Unit:
Κατεύθυνση Δημόσιο Διεθνές ΔίκαιοLibrary of the School of Law
Author:
Kroustali Pinelopi
Supervisors info:
Γαβουνέλη Μαρία, Αναπληρώτρια Καθηγήτρια , Νομική Σχολή Εθνικό και Καποδιστριακό Πανεπιστήμιο Αθηνών
Original Title:
Reproductive/ Sexual Violence during armed conflicts: The Colombian Constitutional Court’s Decision on Helena’s Case. Do forced contraception and abortion form gender-based violence?
Translated title:
Reproductive/ Sexual Violence during armed conflicts: The Colombian Constitutional Court’s Decision on Helena’s Case. Do forced contraception and abortion form gender-based violence?
Summary:
On December 11 2019 the Full Chamber of the Constitutional Court of Colombia issued
judgment SU599/19.
1 “Helena’s”2Case is the first to deal with the issue of the violation
of sexual and reproductive rights of women and girls ex-combatants, during the civil
conflict that lasted 55 years in Colombia. In its judgment, the Court recognized that
women and girls who suffered forced contraception and forced abortion by their own
armed groups should be recognized as ‘victims of armed conflict’.3 More specifically
in Helena’s case, the plaintiff while being a FARC member against her will, was forced
to use contraception and was also made to undergo an abortion. But despite this, her
claim to be recognized as a victim of sexual and gender-based violence within the terms
of the Victims Act (Ley de Victimas y Restiucion de Tierras, 1448 of 2011) was rejected
by the Integral Attention and Reparation Unit for Victims. The decision from
Colombia’s Constitutional Court reflects the result of her appeal of this decision. The
Constitutional Court reversed the denial of victim status and concluded that the forced
contraception and forced abortion Helena suffered constituted both breaches of her
fundamental rights as well as war crimes. The Court concluded that forced
contraception and forced abortion constitute violations of sexual and reproductive
rights for women and a form of sexual and gender-based violence in the context of
IHL.
4
The purpose of this dissertation is to provide an overview of the importance of this
landmark case and to examine the correlation, if there is such, with other cases of such
forms of violence from International Criminal Courts. To achieve that in the first part
of this dissertation, the elements of sexual violence in the jurisprudence of the
International Criminal Tribunal will be identified. Governmental practices, opinio Juris,
the roadmap of rape as genocide, and the role of the international courts in that process will be investigated. A comprehensive overview of the various ways in which sexual
abuse in armed conflict is described and addressed by international law will be
presented. Then in the second part, Helena’s case will be analyzed. Emphasis will be
put on parts of the ruling that deal with aspects of international law and how the
victimizing acts of forced abortion and forced contraception are addressed. In the end,
conclusions from the case will be presented and it will be analyzed why this case from
Colombia could play a great role in the discussion of how reproductive violence could
receive a broader recognition as a distinct form of violence.
Main subject category:
Law and Legislation
Other subject categories:
Public international law
Keywords:
Sexual Violence, Reproductive Violence, Forced Contraception, Forced Abortion, Colombia, War crimes
