Land reform in Colombia: One step forward, two steps back

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.

Upcoming guest posting on the Colombian restitution process

by Rhodri C. Williams

I am very pleased to announce another happy by-product of my recent participation in the Essex Transitional Justice Network’s recent course and seminar on land issues in transitions. In addition to Clara Sandoval’s upcoming guest-post on the Inter-American Court of Human Right’s recent ruling on Chile, I can now reveal that another seminar participant, Camilo Sánchez of the Colombian NGO Dejusticia, will be writing for TN together with his colleague Ilan Grapel.

I have had the pleasure of getting to know Camilo during earlier work on property issues in Colombia, such as a UNHCHR workshop for the then-newly minted restitution judges precisely a year ago (for all the presentations including my own in simultaneous Español, see here). In the context of what is often a hopelessly prickly relationship between government and civil society, Camilo and his colleagues at Dejusticia deftly combine effective advocacy with sharp, independent analysis.

Camilo’s post will focus on the implementation of the current program of restitution of land aimed primarily at victims of Colombia’s right wing paramilitaries, arguing that improvements to the functioning of the restitution law should be accompanied by a broader commitment to distributive reforms. This is of course a crucial topic at the moment for Colombia, given the negotiation process with the Farc that resulted in a landmark agreement on agrarian reform last Spring.

One of the issues that has haunted both the current restitution process and the Government’s efforts to negotiate an end to the conflict with the Farc has been the issue of whether it will truly be capable of ending a centuries-long tradition of failed land reform and resulting political instability. Ana Maria Ibanez and Juan Carlos Munoz captured this historical dynamic in their chapter of a 2010 Forum for International Criminal and Humanitarian Law volume on “distributive justice in transitions” (highly recommended and available here in pdf).

Ibanez and Munoz describe how Colombia’s vast interior allowed successive governments to buck pressure to redistribute land by encouraging the “colonization” of smallholder plots – only to have the big landowners swallow these plots up again, turning their cultivators into impoverished and aggrieved tenants. Cited in a recent article in the Economist, Ibanez has gone on to note how mass displacement and ongoing violence from the last round of ‘agrarian counter-reform’ have fundamentally reduced tenure security for all farmers, reducing the country’s agricultural efficiency: 

Chilean judiciary apologizes

In what the BBC has called an ‘unprecedented’ move, the Chilean National Association of Magistrates of the Judiciary has apologized for failing to protect the rights of those persecuted by the Pinochet regime in the 1970s and 80s. Coming just a week shy of the 40th anniversary of the September 11, 1973 coup that brought Pinochet to power, the judicial apology appears to come as part of a broader moment of reflection.

Although the executive branch and security forces clearly had the most to answer for at the time, it seems the judiciary played an entirely passive role:

The magistrates’ association acknowledged that the Chilean judiciary could and should have done much more to safeguard the rights of those persecuted by the dictatorship. It said the judges had ignored the plight of victims who had demanded their intervention.

Chilean courts rejected about 5,000 cases seeking help on locating missing loved ones abducted or killed by the authorities. Critics say their usual response was they had no information about their fate.

Such a judicial apology raises an interesting set of issues. Apologies are often seen as sensitive because even as symbolic acts, they can have material consequences. There is a fine line between taking moral responsibility for atrocities and taking legal responsibility for them and compensation claims are usually quick to follow.

For instance, the recent admission by the Farc in Colombia that it shared responsibility for the suffering that has resulted from its prolonged insurgency is seen as a prelude to wrangling over its liability to compensate victims in the ongoing peace negotiations with the Government.

However, apologies are usually issued by the executive or perhaps the legislative branch, with the consequences likely to be handled through the courts or administrative reparations programs. When a Court admits liability for violations in the form of systematic failure to provide remedies, what are the consequences of that? Its hard to imagine that the relatives of the disappeared turned away twenty years ago would be permitted to go back to those courts now in order to sue them.

It is also interesting to query whether this could lead to a trend. I suspect TN readers can think of other courts that may have failed to take the high road in the past or are neglecting to do so now. Any nominations for the next few judiciaries that should be getting in line for some sackcloth and ashes?

 

Land deal between Government and FARC in Colombia

by Rhodri C. Williams

Reports have emerged this morning that peace negotiations between the Colombian government and the left-wing Farc rebels have resulted in an accord on land issues. The chief Government negotiator, Humberto de la Calle describes the land agreement (here, in Spanish) as a measure that will “transform the rural realities of Colombia and create real changes that can close the gap between rural and urban areas.”

In both Mr. de la Calle’s official statement and the actual Joint Communication issued by the parties to the negotiations in Havana (both in Spanish), a good deal of stress is placed on the principle that “nothing is agreed until everything is agreed.” Thus, although the land accord represents a real breakthrough, it will remain no more than “principles that orient” the peace talks until the peace talks are concluded. And numerous challenges lay ahead, beginning with the next chapter of talks on FARC’s future political status.

However, there is certainly cause to take hope. While the current set of statements are vague on details, two principles appear to be clearly endorsed. The first is that the accord would support an equitable approach to land in rural areas, bringing broad-based economic and social development and securing land for campesinos. If implemented, this would quite simply set the last three hundred years of Colombian rural land policy on its head.

Second, the starting point for the accords appears to be the principle that those wrongfully dispossessed of their land in connection with the decades long conflict between the Farc and the government must receive a remedy. While the parties continue to disagree on who is responsible for how much dispossession (as between  right wing paramilitary groups that have enjoyed the tacit support of the Government in the past and Farc fighters), the establishment of the principle that victims should receive remedies in all cases, is a crucial breakthrough.

Just how crucial will be clear to anyone who has studied the long and tormented history of restitution proposals made during the previous process of demobilising right wing paramilitaries, beginning during the tenure of the previous President Alvaro Uribe, but only meaningfully engaged under the current President Manuel Santos. And a very healthy precedent was set by the fact that when restitution legislation was finally passed early in President Santos’ presidency, it applied in principle in favor of all victims, regardless of the perpetrator.

It is encouraging that the land accord reached in the Farc peace process appears to have bypassed the protracted wrangling over responsibility for dispossessions and other abuses that plagued paramilitary demobilisation. However, the most hopeful sign of all may be that the restitution process that resulted from paramilitary demobilisation appears to have taken hold, with a dedicated corps of restitution judges issuing fairly bold decisions on the return of land taken by notorious paramilitary groups, many of whom remain active – and dangerous – in the form of ‘criminal bands’.

The slow pace of the current restitution process and the continued risks to both claimants and adjudicators indicate the challenges that will face the eventual implementation of the Farc land accords. At the same time, the apparent commitment of the Santos Government to implementation of its restitution commitments in the wake of paramilitary demobilisation may give victims of the conflict with the Farc reasonable grounds for hope.

Defining communities in Colombia: the Afro-descendant communities of Curvaradó and Jiguamiandó and communal land rights

by Anouska Perram

Anouska Perram is a Supervising Associate at the London office of Simmons & Simmons LLP, an international law firm. At the request of an international NGO for whom it acts on a pro bono basis, Simmons & Simmons LLP has recently submitted an amicus curiae brief to the Colombian Constitutional Court in relation to international human rights law considerations pertaining to the Curvaradó and Jiguamiandó communities’ case.

Once seen as antipathetic to the individual rights focus of international human rights law, “third generation” and collective rights have – despite lingering controversy – been widely accepted as a fundamental element of the indivisible human rights framework.[1] Driven in particular by the demands of indigenous peoples, national and international law has recognised and protected rights to communal land titles, rights to language, religious practices, specialised education and protection of cultural heritage, and many other rights which are associated with the existence of distinct socio-cultural groups within the boundaries of the wider state.

As they have developed, collective rights have increasingly been applied to groups beyond indigenous peoples. ILO Convention 169 (the Indigenous and Tribal Peoples Convention) extends protections not only to indigenous peoples (described as peoples descended from a pre-colonial society) but also – the clue is in the name – to “tribal peoples”. Unlike the description of indigenous peoples in the Convention, tribal peoples need not be linked by common descent, but rather are characterised by “social, cultural and economic conditions” which “distinguish them from other sections of the national community”.[2]

Taking a similarly expansive approach, the Inter-American Court of Human Rights (IACtHR) has applied collective rights principles to Afro-descendant groups. The Court applies its jurisprudence on indigenous land rights equally to Afro-descendant groups where they have “an ‘all-encompassing relationship’ to their traditional lands, and [where] their concept of ownership regarding that territory is not centered on the individual, but rather on the community as whole”.[3]

The expanding scope of collective rights entails a shift in emphasis in the way these rights are justified. Indigenous rights advocacy has often focused on a claim to right derived from chronological precedence – ancestral descent since time immemorial – perhaps paralleling an orthodox property rights analysis which takes an earlier claim as a better claim. The expansion of rights to other groups such as Afro-descendants – who do not have the same claims to ancestral ownership – moves the focus towards the uniqueness of social and cultural characteristics of the group. In this way, as collective rights have developed juridically, the principle of a distinct social organisation, intrinsically worthy of and requiring protection as a collective has become central to the analysis.

This question brings to the forefront the issue of how to define membership of the “collective” entitled to “collective rights”. Logically the entitlement to protection should follow the contours of the social organisation being protected; how to determine those boundaries in each situation is, however, not necessarily straightforward. This is not actually of course a new question – it arises equally for indigenous peoples – but has perhaps been more readily glossed over in relation to indigenous peoples, in reliance upon the (mythically) objective element of “descent” to determine the boundaries of the group.[4] No such “objective” identifier applies to non-indigenous groups and so the question of how to define the group cannot be avoided.

Lawmakers will remain tempted to adopt an “objective” criterion of descent, which gives an appearance of certainty and also places finite limits on a group. Such an approach, however, has the potential to decouple collective rights from parts of the collectivity being protected. This is the very issue currently before the Colombian Constitutional Court in relation to the Afro-descendant communities of Curvaradó and Jiguamiandó.

From National Responsibility to Response – Part II: IDPs’ Housing, Land and Property Rights

by Elizabeth Ferris, Erin Mooney and Chareen Stark

This post continues our discussion of the study entitled “From Responsibility to Response: Assessing National Response to Internal Displacement” recently released by the Brookings-LSE Project on Internal Displacement.

Addressing housing, land, and property (HLP) issues is a key component of national responsibility. Principle 29 of the non-binding but widely accepted Guiding Principles on Internal Displacement emphasizes that competent authorities have a duty to assist IDPs to recover their property and possessions or, when recovery is not possible, to obtain appropriate compensation or another form of just reparation.

The 2005 Framework for National Responsibility – which set the benchmarks we applied in our current study – reaffirms this responsibility (in Benchmark 10, “support durable solutions”) and flags a number of the challenges that often arise, such as IDPs’ lack of formal title or other documentary evidence of land and property ownership; the destruction of any such records due to conflict or natural disaster; and discrimination against women in laws and customs regulating property ownership and inheritance.  The Framework for National Responsibility stresses that, “Government authorities should anticipate these problems and address them in line with international human rights standards and in an equitable and non-discriminatory manner.”

The extent to which a government has safeguarded HLP rights, including by assisting IDPs to recover their housing, land, and property thus was among the indicators by which we evaluated the efforts of each of the 15 governments examined in our study. Our findings emphasized the importance of both an adequate legal and policy framework for addressing displacement related HLP issues and the role that bodies charged with adjudication and monitoring can play in ensuring implementation.

A roundup of international law debates

by Rhodri C. Williams

For the international lawyers and those who take an anthropological interest in their doctrinal debates, there have been a few interesting iterations on old themes recently. They fall into three categories, namely the ‘law of peace’ debate, the ‘justiciability’ debate, and the debate over whether UK Prime Minister David Cameron’s international law advisor is a crank or a mad genius. Lets take them in that order.

Judicial oversight and the end of displacement in Colombia

by Sebastián Albuja

The Internal Displacement Monitoring Centre (IDMC) recently published its latest overview of the situation of internal displacement in Colombia.  Among other things, this document highlights the latest decision by the Constitutional Court of Colombia ruling that, seven years after it started monitoring the situation of IDPs and the Governmental response, the conditions that IDPs face in Colombia still amount to a widespread and generalized violation of their human rights (what the Court calls an ‘unconstitutional state of affairs’; or an estado de cosas inconstitucional or ECI, in Spanish.)

The Court first declared an ECI in relation to the situation of IDPs on January 22, 2004, and since then it has maintained oversight of the process towards overcoming the ECI, issuing over 100 follow-up decisions and holding nearly a dozen hearings with stakeholders.  This is not the first time that the Court has ruled that a widespread or structural violation of rights exists in Colombia. It did so for the first time in 1997 and since then on seven subsequent occasions, on issues ranging from prison overcrowding to shortcomings of the national healthcare system.

Much valuable commentary has been written about the role of the Court in shaping and defining IDP policy in Colombia, including by those leading the process from within the bench, as well as about the Court’s invaluable contributions to comparative jurisprudence in the development of social policies in the global South, including in India, South Africa and a number of other Latin American countries.  The aim of this inquiry is to examine the implications of the Court’s latest decision regarding the question of the end of displacement.

Week in links – Week 49/2011

Very briefly this week:

IDMC has much of interest, including updates on land restitution in Colombia, forced evictions of Roma in Serbia, and an ongoing crackdown on West Papua. Of most interest is a new report on land rights and ethnic conflict in Northeast India, but I won’t go into more detail here as I am quite hopeful that the author, Anne-Kathrin Glatz, will shortly be introducing the issue in more detail in a guest-posting. Finally, a new research report is available on ‘unlocking’ situations of protracted refugee and IDP displacement.

Meanwhile, Antoine Buyse of the ECHR Blog provides an enlightening summary of a new European Court of Human Rights judgment – in the case of Gladysheva v Russia – involving the rights to property and the the home. On the property side, the Court finds an unsurprising violation in the annulment of the applicant’s purchase of an apartment from the person who had fraudulently privatized it (pointing out that the privatization resulted from the state’s failure of due diligence). On the housing side, the Court condemns the summary eviction proceedings initiated as a result and orders the equivalent of restitution (restoration of title and quashing of the eviction order). Antoine points out the significance of some particularly strong dictum on the centrality of the right to the home:

This judgment sends a clear signal that national authorities should take housing rights, specifically the protection of the home, seriously. Under the ECHR, this is more than a simple property issue – respect for the home also has important social and other connotations which strengthen the protective umbrella of the ECHR (the issue of attachment to a home counts) in such cases. Individual interests based on this should always be taken into account by states when interfering with housing rights. To put it differently, human rights start at home!

Week in links – Week 24/2011: murder in Colombia, biofuels in Sierra Leone

– Amid all the policy chatter on the recently passed Victims’ Law in Colombia, a moment of reflection is due on the fate of Ana Cordoba, widowed and displaced in 2001, and murdered in cold blood a decade later for having had the temerity to mobilize her fellow displaced persons for the return of their homes.

– The BBC reports on a recent study by the Oakland Institute that adds to the mounting chorus of criticism against large scale investors in land driving the current ‘global land-rush’. Although many of the Oakland Institute’s accusations are familiar – non-transparent transactions, unequal bargaining power, corruption, tribal chiefs bought for “a bottle of Johnny Walker” – the language is quite tough, with hedge fund use of arable land to “make room” for export commodities such as biofuels and cut flowers described as “creating insecurity in the global food system that could be a much bigger threat than terrorism”:

“The same financial firms that drove us into a global recession by inflating the real estate bubble through risky financial manoeuvres are now doing the same with the world’s food supply,” the report said.

Interestingly, the BBC report includes a sidebar describing its reporters’ positive impression of a Swiss biofuel plantation in Sierra Leone, presumably in the interest of editorial balance. The juxtaposition does raise the issue of whether such investment in post-conflict contexts may – in some circumstances – provide valuable investment-driven rural job creation in a manner that fragile transitional governments can only dream of (as blogged on here in the case of Liberia).

More detail on this investment – along with the Oakland Institute criticism it has sailed into – is given in a New York Times article this week. The Swiss company investing in ethanol, Addax Biofuels, defends itself as a for-profit company that scrupulously follows existing corporate social responsibility guidelines and eschews non-transparent arrangements:

Construction begins this year, and the project is expected to be operational in 2013. It employs over 500 people and will create more than 2,000 jobs, according to Addax. The land will be leased from local landowners and tribal chiefs.

According to Addax Bioenergy, the deal follows evaluations of the social, environmental and economic effects with the government and local nonprofit groups. The memorandum of understanding was ratified by Sierra Leone’s Parliament last November, and according to local news media reports, it was supported by the political opposition as well.

Anyone who has followed coverage of the implementation of donor policies on involuntary resettlement in Cambodia on this blog will be aware that such guidelines may be worth little more than governments’ will to respect them. However, until someone comes up with a better idea, getting investment hungry governments and land hungry investors to take such standards seriously is probably the only realistic way forward.