JEP’s Ruling: The Unresolved Dilemma of Armed Groups and Environmental Impact

[Carolina Trejos (LLM in Public International Law) is a consultant at the Special Jurisdiction of Peace, on macro-case 07 regarding child recruitment. She was a legal fellow at the Center for Reproductive Rights and interned at Women’s Link Worldwide and the Inter-America Commission of Human Rights.]

Introduction

On February 2023, the Special Jurisdiction of Peace (JEP), the transitional justice tribunal in Colombia, released Rule 01 of 2023. This groundbreaking decision criminalises environmental harms committed by the former guerrilla Fuerzas Armadas Revolucionarias de Colombia (FARC) as war crimes.  The judgment is a valuable opportunity for International Criminal Law (ICL) to start listening to the different affectations of crimes against nature and to evaluate the complex relationship of Non-State Armed Groups (NSAGs) with the environment. 

This post questions specific aspects of the decision, particularly emphasizing the need for a clear definition of environmental crimes. It argues that a distinction must be made between acts linked to armed conflict and those constituting ecocide as a separate offence from war crimes. The post concludes with a brief reflection on the characterization of NSAGs solely as “ecocides,” highlighting that in some regions, these groups have also played a crucial role in conserving resources for civilian populations.

Questionable Points of the JEP’s Decision 

In its decision, the JEP recognises that the FARC was the “State” in the zones of Cauca North and Valle del Cauca South at the time of the facts. It even acknowledges that they exercised dual power, on the one hand, military and, on the other hand, social, economic and political power over the civilian population. In the norm, they considered themselves a type of “green rebel governance”. However, the JEP argues that from a real-life approach, such guerrilla either actively supported or turned a blind eye to illegal mining and the unlawful expansion of the agricultural frontier (P. 489-502).

The judgment relates the main three activities as war crimes: First, illegal and legal mining activity with severe impacts on primary forests using backhoe loaders. The prosecutor mentioned that they recollected a tax to allow these activities in the zone. Secondly, the alteration of land for the cultivation of illicit drugs occurred without adherence to any environmental regulations. Finally, the attacks and invasion of the Páramo zones (protected areas in Colombia) with camp setups and the installation of antipersonnel mines caused significant disruption and environmental harm.

The Tribunal made no significant distinction among the three acts as war crimes during the judicial qualification. Instead, it lumps them into the “anti-green” package of conducts in Section G.2.37. The decision states that those activities were the economic motor of violence to the extent that capturing their revenues was a strategic objective of the guerrilla. However, the Tribunal does not clarify where the funds were directed or what specific purposes they served.

The Nexus Dilemma

The decision’s discussion of the nexus is vague. It consists of four paragraphs in the general part of the judgment without further specifying why the three conducts mentioned are related to the armed conflict (Para 781-784). As this decision pioneered criminalising crimes against nature, the nexus dilemma should have been evaluated thoroughly. 

War crimes are grave breaches of IHL and thus are conducts “closely related to the conflict”. The Elements of the Crime of the Rome Statute defines them as acts which “took place in the context of and were associated with an international armed conflict”. Associated suggests that the conduct is in relation to the conflict but not necessarily in the middle of the battlefield. As stated by the ICTY in the Kunarac case, “a violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place”. 

Some of the widely known elements to define the nexus requirement in Kunarac Appeals Judgment include that the perpetrator is a combatant, the victim is a noncombatant, and the fact that the victim is a member of the opposing party. However, a commonly overlooked element, as in the JEP’s decision, is that the conduct serves the ultimate goal of the military campaign. Rule 01 of 2023 does not specify how the recollection of taxes for legal and illegal mining or the high deforestation produced to cultivate illicit crops is connected to a series of military operations. 

It’s reasonable to state that military activities that the FARC-Ep took inside the Páramos are closely related to the conflict, and in fact, they can amount to war crimes if other criteria are met. The nexus requirement is fulfilled if the conducts are “directed towards the actual war-fighting capabilities of a party to the conflict” (P.340). Nevertheless, illegal mining and cultivation of illicit crops, as much damage as they caused, could only indirectly sustain the war effort. And yet, this is still conditional on the JEP’s ability to demonstrate that these activities were indeed financing military actions and were not aimed at supporting daily life activities in the controlled territory.

In that sense, the decision’s major drawback is accurately distinguishing between actions that cause significant environmental damage due to hostilities or military campaigns, those indirectly financing war efforts, and those resulting from everyday activities in guerrilla-controlled territories. In the second category, there is the majority of conduct that JEP described under the section on war crimes. 

Ecocide: Autonomous from War Crimes but Near to IEL

One of the JEP’s main strengths is the diversity of national and international sources it can use to define conduct related to the conflict. The Legislative Act 01 of 2017 provides that the Tribunal may base charges on the Criminal National Code, International Human Rights Law, IHL, and ICL. Unfortunately, there is no mention of International Environmental Law (IEL), but this does not imply that it cannot be utilised as an interpretive tool.

The JEP could have based its assessment on national legislation and used the category of “crimes against nature” in the Criminal Code instead of focusing only on the category of war crimes. In particular, former Article 328 of the Criminal Code, applicable at the time of the conduct, punishes the unlawful use of natural resources. Activities causing significant environmental damage to support the economic revenue of armed groups’ military operations may be prosecuted under these domestic rules.

Moreover, in 2022, it was introduced into national law the crime of Ecocide, which aims to punish any severe impact on the natural environment or the natural resources, disassociating it from war effort activities. The JEP cannot use this provision since it is outside the time of the facts under its jurisdiction. Nonetheless, it still has an important deterrence effect for armed groups currently operating in some zones. Most notably, the “seriousness” of the consequences stemming from the damage can be evaluated through international environmental frameworks, offering a clearer and more predictable application of the norm.

One key element that IEL can contribute to prosecuting NSAG for “anti-green” crimes is precisely evaluating their capabilities to avoid, predict, or mitigate environmental damage. As Sassoli pointed out, the aim is not to impose unrealistic rules on NSAGs or to punish them for failing to comply with impossible standards designed mainly for States. On the contrary, IEL instruments look into the abilities of the party to carry out a harm analysis rather than imposing a unique standard. Thus, to evaluate the wrongfulness of the NSAG’s conduct, it’s crucial to consider their limitations based on the adaptability provided by IEL. 

Beyond the Criminalisation towards Green Rebel Governance

Regarding the governance of NSAGs, there’s no definitive right or wrong answer concerning their environmental conduct. In other words, labelling all utilisation of natural resources in their territorial control as ecocide or internationally criminalised overshadows the substantial range of different legal and social responses. Therefore, it would have been worthwhile for the JEP to explore the relationship between FARC’s governance and the territory beyond criminalisation.

IHL does not have rules about regulating natural resources in non-international armed conflicts (NIACs). This is because States couldn’t conceive that NSAGs had access to the State’s resources or implemented government tasks in the territory under their control. Arguably, one may apply Article 4(2)(g) of Additional Protocol II about the prohibition of pillage to hold NSAGs responsible for exploiting conflict resources. Indeed, the International Court of Justice (ICJ) in the Armed Activities on the territory of Congo Judgment, took this approach about the exploitation of natural resources by the conflict’s parties. However, this provision was not designed to cover situations where such exploitation goes beyond the self-interest of NSAGs and for the benefit of the civilian population under their control.

From a purely policy perspective, regulating natural resources should contemplate their sustainable exploitation by NSAGs, mainly when intended to benefit the civilian population. In this regard, Dam-de Jong argues that not all exploitation of natural resources by NSAGs should be deemed illegal. She states, “an exception can be envisaged for small-scale natural resources exploitation that would enable armed groups to ensure the continuation of daily life in the territories under their control” (P.184). She supports her argument by relying on the Namibia Advisory Opinion by the ICJ, which considers the legality of acts conducted by illegal regimes based on the welfare of the civilian population under their control.

There is a range of contradictions regarding the environment and the activities of the former FARC. In the case under JEP’s jurisdiction, egregious acts against nature have highly impacted the population, especially indigenous communities who have a special link with the Páramo Territories. For example, military activities in specially protected areas, contamination of water sources, and widespread deforestation for illicit crops are activities that should undoubtedly be prosecuted as ecocide (or war crimes, if the required nexus is met). 

Nonetheless, these acts are not enough to define the relationship between the FARC-Ep and the exploitation of natural resources. According to the Crisis Group, in numerous regions, the FARC implemented explicit regulations accompanied by corresponding penalties for transgressions, aiming to curb deforestation and other detrimental practices. Some local FARC commanders also perceived a responsibility to safeguard the environment for the welfare of small-scale farmers (P.5). Moreover, they also took actions viewed as restorative, such as planting food crops in relation to coca cultivation. In those last cases, it may be worth exploring if the Namibia principle may be applicable, as there seems to be a benefit for the local population under their control.

Conclusion

The JEP’s first decision on criminalising environmental harm marks a significant step in connecting environmental law with ICL. However, the Courtroom should have clarified the nexus to war crimes better, distinguishing actions under rebel governance from those directly supporting military objectives. Additionally, future rulings should explore the NSAGs’ complex relationship with natural resources, as it varies between depletion in some areas and preservation in others for both civilian and military purposes. This nuanced exploration would provide a more comprehensive understanding of their environmental impact.