Colombia Court Case: ecological and collective rights of Katsa Su

Summary

On 19 November 2019, the Colombian Special Jurisdiction for Peace (Jurisdiccion Especial para la Paz, JEP) issued an accreditation recognizing the Katsa Su territory of the Indigenous Awá peoples as a victim of the country’s armed conflict.

This case centers on restorative justice, legal pluralism, and Indigenous justice systems: (i) Indigenous Peoples as collective subjects of rights; (ii) Indigenous Peoples and their territory as victims of armed conflict, and (iii) participation of Indigenous Peoples; (iv) right to self-determination and autonomy of Indigenous Peoples; (v) autonomy of Indigenous and Natural Laws.

Background
This sentence must be understood as part of Colombia’s 2017 Peace Process after the country’s internal armed conflict between the government and the Revolutionary Armed Forces of Colombia – People’s Army (FARC-EP). The reconciliation process enables the possibility of declaring indigenous groups and territories as “victims” of the Colombian armed conflict, and consequently, “subjects of rights”.

As part of the Peace Agreements, in 2017, the government established the Comprehensive System for Truth, Justice, Reparation and Non-Repetition. This judicial body (which includes the JEP) has jurisdiction over conduct that constitutes violations of International Humanitarian Law and human rights violations committed before 1 December 2016, due to the armed conflict. JEP is responsible for processing requests for accreditation as victims.

In 2018, an application was submitted on the collective and territorial damages suffered by the Awá people belonging to the 32 indigenous councils associated in UNIPA. They requested JEP recognize and accredit not only the Awá people, but also the territory itself as a victim, taking into account “that it has an identity and dignity that constitutes it as a subject of rights.” The application states Katsa Su “must be understood as inseparable, interrelated, and interdependent with the Awá people.”

Jurisprudential Framing
In its determination, JEP regarded the customs and practices of the people and their territory and their ontologies with respect to nature. It emphasized the inseparability of territory and people that inhabit it.

For some Indigenous peoples, the experiences of war are not limited to the harm inflicted on people; their consequences also extend to the perceptions of beings who inhabit their territories and to the natural environment itself. The disappearance of enchanted spirits, guardian spirits, or spiritual leaders describes a series of effects that transcend the human realm, affecting both human rights and the network of relationships in which people, places, and non-human entities participate. Rather, ‘when humans harm non-humans or nature, it creates an energetic imbalance that leads to changes in physical life.

The foregoing demonstrates that a systematic interpretation of the Awá people’s justice system and self-governance, in conjunction with national and international legal norms, allows us to understand the inseparable nature of the territory and the people who inhabit it. This interdependence is what compels Transitional Justice to recognize them as victims of the armed conflict. Thus, as a system of interrelationships, efforts must be made to guarantee the survival and continued presence of the Awá people in their territory.

Legal Framing
JEP recognized the Kasta Su territory in the capacity of a subject of collective rights. According to international human rights standards, the subjects of collective rights are distinct groups, communities, or peoples rather than just individuals. In other words, the Katsa Su territory is considered a subject of collective rights along with the 32 Awá indigenous councils associated and represented in the Indigenous Unity of the Awá People (Unidad Indígena del Pueblo Awá – UNIPA).

This means the territory has the same rights granted to all accredited individuals and collectives, including the right to reparation and participation in JEP judicial processes.

Ecological and Community Context
Katsa Su is the sacred ancestral territory of the Awá Indigenous people in Nariño, Colombia. It comprises over 6,000 hectares of biodiverse rainforest. According to the Awá people, they belong to the Katsa Su, which is alive, is Mother Earth, and the source of good living. It is where the Awá develop the full experience of spirituality, harmonize with their spirits and ancestors, and perform their rituals according to their Law of Origin. For Indigenous Awá peoples, “the world is non-dual; everything is one, interrelated, and interdependent; there is no separation between the material, the cultural, and the spiritual. Furthermore, everything lives and is sacred; not only human beings, but also the hills, the caves, the water, the houses, the plants, and the animals have agency.”

Analysis

This legal decision represents “innovative and avant-garde jurisprudence in the international field of transitional justice and human rights” by breaking with “the hegemonic legal conceptions rooted in a modern colonial system of knowledge.” It recognizes that “human beings are not the only beings who have the possibility to exist, to be damaged and violated and therefore to be recognized as the subject of reparation in the context of transitional justice processes.” The resolution draws on Decree-Law 4633 of 2011 (Law of Victims for Indigenous Communities) which recognizes territory is “a living whole and sustenance of identity and harmony” that “suffers damage when it is violated or desecrated by the internal armed conflict” (Article 45), and acknowledges “spiritual healing” as part of the integral reparation of the territory (Article 8).

– Lieselotte Viaene, Peter Doran & Jonathan Liljeblad (2023). ‘Transitional Justice and Nature: A Curious Silence’ (page 3-4)

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