Further analysis of the Victims Law 1448 of 2011

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ABColombia recently published a briefing ahead of Congressional approval of the Colombia’s new Victims Law.   Providing an analysis of the proposed Bill Returning Land to Colombia’s Victims looked at some of the underlying causes of the land theft and loss, which has led to mass forced displacement.  Although estimates vary, the scale of the land crisis is clearly huge:

• In 2011, the Commission to Monitor Public Policies on Forced Displacement stated that between 1980 and July 2010, 6.6 million hectares of land were abandoned or usurped;

• Acción Social, a government body, estimates that people have been forced to abandon 6.8 million hectares;

• The National Movement of Victims against State Crime (MOVICE) put the figure at around 10 million hectares.

The briefing states that guerrilla groups and paramilitaries alike have taken over land for strategic advantage, for example, as corridors to export drugs or import arms, grow drug crops or to establish zones of political influence. Alliances of paramilitaries and entrepreneurs also used illegally appropriated land for agro-industry, including African palm, and have received government support for these projects.

Mass forced displacement is perhaps one of the most obvious illustrations of the depth of the humanitarian crisis that exists in Colombia. With 5.2 million persons internally displaced since 1985, Colombia is the country with the highest number of displaced people in the world. Colombia also has the highest number of victims of anti-personnel mines.

Since the publication of this document the Victims Law 1448 (2011) has come into effect.

ABColombia supports the view that the Law represents a positive step forward for the victims in several respects, not least as a framework for the reparation to victims and the restitution of land.

The official recognition of: state, paramilitary and guerrilla victims in the conflict; an internal conflict; and recognition of gender differentials, are all important in terms of international norms regarding victims’ right to truth, justice and reparation.

However, the Law  also contains some articles that are concerning in the light of the evidence given by demobilised paramilitaries, in the Justice and Peace process, regarding their alliances with entrepreneurs and the illegal appropriation of land for agro-industrial projects.

Victims Law 1448 

The rights of victims to full restitution on land with Agro-industrial projects: The text of the Law (Article 99) discusses development of an agro-industrial project on the land. Here it appears that the Victims Law ensures the victims’ ownership of the land will be recognised, it does not, however, give them the right to determine the use of that land. In cases where the land has been developed for agro-industrial use and it is considered that this land has been ‘bought in good faith’, the victim will receive land titles but will be required to rent the land to the company or become an associate of said company.

Therefore, if a company is in possession of land where it cannot be proven that they have obtained the land knowing that it was stolen they are not required to return it, just to pay a rent on it. Where it can be proven that land has been bought illegally, Article 99 of the Law states that the magistrate will pass the land to a government body (the Unidad Administrativa Especial de Gestión de Restitución de Tierras Despojadas) so that it can be exploited by third parties and the profits used to provide reparation to the victims.

The language of the Law suggests that victims will not have their land returned to them when an agro-industrial plantation has been developed on it – whether it has been purchased legally or illegally. This would, by default, legalise land stolen through forced displacement. It will also impact very negatively on peasant farmers, indigenous and Afro-Colombian peoples whose way of life and culture are inextricably linked to land.

It will also be extremely difficult to prove that companies have purchased this land in ‘bad faith’ given that large land owners who have received the land illegally have often sold or passed this land on through a chain of people selling and reselling three, four, five times  – one might call it a type of land laundering. Faced with this situation it is unclear from the text of the Law how the Colombian government are going to ensure justice for those peasant farmers, indigenous and Afro-Colombian peoples who are calling for full restitution of their land.

ABC has discussed this with our partner groups and they have clearly told us they wish to return to their lands and determine how they develop it.  They do not want to enter into association agreements with companies and they do not wish to rent their land out.  (for more information see: see Constitutional Court opens way for restitution of rights to Las Pavas community).

There are also others who were forced to sell their lands at a very low price, with the well known phrase, coined in Chocó, of: “you either sell to us or your widow will”.  ABColombia questions how decisions over land use will be made in cases such as these?

Peaceful Land Invasion as a means of regaining victims’ rights.

Many communities, in sheer frustration after years of waiting to have their land returned and in an attempt to move forward the process of reclaiming their land, have organised themselves and peacefully returned together to small sections of that land.

However, the Law seems to suggest, in Article 207, that victims of land theft who attempt to regain their land via a [peaceful] invasion before a formal decision has been taken could lose their right to the land.  Such vague language (see wording below) could impact on the peaceful means that the dispossessed have used in the face of large corporations and companies who occupy their land.

ARTICLE 207 states “Any person who claims the status of victim in the terms of Article 3 of this Law, and who uses de facto methods to invade, use or occupy a property for which restitution or relocation is claimed as a means of reparation, while the claimant’s legal standing in the process of restitution of dispossessed or forcibly abandoned land has not been resolved in the terms of Articles 91 and 92 of this Law, or provisions amending, replacing or supplementing them, will lose the benefits established in Chapter 3 of Title IV of this Law.  The foregoing is without prejudice to the application of other current provisions of law which punish such conduct.”

Chapter 3, headed ‘Attention to the victims of displacement’, and Title IV contain several chapters discussing the rights of victims and processes in respect to land restitution. It is therefore not clear as yet, given the scope of these references, whether victims in such circumstances would lose their rights to that land.

Where land is not restored to victims for whatever reason they will be given financial compensation for the land. However, this will only be in respect to the value of the land at the time they were forcibly displaced, not its current value, nor will it take into account that it was a ‘going concern’ with animals, crops, a farm house etc.

The disparity between giving reparation to citizens who have been victims of the conflict since 1985 and yet only restoring land from 1991 does not appear to conform to the international norms regarding treating all victims equally (Pinhero Principle 4; see Returning Land to Colombia’s Victims, p.8-9, for further information).

Programmes to guarantee the safety of those returning: Given the conflict in Colombia continues many of the areas that victims’ are returning to are regions where paramilitaries continue to operate. We pose the question; what collective protection programmes is the government planning?

Formal structures will need to be put in place, providing clear lines of communication between the returnees and the government, to ensure an immediate response capacity if illegal groups (guerrilla or neoparamilitaries/BACRIM) enter the returnees’ territory. A programme of this nature needs to be devised in collaboration with Colombian NGOs and communities and will be essential to any safe return.

There are a range of other aspects to the Law that we hope will be clarified in the Decrees that will be drawn up for its implementation:

Subsidies to pay back-taxes on land.  During the time that farmers and communities have been away from their land the taxes owed on their land and property have not been cancelled.  This means that victims could potentially be faced with huge tax bills on their return.  The use of the word subsidies, in the Law, suggests that any money given to victims will only partially cover the sums owed in back-taxes.

This poses the following questions: Will victims returning to their lands have to pay any of the back taxes incurred on the land during their displacement?  Or will the subsidies paid to them fully cover the amounts owing? Are these subsidies a loan which will need to be paid back by the victim or are they considered to be a straight forward payment that wipes out accumulated debts?

The range of victims that the Law addresses could be restricted by referring to the new paramilitary groups as BACRIM; such a classification means that these groups are not considered by the government as actors of political violence but rather criminal violence.  So, how will the Colombian government seek to respect victims’ rights to justice and restitution when they have been displaced by BACRIM?

The language of the Law appears to restrict victims’ access to reparation; those who have been accused of being in an illegal armed group, for example, are excluded from this Law. In cases of extrajudicial killings in the ‘falsos positivos’ model (where civilians were killed and dressed up as guerrilla fighters), will the onus be on victims’ families to prove that they were civilians? This, and other questions in this vein, will need to be addressed in order to ensure that an equitable approach is taken to the victims.

Recommendations

British and Irish Governments and the EU:

Land restitution and the rights of victims to truth, justice and reparation will remain key issues for Colombia. It is therefore a key moment for the UK, Ireland and the EU to ensure that their policies towards Colombia assist and support the victims in this process.  There are a number of key areas that they should be considering in order to ‘make that difference’ (see Returning Land to Colombia’s Victims for full elaboration of these points).

British Government:

• UK Trade and Investment’s (UKTI’s) new Strategy, Britain Open for Business,  should ensure that any businesses that it supports are not taking advantage of human rights violations in Colombia

• Should amend the Companies Act 2006 to include as an explicit requirement human rights impacts reporting.

• Amend the current Bill passing through parliament on civil litigation (Jackson reforms) to ensure that it does not threaten to make human rights claims against multinational corporations economically unviable in the UK

British and Irish Governments and the EU:


• Ensure that British and Irish governments and the European Union do not use government Government’s Export Credits Guarantee schemes for projects involving land use in Colombia until there is a national land audit and territory belong to Colombia’s Indigenous, Afro-Colombian and campesinos populations have been registered.

• MEPs and national parliaments refuse to ratify the EU-CAN Agreement with Colombia and Peru currently under discussion. Some people have argued that a free trade agreement with Colombia will encourage Colombia to improve its human rights situation. This is unlikely since the EU has had the Generalised System of Preferences (GSP+) agreement for several years which includes the democratic clause, and this agreement continues, despite the level of human rights violations in Colombia. It is far more likely that Colombia will address the human rights and land situation if the European Parliament and member states refuse to ratify the agreement.

The British and Irish governments and the European Union should strongly support in all policies and specifically via the EU via its Country Strategy on Colombia (to be renewed in 2014):

• Long term support and resources for small-scale agricultural models of development to enable farmers to remain on their land and draw a livelihood from it, which will be essential if peasant farmers receiving land under this Bill are not to run a risk of being dispossessed of their territory once again.

• Programmes that ensure that victims are consulted,  at all levels, on the effective implementation  of the Victims Law 1448