Article by Helena Von Nagy,
Established consciously as an entity informed by international human rights, humanitarian, and criminal law but operating within a domestic context, Colombia’s new transitional justice court presents a fascinating nexus of international human rights law and domestic statutes. It helpfully instantiates how international law can be incorporated into domestic courts. In trying sexual violence cases, the court balances domestic statutes and international law, using the latter as a “reference legal framework” to inform its reading of domestic statutes. Under the watchful eye of international law, the court attempts to balance its primary purpose of reconciliation with the specific government mandate that not all crimes deserve amnesty. The challenge of balancing amnesty, punishment, and domestic and international requirements is especially evident in the court’s treatment of sexual violence cases.
In November 2016, the Colombian government succeeded in negotiating an end to a five-decade civil conflict that inflicted deep wounds on Colombian politics and society. In 1962, in reaction to extreme polarization, violent repression and protest, an undemocratic power-sharing accord, failures of agrarian reform, and political control by elites in Colombia, a group of primarily university students formed the Ejército de Liberación Nacional (ELN, National Liberation Army). The Fuerzas Armadas Revolucionarias de Colombia (FARC), the guerilla group that came to define the conflict, soon emerged as well. For more than fifty-four years, Colombian civilians lived in fear of kidnappings, bombings, military raids, forced displacement, sexual violence, and other war crimes. Not only members of the guerilla groups, but also the members of the right-wing paramilitaries and the state armed forces perpetrated these crimes. By the time of the peace accord, over 260,000 Colombians had died—over 80% of whom had been civilians—and 7.5 million had been displaced. Due to the violence, chaos, and factionalism wrought by the conflict, the Colombian people rejected the government’s proposal to negotiate with the FARC in a plebiscite in October 2016. The government nonetheless approved the agreement in the name of restoring civil, social, and political stability to Colombia.
Addressing sexual violence against women—or ‘crimes against sexual liberty and autonomy—became an important focus of the negotiators. Women comprise over half of the 8.8 million people – a fifth of the total population – recognized as victims of the prolonged Colombian conflict. As of October 1 of this year, 28,767 victims of sexual violence perpetrated in connection to the armed conflict had reported claims to the Victims’ Office (Unidad para la Atención y la Reparación Integral a las Víctimas ) since 1985. The most frequent offenders were members of the paramilitary, followed by the guerillas, and then the state armed forces.
In an attempt to resolve the tensions of the conflict quickly and justly, the Peace Accord offered amnesty for certain crimes, and most significantly, established a special tribunal, the Jurisdición especial para la paz (JEP, Special Jurisdiction for the Peace) to try war crimes committed by guerillas and state actors, including sexual violence. The JEP, and the Accord overall, balances international laws governing human rights, humanitarian actions, and war crimes with domestic laws to structure what it will hear and how it will decide cases. The framers clarified, “the parties, always and at every stage, have upheld the spirit and scope of the rules of the National Constitution, the principles of international law, international human rights law, international humanitarian law (its conventions and protocols), the stipulations of the Rome Statute (international criminal law), the decisions of the Inter-American Court of Human Rights concerning conflicts and conflict termination, and other resolutions of universally recognized jurisdictions and authoritative pronouncements relating to the subject matters agreed upon….” As suggested, the Agreement balances international law with domestic law; it encourages the JEP to employ international law as a “reference legal framework” in its attempts to apply the “most favorable law,” though it does not clarify to whom the law should be most favorable.
The balance comes through clearly in relation to sexual violence claims. In practice, the court seems to prefer domestic statutes informed by general principles of international law. The Agreement placed a special emphasis on sexual violence, and included 100 provisions on women’s human rights, several of which address conflict-related sexual violence. The domestic statutes further refine the JEP’s interpretation of sexual violence. For example, Ley 1820 of 2016, § 23(a) specified that sexual violence would not be governed by the amnesty policy of the JEP (see here for implementation example). Most significantly, it counts sexual violence with other “serious war crimes,” which includes “any violation of international humanitarian law committed as part of a systematic attack—hostage taking or other serious deprivations of freedom, torture, extrajudicial executions, forced disappearances, rape and other forms of sexual violence, child abduction, forced displacement and the recruitment of minors.” All of these offenses are specifically ineligible for amnesty or pardon, “as established in the Rome Statute.” Thus, the Agreement establish a wide array of crimes in which the interest of protecting the victims and punishing the violators overrides the strong emphasis on restorative justice for military actors.
Colombia also has a wide range of statutes that establish sexual violence as a crime. Ley 1448 of 2011 ("Law on victims and land restitution”) recognized crimes against sexual liberty and autonomy in armed conflict and created a national coordinate system for attention to victims’ needs in such settings. It also established victims’ rights offices, including the Office of Victims’ Psychosocial and Physical Health (PAPSVI), the National System for Victim’s Attention and Reparation (SNARIV), and “Victim’s Tables,” or local, regional, and national support systems that bring local issues to the national attention. Ley 1719 (2014), a municipal law in Bogotá, established the normative base for the protection of sexual liberty and autonomy in armed conflict. It also included provisions for access to justice, especially for victims of crimes associated with armed conflict. Finally, Report 009 (2015) of the Constitutional Court established that crimes against sexual liberty and autonomy would be prioritized in considerations of damages (“reparación administrativa”). The JEP actively incorporates domestic statutes in its decision making and frequently cites and relies on them in verdicts.
Although the court officially affirmed that amnesty will not be available for sexual crimes, it has struggled to properly delineate how it will treat sexual crimes committed by actors who violated other international laws related to war. It has yet to formalize its policy on amnesty for sexual crimes. Recent decisions suggest the court may distinguish between sexual crimes committed in connection with the conflict (whatever that may mean) and sexual crimes in the context of the conflict: “Not all sexual and gender crimes, though they took place during the conflict, are connected to it.” The court refused to grant a lesser sentence to Orlando Guerrero Ortega, a FARC soldier, after convicting him of sexual assault because Ortega’s crime was not connected to the training he received as a soldier. In the dissent, however, Magistrate Mauricio García Cadena argued that the court’s opinion misrepresented the connection between sexual violence and the conflict. He also proposed a framework for analyzing how the conflict influenced sexual violence going forward, establishing three types of sexual violence: violence as part of the official strategy of armed groups; violence that is not ordered, but tolerated by commanders; and, opportunistic individual violence (like Ortega’s case). Other activists, however, have resisted the efforts to formalize a rule.
Nonetheless, sexual crimes have received amnesty. Some organizations are reluctant to bring sexual violence cases before the JEP because of the amnesty mandate. For example, Salvatore Mancuso, the ex-second-in-command of the United Self-Defense Forces of Colombia (AUC) paramilitary group is currently serving 15 years and ten months in US prison on drug trafficking charges. The Superior Court in Bogotá convicted him in absentia to 40 years in prison for war crimes committed against women. He opted instead for a trial with the JEP to resolve his other war crimes, which has sentenced him to 8 years, served after he returns from the US, plus “rehabilitation” activities in the name of reconciliation. Thus, they disregarded his sexual crimes in order to address other wrongs. Furthermore, the Corporación Rosa Blanca, which represents female members of the FARC who were victims of sexual assault, has publicly decried the amnesty policy of the JEP. They have decided to bring their 26 public cases to the ICC instead of the JEP to avoid the possibility of amnesty for the perpetrators. Despite Ley 1820 (exempting sexual violence from amnesty), the JEP has signaled its intent to prioritize offering amnesty for political crimes in order to aid the reconstruction process, and disregard punitive punishments for sexual violence. Thus, the interest in restorative justice and amnesty may frustrate the punishment of sexual violence, despite the strong domestic laws and promises of the court.
Though the process remains flawed, the JEP is a promising example of integrating international human rights and humanitarian law into domestic courts. The biggest challenge to the court is balancing sexual violence, other war crimes, and the interests of restorative justice in a way that systematically acknowledges survivor’s right of restitution. Whatever balance the court strikes, however, will specifically acknowledge the goals and requirements of international law, establishing a promising precedent in the Americas for future trials.