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By Claudia Liliana Erazo, Yira Castro Legal Corporation
Saturday, May 7, 2016

(Translated by Eunice Gibson, CSN Volunteer Translator)

The judicial machinery for land restitution is undoubtedly important, but it’s a joke that it could protect the ownership rights of hundreds of thousands of families who were dispossessed when they fled the violence or were forced to abandon no fewer than four million hectares of land, according to official records, while those who promoted the displacement or benefited from it are not prosecuted and punished in proportion to the seriousness of the crimes they committed.
Claudia Liliana Erazo
Yira Castro Legal Corporation

It’s not for nothing that they say impunity is in itself a violation of human rights, because it is the denial of the victims’ rights to the truth and to justice. It has a devastating effect on access to complete reparation and it is the antithesis of the guarantees of no repetition. Besides that, it is evidence of the incapacity or unwillingness of the government to provide an effective legal remedy. That constitutes a violation of the right of access to justice for the victims of serious violations of human rights.

With a rate of impunity close to 100%, forced displacement in Colombia has not only caused a serious humanitarian crisis for more than seven million victims (15 percent of the total population of the country), but it has also been converted into the largest obligation of the judicial system, not just to the victims, but also to the general society which has seen the effects of the armed conflict on the displaced people, a conflict that has primarily been carried out in rural areas but which has also affected the urban centers that have been the principal recipients of the victims.

All of the armed actors have been responsible for acts of displacement and, faced with that, the response of the legal system has been the same: none at all. With the resurgence of the paramilitary phenomenon at the end of the ‘80’s, the levels of damage from the armed conflict reached their peak. There were hundreds of massacres, and thousands of disappearances and murders of defenseless campesinos, under the complicit gaze of government officials. The atrocious acts of violence by paramilitaries resulted in numberless events of forced displacement.

Faced with this vicious situation, one that lasted for more than a decade, many voices began to point out that an interest in taking possession of land belonging to the victims lay behind the forced displacement. There was an objective of taking control of the land, of taking it illegally or in order to use it for certain economic projects. Nevertheless, and in spite of this evidence, the legal system was deaf and blind to a phenomenon that began to flood the streets and trickle into the fringes of cities both large and small.

It was not until 1997 with the passage of Statute 387 that the Colombian government recognized the existence of forced displacement that civil society organizations had been pointing out since the latter ‘80’s, and took some measures to attend to the victims’ humanitarian needs. By that time, the number of victims had reached more than one and one half million people. In spite of that, it was only in the year 2000 that the crime of forced displacement was made part of the criminal code. In 2001 the first steps were taken to protect the stolen or abandoned parcels. Those were implemented more or less regularly until 2007, that is, ten years after the Statute was passed and almost 20 years after the upsurge in the phenomenon because of paramilitary violence.

With the process of paramilitary demobilization, undertaken in 2005, thousands of campesino families, victims of displacement and dispossession in areas where these groups had influence, trusted that their land would be returned to them by those responsible for their tragedy. However, the charges that were issued against the few that took part in the system and were under the jurisdiction of the peace and justice system for the most part ignored the acts of forced displacement and ignored the theft of land even more frequently. Both prosecutors and judges systematically refused to confront this crime as a serious one and most of the complaints were filed at the preliminary stage.
That produces a particularly serious situation if we keep in mind that the paramilitary commanders who took part in Statute 975 (The “peace and justice” law) admitted their responsibility for serious human rights violations such as massacres, that created massive episodes of forced displacement in the areas where they had control. The paramilitary chieftain, Jorge 40, commander of the Northern Bloc of the AUC (Colombian Self-Defense Forces), has admitted that the purpose of forced displacement was to get rid of the legal owners of land that they considered attractive, so as to take it for themselves, and they made use of public officials who facilitated dispossession procedures disguised as legal acts of title transfer for numerous parcels in provinces such as Magdalena.

Jorge 40 points out in his testimony that he counted on the assistance of men under his command who served as sales agents assigned to “purchase” land from the campesinos, and those who lent their names to carrying out fraudulent negotiations regarding those parcels. Many of these people were close to the cattlemen’s organization in the region and some of them had been connected to the legal procedures because they belonged to paramilitary groups and took part in activities with them and in forced displacement. However, the great majority have not been convicted of crimes, are fugitives from justice or they have gone free because they have carried out the alternative penalty required by the Peace and Justice law (eight years). Yet the judges have not convicted them of anything, in spite of the crimes charged and even confessed. In the few cases where men close to Jorge 40 have been convicted of forced displacement, their penalties have been minimal and, besides that, they have received legal benefits such as house arrest.

That is the case of the well-known Augusto “El Tuto” Castro, a confessed paramilitary under Jorge 40. He entered the Justice and Peace process in 2005, but since he was not subjected to any legal proceedings, he continued to commit crimes in the region. In 2012 he actually set up an “Anti-Restitution Army” in the province of Magdalena as an answer to the passage of the Victims’ and Land Restitution Law enacted in 2011. For the first time, the law included a judicial mechanism for the restitution of parcels that had been stolen or abandoned forcibly by victims of the conflict, and with a pilot program focused on that province because of the widespread documentation of dispossession and forced abandonment that the people had suffered there during the decade of paramilitary control.

After insistent complaints were filed, he was captured in October of 2012 and he was sentenced to eight years in prison because of his connection with a criminal conspiracy and forced displacement. Last year he began to serve that sentence on his ranch in Ariguani. He was not sent to prison because he claimed to have health problems. But even more disturbing is the fact that Mr. Castro and his family were also being questioned about their connections with the paramilitaries who were still working to oppose the land restitution processes in Magdalena Province.

Recently José Norberto “El Mono” (“The Blond One) Bedoya and Pedro Pimienta, former public officials in Magdalena and identified as belonging to paramilitary groups, “opposed”, using violence, an investigation pursued by a campesino family that was trying to achieve compliance with a decision of the Constitutional Court ordering the restitution of their property. The Armed Forces aiding in the investigation looked on with astonishment. There are no criminal sentences against these two individuals, in spite of all the numberless statements by paramilitaries and campesinos against the two that connected them with criminal acts, including displacement and dispossession of property.

There are numerous opponents of this ilk in regions where, as in Magdalena, the paramilitary control included the co-optation of public officials, both civilian and military and where they acted with the complicity of powerful local economic organizations. Now it’s not surprising that wolves dressed in sheep’s clothing are trying to present themselves as victims of the Land Restitution Law while they can rely on the generous protection of impunity. And besides that they can count on their power to make themselves heard. They use every kind of legal sophistry to hinder the administrative and legal restitution procedures; they use intimidation and threats to oppose the legal proceedings; they put together massive actions of disinformation; they target and intimidate the community of claimants and they have friends in high places, and those friends echo their claims.

They can even count on representatives in Congress who offer bills to reform the land restitution system to suit their needs. They vehemently attack the requirement of good faith and lack of blame that those who are trying to clarify their claim to land they allege was stolen or from which they were displaced have to demonstrate. They oppose the inverted burden of proof, that benefits those who claim to have been victims of land theft or forced displacement. They would give the opponent that benefit, requiring the victims to have the burden of proof. And as if that were not enough, they are trying to incorporate extrajudicial conciliation to the restitution procedures. This is a formula in which the big national and international companies are interested, because they don’t want to see their land-grabbing methods questioned in restitution proceedings and they are ready to pay – money – for silence.

The process of dialog and negotiation put forward by the FARC-EP guerrillas offers two scenarios that are totally relevant here. The first is the creation of a special justice for peace, where they promise a truth commission that would take charge of unmasking the truth hidden in 50 years of armed conflict — the most serious crimes perpetrated and the identity of those responsible. If a commission of that level does not reveal what and who were behind the crime that has left the most victims in this country, we can anticipate its failure. But on the other hand, it will create a tribunal where all of those who are most responsible for the most aggressive agricultural counter-reform that this country has ever experienced will have to appear.

The second scenario is the conclusion of the armed conflict with these guerrillas and the possibility of putting forward the restitution procedures in the southern part of the country and in other areas where there has been significant guerrilla influence. With a different dynamic but with identical results, the FARC-EP have been pointed out as being responsible for a high percentage of the internal displacements, but just as with the macro-criminality of paramilitarism, these actions have been highly invisible to the administration of justice, in spite of the numerous decisions issued against the highest ranking commanders of this group of guerrillas.

The legal mechanism for land restitution is doubtless valuable, but it’s a joke that it could protect the property rights of hundreds of thousands of families who fled the violence and were dispossessed or forced to abandon no fewer than four million hectares of land, according to official records, while those who promoted the displacement or benefited from it are not prosecuted and punished in proportion to the seriousness of the crimes they committed.


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