The Colombian Commission of Jurist explains the importance of the final analysis by the judges on this case for Macro Case 11 and victims of sexual and gender-based violence. All the information in this article is from CCJ and can be found here in Spanish.

Case 01 which addressed the kidnapping policy of the former FARC-EP, represents a decisive step forward for the transitional justice system. kidnapping was analysed as a macro-criminal phenomenon that generated serious physical, psychological, sexual and community violence, and not just as a deprivation of liberty which would have been reductive.

When thinking about sexual and gender-based violence the most relevant the recognition by the JEP that various forms of sexual and gender-based violence occurred during captivity, this is a significant advance for victims, who have historically pointed out the invisibility of these attacks in the ordinary criminal justice system.

The initial narrative describes this violence as having a degree of systematicity that suggests a pattern, however, what is concerning is that the final analysis does not develop it as such. The sentence recognises three patterns of abduction and stated that sexual violence is a cross-cutting phenomenon, it failed to give it the necessary centrality in terms of charges, truth narrative, and restorative measures.

What the ruling in Case 01 says about sexual violence

The ruling explicitly recognises that sexual violence was a recurring phenomenon in the kidnappings committed by the former FARC-EP and that it manifested itself in multiple forms: rape, physical assaults of a sexual nature, forced pregnancies resulting from rape, forced nudity and humiliating practices linked to the domination and control of the bodies of captives. The JEP classifies these acts as war crimes and crimes against humanity and emphasises that they took place in conditions of absolute vulnerability, subordination and submission.

Although the decision ultimately organises the analysis based on three patterns of kidnapping (for financing, for prisoner exchange, and for territorial control), in the introductory sections, the ruling describes sexual violence with a level of recurrence and repetition that reveals relevant patterns of systematicity from a macro-criminality perspective.

The ruling recognises in the section on “other concurrent effects” that the acts of sexual violence were not isolated incidents. It recognises sexual violence as a war crime and a crime against humanity, noting that it was committed in the context of kidnapping and was facilitated by the conditions of captivity, subordination and territorial control exercised by the FARC. However, the analysis focuses on describing the context and the facts, without sufficiently developing how these acts of violence fit into the functioning of the organised apparatus or into the decision-making that created risk scenarios for the kidnapped persons, particularly in terms of their predictability and repetition.

Responsibility based on omission

In terms of attribution, the ruling leans towards a logic of responsibility based on omission, indicating that the commanders knew or should have known that these acts of violence were occurring but did not take measures to prevent them. The ruling does not delve into the scope of that responsibility or the way in which the control exercised over the conditions of captivity contributed to the perpetration of these acts of violence, leaving a more robust analysis of the creation and maintenance of risk scenarios undeveloped. This argumentative deficit is particularly relevant insofar as it may influence the way in which responsibility for sexual violence is assessed in subsequent proceedings, including Macro Case 11.

Differentiated impact of sexual violence

The ruling also recognises the differentiated impact that sexual violence had on women, girls and people with diverse sexual orientations and gender identities, especially in contexts of prolonged subjugation, isolation, coercion and control of movement. However, this recognition remains mainly descriptive and does not translate into an interpretation that gives centrality to gender-based harm in the legal analysis or in the design of the penalties themselves.

In terms of restorative justice, the Court orders four main lines of action: memory, the search for missing persons, environmental intervention, and demining actions, but none of these incorporates a specific component aimed at reparations for victims of sexual or gender-based violence. Although the ruling refers in general terms to the incorporation of a gender perspective, it does not define specific objectives, activities or indicators, which makes it difficult to assess how this approach will be implemented in practice and limits its potential for redressing sexual, physical and reproductive harm.

The absence of autonomous treatment of sexual violence in the design of the sanction coupled with an attribution of responsibility focused mainly on omission, poses significant challenges going forward. Among them is the need to prevent this interpretation from being used in Macrocase 11 to restrict the structural analysis of sexual violence, weaken the examination of the creation of risks and their predictability, or reduce the understanding of these acts of violence to incidental events within other crimes, rather than recognising their centrality in the dynamics of armed domination.

What the ruling omits regarding sexual violence: critical gaps from a gender and transitional justice perspective

Absence of an independent analysis of sexual violence as a macro-criminal phenomenon

The ruling does not recognise sexual violence and gender-based violence as an independent pattern of macro-criminality, even though in the ruling they are described as repeated, non-accidental behaviours facilitated by the structural conditions of the kidnapping. This methodological decision creates internal tension because while it documents the recurrence and systematic nature of this violence, it is not developed as an analytical category to explain its function within the criminal apparatus, its internal logic, and its relationship to the exercise of power and control.

Limitations in attributing responsibility to commanders

The ruling favours attribution based on omission, under the formula of ‘they knew or should have known’, without offering sufficient legal justification as to why this model is adequate and sufficient in the face of sexual violence committed in contexts of absolute control over the kidnapped persons. The ruling does not examine in detail the predictability of this behaviour or the role played by organisational decisions in creating risk scenarios, which limits the analysis of structural responsibility and reduces the explanatory scope of macro-criminality.

The Chamber (Section 5.4) extensively develops the doctrine of liability for command as an autonomous form of attribution by omission, expressly differentiating it from concepts such as indirect perpetration or co-perpetration. There, the Court emphasises not having taken ‘all necessary and reasonable measures within his power’ to prevent or suppress the crimes committed by his subordinates, when he had effective control and actual or presumed knowledge of their occurrence rather than having directly caused the unlawful result. However, although this framework is set out in dogmatic detail, its specific application to sexual violence is limited: the judgment does not specifically elaborate on how this duty to protect operated in the face of foreseeable sexual violence in contexts of prolonged captivity, nor how the omission of clear orders, humanitarian guidelines or disciplinary measures contributed to the repetition of these attacks. Thus, sexual violence is subsumed within a general analysis of omissions of control, without a differentiated motivation that allows for an understanding of its specificity or its structural gravity within the regime of command responsibility.

Absence of specific and differential restorative measures

Although the ruling orders four main lines of punishment (memorialisation, search for missing persons, demining and environmental intervention), it does not include restorative measures specifically designed to address the damage caused by sexual and gender-based violence.

The reference to a gender-based approach appears in general terms, but does not translate into concrete orders, specific symbolic actions or psychosocial measures aimed at recognising the sexual, physical and reproductive harm suffered by the victims, which limits the transformative potential of restorative justice.

Key adjustment in the impact on Macrocase 11

Macrocase 11, opened in 2023, it is the first transitional justice investigation in Colombia dedicated exclusively to sexual, reproductive and gender-based violence committed by different armed actors. It is currently in the accreditation, verification and prioritisation phase, with an explicit focus on identifying patterns, organisational dynamics and structural responsibilities.

To date, the JEP has accredited 1,035 victims in Macro Case 11, distributed among the three sub-cases:

• 517 for gender-based violence committed by the FARC-EP against the civilian population,
• 494 for gender-based violence attributed to members of the security forces, and
• 24 for intra-group violence.

62 witnesses have given testimony, including 35 former members of the FARC-EP and 27 members of the security forces, as part of the process.

However, these figures contrast significantly with facts identified by the JEP itself, that of 35,178 victims of sexual violence recorded in reports and databases analysed for the opening of the case. This gap highlights the persistent challenges in terms of accreditation, effective access to justice and victim participation, especially considering that 89% of the identified victims are women, 35% suffered this violence while underage, and most records still have critical gaps in information, such as ethnicity (78%) and sexual orientation (97%).

This case faces several challenges: the historical underestimation of sexual violence in judicial investigations; the dispersion of evidence resulting from the silencing and stigmatisation of victims; and the need to analyse these acts of violence as structural phenomena, not as isolated incidents. In this context, the ruling in Case 01 has an undeniable impact.

The way in which it dealt with sexual and gender-based violence may influence the standard of indictment that the JEP applies in Macrocase 11, especially with regard to:

• The tension between the factual characterisation of the ruling, which shows repetition, systematicity and structural conditions that facilitated these attacks, and the final decision not to elevate it to the category of a macro-criminal pattern with analytical autonomy.

• The lack of structural attribution, as the ruling favours a logic based on omission, that they knew or should have known, without exploring the more robust framework of risk creation and acceptance or the decisive role of the chain of command within the organised apparatus of power. The ruling does not sufficiently develop how the design of the kidnapping, the conditions of captivity, the total subordination of those held captive, and the territorial control made sexual attacks foreseeable, nor how that foreseeability directly compromises those ultimately responsible under international standards of accountability. This gap represents insufficient legal grounds to support the structural attribution of responsibility in a phenomenon whose repetition, scope, and degrading nature required more solid reasoning.

• Lack of specific and differential restorative measures: the ruling does not include specific measures aimed at victims of sexual violence and GBV, as the four lines of punishment (memory, search for the disappeared, environment and demining) do not include differential components or activities designed to recognise, highlight and repair the sexual, physical, emotional and control damage suffered by survivors. The reference to the need for a gender-based approach appears, in practice, as a general expectation, but does not translate into concrete orders, verifiable goals, or symbolic or psychosocial actions that place this impact at the centre of the restorative process.

As a result, the ruling misses a crucial opportunity to advance truth, justice, and comprehensive reparation for victims of sexual violence in the context of kidnapping. The lack of centrality given to this crime, the indictment based mainly on omissions, and the absence of differentiated restorative measures constitute a set of gaps that, if not corrected or reoriented, could have adverse effects on the future interpretation of Macrocase 11 and on the consolidation of protective standards for the investigation of sexual and gender-based violence within transitional justice.

For these reasons, Case 01 serves as a barometer for assessing the progress and risks faced by the JEP in the most complex and sensitive investigation into sexual violence in the armed conflict.

The challenge for Macro Case 11 will be to break the limits of Case 01: to grant centrality, develop its own patterns, strengthen structural prosecution, and guarantee restorative measures with a focus on gender, diversity, and territoriality.

Conclusions

• The CCJ Observatory’s analysis allows us to affirm that the ruling in Case 01 represents a significant advance in the judicial recognition of sexual violence as an international crime, but it also highlights structural limitations that cannot automatically be used as a reference for future proceedings.

• The main lesson to be learned from this ruling is that visibility, although necessary, is not sufficient. The absence of an autonomous characterisation of sexual violence, the limitations in the grounds for charging those most responsible, and the lack of specific restorative measures show that barriers to a transformative approach to these forms of violence in transitional justice still persist.

In light of Macro Case 11, the JEP faces the challenge of moving beyond a merely cross-cutting reading and advancing towards a structural analysis that allows sexual violence to be understood as a practice that serves armed domination, with differentiated impacts and responsibilities that must be duly substantiated.

To this end, it is essential that Case 11 does not reproduce the gaps identified in Case 01 but rather consolidates more robust standards in terms of characterising patterns, attributing responsibility and designing restorative measures with a focus on gender, diversity and territoriality.

Only in this way can transitional justice adequately respond to the expectations of truth, justice, and comprehensive reparation for victims of sexual violence and fulfil its promise of transformation.