This newsletter focuses on the recognition of indigenous peoples' territories as victims in proceedings before the Judicial Panel for Acknowledgement of Truth and Responsibility and Determination of Facts and Conducts (SRVR). To that end, it analyses Orders 079 of 12 November 2019 and 02 of 17 January 2020 of the SRVR, which recognizes the territories of the requesting indigenous peoples as victims.

Newsletter No 8. Observatory on the SJP

February 27, 2020

Newsletter # 8. The recognition of indigenous peoples’ territories as victims

Accreditation of indigenous peoples as victims before the Judicial Panel for Acknowledgement of Truth and Responsibility and Determination of Facts and Conducts

Indigenous communities and the authorities of minority ethnic groups may be recognized as special interveners before the Judicial Panel for Acknowledgement.

Victims of acts committed in the context of the armed conflict by the FARC-EP, the security forces and third parties or civilian authorities who are not members of the security forces, and who voluntarily submitted to the Special Jurisdiction for Peace (SJP) have the right to request accreditation in the cases or situations prioritized by the SRVR. Upon accreditation, victims are constituted as special interveners in the proceedings before the Chamber and may participate in them (on opportunities for victims' participation before the SRVR, see Newsletter 6). To apply for accreditation, victims must meet the following requirements, established in article 3 of Law 1922 of 2018:

State that they are victims of a crime and wish to participate in the proceedings before the Judicial Panel.
Provide a summary of evidence of their status as victims, such as an account of the reasons why they consider themselves victims, indicating, at a minimum, the time and place where the acts they suffered occurred; or be included in the Unique Registry of Victims. In any case, compliance with this requirement is governed by the probatory freedom principle, so victims may present any evidence to the Judicial Panel that supports the facts related to the event(s) in question. (For more information on the accreditation of victims, see here).

As explained in Newsletter # 7, indigenous peoples and the authorities of minority ethnic groups may be special intervenors before the Judicial Panel for Acknowledgement:

Indigenous peoples, as collectivities, have the right to apply for accreditation as victims and to be constituted as special intervenors in the proceedings before the JEP. (Ethnic Affairs Commission Protocol 001 of 2019).
The authorities of minority ethnic groups may also be recognized as special interveners in the JEP in cases where the offence has affected one or more members of their community (Article 4, Law 1922 of 2018).

Recognition of the territory of indigenous peoples as victims in proceedings before the Judicial Panel for Acknowledgement

Indigenous peoples have submitted applications for accreditation to the Judicial Panel for Acknowledgement, in line with the process outlined above. The table below summarizes the applications submitted by the Awá people[1] and the Nasa [2] and Misak[3] peoples, who also requested that the Judicial Panel accredit their territory as a victim.

Table 1. Requests for accreditation of the Awá people and the Nasa and Misak peoples

Requests for accreditation of the Awá people and the Nasa and Misak peoples

(Account drawn from the SRVR Court Orders 079 of 2019 and 02 of 2020).

As noted in the table, in both cases the Judicial Panel for Acknowledgement not only recognized the territories and councils as victims and the indigenous authorities as special intervenors, but also recognized the territories of these peoples as victims, as they had requested.

The decisions to recognize the territories of these indigenous people as victims of the armed conflict in the proceedings before the Judicial Panel for Acknowledgement are based on the recognition of the inseparability of the territory and the indigenous people who inhabit it. This recognition comes from the SRVR systematically interpreting the national and international legal norms on the protection of the rights of indigenous peoples and their own government, in line with their world view.

Graph 1. Inseparability of territory and the indigenous people who inhabit it: systematic interpretation of the rights of indigenous peoples in line with their world view of territory

Inseparability of territory and the indigenous people who inhabit it: systematic interpretation of the rights of indigenous peoples in line with their world view of territory

(Account drawn from Cars 079 of 2019 and 02 of 2020)

This means that the SRVR systematically interpreted two elements:

The national and international legal framework that protects the rights of indigenous peoples

There is a comprehensive legal framework that protects indigenous peoples' rights to territory, autonomy, self-determination, ethnic and cultural diversity, among others. The following are some of the elements of the normative framework related to the rights of indigenous peoples, that provided the basis for the Judicial Panel for Acknowledgement to recognize territory as a victim in the above-mentioned cases:

Political Constitution of Colombia. It establishes the right of indigenous peoples to territory (article 330), protection of pluralism and ethnic and cultural diversity (articles 1 and 7), among others.
Jurisprudence of the Constitutional Court. It has recognized the protection of the territory of indigenous peoples (rulings T-693 of 2011, T-384A of 2014, T-659 of 2013, T-601 of 2011, T-236 of 2012, T-849 of 2014, C-891 of 2002, Order 004 of 2009, among others).
The United Nations Declaration on the Rights of Indigenous Peoples establishes the right of indigenous peoples to maintain and strengthen their own spiritual relationship with their territory (article 25), among others.
Convention 169 of 1989 of the International Labor Organization recognizes the importance of the relationship of indigenous peoples with their territories (article 13.1), their right to self-determination (article 3), among others.
American Declaration on the Rights of Indigenous Peoples recognizes the rights of indigenous peoples to their territories (Article VI), their cultural identity (Article XIII), their spirituality (Article XVI), and life in harmony with nature (Article XIX), among others.
Jurisprudence of the Inter-American Court of Human Rights recognizes the right to collective property of indigenous and tribal peoples, free self-determination and prior consultation (Case of the Xákmok Kásek Indigenous Community v. Paraguay, judgment of August 24, 2010; Case of the Saramaka People v. Suriname, judgment of November 28, 2007, among others).
Decree Law 4633 of 2011 recognizes the fundamental right to territory of indigenous peoples (article 45), the territory of indigenous peoples as a victim (article 4, para. 4), among others.
The legal norms that inform the JEP’s approach on questions related to ethnic minorities. Legislative Act No. 1 of 2017, Law 1922 of 2018, Law 1957 of 2019, Regulations of the Permanent Judicial Council, Protocol on Intercultural Dialogue and Interjurisdictional Coordination between the Special Jurisdiction for Peace and the Special Indigenous Jurisdiction (for more information on the legal framework for the application of the approach related to ethnic minorities in the Permanent Judicial Council, see Newsletter # 7).

Indigenous people's world view on territory.

The SRVR recognizes that each indigenous people has its own cosmovision and that, from that cosmovision, it can understand its relationship with the territory in a particular way. Thus, in the case of the Awá people, the SRVR takes into consideration the way in which they understand the territory and their relationship with it, in accordance with the provisions of its ‘Safeguard Plan’, derived from the 2009 Order 004, which states

“The understanding of the territory within our Awá culture reflects how within our cosmovision, an integral conception of the world persists (...) The territory is a whole, the entire land that includes forest, river, stream, people, everything (...) that when we speak of territory the indigenous Awá is referring to a set of fundamental collective and individual rights that must be respected and promoted, something western society does not register with any clarity”. (‘Safeguard Plan of the Awá People’, cited by the SRVR, Court Order 079 of 12 November 2019)

Likewise, in the case of the application presented by ACIN, the SRVR takes into account the way in which the relevant town councils and reserves understand the territory and the injuries it has suffered in defense of its autonomy:

“For indigenous peoples and especially for the Nasa, Uma Kiwe (territory) is considered to be a living being and that it is integral to being a Nasa person, she feels, she must be fed and cared for. To do this, offerings of seeds of the SAHAKELU are made (hence its sacred character).

Our ancestral and sacred territory has suffered violations, disturbances, mutilations, occupations and damage as a result of the internal armed conflict that had a negative impact on the bond that the indigenous communities had with their territory; violating the balance, harmony and autonomy of the Nasa indigenous people of Northern Cauca”. (Request for accreditation of ACIN, cited by the SRVR, Court Order 02 of January 20, 2020).

Indigenous peoples cannot be fully recognized without their territories.

Thus, based on the analysis of the legal framework that protects the rights of indigenous peoples and their relationship with the territory, together with the world views of the applicant indigenous peoples about their territories, the Judicial Panel for Acknowledgement concludes that the recognition of these peoples must include the recognition of their territories. And, therefore, it accredits both the indigenous peoples and their territories as victims.

The decisions of the Judicial Panel to recognize the territories of indigenous peoples as victims, appealing to their worldview and respect for their rights, are very important. On the one hand, they show a serious commitment by the Special Jurisdiction for Peace to apply a lens in its proceedings that is in sympathy with ethnic minorities concerns. On the other hand, it involves the application of the constitutional principles of pluralism and respect for ethnic and cultural diversity on proceedings, as well as the establishment of a relevant precedent for the construction of dialogue in other jurisdictions about the protection of indigenous territories.

However, the recognition of the territory as a victim in the process of accreditation of indigenous peoples is only the first step towards their participation in the proceedings before the SRVR. The Judicial Panel has the task of continuing to use this approach in its proceedings, guaranteeing the effective participation of indigenous peoples in the various proceedings and seeking recognition of the differentiated impacts they suffered in the context of the armed conflict.

[1] The Awa indigenous people live in Colombia and Ecuador. In Colombia, they are located in the departments of Nariño and Putumayo. For more information about the Awá people, please consult the website of the National Indigenous Organization of Colombia (ONIC).

[2] The Nasa indigenous people live in Colombia, in the departments of Cauca, Huila, Tolima, Valle del Cauca and Putumayo. For more information about the Nasa people, please consult the website of the National Indigenous Organization of Colombia (ONIC) here.

[3] The Misak indigenous people live in Colombia, in the departments of Cauca and Huila. For more information about the Misak people, please consult the website of the National Indigenous Organization of Colombia (ONIC).