Accountability for Conflict-Related Sexual Violence Crimes in Colombia

by Daniela Kravetz

The issue of accountability for sexual violence crimes in Colombia’s decades long conflict has been in the spotlight this year. In January, Colombia’s Constitutional Court issued Auto (Order) 009, noting “with alarm” the persistence of sexual violence as a serious form of gender discrimination. It urged authorities to address these crimes, prevent their occurrence and ensure their non-repetition. In May, UN Special Representative on Sexual Violence in Conflict Zainab Bangura travelled to Havana, Cuba to discuss conflict-related sexual violence at the peace talks between the Government and FARC delegations. Ms Bangura called on the parties to prioritise sexual violence at the talks and to ensure justice for survivors. This trip followed Ms Bangura’s visit to Colombia last March, where she stressed upon Colombian authorities the need to end the silence and impunity surrounding these crimes.

These calls for accountability are important. Despite their prevalence, sexual violence crimes are rarely investigated or prosecuted by national authorities, and impunity levels remain high. In its 2014 report on the ongoing preliminary examination in Colombia, the Office of the Prosecutor of the International Criminal Court (ICC) noted that the number of conflict-related sexual violence prosecutions remains low despite the scale of the phenomenon. The ICC has called on Colombian authorities to comply with their international obligations to prosecute these crimes.

Efforts to step up accountability for sexual violence are having a far-reaching impact in Colombia. Recent judicial precedents underscore the contribution of domestic prosecutions in giving visibility to the nature and scope of sexual violence crimes in the conflict. Domestic prosecutions also highlight the serious nature of these crimes and expand our understanding of the context of gender inequality and discrimination in which they occur, thus helping to overcome misconceptions about these crimes. Importantly, holding perpetrators accountable contributes to ending the entrenched culture of impunity surrounding sexual violence, mitigating its prevalence in the future.

Recent cases have demonstrated the multiple purposes of sexual violence and the impact of gender roles on its infliction in the conflict. For example, in its February 2015 judgment in the Villa Zapata et al case, the Justice and Peace Chamber of the Bogotá High Tribunal examined the different forms of sexual and gender-based violence used by paramilitaries of the Bloque Vencedores de Arauca to terrorise civilians. In some instances, paramilitaries abducted, tortured and brutally gang-raped female victims because of their suspected ties to left-wing guerilla members. Some victims were murdered and dismembered after being raped. The court concluded that factors related to gender had influenced the types of harm inflicted on the victims−through this violence, paramilitaries sought to both punish the women and humiliate the men of the opposing side. In the Mancuso et al judgment of November 2014, the Bogotá High Tribunal found the Auto Defensas Unidas de Colombia (United Self-Defense Forces of Colombia, AUC) responsible for 175 acts of rape, enforced prostitution, forced sterilization and forced abortion in different regions of Colombia. The tribunal found that this paramilitary group used such violence as a war tactic to gain control of territory, intimidate civilians, force them to flee and destroy the social fabric of communities. The AUC also murdered some victims because of their sexual orientation in a bid to “cleanse the population”.

Accurately contextualizing sexual violence has proven critical to successfully prosecuting these crimes. The Niño Balaguera et al case illustrates this point. The case concerned two former paramilitary members accused of abducting, raping and torturing a woman. Last November, the Supreme Court’s Criminal Chamber overturned a ruling from a lower court for failing to find that the rape charged amounted to a war crime. It examined the broader context of violence in which the rape occurred to conclude that it was closely related to the conflict. Relying primarily on precedents from the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, the Chamber found that the prosecution had correctly charged the rape as a war crime, and convicted both accused for this crime.

Finally, several judgments have sent a strong message that leaders of armed groups responsible for sexual violence must be held accountable. These cases have in turn contributed to developing case-law on modes of liability that can be used to connect high-level accused to the sexual violence. For example, cases prosecuted under the special justice mechanism established by Law 975 of 2005−known as the Justice and Peace Law−have applied indirect perpetration through organized structures of powers as a mode of liability to hold the leadership accountable for sexual violence by subordinates. In both the Villa Zapata et al and Mancuso et al cases, high-level paramilitary leaders were found guilty as indirect perpetrators for making use of the organisations they controlled to effect the commission of the crimes. In their leadership roles, they designed, promoted and implemented policies of violence and terror against civilians, which led to the sexual violence.

Despite the progress made, significant challenges remain. To obtain successful outcomes in its sexual violence cases, the Colombian Attorney General’s Office must make the prosecution of sexual violence a core part of its work, conduct more effective and adequate criminal investigations and train its staff to better handle complaints filed by sexual violence survivors. Investigations must also target all armed actors to the conflict, including state actors. Finally, the Office must adopt coherent and consistent legal strategies and charging theories, targeting both direct perpetrators and those responsible for orchestrating this violence in accordance with international legal standards.

The launch of the Prosecuting Conflict-Related Sexual Violence Network by the International Association of Prosecutors this month marks an important step to improving accountability for these crimes. The network aims to foster the exchange of expertise and knowledge among practitioners, and facilitate their training and access to relevant legal materials. It also seeks to generate a focused dialogue among practitioners from different regions working in this field and to promote the development of progressive approaches to sexual violence prosecutions. As the case of Colombia shows, understanding and addressing conflict-related sexual violence are vital to ending impunity and ensuring its non-repetition.