LIFE FOR LAND: (UN)PROTECTED IN CONTEXTS OF LAND RESTITUTION AND TERRITORIAL RIGHTS* Executive Summary
The Consultoría para los Derechos Humanos y el Desplazamiento (CODHES) presents this Executive Summary as part of the situational analysis and recommendations on the protection policy produced in the framework of the project “Monitoring and advocacy on the human rights situation of groups and individuals involved in the land restitution and territorial rights policy in Bajo Cauca Antioqueño, southern Córdoba and northern Cauca”, funded throughout 2017 by the Human Rights Program of the United States Agency for International Development (USAID).
*This report is made possible by the generous support of the American people and the government of the United States, through the United States Agency for International Development (USAID). The contents are the sole responsibility of the authors and do not necessarily reflect the views of USAID or the United States government.
To June 2017, 2,554 land restitution rulings benefiting 71,509 people and six rulings on the restitution of territorial rights had been handed down. The Peace Agreement between the government of Colombia and the Revolutionary Armed Forces of Colombia (FARC-EP) and the negotiations to end the armed conflict with the ELN have brought us to a ceasefire scenario. However, the presence of armed paramilitary successor groups and the dynamics of the reconfiguration of armed forces in the regions have transformed the conflict and the armed violence. While the acts of war and armed confrontations have diminished by 92%, compared to 2011, attacks against the civilian population have increased. This is illustrated by the shift in the main causes of displacement: historically, mass displacements were caused by armed combat and confrontations; however, between 2016 and 2017, the main causes of mass displacement were threats and homicide of individuals who have some sort of leadership role in their communities1. Land restitution and the restitution of territorial rights amid the armed conflict in Colombia involves risks for the process and for those involved. Between 2011, when the restitution process began, and October 2017, more than 313 people directly involved in the land restitution and territorial rights policy have been attacked. This became much more visible after the signing of the Peace Agreement. Between 2011 and 2017, more than 588 people were attacked because of their community, social and political leadership role. Half of these attacks occurred in past three years. This summary was written at a time of two great tensions. The first is the result of the persistent increase in homicides and threats against social leaders. The second is caused by the attempts to 1
CODHES. Boletín CODHES Informa 91. La paradoja de construir la paz territorial en medio de una crisis humanitaria que no cesa. September, 2017. 2 CODHES. Las propuestas legislativas del gobierno nacional sobre reforma rural y restitución de tierras a la
modify the legislation related to Point 1 of the Peace Agreement, on Comprehensive Rural Reform, in an effort to protect large-scale land owners, agro-industry and productive models based solely on competitivity. Similarly, the government’s proposals to amend the land restitution components of Law 1448 of 2011 have been an attempt to limit the scope of restitutions, incorporating multiple regressive measures related to the rights of victims of displacement, land dispossession and forced abandonment2. THE STORY OF LAND CLAIMANTS WHO HAVE LOST THEIR LIVES IN COLOMBIA
Between 2011 and 2017, more than 300 people involved in the land restitution and territorial rights policy have been attacked by armed actors. The main forms of aggression were individual threats (131 people), collective threats (110)3, and homicide (90). Of these victims, 73% are men and 27% are women. Men are more likely to be victims of direct attacks, while women suffer indirect attacks, primarily harm to members of their families. The main perpetrators of these attacks against people involved in the land restitution and territorial rights process are paramilitary successor groups or post-demobilization paramilitary groups, who have been identified as the aggressors in 53% of the cases, followed by unidentified armed groups (41%) and guerrillas (2%). Regarding to the disaggregation of victims by sex, according to the records available, 60% were men and 40% women. Of all those who were attacked, 96% received collective threats, 2% received individual threats, and 2% were murdered. The records of the attacks also show the differentiated impact on the indigenous and Afroluz de los derechos de las víctimas en la implementación del Acuerdo. Advocacy paper N° 12. 2017. 3 These only include the number of people who could be identified in the collective threat. General collective threats against all people involved in land restitution processes are not counted as individual persons but rather as incidents.
descendent populations. Although an attack is individual, the impacts are frequently collective. In the recorded cases, 28% of the victims was Afrodescendent. Of these, 65% received individual threats, 35% received collective threats, and 2% were murdered; 5% were victims of attacks and 4% were wounded. A total of 25% of the attacks against members of indigenous communities occurred in the departments of Córdoba and Valle del Cauca, while 13% were individual attacks in Cauca, Chocó, and Nariño. Nearly 13% occurred in Caquetá and Risaralda. Indigenous and Afro-descendent peoples are systematically threatened and persecuted because of their leadership positions in these processes, causing multiple impacts on what the representatives of ethnic peoples have called “destruction of organizational processes or disarticulation of community organization.” There are two differences between the land restitution cases and the cases of restitution of territorial rights. First, that the risk is greater when the claim is being presented or when the demands are being defined. Second, land conflicts due to colonization of collective lands are escalating as a result of early state intervention through clearance processes of ethnic territories.
We have thus identified two issues that contribute to a radical modification of the protection policy: 1. Minimum conditions for implementation of the policy. These can be principles or guidelines with essential criteria that are required for the policy to work, regardless of the protection measures and pathways that are designed for this purpose. 2. Protection measures. Protection measures are the main topic of discussion in all meetings, because they are considered decontextualized and ineffective in situations of imminent risk. For this reason, some context-specific measures have been proposed. Not all measures can be applied generically because they would lose the effectiveness provided by the context. MINIMUM CONDITIONS FOR THE PUBLIC POLICY i.
Good faith. Acts of good faith by the government are essential, and the materialization of this good faith must be based on the recognition of the people who are at risk, of their social-cultural and spiritual contexts, as well as the promotion of a culture of good faith in public institutions in their interactions dealing with victims or at-risk people, allowing them to act without prejudice and without trivializing the situations.
ii.
Celerity and timeliness. Any mechanism to protect the life and integrity of an individual in contexts of armed conflict or armed violence in the process of reconfiguration, as in Colombia, must include a rapid response phase, from the assessment through to the selection of the measure. Flexible procedures are crucial in this context, in the understanding that the substantive right should always prevail over the procedural right. One month is too long for a presumably immediate response.
iii.
Trust. Rebuilding the legitimate trust in the state is crucial for the communities, and this entails an in-depth examination to identify the factors that contribute to the
RECOMMENDATIONS FOR MODIFICATION OF THE PROTECTION POLICY The formulation of these recommendations was based on a process of consultation with regional public institutions in Antioquia, Cauca, and Córdoba; individual consultations with people involved in the land restitution or territorial rights policy; as well as the participatory design of proposals undertaken in Bogotá and Santander de Quilichao during the two Intercultural Dialogues on Protection in the Context of Land Restitution and Territorial Rights. These recommendations seek to contribute to the formulation of a public policy that will respond, in a more timely and effective manner, to specific risk situations faced by people and communities, while optimizing the public resources allocated to this task.
lack of trust and to corruption. For example, vetting the staff of the institutions that should have access to information on persons at risk or victims of the armed conflict. iv.
Confidentiality. Confidentiality is based on rebuilding the legitimate trust in state institution. Thus, information leaks lead to an increase in risk and are the main obstacle to access to the state. This situation has permeated all institutions, making it very difficult to establish a common procedure for achieving trust that can be used across Colombia, given the dynamics of cooptation in the regions.
v.
Coordination. No one sole institution can take all the actions necessary to protect the life and integrity of an individual or a community. The challenge the country is facing is how to build a truly decentralized state that can coordinate both within and between sectors. However, this challenge cannot continue to cost lives. It is thus imperative to identify other experiences, successful coordination mechanisms, and be creative in our proposals for coordination methods. For example, intersector commissions are one mechanism, although their advantages and limitations, in practice, should be considered when this option is thought.
vi.
vii.
Effectiveness. Accountability of the state, and of the relevant institutions on its behalf, must be measured in terms of management, of course, but also, crucially, in terms of concrete results and impact on the effective enjoyment of human rights. If the risk assessment and protection measures are ineffective, the public policy must be modified. Human rights-based approach. It is important to understand that the state does not render services, per se, but rather that its purpose is to guarantee the effective enjoyment of rights and, as such, the identification of the rights at risk that should be protected and the rights that
should be respected – such as indigenous rights to autonomy. Guaranteeing that the protection measures do not infringe or violate other rights requires an accurate diagnosis of the human rights situation. For this reason, we focused on three rights: the right to AUTONOMY of ethnically differentiated peoples; the right to live in FREEDOM, i.e., that individual freedoms will not be affected or that the organizational process will not be ruptured as a result of the protection measure; and the right to FREEDOM OF MOVEMENT, in particular. This requires a training process within the institutions as well as adjustments to the tools designed to implement the policy. viii.
Territorial approach. The territorial approach is proposed in two dimensions. First, the understanding that many of the risk situations affect all inhabitants in the territory – understanding territory as a social-spatial scenario that can be rural or urban, ethnic or not, that intersects with the comprehensiveness of the diagnosis, and, thus, understand that this territory has specific dynamics that can contribute to mitigating the risk and, based on these dynamics, design the measures jointly with the community and not only with the person at greatest risk. And, second, understand that social-territorial relationships are also at risk and, therefore, any protection measure should at minimum guarantee that the risk to these social-territorial relationships will not increase.
ix.
Comprehensiveness. Comprehensiveness was also proposed in two dimensions. First, the comprehensive recognition of the risk, based a complete reading of the context in order to understand the scale of the situation beyond the specific threat. And, second, the comprehensive response, which means that the responsibility of the state ends with the effective enjoyment of rights, which can and should imply different types of measures for one same
case that respond comprehensively to the risk. x.
xi.
xii.
Effective participation. This is a fundamental principle in both the assessment and design of the Protection Plan or the measures that will be implemented, as well as in the evaluation of the effectiveness of the measures. Effective participation means that all logistical, communication and socialcultural means are used to guarantee that the people can understand the conversation, i.e., that they have sufficient information and means to provide feedback on the proposals and that their contributions are taken into account in the decisions that are made. Relevance. Relevance is a prerequisite for effectiveness and comprehensiveness, and we hope that the measures designed will respond directly to the vulnerabilities, capacities, and threats that make up the specific risks faced by each individual and community, and that they also correspond to the social and cultural constructions of the context of the protected persons. Differentiated Response. The differentiated approach in public policies has become a discursive category present in the assessment but that does not materialize in the concrete response. Thus, the response should be differentiated according to the context, the population, and the risk. Specific measures and not others should be applied in each category, and while some measures can contribute to the protection of all people, there should be differentiated components to guarantee the rights-based approach and the relevance and comprehensiveness of the response.
PROTECTION MEASURES An interesting result of these exercises was the understanding that what at-risk people expect, or what they believe would work better in their context, has nothing to do with the current
individual protection measures offered by state institutions. These measures can be divided into three groups: 1. Strengthening of autonomous processes The strengthening of autonomous processes is a two-way process. First, do not restrict the capacities of the ethnically-differentiated communities, but also understand that farmer and urban community relationships have support and response networks. It is crucial that, throughout this entire process, the communities are considered the primary material respondents in emergency situations, because this response capacity stems from daily life within the communities and the response capacities they have built from their own experiences. We propose the following measures and mechanisms to strengthen and guarantee the operation of the Cimarrona and Indigenous Guards: a) Training on human rights, international humanitarian law, ethnic-territorial rights, leadership and representativeness, and the structure of the Colombian state. b) Equipment: Radiotelephones, vests, flashlights, bastones or walking sticks, boots, camping supplies, tents, cameras and recorders, transportation, and remuneration. Please note that we are not proposing that they be given firearms. c) Direct coordination (liaison) mechanisms between the traditional authorities and the state institutions responsible for providing protection. In the case of farmers communities, we propose involving the communities in the process, making them part of the protective environment and creating solidarity with the person at risk. This will avoid the prejudice and fear associated with such localized state intervention in their territories. 2. Communication Media
We expect these measures to guarantee that the communities and the persons at risk can communicate with people outside their territories in emergency situations, to ask for help or inform about a specific risk situation. We propose the following structural measures for communities without electricity or with intermittent coverage, or without cell phone coverage: a. Electric power plants with alternative energy sources, such as solar panels or wind energy. b. Cell phone signal repeater antennas. These measures respond not only to a specific risk but also prevents other risk situations and, in passing, closes the service access gap in the country. We also propose the following communications tools: a. Radiotelephones b. Cell phones with WhatsApp In addition, in order to guarantee cell phone connection and in view of the limited resources in the communities, we propose that the telephone include minutes and a data plan or that digital kiosks be set up in the villages, where people can connect to the internet in the case of an emergency. 3. Transportation This category is most closely related to the protection measures currently offered in cases of individual threat or in cases of individual threats that have a collective impact. Access to transportation to leave the zone at any time is critical. However, armored cars are only considered necessary for public officials and in urban contexts. In rural areas, we propose using buses because they can travel anywhere in the regions and transport several people from the community at the same time. In addition, this means of transportation will not raise alarms in the other communities, as it is a common means of transportation. In individual cases, motorcycles can provide rapid transportation in emergency
situations. Armored cars have many restrictions, both transactional and in terms of places where they can or cannot enter. Finally, chalupas or small boats can be used in communities interconnected by rivers; understanding that this means of transportation is fundamental in a differentiated response. Consultoría para los Derechos Humanos y el Desplazamiento, CODHES Life for Land Executive Summary Marco Alberto Romero Silva Director Jorge Ernesto Durán Pinzón Deputy Director Land and Territorial Rights Area Ingrid Paola Hurtado Sánchez Coordinator Carlos Enrique Núñez Mendoza Edna Bibiana Ortiz Méndez Senior Researchers Ariel Rosebel Palacios Angulo Jennifer Gutiérrez Rivadeneira Analysts Johan Steven Tribaldos Serrano Olga Lucero Vargas Peña Juana Marcela Bernal Vargas Junior Researchers Camila Fernanda López Agámez Daniela Carolina Castillo Aguillón Research Assistants Francy Barbosa M. Edición Public Information Officer Claudia Ortiz Munar Revisión de Estilo