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By Lina María González
On January 1 of this year, the Law on Victims of Violence came into force and, within the framework of this, the Restitution of Land to the population dispossessed by different armed actors. The objective of this article is to indicate which are some, of the many, annotations indicated and how the law affects the indigenous population.
General Aspects of Land Restitution in the Framework of the Victims Law
The Colombian Congress approved in June 2011, Law 1448 known as the Victims' Law, according to which "the damage suffered by thousands of people and communities as a result of the Colombian armed conflict, and who, because they are victims of the Violence have the right to know the truth of what happened to them, to have justice done and to obtain just reparation "(1). Regarding this last point, a secondary article has been developed to restore the lands that have been abandoned or dispossessed from rural populations due to the effects of violence.
The articles of the Law of Land Restitution, and its consequent regulation, is delimited by the framework of Transitional Justice. It has five presumptions, according to which the burden of proof would be allowed to fall directly on the possible dispossessors and for the victims it is enough to prove their ownership, possession or occupation of the properties (2,3). As it is a land restitution law, but not an agrarian reform law, landowners are not included as possible beneficiaries.
Within this normative framework, a differential treatment has been proposed for ethnic groups in Colombia, namely: the indigenous population; the Afro-descendant, Raizal or Palenquera population; and the Rrom population. In one of the working documents of the Project for the Protection of Lands and Patrimony of the Displaced Population, a project that came into operation in 2003, an attempt has been made to synthesize the legislation that must be taken into account in relation to restitution in relation to ethnic groups (4). Although the document includes the laws and other reflections in relation to the possible differentiated treatment of ethnic groups, in reality the route of land protection and reparation is not very different from the one that has been proposed when the effects occur for other rural populations .
Regarding indigenous peoples, Decree 4800 of December 20, 2011 that regulates the Law, makes a particular mention in articles 216, on the periodic reports of protection programs; Article 217, on the procedure for the declaration of collective protection, since the indigenous population is considered a Collective Subject of Rights; article 223 on collective reparation and article 241 on the formation of a Subcommittee on Differential Approach.
Summarizing, both the approach of the Law and its subsequent regulation have shown that what is considered a differential approach are two things: on the one hand, the recognition that there is legislation that covers ethnic groups, prior to the law of lands and, on the other hand, that care and reparation must consider indigenous peoples as Collective Rights Subjects.
Main criticisms of the chapter on Land Restitution in the Victims Law
There has been a lot of internal debate about land restitution. In principle, three large groups can be found, which will be mentioned here without much depth: criticisms associated with its general approach, criticisms about gaps in the articles that are in contradiction with the same law, and more particular criticisms about the specific handling in the case of ethnic groups, women and children.
a) Criticisms of the general approach of the Law. The main concern has been to expose it -the Victims Law is its globality- as a Transitional Justice process in the context of an armed conflict that is still active. In other words, Colombia is not a country that is in a post-conflict moment because the subversive groups still maintain their actions; The groups that emerged after the demobilization process of the federated organization of paramilitary groups -Autodefensas Unidas de Colombia (AUC) - continue to exercise control and political violence over social groups in the country and over the territories (5). Not counting also the violations of individual and collective rights in which state agents themselves often participate (6).
This discussion has great repercussions as the demand for compliance with the law made by the victims' associations or the various social communities is coerced by the armed groups. Threats against life, the maintenance of states of anxiety in entire regions of the country, the murder or forced disappearance of leaders, the use of sexual violence against women as a form of intimidation, among many other situations, demonstrate the difficulty of executing fully the designs of the law. That debate remains open.
In addition to the above, there are many more objections made to Law 1448. As of October 2011, eight lawsuits had been filed before the Constitutional Court. Some of them have been rejected by the Court, others are under study (7). The lawsuits show problems in defining the category of victims covered by the law, on the start date of their recognition, among others. In the case of the chapter on restitution, the Law will only recognize dispossession and demands for restitution of land as of 1991. The previous cases will only be recognized symbolically. Finally, other important general criticisms in the area of restitution indicate that there is no link with rural development policies and that it is very complex for populations to assume a return when there are no guarantees of physical security or food or economic security once they are has returned to the lands (8).
b) Criticisms of the articles on the Restitution chapter. The first great discussion occurs in the definition of the Presumptions of Dispossession, in particular in the presumption of law in relation to certain contracts. In this presumption, it is determined that the dispossessed persons have most probably not given their consent in business or sale contracts, when these have been carried out "with persons who have been convicted of belonging to, collaborating with or financing armed groups acting outside of the law, whatever its denomination, or for drug trafficking or related crimes, whether the latter have acted themselves in the business, or through third parties "(9). The main problem here is observed because, within the framework of the Justice and Peace Law - Law 975 of 2005, which regulated the demobilization of armed groups (10) - only 4 formal sentences were handed down to paramilitaries in six years. So the nullity of contracts when they have been made with convicted people becomes a point of complex compliance. In addition, due to the volume of the spoil and the variety of ways in which it happened, the testaferrate is a challenge with many difficulties to detect.
Article 99 on contracts for the use of the restored property represents a delicate gap over which cases of acceptance of dispossession can be squeezed when the lands of the victims have been used in agro-industrial or mining companies. This article says: "When there are productive agro-industrial projects on the property subject to restitution and with the purpose of fully developing the project, the Magistrate who knows the process may authorize, through incidental procedure, the conclusion of contracts between the beneficiaries of the restitution, and the opponent who was developing the productive project, on the basis of the recognition of the right of ownership of the restored or restored, and that the opponent has proven his good faith without fault ". The opponent is understood in the Law as one who is a new owner or occupant of the property to whom the dispossessed files the claim. This opponent can be conceived by the Law as in good faith or not. In the event that he is an opponent in good faith, his eviction is ordered without legal consequences. But if there is an agro-industrial project on the property, the opponent can sign a contract with the plaintiff for the duration of the project.
This is very delicate because there are areas of the country where the deprived territories have been planted with extensive projects of oil palm, teak crops, sugarcane, mining and livestock operations, etc. Many of these projects have durations of at least 5 years, during which time the individual victim or an entire community would become landlords. Therefore, serious consequences would be generated in the organic relationship with the territory, in the case of indigenous people for example. Also an uprooting with the dynamics of life for Afro-descendant and peasant populations and a generational break within the families themselves on the importance of living in rural or urban areas. Especially when, as the last UNDP Human Development Report (2011) has shown, Colombia has not been characterized by having an inclusion policy for rural populations displaced to city life (11).
Much less for indigenous or Afro-descendant populations.
c) Criticisms of the differentiated treatment of ethnic groups. The Law assumes in article 205 the need to propose a differentiated policy for ethnic groups. As already mentioned in the first part of this article, so far only a vision associated with ethnic groups has been generated as Collective Subjects of Rights. But in practice no specific legislative approach has been developed. Two very important matters concern. The first is what the same working document of the Land Protection Program has diagnosed: there is an absence of mechanisms for the protection of ethnic territorial rights by Colombian institutions (12). This is due to reasons such as the dispersion of the information accumulated by the different government institutions, but also due to the generalized idea that these ethnic territories already had the protection given by the Colombian Constitution, in its article 63, of imprescriptibility, non-seizure and inalienability . Only until 2005, through Decree 250, the Constitutional Court ordered a reorganization of the ethnic territories and the completion of the titling for the communities. Likewise, it was proposed to "identify community, institutional and legal mechanisms for the protection of collective rights" (13).
The second concern is associated with a problem prior to the approach to land restitution. In Colombia, many of the indigenous reserves are overlapped, totally or partially, with 24 protected areas under the figure of National Natural Parks (PNN). As already pointed out by the Indigenous Cooperation Center (Cecoin) (14), this situation generates an intersection and transposition between the non-indigenous government officials who administer the NNPs or who propose various policies in their jurisdiction and the indigenous authorities and communities that they live there. Likewise, PNNs are owned by the Colombian State. And although it is true that the indigenous reservations are protected by the Colombian Constitution and the communities have full possession of the resources, the Colombian government has taken advantage of the overlapping of the PNN and the reservations to exploit resources in them with arguments such as the sovereignty of the country over subsoil resources -hydrocarbons in general and mining-. For these reasons, the Colombian government was the only country in Latin America that did not sign the 2007 UN Declaration on the Rights of Indigenous Peoples. Colombia argued that there was an incompatibility of this declaration with three articles of domestic law.
Seize opportunities but maintaining a critical attitude and dignity for sovereignty and autonomy
The social movement in Colombia, in particular the peasant movement and the Afro-descendant and indigenous populations are in the process of understanding how to adapt to the possible opportunities offered by the normative framework of the victims' law and its chapter on land restitution. But nobody is naive. In Colombia, within the framework of processes that showed signs of democratization, there was the largest recent wave of violence in the country. Law 1448 of 2011 does not seem to be the exception either. For this reason, although it can be seen as an opportunity, the most important thing is to have the possibility to make critical calls about its approach and application without implying a risk to the lives of those who carry them out. In practice, civil society in Colombia remains under pressure from armed groups and several paramilitary armies have already been established, ready to oppose land restitution. Many of these lands are in indigenous territories.
Lina Maria Gonzalez She is a researcher at the Observatory for the Rights of Indigenous Peoples in Colombia. http://observatoriopic.org
May 31, 2012
1. Ministry of Agriculture and Rural Development. Frequently Asked Questions about Land Restitution in the Victims Law. p. 12
2. In the development of the law, a conceptual construct has been elaborated to define the modalities of land tenure. In principle these are: owners (when you have the title), possessors (when you act as the owner of a property even if you do not have the title registered with the Office of Public Instruments), occupants (cases in which you live and / or usufruct a vacant lot) or holders (who recognize the property of a third party).
3. There is currently an open debate on the interpretation of the concept of "reversal of the burden of proof". The Ministry of Agriculture assumes that it will be a mechanism through which the State helps the individual or community dispossessed, to collect the evidence that shows that their lands have been usurped. For other sectors, in the case of dispossession, reversing the burden of proof means that it is the current occupant or owner who must demonstrate that the lands have been acquired lawfully, in good faith and without fault. This will be explained later in this article. See: "Clash between Restrepo and Robledo due to Land Restitution figures". El Tiempo newspaper, February 19, 2012. Available at: http://www.eltiempo.com/…
4. The document is called Differential treatment for the protection of the territorial rights of ethnic groups. It is produced by the Project for the Protection of Lands and Heritage of the Displaced Population in 2009, when this project depended on the Social Action Institution. At present, it has become directly dependent on the Ministry of Agriculture and Rural Development.
5. There is a political and academic debate on this, while the Colombian State and some sectors of the academy call this type of groupings as BaCrim Criminal Bands. The arguments put forward essentially associate them with common crime and drug trafficking and not so much with the type of political violence they carry out. Several social organizations in the country, as well as other human rights organizations, have pointed out with considerable emphasis that the so-called BaCrim do exert influence and political coercion over the different social sectors and influence the appointment of public officials. In short, they continue to be part of the state institutionality itself. The particularity with respect to the previous structure is perhaps that this form of paramilitarism is not subordinate to a central national structure, although control of entire regions of the Colombian territory is disputed.
6. In the case of indigenous peoples, this has also been exposed in the 2011 Report of the United Nations High Commissioner for Human Rights.
7. To learn more about the demands, see: Colombian Commission of Jurists: http: //www.centromemoria.gov.co…
8. The discussion is much broader and more detailed, but only a generality has been outlined in this newsletter.
9. Victims and Land Restitution Law. Article 77: 1. 49. Available at: http://www.mij.gov.co/…
10. This Law served as a framework for the demobilization of paramilitary structures. It has been harshly criticized for being insufficient to guarantee truth, justice and comprehensive reparation to the victims. The levels of impunity under this law have been galloping. This is partly due to the dimension that paramilitarism reached in multiple spheres of economic and political life in Colombia and the inability of the judiciary to prosecute them.
11. UNDP (2011). National Human Development Report 2011: Rural Colombia, reasons for hope. Available at: http://pnudcolombia.org/….
12. PPT (2009) Ibid. 74
13. PPT (2009). Ibid. 24
14. Houghton, Juan (2007). "Introduction, deterritorialization and indigenous peoples". In Cecoin. Earth against death. 36