By Tatiana Sanchez Parra and Teresa Fernandez-Paredes
Emergent Conversation 11
Bureaucracy, Justice, and The State in a Post-Accord Colombia, published on the fourth anniversary of the accord.
What has happened to the generations of people born as a result of sexual violence committed by armed groups in Colombia? Throughout my ethnographic research, I have explored this question in the tension between the presence and absence of socio-legal narratives about people born as a result of war-related sexual violence in Colombia. Despite the existence of the legal category of “children conceived as a consequence of sexual violence committed by armed groups” in the 2011 Victims and Land Restitution Law, as well as in testimonies of sexual violence survivors and stories about discriminatory naming practices towards them, little has been said on how to address the consequences of war in their lives. A feminist sociological and anthropological approach to the bureaucracies of transitional justice and the policies of reproduction in an Afro-Colombian community that endured a paramilitary occupation, allow me to explore these experiences beyond silence and discriminatory naming practices. This feminist, anthropological orientation enables me to identify how the transgenerational war experience of people born from conflict was made invisible through the imposition and naturalization of the labor of motherhood.
From my practice as an international lawyer, I have unfortunately witnessed the courts’ lack of interest in cases on women’s rights. The law continues to be male-centered. The direct effect of this is that the experiences of all those who do not fit in that male dominant group are unprotected and often even persecuted and repressed (Miguel 2014). Justice systems throughout the world, generally run by men and/or privileged women, often turn a deaf ear to vulnerable women´s life experiences. As a result, they do not understand them and make judgements based on misconceptions, prejudices, and gender stereotypes. Even when women overcome all the social and economic obstacles to go to court and have the opportunity to articulate their needs before them, gender stereotyping acts as a barrier and judges cannot—or often will not—hear them. This is why the enduring silence persists. So how can we challenge the androcentric model to build a gender-sensitive transitional justice model, free of stereotypes? How can we listen to the different voices of women who call for a reframing of international law? This problem cannot be solved exclusively by courts. It should rather be addressed through a democratic debate involving many stakeholders, including the courts, to enact structural changes that advance the rights of women and girls.
Tatiana and Teresa
In contexts of war and political transitions, a feminist approach to anthropology and law reveals the continuities and fractures of intersecting forms of violence imposed upon women and other feminized bodies. At the same time, this approach questions the categories through which each discipline has sought to name, analyze, address, and write about these forms of violence. The relation between anthropology and feminism has been one of mutual interpellation (Caicedo 2019). As Diana Gómez and Diana Ojeda (2019) note, this relation has been conflictive but also allowed for the production of more complex and localized approaches to understand some of anthropology’s central issues (like ethnicity, class, kinship, otherness). Feminism, as a broader umbrella to approaches like intersectionality and southern feminist epistemologies, as highlighted by Gómez and Ojeda (2019), brought epistemological challenges to the androcentric foundations of the discipline. In its origins, those foundations denied not only women’s role as social subjects and producers of knowledge, but also sexuality and gender as power relations constitutive of every social phenomenon, including armed violence, peacebuilding and transitional justice. Our conversations are inspired by these interpellations, which can also be found in the relation between feminism, law, and human rights.
As Cynthia Enloe (2004) provocatively stated, it is not enough to bring the category of gender into our work. In order to take our analysis of femininities and masculinities seriously, as well as the experiences of women and girls, Enloe (2004) says, “there needs to be a feminist consciousness informing our work on gender” (97). Building upon Silvia Rivera Cusicanqui’s (2010) decolonial feminist work in Bolivia, positioning ourselves in Colombia requires grounding feminism within the historical and political process of internal colonialism. As Rivera Cusicanqui notes, despite the illusion of homogenous citizenship, feminine identities exist differently across the hierarchical ethnic strata of the country’s internal social structures. The social construction of being a woman in that hierarchical system, what Rivera Cusicanqui refers to in Spanish as “la mujeridad,” is also colonized. Questioning our own departing positions and our own disciplines’ analytical categories has allowed us to cross paths and ask how we have encountered gender in the everyday practices of our work. What does gender mean in the design and implementation of gender-sensitive measures for transitional justice? In our conversations we have found ground to challenge our frameworks of intelligibility and support one another in uncovering what had remained unseen before our own (discipline-oriented) eyes: the intertwined forms of structural, colonial, every-day, and armed violence imposed upon women’s bodies, claiming their reproductive capabilities and naturalizing nurturing responsibilities in the name of community, justice, and the stability of capital. In short, reproductive violence, beyond legal categories of harm.
In this conversation we share some of our reflections on reproductive violence. We focus on Colombia’s Special Jurisdiction for Peace (hereinafter JEP for its acronym in Spanish), one of the bodies in charge of the implementation of the 2016 Peace Accord between the Colombian government and the Revolutionary Armed Forces of Colombia-People’s Army (FARC-EP). Through this conversation between anthropology, law, and feminism, we hope to shed some light on the opportunities and challenges of addressing a more comprehensive notion of reproductive violence in contexts of war and political transitions.
From reproductive labor to reproductive violence
Exploring the notion of reproductive violence in war contexts and its embodied experiences represents several challenges. First, in the interdisciplinary scholarly literature that studies the intersections of war, political transitions, and gender, there is no clear understanding of reproductive violence as an independent category. Reproductive violence has been included in the category of gender-based and conflict-related sexual violence, where most of the developments have taken place around the categories of rape and other sexual abuses (e.g., Rubio-Marin 2012; Centro de Derechos Reproductivos 2020). Other categories have been developed to a lesser extent, such as forced pregnancy, forced sterilization, and forced abortion (e.g., Brammertz and Jarvis 2016). In an attempt to explore a more comprehensive notion of reproductive violence in contexts of war and political transitions, we propose to start by questioning the naturalization of reproductive labor and what it has meant for women’s embodied experiences and for their autonomy over their bodies and lives.
As Silvia Federici (2004) has shown in her work on the coercion of reproduction in the transition from feudalism to capitalism, that process implied the degradation of women’s social position in relation to men. As Federici argues, the sexual division of labor that was installed through capitalism not only naturalized reproductive work as women’s labor but increased women’s dependency to men and their paid jobs. By the seventeenth century, Federici shows the extreme impoverishment of populations who had become dependent on salaries but could not afford food in the midst of an economic crisis that also translated into a population crisis. The main state response, Federici claims, was a war against women that lasted over two centuries, using the witch-hunt to kill and discipline women, and through which they lost control over their bodies and reproduction. This war on women demonized non-reproductive sexuality, abortion, and contraception. By the eighteenth century, this system had created a model of femininity manifested in the ideal woman and wife with maternal instinct. As Federici states, procreation was directly put to the service of capitalist accumulation, and reproduction became the battleground of women’s exploitation and resistance.
In conflict contexts, state and non-state actors have historically sought to assume control over women’s and girls’ bodies and reproduction, also discussed in Vanesa Giraldo Gartner’s (2020) insightful contribution to this collection of essays. Despite significant progress made since the ‘nineties in the conceptualization of conflict-related sexual violence in customary and international law (Céspedes-Báez 2018), international, regional, and special/hybrid courts have struggled in the endeavor to comprehensively acknowledge and address practices of war-related gender-based violence, such as reproductive violence (see, for example, Grey 2017; Dowds 2019). The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), for instance, are responsible for setting important legal precedents in this area, obtaining the first convictions for sexual violence as forms of torture, war crimes, crimes against humanity, and genocide (Fernández-Paredes 2016). The Rome Statute (1998) of the International Criminal Court (ICC) on its part was the first international treaty to formally codify a broad spectrum of sexual and gender-based crimes (ICC 2014). Developments in relation to reproductive violence, e.g., forced pregnancy, forced marriage, and forced motherhood, have been scarce.
In her research about the category of forced pregnancy, Rosemary Grey (2017) shows that since the Convention on the Prevention and Punishment of the Crime of Genocide (1948), forced pregnancy was defined in relation to the group to which women belonged and not in relation to women’s experiences. Despite the ground-breaking contributions of the ICTR and the ICTY in recognizing sexual violence as international crimes, Grey notes, forced pregnancy was only considered in relation to ethnic cleansing. It was not until 2016 with the case against former commander of the Lord’s Resistance Army (LRA) Dominic Ongwen that the ICC, in the pre-trial stage, referred to forced pregnancy outside a context of genocide (Grey 2017). The soon-to-come decision in the Ongwen case will advance the conceptualization of the crime of forced marriage and it will be the very first in the history of international criminal law to address the crime of forced pregnancy.
The ICC pre-trial chamber built upon jurisprudence from the Special Court of Sierra Leone (SCSL) and the Extraordinary Chambers of the Courts of Cambodia (ECCC) who, in 2008 and 2010 respectively, qualified forced marriage to be a crime against humanity under the category of “other inhumane acts.” In this regard, although the statutes of both courts did not include the category of forced marriage, they were able to use the umbrella of “other inhumane acts” to propose a new crime against humanity through their jurisprudence. In Ongwen’s case, the pre-trial chamber followed the gender analysis offered by the two courts, which stated that the crime of forced marriage is not subsumed by the crime of sexual slavery because most of its elements are not of sexual nature.
On the issue of forced pregnancy, the pre-trial chamber interpreted that Ongwen could be charged with forced pregnancy because he confined women who had been forcibly made pregnant with the intent to carry out grave violations of international law. Advancing debates on reproductive violence, the pre-trial chamber stated that the central element of the crime of forced pregnancy is “unlawfully placing the victim in a position in which she cannot choose whether to continue the pregnancy” (ICC confirmation of charges, 99). Although there are no references to forced motherhood, and children born of war are hardly mentioned, it is encouraging to note that the chamber moved away from placing the intent of the crime in ethnic cleansing and shifted the focus to the women themselves. The trial chamber will soon have to take a stand on these arguments in its final ruling on the case against Ongwen.
With the coercion of reproduction throughout the consolidation of capitalism, and women confined to procreation and motherhood, Federici (2004) argues, women became a common good to be exploited in order to maintain the stability of capital and patriarchy. Repertoires of conflict-related gender-based violence, in this sense, are but an exacerbated continuity of the intertwined (often normalized) roles and forms of violence imposed upon women in times not defined by armed violence (Cockburn 2004). Despite significant progress within legal frameworks that have sought to more comprehensively understand and address war-time sexual, reproductive and gender-based violence, the focus remains mostly on the sexual component of these crimes and, as in cases of genocide, on women’s role in the social reproduction of their groups (procreation and motherhood). Giraldo Gartner’s (2020) analysis on FARC-EP’s reproductive policies and the overlapping archetypes of women ex-combatants as revolutionaries, perpetrators, mothers, and victims of sexual violence, offers significant contributions in this regard. However, as we have briefly discussed in this section, recent international criminal jurisprudence has made progress in broadening the legal categories of reproductive crimes. We understand this as part of the urgent subversive process of challenging the naturalization of reproductive labor and moving towards a more comprehensive understanding of reproductive violence.
Colombia’s Special Jurisdiction for Peace: Towards a more comprehensive understanding of reproductive violence?
One of the channels for the implementation of the 2016 Peace Accord between the Colombian government and FARC-EP is the Comprehensive System for Truth, Justice, Reparation and Guarantees of Non-Recurrence. The JEP, as the justice component of the three mechanisms of this system, has innovatively adopted a victim-centered approach with restorative justice as one of its guiding principles. Based on the intersectional and gendered approach that is at the heart of the JEP’s statute and permeates all its regulations, Magistrate Alexandra Sandoval (Personal interview, 2020), current JEP Vice President, notes that there is conceptual consensus within the jurisdiction’s system that sexual violence is not restricted to rape, and that it includes crimes against sexual and reproductive rights. Likewise, Sandoval continues, there is also consensus that gender-based violence goes beyond sexual violence.
Since the beginning of its 15-year mandate in 2017, the JEP has prioritized seven macro-cases. Although none of them focuses on conflict-related sexual and gender-based violence yet, these categories, as well as a gender analysis, are present in the definition of the macro-cases. For example, the macro-case 007 on recruitment and use of girls and boys in the Colombian armed conflict uses the 1997 Cape Town Principles’ definition of child soldiers, according to which boys and girls who were recruited to cook or for sexual purposes also fall into that category. In this macro-case, JEP’s Chamber for Recognition and Responsibility will also investigate sexual violence, sexual slavery, forced abortion, and forced contraception.
Gwen Burnyeat and colleagues (2020), in their recent piece about JEP’s structure and the challenges it faces, note that as of April 2020, the JEP’s Investigation and Accusation Unit has assisted 598 victims of sexual violence in presenting evidence. Through a software called LAYNA, 1,400 allegations have also been registered. Among the information the JEP has been able to gather so far, Magistrate Alexandra Sandoval mentions around 25 reports addressing cases of conflict-related sexual and reproductive violence, including Women’s Link Worldwide’s groundbreaking report on forced abortion and forced contraception within FARC-EP. For the women’s movements who played a key role in elevating sexual and gender-based violence on the Peace Accord’s agenda, the fact that the JEP has not yet created a macro-case focusing on sexual violence is worrying, to say the least. With continuous pressure from survivors’ and feminist civil society organizations, it is likely that information that is already part of the JEP’s systems, as well as reports that the jurisdiction will continue to receive until March 2021, will be crucial to the prioritization of such a macro-case.
The JEP is the first court among international criminal tribunals and special courts that can prosecute and judge by directly applying international law and the international corpus juris (a myriad of principles from international humanitarian law, international human rights law, and international criminal law) without being limited to a list of crimes in a statute. Following the example of forced marriage in the above-mentioned case, this could be crucial to the development of new legal categories to address women’s experiences of reproductive violence. In this regard, in December 2019, the Colombian Constitutional Court (CC) issued a groundbreaking ruling that acknowledged intra-party reproductive violence. The ruling recognized the status of Helena, a former FARC-EP combatant, as a victim of sexual and gender-based violence. Helena was forcibly recruited and subjected to various forms of sexual and reproductive violence, including forced abortion and contraception. This may open a window of opportunity for the JEP to broaden its understanding of gender-based, sexual, and reproductive violence, and comprehensively characterize acts of reproductive violence endured by women during the armed conflict in Colombia.
Recognition of victimhood within human rights and transitional justice legal systems is given in normative terms. Recognition of victimhood, then, is not an acknowledgment of human experiences of violence, but of legal notions of harm (De Greiff 2012). In the cases of women who testified to the Peruvian Truth and Reconciliation Commission, Kimberly Theidon (2007) points at how their experiences of multiple forms of war-related gendered violence were lost, as the Commission focused on specific categories of victimization related to sexual violence. Silence was produced, argues Theidon (2007), in the Commission’s pursuit of testimonies of sexual harm, while disregarding women’s broader accounts of gendered violence. There are different forms of silence in women’s testimonies (Ross 2002). Some of them, for instance, reflect women’s agency in an attempt to refuse to name certain experiences (Das 1996). Beyond silence, however, there is also unintelligibility in the socio-legal frameworks that seek to understand people’s experiences of violence (Sanchez Parra 2018). Unintelligibility, within those frameworks, does not have to do with an intention to conceal or with a commitment to deny. It has to do with a lack of frameworks to render visible certain experiences of violence, an inability to actually see some embodiments of war-related gendered violence, such as forced motherhood or the children born of war-time sexual violence (Sanchez Parra 2018).
The JEP will not be able to comprehensively address the totality of intersectional forms of violence women have experienced during the Colombian armed conflict, limited as it is by regimes of rights and their normative definitions of harms. However, the JEP does have the opportunity to contribute to challenging these boundaries and proposing broader frameworks to make visible intersectional embodiments of gender-based, sexual, and reproductive violence. In the case of reproductive violence, categorizing different forms of reproductive violence as crimes and serious violations of human rights would allow the JEP to: i) transform a legally unrecognized experience into an acknowledged wrong that requires legal redress; ii) state that it goes against the values of the international community; and iii) position reproductive violence as an act of gravity comparable to other crimes punished by international criminal law (Grey 2017). The challenge, however, involves other dimensions beyond legal debates; it involves rendering visible the coercion of reproduction and the naturalization of violence imposed upon those bodies that can biologically procreate.
We believe that anthropology, feminisms, and law are allies not only in challenging established legal notions of grave international crimes and human rights violations, but also in comprehensively rendering women’s experiences of reproductive violence visible. Accountability and redress would, accordingly, expand their impact on women’s lives. The aim, however, is not limited to the transformation of legal systems. In the path towards futures free of reproductive violence, the transformation of legal systems is but one of the grounds for women’s struggles against the coercion of their sexuality, reproduction, and control over their bodies. Institutional and legal conversations about reproductive violence must include women’s and feminist civil society organizations’ struggles. The transformation of legal systems which seek to address the gendered consequences of armed conflicts cannot happen without an honest understanding of the processes historically fought in the streets and fields in relation to women’s bodies and reproductive autonomy. Ending reproductive violence, in this sense, is subversive, as it confronts societies with the ways in which they have profited from women’s reproductive capabilities and the naturalization of patriarchal gender roles.
Dr Tatiana Sanchez Parra is an assistant professor at the Institute of Social and Cultural Studies Pensar at Javeriana University in Bogota, Colombia. She holds a PhD in Sociology from the University of Essex, where she also obtained a Masters in Human Rights. Prior to her postgraduate education in the UK, she completed a Masters in Social Anthropology at the University of Los Andes, Colombia, where she also earned an undergraduate degree in Anthropology. Working at the intersection of feminist socio-legal studies, anthropology of violence, and critical studies on political transitions, Tatiana’s research explores reproductive violence, in particular forced motherhood and people born as a result war-time sexual violence during the Colombian armed conflict. Her latest work has appeared in the Bulletin of Latin American Research, the International Journal for Crime, Justice and Social Democracy, and the International Journal of Transitional Justice.
Teresa Fernández-Paredes is a gender expert and human rights attorney, currently advisor at the World Organisation against Torture, covering the Latin America Region. Before joining the OMCT, she worked at Women’s Link Worldwide leading legal strategies with a special focus on projects related to human trafficking and transitional justice. She undertook legal fellowships at the Center for Justice and International Law in the United States, and at the Inter-American Court of Human Rights in Costa Rica. She has also interned for Judge Elizabeth Odio Benito at the International Criminal Court in The Hague and the Justice Department at Human Rights Watch in Belgium. Ms. Paredes holds a University degree from the University Carlos III in Madrid and a Master’s Degree in International Public Law from the Washington College of Law at the American University, later obtaining her degree in Human Rights and Women: Theory and Practice at the Human Rights Center of the University of Chile School of Law.
 We are deeply grateful to Magistrate Alexandra Sandoval Mantilla from the JEP who kindly gave us an interview (21st April 2020).
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