Reflecting with Practitioners: How is Latin America (Still and Again) Paving the Way for the Promotion of Accountability for Sexual Violence in Conflict Before National Courts?

In past decades, Latin American countries witnessed violent conflict and serious human rights abuses at the hands of state and non-state actors. In these contexts, conflict-related sexual violence was widespread, perpetrated in order to advance military goals and as a tactic of repression against political opponents and communities. But as the region has grappled with the past through efforts toward justice and accountability, there have been positive legal developments that warrant attention and should inform policy, judicial, and programmatic responses elsewhere.

Taking stock of these developments, four leading experts––Daniela Kravetz, Susana SáCouto, Marta Valiñas, and Ana Medina––reflected on advances made in the region, shared their experiences, and identified good and innovative practices, especially in Guatemala and Colombia. This post is a teaser and an invite to the Opinio Juris readers to explore this subject further, in the Special Issue and the latest Digital Dialogue.  

It is difficult to summarize the advances made in Latin America, but one of the major key first steps was to secure judicial recognition of conflict-related sexual violence as a specific criminal offence. In Argentina, after years of documentation and litigation, national courts recognized the systematic nature of sexual violence, dispelling the notion that such crimes were incidental and trying them as stand-alone serious offenses. In Guatemala, prosecutors also challenged legal tradition, advancing the interpretation and application of existing law, to produce charges that captured the nature of the crimes committed against Mayan women. In the Rios Montt case, sexual violence was prosecuted as genocide before a national court. In the Sepur Zarco case, under the crimes against humanity canvas, national prosecutors brought forward charges of sexual violence, sexual slavery, domestic slavery and outrages upon personal dignity. The legal qualification of the offences was particularly important for the victims: it exhibited the systematicity of the acts; provided a broader understanding of the conflict that included women’s experiences; and publicly evinced the ever-present coercion, allowing women to shift the blame from themselves to the perpetrators. Ultimately, these charges also reflected the courage of lawyers and justice officials who listened, understood, and willingly prosecuted the crimes survived by the women who were seeking justice.

In an area where stigma and fear remain important obstacles to achieve justice, it is remarkable that the progress made builds primarily on the courage and perseverance of victims, survivors, and CSOs. In fact, the Sepur Zarco case in Guatemala and the Special Jurisdiction for Peace (SJP) in Colombia have shown strides in access to justice for victims. CSOs, including Mujeres Transformado el Mundo (MTM), were instrumental in bringing the Sepur Zarco case and driving its innovations. In 2009, three CSOs (MTM, ECAP, and UNAMG) formed an alliance dedicated to detailing human rights abuses during the Guatemalan conflict. The alliance worked closely with women’s and human rights organizations, helping to break the silence around sexual violence and educating victims and their communities about the judicial process and supporting them through the trial and afterwards, in the implementation of the sentence. Victims and representatives remained central actors throughout the case. However, this should prompt us to consider: what should national authorities do to promote access to justice for survivors of sexual violence that may not be organized or do not have the support of CSOs? In Colombia, for example, the magistrates of the SJP’s Chamber for the Acknowledgement of Truth and Responsibility, the entry point for victims as it opens cases for investigation by the jurisdiction, have been proactively organizing hearings with remote and isolated communities to obtain more information from victims and develop a dialogue between the magistrates and the survivors.

The focus on a survivor-centered process has also led to procedural advances that should not be dismissed, particularly to prevent the risk of victims’ re-traumatization through the judicial proceedings. Argentinean jurisprudence, including the Gregorio Rafael Molina judgment, enshrined the principle that testimony of a victim suffices to establish the crime and that corroboration is not required. The Sepur Zarco case evinced further good practices with respect to protecting victims and using national and international experts at trial. Notably, the Court allowed for the victims of sexual crimes (the abuelas, or grandmothers) to testify via pre-recorded testimony that was captured during the preliminary investigation, given their representatives’ assertion that in-person testimony would negatively impact the victims’ physical and mental wellbeing. Additionally, the testimonies provided by 18 experts at trial allowed the court to better understand the context and frame the victims’ experience related in their testimonies. Expert witnesses were also important to understand the role of those who had not directly committed but ordered or condoned the crimes perpetrated against the victims. Significantly, this jurisprudence also developed innovative approaches to capture the responsibility of senior leadership.

Overall, it is undeniable that Latin American jurisdictions have enhanced their ability to bring justice to sexual violence in conflict. But their willingness to do so has been equally essential. In Argentina, in order to strengthen the investigation and prosecution of sexual and gender-based violence, the Public Prosecution Office issued guidelines on how to prosecute sexual violence as a crime against humanity, particularly aimed at clarifying the requirement to qualify acts of sexual violence as being constitutive of crimes against humanity. In Guatemala, in 2012, it was the then Attorney General Claudia Paz y Paz, responsible for overseeing the ongoing prosecutions related to the conflict, who issued instructions to ensure that her team included sexual violence investigations as part of their work. In the statutory law of the Special Jurisdiction for Peace (SJP), the Colombian legislator gave special emphasis to the needs of female or child victims who suffered in a disproportionate and differentiated way the effects of the serious crimes and violations committed in the context of the conflict. Moreover, investigations conducted by SJP are expected to guarantee the rights of victims of sexual violence, ensuring that all acts are conducted with respect for victims’ private lives and avoid revictimization.

The advances documented here should not allow us to forget that, for most victims of conflict-related sexual violence, justice remains an onerous and dangerous challenge. But these advances also remind us that we –CSOs, lawyers, policymakers, scholars— have the tools (and the responsibility) to open, improve and facilitate a safer and more effective path to justice. #talk2endCRSV