by Nelson Camilo Sánchez and Ilan Grapel
Nelson Camilo Sánchez is a research coordinator of the Center for the Study of Law, Justice, and Society Dejusticia and associate professor at the Universidad Nacional de Colombia in Bogota. Ilan Grapel is a recent graduate of Emory University School of Law. For the last six months, he has been working with Dejusticia, where he has been researching issues relating to transitional justice in Colombia’s peace process.
Land reform in Colombia, while politically sensitive, is necessary to stabilize the country and end a violent conflict that has plagued Colombians for more than half a century. Colombia’s internal fighting has deprived millions of their land and livelihood. Adopted in June 2011, Colombia’s Victims and Land Restitution Law, also known as Law 1448, is an important advance in providing restitution for those displaced by the conflict.
With this law, the government officially recognized the existence of an internal armed conflict. The Victims Law demonstrates that the government hopes to provide greater rights to the victims of the conflict. However, this legislation needs to overcome many obstacles; foremost among them, the Victims Law needs to find a way to provide reprieve to the large number of victims who may be entitled to compensation under the law.
To date, the government has made progress in realizing restitution claims. However, the law alone cannot cure Colombia of inequality within its population. As the government struggles to return impoverished victims to their lands, the moneyed classes continues to aggregate land and resources that allow them to maintain a lifestyle vastly different from the average Colombian, let alone the landless farmers. This inequality creates a tension that prolongs the hostilities and continues the displacement in the region.
For Colombia to transition into a successful and stable country, the government needs both to improve the Victims Law and address other land distribution problems.
The Victims Law: A good, but imperfect start
Colombia’s land restitution program has a colossal – some may even say Sisyphean – task to complete. Non-governmental observers have estimated there to be more than five million Colombians who were displaced from about six million hectares of land since 1985. The 2011 Victims and Land Restitution Law aims to return two million hectares to displaced victims. In practice, this will involve processing some 360,000 claims by 2021.
In an April 2013 interview, Ricardo Sabogal, the Director of the Restitution Unit, has explained the discrepancy between the amount of land to be returned under the Victims Law and that reported confiscated in NGO figures. On one hand, the Government expects that some victims will spontaneously return to their lands without having to claim it through the Law. In other cases, multiple victims have been displaced from the same plot of land at different times, giving rise to a higher number of claims than actual claimed land plots.
To date, the Land Restitution Unit received over 46,000 land claims, of which it has begun investigation of less than a quarter. Mr. Sabogal maintained that the Restitution Unit needs to examine each claim on a “case by case” basis. However, despite this particularized and arduous investigation process, the government has improved on its past attempts at land restitution.
Since the implementation of the Victims Law two years ago, the Restitution Unit succeeded in issuing more than 200 judgments involving restitution. Of these, 95% were favorable to the claimants. In contrast, under the earlier Justice and Peace Law, the government managed to issue only 13 sentences since 2005. However, the Victims Law’s 200-plus judgments represent less than one percent of the total current claims.
Furthermore, the continuation of the conflict within Colombia means the continuation of displacement. During the last decade, between 2002 and 2010, more than 250,000 people were displaced annually. Colombia needs to streamline the restitution process and thwart further displacements if it wants to lessen the number of internally displaced people.
The bureaucracy is not the only obstacle hindering the return of displaced victims — even if a land claimant succeeds in gaining legal rights to land restitution, the claimants struggle to take advantage of these rights due to the violence that they face from those opposing the restitution process. Evidence implicates the paramilitary successor groups, third parties who acquired the victims’ land, and, FARC guerrillas as the main perpetrators of the violence.
The Attorney General’s office reported that it was investigating 49 cases in which land claimants were killed, in addition to other threats of violence. Despite the murders, impunity reigns: prosecutors have only obtained convictions in eight cases and charged suspects in an additional seven; with regards threats, all the investigations remain at the preliminary stage. This harassment imperils the restitution process, since the fear of violence is the primary reason that claimants rescind their application for restitution.
Countering inequality within Colombia: The sin qua non for a successful transition
Improving the Victims Law will not be a panacea for Colombia’s problems. Successful implementation of the Victims Law will not cure the underlying problem of land concentration. Land Concentration in Colombia is among the highest in the world. Within Latin America, Colombia’s land inequality ranks second to Paraguay. The Victims Law is one positive step forward for Colombia. But the country also needs to tackle the problems stemming from inequality if it wants to transition to a peaceful country.
The current inequality within Colombia aggravates internal hostilities, which create more displacement. The charity Oxfam International reports that in Colombia “[i]nequality in access to land is closely linked to rural poverty, and is both a cause and a consequence of the internal armed conflict that has ravaged the country for more than half a century.”
The UN Food and Agriculture Organization (FAO) has warned against allowing land to concentrate in the hands of powerful corporations. Large-scale land purchases lead to problems such as the displacement of small farmers, loss of livelihoods, and the degradation of natural resources, according to the FAO.
Without careful legislation, those who already have land and resources, such as wealthy individuals and corporations, can circumvent laws that aim to prevent excessive concentration of land in a few hands. For example, the U.S. commodities trader Cargill found a way to acquire farmland that was many times above the legal limit in size. Investing their resources in the services of “sophisticated lawyers,” Cargill set up shell companies to buy plots of land, which it would later aggregate.
Oxfam reported that Cargill “violated the spirit of the law by accumulating an area at least 30 times greater than the permitted limit.” Other corporations exploited similar legal loopholes to acquire more land than was legally permitted. While the wealthy have managed to retain and even increase their riches, the poor have reaped little benefits from Colombia’s attempts at land reform.
The recent agrarian strike in Colombia highlights that, despite good-intentioned laws, the campesinos and other landless peoples remain impoverished. Farmers took to the street to express their dissatisfaction with the social conditions within Colombia. The spirit of land reform is not overcoming the entrenched positions of power that the wealthy landowners retain. Without more comprehensive land reform legislation, land ownership inequality – and its maladies – will continue to plague the country.