Auto 098 of 2013
This case served as a follow-up to Auto 092 (women) and Auto 200 (Human Rights Defenders or “HRDs”), combining the two to address the discrete issue of displaced women who are also human rights defenders. This group suffers a heightened risk of attack due to their positionality as women in a patriarchal society as well as their increased visibility due to their leadership and activism.
The Court surveyed the constitutional and international legal frameworks that protect women HRDs as subjects of special protection derived from the vulnerability linked to their situation of displacement. Among other international and regional instruments protecting the rights to defend human rights, the Court discussed the Declaration of the Rights of Human Rights Defenders (1999) and Organization of American States (OAS) Resolution 1671 (1999). The Declaration states that "everyone has the right, individually or collectively, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international level", while the OAS Resolution Encourages states to adopt the norms set forth in the Declaration and calls on states to protect human rights defenders.
The Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR) recognize the right to defend human rights. The IACtHR has established a guarantee of protection by states to HRDs in their defense activities and requires the adoption of measures that protect them from barriers in carrying out their work as defenders.
Additionally, the court notes that many of the rights involving HRDs are also protected under the ICCPR, CEDAW, and Universal Declaration of Human Rights (UDHR), including the right to defend human rights, to life and personal integrity, to freedom of association, to freedom of expression, to due process, and to truth, justice, reparations, and non-repetition.
The right to defend human rights enjoys constitutional protection in Colombia. The Court notes that although the Declaration on Human Rights Defenders is not a legally binding instrument, it contains principles recognized in international human rights that serve as “an important interpretive guideline for the work of protection of fundamental rights that falls to the constitutional judge.” Additionally, there exists a prerogative in favor of the persons that empowers them to, individually or collectively, promote protection of human rights.
There is constitutional precedent in Colombia that established the state’s duty to protect the rights to life and right to personal integrity. In Case T-234 of 2012, the Court protected the rights to life, security and integrity of a woman human rights defender who was subjected to sexual violence, threats, harassment, forced displacement and attempted kidnapping, in the absence of protection protection measures from the Ministry of the Interior and the Attorney General's Office. The existence of a complex and multifaceted internal armed conflict constituted a sufficient reason to conclude that the respondent authorities were under a positive obligation to adopt measures, with the sole purpose of guaranteeing the effectiveness of his fundamental rights, given that at that time her activity exposed her to this threat. Similarly, in T-496, the Court ordered the Ministry of the Interior and Justice and the Attorney General's Office to carry out or update the risk study of the 13 women HRDs plaintiffs in order to adopt the protection measures that correspond to their factual situation.
In Auto 200 of 2017, as part of the T-025 of 2004 cases, the Constitutional Court established a presumption of extraordinary risk in favor of leaders of the displaced population and of displaced persons at risk, considering that "forced displacement is a situation that places its victims in a situation of particular vulnerability and defenselessness.” With this presumption, HRDs may demand from the competent authorities a special protection aimed at safeguarding their right to life and personal integrity.
In terms of the freedom of association, freedom of expression, due process, and the right to truth, justice, reparations, and non-repetition, the Court summarized the state’s obligations under three dimensions: (1) promote; (2) prevent; (3) protect. HRDs’ rights can be exercised collectively and individually by them and can also be demanded as an affirmative duty of the state to protect.
Focusing on the first dimension, for instance, by promoting the right to defend human rights, the Court meant, for one, access to information that promotes an understanding of human rights on the part of citizens. This could be achieved through the publication and accessibility of all legal instruments concerning the safeguarding of these rights as well as reports and records of the human rights situation. Another way to promote this right is by visibilizing it: providing support to independent national organizations dedicated to the promotion of human rights and promoting the legitimacy of the work of women HRDs. Finally, promotion could include resolving barriers to women HRDs, by first, systematizing the information on women HRDs keeping a confidential register of women HRD, their organizations, the rights they defend and what regions they work in. And secondly, by incorporating women HRDs into governmental institutions– such as creating budgets for organizing efforts, counseling them on their activism, providing them with professional development, and prioritizing them in vacancies inside of government institutions.
The constitutional and international legal frameworks protecting human rights defenders sets the background for the Court’s analysis of how displacement disproportionately impacts persons who are at the intersection of gender (women) and human rights defense work. Women HRDs’ role in resisting the violence generated by the armed conflict has made them the targets of violence by various armed factions, who see women’s leadership as threatening to the patriarchal status quo as well as to their interests in the conflict. Women HRDs activities include resisting the presence of armed actors in their communities; organizing their communities by informing them of their rights and empowering them to participate in processes of aid that demand their rights be respected; and turning to non-governmental organizations, churches, schools, colleges and other offices and entities for support and accompaniment. Their goal is to achieve greater visibility and thus count on the protections provided to them by Law 1148.
Due to this mobilization, women HRDs and/or their close family members have experienced disappearances, forced displacements, torture, sexual violence, threats, arbitrary detentions, persecutions, and destruction of their organizations' buildings and premises, theft of materials, and defamation. Specifically, around 66% of women HRDs have been victims of sexual violence. Indigenous and Black women feel the effects of this violence and displacement more acutely due to broader discrimination and cultural barriers, ignorance of the dominant language, of the food, clothing, customs, and overall environment. Generally, the cycle of violence for all displaced women is never-ending, as they often arrive in areas that are still controlled by armed actors who perpetuate the violence against them.
The Court, as well as the Inter-American Court on Human Rights, note that there has been a significant increase in assassinations, threats, harassment, persecution, physical and verbal attacks, and sexual violence since Auto 092 of 2008 was published, particularly from the year 2009 onward. Notably, the majority of the perpetrators of this violence belong to the governmental armed forces, with 60% coming from Public Forces, 38.8% from the National Police, and 19.2% from the Colombian Military.
The Court engaged in an important analysis of why it is that women--and women HRDs--suffer disproportionately from armed conflict and displacement. Women HRDs are persecuted and attacked because of their gender identity and also because of their leadership and organizing roles. In terms of their gender identity, violence against these women is a “strategy to intimidate those responsible, who take the macho stereotypes in force as a way to impose or justify their actions.” For women HRDs, the court notes:
Their leadership is are perceived by the armed actors as actions that subvert or encourage the disregard for the female roles assigned to women in a patriarchal society, in which the prototype of the "good woman" limits her intervention to the private sphere, to domestic work, to caring for husbands, sons and daughters, and dependents. While women human rights defenders challenge these patriarchal patterns and the widely accepted and discriminatory gender stereotypes, the persecution and aggressions against them are perpetrated to maintain and reinforce the traits of violence and structural gender discrimination.
This leadership, thus, threatens the armed forces’ “monopoly of control”, as women HRDs are able to organize groups to resist the systematic violence they inflict.
Finally, the Court evaluated the government’s response to guarantee the minimum protection for displaced women leaders. It found, generally, an absence of a holistic government process to protect and address the needs of women HRDs. The Court found that the governmental response to orders to implement programs to promote the participation and prevention of sociopolitical violence against women HRDs was “practically nonexistent”.
The Court also paid special attention to the structural patriarchy embedded in government systems, even those meant to protect women, in which officials refused to recognize the value of the work of women human rights defenders, instead perceiving their work as elements that hinder or delay the work of government institutions. The Court concluded that these “bad practices...generate… a climate of lack of public recognition of the legitimacy of the work of human rights.. [and] of human rights defenders.” In sum, the Court found that the State’s response and attention to the sociopolitical status of women HRDs “does not exist.”
In response, the Court reiterated that special attention must be given to women within the support and defense of HRDs by the State and that government systems need to work together better to ensure protection of women HRDs, including of their families and immediate communities.
On December 18, 2017, the Court issued yet another follow-up report, Auto 737, focusing on the displaced women’s issues addressed in Autos 092, 098, and 009, persisting in the context of post-conflict Colombia. The Court found that the government response had not provided any significant information on the implementation of programs ordered in Auto 098, nor on the legislative and public policy measures ordered to prevent, promote and protect the rights of women HRDs. Thus, the court found a low compliance level with Auto 098 measures.
Auto 098 provides a formidable analysis of patriarchy and how this contributes to the retaliatory and punitive use of sexual violence in armed conflict and conflict more broadly. Indeed, as the ESCR-Net report Transforming Conflict-Affected Situations for Women notes, “[i]n Colombia, sexual violence has been used as a tactic to ‘forcibly displace populations from lucrative mining or agricultural zones and from areas of strategic importance for drug trafficking.” Even though this judgment concerns the specific situation of the armed conflict, it provides oversight and management of the situation of the most vulnerable women in Colombia at the moment. This oversight, as well as the tracking and systemic acknowledgement of how patriarchy operates in Colombian society more broadly (i.e. temporally outside of the armed conflict) represents an important step toward gender justice. The judgment also creates this path by providing a clear guide for resisting these patriarchal structures through a rights-based framework.