Honorable Antonio José Lizarazo Ocampo
Justice of the Constitutional Court of Colombia
Palacio de Justicia
Bogotá, D.C. – COLOMBIA

Case: 8028404


Subject: Human Rights Watch amicus curiae brief 

Ximena Casas and Nisha Varia, on behalf of Human Rights Watch, with headquarters at 350 Fifth Avenue, 34th floor, New York, United States, present this amicus curiae to the Honorable Constitutional Court of Colombia in connection with case 8028404, which discusses the right to freedom from gender-based harassment and violence. To this end, we respectfully state the following:

I. Purpose and Summary

As the court reviews case 8028404, Human Rights Watch urges it to take international legal standards and authoritative interpretations of how these apply to the workplace, including university settings, into account.

The current case focuses on the complaints of sexual harassment by 131 students against Professor Carlos Antonio Julio Arrieta at the Universidad Distrital Francisco José de Caldas, and their argument that the University, the Ministry of Education, the Attorney General’s Office, and Bogota’s personería (a municipal human rights body) have failed to investigate their complaints in a reasonable timeframe, to implement protection measures for the complainants, or to ensure that acts of harassment against students are stopped.

With this amicus curiae brief, Human Rights Watch offers an analysis of 1) gender-based violence and harassment in the workplace, including institutions of higher education, as a human rights violation; and 2) international legal standards on prevention, monitoring, investigation, protection, and remedies for violence and harassment at work in particular as set out in the International Labor Organization (ILO) Violence and Harassment Convention (No. 190) and its accompanying Recommendation (No. 206).

Colombia’s laws and jurisprudence should incorporate Colombia’s international human rights obligations to protect women’s rights to non-discrimination and freedom from violence.

II. International jurisprudence on gender-based violence and harassment in the workplace and in educational settings

Sexual harassment in the workplace and educational settings is firmly established in international human rights law as a form of violence against women that states are obligated to prevent, address and eliminate. States’ failure to do so can result in violations of women’s rights to non-discrimination, to personal security and bodily integrity, and to just and favorable conditions of work, among others.

Sexual harassment as a form of violence and discrimination against women

Colombia has ratified both the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (“Convention of Belém do Pará”) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), two core treaties which require states implement policies to eliminate violence and discrimination against women.[1] This obligation is also reflected in other core international human rights treaties that Colombia has ratified. [2] 

Article 1 of of the Convention of Belém do Pará defines violence against women as any physical, sexual and psychological violence based on gender, and in article 2(b) specifies that it includes, among other abuses, “sexual harassment in the workplace, as well as educational institutions.”[3]

In 1992, the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) which oversees the implementation of CEDAW adopted general recommendation no. 19 on violence against women.[4] In it, the CEDAW Committee clarified that discrimination against women includes “gender‐based violence, that is, violence which is directed against a woman because she is a woman or that affects women disproportionately,” and said that it “impairs or nullifies the enjoyment by women of human rights and fundamental freedoms.”[5] The committee considers gender‐based violence a form of discrimination against women and thus a violation of the CEDAW convention.

Sexual harassment and the rights to personal security and bodily integrity

A state’s failure to adequately respond to violence and harassment in the workplace and in educational settings also infringes on other rights, including the rights to personal security and bodily integrity.[6] The CEDAW Committee’s general recommendation 36 states that governments have an obligation to “respond to cases of violence against girls and women in educational institutions through confidential and independent reporting mechanisms, effective investigations, criminal prosecutions where appropriate and the adequate punishment of perpetrators and by providing services for victims/survivors.”[7]

Sexual harassment and economic, social, and cultural rights

The UN Committee on Economic, Social and Cultural Rights has stated in its general comment no. 23 that under article 7 of the International Covenant on Economic, Social and Cultural Rights, the right of everyone to the enjoyment of just and favorable conditions of work includes “freedom from violence and harassment, including sexual harassment.”[8] This standard can also be found in other regional texts such as the European Social Charter of the Council of Europe, which recognizes that the right to dignity at work includes protection from sexual and psychological harassment and violence, including  “liability of employers and/or their employees” and “effective remedies for victims and reparation for pecuniary and non‐pecuniary harm suffered, including appropriate compensation.”[9]

Sexual harassment and the right to an effective remedy

In 1994, the United Nations Commission on Human Rights resolution 2003/45 noted that violence against women includes that perpetrated by state and non‐state actors, and emphasized the duty of governments to, “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women and to take appropriate and effective action concerning acts of violence against women, whether those acts are perpetrated by the State, by private persons or by armed groups or warring factions, and to provide access to just and effective remedies and specialized, including medical, assistance to victims.”[10] The Convention of Belém do Pará also requires governments to pursue, by all appropriate means and without delay, policies to prevent, punish and eradicate all forms of violence against women, including by applying, “due diligence to prevent, investigate and impose penalties for violence against women, and by establishing “fair and effective legal procedures for women who have been subjected to violence which include, among others, protective measures, a timely hearing and effective access to such procedures.” [11]

The CEDAW Committee has clarified that “Under general international law and specific human rights covenants, 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, and for providing compensation.”[12]

Similarly, in Velasquez-Rodriguez v Honduras, the Inter-American Court of Human Rights held that:

An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State… because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention… The State is obligated to investigate every situation involving a violation of the rights protected by the [American] Convention [on Human Rights]. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.[13]

III. International Standards in the ILO Violence and Harassment Convention

The ILO Violence and Harassment Convention is the most recent international text that codifies standards on prevention of and responding to violence and harassment in what is broadly defined as the “world of work.”[14] It is accompanied by a non-binding recommendation that provides additional guidance on the convention’s obligations (Recommendation No. 206).[15] Colombia has yet to ratify the convention, which was adopted in 2019, but the convention’s provisions are relevant in light of Colombia’s obligations under CEDAW and other treaties to protect women’s rights to non-discrimination and freedom from violence.

The ILO convention defines violence and harassment as a “range of unacceptable behaviors and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment.”[16] Article 1(b) clarifies that the term “gender-based violence and harassment” includes sexual harassment.[17]

The ILO Violence and Harassment Convention provides protections to people in the world of work, including workers, interns, apprentices, and volunteers, among others. It requires states to adopt an approach taking into account violence and harassment involving “third parties.”[18] Recommendation 206 elaborates that “third parties” can include clients, customers, service providers, users, patients, and members of the public.[19] Students are “third parties” with respect to university administrators, professors, and staff in the same way that patients are third parties to health care providers.

The ILO Violence and Harassment Convention sets out minimum standards for how governments should prevent and protect people from violence at work and ensure access to remedies. This includes ensuring robust national laws against harassment and violence at work and adopting a gender-responsive, inclusive, and integrated strategy. Governments should have a holistic approach that integrates criminal law and civil laws, including labor laws, occupational safety and health laws, and equality and nondiscrimination laws. Civil laws can promote prevention, monitoring, and remedies while criminal laws impose punishment for more severe forms of workplace abuse.

The treaty requires that governments implement prevention measures, including special attention to sectors with heightened risk of violence and harassment.[20] Article 9 of Recommendation 206 highlights education as a sector in which exposure to violence and harassment may be more likely.[21]

The convention obligates governments to implement prevention measures such as requiring employers to have workplace policies against violence and harassment, to conduct risk assessments, and to provide training.[22] Recommendation 206 elaborates that workplace risk assessments should pay particular attention to hazards and risks that involve third parties,[23] and that “arise from discrimination, abuse of power relations, and gender, cultural and social norms that support violence and harassment.”[24]

The treaty and recommendation also set out standards for complaints mechanisms, monitoring, enforcement, and support for survivors. Article 10(e) of the convention requires that member states “provide that victims of gender-based violence and harassment in the world of work have effective access to gender-responsive, safe and effective complaint and dispute resolution mechanisms, support, services and remedies.”[25]

Recommendation 206 elaborates that these complaint and dispute resolution mechanisms should include measures such as: (a) courts with expertise in cases of gender-based violence and harassment; (b) timely and efficient processing; (c) legal advice and assistance for complainants and victims; (d) guides and other information resources available and accessible in the languages that are widely spoken in the country; and (e) shifting of the burden of proof, as appropriate, in proceedings other than criminal proceedings.[26]

Human Rights Watch respectfully submits that the court should consider:

  1. whether the allegation that no prompt action was taken to resolve a large volume of complaints against the accused professor, which had the apparent consequence that he continued fully performing his teaching duties despite students not feeling safe taking his class, means Colombia failed to meet its obligations to prevent and respond to violence against women, including harassment in educational institutions, and discrimination;                                                                         
  2. the length of time that has lapsed since the students made their initial complaints of sexual harassment in 2019 against international standards requiring timely and efficient investigation and processing of complaints related to gender-based violence and harassment; and
  3. whether Colombia’s laws empower relevant authorities with oversight of places of work to issue “orders requiring measures with immediate executory force,”[27] including, “to ensure that certain conduct is stopped”[28] and, if not, whether this is a failure of its obligations to prevent and respond to violence and discrimination against women.

ILO Recommendation 206 also provides that remedies should include compensation for damages and legal fees and costs according to national law and practice.[29]

IV. Conclusion

Human Rights Watch urges the Constitutional Court to take into account Colombia’s international human rights obligations, including with respect to the right to nondiscrimination and to freedom from gender-based violence and harassment in its consideration of case 8028404. These obligations can be met by aligning with the international standards outlined in the ILO Violence and Harassment Convention and its accompanying Recommendation 206.

_____

[1] Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Convention of Belém do Pará”) adopted June 9, 1994, OAS/ser.L/II.2.27, CIM/doc.33/94, entered into force March 5, 1995, ratified by Colombia on October 3, 1996; and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, ratified by Colombia on January 19, 1982.

[2] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Colombia on October 29, 1969, arts 2 and 3; International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, ratified by Colombia on October 29, 1969, art. 3; American Convention on Human Rights (“Pact of San José, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), ratified by Colombia on May 28, 1973, arts. 1 and 24.

[3] Convention of Belém do Pará, art. 1.

[4] UN Committee on Discrimination against Women, General Recommendation No. 19 on violence against women, Eleventh Session (1992), U.N. Doc. A/47/38, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CEDAW/GEC/3731&Lang=en (accessed March 14, 2021).

[5] Ibid., paras. 6 and 7.

[6] In 1999, the CEDAW Committee noted in its concluding comments that: “sexual harassment, rape, domestic violence and marital rape, whether in the family, the community or the workplace, constitute violations of women’s right to personal security and bodily integrity.” UN Committee on Discrimination against Women, Consideration of reports submitted by States parties under article 18 of the Convention: Thailand, U.N. Doc. CEDAW/C/1999/I/L.1/Add.6, February 2, 1999, para. 29. The rights to personal security and bodily integrity are protected in the ICCPR, Art. 9, and the American Convention on Human Rights, arts. 5 and 7.

[7] UN Committee on Discrimination against Women, General Recommendation No. 36 on the rights of girls and women to education, (2017), U.N. Doc C/GC/36, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/GC/36&Lang=en (accessed March 10, 2021).

[8] UN Committee on Economic, Social and Cultural Rights, General Comment No. 23 (2016) on the right to just

and favourable conditions of work (article 7 of the International Covenant on Economic, Social and Cultural

Rights), U.N. Doc. E/C.12/GC/23, April 27, 2016, para. 6,

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2fGC%2f2

3&Lang=en (accessed May 15, 2019).

[9] See Council of Europe, “European Social Charter Collected texts (7th edition) Updated: 1st January 2015,”

2015 and see section on “For the reports submitted in pursuance of the revised European.

Social Charter (1996),” adopted by the Committee of Ministers on 26 March 2008 at the 1022nd meeting of

the Ministers Deputies, p. 323, available at https://rm.coe.int/168048b059 (accessed May 20, 2019). The

Committee of Ministers of the Council of Europe adopted guidance in 2008 which provided that under article 26 relating to Dignity at Work of the revised European Social Charter (1996), the scope of the provisions as interpreted by the European Committee on Social Rights required states to have measures against sexual and psychological harassment.

[10] UN Commission on Human Rights resolution 2003/45, Elimination of violence against women, adopted at the 59th meeting, April 23, 2003, see chap. XII. E/CN.4/2003/L.11/Add.4. The right to an effective remedy is provided for in the ICCPR, Art. 2(3) and the American Convention on Human Rights, art. 1.

[11] Convention of Belém do Pará, art. 7.

[12] UN Committee on Discrimination against Women, General Recommendation No. 19 on violence against women, Eleventh Session (1992), U.N. Doc. A/47/38, para. 9.

[13] Velasquez Rodriguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), paras 172-76, http://hrlibrary.umn.edu/iachr/b_11_12d.htm (accessed March 14, 2021).

[14] ILO Convention No. 190 concerning Violence and Harassment in the World of Work (Violence and Harassment Convention), adopted June 21, 2019, https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C190 (accessed June 8, 2020).

[15] ILO Recommendation No. 206 concerning Violence and Harassment in the World of Work, adopted June 21, 2019, https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:R206 (accessed June 8, 2020).

[16] Violence and Harassment Convention, art. 1(a).

[17] Violence and Harassment Convention, art. 1(b).

[18] Violence and Harassment Convention, arts. 2 and 4(2) and Violence and Harassment Recommendation, art. 8(b).

[19] Violence and Harassment Recommendation, art. 8(b).

[20] Violence and Harassment Convention, art. 8.

[21] Violence and Harassment Convention, art. 9.

[22] Violence and Harassment Convention, arts. 8 and 9.

[23] Violence and Harassment Recommendation, art. 8.

[24] Violence and Harassment Recommendation, art. 8(c).

[25] Violence and Harassment Convention, art. 10(e).

[26] Violence and Harassment Convention, art. 10(e) and Violence and Harassment Recommendation, art. 16.

[27] Violence and Harassment Convention, art. 10(h).

[28] Violence and Harassment Recommendation, art. 14(d).

[29] Violence and Harassment Recommendation, art. 14.