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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