VI. International Legal Obligations

Colombia is party to a number of international treaties addressing gender-based violence and discrimination, including the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (Convention of Belém do Pará), [322] and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). [323] It is also party to other treaties that address the administration of justice, [324] the right to health and other economic, social, and cultural rights, [325] and the rights of children and adolescents. [326] This chapter examines how Colombia’s actions to address gender-based violence against displaced women and girls fall short of its obligations under these treaties.  

Right to Freedom from Gender-Based Violence

Colombia has obligations to protect women and children from sexual and intra-familial violence, including by private actors.[327] The CEDAW Committee, the UN expert body that monitors implementation of CEDAW, stated in General Recommendations 28[328] and 19[329]that violence against women constitutes a form of discrimination and states have a due diligence obligation to prevent, investigate, prosecute, and punish acts of gender-based violence. In its General Recommendation 19, the CEDAW Committee stated, “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.”[330]A state’s consistent failure to do so when women are disproportionately the victims, amounts to unequal and discriminatory treatment and constitutes a violation of the state’s obligation to guarantee women equal protection of the law.[331]Colombia has similar obligations under the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women to “apply due diligence to prevent, investigate, and impose penalties for violence against women.”[332] 

The CEDAW Committee has identified key steps necessary to combat violence against women, among them: effective legal measures, including penal sanctions, civil remedies, and compensatory provisions; preventive measures, including public information and education programs to change attitudes about the roles and status of men and women; and protective measures, including shelters, counseling, rehabilitation, and support services. [333]  

Human Rights protections against sexual violence also apply to persons under 18. The Convention on the Rights of the Child (CRC) states that children must be protected from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation—including sexual abuse—and ensure that victims of such acts receive legal and psycho-social redress.”[334]

Similarly, the UN General Assembly has urged governments to take specific law enforcement measures to combat domestic violence through its Resolution on Crime Prevention and Criminal Justice Measures to Eliminate Violence against Women. The resolution, among other things, urges governments to enforce laws on violence against women, develop gender-sensitive investigation techniques, ensure that police procedures account for victim safety and prevent further violence, and empower police to respond promptly to violence against women.[335]

The state has heightened obligations to protect displaced persons from gender-based violence under the Guiding Principles on Internal Displacement.[336]

While Colombia has put in place a sophisticated normative framework for combating gender-based violence, implementation continues to be a problem. As the CEDAW Committee raised in its concluding comments of its most recent review of Colombia, effective monitoring mechanisms are needed in Colombia because its legislative, policy, and institutional framework “[were] not yet sufficient and that the prevailing situation puts women and girls at constant risk of becoming victims of all forms of violence.”[337]

The UN Committee on Economic, Social and Cultural Rights (CESCR) raised concerns in its 2010 review of Colombia. The committee stated that it was “deeply concerned at the large number of women and girls that continue to be raped and killed in the State party, and that violence against women and girls, in particular sexual violence, is perpetrated by illegal armed groups and army forces, despite the legislative and policy measures taken by the State party to combat violence against women.”[338] The committee continued by stating that it was particularly concerned that the violence remains unpunished. It recommended the Colombian government effectively implement its programs to provide integral assistance to protect and rehabilitate victims, facilitate access of women to justice, prosecute perpetrators of such crimes, and compensate victims.[339] The committee highlighted its particular concern for women living in displacement.

The Human Rights Committee in its 2010 review also raised concerns about sexual violence and recommended that the Colombian government “increase the resources allocated to the physical and psychological recovery of women and girls who are victims of sexual violence and ensure that they do not suffer secondary victimization in gaining access to justice.”[340] Likewise, the Committee on the Rights of the Child in 2010 raised its deep concerns “over reports indicating increasing numbers of children, especially girls, who are victims of sexual violence by illegal armed groups as well as by the armed forces” and urged Colombia “to undertake prompt and impartial investigations of such crimes.”[341]

International actors have consistently raised concerns with the Colombian government that it is failing to protect women and girls from gender-based violence. Despite instituting considerable legal reform and programs for responding to violence, displaced women and girls face daily threats of violence in their homes and communities. This report documents areas where the government response to this violence falls short of international law requirements and leaves women and girls unprotected.

Right to Health

Article 12 of the International Covenant on Economic Social and Cultural Rights provides for the right of everyone to the enjoyment of “the highest attainable standard of physical and mental health,” and CEDAW requires that states eliminate discrimination against women with respect to health care.[342] States should also ensure access to health care is non-discriminatory access to health care, especially for vulnerable or marginalized groups.[343] The right to health includes an obligation to protect women and girls from violence. Violations of the right to health include, “the failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to health of others” and “the failure to protect women against violence or to prosecute perpetrators.”[344] The UN special rapporteur on the right to health has said that rape and other forms of sexual violence represent a “serious [breach] of sexual and reproductive freedoms, and are fundamentally and inherently inconsistent with the right to health.”[345]

The right to health includes the right to access information concerning health. The Committee on Economic, Social and Cultural Rights has stated that “the realization of women’s right to health requires the removal of all barriers interfering with access to health services, education and information.” [346] The particular needs of women in relation to access to health-related information have also been highlighted by the CEDAW Committee and the UN special rapporteur on the right to health, who has stated that a factor that makes women more vulnerable to ill health is lack of information. [347] Many displaced women and girls lack the information necessary to seek health services after rape or other acts of violence and the government has not done enough to provide this information.

A primary component of ensuring the right to health is accountability, with the aim of correcting systemic failure to prevent future harm. The UN special rapporteur on the right to health has elaborated upon the meaning of accountability in the context of providing health care:

What it means is that there must be accessible, transparent and effective mechanisms of accountability in relation to health and human rights.… Accountability is also sometimes narrowly understood to mean blame and punishment, whereas it is more accurately regarded as a process to determine what is working (so it can be repeated) and what is not (so it can be adjusted).[348]

Accountability to correct systemic failures in the referral pathway—such as lack of training and mistreatment by officials—cannot be achieved without regular monitoring of the health system and the underlying physical and socio-economic determinants of health that affect women’s health and ability to exercise their rights. [349] In a country like Colombia, this should include special attention to women living in displacement, due to their vulnerable socio-economic conditions. States should develop “appropriate indicators to monitor progress made, and to highlight where policy adjustments may be needed.” [350]  Monitoring helps states parties develop a better understanding of the “problems and shortcomings encountered” in realizing rights, providing them with the “framework within which more appropriate policies can be devised.” [351]

Right to Privacy and Bodily Integrity

International human rights law guarantees both a right to privacy and a right to bodily integrity which incorporate a right to sexual autonomy.[352] Sexual autonomy—the right to sexual self-determination—enshrines both the right to engage in wanted sexuality and the right to be free and protected from unwanted sexuality, from sexual abuse, and sexual violence. The right to sexual autonomy alongside the right to sexual and reproductive health has been the focus of a number of international declarations and conference documents that address States’ obligations in this area.[353]   

Right to a Remedy

A victim also has the right to an effective remedy when rights have been violated.[354] The ICCPR provides that governments must ensure that any person whose rights under the Covenant are violated “shall have an effective remedy,” and that any person claiming a remedy “shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State.”[355] The American Convention on Human Rights includes the right to “simple and prompt recourse, or any other effective recourse.”[356]

The Human Rights Committee, which monitors implementation of the ICCPR, has stated that the duty to provide an effective remedy to victims of human rights violations, whether at the hands of public officials or private individuals, includes the obligation to “exercise due diligence to prevent, punish, investigate, or redress the harm caused by such acts.” [357] The Committee emphasized that states must ensure “accessible and effective remedies” for human rights violations and to take into account “the special vulnerability of certain categories of person,” further noting that “a failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant.” [358]

As the Inter-American Court for Human Rights has stated in the case of Raquel Martín de Mejía v. Peru, the right to an effective judicial remedy should be understood as “the right of every individual to go to a tribunal when any of his rights have been violated (whether a right protected by the Convention [American Convention on Human Rights], the constitution or the domestic laws of the State concerned), to obtain a judicial investigation conducted by a competent, impartial, and independent tribunal that will establish whether or not a violation has taken place and will set, when appropriate, adequate compensation.”[359] Obstacles to justice discussed in this report demonstrate that some displaced women and girls lack access to an effective judicial remedy.