Gender-based persecution as a crime against humanity: A milestone for LGBTI rights before the Colombian Special Jurisdiction for Peace

On 14 April 2021 the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP) broke new ground: It accredited five LGBTI persons as victims of the Colombian armed conflict and resolved that their gender-based persecution might have amounted to a crime against humanity. The decision is pioneering for two reasons: First, the JEP declared its jurisdiction over this international crime for the first time. Second, the JEP resolved that gender-based persecution covers sexual orientation and gender identity, setting an important precedent for international criminal law.   

A quick reminder: The Colombian JEP 

The JEP was created following the final peace agreement signed in 2016 between the Colombian Government and the Revolutionary Armed Forces of Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP). At the heart of this agreement, which marks the official end of more than 50 years of internal armed conflict, lies the so-called Comprehensive System of Truth, Justice, Reparation and Non-Repetition. The JEP is this system’s sole judicial mechanism designed to bring to justice those who participated directly or indirectly in the internal armed conflict and to protect the rights of the victims.   

A gender sensitive approach (so-called enfoque de género) is a central concern of the peace agreement as well as subsequent legislation governing the JEP. It aims at contributing to a broader understanding of the gendered harm caused by the armed conflict. Importantly, this approach goes beyond taking into account the social dynamics and power relations between men and women. It also applies to persons targeted because of their real or perceived gender identity and/or sexual orientation. Hence, the JEP follows a holistic, non-binary understanding of gender and acknowledges the discriminatory patterns emanating from it – especially taking into account the situation of women and LGBTI persons. In addition, the JEP adopts an intersectional perspective to grasp the multidimensional harm caused.  

LGBTI persons and the Colombian armed conflict

The JEP’s Chamber for the Acknowledgment of Truth, tasked with investigating the most emblematic cases, accredited the five LGBTI persons as victims in macro case 005. This case focuses on the particularly violent effects of the armed conflict in the two Colombian Departments of northern Cauca and southern Valle del Cauca.

A report the Colombian NGO Corporación Caribe Afirmativo submitted to the JEP earlier this year provides for the factual basis of the Chamber’s decision. The report documents how the five LGBTI persons suffered threats, sexual violence, physical injuries, harassment, torture, arbitrary detentions, kidnapping and forced displacement because of their sexual orientations, gender identities and expressions. Members of the FARC-EP, Colombian Security Forces and paramilitary groups in northern Cauca allegedly committed these acts.    

All three armed actors allegedly targeted LGBTI persons as part of their strategy to achieve control over the population and social legitimacy in their race for authority. They controlled the local population by establishing a social and moral order and punishing or excluding anyone who deviated from it. Diverse gender identities and sexual orientations were considered such a “deviation”, threatening to undermine the social order the armed actors sought to impose on the communities they controlled (see para. 2.2.1 of the decision). Hence, this social order reportedly amounted to a pattern of harassment and violence towards LGBTI persons that unfolded between 2005 and 2012 (para. 2.2.2).

In its decision, the JEP’s Chamber for the Acknowledgment of Truth emphasized that the violent acts committed against LGBTI persons in the context of so-called “social cleansing” campaigns as well as rapes as punishment and “correction” demonstrate the “indelible traces of the barbarity against diverse sexual orientations and gender identities in an armed conflict” (para. 38, this and the following quotes are translated by the author). The Chamber held that discrimination based on sexual orientation and gender identity of members of the LGBTI community is prohibited in international, regional and domestic human rights law (para. 14) and argued that:

“a society respectful of human dignity and democracy must respect sexual and cultural diversity in a peaceful manner and therefore the perpetration of violent acts against the LGBTI community based on discriminatory motives constitutes a serious violation of their human rights” (para. 16, emphasis added).   

Based on this finding, the Chamber concluded that:

“[t]he JEP has jurisdiction over the persecution of the LGBTI community for discriminatory reasons based on sexual orientation or gender identity […]. These crimes may constitute a crime against humanity when committed in a widespread or systematic manner through conduct such as murder, extermination, enslavement, forced displacement, severe deprivation of physical liberty, torture, rape, sexual slavery, sexual violence, enforced disappearance and other inhumane acts of a similar nature that intentionally cause great suffering or seriously threaten physical integrity or mental or physical health.” (para. 39, emphasis added).

With this, the JEP declared for the first time to have jurisdiction over the international crime of gender-based persecution (see also paras. 18.4 and 20). In addition it clarified that this crime covers persecution based on sexual orientation or gender identity – a novum in international criminal law.       

Gender-based persecution in international criminal law

Gender-based persecution as a crime against humanity is a relatively new international crime. It was introduced in Article 7(1)(h) of the Statute of the International Criminal Court (ICC), making the ICC currently the only international criminal tribunal with jurisdiction over this crime, which has never been adjudicated before. However, the ICC’s Office of the Prosecutor (OTP) refrained from charging gender-based persecution for many years. Only recently, following numerous critiques, the OTP considered the crime in its preliminary examinations in Nigeria and Afghanistan. The Al Hassan case constitutes the first time that charges of gender-based persecution passed the ICC’s pre-trial phase. The case is currently at trial. Hence, so far, the ICC has not had a chance to adjudicate gender-based persecution as a crime against humanity.     

Despite this trend to seemingly pay more attention to gender-based persecution, the crime has been mostly considered in cases where individuals are being persecuted for not complying with prescribed gender roles that strictly distinguish between men and women. There is no case law so far that considered persecution based on the perceived transgressions of gender roles concerning sexual orientation or gender identity. An important precedent in that regard might have been the case concerning gender-based persecution allegedly committed by the Islamic State of Iraq and Syria (ISIS) in Iraq on the basis of real or perceived homosexuality. However, the OTP closed its preliminary examination into the situation in Iraq and declined to open an investigation.

It remains to be seen whether persecution based on sexual orientation or gender identity will be considered a form of gender-based persecution pursuant to Article 7(1)(h) ICC Statute. Until then, it continues to be subject to a vivid debate given the ambiguous definition of ‘gender’ contained in Article 7(3) ICC Statute.

In light of this unresolved situation at the international level, the decision of the JEP to unequivocally include gender identity and sexual orientation to the concept of ‘gender’ in the context of gender-based persecution is remarkable. What is more, the Chamber made clear that it will apply an intersectional perspective in its proceedings concerning LGBTI persons in order to avoid their re-victimization and discrimination – especially regarding Afro-Colombians who may have suffered harm at the intersection of gender and race (see paras. 16.4, 18.2, 33.3, 34.2).   

The next steps at the JEP

Following its decision, the JEP’s Chamber for the Acknowledgment of Truth will examine whether the alleged crimes in the context of case 005 constitute, inter alia, gender-based persecution of LGBTI persons as a crime against humanity (para. 20). The accredited LGBTI victims will be able to actively participate in the respective proceedings. Their recognition as victims of the armed conflict comes at a time when violence against human rights activists (so-called líderes sociales) is increasing in Colombia and LGBTI rights activists are continuously being threatened and killed.

Acknowledging the severity, the impact and representativeness of violence against LGBTI persons in the context of Colombia’s armed conflict can contribute to the truth and the reconstruction of memory. Guaranteeing the participation of (some of) the victims in the proceedings before the JEP is an important signal and a possible step towards gender justice and an inclusive peace-building process.