Damage to nature and the environment in Colombia’s transitional justice system
From the perspective of international criminal law, particularly since the Rome Statute, environmental damage in armed conflicts is often understood as a secondary or collateral consequence of hostilities. Consequently, the pollution of rivers, the destruction of forests, the illegal exploitation of natural resources and the disruption of ecosystems are relegated to secondary importance compared to the harm caused directly to the human population.
This perspective, however, has proved insufficient to explain what occurred in numerous regions of Colombia during the armed conflict between the security forces and the now-defunct FARC-EP. Violence did not merely manifest itself through crimes against the civilian population; it also transformed the material, cultural, spiritual and ancestral conditions that enable the existence of entire communities. In this sense, the violence perpetrated against these peoples cannot be separated from the damage to the natural environment they inhabit and shape, as the two are intimately linked through their relationship with the territory, their ways of life and their systems of knowledge.
Colombian case law laid the foundations for this understanding through Judgment T-622 of 2016, by which the Constitutional Court recognised the River Atrato, its catchment area and its tributaries as subjects of rights to protection, conservation, maintenance and restoration, in the face of severe pollution caused, amongst other factors, by illegal mining and the use of mercury. The decision went beyond the legal recognition of the river by further identifying that its degradation jeopardised the physical and cultural survival of the indigenous and Afro-descendant communities that have built their social, economic and spiritual relationships around its waters.
Subsequently, through Judgment STC4360 of 2018, the Supreme Court of Justice recognised the Colombian Amazon as a subject of rights, incorporating an intergenerational perspective on deforestation and acknowledging its effects on present and future generations.
Although both rulings attribute rights to natural entities, they are based on different grounds: in the case of the River Atrato, the biocultural relationship with ethnic communities was central; in the Amazon, protection was linked in particular to the state’s obligations regarding climate change and the rights of future generations. This distinction made it possible to differentiate between the recognition of nature as a subject of rights and its recognition as a victim.
This understanding has taken on particular significance in Colombia’s transitional justice system and its legislative and jurisprudential developments, particularly through the decisions on victim accreditation by the Special Jurisdiction for Peace. This is because it has highlighted that violence against ethnic peoples cannot be understood solely in terms of the harm caused to their members, as it also affects their territories, ecosystems and spiritual, cultural and community relationships. This is demonstrated by Order SRVBIT 079 of 12 November 2019, which recognised the Katsa Su ancestral territory of the Awá people as a victim in Case 02; Order SRVBIT 094 of 10 June 2020, relating to the Eperara Euja territory of the Eperara Siapidaara people; and Order SRVR 226 of 12 June 2023, which recognised the River Cauca as a victim due to its pollution and use as a site for the disposal of bodies, amongst other aspects. Added to these precedents is Order SRVBIT-XCBM-NNHC-JJCP-ACHP-01 of 25 June 2024, issued in Case 09 by the Chamber for the Recognition of Truth, Responsibility and the Determination of Facts and Conduct, by which the ancestral territory of the Sierra Nevada de Gonawindua—delimited by the sacred sites of the Línea Negra and inhabited by the Wiwa, Kankuamo, Kogui and Arhuaco peoples—was recognised as a collective victim.
The significance of these decisions lies in their recognition of the destruction of the bonds between communities and their environment as part of the experience of victimisation. This does not mean that the rulings on recognition constitute definitive declarations of criminal liability, but rather that they allow these dimensions of harm to be incorporated into the judicial process.
The relationship between nature and ethnic peoples takes on a particular dimension in the worldview of the indigenous women of the Sierra Nevada, especially those of the Wiwa people. In this worldview, nature is not an external reality or one available for human exploitation, but rather a series of beings, spaces and spiritual forces that contribute to the balance of life. Mother Earth and certain elements of the territory are associated with the feminine; sacred feminine sites, for example, are linked to life cycles, sexuality, fertility, reproduction and women’s spiritual practices. This is not a simple comparison between women and nature, but a relationship of correspondence and belonging between the body and the territory. Consequently, the flooding, pollution, destruction or inaccessibility of these spaces can have repercussions on women’s bodies, their ancestral knowledge and their healing practices. This is the case with the Sagas Wiwa, female spiritual leaders who perform dances, chants and offerings in sacred places to help maintain the balance between the community and Mother Earth. It is by recognising this special bond that we understand that reparation must encompass the recovery of the ecosystem, the restoration of ancestral ties, the protection of sacred sites and the participation of women and traditional leaders in measures for territorial healing.
From this perspective, it is understood that environmental damage should not be regarded as a side effect of other forms of violence. The destruction of a territory can affect a community’s living conditions, facilitate its displacement, weaken its social structures and disrupt the relationships that underpin its collective identity. In certain circumstances, these impacts may be linked to elements of crimes such as forcible displacement, persecution or extermination, provided that the necessary requirements are met.
Nor does this mean, however, that any ecological damage constitutes a crime against humanity, or that the destruction of nature automatically amounts to the crime of genocide. Rather, it implies that legal analysis cannot isolate violence against people from the strategies that destroy the territorial conditions necessary for their survival.
This line of thinking also challenges models of reparation that reduce the restoration of nature to planting trees or carrying out general environmental activities in a symbolic manner, based on Western and anthropocentric conceptions. Intervening in a dry tropical forest, a river basin or an indigenous sacred site is not the same thing. Restoration must begin with the identification of the damage, its causes and the characteristics of the ecosystem, with the participation of those who know and inhabit the territory, bringing together scientific knowledge with ancestral and community-based knowledge.
Consideration must also be given to nature’s capacity for regeneration once human pressures and hostilities cease. The recovery of ecosystems following the displacement of communities or the reduction of armed conflict allows us to observe their own regenerative processes. The reappearance of species in territories to which it was possible to return following the Peace Agreement highlights the importance of ensuring conditions for scientific research, in order to assess the extent to which these recovery processes are self-managed or self-generated. However, this capacity does not replace the responsibility of those who caused the damage, nor does it negate the obligation to acknowledge, investigate and provide redress for the acts of violence committed.
In conclusion, the novelty of the Colombian process does not lie in the creation of a single category to address all forms of environmental damage, but rather in the progressive construction of a legal framework that links the integrity of ecosystems with human rights, ethnic and cultural diversity, community participation and reparation within the context of transitional justice. In this development, constitutional case law has recognised certain ecosystems as subjects of rights, whilst the regulatory framework for victims of ethnic origin has incorporated the possibility of recognising territory and nature as victims.
In this context, the JEP has created avenues for investigating the territorial and environmental impacts caused during the armed conflict, particularly those affecting the ancestral territories of ethnic communities. To this end, it has drawn upon various sources of law, including international human rights law, international humanitarian law, international case law, domestic criminal law and the customary law of indigenous peoples.
However, this process faces obstacles linked to the under-criminalisation of certain acts that cause serious environmental damage, reflected both in the inadequacies of legislative provisions and in the limited criminal prosecution of those responsible, particularly when it involves actors holding positions of economic, political or institutional power. Added to this is the low visibility of these impacts and their relationship to the conditions of existence, cultural reproduction and survival of ethnic peoples.
Consequently, the challenge facing this court is not limited to legally recognising nature and territories as victims; rather, it requires ensuring that such recognition does not remain merely declaratory and symbolic. Its effectiveness will depend on the institutional capacity to prevent further damage, to investigate and establish accountability, and to guarantee restorative measures that address both the ecological conditions of the ecosystems and the cultural and territorial specificities of the affected communities.
By Francisco Javier Díaz Pombo, Lawyer, with doctoral studies in Criminal Law and Human Rights at the National University of José C. Paz (Argentina). Contributor to FIBGAR’s Alerta LATAM Observatory.
BIBLIOGRAPHICAL REFERENCES
Constitutional Court of Colombia. Judgment T-622 of 2016 (Presiding Judge Jorge Iván Palacio Palacio). https://www.corteconstitucional.gov.co/relatoria/2016/t-622-16.htm
Supreme Court of Justice, Civil Cassation Chamber. Judgment STC4360-2018 (Case No. 11001-22-03-000-2018-00319-01, Presiding Judge Luis Armando Tolosa Villabona). https://cortesuprema.gov.co/corte/wp-content/uploads/2018/04/STC4360-2018-2018-00319-011.pdf
Special Jurisdiction for Peace, Chamber for the Recognition of Truth, Accountability and the Determination of Facts and Conduct. (12 November 2019). Order SRVBIT 079 of 2019. Case 02.
Special Jurisdiction for Peace, Chamber for the Recognition of Truth, Accountability and the Determination of Facts and Conduct. (10 June 2020). Order SRVBIT 094 of 2020. Case 02.
Special Jurisdiction for Peace, Chamber for the Recognition of Truth, Responsibility and the Determination of Facts and Conduct. (12 June 2023). Order SRVR 226 of 2023. Case 05.
Special Jurisdiction for Peace, Chamber for the Recognition of Truth, Accountability and the Determination of Facts and Conduct. (25 June 2024). Order SRVBIT-XCBM-NNHC-JJCP-ACHP-01. Case 09.
Colombia, Office of the President of the Republic. (9 December 2011). Decree-Law 4633 of 2011, enacting measures for assistance, care, comprehensive reparation and the restoration of territorial rights for victims belonging to indigenous peoples and communities. https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=44966
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