The Steep Path of Land Restitution in Colombia
Although the Victims and Land Restitution Law has been in force for ten years, on average, two out of every three land restitution applications is denied by the Land Restitution Unit.
Ten years ago, with Ban Ki-Moon (then Secretary General of the UN) as a guest of honour, the Colombian government celebrated the promulgation of the Victims and Land Restitution Law. This law was internationally lauded for its promise to revert one of the most dramatic legacies of the armed conflict: the violent land dispossession of peasant families.
The land restitution process was bold and innovative. This was the only way to avoid the formalities that had always impeded such processes from advancing. Even if such processes advanced, the decisions were usually decided against peasant families simply for the absence of documents or the lack of money and lawyers to represent their interests before a judge.
However, the promise for a fast and effective justice has not become a reality for many claimants. The majority of applications that have been analysed by the Land Restitution Unit (URT), the entity that processes the cases before they go before a judge, have been denied.
As of April 2021, 90,585 applications have a final decision from the URT. Of these applications, only 31,671 have been included in the land registry, which is a prerequisite for presenting the application before a land restitution judge. In other words, 65 per cent of the decided applications fail to advance beyond the administrative step in the process. There are three principal ways a land restitution application can be dismissed by the URT. First, in its previous analysis, the URT can decide that the application does not meet the minimum requirements for analysing. Second, applicants may choose to withdraw their applications. And third, after studying the application, the URT can decide that the case does not merit inclusion in the land registry.
“As of April 2021, 90,585 applications have a final decision from the URT. Of these applications, only 31,671 have been included in the land registry”
Despite the fact that both the number and the rate of denied applications is elevated, there is no available public information that explains the reasons for which the majority of applications have been denied. In fact, the URT only started to register the motivations for denying applications on 10 June 2019.
Out of the applications that have information registered regarding the reasons for denial, the URT informed us in a right-to-information response that close to half of these applications were denied because the URT did not find a connection between the armed conflict and the land dispossession. The other 50% were denied for various reasons, which included the impossibility of proving that applicants had a relation with their land, the lack of evidence regarding the loss of the property, and the lack of evidence regarding the victim status of the applicants.
On the other hand, the implementation of the “withdrawal” policy has generated controversy, especially because the URT has allowed both express (when the applicants request) and tacit withdrawals (when the applicants fail to respond within a specific time period at different points in the process). In 2016, the Constitutional Court determined that, due to the nature of the land restitution process, withdrawals should not be allowed, since they can incentivise illegal armed groups to threaten and pressure victims to renounce their rights. In 2019, the Office of the Inspector General requested that the URT revoke the decisions of more than 400 of these denied applications related to land located in the department of Bolívar.
Unfortunately, the URT’s decision to deny an application or to allow a withdrawal cannot be reviewed by land restitution judges. The only route available to applicants is to sue the URT in the contentious administrative jurisdiction, which handles lawsuits against the state, not specialised cases of land dispossession.
Further, it is difficult to access the contentious administrative jurisdiction: the deadlines for suing are short and unforgiving, plaintiffs are required to have a lawyer, and the URT’s decisions are always presumed to be correct. All of these characteristics are diametrically opposed to the manner in which cases are processed before the land restitution judges.
In our research, we asked the URT how many times it has been sued regarding the 58,914 application denials. The URT responded that it has been sued only 95 times. In other words, only .16 per cent of those whose land restitution applications have been denied have brought lawsuits. In only one of these cases, the plaintiff prevailed, and the URT’s denial was revoked. This panorama is exactly what those who drafted the Victims Law 10 years ago sought to avoid.
Analysing these cases (because there were many barriers to accessing all cases, we only analysed 49), we found that the URT has taken delicate decisions regarding disputed legal concepts, such as the armed conflict nexus requirement, which due to its nature and scope, should have been decided by land restitution judges. Finally, in those cases which have a sentence, we have found that the contentious administrative judges do not use jurisprudence developed by the land restitution judges, but instead limit their interpretation to isolated mentions of the Victims Law, without apparent knowledge of the context and significance of such norms.
The fact that there are so many uncertainties related to the fate of such a large number of land restitution claims, combined with the concerns demonstrated by the analysis of the little public information that does exist, requires that we look for the best way to review the decisions already taken by the URT. This is not only necessary for bringing justice in the concrete cases, but also for restoring legitimacy to the process, guaranteeing tranquillity for society, and reviving the reasons for hope and praise the land restitution process elicited a decade ago. The recent 10-year extension of the Law is the precise opportunity for this work.
* Researchers at Dejusticia and the Gender, Justice and Security Hub
Nelson Camilo Sanchez is an assistant professor of law at the University of Virginia School of Law, a research associate at the Center for the Study of Law, Justice and Society – Dejusticia, in Colombia, and a Co-Director of the UKRI GCRF Gender, Justice and Security Hub. His research focuses on justice in post conflict scenarios; land governance and peacebuilding; and the role of international human rights law in the Colombian transitional justice process. On the GCRF Hub, Camilo is pursuing a project analyzing the role of transitional land-related policies in Colombia in the changes and continuities in the way in which rural communities use, protect, and transact their land rights.
Aaron Alfredo Acosta is a California attorney who specialises in international human rights and IHL. He currently works as a research assistant for co-investigator Camilo Sánchez on the Livelihood, Land and Rights project and is employed as a researcher at Dejusticia. From 2018 to 2019, Aaron spent a year at Dejusticia as a transitional justice research fellow, where his work primarily focused on holding economic actors accountable for crimes committed during the Colombian armed conflict. Before joining Dejusticia, Aaron studied at UCLA School of Law, where he received his Juris Doctor with a specialisation in international and comparative law.
Image: UN Women (CC BY-NC-ND 4.0)