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

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!

Can the ICC prosecute forced contraception?

A recent New York Times article on the enforcement of contraception by fighters of Islamic State to prevent Yazidi women and girls held as sex slaves from becoming pregnant, once again underscored the broad range of sexual and reproductive violence committed against women and girls in conflict. As I wrote elsewhere in a longer version of this post, a question that immediately popped into my mind reading this was: does international criminal law, as we know it, have the tools to capture this harm, and how can it address such reproductive violence?

Although Iraq is not a State Party to the Rome Statute, let’s assume for a moment that the International Criminal Court (ICC) could (hypothetically) exercise jurisdiction over crimes committed by ISIS fighters in Iraq. How could we charge this forced use of contraception?

The Rome Statute criminalises a broad range of sexual and gender-based crimes, but only two specifically capture reproductive harm (although all forms of sexual violence can have serious, long-lasting reproductive consequences): forced pregnancy, and enforced sterilisation. Enforced sterilisation as either a war crime or crime against humanity means the deprivation of a person’s biological reproductive capacity without their genuine consent. On the face of it, this might cover forcing Yazidi women and girls to take contraception. However, the Elements of the Crimes specify that enforced sterilisation “is not intended to include birth-control measures which have a non-permanent effect in practice”.

Although it could potentially be charged it as genocide “by imposing measures intended to prevent births”, strong evidence would need to be submitted that the acts were committed with specific genocidal intent, i.e. with “intent to destroy, in whole or in part, a national, ethnical, racial or religious groups, as such”.

Then what about a charge of other forms of sexual violence? Under the Rome Statute, other forms of sexual violence constitute: “… [the commission of] acts of a sexual nature against one or more persons or caus[ing] such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion…”. Classifying forced contraception as “other forms of sexual violence” thus depends on what determines whether an act is of a sexual nature. The women and girls were forced to take contraception in order for them to “remain available for sex”. Suspending their reproductive capacity was thus a critical component of the conditions that enabled rape (i.e. an act of a sexual nature) to take place. As such, if we conceptualise the rationale for the specific act of forced contraception as the ‘sexual nature’ part of the definition, forced contraception could be charged as “other forms of sexual violence”.

However, judges at the ICC have previously ruled that penile amputation – in effect, depriving men of their biological reproductive capacity – did not constitute acts of a sexual nature (note: in that case, the acts were not charged as enforced sterilisation by the Prosecution, but as other forms of sexual violence). While that decision has been heavily criticised, it does underscore that there is no clear understanding (yet) as to what “of a sexual nature” means under the Rome Statute.

The most likely charge, therefore, seems to be “other inhumane acts” as a crime against humanity under article 7(1)(k). Under this same article, the Office of the Prosecutor has charged Dominic Ongwen with forced marriage, a crime also not specifically provided for in the Rome Statute. This catchall provision could thus become an important feature in international criminal law to respond to and address new and emerging forms of violence against women in conflict not currently captured by the law. However, unless and until the ICC acquires jurisdiction over the crimes committed by ISIS, this discussion on the prosecution of forced contraception for Yazidi women and girls is one we can only have in the abstract.