Restitution gets a fresh chance in Colombia

by Rhodri C. Williams

The Economist has picked up on a positive trend in Colombia, where the new administration of Juan Manuel Santos has issued draft legislation proposing special courts to address the restitution claims of over 3 million internally displaced persons (IDPs) driven from their land over decades of conflict.

The bill incorporates a number of administrative shortcuts in favor of victims that have been proposed by various restitution wonks, including myself in a 2006 presentation for Fundación Ideas Para la Paz and a 2008 analysis for Displacement Solutions (as well as more broadly in the discussion of ‘facilitated procedures’ in Chapter 12 of the 2008 IDP Law and Policy Manual):

On September 7th Mr Santos’s administration published a bill to create special courts to oversee land restitution. It would also reverse the burden of proof, requiring owners to show they acquired land legally and without violence or threats. The aim is to restore 2m hectares to the dispossessed over the next four years. ….

It will not be easy. Some 70% of displaced people hold no formal title, and many worked the land under unwritten sharecropping arrangements, according to Ana Maria Ibáñez, an economist at the University of the Andes in Bogotá. The bill proposes a new land registry based on testimony by the displaced and their neighbours. The broader aim is to formalise land tenure in a country where only 40% of farms have titles and only half have been valued. The registered value of Colombia’s national territory (of 114m hectares) is just $279 billion, of which property in Bogota, the capital, accounts for 40%.

Its low value encourages owners of land to leave much of it fallow or sparsely grazed by a few cows. Juan Camilo Restrepo, the agriculture minister, wants to induce more productive use of land. Almost half the 38.6m hectares devoted to ranching could be used for intensive farming, the ministry reckons. It also wants to turn some fallow or confiscated land over to landless people, as a way to reduce Colombia’s high unemployment rate. A new “peasant-farmer reserve zone” will be created near the Montes de Maria, an area where agribusinesses have been buying land from indebted small farmers at bargain prices. And once land is properly valued it could be duly taxed.

A note of caution is in order as Colombia has been a graveyard of reparations plans in the past. My own report for DS (above) begins by listing ten laws and decrees with provisions on both the narrow issue of property restitution and broader questions of victims’ reparations and land administration reform, most of which remained largely unimplemented. Indeed, the report itself was intended to facilitate a draft Victims’ Law that was launched with great optimism but quickly fell afoul of the politically polarized legislature. However, Santos’ new mandate may provide a conducive atmosphere for passage of the draft law, and if so, the early and serious attention being given to this issue bodes well for its implementation.

Beyond the operational details of the bill, it would be interesting to hear from better-updated readers on a number of points. One is the role of the National Commission for Reparation and Reconciliation (NCRR) in all of this; during my last trip to Colombia there was talk of developing a truth commission on land and property issues. Some of the liveliest discussions I had with local interlocutors focused on the extent to which information generated by such mechanisms could assist in providing a sound legal basis for the types of presumptions envisioned in the current bill:

Systematic attempts to identify patterns of dispossession have been proposed in the form of truth commissions for land and property. Such efforts should ideally begin in advance of a restitution process in order to ensure that the findings of such a commission would not only serve the functions of historical memory and recognition of violations and abuses, but could actually be accorded evidentiary weight in identifying times and places in which, for instance, transactions of land could be presumed to have taken place under
duress. (DS Report, para. 47)

Another interesting question in the Colombian context is the implications of the draft law for those who lost property but are not interested in return. The question of local integration of IDPs is particularly compelling in settings like Colombia where displacement movements have tracked broader patterns of rural to urban migration. The unlikeliness of reversing such trends has been a key part of recent critiques of restitution standards like the Pinheiro Principles, as reflected in ODI-HPG’s recent research.

This issue was floated in the DS report as well (recommendation 4) but goes beyond the remit of a restitution law in some respects. For instance, while it is important to ensure that reparations for wrongful loss of property rights are not made contingent on return, the framework governing the form reparations might take in support of local integration could ultimately take in issues as disparate as ensuring tenure security in informal settlements and facilitating upgrading through the provision of services and utilities.

A third question is the extent to which the proposed new system might be able to take on board the thousands of claims made to the dormant reparations mechanisms created under prior legislation, rather than forcing claimants to go through yet another new claims process. The DS report recommends a ‘harmonization’ mechanism that would allow old claims to remain in play before new mechanisms, but it is far from clear that such an approach would be technically feasible.

The broader debate about responses to post-conflict housing, land and property (HLP) issues has been salutary in a number of respects, and not least through the achievement of an understanding that restitution remains an important element of potential responses to such issues but should not necessarily be the dominant or default response. In this context, Colombia presents not only a particularly compelling case for adopting a restitution program but also a particularly challenging environment for implementing it.

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7 responses to “Restitution gets a fresh chance in Colombia

  1. Sebastian Albuja

    Hi Rhodri,

    Thanks for the post. We (IDMC) have a report coming up soon on the issue. It is surprising and encouraging that Santos has brought this bill to Congress so quickly. It is not clear what is going to happen to the CNRR process, since the CNRR had just finished drafting a restitution plan. The new bill is independent of that plan.
    Best,
    Sebastián

  2. Thanks Sebastian, and your report is certainly timely. It would be very interesting to get a better sense of how the draft law relates to the CNRR plan. If the disconnect is complete, this would appear to pose a risk of exacerbating the situation described in the third point in my post, namely the question of how to manage both the logistical aspects and the popular expectations created by the existence of so many parallel reparations processes.

    By the way, your comment reminded me of a fourth important issue, namely the degree to which the new bill may include targeted mechanisms that would provide meaningful redress to indigenous and Afro-Colombian communities who have not only been violently displaced from traditional homelands, but now face permanent dispossession, in many cases due to the concession and sale of their land for conversion into palm oil plantations. Both communities are meant to enjoy special rights to their lands under the constitution and special legislation, but an earlier report by IDMC indicated the enormous difficulties of giving effect to these rights in practice:

    http://www.internal-displacement.org/idmc/website/resources.nsf/%28httpPublications%29/A8F43F377B96050DC12574C2004C1A4B?OpenDocument

  3. Hi Rhodri and colleagues,

    I agree with you that the momentum given by the Santos administration bodes well for the adoption of a reparations program this time around. For one, the administration has a clear majority in Congress that should in principle support this Government-backed bill. However, questions remain regarding some aspects of the bill. In the meantime and while we finalize our report, here is a brief description and commentary on the proposed bill.

    The ‘motivations’ section of the bill mentions that it sets out to implement the orders given to the Government by the Constitutional Court in relation to IDPs land rights. The bill does include many guarantees for victims contained in the Colombian Constitution and international law (and included in your recommendations in the Displacement Solutions report). Firstly, it chooses restitution as a preferential mechanism over alternative means of reparation. Secondly, it makes eligible for restitution not only those with property titles, but also people that had informal tenure over land. Thirdly, it establishes a presumption that dispossession happened in areas where generalized violence took place. These areas will be determined and delimited by the government prior to the implementation of the mechanism, and will be made priority zones for restitution.

    This last point raises concerns because the areas tagged for prioritization are only those where violence caused by paramilitary groups has been documented as part of the Justice and Peace (paramilitary demobilization) process. All other zones would be effectively excluded from the bill, as well as individual cases of dispossession outside areas of generalized violence.

    Regarding beneficiaries of restitution, the bill proposes creating a Registry of Appropriated Land. People with restitution claims in the priority areas will be included in this registry, either upon request or automatically. The bill does not specify other rules on who will be admitted or excluded, and this will most likely be decided on the regulations to the Law once adopted. Indigenous territories, which you mention in your last post, are to be included in the registry after consultation according to ILO 169.

    The Economist’s reference that the bill creates special courts to oversee land restitution is inaccurate. The proposed bill creates a hybrid judicial/administrative jurisdiction for sorting out the claims. The administrative entity, created for ten years, would be in charge of managing the Registry, and this entity will then bring the claims before appeal judges, acting as prosecutor representing the victims. (Those judges are part of an already-existing agrarian jurisdiction, put in place decades ago as part of one of the Agrarian Reforms, but never staffed with judges).

    These judges will rule on claims after an abbreviated procedure (four months in total), in which those opposing the restitution claim will have to prove that they acquired the land lawfully. Ordinary evidence rules will apply. Good-faith secondary occupants will be paid compensation from a trust fund that will be created for this purpose and funded by the Government and international donors. To prevent repetition of dispossession, the bill bans any transaction after the restitution decision. Even though this has been incorporated as a protection, it clearly limits the possibilities of IDPs not interested in returning—which in Colombia, as surveys show, are the vast majority.

    There is significant difference in contents between the ‘motivations’ section of the bill and the text of the bill itself. The former mentions measures to support agricultural production by returnees, rural development incentives, land allocations to peasants who didn’t lose land, among other things. The actual bill does not include articles on this. They will most likely have to be introduced in additional legislation.

    Finally, your concern about previous processes is on target. With the new bill, all the progress made under the Justice and Peace Law and the Comisión Nacional de Reparación y Restitución (CNRR) falls by the wayside. People who have brought claims before the Regional Restitution Commissions created under the Justice and Peace Law could now be excluded from this process, or would have to start all over again.

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