El proyecto de restitución de tierras en Colombia: ¿ilustración de la fuerza civilizadora de la hipocresía? - Núm. 12-2, Diciembre 2010 - Estudios Socio-Jurídicos - Libros y Revistas - VLEX 306653914

El proyecto de restitución de tierras en Colombia: ¿ilustración de la fuerza civilizadora de la hipocresía?

AutorMaria Paula Saffon
CargoColumbia University, New York, EEUU.
Páginas109-194

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Foreword

This article is not entirely topical, given that its main object of study, the "Victims' Bill", was tabled by the plenary of the Colombian House of Representatives over two years ago. The article was written before this last event took place, but it acknowledged the possibility of the Bill being tabled at the last minute. Even though the article focused in some detail on the specificities of the Bill and on the meaning of its eventual approval, it also attempted to make a more general argument about the state of the discus-sion on how to deal with the issue of land distribution in the country. This argument may still be relevant today, considering that only last week (end of September, 2010) the newly elected government of President Santos submitted to Congress a new bill on land restitution,1 which includes the same restitu-tion goals as the Victims' Bill and many of its procedural and substantive details.2 Therefore, the article might be useful in at least two senses. Firstly,

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the Victims' Bill and the technical and political discussions it prompted can be considered the most relevant antecedents of the current Bill. Hence, the analysis offered in this article might be helpful for understanding the process that led to the proposal of the Santos Bill, as well as its current content and the stakes it entails. Secondly, the main argument ofthe article is applicable to the current Bill and to the discussion it is likely to generate. Indeed, the new Bill illustrates in an even clearer way than the Victim's Bill the existence of a consensus among the main political actors concerning the convenience of dealing with the issue of land through the principle of restorative justice. Such a consensus is still puzzling since, as the article argues, there are strong factual and normative reasons for believing that the issue could perhaps be better dealt with through the principle of distributive justice. Moreover, the reasons identified in the article for believing that restitution is not the preferred method of any of the actors for dealing with the land issue still seem to hold. However, a caveat is important: while the arguments formulated concerning victims' and human rights organizations seem to hold almost entirely, those concerning the government referred specifically to the Uribe government, and some of them might not be applicable to the new admin-istration. Indeed, even though the Uribe and Santos governments share the same general political and economic orientation, and the groups that support them and believe their interests to be represented by them probably coincide to an important extent, differences in both style and orientation have started to emerge, even at this early stage ofthe Santos administration. This is particularly true concerning the land issue, which Santos has shown a clear resolve to deal with in quite a different way from his predecessor. Thus, he appointed as Minister of Agriculture a well-known technocrat who had strongly criticized the previous government's way of dealing with land issues, and who has publicly defended the crucial need of restituting dispossessed land to victims. Moreover, he proposed the Restitution Bill soon after taking office and defended it in a speech that underscored the government's com-mitment to land restitution and its decision to assign a remarkable amount of resources to achieving it. It remains to be seen whether these promises will

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be upheld throughout the legislative process, and especially whether they will translate into an equally serious commitment to an efficacious imple-mentation strategy. But these differences are significant enough to suspect that they are not merely the result of differences in style, and may reflect the fact that the new administration has weaker links with the most recalcitrant sectors of the landed elite.

It is entirely up to the reader to determine to what extent the arguments made regarding the Uribe government are applicable to the Santos administration. Hopefully, I will be able to address these extremely complex and uncertain questions in the near future. But my intuition is that the general argument will remain valid, since in my view the principle of restorative justice is not the first choice of any of the relevant political actors for dealing with the problem of land distribution in Colombia. Yet, being the second best alternative, it might serve the purpose of breaking the political deadlock that for a long time has hindered the possibility of any land reform in the country, and hence produce quite significant effects in terms reducing inequality in land distribution.

Introduction

In November 2008, something quite unexpected happened in Colom-bia's Congress: The Committee on Constitutional Affairs of the House of Representatives approved a bill that sought to grant a broad range of rights to the victims of the country's armed conflict and established mechanisms for their protection. The "Victims' Bill" -as it is commonly called in Colombia-included a new chapter on specific mechanisms aimed at guaranteeing the restitution of lands that were abandoned or transferred under pressure by victims as a consequence of crimes committed against them.3 This chapter was proposed by the Uribe government and was backed by its political coali-tion. Moreover, except for some minor points of disagreement, victims' and human rights organizations viewed the chapter as an important step forward in the protection of victims' rights and in guaranteeing the non-recurrence of atrocious crimes.

The Victims' Bill has yet to be discussed and voted on by the Plenary of the House of Representatives in order to become law. And there are several issues over which these actors have profound disagreements, which could prevent the Bill from passing in the final stage of the legislative debate. But whatever the outcome, the approval of the chapter on land restitution by the

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House Committee is interesting in itself because it seems to indicate the exis-tence of a consensus between political actors whose positions are ordinarily opposed, on an issue which has traditionally led to high levels of polariza-tion: the role of land reform in the settlement of Colombia's armed conflict. Indeed, both the government and victims' and human rights organizations seem to agree on the adequacy of the principle of restorative justice as the basis for solving the problem of land allocation and as a means for facilitat-ing the transition from war to peace. However, as we shall see, this apparent consensus seems to be at odds with the interests and/or the conceptions of justice advocated by these political actors regarding the issue of land.

This paradoxical situation could be interpreted to be the result of a sincere determination by all actors to transcend their particular interests and points of view, in order to commit to the most just solution to the problem of land dispossession in Colombia. However, an a priori admission of this explanation is unsatisfactory because, given that the actors' interests are identi-fiable, one should start by assuming that their motivations for agreeing on the principle of restorative justice are rational and self-interested, and one should only consider explanations based on altruistic motivations if the former prove to be inadequate or insufficient to account for their consensus.4 Furthermore, even if we assume that all concerned actors are acting on altruistic motives, this explanation would still be unsatisfactory because it is not clear that the objective of restituting land lost during the conflict is either feasible, or necessarily the best solution to the problem from the point of view of justice.

Therefore, the project of land restitution in Colombia offers the analyst a challenging case study for sorting out arguments of justice from other types of motivations. Indeed, it requires identifying the motivations that might lead certain political actors to appear to endorse a principle of justice that runs counter to their interests and that is different from the conception of justice they normally advocate. Moreover, the case offers an interesting op-portunity to inquire about the effects that the endorsement of said principle of justice might have, and particularly to determine whether its effects might be different from those intended by the actors. In this paper, I will engage in an exercise of the sort, with the purpose of offering a plausible explanation for the puzzling consensus that suddenly emerged in Colombia in relation to the principle of justice and even the specific mechanisms through which the

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land problem should be dealt with as a strategy for bringing about a transi-tion from war to peace.

To do so, in the first section of the paper I will offer a brief historical account of the problem of land reform and its relation to the armed conflict in Colombia. In the second part, I will explain the way in which the project of land restitution under analysis intends to contribute to the solution of the problem in the framework of the transitional justice process recently imple-mented in the country. In the third part, I will argue that the support given to that project both by the government and the victims'...

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