On 11 December 2019, the Colombian Constitutional Courtissued an important decisionrecognising that women and girls who suffered forced contraception and forcedabortion by their own armed groups should be recognized as ‘victims of armedconflict’. The decision is one of very few in the world to specificallyrecognise reproductive violence as a form of harm committed against women andgirls in times of conflict. It thus sets an important legal precedent inrecognising a form of gender-based violence that has long remained invisible.Although the full written decision has not yet been made available, a summaryhas been published. It is analysed here:
Helena’s case
The case was brought by Women’sLink Worldwide on behalf of Helena(pseudonym), a young woman who had been forcibly recruited into the FARC at theage of 14. While with the FARC, she was forced to use contraception(injections) and forced to undergo an abortion when she became pregnant. Shesuffered significant and long-lasting health consequences as a result of theunsafe conditions in which these procedures were carried out. Continuing tosuffer negative health consequences, Helena fled and was in hiding for manyyears until the peacedeal with the government was signed. In 2017, she submitted anapplication to be recognised as a victim and to seek reparations underColombia’s Law on Victims and Land Restitution (Law1448). This law, adopted in 2011, recognizes victims of the armedconflict and confirms their rights to truth, justice and reparations. Itincludes provisions on the restitution of land and other reparations, andrequires that special attention be paid to the needs of specific groups and communities,such as women, survivors of sexual violence, trade unionists, victims of forceddisplacement, and human rights defenders.
The agency charged with the registration of victims underthis framework (UARIV) denied Helena’s claim for victim status. In doing so,UARIV relied upon an article in Law 1448 that denied victim status to membersof illegal armed groups (Article 2(3)), and held that, in any case, Helena’sclaim was submitted outside of applicable timelines set out in Law 1448. Helenawas granted access to government-provided medical support, but her claims forrecognition as a victim and for reparations under Law 1448 were dismissed inboth first and second instance. She appealed her case to the ConstitutionalCourt, who heard the matter in 2019, and issued this landmark decision at theend of last year. Her case was selected for review by the full panel of ninejudges, illustrating the importance the Constitutional Court attached to theissues.
Constitutional Court’s decision
In its December 2019 decision, the Constitutional Courtestablished that Helena was the victim of grave violations of her fundamentalrights. They found that the lower court had failed to properly substantiate itsdecision by neither acknowledging the acts of forced abortion and forceddisplacement Helena suffered, nor by recognising that Helena’s specificcircumstances constituted force majeure, preventing her fromsubmitting an application within designated timelines….
The Court ordered:
– that the decision by UARIV not to include Helena in theRegister of Victims be declared void;
that within 10 days of the date of its decision, UARIV admitHelena to the Register of Victims on the basis of her having suffered forcedrecruitment as a child, sexual violence (including forced use of contraceptivesand forced abortion), and forced displacement;
– that within 15 days of the date of its decision, UARIVreinstate the provision of psychosocial and medical assistance to Helena toaddress the emotional, mental health and physical effects of having sufferedsexual 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 toHelena to immediate, comprehensive, gender-sensitive, specialised care for aslong as necessary to address the physical and psychological consequences of theviolations she suffered.
Significance of the decision
….This case establishes that ex-combatants who were forciblyrecruited into illegal armed groups and suffered sexual violence, as well asreproductive violence, within those armed groups may seek victim status andthus have access to reparations under Law 1448 – a right they did not havebefore – regardless of the age at which they demobilised or fled….
This decision also sets important legal precedent inrecognising that victims of sexual and reproductive violence within armedgroups are victims of armed conflict. This follows earlier jurisprudence by theInternational Criminal Court in the Ntaganda case (hereand here).The decision is also one of very few in the world to specifically recognise reproductiveviolenceas a distinct form of harm committed against women and girls in times ofconflict.
As part of the case, the Court received 17 expert briefsfrom national and international human rights organisations, women’s rightsorganisations, academics and international experts, including one from theauthor of this blog post written jointly with Ciara Laverty.
Reproductive violence is a widespread yet under-studiedphenomenon that occurs in times of both conflict and of peace. It can haveserious physical, mental, emotional and other consequences that persist longafter the violence has occurred. It is a form of victimisation connected to butalso different from sexual and other violence, due to the distinct harm itinflicts and the underlying value it is said to violate, i.e. reproductiveautonomy….
FULL REPORT: IntLawGrrls, by Dienek Vos, 11 January 2020 ; SEEALSO La Historia de Helena, by Women’s Link Worldwide,