01 Apr Once More on Judicial Resilience: The Inter-American Court of Human Rights Responds to the Revictimizing Challenge of Colombia in the Case of Jineth Bedoya Lima and Other
[Dr. Mariela Morales Antoniazzi is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law where she coordinates the Ius Constitutionale Commune in América Latina (ICCAL) project.
Silvia Steininger is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law.]
On March 15, in an extraordinary act of resistance to the Inter-American Court of Human Rights (IACtHR), Colombian representatives withdrew from the proceedings on the first day of the public hearings in the case of Jineth Bedoya Lima and Other v. Colombia. The case concerns the abduction, rape, and torture of journalist and human rights defender Jineth Bedoya Lima committed in 2000 during a work visit to the prison “La Modelo” in Bogotá. Colombia abandoned the hearing after the statement of the alleged victim Jineth Bedoya Lima and denounced the lack of objectivity of five judges in the proceeding. This unprecedented situation thus links to ongoing debates on gender, withdrawal, and backlash against human rights courts.
In the following, we illustrate what led to this highly unusual situation and highlight how the Inter-American human rights system came together in a bold and united fashion to address the Colombian decision. Consequently, we argue that the resilience of the Inter-American system stems exactly from the combination of both an outspoken Court, which decried the Colombian withdrawal in a rigorous resolution, and an active civil society that rallied around Jineth Bedoya under the hashtag #NoEsHoraDeCallar.
The Case of Jineth Bedoya
The case originated in an application of the Foundation for Press Freedom (FLIP) to the Inter-American Commission on Human Rights (IACHR) in 2011. In January 2019, the IACHR approved its Merits Report in which it laid out that the abduction, rape, and torture of journalist Jineth Bedoya must be considered in a context of general violence against journalists and particularly sexual violence against women during the Colombian armed conflict. The crimes had been committed when journalist Jineth Bedoya was waiting for an interview with imprisoned paramilitaries. The IACHR also found the “failure of the State to adopt appropriate and timely measures to protect and prevent said events, despite knowing that the journalist was in a situation of risk due to her work”. After Colombia failed to acknowledge its responsibility, the Commission presented the case to the IACtHR on July 16, 2019. The Court scheduled the first day of public hearings for March 15, 2021.
What Happened on March 15?
Public hearings, which heavily rely on the personal involvement of alleged victims, are an essential feature of the IACtHR. In the victim-centered approach of the Court, the hearings, both in the merits and in the implementation phase, provide a space for the victims to appear before the Court and be dignified through the opportunity of speaking their truth. Thus, on March 15, the proceedings started with the testimony of Jineth Bedoya Lima who described over one hour in detail the severe human rights violations she had suffered. During her sometimes highly emotional testimony, the judges asked several questions. After her statement, Camilo Alberto Gómez Alzate, as Agent of the State of the Republic of Colombia, requested the recusal of the President and all the Judges of the Court present at the public hearing, except for Judge Eduardo Vio Grossi. He alleged both a “lack of guarantees and objectivity in this proceeding”, referring to the “obligation of the Judges to be objective and impartial”, and a “prejudgment” on the part of the aforementioned judges. The State considered that the hearing “c[ould] not continue under the present conditions” and decided to abandon the hearing after the statement of the alleged victim Jineth Bedoya Lima. Consequentially, Colombia was requested to hand in a written statement of its withdrawal; in the meantime, the Court decided to suspend the hearing.
On March 16, Colombia clarified its recusation and re-directed it towards the Court’s President, Judge Elizabeth Odio Benito, the Vice-President, Judge L. Patricio Pazmiño Freire, and Judges E. Raúl Zaffaroni and Ricardo Pérez Manrique, but not Eduardo Ferrer Mac Gregor. Furthermore, Colombia requested both the nullity of all the proceedings from the moment the Court heard the State’s recusal and the exclusion from the international case file of those questions formulated by the Judges that gave rise to the request for recusal.
The Response of the IACtHR
The recusal of judges according to Art. 19 of the Statute of the Inter-American Court is permissible in situations of personal or prior professional involvement (para 1) or from “some [other] appropriate reason” (para 2 and 3). However, the decision on the disqualification ultimately lies with the President. Therefore, on March 17, the Court handed down a resolution in which it denied all the requests made by Colombia to recuse the judges and nullify the proceedings. Judge Odio Benito rejected the allegations made by the State as she considered them groundless and lacked any factual assumption that could cast doubt on the impartiality of the judges. Also, Judge Pazmiño Freire clarified that the action which has been deemed a violation of objectivity by Colombia constituted the use of an appropriate gender perspective:
In cases in which sexual violence against a woman is alleged, “empathy with the alleged victim and the formulation of an interrogation that is comfortable, safe and that provides confidence, as well as the elimination of spaces of re-victimization, are concrete obligations of the judges”. Therefore, “it cannot be considered that the use of an adequate gender perspective in the trial is contrary to the principle of impartiality” (para. 8, own translation)
Judge Manrique explained that the questions asked by judges were meant to clarify the situation, and the data cited by the judges on crimes against journalists referred to what had been affirmed by IACtHR in the case of Carvajal Carvajal v. Colombia. Judge Zaffaroni sated that he asked questions to clarify the prison context and to avoid misunderstandings regarding the victim’s statement
In sum, the resolution presented that the specific case at hand required both the freedom of expression on behalf of the judges as well as the elimination of spaces of re-victimization. At this intersection, a proper language directed towards the victim as well as the oral collection of information and the related questioning did not constitute any form of partiality but was a coherent and victim-sensitive approach following the normative framework provided by the Statute of the Inter-American Court. One day later, on March 18, Judge Odio Benito as President issued a second resolution in which the Court resolved to resume the public hearings on March 22.
Implications: Gender, Resistance, Resilience
The case of Jineth Bedoya has several implications: First, it demonstrates how questions of gender and gender-based violence are at the forefront of the backlash against human rights. While the IACtHR has dealt with allegations of gender-based violence in the past, this was the first time when the allegation of violence against women in Colombia, and in particular a female journalist, were at the center of the proceedings. Thus, the Court was expected to set a precedent in Colombia’s decades-long armed conflict. The withdrawal from the hearing by Colombia accordingly has provoked numerous reactions in favor of Jineth Bedoya. Civil society actors dedicated to the promotion of the freedom of the press and the right of access to justice initiated a wide public debate on state obligations to ensure justice in cases of violence against journalists. They also highlighted a chronicle of justice delayed as well as the re-victimization of Jineth Bedoya by the Colombian State. Furthermore, as Viviana Krsticevic, director of the Center for Justice and International Law (CEJIL), and lawyer in the case, states, Colombia’s attitude was not only disproportionate but also “creates doubts about the state’s commitment to its international obligations to the Inter-American system and other international conflict resolution forums”. In the interim, Camilo Alberto Gómez Alzate, who had challenged the judges of the Inter-American Court, invited Jineth Bedoya to accept an amicable solution to impede processual difficulties at the IACtHR. The offer was rejected by Jineth Bedoya by stating that “if the State wishes to accept its responsibility for the violations committed and undertake to implement the required reparations, it must do so before the Inter-American Court, within the framework of the ongoing proceedings”.
This is why, secondly, the behavior of the Colombian agent, in this case, must also be considered in a broader context as Colombia has been questioned on its commitment to the Inter-American human rights system in recent years. This form of resistance is not as outspoken as in its African counterpart but takes a more incremental approach. For instance, in a 2019 collective letter, the presidents of Argentina, Brazil, Chile, Colombia, and Paraguay affirmed that they respect the normative value of the American Convention on Human Rights, but wish for a broader reliance on the principle of subsidiarity. From that perspective, the case of Jineth Bedoya reflects a broader trend of increasing attacks against international human rights bodies and specifically of threats of withdrawal from the IACtHR as in the case of Venezuela. The intersection of gender is particularly insightful from a comparative perspective, as, in the same week, Turkey announced its withdrawal from the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, the so-called “Istanbul Convention”. This also raises fundamental questions on the position of human rights in Turkey and the normative framework of the Council of Europe.
Following the abovementioned resolution from March 18 of the IACtHR, the hearings were resumed on March 22. Colombia agreed to join. Additionally, on March 24, the IACtHR ordered the Colombian state to immediately implement provisional measures to protect the life and personal integrity of the alleged victims Jineth Bedoya Lima and Luz Nelly Lima. Nonetheless, the case unveiled the fragile context of human rights courts and highlighted a third implication, namely the importance of civil society for institutional resilience. At its core, the IACtHR’s role consists in safeguarding core values of the Inter-American system, in particular vis-à-vis individuals and groups which do not enjoy sufficient protection on the national level. Yet, when faced with state behavior that openly puts into question such normative frameworks as well as the impartiality of its representative organ, its embedment in an active and outspoken community of practice is indispensable. Strong links to civil society actors as well as independent media and press can help to legitimize the transformative mandate of the Inter-American system and guard the impartiality of its judges.