Consultations regarding safe return of lands to indigenous and Afro-Colombian communities key to success of Colombia's Victims’ Law, says MRG
26 October 2011
After nearly five decades of armed conflict that has produced an estimated five million internally displaced people (IDP), in June 2011, the government of Colombia passed a landmark legislation entitled the Victims and Land Restitution Law (Victims’ Law).
Government sources explain that the Victims’ Law seeks to restore to its rightful owners some 17 million acres of land stolen over the past 25 years and allows compensation to be paid to relatives of those killed.
According to the BBC the compensation bill could total some $20bn and will be directed at those who were affected from 1 January 1985. If disbursed equally this would work out to approximately $4,000 per displaced person.
Statements by government officials indicate that the passage of the law demonstrates the state is now taking the lead in recognizing it has a clear role to play in the process of reconciliation.
Although the Victims’ Law is seen as a step in the right direction, critics point out that it fails to provide reparations for all the affected. For example, victims of non-state combatants such as the guerillas and the paramilitaries will have an easier time accessing reparations than victims of crimes committed by state agents.
Another concern is whether the law will cover victims of crimes committed by the so-called "neo-paramilitaries" or "criminal gangs". These are the successor groups that sprung up following the 2005 formal demobilisation of the country's main paramilitary umbrella organization, the Self-Defence Forces of Colombia (AUC). By many accounts these entities have been the most active in land dispossession during the past five years.
Critics have also highlighted the difficulty of protecting those who attempt to return to their lands under the new law, without dealing with the issue of the continuing links between various political actors and the paramilitary groups who were mainly responsible for clearing the lands in the first place. Over a dozen land rights activists were murdered in 2011 and organizations warn that attempts to return dispossessed lands could spark a whole new wave of violence.
Of special concern to Minority Rights Group International (MRG) is that the extant version of the Victims’ Law does not apply to Afro-Colombians and indigenous peoples, who have been among the main victims of land dispossession.
The government explains that a separate provision is being made by presidential decree that is expected in 2012 following consultation with the respective communities.
With an estimated 15 percent of IDPs being classified as indigenous, these communities have established a national level round table (Mesa Indígena), have prepared their own draft decree with special provisions, and are negotiating with the government over reconciling their draft with the government's version. They have also agreed to a set of prior consultation meetings to be held at national, regional and departmental levels.
In the case of the one and a half million plus Afro-Colombians who make up an estimated 35 percent of IDPs, an informal representative body called the National Round Table of Afro-Colombians has been established, which has been developing its own concrete proposal for the decree. However it is not officially recognised by the government, which has opted for dialogue using its own national and department-level consultative commissions for Afro-Colombians.
Activists point out that these government regulated commissions were set up under government decree without prior consultation, and are not considered by most communities as being truly representative.
Afro-Colombians, through their own community councils, have already presented petitions demanding direct local level participation in the process. As a result, the government has not yet convened meetings with Afro-Colombian communities to discuss its draft text or to establish the methodology for prior consultation.
Cesar Rodriguez, of the Racial Discrimination Observatory at Colombia's University of the Andes, says that one reason indigenous groups have been successful thus far in advancing the consultation process, is due to the manner in which the process itself is conducted between their representative body and the state. For instance, the Mesa Indígena agreed on the basic methodology that would be used during the consultation with the government at the very beginning of the process.
Without a representative body equivalent to the Mesa Indígena, Afro-Colombian consultative meetings have included many disparate groups who may not necessarily share the same goals.
Afro-Colombian rights organization CIMMARON explains, ‘Afro-Colombian communities are relatively large and varied with respect to reparation needs, political organization, policy priorities and success in obtaining collective land titles, so they also sometimes need special “private” spaces for internal reflection and consensus-building during encounters with the government.’
Meanwhile MRG, while praising the reconciliation efforts by the Colombian government, points out that the right of indigenous and Afro-Colombian populations to receive full and just compensation needs to be reflected in separate decrees for each ethnic group, since the requirements of each group are significantly different, and one single blanket decree cannot possibly address their issues adequately.
MRG cautions that the government needs to make sure that logistical concerns are not used as reasons to limit the quality of the consultative process and reminds the government that Colombia is party to ILO Convention 169, which mandates states to follow meaningful consultation with such groups, with a view to obtaining their free, prior and informed consent.
According to MRG’s Legal Cases Officer, Carla Clarke, ‘The ultimate success of the Victims’ Law will be measured by whether people actually get their lands back both in name and fact. The consultation process has to take into account all the specific issues affecting these communities so that justice is not only served, but is also seen as being fully served.’