What Happens When Transitional Justice Leaves Victims of Reproductive Violence Behind? A Look into the Inter-American Court’s Ramos Durand v Peru Historic Judgment

[Nataly Santana Sánchez is a doctoral candidate at the University of Essex. Her research focuses on reproductive violence and transitional justice. Prior to joining the University of Essex, she worked advising the Ministry of Women of the Dominican Republic on the implementation of international human rights law into domestic laws and policies.]

Throughout history, forced sterilisation has been a weapon of population control, eugenics ideology and genocidal acts. It has been used against Jewish people, Puerto Rican women, the Uyghur population, transgender people, Indigenous and poor women in Peru and elsewhere, to name a few. Forced sterilisation is often pursued by state policy, enacted through laws and upheld by courts. While human rights bodies have increasingly condemned forced sterilisation as violations to the right to privacy, bodily integrity, and to be free from torture and ill-treatment, this and other forms of reproductive violence have been largely absent from the practice of international criminal courts and tribunals, and transitional justice efforts.

This absence is striking. Despite being criminalised under the Rome Statute, forced sterilisation has never been prosecuted before the ICC or any ad hoc tribunal. Even among gender-specific human rights treaties, only the Istanbul Convention on Preventing and Combating Violence against Women explicitly mentions forced sterilisation as a prohibited conduct that must be criminalised. 

Against this backdrop, the Inter-American Court of Human Rights’ Ramos Durand et. al. v. Peru judgment marks a historic turning point. It does so for two reasons. First, the Court became the first one to frame forced sterilisation as violence, calling it by its name: reproductive violence (para. 174). Second, the Court classifies forced sterilisation as a gross human rights violation (para. 170). This is crucial because in transitional justice contexts (where, realistically, not every violation can be addressed) this label operates as a signal of priority. This signalling sends a clear message: reproductive violence cannot be sidelined when societies address past atrocities.

Contextualising Forced Sterilisation in Peru

Peru experienced 20 years of armed conflict and repression (1980-2000), during which many gross human rights violations, including torture, enforced disappearances, extrajudicial killings, forced displacement and sexual violence, were perpetrated. 

The Ramos Durand case centres around forced sterilisations that occurred during this period. Under the so-called Programa Nacional de Salud Reproductiva y Planificación Familiar (‘PNSRPF’), which ran from 1996 to 2000, an estimated 24,563 men and 314,605 women were sterilised (para. 144). While officially framed as a voluntary family planning programme, multiple reports documented coercive practices, including numerical quotas, incentives for medical personnel and the conditioning of social benefits on undergoing sterilisation. The PNSRPF favoured ‘voluntary’ surgical contraception over other contraceptive technologies, and its primary targets were Indigenous women and those living in poverty, particularly in rural, Andean and Amazonian regions.

The victim of this case, Celia Ramos Durand, was one of these women. She was 34 years old and lived with her husband and three children in one of Peru’s poorest provinces. In 1997, medical personnel repeatedly visited her home to pressure her into undergoing tubal ligation. She died 19 days after the procedure from complications related to the gross mishandling of the surgery (para. 82).

The Missing Piece in Peru’s Transitional Justice Process

Peru’s transitional justice process was never designed to capture harms like those at issue in Ramos Durand. The Truth and Reconciliation Commission (‘TRC’), established in 2001, focused primarily on conflict-related violations. While its mandate covered gross human rights violations, it made no explicit reference to gender-based violence and, in practice, gendered harms were reduced to conflict-related sexual violence (as is typical practice for truth-seeking bodies).

This had significant consequences. Reproductive violence fell outside the TRC’s analytical lens and, consequently, was left outside its final report. When it did appear, in the form of forced abortions and pregnancies resulting from rape, it was only recognised as collateral harms in connection to sexual violence, rather than as a standalone violation. As a result, victims of forced sterilisation were excluded from the TRC’s recommendations on prosecutions and reparations. The Comprehensive Reparations Programme that followed only recognised victims of rape as beneficiaries of reparations measures.

Ultimately, this erasure translates into a politics of forgetting that victims have challenged for years. Victims of the PNSRPF have spent decades seeking truth, justice and reparations at the domestic level, filing criminal complaints, including against former President Fujimori and his former Ministers of Health, and advocating for the creation of a reparations programme that specifically addresses their reproductive harms. The failure of the Peruvian state to respond adequately ultimately led them to the Inter-American Human Rights System.

The Ramos Durand judgment exposes this gap. By recognising forced sterilisation as a gross human rights violation, it places it squarely within the category of harms that transitional justice mechanisms are expected to address. While it is too late to reshape the TRC’s work, it is not too late for reparations, and the judgment makes that clear.

The Inter-American Court’s Contributions to Transitional Justice in Latin America

Latin America has long been a laboratory for transitional justice, from early truth commissions in Argentina and Chile to expansive reparations programmes across the region. Alongside these processes, the Inter-American Court has been instrumental to the development of transitional justice, setting legal standards for how transitions should unfold, and indicating where states fall short.

Famously, the Court has ruled on the incompatibility of amnesty laws with international human rights law; crystalised the scope of states’ obligations to investigate, prosecute and provide reparations to victims when dealing with high volume violations; established the dimensions of the right to truth and the role and limitations of truth commissions in fulfilling this right; and considered how prosecutorial prioritisation in transitional justice frameworks could be compatible with international standards. 

The Ramos Durand v. Peru judgment is an important contribution to the Inter-American jurisprudence to the field of transitional justice; one that disrupts a pattern of neglect towards reproductive violence; one that calls reproductive violence by its name and includes it in its catalogue of gross human rights violations. It is a contribution that has immense potential for current and future transitional justice processes. 

The Court’s Findings

Naming Reproductive Violence

Emerging scholarship on international law has coined ‘reproductive violence’ to refer to violent acts and omissions that affect reproductive autonomy. Scholars (such as Zammit Borda, Grey and Altunjan) have noted the invisibility of this form of gendered violence in international law (mostly, international criminal law and less frequently in transitional justice) (see Sánchez Parra and Cocomá Ricaurte & Laguna Trujillo). They have also advocated for this term to be codified into the Draft Treaty on Crimes Against Humanity and denounced the obscuring of reproductive violence under the category of sexual violence.

While acts of reproductive violence have been considered by other international jurisdictions, the term ‘reproductive violence’ had not yet been used, let alone defined, by any adjudicative body. In Ramos Durand, the Court breaks with this pattern, becoming the first to call it by its name. In what will likely become a frequently cited paragraph in the tribunal’s jurisprudence, the Court conceptualises reproductive violence as “acts or omissions that cause harm to people’s reproductive health” (para. 174) and identifies forced sterilisation as one of its forms, alongside forced pregnancy, forced abortion, forced contraception and obstetric violence (paras. 173 & 173). As such, the judgment establishes that Celia was a victim of reproductive violence (para. 176) and that her forced sterilisation was a form of institutional violence prohibited by the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women ‘Belém do Pará Convention’ (para. 153).

This finding is a logical progression in the Court’s gender-transformative jurisprudence. It is not its first ruling relating to sterilisation procedures without consent, nor is it the first time to frame it as a violation to the Belém do Pará Convention. It is, however, the first time the Court highlighted the distinctive nature and harms of this type of gendered violence: it placed reproductive health in the centre of the conceptualisation of violence. Naming, in this context, is not merely semantic. It is what allows the law to see the harm for what it is, rather than forcing it into pre-existing, and often ill-fitting, categories.

Forced Sterilisation as a Gross Human Rights Violation

Although unclear about its assessment criteria, the Inter-American jurisprudence has developed a non-exhaustive list of so-called gross human rights violations. The list includes extrajudicial killings, torture, enforced disappearances, sexual violence, war crimes and crimes against humanity. Forced sterilisation becomes a new addition to the list (para. 170). The implications of belonging to this list are diffuse but also tangible. First, it makes reproductive violence one of a small category of violations recognised as non-negotiable priorities for states transitioning into peace or democracy. Due to the large scale of mass atrocities, transitional justice mechanisms tend to prioritise certain sets of violations, often those deemed to be the most grave. While there is little clarity as to what the criteria is to assign this seal of gravity, it has often been associated with male-centred conceptions of violence that frequently prioritise civil and political rights. 

The only gender-specific form of violence that is now consistently conceptualised as gross is sexual violence, but it has occurred at the expense of reducing women’s experiences of conflict to rape. By affirming the gravity of forced sterilisation, the Court expands the understanding of gendered harms beyond sexual harms and challenges the assumptions that have long determined whose suffering counts as ‘serious enough.’ Furthermore, by framing reproductive violence as a violation of the right to reproductive healthcare (among other framings), it clearly includes economic, social and cultural rights within the scope of transitional justice. It sends a message to transitional justice mechanisms: violations to reproductive health are serious enough and, therefore, should be acknowledged and redressed as amongst the gravest human rights violations. 

Another important implication arising from the Inter-American Court’s finding of the gravity of reproductive violence is the imprescriptibility assigned to gross violations. The Court has consistently held that statutes of limitation and amnesty provisions are inadmissible in cases involving gross human rights violations. Thus, regardless of the time passed since the violations occurred, the rights of victims to truth and justice must still be fulfilled by the state. Some commentators (such as Kohte, SáCouto et. al. and Macías Ortega) expected the Court to classify the facts of the case as crimes against humanity, as was requested by the petitioners, in order to ensure the application of the imprescriptibility rule. The Court did not go as far as to assess whether the facts met the contextual elements of crimes against humanity (para. 171) (previously, the Court has not held back from determining whether international crimes have occurred in the context of the human rights violations properly before the Court; it is increasingly refraining from doing so). Despite this, its approach to imprescriptibility has ensured that in this case, Celia Ramos Durand’s harms still require investigation, accountability and reparations (para. 225). 

The Path to Comprehensive Reparations

The Inter-American Court, known for its exhaustive and expansive approach to reparations, explicitly ordered the Peruvian state to ensure that its Registry of Victims of Forced Sterilisation finally leads to the design and implementation of a comprehensive reparations policy that benefits victims of forced sterilisations, including those who, like Celia, died because of the procedures (para. 251). Even though Celia and her family are the injured parties of this case, the Court’s approach to guarantees of non-repetition acknowledges that ‘never again’ requires victims to be recognised and redressed.

This is significant. Much of the scholarship on reproductive violence has focused on criminal accountability, often treating it as a universal, or, at least, preferred, response to redress. The complexities around neglecting reproductive harms in reparations measures are seldom discussed. This engagement from an overwhelmingly punitive framework further obscures both the dimensions of redress as well as the distinctive nature of reproductive harms. For instance, a reparations scheme that encompasses victims of reproductive violence under the sub-set of sexual violence risks obscuring the differentiated measures that victims that have lost their reproductive capacity may need. Ramos Durand v. Peru now creates a historic opportunity to place reparations on the map of transitional justice’s responses to reproductive violence.