Recently, Kai Ambos alerted readers of two attempts to weaken Colombia’s transitional justice system (see here and here). A third development fortifies suspicions that the country’s newly elected government intends to derail it. This time, a legislative proposal threatens Colombia’s land restitution process. Changes in the treatment of secondary occupants of reclaimed land could especially frustrate this integral part of the elaborate reparation efforts.
Land Restitution in Colombia
The struggle over land has long been at the core of the Colombian conflict. With 7.7 million people, Colombia hosts the world’s largest population of internally displaced persons. IDPs constitute the vast majority of the 8.7 million registered survivors of the armed conflict. Studies estimate that displacement has affected 11.4 million hectares of land. Accordingly, former President Santos included land restitution as a central element in the 2011 Law on Victims and Land Restitution – the largest reparation program in the world. To manage the massive caseload, a newly created entity, the Land Restitution Unit (Unidad de Restitución de Tierras, URT) administers a special three-phase restitution process. In the first administrative phase, the URT decides on a survivor’s request to have his or her land entered into the Register of Evacuated or Forcibly Abandoned Land (Registro de Tierras Despojadas y Abandonadas Forzosamente). The URT collects evidence and evaluates whether the survivor convincingly demonstrates his or her displacement and a legal relationship to the land they seek to reclaim. Once registered, the survivor proceeds to the judicial phase, in which a specialized judge decides the claim with finality. A positive sentence constitutes a legal title to the land. The judge can further order any measures necessary to guarantee an effective return to the restituted land in conditions respectful to the survivor’s human rights. Among these measures are debt relief, and technical and financial assistance for economic projects. In the post-sentence phase, the judge remains seized and can issue further orders if the survivor encounters problems in the return process.
Of course, the process is not perfect. Most importantly, it faces the challenge of secondary occupation; persons who currently occupy reclaimed land face an uphill battle. As soon as the survivor provides a coherent account of his or her displacement and legal relationship to the land, the burden of proof is reversed. Several presumptions favor the survivor e.g. any contract over land in an area affected by conflict is presumed to be null and void for lack of consent (Art. 77 f. Victims Law). As a result, it is highly unlikely that a secondary occupant will win a restitution case against a survivor. Most often, they have to cede the land. In that case, secondary occupants have access to compensation, either in form of a similar plot of land or money. This, however, requires that they demonstrate an aggravated form of good faith (Buena fe exenta de culpa, BFEC): they must have acted in good faith when they occupied the land and they must have taken steps to verify the legality of that occupation.
Proving BFEC is also extremely challenging. The existence of displacement is a notorious fact in conflict-affected areas and as a result, secondary occupants can rarely claim to have acted in good faith, especially since they were required to verify the situation. More importantly, the reliance on BFEC misconceives the situation on the ground. Many secondary occupants were fully aware that the land they occupied was forcibly abandoned. Yet, they were themselves survivors of displacement or other conflict-related violations and acted out of necessity. Many of these people rely upon the land for their subsistence and the Victims Law would have the effect of removing them from it without compensation. The URT and the Constitutional Court recognized that this would cause undue hardship. The URT created support measures so that secondary occupants could access a similar plot of land, technical and financial assistance, and other measures. The Constitutional Court ordered judges to treat the BFEC-requirement with flexibility or even disregard it in order to allow vulnerable persons to access those measures. Thus, the problem is more or less resolved. Enter stage right: Senator Cabal Molina.
The Reform Project
The Senator from the party of newly elected President Ivan Duque has long regarded the restitution process as an “instrument of displacement” for secondary occupants. In September, Senator Cabal Molina proposed a comprehensive reform to the Senate. This post concentrates on the provisions directly related to secondary occupants. More exhaustive analyses are available here and here.
Cabal Molina seeks to reestablish a procedural equilibrium between secondary occupants and survivors (p. 4 of the proposal). Therefore, her proposal abolishes and modifies the presumptions mentioned above and replaces the BFEC-requirement with simple good faith, or the even lesser requirement that secondary occupants were not involved in the displacement (Art. 7, 13, 26). In cases of forced land sales, or where the secondary occupant had no part in the displacement, the proposal provides survivors with a similar plot of land or monetary compensation and leaves the reclaimed land to secondary occupants (Art. 7, 10, 17). Lastly, the proposal obliges survivors to report persons who unduly pressure them to initiate restitution proceedings and introduces a prison sentence of up to 12 years for inciting or persuading persons to submit fraudulent claims (Art. 4, 30).
On its surface, this reform merely proposes an alternative solution to a complex problem. After all, the Pinheiro Principles on Restitution for Displaced Persons – the gold standard for land restitution developed under the auspices of the United Nations – protect secondary occupants and their right to due process. They also foresee compensation as an alternative to restitution (Principles 2, 17). However, in reality, the proposal would fundamentally change the restitution system and derail large parts of Colombia’s reparation program.
Establishing procedural equilibrium between secondary occupants and survivors is not a neutral policy choice. The evidentiary situation in Colombian restitution proceedings is dire due to the country’s history of informal land holdings and transactions. 28% of the Colombian territory is not registered. In the most conflict-affected areas, this number jumps to 79%. 63.9% of the registered territory features outdated information and different registers contradict each other. Many land transactions are based on spoken word rather than written contracts. The URT attempts to compensate for this lack of official data by creating so-called social evidence. Officials create maps of land holdings and timelines of transactions through interviews with survivors. The URT also investigates the history of displacement in an area in order to obtain contextual information. Still, hard evidence is difficult to secure. Under these circumstances, the legislator’s decision on the burden of proof inevitably decides many cases preemptively. To favor the survivor in this decision is more than just a reasonable policy choice. Survivors are at the center of the Colombian, and arguably any, transitional justice process. Their acknowledgment through reparation goes a long way towards reconciliation. On the flip side, lack of acknowledgment would damage further their relationship with the state. Also, statistically, many displaced persons owned land and secondary occupation was widespread. Therefore, placing the burden of proof on secondary occupants will in all likelihood result in less false positives than the reverse decision would produce false negatives. The current solution also better accommodates the Pinheiro Principles, which recognize that the eviction of secondary occupants can be inevitable to fulfill survivors’ right to land restitution (Principle 17). Cabal Molina’s proposal on the other hand, would make it extremely difficult and in many instances impossible for survivors to reclaim their land.
In cases of forced land sales where the secondary occupant had nothing to do with the displacement or otherwise acted in good faith, the proposal favors compensation in kind or money over restitution. These requirements are so low that the majority of judgments would result in compensation in kind or money. This contravenes the well-established priority of restitution over compensation in international law. Accordingly, the Pinheiro Principles allow compensation only if restitution is factually impossible (Principle 2). Apart from the fact that for most survivors returning to their own land has an immense immaterial value, shifting the emphasis on compensation further disregards that reparation helps establish the truth in transitional justice processes. Land restitution publicly demonstrates that survivors were displaced from their land. Allocating them a different plot of land or monetary compensation fails to carry this message.
Lastly, obliging survivors to report undue pressure to initiate restitution proceedings and threatening a prison sentence for inciting fraudulent claims sends a fatal signal. Persons advocating for land restitution in Colombia are assassinated with frightening regularity by organized crime and armed groups. In that dire situation, the state must send a signal of support and protection, not suspicion and prosecution.
If the proposal passes, it will derail the world’s largest land restitution program. Many legitimate cases won’t succeed because of a formal equilibrium between survivors and secondary occupants, which is everything but a real equilibrium. Those cases which do succeed will often end in monetary or in-kind compensation, which are not equivalent to restitution. To make things worse, the proposal will send a fatal signal to those advocating for justice for victims of forced displacement. This should not only provoke concern because land restitution is a central element of Colombia’s peace process- viewed in context of other recent proposals to modify key aspects of the transitional justice system, the reform raises serious doubts about the agenda of Colombia’s new government.