Territories as Victims in Colombia’s Transitional Justice Process
From the Series: Ecologies of War
The Special Jurisdiction for Peace (Jurisdicción Especial para la Paz or JEP) was established as the extrajudicial court system mandated to administer transitional justice and uncover the crimes committed between January 1, 1990, and December 1, 2016, when a peace accord was signed between Colombia’s national government and the longest running guerrilla organization in the Western hemisphere, FARC-EP (Fuerzas Armadas Revolucionarias de Colombia- Ejército del Pueblo). Currently, there are seven macro criminal cases open in the JEP selected based on the gravity, representativity, kind of crimes done to communities, and possibility of indictment of responsible parties. Three of these are territorial cases; they focus on “victimizing acts” committed by former FARC and members of the Armed Forces in specific territories considered epicenters of the armed conflict. These cases acknowledge that violence occurred against a human population within a particular timeframe located in a delimited space and place; they also emerged in response to Indigenous, Afro-descendent, and campesino communities who requested that their territories be recognized as direct and indirect victims of socio-environmental destruction and harm. By adjudicating these cases, the JEP has to grapple with multiple concepts of territory that are being operationalized to dialogue with institutionalized legal paradigms, which seek to both criminally sanction and provide restorative justice options. Such concepts include territory as a delineated area of collective property and quantity of land; a living being and life force; a spiritual guardian; a source of material sustenance; and a mode of knowing, being, governing, and belonging.
Colombia’s 2011 Law of Victims for Indigenous Communities first incorporated the notion of territory as victim (see Ruiz Serna 2017). In 2019, the Investigation and Accusation Unit of the JEP recognized the environment as a “silent victim” of the country’s armed conflict. Despite these advances in the acknowledgement of the environmental devastation and material and immaterial damages provoked by prolonged mass violence, difficulties in expanding relatively narrow categories of victimization in international law remain prevalent (Killean 2021). If the expectations and priorities of victims are meant to be at the center of every stage of transitional justice interventions, then important questions revolve around the empirical methodologies of investigation, legal constructs, and intercultural dialogues necessary to best reflect these concerns when justice for not only humans is at stake. The JEP’s recognition of certain territories as victims is an attempt to transform the dominant conventions of transitional justice frameworks by actively acknowledging that the impacts of prolonged mass violence extend beyond the conventional human-centric and secular parameters of liberal-based, international law.
Belkis Torres Izquierdo, an Indigenous Arahuaca judge and former coordinator of the Ethnic and Racial Commission of the JEP, explained that there are profound distinctions between Western concepts of nature that remain tethered to natural resource and ecosystem service frameworks and interethnic communities’ differential relations with and comprehensions of their territories. Ancestral and local modes of inhabiting, learning from, and honoring a living territory pose challenges to individuating constructs of reparations, responsibility, and harm, in addition to sacred-secular divisions, and the limits of physical and geographic representations of place. They require more of what Anja Kanngieser and Zoe Todd (2020) call a “kin study” approach to understanding relations to place rather than environmental case study method frequent in both the natural sciences and environmental law.
In macro criminal case 02, the JEP accredited thirty-two Indigenous Awá communities and Katsa su-gran territorio Awá as victims. Katsa su as a living being is distinct from Eperara Euja, the territory of Eperara Siapiadaara Indigenous communities also participating in the case. Relations with and concepts of territory for the eighteen consejos comunitarios (community councils) of Afro-descendent communities recognized as victims is understood and lived differently than for urban Afro-Colombian populations, many of whom were forcibly displaced from their collective lands during the war. In addition, the accredited campesino organization and groups have particular identifications and territorial-based modes of belonging. All of these territories exceed a quantitative reference to the 527,743 hectares of land prioritized by the JEP in the three municipalities that form part of the case, 78 percent of which legally belong to Indigenous and Afro-descendent communities, as well as the 105,205 human victims whom conventionally take precedence in international law.
Territories as victims must be situated in their partial connections between human organizations of victims and also in their ontological specificities. By this, I refer to the diverse realities that make up the everyday practices, spiritual understandings, and socio-ecological dynamics that compose life in a given place. The concept of territory does not refer to the same reality for each of these organizations, and this necessarily obliges the JEP to navigate conflicts between human victims that may emerge due to territorial disputes.
The JEP must work to recognize the particularities of Indigenous and Afrodescendent territorial relations and origins while also building on the variations of justice existing in and across the regions that have been prioritized in the macro cases. Within the constraints of any post–peace accord and transitional justice process, the acknowledgement of territories in their diverse material and immaterial dimensions as having suffered harm offers an opportunity for reparative processes between not only human populations and their degraded “environments” but also reconciliatory strategies between diverse rural and urban communities for whom the dynamics of war proliferated conflicts and territorial disputes. Processes of reconciliation are positioning territories as agentive in ways that are creating new legal mechanisms and potentially a number of locally determined avenues for dealing with these conflicts.
 The JEP also investigates and tries cases involving other nonmilitary state agents and third-party civilians, who appear voluntarily before the tribunal.
Kanngieser, Anja, and Zoe Todd. 2020. “From Environmental Case Study to Environmental Kin Study.” History and Theory 59(3): 385–93.
Killean, Rachel. 2021. “From Ecocide to Eco-Sensitivity: ‘Greening’ Reparations at the International Criminal Court.” International Journal of Human Rights 25(2): 323–47.
Ruiz Serna, Daniel. 2017. “El territorio como víctima: Ontología política y leyes de víctimas para comunidades indígenas y negras en Colombia.” Revista Colombiana de Antropología 53(2): 85–113.