by Sebastián Albuja
IDMC has just published a report on land restitution for IDPs in Colombia, entitled ‘Building momentum for land restoration: Towards property restitution for IDPs in Colombia.’ The report examines progress towards property restitution for IDPs in Colombia, placing a restitution bill recently introduced by the Government in the context of previous initiatives, analyzing its contents and potential obstacles, and offering recommendations to guarantee victims’ rights in the process. We are glad to introduce the report here and we invite TN readers to download it at our website.
Protracted internal armed conflict and massive human rights abuses by illegal armed groups in Colombia have resulted in extensive loss of land by internally displaced people (IDPs) over the last decades. The number of IDPs is estimated to be between 3.3 and 4.9 million, most of them peasants, indigenous people and Afro-Colombians. Roughly half of all internally displaced families owned or occupied land before their displacement, and virtually all of them have lost it as a result.
Displacement and land loss have also meant loss of livelihoods—around half of Colombia’s IDPs were above the poverty threshold before displacement, compared with only three per cent afterwards. Giving IDPs back their land is therefore an urgent task as it is a hugely complex one.
There have been several attempts to start a restitution process in the last five years, but none of them have been successful, mostly because the government’s will to return land to IDPs has been shown lacking. The Constitutional Court has taken steps to encourage restitution. In January 2009, it ordered the government to take comprehensive steps to redress the land rights of IDPs and to put in place mechanisms to prevent future violations.
The newly-installed Santos administration pledged during the election campaign to restitute land to Colombia’s IDPs and has now taken steps to fulfill its promise by bringing a bill for land restitution to Congress in September 2010. The bill offers a realistic opportunity to provide restitution, based on government support that previous attempts lacked.
The initiative has captured a fair amount of media attention. Some media outlets in Colombia (and internationally) have referred to this initiative as agrarian reform. In fact, it includes no elements of agrarian reform that would redistribute land to correct the country’s historic inequalities dating back to colonial times. It instead addresses the more immediate and narrow problem of giving back land to those who have lost it as a result of conflict and human rights abuses. The structural issue of unequal land tenure in the country remains untouched.
This initiative has dissipated scepticism among human rights activists over President’s Santos commitment to give land back to the millions of IDPs who have lost it as a result of displacement. At the same time, the proposed bill has been something of a disappointment for those who have been working hard to finalize the Program for Property Restitution (Programa de Restitución de Bienes or PRB) within the National Commission for Reparations and Restitution (Comisión Nacional para la Reparación y Restitución or CNRR), given that this effort is now effectively sidelined and replaced by the proposed bill.
However, many of those involved in the drafting of the PRB have welcome what seems to be a serious commitment from the Government to restitute land in Colombia, and have recently offered their own views on the new Government’s initiative.
In its new report, IDMC also welcomes the Santos’ Government’s commitment to land restitution for IDPs and notes that the proposed bill includes a number of measures that are in line with international standards on restitution, including those set out in the Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles).
However, we also identify aspects of the bill which may become threats to victims’ rights as the plan begins implementation, and call for the introduction of a number of changes to the bill during the Congressional debate.
Firstly, the bill (Article 2) focuses restitution exclusively on areas affected by generalized paramilitary violence as recognized within the Justice and Peace (paramilitary demobilization) process. Thus, it excludes a number of groups from bringing claims, including victims outside those zones, victims of other perpetrators (including new armed groups), victims of individual cases of dispossession, and people who have lost land when fleeing combat between Government forces and insurgent groups.
Secondly, it gives an administrative entity the exclusive power to decide whose claim is legitimate when there are conflicting claims over the same property, preventing this decision from ever reaching the judiciary, without specifying rules to govern this decision, and without the possibility of an appeal (Article 22 onwards).
While it may be beneficial to allow a single administrative unit to take care of the management aspects of the restitution process, like handling a registry of claims, accumulating restitution claims that may be pending in other jurisdictions, or even establishing prima facie eligibility (as suggested by Displacement Solutions), there should be clear rules to guide these decisions (currently lacking from the bill), and they should be subject to appeal.
Another issue is that the bill privileges return as a durable solution for IDPs. By ruling that beneficiaries that do not want to return are to be given compensation instead of restitution (Article 19), it limits the option of people who might otherwise choose restitution in order to return and then realise that they cannot live in their place of origin. Claimants should be entitled to restitution independently of their decision or intention to return.
In addition, the law imposes a two year ban on transactions related to repossessed property (Article 21). While intended to prevent forced sales, it significantly limits people’s right to dispose of their property, especially as there is no possibility for the owner to request a lifting of the ban.
We have suggested that victims should either be given this opportunity within the restitution process, or the ban should be lifted altogether, giving beneficiaries the chance to request at the time of repossession that their land be included in Acción Social’s Land Protection Program (Programa de Protección de Tierras or PPT). This program was created in 2003 to prevent displaced people losing their land. The mechanism devised by the PPT to protect land from appropriation through forced and false transactions allows people at risk of displacement to request that a prohibition of sale or transfer be placed on their property.
Another issue of concern is that the proposal lacks differential measures to guarantee property restitution for women, who are in a situation of disadvantage when it comes to property rights. The orders of the Constitutional Court in relation to women’s property rights should be incorporated in the proposal.
In addition to giving land back to IDPs, the Santos administration has also vowed to support returning IDPs by providing incentives and subsidies to small-scale agriculture. But none of these measures are included in the bill. If returns are to be sustainable, formal recognition of rights is necessary but not sufficient: support measures should be incorporated in the restitution law, for example, by drawing on the supplementary measures that were already proposed by the CNRR’s PRB (see PRB, pp. 57 onwards).
An effective property restitution plan paired with support for returns and development of small-scale agriculture is a necessary first step towards consolidating peace in Colombia. But if restitution is to prove sustainable and promote peace, it will have to be accompanied by a new agrarian development model that promotes small-scale agriculture as well as large-scale agro-industry.
In the long run, sustainable peace will only be attained if the conditions that have given rise to violence and dispossession, notably the extremely unequal distribution of land, and abuses by armed groups, are eradicated.