Access to justice and reparation
Justice and reparation for Black / Afro-descendant women
The transitional justice system in Colombia
The Final Accord to End the Armed Conflict and Build a Stable and Lasting Peace (the Final Peace Accord, 2016) in centering victims in order to achieve truth, justice, reparations and non-repetition, established in Point 5 the Comprehensive System of Truth, Justice, Reparation and Non-Repetition. It created three autonomous and independent mechanisms
The JEP is the justice component of the Comprehensive System of Truth, Justice, Reparation and Non-Repetition created by the Peace Agreement between the government and the FARC signed in 2016. The JEP focuses on the most serious and representative crimes committed in the context of the conflict.
The Commission for Clarifying the Truth, for Coexistance and for Non-Repetition is the component of truth of the Comprehensive System of Truth, Justice, Reparation and Non-Repetition that was created by the Peace Agreement signed between the government and the FARC in 2016. The Truth Commission has the mandate to investigate, explain and promote understanding of the armed conflict, centering the recognition of individual and collective victims, the voluntary recognition of responsibility, and promoting tolerance and coexistence based on the dignity of the victims. It started operating in 2018.
The mission of the Search Unit for Missing Persons is to search for people considered disappeared in the context of the armed conflict to alleviate the suffering of those who are seeking for their loved ones, and contribute to the satisfaction of the rights to truth and reparations.
In addition to these three mechanisms, the Transitional Justice Directorate was created by Article 17 of Decree 2897 of 2011 as part of the Ministry of Justice and Law, attached to the Vice Ministry of Criminal Policy and Restorative Justice. Its function is to design, coordinate and implement policies, plans, programs and projects of transitional justice, encouraging the participation of different sectors of society with differentiated approaches.
What is persecution?
According to the Rome Statute of the International Criminal Court, persecution is the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.”
In other words, it is depriving someone of their rights on the basis of their perceived identity. Gender-based persecution thus deprives persons of their rights because they fail to conform to socially constructed perceptions of acceptable gender behavior. The existence of gender persecution in the Rome Statute is a recognition that misogyny and homo/transphobia fuel crimes against women, LGBTIQ individuals, and others who don’t conform to prescribed gender norms. Similarly, racism fuels the denial of fundamental rights to people.
Racial persecution is the enforcement of harmful stereotypes and racist narratives through egregious abuses, committed against people based on their race or ethnicity.
Decades of conflict coupled with historical racism, misogyny, homophobia and transphobia have worked to normalize gender-based violence, especially for those who face multiple and intersecting forms of discrimination in Colombia. Afro-descendant women and girls experience oppressive gender and racial narratives, similar to those that emerged in other countries also shaped by colonialism and slavery in order to justify violence. All of Colombia’s armed actors—paramilitaries, guerrilla groups and government forces—have inflicted gender-based crimes that may amount to persecution.
Armed actors have targeted Afro-Colombian women with varied forms of violence, including sexual violence, for discriminatory reasons, including for their resistance to the imposition of social and territorial control through gendered regulations on their dress, sexuality, and other forms of expression. These acts take place against a historical backdrop where Afro-Colombian and Indigenous women have suffered longstanding misogyny and racism, which compound the impacts of violence against them. Both Afro-Colombian and Indigenous women have suffered as a result of both the state’s unwillingness to protect their territorial rights and its direct encroachment of those rights, as well as the state’s abandonment of their communities, which has left them more vulnerable to the actions of armed actors.
Race and gender-based violence is used as a form of punishment for Afro-Colombian and Indigenous women and girls who deviate from societies’ prevailing gender roles, behaviors, activities and attributes. The invisibility of racial and gendered aspects of these crimes in justice processes reinforces the idea that prescribing oppressive roles is acceptable. History teaches that if transitional justice mechanisms do not recognize gender violence and hold its perpetrators accountable, including when it occurs at the intersection of race and ethnicity or other characteristics, such discrimination and violence continue to persist after conflict is over. This is because such crimes during conflict mirror the violence used to reinforce racist and sexist beliefs in times of “peace.”
Colombia’s transitional justice system will ideally offer a historical record of the conflict through its proceedings. Jurisprudence should account for the longstanding racism and misogyny that helped normalize conflict-related violence against LGBTIQ persons, and Afro-descendant and Indigenous women and girls that persists to this day. Including analyses on gender persecution, or including intersectional gender, racial and ethnic persecution in transitional justice jurisprudence would help to unearth the multiple forms of discrimination that undergird violence against Black and Indigenous women and LGBTIQ persons in Colombia. It would also broaden the scope of accountability for crimes committed against women and girls—crimes that include not only sexual violence, but myriad other forms of gender violence. Ultimately it would be a groundbreaking achievement and serve as a model for transitional justice processes globally.
Understanding gender-based violence requires explaining the multidimensional factors through which life, bodies, and territories, have passed through in the lived experiences of Black/ Afro-descendant women.