“Don’t be naive, Colonel,” said the doctor. “We are already too old to wait for the Messiah.”

–Gabriel García Márquez, No One Writes to the Colonel

I. Introduction: dispossessed after decades of conflict

Any work or lecture on long standing, unresolved conflicts would certainly refer to the Middle East or Kashmir, and may even refer to more recent events such as the conflict in Kosovo or the Second Congo War. This is not necessarily true for the conflict in Colombia which, despite the attention it gets, seems at times to be consigned to a realm beyond analysis. Perhaps its almost exclusively internal nature hinders the possibility of speculating about contingent methods of resolution, while the long sequence of events in its history, together with its uneven consequences, make unequivocal proposals difficult. At any rate, among the restricted number of issues that no response can possibly obviate is that of internally displaced people (IDPs) and land restoration. Displacement has caused the abandonment of an estimated 5.5 million hectares or roughly 5% of Colombian territory.[1] President Juan Manuel Santos has pledged to redress this situation through the approval of a land restoration bill that is currently being debated in the legislature. Even if finally approved, effectively implementing the bill is bound to be an arduous task. As this paper will argue, fulfilling President Santos’ promise will necessarily face an array of hurdles, most notably the existence of an unresolved conflict.[2] Indeed, the fact that violence in Colombia has not ceased and that irreconcilable interests still exist around the use of land may result in the non-viability of restoration policies. Restoration, in turn, could contribute to breaking the stalemate that Colombia has found itself in for decades through the consolidation of state power[3] in areas traditionally under the control of the armed groups.

Analyzing the origin and evolution of the Colombian conflict goes well beyond the scope of this paper. While detailed examinations have been done elsewhere,[4] a brief note on the historical context is in order. The origins of the current conflict can be traced to the assassination of Liberal leader Jorge Eliecer Gaitán in 1948, sparking what became known as La Violencia, a period of social and political unrest in the country.[5] In 1953, the military seized power through a coup d’état and offered a general amnesty. Groups linked to the Liberal and Communist Parties withdrew to rural areas[6] where the presence of the state was scant, organizing outposts and seizing control of rural communities. Since then, the violent activism of guerrilla groups, particularly the Revolutionary Armed Forces of Colombia (FARC in its Spanish abbreviation) and the National Liberation Army (ELN), has been constant. Over time, and in response to these activities, local economic and political elites banded together to form paramilitary organizations aimed at fighting the guerrillas. The United Self-Defense Forces of Colombia (AUC), a coalition of 37 paramilitary groups,[7] was the largest of these organizations.

In 1982, President Belisario Betancourt launched a still-unresolved peace process,[8] marked in the late 1980s by what left-wing guerrillas began to term as the “dirty war”, an expression that originally referred to the methods of the army and the paramilitary, but later came to be accepted as an accurate portrayal of the actions undertaken by both sides.[9]

The peace process further evolved under President Álvaro Uribe, who, between 2003 and 2006, sponsored the alleged demobilization of the AUC paramilitary coalition. Unfortunately, that demobilization process has proven largely flawed, and “successor groups”, mostly “led by former mid-level commanders of the AUC”, have continued to exercise violence in the areas previously controlled by the paramilitaries.[10] Today, despite the efforts of the government over the last several years, both the guerrilla groups[11] and the successors of the paramilitary organizations continue to control large parts of the country.[12]

Since 1985, between 3,300,000 and 4,900,000 Colombians have become internally displaced due to the conflict.[13] Approximately half of the IDPs owned or occupied land before being forcefully displaced.[14] The socioeconomic impact of this phenomenon is alarming. Many IDPs previously guaranteed their food security by farming their land and keeping small livestock—any surplus would be sold in exchange for other products.[15] Once displacement leads them to the cities, IDPs, largely composed of vulnerable groups such as women or children,[16] experience enormous difficulties in achieving long-term stability.[17] In this context, land restoration presents the features of both a moral imperative and a potential solution to the precarious situation of the displaced population.

The Colombian government has been responsive to this reality: According to a landmark ruling by the Colombian Constitutional Court in 2004, the violation of IDPs’ land rights is unconstitutional.[18] Then, in 2010, the government of President Juan Manual Santos announced its intention to restitute two million hectares. To that effect, two bills were proposed: the Lands’ Bill and the Victims’ Bill.[19]

With this background in mind, there are several major issues that require attention. As Barbara Rose Johnston puts it, reparation has been traditionally seen as a “political agreement … that attempts to heal the wounds of war[20] (emphasis added). In the case of Colombia, this statement faces two objections. First, it must be noted that the idea of land restoration in Colombia is intertwined with, and has been entrenched by, the leading role of the judiciary. What is normally a decision based on political convenience has been turned into a matter of constitutional necessity. Second, land restoration, which is typically deployed after a conflict and during a period of transitional justice, exists in Colombia in the context of an ongoing conflict, and therefore in the domain of conflict resolution. The purpose of this paper is to analyze the peculiarities of land restoration in Colombia, with particular regard to President Santos’ recent proposal, and to address its function as part of a broader peace process. The following pages will examine the interplay between the three branches of government when it comes to determining IDPs’ rights, as well as some of the major challenges to the project. Finally, the pragmatic ramifications of restitution will be addressed in terms of international legislation, and the role of land in the dynamics of the conflict.

II. A judiciary and an executive eager to confer entitlements upon the displaced population

Through a series of rulings, the Colombian Constitutional Court has acknowledged the precarious situation of IDPs and the need to address this situation to satisfy Colombian constitutional standards. As a consequence, the government has presented a bill to the legislature in which the notion of integral reparation to the victim is paramount. Thanks to this approach, progressive restitution of land to IDPs is expected to take place.

A) Land restoration as a constitutional right

Colombia belongs to a bold minority of states where economic, social, and cultural (ESC) rights enjoy full recognition. International Human Rights Law has traditionally been divided in two separate groups: civil and political rights on one hand and economic, social, and cultural (ESC) rights on the other. In 1993, the second World Conference on Human Rights in Vienna tried to settle the debate by affirming that all rights are “universal, indivisible and interdependent and interrelated”.[21] However, the fact that the great majority of governments accept the equal status of both groups of rights has done nothing to consolidate the enforceability of ESC rights.[22] Indeed, unlike civil and political rights, ESC rights have often been considered negative or non-justiciable entitlements.[23] Many constitutions do not even recognize ESC rights, while others acknowledge their importance without granting mechanisms for their enforcement.[24] The Colombian Constitution is on the other side of the spectrum. Its first article provides that Colombia is a “social rule of law”[25] (emphasis added). The Constitutional Court has repeatedly underlined the importance of taking into account the semantic charge of each of the terms of that article and, in particular, the fact that the “social rule of law” is to be understood to denote the presence of fundamental rights and freedoms,[26] with the state grounding its legitimacy in the effectiveness and protection of the rights it confers upon its citizens.[27] This is key to understanding why the judiciary has approached the issue of displacement and the ESC rights of the displaced population in such a dynamic manner.

Among the guarantees of the 1991 Constitution is the legal mechanism known as Tutela by which Colombians are entitled to appeal government decisions infringing upon their constitutional rights.[28] In 2004, a process of Tutela allowed the Colombian Constitutional Court to issue ruling T-025 of 2004 (hereinafter Ruling T-025) to address a wide variety of complaints formulated by IDPs, which ranged from insufficient humanitarian assistance to the lack of governmental protection of the lands they were forced to abandoned.[29] This ruling has been termed a “macro-ruling” because of the size of the affected population, the number of governmental and social actors involved, and the gravity of the human rights violations levied.[30] Indeed, Ruling T-025 was the response of the Colombian Constitutional Court to claims filed by 1,150 families of IDPs, each of them with four members on average,[31] against a wide range of governmental organizations, including the Social Solidarity Network, the Department of Treasury, the Department of Health, the Department of Labor and Social Security, the Department of Education, and the Colombian Institute of Agrarian Reform.[32]

Ruling T-025 can be considered a breakthrough in the advancement of IDPs’ rights. In truth, it was not the first occasion in which the Colombian Constitutional Court had analyzed this particular group of rights,[33] but the scope and breadth of Ruling T-025 made it a particularly significant tool to advance in the protection of IDPs in general. The ruling referred, for instance, to “the right to life in decent conditions”,[34] “the right to choose [one’s] place of residence [in a manner that is consistent with potential risks to one’s life and personal integrity]”[35], “the freedom of movement within the national territory and the right to remain in the place chosen to live”,[36] “the right to work and the freedom to choose [one’s] profession, in particular in the case of farmers who are forced to migrate to the cities and, consequently, abandon their usual activities”[37] and even “the right to peace,[38] whose main element is a personal guarantee not to suffer…the effects of war”.[39]

Ruling T-025 does not explicitly address the issue of land restoration, despite a brief mention of the reduced number of IDPs who had access to land adjudication programs, and the absence of mechanisms to protect abandoned properties.[40] Three years later, however, the Court did specifically address the issue of land restitution. In Ruling T-821 of 2007 it stated that “if affording integral redress to the victims of massive and systematic violations…is a fundamental right, [then] the restitution of the property of which the [IDPs] have been dispossessed is also a fundamental right”.[41]

Interestingly, this decision was allegedly grounded on several principles of international legislation, including article 17 of Additional Protocol II to the Geneva Conventions, which provides that the “displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand.”[42] Since International Humanitarian Law originated as a mechanism to avoid the dehumanization of warfare,[43] this reference can be construed as indicating that the legitimacy of restituting land to IDPs is above all an issue of human dignity, and not merely one of property rights. This in turn can be identified as a first reference to the fact that compensation might not always be a legitimate substitute for restitution. At the same time, it is worth noting that Article 17 mentions two reasons that may justify the displacement of the population, namely the security of the civilians or military necessity, an issue to which this paper will return in its second half.

All in all, the Colombian Constitutional Court can be said to have made use of the looseness of the “social rule of law” enshrined in the Constitution to institute guidelines that should inspire both the executive and the legislature when dealing with the issue of land restoration. And it has done so by declaring the existence of an “unconstitutional state of affairs”,[44] which is understood as a situation in which: (i) fundamental rights are being repeatedly violated; (ii) the cause of this infringement is not exclusively attributable to the authorities, but also depends upon structural factors.[45]

Notwithstanding the persistence of the “unconstitutional state of affairs”, Ruling T-025 and other subsequent decisions have had an enormous impact in the development of public policies.[46] Moreover, these material changes have coexisted with less immediately apparent effects, in particular by transforming public opinion and contributing to the promotion of public debate,[47] which from a constructivist point of view can be considered equally important in order to reach future solutions.[48] According to Susan Slyomovics, “permitting people to speak about what has happened to them and their communities…is part of a process in which speakers are transformed from victims into rights-bearing humans and citizens…considering reparations as a matter of law, as a social movement, and as an extension of a political project” (emphasis added).[49] Apart from the objections that can be raised vis-à-vis the interference of the judiciary in other areas of government,[50] it seems undeniable that the Colombian Constitutional Court has not only extended, but also conceived by itself the ideal scope that should pervade the political debate when addressing IDPs’ rights in general, and land restoration in particular.

B) The role of the executive: a bill to restitute land to IDPs

The Colombian Constitution provides that “[t]he various organs of the state have separate functions but cooperate harmoniously for the realization of their goals”.[51] In September of 2010, the administration of President Juan Santos proposed two bills in a single text (hereinafter referred to as the Proposed Bill),[52] to address both the protection of victims of the armed conflict[53] and the issue of land restitution[54]. The explanatory preamble of the Proposed Bill refers to this constitutional principle of harmonic cooperation, claiming that without this cooperation “it would not be possible to dynamize the complex machinery that the peace process demands and deserves”.[55] In doing so, the other branches of government implicitly legitimized the critical role played by the Constitutional Court.

Land restitution is not a new concept in Colombia. Law 387 of 1997, for instance, already attributed to the Colombian Institute for Agrarian Reform (INCORA) competencies in the domain of land restitution.[56] Most recently, this issue was dealt with as part of President Uribe’s “democratic security policy.” In its 2003 formulation, the policy already envisaged the necessity to undertake concrete actions to help Colombians recover their goods, and in particular their land—an initiative sponsored by the World Bank’s Post-Conflict Fund.[57] Law 793 of 2002, also enacted by the Uribe Administration, laid down a framework to facilitate confiscation of lands occupied in an illicit manner, or even “unjustified real state” whose licit provenance could not be proved.[58]

What differentiates the new Proposed Bill is its so-called “differentiated approach towards integral reparation”.[59] This notion of restitution is defined as a way to take the victim back to the situation prior to the violation of international human rights law or international humanitarian law and comprising “the re-establishment of freedom, the enjoyment of human rights…the return to its normal place of residence, the reinstatement of his job, and the devolution of his goods”.[60]

To this end, the Proposed Bill lays down a series of rights whose aim is to cover all the obligations vis-à-vis IDPs, from the need of humanitarian assistance to the right to land restitution.[61] Despite this wide protection, two aspects of the Proposed Bill as initially presented to the legislature (Cámara de Representantes) were harshly criticized. Civil society organizations strongly disagreed with referring the individuals targeted by the project as “beneficiaries” instead of “victims”, since this somehow implied a lack of recognition of their status and a failure to understand that restoration was not a concession, but rather an entitlement.[62] Additionally, it was said that the eligibility criteria were determined by the location of the land, establishing so-called “priority zones” that were basically restricted to areas where paramilitary groups had operated, thus excluding in practice displacements caused by other actors to the conflict.[63] The latest version of the Proposed Bill seems to have solved both concerns: it explicitly creates the category of victims[64] and all references to “priority zones” have been removed from the text. Recognizing the status of victims of the displaced population is for many one of the key points of the Proposed Bill; since lack of resources and practical hurdles will make its implementation difficult, many Colombians wish at least to see that the institutions are unequivocally on their side—something that, as the parapolitics scandal shows, has not always been the case for certain state sectors.[65]

But these have not been the only controversies to which the project has given rise. Apart from substantive technical matters,[66] the idea of land restitution faces considerable political opposition. As an experienced Senator claimed, “a great majority of Congressmen represent farmers and landowners”.[67] Moreover, the whole political spectrum known as “Uribism” (in reference to former President Álvaro Uribe, frequently accused of having benefited big entrepreneurs, bankers and tycoons)[68] seems skeptical to the idea of restituting land to IDPs.[69] This might be one of the reasons behind the well-delimited twenty years within which displacement is eligible for compensation.[70] Although the government has defended the measure as a mechanism to introduced clarity and security in the process,[71] critical voices have accused political figures closed to the “Uribism” of artificially restricting the temporary scope of the Proposed Bill to protect land usurpers from the 1980s.[72]

Moreover, two additional elements related to the distribution of land in Colombia pose a threat to the success of the Proposed Bill. First is the lack of an effective agricultural reform capable of solving the long-standing dilemma of inequality, which has historically been one of the main sources of conflict within Colombia rural areas.[73] Civil society organizations have advocated for seizing the momentum created by the Proposed Bill to introduce reforms pursuing the increase of agricultural production and the development of the rural areas.[74] Regarding this, a development plan recently announced by the Ministry of Agriculture aims at introducing reforms that will enhance the profitability of plots restituted to IDPs.[75]

In addition to this criticism, land plays a critical role in the dynamics of the conflict, in particular as a component of drug trafficking. As will be analyzed later, this, in turn, creates a major impediment in the process of repossessing IDPs, since land is intrinsically linked to the economic structure of the armed groups.

Perhaps more intriguing are the enormous questions surrounding the economic viability of the law itself. As a result of Ruling T-025, the Colombian government tripled the amount of money assigned to meeting IDPs needs.[76] While the International Covenant on Economic Social and Cultural Rights, which largely inspired both the Colombian Constitution and the role of the Constitutional Court, imposes an obligation to achieve full realization of ESC rights “to the maximum of its available resources”,[77] the Committee that oversees the implementation of the treaty emphasized that such obligation needed to be tailored depending on the financial constraints of the country concerned.[78] Thus, the Proposed Bill outlines the compromise to create a national financing plan to facilitate the sustainability of the law.[79] But whether or not this plan will cover the huge expenses that will undoubtedly arise from the project remains to be seen. The costs are indeed high: the Consultancy for Human Rights and Displacement (CODHES) established a follow-up commission in charge of overseeing Colombian public policies vis-à-vis IDPs.[80] In its final report on the assessment of land and goods abandoned by IDPs,[81] the CODHES came to the conclusion that between 1980 and 2010 IDPs had incurred property losses of approximately $19.9 billion, together with a loss of profit of approximately $59.8 billion[82] (reparations must encompass both figures).[83] In contrast, the budget for the whole Colombian state apparatus in 2010 amounted to $148.3 billion.[84] The total resources assigned to IDPs in 2008 is also revealing: only $1.02 billion, even though the government tripled economic assistance to IDPs after Ruling T-025.[85] With these figures in mind, some skepticism may indeed be warranted.[86]

Before examining one last aspect of the Proposed Bill, it should be noted that in July 2010, the National System of Integral Assistance to the Population Displaced by Violence (SNAIPDP, an umbrella organization to coordinate the efforts of public and private entities in the domain of internal displacement)[87] submitted a report to the Constitutional Court requesting it to reverse the “unconstitutional state of affairs” declared by Ruling T-025.[88] In the report, it was argued that the Colombian government had found “an institutional and budgetary path that in the medium and long term would progressively…allow [IDPs] to…enjoy their rights”[89] (emphasis added). While the Court has not yet responded to the Government’s claim, organizations involved in the protection of IDPs deemed that the “unconstitutional state of affairs” has not been resolved, referencing a wide range of unaddressed problems that include land rights.[90] The debate in relation to Ruling T-025 shows the level of public awareness that the decision aroused, both domestically and internationally, and thus the importance of the Proposed Bill. Since land restoration constitutes a significant part of the overall IDP solution, it is legitimate to raise some questions regarding the motivations of the Government and whether IDPs’ returns make sense in the context of an ongoing conflict. Apart from the obstacles outlined in the preceding paragraphs, a massive return of IDPs (even if progressive)[91] could have unexpected consequences in terms of security.

To a large extent, Article 58 of the Proposed Bill can be considered the fundamental precept for this very debate. It provides that “[t]he Colombian state will adopt the necessary measures to restitute land to the dispossessed, and in the case where restitution is not possible, [it will] determine and grant the corresponding compensation”. Paragraph 2 establishes that when the original plots cannot be restituted, or the IDP cannot return under safe conditions, s/he will be offered comparable land elsewhere. Finally, Paragraph 3 determines that “compensation will only take place in the event that none of the two other alternatives[92] is possible”. Unlike Law 387/97, which undertook a neutral approach,[93] the Proposed Bill prioritizes the restitution of the original land, accepting similar land when this is not possible. Only as a final option is economic compensation envisaged.

Little criticism has been leveled at how the project integrates international legislation. The Colombian Commission of Jurists, an NGO, pointed out that the Government has ignored the fact that integral restitution must include housing and livestock.[94] But upon closer examination, Article 58 may suffer from more serious deficits, namely, an incorporation of international legislation that (for reasons other than not envisaging housing and livestock in the restitution) does not attempt to ensure a diminished risk of socio-political upheavals. The following pages will try to shed light on these deficiencies, examining Article 58 in the broader picture of the Colombian conflict.

III. Peace making through state building

Unlike international legislation, the Proposed Bill clearly prioritizes land restitution over the concession of similar land or the right to economic compensation. In a context of on-going violence, this might intensify the conflict and/or put IDPs’ in danger. On the other hand, where adequate security measures are implemented, the gradual return of the displaced population can lead to rebuilding the state in areas now under the control of the armed groups.

A) Land restitution as the preferred option of the Proposed Bill, in spite of the dangers of such policy in an on-going conflict

Public institutions in Colombia have largely embraced the concept of transitional justice, which demands the search for and dissemination of historical truth, as well as the implementation of integral reparation programs “that cannot be reduced to a mere economic compensation nor be conditioned upon the relinquishment of other rights”.[95] The idea that land restitution is the most suitable mechanism to redress the suffering of the victims seems to pervade the conscience of Colombian institutions. The above-mentioned reference to Ruling T-821 of 2007[96] is one among many official documents that confirm this conviction.

It is necessary to examine international legislation when considering this issue. In 1998, the Special Representative of the Secretary General to the UN Commission on Human Rights submitted what are now known as the Guiding Principles on Internal Displacement, or Guiding Principles.[97] Apart from establishing the need to “ensure the full participation of [IDPs]”[98] or prohibit discrimination against IDPs who return to their homes or resettle,[99] the Guiding Principles lay down the obligation of competent authorities “to establish the conditions, as well as provide the means, which allow [IDPs] to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country”[100] (emphasis added). They also mentioned the responsibility of the authorities “to assist returned and/or resettled IDPs to recover, to the extent possible, their property and possessions [and when] recovery of such property and possessions is not possible…to provide or assist [IDPs] in obtaining appropriate compensation or another form of just reparation.”[101] The interplay of these rules indicates that financial compensation should be offered only when property is materially impossible to restore.[102] But unlike Article 58 of the Proposed Bill, the Guiding Principles dissociates return/resettlement from restitution/compensation. Therefore, international legislation allows IDPs to resettle elsewhere and still be compensated for their loss. As of today, Article 58 does not envisage this option.[103]

In 2005, seven years after the approval of the Guiding Principles, the Sub-Commission on the Promotion and Protection of Human Rights endorsed a new set of rules specifically addressing the issue of land restitution: the Pinheiro Principles,[104] whose purpose was to outline a new international standard with regard to IDPs’ return and resettlement.[105] According to these guidelines, all IDPs must be granted “the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore[106] as determined by an independent, impartial tribunal”[107] (emphasis added). The Pinheiro Principles further establish that “[s]tates shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when the remedy of restitution is not factually possible, or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation” [108] (emphasis added). Two elements of the Principles deserve emphasis: (i) prioritization of restoration over compensation is based on the IDPs’ best interest; (ii) the framework laid down by the Pinheiro Principles would permit IDPs the option to choose between restoration and restitution. Additionally, the idea that compensation must be “knowingly and voluntarily” accepted indicates that international legislation adheres to the premise that restoration will typically more easily satisfy the goal of reparation. However, the Pinheiro Principles do not preclude the possibility of offering IDPs the choice between recovering their property and getting similar plots elsewhere, or even being monetarily compensated. Thus, whereas international legislation would allow to put the right to land restitution on equal footing with the right to compensation,[109] Article 58 of the Proposed Bills treats each option as contingent upon the impossibility of the other. The following figure illustrates this difference.

Because IDPs’ restitution rights are implicitly conditioned upon return, the Proposed Bill fails to comply with the standards lay down by the Pinheiro Principles. Furthermore, the current wording of Article 58 can be deemed to violate the right of IDPs not to be forced or coerced in any manner to return to their former homes.[110] Indeed, since declining to return may result in loss of compensation,[111] IDPs could feel compelled to return even if that is not their wish. All of this adds to the fact that, as previously mentioned, the Proposed Bill does not adequately distinguish between the obligation to facilitate the return or the resettlement, and the obligation to provide compensation, erroneously treating both aspects of reparation as equivalent or synchronic elements.

Such divergences collide with Colombia’s domestic legal order. As opposed to the Supremacy Clause in the American Constitution,[112] the Colombian Constitution establishes that international treaties recognizing human rights have domestic priority,[113] and that the fundamental rights laid down in the Constitution must in fact be “interpreted in accordance with international treaties on human rights ratified by Colombia”.[114] Of course, neither the Pinheiro Principles nor the Guiding Principles are “treaties,” strictly speaking. But, nonetheless, the rules of interpretation that apply to other international obligations validly accepted by Colombia[115] indirectly allow for the inclusion of these guidelines as part of the binding corpus of human rights.[116]

Paradoxically, the inflexibility of Article 58 can be deemed the lesser of the concerns. The idea of restoring IDPs with their lost property presents a more serious hurdle, namely the hindrances to attain reliable conditions of safety. In fact, commendable as it might be, pursuing to achieve “integral reparation” through return policies is, at least to a certain extent, incompatible with the reality of a country where killings and threats against defenders of land rights are still commonplace. On March 15, 2011, the same day Gay J. McDougall, the United Nations Independent Expert on Minority Issues, denounced impunity among paramilitaries in Colombia,[117] the National Movements of Victims of State Crimes reported a new case of threats against farmers who were coerced into leaving their land.[118]

The horrifying accounts provided by peasants living under constant threat illustrate the state of desperation and fear that drives Colombians into displacement in the first place.[119] But threatened farmers are only one side of the coin. There are many IDPs for whom the desire to return ends in tragedy. The well-known case of Rogelio Martínez, a leader of the National Movement of Victims of State Crimes, who returned to his land near the municipality of San Onofre only to be killed,[120] is a sad reminder of the dangers inherent in land restitution: even though the paramilitaries who had occupied Rogelio’s land were allegedly demobilized, his return inspired constant harassment by members of the Black Eagles,[121] a paramilitary successor group, which ultimately led to his murder.[122] Similar situations have been reported since.[123] Indeed, Colombia can be said to be far from fulfilling its obligation to ensure that defenders of land restitution (and its beneficiaries) are not persecuted or punished for their claims.[124]

Colombian public opinion is not necessarily optimistic regarding land restitution. Journalists, former politicians, and interest groups have all publicly spoken against it, appealing to the fear of engendering further conflict. Sectors that share interests with current landowners (often referred to as “usurpers”) have threatened with new waves of violence and massacres.[125] Some go further in their criticism, asserting that the project undertaken by President Juan Manuel Santos is in fact “an invitation to subversion in the Colombian rural world”.[126]

In 2005, Human Rights Watch criticized President Uribe’s policy to promote IDPs’ return to their home communities as the principal response to the problem of internal displacement.[127] Human Rights Watch’s research found that both IDPs and civil society strongly opposed this approach due to a perceived (and perhaps real) lack of security.[128] Interviewees argued that the government’s housing subsidies aimed at promoting the return of IDPs were in fact “sending people to their deaths”.[129]

Since 2005, however the security context has changed substantially. The “democratic security policy” launched by President Uribe has weakened the armed groups and consolidated the presence of the state in many rural areas.[130] However, the advances made by the previous administration remain frail and may prove difficult to sustain.[131] With that in mind, the precepts of the Proposed Bill take on a new significance. Even if Article 58 was amended to better incorporate the spirit of international legislation, the risk of IDPs becoming victims of or catalysts for the continued conflict remains high. Since the Pinheiro Principles were largely informed by the experience of countries undergoing post-conflict situations, and thus aimed at “harmonizing future property restitution mechanisms” in that context,[132] incorporating the Principles blindly will hardly work to resolve the issue of IDPs in an ongoing conflict. For its entirely unique situation, Colombia needs a unique approach.

B) Land restitution: an opportunity for transformative justice

If one of the major legal groundings for empowering IDPs has been Ruling T-025 and the role of the Colombian Constitutional Court, one of its major political groundings rests in the notion of transitional justice. Indeed, actors involved in the resolution of the conflict or the issue of IDPs often resort to discursive elements that evoke, either directly or indirectly,[133] the idea of transitional justice. And even if the existence of an ongoing conflict and the flaws of the demobilization overshadow the mere possibility of a “transition” as such, authors have advocated for introducing its main characteristics (truth, justice and reparation) in any planned peace negotiation with the armed groups.[134] Were this approach accepted, it would need to be characterized by what David C. Gray defines as “transitional justice as extraordinary justice”, where retrospective and preservative visions of restoration are substituted by liminal and transformative ones.[135] Thus, reparation to IDPs would not (only) be a mechanism to compensate past wrongs, but rather a way to allow victims to attain “status parity”[136] and dynamize the resolution of the conflict.

Land restoration premises satisfy one of the critical aspects of transformative justice, namely the existence of a situation where mere restoration to the previous condition would not necessarily lead to a just or productive resolution.[137] Seeing the process of land restitution as an opportunity for transformative justice could help to underpin the rebuilding of the state in areas under the authority of the guerrillas or paramilitaries. The experiences of La Macarena and Montes de María demonstrate that increased state presence in former FARC strongholds has contributed to improve security.[138] Colombia seems to undergo one of those reversed-in-order cases where state building antecedes peace making. With the aim of strengthening that process, the government should set out a security agenda capable of comprehending both the safety of IDPs and the underlying causes of the conflict.

Misappropriation through violence or threat of violence was the origin of much of the accumulation of land carried out by the paramilitaries or their supporters.[139] To perpetuate this plundering, the usurpers often signed property over to third parties (testaferros),[140] hampering previous reparation processes like the one contemplated by the Justice and Peace Law,[141] whereby paramilitaries allegedly demobilized. Notwithstanding the mechanisms that the Proposed Bill advances to overcome this limitations,[142] the prospective dispossession of the dispossessors presents grave security risks. It should be noted that displacement is just the last link in a long chain of abuses against the civilian population. Killings, enforced disappearances, death threats and kidnapping usually inspire such migration.[143] Migration, in turn, speaks heavily to the role of economic interests in the conflict.[144] In this sense, illegal armed groups in Colombia perfectly match the logic of “greed and grievance” as modeled by World Bank economists Paul Collier and Anke Hoeffler.[145] Guerrillas’ fight against inequalities or paramilitaries’ quest for protection may have initially shared the features of a “grievance-rebellion”. But nowadays, both groups seem to be dependent upon the exploitation of illegal businesses for survival, thus entering the category of what Collier and Hoeffler designate as “greed-rebellion”.[146] The question of whether the armed conflict fueled the expansion of illegal crops, or if illegal crops fueled the armed conflict as an end in themselves[147] has somehow become a secondary issue. For the purposes of land restoration, however, the critical aspect is to understand that armed groups have an interest in maintaining the fruit of their misappropriation. According to Juan Manuel Garcés Puente, an official at the Colombian Ministry of Defense, the major challenge in the implementation of the Proposed Bill will be to overcome the risk of retaliation against returning IDPs by drug traffickers and criminal organizations interested in consolidating or expanding their illegal economic ventures (supported, obviously, by the land they have seized).[148] Garcés Puente has asserted that violence revolving around land plots of geopolitical significance could threaten the entire process of land restitution.[149] This statement is hardly surprising, given the issues discussed earlier. The question then becomes how to guarantee a safe environment to facilitate sustainable return for IDPs.

In a symposium held in December of 2010 at the University of Santo Tomás in Bogotá, Christian Salazar, the representative of the United Nations High Commissioner for Human Rights in Colombia, argued that the protection of IDPs seeking the return of their land must occupy the same level of importance as the issue of land restitution itself, since “the state is above all obliged to protect life”.[150] With this in mind, Salazar advocated for an integrative approach to restitution that should include increasing public security, applying criminal sanctions convincingly, reinforcing communal methods of protection and carrying out local risk analysis.[151] The Colombian government has already conceived several mechanisms to address the concerns of civil society. First, it has created the Integrated Intelligence Center for Land Restitution (known as CI2-RT), which comprises several governmental agencies together with organisms in the field of intelligence and counterintelligence.[152] The CI2-RT aims at orienting decision-making in the process of land restitution. Among other things, the CI2-RT will provide the Ministry of Agriculture with risk maps and intelligence assessments.[153] Additionally, two committees have been entrusted with the task of monitoring any event that could potentially endangered the process of restoration: (i) a Technical Committee of International Cooperation, which includes representatives from multilateral agencies such as UNHCR, the OAS Mission to Support the Peace Process in Colombia or UNDP; and (ii) an Inter-institutional Committee, regrouping the Ministry of Interior, the Ministry of Justice, the Ministry of Agriculture and the Ministry of Defense.[154]

Security alone, however, will not suffice. Policies of appeasement must be accompanied of policies of development. The analysis of ongoing conflicts tends to demonstrate that security is a prerequisite for economic improvements, but economic improvements contribute in turn to the sustainability of security.[155] Ricardo Esquivia Ballestas, a human rights activist, claims that ending the war in Colombia is important, but that peace cannot endure without a societal basis. Cooperating with state institutions, fostering economic partnerships, and establishing reconciliation commissions were indeed among the many elements of the securitization of Montes de María.[156] Once basic safety conditions are met, the participation of civilians in administering and overseeing the security apparatus must also play a role in the consolidation of IDPs’ return[157] (indeed, experience shows that state-building efforts undertaken from the outside tend to be flawed and precarious).[158] Land restitution itself could in fact contribute enormously to the process of economic development; according to the World Bank, more widespread land access and land ownership would critically increase Colombia’s overall level of welfare.[159]

Finally, given the emergence of armed groups as an “independent force ready to step into the vacuum left by an absent state”[160] in rural areas, the return of IDPs could provide an opportunity to reestablish state presence in those very same areas, thus laying the foundations for future peace.

While proposing more concrete solutions in the domain of security goes well beyond the scope of this paper, an outline of the risks and challenges pervading the issue reveals the multidisciplinary approach that the implementation of the Proposed Bill will require. Contextualizing such risks also sheds light on the way that Article 58 needs to be tailored. Incorporating international legislation in an appropriate manner is by itself a reason to amend Article 58. Nonetheless, a pragmatic approach to the Colombia reality calls for a bill where return policies are completely voluntary. Considering the legitimate fear of many IDPs, as well the fact that many of them may have rebuilt their lives somewhere else, the task of the government must be to establish a legal and institutional framework to alleviate the trauma of their initial displacement, either through restoration or economic compensation that envisages not only their return, but also their appropriate resettlement.

Conclusion: towards a voluntary return in safety and dignity


With an extremely progressive constitution and a bold judiciary, Colombia has managed to keep the issue of IDPs in the forefront of its current political dialogue. Land restitution and integral reparation to the displaced population have become peremptory duties, widely supported by Colombians. The baton is now in the hands of the government. As the press constantly claims, President Santos has an opportunity to reach a turning point in the history of the Colombian conflict. Millions of IDPs, firm political will, and an unprecedented public support —often referred to as Santos’ honeymoon— are in his favor. Certain elites, illegal arm groups and the deeply entrenched problem of drug trafficking are against him. As an official from the Ministry of Defense underlined, the Proposed Bill is surrounded by unknowns: “It is an unprecedented case, lacking historical guidelines. The government does not know, and will never know for sure, the consequences of advancing such a project.”[162]

The results of the policy of land restitution are indeed difficult to predict. Ideally, the return of IDPs, together with development policies and the strengthening of security in areas now under the control or influence of illegal armed groups, will lead to the reinforcement of the state in conflict regions and an eventual lasting peace. To that end, the government will need to guarantee that a safe environment exists in any area where return of IDPs is expected. The risk maps prepared by the CI2-RT must constitute impassable boundaries when determining the places where restitution can and cannot take place.

Even though redressing the injustices committed against the displaced population must (and in fact seems to) be at the top of the government’s agenda, a policy of restitution incapable of meeting the Pinheiro Principles’ safety requirement would certainly be counterproductive. Understandably, the Colombian government may experience the urge to address the situation of IDPs as promptly as possible. International and domestic pressure, sanctioned since 2004 through the “unconstitutional state of affairs” declared by the Constitutional Court, places President Santos under a great strain. However, neither pressure nor the constant references to the symbolic value of the Proposed Bill should overshadow the legitimate security concerns that the project arouses. Indeed, no one denies that IDPs must be treated with justice, or that justice, in turn, requires compensation. But land restitution as currently defined in Colombia could produce unsatisfactory or counterproductive results. Only where physical integrity can be guaranteed and the risk of exacerbating the conflict minimized should the government proceed to restore abandoned land. And even in that case, restitution should be a voluntary option freely exercised by IDPs. Therefore, Article 58 of the Proposed Bill, and/or any legislation complementing it, needs to be amended. The Proposed Bill must clarify that returning “in safety and dignity” is a right of IDPs, whereas compensating them—whether after return or resettlement— is an obligation of the government. Such an approach will be not only more coherent with international legislation, but also better adapted to the realities of an ongoing conflict.

Garcia Marquez writes in No One Writes to the Colonel about his contemporaries of the 1950s, who are “too old to wait for the Messiah”. The same applies to IDPs of the 21st century. After decades of violence, human rights abuses, and displacement, Colombians have grown weary of anticipating a miraculous solution to the conflict and its effects. Even the extremely ambitious bill proposed by President Santos, necessary as it is, will not put an end to the conflict. But, for a small amount of IDPs—lack of resources will only allow a progressive implementation of any restitution proposal— there may exist an opportunity for justice unprecedented in the history of the Colombian conflict. In Colombia’s sui generis version of transitional justice, the process of debating, adopting, interpreting and implementing new laws is said to be as important as the laws themselves.[163] The negotiations that lie ahead, together with the opportunities that implementing restoration policies could bring in terms of state building, may bode well for the long-awaited peace. Messiahs will just not come in a day.

Mr. Serralvo holds an LL.M. in International Legal Studies from Georgetown University. He is an assistant at the Americas Division of Human Rights Watch. The views expressed in this paper are his own and do not represent those of Human Rights Watch.

[1] Internal Displacement Monitoring Centre and Norwegian Refugee Council, Building Momentum for Land Restoration. Towards Property Restitution for IDPs in Colombia, at 10 (November 2010). It is important to notice that the estimates of the extent of land abandoned diverge significantly depending on the source. Whereas the most conservative figures talk of 1.2 millions of hectares (1.1% of the territory), the highest go up to 10 millions of hectares (8.8% of the territory).

[2] A long-standing debate exists on whether or not Colombia is still undergoing an internal armed conflict or if current violence within the country is rather to be legally classified as terrorism. While some Colombian public figures have argued that the term “conflict” is no longer valid (see e.g. José Obdulio Gaviria, Sofismas del Terrorismo en Colombia [Bogotá: Planeta, 2005]), this paper takes the stance that an internal armed conflict does indeed exist. First, because the piece of legislation herein analyzed specifically and repeatedly mentions the armed conflict, as well as the application of international humanitarian law rules that do not apply during peacetime. Second, the issue of land restitution as conceived by President Santos’ proposal is rooted in judicially established principles enshrined in the interpretation made by Colombian Constitutional Court of both the existence of a conflict and the applicability of international humanitarian law (e.g. article 17 of Additional Protocol II to the Geneva Conventions, which refers to non-international armed conflicts). Third, as of 2011, the International Committee of the Red Cross, arguably the most authoritative organization in this field, still recognizes the existence of an armed conflict in Colombia (see ICRC, Overview of Operations 2011, at 53 [Geneva: November 2010]).

[3] Population, territory, and government are often referred to as the three key elements of a state.

[4] See e.g. Daniel Pécaut, Crónica de Cuatro Décadas de Política Colombiana (Bogotá: Grupo Editorial Norma, 2006).

[5] U.S. Department of State, Bureau of Western Hemisphere Affairs, Background note: Colombia, (October 4, 2010), http://www.state.gov/r/pa/ei/bgn/35754.htm (last accessed March 9, 2011).

[6] Amnesty International, Leave Us in Peace. Targeting Civilians in Colombia’s Internal Armed Conflict, at 5 (Amnesty International 2008).

[7] Human Rights Watch, Paramilitaries’ Heirs. The New Face of Violence in Colombia, at 1 (February 3, 2010).

[8] Daniel Pécaut, supra note 4, at 311-372.

[9] Ibid. at 393.

[10] Human Rights Watch, supra note 7, at 18-38.

[11] According to the International Crisis Group, the FARC still has some 8,000 to 10,000 combatants. See International Crisis Group, Colombia: President Santo’s Conflict Resolution Opportunity, Latin America Report N°34, at 2 (13 October 2010).

[12] Demobilization itself is an extremely complex matter, and one whose analysis would exceed the issue of land restitution. Suffice it to say that many domestic and international observers believe that the government downplays the new illegal armed groups’ connections to former paramilitary structures (International Crisis Group, ibid. at 5), as well as the continuity of paramilitaries’ criminal and financial networks (Human Rights Watch, supra note 7, at 23-28). Whatever the name given to them—successor groups, new armed groups, or even that of paramilitaries—the important thing for the purpose of this paper is to understand that violence related to land illicitly appropriated and/or drug trafficking structures previously controlled by the AUC still exists.

[13] Although the figures vary enormously depending on the source and methodology, all estimates agree on a figure somewhere between that of 3,303,979 provided by the Colombian Government (as of December 31, 2009) and the 4,915,579 registered by the NGO CODEHS (as of January 2010). See Internal Displacement Monitoring Center, Colombia: Current IDP Figures, in IDMC’s Yearly Internal Displacement: Global Overview of Trends and Developments, http://www.internal-displacement.org/idmc/website/countries.nsf/(httpEnvelopes)/A7E1B7BD7528B329C12575E500525165?OpenDocument#expand (last accessed March 14, 2011).

[14] Internal Displacement Monitoring Centre and Norwegian Refugee Council, supra note 1, at 3.

[15] Angela Consuelo Carrillo, Internal Displacement in Colombia: humanitarian, economic and social consequences in urban settings and current challenges, International Review of the Red Cross, Volume 91 Number 875 September 2009, at 534.

[16] Ibid. at 531. According to the ICRC delegation, half of the IDPs are under eighteen years of age and half of them are women. Around 8% are of African descent and almost 1% suffers from some kind of disability.

[17] Ibid. at 536.

[18] Internal Displacement Monitoring Centre and Norwegian Refugee Council, supra note 1, at 12.

[19] Semana, Ley de tierras y ley de víctimas tendrán capítulo de restitución a desplazados, September 8, 2010, http://www.semana.com/noticias-nacion/ley-tierras-ley-victimas-tendran-capitulo-restitucion-desplazados/144198.aspx (last accessed: March 15, 2011).

[20] Barbara Rose Johnston, Waging War, Making Peace: the Anthropology of Reparations, in Waging War, Making Peace. Reparation and Human Rights 11, at 12 (Barbara Rose Johnston & Susan Slyomovics eds. 2009).

[21] Report of the World Conference on Human Rights, Vienna Declaration and Programme of Action, at I.5, A/CONF.157/24 (October 13, 1993).

[22] Henry J. Steiner, Philip Alston & Ryan Goodman, International Human Rights in Context. Law, Politics, Moral, at 263 (Oxford University Press, 2008).

[23] This distinction can in turn be retraced to Isaiah Berlin’s positive and negative freedoms. See Isaiah Berlin, Two Concepts of Liberty (Oxford University Press, 1959).

[24] E.g. Part IV of the Indian Constitution, which deals with ESC rights such as the right to an adequate means of livelihood, the right to education or the right to public assistance, provides in Article 37 that “[t]he provisions contained in this Part shall not be enforced by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”.

[25] Frequently, the wording of the Constitution (Estado social de derecho) has also been translated as “legal social state”.

[26] Manuel Fernando Quinche Ramírez, Derecho Constitucional Colombiano. De la Carta de 1991 y sus Reformas, at 81 (Editorial Universidad del Rosario, 2009).

[27] Ibid. at 83-84.

[28] U.S. Department of State, Bureau of Western Hemisphere Affairs, supra note 5.

[29] Colombian Supreme Court, Sentencia Nº T-025, at 18 (January 22, 2004).

[30] César Rodríguez Garavito and Diana Rodríguez Franco, Cortes y Cambio Social. Cómo la Corte Constitucional transformó el desplazamiento forzado en Colombia, at 14 (Colección de Justicia, 2010).

[31] Colombian Supreme Court, supra note 29, at 1.

[32] Ibid. at 17.

[33] To give but one example, in 2002 the Court granted protection (Tutela) to a claim filed by dozens of IDP families “who deemed the following [constitutional] rights had been violated [after their displacement]: right to life and personal dignity, right to work…right to a decent living, right to education, and right to access the land of rural workers” (emphasis added). See Colombian Supreme Court, Sentencia Nº T-098, at 12 (February 14, 2002).

[34] Colombian Supreme Court, supra note 29, at 35.

[35] Ibid. at 36. Emphasis added.

[36] Ibid. at 38.

[37] Ibid. at 39.

[38] Article 22 of the Constitution provides that “[p]eace is a right and a duty whose compliance is mandatory.”

[39] Ibid. at 40.

[40] Ibid. at 53.

[41] Colombian Supreme Court, Sentencia Nº T-821, at paragraph 60 (May 10, 2007).

[42] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, art. 17 (June 8, 1977).

[43] Humanity, morality, and civilization are often mentioned among the dictates of International Humanitarian Law. See e.g. Gary D. Solis, The Law of Armed Conflict. International Humanitarian Law in War, at 38 (Cambridge University Press, 2010).

[44] Colombian Supreme Court, supra note 29, at 24.

[45] Ibid. at 61-62.

[46] César Rodríguez Garavito and Diana Rodríguez Franco, supra note 30, at 18.

[47] Ibid. at 18-19.

[48] Ibid. at 22-27.

[49] Susan Slyomovics, Anthropology’s engagement, in Waging War, Making Peace. Reparation and Human Rights, eds. Barbara Rose Johnston and Susan Slyomovics 7, at 8 (Barbara Rose Johnston & Susan Slyomovics eds., 2009).

[50] For a discussion of these objections and some of their counterarguments in the context of Colombian IDPs, see César Rodríguez Garavito and Diana Rodríguez Franco, supra note 30, at 37-52. For a paradigmatic case of comparative law on the limits of the judiciary when promoting the respect of International Human Rights Law within other branches of government, see Treatment Action Campaign v. Minister of Health, Constitutional Court of South Africa, Case CCT 8/02, July 5, 2002. In that case, the Court concluded that the doctrine of separation of power “does not mean, however, that courts cannot or should not make orders that have an impact on policy…Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations.”

[51] Colombian Constitution, article 113, paragraph 2.

[52] Whereas the Conservative Party asked for a “Lands’ Bill” independent of the “Victims’ Bill”, the Liberal Party advocated for the inclusion of land restitution issues within the reparations mechanisms of the “Victims’ Bill”. See Semana, supra note 19.

[53] Proposed Bill No. 107, establishing attention mechanisms and integral reparation to the victims of human rights violations and international humanitarian law infractions (September 13, 2010).

[54] Proposed Bill No. 85, establishing transitional norms for land restitution (September 13, 2010).

[55] Explanatory preamble to the Proposed Bill, at 2. Article 25 of the Proposed Bill further establishes that, without detriment to their autonomy, the different entities of the state shall cooperate in a harmonic and coordinated manner.

[56] Law 387/1997, adopting measures to prevent forced displacement, article 19 (July 18, 1997).

[57] Presidencia de la República, Ministerio de Defensa Nacional, Política de Defensa y Seguridad Democrática, at paragraph 103 (2003).

[58] Article 2 of Law 793 of December 27, 2002.

[59] Explanatory preamble, supra nota 55, at 1.

[60] Ibid. at 15.

[61] Proposed Bill, article 27.

[62] See e.g. Colombian Commission of Jurists, El proyecto de ley de restitución de tierras a las víctimas del desplazamiento forzado no cumple los parámetros internacionales de derechos humanos, at 4-7 (October 15, 2010).

[63] Internal Displacement Monitoring Centre and Norwegian Refugee Council, supra note 1, at 13.

[64] Article 3 defines a victim as a “person[] whose fundamental rights…have been impaired as a consequence of infractions to international humanitarian law or glaring violations of international human rights law, when such acts have taken place…in the context of the armed conflict or terrorist acts”.

[65] Amnesty International, supra note 6, at 28.

[66] Registering the land tagged for restitution or deciding which administrative or judicial body will be in charge of approving the claims are some of the complicated practical issues underlying the project. See e.g. Internal Displacement Monitoring Centre and Norwegian Refugee Council, supra note 1, at 13-15.

[67] Semana, La tierra prometida (September 4, 2010), http://www.semana.com/noticias-nacion/tierra-prometida/144024.aspx (last accessed February 19, 2011).

[68] Reinaldo Spitaletta, El hedor del Uribismo, El Espectador (September 13, 2010), http://www.elespectador.com/opinion/columnistasdelimpreso/reinaldo-spitaletta/columna-224214-el-hedor-del-uribismo (last accessed February 19, 2011).

[69] Periodismo Humano, Uribe y otros obstáculos a ley de tierras en Colombia (October 27, 2010), http://tomalapalabra.periodismohumano.com/2010/10/27/uribe-y-otros-obstaculos-a-ley-de-tierras-en-colombia/ (last accessed February 26, 2011).

[70] Proposed Bill, article 60.

[71] El Nuevo Siglo, Retroactividad de 20 años en la ley de tierras: Restrepo (October 22, 2011), http://elnuevosiglo.com.co/politica/politica-nacional/19085-retroactividad-de-20-anos-en-la-ley-de-tierras-restrepo.html (last accessed February 27, 2011).

[72] Gustavo Petro, former presidential candidate, in Contravía: Análisis sobre la ley de víctimas en Colombia, at 19’ 20’’ (December 18, 2010), http://www.youtube.com/watch?v=OBTtqg6Vkzw (last accessed March 20, 2011).

[73] Viviana Aydé Vargas Rivera, La tenencia de la tierra: un problema en Colombia (December 7, 2007), http://www.prensarural.org/spip/spip.php?article1288 (last accessed March 2, 2011).

[74] Internal Displacement Monitoring Centre and Norwegian Refugee Council, supra note 1, at 6.

[75] One of the proposed measures is to make more flexible a figure known as Familiar Agricultural Unit (FAU), facilitating the association of FAUs that could possibly develop cost-effective projects. See El Tiempo, Entrevista con Juan Camilo Restrepo (March 22, 2011), http://www.google.com/search?hl=en&source=hp&q=el+tiempo+ministro+restrepo+tierra&aq=f&aqi=&aql=&oq= (last accessed March 24, 2011).

[76] César Rodríguez Garavito and Diana Rodríguez Franco, supra note 30, at 211-213.

[77] International Covenant on Economic, Social and Cultural Rights, article 2, paragraph 1 (December 16, 1966).

[78] Committee on Economic, Social and Cultural Rights, General Comment No. 3, Annex III, at paragraph 10, UN Doc. E/1991/23 (1990).

[79] Article 18 of the Proposed Bill provides that “to the effect of fulfilling the compensation measures establish in [the] law, the National Government will create a national financing plan tending to the sustainability of the law” (emphasis added). One could ask himself if the use of the word “tend”, instead of compromising terms such as “guarantee” or “ensure” can be considered not only a measure of the realism of the law, but also of the level of expectations that the millions of IDPs in Colombia should harbor about it.

[80] For a complete list of its reports, see Consultoría para los Derechos Humanos y el Despazamiento (CODHES), Informes de la Comisión de seguimiento a la política pública sobre desplazamiento forzado, http://www.codhes.org/index.php?option=com_content&task=view&id=39&Itemid=52 (last accessed March 19, 2011).

[81] Comisión de seguimiento a la política pública sobre desplazamient o forzado, Cuantificación y Valoración de las Tierras y los Bienes abandonados o despojados a la población desplazada en Colombia (January 2011),

http://www.codhes.org/index.php?option=com_docman&task=doc_download&gid=176 (last accessed March 19, 2011).

[82] Ibid. at 42.

[83] International legislation on this issue provides that compensation comprises not only “lost opportunities, including employment, education and social benefits”, but also “loss of earnings, including loss of earning potential” (emphasis added). See UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, Resolution 60/147, at paragraph 20 (December 16, 2005).

[84] El Espectador, Congreso aprobó presupuesto para 2010 por 148.3 billones de pesos (October 20, 2009), http://www.elespectador.com/economia/articulo167775-congreso-aprobo-presupuesto-2010-1483-billones-de-pesos (last accessed March 14, 2011).

[85] César Rodríguez Garavito and Diana Rodríguez Franco, supra note 30, at 212.

[86] Even though the Proposed Bill will only restitute land to Colombians displaced in the last two decades and the figures of CODHES refer to the last thirty years, it should be remembered that the project talks of “integral reparation”, which theoretically includes not only land restitution, but aspects such as humanitarian assistance or social programs, not to mention the salaries of the civil servants involved in its implementation or the compensations to be paid to good-faith possessors that will have to be deprived of their property to proceed with the restitution.

[87] Law 387/97, adopting the measures to prevent forced displacement, article 4, paragraph 3 (July 18, 1997).

[88] National System of Integral Assistance to the Population Displaced by Violence, Informe del Gobierno Nacional a la Corte Constitucional sobre la Superación del Estado de Cosas Inconstitucional Declarado mediante la Sentencia T-025 de 2005 (July 1, 2010).

[89] Ibid. at 745.

[90] See e.g. Internal Displacement Monitoring Centre and Norwegian Refugee Council, Government response improves but still fails to meet needs of growing IDP population (December 10, 2010).

[91] Article 2 of the International Covenant on Economic, Social and Cultural Rights obliges states parties to “take steps, individually and through international assistance and co-operation…with a view to achieving progressively the full realization of the rights recognized in the present Covenant” (emphasis added). Taking into account that Ruling T-025 departs from a de facto situation (“the gravity of the violation of IDPs’ rights”), a massive increase of the budget and the enactment of new legislation will not necessarily reverse the existence of “grave violations”. Since predicting the outcome of such complex measures is unfeasible, it might be difficult to come to a decision regarding the surmounting of the “unconstitutional state of affairs”.

[92] I.e. restitute the original land or provide the IDP with a similar plot elsewhere.

[93] Article 19, paragraph 1 of Law 387/97 established that “[t]he Colombian Institute for Agrarian Reform, INCORA, shall adopt special procedures and programs for the transfer, adjudication, and titling of land in the expulsion and reception zones of populations affected by forced displacement… The Agricultural Institute of Agrarian Reform shall establish a program that will allow receipt of the land of displaced persons in exchange for the adjudication of other properties with similar characteristics in other areas of the country.” In Law 387/97, the processes whereby INCORA restitutes the original land or facilitates land elsewhere are laid down without imposing a relation of hierarchy between them.

[94] Colombian Commission of Jurists, supra note 62, at 11-13.

[95] Studies Institute of the Attorney General’s Office, Guía de la Participación Ciudadana, at 38 (August, 2008), http://www.procuraduria.gov.co/html/sitio_guia/docs/Cartilla_Guia_participacion.pdf (last accessed March 20, 2011).

[96] Colombian Supreme Court, supra note 41.

[97] Report of the Representative of the Secretary General, Mr Francis M. Deng, submitted pursuant to Commission resolution 1997/39, Addendum: UN doc. E/CN.4/1998/53/Add.2 (February 11, 1998).

[98] Ibid. at Principle 28, paragraph 2.

[99] Ibid. at Principle 29, paragraph 1.

[100] Ibid. at Principle 28, paragraph 1.

[101] Ibid. at Principle 29, paragraph 2.

[102] Giulia Paglione, Individual Property Restitution: from Deng to Pinheiro—and the Challenges Ahead, 20 (3) International Journal of Refugee Law 391, at 397-400 (2008).

[103] The wording of Article 58 paragraph 2 indicates that similar plots elsewhere will only be granted “when the original ones cannot be restored or when [the IDP] cannot return [for safety reasons]” (emphasis added). The way in which Article 58 is drawn up equates return with restitution, closing the door to the possibility of being compensated for the displacement if the IDP can in fact return, but does not want to do so.

[104] Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, United Nations Principles on housing and property restitution for refugees and displaced persons, UN doc. E/CN.4/Sub.2/2005/17 (2005).

[105] Centre on Housing Rights and Evictions, Scott Leckie’s Introduction to “The Pinheiro Principles”, at 3 (2005).

[106] Principle 21, paragraph 2, provides that, as a rule, restitution will be deemed factually impossible only in exceptional circumstances, namely “when housing, land and/or property is destroyed or when it no longer exists”. It is noteworthy that, a priori, security conditions are not envisaged as part of the exceptional circumstances justifying non-restitution policies. As it will be seen later, the fact that the Pinheiro Principles were conceived as a tool to be used in post-conflict situations underlies this rationale.

[107] Commission on Human Rights, supra note 104, at principle 2, paragraph 1.

[108] Ibid. at principle 21, paragraph 1.

[109] As long as restitution is possible.

[110] Principle 10, paragraph 3 of the Pinheiro Principles provides that IDPs “shall not be forced, or otherwise coerced, either directly or indirectly, to return to their former homes, lands or places of habitual residence.”

[111] N.B. The analysis herein offered restrains itself to the text of the law. What Colombian authorities will or will not do once the law is enacted is simply impossible to predict. At any rate, the current wording would either give authorities in charge of implementing the Proposed Bill excessive leeway, or literally prevent them from respecting IDPs’ choice.

[112] Article VI, paragraph 2 of the U.S. Constitution basically equates domestic statutes with international treaties, solving any conflict between the two bodies of law through the rule of “later in time prevails”.

[113] Colombian Constitution, article 93, paragraph 1.

[114] Ibid. at paragraph 2.

[115] E.g. the International Covenant on Economic, Social and Cultural rights, or the Convention Relating to the Status of Refugees.

[116] Article 31.2 of the 1969 Vienna Convention on the Law of Treaties establishes that for the purpose of the interpretation of a treaty the context “shall comprise, in addition to the text…any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation [and] any relevant rules of international law applicable in the relations between the parties.”

[117] El Periódico, ONU denuncia impunidad de paramilitares en Colombia (March 15, 2010) http://www.elperiodico.com.co/newperiod/index.php?modulo=articulos&accion=verArticulo&id=4227 (last accessed March 19, 2011).

[118] National Movement of Victims of State Crimes, Regional Delegation of Sucre, Denuncia Pública: Hostigamientos contra integrantes del Comité de Don Antonio (March 15, 2010), http://www.movimientodevictimas.org/index.php?option=com_content&task=view&id=858&Itemid=1 (last accessed March 19, 2010).

[119] During a Public Rural Audience hold in Sincelejo (Sucre) in December 3, 2010, dozens of peasants publicly denounced their living conditions and claimed for justice. Antonio Pérez, a farmer in the department of Sucre, said that in 2009 unknown individuals try to evict him and his family of the land where he lives; the attackers threw them to the ground, threatened them to death and said that “their heads would be squashed” if they did not leave. That and some of other testimonies can be heard in a video available in the website of the International Peace Observatory, at http://www.peaceobservatory.org/es/1056321532/audiencia-publica-agraria-rogelio-martinez-mercado (last accessed March 3, 2011).

[120] Amnesty International, Colombia urged to investigate shooting of human rights activist (May 20, 2010), http://www.amnesty.org/en/for-media/press-releases/colombia-urged-investigate-shooting-human-rights-activist-2010-05-20 (last accessed March 21, 2011)

[121] Inter-ecclesiastical Commission for Justice and Peace, Amenazas y hostigamiento a Rogelio Martinez, integrante del MOVICE, operaciones paramilitares y beneficiarios de alias “Cadena” propician perdida de la posesión de la propiedad comunitaria “La Alemania” (February 9, 2010), http://justiciaypazcolombia.com/Ref-Amenazas-y-hostigamiento-a (last accessed March 21, 2011).

[122] See Human Rights Watch, supra note 7.

[123] Hernando Pérez, one of the beneficiaries of the first process of land restitution undertook by the current former of Agriculture, received his deed on September 19, 2010, only to be killed two days later. See Semana, Los “cuatro enemigos” de la Ley de Tierras (September 22, 2010), http://www.semana.com/noticias-politica/cuatro-enemigos-ley-tierras/144934.aspx (last accessed March 28, 2010).

[124] Commission on Human Rights, supra note 104, at principle 13, paragraph 12.

[125] Gustavo Petro, supra note 72, at 25’ 35’’.

[126] National Commission for Reparation and Reconciliation, Informe del Grupo de Memoria Histórica, La tierra en disputa. Memorias del despojo y resistencias campesinas en la costa Caribe 1960-2010, at 15 (Ediciones Semana, 2010).

[127] Human Rights Watch, Colombia: Displaced and Discarded. The Plight of Internally Displaced Persons in Bogotá and Cartagena, at 4 (October 2005).

[128] Ibid. at 26-27.

[129] Ibid. at 24-25.

[130] International Crisis Group, supra note 11, at 10.

[131] Ibid. at 11.

[132] Giulia Paglione, supra note 102, at 401.

[133] Depicting the Proposed Bill as a governmental instrument to implement an “unilateral peace” is but one example of this discursive reality. See e.g. the declarations of Senator Juan Fernando Cristo, in Liberalismo le pide a ex presidente Uribe revisar a profundidad texto de Ley de Víctimas para no caer en imprecisiones, at 2’ 54’’ (March 7, 2011),

http://www.juanfernandocristo.com/sitio/index.php?option=com_content&view=category&layout=blog&id=32&Itemid=31 (last accessed March 12, 2011).

[134] See Rodrigo Uprimny Yepes, Justicia transicional en Colombia. Algunas herramientas conceptuales para el análisis del caso colombiano, in ¿Justicia Transicional sin transición? Verdad, justicia y reparación para Colombia (Centro de Estudios de Derecho, Justicia y Sociedad, 2006).

[135] David C. Gray, Extraordinary Justice, 62 Alabama Law Review, at 13 (2010).

[136] Ibid. at 80-81.

[137] Loretta Capeheart and Dragan Milovanovic, Social justice : theories, issues, and movements, at 62 (Rutgers University Press, 2007).

[138] International Crisis Group, supra note 11, at 11.

[139] Amnesty International, supra note 6, at 22.

[140] Ibid. at 23.

[141] Article 8 of the Law 975/2005 (July 25, 2005) already introduced a right to reparation for victims.

[142] Article 61 of the Proposed Bill establishes a “presumption of dispossession”, enormously benefiting IDPs.

[143] Amnesty International, supra note 6, at 25-37.

[144] Ibid. at 38.

[145] Paul Collier and Anke Hoeffler, Greed and Grievance in Civil War, Policiy Research Working Paper 2355 (The World Bank Development Research Group, 2000).

[146] Ibid. at 14.

[147] Marcelo M. Giugale, Olivier Lafourcade and Connie Luff, Colombia. The Economic Foundation of Peace, at 43 (The World Bank, 2003).

[148] Interview with Juan Manuel Garcés Puente, official at the Colombian Ministry of Defense (March 24, 2011).

[149] Ibid.

[150] Christian Salazar Volkmann, representative of the United Nations High Commissioner for Human Rights in Colombia, in the Symposium Right to life and land restitution, University of Santo Tomás (December 10, 2010), http://www.hchr.org.co/publico/pronunciamientos/ponencias/po1009.pdf (last accessed March 21, 2011).

[151] Ibid.

[152] Revista Gobierno, Centro Integrado de Inteligencia para la Restitución de Tierras (March 2011), http://www.revistagobierno.com/portal/index.php?option=com_content&view=article&id=4648:centro-integrado-de-inteligencia-para-la-restitucion-de-tierras&catid=6:ministerios&Itemid=23 (last accessed March 28, 2011).

[153] Ibid.

[154] Juan Manuel Garcés Puente, supra note 148.

[155] Heiner Hänggi, Establishing Security in Conflict-Affected Societies: How to Reform the Security Sector in International State Building and Reconstruction Efforts. Experience Gained and Lessons Learned 77, at 77 (Joachim Krause and Charles King Mallory IV eds. 2010).

[156] Ibid. 302-310.

[157] Heiner Hänggi, supra note 155, at 86.

[158] Ann C. Mason, Citizenship Scarcity and State Weakness: Learning from the Colombian Experience, in Facets and Practices of State-Building 75, at 101 (Julia Raue & Patrick Sutter eds., 2009).

[159] Marcelo M. Giugale, Olivier Lafourcade and Connie Luff, supra note 147, at 565-566.

[160] Winifred Tate, From Greed to Grievance: The Shifting Political Profile of the Colombian Paramilitaries, in Colombia. Building Peace in a Time of War 111, at 125 (ed. Virginia M. Bouvier, 2009).

[161] Pinheiro Principle 10 (Commission on Human Rights, supra note 104) provides that IDPS “have the right to return voluntarily to their former homes, lands or places of habitual residence, in safety and dignity” (emphasis added).

[162] Juan Manuel Garcés Puente, supra note 148.

[163] Arturo J. Carrillo, Truth, Justice, and Reparations in Colombia. The Path to Peace and Reconciliation? in Colombia. Building Peace in a Time of War 133, at 155 (ed. Virginia M. Bouvier, 2009).

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