Follow us on LinkedIn

Time to Redefine Property Taking Economic, Social and Cultural Rights Seriously

[Dr Koldo Casla (Twitter: @koldo_casla) is a Lecturer in International Human Rights Law at Essex Law School and Director of Essex Human Rights Centre Clinic, UK.]

In the context of the current food and energy crisis, and the rising cost of living, it is essential to tackle the right to property directly, defining its content and shape in line with the Economic, Social and Cultural Rights (ESCR) proclaimed in International Human Rights Law (IHRL).

The urgency to do this became paramount at the early stages of the Covid-19 pandemic, when governments of different political colours mobilised privately owned resources and facilities, including private hospitals and labs, as well as hotels and other accommodation establishments to host people in homelessness.

The pandemic was, among other things, a reminder that private resources have a public function to play when society needs them.

The Polysemy of International Human Rights Law

Key documents in IHRL are either silent or even contradictory in the conceptualisation of the right to property. The right was proclaimed in the Universal Declaration of Human Rights in 1948, but neither the International Covenant on Economic, Social and Cultural Rights (ICESCR) nor the International Covenant on Civil and Political Rights (ICCPR), both from 1966, mention this right. They only talk about property as one of the prohibited grounds of discrimination, as do the other core instruments in IHRL: ICERD, CEDAW, CRC, CRPD and the Convention on the Rights of Migrant Workers and their Families. 

There are remarkable differences between regional human rights systems. In Europe, property is one of the most frequently claimed rights in front of the European Court of Human Rights. Besides its exclusive focus on private property, one other European particularity is that it provides coverage to both natural and legal persons, namely, corporations. On the other hand, the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights have applied a flexible and broad interpretation of property to protect cultural rights and collective interests of minorities and indigenous peoples.

As I argue in a new article, besides the mentioned polysemy, international human rights bodies dealing with ESCR have largely avoided defining the contours of the right to property. Neither the UN Committee on Economic, Social and Cultural Rights (CESCR) nor relevant Special Procedure mandate holders have thus far provided a substantive analysis of the outlined of the right to property. The issue was implicitly acknowledged by the former Independent Expert on Foreign Debt and Human Rights, Juan Pablo Bohoslavsky, and by the Special Rapporteur on Adequate Housing, Balakrishnan Rajagopal, both in relation to the challenges posed by Covid-19. CESCR’s new General Comment No. 26, on Land and ESCR (2022), understandably left out of scope issues concerning urban settings, and property-relevant issues other than land, such as the private provision of public services, intellectual property, foreclosures and rental evictions, or the privatization and exclusion of public spaces.

The issue of property comes up over and over in CESCR case-law, but the Committee has not addressed it head on yet. The CESCR has advocated for housing rights not only against the state but also vis-à-vis private actors. The CESCR has called for better protection of the procedural rights of homeowners in mortgage foreclosures (IDG v Spain, 2015). The CESCR has also established that there must be an independent assessment of the proportionality of evictions in the private rental sector on a case-by-case basis (Ben Djazia and Bellili v Spain, 2017). The right to adequate housing may also require postponing “an eviction while the competent authorities negotiate with the persons concerned regarding the available alternatives” (Gómez-Limón Pardo v Spain, 2020). In López Albán v Spain (2019), the CESCR added that the proportionality test “entails examining not only the consequences of the measures for the evicted persons but also the owner’s need to recover possession of the property. This inevitably involves making a distinction between properties belonging to individuals who need them as a home, or to provide vital income and properties belonging to financial institutions.” In Walters v Belgium (2021), the CESCR acknowledged that the fact that property is not in ICESCR is no reason to restrict this right or to derogate from it. However, immediately after doing that, the Committee attempted to swiftly solve the conundrum this way: “States parties would violate their duty to protect Covenant rights by failing to prevent or to counter conduct by businesses that leads to such rights being abused, or that has the foreseeable effect of leading to such rights being abused.”

In general, international bodies dealing with ESCR have remained silent about property, treating it largely as an inconvenience when construing other socioeconomic rights. These bodies have missed several opportunities to clarify the meaning of the right to property, its relationship and interdependence with other human rights, and how to deal with the inevitable situations where property will clash with ESCR. I think it is important for the human rights community to grab the bull by the horns.

Source

The ILC Work on the General Principles of Law and its Implications for the Coherence of the International Legal System

[Dr. Pouria Askary is an Associate Professor of International Law at Allameh Tabataba’i University (ATU).]

This post is based on a presentation delivered in a webinar organized by AALCO on 6 April 2023.

Since the very beginning, the work of the International Law Commission (ILC) on the topic of general principles of law has surprised many States as well as commentators by introducing a second category of general principles of law which are, as reflected in the latest version of the text of the draft conclusions provisionally adopted by the ILC Drafting Committee on first reading: ‘general principles of law that may be formed within the international legal system’. (Draft Conclusion 3(b)) (See also: here) As reflected in the various reports of the ILC (see: e.g. here, para. 137), this initiative is also challenged by some members of the Commission who believe that general principles of law are limited to those derived from national legal systems. Nonetheless, the Special Rapporteur of the Commission (SR), Marcelo Vázquez-Bermúdez is of the opinion that there are grounds to support the existence of general principles of law formed within the international legal system based on an analysis of practice, jurisprudence, and doctrine. (ibid.)

The SR admits that practice relevant to the existence of the second category of general principles was limited. (ibid., para. 138) Yet, he stated that Article 38, paragraph 1(c) of the ICJ Statute, did not indicate that general principles of law were those limited to general principles of law derived from national legal systems. (ibid.) Although one may find this statement by the SR as a kind of stretching of the text of Article 38(1)(c) of the ICJ Statute which refers to “the general principles of law recognized by civilized nations”, reading the arguments and examples provided by the SR in his first report to the Commission (paras. 231-253), I did not completely rule out the existence of such a category of general principles like the principle of uti possidetis orelementary considerations of humanity. However, it seems that most of the principles that we may refer to them as principles formed within the international legal system, are in nature “rules” or “principles not of a general character” with vital importance which are reflected either in the customary or treaty law (like the principle of the freedom of maritime communication). When you read the 2nd report of the SR, you may share the view that this was also to some extent reflected in the report by the SR. Perhaps, this was the reason why he proposed the draft conclusion 7 as follows:

‘To determine the existence and content of a general principle of law formed within the international legal system, it is necessary to ascertain that: (a) a principle is widely recognized in treaties and other international instruments; (b) a principle underlies general rules of conventional or customary international law; …’.

By formulating the draft conclusion in this way, the SR suggested that for a general principle “to be formed within the international legal system” it is necessary to have an echo in the conventional or customary international law. However, this draft conclusion has changed drastically by the drafting committee in 2022. The latest version of draft conclusion 7 provides that:

  1. To determine the existence and content of a general principle of law that may be formed within the international legal system, it is necessary to ascertain that the community of nations has recognized the principle as intrinsic to the international legal system. (emphasis added)

This version of draft conclusion 7, does not at all refer to the reflection of the general principle in conventional or customary international law! Instead, it refers to the recognition of the principle as “intrinsic to the international legal system”.

Does this phrase help us to identify a general principle of international law? I don’t think so. I am not even quite sure that everyone has the same understanding of this phrase. In other words, it seems that this phrase opens the hands of the States or other actors to provide vague and general interpretations.

Is there a rule of customary international law or conventional provision that identifies a general principle of law as “intrinsic to the international legal system”? In my opinion, the answer to this question is also negative.

The drafting committee did not stop there. It added another paragraph to this draft conclusion to maximize the confusion. This paragraph indicates that: “Paragraph 1 is without prejudice to the question of the possible existence of other general principles of law formed within the international legal system”. In the commentary to this paragraph, the ILC states that: ‘this paragraph was included to reflect the view of some members of the Commission who … considered that paragraph 1 of the draft conclusion would be too narrow and would not encompass other possible principles that, while not intrinsic or inherent in the international legal system, may nonetheless emerge from within the latter system …’. (p. 323, para. 4) (emphasis added)

As mentioned earlier, the ambiguity of paragraph 1 grants discretion to both states and other actors to interpret the confusing phrase “intrinsic to the international legal system” in a broad manner. The ILC commentary on paragraph 2, however, indicates that some members of the commission are in favor of more broadening the hands to “create general principles of international law”. Interestingly this paragraph and its commentary do not refer to any criterion other than “not being intrinsic or inherent in the international legal system”. Hence, it seems that the new version of draft conclusion 7 does not provide any concrete criteria to identify general principles of international law. Instead, it opens the door for broad interpretations, which are too dangerous for the coherence of the international system.

I intentionally used the phrase “dangerous for the coherence of the international legal system” because among the two functions that the ILC enumerated for the general principles of law in draft conclusion 10 is to contribute to the coherence of the international legal system. However, seemingly with the current version of the work of the ILC in hand, we are moving in the opposite direction.

Under the latest version of draft conclusion 11(1): General principles of law, as a source of international law, are not in a hierarchical relationship with treaties and customary international law. In other words, the Commission in this draft conclusion, once again, is acknowledging that both categories of general principles are to be seen as sources of international law which as reflected in the latest version of draft conclusion 10(2)(b): may serve as a basis for primary rights and obligations, as well as a basis for secondary and procedural rules. Or, as enshrined in draft conclusion 10(2)(a) to complement other rules of international law.

If you put together sub-paragraphs 10(2)(a) and 10(2)(b) with draft conclusion 7, you may agree with me that this approach is dangerous for the coherence of the international legal system. Because on the one hand, in comparison to the methodology provided in the final outcome presented by the ILC in 2018 for the identification of customary rules of international law, the current version of draft conclusion 7, makes it possible to create general principles of international law almost with no concrete or specific criterion. And on the other hand, these created principles are to be seen as sources of international law that may serve as a basis for new rights and obligations under international law which are not necessarily reflected in any international instrument or customary norm.

Here it is important to note that draft conclusion 11(2) states that a general principle of law may exist in parallel with a rule of the same or similar content in a treaty or customary international law. This provision was formulated in the same way the draft conclusion 11 proposed by the SR in his 3rd report. In this report, the SR highlights that in his opinion ‘when a general principle of law has an identical or analogous content to that of a conventional or customary rule: (a) the conventional or customary rule in question does not necessarily supervene the general principle of law; and (b) the general principle continues to have a separate, distinct applicability.’ (para. 85)

This statement, nonetheless may not raise concerns with respect to the fragmentation of international norms because as clearly stated in draft conclusion 11(3): any conflict between a general principle of law and a rule in a treaty or customary international law will be resolved by applying the generally accepted techniques of interpretation and conflict resolution in international law. The drafting committee has chosen to change the formula proposed by the SR in the draft conclusion 12. The original formula stated that the lex specialis principle would apply in relationships between general principles of law and rules from other sources of international law that address the same subject matter. The committee has replaced it with a reference to “generally accepted techniques of interpretation and conflict resolution in international law”. (paras. 120 and 142) The new formula, however, considering the findings of the Study Group of the ILC in 2006 on the issue of fragmentation of international law, does not seem to challenge the application of the lex specialis principle, as well as, other principle referred to in the ILC 2006 report to solve the possible conflicts between a general principle of law and a rule in a treaty or customary international law. Yet, if you read draft conclusion 11(2) with draft conclusion 10(1) you may become worried. The latter provides that: “general principles of law are mainly resorted to when other rules of international law do not resolve a particular issue in whole or in part.” (emphasis added) This paragraph specifies that while conflicts between coexisting general principles of law and a rule in a treaty or customary international law can be resolved by applying the lex specialis maxim, in situations where there is no existing customary or treaty rule, or where the existing rules of customary or treaty law do not fully resolve a particular issue, States and other actors are permitted, or even encouraged, to address the issue by resorting to general principles of law, including those formed within the international legal system.

I would like to ask the readers whether they can imagine a State acknowledging that the existing rules of international customary or treaty law can be fully applied to resolve its critical disputes with other States or the international community. I don’t believe that we can find many instances of this, particularly among the superpowers. Now imagine that we are granting them the authority to argue for the existence of general principles of law formed within the international legal system which as I have already mentioned, on the basis of the current version of the work of the ILC, is not a very difficult task. Because to identify a general principle of international law, in essence, you do not need to provide any concrete evidence. This implies that some powerful States have an extra advantage in arguing for the creation of new principles in international law, which more than anything else endangers the coherence of international law.

As John Dugard states: ‘all States have their own idiosyncrasies when it comes to the application of international law but they seldom threaten the universality of international law.’ However, at present, there are ‘several major divisions between states over the cardinal features and principles of international law.’ The universality is not challenged drastically because the aims and scopes of the rules of the international legal system are to some extent clear. Yet, the “major divisions” referred to by Dugard may be amplified by resorting to the work of the ILC in its current form. Therefore, if the ILC insists to keep the second category of general principles of law, it is necessary to add an exhaustive list of general principles formed within the international legal system to its draft conclusions. The SR himself stated that this category of general principles does not encompass a large number of instances. This list as also referred to by some of the members of the ILC may include principles such as sovereign equality of States, territorial integrity, uti possidetis juris, the principle of non-intervention in the internal affairs of another State, the principle of consent to the jurisdiction to international courts and tribunals, and some others which have already referred to by the international treaties or the international courts and tribunals. (footnote no. 1202)

I am aware that the SR has already excluded the idea of providing a non-exhaustive list of general principles (para. 134), however, the newly drafted Conclusion 7 may be seen as a game changer that justifies the provision of an exhaustive list of the second category of the general principles.

Source

Should Courts Be Back-Stopping Political Citizenship-Stripping Decisions? Not Without Accounting for the Problem of Statelessness

[Alexander Talel is an American attorney. He previously served as law clerk to Judge Jon O. Newman of the U.S. Court of Appeals for the Second Circuit and to Judge Sidney H. Stein of the U.S. District Court for the Southern District of New York.]

Hoda Muthana of Hackensack, New Jersey joined ISIS when she was 19. She wants to come home now. The problem for her is that a U.S. federal court in 2021 upheld the U.S. State Department’s determination that Muthana is not and has never been a U.S. citizen. But having taken the case and thus delved into executive branch policy determinations, the court could at least have addressed relevant existing precedent—that U.S. federal courts since World War II have routinely denied individuals like Muthana access to the citizenship-based legal process she now seemingly wants. Muthana’s case is different from that of Shamima Begum, a former British citizen who joined ISIS at age 15, but the outcome is the same—in February, a U.K court upheld the Home Secretary’s statutorily-based decision to strip Begum of her citizenship despite finding that her presence in Syria was likely the function of trafficking. These rulings are troubling, particularly insofar as they render Muthana and Begum effectively stateless, in contravention of myriad principles of international law and, specifically, Article 15 of the Universal Declaration of Human Rights.

The problem of statelessness is elemental—without citizenship, the individual’s access to the most basic rights diminishes drastically. These rulings therefore beg the question of how far judiciaries should go when considering whether to rubber-stamp the inherently political executive branch decision to effectively strip individuals of citizenship.

Muthana’s Case: Neither the First nor the Worst of its Kind

The State Department initially raised some concerns with respect to Muthana’s U.S. citizenship in light of the status of Muthana’s father as a U.N. diplomat at the time of her birth (children born in the U.S. to U.S.-based foreign diplomats, whose status entitles them to immunity from U.S. law, are not typically entitled to birthright citizenship). But the government obviously determined those concerns resolved in 2005 when it issued Muthana a passport, which it renewed in 2014. And Muthana was never naturalized. But after Muthana joined ISIS in Syria in 2014, the government’s position changed—the Obama Administration revoked Muthana’s passport on the basis that she was not a birthright citizen because termination of her father’s diplomatic status had not been made official before her birth (had Muthana been born after termination of her faither’s diplomatic status, he would have been subject to U.S. jurisdiction and she would thus undoubtedly have been entitled to birthright citizenship). The Trump Administration adopted this same position, arguing that Muthana had never been a U.S. citizen. Muthana’s father sued on her behalf and, in January of 2021, the D.C. Circuit Court of Appeals upheld the government’s position.

But Mr. Muthana’s appeal also presented an equitable argument: that if he had known that the State Department was issuing his daughter a passport but nevertheless also taking the position that she was not a U.S. citizen, then he would have pursued naturalization on her behalf as he did for his two other children. In response, the Court said this: “Although Muthana may have had a good faith understanding that his daughter acquired citizenship at birth, an error initially shared by the State Department, the law affords Muthana no relief. As we have explained, Hoda has never been a U.S. citizen and therefore the State Department revoked her passport, but could not strip her of a citizenship she never lawfully enjoyed.” But Muthana did enjoy all the benefits of U.S. citizenship up until the moment her passport was revoked. It is difficult to understand how revocation of those rights and benefits is not tantamount to revocation of their source—namely, citizenship itself.

The court thus ruled in a manner that presented but failed to resolve a delicate and politically-charged jurisprudential quandary. And it did so while also failing to address that Muthana is not the first U.S.-born individual to join a foreign enemy and nevertheless claim that citizenship entitles her to civilian legal process. She is now, however, the first such individual that U.S. courts have ex post facto declared stateless.

Ex Parte Quirin dealt with a group of Nazi-affiliated submariners apprehended after docking on Long Island but before proceeding with a plan to detonate explosive devices throughout the country. The case now famously stands for the proposition that such individuals may properly be tried before military tribunals. But the Supreme Court’s Quirin opinion also addressed the question of citizenship because among these unlawful combatants was a naturalized U.S. citizen, Hans Haupt. The Court found that because he had passed “behind [U.S. military and naval lines] in civilian dress and with hostile purpose,” Haupt’s claim to citizenship did not entitle him to civilian legal process. Haupt, a U.S. citizen, was ultimately executed after trial by military tribunal.

The Supreme Court thus came nowhere close to declaring Haupt stateless, though it did signal that civilian due process protections guaranteed by the Fifth and Sixth Amendments do not necessarily apply where the citizen concedes alliance with a foreign enemy. Shortly after Haupt’s execution, the Ninth Circuit Court of Appeals seemed to confirm the Supreme Court’s view on the matter in the far lesser-known case of In re Territo, in which the court upheld the government’s position that a captured Italian soldier, born in West Virginia but designated a POW, was not entitled to the civilian legal process by virtue of his birthright citizenship, finding that “a citizen of the United States, domiciled in the enemy country…is deemed as much an alien enemy as a person actually born under the allegiance…of the hostile nation.”

Just as in Haupt’s case, the court in Territo did not suggest that Territo’s misdeeds rendered him stateless, just that he had admitted to betraying his state and, thus, was not entitled to the civilian legal protections to which his citizenship would otherwise have entitled him. Is a different outcome possible where a U.S. citizen is accused of allying with an enemy force but denies it? Apparently not.

Yaser Esam Hamdi was born in Louisiana in 1980, but taken by his father to Saudi Arabia in 1982. After being captured in an active combat zone in Afghanistan in 2001, Hamdi was detained at Guantanamo Bay. Hamdi asserted his U.S. citizenship and also claimed that he had never taken up arms in a manner hostile to U.S. interests, whereas Territo and Haupt had merely asserted citizenship as a means of mitigating the prosecutorial implications of an enemy affiliation that they willingly admitted. But even in Hamdi’s case, the Supreme Court found in a plurality opinion that his sworn denial of enemy affiliation did not entitle Hamdi to all the legal rights of citizenship, including the basic right to have his habeas corpus petition heard, and merely preserved his “right to further process”—a quasi-judicial hearing in which hearsay evidence would be admissible to prove his affiliation with al-Qaeda. To be sure, the plurality opinion did at least take the view that Hamdi was entitled to a circumscribed legal process because of his citizenship—far from a declaration of statelessness.

After Hamdi’s case, it seems clear that even full-fledged U.S. citizenship does not entitle an individual to the full protection of civilian law even where the citizen denies that he or she has engaged in conduct similar to that in which Muthana has. And Muthana, like Haupt and Territo, has never denied that she allied with a foreign enemy. All this is to say that various U.S. trial and appellate courts, faced with individuals like Muthana, have not subscribed to the notion that citizenship alone entitles one to critical legal protections, particularly access to the civilian criminal process that Muthana seems to want.

It is worth noting that the central issue in QuirinTerrito and Hamdi was the scope of the executive authority to detain, but those precedents do not suggest that their treatment of citizenship was intended to apply only in the detention context. Having taken Muthana’s case, the D.C. Circuit could at least have addressed those precedents and perhaps even worked to apply them, as opposed to diving headfirst and eyes closed into the politics of effectively stripping her citizenship and thereby rendering her stateless.

Source

Environmental Justice at the JEP and Indigenous Worldviews: A Mismatch?

[Nina Bries Silva is a former human rights lawyer and PhD candidate in law at the European University Institute (EUI) focusing on the Colombian transitional justice process and indigenous ontologies.]

On March 8, 2023, in Bogotá, the Colombian Special Jurisdiction for Peace (JEP) held a press conference unveiling its indictment in the macro-case 05. It charged 10 former commanders of two regional structures of the FARC-EP (the Jacobo Arenas and Gabriel Galvis Mobile Columns) for having committed war crimes and crimes against humanity in the Cauca and Valle the Cauca regions, home of the Nasa indigenous people. This marked the first time the JEP charged for environmental harms, expressly stating that “transitional justice is also environmental justice”.

Right after the press conference, the two main Nasa indigenous organisations of the Cauca (ACIN, CRIC) convened an internal emergency meeting with Nasa indigenous authorities to discuss this decision. During the meeting, Nasa representatives heavily criticized the decision for having discarded their cosmovision and own laws (derecho proprio) and reduced Uma Kiwe, their Mother Earth, to natural resources. For the Nasa people, territory is not simply a delimited geographic area, it is also Uma Kiwe, their mother Earth, who enables the life of all human and natural beings.

As ground-breaking the indictment of the JEP may appear, it failed to properly engage with indigenous worldviews and to implement the ethnic focus prescribed by the Peace Agreement. It also seems inconsistent with a previous resolution of the JEP in the same case, recognizing the Nasa territory (Cxab wala Kiwe) as a victim of the armed conflict. 

This indictment of the JEP does, however, offer important reflections in terms of ‘greening’ international criminal law while respecting indigenous worldviews. 

Macro-Case 05: The JEP and the Nasa

After 56 years of internal armed conflict, Colombia undertook a transitional justice process and established the JEP as the court in charge of resolving cases related to the Colombian armed conflict. While bound to international law, the JEP must also adopt an ethnic differential focus, adapting its actions to the particularities of the ethnic groups affected by the conflict, among them the Nasa. The Nasa people (formerly known as the Páez) encompasses several indigenous communities and roughly 200,000 individuals. They reside mainly in the department of Cauca, one of the regions hardest affected by the decades-long national armed conflict.

In November 2018, the JEP Chamber for Acknowledgement, as the organ in charge of selecting and prioritizing cases or situations of the armed conflict that fall within its jurisdiction, decided to open the so-called macro-case 05. This macro-case 05 investigates and prosecutes various gross international humanitarian law and human rights violations (such as forced displacement, enforced disappearance, sexual violence, murder, and the use of anti-personnel mines) committed between January 1993 and December 2016, in the territory of the Nasa people, the Çxhab Wala Kiwe. This area is comprised of 17 municipalities located in the north of the Department of Cauca and south of the Department of Valle del Cauca in southwest Colombia. Because of its geostrategic and geoeconomic position, the Cauca region is among the hardest affected areas by the conflict and remains an active conflict zone.

In January 2020, applying an ethnic focus, the JEP recognised the ‘Great Nasa Territory of the Cxhab Wala Kile’ as a victim of the armed conflict, “based on the recognition of the inseparability of the territory and the indigenous people who inhabit it”. By doing so, the JEP embodied Nasa worldviews which conceive the world as a series of relationships where nature and human are interconnected and interdependent. The Nasa construct their identity in relation with nature and believe that “a Nasa without their territory is nothing” (“El Nasa sin tierra no es nada”).

This March 2023, the JEP issued its decision regarding the imputation of conduct and responsibility in the macro-case 05. Among other crimes, the JEP charged 10 former commanders of two regional structures of the FARC-EP (the Jacobo Arenas and Gabriel Galvis Mobile Columns) that were operating in the Cauca and Valle de Cauca region for environmental destruction. 

The indictment has been heavily criticized by Nasa indigenous people for promoting a western conception of nature, discarding their specific understandings and experience of the conflict. 

Defining Environment and Environmental Harm

After carefully reviewing the conduct of the two former regional structures of the FARC, the JEP concluded that in their pursuit to achieve a territorial and social control of the region, they “ended up generating serious harm to the environment”. The JEP focuses its analysis on two activities of the FARC: illegal mining and illicit cultivation of coca, which according to Judge Sanchez constituted the two main financing sources of the FARC and “summarize the impact of war on nature.”

When it comes to outlying its understanding of environment and environmental harms, the JEP carefully balances its words to only refer to ‘the environment’ (medio ambiente) and to not mention Uma Kiwe or Mother Earth. It states that the environment should be understood as broad concept that is also “represented by living or sentient beings, witnessed an attack against its integrity driven by armed actors’ greed”. However, such an apparently broad definition fails to take into consideration the cultural and spiritual meaning that Nasa indigenous people give to the environment. For the Nasa people, the environment encompasses not only tangible living beings as suggested by the JEP but also spiritual entities like mountain spirits (or duendes).

In the same vein, the indictment focuses on a series of serious harm to the environment. It puts a particular emphasis on the damages to páramos (alpine tundras), an extremely rich high mountain ecosystem, which are considered by indigenous people as sacred places. While it recognises the importance of those places for the Nasa people, it frames the damages exclusively in terms of environmental degradation. 

Indigenous ontologies, including the Nasa community, are relational and not eco-centric sensu stricto. Therefore, harms should thus not be conceived independently of their relationship with humans, in purely ecocentric terms. Harm to natural elements goes deeper than environmental degradation, also affecting the spiritual world and the communities. For the Nasa, the destruction of a sacred place such as a lagoon or a páramo also leads to the disappearance of ancestral spirits and alters the harmonious relationship with nature. In her concurring opinion, Belkis Izquierdo, one of the indigenous judges at the JEP, highlights this point in her concurring opinion: “More than understanding the damage committed against landscapes or natural resources, it is necessary to have a relational approach that considers the rupture of socio-ecological relations at multiple scales and temporalities”.

In sum, in its indictment, the JEP is stepping back from its previous acknowledgement of territory as a victim. It promotes an ecocentric understanding of nature and environmental harms, restraining its engagement with indigenous worldviews and commitment to apply an ethnic focus. This is also perceptible in the legal reasoning of the indictment and its application of international criminal law.

Environmental Destruction as a War Crime 

To equate environmental destruction to an international war crime, the JEP relies on a particular reading of the Rome Statute, with which not all the judges agree.  In the legal reasoning of the case, judge Sanchez essentially argues that the environmental destruction carried out by the armed groups constitutes a war crime as its fits within the international crime of destroying or seizing the property of an adversary (see article 8(2)(e)(xii) of the Rome Statute). This legal argumentation assimilates nature to a civilian property that can be seized, excluding Nasa understanding of territory as living being. 

While subscribing to the overall result of the decision to prosecute environmental crimes, judge Belkis Izquierdo suggests another legal justification more suitable to indigenous worldviews. She maintains that territory has per se a spiritual and cultural value for indigenous people. Consequently, she argues that the actions of the former FARC against natural resources and sacred place constitute the war crime of destruction of cultural property or places of worship (see article 8(2)(e)(iv) of the Rome Statute)

This legal argumentation, if followed in futures cases, could send international criminal law in a new direction that better reflects indigenous experience of armed conflict and understanding of the environment.  Judge Belkis Izquierdo is currently overseeing another case of the JEP which deals with crimes committed against the Awá indigenous people and their territory. She presented last October her proposed indictment to the Chambre but it has not yet been approved by the entirety of the judges for similar discussions regarding the applicability of international criminal law. An eye must thus be kept open on future legal developments at the JEP and their broader implications for the fields of transitional justice and international criminal law.

Source

Right Menu Icon