2015 World Bank Conference on Land and Property

The Colombian Land Restitution Programme: Process, results and challenges

Washington DC, 24 March 2015

Jemima García-GodosDept. of Sociology and Human Geography, University of Oslo

Henrik WiigDept. of International Studies, Norwegian Institute of Urban and Regional Research (NIBR)

Outline

• Background• The Victims’ Law and the issue of land

restitution• Key features of the land restitution program• The process• Main challenges: Institutional level; during

implementation; return.• Conclusions

Colombia: A history of violence and peace• La Violencia 1948-1958, followed by establishment of National Front

system until 1974.

• Current armed conflict since 1964.• Peace-negotiations with:

– FARC-EP 1982 – 1988 (unsuccessful)– M-19, EPL, and Quintín Lame (blanket amnesties)– Peace-negotiations with the FARC1998 – 2002 (unsuccessful)– Peace-negotiations with the ELN (ongoing)– Peace-negotiations with the AUC (Transitional Justice)

• Since September/Oct 2012: peace talks with FARC

Transitional justice enters the scene

• 2002: Peace-talks in Santa Fe de Ralito: Recognition of the political nature of the Autodefensas Unidas de Colombia (AUC).

• 2003: “Alternative Penalties Law” proposal met with intense national and international criticism

• 2005: Transitional justice discourse introduced in the Law of Justice and Peace (Law 975).

• 2006: Constitutional Court decision on the constitutionality yet need for amendment in some parts.

• Subsequent regulations of the law (decrees, rules, regulations, procedures)

• Additional program: administrative reparations.

A longstanding issue: Land restitution

• Current armed conflict: 3,5–5 mill IDPs,

particularly since 1990s

• 1997 - Law for Protection of IDPs

• 2004 - Constitutional Court (T-025)– “an unconstitutional state of affairs”– Follow-up Commission in 2005; reports since 2007– National System for Integral Support to Displaced Population

established by government, including

legal protection for abandoned lands.

• 2005: Law of Justice and Peace (Law 975)– CNRR – Comisión Nacional de Reparación y Reconciliación– Regional Commissions for the Restitution of Property.– 6-8 pilot projects – Internal displacement identified as a violation in the administrative reparations program.

5

Law 1448 of 2011: The Victims’ Law

• Pending issues in previous legislation: victims of state actors, effective implementation of victim reparations and the issue of land restitution.

• Main objective: To implement victim reparations and protect victim’s rights in the framework of transitional justice. – Reparations for victims after 1985.– Restitution for victims of internal displacement after 1991.

• New institutions created:– The Victim’s Unit: National Victims Registry, specific reparations programs– The Restitution Unit (URT): technical and legal handling of claims, land courts,

land registers– National Commission for Historical Clarification

• Great expectations!

Land restitution in the Victim’s Law

• Guiding principles: Good faith; inversed burden of proof Implementation gradually and progressively Differential treatment Preferential treatment for women

• Many actors involved: URT, IGAC, SNR, INCODER, and more

• URT: • 17 regional offices, broad mandate, considerable resources.• Coordinating function.• Prepare restitution cases/files.• Present cases to Restitution Judges• Represents the victim in the judicial phase

Who is entitled to restitution?

• Owners: formalized property rights• Possessors: has formalized property on

someone else’s name• Occupants: no formal title deeds

• Not included: Tenants, worked somebody else’s land.

Zonas macro Zonas micro

URT-hompages 12/9, not anymore…

Zona micro-focalizada del Municipio El Carmen de Bolivar

From claim to sentence: The restitution process

Victim Min. Def.

URT Nat & Reg.

URT

IGAC, SNR, other

Judge (URT)

SNR, IGAC, INCODER

SNR (URT)

Public agencies

Identification macro & micro

areas

IMPLEMENTATION COURT SENTENCE

Monitored by SNR Implemented by

public agencies Restitution Return

Registering a claim

ADMINISTRATIVE PHASE (60 working days)

Preliminary assessment Claim enters the Registry

of Usurped Land? Yes / no?

If yes, gathering evidence and setting up the file (etapa probatoria)

JUDICIAL PHASE (4 months)

Official case transfer & announcement

New evidence round Ruling/decision by

Restitution Judge If Opponents, contesting

claims: to Restitution Magistrate

Challenges at the institutional level• A heavy process:

– Highly demanding information gathering– High levels of institutional coordination among many actors.

• Restitution judges: comprehensive mandate• Institutional challenges met with a flexible, self-

reflective approach• Institutional, political awareness of what is at stake• Progress slow

Restitution on the ground

• IDPs: a heterogenous group• Occupants might have more land than

entitled to by the restitution program.• Third-parties: In good faith, in bad faith.• Changes in land use

Return: dream or reality?

• Return as premise for restitution• But, many reasons not to return:

– Limited opportunities, infrastructure at place of origin

– New lifestyle, occupation– Generational aspect– Security still a challenge

Conclusions

• High expectations, much at stake• Realities of return make restitution an option, among

others• Serious consideration of alternatives:

– Monetary compesation– Housing support– Formalisation programs

• Closer coordination with other forms of reparation and Victims Unit