Land Restitution as Transitional Justice in Colombia and Germany

Björnstjern Baade

Freie Universität Berlin

Editors’ note: as stated in our mission statement, the IACL-AIDC Blog aims at engaging in selected collaborations with global leaders in the field of constitutional law and foster new partnerships. As part of this strategy, the IACL-AIDC has entered a partnership with the journal World Comparative Law / VRÜ, whereby WCL/VRÜ editors will select one article from each of the journal’s quarterly editions to be converted into a Blog post. Today, we are pleased to publish the following post by Björnstjern Baade. The full article has been published in VRÜ, Vol. 54, No. 1 (2021).

During the last century, Colombia and Germany experienced conflicts that had a deep impact on them and deprived millions of their land. Germany had to face the issue of land restitution after the Second World War (see inter alia Law No. 59 of the Military Government of Germany, US Area of Control) and after the Cold War (see inter alia the Act for the Settlement of Unresolved Property Issues). Colombia had to face it in the wake of its long internal armed conflict. Comparing the German restitution regimes with Colombian Law 1448 of 2011, the Victims and Land Restitution Law (Ley de Víctimas y Restitución de Tierras), shows that such legal regimes need to be context-sensitive. While the Colombian and German restitution regimes both sought to effectively provide individual justice and used similar legal techniques to that end, they also excluded certain claims from restitution. These exclusions were in both countries ultimately approved by constitutional court decisions which recognized that restitution may not always be possible to the fullest extent. Individual justice as the primary aim of restitution can come into conflict with other individual interests and peace-related policy aims in a way that might not be easily resolved. From the way in which Germany and Colombia dealt with these difficulties, insights can be gained for other restitution regimes which might face comparable issues. 

Effective Restitution for Victims, But Not for All 

In Germany, restitution regimes were enacted twice. The first time, property that had been dispossessed, among others, for reasons of race or for opposing national socialism was restituted after World War II ended in 1945. After the Reunification of East and West Germany in 1990, property was also restituted that had been dispossessed for the socialist economic order of the German Democratic Republic (GDR).  

In 2011, Colombia passed the Victims and Land Restitution Law, even before the end of a decades-long internal armed conflict between the state and leftwing armed groups, particularly during the conflict with the Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC or FARC-EP), in which rightwing paramilitary groups had also intervened. Several million people were displaced during this conflict; many of them had been dispossessed of their land over the years by various actors. 

In both countries, restitution regimes sought effective post-conflict land restitution. For example, the restitution regimes significantly lightened the burden of proof for victims. However, certain groups of victims were denied restitution. In Germany, property that was dispossessed between 1945 and 1949, during the Soviet occupation, was not restituted; in Colombia restitution of property cannot be claimed if the land was dispossessed before 1991. The German and Colombian constitutional courts, arguing in a strikingly similar fashion, gave a considerable margin of appreciation in this regard to the respective legislative bodies, as they were faced with various constraints that prevented full and comprehensive compensation for all victims. 

Economic and Social Policy Aims of Restitution 

While similar in their general approach to restitution and concerning the fact that groups of victims were excluded by temporal limitations, the restitution regimes of Colombia and Germany also show marked differences. These differences are owed to the different challenges that had to be met at the time of restitution and hence are owed to the different functions that restitution of land is supposed to serve in the resolution of a conflict.   

In addition to the individual justice that restitution was meant to do to victims, the restitution regimes also pursued further policy objectives that were meant to contribute to a sustainable conflict resolution. The manner in which land was distributed among the population, and the way in which it has been used, have – it is generally agreed – played a major part in the development of the Colombian armed conflict. Therefore, in Colombia’s case, land restitution can be understood as part of a strategy to address in a sustainable manner the economic causes of the conflict. Financial compensation is available only exceptionally to victims, even if the person in question prefers it, providing an incentive to make use of one’s right to return, which is complemented by further safeguards.  

In Germany, economic aims were rather pursued through exceptions from the principle of effective restitution after Reunification. Land that served public purposes was exempt from restitution and, gradually, investments in the economy of East Germany were prioritized over restitution. 

Implementation and its Obstacles 

Germany’s restitution laws, after World War II and after Reunification, led to the restitution of land in a considerable number of cases. It remains nonetheless unclear – even retrospectively – whether the goals of individual justice and economic development were fully accomplished. Overall, many victims did not, or not to the fullest extent, profit from the restitution laws. Not only did many victims live abroad, they also did not have the resources for a cost and time-intensive administrative procedure in Germany. A tendency of Germany’s 1950s administration to downplay the historical context may have contributed to it. Restitution after the Reunification of East and West Germany led to various inequalities and hardships. Those who had been dispossessed during the Soviet occupation, and those who were refused restitution for public interest reasons, only received a financial compensation below market value. At least one empirical study showed that the restitution regime was not considered to be particularly just by many citizens. It was seen as facilitating a transfer of property to West Germany or perceived as a lottery that ultimately did not serve individual justice.  

Concerning the Colombian Law 1448, only some tentative observations can be made since the process of restitution is still on-going and the observations are made in a comparative manner from far away. The Colombian Victims and Restitution Law is often deemed to be a success and potentially a model for other societies in transition after a conflict. But, at least to some degree, the Law falls short of its potential: even though 300,000 hectares of land had been restituted until 2018, only about 100,000 of the estimated 360,000 victims entitled to restitution had filed an application until August 2017. The security situation, which remains fragile, will be a major reason for this restraint by victims.  

The Limits of Justice 

The fact that both, Colombia’s and Germany’s restitution regimes, were criticized by some as inconsistent, inefficient, and unjust may also show that such problems need not pose an insurmountable obstacle for sustainable conflict resolution in the long run. After all, societies must find a way, even after existential conflicts, to undo past injustice as far as possible; without, however, losing sight of the future. That individual justice may not be available to the fullest extent is a sobering insight, which the German Federal Constitutional Court once expressed as follows for Germany: 

“The consequences of the Second World War, a period of rule under [Soviet] occupation and a post-war dictatorship [in the GDR] must be borne by the Germans as a community of fate [Schicksalsgemeinschaft] and also, within particular limits, as the individual experience of injustice, without it being possible in every case to obtain adequate compensation, to say nothing of restitution in kind.” 

The many public and individual interests that confront each other after years of conflict probably cannot be reconciled in a way that completely realises all of these interests. Maybe, striking a balance between them occasionally is not even possible without serious uncertainties and inconsistencies. This, however, cannot excuse anyone from doing the humanly possible to strike a just balance. But the justice that is in fact realised should not be talked down or diminished because it is not absolute. 

Björnstjern Baade is Senior Research Fellow at Freie Universität Berlin. 

Suggested citation: Björnstjern Baade, ‘Land Restitution as Transitional Justice in Colombia and Germany’ IACL-AIDC Blog (24 June 2021) https://blog-iacl-aidc.org/2021-posts/22-6-24-land-restitution-as-transitional-justice-in-colombia-and-germany.