Territory as a Victim of Colombia’s War

In two recent resolutions, Colombia’s peace jurisdiction (Jurisdicción Especial para la Paz, SJP) resolved that the Katsa Su and the Cxhab Wala Kile, the territories of the indigenous Awá and Nasa peoples respectively, are victims of Colombia’s 50-year civil war. The two territories thus have the same rights that accrue to all accredited victims under the 2016 peace accord: rights to justice, truth, reparation and guarantees of non-repetition, as well as rights to an effective judicial process and to participate in each stage of the judicial process.

But what does it mean for a territory to be treated not as the stage on which a conflict unfolds, but as a victim of that conflict, with its own rights? While it is not yet clear how these resolutions will play out in the ongoing investigations, at the least they mean that the SJP is reconceiving restorative justice– a key feature of the Colombian peace accord – to include a broader set of relations. Following a recent line of eco-centric legal ideas percolating through Latin American justice systems, the measures will be victim-centered, but not necessarily human-centered.

The SJP and Colombia’s Post-War Context

The SJP forms part of a new generation of hybrid justice mechanisms that are based in domestic law but occupy a distinct place within the local justice system, and bear a close relation to international organizations and law. It is a complex, sui generis mix of court and commission of inquiry, and of restorative and retributive justice, with a strong emphasis on the former. Among its unique features, it is likely one of the most diverse courts in the world. Of the 51 SJP judges, over half are women; over 10% identify as indigenous and over 10% identify as Afro-descendent Colombians; and a majority hail from outside the capital city of Bogotá.

The SJP’s Chamber for Recognition of the Truth has the task of selecting and investigating the most emblematic cases or situations of the 50-year war. Thus far, it has selected seven cases to process, each encompassing many different individual crimes. The seven cases are structured according to two different logics – a sign at once of the SJP’s innovative spirit and divergent views. The first set focuses on patterns of crimes and/or victims that were particularly salient and characteristic of the Colombian conflict. One case, for example, investigates over 8000 kidnappings committed by the FARC. The second set of cases are organized not around a pattern of criminality but on place. They focus on the effects of the conflict on a few remote regions that were particularly ravaged by violence. The communities in these regions include indigenous peoples, afro-descendent peoples, and peasant communities. They also include, the SJP has found, non-humans that have been deeply affected by war.

The War and the Katsa Su

Case 02 was opened in July of 2018 by Judge Belkis Izquierdo, who was also the first indigenous woman of Colombia to become a judge. Its focus is on violations of human rights and of the laws of war committed by the FARC and the military between 1990 and 2016 in three municipalities in the Westernmost department of Nariño. The area is home to the Awá people, afro-descendent communities, and mestizo rural communities, as well as many endangered species: it is one of the world’s richest regions in biodiversity.

In their petition to be accredited as victims, the Awá also petitioned for the SJP to acknowledge and accredit their territory as a victim, considering “that it has identity and dignity that constitute it as a subject of rights (my translation).” The request tested the SJP’s commitment to pay heed to the way that the war affects ethnic groups in a “differential” manner, and to consider their unique experiences and worldviews in the process of restorative justice.

In acceding to the request, the SJP broke new ground. The SJP resolutions claim authority in a 2011 victim’s decree declaring that the indigenous peoples of Colombia have special ties to mother earth, and that territory is “a living integrity” that “suffers harm when violated or profaned by the internal armed conflict.” It holds that an approach that focuses on the particularity of the experience of indigenous victims thus means considering the territory as victim.

Formally speaking, the SJP resolution thus simply draws on the 2011 decree to incorporate this particular territory into the 2016 peace treaty regime as a victim with rights. But the order also works at the rhetorical level to acknowledge the importance of an intercultural dialogue between indigenous peoples and the non-indigenous majority, incorporating into Colombian legal practice indigenous peoples’ own unique relation with the ecosystems of which they form part. The resolution declares that “for some indigenous peoples, the experiences of the war are not defined only by the damage caused to people, as the consequences are written as well into the vision of beings that live … in the same natural environment” (my translation). Further, it reproduces the claims made by the Awá about the relationship they hold to their territory:

The notion of the human as the only being responsible for taking decisions about the future of the natural world is alien to the Awá cultural logic. … When we speak of the territory of the Awá indigenous peoples we refer – even without occidental society being fully aware of it – to the entirety of collective and individual fundamental rights that should be respected and fostered (my translation).

By reproducing the Awá’s own words, the resolution treats with respect ideas that do, indeed, appear foreign to western legal traditions. The resolution also notes that the interlegal conversation in Colombia is not a gift but the hard-won product of indigenous activism, thus casting the Awá not only as beneficiaries or victims, but as protagonists in creating their own relationship to the state.

In January 2020, the SJP issued a resolution granting victim status to a second territory, the Great Nasa Territory of the Cxhab Wala Kile. The resolution covers over 100,000 victims organized into 31 smaller governing units called resguardos and cabildos in another western province of Colombia. This second resolution both mirrors and cites to the first. But it also draws on the Nasa’s own traditions to articulate a relationship between the Nasa and the territory that is distinct.

Implications for Transitional Justice and International Law

Since the turn of the millennium, there has been a push to heighten environmental protection in the context of armed conflict. The Rome Statute includes environmental harm as a war crime, and the ICC prosecutor indicated in 2016 that the ICC potentially would investigate acts that cause environmental destruction as crime against humanity. The ILC, for its part, issued draft principles of “protection of the environment in relation to armed conflict” last August. Each of these instruments can be viewed as ecocentric in the sense that it values protection of the environment as an end in itself, not only as a type of direct harm to humans.

Colombia’s SPJ measures introduce a different method of articulating this value: by endowing the environment with a legal status, as a way to emphasize the relation of people to their land. How exactly the role of the victimized territories will play out is still uncertain. Arguably, the SJP could have issued measures focused on repairing the environment even without endowing the environment with victim’s rights, and, indeed, it will do so in other cases.

There is, however, a way in which the SJP measures already provide for a different kind of reparation. Through them, a state justice institution is bringing indigenous perspectives, or cosmovisiones, into law. It is not just that the SJP treats the Awá’s views as one of many valid views that a neutral state has to tolerate, but that it attempts to give them legal expression. The resolutions take seriously the ideas that nature is animate; that the Awá people live in society with non-humans, and that the rehabilitation of those social relations is part of transitional justice. As argued by anthropologist Daniel Ruiz Cerna, what is at stake are not only so-called multicultural rights, but the possibility of enriching our own legal understanding of the harms caused by war.