Thursday, December 20, 2018

Reparations from a gender-based and intercultural perspective 11/20

 Chapter 5-E. 

159. Both the Inter-American Court and the IACHR have underlined the need to use a differential approach when granting reparations to certain groups, associations, and persons. The IACHR has stressed that in order to determine the scope of reparations, the cultural aspects characterizing the victim must be assessed, as well as her worldview, and conception of justice.383 Victims’ cultural differences need to be taken into account and assessed under the principle of equality, in an effort to break with existing prejudices and stereotypes, especially those targeting indigenous peoples and afro-descendant communities.384 

160. The Inter-American Court first applied a differential analysis in the case of Castro Castro Prison v. Peru to determine reparations for victims, granting a higher compensation award to women who were subjected to sexual violence, to pregnant women, and women who went into labor while in detention.385 In the judgment, the Court took into account that the women “were affected by the acts of violence differently than the men, that some acts of violence were directed specifically toward the women, and others affected them in greater proportion than the men."386 In Rosendo Cantú and in Fernández Ortega, in addition to applying a gender-based perspective in its analysis, the Inter-American Court took into account membership of the victims in an indigenous community and their situation of special vulnerability.387 Likewise, it held that the fact that the victims belonged to an indigenous community could require community-wide measures.388 

161. In some States, laws or policies have been enacted that take into account a gender-based perspective and, at times, also victims’ membership in indigenous peoples. In Colombia, on December 9, 2011, Decree 4633 of 2011 was approved, establishing measures of assistance, care, full reparation, and restitution of territorial rights for indigenous peoples and communities. The Decree specifically sets forth that the State is obligated to recognize that indigenous women have been affected differently in the conflict.389 

162. At the hearing Situation of women victims of human rights violations during the internal armed conflict in Guatemala, held at the 144th Regular Session, the IACHR received information about the National Redress Program (PNR) with respect to indigenous women who were victims of gross and systematic violations of their human rights during the armed conflict. Based on the information received, the PNR was unable to fully perform its duties when these women were involved, inasmuch as i) no actual registration of all victims was carried out and the existing registration does not reveal the specifics of the violations committed against the women; ii) actions taken have been completely deficient in order to uncover the truth about the human rights violations committed against the women; iii) no reparation has been provided that takes into account the specific situation of women and girls; and iv) the mechanisms that have been used in the investigations into the rape and sexual violence lack a gender-based perspective.390 

163. In Peru, the Truth and Reconciliation Commission attempted to determine whether sexual violence affected women differently from men, and was recognized for these efforts.391 Nonetheless, a gender-based perspective was not adequately incorporated into the understanding of reparations in the final Reparations Program, and said program did not implement full and effective measures generally. 392 For example, the Reparations Program dismissed the effect of certain human rights violations, especially rape, on the situation of women and their capacity to access a stable income.393 Likewise, the ethnicity of the victims was not taken into consideration to determine whether or not differential damages were caused by the intersection of multiple discriminatory factors. 

1. Participation of indigenous women 

164. The IACHR has stressed that participation of indigenous women is essential in the design of reparations in the area of justice, as well as in the identification of challenges and priorities.394 The IACHR has indicated that “the victim’s opinion also has to be considered; this helps the victim to regain the sense that she controls her life. It is a decisive factor in enabling the victim to regain her dignity, her personality and her self-esteem, which have sustained a severe blow as a result of the pain and suffering she experienced.”395 

165. Effective participation of women in general and, particularly of indigenous women, in the development and implementation of reparations continues to be a challenge. In the case of the Truth and Reconciliation Commission in Peru, women were not sufficiently represented in the agencies charged with implementation of the Comprehensive Reparation Plan. 396 In some reparations processes, such as Guatemala’s, despite having a high degree of participation of indigenous women in the Multi-Institutional Body for Peace and Concord, which worked to create the National Redress Program, this did not translate into adequate implementation of reparations for these women.397 The cultural reparations measures, for example, have not been sufficiently implemented.398 

166. It is essential for States to continue to employ efforts to grant reparations with the participation and perspective of the victims involved.399 The IACHR reiterates the need to design and adopt culturally appropriate policies, with the participation of indigenous women, aimed at prevention, investigation, punishment, and reparation for acts that infringe their human rights.400 

2. The element of transformation from the  point of view of indigenous women 

167. Reparations aimed at remedying a human rights violation by restoring the situation, to the extent possible, to what it was before are considered insufficient and limited in societies that were already characterized by exclusion and inequality, and where the victims are members of discriminated and marginalized sectors.401 A merely restorative approach to reparations does not address structural factors and, therefore, does not guarantee non-repetition of human rights violations. 402 Transformative reparations must be distinguished from the actions taken by the State to fulfill its obligations vis-à-vis society in general in the area of social, economic and cultural rights.403 

168. In the Cotton Field case, the Inter-American Court held for the first time that when there is a situation of structural discrimination, “reparations must be designed to change this situation, so that their effect is not only of restitution, but also rectification.”404 The emphasis on granting reparations with a view to changing or transforming common practices and discriminatory beliefs reflects the inter-American system’s growing focus on the impact that gender notions, stereotypes and historical discrimination have on the perpetuation of violence against women.405 The current United Nations 
Rapporteur on Violence against Women, its Causes and Consequences has underscored that “guarantees of non-repetition offer the greatest potential for transforming gender relations. In promising to ensure non-recurrence, such guarantees trigger a discussion about the underlying structural causes of the violence and their gendered manifestations and a discussion about the broader institutional or legal reforms that might be called for to ensure nonrepetition.”406  



169. The Inter-American Court has issued measures of non-repetition in cases of indigenous women which, if adequately implemented, would have a transformative effect. In the cases of Rosendo Cantú and Fernández Ortega, the Inter-American Court ordered, for example, implementation of permanent training programs and courses on diligent investigation into cases of sexual violence against women, which include an ethnic and gender perspective, aimed at members of the Ministry of Public Prosecution, the judiciary, the police and the health sector.407 In the case of the Massacre of las Dos Erres, the Inter-American Court also ordered measures, such as implementation of permanent training programs on human rights for the members of the Armed Forces, judges and prosecutors.408 

170. Despite the importance of reparations with a transformative effect, the use thereof has not become widespread in the hemisphere. In some cases, it is possible to identify a rectifying element in the design of the reparations plans; however, it is currently unclear whether their effects have been adequate409. Some programs of the Comprehensive Reparations Plan of the Truth and Reconciliation Commission in Peru could have had a potentially transformative effect on the lives of indigenous women, if implemented properly. For example, the purpose of the Civil Rights Restitution Program is to issue documents, formulate official statements of absence due to disappearance, among other things; the Education Reparations Program seeks to make women literate and provide them with greater access to schooling at different levels; and the Collective Reparations Program includes training on production aspects, opportunities for employment or starting a business.410 In the Final Report of the Truth and Reconciliation Commission of Canada, the Comission released a list of 94 calls to action, most of which contained a transformative effect. The calls for action were aimed specifically at various areas ranging from the child welfare system, to legal or health professionals, or to the media. Measures varied from State implementation of the United Declaration on the Rights of Indigenous peoples, to the education of public servants, legal professionals and high school students on the history of indigenous peoples and the legacy of residential schools. 411 

171. States must adopt measures of reparation with a transformative view, aimed at reforming the context of multiple discrimination against indigenous women existing in the Americas. For this reason, not only should measures of reparation be designed to address the specific situation of women and their communities, and also support changes in practices, attitudes and stereotypes of the authorities and the population in general. States must organize the structure not only for the purpose of punishing human rights violations, but also to prevent these acts and properly address the causes and social consequences in order to achieve structural change.412 
  
https://www.iwgia.org/images/documents/popular-publications/indigenous-women-americas.pdf

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