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THE VICTIMS AND LAND RESTITUTION LAW IN COLOMBIA IN CONTEXT An analysis of the contradictions between the agrarian model and compensation for the victims Paula Martínez Cortés
THE VICTIMS AND LAND RESTITUTION LAW IN COLOMBIA IN CONTEXT
An analysis of the contradictions between the agrarian model and compensation for the victims
Paula Martínez Cortés| FDCL, TNI| December 2013
Editors:
Forschungs- und Dokumentationszentrum Transnational Institute (TNI)
Chile-Lateinamerika – FDCL e.V. PO Box 14656, 1001 LD Amsterdam,
Gneisenaustraße 2a, D-10961 Berlin Niederlande
Fon: +49 30 693 40 29 Fon: + 31 20 662 66 08
Fax: +49 30 692 65 90 Fax: + 31 20 675 71 76
eMail: info@fdcl.org eMail: tni@tni.org
Internet: http://www.fdcl.org Internet: http://www.tni.org
Author: Paula Martínez Cortés
Layout: Monika Brinkmöller
Print: Copy House
Cover photo: svenwerk / flickr.com
Translation: Simon Phillips (Linguatransfair)
© FDCL, Berlin, December 2013
Produced with financial support from the European Commission.
The views expressed herein are those of the author and not of the EC.
Published by FDCL and TNI for the Hands off the Land Alliance
Paula Martínez Cortés
Paula Martínez Cortés studies political science at the National University of Colombia.
She is a master’s student in local rural development, and participates in the European Union
Agris Mundus program.THE VICTIMS AND LAND RESTITUTION LAW IN COLOMBIA IN CONTEXT An analysis of the contradictions between the agrarian model and compensation for the victims Paula Martínez Cortés Forschungs- und Dokumentationszentrum Chile-Lateinamerika (FDCL), Transnational Institute (TNI) – December 2013
Contents
Contents
Introduction 3
1. The context of the socioeconomic, political and internal armed conflict in Colombia 4
2. Serious human rights violations and denial of the conflict
by the previous government (2002—2010) 5
3. Juan Manuel Santos’ government: ‘cleansing’ Colombia’s image
in order to continue the extractivist, neoliberal model of development 7
4. Demonstrations of ‘good will’: the Victims Law and peace negotiations
as inconsistent rhetoric 10
5. The debates about Law 1448 (2011), better known
as the Victims and Land Restitution Law 11
5.1 A post-conflict law in the midst of an unfinished conflict 11
5.2 A transitional law that oscillates between the longing for peace
and the persistence of war and impunity 12
5.3 Discriminatory treatment of victims by a law that is supposed to recognize them 13
5.4 ‘Fiscal sustainability’ is prioritized over compensation for the victims 14
5.5 Land restitution: consensus between supporters of opposing models of development 15
5.6 Recovering the land just to die for it 15
6. Favoring the land grabbers: two representative cases 17
6.1 Land grabbing in the Colombian Altillanura: the Orinoquia region 17
6.2 Land grabbing in the Montes de María mountain range in Bolívar and Sucre 19
7. Conclusion 20
8. Bibliography 22
Endnotes 27
2Introduction
Law 1448 passed in 2011, better known as behind victimization”.3 Reports have also been
the Victims and Land Restitution Law, has been published by NGOs and organizations in an at-
promoted officially as a demonstration of ‘good tempt to defend human rights by pressing the
will’ by the Juan Manuel Santos government Colombian state to fulfill its obligations. At the
in Colombia. The law represents a cog in the same time, the Victims and Land Restitution Law
transitional policy aimed at facilitating steps has been the object of intense debate among
towards a post-conflict scenario. However, the different national and international sectors.
law’s main objective is to provide recognition
to the victims of the Colombian armed conflict. This study seeks to contextualize Law 1448
This stands in contrast to the policy of denial and frame the discussion in relation to the spa-
enacted by the previous government. In order tial scenario in which the law is being applied:
to provide recognition to the victims, the law Colombian rural areas. The aim is then to high-
aims to secure victims’ rights to access truth, light urgent issues that could act as indicators of
justice and appropriate compensation while rhetorical intention in favor of the (mainly rural)
guaranteeing these people will never be victim- victims. These intentions are not consistent with
ized again. As such, this law is not merely about the development policies imposed by the na-
officially recognizing the conflict and its victims, tional government and actually hinder the pro-
it also aims to provide victims of the conflict vision of comprehensive reparations to the very
with compensation. people the law is supposed to defend.
These demonstrations of political will are rep- Furthermore, this study aims to relate the
resentative of the unusual debate surrounding land restitution process, and the possibilities
the conflict; a debate that has been confounded of achieving its goals, to the recent national
by a number of factors that make implement- scandals associated with the extractivist, ex-
ing the law particularly difficult. Furthermore, clusionary and developmentalist model imple-
the law is formulated in a manner that reflects mented by Juan Manuel Santos’ government.
the diversity of the field it seeks to regulate, and These policies include: i) land grabbing in the
this is clear throughout its 80 pages.1 However, Colombian Altillanura, and other regions such
this should not imply that the law is being suc- as the Montes de María mountain range; ii) ef-
cessfully implemented on the ground. This is forts by the government to dismantle the few
a particularly important factor, as the law was legal instruments that defend indigenous, Afro-
only designed to regulate the current transition- Colombian and peasant farmers’ territories;
al period. Moreover, the armed conflict in Co- iii) and the repressive treatment of dissent and
lombia continues, and is fundamentally linked protests against the imposition of the govern-
to conflict in the political and socioeconomic ment’s model. One example is the recent na-
spheres. tional agrarian strike. The government’s reac-
tion to the strike was characterized by a lack of
Since Law 1448 was enacted in 2011, vari- understanding of the conflict’s complexity: the
ous reports have been published that evaluate conflict is more than just an armed conflict; it
the law’s potential and the challenges faced by is also aggravated by diverse policy measures
its implementation. These reports range from and official decisions.
an official analysis that presents data with-
out providing significant references to their Finally, this study highlights the role of the in-
context;2 to publications in national media such ternational community. Although many of the in-
as the Victims Report in the magazine Semana ternational community’s diverse actions have fur-
that illustrate the data by focusing on “victimiz- thered the defense of human rights, at other times
ing events but not the background or meaning they have sharpened the conflict in Colombia.
31. The context of the socioeconomic,
political and internal armed conflict in Colombia
Colombia has been submerged in a socio- nesses in collecting information due to the lack
economic, political and internal armed conflict of political will to recognize and assume re-
for more than a half a century. Its causes have sponsibilities in terms of the state’s obligation to
been widely debated, but if there is one factor guarantee human rights throughout Colombia.
that traverses the entire conflict, it is the dis- For example, in the case of forcibly displaced
pute over land and territories as a source of people, the system of official registration only
economic and political power. This situation began in 1997; this was due to an initial lack
remains unresolved. Additionally, Colombia is of recognition of the problem. This situation oc-
also faced by an extremely high concentration curred despite the fact that in 1985 the Colom-
of wealth: it is the third most unequal country bian Bishops’ Conference publicized the mag-
in Latin America.4 Clearly, Colombia is not only nitude of this issue.8 As such, it is important to
experiencing an armed conflict, it is also experi- contrast official data with alternative information
encing profound social conflicts that have vari- collected by other organizations. In this particu-
ous forms of expression. lar case, the Consultancy for Human Rights and
Displacement (CODHES) estimates that between
The ¡Stop Now! Report (¡Basta Ya!) produced 1985 and 1995 819,510 people were displaced
by the Historical Memory Group (GMH) esti- as a consequence of the armed conflict. Conse-
mates that the armed expression of the conflict quently, a conservative estimate of the number of
led to the death of at least 220,000 people displaced people could be close to 5,700,000;
between 1958 and 2012.5 This means that the the majority of these people are peasant farm-
armed conflict has caused one in every three ers, indigenous people and people of African
violent deaths in the country. Furthermore, civil- descent. This figure represents 15% of the total
ians have been the most affected population: population of Colombia.9
for every dead combatant, four civilians have
been killed.6 These displacements have led to between
6.6 and 8 million hectares of land to be expro-
The violence of the conflict also has a wide priated through diverse mechanisms. This “has
range of non-lethal dimensions that are just as exacerbated the historical hoarding of land by
serious. large landowners, drug traffickers, paramili-
tary forces and big business”.10
“Up to March 31, the Victims Unique Record
(RUV) reported a total of 25,007 missing peo- “[…] between 1985 and 2012, the data shows
ple, including 1,754 victims of sexual violence. that 26 people were displaced every hour in
A total of 6,421 boys, girls and adolescents Colombia as a consequence of the armed con-
had been recruited by armed groups, and flict, while every 12 hours someone was kid-
4,744,046 people had been forcibly displaced. napped. The period between 1996 and 2005
The work done by Cifas & Conceptos for the was even worse: someone was kidnapped
GMH estimated that there had been 27,023 every eight hours, and a civilian or soldier was
kidnappings associated with the armed conflict killed every day by a landmine. This means
between 1970 and 2010, while the Presiden- Colombia is second only to Afghanistan as the
tial Program of Integral Attention against Land- country with the largest number of landmine
mines (PAIMA) reported that there had been victims, but remains the country with the largest
10,189 victims of landmines between 1982 number of forcibly displaced people”.11
and 2012”.7
As the GMH report states, this has been a
Discussions about these data have focused limitless war characterized by a frightening level
on under-registration, and institutional weak- of cruelty.12 Paramilitary groups in particular
4have practiced this cruelty, but all armed ac- “The violence of the forced disappearances,
tors have played a role in attacks directed at the violence committed against union lead-
civilians. Guerrillas, paramilitaries (including ers, the violence of forced displacements, of
the mistakenly labeled ‘Bandas Criminales Emer- the threats to and expropriation of peasant
gentes’ or ‘emergent criminal gangs’ – BACRIM) farmers, the sexual violence and many other
and state forces (the National Army, Colombian forms that are often neglected and left out
Air Force, National Police including the Mobile of the public arena are experienced in the
Anti-Disturbances Squadrons – ESMAD) have midst of profound and painful solitude. The
participated in the conflict in various ways, and routinization of violence on the one hand,
deploy diverse modes of violence depending on and the rurality and anonymity at the nation-
their particular objectives.13 al level of the vast majority of the victims,
on the other, has resulted in an attitude of
The GMH report also correctly points out that indifference, if not passivity, which is fed by
armed violence is not lived and perceived in the a comfortable perception of economic and
same way throughout the country or by all parts of political stability.” 14
the population. Rural areas have been the settings of
extreme violence, and despite the millions of victims However, such stability is only enjoyed in
many people still consider the conflict to be ‘some- the main cities, and by the comparatively small
body else’s problem’ and do not view the conflict as numbers of people belonging to the high and
linked to their own realities and interests. middle class.
2. Serious human rights violations and denial of the
conflict by the previous government (2002—2010)
Without going too far, the previous govern- Uribe Vélez’s government left behind a con-
ment, which was headed by Álvaro Uribe stitution that had been reformed so as to enable
Vélez between 2002 and 2010, systematically the former president to be reelected; even Barack
denied the existence of the internal armed Obama told Uribe that he viewed Ulribe’s ree-
conflict.15 At the same time, during this pe- lection as inappropriate.17 Ulribe’s government
riod the victims of the conflict remained ‘in- was responsible for various grave cases of hu-
visible’. The government of the time argued man rights violations.18 Among the most well-
that the country was faced by terrorists whose known are the cases of extrajudicial, summary
strength was diminishing and that should be or arbitrary execution19 perpetrated by the army.
suppressed by all of the forces available to This was an attempt to present “civilians as guer-
the state. This perspective led to the polari- rilla members killed in combat. In reality, these
zation of society by diluting the principle of people were civilians who had been deceived,
distinguishing between combatants and civil- or kidnapped, and then executed and buried in
ians: the government judged anyone express- unidentified graves or in mass graves in remote
ing dissent as “collaborators or defenders of regions so as to avoid repercussions with the
the terrorists”.16 Moreover, this polarization families”.20 This happened as part of a system
was also a useful means of legitimizing the of incentives through which members of the mili-
innumerable abuses committed by state mili- tary were rewarded with days off, promotion and
tary forces. In some cases, the military col- awards depending on the number of kills they
laborated with paramilitary groups in actions reported in combat. More than 3,000 civilians
taken against the population including people are thought to have been assassinated as part
seeking to defend human rights, trade union- of this system,21 which belonged to the infamous
ists, teachers and students. democratic security policy.
5At the time, Juan Manuel Santos was Uribe’s In 2004, during Uribe’s presidency, the
defense minister and Freddy Padilla de León constitutional court issued judgment T-025
served as general commander of the Colom- criticizing the ongoing “unconstitutional state
bian armed forces. Once president, Santos of affairs”.32 The court was referring to the
designated the then retired general as ambas- multiple, massive and continuous infringe-
sador to Austria. However, Padilla was forced ments of fundamental rights against displaced
to resign in October 2013 after a complaint populations as victims of the internal conflict.
by the European Center for Constitutional The ruling not only criticized the lack of state
and Human Rights (ECCHR). The ECCHR had response in the form of providing attention
compiled a compendium of serious allega- and effective protection to the victims, but also
tions against the former general; however, his the bureaucratic formalities demanded by the
diplomatic immunity meant that no investiga- authorities before fulfilling their duty to pro-
tion could be carried out.22 tect the population. In this sense, the court or-
dered the government to take specific action
The other major scandal during Uribe’s to ensure it complied with its constitutional
time in government concerns the intimidation, responsibilities. These recommendations in-
fear tactics and espionage conducted by the cluded assigning adequate resources to deal
Administrative Department of State Security with serious breaches of rights, and securing
(DAS)23 against members of the opposition, the necessary cooperation between different
NGOs, people defending human rights, jour- branches of government.
nalists, judges from the supreme court, and
even against members of the government’s Nevertheless, the 2011 Monitoring Act
own cabinet.24 This case resulted in the dis- (No. 219) led the constitutional court to con-
mantling of the DAS and the investigation firm “the persistence of the unconstitutional
and/or condemnation of several of its staff, state of affairs”.33 The court argued that there
including its former directors Jorge Noguera,25 was still no effective guarantee of rights for
(its director between 2002 and 2005); Andrés displaced populations.34
Peñate,26 (director between 2005 and 2007),
and Maria del Pilar Hurtado. The latter direct- In short, the Uribe government consid-
ed the institution between 2007 and 2008, but ered the victims of the conflict to be ‘some-
was granted asylum by Panama and escaped one else’s problem’, and saw no link between
from the legal case brought against her.27 solving the victims’ problems and its own in-
terests. Moreover, the Uribe government left
Even former president Uribe is currently behind a large number of scandals ranging
under investigation due to his alleged involve- from human rights violations, to authoritari-
ment “in the promotion, organization and anism, and other illegal acts (or it reformed
support of paramilitary groups and Convivir the law to legalize its actions). Some of these
associations that were directly linked to them; scandals are currently being investigated.
through actions and omissions, and colluding
with them, not only as governor of Antioquia, Nonetheless, the former president, whose
but also later as president of the country.”28 suspected links to paramilitaries are currently
This court case was first brought by the justice under investigation, is canvasing for the sen-
system,29 but it has suffered delays that have ate. He leads a closed list that includes his
been criticized by more than twenty members previous presidential advisor, Jose Obdulio
of the European Parliament30 and judges be- Gaviria, cousin of the famous illegal drug
longing to the High Court of Medellín. The dealer and head of the Medellin Cartel, Pablo
judges who first ordered the investigation Escobar. Furthermore, Gaviria has been ques-
have received death threats.31 tioned about the role he played in advising
the leaders of the ‘Don Berna’ paramilitary
units during their demobilization.35
63. Juan Manuel Santos’ government:
‘cleansing’ Colombia’s image in order to continue
the extractivist, neoliberal model of development
After a government such as Uribe’s, in which Among the reasons that explain why the US
several of the former president’s closest aids, as Congress decided to ratify the agreement,41 the
well as senators from congress, have been in- following stand out: the recognition of the inter-
vestigated and/or sentenced for their links with nal armed conflict by the government of Juan
paramilitary groups, some of whom are now Manuel Santos; the Colombian president’s dem-
fugitives, the Juan Manuel Santos government onstration of ‘good will’; and his commitment to
took up the task of improving the general im- human rights through Law 1448 (2011), better
age of Colombia’s state institutions. The new known as the Victims and Land Restitution Law.
government particularly focused on improv- These factors, along with peace negotiations with
ing relations with the international commu- the Revolutionary Forces of Colombia – People’s
nity, which was concerned about the multiple, Army (FARC-EP), were perceived as concrete evi-
systematic and continued violations of human dence of political will on the part of the govern-
rights in Colombia and the impunity enjoyed by ment to begin paying back the historical debt
the perpetrators. owed by the Colombian state to the victims of
the conflict.
Colombia’s ‘bad image’ abroad led to
specific economic consequences that – at least As Human Rights Watch points out, even
momentarily – hindered the interests of pow- though the United States continues to be the
erful national and international sectors. One most influential foreign actor in Colombia (in
example was the proposed free trade agree- 2012 the US provided almost US$ 481 million
ment (FTA) between Colombia and the US: the in assistance, of which approximately 58% was
ratification process was frozen due to persist- destined for the armed forces and the police) it
ent human rights violations against trade un- has not demanded that military support be made
ionists.36 dependent on compliance with human rights
requirements. This situation continues, despite
During his presidential candidacy, Barack the US Department of State’s remarks about the
Obama stated that he considered signing the persistence of threats and attacks against people
FTA “a mockery of the very labor protections defending human rights, land activists, trade un-
that we’ve insisted be included in these kinds ionists and journalists, among others.42
of agreements”.37 However, two years later, the
newly elected President Obama called the agree- It is important to interpret these supposed
ment a ‘win-win for both nations’.38 demonstrations of ‘good will’ in the context of
the extractivist, neoliberal and exclusionary eco-
In April 2012, Obama enacted a labor ac- nomic model driven by the Santos government.
tion plan urging the Colombian government to This model should also be understood as a con-
stop the violence against trade unionists. This tinuation of what Uribe Vélez was preparing dur-
was done to soften the reactions of the US Con- ing his mandate. Colombia is currently develop-
gress, which did not want to be associated with ing an economic model that does consider rural
the country responsible for the highest rate of populations, and that continues to reproduce the
assassination of trade unionists in the world.39 conditions which led to the multiple violations of
The treaty was ratified in October 2011 and fi- human rights that are still occurring today.
nally came into effect on May 15, 2012, despite
the complaints and warnings about the adverse It is no coincidence that this ‘good will’ was
effects it might have on the people of Colom- demonstrated at the same time as the president
bia.40 was successfully ratifying free trade agreements
7and others negotiated during Uribe’s presi- Other sectors of the population have joined
dency. According to the government’s official protests led by the dairy farmers and potato,
website, Colombia currently has thirteen com- coffee, cacao and rice growers. These people
mercial treaties, including an FTA with the US, have included truck drivers and students in ur-
the European Union, Canada, and the EFTA ban centers demonstrating their solidarity with
states, among others. Furthermore, two trea- the peasant farmers’ legitimate demands. These
ties have been endorsed: one with Korea and protests remind the government of the existence
one with Costa Rica; but these have yet to con- of large popular sectors that have been made
clude the ratification processes. Moreover, the permanently ‘invisible’ by the developmental-
Colombian government is also negotiating fur- ist plans imposed on the country.
ther agreements with Panama, Turkey, Japan,
Israel, the Pacific Alliance43 and the Dominican The national agrarian strike started on Au-
Republic.44 gust 19, 2013 and ended in most regions on
September 10 after agreement was made on
These treaties have aggravated the internal a number of measures in favor of the peas-
conflict, and although the government presents ant farmers. Nevertheless, at the current time,
the conflict as a simple armed confrontation, some of the strikers have once again criticized
the conflict actually has a delicate socioeco- the government for breaching this agreement,
nomic and political background. The imple- and the peasant farmers are currently consid-
mentation of the FTA with the US on May 15, ering mobilizing themselves again. 47
2012 exacerbated the obscene levels of vio-
lence in rural areas,45 which have occurred due Additionally, since October 14, 2013,
to disputes over productive and resource-rich demonstrations initiated by the ‘indigenous,
territories that promise raw materials with high social and popular Minga in defense of life,
market value. territory, autonomy and sovereignty’ have
blocked 22 major roads in 17 regions of the
Moreover, the implementation of the FTA country.48 These peasant farmers claim that
with the European Union, on August 1, 2013, more than 70% of the agreements that were
was the main trigger behind the national agrar- reached more than three years ago have not
ian strike started by peasant farmers from dif- been met. These agreements were supposed
ferent regions of the country.46 The farmers to solve the historic marginalization and dis-
were protesting against neoliberal policies that crimination suffered by indigenous communi-
forced them to compete with highly subsidized ties, which is aggravated by the armed ex-
products from Europe. The farmers viewed pression of the conflict. 49 This led the Minga
these policies as a threat to their farms, and to establish a list of demands based on five
to indigenous and Afro-Colombian lands and points (see box).
territories. This situation occurred in a coun-
try where these people already face extremely The different indigenous organizations
adverse conditions and a history of economic that form the Minga once again denounce
marginalization. the “historic violation” of the rights of the 102
indigenous communities in Colombia, 35 of
For example, the FTA meant Colombia would which are in danger of physical and cultur-
have to compete with dairy farmers in the Eu- al extinction, as stated by the constitutional
ropean Union; a region responsible for 30% court.57
of global milk production. In fact, according to
José Felix Lafaurie, the president of Fedegán The international community has not acted
(the livestock sector), in just 15 days Europe responsibly regarding the humanitarian crisis
produces 6,500 million liters of milk; this is in Colombia. This is also clear from the dis-
equivalent to the total annual Colombian pro- cussions held in the European Parliament dur-
duction. Even though Fedegán represents the ing the ratification process of the FTA between
biggest livestock owners, most Colombian dairy Colombia and the European Union. On the
farmers own less than 50 cows, and 236,000 one hand, this discourse insists human rights
dairy farmers in Columba own less than 10; in be respected; on the other hand, when rele-
other words, these people are extremely poor vant decisions need to be taken, the economic
smallholders. interests of specific sectors prevail despite the
8The list of demands by the indigenous, social and popular Minga
in defense of life, territory, autonomy and sovereignty:
1) “HUMAN RIGHTS, ARMED CONFLICT AND the resguardos, but even President Santos
PEACE: adopt the rights set out in the Unit- has stated publicly: “consultations and public
ed Nations Declaration on the rights of In- audiences are a headache because they are
digenous Peoples (UNDRIP); demilitarize the used as an excuse to stop development”.54 In
indigenous territories; dismantle the Consoli- this sense, the Minga calls for mining contracts
dation Plans, and respect the exercise of ter- or concessions to be revoked in indigenous
ritorial control by the indigenous guard.”50 territories if such contracts do not conform to
This is aimed at ending the human rights vio- the regulations set out in the constitution or to
lations occurring as part of the internal armed community rights.
conflict, and which are being committed by 4) AUTONOMY AND SELF-GOVERNMENT: the
legal and illegal combatants. In 2012, 78 in- exercise of autonomy and self-government
digenous people were murdered and 10,515 is based on the idea of territorial autonomy
were forcedly displaced.51 and on the practice of self-regulated govern-
2) TERRITORY: guarantee protection for the in- ment by indigenous people according to in-
digenous resguardos (territories), because digenous views of the world.
national constitutional laws on their extension 5) FREE TRADE AGREEMENTS AND AGRICUL-
and sanitation52 are not being respected. Fur- TURAL POLICY: promote a referendum aimed
thermore, protect native seeds.53 at annulling the FTAs or re-negotiating them;
3) CONSULTATION REGARDING MINING, repeal all regulations that are contrary to food
ENERGY AND HYDROCARBON PROJECTS: sovereignty”.55 This is important because FTAs
even though consultation mechanisms are prioritize the interests of multinationals over
recognized by the constitution, investment those of ancestral communities, as expressed
projects are commonly implemented without by Luis Fernando Arias, secretary general of
consulting the affected indigenous communi- the National Indigenous Organization of Co-
ties. This is the only mechanism that protects lombia (ONIC).56
consequences that these agreements have for It is also important to highlight that Santos’
people’s lives. This situation has even led a diplomatic style only applies to the international
number of European parliamentarians and community; at the national level, the govern-
political parties to call for the suspension of ment stigmatizes social dissent, and legitimizes
the treaty.58 repression carried out by state forces against
people who go against the government. This is
It is in the midst of this exclusionary and ex- particularly evident with the approval of Article
ploitive economic system’s search for legitimacy, 353A of the Penal Code, which establishes pun-
which continues despite the profound humani- ishments of between 24 and 48 months impris-
tarian crisis in Colombia, that it is possible to un- onment for people who obstruct transportation
derstand the meaning of Law 1448 better known routes as part of non-authorized demonstra-
as the Victims and Land Restitution Law. Presi- tions.59 Moreover, the defense minister is seeking
dent Santos’ diplomatic style has contributed to to strengthen this article “to enhance the punish-
optimism among the international community ments and effectively sanction people who incite,
regarding the situation in Colombia. However, lead, provide means for or promote violent acts
although we are seeing a change in government and proceedings that affect public order or citi-
style, there has been no substantial change in zens’ normal activities”.60 In addition, the Mobile
terms of the economic model that is being im- Anti-Disturbances Squadrons (ESMAD) are to be
posed on the country. Consequently, it is cur- doubled in size; yet these squadrons are respon-
rently impossible to create the conditions that sible for innumerable abuses of the use of force,
would enable an ‘effective guarantee of rights’ and this has even been recorded by passersby
in Colombia. and journalists.61
94. Demonstrations of ‘good will’: the Victims Law
and peace negotiations as inconsistent rhetoric
If we take into account the pressure from the Although the ‘peace’ negotiations do not
international community on the economic in- involve representatives of popular agrarian
terests defended by Álvaro Uribe Vélez and sectors, two retired army generals and the
Juan Manuel Santos, the new government’s president of the National Industrial Associa-
eagerness to demonstrate ‘good will’ is under- tion (ANDI) will be taking part. The only space
standable. Law 1448, dated June 10, 2010, for indirect participation has been organized
and the peace negotiations that took place in by the UNDP and the National University of
Havana, Cuba with the FARC-EP, and those Colombia in a joint effort to bring together di-
that are expected to take place with the Na- verse sectors of the population to participate
tional Liberation Army (ELN), are examples of in discussion forums on the topics covered in
this ‘good will’. Havana. The results of these forums are to be
sent to the negotiations in the form of recom-
There should be no doubt that Colombia mendations by civil society. There are other
needs to end the socioeconomic, political and peace initiatives that are being built by social
internal armed conflict, but the problem is ac- movements and organizations such as Con-
tually the lack of government recognition of greso de los Pueblos (People’s Congress) and
the socioeconomic and political dimensions Marcha Patriótica (Patriotic March) that are also
behind the conflict. The government contin- promoting social empowerment of the peace
ues to reduce the conflict to its armed expres- process.
sion. Even if the negotiators in Havana have
reached partial agreement on the agrarian The government’s interest in the negotia-
problems in the country, the model of devel- tions seems to be focused on pacifying Colom-
opment promoted by the government stands bian territory to make it easier to implement
in opposition to the interests of rural commu- the large scale extractive investment projects
nities. Yet these are the very communities that that constitute part of the various free trade
have been excluded from decision-making agreements.
processes and made ‘invisible’. These exclu-
sionary policies affect rural communities, and Even though negotiations with the guerril-
for example, hinder their ability to collectively las represent a very important step towards the
develop their own territory. These populations construction of peace in Colombia, these ne-
have been forcibly displaced, murdered, and gotiations only represent one dimension of the
tortured because they lived on lands that mul- discussions that need to take place. The im-
tinationals or national enterprises wanted in plementation of social, political and economic
order to exploit natural resources or the land’s justice is also crucial if a solid foundation for
productive potential. peace is to be constructed.
The government itself has stated, “the cur- Assuming the dialog between Juan Manuel
rent model of economic development in Co- Santos’ government and the guerrillas evolves
lombia; the legal regime that protects private into a peace agreement, Colombia will con-
property; the current foreign investment mod- tinue to be faced by a situation of ‘multiple
el, and military doctrine are not going to be organized criminality’ with the presence of
part of peace negotiations between the gov- ‘black hands’, mistakenly known as BACRIM
ernment and the FARC-EP”.62 However, it is (reorganized paramilitary structures that con-
precisely these issues that have been continu- tinue to threaten and murder people). Fur-
ally postponed, and that continue to accentu- thermore, state institutions will continue to
ate the socioeconomic and political conflict in be directly or indirectly involved in human
the country. rights violations, and this will make it diffi-
10cult to generate the necessary environment through threats to and assassinations of peas-
that could enable the collective construction ant farmers claiming their lands, and through
of peace, and an effective implementation the intimidation of public servants dedicated
of the Victims and Land Restitution Law. This to implementing the law. This is demonstrated
violence has manifested itself, for example, in the next chapter.
5. The debates about Law 1448 (2011), better known
as the Victims and Land Restitution Law
Juan Manuel Santos’ government is imple- Even if peace negotiations with the guerril-
menting Law 1448 to “dictate measures for las are successful, the problem of the reorgan-
the consideration, and the provision of assist- ized narco-paramilitary groups will persist: the
ance and restitution to the victims of the in- so-called ‘Bandas Criminales Emergentes’, which
ternal armed conflict”. From the design-stage include Águilas Negras, Los Rastrojos, Urabeños
to the formulation of the law, several debates and Erpac. These groups continue to commit nu-
arose among different sectors and these were merous human rights violations65 and some even
never completely solved.63 These differences specially focus on impeding the land restitution
are clear from the inconsistent and lengthy process by murdering the farmers’ leaders. These
wording of the law, and have been worsened groups call themselves ‘Ejércitos anti-restitución
by a number of challenges that surfaced dur- de tierras’ (anti-land restitution armies) and are
ing the law’s year-long implementation. Some located in Cesar,66 Magdalena, Guajira,67 Sucre
of these debates and challenges are discussed and Bolívar.68
in the following in the context of their political
framework. The persistent actions of these groups, and
the impunity they enjoy, are permanent remind-
ers of the continued presence of the dirty war in
5.1 A post-conflict law in the midst Colombia. Between the late 1980s and the early
of an unfinished conflict 1990s, genocide was committed by the Unión
Patriótica.69 This organization was granted legal
Law 1448 is an attempt to move towards so- status once again in July 2013,70 and the mur-
cial reconciliation. This begins with providing ders of Nancy Vargas and Milciades Cano, two
acknowledgement and restitution to victims who former members of this movement, on October
have been historically marginalized, particularly 6, 2013, seem to suggest it may be resurfac-
by the government of Uribe Vélez. The current ing.71
government’s position is that the law is a dem-
onstration of peace and a firm step towards con- The Unión Patriótica was a leftist party found-
structing a post-conflict situation. However, the ed in 1985, mainly composed of demobilized
law is being applied before the conflict has even members of the FARC who had left the armed
ended. struggle to participate in the dynamics of elec-
toral politics. Two of its presidential candidates,
The challenge faced by the law is enormous: eight members of congress, thirteen deputies,
victims from the past are joining those from seventy councilors, eleven mayors and about
the present and the future. This poses serious five thousand militants were systematically mur-
doubts about the temporary framework being dered through the joint collaboration of the state
developed by the law. Estimates suggest that the security forces, paramilitary groups and drug
armed expression of the conflict led to 200,000 traffickers. This case has not been taken to the
new victims in 2012 alone.64 Inter-American Court of Human Rights. As such,
11justice has not been done regarding these will end. Theoretically, conflicting parties would
events; rather they have become a specter that first be expected to agree on peace (or one of
disrupts the ongoing peace negotiations be- the parties would impose peace on the other),
tween the FARC-EP and the national govern- before a transitional justice framework would be
ment. This leads to the question as to whether developed. As this has not yet happened in Co-
demobilized combatants can expect real guar- lombia, the local context is viewed as particularly
antees of participating in politics, considering interesting by many people.
that during the current Juan Manuel Santos gov-
ernment, the same government that is holding However, the originality of the Colombian
negotiations in Havana, several leaders of the case results in an outlook where the govern-
land restitution process have been murdered. ment continues to provide excessive concessions
to armed (and unarmed) actors in the name of
Even the attorney general, Eduardo Monteale- an unforthcoming situation of peace and social
gre, accepts that, “there will be a dirty war in Co- reconciliation. This negatively affects victims’
lombia during the post-conflict period, and this rights to truth, justice, restitution, and guaran-
will be one of the greatest challenges affecting tees that they will never be victimized again. The
the Colombian state”.72 Unfortunately, the dirty accumulated history of impunity in the country
war is not something destined for the future: it is worsens this situation, and the Justice and Peace
already happening, and no effective measures Law, which paved the way towards ‘transitional
have been put in place to end it. justice’, constitutes part of that history.
This juridical framework created to promote
5.2 A transitional law that oscillates paramilitary demobilization has been strongly
between the longing for peace and the criticized.75 First, it has failed in its main objec-
persistence of war and impunity tive, as the paramilitaries have reorganized and
continue to commit crimes.76 Second, it passes
The Victims Law needs to be interpreted as soft sentences on the actors involved, despite the
part of a process that began during Uribe Vélez’s massive human rights violations being commit-
government with Law 975 (2005). This law is ted and violations of international humanitarian
popularly known as the Justice and Peace Law law in return for statements made at ‘free ver-
(Ley de Justicia y Paz) and was aimed at paramili- sion’ hearings that depend on the willingness
tary demobilization. It formed part of the gov- of the criminals involved to participate.77 These
ernment’s denial of the armed conflict, and was hearings often lead to half-truths, and rarely
an attempt to demonstrate to the international provide new information about the paramilitary
community that Colombia was passing through phenomenon and its promoters.
a ‘transitional’ stage and on the path to peace.
At the same time, however, it opened the door Furthermore, the current situation makes it
to impunity for crimes committed by the para- difficult for paramilitaries to make statements at
militaries. these hearings. There has been a massive ex-
tradition of paramilitary leaders to the United
The government’s proposal was strongly criti- States, and this can be viewed as an attempt to
cized by the national and international commu- conceal inconvenient truths about the most pow-
nity, and this led it to be substantially modified.73 erful sectors of the country. This has not been
The law was eventually approved in a modified widely discussed in the country, and as such,
form; although it still did not take into account Colombian society is generally unaware of what
persistent omissions that had been identified by has been happening.
the law’s retractors. This opened the path to what
is known as the situation of ‘transitional justice’ According to the minister of justice, Alfonso
in the country.74 Both the Justice and Peace Law Gómez Méndez, the main problem with the law
and the Victims Law are part of that ‘transitional’ is that the entire truth is rarely demanded. De-
process. mobilized paramilitaries who speak about their
versions of the events tend to “suffer from par-
Colombia is the first country in history to have tial amnesia: they only remember people who
begun speaking about transitional justice before are no longer in this world and the country has
it is even clear when armed conflict in the country never found out how paramilitary activity began,
12who financed it, and who are its accomplices”.78 “The victims of forced displacement and other
Crimes against women, and this includes sexual human rights abuses committed before 1985
violence, are made particularly invisible, and may only benefit from symbolic reparations,
this is worsened by the difficulties women have and not from land restitution or economic
in gaining access to justice.79 compensation.
The Victims Law was approved, among other The victims of human rights abuses commit-
reasons, as a response to criticisms of the Justice ted between 1985 and 1991 have the right to
and Peace Law, which was providing a juridical receive economic compensation but not land
framework for the impunity of paramilitaries and restitution.
enabled them to continue committing crimes.
Furthermore, the Justice and Peace Law led the Victims whose lands were unlawfully taken or
victims to be forgotten. Although the Victims Law occupied through human rights abuses after
corrected the errors put in place by the Justice 1991, but before the expiration of the law,
and Peace Law, the two laws coexist and this is have the right to land restitution. Since the
causing difficulties in implementation. law is valid for 10 years, this would mean un-
til June 10, 2021”.
This problem has not yet been overcome.
Moreover, implementing flexibility in justice has The second distinction refers to a person’s
not led to peace or the fulfillment of victims’ recognition – or lack of it – as having been an
rights to truth, justice, reparations and guaran- armed actor in the conflict. Clearly, victims are
tees that they will no longer be victimized. unable to benefit from this legislation. This be-
comes a problem, due to the government’s in-
The lack of justice regarding the atrocities sistence on disregarding continuity among the
that continue to be committed in Colombia paramilitary forces.81 This is not only an attempt
sends a clear message to people participating to deny the complete failure of the Justice and
in the conflict: whether they are involved in the Peace Law, but also implies marginalizing the
conflict’s armed, political or socioeconomic di- victims of paramilitary action before the failed
mensions, they are guaranteed impunity for their 2006 demobilization process.
crimes, and this particularly remains the case for
the most powerful actors. It is no coincidence that instead of calling
things by their real names, the government la-
bels reorganized paramilitary groups as ‘emerg-
5.3 Discriminatory treatment ing criminal bands’ and includes them as part of
of victims by a law that is supposed wider crime. Thus, victims of reorganized para-
to recognize them military groups are excluded from the scope of
Law 1448, despite the fact that “in many cases,
Although Law 1448 sets out “measures for the there seems to be a clear relationship between
provision of attention, assistance and reparation continued paramilitary activity and the constant
to the victims of the internal armed conflict”, the taking of lands”.82 This situation is worsened by
truth is that not all the victims are covered by the difficulties faced by victims when they are de-
the law, and those who are, do not necessarily clared trespassers by state representatives.
receive the same treatment. This has made it dif-
ficult for some people to access compensation The third distinction concerns the victims’ lev-
and land restitution measures in particular. el of involvement in the dynamics of the armed
conflict. It disregards people who have partici-
The circle of victims has been reduced be- pated as aggressors, which means:
cause of three conceptual distinctions: a tempo-
ral distinction; official recognition (or the lack of Illegal armed actors who have suffered hu-
it) of a person’s participation in armed conflict; man rights violations or infringements of in-
and a victims’ involvement in the dynamics of ternational humanitarian law cannot be ac-
the armed conflict. knowledged as victims.
Recalling the argument of Amnesty International,80 This is a particularly thorny issue when ap-
the temporal distinction ensures: plied to minors who are victims of forced re-
13cruitment. These young people are only rec- This debate was closely related to a constitu-
ognized as victims if they are still minors at tional amendment processed the same year by
the time of their demobilization. the minister of the treasury, Juan Carlos Echever-
ry. This amendment modified Article 334 and
In cases of illegal killings committed by the state defined fiscal sustainability “as an instrument to
security forces, which usually claim that the vic- progressively reach the purposes of the social
tims belonged to an illegal armed group, rela- and democratic state based on the rule of law”.
tives are only recognized as victims if a criminal However, several critics have argued that this
investigation confirms that the deceased person was both unnecessary and inconvenient. On the
was not part of one of those organizations. one hand, the government already has the tools
Given the difficulties in clarifying such member- to achieve responsible and sustainable public
ship, it may be impossible for relatives to obtain finances. On the other hand, this amendment
compensation by virtue of this law. reflects a narrow understanding of an objective
that, although desirable, could be approached
These three conceptual distinctions demon- in different ways and not just by reducing social
strate that Law 1448 does not provide measures expenditure, limiting compensation to victims,
for the provision of attention, assistance and and amending the constitution to include fiscal
reparation to all victims of the internal armed sustainability.86
conflict. Moreover, practical limitations worsen
this situation. Survivors of human rights viola- Similarly, Iván Cepeda, a member of the
tions, who have remained close to the lands they House of Representatives, recalled that under
claim, only require formal acknowledgement the Victims Law, the massive violations of human
that they are victims of the conflict. In contrast, rights committed for decades are to be compen-
people who fled the areas where they once lived sated with 40 billion pesos over a period of 10
face difficulties if they have not been recognized years. However, the country spends close to 20
as forcefully displaced people.83 billion pesos annually on defense and security,
and this is not being questioned by the govern-
Consequently, bureaucracy (among other ment.87
aspects) plays a role in the difficulties faced by
people in their attempts to gain victim status. This This narrow and one-sided understanding of
makes it difficult for victims to access their rights fiscal stability is evident in the government’s re-
to truth, justice, compensation and guarantees peal of Presidential Decree 2170 of October 7,
that they will no longer be victimized. 2013. This decree was issued by the State Coun-
cil in order to reverse the abusive implementa-
tion of the health, location and home premiums
5.4 ‘Fiscal sustainability’ is prioritized foreseen by Law 4 of 1992. Law 4 also aimed to
over compensation for the victims increase the – already quite generous – salaries
of deputies in congress88without justification. As
A further debate about Law 1448 regards the so- such, had the government not repealed Decree
called criterion of ‘fiscal sustainability’. This law 2170, the nation could have saved more than
was aimed at limiting the amount of compensa- 2.1 billion pesos89 (more than 800,000 euros)
tion provided to victims in order to safeguard the every month.90
macroeconomic stability of the state. As such,
this law never aimed to ensure the return of all These situations demonstrate (among other
belongings to displaced people; neither did it things) that this narrow and one-sided under-
foresee complementary measures such as com- standing of ‘fiscal sustainability’ is used to limit
pensation for loss of profit.84 the rights of vulnerable populations in Colom-
bia, and is ignored in discussions on the provi-
Various actors have criticized the govern- sion of benefits to the most powerful people in
ment for continuing to find ways of restricting Colombia.
the social rights of the most vulnerable, instead
of questioning “the corruption, the enormous ex- Furthermore, some organizations have de-
pense on defense, the generous taxes and tax nounced the fact that the government seems to
benefits provided to the richest”85 Colombians have confused the issue of providing access to
and foreign nationals. basic social services with the provision of compen-
14sation measures, as it offers preferential access to Accordingly, this first perspective calls for a
social services to victims, although such services massive policy of restitution, the provision of ti-
should be provided to the entire population. tles and updating the registry and information
systems to organize and legitimize existing rural
property titles. This would also help remove the
5.5 Land restitution: consensus between suspicion of land ownership being based on ex-
supporters of opposing models of propriation.
development
In contrast, the second perspective conceives
After reconstructing the institutional debates that land restitution not only as a means of securing
led to the Victims and Land Restitution Law, Rod- justice for the victims, but also as an acknowl-
rigo Uprimny and Camilo Sánchez91 conclude with edgement of farmers as fundamental social,
a question that is interesting in the context of this cultural, economic and political actors. This per-
text: “How was a consensus reached on a topic spective views farmers’ involvement as essential
that society and the state had abandoned for dec- for the construction of the inclusive agrarian
ades and which is affected by so many opposing model being advanced in the discussion of the
economic, political and even military interests?”.92 historical problem of inequitable land distribu-
tion. It also views this as constituting the root of
Several precedents that influenced the law the conflict.
have been mentioned. Uprimny and Sánchez ar-
gue93 that the need for land restitution in Colom- In summary, whereas the first perspective
bia was accepted by different political trends, but aims to ‘cleanse’ and organize land property ti-
they identify two main perspectives with different tles as a means of offering legitimacy and juridi-
scopes and purposes. The first perspective con- cal security to investments; the second perspec-
ceptualizes land restitution as an instrument of tive views land restitution as a fundamental step
agricultural development and free trade; in oth- towards building solutions to the diverse dimen-
er words, clear and legally protected ownership sions of the conflict.
rights are needed to secure incentives for invest-
ment, savings and the accumulation of wealth. Although both perspectives could be de-
This perspective, which is based on neoliberal- veloped in accordance with the land restitu-
ism, criticizes informal ownership titles and the tion process, their understandings of ‘agrarian
weak institutional protection provided to them. development’ are mutually exclusive: the first
perspective aims to enable the accumulation
However, Colombia is characterized by high of wealth, and does not seek to guarantee the
levels of informal ownership in rural areas, and development of farmers’ territories. Instead, the
suffers delays in its official notarial and registry first perspective would rather move towards in-
system. This is reflected in the lack of up-to-date tensive large-scale production or the extraction
and properly systematized information. A cadas- of high-value raw materials for sale on the in-
tral survey has never been undertaken in some ternational markets. In this case, farmers would
areas of the country. “The information concern- only have the possibility of acting as cheap la-
ing areas that have been surveyed was updated bor, or leasing or selling their lands to inves-
in 1994 and 2007; 54% of land registrations tors.
were not up-to-date”94. Additionally, the infor-
mation available in these surveys is inconsistent In contrast, the second perspective aims to
with the information held in other official sourc- empower historically marginalized farmers and
es, and it only records ownership of the land but enable them to collectively enjoy, and live and
no other rights such as possession, occupation build on, their lands and territories, rather than
or tenancy. suffering.
Informality of ownership, violence and the
circuits of illegal economies result in an obscure 5.6 Recovering the land just to die for it
land market that responds to dynamics which,
although they are not difficult to detect, value the The title of this subsection is based on an article
land according to variables that are not neces- by Aura Patricia Bolivar, a researcher with De-
sarily related to the actual market price. justicia dedicated to assessing the implementa-
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