BOGOTA, Colombia — As the peace treaty grows closer to fruition after the historic cease-fire agreement was reached recently between the Colombian government and the armed guerrillas known as FARC-EP, it is important to try to clarify the scale of sexual violence that took place during the 50-year conflict. It is also crucial to know to how victims’ needs are being addressed through sophisticated new laws and other progressive guarantees and what still needs to be done.
To this extent, advances in the reparations framework are growing, thanks to efforts by different parties. Women’s and feminists’ organizations have incessantly advocated for a stronger focus on integral reparations for sexual violence crimes; victims’ organizations have been successful in making their voices heard through participatory mechanisms; and the Colombian government has designed an advanced administrative reparations program and created a new legal framework.
Sexual violence in the Colombian armed conflict has been regarded as “habitual, extensive and systematic” by the Colombian Constitutional Court. The majority of victims are women and girls but men have also been victims. As of June 2015, the Victims Registry (Registro Unico de Victimas) documented 14,847 victims of sexual violence, of whom 13,332 are women, 1,144 are men, 75 are LGTBI people and 296 did not report.
It is difficult, however, to ensure exact figures of such incidences of sexual violence, as it is an underreported crime because of the stigma and shame that victims experience.
A survey done by women’s groups spanning a nine-year period (2000-2009) estimated that 12,809 women were victims of conflict rape; 1,575 women had been forced into prostitution; 4,415 had forced pregnancies; and 1,810 endured forced abortions.
The UN Special Representative on Sexual Violence in Conflict, Zainab Hawa Bangura, emphasized how these crimes disproportionately affect the most vulnerable groups: ethnic minorities in remote rural areas, children, child soldiers and other people in such discriminated categories as women, LGTBI and human-rights defenders.
All the armed actors in the Colombian conflict have used sexual violence as a strategy of war, and it is a widely recognized link among sexual violence, forced displacement and land-grabbing plans. Despite the negotiations that led to the cease-fire agreement, which was signed on June 24 in Havana, sexual violence against women has not been decreasing. Compared with 2014, it is notable that in 2015 alleged acts of conflict-related sexual violence increased by 18 percent, from 202 cases in 2014 to 238 in 2015.
To provide administrative reparations to the millions of victims of the armed conflict, in 2011 the Colombian government created Law 1448, better known as the Victims and Land Restitution Law. It established a mixed-reparations policy, combining land restitution through the courts and a bureaucratic reparations mechanism. The well-developed framework created by Law 1448/2011 has been defined as the most ambitious reparations program for victims of massive human-rights violations ever.
The reparations are considered integral and feature restitution, compensation, rehabilitation, satisfaction and guarantees of nonrepetition measures, encompassing individual, collective, material, moral and symbolic dimensions.
Of the registered victims of sexual violence, more than 5,500 have been compensated financially and about 1,600 have participated in the Victim Unit’s psychological recovery program. Particularly relevant are the rehabilitation services, which have been created through the Program of Psychosocial and Health Assistance (Programa de Atención Psicosocial y Salud Integral a Víctimas), which include free medical and psychological support, as well as free medication, if needed.
The law enables victims of sexual violence to receive a compensation maximum of 30 minimum wages, which at the salary exchange rate as of June 2016 amounted to about $6,900. The other crimes that receive the same compensation amount are torture and inhumane treatment, forced recruitment of children and injuries that do not cause permanent disabilities.
Through this law, several shortcomings of the previous transitional justice legal framework for reparations to victims of sexual violence have been addressed. For instance, the threshold of evidence for victims has been lowered. In addition, the Victims Law recognizes those exposed to greatest risks to be women, youth, children, the elderly, people with disabilities, farmers, community leaders, union members, human-rights defenders and victims of forced displacement.
It is not clear how and to what extent reparations account for and respond to the different needs of people in these categories. In addition, a zero-tolerance policy for sexual violence has been carried out by government entities. As a collective reparation measure, May 25 was established as the National Day for the Dignity of Women Victims of Sexual Violence in the Armed Conflict (Decree 1480/2014).
Another law to address sexual violence was approved in 2014 and contributed significantly to enhancing the status of sexual violence survivors and improving reparations steps. Law 1719/2014, on Access to Justice and Other Matters for Victims of Sexual Violence and Especially of Sexual Violence Related to the Armed Conflict, expands the definition of sexual violence and identifies other forms of such acts apart from “violent sexual intercourse,” or rape.
The current legal framework now includes sexual slavery, forced sterilization, forced pregnancy, forced abortion, forced nudity and trafficking. The law states that an act of sexual violence committed during the armed conflict may constitute crimes against humanity, war crimes and genocide. A huge achievement is that the crime of sexual violence is not subject to a statute of limitations.
Law 1719 requires detailed information on cases of sexual violence to be included in the Unified Registry System Cases of Violence Against Women, thus increasing monitoring of the situation. In addition, victims no longer have to prove that “physical force” was used in the crime. Instead, the judge can analyze elements such as the circumstances in which the events occurred or how such harm was a deliberate strategy by an organized group.
Finally, the law enables free prioritized — preferential — health care to victims of sexual violence amid war, regardless of whether a criminal complaint is filed or the time that has elapsed since the attack.
Despite the important and unquestionable advances, several challenges lie ahead that restrain the promise of an “integral” reparation. One is that applying the law and implementing nonmonetary reparations mostly depends on the departmental level or local authorities. While local authorities are crucial to the success of the reparations programs, they have been criticized for their insufficient resources, delays in implementation and lacking a gendered approach. Another major challenge is to provide psychological support and health services to all the victims, including those living in rural and remote areas.
The Victims Law specifies that among the reparations, other services such as education and training programs and help for female entrepreneurs be made available. Yet carrying out this agenda is limited.
Many women are also unaware of the full reparations that are available and their right to receive them, but once women recognize and understand reparations as a right, they consider truth as an essential symbolic condition for reparations. The victims’ interest in reparations programs therefore needs to be closely connected with initiatives in truth-telling and official public apologies.
Carrying out transformative reparations for sexual violence requires understanding that violence against women is a manifestation of larger gender inequalities inherent in society and should trigger legal reforms, such as the right to inherit and own land and property, as well as social changes to ensure women’s equal opportunities.
In this regard, the Victims Law includes measures to assist women in their land claims. Such steps include preferential access during the administrative and judicial phases of land-restitution processes, additional security measures to ensure that women who make such claims can return to their land and providing access to credit. Law 1448 also stipulates that restitution judges must grant land ownership to both the woman and her partner even if the man held the original land title.
Yet a full transformative approach that resolves the different violations and harms suffered by women needs to be strengthened. One main step in ensuring transformative reparations is the participation and inclusion of female victims in every phase of the reparation process.
Several challenges hinder full provision of reparations to female victims of sexual violence.
First, as the Colombian Constitutional Court and several women’s organizations have emphasized, the lack of consistent, rigorous investigations and prosecutions of sexual violence crimes hurts chances for deterrence. The dramatic levels of impunity of sexual violence offenses in Colombia continue to undermine the reparations process.
According to a recent report, the impunity rate for sexual violence crimes is 97 percent. The report notes that the public prosecutor’s office has developed a different strategy for each armed group that has been accused of such crimes. As a result, victims’ access to justice depends on who was the aggressor.
It is also important to tackle the stigma suffered by victims of sexual violence crimes and promote a respectful environment for their claims. Victims need to be assured that such crimes will not recur. In addition, while there has been major progress in providing reparations for female victims of sexual violence, such programs tend to overlook male victims. They do not receive, for example, both individual and collective gender-specific measures and attention.
Another obstacle to reducing inequality and eliminating sexual violence is the persistence of armed conflict — carried out by various illegal armed groups — resulting in difficulties providing guarantees of nonrecurrence despite the recent cease-fire agreement.
While structural discrimination against women and other victims has been acknowledged on paper and ambitious principles of transformative reparations have been included in new laws, figuring out how to carry them out remains incomplete. Gaps between how integral reparations are envisaged on paper and how they are delivered need to be closed.
Indeed, the Colombian reparations framework has been ground-breaking for a country that has gone through five decades of war, but many difficulties confront the new-found peace. It is important to go further to embrace more social and legal changes to pinpoint the causes of sexual violence in the first place.