Colombia

Colombia’s Constitutional Court issues landmark decision recognising victims of reproductive violence in conflict

/ Dieneke de Vos / 2 Comments

A month ago, on 11 December 2019, the Colombian Constitutional Court issued an important decision recognising that women and girls who suffered forced contraception and forced abortion by their own armed groups should be recognized as ‘victims of armed conflict’. The decision is one of very few in the world to specifically recognise reproductive violence as a form of harm committed against women and girls in times of conflict. It thus sets important legal precedent in recognising a form of gender-based violence that has long remained invisible. Although the full written decision has not yet been made available, a summary of the decision has been published. In what follows, I analyse this summary.

Helena’s case

The case was brought by Women’s Link Worldwide on behalf of Helena (pseudonym), a young woman who had been forcibly recruited into the FARC at the age of 14. While with the FARC, she was forced to take contraceptives (injections) and forced to undergo an abortion when she became pregnant. She suffered significant and long-lasting health consequences as a result of the unsafe conditions in which these procedures were forcibly carried out. Continuing to suffer negative health consequences, Helena fled and was in hiding for many years until the peace deal with the government was signed. In 2017, she submitted an application to be recognised as a victim and to seek reparations under Colombia’s Law on Victims and Land Restitution (Law 1448). This law, adopted in 2011, recognizes victims of the armed conflict and confirms their rights to truth, justice and reparations. It includes provisions on the restitution of land and other reparations, and requires that special attention be paid to the needs of specific groups and communities, such as women, survivors of sexual violence, trade unionists, victims of forced displacement, and human rights defenders.

The agency charged with the registration of victims under this reparations framework (UARIV), however, subsequently denied Helena’s claim for victim status. In doing so, UARIV had relied upon an article in Law 1448 that denied victim status to members of illegal armed groups (Article 2(3)), and held that, in any case, Helena’s claim was submitted outside of applicable timelines set out in Law 1448. Helena fought this decision; while the first instance court did grant her access to government-provided medical support, her claims for recognition as a victim and for reparations under Law 1448 were dismissed in both first and second instance. She thus appealed her case to the Constitutional Court, who heard the matter in 2019, and issued this landmark decision at the end of last year. Importantly, Helena’s case was selected for review by the full panel of nine judges, rather than being decided upon by a panel of three judges. This illustrates the importance the Constitutional Court attached to the issues.

Constitutional Court’s decision

In its December 2019 decision, the Constitutional Court firstly found established that Helena was the victim of grave violations of her fundamental rights. The Court subsequently held that in dismissing her application to be registered as a victim of the armed conflict, UARIV violated Helena’s fundamental rights on two grounds. Firstly, UARIV had violated Helena’s rights as a victim by failing to interpret the applicable rules in accordance with established constitutional principles of most favourable interpretation, good faith, pro personae, and the primacy of substantive law. Secondly, UARIV failed to properly substantiate its decision by neither acknowledging the acts of forced abortion and forced displacement Helena suffered, nor by recognising that Helena’s specific circumstances constituted force majeure, preventing her from submitting an application within designated timelines.

The Court acknowledged that, on its face, Article 2(3) of Law 1448 allowed for the denial of victim status to ex-combatants who demobilised as an adult, and that, under this interpretation, Helena would have to seek reparations through other mechanisms, not including Law 1448 (as Helena fled the FARC after she turned 18). However, the Court also questioned whether this exclusion in Article 2(3) was consistent with Colombia’s obligations towards victims of the armed conflict, noting in particular the coercive nature of the practice of forced contraception and abortion within the FARC and that these acts were often perpetrated upon girls under 18, or upon young women who had only just reached the age of maturity.

According to the Court, denying Helena the right to be recognised as a victim under Law 1448, therefore, would violate her rights to access justice and to timely and adequate protection measures. Noting the principal obligation on the state to recognise victims of sexual violence as victims in such a way as to guarantee their rights to integral reparations, the Court also held that as a victim of sexual violence committed within an armed group, Helena would not have access to other avenues of reparations beyond Law 1448. As such, for the Court, registration in the Register of Victims constituted her only available avenue to adequately repair her fundamental rights.

Importantly, the Court held that the exclusion stipulated in Article 2(3) could not become an obstacle to reparations for victims of sexual violence who, as ex-combatants, were forcibly recruited into those illegal armed groups at a young age. Such a rigid interpretation of Article 2(3), according to the Court, would thus create an unconstitutional lack of protection and vulnerability. The Court also reiterated the state’s obligation to provide immediate, comprehensive, gender-sensitive and specialised health care to all victims of sexual violence by armed actors for such time as deemed necessary to overcome the physical and psychological health consequences of such violence.

For this reason, the Court relied upon the principle of declaring a ‘constitutional exception’ (‘la excepción de inconstitutionalidad’) as provided for in Article 4 of Colombia’s Constitution to overrule the applicability of Article 2(3) of Law 1448 to Helena’s case. Pursuant to this principle, when faced with a conflict between an ordinary legal norm and a constitutional norm, the Court may declare a constitutional exception to preserve rights guaranteed by the constitution in a specific case. In this case, the Court held that relying upon this principle was the only way to guarantee Helena’s fundamental rights and to find an adequate balance between Colombian law and Colombia’s international legal obligations under international humanitarian law and international criminal law. Not doing so, the Court stressed, would give rise to consequences that it held to be unconstitutional. As such, the Court rendered Article 2(3) of Law 1448 inapplicable to this specific case.

The Court thus ordered:

  • that the decision by UARIV not to include Helena in the Register of Victims be declared void;
  • that within 10 days of the date of its decision, UARIV admit Helena to the Register of Victims on the basis of her having suffered forced recruitment as a child, sexual violence (including forced use of contraceptives and forced abortion), and forced displacement;
  • that within 15 days of the date of its decision, UARIV reinstate the provision of psychosocial and medical assistance to Helena to address the emotional, mental health and physical effects of having suffered sexual violence;
  • that in the provision of integral reparations to Helena, UARIV take a gender-sensitive approach to ensure her fundamental rights; and
  • that the health services provide and guarantee access to Helena to immediate, comprehensive, gender-sensitive, specialised care for as long as necessary to address the physical and psychological consequences of the violations she suffered.

Significance of the decision

In finding in favour of Helena’s registration as a victim of the armed conflict, this case establishes that ex-combatants who were forcibly recruited into illegal armed groups and suffered sexual violence, as well as reproductive violence, within those armed groups may seek victim status and thus have access to reparations under Law 1448 – a right they did not have before – regardless of the age at which they demobilised or fled. Beyond the significance of this finding for the claimant in this specific case, therefore, this decision also sets important legal precedent in recognising that victims of sexual and reproductive violence within armed groups are victims of armed conflict. This follows earlier jurisprudence by the International Criminal Court in the Ntaganda case (here and here; see also this 2017 post by IntLawGrrl Rosemary Grey). The Colombian decision is also one of very few in the world to specifically recognise reproductive violence as a distinct form of harm committed against women and girls in times of conflict.

As part of the case, the Court received 17 expert briefs from national and international human rights organisations, women’s rights organisations, academics and international experts, including one from the author of this blog post (written jointly with Ciara Laverty). In our amicus request filing, we offered the Court a comprehensive overview of the way in which reproductive violence long remained invisible in international law, how it is increasingly being recognised, and why it should be recognised as a specific and distinct form of harm, including when committed within armed groups.

Reproductive violence is a widespread yet understudied phenomenon that occurs in times of both conflict and of peace. It can have serious physical, mental, emotional and other consequences that persist long after the violence has occurred. It is a form of victimisation connected to but also different from sexual and other violence, due to the distinct harm it inflicts and the underlying value it is said to violate, i.e. reproductive autonomy. Although reproductive violence affects individuals of all genders, there are distinct forms of harm and violence that are inflicted only upon women and girls because of and directly targeting their sex-specific biological reproductive capacities, such as forced contraception, forced abortion and forced pregnancy.

Historically, however, there have only been few instances where such violence has been independently recognised and considered. This left reproductive violence relatively invisibilised in international law. Nonetheless, current developments reflect a growing recognition that reproductive violence constitutes a distinct form of violence that should be independently recognised as violating specific, individual rights and may also constitute (international) crimes in certain circumstances. This decision by the Colombian Constitutional Court recognising the specific victimisation of female ex-combatants through forced contraception and forced abortion thus contributes to providing greater legal recognition to a form of gender-based violence that has long remained invisible in international law.

Importantly, in addition to claiming her rights as a victim through the constitutional action that was the subject of this decision, Helena has also requested participation as a victim in case 007 before the Special Jurisdiction for Peace. As such, further jurisprudence, including on individual criminal responsibility for acts of reproductive violence such forced contraception and forced abortion, may be forthcoming in Colombia.

Stay tuned!

Violence against trade unionists, application of labor laws at issue in Colombia’s bid for OECD membership

/ Tequila J. Brooks / Leave a comment

In July 2016, the U.S. Department of Labor accepted the first labor petition filed under Chapter 17 of the U.S.-Colombia Trade Promotion Agreement (TPA).  Filed by Colombian trade unions and the AFL-CIO, the fundamental argument of the petition is that the Government of Colombia failed to meet its commitments under the 2011 U.S.-Colombia Labor Rights Action Plan (LAP) which were a pre-condition for the U.S. to extend preferential trade benefits to Colombia.  USDOL’s public report on the petition is due in January 2017 unless USDOL determines more time is necessary.

Critical among those commitments were (a) effective implementation a new legal framework to investigate and punish threats and violence against trade unionists; (b) putting a stop to employers’ use of intermediaries and certain types of employment contracts to chill representative trade unionism and avoid compliance with labor laws; and (c) ensuring that labor inspection, administrative and dispute resolution processes respond to worker complaints and deter employer violations.  Over 2,500 trade unionists have been murdered in Colombia since the 1980s.  These murders and threats did not stop after the U.S.-Colombia TPA went into effect in 2012.

A lot is at stake this year for Colombia.  Not only did the Government of Colombia and FARC agree to a Peace Accord ending the 52-year-old Civil War, but Colombia is being considered for accession to the Organization for Economic Development (OECD), where it would join Mexico and Chile as the only Latin American members.

Many of the labor-related commitments the Government of Colombia made during TPA negotiations are also required for accession to the OECD.  If USDOL’s Chapter 17 report confirms petitioners’ allegations, Colombia could be subject to international dispute resolution and lose trade benefits under the TPA – and could jeopardize Colombia’s bid to become a member of the OECD.

The OECD formally launched Colombia’s accession process in October 2013.  This rigorous process subjects Colombia to assessment under 250 legal instruments and formal evaluation by 21 separate committees, including the Employment, Labor & Social Affairs Committee.

The OECD’s Roadmap for Colombia’s accession outlines several labor-related policy goals to be met, including:  improvement of labor market opportunities for women, youth, older people and the unskilled; a financially and socially sustainable retirement and social support system; assistance for the poor and out of work; and better management of migration flows to foster integration of immigrants and their children.  Critically, the Roadmap calls for Colombia to implement policies to ensure effective governance of the labor market and to “ensure the full respect of labour rights, with a particular focus on the rights and safety of trade union representatives” (p. 18).

The OECD released its review of Colombia’s Labour Market and Social Policies in January 2016. Much of the OECD’s analysis mirrors the issues raised by Colombian unions and the AFL-CIO in their USDOL petition.  Three of these areas are: (1) inadequate protection of trade unionists from ongoing threats and violence; (2) shortcomings  in labor law administration and enforcement, including weak labor inspection and fine collection processes; and (3) the tendency among Colombian employers to utilize civil law contracts so workers do not benefit from rights in the Colombian Labor Code and making it difficult for workers to effectively organize independent trade unions and bargain collectively.

The OECD observes that 20 trade unionists were murdered in 2014 and that there were over 300 assaults, threats, harassment and other kinds of violence perpetrated against trade unionists that same year.  The OECD cites conflicting reports about the motivation for murders of and violence against trade unionists – whether as a result of their role as trade unionists or local leaders standing up to armed groups – but emphasizes that improved prosecution of the crimes in close contact with trade unions during investigation would promote greater clarity as to why the violence occurred.  While the Colombian protection program for trade unionists has improved, the program faces a number of challenges such as budget cuts, a lengthy and laborious process for assessing threat risk against trade unionists and corruption scandals that demonstrate inadequate controls.

In addition to discussing and assessing fundamental labor rights issues, the OECD’s review of Colombia’s labor and social policies highlights the country’s need for better social security (including unemployment) policies that are more broadly applied.  Over 52% of Colombia’s workforce is self-employed, with 83% in unregistered businesses not covered by social security.

Observing that comprehensive reform to the Colombian social security and pension system is required, the OECD highlights a number of specific policy recommendations to incentivize more Colombians to participate in social security.  Only about 35% of the Colombian population in retirement age receives a pension – in contrast to 90% on average in the OECD.  Acknowledging Colombia’s introduction of a new unemployment protection system, the OECD notes that the system is underfunded and provides limited support to job seekers.

Many of the structural labor market issues noted by the OECD such as informal work and non-participation in the social security system have a bigger impact on women than men.  Despite the fact that female labor market participation in Colombia has increased over the last few decades, 20% of women aged 16-24 are not active in the labor market or studying (Not in Employment, Education and Training or NEET) compared to 1% of men.  In addition to higher unemployment rates than men and lower participation in formal employment, women in Colombia suffer from a “large and persistently stable gender pay gap” (p. 16).  Fewer women receive health protection or contribute toward a retirement pension so look forward to poverty in their old age.   Laws were passed in Colombia in 2010 and 2011 to make sex discrimination in pay unlawful and extend maternity leave from 12 to 14 weeks, but many Colombian women do not benefit from these protections because they work in the informal sector.

Critics have argued that the Government of Colombia may not be ready for or be deserving of OECD membership or special access to markets and free trade benefits because of ongoing human and labor rights violations.  This may be true.  The Colombian case shows that OECD and U.S. conditionality can contribute to a safer and better society in Colombia though many challenges remain.

Transitional Justice: What is the role of law in bringing imaginative and imaginary peace to Colombia?

/ Kristin Bergtora Sandvik / Leave a comment

This blog post is based on a reflection presented at the “Transitional Justice as Legal Field, Site and Imagination” panel at the Transnational Law Summer Institute, Kings College, London June 29, 2016. I am grateful to Prabha Kotiswaran and Peer Zumbansen for the invitation.  

What is the role of law in bringing imaginative and imaginary peace to Colombia?

June 23 2016 was described by Colombian and international media as the “last day of the war”, adopting FARC’s hashtag #ElÚltimoDíaDeLaGuerra. The signing of a bilateral ceasefire between the Colombian government and FARC formally ended hostilities in the world’s longest running war. The signing of a peace agreement is expected to take place during the summer of 2016.

To the overlapping academic fields of human rights, transitional justice and post-conflict reconstruction, the sophisticated Colombian transitional justice process is attractive and will likely be highly influential for the coming decade, both as an example of success and of failure. There is also a significant risk that scholars (outside Colombia) will embrace the Colombian experience either deterministically — as an example of systemic yet de-historicized power imbalances — or as a fantastical  and outsized legal progress narrative that can serve as an endless source of political models, constitutional processes and legal arguments suitable for embellishing the transitional justice juggernaut.

My argument in the following is based on one big supposition: I will put forward the idea that approached from a law and social change perspective, the Colombian transitional justice project is necessarily a failure foreseen.

“Everybody” knows that positive peace is not going to happen through legislation, decisions by a progressive Colombia Constitutional Court or the signing of a formal agreement. This Everybody also knows that if positive peace happens, it will not happen soon.  At the same time, it is easy to imagine that a year from now, politicians, ordinary Colombians, pundits and academics will dismiss the transitional justice legislation and the peace agreement as partial or total failures for their inability to perform the impossible expected by the Everybody; namely ending violence, providing reparations and changing the structural inequality that is the source of much of the violence.

However, I think that precisely at this juncture, as a community professionally engaged in the business of imagining peace and transitional justice, we need to reflect on what the critical takeaways from and beyond this failure foreseen could be. We may find that imagined and imaginative outcomes turn out to be imaginary. But this is not enough, it’s not even a starting point. We need to go beyond that.

Hence, after briefly describing the Colombian peace process, I will map out three sets of issues that could serve as tentative points of departure for critical reflection. This includes:

  • How we can gauge the meaning of the Colombian transitional justice process for Colombian citizenry, citizenship and the state;
  • The implications of Colombia being both outlaw and legal outlier for how we consider the role and place of the law in creating durable peace;
  • A first attempt to think through some of the general lessons Colombia can have for transitional justice practice and scholarship.

Peace and conflict as statecraft

The armed conflict between the government and FARC began in 1964. Separate negotiations have previously led to the demobilization of smaller guerillas (MAQL, M-19; EPL) and an agenda for formal negotiations has now been agreed with ELN.  However, Colombia has been at war or seen violent societal conflict for most of the time since the late 1890s. Colombian peace processes and attempts at political, legal and land reform are a fixture of Colombian statecraft. The last round of peace talks with FARC ended with fiasco in 2002. From 2003 president Uribe engaged in a much-criticized effort to demobilize the paramilitary AUC, with a basis in the 2005 Justice and Peace Law. Despite its shortcomings, it must be remembered that this framework has provided a platform for the current process.

Continue reading →

Sexual and gender-based violence in the Colombian conflict should not get a raw deal before the International Criminal Court

/ Anna v. Gall / 3 Comments

In 2014 an average of two women were raped every three days in the course of the armed conflict in Colombia. Sexual and gender-based violence is a systematic and widespread phenomenon. Yet to date there have been very few convictions for sexualized violence – especially in cases in which the perpetrator was a member of the armed forces. By failing to act, the Colombian state is denying women the protection against sexualized crimes and access to justice that it is obliged to guarantee under national and international law. The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in The Hague has to date failed to include a comprehensive gender perspective into its assessment of the Colombian conflict. In its Interim Report on the Situation in Colombia from November 2012, the OTP acknowledged that between 2002 and 2008, members of the Colombian army deliberately killed thousands of civilians (so called “falsos positivos” cases) and classified them as crimes against humanity. The OTP also noted that rape and other forms of sexual violence can be attributed to state forces, paramilitaries and guerrilla. Regarding state forces, however, the OTP thus far considered sexual crimes only as war crimes. It remained silent on the question of whether sexual violence committed by the state forces could amount to crimes against humanity.

A comprehensive legal analysis of a conflict situation under international criminal law requires an adequate narrative of the conflict, which necessarily involves a gender perspective in order to detect and avoid patriarchal ways of applying international norms and international criminal law. The new Policy Paper on Sexual and Gender-Based Crimes (PP) by the OTP of the ICC provides a helpful tool for applying these norms without reproducing gender inequalities. The content of the PP is the achievement of long-term lobbying by feminist activists and academics and is based on a liberal rights-based approach of feminist theory. In the PP, the OTP announces its intention to integrate a “gender perspective” and “gender analysis” at all stages of its work, terms, which, however, remain rather vague. Prosecutor Fatou Bensouda recently acknowledged, “an important aspect of challenging the culture of discrimination that allows sexual and gender-based crimes to prevail is the effective investigation and prosecution of those most responsible for such heinous crimes.”

Therefore, the OTP should start implementing its PP in the Colombian case. This could have a substantive effect on preliminarily examinations in general, and on evaluating command responsibility and the admissibility criteria in particular. Continue reading →

Recent developments in Colombian jurisprudence on conflict-related sexual violence

/ Daniela Kravetz / 3 Comments

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. Continue reading →

Beyond Sexual Violence: Gendered Political Insecurity as a Threat to Peace

/ Kristin Bergtora Sandvik / Leave a comment

Julieta Lemaitre and Kristin Bergtora Sandvik

Based on extensive field research in Colombia, our new article Beyond Sexual Violence in Transitional Justice: Political Insecurity as a Gendered Harm examines political insecurity as a specifically gendered harm that must be addressed in the ongoing Colombian transitional justice process.

In a previous blogpost we described the tragic plight of the women’s rights activist and survivor of sexual violence Angélica Bello. Bello was one of the main proponents of Law 18 June 2014, which sets out to guarantee access to justice for victims of sexual violence. The Law is part of the transitional justice process and seeks to bring Colombian law into harmony with international law regarding sexual violence in the context of the armed conflict. It defines crimes of sexual violence as war crimes and crimes against humanity, and sets out criteria for investigating sexual crimes and protecting survivors analogous to those of the ICC. As the peace negotiations in Havana between the government and the FARC guerrilla continue to make slow but steady progress, the sexual violence agenda increasingly captures the field of harms to women in war.

While recognizing the importance of this law, we nevertheless suggest that it is a problem for the ongoing transitional justice process that there are so few articulations of what other kinds of gendered harms may look like and how they should be effectively addressed. Much of the growing literature on gender in armed conflict and the debates over post-conflict reparations for women focuses on the prevalence and harms of sexual violence. This development has engendered controversial debates concerning the alleged prioritization of sexual violence at the expense of other harms to women, whether this debate sexualizes and infantilizes women, as well as with respect to forms of victimization not captured by feminist frames of reference, such as male rape (This is often framed as a debate between the Halley and MacKinnon schools of thought). In her work on reparations, Ruth Rubio-Marin takes issue with what she sees as an excessive emphasis on sexual violence in transitional justice, embodying both a suggestion that sexual harm is the worst abuse that can happen to women and the entrenchment of a patriarchal ideal of female chastity. Rubio-Marin (2012) argues that the ‘hyper-attention’ to sex now risks doing further harm to women by deviating attention from other non-sexual forms of sex-specific harms, and isolating sexual and gender based violence from broader agendas that confront the multiple gendered forms of harm and injustice.

What are these other gender specific harms? What should transitional justice focus on beyond sexual violence? How can we think of gendered harms in relation to poverty alleviation or of resource redistribution?

In our article, we argue that if civic trust is to be built among all citizens, women’s experience of exclusion from the political through force and intimidation must be included in the narratives of armed conflict, political insecurity and the aftermath of war. Importantly, political insecurity is complex and extends beyond conflict between the state and the guerrillas, and yet the guarantee of security of political activity is a central component of a transition to peace. Arguably, political insecurity will persist as long as there is no effective challenge to the subnational hold of illegal armed actors emerging in the aftermath of war. The insecurity fostered by these actors is gendered, enforcing cultural mandates to confine women to the domestic space. In a transition to the end of armed conflict guerrillas can stop being both a threat for community organizing, and a justification for state repression.

Finally, we also suggest that the complete dismantling of gendered political insecurity will remain a challenge for transitional justice. A just transition to peace for women would require first, the dismantling of the capacity of private powers (at least of organized crime and business interests) to use violence to achieve their economic goals, and it will also require a vigorous promotion of women’s political participation at the grassroots level. More scholarly attention to the gendered aspects of these problems and scenarios is needed as Colombia continues to stumble towards the end of its 5o year old civil war.

Colombian peace talks advance, but raise difficult justice issues

/ Naomi Roht-Arriaza / Leave a comment

Last week, I had the honor of addressing the assembled Colombian judiciary on how comparative experiences can help inform the difficult choices the country will need to make in order to finalize a peace deal with the armed insurgents (FARC and ELN) and bring an end to over 50 years of armed conflict.  As part of the meeting, the chief government negotiator in the talks now being held in Havana, Cuba, outlined the points of agreement and difficulties to date.  The process has raised difficult debates over how to take advantage of the best opportunity for peace in a generation while meeting the country’s international legal obligations, in a world where blanket amnesty is no longer an option.

Unlike earlier peace initiatives – and unlike the deals negotiated in Central America more than a decade ago – the current talks focus almost exclusively with ending the war, leaving political and social reforms to later discussion.  There is one major exception:  an agreement on rural development, based on a shared understanding between the parties that structural inequalities in the countryside are fueling the conflict, and that while the urban middle class has increased and agribusiness is flourishing, small farmers have suffered.  The agreement creates a Rural Land Bank, tax incentives for small farmer development, land surveying and titling, better access to credit and technical assistance, and improved government services in rural areas.  Whether any of this will make enough of a difference in the face of simultaneous widespread African palm and export agro expansion remains to be seen.

Its success may also depend on how well the country’s ambitious land restitution scheme ends up working.  Colombia has up to five million forcibly displaced people. In its first six months, newly appointed restitution judges have issued 270 decisions, most of them in favor of people forced off their land by armed groups.  While impressive, this is only a small part of the cases of forced dispossession.  To complicate matters, judges are finding that land was often taken by force more than once during the course of the conflict, leading to multiple claims and contestation by different groups of victims.  The security situation in parts of the country has also impeded implementation of these early decisions, as litigants and judges are threatened and some community leaders have been killed.

The rest of the peace negotiating agenda includes political participation, demobilization, relation to narcotrafficking, victims, transitional justice and the form of citizen approval of whatever deal is reached.  Transitional justice is proving one of the more difficult – and interesting – aspects of the discussion.  There is little talk of amnesty, and a broad understanding that neither the Inter-American Court of Human Rights nor the International Criminal Court (Colombia is a state party, and the Prosecutor has had a preliminary investigation open since 2004) would countenance an amnesty or pardon that included war crimes or crimes against humanity.  At the same time, there are an estimated 10,000 fighters, many of whom have played a role in kidnappings, extortion or military operations.  The Colombian state has neither the ability nor the resources to investigate, much less prosecute them all.

It also has some experience with creating alternative justice procedures, gained in the demobilization of right-wing paramilitary groups starting in 2005.  The Justice and Peace Law 975 promised conditional suspension after a hearing of the normal sentences for murder and other serious crimes, to be replaced by an alternative 5-8 year sentence.  In exchange, the applicant committed to demobilize, give an unsworn public statement detailing his crimes, and turn over any lands or other property stolen as a result of paramilitary activities.   Unfortunately, after years in operation and 4000 demobilization applications, the Law as of 2012 had yielded less than 20 convictions and little asset recovery, in part due to the difficulty of investigating the statements.  There is a widespread sense among judges that the judiciary would get equally swamped were the insurgents included in a similar process.

Arguing that it was needed for peace talks, the government earlier this year passed, and the Constitutional Court approved, a constitutional amendment, known as the Framework Law of Peace.  It allows the Chief Prosecutor to determine criteria to prioritize and select cases for prosecution that involve those most responsible for international crimes.  It also, more controversially, allows for conditions under which sentences can be suspended, alternative sanctions or special modalities of serving the sentence imposed, and some cases not prosecuted at all.  After a challenge, the Constitutional Court upheld the law, reading it, however, as requiring investigation of all grave violations, if not necessarily punishment of all those involved.

 

The FARC have until now rejected the Framework Law because it was unilaterally decreed.  Nonetheless, there seems to be agreement that the shape of a deal will require some form of conditional pardon or suspended sentence for the rank and file, many of whom were recruited as child soldiers.  There also seems to be broad agreement on a Truth Commission that would examine all the actors in the extended conflict, including the state and economically powerful forces.  The big question remains whether some form of conditional suspended or reduced sentence for the top leaders can be crafted in a way that passes muster.  What is clear is how far the region has come since the last wave of post-conflict or post-dictatorship transitions in terms of agreement on the primacy of the obligations towards victims and the rejection of blanket amnesties.

 

The question of how any agreement is ratified by the population is also contentious, with the government proposing an up-or-down referendum and the insurgents leaning towards a constitutional convention.  The idea is that civil society, which has been largely excluded from the talks, would weigh in at that point.  It is unfortunate that, for example, there are no female negotiators on either side (although there are key female advisors), so women’s groups will only be able to raise concerns late in the day.  There is also a determined effort on the part of the right, led by former president Alvaro Uribe, to scuttle the talks and insist on a military victory. Nonetheless, the talks present the best chance in years to finally put an end to Latin America’s longest-running conflict.

The Gender Justice Shadow of Complementarity: Lessons from the International Criminal Court’s preliminary examinations in Guinea and Colombia

/ Emily Waller / 2 Comments

In early July 2013, Human Rights Watch reported that one of the alleged perpetrators of the 2009 Guinea stadium massacre, Lieutenant-Colonel Claude Pivi, has been charged with murder, rape and destruction of property. This was an important first step towards holding one of primary suspects of this atrocity to account. It was also a significant moment for the International Criminal Court (ICC), which in 2009 had commenced a preliminary examination –under the Rome Statute’s complementarity provisions – into this massacre, and the Guinean authorities efforts to bring to justice the perpetrators. However, as we point out in a forthcoming article in the International Journal of Transitional Justice [forthcoming: Volume 7 (3)] the Guinean case also highlights the existence of a ‘gender justice shadow’ in relation to the ICC’s complementarity processes, especially in relation to the investigation and prosecution of crimes of sexual violence against women.

Our article considers the ICC’s Office of the Prosecutor (OTP) preliminary examinations of both the Guinean massacre and the Colombian conflict and argues that, on an analysis of  publically available information, the OTP has applied a low threshold when assessing crimes of sexual violence against women against the three core criteria – state action, willingness and ability – of the Rome Statute’s complementarity test, effectively leaving intact impunity for these crimes.

Our argument here mirrors the work of Kevin Heller, who has shown that while the Rome Statute establishes the highest standards of due process for cases before the ICC, its complementarity provisions do not extend due process rights in national jurisdictions. Similarly, we suggest that there is a ‘gender justice shadow’ side to complementarity: the Rome Statute provides the most developed articulation of gender justice of any instrument of international criminal law, yet complementarity does little to extend these measures to the domestic level.

Members of the Women’s Caucus for Gender Justice, who were so influential in shaping the ground-breaking gender justice aspects of the Rome Statue, were the first to highlight this gender justice shadow. During the negotiations process in the late 1990s, the Caucus cautioned that unless the Rome Statute recognised in its complementarity tests of action, willingness and inability the gender biased features of national penal codes, especially weak substantive and procedural laws to address sexual violence against women, it ‘could result in impunity for crimes of sexual and gender violence’ (Women’s Caucus for Gender Justice, ‘Gender Justice and the ICC’, paper presented at the Rome Conference, Italy, 15 June – 17 July 1998, 24; document with the authors). This argument has since reiterated by other commentators and academics (see Women’s Initiative for Gender Justice, Susana SáCouto and Katherine Clearly, and Amrita Kapur).

Our analysis shows that the OTP’s preliminary conclusions about complementarity in Guinea and Colombia have failed to take adequate account of crimes of sexual violence against women. There are questions as to whether the domestic proceedings have addressed either the same persons or the same crimes, particularly where sexual violence is involved. In both Guinea and Colombia, some of the sexual violence crimes documented by the OTP are not included in the domestic penal codes, and a lack of transparency makes it difficult to assess which individuals the OTP is investigating, and whether they have been charged for sexual violence at the national level.

Similarly, it appears that in the OTP’s application of the willingness and ability criteria in these two sites, gender biases in domestic law have been overlooked. Based on the available documentation, it seems there has been minimal, if any, attention given to impartiality in proceedings for victims of sexual and gender-based crimes or the limitations in local laws to allow for investigation and prosecution of a full range of sexual and gender-based crimes.

These problems of apparent non-recognition of gender justice issues in Guinea and Colombia are a legacy of the failure of States to include the Women’s Caucus for Gender Justice’s suggestions to expressly integrate gender justice concerns in the complementarity provisions. The prediction made in the 1990s by the Women’s Caucus appears to have become a reality at least in Guinea and Colombia: ongoing impunity for many perpetrators of sexual violence, and little justice for the victims of these crimes. This is, we argue, the gender justice shadow of complementarity.

The positive side of the story is that the ICC’s second Prosecutor, Fatou Bensouda, has professed a strong commitment to gender justice; building around her a team of advisors including Brigid Inder, Patricia Viseur Sellers and Diane Amann, who have high-level gender justice expertise. The creation of an overarching OTP gender policy, slated for release in 2013, will provide the chance for the Office to draw on lessons from its first decade in operation and establish new procedures which embed core gender justice concerns in ongoing and future complementarity assessments. At minimum is hoped that the OTP will provide clear criteria for evaluating action, willingness and ability at the preliminary examination stage in ways that capture existing gender biases in the law. In implementing this policy it will be important that the OTP, and the other arms of the Court, are as transparent as they can possibly be (within a highly sensitive legal context) about their recognition of gender biases when undertaking preliminary examinations and throughout the complementarity process. It is only when such information is available that a complete assessment can be made of the impact of the gender justice shadow of complementarity.

— Co-authored with Louise Chappell and Rosemary Grey.

Colombia: After the War- What Future for Women?

/ Julieta Lemaitre and Kristin Sandvik / Leave a comment

As the peace process with FARC inches along in Colombia, a question remains unasked: after the war, what will the future look like for women?

This question was the focal point for a series of events at Universidad de Los Andes in Bogotá May 2 and 3, bringing together women grassroots leaders, Colombian cause lawyers, government officials and international scholars to imagine a Colombia after the war. From the viewpoint of transitional Justice (Ruth Rubio); social suffering (Lucie White) and suffering after war (Veena Das), and the Colombian conflict (Angélika Rettberg, Camila De Gamboa, Donny Meertens and María E. Wills).

Panelists were invited to imagine a future for women after the war, based on the premise that as academics committed to social justice, we have a high stake in ensuring women’s transformative and redistributive concerns are part of the post-conflict. And, more poignantly, that should the process fail to achieve peace for women, this be a failure of the will, not of the imagination.

Generally the experts were cautious. In the case of Colombia, even imagining an end to war is difficult. While a peace agreement between the government and the FARC guerrilla may be signed this year, such agreement will not mean an end to violence. The current war is only part of a long-lasting conflict that has torn apart several generations, and that today increasingly finds its expressions in illegal natural resource extraction practices, shady business deals, and the ubiquitous, armed presence of organized crime.

While the country is developing fast,  inequality levels remain among the highest in the world, and  murders and death threats  against social movement leaders, trade unionists, human rights defenders and other visible community leaders and intellectuals remain part and parcel of Colombian social and political life.

At the same time, Colombia is a constitutional democracy with a strong administrative state, and far-reaching legal protection mechanisms for vulnerable groups, mechanisms that are used actively by a plethora of grassroots organizations in their struggle for social change. It is also the scene of rapidly changing institutional mechanisms for both responding to the ongoing humanitarian crisis, and, if the government has its way, to ensure a transition to peace.

In 2011 the government and Congress adopted land-breaking legislation (Law 1448 of 2011) to repair victims of armed conflict, which, like the many Constitutional Court decisions which address the matter, take women’s concerns seriously. This legal framework replaced that of internal displacement as the official response to the humanitarian crisis, transforming the category of internally displaced people to a broad category of “victims” of different crimes by different perpetrators  under the 2011 victims law, all entitled to reparations in the truth/justice/reparations mantra of transitional justice.

Yet, the new system has met significant difficulties in implementation. These arise in part from the usual problems with setting up a new national agency with insufficient resources to deal with an enormous vulnerable population. They also arise from the persistent reprisals by illegal armed actors against potential beneficiaries and, increasingly, against officials of the victim’s relief programs.

In this context, hope is hard to muster, even in the protected hallways of the elite Universidad de los Andes. And while there is a substantive amount of civil society activism on feminist issues, most of this activism focus on making sexual violence, and its victims, visible. Few activists, if any, are asking difficult questions about the transformations (including redistribution of resources) that a peace process, with its ensuing transition, might bring for women, especially for the rural women who have born the enormous weight of war. Hence, we must keep asking the question: After the war; what future for these women?

Julieta Lemaitre and Kristin Bergtora Sandvik

Launch of report series on safe shelters for refugees and IDPs fleeing SGBV

/ Kim Thuy Seelinger / 1 Comment

I had the great pleasure of launching our research series on safe shelter from sexual and gender-based violence in forced displacement contexts today at the UNHCR NGO Consultation in Geneva.  This was the study I introduced in an IntLawGrrls post last June, as we were starting our data analysis.

Safe Haven: Sheltering Displaced Persons from Sexual and Gender-Based Violence, Comparative Report.

Safe Haven: Sheltering Displaced Persons from Sexual and Gender-Based Violence, Comparative Report.

IntLawGrrls might recall that the study was aimed at filling the gap between limited international guidance on safe shelter provision in forced displacement contexts and knowledge about what is and is not working on the ground. We had 3 main objectives:

  1. Identify and describe shelter models available to refugees, the internally displaced, and other migrants fleeing sexual and gender-based violence.
  2. Identify  challenges experienced by staff and residents in these settings and document strategies used to respond to these challenges.
  3. Explore protection needs and options for particularly marginalized victim groups, such as male survivors, sexual minorities, and people with disabilities.

To learn more about the above, we interviewed safe shelter residents, safe shelter staff, and key informants in Colombia, Haiti, Kenya, and Thailand in the first half of 2012. The case-study research culminated in five reports: four country reports and one comparative report. All are available here on the Human Rights Center website.

One of our key findings was the great diversity of existing safe shelter mechanisms – even beyond traditional safe houses. Other data concerned the tremendous work being done under shockingly constrained resources. Of course, we also documented recurrent challenges related to resource limitations, security and emotional support needs of shelter STAFF as well as residents, limited transition options,  the need for community buy-in, and the lack of coordination among shelter programs – especially between mainstream safe shelters and those serving refugees or IDPs.

Safe shelter options come in traditional and nontraditional forms.

Safe shelter options come in traditional and nontraditional forms.

In addition, we noted some of the ethical and political challenges that can arise in the provision of focused protection of a few, while in the midst of general deprivation.

Finally, we marked critical protection gaps – particularly around LGBT persons, male survivors, and persons with serious health conditions.

Protection solutions must be context-specific. For this reason, our recommendations are circumspect; we tried not to overstep the bounds of our data.  Hopefully, our exploratory study in four very distinct countries will nonetheless shed light on what is and what is not working well in those contexts, and what strategies might be helpful in similar circumstances.

So far, the heads of UNHCR’s Policy Development and Evaluation Service and the Division of International Protection have welcomed the research and say it will directly impact their thinking and programming on protection from sexual and gender-based violence. We hope so. We also hope for similar openness as we bring our research back to providers and policymakers in each case study country this month – we’ll then share their grassroots-level updates, feedback, and additional recommendations with UNHCR headquarters again in July when we’re done.