“Two things [are central]: the survivor dimension and the intersectional dimension. But what is really, really difficult is to harmonise them both at the same time.”
Carolina Vergel Tovar is a professor and researcher at the Department of Constitutional Law at Universidad Externado de Colombia. She is currently serving as a visiting professor at Sciences Po in Paris, teaching a course on feminist movements in the legal field. She holds a Doctor of Law from the University of Paris-Ouest and a Master in Theory and Analysis of Laws from Parix X, ENS, and the EHESS. Her doctoral thesis explored the uses of law regarding the issue of women victims of the armed conflict in Colombia, which won the National Prize for Social and Human Sciences from the Alejandro Ángel Escobar Foundation in Colombia in 2014. Carolina is a member of the Scientific Council of the Institut de Genre en France and the Latin American ALAS Network, which aim to transform law faculties based on feminist and gender studies.
Over recent years, the International Criminal Court (ICC) has achieved significant strides in garnering global recognition for sexual and gender-based violence (SGBV), broadening discussions to encompass emerging issues like gender apartheid and gender persecution within conflict zones. Emphasising a shift towards a “survivor-centred” and “trauma-informed” approach in international criminal proceedings, the ICC acknowledges a decade of concerted activism towards this direction. Yet, despite these advancements, critiques persist regarding the Court’s adherence to a privileged and binary perspective concerning sexual and gender-based international crimes, as well as to a problematic overdependence on the “rape as a weapon of war” narrative. We spoke with Carolina Vergel Tovar to illuminate some of these pressing concerns.
Interview by Chloe Jepsen, Larissa Rosales Lopez, and Bushra Alzoubi
The interview was conducted in the spring of 2024 and has been edited for clarity.
In the realm of international justice for victims of sexual and gender-based violence (SGBV), there have been widespread criticisms that legal efforts have narrowly focused on “rape as weapon of war” to the exclusion of other forms of SGBV. What is your take on this?
I would like to mention two dimensions. One is quite obvious while the other is more ambitious. The first dimension concerns reproductive violence. It is problematic because it tends to blur the lines between sex and reproduction. This is highly criticised from a feminist point of view, not only in the context of armed conflict, but in general. Even if we need the sexuality dimension to involve the reproductive dimension, if you reduce sexuality to this kind of issue or result/consequence, like reproduction, you are insisting on this objectification of the bodies of women who are able to give birth.
It is also problematic from a legal point of view because the objective of each kind of violence is very different, so the proof of the willingness of conduct — mens rea — is not the same. For example, we know the terrible examples of forced pregnancies from the former conflict in Yugoslavia, or the political Fujimori regime in Peru, where a sexual health policy was developed with the aim to impose forced infertility on indigenous women. A policy dimension or strategy to control a group or a population, or to obtain an advantage, can be a front for political motives, like we saw in Yugoslavia. And this kind of violence is not involved with the sexuality dimension. The goal is more related to a demographic issue than a moral model of sexuality — like is the case with sexual violence. I think this kind of confusion and only talking about rape and sexual violence is very problematic.
It is also crucial to understand the role of gender in all types of violence — for instance, kidnapping and the enforced recruitment of children. The specific practice of forced recruitment is a crime that has a particular gender dimension, rooted in the sexual division of labour. It victimizes women not only by exposing them to sexual violence but by other means. It is related to the availability of the labour force in a very specific, symbolic, and social way, but not specifically or directly related with sexual violence. So, it seems to me that reducing the gender dimension of multiple forms of violence solely to sexual violence is problematic.
Despite considerable feminist activism towards gaining the recognition of sexual violence as a systemic strategy of war, what specific challenges do victims of sexual violence still encounter in accessing justice and receiving recognition within transitional justice processes?
I think there are a lot of examples, but I want to put the spotlight on the burden of proof, the length of proceedings, and obtaining fair reparations. I think we have three different kinds of problems. The burden of proof is particularly difficult in this kind of crime because this kind of violence is unspeakable. All the procedures built and conceived in the frame of transitional justice involve bargaining a political tension between the capacity of the system to, on one hand, prove the mass violence related to crimes that are so egregious that they are impossible to hide, but also, on the other hand, this kind of violence is still very difficult to talk about. This difficulty to propose a zone of conversation to allow this kind of confession is very challenging for the victims and for the system. I think, for the perpetrators, it’s easier to keep silent and not to confess, and that’s why it’s so hard to prove this kind of violence. The burden of proof and the incapacity of the system to change the logic created by war and the relationship between perpetrators and victims is very challenging in this configuration.
It is also a demanding situation for the victims because the people have to rebuild their lives — to find a job, to finally build an identity as another kind of person. So, to have to revive this kind of traumatic experience through detailed testimonies and the kind of information that you need in a procedure is very demanding and difficult. And, we know that the duration of these procedures is not compatible with the timelines for rebuilding the everyday lives of the victims and violated communities.
Reparations are also very challenging because of the consequences of sexual violence — for example, to have a child after a rape. According to more traditional legal logic, presenting a child as harm — defined in legal terms — in itself is quite difficult. That raises the question of, in which legal way can we provide reparations to someone who has been forced to raise a child and who is always forced to reimagine their rape or the experience of sexual violence? It’s a very brutal example, but this is one way that reparations are sometimes very difficult to conceive when dealing with this kind of violence.
In December 2023, the ICC’s Office of the Prosecutor released a policy paper clarifying its approach to gender-based crimes. In doing so, they emphasised their use of a “survivor-centred approach” and “intersectional perspective.” From your research, what do you believe is the relevance of these principles for victims of gender-based crimes, and what are the risks if they are not respected?
I think the principles are the results of all the experience accumulated from ad hoc tribunals, notably for the former Yugoslavia and for Rwanda, as well as the accumulation of the experience of the ICC. For me, the ideal is not to victimise the people involved in the procedures. For example, the principle of the survivor-centred approach has a kind of special significance for women. This has to do with the somewhat unmentionable nature of sexual violence. It is also related to the fact that women have begun to mobilise — to denounce the violence perpetrated against their families, their loved ones. It is often not, or usually not, to denounce violence perpetrated directly against themselves. For example, we could try to understand why it was like this in the Argentinian dictatorship — the mothers and grandmothers of the Plaza de Mayo, for example. All the psychological violence, all the institutional violence, the threats, even sometimes of other kinds were completely invisibilized due to the forced disappearance or arbitrary detentions. It has a lot to do with the hierarchy of the seriousness of the crimes that has been constructed in criminal law and international criminal law.
It also has to do with the subaltern role of women in societies in general. As a result, the logic of the “survivor” is very significant for women. It is also because the historic construction imagines one to die during war, and from that, receive some kind of masculine privilege — the idea of a masculine hero. That has changed a lot. Now, war disproportionately affects marginalised and poor people, but that is a relatively new change. This shift in class and intersectionality is very particular for men, which relates to the fact that men of racial minorities and from migrant backgrounds are now the world’s main soldiers. When I say ‘intersectionality’ it is not only with regard to women — I think that’s very important to establish. I don’t know if all feminists would agree with me, but I think that’s precisely the potential of this type of principle.
I have mentioned two things: the survivor dimension and the intersectional dimension. But what is really, really difficult is to harmonise them both at the same time. For example, the trauma-informed approach can be very difficult sometimes to reconcile with intersectional principles. One example is indigenous peoples. It is very difficult to assume that a woman has once again been a victim of sexual violence because it is imagined to damage the whole lineage. And so, the way to deal with it can be, and will be, through other very different means — to be able to focus on women’s pain and to have a kind of open door to a very therapeutic and very Western approach. And I know it’s very complicated because this reconciliation of the feminist point of view is also Western and and an approach that has respect for cultural differences. It’s a challenge that feminism has been working on for some time. But sometimes, it is simply almost impossible in practice for a judge who says, “Well, I've got to hold a hearing. Can I ask these women questions about their experiences, their trauma, and I can demand to interview these women alone? And the community doesn’t allow it. So, what’s it going to be? Not to interview them at all, or to interview them collectively, perhaps?” I think that’s the challenge for this type of decision. The question relates to determining the appropriate timing to establish a system of justice that functions as a continuous testing ground. Unlike conventional state justice, this system enjoys the privilege of engaging in negotiations and addressing procedural concerns. It serves as both a laboratory for refining best practices and exploring somewhat idealistic concepts. However, striking a balance between these two objectives is difficult to reconcile.
Picking up on your discussion of the importance of considering ‘intersectionality’ with regard to men as well as women, to what extent do you think the field of international justice still equates ‘gender’ with ‘women’ despite efforts to broaden definitions? In light of this, are you aware of any cases of international justice related to gender-based crimes for men or LGBT+ people?
One of the latest activism strategies in Colombia involves an initiative called Cinco Claves. This initiative was created for the Special Jurisdiction for Peace (JEP) to open a specific macro case on gender-based violence and violence due to prejudice. This methodology of macro cases was conceived by the JEP. It is a quite interesting methodological approach because it seeks to group the investigation of the same type of war crime or crime against humanity, in a particular region, perpetrated by a specific armed actor. The JEP has presented its efforts to mainstream the gender perspective in various macro cases, but the organisations comprising the Cinco Claves alliance insisted on the political importance of having a specific case investigating gender-based violence and prejudice-driven violence.
It’s an alliance of feminist and human rights groups along with LGBTIQ+ organisations to urge the Special Jurisdiction for Peace (JEP) to establish a comprehensive case encompassing all forms of violence, particularly those based on persecution and sexual orientation/gender identity. The victims and all the cases listed in the reports sent to the jurisdiction for the macro case represent violence against lesbian women, trans men, non-binary individuals, and cisgender women, reflecting a unified approach to understanding and addressing gender-based violence. It is also a way of showing the influence of gender norms in perpetuating various forms of violence within society, such as heteronormativity and binary standards. It highlights, for example, the violence faced by lesbian women forced to conform to feminine appearances, which extends to controlling behaviour and social activities. Another example is the violence of beauty pageants for trans individuals orchestrated by paramilitary groups. These violences are unclassifiable by binary standards, but they are incredibly violent for the women obliged to participate in these acts. It is on its way to being set up. But we have also heard from the United Nations and international authorities, who are very closely accompanying the process in Colombia, saying that this is the first time we’re witnessing a kind of criminal investigation strategy of this type. And so, I think it’s a good thing to know about the declaration of the opening of the case because it shows that these types of divisions may be already in the past.
In light of these advancements towards greater gender justice in international criminal law, what do you see as the main priorities or areas for action to advance victims’ rights in the context of international justice?
I think we need to go back to the obvious: it is very difficult and very costly. These procedures that involve a whole displacement of victims ultimately makes these types of justice very expensive, very elitist, and very privileged. Drawing from the research on judicial ethnography, it’s evident that without proximity, there’s a lack of social ownership. The objective should be to educate and transform social life through a nuanced understanding of international justice. This entails addressing the deficiencies of national laws, which can sometimes be delegitimized and heavily reliant on proximity.
The other element involves stronger collaborations with local justice. While joining the International Criminal Court initially promised impartiality by embodying a different institutional framework from that of states and involved public forces, it may be necessary to reassess this approach. Perhaps, instead, emphasising collaboration with existing justice systems could lead to swifter and more accessible justice, to be more efficient and closer to the people it aims to serve.