NB: Sebastián Albuja covers Colombia for IDMC and is currently working on a report on restitution issues there. In the meantime, he has provided a few comments on my post from yesterday, including a closer reading of the new draft restitution law which is so interesting that it deserved to be a post in its own right:
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.
áThis 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.