cembre-2020

[10] https://www.internal-displacement.org/sites/default/files/publications/documents/grid2021_idmc.pdf

[11] https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

[12] https://www.refworld.org/docid/47a7079a1.html

[13] https://treaties.un.org/doc/publication/unts/volume%201144/volume-1144-i-17955-other.pdf

[14] https://treaties.un.org/doc/Publication/UNTS/Volume%20119/volume-119-I-1609-English.pdf

[15] http://www.oas.org/en/sare/social-inclusion/protocol-ssv/docs/protocol-san-salvador-en.pdf

[16] https://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/COL/INT_CESCR_NGO_COL_44_8427_E.pdf

[17] https://www.brookings.edu/testimonies/the-human-rights-situation-in-colombia-afro-colombians-and-indigenous-people/

[18] https://www.achpr.org/legalinstruments/detail?id=49

[19] https://www.achpr.org/public/Document/file/English/achpr30_155_96_eng.pdf

[20] https://www.achpr.org/sessions/resolutions?id=462

[21] https://www.achpr.org/sessions/resolutions?id=416

[22] https://www.refworld.org/docid/5a255b374.html

[23] https://www.brookings.edu/wp-content/uploads/2016/07/colombia_t-025_2004.pdf

[24] https://www.constituteproject.org/constitution/Colombia_2005.pdf

[25] https://www.animallaw.info/sites/default/files/4.%20LEY%209%20DE%201979.pdf

[26] http://www.andi.com.co/Uploads/Ley-2019-N0001990_20190802.pdf

[27] https://dapre.presidencia.gov.co/normativa/normativa/Ley-2079-14-enero-2021.pdf

[28] https://aceproject.org/ero-en/regions/africa/CD/rdc-constitution-2011/view

[29] https://www.droitcongolais.info/files/713.11.18.1-Decret-du-19-novembre-2018_fonhab.pdf

[30] https://www.refworld.org/pdfid/5a2688fa4.pdf

[31] https://au.int/en/treaties/african-union-convention-protection-and-assistance-internally-displaced-persons-africa

[32] https://au.int/sites/default/files/treaties/36846-sl-AFRICAN%20UNION%20CONVENTION%20FOR%20THE%20PROTECTION%20AND%20ASSISTANCE%20OF%20INTERNALLY%20DISPLACED%20PERSONS%20IN%20AFRICA%20%28KAMPALA%20CONVENTION%29.pdf

[33] https://www.rfi.fr/fr/afrique/20210410-rdc-un-congolais-sur-trois-frapp%C3%A9-par-une-grave-ins%C3%A9curit%C3%A9-alimentaire

[34] https://www.unhcr.org/fr/news/stories/2021/7/60f6b73da/forces-quitter-foyers-deplaces-internes-rdc-besoin-dabris-durgence.html

[35] https://sur.conectas.org/en/international-cooperation-internal-displacement-colombia/

[36] https://www.brookings.edu/wp-content/uploads/2016/07/gpenglish.pdf

[37] https://news.un.org/en/story/2021/02/1085182

[38] https://www.dw.com/en/dr-congo-faces-major-challenges-in-covid-19-vaccine-rollout/a-58619922

[39] https://www.nytimes.com/live/2021/06/21/world/covid-vaccine-coronavirus-mask

[40] https://www.refugeesinternational.org/reports/2021/8/6/internal-displacement-an-agenda-for-progress

[41] https://peacebuildingsolutions.org/the-psychosocial-impacts-of-covid19-on-refugees-idps/

[42] https://www.fmreview.org/recognising-refugees/GP20Colombia

[43] https://www.brookings.edu/wp-content/uploads/2016/07/The-International-Response-to-Internal-Displacement-in-the-DRC-December-2014.pdf

About the Authors:
Dr Cristiano d’Orsi is a Senior Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), Faculty of Law, University of Johannesburg. He holds a Laurea (BA (Hon) equivalent, International Relations, Università degli Studi di Perugia, Perugia); a Master’s Degree (Diplomatic Studies, Italian Society for International Organization (SIOI), Rome); a two-year Diplôme d’Etudes Approfondies (Master of Advanced Studies equivalent, International Relations (International Law), Graduate Institute for International and Development Studies, Geneva); and a Ph.D. in International Relations (International Law) from the same institution. Additionally, Cristiano has done post-doctoral studies at the University of Michigan Law School (Grotius Scholar) and at the Centre for Human Rights, Faculty of Law, University of Pretoria. His research interests mainly focus on the legal protection of asylum-seekers, refugees, migrants and IDPs in Africa, on African Human Rights Law, and, more broadly, on the development of Public International Law in Africa.

Dr. Juan Pablo Serrano Frattali, is member of research group Social Anthropology of Motricity of the University of Granada; he was cofounder and president of the Colombian NGO Liderazgo para la Paz. Co-author unconstitutionality public action against articles 1°, 3° and 5° of the Law 1394 of 2010 which regulates judicial tariff in Colombia. He holds a Master’s degree in Intercultural Mediation and Citizen Participation from the University of Valencia, a Master in Social Development from the Catholic University of Murcia and a Phd in Migration Studies, Cum Laude from the University of Granada.