By Sebastián Forero Rueda, EL ESPECTADOR, August 31, 2020
(Translated by Eunice Gibson, CSN Volunteer Translator)
The Director of the Forging Futures Foundation explained the findings of the land restitution information system. It documented 5,775 decisions, and delivered the findings to the Truth Commission today. According to the document, 94% of the 400,000 hectares that have been returned in the restitution process are properties that Incora (Colombian Institute for Agrarian Reform) or Incoder (Colombian Institute of Rural Development) had previously turned over to campesinos who had no land.
A detailed and ambitious information system on land theft and restitution in Colombia was placed in the hands of the Truth Commission this Monday. A data base constructed by analysis of the 5,775 decisions that the restitution judges have issued after the effective date of the Victims and Land Restitution Statute in 2011. The work was done by the Forging Futures Foundation which is dedicated specifically to follow the land restitution process in this country, so as to understand how the theft of more than six million hectares took shape during the armed conflict, using official statistics.
Gerardo Vega, Director of the Foundation, spoke with Colombia 2020 about the scope of the document they delivered to the Truth Commission. He says that the level of impunity in land theft is absolute, because in spite of the fact that the restitution judges have certified copies for investigation, for example, when business owners made off with the land in the midst of the violence, today there are still no judicial decisions against them.
What is the dimension of what Forging Futures is turning over to the Truth Commission today?
It’s a base of 470,000 items that can be cross-matched, supported by 5,775 restitution decisions issued by the land judges all over the country, right up to this month. It’s the work that we did starting in 2011, up until today. The most important thing is that when we cross-check the data, we can find out who was responsible, and, above all, the patterns of behavior, how systematic were the cases in displacement and in land theft. It’s the companies that facilitated the theft, or that their owners or partners are responsible and have been ordered to return the land.
What kind of businesses appear in the report?
There are three sectors, but I have to say that the largest number of businesses committed to land theft are in Antioquia. The first sector is agriculture, where Argos is. It’s involved because it purchased lands for oxycombustion and for growing teak. Today it has 14 orders to return land. Included are the banana companies through Augura: Uniban, Banacol, Bananeras del Urabá companies that at the same time are partners in the construction of the port in Urabá. The second sector includes the extraction companies: Anglo Gold Ashanti, Continental Gold, even Ecopetrol, which has two return orders against it. And the third group is the banks: Agrarian Bank, which absorbed the Agrarian Savings Bank; BBVA, which absorbed the Cattle Ranchers Bank; and Davivienda, which absorbed the Coffee Growers Bank.
And how are these companies connected to the land theft processes?
In the case of Argos, for example, the judges have found that it was legal interweaving. They created some trusts and there were intermediaries that bought the land and later they sold it to Argos. It’s known that there was generalized violence there; for example, there was a high number of massacres in Montes de María. That fact was notorious. Everybody knew that people sold their land at a low price because of the violence. They took advantage of the circumstances of the violence to buy and accumulate those properties. That happened in the agricultural sector in the Caribbean, in the southern plains, in southern Chocó, in Catatumbo, Urabá, eastern Antioquia, Bajo Cauca, and Cesar. You were face-to-face with the paramilitary groups that controlled the people there.
In 83% of the cases, according to the judges, the land theft was done by the paramilitaries. And they took the land away from the poor campesinos that had less than 40 hectares. Ninety-four percent of the 400,000 hectares that have been returned in the restitution procedures are parcels that Incora or Incoder had previously given to campesinos that had no land. That means that there was an agricultural counter-reform: the little that the government had done through Incora or Incoder by giving parcels to campesinos that had no land, the businesses and the paramilitaries turned around and took it away from them.
And in the case of the extractive businesses, it was through generalized violence expressed in combats among the guerrillas, the Colombian Army, and the paramilitaries. So in large expanses of ethnic people, as in Chocó, in 50,000 hectares of a community council, they got titles for mining exploration. The judges have ordered those titles suspended.
And the role of the banks?
They supported the land theft by two repeated activities. First, the judges have vacated the mortgages that the banks had on those parcels because they had lent to the people that bought stolen parcels, taking advantage of the circumstances of violence, and the banks received mortgage guarantees on the parcels. Now that the victims are suing for recovery of their parcels, the banks have appeared as opponents, but the judges have held that those mortgages are invalid because the banks did not do enough due diligence, studying the titles; they knew that it was a parcel that had been stolen during the conflict, when there was generalized violence, and they took it as collateral in spite of that. And the other thing that they did was that when the victims had mortgaged the property and could not complete the payments on the mortgage because of the violence, and, on the contrary, were displaced, the banks foreclosed on the properties.
Now, nearly two decades later, who owns the stolen land?
Basically, that land continues in the hands of those companies. And also in the hands of people who
stole land as landlords. It’s in the hands of cattle ranchers, owners of oil palm plantations and banana plantations, and the mine owners. Up to now they have only returned 400,000 hectares of more than 6,000,000 hectares of land that was stolen. That’s not even 9% of all the land stolen. The rest remains in the hands of those companies. For example, in the case of the Hernández family in La Cuesta who were stockholders of the El Colombiano newspaper. We have 20 lawsuits in which they are the opponents. It’s a property that is between Chocó and part of Antioquia, where there still are no decisions, but it is already included in the registry of stolen land; it’s already in the hands of the judges. However, that family continues to hold the properties.
According to the analysis of 5,775 land restitution decisions, why have only 9% been processed now, nine years after the adoption of the Land Restitution Statute?
First, because the paramilitaries have not been taken down. The murders of social leaders have led a lot of people to stay away from or give up on continuing the process. While they continue murdering social leaders it’s going to be very complicated for people who want to keep on suing for the recovery of their land, and hard for people to stay active in those legal proceedings.
Second, because there is insufficient infrastructure; there is a serious lack of offices. In Antioquia, for example, there are only offices in Caucasia, Medellín, and Apartadó, but there are 125 municipalities in Antioquia. There are regions in this country where there is no presence of the Land Restitution Unit at all. There has to be a public policy that helps people go and pick up the restitution applications, and in the current administration, the promotion that there was before is lacking now.
Third, because there is not equality in the legal defense of victims represented by the government against the companies that have big law firms with economic support to make their arguments. The government gives weak representation to the victims and there are only four nongovernmental civil society organizations to furnish legal representation to the victims. This is unfair. The government ought to encourage the participation of companies and agencies that represent the victims, so that they can be treated equally in the legal dispute with the companies.
And fourth, there ought to be a reform that establishes restitution administratively. Of the 5,775 decisions, 70% of them were not opposed. That should be handled administratively. Why does that have to go before a judge if there is no opponent? The government could return the land by order in such cases.
You mention reforming the law and, right now, the road that’s being proposed is the Democratic Center Party’s reform that is trying to protect the second occupants.
That reform is being presented in the wrong form. The Constitutional Court already settled that subject. It held that the second occupants have rights and that the government has to provide them some benefits. What this reform is trying to do is to legalize all the land thefts in the last 30 years by saying that those who stole land must pay some money and they can keep the land.
And besides that, the reform wants to remove crucial parties from the Restitution Statute. For example, the reversal of the burden of proof. Now it’s not the victim who has to demonstrate that he was the owner; it’s the one who claims to be the owner now. That would mean that those businesses that are the ones who now have to show they bought the land in good faith would be blameless. What that reform is trying to do is to let people that bought land, taking advantage of the circumstances of generalized violence, not have to do anything; they continue to be the owners. The current Statute says no, that land has to be returned to its original owners.
In land restitution decisions, they have furnished certified copies to the prosecutors so that they can investigate the owners and the board members of the businesses. What has happened with those procedures?
There is a level of absolute impunity. Up to now there has not been any court decision that compels the members of those boards of directors or the owners of those companies to do anything. Not even in the case of Chiquita Brands, the banana multinational convicted in the United States, that paid an administrative forfeiture of $25,000,000 for having financed paramilitary groups in Colombia, groups that stole a lot of property. They were penalized in the United State, but in Colombia, nothing. The most that the legal system in Colombia has done is that the crime of financing paramilitary groups in this case is a crime against humanity, so it won’t be limited by the statute of limitations, but there are no legal decisions that involve those business owners that stole land, in spite of the requests by the land restitution judges. More is being done at the international level.
In March of this year the Bananeras de Urabá Company was ordered to return 11 properties where the Urabá port is being constructed, and they requested investigation of two individuals, owners of those companies. And nothing has happened. Meanwhile in Germany, Flotert, an entity that regulates international fair trade standards, has expelled the company, taken away benefits under fair trade, because nearly one million dollars in social investment in Urabá was lost because of the actions of that company.
How possible is it that land theft will be legalized and that the properties that are being used for agro-industrial projects will never be returned to their original owners?
Fortunately the land judges keep deciding on what’s right. And as long as they keep the law the way it is, there is hope, at least, even though the results are poor. If they change the law in favor of the business owners, it’s going to be one more frustration. The government lacks the will right now to push land restitution, because it would have to use political resources, motivating people to go out and be present, protecting social leaders so they aren’t murdered. But the Statute gives hope. And the subject of the land is fundamental now because the pandemic opened the curtain and revealed that the planet has to return to the earth to produce our food. What is going to remain is more poverty and more need for food. And if the governments want to protect the people’s lives, they have to look toward the countryside, go back to the land, invest in the public budget, defend the people that want to return, defend restitution, and look for access to land for the campesinos that don’t have land.