(Editors’ note: This is part of our series on the ICC’s Policy on the Crime of Gender Persecution.)
Recent articles in Just Security have covered the International Criminal Court (ICC) Office of the Prosecutor (OTP)’s Policy on the Crime of Gender Persecution and its role in international law. How does the Policy interact with domestic justice processes? The transitional justice process in Colombia offers one potential example.
The Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, or JEP) is the transitional justice mechanism created by the Colombian peace deal between the government and the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, or FARC). In 2022, the JEP broke new ground when it brought charges for gender persecution against an LGBTQI+ person; specifically, for the murder of a gay man as part of the systematic execution of thousands of civilians to pass them as casualties in combat, in what came to be known as “falsos positivos.”
The decision is important for the international community in at least three dimensions: first, it is one of the first international legal precedents of a charge for persecution on the basis of gender (“gender persecution”) against LGBTQI+ people. Second, it is a precedent of a prosecution of a gender-based crime (in this case, gender persecution) that lays beyond sexual violence. The JEP’s decision is an example of how a court can account for the fact that gender persecution is a mechanism that enforces structural patterns of gender discrimination in society, through sexual and other kinds of violence. And, third, the decision is an example of a constructive relation of complementarity between a “situation state” and the ICC – even after the closure of the preliminary examination. The JEP relied on the ICC OTP’s Policy Paper on Sexual and Gender-Based Crimes to frame the crucial argument that, for the JEP, the term “gender” implies the “social construction of gender” – thus laying the ground for the gender persecution charges.
Members of the JEP are now reviewing the new Policy Paper on Gender Persecution, and engaging with the OTP’s Special Adviser, which might provide important input for the JEP – particularly now, that the Colombian transitional mechanism is embarking on a new (and massive) case on sexual and reproductive violence. At a time when the ICC recently heard closing statements on the Al Hassan case (which includes charges for gender persecution), the JEP’s experience shows possible pathways for prosecuting the crime of gender persecution in post-conflict contexts.
A Path-Breaking Decision on Gender Persecution Against LGBTQI+ People
Since 2018, the JEP’s Chamber for the Acknowledgement of Truth has investigated members of the Colombian Army and other state actors for the extrajudicial execution of 2,248 civilians, in the context of the so-called “falsos positivos” case. Most of the victims in that case are young men (but there are also some women), who were tricked with job offers and other lies to go to secluded places where they were killed, their clothing changed, and weapons planted. The victims were then presented guerrilleros, combat casualties, and used to improve the performance of certain army battalions, under pressure for “results” from their commanding officers.
In July 2022, the Chamber documented charges against Sergeant (retired) Wilfrido Domínguez Márquezas part of the wider “falsos positivos” case. Pursuing its strategy, Dominguez’s army unit wanted to “clean” a particular area of “undesirable people” (para. 638); that is, groups considered as deviant by some army members, such as punk rockers, sexual workers, and LGBTQI+ people, among others (para. 639). In that context, Dominguez chose as a victim a man who was known to be gay, did the paperwork hiding the extrajudicial execution, and informed his superiors of the details for the “delivery” of the victim (para. 1298). The Chamber gathered testimony indicating that Dominguez expressly framed his choice of the victim as part of a strategy against gay men who, he said, were “not good for the town” (footnote 1670). And, before being murdered, the victim was beaten severely, with the perpetrators using language explicitly referencing his gender identity (para. 640).
For the JEP’s Chamber, these factors evidenced discriminatory intent, providing sufficient grounds for charges of gender persecution against an LGBTQI+ person (para. 623). As part of the transitional justice process, Dominguez accepted charges in late 2022, and a hearing will be organized, in which the perpetrators will make a public recognition of their responsibility and face the survivors. Sentencing should occur thereafter.
Building Precedent on Gender Persecution
The Chamber’s case was not the first time that the JEP had considered the issue of gender persecution against LGBTQI+ people. In April 2021, the same Chamber adopted an interlocutory decision accrediting five LGBTQI+ persons as victims in a different investigation: this time, dealing with the FARC’s actions. On that occasion, the Chamber confirmed its jurisdiction to adjudicate on the crime of gender persecution (para. 37), and similarly found that armed actors’ strategy of “social cleansing” has disproportionate effects on LGBTQI+ people (para. 38).
By seizing the opportunity to bring charges for gender persecution, the JEP has managed to capture a large range of criminality that is intertwined with deep structures of discrimination against LGBTQI+ people in Colombia, that would not have been captured by charges focused solely on murder as a crime against humanity. Persecution allows us to connect inequality and discrimination with transitional justice processes – a link that has at times proven evasive for both scholars and accountability mechanisms.
Intersectionality, including gender and other forms of identity, is crucial for going forward. Prejudice against indigenous or Afro-descendant people is also violently enforced through the severe deprivation of fundamental rights in Colombia, in ways that often overlap with gendered narratives. In its 2021 decision, the Chamber adopted an intersectional approach to the prosecution of gender and racial persecution (paras. 16.4, 33.3, 34.2), that was absent in the 2022 analysis of the charges brought against Dominguez.
The OTP’s policy paper on gender persecution could prove to be a crucial tool in that effort. It emphasizes that “gender persecution may be used by perpetrators to enforce social constructs and criteria through imposed discriminatory regulations that violate fundamental rights” (para. 25). Such social constructs are built on narratives of gender that overlap with discriminatory narratives of race, religion, and migration status, among many other grounds, in ways that enforce deep structures of discrimination in a particular society. In particular, the policy paper emphasizes that reparations for gender persecution should be “transformative” and contribute to advancing nondiscrimination and gender equality (para. 101).
This insight is key. In a context where gender discrimination was widespread even before the specific acts of persecution were committed, the baseline for defining reparations cannot be the situation as it stood before the crime took place. Doing so would imply accepting as an appropriate framework for reparations a situation in which gender discrimination was already present. Instead, reparations should look to the future, and seek to transform the conditions that made discrimination possible. To that effect, OTP policy paper’s approach could be productively complemented with the experience of the Inter-American Court of Human Rights, that has developed a robust case law on precisely that point. Thus, by building on the policy paper’s approach to the social dynamics that underlie the crime of persecution, the JEP will be able to further contribute to a more stable peace in Colombia – and to the development of international criminal accountability.