Addressing environmental damages in contexts of armed conflict through transitional justice in Colombia

Abstract

It is unquestionable that Colombian armed conflicts have had adverse impacts on the natural environment in the country. Current transitional justice mechanisms offer an opportunity to recognize harm and responsibility, establish restorative sanctions and reparations and adopt public policies for the recovery of ecosystems and prevention of further damage. This article focuses on how transitional justice mechanisms, especially the Special Jurisdiction for Peace, have addressed the effects of armed conflicts on the natural environment. Specifically, it analyzes the criminal characterization of environmental degradation, the question of whether amnesties and pardons could be granted for such conducts, precautionary measures and the implementation of restorative sanctions related to the environment. It presents some challenges regarding the preservation of the natural environment due to the persistence of armed conflicts after the 2016 Peace Accord between the government and the FARC-EP guerrillas, and the sustainability of reparations for victims and prevention of further damage. It also sustains that the developments of current transitional justice mechanisms may have significant influence on ongoing and future peace negotiations with other armed groups and the processes for establishing responsibility for environmental damages.

Introduction: Colombia's armed conflicts and their impacts on the natural environment

Colombia is one of the most ecologically diverse countries in the world.¹ It has the second-greatest variety of birds, the largest moorland and river on Earth, the Amazon rainforest and thousands of species of fauna and flora.² It is also the most biodiverse country per square kilometre, with 311 types of continental and marine ecosystems and 53% of the territory covered by diverse types of forests.³

According to the Ministry of Environment, Colombia has 31 million hectares of environmentally protected land, which amounts to 15% of its entire territory.⁴ Amid this ecological richness, the Constitutional Court has held that Colombia has an “ecological constitution” which demands the defence of a healthy environment. The Court holds that this has three dimensions: (1) it is a guiding principle of the legal order because it is the State's obligation to protect the nation's natural resources; (2) it is a constitutional right of all persons, enforceable through judicial means; and (3) it imposes specific obligations on public authorities and private individuals or institutions.⁵ Similarly, national legislation protects the environment as a collective right,⁶ criminalizes illegal mining, ecocide and contamination of rivers, and aggravates sentences when such conducts affect endangered species.⁷ In contexts of armed conflict, criminal law forbids the destruction and appropriation of protected objects, attacks against installations containing dangerous forces, attacks against objects indispensable to the survival of the population, devastation, and destruction of natural environment.⁸ Moreover, higher and lower courts have recognized that the natural environment is a subject entitled to rights.⁹

However, these provisions have not been effective in preventing environmental damage as a result of armed conflicts. Over the last sixty years, armed hostilities in rural areas have led to the destruction of forests, farmlands and other natural habitats. At the same time, in some areas of high biodiversity and ecological importance, the presence of armed groups has contributed to environmental preservation by preventing the settlement of populations and development projects.¹⁰ Despite this, the expansion of coca cultivation, aerial fumigation of coca crops with glyphosate,¹¹ legal and illegal mining and other activities have deteriorated the natural environment. These acts have caused loss of biodiversity, felling of trees, forest fires, contamination of water resources and deforestation.¹² Armed groups have extracted minerals, causing significant pollution to water, flora and fauna. These adverse impacts have also been caused by private actors or companies who have been extorted or taxed by armed groups.¹³ The use of landmines and explosive devices has also had adverse effects on the environment, as such devices often remain in the ground long after the end of hostilities, threatening humans and wildlife.¹⁴ Also, armed groups have displaced populations and, directly or in collusion with economic actors, have transformed traditional use of land by cultivation of teak and African oil palm and extensive cattle industry.¹⁵ These activities have caused deforestation and overuse and contamination of water sources.¹⁶

In addition, activities by banana, rice and sugar producers accused of financing paramilitary groups¹⁷ have deteriorated the soil.¹⁸ This has led to the extension of agricultural frontiers and the incorporation of territories into economic market dynamics, where alliances and transactions have been led by illegal actors, companies and political actors.¹⁹ The Colombian Constitutional Court has remarked that natural resources could be one of the causes of armed conflict and its perpetuation, due to tensions arising from their scarcity, unequal distribution, and exploitation for the financing of armed groups.²⁰ The Court has also indicated that over the last three decades, out of 5 million deforested hectares, 3 million are located around towns most affected by armed conflicts.²¹

In past experiences and other locations, the negative and long-term environmental impacts of armed conflict have not been properly addressed or prevented and transitional justice has paid insufficient attention to the intersections between armed conflict and environmental degradation.²² In this context, transitional justice mechanisms in Colombia gain importance as they could incentivize recognition of environmental damage and provide a scenario for restoration, prevention of recurrence and adequate provision of reparations to victims.

The purpose of this article is to analyze how transitional justice mechanisms in Colombia, especially the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP), have addressed the effects of armed conflict on the natural environment. The article is divided into five sections. The first section presents the transitional mechanisms implemented after the 2016 Peace Accord and its approaches towards environmental damage, focusing on some key decisions of the JEP. The second section analyses how the JEP has characterized the behaviour of armed groups against the environment, and whether amnesties and pardons are feasible. The third section focuses on interim measures issued by the JEP, and their relationship with the environment. The fourth section shows how reparation proposals by perpetrators and victims and restorative sanctions integrate environmental concerns, and finally, the fifth section presents some challenges to effectively restoring nature and preventing further damages.

Throughout the article, the authors refer to the concepts of “environment” and “natural environment” interchangeably. According to the Colombian Constitutional Court, the environment includes water (and its natural sources such as oceans, rivers, lagoons, wetlands and swamps), forests, soil, food sources, animal species and their ecosystems, and the atmosphere.²³ Additionally, the term “victims” is used mainly with regard to individuals, groups or communities in their litigation roles or as beneficiaries of reparations. However, as will be discussed below, the notion of “victim” is also used when alluding to the environment as it has been recognized by transitional justice in Colombia.²⁴

Transitional justice and the natural environment: Institutional background and framework

In 2011, after the Colombian government's recognition of the existence of an armed conflict,²⁵ the Congress approved the Victims and Land Restitution Law that provided for reparations of collective rights to victims of armed conflicts.²⁶ This initiative reinforced and complemented civil, criminal and administrative mechanisms for obtaining redress. Subsequent legislation incorporated reparations for indigenous, tribal peoples and ethnic communities and defined territorial damage as damage that alters equilibrium, harmony, health and food sovereignty.²⁷

In 2013, the National Center for Historical Memory (Centro Nacional de Memoria Histórica, CNMH)²⁸ published a report on the effects of armed conflict on the natural environment. It highlighted that armed groups had invaded land and natural reservations, shifting their use, and had caused indiscriminate felling of trees, mineral extraction, and alteration of riverbeds. The report also pointed out that armed groups had forced communities to displace and abandon their territories, and had launched attacks against oil infrastructure.²⁹ The CNMH affirmed that these actions produced soil erosion and contamination of water, putting fauna and flora at risk of extinction. Besides these damages, the report also recognized moral and socio-cultural repercussions such as the disruption or destruction of community bonds, relationships and identities closely linked with nature.³⁰

The 2016 Peace Accord or Final Agreement³¹ signed by the Colombian government and the leftist guerrillas of the Revolutionary Armed Forces of Colombia – People's Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) acknowledged that transitioning to peace required respect for nature, its renewable and non-renewable resources, and biodiversity.³² In the chapter on access and use of land, the Final Agreement included the settlement and resettlement of communities, demarcation and closure of agricultural frontiers, protection of areas of special environmental interest, recovery of forests, strengthening of food production, and protection of intangible cultural heritage.³³ It also established the need to adopt policies for the eradication and substitution of illicit crops, the environmental recovery of such areas³⁴ and the promotion, respect and guarantee of environmental rights.³⁵ The Final Agreement provided for reparations for communities and territories in compliance with restorative justice. According to this paradigm, transitional justice should prioritize the restoration of damages, social inclusion, reparations for victims considering their needs and dignity, and the guaranteeing of victims’ rights to justice, truth and non-recurrence of violations.³⁶

The Final Agreement created the Comprehensive System of Truth, Justice, Reparation and Non-Repetition, which is made up of three institutions:³⁷ (1) the Commission for the Clarification of Truth, Coexistence and Non-Repetition (Truth Commission) as a truth-telling extrajudicial mechanism; (2) the Special Unit for the Search of Persons Deemed as Missing in the Context of and Due to the Armed Conflict, which has an extrajudicial and humanitarian nature; and (3) the JEP as a judicial body for the investigation, judgment and punishment of genocide, war crimes and crimes against humanity. These institutions are complemented by the government's Unit for the Attention and Reparation of Victims, created in 2011 with the purpose of coordinating public institutions in the implementation of the policy for attention, assistance and reparations to victims of armed conflicts.³⁸

As discussed below, both the findings of the Truth Commission, published in its final report in 2022, and the decisions by the JEP have helped to integrate the environment in transitional justice debates and raise awareness on the devastating environmental impacts of past and current armed conflicts.

The perspective of the Truth Commission on the impacts of armed conflict on the natural environment

One of the core mandates of the Truth Commission was to clarify and promote recognition of the human and social impacts of armed conflicts on society, including economic, social, cultural and environmental rights.³⁹ The Truth Commission recognized that the harms that Colombia's armed conflicts caused to members of ethnic peoples and indigenous groups go beyond the categories of national criminal law and international humanitarian law (IHL) frameworks.⁴⁰ It sustained that the damages must be understood in relation to the historical exclusion, discrimination and invisibility experienced by such groups, as well as the effects on their social, cultural and economic organization, and their relationship with the territory.⁴¹

The final report of the Truth Commission included a full chapter on the impacts of armed conflict on the natural environment and the relationship between the two. In this chapter, the Truth Commission cited the 1982 World Charter for Nature adopted by United Nations General Assembly, which establishes that nature should be secured from degradation as a result of warfare or other hostile activities, and that military activities that are damaging to nature must be avoided.⁴² It also mentioned the 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, or ENMOD Convention,⁴³ arguing that the international community has reached a consensus that humanity “deserves to live in harmony with nature and that it must be protected in contexts of war and hostilities”.⁴⁴

The Truth Commission affirmed that, on many occasions, nature was used as an instrument to commit serious violations of IHL.⁴⁵ Due to its extrajudicial nature, it did not characterize the specific crimes or violations, but it recognized that armed conflicts have especially affected indigenous and ethnic communities. In addition, it held that those communities’ territory should be considered a victim, “taking into account their worldview and the special and collective bond that unites them with Mother Earth”,⁴⁶ and that comprehensive reparations for damages and misuse of natural resources must therefore be implemented in order to guarantee their right to exist as a community.⁴⁷

Moreover, the Truth Commission claimed that all the armed groups, without exception, had used nature to advance their economic or military goals⁴⁸ without considering the fragility of the ecosystems involved, such as the National Natural Parks.⁴⁹ It named events such as the use of antipersonnel landmines, explosive devices⁵⁰ and other weapons buried or left in the ground; harms caused to domestic and wild animals, which were often used as weapons; contamination of water sources and food; and hostilities and bombings.⁵¹ It also asserted that illegal mining, coca monocultures and aerial spraying with glyphosate to eradicate crops were some of the most contaminating and harmful practices against the environment.⁵² While these activities all had negative impacts, they have had different considerations and legal consequences. The extraction of minerals and coca planting are deemed illegal,⁵³ and as will be explained below, transitional justice has concluded that these conducts may amount to the war crime of destruction of the environment. With regard to aerial fumigation of coca fields by security forces, there is not yet a criminal characterization by the transitional justice system,⁵⁴ notwithstanding the ongoing debate on whether such operations should be governed under a law enforcement (international human rights law) or a conduct of hostilities (IHL) paradigm.⁵⁵

In addition to the long list of harmful activities against the natural environment, the Truth Commission acknowledged that attacks against the country's oil infrastructure by organized armed groups were a widespread practice. According to the final report, there were at least 3,659 armed actions against oil infrastructure; 60% of these actions included the use of explosives, which caused oil spills and contamination of water sources, land contamination and changes in the forms of interaction of the communities with their territory.⁵⁶

The JEP and its legal views on the impacts of armed conflict upon the natural environment

As a judicial mechanism, the JEP seeks to materialize victims’ rights to access justice⁵⁷ by investigating, prosecuting and punishing war crimes, genocide or crimes against humanity.⁵⁸ It also seeks to guarantee legal certainty regarding sanctions, parole, amnesties and pardons to those who participated directly or indirectly in non-international armed conflicts (NIACs).⁵⁹ Moreover, the JEP has preferential and exclusive jurisdiction over the prosecution and judgment of conducts committed during or in connection with the armed conflict between the FARC-EP guerrillas and the Colombian government.⁶⁰

In this regard, the JEP plays a key role in determining the legal consequences of environmental harm caused by armed conflict. This section analyzes some decisions by the JEP on these matters up until August 2023. At that point, the Tribunal for Peace⁶¹ had not yet imposed its first sanctions against the FARC-EP or members of the State armed forces, and it is therefore possible that those decisions will have changed, reviewed or deepened the perspectives on characterization of crimes, as well as the sanctions and reparations for environmental harms, presented in this article.

One of the main developments in the JEP's jurisprudence is the recognition of the natural environment as a victim of armed conflicts.⁶² The Chamber of Recognition of Truth and Responsibility and Determination of Facts and Conducts (Chamber of Recognition)⁶³ has emphasized that, for some indigenous communities, the experiences of armed conflict are not limited to the damage caused to humans but also include damages to their spirituality and the natural environment.⁶⁴ As of 2023, the Chamber of Recognition has declared this status for the territories of indigenous communities such as the Nasa,⁶⁵ Awá⁶⁶ and Eperara Siapidara,⁶⁷ two Afro-Colombian communities’ territories in Tumaco,⁶⁸ and the Cauca river.⁶⁹

In 2022, in the opening of a comprehensive case against the FARC-EP guerrillas (Macro Case⁷⁰ No. 10), the Chamber of Recognition⁷¹ identified the destruction of vehicles and oil infrastructure as one of their criminal patterns against the natural environment.⁷² As a result, the Chamber decided that it would assess whether the environment kept its nature as a civilian object protected by IHL considering its use or purpose.⁷³ Additionally, it indicated that it would consider whether the attacks violated the principle of proportionality and if they caused severe damage to the health and survival of civilians and preservation of natural resources with no clear and definite military advantage.⁷⁴ Interestingly, the Chamber did not rule that illegal mining or the planting of illicit crops were a criminal pattern, despite having received reports by some organizations on the adverse environmental impacts of those activities.⁷⁵

The decision of the Chamber of Recognition to assess violations of the principles of distinction and proportionality and subsequent harm or destruction of the environment goes beyond the Rome Statute of the International Criminal Court (Rome Statute), because this treaty does not list such conducts as war crimes in NIAC.⁷⁶ Furthermore, this decision seems to accept that during hostilities some conducts would not have to be criminalized when, for example, the environment becomes a military object – momentarily or permanently – or when incidental damages are not excessive in relation to the concrete and direct anticipated military advantage.⁷⁷

In 2023, the Chamber of Recognition adopted landmark decisions that made its legal view on environmental damage more evident. In Macro Case No. 05 on crimes affecting peasants, indigenous and Afro-Colombian communities and their territories in the north of Cauca and the south of Valle del Cauca,⁷⁸ it determined that eight FARC-EP guerrillas were indirect co-perpetrators of the war crime of destruction of the environment.⁷⁹ The decision sustained that the FARC-EP occupied lands, installed landmines, set up camps, launched attacks that affected widely and permanently moorlands and other environmental protected areas,⁸⁰ engaged in illegal mining and cultivated coca crops, causing the felling of trees, deforestation and contamination of hydric sources.⁸¹ In addition, the Chamber held that those conducts caused a decrease in species and micro-organisms, the invasion of exotic weeds, loss of organic matter and soil nutrients, and the use of agrochemicals, pesticides and herbicides, resulting in the destruction of the soil's structure and water retention capacity.⁸² The Chamber concluded that the damages were (a) widespread, because the impacted geographical areas were vast;⁸³ (b) long-term, because the recovery of moorlands ecosystems requires prolonged periods of time;⁸⁴ and (c) severe, because of the disturbance or considerable damage to human lives and natural resources, and the excessive exploitation of mineral resources, deforestation, and contamination of hydric sources.⁸⁵

Based on voluntary recognition by defendants, reports by public institutions and NGOs, and plans for the protection of communities,⁸⁶ the Chamber of Recognition concluded that the FARC-EP had caused adverse impacts on the environment and the culture, identity, autonomy and traditions of the indigenous and Afro-Colombian communities. In sum, the Chamber declared that those harms were the consequence of the FARC-EP's occupation of sacred sites, military operations, permissive behaviour towards environmental damages, and failure to prevent.⁸⁷ In line with the Chamber of Recognition,⁸⁸ a concurring opinion asserted that the armed groups had acted like a de facto authority or Occupying Power and that they should therefore have adopted measures to protect the natural environment and prevent damages.⁸⁹

The Chamber of Recognition underlined that excessive incidental damage to the natural environment as a result of a disproportionate attack is not foreseen by the Rome Statue as a war crime in NIAC.⁹⁰ Nevertheless, it added that the International Committee of the Red Cross (ICRC) considers that the practice of ad hoc international tribunals does not exclude the possibility that a State can define other serious violations of IHL as war crimes in its domestic legislation.⁹¹ In consequence, it declared that the FARC-EP had committed such conduct and held that (a) the war crime of destruction of the environment allows for the recognition of the environment as victim of armed conflict;⁹² (b) the protection of the environment as a civilian object in accordance with the principles of distinction, proportionality and precaution is deeply rooted in conventional and customary IHL;⁹³ (c) there are several international and regional instruments and conventions that protect the natural environment;⁹⁴ (d) the Colombian Criminal Code forbids widespread, long-term and severe destruction of the environment by means and methods of warfare, and those damages had been caused by illegal mining and illicit crops;⁹⁵ (e) according to the Tadić precedent of the International Criminal Tribunal for the former Yugoslavia (ICTY), the Colombian Criminal Code could be used as basis for prosecuting a war crime;⁹⁶ (f) characterization of criminal conduct does not have to be identical to the crimes found in the Rome Statute;⁹⁷ (g) the Colombian Criminal Code incorporates a crime with the wording of Article 55.1 of Additional Protocol I to the Geneva Conventions (AP I) on protection of the natural environment;⁹⁸ and (h) conduct not explicitly outlawed in Additional Protocol II to the Geneva Conventions (AP II) should not be perceived as permitted, considering that a human person remains under the protection of the principles of humanity and the dictates of the public conscience (Martens Clause).⁹⁹

In addition to that reasoning, the Chamber of Recognition indicated that environmental damage could be characterized as destroying or seizing the property of an adversary unless such destruction or seizure is imperatively demanded by the necessities of the conflict.¹⁰⁰ The Chamber concluded that the State was the adversary of the FARC-EP, that natural resources could be considered as the State's property, that the State has the sovereign right to exploit those resources, and that the contamination of land by illegal mining or illicit crops was not justified by the principle of imperative military necessity.¹⁰¹ Although the Chamber stated that the elements of the crime were met¹⁰² and that this crime is also listed in the Rome Statute for NIACs,¹⁰³ it did not indicate in the resolution section of its decision that the FARC-EP defendants had committed such conduct.¹⁰⁴ In concurring opinions, justices considered that environmental damage could have also been characterized as destruction of cultural goods¹⁰⁵ or pillage.¹⁰⁶

The decision endorsed by the majority in the Chamber of Recognition was partially contested in three separate dissenting opinions.¹⁰⁷ Although the dissenting judges recognized environmental damages by illegal mining and illicit crops,¹⁰⁸ they considered that the characterization of such conducts as the war crime of disproportionate attack causing excessive harm to the natural environment was incorrect. In sum, they argued that according to the Rome Statute, this is a crime in international armed conflicts (IACs) but not in NIACs.¹⁰⁹ The dissenters opined that the Chamber had erred in its characterization of a war crime with a basis in the Colombian Criminal Code,¹¹⁰ that its references to human rights law were unrelated to international criminal responsibility¹¹¹ and that the decision contravened the principles of legality,¹¹² legal certainty¹¹³ and non-retroactivity.¹¹⁴ Also, they underlined that illegal mining and cultivating illicit crops did not correspond with the definition of attack in the conduct of hostilities or of means or methods of warfare.¹¹⁵ A judge observed that causality between the conduct of FARC-EP commanders and environmental damages was not established, that the extraction economies preceded the presence of the FARC-EP in the affected territories and persists after their withdrawal, and that environmental impacts derive from multiple causes.¹¹⁶

In addition, both a concurring and the three dissenting opinions contested the statement of the Chamber of Recognition on the possibility of characterizing environmental damage as a war crime of destroying or seizing the property of an adversary.¹¹⁷ They asserted that such an interpretation was inconsistent with the juridical personality of the environment and its nature as a collective right, and that paradoxically the Chamber of Recognition had reaffirmed a colonial perspective of the environment when considering it an object or property of the adversary, which does not reflect the special meaning of and relationships between communities, nature and territory.¹¹⁸ Additionally, a dissenting judge indicated that neither the defendants nor the victims identified the natural environment as an object that the FARC-EP attacked in order to illegitimately reduce the combat ability of the adversary.¹¹⁹

The dissenting opinions considered that all the elements of the Tadić precedent¹²⁰ were not met.¹²¹ They underlined that despite the existence of the crime of destruction of the environment in national legislation, it was not yet incorporated as a war crime in NIAC, either in conventional or customary law,¹²² regardless of the serious impacts of such conduct.¹²³ They further emphasized that even if a conduct is prohibited by customary or conventional IHL, this does not automatically lead to criminal individual liability.¹²⁴ Conversely, the two concurring opinions argued that the elements of the Tadić test were fully met and that the crime of destruction of the natural environment in national legislation was a legitimate basis from which to criminally charge defendants for the commission of a war crime.¹²⁵

Similarly, in Macro Case No. 02 covering the southwest Colombian territory of Nariño and in particular the municipalities of Tumaco, Ricaurte and Barbacoas, the Chamber of Recognition held that fifteen FARC-EP commanders were indirect co-perpetrators of the war crime of destruction of the environment.¹²⁶ It concluded that the FARC-EP had caused damage to the environment by attacks to oil pipeline infrastructure, illegal gold mining and installation of anti-personnel landmines.¹²⁷ In relation to attacks on the Transandino Oil Pipeline (Oleoducto Transandino, OTA), it affirmed that the FARC-EP had violated the principles of distinction, proportionality and precaution and that even if the OTA was to be regarded as a military target, the damage to nature and territory caused by oil spills was excessive, widespread, long-term and severe.¹²⁸

In a separate opinion, a judge challenged this decision by arguing that destruction of the environment is not a war crime in NIACs, and that such qualification was unnecessary as the guerrillas’ conduct already fell under other international crimes.¹²⁹ Indeed, the Chamber of Recognition concluded that the FARC-EP commanders also committed the crimes against humanity of extermination¹³⁰ and destruction of cultural objects and places dedicated to religion.¹³¹

In relation to the crime of extermination, the Chamber of Recognition concluded that the indigenous and Afro-Colombian communities were not only victims of murder and massacres but also of conditions that led to their physical and cultural extermination,¹³² such as the destruction of nature and their territory.¹³³ In this regard, it noted that oil spills and illegal gold mining caused contamination of the air, soil, subsoil, forests, mangroves, waterfalls, rivers, lakes and sea.¹³⁴

In addition, the Chamber of Recognition held that the war crime of attacks against buildings dedicated to religion may take place during hostilities or outside of hostilities when cultural property is in the hands of the armed group.¹³⁵ In this sense, it interpreted the term “building” broadly to include sacred sites that, according to the cosmogony of ethnic groups, could encompass places like rivers with special significance for spiritual and medicine practices.¹³⁶ Besides attacks on oil infrastructure and the installation of anti-personnel landmines, the Chamber expressed that the notion of attack also covers illegal mining and affirmed that the places where extraction activities took place were not military targets.¹³⁷

These cases show the complexities of characterizing conduct that impacts the environment and how they give rise to considerable debate in transitional justice. Although in general the justices accepted that the environment was negatively impacted by armed conflicts, this did not mean convergence with regard to concluding that illegal mining and cultivation of illicit crops fit into the war crime of disproportionate attack causing excessive incidental harm to the natural environment. Furthermore, these discussions are connected to the distinction between a violation of IHL and a “serious violation of IHL” or an act classified as a war crime.¹³⁸ The ICRC outlines various rules and prohibitions within IHL regarding protection of the environment, but only mentions a few potential war crimes in NIACs: pillaging, destroying or seizing the property of an adversary, employing poison or poisoned weapons, and employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices.¹³⁹ However, even if a conduct that harms the environment does not qualify as a war crime or “serious violation of IHL”, this does not imply that the action is acceptable from an IHL standpoint or that it should not be prevented or punishable.

Amnesties or pardons for conducts that cause direct or indirect environmental impacts in armed conflict

The Colombian Constitution and criminal statutes have traditionally provided for amnesties and pardons for rebellion.¹⁴⁰ In this context, the 1991 Constitution allows amnesties and pardons for political crimes, such as rebellion or sedition, by virtue of Congress approval.¹⁴¹ In accordance with this, in 2016 the Amnesties and Pardons Law (Law 1820 of 2016) covered the crimes of rebellion, sedition, violent riot, conspiracy, seduction, and usurpation or retention of command responsibility, as well as acts that could be in connection with them.¹⁴² Also, this legislation explicitly prohibited amnesties for war crimes, crimes against humanity and genocide,¹⁴³ and established criteria for determining when a crime could be considered “connected to a political crime”. To that end, the law provides that the conduct must affect the State or its constitutional order, or that it must aim at facilitating, supporting, financing or hiding the rebellious acts.¹⁴⁴ In consequence, the Law does not apply to conducts that were neither committed in the context of or in relation to an armed conflict, or if their motive was based on personal or a third party's profit.¹⁴⁵

As shown in the previous section, in Case No. 05, the Chamber of Recognition determined that illegal mining and illicit crops fit into the war crime of destruction of the environment, ruling out the possibility of granting amnesties and pardons to the FARC-EP defendants. To support its position, the Chamber cited jurisprudence of the Inter-American Court of Human Rights (IACHR) on collective property rights, and international instruments on the protection of the environment and the right to a healthy environment.¹⁴⁶

In a concurring opinion,¹⁴⁷ a judge supported the view of the Chamber of Recognition that due to the severity of environmental damages and impacts on the civilian population, illegal mining and the cultivation of illicit crops should not be awarded impunity.¹⁴⁸ In his opinion, he argued that the principle of the broadest possible amnesty (Article 6.5 of AP II) should be interpreted according to the purpose of best protection of victims, the principle of humanity and the dictates of public conscience.¹⁴⁹ The judge underscored that the application of this principle should not apply automatically and that the Chamber of Amnesties and Pardons of the JEP should make a case-by-case analysis considering harms and impacts caused to indigenous and non-ethnic communities.¹⁵⁰ He also argued that destruction of the environment is not just an act of engagement or participation in hostilities but a war crime, and that amnesties and pardons would compromise investigations, accountability and the rights of victims to reparations.¹⁵¹

Three separate dissenting opinions disagreed with the Chamber of Recognition because they considered that illegal mining and cultivation of illicit crops were not war crimes but criminal activities for the purposes of financing the armed group.¹⁵² They asserted that the decision of the Chamber could cause legal uncertainty and affect the principle of the broadest possible amnesty.¹⁵³ One of the dissenting opinions also argued that the decision of the Chamber contradicted the jurisprudence on amnesties of the Chamber of Amnesties and Pardons and the Appeals Section of the Tribunal for Peace¹⁵⁴ and promoted the idea that amnesties and pardons already granted to FARC-EP guerrillas should be reviewed or reversed.¹⁵⁵

Undeniably, the prohibition of amnesties and pardons for cultivation of coca crops raises questions regarding the treatment of conducts like fabricating, trafficking, smuggling and exporting drugs. The Chamber of Recognition did not mention whether amnesties and pardons previously granted for drug trafficking should be reversed or remain in force, and neither did it explain whether those conducts would be deemed as destruction of the environment if they had widespread, long-term and severe impacts. At the moment, however, the majority of the Chamber of Recognition (four out of seven judges) seems more inclined to an absolute exclusion of amnesties and pardons for conducts that could have caused environmental damages.¹⁵⁶

According to the ICRC, the broadest possible amnesty can be an important incentive to respect IHL.¹⁵⁷ However, according to Rule 159 of the ICRC Customary Law Study,¹⁵⁸ amnesties must not be granted to persons suspected of, accused of or sentenced for war crimes. In this sense, it is relevant that the judicial debate in Colombia was significantly centred on defining whether illegal mining and illicit crops constituted a war crime or not, or if they were another type of criminal conduct or any other breach of IHL deserving a different treatment. Despite the argument against impunity and the guarantee of the rights of the victims, the statute of the JEP provides that even in the case of amnesties and pardons, the defendants are still obliged to contribute, individually or collectively, to the clarification of the truth, and that the right of victims to receive reparations is not extinguished.¹⁵⁹ In this regard, as transitional justice is also based on the principle of restorative and prospective justice,¹⁶⁰ it is necessary that besides the criminal implications for defendants, prevention and restoration of environmental damage are given considerable public attention and support.

Precautionary measures and the relationship between transitional justice and environment-related projects

In its final report, the Truth Commission identified as a widespread practice that armed groups killed and disappeared people and threw bodies into rivers throughout the country.¹⁶¹ The Truth Commission mentioned that the CNMH had documented over 1,000 bodies recovered from almost 200 rivers, demonstrating the recurrence of this practice.¹⁶² In this framework, transitional justice mechanisms have identified that the protection of the environment is also key to protecting their adjudication function, truth-seeking and the rights of victims to know the whereabouts of their loved ones and to receive adequate reparations.

The procedural law of the JEP provides that it may issue precautionary measures with the purpose of avoiding irreparable damage to individuals and groups and guaranteeing the effectiveness of its decisions, the protection of victims and the restoration of their rights.¹⁶³ This mechanism has been used by the JEP in relation to infrastructure and maintenance projects with environmental impacts, although the protection of nature had not necessarily been its main purpose.

In 2021, the Tribunal for Peace's Section of First Instance for Cases of Non-Recognition of Truth and Responsibility (Sección de Primera Instancia para Casos de Ausencia de Reconocimiento de Verdad y Responsabilidad, SAR) issued precautionary measures and temporarily prohibited the operations of a dredging project in a canal leading to the Estuary of San Antonio in Buenaventura.¹⁶⁴ The purpose of these measures was to prevent these projects from affecting the search for human remains of persons deemed missing. Similarly, in 2022, the SAR issued precautionary measures in relation to a project for the restoration of harmed ecosystems in the Dique Canal after a flooding emergency.¹⁶⁵ The petitioners of these measures were organizations representing black and Afro-Colombian communities. They argued that in the area of intervention of the project, there could be human remains of persons who were victims of enforced disappearances, and who were killed, dismembered and thrown into the canal by organized armed groups.¹⁶⁶ The petitioners requested to suspend any activity or operations by the project, protect evidence, create an exhumation protocol and ensure dialogue, psychosocial support and a healing process.¹⁶⁷ In support of its order of precautionary measures, the SAR affirmed that in the period between 1991 and 2015, the bodies of 9,638 disappeared persons could have been thrown into the canal.¹⁶⁸

When the precautionary measures were issued, the concessionary company had not been selected yet and the dredging project had not started its operations.¹⁶⁹ In this early stage, the SAR ordered the Ministry of Transport and the National Agency for Infrastructure to design an archaeological forensic protocol with an ethnic and gender perspective for the search for disappeared persons.¹⁷⁰ It also indicated that the protocol had to be created in coordination with the Special Unit for the Search of Persons Deemed as Missing and the Ombudsman's Office.¹⁷¹ In addition, the SAR ordered the Ministry of Transport to establish an inter-agency mechanism to draft guidelines and protocols to safeguard and protect non-identified bodies of suspected victims of armed conflicts and ensure their search, identification and dignified delivery to families. Those guidelines had to include a mechanism for assessing the environmental and social impacts of projects, with victim and community participation.¹⁷²

Although the SAR recognized that the dredging projects had strategic importance for sustainable economic and social development, it also underlined that they had to be compatible with the State's non-renounceable obligations to search for and identify the remains of persons deemed as missing, and to deliver them to their families.¹⁷³ These landmark precautionary measures show how transitional justice can address connections between armed conflicts and the environment and issue orders to guarantee the rights of victims during the planning and execution of development or environmental restoration projects.¹⁷⁴

The natural environment and its integration into restorative sanctions and reparations

In transitional justice, restorative sanctions may contribute to reparations for victims, the reintegration of perpetrators into society, and reconciliation or re-establishment of social links.¹⁷⁵ The statute of the JEP includes a non-exhaustive list of restorative sanctions, and some are related to the environment.¹⁷⁶ The statute mandates that parole and restorative sanctions are contingent upon the perpetrators’ recognition of responsibility, participation in truth-seeking and lack of recidivism.¹⁷⁷ These sanctions allow defendants’ participation in or implementation of programmes for the protection of environmental areas, waste elimination and recovery of areas affected by illicit mining and crops.¹⁷⁸ In addition, the statute requires that the implementation of environmental projects align with public policies as well as the cultural and ethnic customs and traditions of the local communities.¹⁷⁹ According to the JEP's procedures, defendants may propose restorative sanctions to the Chamber of Recognition, followed by the observations of victims, their representatives, and the Ombudsman's Office.¹⁸⁰ After this process, the Chamber must prepare a conclusions report for the Tribunal for Peace, which will make the final decision on the restorative sanctions to be imposed.¹⁸¹

In Macro Case No. 1, related to kidnappings and hostage-taking by the FARC-EP, defendants submitted a project for the environmental recovery of areas located in the National Natural Park of Sumapaz, also known to contain the largest moorland in the world.¹⁸² The FARC-EP acknowledged that the environment was a victim¹⁸³ and that its criminal patterns during the conflict contributed to ecological imbalance. Specifically, it committed to developing activities of reforestation, education and ecotourism. As a symbolic reparation, the group proposed activities for informing tourists on the impacts of the armed conflict and of its former criminal behaviour.¹⁸⁴ Individual victims, NGOs, litigants and the Ombudsman's Office highlighted that although some abductees were taken through Sumapaz, the project had no correlation with the damages, and that defendants should not receive profits from the ecotourism company. They also made observations regarding the projects’ financial sustainability and possible opposition of local communities to their implementation.¹⁸⁵ Despite this, the Chamber of Recognition valued the proposal as a restorative sanction considering that the FARC-EP had set up captivity camps in Sumapaz which caused stigmatization of the territory and its inhabitants.¹⁸⁶

Within Macro Case No. 3, a sub-case related to the murder and enforced disappearances of members of the Wiwa and Kankuamo indigenous communities, committed by the military in the Caribbean Coast, a colonel proposed, as part of his restorative sanction, to create and lead a team for reforestation, recovery of hydric basins, and environmental sanitation activities.¹⁸⁷ He also committed to identifying existing State institutions and NGO programmes and budgets for these activities. After this, he proposed that victims should coordinate, manage and execute the budget and resources, and that the military defendants should be in charge of the material implementation.¹⁸⁸

In this case, the Chamber of Recognition had sustained that the armed forces had caused the loss of the ecological and spiritual balance between communities and ancestral territories¹⁸⁹ and damaged the territory by profanation and destruction of sacred places.¹⁹⁰ However, the military defendants were not accused of environmental crimes, neither causing deforestation nor damage to water sources, Nevertheless, the Chamber considered that the initiative was in conformity with the law and had a restorative and reparation effect responding to the needs and priorities of victims¹⁹¹ – namely, the restoration of forests and the recovery of their traditional crops.¹⁹² It also stressed that the proposal complied with the view of territory as a victim and a subject entitled to rights.¹⁹³

In sum, these two cases show that defendants may propose and eventually engage in the implementation of environmental restorative sanctions even if there was no declaration of a crime related to the environment. Although some victims may find that a proposal for an environmental restorative sanction is unrelated to their damages, the Chamber of Recognition may validate it if it benefits the general community and addresses other impacts of armed conflict such as stigmatization.

Finally, as in Macro Cases No. 2 and No. 5 the Chamber of Recognition determined the existence of crimes that caused harms to the environment, the eventual proposals by defendants, victims and their representing organizations for restorative sanctions will be an important piece of analysis, especially with regard to how they aim at restoring and preserving the environment and preventing future damages.¹⁹⁴

Concluding remarks

Despite the declaration of protection of the natural environment in the Final Agreement and the progressive attention of the JEP to environmental damage, the environment continues to be affected by other ongoing armed conflicts. In 2023, the ICRC documented seven NIACs in Colombia: three between armed groups and State armed forces and four between armed groups and other armed groups.¹⁹⁵

According to a report issued by the JEP's Investigation and Accusation Unit (Unidad de Investigación y Acusación, UIA), from 2016 to 2022, there have been 283 serious damages to the environment caused by attacks on oil infrastructure, deforestation, contamination of rivers and water resources, erosion, damage to fauna and flora, massive and indiscriminate felling of trees, fires, and damage to topsoil after production of coca paste.¹⁹⁶ The report established that the Gaitanist Self-Defense Forces of Colombia (Autodefensas Gaitanistas de Colombia, AGC), also known as the Clan del Golfo, led the illegal mining activities, the National Liberation Army (Ejército de Liberación Nacional, ELN) launched attacks on oil infrastructure, and FARC-EP dissidents were responsible for felling of trees and coca cultivation.¹⁹⁷ In relation to illegal mining, the UIA has documented that armed groups have engaged in extortion, theft or purchase of extracted minerals, and money laundering. It has also affirmed that due to their direct extraction of minerals, they have contaminated rivers with mercury and cyanide and caused the deviation of rivers.¹⁹⁸

Although this article has focused on impacts on the environment, transitional justice mechanisms and the government should respond to other pressing challenges. For instance, victims and communities struggle to enjoy a healthy environment and freely circulate in or return to territories that are under the control of armed groups or are suffering from weapon contamination. Also, environmental defenders and community leaders face risks and threats against their lives, physical integrity and security.¹⁹⁹

The JEP's decisions could also be helpful in the discussions regarding the treatment of environmental damages in peace processes such as the negotiations between the ELN and the Colombian government. In their commonly agreed agenda in Mexico 2023, the delegations of the ELN and the government declared that to overcome conflict, it is necessary to adopt political, social, economic, environmental and cultural transformations, public policies to prevent environmental degradation, reparations to individuals and communities, and recognition of the environment as a victim.²⁰⁰ Similarly, the 2022 State policy for peace defines “human security” as protection of humans, nature and animals, and provides for the adoption of environmental policies and the integration of an environmental perspective during peace negotiations.²⁰¹

Certainly, the attention that the environment has gained in the JEP's case law should be maintained, avoiding regression or invisibility in other transitional endeavours. This attention also converges with the concerns of the international community, the recognition of the right to a sustainable, clean, healthy environment as a human right, the urgent call for special protection measures for the most vulnerable persons in the context of climate change and environmental degradation, and the obligations that armed groups controlling territory may have under human rights law.²⁰²

As shown in this article, judicial and extrajudicial mechanisms in the Colombian transitional system have progressively focused their attention on the effects of armed conflicts on the environment. This has led to the adoption of precautionary measures, the characterization of environmental damages as war crimes and the denial of amnesties or pardons. These decisions may make it difficult for other transitional justice processes to ignore, overlook or take environmental matters for granted. However, in order to adequately respond to victims, it is necessary to implement reparations and adopt mechanisms to prevent serious harm against the natural environment. These measures were incorporated by the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, also known as the Escazú Agreement.²⁰³

Finally, in terms of implementing realistic and sustainable environmental restorative sanctions, transitional justice demands technical and financial resources. Firstly, the determination of harm, its nature, level and extent, and the calculation of environmental impacts on ecosystems, communities and individuals may require input by physicians, biologists, anthropologists, environmental engineers and forensic experts. However, the affected communities should also be consulted, and there should be an open dialogue aimed at understanding from a multicultural perspective the impacts of armed conflict on their lives and culture, which are inseparable from their notion of nature and territory, and the best measures for redress and reparation. Secondly, the repairing of widespread, long-term and severe damage to the environment requires financial support beyond the capacity, means or goodwill of defendants. Therefore, as the Chamber of Recognition has held, it is necessary that defendants’ projects complement State public environmental policies and existing programmes of environmental protection and collective reparation plans.²⁰⁴ At this level, it is essential that restorative sanctions and reparation programmes follow principles of intergenerational equity, precaution, non-recurrence, respect for the burden capacity of ecosystems, fair distribution and sustainable use of natural resources.²⁰⁵