Saturday, December 22, 2018

Systems of indigenous justice 12/20


Chapter 5-F
172. Because it is a manifestation of the right to self-determination of indigenous peoples, the international community has recognized indigenous peoples’ right to have their own justice systems, forms of organization, authorities and customary law, as can be seen in certain international instruments and interpretations issued by various international organizations.413 Both the instruments and interpretations underscore that respect for these systems and institutions must be afforded under international human rights law.  

173. It is necessary for States to ensure that national judicial systems operate in accordance with the cultural diversity existing within them, as well as to adopt mechanisms to enable effective recognition and promotion of indigenous law, respecting both its traditional rules and international human rights law.414 In the past, the IACHR has indicated that respect for indigenous legal systems must be recognized as a human right of a collective nature, without any implication that the State may be exempt from providing indigenous peoples with the services of the official justice system.415 

174. In the constitutions and laws of various States of the Americas, indigenous legal systems and the jurisdiction of indigenous authorities have been recognized to varying degrees.416 Despite this recognition, obstacles still stand in the way of full recognition and coordination with the official legal systems and, consequently, States have received recommendations to remedy this situation.417 The Expert Mechanism on the Rights of Indigenous Peoples of the United Nations Human Rights Council has held that indigenous legal systems can play a crucial role in facilitating access to justice for indigenous persons, especially in locations where the official justice system is limited by factors such as distance, language, and systematic discrimination.418 To this end, States must be willing to engage in intercultural dialogue, and to afford flexibility to indigenous authorities in the setting in place of indigenous jurisdictions, the implementation of their legal systems and in the spheres of competence of indigenous justice authorities, in full consideration of their right to their cultural perspectives and differences, autonomy and self-determination in these matters, so long as they comply with international human rights standards.419 
175. The American Declaration on the Rights of Indigenous Peoples, recently adopted in 2016, provides a regional recognition of the status and importance of indigenous law and jurisdiction, and the need to ensure that such systems are respected at the national level:  
Article XXII - Indigenous law and jurisdiction 

  • 1. Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards. 
  • 2. The indigenous law and legal systems shall be recognized and respected by the national, regional and international legal systems. 
  • 3. The matters referring to indigenous persons or to their rights or interests in the jurisdiction of each state shall be conducted so as to provide for the right of the indigenous people to full representation with dignity and equality before the law. Consequently, they are entitled, without discrimination, to equal protection and benefit of the law, including the use of linguistic and cultural interpreters. 
  • 4. The States shall take effective measures in conjunction with indigenous peoples to ensure the implementation of this article. 

176. As the American Declaration on the Rights of Indigenous Peoples reflects in Article XXII.1, the right of indigenous peoples to develop and maintain their juridical systems and practices must be exercised in accordance with international human rights standards. The administration of justice, whether through national institutions or indigenous institutions, is a public good with individual and collective dimensions.420 This means that both national and indigenous justice institutions must comply with the existing international human rights law standards, and those pertaining to the rights of women. 

177. Access to justice for indigenous women is therefore linked to both access to the official justice system and to recognition and respect for indigenous law.421 When indigenous women can access their own justice systems, they do not face ethnicity-based discrimination. In addition, the indigenous women at issue are familiar with the rules and procedures available to them. Indigenous systems can also take into account the broader context of the dispute and a more culturally appropriate approach to reparations can be adopted.422 If international human rights standards are applied within these indigenous institutions, such culturally appropriate practices may be more efficient in affording access to justice and measures of redress to indigenous women. 

178. The Commission must underscore, however, that indigenous women also face a variety of obstacles within indigenous justice systems. In its concluding remarks to Mexico, the CEDAW Committee expressed concern over harmful cultural practices, which are part of indigenous legal systems, inasmuch as they are based on the attribution of stereotyped roles of men and women in terms of gender perpetuating discrimination against indigenous women and girls.423 As for Bolivia, the CEDAW Committee noted it was concerned that emphasis on the particularities of indigenous peoples could hinder adherence to the standards of non-discrimination and formal equality between women and men.424 Special emphasis was placed on “the possibility that recognition of community justice by the State Party –though more accessible to the indigenous and peasant population- could become a mechanism of perpetuation of stereotypes and prejudices that constitute discrimination against women and violate human rights.”425 

179. Information provided to the IACHR indicates that indigenous authorities are usually men and therefore, in many instances, women stand trial before men of their communities and sometimes, of their own families, in keeping with the patriarchal structures of gender ideology.426 In Santa Cruz del Quiché, Guatemala, for example, it was found that despite the fact that cases of rape, domestic violence and rejection of recognition of paternity by men tend to be widespread, the community Mayors are not usually willing to acknowledge those types of complaints filed by women.427 The OHCHRGuatemala has expressed concern because indigenous women and girls are victims of domestic and sexual violence in the following terms: “in practice, they do not have the ability to exercise their rights because of patriarchal prejudice.”428 The OHCHR indicated in its study on the situation of human rights of indigenous peoples of Central America that indigenous women in Nicaragua required an analysis of the application of indigenous law in their own communities, since practices used there were harmful to their rights.429 

180. The United Nations Expert Mechanism on the Rights of Indigenous Peoples has held that indigenous legal systems are highly dynamic and, consequently, respect for judicial autonomy of indigenous peoples and respect for international human rights law are not necessarily exclusive of each other.430 By way of example, it cites the office of the indigenous Mayor of Santa Cruz del Quiche, Guatemala, where gender-based discrimination is starting to be addressed, and the number of women selected as Mayors has increased.431 In addition, in Cotacachi, Ecuador, development began in 2008 on the “Regulations for Good Coexistence and Good Treatment” or Sumak Kawsaipa Katimachick, 432 which seeks to bring ancestral practices and women’s human rights into harmony.433 

181. The Commission considers fundamental to strengthen the ability of indigenous justice systems to protect indigenous women, treating them fairly and equitably, in consonance with the international human rights system.434 Indigenous peoples have the right to promote, develop, and maintain their institutional structures and their own customs and legal systems, but they are not immune to the obligation to respect international human rights law. 435 Consequently, the self-determination enjoyed by indigenous peoples also means that indigenous authorities, in the same way as State authorities, have the obligation to respect the human rights of the persons subject to their jurisdiction. In this regard, the indigenous justice system must act with due diligence and ensure access to justice, without discrimination, for indigenous women. This entails an obligation to generate better documentation of the situation of indigenous women and the human rights violations to which they are subjected, as well as culturally appropriate complaint mechanisms, which engage women in their design and implementation. 


  https://www.iwgia.org/images/documents/popular-publications/indigenous-women-americas.pdf

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