Recent developments in Colombian jurisprudence on conflict-related sexual violence

During her first visit to Colombia last month, UN Special Representative on Sexual Violence in Conflict Zainab Bangura drew attention to the issue of sexual violence in Colombia’s five decade long conflict. She met with government officials, survivors and civil society to discuss the progress made in preventing and responding to sexual violence. The conflict, which has involved left-wing guerrillas, right-wing paramilitaries and state security forces, has taken a heavy toll on the civilian population, in particular women and children. Those who have experienced sexual violence want their crimes acknowledged. Ms Bangura’s message was clear: Colombian authorities must work to end the silence and impunity surrounding these crimes.

This is an important message. Despite their prevalence, sexual violence crimes are rarely prosecuted, and impunity levels remain high. However, several recent decisions—in which courts have stressed the need for accountability—reflect positive developments in the judiciary’s handling of these crimes.

Colombia’s Constitutional Court has played a significant role in giving sexual violence crimes visibility. In January of this year, the Constitutional Court issued Auto (Order) 009, in which it noted “with alarm” the persistence of sexual violence as a serious form of gender discrimination. It urged authorities to not only address these crimes, but to comply with their obligations to prevent and ensure their non-repetition. Importantly, it stressed that all parties to the conflict were responsible for such crimes, and referred over 400 sexual violence cases to the Attorney General’s Office for investigation and prosecution.

The Court also highlighted two underreported issues. It noted that sexual violence against children illegally recruited by armed groups persists, in particular against indigenous children. During her visit, Ms Bangura also referred to this issue as well as to the silence that exists regarding the generations of children born out of rape. Additionally, the Court recognized that women are at times targeted for sexual violence and displaced because of their sexual orientation−an aspect of the conflict often ignored.

This ruling follows the Court’s landmark decision of 2008, Auto 092 on women and displacement, in which it acknowledged that women are among those most affected by displacement and that displaced women are particularly at risk of sexual violence. In that ruling, the Court stressed that sexual violence is “a habitual, extensive, systematic and invisible practice in the context of the Colombian armed conflict”. It called on the Attorney General’s Office to investigate 183 cases attached to the decision.

Other courts have affirmed the need to hold perpetrators accountable. The case against a former paramilitary leader Marco Tulio Pérez Guzmán (aka El Oso) has set an important precedent in this respect. The case involves crimes committed by paramilitaries in the Montes de María region, on Colombia’s Caribbean coast. The accused was initially tried before the Justice and Peace Chamber of Barranquilla’s High Tribunal under a special justice mechanism established by Law 975 of 2005− known as the Justice and Peace Law−aimed at encouraging the demobilization of members of armed groups. To benefit from a reduced sentence (five to eight years), the accused must fully disclose the truth about their crimes. In September 2014, the Barranquilla Tribunal ruled that Pérez Guzmán would not benefit from the Justice and Peace Law because he had failed to tell the truth about the rapes he was charged with. The court referred the case to the ordinary justice system for trial. Last month, on appeal, the Supreme Court confirmed the Tribunal’s ruling. Pérez Guzmán will now face trial for his crimes before an ordinary court and could receive a sentence of over 20 years, if found guilty.

Some courts have acknowledged the strategic use of sexual and gender-based violence in the conflict. For example, in November 2014, the Justice and Peace Chamber of the Bogotá High Tribunal found Salvatore Mancuso and his eleven co-accused, all senior members of the Auto Defensas of Colombia (United Self-Defense Forces of Colombia, AUC), guilty of 1426 crimes perpetrated by this paramilitary group in eight regions of Colombia. These crimes included 175 incidents of sexual and gender-based violence against both female and male victims. The court found that the AUC used sexual and gender-based violence as a war tactic to gain control of territory, intimidate civilians and destroy the social fabric of communities. These acts included rape, enforced prostitution, forced sterilization and forced abortion. The court also found that AUC members had murdered certain victims because of their sexual orientation in a bid to “cleanse the population”. Sex workers were also the targets of such killings (download here: MANCUSO et al Judgement).

Finally, Colombian courts are increasingly using international jurisprudence in sexual violence cases. For instance, in November 2014, in the case against Clodomiro and César Niño Balaguera, the Criminal Chamber of the Supreme Court overturned a ruling from a lower court that had failed to find that the rape charged amounted to a war crime. The accused, both former paramilitary members, were accused of abducting, raping and torturing a woman. In finding that the rape was closely related to the conflict, and thus amounted to a war crime, the Chamber relied extensively on decisions of the International Criminal Tribunal for the former Yugoslavia, among other sources. Based on this jurisprudence, the Chamber found that the prosecution had correctly charged rape as a war crime. It convicted both accused for this crime and increased their sentences (download here: Nino Balaguera).

These decisions are a first positive step towards changing the culture of impunity in Colombia. In particular, the Constitutional Court’s progressive rulings acknowledged the gendered dimensions of the conflict and ordered concrete measures for government authorities to tackle this issue. These authorities must now enforce these rulings in practice and address crimes effectively; yet, to date, compliance with the Court’s rulings has been lacking. Acknowledgement of crimes and accountability are vital steps to achieving a lasting peace and restoring the dignity of survivors.

 

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3 thoughts on “Recent developments in Colombian jurisprudence on conflict-related sexual violence

  1. Unfortunately, as far as I’m aware, there is no English translation of these rulings. However, with regard to Auto 092, a group of NGOs has organized themselves to monitor the Attorney General’s Office’s compliance, or lack thereof, with this ruling. Some of their periodic reports are available in English. The most recent one is linked to my blog:
    http://www.abcolombia.org.uk/downloads/English_WOMEN_WEB_(2).pdf

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