Auto 009 of 2015

The first two sections of this judgement served as an update on the status of sexual violence in the country since the 2008 Auto 092. The Court examined information on the ongoing sexual violence against women, including sexual slavery, and forced sex work being imposed on women, girls, adolescents and women with disabilities by armed actors, and surveyed the ongoing barriers to accessing justice and aid for displaced women. 

Sexual violence had become a “modus operandi” for all armed actors of the conflict, with women’s bodies used as battlegrounds for the attack of women leaders, retaliation of enemy factions, and extortion of rural and poor communities. The Court attributed the pervasiveness and systematic use of gender violence largely to the embedded gender-discrimination in Colombian society more broadly. For instance, the high levels of intrafamily violence in Colombian society before the conflict became exacerbated during the armed conflict and during the ongoing process of displacement. The Court also noted a Médecins sans Frontiers report that one of the common characteristics of sexual violence is its high likelihood of repetition, which was also used to explain the pervasiveness of this harmful practice. 

The Court also outlined new risks identified since the Auto 092 decision. Beyond the armed confict, illegal mining operations throughout the country’s rural communities has brought an onslaught of forced sex work, transmission of HIV, rape, forced preganancies and sexual harassment, as well as cancer. The Court also included the a section on how the armed conflict exacerbates discrimination and violence against the LGBTQI community by armed factions, including the imposition of: heteronormative preferences, heteronormative dress codes, gender roles in the private sphere of the home; as well as assassinations, beatings, psychological torture, and forced displacement of  LGBTQI persons. 

The Court also included an intersectional analysis to the situation of women’s rights, finding an disproportionate impact of armed conflict and displacement on Indigenous and Afro-Colombian women, as well as women with disabilities. For instance, the Court also found that adolescent Indigenous girls experience an aggravated risk of sexual violence. The statistics referred to by the Court are jarring:

• Between 2002 and 2009,  over one thousand Indigenous Persons were assassinated, 15% of which were women and girls. 
• Between 2008 and 2011, 71% of sexual violence cases of persons with disabilities were against girls and women 
• Between 2007 and 2012, 97% of sexual violence cases of persons with disabilities were against women. 

The second section of the judgement involved, once again, a declaration of the constitutional obligations of the Colombian state, derived from its duty of due diligence, to prevent, attend to, and protect the right to truth, justice, and non-repetition for victims of sexual violence during the armed conflict. The Court derived its analysis of due diligence from various constitutional and international mechanisms, including the Belém do Pará Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, Convention on the Elimination of Discrimination against Women (CEDAW), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Rights of the Child, American Convention on Human Rights, and the Convention on the Rights of Persons with Disabilities. 

The Court divided is analysis of due diligence in three sections: (1) due diligence to prevent sexual violence against women; (2) due diligence with respect to victims of sexual violence; and (3) due diligence with respect to the investigation, judgement, and sanction of sexual violence against women and girls by armed actors.  

The Court started by noting that due diligence regarding the prevention of sexual violence is required by Colombia as part of its commitment to adopt, implement and carry through effective policies aimed at eliminating all manifestations of violence and discrimination against women. The Court helpfully specified ways in which Colombia could satisfy its obligations under the Belém do Pará Convention. For instance, under its obligation to “develop policies towards achieving prevention” and “transformation of public culture around gender-discrimination,” the State could train public employees on gender perspectives and establish public education campaigns about gender discrimination and violence. To satisfy the need to establish “administrative mechanisms that allow women to live free of violence”, Colombia could prosecute and punish gendered violence. Finally, in satisfying the obligation to “guarantee truth, justice and reparations,” the state could, for one, keep an updated system of statistics of gendered violence. Indicators of success in implementing these measures would include broad institutional changes that transform the social paradigms that contributed to gendered violence, such as the eradication of poverty, and gender-based discrimination. 

In regards to due diligence in attending the needs of victims of sexual violence, the Court noted specific measures to achieve this obligation, including free medical services, housing, food, psychological services, reintegration services, care for their children, and physical and psychological rehabilitation for women and their children. The Court also noted this was a constitutional guarantee established in the Court’s T-045 sentence, which ordered the Colombian government to provide permanent psychological services to victims of armed conflict, covering women victims of sexual violence, their family nucleus and communty; support team during the judicial process of reporting and carrying out legal case against perpetrators; and free treatment for STDs and HIV. Finally, the order required priority care for those women who had to travel long distances to receive care or engage with the judicial systems. 

Third, the Court relied on the IACtHR caselaw on is final analysis on the due diligence obligations with respect to the investigation, judgement, and sanction of sexual violence against women and girls by armed actors. To meet this obligation, states must advance a complete investigation, that functions as more than a “mere formality” and incorporated proper evidence gathering, such as comfortable and safe space for giving victim testimony; reducing risk of re-victimization or re-traumatization; diligent coordination of the investigation; specialized evidence gathering by experts; and reasonable timing for investigations. Additionally, the Court pointed to strengthening institutional capacity to combat patterns of impunity, such as training public employees so they apply national and international norms to the investigation and adjudication of women’s cases so that women’s right to dignity is respected, and institutionalize the sharing of information across governmental agencies. During judicial processes, states must ensure free counsel, ensure protection from potential retaliation, and ensure victims are  properly informed of their rights. 

The final section of the judgment involved an evaluation of the State’s response to the orders put forth by Auto 092. First, the Court evaluated the progress made on the 183 cases referred to the Office of the Attorney General. Of those cases, 11 resulted in convictions, 21 in accusation state or trial, 69 decisions were archived, and 76 decisions were in the preliminary investigations phase. 

In terms of the broader patterns related to the pursuit of the 183 referred cases, the Court noted numerous problems, but one of the more glaring ones identified by the Court was the gender discrimination perpetuated by government employees of the Attorney General’s office. As noted by the Court, these government employees would refuse to issue forensic tests, would refuse meetings by displaced women to report incidents of sexual violence, would express mistrust of victim’s stories and would blame victims for their experiences of sexual violence, and would fail to take into account the broader context in which women were being sexually abused, namely the armed conflict and displacement. Additionally, government employees investigating and prosecuting sexual violence cases would keep victims in the dark, not informing them of updates to the case. 

To redress these injuries, the Court ordered the Office of the Attorney General to review all cases to make sure they are not unjustly dismissed due to discrimination and be properly categorized within the context of the armed conflict. Additionally, the Court ordered urgent measures to be implemented to mitigate retaliation by perpetrators of sexual violence against women who report their abuse. Among other remedies issued by the court were: implement new evidence-gathering methods that do not over-rely on victim’s testimony to ensure they are not re-traumatized during the retelling of their experiences; and solve cases in a reasonable amount of time without undue delay. 

Second, the court evaluated the progress made on the thirteen programs that it ordered be implemented in Auto 092. The Court concluded that the actions and initiatives reported, in general, do not meet the minimum criteria required in Auto 092 of 2008 due to the delayed response in setting up, designing, funding and kickstarting these programs. 

As such, the Court issued a new round of orders for the Colombian state to comply with the Auto 092 criteria. First, in terms of prevention, it ordered a comprehensive diagnostic of how discrimination and structural gender violence influence: media, economic sphere, social life, cultural, productive, educational and other spheres. Then, it ordered the Ministry of Education to carry out obligatory public education campaigns on gender discrimination and gender violence, especially in regions where displaced persons are concentrated. It also ordered trainings for the Colombian military on sexual violence and ordered memory, truth and reconciliation projects by the Administrative Special Unit for the Attention and Whole Reprations of Victims of the Armed Conflict, National Center on Historic Memory, and High Commissioner on Women’s Equity. The Court also ordered the government to centralize and make accessible all of the avenues, governmental institutions to which women can resort to for help, prioritizing areas with high levels of gender violence. Finally it ordered the clarification by the legal and judiciary departments on the rights to truth, justice, reparations and guarantees of non-repetition to improve the institutional response to adjudication and prosecution of sexual violence crimes, as well as trainings on gender perspective to counteract gender discrimination by investigators and prosecutors. 

Second, for victims of sexual violence, it required that courts adjudicating cases of sexual violence must analyze each case to determine whether it was done in the context of displacement or due to the armed conflict, so to then apply Law 1448 of 2011 that offers more expansive protection to victims. Second, it created a new presumption that an act of sexual violence is related to the armed conflict if occurring in regions controlled by armed factions. Victims can prove this presumption easily, by showing (1) the incident of sexual violence and (2) the presence of armed factions in the place where the incident took place. This in turn triggers the expansive protection of Law 1448 of 2011.