Forero-Nino, Lina

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Law and Business Review of the AmericasVolume 18 | Number 1 Article 72012Colombia's Historic Victims and Land RestrictionLawLina Forero-NinoFollow this and additional works at: https://scholar.smu.edu/lbraThis Update is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Law and BusinessReview of the Americas by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu.Recommended CitationLina Forero-Nino, Colombia's Historic Victims and Land Restriction Law, 18 Law & Bus. Rev. Am. 97 (2012)https://scholar.smu.edu/lbra/vol18/iss1/7COLOMBIA'S HISTORIC VICTIMS ANDLAND RESTITUTION LAWLina Forero-Nifio*I. INTRODUCTIONA N estimated four million Colombians have been victims' of theongoing civil conflict between the guerrillas, paramilitary groups,and the Colombian military.2 The conflict, which began in the1960s,3 reached a climax in the 1980s and 1990s. 4 The 1985 siege of thePalace of Justice marked the beginning of one of the most violent chap-ters in Colombia's conflict.5 In 1985, members of the M-19 guerrillagroup seized the Palace of Justice and caused a standoff where 100 peopledied, including eleven Colombian Supreme Court Justices. 6 Because Co-lombian military operations have weakened guerrilla groups, includingthe Revolutionary Armed Forces of Colombia (FARC), most of the guer-rilla "attacks and kidnappings now occur only in the rural southern re-gion, while major cities are mostly free from violence related to theconflict. ""Over the past twenty-five years, Colombian land-owners "lost nearlyseven million hectares (17m acres) of land" as a result of the conflict.8The guerrillas, paramilitary groups, and drug traffickers use "violence and*"With God's power working in us, God can do much, much more than anything wecan ask or imagine." Ephesians 3:20. Lina Forero-Nifio received her B.A. in Com-munication from the University of Texas at San Antonio. She is currently a J.D.Candidate at Southern Methodist University Dedman School of Law and will begraduating in May 2012.1. "Since the 1960s, most of the victims of Colombia's internal conflict have beencivilians . . . ." Associated Press, Colombia's President Signs Measures to Compen-sate Victims of Nation's Civil Conflict, WASH. Pos-r, Dec. 20, 2011, available athttp://www.washingtonpost.com/world/americas/colombias-president-signs-mea-sures-to-compensate-victims-of-nations-civil-conflict/2011/12/20/glQAqR6q70-story.html.2. Jim Wyss, Colombia Hopes to Heal Wounds With Victims' Law, MIAMI HERALD,June 10, 2011, available at http://www.miamiherald.com/2011/06/10/v-print/2261220/colombia-hopes-to-heal-wounds.html#ixzzlVKXWOJNx.3. See Dan Molinski, Colombia Victims Law Could Incite More Violence, WA-L Sr.J., June 10, 2011, http://online.wsj.com/article/SBI0001424052702304392704576377590602002746.html.4. See Wyss, supra note 2.5. Associated Press, supra note 1.6. Id.7. Molinski, supra note 3.8. 'Historic' Colombian Victims' Compensation Law Signed, BBC NEWS, June 10,2011, http://www.bbc.co.uk/news/world-latin-america-1373 6 523.9798 LAW AND BUSINESS REVIEW OF THE AMERICAS [Vol. 18fraud to take control of land."9 Currently, government officials estimatethat 3.4 million people have been forced out of their lands as a result ofthe conflict.' 0 In the first four months of 2011, 20,000 people were forcedto leave their lands.' While armed groups continue to occupy stolenland,12 some of the rightful owners walk the streets of BogotA sellingtrinkets to make a living or even beg for money from strangers." Forexample, one Colombian resident, Larino Nengarade, was forced to fleehis farm in the western province of Risaralda ten years ago.14 TheFARC, paramilitary groups, and criminal gangs terrorized his village foryears.15 Now, he sells beaded necklaces in downtown Bogota to make aliving.16But beginning on January 1, 2012, victims like Nengarade and relativesof victims are entitled to damages and land restitution pursuant to thenew Victims and Land Restitution Law (the law).17 On June 10, 2011,Colombian President Juan Manuel Santos signed the plan implementingthe law.' 8 The law is one of the main initiatives of the Santos administra-tion, and according to Santos, is the means to end the cycle of violence inColombia.19 The United Nations Secretary General Ban Ki-moon "de-scribed the law as an 'important advance' for Colombia" 20 and confirmedthat the United Nations fully supports the law.2 1 The law is historic be-cause it is one of the first in South America to indemnify victims of anongoing conflict. 22 Santos said that this law shows the world that Colom-bia "is willing to pay a moral debt, a long overdue debt, to victims of theviolence that must end." 2 3This report intends to accomplish several objectives. First, I will givean overview of the law. Second, I will explain major provisions of thelaw. Third, I will discuss the government's expectations regarding thelaw.II. OVERVIEWThe objective of the law is to establish a system of judicial, administra-9. Id.10. Wyss, supra note 2.11. Id.12. BBC NEws, supra note 8.13. Author's eyewitness account.14. Wyss, supra note 2.15. Id.16. Id.17. Id.; BBC News, supra note 8.18. Associated Press, supra note 1; Wyss, supra note 2.19. Santos said "If I accomplish nothing else, this will have made my presidencyworthwhile . . . ." Wyss, supra note 2.20. BBC NEws, supra note 8.21. Molinski, supra note 3.22. Santos Firma Decretos Sobre Ley de Victimas [Santos Signs Decree About Victim'sLaw], UNIvIsIoN.com, Dec. 20, 2011, http://www.colombiaenaccion.gov.co/vic-timas/?p=3813.23. Molinski, supra note 3.COLOMBIA'S VICTIMStive, social, and economic remedies to benefit victims of armed conflict. 2 4The law recognizes that the victims of armed conflict have sufferedhuman rights violations and thus, are entitled to restoration. 25 Remediesby which the government seeks to restore victims include land restitution,indemnification, rehabilitation, satisfaction, and guarantees against repe-tition.26 The goals of these remedies are to restore the victim's ability toexercise his or her rights, provide victims with a dignified life, and ensurethat victims play a role in the country's social, economic, and politicalrealms. 27 The government will offer special protection to certain groupswithin society at greater risk of being victimized.28 Those groups includewomen, youth, children, senior citizens, disabled individuals, farmers, so-cial leaders, union members, defenders of human rights, and victims offorced displacement. 29III. MAJOR PROVISIONSA. DEFINITION OF VICTIMSThe law defines victims as persons who individually or collectively suf-fered harm as a result of acts, occurring after January 1, 1985, which vio-late the Law of International Human Rights or are grave violations ofinternational rules of human rights.30 The law recognizes the victims ofacts by guerrillas, paramilitary groups, and the armed forces.31 Such actsmust have occurred in the setting of armed conflict.32 The law also de-fines as victims the victim's spouse, permanent partner, or same-sex part-ner, and a relative within the first degree of consanguinity 33 or firstdegree of affinity when the victim who suffered the harm is deceased ormissing.34 If there are none of the above-mentioned relatives, then thedefinition of victim extends to ascendant relatives of the second degree of24. Ley de Victimas y Restituci6n de Tierras [Victims and Land Restitution Law], LawNo. 1448, June 10, 2011, DIARIO OFICIAL [D.O.] art. 1, available at http://www.colombiaenaccion.gov.co/victimas/?cat=37, (Colom.) [hereinafter Victimsand Land Restitution Law].25. Departamento Para La Prosperidad Social, Resumen General de la Ley [GeneralSummary of the Law] (2011), http://www.colombiaenaccion.gov.co/victimas/?cat=24, [hereinafter General Summary of the Law].26. Id.27. General Summary of the Law, supra note 25.28. Id. art. 13.29. Id.30. Id. art. 3.31. Wyss, supra note 2.32. Victims and Land Restitution Law, art. 3 (Colom.).33. Id.; Defined as parents and children of the victim (including adoptive parents andchildren of the victim). Departamento Para La Prosperidad Social, El ABC deLey de Victimas [The ABCs of the Victims and Land Restitution Law] 1 (2011),available at http://www.colombiaenaccion.gov.co/victimas/?cat=24, [hereinafterThe ABCs of the Victims and Land Restitution Law].34. Victims and Land Restitution Law, art. 3 (Colom.).2012] 99100 LAW AND BUSINESS REVIEW OF THE AMERICAS [Vol. 18consanguinity.35 Further, the law also includes as victims those personswho suffered harm while assisting a victim in danger or who intervened toprevent the victimization. 36 Members of guerrilla and paramilitarygroups do not qualify as victims. 3 7To be entitled to relief, a person who qualifies as a victim must firstsubmit an application to a regional office of certain government enti-ties.38 The victim must also give a declaration regarding the facts of thevictimization.39 Through this procedure, the victim will be included in theofficial record of victims. 40B. REMEDIES1. RestitutionRestitution is defined as a remedy that seeks to return the victim to thestate in which he or she was in prior to being victimized. 41 The law allowsthe government to offer restitution to persons who were forced off theirproperty after January 1, 1991.42 In cases where victims lost real propertyas a result of the conflict, the government will recover the property andreturn the property to the victims. 43 If the government is not able torecover the victim's property, then the victim is entitled to monetary com-pensation for the property. 44 Persons who hold legal title to property,possessed property but did not hold legal title, or occupied vacant prop-erty assignable by the government are entitled to recover property in res-titution.45 Victims who lost their homestead as a result of being forcedoff their property will be given priority access to subsidized governmenthousing programs.46A newly created governmental entity47 (the Unit) is charged with or-ganizing and maintaining a record of stolen or abandoned property, re-ceiving applications for restitution, and representing victims in propertyrestitution proceedings before judges.48 Property recorded in the Unit's35. Id.; Ascendant relatives of the second degree of consanguinity are the victim'sgrandparents. The ABCs of the Victims and Land Restitution Law, supra note 33,at 1.36. Victims and Land Restitution Law, art. 3 (Colom.).37. Id. art. 3, 1 2 (Colom.).38. The government entities accepting applications are the Procuradurfa, the Defen-soria del Pueblo, and the Personerfas Municipales. The ABCs of the Victims andLand Restitution Law, supra note 33, at 1.39. Id.40. Id.41. Victims and Land Restitution Law, art. 71 (Colom.).42. General Summary of the Law, supra note 25, at 5; The ABCs of the Victims andLand Restitution Law, supra note 33, at 2.43. General Summary of the Law, supra note 25, at 5.44. Id.45. The ABCs of the Victims and Land Restitution Law, supra note 33, at 2.46. General Summary of the Law, supra note 25, at 5.47. La Unidad Administrativa Especial de Gesti6n de Restituci6n de TierrasDespojadas.48. The ABCs of the Victims and Land Restitution Law, supra note 33, at 2.COLOMBIA'S VICTIMSrecords is presumed to be stolen or abandoned property.49 The law pro-vides that judges of the civil circuit courts, specializing in property restitu-tion, will hear restitution claims.50 Because of the presumption of stolenor abandoned property, the burden of proof shifts from the claimant tothe presumed confiscator of the property or to the objecting party.512. IndemnificationThe law supersedes a previous law that governed an administrativeprocess entitling victims to submit applications to receive compensationfor damages. 52 The law is intended to be more comprehensive than theprevious laW5 3 and allows, among other things, for victims to receive"one-time payments of up to 40 monthly minimum-wage salaries, whichnext year will add up to the equivalent of $11,900."543. RehabilitationThe law establishes a new government program55 to assist victims whosuffered physical and psychological harm as a result of the victimiza-tion.56 The main services offered through the program include psychiat-ric and counseling services for individuals, families, and communities. 57Because the program adopts an interdisciplinary approach to rehabilita-tion, victims are also entitled to support from social workers, physicians,nurses, and other professionals as the case may require.58 Victims do nothave to pay to use the program's services, and victims may also receivemedications at no cost.594. SatisfactionThe satisfaction remedies are government acts that seek to improvevictims' quality of life and diminish the victims' pain.6 0 Some of the satis-faction remedies include: public recognition of the person as a victimbefore the community and perpetrator; the granting of awards to victims;the public dissemination of the facts related to the victimization, providedthat the dissemination will not place the victim in danger; the search oflost victims; the identification of cadavers; and the investigation, judg-49. See Victims and Land Restitution Law, art. 77 (Colom.).50. Id. art. 79.51. Id. art. 78.52. Id. art. 132, $ 1.53. Colombia Entrega Indemnizaciones por USD 84 Millones a Victimas de Conflicto[Colombia Gives Compensation of 84 Million U.S. Dollars to Victims of Conflict],AFP, Aug. 17, 2011, http://www.colombiaenaccion.gov.co/victimas/?p=3300.54. Associated Press, supra note 1; see Victims and Land Restitution Law, art. 132(Colom.).55. Victims and Land Restitution Law, art. 137 (Colom.)56. See generally id. arts. 135-38.57. Id. art. 137.58. Id.59. Id.60. Id. art. 139.2012] 101102 LAW AND BUSINESS REVIEW OF THE AMERICAS [Vol. 18ment, and sanction of perpetrators. 61 Victims are exempt from militaryservice for a period of five years after the law is enacted, or for a periodof five years after the victimization occurred. 62The law establishes April ninth of each year as a national holiday63 tohonor victims and remember the circumstances leading to their victimiza-tion.64 The law also creates a memorial center to collect documentation,oral testimonies, and any other material related to the violations.6 5 Infor-mation collected for the memorial center will be available to the publicthrough the center's museum and education functions. 66C. OTHER PROVISIONSVictims have priority access to government funded educational andtechnical training programs. 67 The law gives the government power tocreate programs to generate jobs for victims. 6 8 Because Colombia's con-flict is ongoing, the law allows victims to recover through 2021.69 Victimsneither have to pay for nor have an attorney to enforce their rights underthe law.70 Victims residing outside of Colombia can recover under thelaw by filing an application upon returning to Colombia.7 Persons whofraudulently obtain victim status will be subject to five to eight years inprison.72 Similarly, government employees who give a person victim sta-tus with knowledge that the person is claiming the status fraudulently willalso be subject to five to eight years in prison.73IV. THE GOVERNMENT'S EXPECTATIONSThe government expects to pay more than $26 billion dollars in com-pensation to victims during the next ten years. 74 For 2012, the govern-ment expects to pay about $3.2 billion in compensation and benefits toapproximately 130,000 victims. 75 With regard to land restitution claims,the government predicts judges will decide about 2,000 land restitutionclaims in 2012.76 The goal is for judges to decide about 80,000 land resti-61. Id.62. Id. art. 140.63. Dia Nacional de La Memoria y Solidaridad con las Victimas [National Day ofMemory and Solidarity with the Victims]. Id. art. 142.64. Victims and Land Restitution Law, art. 142 (Colom.).65. Id. art. 147.66. Id.67. Id. art. 130.68. Id.69. Wyss, supra note 2.70. The ABCs of the Victims and Land Restitution Law, supra note 33, at 2.71. Id.72. Victims and Land Restitution Law, art. 199, (Colom.).73. Id.74. Associated Press, supra note 1.75. Id.76. Colombia Ya Tiene Ley de Victimas [Colombia Already Has a Victim Law], EiMEDITERRANEO DE CORDOBA, Dec. 26, 2011, http://www.colombiaenaccion.gov.co/victimas/?p=3845.COLOMBIA'S VICTIMStution claims by the end of the Santos administration.77 By 2014, the gov-ernment hopes to return 4.9 million acres of stolen property to theirrightful owners.78 Santos's ultimate expectation is that "paying repara-tions to victims of the ongoing conflict will help create a path towardeventual peace."79 Santos predicts the conflict will end within a fewyears.8077. Id.78. Associated Press, supra note 1.79. Molinski, supra note 3.80. Id.2012]1 103104 LAW AND BUSINESS REVIEW OF THE AMERICAS [Vol. 18

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Colombia\u27s Historic Victims and Land Restriction Law

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