by Megan Ballard
Megan J. Ballard is an associate professor of law at Gonzaga University. She has previously guest-posted on TN regarding debates surrounding the right to restitution. Her current posting comes in response to Sebastián Albuja’s recent update on the Colombian Victims’ Law. The text of the Law (in Spanish) is now available under ‘key documents’ on IDMC’s Colombia page.
Thanks for this update on Colombia. I just returned from a quick research trip there and had a number of interesting discussions with lawyers and others involved in Colombia’s property restitution efforts. I heard many people echo repeatedly three of your points: 1) passage of the “Victim’s Law” is an incredible accomplishment; 2) assuming good-faith efforts to implement it’s provisions, there are a number of challenges ahead; and 3) suspicion that government actors might have ulterior motives in adopting this legislation.
This is an amazing step, for the reasons you mention. In addition, the change in the definition of “victims” from an earlier draft to the final bill is an impressive one that will allow this legislation to apply to a significantly larger number of people. As of mid-April, the draft defined a victim as a person whose fundamental rights have been impaired since 1991 or later. The final law, defining victims as people who have been harmed since 1985, is a huge accomplishment.
You are correct to note the challenges, even if there is a good faith effort to implement this legislation. While you point to special mechanisms to help meet these challenges, some may not be new mechanisms, but repurposed ones. For example, the new “special agency” is likely to be the “Project on Protection of Land and Patrimony of Internally Displaced Persons (Proyecto)”, formerly under the auspices of Acción Social, but recently moved to the Agricultural Ministry.
Similarly, the legislation creates a new registry of forcibly abandoned property, but this will use the former registry (Registro Único de Predios y Territorios Abandonados – RUPTA) as its basis. Maybe repurposing existing mechanisms will be an efficient way of getting the restitution ball rolling. But given what I understand to be widespread lack of confidence on behalf of victims in either the initial Proyecto group or the RUPTA process, I don’t know how renaming these mechanisms will generate credibility.
The international community is, indeed, rallying to support implementation of this legislation – the restitution provisions, in particular. The G24 began coordinating support for the legislation before it was passed. (This is a group of 24 countries and international institutions working with the Colombian government and civil society on issues of development, peace, and human rights.) The group decided on May 3 to form a subgroup on restitution, headed by the Mexican Ambassador to Colombia, Florencio Salazar. The group will coordinate G24 work with the Colombian government to support its implementation of the new law’s restitution provisions.
I also heard much skepticism about the restitution part of this victim’s law. More than a few people fear that the new restitution process is about titling land so that mining companies will have more legal protection for investing and operating in Colombia. Indeed, Santos’s National Development Plan 2011-2014 calls for substantially expanding the mining sector by 2014, including nearly doubling coal production within that time frame.
On a less skeptical note, there is a recent development in Colombia related to restitution that I don’t think has received mention on this blog yet. This is the Constitutional Court’s recent ruling protecting the return of a displaced agricultural community in the “Las Pavas” case. (Sentencia T-267 de 2011) Plaintiffs were 123 families who had moved onto the Las Pavas land in 1997, after it had been abandoned by its owner, Jesus Emilio Escobar (alleged to be the uncle of Pablo Escobar, the now-deceased drug trafficker). These families lived on and cultivated the land until paramilitary action in 2003 forced them to leave.
Families gradually returned and they petitioned a government agency in 2006 to declare that Escobar forfeited the land, under a statute similar to private eminent domain legislation. While this action was pending, Escobar purported to sell the land to two companies for palm oil production. The companies requested police assistance in evicting the occupying families and the police ordered the evictions in 2009. The Constitutional Court ruled on May 5 that the police action to evict the occupiers was substantively and procedurally defective; it was improper to take any action in light of the pending forfeiture process, particularly given the government’s legal duty to specially protect the forcibly displaced population. Colombian lawyers indicated that this case represents a turning point in the Court’s approach to restitution – one that will bolster the Agricultural Ministry as it implements the restitution provisions of the new Victim’s Law.