FARC-EP’s Rebel Environmental Governance: creating legal legacies of War

About the author(s):

Laura Baron-Mendoza is a Colombian lawyer specializing in international human rights, international humanitarian law, international criminal law, and conflict resolution. She has worked for international and national institutions throughout her professional career. In 2021 she joined MADRE as a human rights officer. She is doing her Ph.D. research at McGill University on the coexistence of normative orders in contexts of ongoing armed violence and law creation by Armed Non-State Actors (ANSAs). Her research derives from her philanthropic work with former ANSAs members in Colombia.

It is not typically assumed that armed non-state actors (ANSAs) have any role in governance activities. Despite the image of domestic anarchy as potentially leading to chaos and the dissolution of law, armed conflicts are always characterized by far more than fighting (Provost, 2021). When ANSAs seek to extend, consolidate, or legitimize their authority, they tend to regulate their relations in the territory they hold (rebel governance). Indeed, ANSAs have a non-negligible role in governance (Nagamine, 2015). Although the legal focus has been primarily on ANSAs’ administration of justice as the main governance facet, ANSAs intervene in multiple civil affairs ranging from tax collection to health services provision. There is a need to broaden the scope of inquiry to encompass other facets, thereby enhancing the dialogue between States and ANSAs. 

This blog examines ANSAs’ environmental governance by initially presenting a new reading of the relationship between nature, conflict, and ANSAs (A). Subsequently, the text will highlight the Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo’s (FARC-EP) role in environmental conservation, elucidating the establishment of a rebel order (B) and the use of the(ir) law to enforce it (rebel law) (C). Ultimately, the blog will conclude by portraying rebel law as a legal legacy of war (D). 

A. Shifting the relationship between nature, conflict, and ANSAs

The environment has been recognized as a victim of the Colombian armed conflict (UIAJEP), as well as a source of financing ANSAs and a beneficiary (JEP, pp. 19-49CEV, pp.189, 221). Armed actors’ presence in the Colombian ecosystems indeed resulted in significant landscape transformation and destruction of the biotic elements that sustain ecosystemic functionality. Colombian institutions have not labeled armed actors, especially ANSAs, as “environmental terrorists” or “destroyers of the environment” without reason. Attacks on oil infrastructure, legal and illegal gold mining, illicit crops, and their eradication are part of the actions during the armed conflict that caused environmental damage (CEV, pp.191,199,208). However, the media has started to portray the FARC-EP as an actor that -directly or indirectly – promoted environmental protection and compliance with the regulations they issued (Dejusticia, 2017, pp. 35-37). Some media networks have called them guardians of the forest and questioned whether conserving areas (which have hosted the conflict) and species protection was a deliberate act or a fortuitous effect of the war.

Analogous to the State, the FARC-EP pursued multifaceted agendas in the territories under their control or influence, thus exhibiting a Janus face (Revelo-Rebolledo, 2019, pp. 282-295). A nuanced approach to analyzing the FARC-EP’s behavior challenges an oversimplified and frequently politically biased evaluation that either censures or extols the environmental influence of the armed actor. In fact, before entering into an agreement with the Colombian government, the FARC-EP established itself as a governance provider successfully controlling activities such as deforestation. The FARC-EP suggested, enacted, and enforced rules for using, administering, and accessing natural resources, creating, what I call, an environmental rebel order.  

B. FARC-EP’s environmental governance

FARC-EP engaged in various governance activities ranging from taxation, security, health, and education provision to land allocation (Arjona, 2016, pp. 57). The FARC-EP behaved as a multi-dimensional authority, and environmental issues were no exception. The remoteness, biodiversity wealth, statelessness, and the presence of low-medium scale economies that characterized the territories FARC-EP controlled, facilitated the establishment of a rebel environmental governance generating nonvoluntary and voluntary impacts on environmental protection and conservation. 

Regarding the non-voluntary impact, the territorial control the FARC-EP exercised created off-limits areas to the State and de facto protected areas (Murillo-Sandoval, 2021), halting the entrance of large-scale economic activity and human settlements (McNeely, 2003).

Apart from the impact that FARC-EP’s mere presence originated, there were conscious actions that directly/indirectly generated a positive effect on the environment. I suggest that the group created a rebel legal order whose characteristics set it apart from the state legal order. FARC-EP’s rebel environmental order operated on three distinct dimensions: internal, external, and border dimensions

Internally, the group established a set of norms that governed the behavior of its members. For example, by guaranteeing subsistence for the combatants, the FARC-EP banned mass clearing of the forest, shielding them from military aircraft. Externally, the group imposed (or suggested, as they claim) a series of rules on the civilian population within its territory.[1]According to the civilian population, the FARC-EP was perceived and called the environmental regulator (CEV, 2022, pp.221). The FARC-EP proscribed activities such as mineral extraction (gold mining), extensive cattle-grazing, logging, indiscriminate hunting, animal trafficking, overfishing, and fishing with dynamite and pollution of water sources by actions such as placing cocaine labs nearby rivers (Sarmiento Erazo & Trejos Rosero, 2020, pp. 146, 154). Sometimes, the FARC-EP entered the territories, altering traditions that the population accepted through the FARC-EP’s pedagogical processes. The group generally held talks with the Junta de Acción Comunal (Community Action Board) to share its position and the justification of a specific rule, e.g., regulating garbage burning and hunting endangered animals.[2]Finally, on the border dimension, the group established a set of rules regulating its interactions with rival armed groups and state institutions.

The previous norms shaped an environmental rebel order the FARC-EP materialized by adopting its own idea of law and using it as a tactic of war (Guerra jurídica – lawfare)[3]. The ANSA created its derecho propio (own law), sometimes documented in writing but communicated through non-verbal and visual means. 

C. Creating rebel law

Although the FARC-EP used State law to, for example, resolve land conflicts (Provost, 2021, pp. 49-50), its highest authority (Estado Mayor de las FARC-EP) enacted three laws in the border dimension. For instance, Law 001 of 1982, known as the agrarian program, initially foresaw access to land and the need to promote the agricultural sector. Law 001 was modified in the 90s to include environmental protection and crop production, eradication, and substitution (despite not being associated with environmental matters, Law 002 and Law 003 addressed taxation and administrative corruption, respectively). 

We tend to perceive ANSAs’ law as operating in the shadow of State law as the holder of the monopoly of the use of force and the sole creator of law. Yet, that monopoly is contested in places where rebel law emerges. Law 001 (as well as 002 and 003) was enforced, while the civilian population acknowledged the FARC-EP as regulators in the territories the group controlled.

When speaking with high-ranking FARC-EP commanders, they confidently refer to these three documents as ley (law). Although they were more hesitant to label other regulatory documents as law, they always considered every regulation part of their derecho propio (own law). Based on my doctoral research, I claim the group’s attachment to the law, including the personal passion of its members, is almost religious.[4] The FARC-EP’s law engendered greater expectations than tangible outcomes, remaining confined to the domain of an unattainable utopia. Although the law existed and was applied, it failed to yield the envisioned triumph in the struggle. I suggest that the FARC-EP worshipped the law – as the wrong object – not for its consequential efficacy but for its symbolic significance. Law was the symbol of something absent: the triumph over the State. The attainment of victory through legal means was an unfeasible prospect. The use of law served to satisfy the yearning for an intangible ideal, irrespective of its infeasibility.

Such devotion and faith in the law have permanently been assigned to the State and its institutions, neglecting non-state actors as law creators and devotees. Legal fetishism (Lemaitre, 2007, pp. 17) permeated the FARC-EP, whose use of law challenges the liberal values of the State, such as state sovereignty and the rule of law. I assert that the FARC-EP’s derecho propio contributes to the shift of the State narrative as the sole provider of law and order. ANSAs’ production of law– rebel law- creates a legal order that cohabits with the State law.

The issue at hand is no longer limited to acknowledging the existence of rebel law. (Provost, 2021, pp. 271-272). Still, it extends to the wider challenge of embracing and engaging with alternative legal frameworks during and in the aftermath of armed conflicts. By recognizing the FARC- EP as regulators and creators of law, their products become legal legacies of war.

D. Acknowledging the rebel legal legacies to reconcile rebel law and state law 

The failure to acknowledge and understand rebel legal and social orders that emerged during conflict undermines any dialogue attempts between conflicted parties. Yet, States refuse to acknowledge ANSAs as counterparts, law creators – and therefore, rulers of the territories they control – as it could undermine their power and apparent monopoly on law (Provost, 2018). Such neglect limits the ability to consider forming new orders or models that could effectively respond to the particularities of a society. 

Although I am far from suggesting rebel law should be automatically celebrated or endorsed, discrediting every facet of the insurgency disassociates any form of de facto rebel governance from the concepts of law and justice, thereby obstructing the ability to engage in a dialogue with ANSAs. State and rebel laws may sometimes clash and compete, but they can also complement and mutually reinforce each other (Provost, 2021, pp. 454). Acknowledging the FARC-EP’s derecho propio as a legal legacy of war, which I refer to as legal reconciliation, facilitates channels of dialogue. Accepting the FARC-EP as law creators, an unfeasible idea in the early 2000s, can aid in comprehending the realities on the ground and continue the practice of beneficial legal traditions, which may result in sustainable peace over time. Conversely, neglecting the legal legacies of war feeds power vacuums that can culminate in environmental devastation, as the Colombian situation demonstrates. 

[1] The author has conducted several interviews as part of her doctoral research, which is the primary source of this publication. One of the interviews included the former FARC-EP commander Jorge Torres known as Pablo Catatumbo. Pablo Catatumbo, Interview (2023).

[2] Ibid; Gustavo Urrego, Interview: Victim of Armed conflict (2023).

[3] Confidential source, on file with author.

[4] Former FARC-EP Martín Cruz known as Rubín Morro, Interview (2023).

(Visited 554 times, 1 visits today)

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: