The weaving of transitional justice and the territorial rights of indigenous peoples in Colombia
In Colombia, during the negotiations between the FARC guerrillas and the government (2012-2016), indigenous, Afro-Colombian, and Rom organizations asserted themselves in order to have an “ethnic chapter” adopted in the text of the peace agreement, and to affirm their collective rights, and in particular their rights to land and to differentiated reparations.
The impact of these movements is fundamental for the construction of a sustainable society integrating the deep and plural concepts of peace, such as the idea of peace with the Earth, as well as the rights of nature and of future generations.
The Observatory of Indigenous Peoples’ Territorial Rights of the Technical Secretariat of the National Commission on Indigenous Territories (CNTI), the Normandy Chair of Excellence for Peace (CNRS/Region of Normandy/University of Caen/MRSH) and the Bogota Pole of the Institute of the Americas (IdA), have thus chosen to address these issues during two seminars. Designed as intercultural exchanges, they took place according to the method of “knowledge dialogues” organized by the CNTI.
The first webinar, entitled “Peace, Environment and Nature’s Rights in the Colombian Post-Peace Agreement,” was held on July 21, 2021. The session was moderated by Luis Miguel Gutierrez, Doctor of Public Law at the University of Toulouse and introduced by Laetitia Braconnier Moreno, coordinator of the IdA’s Bogota Pole, and Victor Tafur, Director of Environmental Diplomacy at Pace University in New York. The latter spoke of the relevance, for the Normandy Chair for Peace that he represents, of studying transitional justice through the prism of international normative developments for the protection of the environment and the recognition of the rights of nature.
All the participants started from a common observation: the disillusionment that followed the signing of the Colombian Peace Agreement of 2016 regarding the rights of rural populations, the main victims of the armed conflict. In particular, the government’s failure to implement the ethnic chapter of the Peace Agreement was highlighted. In particular, Luis Miguel Gutierrez asked the guests about the process of land restitution established by Law 1448 of 2011, which has shown poor results, especially in the restitution of land to displaced indigenous peoples (Decree Law 4633).
Julio César Estrada, a member of the Guanamo people, is an advisor to OPIAC, an organization for the rights of indigenous peoples in the Amazon. He deplored, through different examples and particularly the increasing deforestation, that the rights of nature, at the heart of the “original law” of the peoples, are not respected. However, he pointed out the recognition by the Special Jurisdiction for Peace of these specific rights, and the gains made as a result of ethnic mobilizations in terms of the articulation between transitional justice instruments and indigenous justice systems. He indicated that in the search for persons who disappeared during the conflict, for example, the spiritual and cultural dimensions of the harm suffered by the families must be taken into account by the institutions responsible.
Camilo Niño, a member of the Arhuaco people, an ecologist and holder of a master’s degree in rural development, insisted that the territorial rights strengthened by the Peace Agreement have largely remained a dead letter. According to him, “conservation is nothing more than traditional practices in accordance with the traditional knowledge of indigenous peoples and what is translated as ‘law of origin’. After emphasizing the institutional delay in the constitution and formalization of many indigenous territories, he explained the importance of this formalization in terms of legal security for these collective properties, and demonstrated how this legal security is a function of greater conservation of the territories.
As Technical Secretary of the National Commission of Indigenous Territories, Camilo Niño also establishes a causal link between the lack of formalization of the territories to be protected, the increase in the granting of authorizations for deforestation, and the assassinations of indigenous leaders. Indeed, these assassinations increase where deforestation also increases. The figures he denounces are overwhelming: More than 350 indigenous leaders were assassinated after the signing of the Peace Agreement in late 2016. Among other measures to be implemented, he asks the government to urgently sign the Escazú agreement for the protection of environmental defenders.
Émilie Gaillard, general coordinator of the Normandy Chair for Peace, mentioned the multiplicity of violence suffered by indigenous peoples and the transgenerational memory of past violence. She evokes the importance of transitional justice that fully integrates the restitution of land to indigenous communities and the necessary recognition of the to indigenous communities and the necessary recognition of collective property. Among the avenues to follow for an “environmentalized” transitional justice, she mentions environmental peace education and the establishment of environmentally friendly agriculture in the post-conflict era. She cites examples from other countries in which people have succeeded in obtaining the constitutionalization of sacred sites and the sanctuary of forests. She calls for a paradigm shift away from the “overcapitalization of land” and a transition to a rule of law that respects natural and cultural diversity and is decolonized. And concludes by affirming the support of the Normandy Chair for Peace to the initiative for the creation of a United Nations Special Rapporteur for the rights of environmental defenders.