Environmental Justice at the JEP and Indigenous Worldviews: A Mismatch?

[Nina Bries Silva is a former human rights lawyer and PhD candidate in law at the European University Institute (EUI) focusing on the Colombian transitional justice process and indigenous ontologies.]

On March 8, 2023, in Bogotá, the Colombian Special Jurisdiction for Peace (JEP) held a press conference unveiling its indictment in the macro-case 05. It charged 10 former commanders of two regional structures of the FARC-EP (the Jacobo Arenas and Gabriel Galvis Mobile Columns) for having committed war crimes and crimes against humanity in the Cauca and Valle the Cauca regions, home of the Nasa indigenous people. This marked the first time the JEP charged for environmental harms, expressly stating that “transitional justice is also environmental justice”.

Right after the press conference, the two main Nasa indigenous organisations of the Cauca (ACIN, CRIC) convened an internal emergency meeting with Nasa indigenous authorities to discuss this decision. During the meeting, Nasa representatives heavily criticized the decision for having discarded their cosmovision and own laws (derecho proprio) and reduced Uma Kiwe, their Mother Earth, to natural resources. For the Nasa people, territory is not simply a delimited geographic area, it is also Uma Kiwe, their mother Earth, who enables the life of all human and natural beings.

As ground-breaking the indictment of the JEP may appear, it failed to properly engage with indigenous worldviews and to implement the ethnic focus prescribed by the Peace Agreement. It also seems inconsistent with a previous resolution of the JEP in the same case, recognizing the Nasa territory (Cxab wala Kiwe) as a victim of the armed conflict. 

This indictment of the JEP does, however, offer important reflections in terms of ‘greening’ international criminal law while respecting indigenous worldviews. 

Macro-Case 05: The JEP and the Nasa

After 56 years of internal armed conflict, Colombia undertook a transitional justice process and established the JEP as the court in charge of resolving cases related to the Colombian armed conflict. While bound to international law, the JEP must also adopt an ethnic differential focus, adapting its actions to the particularities of the ethnic groups affected by the conflict, among them the Nasa. The Nasa people (formerly known as the Páez) encompasses several indigenous communities and roughly 200,000 individuals. They reside mainly in the department of Cauca, one of the regions hardest affected by the decades-long national armed conflict.

In November 2018, the JEP Chamber for Acknowledgement, as the organ in charge of selecting and prioritizing cases or situations of the armed conflict that fall within its jurisdiction, decided to open the so-called macro-case 05. This macro-case 05 investigates and prosecutes various gross international humanitarian law and human rights violations (such as forced displacement, enforced disappearance, sexual violence, murder, and the use of anti-personnel mines) committed between January 1993 and December 2016, in the territory of the Nasa people, the Çxhab Wala Kiwe. This area is comprised of 17 municipalities located in the north of the Department of Cauca and south of the Department of Valle del Cauca in southwest Colombia. Because of its geostrategic and geoeconomic position, the Cauca region is among the hardest affected areas by the conflict and remains an active conflict zone.

In January 2020, applying an ethnic focus, the JEP recognised the ‘Great Nasa Territory of the Cxhab Wala Kile’ as a victim of the armed conflict, “based on the recognition of the inseparability of the territory and the indigenous people who inhabit it”. By doing so, the JEP embodied Nasa worldviews which conceive the world as a series of relationships where nature and human are interconnected and interdependent. The Nasa construct their identity in relation with nature and believe that “a Nasa without their territory is nothing” (“El Nasa sin tierra no es nada”).

This March 2023, the JEP issued its decision regarding the imputation of conduct and responsibility in the macro-case 05. Among other crimes, the JEP charged 10 former commanders of two regional structures of the FARC-EP (the Jacobo Arenas and Gabriel Galvis Mobile Columns) that were operating in the Cauca and Valle de Cauca region for environmental destruction. 

The indictment has been heavily criticized by Nasa indigenous people for promoting a western conception of nature, discarding their specific understandings and experience of the conflict. 

Defining Environment and Environmental Harm

After carefully reviewing the conduct of the two former regional structures of the FARC, the JEP concluded that in their pursuit to achieve a territorial and social control of the region, they “ended up generating serious harm to the environment”. The JEP focuses its analysis on two activities of the FARC: illegal mining and illicit cultivation of coca, which according to Judge Sanchez constituted the two main financing sources of the FARC and “summarize the impact of war on nature.”

When it comes to outlying its understanding of environment and environmental harms, the JEP carefully balances its words to only refer to ‘the environment’ (medio ambiente) and to not mention Uma Kiwe or Mother Earth. It states that the environment should be understood as broad concept that is also “represented by living or sentient beings, witnessed an attack against its integrity driven by armed actors’ greed”. However, such an apparently broad definition fails to take into consideration the cultural and spiritual meaning that Nasa indigenous people give to the environment. For the Nasa people, the environment encompasses not only tangible living beings as suggested by the JEP but also spiritual entities like mountain spirits (or duendes).

In the same vein, the indictment focuses on a series of serious harm to the environment. It puts a particular emphasis on the damages to páramos (alpine tundras), an extremely rich high mountain ecosystem, which are considered by indigenous people as sacred places. While it recognises the importance of those places for the Nasa people, it frames the damages exclusively in terms of environmental degradation. 

Indigenous ontologies, including the Nasa community, are relational and not eco-centric sensu stricto. Therefore, harms should thus not be conceived independently of their relationship with humans, in purely ecocentric terms. Harm to natural elements goes deeper than environmental degradation, also affecting the spiritual world and the communities. For the Nasa, the destruction of a sacred place such as a lagoon or a páramo also leads to the disappearance of ancestral spirits and alters the harmonious relationship with nature. In her concurring opinion, Belkis Izquierdo, one of the indigenous judges at the JEP, highlights this point in her concurring opinion: “More than understanding the damage committed against landscapes or natural resources, it is necessary to have a relational approach that considers the rupture of socio-ecological relations at multiple scales and temporalities”.

In sum, in its indictment, the JEP is stepping back from its previous acknowledgement of territory as a victim. It promotes an ecocentric understanding of nature and environmental harms, restraining its engagement with indigenous worldviews and commitment to apply an ethnic focus. This is also perceptible in the legal reasoning of the indictment and its application of international criminal law.

Environmental Destruction as a War Crime 

To equate environmental destruction to an international war crime, the JEP relies on a particular reading of the Rome Statute, with which not all the judges agree.  In the legal reasoning of the case, judge Sanchez essentially argues that the environmental destruction carried out by the armed groups constitutes a war crime as its fits within the international crime of destroying or seizing the property of an adversary (see article 8(2)(e)(xii) of the Rome Statute). This legal argumentation assimilates nature to a civilian property that can be seized, excluding Nasa understanding of territory as living being. 

While subscribing to the overall result of the decision to prosecute environmental crimes, judge Belkis Izquierdo suggests another legal justification more suitable to indigenous worldviews. She maintains that territory has per se a spiritual and cultural value for indigenous people. Consequently, she argues that the actions of the former FARC against natural resources and sacred place constitute the war crime of destruction of cultural property or places of worship (see article 8(2)(e)(iv) of the Rome Statute)

This legal argumentation, if followed in futures cases, could send international criminal law in a new direction that better reflects indigenous experience of armed conflict and understanding of the environment.  Judge Belkis Izquierdo is currently overseeing another case of the JEP which deals with crimes committed against the Awá indigenous people and their territory. She presented last October her proposed indictment to the Chambre but it has not yet been approved by the entirety of the judges for similar discussions regarding the applicability of international criminal law. An eye must thus be kept open on future legal developments at the JEP and their broader implications for the fields of transitional justice and international criminal law.