Restoring the Rule of Law in the Aftermath of Civil War

• In Event: Transitioning From Conflict to Peace: The Case of Colombia

Abstract

How is the rule of law enforced “on the ground”? In particular, why do public authorities comply with judicial orders protecting land property rights, while others do not? Although court involvement has become more common, judgments are not always a guarantee that the right will be protected. Government officials, often tasked with implementing measures to guarantee the protection of the rights, are not always in compliance. My theory aims to identify whether public officials have the capacity to comply with and enforce rulings, and once the capacity conditions are met, if they want to comply with the ruling or not.

My argument moves beyond traditional conceptions of noncompliance as the result of either a political choice or the undesirable consequence of weak state capacity. I argue that in order to explain variation in compliance with judicial decisions, it is necessary to jointly examine the interaction between the political will to enforce property rights and different levels of state capacity. Based on this interaction, I propose the following hypotheses. In the ideal type, full compliance, I expect that under high state capacity, politicians supporting the restitution process will have a high likelihood of compliance with judges' decisions. Conversely, under low state capacity, mayors who don't have political will be less likely to comply with judicial decisions restituting property right to victims. This last combination leads to a pattern of noncompliance. I expect that under high state capacity, low compliance will occur when politicians without political will, will lack the incentives to fully comply and will partly comply with judicial decisions as they are pressured by societal groups, namely, groups in favor of the victims. Finally, medium compliance will result when politicians, with political will, face constraints under low state capacity contexts that impede the full compliance with judicial decisions in favor of victims’ property rights.

This article studies the enforcement of property rights across space and time in Colombia (2011-2021). In 2011, the Colombian Government passed Law No. 1448 to make reparations to the victims. This Law creates Land Restitution Unit (LRU) and Restitution Land Courts to hear and resolve the claims of more than 5 million persons who were internally displaced during the war. This case illustrates how courts and judges are playing an increasingly active role in matters related to housing, property and land rights. In the case of Law 1448, restitution judges not only supersede any competing property claim to restituted land; they have also been active in leveraging sentences to order national and local authorities to coordinate broader development and infrastructure projects, such as schools, rural electrification, and roads. Both politicians and bureaucrats are responsible for enforcing these orders. Depending on the provisions of the judgment, many such agents can expedite or obstruct the order’s execution.

Colombia’s ongoing land restitution program creates an ideal opportunity to explore the main research questions, while avoiding some of the weaknesses of previous work. The localized nature of land restitution claims, which are enforced at the municipal level in both rural and urban areas, allows me to employ a subnational research design. During ten months of fieldwork over the past three years, I have collected all the qualitative and quantitative data necessary to perform the analysis for this project. By using computational text analysis, I built an original geo-tagged dataset that includes the entire universe of judicial decisions on land restitution claims (6,200 to date). In addition, I have gathered municipal-level data on all municipal- and province-level elections before and during the land restitution process, ideological classification of campaign contributions, and a municipal panel that includes several geographic and state capacity variables.

To estimate the causal effect of partisanship (proxy for political will) on enforcement, I use a regression discontinuity design in close mayoral elections. This empirical strategy allows me to exploit the fact that a mayor’s partisan affiliation changes discontinuously at the threshold between a party’s victory or loss. The observable implication should be that municipalities where a candidate in favor of the restitution program barely won should be, on average, indistinguishable from municipalities in which a candidate against the restitution program barely lost. Preliminary results provide evidence that a narrow left-wing victory leads to an additional 760 to 906 land restitution claims formally processed by the LRU, a sizable effect equivalent to almost one standard deviation. In the judicial phase, results also show that the election of a left-wing mayor leads to an increase of 196 to 281 restitution rulings, which is also significant as it is equivalent to more than one standard deviation.

Author

• ANA MARIA MONTOYA GARCIA, Duke University