According to official figures, an estimated 2 million displaced persons abandoned 5.5 million hectares of land over the past 20 years resulting from the protracted internal armed conflict in Colombia. The lack of land titles combined with victims’ fears to report land dispossession have contributed to this crime’s invisibility for many years now.
Over the last 10 years, this situation has shifted following efforts by the Colombian government and assistance from the international community (including several U.S. Agency for International Development projects). As a first step, a registry of abandoned land plots was created as a mechanism in which victims can report violations and in turn begin, at least on paper, to protect their land rights. With the registry, measurement of the magnitude of the dispossession was made possible.
Land restitution efforts started as part of the paramilitary demobilization process in 2004. The process contributed toward obtaining truth regarding many violations and crimes committed by paramilitaries, but did not improve restitution results. It did, however, plant the seeds of the political agenda that now provides victims with land restitution — the Victims and Land Restitution Law of 2011.
This law established an effective mechanism, which in less than two years, enabled land restitution judges to rule on more than 230 land claims, comprising 15,000 hectares. This pioneering initiative can provide good lessons for other land restitution processes in other countries undergoing similar transitional phases. The following are three principal reasons to be hopeful for the effectiveness of this effort:
A pro-victim law: Considering the magnitude of land dispossession in Colombia and the need to break barriers regarding victims’ access, this policy has introduced a series of measures focused on ensuring efficient delivery of justice within the Colombian context. The most effective measure has been the establishment of a land restitution unit which is responsible for supporting victims’ cases before 39 land restitution judges appointed throughout the country. Another pro-victim measure has been the shift of the burden of proof to force accused dispossessors on the abandoned plot registry to prove good-faith land acquisition. In this way, victims are protected from expending exorbitant costs on gathering evidence or attorney fees.
Restitution protecting private property: This policy seeks to avoid unfair restitution or one that impacts people who have purchased land in good faith in Colombia. To this end, the land restitution unit created a preliminary investigative step that ensures due diligence prior to presenting claims to restitution judges. According to an analysis conducted by the nongovernmental organization Forjando Futuros, sponsored by USAID, of the first 150 cases with opposition, only five could prove good faith acquisition, as defined by the law.
Restitution is only one component of a comprehensive reparation process: Land restitution is not the only guarantee for victims under the new law. Restitution is defined as an additional reparation element for displaced persons affected by violence and includes technical assistance so that returnees can resume productive livelihoods. This element is crucial in guaranteeing an effective return of displaced persons to their restituted lands.
Despite progress to date, the challenges continue to be significant in achieving a sustainable restitution process. These challenges include:
Restitution during conflict: Land restitution to displaced persons is one element of transitional justice policies that are generally applied at the end of a conflict as in the case of Kosovo, South Africa and other countries that are emerging from conflict. The bold decision made to move this process forward during times of hostility requires a special emphasis to guarantee the security of land claimants during the restitution process and upon their return to their land.
Restitution as a fundamental part of rural conflict resolution: Many of the restituted lands are occupied by settlers, largely impoverished “campesinos”that were displaced by illegal armed groups or simply settled on abandoned lands. It is important to enhance conflict resolution mechanisms that ensure effective restitutions and avoid generating horizontal conflicts in these divided rural communities throughout the length of the Colombian conflict.
Scaling up the policy to guarantee a timely restitution: The rapid implementation of this policy has been carried out while respecting the independence of judges and maintaining a constructive dialogue with the government and civil society organizations, including victims’ organizations. This interinstitutional dialogue should also serve to ensure that justice delivery times are respected and that sufficient resources are in place in order to handle the significant increase of restitution claims already flooding the system, to ensure the resolution of cases within the remaining eight years of the 10-year timeline established by the law.
To date, there is positive progress regarding land restitution in Colombia. However, significant challenges remain for Colombian society at large. The international community should continue to support this process in order to ensure restitution and reparations to displaced persons heal the wounds caused by conflict and lay the groundwork toward reconciliation for all Colombians.
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