The Justice and Peace Chamber of the Superior Court of Medellín heard the case of 20 former members of the Guevarista Revolutionary Army (ERG) who were charged with multiple crimes against the civilian population, including forcing members of their own group to undergo abortions, in violation of international human rights law and international humanitarian law. Members of the ERG took advantage of Law 975 of 2005, the Justice and Peace Law, which granted benefits to members of illegal armed groups who confessed their crimes and contributed to the collective truth-seeking process.
The Chamber convicted 20 ERG members, including their leader, Olimpo de Jesús Sánchez, for crimes including illegal recruitment, murder of protected persons, war crimes, and forced abortions. While the Court was clear that because the affected women were both perpetrators and victims, it could not order full reparations for them, it did order some reparation measures and advised them that they could seek full reparations in the ordinary justice system. The measures ordered included fertility treatment at public expense for any women victims whose reproductive capacity was affected by the procedures they were forced to undergo and who wished to receive such treatment. The Court also ordered the development of psychosocial accompaniment and educational programs, including education on sexual and reproductive health and contraceptive methods, for victims and their families, since many victims were misinformed while they were members of the armed group. It also ordered training for the victims on resources and assistance for victims of gender-based violence.
The Guevarista Revolutionary Army (ERG) was a guerrilla group in Colombia, demobilized since 2008, formerly affiliated with the National Liberation Army (ELN). The ERG became independent in 1993 and began separate operations in the regions of Antioquia, Chocó, Tolima, Caldas, and Risaralda, where members committed crimes including extorsion, murder, and illegal recruitment.
The group recruited children, indigenous persons, and farmers in the areas under its control, sending them directly to the front lines. Because ERG members were not allowed to have children, when women and girls in the ERG became pregnant, they were forced to abort, even when they expressed their wish to carry the pregnancy to term. The armed group had a doctor or nurse on hand to perform surgical abortions, and they used medications to induce abortions in the early stages of pregnancy. Most of the forced abortions committed by the ERG were done with medications in their camps.
Victims were between 15 and 28 years old. The Court heard the cases of seven victims, three of whom were minors at the time of the forced abortions. Many victims were forced to abort on multiple occasions. In some cases, victims were taken to the indigenous settlements of Iracal and Condono to recover. Only two forced abortions were done in cities where emergency medical care was available if needed. While the practice of forcing ERG members to abort began in 1993, the Superior Court of Medellín was able to document cases occurring between 2000 and 2007.
Some victims recounted that they were shown the fetus after the procedure. These former members of the ERG suffer from a variety of long-term consequences of the forced abortions, including mental health conditions and sexual and reproductive health problems.
The Justice and Peace Chamber of the Superior Court of Medellín heard the facts of the case after an investigation was carried out by the Peace and Conflict Observatory of the National University of Colombia.
The Justice and Peace Chamber of the Superior Court of Medellín first performed a historical review of the armed conflict in Colombia, including the origins of the Guevarista Revolutionary Army (ERG) guerrilla group, its activities, its demobilization process in 2008, and the eligibility of its members to participate in the transitional justice process. It analyzed the impacts of the armed conflict with an intersectional perspective, taking into account its differential effects based on gender and ethnicity. It noted that in the context of the armed conflict, women were disproportionately affected by gender-based violence, particularly sexual violence. It further observed that gender-based violence is a human rights issue, citing resolutions of the United Nations General Assembly and other UN bodies to conclude that gender-based violence is a form of discrimination. The Court also cited case law established by the International Criminal Tribunals for the former Yugoslavia and Rwanda, which investigated and punished gender crimes committed in the context of armed conflicts in those countries. Finally, the Court reviewed the provisions on crimes against humanity, including forced abortion, of the Rome Statute.
The Court determined that the human rights violations suffered by female former ERG guerilla fighters constituted serious violations of international humanitarian law and international human rights standards. Although they were not entitled to the special protections provided under the Victims Law (Law 1448 of 2011), in accordance with the principle of equality, “they cannot be deprived of...their right to be considered victims.” In other words, notwithstanding their status as combatants, the victims of forced abortion by no means lost their right to make free and independent decisions regarding their own bodies, lives, sexuality, and reproduction, including the ability to decide whether or not to have children. The Court recognized that forced abortions may cause long-term health consequences that must be addressed.
The Court also reviewed Colombian constitutional jurisprudence, particularly Order 092 of 2008. With regard to the disproportionate impact of the armed conflict and forced displacement on women, the Court cited three types of “sanctions” used exclusively against women in the ERG: 1. forced abortions; 2. forced use of contraception; and 3. derision directed against women who freely expressed their sexuality, including public humiliations. Sexual activity was harshly criticized in women in the ERG, but not in men.
The Court found that the forced abortions and other crimes committed by the ERG were war crimes and serious human rights violations that must be punished as severely as possible. As the abortions were performed in deplorable conditions, they may also be considered a form of torture, in light of their impact on women’s bodies and health.
The Court noted that forced abortion may be interpreted as a punishment for not following the armed group’s rules forbidding pregnancies, a punishment that was obviously applied only to women members and therefore constituted clear discrimination against them as women. It cited long-term consequences for the victims, including physical and psychological problems relating to sexuality, feelings of guilt and rage, sleep disorders, and depression. These psychological and physical effects may last years or even for life. It further recognized that Colombia has a problem with widespread violence against women, which becomes exacerbated in contexts of armed conflict, placing women at increased risk. With regard to the psychological impacts of sexual violence, the Court observed that care for victims must be provided with a gender and human rights perspective.
While the Court was clear that because the affected women were both perpetrators and victims under the Victims Law (Law 1448 of 2011), it could not order full reparations for them through the transitional justice process, it did order some reparation measures and advised them that they could seek full reparations in the ordinary justice system, including compensation for any damages they suffered.
The Court further acknowledged that many of the women recruited by the ERG were in conditions of heightened vulnerability, including being victims of other forms of violence, living in extreme poverty, or lacking access to education. It took this into account in establishing that while the women combatants were serving prison sentences for crimes committed during their time in the ERG, they were still considered victims of forced abortion as a form of violence against women. Law 1719 of 2014, which criminalized forced abortion against protected persons, was therefore applicable.
The Court convicted the group leader and several members for forced abortion and other crimes and found that the women members who were forced to abort were victims of violence. It ordered that they be provided psychosocial assistance and fertility treatment if they wished.
The Court convicted the ERG commander and 19 of his subordinates for crimes including forced abortion committed against women members of the group. It ordered the National Penitentiary and Prison Institute and the Colombian Agency for Reintegration to ensure that victims of forced abortion received psychosocial services and fertility treatment if they wished.
The Court ordered the development of educational programs, including education on sexual and reproductive health and contraceptive methods, for victims and their families, since many victims were misinformed while they were members of the armed group. It also ordered training for the victims on resources and assistance for victims of gender-based violence.
Finally, it ordered the National Penitentiary and Prison Institute to ensure that imprisoned victims could contact their families, participate in prison work and study programs, and receive identification documents if they did not have them.