25 Feb ‘Ntaganda’ in Colombia: Intra-Party Reproductive Violence at the Colombian Constitutional Court
[Ciara Laverty is a PhD candidate at the Grotius Centre for International Legal Studies, Leiden University. Dieneke de Vos received her PhD in international criminal law from the European University Institute, Florence and currently works in the humanitarian sector on the prevention of sexual harassment, exploitation and abuse.]
On 11 February 2020, Colombia’s Constitutional Court made public its full reasoning in the precedent-setting tutela action by Helena (a pseudonym), a woman forcibly recruited by the FARC and subjected to forced contraception and forced abortion, as well as other violations. The decision is noteworthy both for its finding that forced contraception and forced abortion are forms of sexual and gender-based violence that constitute war crimes, as well as for its adoption and expansion of the ICC’s reasoning in Ntaganda with respect to intra-party crimes. Although this was ultimately a ruling on an individual constitutional action it may set important precedent for similar cases both in Colombia and elsewhere.
Helena was forcibly recruited at the age of 14. As a member of the FARC, she was subjected to the group’s internal reproductive planning policies, designed to ensure that women could continue to fight or fulfil other functions within the group. Female members of the group were therefore prohibited from having children; they were required to use contraception and were often forced to undergo abortions when they became pregnant.
In 2007, Helena discovered that she was six months pregnant. When FARC commanders learned of her pregnancy, she was told that she would be required to undergo an abortion. Despite threats that she would be condemned to death by the FARC’s war council, she refused to comply. When she continued to resist the order to have an abortion, she was made to swallow pills and had an abortion-inducing drug forcibly inserted. When she woke up, Helena was informed that a caesarean section had been performed on her to remove the foetus. Helena lost a significant amount of blood during the surgery and has continued to suffer serious health problems.
In 2017, Helena applied to be recognised as a victim and seek reparations under Colombia’s ‘Victims Law’ (Law 1448), but was denied victim status partly on the grounds that she had been a member of an armed group. The Constitutional Court’s decision reflects the result of her appeal of this decision. It overturned the denial of victim status and concluded that the forced contraception and forced abortion inflicted on Helena constituted both breaches of her fundamental rights as well as war crimes (section II, 3.2).
Reproductive violence in conflict
Reproductive violence can broadly be understood as violence targeting a victim’s reproductive capacity or involving a violation of reproductive autonomy. It takes place in times of both conflict and peace and remains an understudied phenomenon that is often overlooked in post-conflict accountability mechanisms. International legal recognition of conflict-related reproductive violence has also been limited. As such, Colombia’s Constitutional Court is one of the first to specifically address reproductive violence in the context of a transitional justice process.
In this decision, the Constitutional Court concluded that forced contraception and forced abortion constitute both violations of a woman’s sexual and reproductive rights and a form of sexual and gender-based violence in the context of IHL. It held that the latter also constitute war crimes when acts of sexual and gender-based violence occur in the context of an armed conflict (section II, 3.2). It subsequently concluded that, given the link between the armed conflict and the acts of forced contraception and forced abortion inflicted upon Helena, she was a victim of the conflict and thus entitled to reparations under Law 1448.
In coming to this conclusion, the Constitutional Court examined a range of human rights obligations and frameworks relevant to reproductive rights. For instance, the Court recalled specifically General Comment 19 on Article 16(1)(e) of CEDAW, which stipulates that “compulsory sterilization or abortion adversely affects women’s physical and mental health and infringes the right of women to decide on the number and spacing of their children”. It also referred to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, the Committee on Economic, Social and Cultural Rights’ General Comment No. 22 (2016) and Principle 8 of the Report of the 1994 International Conference on Population and Development, which address rights to reproductive health (section II, 2.11). By specifically referring to rights to reproductive health, to decide on the number and spacing of children, and to make decisions on reproduction free from discrimination, coercion and violence, the decision is innovative in highlighting how conflict-related gender-based violence may involve violations of reproductive rights.
The Court also noted that the Rome Statute of the ICC criminalises various forms of sexual violence, including forced pregnancy and enforced sterilization, as both crimes against humanity and war crimes. In recognizing forced abortion and forced contraception as forms of sexual and gender-based violence that constitute war crimes, the decision expands upon the forms of reproductive violence currently captured by international criminal law. It also demonstrates how international crimes can have reproductive dimensions by involving violations of reproductive autonomy and rights.
Ultimately, the decision constitutes not only a significant victory for victims in Colombia, but encourages greater attention to reproductive violence in post-conflict accountability mechanisms and reparations programmes more broadly. The Court’s conclusions may also facilitate greater legal recognition of similar conduct in other contexts, such as forced contraception inflicted on victims of sexual slavery by the Islamic State in Iraq and the Levant, forced abortions inflicted on women repatriated from China and on inmates of political prison camps in the Democratic People’s Republic of Korea, or coercive contraception policies enforced against the Rohingya in Myanmar.
Intra-party reproductive violence as a war crime
In recognising Helena’s victimisation while being a member of an armed group, the Court endorsed the ICC’s decision in Ntaganda, which established that crimes committed by members of armed groups against their own (intra-party crimes) can constitute war crimes when there is a nexus to the conflict. Like the ICC, the Constitutional Court reiterated that the prohibition in international law against sexual violence does not distinguish between individuals based on their legal status, thus finding that the protections from these crimes are not restricted only to specifically defined ‘protected groups’ under IHL, such as civilians or enemy combatants no longer participating in hostilities, but extend to combatants within the same armed group. Equally agreeing with the ICC that not all criminal conduct that occurs in times of conflict necessarily rises to the level of international crimes, the Constitutional Court concurred that for crimes committed within an armed group to constitute war crimes – rather than ‘ordinary’ human rights or domestic criminal law violations – it is necessary to demonstrate that there is a clear nexus to the armed conflict. By finding a strong nexus between the acts of forced contraception and forced abortion and the Colombian internal armed conflict, the Constitutional Court thus also places these acts within the scope of such intra-party crimes.
The decision arguably goes even further by making explicit what was only implied in the Ntaganda case. Whereas Ntaganda dealt with the commission of such crimes specifically against child soldiers, and only implied wider applicability, Colombia’s Constitutional Court extends these protections for the purposes of reparations to combatants of all ages who suffer sexual violence while with an armed group. The Court stated that it would be against international law to withhold victim status from female ex-combatants who suffered sexual and gender-based violence and that, regardless of whether they were recruited as a minor, they were thus entitled to reparations (section II, 2.11). In doing so, the decision also suggests that intra-party crimes of sexual violence, including acts of forced contraception and forced abortion, may constitute war crimes when such conduct occurs in the context of or in association with an armed conflict because all individuals, regardless of age or legal status, are protected against such conduct at all times.
Significantly, although this decision related to an individual constitutional action, the Court articulated explicitly that it also intended its decision to stand as notice to other courts in Colombia on the question of intra-party crimes, particularly those involving sexual violence. It did so in an effort to redress spaces of impunity and to reiterate the importance of meaningful access to justice for the victims of such crimes. In making this statement, the Court criticised the Amnesty Chamber of the Special Jurisdiction for Peace (JEP) for not recognising intra-party forced abortion specifically as a war crime in the case against Héctor Arboleda, also known as ‘The Nurse’, who is alleged to have been responsible for hundreds of forced abortions inflicted on female members of several armed groups, including the FARC (section II, 3.2).
The Court was also particularly sensitive to the gendered dimensions of membership of armed groups. It noted that female members of armed groups, in their role as combatants, are often seen to defy traditionally accepted gender norms. The Court recognised that, when combined with also suffering sexual violence, which is notoriously stigmatized and underreported, such individuals are often doubly stigmatized, which may compound the challenges they face in accessing justice (section II, 2.11). This reasoning breaks new ground in illuminating the complex interplay between gender and the perceived binary between victim and perpetrator.
Ultimately, this decision draws attention to how intra-party sexual, reproductive or other violence can in some cases be an inherent part of a group’s ongoing military campaign, such as where it is committed to keep women available as fighters or perform other functions within the group, or as an essential component of forced recruitment practices. Through its explicit recognition of forced contraception and forced abortion as war crimes, the Constitutional Court’s decision contributes to a growing understanding of reproductive violence as a distinct form of harm requiring legal recognition, protection and redress. In applying the Ntaganda approach with respect to intra-party war crimes to these forms of reproductive violence, the decision also sheds light on a previously overlooked dimension of women’s experiences of conflict and victimization, and illuminates the complexities of their participation in armed groups.