Health 15/20

 Chapter  6A-2

199. As was recognized in the American Declaration on the Rights of Indigenous Peoples, at Article XVIII, “Indigenous peoples have the collective and individual right to the enjoyment of the highest attainable standard of physical, mental, and spiritual health.” According to the Committee on Economic, Social and Cultural Rights, this right to health contains certain interrelated and essential elements: availability, accessibility, acceptability, and quality. 484 Indigenous communities in general are grappling with deteriorating health conditions, stemming from insufficient and limited availability and accessibility to health care services. Health care facilities tend to be located far away from communities, and too often, the services offered are culturally inappropriate. For instance, during its visit to Guatemala in 2013, the IACHR was able to observe for itself serious geographic obstacles to providing effective health care services to indigenous communities;485 and during its hearing on Indigenous Women in the Americas, it received information with regards to the precariousness of services for indigenous women in Oaxaca, Mexico, the nearest facilities located many hours away from their communities, as well as lacking emergency services and interpreters.486 In the case of Brazil, indigenous women leaders have informed the Commission that in the State of Maranhão, many pregnant women are not receiving medical services due to the lack of equipment and infrastructure487. In addition, facilities in remote areas tend to be insufficiently equipped to adequately treat some of the illnesses to which indigenous communities are exposed as a consequence of the presence of extractive or development industries on their territories. For example, the Commission was informed of the lack of specialized medical response teams and materials in Espinar, in the region of Cusco, Peru to treat the consequences on health of the exposure of many community members to contamination arising from the exploitation of their territories.488 

200. Even though health care coverage among indigenous peoples has undergone an overall expansion, there are still disparities between the indigenous and non-indigenous populations. According to the State of Peru, access to health for indigenous women remains limited.489 The former Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, noted that indigenous peoples in Brazil endure poor health conditions, malnutrition, dengue fever, malaria, hepatitis, tuberculosis, and parasites; indigenous women present a disproportionately high incidence of cervical cancer, most likely as a result of the failure to practice early detection, and given their inadequate pre and postnatal care.490 The current UN Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, in her 2016 report on her mission to Brazil, stated that the prevalence of violence against indigenous women, the high levels of suicide in indigenous communities, as well as the illegal adoption of indigenous boys and girls in Brazil reflect the continuous lack of culturally appropriate services for indigenous women in the country491. As for the situation in Colombia, former UN Rapporteur James Anaya has reported that: “indigenous groups do not appear to have the same access to and enjoy the same quality care as the majority of Colombians.”492 He voiced special concern because indigenous women in Colombia face difficulties in accessing sexual and reproductive health services, especially when they are victims of forced displacement.493 

201. For its part, the requirement of acceptability for health services demands that health-related facilities, goods, and services be respectful of the culture of peoples and communities. 494 As such, it is vital for States to make interpreters available in order to enable full access to health services.495 It is also important to emphasize that indigenous women’s health is not only a women’s individual responsibility, but also a collective responsibility of the members of the community, given that their health and well-being has a bearing on the cultural, spiritual, and social life in the community.496 In order to meet this need, an intercultural approach has been promoted in the Americas, which entails the support and fostering of indigenous medicine systems; and the establishment of health care models that respect and implement systems of traditional knowledge-based health care.497 

202. Article 25 of ILO Convention N° 169 establishes the States’ obligation to make adequate health care services available to indigenous peoples, or provide them with the necessary means for them to organize and provide these services under their own responsibility and control. In addition, the American Declaration on the Rights of Indigenous Peoples has established, in Article XVIII, that indigenous peoples “have the right to their own health systems and practices, as well as to the use and protection of the plants, animals, minerals of vital interests, and other natural resources for medicinal use in their ancestral lands and territories.” In this regard, the Committee on the Elimination of Racial Discrimination has stressed the importance of States developing, in close consultation with indigenous communities, a comprehensive and culturally appropriate strategy for indigenous peoples to receive quality health care. 498 Given the special situation of vulnerability experienced by indigenous women and girls, it is essential to take into account their specific particularities in developing these strategies. According to ECLAC, the indigenous women’s movement of Latin America has raised the need to build mechanisms of participation and of inclusion of indigenous women and peoples to make sure that appropriate and quality health services are provided, employing an intercultural approach to overcome linguistic differences, and discriminatory treatment.499 

203. The IACHR has previously indicated that cultural factors stand as barriers to accessing health services for women. When indigenous women are involved, health services tend to be offered without taking into account their expectations, traditions, and beliefs which, coupled with the negative quality of the services indigenous women often receive, can discourage women from using these services.500 Access to health can be significantly impaired by cultural insensitivity or disrespectful treatment by medical staff, which can simply make women and their families decide not to seek the medical care they require.501 It should be noted as well that indigenous persons, and women in particular, often encounter discrimination when they access medical services at health care facilities. When they have preserved their own languages as their only means of communication, they also face a language barrier with health care system workers.502 For example, the IACHR received information indicating that Colombian indigenous women have claimed that a lack of interpreters is one reason why they do not seek health care in hospitals and health care facilities.503 

204. As for reproductive health, while some indigenous communities are reticent to deal with the topic because of the role played by women in their communities, many indigenous women wish to exercise their sexual and reproductive rights.504 The IACHR has noted previously that, along with other groups of women, indigenous women encounter the greatest obstacles in accessing information on sexual and reproductive health. These barriers have lead to massive human rights violations, for instance in cases where sterilization was practiced without consent, curtailing their rights to humane treatment, private and family life, and to a live free from of violence and discrimination.505 States have the obligation to ensure women’s right to access information on this topic, taking into consideration the potential specific needs of indigenous women.

205. One of the main health problems afflicting indigenous women is maternal mortality and morbidity, which continues to affect them to a greater extent than it affects non-indigenous women.507 According to the Pan American Health Organization, the maternal mortality rate in Guatemala is still high, with 139.7 deaths for every 100,000 live births, which are mostly reported among indigenous women. 508 ECLAC reports that the risk of death of indigenous women in giving birth in Mexico is nine times higher in predominantly indigenous municipalities with a high marginalization and geographic-social isolation index as compared to those with most access to services.509 ECLAC reports similar rates for other Latin American States.510 

206. The IACHR finds that States have certain fundamental obligations requiring immediate priority measures to be taken in the area of maternal health, and one of them is to prioritize efforts and resources to ensure access to maternal health services for women who tend to be at a higher risk, such as indigenous women.511 The Inter-American Court ruled in the case of the Sawhoyamaxa Indigenous Community v. Paraguay that States have the obligation to adopt special measures to ensure mothers’ right to accessing adequate medical care, especially during pregnancy, labor, and nursing.512 

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As Nicaragua Slides Deeper Into Dictatorship, Other Nations Grow Alarmed

December 26, 2018 by Barbara Crossette

Protesters demanding freedom of the press, Nicaragua, Dec. 26, 2016. As the nation succumbs to full tyranny, 14 countries,, recently condemned President Daniel Ortega’s treatment of civil society in his country.

In a rebuke to President Daniel Ortega of Nicaragua on Dec. 21, governments of 14 democratic nations in Europe,  Chile and Australia condemned the closing, banning or expulsion of civil-society organizations working on rights and governance issues in Nicaragua. The censure came as violence is again being used against Ortega’s critics.

Young people who have known no other leader but Ortega are joining the opposition —or being wrongly accused of doing so. Nicaraguans report on social media that many families live in fear and that former colleagues of the president denounce him.

A wave of demonstrations earlier this year that began as protests against the government’s pension system but quickly spread to other issues, was met by severe repression by the Ortega government. More than 300 people were killed and at least 500 detained, according to news reports. The concerns of the 14 governments include new actions taken against organizations working in such diverse areas as strategic studies, media and health advocacy.

Government targets also include national and regional human-rights organizations. The UN high commissioner for human rights, Michelle Bachelet — who endured torture and imprisonment in Chile in her youth — said on Dec. 21 that she was “extremely alarmed” by Ortega’s decisions to expel two human-rights institutions set up by the Inter-American Commission for Human Rights, a regional body.

“After the earlier cancellation of the registration and confiscation of properties of national NGOs working on human rights, the de facto expulsion of the two organizations — MESENI and the GIEI, which were set up in full cooperation with the Government after the violence and unrest earlier this year — means there are now virtually no functioning independent human rights bodies left in Nicaragua,” Bachelet said in a statement.

MESENI is a follow-up monitoring system created by the Inter-American Commission. GIEI, or the Interdisciplinary Group of Independent Experts, is a nationally based organization, which was expected to present a report this month. The Ortega government has also announced that it will no longer accept visits by representatives of the Inter-American Commission for Human Rights. The group is part of the Organization of American States, based in Washington.

“Coupled with the parallel clamp-down on independent media, including last weekend’s raids on media outlets,” Bachelet said, “the net result is a country where civil society is in danger of being shut out altogether, and international organizations are also struggling to keep operating.”

The Mesoamerican Initiative of Women Human Rights Defenders, a Central American coalition, is also reporting that targeted attacks on women active in human-rights advocacy and the media are occurring.

On Dec. 19, the coalition circulated a report from the Nicaraguan University Alliance, which said that on Dec. 18 four women who had demonstrated for the release of political prisoners — named as Mildred Rayo, Arianna Moraga, Karla Esquivel and Dolly Mora — “were subjected to a number of acts of intimidation, threats and harassment by the police.” Their homes and homes of relatives had been searched by police agents who seized material “with a threatening attitude.”

The alliance described the Nicaraguan situation as a “grave socio-political human rights crisis.”

The large street protests that began in April around the country were apparently an outpouring of growing public opposition to the government of Ortega and his wife and vice-president, Rosario Murillo, a controversial figure whom Nicaraguans have accused of abetting his ruthless policies.

Daniel Ortega, a leader of the Sandinista National Liberation Front, was a hero for his role in the 1979 overthrow of the dictatorship of Anastasio Somoza, whose family had ruled Nicaragua since 1936.

In the early 1980s, the Reagan administration, supporting a counterrevolutionary movement that became known as the Contras, attempted but failed to oust the Sandinista regime, which was leftist, pro-Cuban (Ortega had guerrilla training in Cuba) and considered a potential opening for the Soviet Union in Central America.

The Sandinistas turned back the US-backed Contra campaign. Ortega was elected president of the country in 1984 and, except for several terms out of office, has ruled ever since, lately with the backing of a pliant Supreme Court, which overrode laws on term limits.

The shine has gone off Ortega, whose administration, former supporters are saying, has defiled the early political idealism of the Sandinistas. He has become the kind of undemocratic autocrat the Sandinistas overthrew four decades ago.

Ortega’s story is not uncommon among other heroes of anti-colonialism and anti-dictatorship who, once in power, refused to relinquish it, bringing their countries down with them over time, economically and politically. In Africa, Robert Mugabe did that in Zimbabwe, and José Eduardo dos Santos, in Angola.

Nelson Mandela was different, and his influence was felt as far away as East Timor, where the legendary guerrilla leader, Xanana Gusmão, tells the story of being in an Indonesian jail when Mandela, recently freed from prison himself, visited him and gave him advice.

The South African anti-apartheid leader suggested that if Gusmão became president of an independent East Timor, he should remember that he was the leader of all its people, no longer a guerrilla movement’s chief. Gusmão, as president of East Timor later and despite conflict that erupted among factions of the independence movement, heeded that advice.

In 2018, the World Bank listed scores of nongovernmental organizations in East Timor, among them human-rights organizations and women’s advancement and protection groups. A world away, Nicaragua is fast losing important ones, as the national legislature bans those critical of Ortega, particularly on human rights.

Besides Australia, Chile and the US, the governments protesting on Dec. 21 the closing of space for civil society in Nicaragua were: Britain, Czech Republic, Denmark, Estonia, Finland, Lithuania, Luxembourg, Netherlands, Norway, Poland and Sweden. Notably absent were Canada and Mexico and most other Western Hemisphere countries.

The statement of the 14 listed among the targets of Ortega’s bans the Institute of Strategic Studies and Public Policies, the Center for Information and Advice on Health Services, Hagamos Democracia, the Nicaraguan Center for Human Rights, the Institute for the Development of Democracy, the Nicaraguan Center for Communication and the Segovias Leadership Institute.

“The arbitrary cancelation of the legal standing of these civil society organizations and subsequent ransacking of several offices by National Police are a direct attack on the fundamental freedoms of the Nicaraguan people,” the governments’ statement said. “The work of these organizations is essential to account for the ongoing human rights abuses and violations in Nicaragua.”

https://www.passblue.com/2018/12/26/as-nicaragua-slides-deeper-into-dictatorship-other-nations-grow-alarmed/

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Economic, Social, and Cultural Dimensions of Indigenous Women’s Rights 14/20

Chapter 6A1:

185. Despite some advances in the past years in their economic, social, and cultural well-being, indigenous peoples continue to live in precarious conditions, as compared to the rest of the population, with higher rates of poverty, lack of access to basic services, education, and health care.438 In Guatemala, for example, the highest levels of poverty are found in the 12 departments inhabited by an indigenous majority.439 In Colombia, there are significant gaps in the effective enjoyment of economic, social, and cultural rights of indigenous peoples in comparison with the general average of the non-indigenous population of that country.440 The same situation can be seen in Mexico, where indigenous peoples show considerably higher rates of illiteracy than the non-indigenous population, as well as difficulties in gaining access to health services.441 On its country visit to Honduras in December 2014, the IACHR noted with concern that indigenous peoples experience higher levels of poverty than the rest of the population of the country, posting lower literacy rates, higher malnutrition rates, and a high incidence of contagious diseases and infections.442 

186. As was indicated above, indigenous women in the Americas are exposed to multiple forms of discrimination, placing them in a situation of greater vulnerability, as compared to the rest of the population and to indigenous men, because of the various layers of discrimination that they face simultaneously. The IACHR has previously observed, with regard to economic, social and cultural rights, that discrimination against women, and especially against indigenous women, continues to be reflected in the labor market, in limited access to social security, in higher rates of illiteracy, as well as in the serious situation of poverty and social exclusion affecting them.443 

187. This chapter examines the situation of economic, social, and cultural rights that indigenous women in the hemisphere are experiencing, as well as the major obstacles preventing them from fully enjoying these rights. It begins by describing the main issues faced by indigenous peoples in the Americas related to enjoyment of their economic, social, and cultural rights –with an emphasis on the rights to education, health, water, food, and work– and the impact that this situation has on indigenous women. Lastly, it addresses the importance of cultural rights to indigenous women. As a crosscutting issue, it discusses the importance of employing an intercultural and gender-based approach in the design and implementation of laws, policies, and programs aimed at addressing these issues. 

A. Barriers to the enjoyment of economic, social  and cultural rights 

1. Education 

188. Education is a human right and a precondition for the realization of other rights. It constitutes a powerful tool for gender equality and a life free from poverty. 444 Indeed, education is one of the most economically sound investments for an individual or society; and this is particularly true for women, as it increases directly their wages and facilitates their access to broader health and social benefits.445 Although this section of the report refers to the right to education of indigenous women in general, it will for the most part focus on access to education for indigenous girls, with a specific focus on primary education, as it constitutes a determining factor which has a direct impact on the socio-economic conditions of indigenous women throughout their lives, and conditions their ability to pursue their education to the secondary level and beyond. 

189. Based on this understanding and on the framework of its Millennium Development Goals, the United Nations made the right to education its target number 2, establishing that States should “[e]nsure that, by 2015, all children everywhere, boys and girls alike, will be able to complete a full course of primary schooling”. 446 In addition to the treaties at the international level, the Inter-American Court has established that States have the duty to ensure access to free basic education.447 When indigenous communities are involved, the State must foster the right to education from an ethno-educational perspective, in other words, it must “take positive measures so that education is culturally acceptable from an ethnically differentiated perspective.”448 

190. The Expert Mechanism on the Rights of Indigenous Peoples has underscored that indigenous peoples’ right to education “includes the right to provide and receive education through their traditional methods of teaching and learning, and the right to integrate their own perspectives, cultures, beliefs, values and languages in mainstream education systems and institutions.”449 It must also be taken into consideration that the right of indigenous peoples to education encompasses mental, physical, spiritual, cultural, and environmental dimensions.450 In addition to the intercultural perspective referred to above, education must be provided in conditions of equality and free from stereotyped gendered roles. 451 As the IACHR has indicated, indigenous women and girls encounter specific barriers to access and attendance in school, given the lack of educational options that fit their cultural and socio-economic context. 452 It is therefore essential that education for indigenous women and girls be inclusive, as well as culturally and linguistically appropriate, to avoid perpetuating their marginalization. 

191. Information provided to the IACHR demonstrates that illiteracy continues to be too common amongst indigenous women. In Guatemala, information from the second thematic report of the Office of the Ombudsman for Indigenous Women indicated that an average of 58.3% of all indigenous women in the country are illiterate, a proportion which was dramatically higher in some specific areas, reaching 87% amongst chuj indigenous women for instance.453 In Paraguay, the illiteracy rate of indigenous women 15 years of age or older is 42.7%.454 In Mexico, information from the 2010 National Survey highlighted that illiteracy among indigenous women who speak an indigenous language is four times higher (34.4%) than for those women who do not (8.1%), in addition to being much higher than that of men.455 

192. As a result of the adoption of the Millennium Development Goals (MDG), the past decade has been marked with a solid improvement in terms of access to education and school attendance for indigenous children. According to information received at the IACHR, MDGs have improved gender parity as well as included an additional 52 million children in school around the world.456 In addition, Intercultural Bilingual Education (IBE), which has focused on the promotion of both the indigenous language and the national language, and included indigenous knowledge in the curriculum, has proven to be successful. Available evidence suggests that IBE has boosted school attendance, cultural awareness of children and self-esteem, as well as has increased both student and parent’s interest in education.457 Indeed, access to education has increased substantially for indigenous girls and adolescents between the ages of 6 to 22.458 For instance, between 2000 to 2010, school attendance of indigenous girls ages 6 to 11 years old increased by almost 20% in Costa Rica and Panama, reaching attendance rates of 88% in the former and 92% in the latter.459 During the same period, the increase in school attendance of indigenous girls between the ages of 12-17 was even more significant, rising from as low as nearly 50% in some countries in Latin America to 70% of indigenous adolescents.460 Some important increases have also been seen among indigenous young women between the ages of 18 and 22, where attendance was reported to have doubled over the last decade; however it did not surpass 40% in any country of Latin America.461 

193. Nonetheless, and despite this marked increase in school attendance for indigenous girls of every age group, a significant gap remains between indigenous and non-indigenous girls, and it increases progressively with every additional year of education.462 Indeed, there continues to be a lower probability that indigenous girls attain completion of elementary and high school.463 The Commission has found it difficult to obtain recent data on access to education of indigenous children which was disaggregated by gender, but the data it was able to gather provided a basis for concern. In several countries, only a small percentage (less than 10%) of indigenous girls complete high school - in Panama (5.7%), Colombia (6.8%), Nicaragua (7.4%), and Ecuador (7.9%). In other countries, completion rates range from 10% to 20%: in México (13.1%) and Costa Rica (14.5%); while a few countries’ rates are higher than 20%: in Uruguay (23.5%) and Peru (28.6%).464 This has been attributed to factors including: failures in the implementation of EIB, such as the lack of sustained and secure funding, of infrastructure, and of qualified teachers; the unsatisfactory reflection of indigenous cultures, traditions, histories, languages and perspectives in the curricula; the persistence of negative stereotyping of indigenous culture and identity; ethnic, generational and gender inequalities; teenage pregnancy; the lack of recognition and support for second chance literacy and nonformal education programs, as well as the persistence of structural causes such as poverty, which require indigenous children to work and contribute to the family’s financial subsistence.465 

194. Another factor to be considered is the school completion rate at the different levels of education, as school attendance by indigenous girls and women by no means guarantees that they will remain in school until completion. The primary school completion rate has considerably increased in all countries, particularly in Costa Rica, Mexico and Panama, where rates have risen 20 percentage points between 2000 and 2010.466 Ethnic inequality continues to be greater than gender-based inequality: with the exception of Uruguay, young indigenous girls complete primary school at a lower rate than nonindigenous girls in all countries. This inequality is more significant in comparing rural and urban settings, which exposes sharp differences between rural and urban indigenous girls.467 

195. Several different barriers make it particularly difficult for indigenous girls and young women to access and remain in school. The lack of adequate infrastructure in schools, such as properly outfitted and functioning bathrooms, in indigenous communities and economically disadvantaged areas, affects young and adolescent girls when they enter puberty.468 School location is another one of the most common barriers, inasmuch as in many instances education facilities are located too far away from their communities, entailing a long journey, and the attendant transportation costs and risks of sexual violence.469 The additional costs that must be incurred for school supplies and textbooks just add to the list of obstacles encountered by them.470 The State of Peru has noted, for example, that indigenous women tend to not complete their education, due to lack of economic resources, especially when they attempt to access higher education.471 

196. Indigenous girls and women are also up against cultural barriers, when their families believe that the investment made in educating their daughters is not worth the cost, or when these girls have family and caregiver responsibilities that they are required to perform instead.472 Based on information provided by the State of Peru, the highest school dropout rates for women are posted in rural areas, as little girls are required to drop out of school to do domestic chores.473 Another reason girls may be compelled to leave school prior to completion is early motherhood. 474 In this regard, it is important to underscore that indigenous women’s particular exposure to sexual violence has an impact on the exercise of their right to education.475 ECLAC has identified that, given the remoteness of many indigenous communities and the long distances that must be travelled for children to attend school, families’ fear for the safety of the girls and the risks of being victims of violence and sexual assault on the way to or back from school is an additional detractor to attendance.476 

197. It is fundamental for States to pay special attention to the particular situation of indigenous women and to consult them regarding the design of responses to address the sexual violence perpetrated against women in the education sector, with the goal of ensuring measures that are sensitive to their worldview and reflect an intercultural perspective. 477 The IACHR has previously stressed that an intercultural education, free of all forms of discrimination includes the right to live free from all forms of violence.478 

198. Another major barrier for indigenous girls and women to access education is language. According to the United Nations Rapporteur on the Right to Education, teaching in the predominant language of a State, instead of indigenous languages, is a factor that has a bearing on accessing and remaining in school, inasmuch as it places linguistic, pedagogical, and psychological limitations on indigenous students.479 ECLAC has found that students, whose mother tongue is not integrated into education programs or is only taught as a separate course, tend to perform poorly,480 and that they perform even more poorly when the curriculum lacks sensitivity to the subject of cultural diversity.481 The Committee on Economic, Social and Cultural Rights has consistently expressed concern that indigenous peoples in Guatemala do not always enjoy the right to an education taught in their native tongue.482 It has been reported that departments of the country with 90% indigenous population have a very low number of educational establishments with a bilingual/intercultural education program in place.483 

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Access to Justice for Indigenous Women 13/20

Chapter 5-G. Conclusions 

182. The historical and structural discrimination faced by indigenous women on the basis of their race and ethnic background, status as women and socio economic condition, make them especially vulnerable to human rights violations. The right to access to justice therefore takes on particular importance and, accordingly, the IACHR reiterates its deep concern that, despite initiatives spearheaded by some States, the right of access to justice is not fully guaranteed for indigenous women in the Americas. 

183. As noted above, the main obstacles to adequately justice for indigenous women are geographic, socio-economic, cultural and linguistic, but also flow from a State failure to act with due diligence, to adopt a holistic vision of the problem of violence against women, and to ensure an intercultural, genderbased and multidisciplinary judicial response. In order to contribute to increasing indigenous women’s ability to obtain access to justice, States must adopt measures tending to empower indigenous women, give them access to meaningful participation in the civil and political spheres, as well as to improve their social and economic conditions.436 At the same time, the State must guarantee that its agents and justice officials are trained and sensitized about gender and the various indigenous cultures, beliefs, and worldviews in their country. Indigenous justice systems must also act with due diligence when human rights violations are committed against women. 

184. The obligation to include gender equality principles as well as due diligence standards required under international law also applies to indigenous justice systems. Therefore, it is important to work comprehensively in both State justice systems and indigenous systems on the measures necessary to respect and ensure indigenous women’s human rights, in order to contribute in this way to the removal of barriers to accessing justice.437 

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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. 

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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 

  

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Multidisciplinary Perspective 10/20

Chapter 5  D. 

156. In order to ensure access to justice for indigenous women, a multidisciplinary approach must be adopted, since the respect for their cultural and ethnic identity, language and particular characteristics is essential in this context. For this reason, the work of interpreters, translators, anthropologists, psychologists, healthcare professionals, among others is important. 374 The IACHR has voiced special concern because forensic medical and legal expert examinations do not ensure respect for indigenous customs in cases of sexual offenses. 375 In the interest of addressing this issue, the IACHR has indicated that States need to create systems and procedures for culturally appropriate expert examination in cases involving indigenous women.376 With regard to sexual violence, the IACHR has found that States’ duty to protect is comprehensive and encompasses both a public health and a legal approach, in which the State must meet the needs of the victims, including effectively addressing the physical and psychological consequences of sexual violence.377 

157. The Commission acknowledges that it is crucial to have a variety of professionals available in order to render the process in the courts culturally appropriate. Interpreters guarantee effective communication and understanding of the court proceedings. In addition, other experts in the field of social sciences such as legal anthropologists or psychologists may also be required to inform the court about the worldviews of a specific indigenous community, the particular cultural beliefs which may influence behavior (in the courtroom and in society), the practices which may influence the suitability of a sentence or of a reparation, and the specific effects of a measure or decision on an indigenous community. However, the Commission continues to receive reports indicating that this multidisciplinary approach is not implemented in national courts. For instance, the IACHR has received information indicating that during judicial proceedings in Mexico, contextual information about the indigenous people to which the woman belongs, or about its worldview, is usually not taken into consideration. 378 Introduction of anthropological expert opinion evidence from a gender-based perspective is still not a widespread practice in judicial proceedings.379 

158. Additionally, even though interpreters and translators play an essential role in access to justice for indigenous women, the IACHR has received information to the effect that they are often not made available by the States. The State of El Salvador indicated that the court system did not have interpreters of its own and, therefore, when such assistance was necessary, judicial officials had to obtain it from outside agencies or institutions.380 The Office of the United Nations High Commissioner for Human Rights in Mexico identified in a sampling of 586 cases of indigenous persons deprived of their liberty in the State of Oaxaca, Mexico, that 84% had not been assisted by a translator at any time during their case proceedings.381 Similarly, in a study conducted by the National Women’s Institute in 2011, it was found that most indigenous women deprived of liberty in the States of Chiapas, Oaxaca and Veracruz were not accompanied by a translator or interpreter, and in the instances when they did receive assistance, the interpreter or translator was unfamiliar with the culture and customs of the person being charged.382 

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Investigations from an intercultural and gender-based perspective 9/20

Chapter 5 C. 

150. The IACHR has noted that indigenous women and girls are caught in a situation of particular risk because of obstacles they face in seeking justice, which is further exacerbated by States’ failure to provide differential procedures and care to meet their specific needs in the area of justice.361 Officials in charge of receiving complaints and conducting investigations do not usually take into consideration the particularities of the victims.362 

151. The IACHR has held that States have the duty to establish and run judicial systems in accordance with the cultural diversity of indigenous peoples, which means they must provide sufficient economic and material resources for the judiciary to function, as well as offer intercultural training to the operators of justice, which includes education on indigenous cultures and identities. 363 It has also highlighted that States must, through the administration of justice, “incorporate the specific needs of indigenous women in their actions, respecting their cultural identity, ethnicity, language, and idiosyncrasy, even creating systems and methods of collecting evidence from the perspective of their culture in cases of violence.”364 

152. For example, during the thematic hearing on the situation of human rights of indigenous women in Nicaragua held in 2014, the IACHR was informed of the State’s failure to incorporate an intercultural approach in Nicaraguan courts.365 The Office of the United Nations High Commissioner for Human Rights in Guatemala has reiterated concern over the fact that the institutions charged with administering justice have not yet accepted ethnic and linguistic diversity as a fundamental element in the performance of their duties, which has especially affected women in rural areas and those who speak indigenous languages.366 With respect to sexual violence, the IACHR has previously stressed States’ duty to act with the required due diligence for the prevention, punishment, and reparation of such acts, taking into consideration the worldview and the cultural and community perspective of indigenous women.367 

153. The Mexican State reported in its response to the questionnaire that the Supreme Court of Justice of the Nation (“SCJN”) has designed the Protocol for Prosecution with a Gender-based Perspective and the Protocol for administrators of justice in cases involving the rights of indigenous persons, communities and peoples, in an attempt to address the gender and ethnicitybased discrimination that is so widespread in Mexico.368 The adoption of these protocols represents a step forward in ensuring access to justice from an intercultural and gender-based perspective. Nonetheless, the IACHR was subsequently informed that these protocols were not mandatory, and that further guidelines are required to adapt their application to the particular situation of indigenous women.369 

154. The State of Colombia reported that it has created the Casas de Justicia program, which includes a strategic course of action called the Public Policy for Access to Justice through an Ethnic Component Strategic Line, with a view to promoting access to justice in a differential way through respect for the particularities of each indigenous people in the country.370 It also indicated that it enacted Law 1381 of 2010 on native languages, creating instruments for the entities of the national and local government to provide the members of indigenous peoples with interpreters or translators.371 The Colombian Constitutional Court recognized in several follow-up orders to Judgment T025 of 2004 the need for State institutions to adapt their policies to the specific age, gender, and ethno-cultural needs of the populations affected by internal displacement and other victims of the armed conflict.372 

155. The Commission observes that in the responses to the questionnaire prepared by the IACHR, no State indicated that it had any system or procedures in place to collect evidence that incorporates the vision, culture, and perspective of indigenous women in cases pertaining to discrimination and violence against them. The responses only mentioned the existence of laws to eradicate violence and discrimination against women, as well as guidelines and protocols to address violence and promote equality, but none that concretely address the particular needs of indigenous women in the sphere of investigation and evidence-gathering.373 

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Main obstacles to access justice encountered by indigenous women 8/20

Chapter 5B.

139. Indigenous women and girls face a variety of obstacles in their access to justice, most of which are closely connected to the discrimination, marginalization, and vulnerability to which they have been subjected historically. Discrimination in the official justice system, coupled with the high rates of marginalization and physical, emotional, and sexual violence they are subjected to, contributes to impeding their access to justice.329 Laws, public policies and programs aimed at addressing the particular issues faced by indigenous women, as a specific population group, are in short supply, inasmuch as most of them tend to be targeted toward either indigenous peoples or towards women in general.330 As the IACHR has underscored in its report Missing and Murdered Indigenous Women in British Columbia, Canada, States must first conduct consultation processes with indigenous women and then adopt the necessary initiatives, programs, and policies considering their needs and concerns.331 

140. The obstacles most affecting indigenous women’s access to justice in the Americas are geographic, economic, cultural, and linguistic. The IACHR has noted in the past that geographic remoteness of indigenous territories and the lack of State services may force indigenous women to walk, sometimes for several days, in order to get to the nearest city to file a complaint, which also poses additional problems in introducing evidence to sustain their claims.332 In its response to the questionnaire, the State of El Salvador indicated that one of the measures implemented to ensure indigenous women’s physical access to the institutions of justice was to introduce “Justices of the Peace” courts throughout the country.333 

141. When women arrive in the towns or cities where the authorities are located, they also face economic problems, feel uncomfortable in an urban setting, and lack command of the language used in the courts of law.334 It is very often the case that indigenous women are not provided interpreters for some or all of the proceedings, and are also confronted with the ethnic and cultural insensitivity of the operators of justice. 335 Additionally, justice officials are frequently unfamiliar with international human rights instruments of a collective and individual scope which are applicable to indigenous peoples, and rarely apply the ethical framework of women’s human rights.336 As such, many complaints to the authorities will simply be dismissed or set aside, even before an investigation has taken place. 

142. In this regard, the UN Committee on the Elimination of Racial Discrimination (hereinafter “CERD”) has voiced its concern over the failure of the Office of the Special Prosecutor for Ethnic Groups and Cultural Heritage of Honduras to investigate, prosecute, and punish allegations of crimes against indigenous and afro-descendent people. Consequently, said Committee urged Honduras to take the necessary measures to ensure access to justice of indigenous peoples, both individually and collectively depending on the circumstances.337 Likewise, CERD noted its concern over the difficulties encountered by indigenous peoples in Guatemala to gain access to justice, particularly because of the failure to recognize and apply the indigenous legal system, as well as the lack of sufficient interpreters and courtappointed defense attorneys.338 The United Nations Human Rights Council has also taken a position to this effect, regretting the lack of interpreters in Guatemala and urging the State to “take any measures that may be necessary to enable access to justice for all in their own language, by adopting effective policies to hire bilingual officials, by creating the number of interpreter positions as required, and adequately training professionals to perform the appropriate duties.”339 The IACHR also insisted in its 2016 country report on Guatemala that “[i]n a country with a large indigenous population, one of the key issues for the Commission is bilingual access to justice, which presupposes ensuring that in the state justice system indigenous persons can be heard in their own language and can express themselves fluently in the criminal proceeding, in accordance with the right recognized in Article 8(2)(a) of the American Convention and Article 12 of ILO Convention 169”. 340 Regarding El Salvador, CERD has noted the difficulties that indigenous peoples encounter in attempting to gain access to justice, stemming from the high cost of litigation, and the lack of judicial services in remote areas.341 

143. While the above-cited problems affect indigenous peoples in general, based on a diagnostic assessment of indigenous peoples in Central American conducted by the Office of the United Nations High Commissioner for Human Rights and the Asociación de Investigación y Estudios Sociales (ASIES), indigenous women and girls are least able to exercise their right to access to justice, in both the official and the indigenous justice systems.342 The CEDAW Committee has expressed its concern over the situation unfolding in Argentina, where even though “legislation provides for women’s access to justice, their actual ability to exercise that right and bring cases of discrimination before the courts is limited by factors such as a lack of information on their rights, linguistic barriers, especially for indigenous women, and other structural difficulties in accessing the courts.” 343 Likewise, the CEDAW Committee has voiced its concern over the fact that in Costa Rica, indigenous women had limited access to free legal assistance services. 344 The Committee has also urged Honduras to provide legal assistance and eliminate all impediments standing in the way of women who resort to courts, including fees for bringing actions and filing suits, as well as protracted delays in judicial proceedings.345 

  

  144. The Inter-American Commission has received information from the Office of the United Nations High Commissioner for Human Rights in Guatemala indicating that indigenous women in that country do not usually report it when they are victims of intrafamily or sexual violence and of other violations, because they may be unaware of their rights, are concerned about being victims of further assaults, receive threats on their families, or are ashamed because of what their community will say.346 These women have also claimed that they are afraid of being ignored and mistreated by judicial officials. When the women have opted to report these crimes, the lack of adequate and timely access to justice ends up making them feel guilty for doing so because it affects their families.347 As has been noted above, the IACHR has observed that in many regions of the country, these indigenous women are unable to be understood in their own language, which adversely affects them whether they appear as victims, or as defendants charged with committing an alleged offense.348 

145. The CEDAW Committee has expressed concerned over how unaware indigenous women in Guatemala are about their rights.349 For this reason, it has called on the State of Guatemala to take proactive measures to deal with the problem, such as creating general basic legal education programs, which take into account illiteracy and the languages these women speak.350 By doing so, indigenous women can have the tools to learn about their rights and acquire the ability to exercise them. In light of a similar situation in Honduras, the CEDAW Committee recommended that the State conduct sustained legal awareness and public education campaigns in order to encourage and empower women.351 

146. Obstacles faced by indigenous women and girls in accessing justice have also been underscored by the Inter-American Court in the cases of Rosendo Cantú v. Mexico and Fernández Ortega v. México, as indicated earlier. In the case of Valentina Rosendo Cantú, the Inter-American Court ruled that the State had obstructed her access to justice by not providing her with timely and specialized medical care when she filed the complaint, and for not acting with due diligence to investigate and punish the rape of which she was the victim.352 The Court identified certain omissions and failures committed by the State in the investigation, such as not providing Valentina Rosendo Cantú the assistance of an interpreter and, therefore, requiring her husband to give her statement; and not ensuring that, in filing the complaint of rape, minimum conditions of privacy were respected, as required when this type of offense is involved.353 

147. In both this case and that of Inés Fernández Ortega, because it was impossible for them to report and receive information in their language, the Inter-American Court held that their situation of vulnerability  based on their language and ethnicity  was not taken into consideration, which amounted to a de facto infringement of their right to access to justice.354 The Court also emphasized that States have the obligation to refrain from taking actions, which directly or indirectly create situations of de jure or de facto discrimination.355 

148. Some States of the hemisphere have institutions designed to ensure access to justice for women; however, so far, this has not translated into an actual improvement in the situation of indigenous women. With regard to Honduras, the CEDAW Committee has voiced concern because, despite the existence of an Office of the Special Prosecutor for Women, women continue to encounter obstacles in bringing cases of discrimination before the courts, due to factors such as poverty, lack of legal assistance, and information about their rights, as well as the attitudes of justice officials.356 The IACHR has received information from civil society indicating that the special police station for women, the Comisaría de la Mujer, does not always complete the process of filing complaints brought by indigenous women; rather, when cases are postponed and women do not follow up, they simply close the case files.357 

149. The Commission also underscores that discrimination and the barriers to adequately access justice also have serious judicial consequences on indigenous women, in terms of their over-representation in the prison population. For example, as documented in the report on Missing and Murdered Indigenous Women in British Columbia, Canada, statistics from 2008-2009 reveal that “Indigenous women represent 28% of women incarcerated and 37% of women sentenced to prison, although they only constitue approximately 4% of the Canadian adult population.”358 These statistics were far worse for indigenous female youth in Canada, with “[…] indigenous female youth [representing] 6% of the Canadian female population yet 44% of the female youth in custody.”359 In fact, data on the indigenous prison population suggests that the incarceration of women has become significantly higher than that of men, confirming that the intersectionality of discrimination affects indigenous women specifically increasing their vulnerability and lack of access to justice.360 

  

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ACCESS TO JUSTICE FOR INDIGENOUS WOMEN 7/20

133. Although many States in the Americas have enacted legislation which provides for access to justice for women on an equal footing with men, and which also prohibits discrimination based on ethnicity, in practice however, this right is usually not guaranteed effectively for indigenous women.319 Access to justice for indigenous women tends to be hampered by geographic, economic, cultural and linguistic barriers, all closely connected to the intersection of the multiple forms of discrimination they experience, as noted above. Article XXII, section 3, of the American Declaration on the Rights of Indigenous Peoples establishes that States will provide indigenous peoples with “equal protection and benefit of the law, including the use of linguistic and cultural interpreters.” However, this undertaking is far from attained in practice. 

134. Indigenous women face obstacles in both national and indigenous justice systems. In national justice systems, there are usually no adequate or accessible mechanisms in place for indigenous women and racism is still a common practice.320 In indigenous systems, men tend to be the primary decision-makers in institutions, which curtails the participation and incidence of women.321 The IACHR notes that the two systems must follow internationally recognized human rights and, consequently, both systems must include measures guaranteeing compliance with the obligations of prevention, investigation, punishment and reparation.322 

135. The following chapter is divided in five different sections. The first section touches upon the substance of the right to access to justice for indigenous women; the second section identifies the structural obstacles faced by indigenous women in state justice systems; the third section highlights the need to address access to justice for indigenous women from a multidisciplinary perspective; and the fourth section describes reparations from an intercultural and gender-based perspective, which aim to involve indigenous women, grant both individual and collective reparations, and to be transformative in the lives of these women. The fifth section describes the situation of indigenous justice systems, identifying obstacles and some good practices that have emerged throughout the region, as well as underscoring the human rights obligations these systems are required to meet. 

  A. Right of Access to Justice 

136. Access to justice has been defined by the IACHR as the “de jure and de facto access to judicial bodies and remedies for protection in cases of acts of violence, in keeping with the international human rights standards.” 323 Moreover, “the State’s duty to provide judicial remedies is not fulfilled merely by making those remedies available to victims on paper; instead, those remedies must be adequate to remedy the human rights violations denounced.”324 In other words, they must be available and effective in law and in practice. 

137. Effective access to justice for indigenous women can only be achieved if two major obligations are fulfilled by the State: firstly, respect for the standard of due diligence, which requires the prevention, investigation, punishment, and redress of human rights violations against indigenous women; and secondly, the implementation of intercultural, gender-based, and multidisciplinary perspectives in the judicial system. The legal precedents of the Inter-American Court of Human Rights have emphasized that in order to ensure access to justice for members of indigenous communities, it is vital for States to grant effective protection that takes into account their particularities, social and economic characteristics, as well as their situation of special vulnerability, and their values and customs.325 Moreover, in order to confront obstacles to adequately access justice, States have the obligation to ensure support for indigenous women from a gender-based perspective and in consideration of their circumstances of special risk to human rights violations.326 The IACHR has underscored that effective access of indigenous peoples to judicial protection and due process of the law under the Convention is especially important given the context of historical and structural discrimination they experience.327 Such protection must also be available in consonance with their culture and traditions, and guaranteed free from all forms of discrimination. 

138. The Expert Mechanism on the Rights of Indigenous Peoples of the United Nations Human Rights Council has emphasized that the situation of access to justice for indigenous women must be addressed from a holistic perspective, inasmuch as access to justice is inextricably linked to other obstacles to human rights, which are often encountered by indigenous peoples, such as poverty, lack of access to health and education, as well as a lack of recognition of their right to land, territory and natural resources.32

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