War Crimes Tribunal should open a National Case on Gender Based Violence

21/7/21

National and International Organisations are calling on Colombia’s War Crimes Tribunal, the Special Jurisdiction for Peace (JEP) to open a National Case on sexual, reproductive, gender-based and LGBTI violence in that occurred in the armed conflict.

The JEP has taken an innovative and important approach to gender and race by taking a cross cutting approach in all of its cases. However, in the case of sexual and gender based violence and reproductive and LGBTI violence it is essential to also open a National Case. Only in this way will the patterns of violence, the suffering of victims and the extent of what happened in relation to these War Crimes be revealed.

Rape is one of the only crimes for which a community’s response is more often to stigmatise the victim rather than prosecute the perpetrator.

Repetition

Conflict-related sexual violence needs to be understood in its social and cultural context. In addition to patriarchal systems based on domination and gender discrimination, are other risk factors, such as social, political and economic marginalisation. These structural roots create a permissive context for the use of violence. Impunity for these crimes acts to reinforce, rather than challenge, these pre-existing norms and patterns of discrimination against women and LGBTI persons, both inside and outside of the conflict. What happened to women and LGBTI persons in the conflict in terms of sexual and gender based violence must be challenged. Only the truth when it is revealed will have the capacity to challenge attitudes that permit these violations and will create the possibility of Truth, Justice, Reparation and Non-Repetition envisaged in the final peace agreement.

In addition to factors impacting on all women, indigenous and afro-Colombian women have to deal with a history of slavery and years of condoned violence against them. This is coupled with racist perceptions that include a series of stereotypes about women’s bodies. This has resulted in even higher rates of violence against afro-Colombian and indigenous women. Multi-faceted oppression combined with the conflict further complicated this precarious situation.

Along with conflict generating unprecedented levels of sexual violence is a lack of state presence, particularly in the rural areas, and forced displacement, which not only lead to high indices of poverty, but also threaten cultural survival. In 2011 the Constitutional Court declared 34 Indigenous Communities at risk of physical or cultural extinction. According to the National Indigenous Organisation (ONIC), the multiple forms of violence used against indigenous women have produced, spiritual and cultural suffering both for the individual and the community.

Violence against women and LGBTI persons was exacerbated by the conflict. We have seen state agents repeating this crime by using sexual and gender based violence and assault against protesters over the last three years. In 2021 alone during the protests that started on 28 April according to the Inter-American Commission of Human Rights (IACHR) report written following a visit to Colombia in June 2021 the Colombian Ombudsman has registered 113 actions of gender based violence during the social protests. 112 of these were allegedly committed by the Police and the Riot Police (ESMAD), 99 of these violations were against women and 13 against LGBTI persons. These included 27 cases of sexual violence, five cases of violent carnal access, and 22 cases of sexual assault. One of the cases was gender based violence against a women police officer. These cases only further highlight the importance of a National Case.

Colombia is a country where there is a persistent panorama of historical impunity for these crimes. Peace for women and LGBTI persons requires a transformation of these attitudes that underlie the violence directed at them both inside and outside of conflict.

International Norms and the Peace Accord

The Colombian Peace Accord drew on international norms in insisting that there are no amnesties for conflict sexual violence in Colombia. Resolutions such as UN Security Council Resolution 1960 (2000) suggests mechanisms to ensure reporting and punishment of conflict-related sexual violence, with the aim of preventing crimes by making sexual violence a liability for armed groups.[1]

The G8 declaration on preventing sexual violence in conflict, promoted by the UK during its presidency of the G8 in 2013 [ii] which draws on UN Resolutions 1325, as well as international law instruments in Resolutions 1820 and 1261 on women, peace and security, and 1612 on children in armed conflict. The declaration reiterates that no amnesties should be given for crimes of sexual violence in conflict. It stresses the importance of ending impunity for perpetrators of rape and other forms of sexual violence in armed conflict.

EU documents stress there should be no amnesties for conflict-related sexual violence, ‘the EU… will fight vigorously against impunity for serious crimes of concern… including sexual violence committed in connection with armed conflict…’,[iii] recognising that ‘in conflict and post-conflict situations it is crucial… to raise the issue of gender-based violence, including sexual violence, impunity and the enforcement of judicial measures against perpetrators of such atrocities’.[iv]

There is agreement across the various international instruments, as well as documents agreed nationally, that sexual violence in conflict is not a crime that should be granted amnesty. This crime has no justification in any conflict or domestic situation. If left unpunished, conflict-related sexual violence has repercussions for truth, justice, reparation and non-repetition, as well as for gender equality in the reconstruction process. If subject to amnesties sexual violence will become further entrenched in a post-conflict society.

This break through for women and men is extremely important for Colombia if real and transformative peace for women and LGBQTI persons is to take root in Colombia. It is also important for peace processes around the world as the JEP will set the bar internationally for this War Crime.