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: 

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.

Draft Land Rights Policy Statement by the Land Commission of Liberia

by Caleb Stevens

Caleb Stevens is a John Snow Institute Liberia Fellow who works with the Republic of Liberia Land Commission

The Liberian Land Commission has just released a draft Land Rights Policy Statement for public consumption. It is the first such policy in Liberia’s history and creates four fundamental land tenure categories: Government Land, Public Land, Customary Land, and Private Land. In addition, it provides for Protected Areas across these categories to be conserved and managed for the benefit of all Liberians. The Policy also touches on issues of land management, use, and administration, with more detail to follow in separate Land Administration and Land Management Policies.

The document is still in draft form as consultations are getting underway, but you may access the Policy by clicking on this link (pdf).

Comments or questions are welcome; please submit them via email to landcommissionpolicy@gmail.com.

Avoiding conflict through early and effective management of land disputes

by John W. Bruce

The last decade or so has seen growing recognition of the major role played by competition for land in generating conflict. However, the often extremely complex and embedded nature of such conflicts—and associated political sensitivities—is such that both international and national actors have in many cases shied away from fully engaging with them. In other cases, forms of intervention have not always sufficiently taken into consideration their major—and potentially recurring—causes. The challenge is to better understand the role played by land, combined with related factors, in the generation of conflict—both in terms of the conditions that create a vulnerability to conflicts and events that tend to trigger violent conflict—as a basis for preventing or de-escalating violence.

I had worked on land issues from a development standpoint in Mozambique, Sudan and Cambodia, but a 2009 study in Rwanda for the Overseas Development Institute and follow-up work with UN-Habitat made me aware that the humanitarian community working in peacebuilding contexts had developed new ways of looking at land conflict and useful short-term approaches for addressing it. The land tenure in development community had little knowledge of these and often saw land policy and administration exclusively through an economic development lens. At the same time, those in the humanitarian community working with post-conflict land issues lacked familiarity with the role of land tenure in development processes and sometimes did not appreciate what was needed to lay the basis for sustainable, sound land governance.  These bodies of understanding and differing perspectives about land issues had not been integrated-an integration that is essential to the development of effective strategies for prevention and mitigation of land-related conflict.

With these challenges in mind I agreed to work with the Initiative on Quiet Diplomacy (IQd) to develop a handbook on Land and Conflict Prevention The handbook is one of a series providing third party actors with practical guidance in addressing issues that are frequently the sources of tension before violent conflict (re)erupts. IQd’s approach to me coincided with a train of thought that began when I worked with UN-Habitat on post-conflict land issues. I was struck by the fact that the valuable thinking that had been going on in the post-conflict context needed to be walked back through time, as it were, into the pre-conflict period, asking “What do we know about land and conflict that can be mobilized for prevention?” The result is a blend of ideas and practical guidance for preventing land-based conflict drawn from both the post-conflict and developmental contexts.

Upcoming guest posts: (1) post-disaster rights to housing, and (2) land in conflict prevention

It is a great pleasure for me to both introduce two very interesting new reports and announce that their authors will shortly be providing a more personal introduction through guest-postings on TN.

First, the UN Special Rapporteur on the right to adequate housing, Ms. Raquel Rolnik, has prepared her latest report, which will be presented at the 66th session of the General Assembly in October. Where Ms. Rolnik’s previous report (introduced briefly in TN here) focused on the right to housing in the wake of both conflict and disaster, the current report focuses more narrowly on disasters (a theme the SR also took up in the context of a recent trip to Haiti). Ms. Rolnik’s report cannot be officially distributed until after its presentation to the GA in October, but is currently available on her website. While the report makes for interesting reading as such, I’m particularly pleased to announce that the SR and her team will soon provide further insights in a guest post on TN.

Second, Quiet Diplomacy has just launched a new Handbook on Land and Conflict Prevention. While this might sound like a contradiction in terms to some, the Handbook offers “step-by-step guidance for conflict prevention actors … in finding the space for legal, institutional and policy reform in the land sector, and promoting just and workable solutions.” It sounds like a tall order but one that is all the more important in era when the corrective approach adopted in texts like the Pinheiro Principles is increasingly required to accommodate new distributive demands. And once again, I’m very pleased to announce that the authors, John Bruce and Sally Holt, will shortly be sharing some of their insights on TN.

Note from the field: Colombia’s new Victims’ Law in context

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.

They know the solution – Land purchase programs for rural women in India

by Deborah Espinosa
This guest post was originally posted on Landesa’s Field Focus blog, which provides expert insight on the issues surrounding land rights and international development. Deborah Espinosa is a senior attorney and land tenure specialist.

She was one of at least 40 landless women who demanded to meet with us that day.  They had heard that we would be visiting their village to talk with women in self-help groups (SHG) who had participated in the Indira Kranthi Patham (IKP) Land Purchase Program, one of several programs that the Indian State of Andhra Pradesh was implementing.  She was determined that we hear her message. That day was one of the more difficult days of my career as a lawyer advocating for land rights for the world’s poorest.

The AP Land Purchase Program, which Landesa and RDI-India helped the State design, assisted landless women in organizing to negotiate with large landowners and purchase and subdivide agricultural land for themselves and their families.  From 2004 to 2009, 5,303 women paid US $604,418 (just over $100 each) to purchase 4,539 acres of farmland.  The women paid a total of 25% of the purchase price, 15% of which they borrowed.  The government subsidized the remaining amount.  For weeks, our team  had been traveling throughout the state, talking with formerly landless women whose lives had been transformed through the program.  Most of the women had owned the land for about four years, with titles to their land in their name alone.  State law permits only one name on the patta, or title, and the State required that the patta had to be in the name of the wife (if married) or a female head of household.

The women whom we interviewed reported significant benefits associated with shedding the “landless” cloak and becoming a full-fledged landowner.  They reported increased income and the ability to start saving, improvement in their family’s health due to having more food to consume and higher quality food, and the ability to access credit from banks and village moneylenders.  They also perceived an improvement in their family’s status within the community as evidenced by having better marriage opportunities for their children.  Although the women reported that there still was room for improvement on all fronts, for them, becoming a landowner had profound effects on their family’s welfare.

Week in links – week 12/2011

The current march of historic events continues apace with the aftermath of the Sendai quake still causing headlines and a new chapter in the annals of R2P being written in the skies over Libya. Quite a few bits of less dramatic but very interesting HLP-related news as well, many detailed below.

Some interesting things coming up on TN as well – in addition to a number of individual guest-postings currently in the works, I am very excited to announce that Landesa has offered to periodically cross-post pieces from their excellent Field Focus blog. Look out for a debut piece early this week.

Turning to the news, the Internal Displacement Monitoring Centre (IDMC) just released their global overview for 2010. The conclusions are sobering, with a new rise in overall conflict-related internal displacement and the consolidation of a number of negative trends such as protracted displacement situations and displacement due to generalized violence (e.g. criminal activities as opposed to ordinary armed conflict).

The UN Special Rapporteur on the right to food, Olivier De Schutter, recently submitted his annual report, this year with a plug for ‘agroecology’ – a cultivation technique identified by Mr. De Schutter after an “extensive review of the scientific literature” as most likely to help states “achieve a reorientation of their agricultural systems towards modes of production that are highly productive, highly sustainable and that contribute to the progressive realization of the human right to adequate food.” Kudos to Mr. De Schutter for sparing the rest of us the scientific literature and moving the debate over global agriculture in an interesting new direction.

In the wake of the triple catastrophe in Japan, the New York Times reports on how much of the affected coast was inhabited by elderly persons unlikely to rebuild. In the clinical terminology of climate change, the obvious question is whether the abandonment of many of these obliterated towns and villages will ultimately come to be seen as a form of adaptation to be replicated in other parts of the world. As the Times notes, it is hardly the first time the question has come up:

“We faced exactly the same question after Katrina,” said John Campbell, [a] visiting scholar at the University of Tokyo. “There was a big discussion about whether we should rebuild the Ninth Ward, since it was below sea level, and so on. In terms of economic rationality, it didn’t make any sense, really. But on the other hand, it’s where these people lived, and there were emotional reasons to do it.

Meanwhile the UN International Strategy for Disaster Reduction (UNISDR) released its mid-term review, halfway through the ten year period envisioned for implementation of the Hyogo Declaration and Framework for Action. In an almost morbid quirk of timing, the document was released two days before the catastrophe in Japan, rendering its calls for greater attention to disaster risk eerily antiquated: “…the Hyogo Framework for Action is the world’s only blueprint for staving off losses caused by natural hazards, often overshadowed by news on losses from war, unemployment or inflation.” With all due respect to Col. Ghadafi’s current bout of attention-seeking, this shouldn’t be an issue now.

After quite a lot of coverage earlier this year, the renewed efforts to achieve land restitution in Colombia fell off TN’s radar somewhat. However, things seem to be moving forward – here, NPR reports on how some land has already been returned to displaced owners (it is unclear on what basis this has occurred) as well as on how restitution remains tied to broader agricultural reform goals.

Finally, having cited EurasiaNet earlier on the lengths gone to by Azerbaijan’s IDPs to avoid locally integrating in order to maintain their prospects for return, I have now found a companion piece on Transitions OnLine on how far Armenians in contested territories will go in order to maintain their competing claims:

The people here acknowledge that life in villages is difficult and boring, especially when there is no electricity. But they persevere. “This land needs to be tended,” Khachatryan says. “My children have to plant trees, harvest crops, and have children here to understand this is the homeland and it needs to be kept,” Khachatryan says, lighting the oil lamp with care.

The week in links – week 09/2011

I thought I would begin this one with a plug for a Roger Cohen column. It ostensibly focuses on the unfolding of ‘Obama-ism’ as a nascent foreign policy doctrine, but beautifully makes the point that just as 2001 was seen as interring the spirit of 1989, 2011 may signal an equally new and more hopeful turning point in human affairs. The uplifted tone invites a certain amount of skepticism, but one can also choose to simply indulge in a moment of abandoned optimism.

Events in North Africa have obscured what would otherwise be headline (well at least visible) news from other parts of Africa. Perhaps most notably, Cote d’Ivoire continues its slide toward civil war. Turtle Bay recently reported that South Africa’s contributions to the mediation efforts have been viewed with some skepticism, as it is not clear whether an effort is afoot to impose the type of power-sharing agreement that has worked so brilliantly in Zimbabwe.

In Zimbabwe itself, political repression by Mugabe’s paramilitaries and displacement continue apace. Meanwhile, the Supreme Court has unsurprisingly upheld the country’s draconian land reforms, as reported in ASIL’s most recent ‘International Law in Brief’. Finally, returning to South Africa, the BBC reports this week on a bid by Georgia to poach  white farmers disgruntled by the far less arbitrary but ambitious and problematic land restitution program there.

A year on, BBC also provides a useful followup report on the earthquake in Chile. Although Chile’s relatively advanced state of preparedness spared it from loss of life on anything like the scale seen a month earlier in Haiti, the economic consequences were devastating. BBC points out that the cost of the damage was one-third of all costs caused by disasters worldwide in 2010 and amounted to one-fifth of Chile’s GNP. As in Haiti, the greatest challenge a year on is presented by the need to move survivors from ad hoc shelter arrangements to more sustainable housing.