GUIDING PRINCIPLES AND LEGAL BASIS OF THE REPORT 3/20

30. This section of the report provides a general overview of some principal legal standards associated with the rights of indigenous women, and reviews the scope and reach of the nature of the State obligations regarding those rights. 

31. As explained in this section, the Commission considers that State policies and practices focused on indigenous women must incorporate the rights of women and indigenous peoples advanced in universal and regional treaties, declarations, and other applicable instruments; incorporate a holistic approach considering the sex, gender, and history of racism and discrimination faced by indigenous women and their worldview; and should be guided by the principles described below. It is paramount that States take into consideration the conception that indigenous women have of their human rights, the individual and collective nature of the rights that are applicable to them, and the unique relationship indigenous women have with their territories and natural resources. These guiding principles reflect multiple consultations the Commission has carried out with indigenous women in preparing this report as well as its past work in light of the standards developed within the system.58 

A. The need for a holistic approach 

32. The information received by the IACHR exposes the combination of factors that have impacted and still condition the exercise of indigenous women’s human rights in the hemisphere. Firstly, these women are members of indigenous communities that remain scarred by the effects of colonization, by lack of ownership and respect for their territories, and by forms of social and institutional racism. Secondly, they have a unique worldview and cultural identity, and a sense of collective membership in their peoples, which calls for an intersectional approach. Thirdly, they are members of a gender which has been historically discriminated against, subjected to social   stereotypes, and excluded from participation in the social and political life of their communities, municipalities, and countries. Fourthly, they frequently live in poverty; they face inequality and discrimination in ensuring their economic and financial autonomy; those who wish to practice traditional forms of subsistence often face great obstacles in access to traditional lands and resources; and are often denied access to judicial remedies. They also face serious barriers to access health services, education opportunities, and forms of decent and quality employment. Fifthly, they tend to view themselves socially as active agents of change, who are empowered to influence their futures, cultures, and heritages. 

33. It is the IACHR’s position that understanding the realities faced by indigenous women is essential to be able to develop effective State laws, policies, programs, and practices that fully respect and ensure the rights of indigenous women. The IACHR has already underscored the need for States to adopt holistic measures to guarantee the respect of indigenous women’s human rights considering the historic discrimination they have experienced as a result of intersecting factors such as poverty, race, or ethnicity which intensify structural and institutional inequality in society.59 In her reports, the United Nations Special Rapporteur on Violence against Women framed the holistic approach in the following terms: The holistic approach requires rights to be treated as universal, interdependent and indivisible; situating violence on a continuum that spans interpersonal and structural violence; accounting for both individual and structural violence; accounting for both individual and structural discrimination, including structural and institutional inequalities; and analyzing social and/or economic hierarchies among women, and between women and men, i.e. both intra- and intergender.60 Adopting a holistic model with regards to gender-based violence requires a complex understanding of the ways in which inter- and intra-gender differences exist and the ways in which institutional and structural inequalities exacerbate violence through multiple intersecting forms of discrimination.61 

34. For her part, the United Nations Special Rapporteur on the Rights of Indigenous Peoples has written: “to protect the rights of indigenous women, both a paradigm shift and the development of a multidimensional approach is needed.”62 Likewise, she has noted that it is essential to approach the human rights violations against indigenous women by focusing on the nexus between individual and collective rights, as well as on how intersecting forms of discrimination contribute to perpetuating violations of their rights.63 It is also vital to express that many forms of violence and abuse against indigenous women and girls have a strong intergenerational element.64 

35. A holistic and comprehensive approach to human rights violations affecting indigenous women entails addressing the institutional and structural inequalities faced by them.65 It also requires an interpretation of the scope of their human rights in light of these inequalities and their everyday reality. It requires taking into account their gender, their particular relationship with their ancestral lands, as well as the laws and policies which still impact them negatively, intensify their situation of inequality and curtail their full exercise of their civil, political, economic, social and cultural rights. It also requires assessing the connection between this situation of discrimination and the serious problem of violence against women in all of its manifestations. 

36. The IACHR therefore presents in the next section a set of principles which should guide State efforts to implement holistic measures to prevent and address all human rights violations affecting indigenous women. These principles derive directly from the object and purpose of the relevant applicable human rights instruments adopted by OAS Member States.  

B. Guiding Principles  

First Principle: Empowered Actors 

37. Indigenous women must be understood as holders of rights and not simply as victims or targets of violations of their human rights. Despite their enduring history of being subjected to violence and discrimination, indigenous women have played and continue to play a consequential role in the history of the struggle for the self-determination of their peoples, their collective and individual rights, and their rights as women. This principle was embedded in the views expressed by all the indigenous women who requested and prompted the Commission to prepare this report, as well as by all the participants at the different meetings, which were conducted to provide input for the report.  

Second Principle: Intersectionality 

38. Indigenous women have a multidimensional identity that calls for this intersectional approach in evaluating the forms of discrimination they face. The Commission has reaffirmed that “intersectionality is a basic concept for understanding the scope of the general obligations of State parties, […] the discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste, sexual orientation and gender identity.”66 This overlapping of various layers of discrimination – or intersectionality – leads to a form of deepened discrimination which manifests itself in substantively different experiences from one indigenous woman to another.67  

39. The multidimensional identity of indigenous women places them at the intersection of discrimination based on their particular cultural identity, sex, and gender. On the one hand, indigenous women have a specific cultural identity reflected in their special relationship with their territory, inasmuch as it is where their lives take place and where they acquire their sense of individual and collective membership. Additionally, their territory is the foundation for materially replicating their way of life and subsistence over time, as well as the expression of their cultural and spiritual life.68 For these reasons, the IACHR and the Inter-American Court have established that the cultural identity of indigenous peoples must be taken into consideration in all policies of the State, for the purpose of ensuring “effective protection that takes into account their specificities, their economic and social characteristics, as well as their situation of special vulnerability, their customary law, values and customs.”69 It is worth noting that age can also be an important factor of discrimination which affects indigenous women in very specific ways. As the Commission has mentioned before, given the central role of indigenous elders in the reproduction of indigenous culture, and their roles as moral authorities, spiritual guides and healers, they will be among those who suffer most from cultural and territorial losses. 70 Indigenous girls and adolescents also are particularly exposed to discrimination and violence due to their age, as is demonstrated by their particular vulnerability to sexual violence and sexual trafficking.71 

40. On the other hand, it is crucial to understand that the sex and gender of indigenous women places them at an even higher risk of exposure to forms of discrimination and inferior treatment, as is the case for women in general.72 This multidimensional nature of the identity of indigenous women requires an understanding of the intersection of the historical and structural forms of discrimination which have been and are inflicted on indigenous women on the basis of the combination of their ethnicity, race, gender, and situation of poverty. To these most common factors of discrimination can 

also be added others, such as their age, disability, or pregnancy,73 their status as a displaced person, their deprivation of liberty, or their living in zones affected by armed conflicts, 74 as well as their sexual orientation or gender identity.75 

41. The IACHR reiterates accordingly that State efforts aimed at protecting the rights of indigenous women must take into consideration both their needs as women and as members of indigenous peoples, and how these two parts of their identity have historically combined to specifically make them susceptible to multiple violations of their civil, political, economic, social, and cultural rights. In addition to the foregoing considerations, the IACHR deems it essential for States to gather statistical information that documents these specific needs with an intercultural and gender-based perspective. 

Third Principle: Self-determination 

42. Violations of indigenous peoples’ rights to self-determination and to control over their lands and resources have heightened impacts on indigenous women. One major form of violence inflicted upon indigenous women specifically stems from the effects of colonialism and enduring racism found in society and current policies. These policies foster the imposition of extractive activities and mega development projects without their prior, free and informed consent, in violation of their right to self-determination, personal integrity, and way of life and development.76 Consequently, the IACHR finds a close link between respect for indigenous peoples’ right to self-determination, to integrity of their territories and natural resources, the right to live free from all forms of racism, and the guarantee of the right of indigenous women to live a life free from all forms of discrimination and violence. 

                                                                                                                                                                    

43. Moreover, it is important to note that the United Nations Rapporteur on the Rights of Indigenous Peoples has stressed that “States must find a way to strike a delicate balance between protection of indigenous women and respect for the self-determination and autonomy of indigenous peoples,”77 inasmuch as: 

The response of indigenous communities to attacks against self-determination has, at times, additionally subjugated the rights of women. In the battle for indigenous communities to assert their right to self-determination, women’s rights have often been considered divisive and external to the indigenous struggle and connected to “external values” or “Western values” that privilege individual over communal rights. Such a false dichotomy between collective and women’s rights has, paradoxically, further entrenched the vulnerability of indigenous women to abuse and violence. Indigenous women are therefore stripped of their right to self-determination by both violations against their collective rights, as members of indigenous communities, and violations against their individual rights as sub-collectives within those communities.78 

Fourth Principle: Active participation 

44. Indigenous women must be given the opportunity to participate in all the processes that affect their rights. The IACHR considers it a priority for women who define themselves as members of indigenous peoples to participate and express their views in relevant processes, which have repercussions on their rights, including the drafting of this report. Like the peoples they belong to, indigenous women are entitled to participate in the formulation, implementation and evaluation of any and all policies and programs that may affect them. This principle has been recognized in Article XXIII (sections 1 and 2) and XXXII of the American Declaration on the Rights of Indigenous Peoples; Articles 5 and 23 of the United Nations Declaration on the Rights of Indigenous Peoples; and Article 7 of ILO Convention 169, among other instruments. The IACHR finds that the right to participation is of a substantive and instrumental nature for the exercise of all the rights of women, including indigenous women.79 Indeed, the acknowledgement of the empowerment of indigenous women to advocate for their rights, which was highlighted above as a guiding principle for State action, is realized in practice through their integration and active participation in the processes that affect their rights. 

Fifth Principle: Incorporation of their perspective 

45. Indigenous women’s worldview must be taken into account in all policies that affect them. The IACHR deems it essential for indigenous women’s particular conception of their rights and of “good living,” as well as the specific forms of violence and discrimination that affect them, to be taken into account. In this respect, the United Nations’ Economic Commission for Latin America and the Caribbean (hereinafter “ECLAC”) has established that “when the health of indigenous women is involved, the collective dimension cannot be obviated; in this regard, it must be considered a comprehensive and holistic matter, which is incumbent upon all members of the community and includes physical, social, mental, environmental and spiritual dimensions.”80 Therefore, the definition of the substance of the rights that are applicable to indigenous women not only encompasses what is set forth in international instruments, but also how indigenous women understand these instruments in light of their experiences. 

Sixth Principle: Indivisibility 

46. The principle of indivisibility of human rights is essential to the complete and effective protection of indigenous women’s rights. In the legal precedents established by the IACHR, it has underscored the universal, indivisible, interdependent, and interrelated nature of all human rights; a principle particularly relevant to indigenous women.81 This entails, on the one hand, a close connection between the protection of indigenous women’s civil and political rights and economic, social and cultural rights. On the other hand, it means States have a duty to pay special attention to social sectors and individuals –such as indigenous women– who have endured forms of   historical exclusion or are victims of persistent prejudice, and immediately adopt the necessary measures to prevent, reduce and eliminate conditions and attitudes that generate or perpetuate discrimination in practice. These principles are reflected in the instruments governing the workings of the Inter-American human rights system, as well as those of the universal human rights system, which also apply to signatory states in the Americas. 

Seventh Principle: Collective dimension 

47. Indigenous women’s rights must be understood in their individual and collective dimensions, which are both inextricably related. In their efforts to protect the rights of indigenous women, States must take into consideration the individual and collective nature of their rights. In this respect, in a meeting of experts on indigenous women’s rights, it was underscored that:  

We believe that when women’s capacity to demand their rights is strengthened, their peoples are also strengthened. For this reason, any approach to indigenous women’s health, or any other right, means taking into account at all times elements of their peoples’ worldview, culture, traditions, forms of organization, and collective rights. In this way, the struggle for indigenous women’s rights becomes a collective struggle and not a threat of exclusion or disruption to their community and identity as a people.82 

48. The United Nations Special Rapporteur on the Rights of Indigenous Peoples has also stated in this regard that: 

Such multiple victimization and the denial of the agency of indigenous women has had a pronounced impact on the prevalence of violence and abuses through the entrenchment of power structures that create and perpetuate systematic vulnerability. The further loss of women’s agency caused by those violations then negatively impacts collective efforts to fight group rights, thereby contributing to negative cyclical patterns.83 

49. The IACHR has also been informed in multiple contexts throughout the Americas about the particular role indigenous women play in their communities with regard to the continuation of their culture and the survival of their people. Consequently, the Commission has held that violence against indigenous women is perceived not only as an attack on those women individually, but often involves harm to the collective identity of the communities to which they belong.84 It is therefore understood to constitute spiritual violence. Accordingly, the IACHR reaffirms that indigenous women and their communities experience the impact of violence in very particular ways.85 

50. Lastly, the IACHR considers it to be important in this report to stress the evolutionary and progressive nature of all human rights.86 Accordingly, it examines in the next section sources of international and regional law that are relevant to indigenous women, taking into consideration that standards are in a continual process of development and must be interpreted at all times in pursuit of the most protective approach to indigenous women’s rights. 

C. Relevant standards of international law  

51. Both the Inter-American and the universal systems have developed parallel lines of standards for women’s rights and indigenous peoples’ rights. The effectiveness of efforts to protect the rights of indigenous women is contingent upon connecting these lines of standards and developing future guidelines that take into consideration this duality in the identity of indigenous women. The Commission also observes that international legal standards in this field are still in development and that more spaces need to be created in order to ensure that indigenous women are able to effectively participate in this process of development of standards at the national, regional, and international levels. 

1. Equality and Non-Discrimination 

52. States’ obligations in the area of equality and non-discrimination constitute the cornerstone for the protection of indigenous women’s rights. Indigenous women face numerous forms of discrimination and marginalization based especially on their sex, gender, ethnic origin, age and socio-economic circumstances87 and, therefore, it is essential to bear in mind the intersection of all of these factors. The many forms of discrimination to which they are subjected raise significant barriers for them to access basic health and education services, food, decent and quality employment, and to fully participate in public and political life in their countries 88 therefore hampering their ability to fully exercise their human rights.89 In the case of the Caribbean, in addition to the aforementioned sources of discrimination, indigenous women emphasized the discrimination that they have experienced as a consequence of their invisibility from the narrative of Caribbean modern history, which has focused on the tragedies of slavery and indentureship, and portrays the indigenous communities as having been eliminated long ago.90 Indigenous women reported to the IACHR that the exclusion of indigenous communities from data collection in the Caribbean has also served to invisibilize their existence within these countries and their specific rights and needs as women and members of these communities; affected their sense of belonging and identity; and increased their marginalization and vulnerability.91 As such, equality can only be  achieved when all the causes as well as the consequences of this historical discrimination are properly addressed. 

53. The Inter-American Commission and Court have recognized that the various and intersectional forms of discrimination faced by indigenous women heighten their vulnerability to violence, promote the repetition of discrimination, and contribute to impunity for human rights violations committed against them.92 Consequently, the Inter-American system has put forward a set of principles that are relevant to the study of the right of indigenous women to equality and non-discrimination, using both the instruments and legal precedents of the Inter-American and universal systems as a framework.93 

54. The Inter-American Court has asserted that there is an “inseparable connection” between the obligation to respect and guarantee human rights, as established in Article 1.1 of the American Convention, and the principles of equality and non-discrimination.94 Both the Court and the Commission have repeatedly noted that States are obligated to adopt all necessary measures to confront both direct and indirect discrimination, 95 which include: 

i) eliminating discriminatory laws from their legal systems;

 ii)    refraining from introducing laws that are discriminatory in their texts or their effects; 

iii) combating discriminatory practices, patterns, and beliefs; and 

v) establishing rules and adopting the necessary measures to recognize and ensure effective equality of all persons before the law, which may include special measures of affirmative action. 96 States must provide reasons to justify differential treatment based on factors such as gender or race.97 Situations in which States treat people differently based on factors such as gender or race are subjected to the strictest standard of review in light of the fundamental nature of the prohibition of discrimination. 98  

55. The American Declaration on the Rights of Indigenous Peoples99 also sets out core principles of equality and nondiscrimination. Article VII of the Declaration reaffirms the right of all indigenous women to the recognition, protection, and enjoyment of all human rights and fundamental freedoms provided for in international law, free from all forms of discrimination and violence. It also recognizes that violence against indigenous peoples and persons, particularly women, hinders or nullifies the enjoyment of all human rights and fundamental freedoms, and calls on States to prevent and eradicate all forms of violence and discrimination against indigenous women and girls. 

56. The United Nations Committee on the Elimination of Discrimination against Women (hereinafter, the “CEDAW Committee”) has embraced an intersectional approach to understanding State obligations to prevent and respond to discrimination against women, recognizing that not all women experience discrimination in the same way. 100 The United Nations Rapporteur on the Rights of Indigenous Peoples has emphasized that indigenous women face a “broad, multifaceted and complex spectrum of mutually reinforcing human rights abuses” 101 which are influenced by “multiple and intersecting forms of vulnerability, including patriarchal power structures; multiple forms of discrimination and marginalization, based on gender, class, ethnic origin and socioeconomic circumstances; and historical and current violations of the right to self-determination and control of resources.”102 

57. Based on the foregoing, the IACHR finds that the problem of discrimination against indigenous women must be addressed with an intersectional and holistic approach, inasmuch as the implications of gender-based discrimination and violence are concrete and specific, especially affecting indigenous women. They also collectively affect their communities, given the women’s role in sustaining and transmitting indigenous cultures, the circumstances in which they live, and the context of their families, communities, and culture. 

2. Self-Determination, Cultural Identity, Property, Consultation and Consent 

58. In addressing the human rights of indigenous peoples and, consequently, of indigenous women, it is essential to recall that they are holders of, and are entitled to, the collective right to self-determination.103 Self-determination means that indigenous peoples have the right to freely determine their         economic, social, and cultural development in such a way that enables them to ensure their existence and well-being as differentiated peoples,104 and it has been regarded in the international sphere as a prior condition for compliance with other rights.105 In this regard, self-determination is closely tied to the exercise of other specific rights of indigenous peoples such as the right to integrity, cultural identity and collective property of their ancestral territories in order to maintain that identity.106 Article III of the American Declaration on the Rights of Indigenous Peoples has also reaffirmed that indigenous peoples have the right to self-determination, which entails their right to freely determine their political status, and pursue their economic, social and cultural development. 

59. The United Nations Special Rapporteur on the Rights of Indigenous Peoples has asserted that when examining the rights of indigenous women and girls, “it is vital to consider the unique historical experiences of indigenous communities,” and their “strong inter-generational element” 107 which include historically and currently endemic violations of the right to selfdetermination, gross and sustained assaults on their cultural integrity, and practices that strip indigenous peoples of autonomy over land and natural resources.108 All of these violations of the right to self-determination “have been highly detrimental to the advancement of the rights of indigenous women and girls in a number of ways.”109 For instance, as was mentioned previously, for indigenous communities claiming their right to selfdetermination, women’s rights have often been considered related to “external values” that privilege individual over communal rights, which has, paradoxically, further increased indigenous women’s vulnerability to abuse and violence.110 Both the right to self-determination and women’s rights to equality and non-discrimination must be accorded full respect by States.111 

60. Indigenous peoples have a close tie to their land, territory, and natural resources, inasmuch as these sustain their cultural identity, knowledge, and spirituality. In light of this, both the Commission and the Court have concluded that the failure of the State to guarantee indigenous communities’ right to their ancestral territory can impede the exercise of a range of other rights, as their effective access to their lands is directly related to the preservation of their means of survival and way of life. 112 Indigenous peoples’ right to property has been construed as both an individual and a collective right.113 In this regard, the Commission highlights that Articles VI and XV of the American Declaration on the Rights of Indigenous Peoples have reaffirmed the collective nature of indigenous peoples’ rights, including their right to their lands, territories and resources, and how these are indispensable for their existence, well-being, and integral development as peoples. Although this collective conception of property differs from the more classic understanding of the right to property, the Commission and the Court have been clear that collective property is entitled to full protection under Article 21 of the American Convention.114 The preservation of their lands is a fundamental element to effectively guarantee their human rights and, therefore, the legal framework regarding distribution and use of communal lands must be in accordance with their customary law, values, and customs.115 

61. Both the Commission and the Court have established that recuperation, recognition, delimitation, demarcation, and registration of lands are all essential rights for cultural survival and preservation of community integrity.116 The recognition of their land rights must be made in full, and have legal certainty as to its stability.117 Consequently, there is a correlative obligation of the State to prevent encroachment or colonization of indigenous or tribal territories by outsiders,118 as well as to return ancestral lands and territories when those lands have been taken or their use restricted absent prior consent.119 The Court found that indigenous peoples’ right to their ancestral territories was permanent in the use and enjoyment of their lands, including territories which they have inhabited for generations, and those to which they have been relocated.120 

62. The loss of lands has a disproportionate impact on indigenous women, because usually “they lose their traditional livelihoods, such as food gathering, agricultural production, herding among others”,121 in addition to losing their key roles within their communities. The IACHR has previously stressed the fact that indigenous women are generally recognized as “the key to the continuation of their culture, the guarantors of their peoples’ survival.”122 The loss of land thus entails harm to women in their key roles within the community, as well as having a serious impact on the collective identity. As the United Nations Special Rapporteur on the Rights of Indigenous Peoples has indicated, violations of land rights “often disproportionally impact women in their roles of caregivers and guardians of the local environment.”123 In turn, this loss of land, of means of livelihood, and of cultural roles can create “vulnerability to abuse and violence, such as sexual violence, exploitation and [human] trafficking.”124 

63. External threats to indigenous land rights  ̶ such as large-scale economic projects, environmental degradation, mass tourism, or armed conflicts  ̶ are not the only cause of abuses of indigenous women’s rights in relation to land, in view of the fact that “the roles that women hold within indigenous communities and the way that some indigenous property frameworks reflect patriarchal power structures [causes] significant barriers to holding and inheriting land [for indigenous women].”125 The IACHR reminds States that they are required to adopt immediate, deliberate, and concrete measures to eliminate barriers that prevent women’s access to economic resources and their ability to exert control over these resources.126 

64. One right that is closely linked to the rights to property, cultural identity, and participation is the right to free, prior and informed consultation and consent, in any decisions relating to measures that affect their territories, or that have an impact on their rights or interests, especially in the case of large-scale projects. 127 In order to achieve effective participation of indigenous peoples,128 prior,129 informed,130 culturally appropriate,131 and good faith consultations must be carried out, with an aim to reach an agreement. 132 Conducting consultation processes is the exclusive responsibility of States, and not of private entities.133 Additionally, the Commission underscores that a consultation is defined “not as a single act, but as a process of dialogue and negotiation that involves both parties’ good faith and the aim of reaching mutual agreement.”134 

65. The effective participation of indigenous women in consultation processes is fundamental. The Commission has indicated that it is essential to take into account the needs of indigenous women in the design of laws and public                                                                                                                    policies 135 , and has made indigenous women’s participation and full expression in the relevant processes that affect their rights a guiding principle in this report. 136 For this reason, the Commission has recommended that States “take such institutional measures as may be necessary to facilitate greater political participation of indigenous women, such as increasing the capacity for coordination, and for these women and the organizations representing them to promote their own specific interests, as well as to establish and strengthen opportunities for dialogue between community leaders and government.”137 

3. Violence, Due Diligence and Access to Justice 

66. Violence is one of the most alarming problems faced by indigenous women in the hemisphere. The IACHR has developed extensive precedents on the scope of States’ obligations to prevent and address violence against women, using as a framework the Convention of Belém do Pará and the other instruments of the system, which are directly applicable to the situation and realities of indigenous women. The Commission has addressed the specific issue of violence against indigenous women in various thematic reports and country reports with a thematic focus, as explained in the introduction. In its decisions, the Commission has underscored the obligation of States to act with due diligence when any act of violence against women occurs, and to guarantee adequate and effective access to justice. 138 Another topical issue has been the link between violence and discrimination against women, and the need for States not only to adopt measures to address violence, but also to address discrimination as its cause and as a social factor sustaining it.139 The Commission and the Court have followed much the same approach, reiterating the importance of due diligence in cases of acts of violence or disappearances of women, and indigenous women specifically. 140 

67. It is also noteworthy that the United Nations Special Rapporteur on the Rights of Indigenous Peoples has held that “indigenous systems of governance and power structures are often highly gendered and may exclude women and their perspective from administration of justice and control over the development of social standards and decisions, which impacts women’s vulnerability to abuses of their human rights.”141 In this regard, the IACHR reiterates that States have the obligation to ensure the right of indigenous women to live free from violence, an obligation that covers all spheres of an indigenous women’s life, including violence inside or outside of the community and at home, and involves duties of prevention and response with respect to State agents. 

68. Article 2 of the Convention of Belém do Pará includes a definition of violence against women, which encompasses physical, psychological, and sexual violence. As will be discussed in greater detail in a subsequent section, in addition to reports of physical, psychological and sexual violence, the IACHR has also received consistent reports of spiritual and obstetric violence, which the Commission also considers to be prohibited under the Convention of Belém do Pará and other Inter-American instruments. The Inter-American Commission and the Court have clarified that the duty to act with due diligence establishes that, even when conduct may not initially be directly imputable to a State, an act of violence against women may lead to State responsibility when the State has failed to adopt all appropriate measures to amend or repeal existing laws and regulations, or to modify legal or customary practices which sustain the persistence and tolerance of violence against women. 142 

69. Articles 8 and 25 of the American Convention on Human Rights, Article XVIII of the American Declaration on the Rights and Duties of Man, and Article 7 of the Convention of Belém do Pará, all establish that women have the right to access a simple and prompt judicial remedy to ensure due process when they report human rights violations. These instruments also set forth the                        obligation of States to act with the required due diligence to prevent, investigate, prosecute, punish, and grant reparations when such acts occur. The Inter-American Court of Human Rights has ruled to this effect in multiple judgments, holding that every person who is a victim of human rights violations has the right to an investigation capable of clarifying the facts and responsibilities.143 In this respect, in the case judgments of the Massacre of Rio Negro and the Massacre of las Dos Erres, the Inter-American Court held that the right to access to justice must ensure, within a reasonable time, the right of the victims and/or their family members to a full and effective investigation designed to clarify what happened and hold those responsible to account.144 

70. The standard of due diligence applies to the entire state structure, including the legislative framework, public policies, the work of law-enforcement agencies, such as the police and the judicial system, to prevent and respond adequately to human rights violations such as violence against women.145 This includes the obligation to ensure access to adequate and effective judicial remedies for the victims and their families.146 It is important to note that the principle of due diligence has been used by the IACHR and the InterAmerican Court to issue rulings and find States accountable in cases where the human rights violations were commited by private individuals in circumstances in which the State had a duty of protection, a duty of response, or both.147 

71. The IACHR has recognized four principles related to the application of the due diligence standard which must govern States’ actions when acts of violence are committed against indigenous women:  

1. The State may incur international responsibility for failing to act with due diligence to prevent, investigate, punish and offer reparation for acts of violence against women, and this is a duty which, in certain circumstances, will apply to actions committed by private actors;148  

2. States must recognize the link between discrimination, violence against women, and the obligation of due diligence. This means that States have the duty not only to adopt measures to address and respond to violence against women, but also to prevent discrimination, which perpetuates this problem.149 States must adopt “the required measures to modify the social and cultural patterns of conduct of men and women and to eliminate the prejudices, customary practices and other practices based on the idea of the inferiority or superiority of either of the sexes, and on stereotyped roles for men and women;”150

 3. There is a link between the duty to act with due diligence and the obligation of States to guarantee access to adequate and effective judicial remedies for victims and their family members when they are subjected to acts of violence;151 

4. Certain groups of women have been identified as being at particular risk for acts of violence, as a result of the intersecting forms of discrimination they are subjected to, such as girls and women belonging to certain ethnic, racial, and other groups. This factor must be considered by States in the adoption of measures to prevent all forms of violence.152

72. Additionally, in the judgments of the cases of Tiu Tojín v. Guatemala, Fernández Ortega v. Mexico, Rosendo Cantú v. Mexico, the Inter-American Court emphasized that in order for States to ensure access to justice for members of indigenous communities and to adequately respect and guarantee their rights in this context,, it is essential to take into account their specific economic and social characteristics, as well as their special situation of vulnerability, their values, and customs.153 In the judgment of the case of Rosendo Cantú, the Inter-American Court held that in order to guarantee access to justice, the State is obligated to ensure support for indigenous women from a gender-based perspective and in consideration of circumstances that increase their exposure to human rights violations.154 For its part, the IACHR has stressed that effective access of indigenous peoples to their right to judicial protection and due process is especially important, given the context of historical and structural discrimination they have experienced. 155 The IACHR has also underscored that indigenous peoples’ adequate access to justice must be guaranteed in accordance with their culture and traditions, and in consonance with the principles of nondiscrimination and equality. 

73. As explained in more detail in section V of this report, in addition to ensuring access to justice through traditional state institutions, indigenous women are also entitled to access to justice in accordance with indigenous institutions and customs.156 This is a crucial ingredient to respect their rights   to self-determination and cultural identity. In this regard, the IACHR has indicated that States must adopt the necessary measures to guarantee that access to community justice can take place regardless of the coverage and/or procedural workload of State judicial institutions, and stems from respect for the autonomy of indigenous peoples. 157 Consequently, States must establish “guidelines for coordinating official justice with community justice.”158 While the obligations relating to due diligence, access to justice, and non-discrimination are applicable to both state and indigenous judicial authorities, States must “develop mechanisms that allow indigenous women and girls to pursue other means of recourse against violence if they are unable to obtain support and access to justice within indigenous communities.”159 

74. It is important to also mention the situation of violence to which indigenous women human rights defenders are often subjected and the special duty of States to protect their lives and personal integrity. In its merits decision on the case of Ana Teresa Yarce et al (Comuna 13) v. Colombia, the IACHR reaffirmed that States are obligated to adopt measures to respect and guarantee the right to personal integrity of human rights defenders, including preventing forms of violence such as threats, acts of harassment and murders, and to diligently investigate and punish those responsible for these acts.160 This duty to prevent and protect has special content for women working in defense of human rights, because of the historical discrimination they face based on gender and on the causes for which they advocate.161 States have a heightened duty to protect indigenous women human rights defenders, inasmuch as they are victims of multiple forms of discrimination and violence based on their race, ethnicity, and by virtue of being women, and the unsafe circumstances in which they conduct their human rights advocacy work.162 

75. As for reparations, the Commission and the Court have begun to incorporate and discuss in their decisions the content of reparations with a transformative approach, which requires States to address inequality and structural discrimination affecting all women, including indigenous women. According to the United Nations Special Rapporteur on Violence against Women, “interventions that seek only to ameliorate the abuse and which do not factor in women’s realities are not challenging the fundamental gender inequalities and discrimination that contribute to the abuse in the first place.” 163 In the legal precedents on transformative reparations, the Commission and the Court have stressed the obligation of States to eliminate discrimination in laws and institutions. In various decisions, the InterAmerican Commission and Court have explicitly recognized the need to restructure social stereotypes of gender and implement education and training programs from a gender-based perspective, as well as legislative and institutional reforms, which incorporate this approach.164 

D. Conclusions 

76. In conclusion, the Commission underscores that the effectiveness of any measures adopted with the goal of protecting the rights of indigenous women largely depends on the inclusion of a holistic approach embracing their participation, taking into account their worldview and conceptions, the individual and collective dimension of their rights, and their unique relationship with their territories and the natural resources contained therein. It is essential that States take into consideration the history of institutional and structural discrimination and racism that indigenous women have faced, as well as the intersection of factors that support this history. It is also vital for States to guarantee that indigenous women have effective access to justice when they suffer human rights violations, and a response from the police and judiciary that is culturally and linguistically appropriate. Only in this way will the violations of the fundamental human rights of indigenous women be properly and fully addressed by State actors. 


77. The Convention of Belém do Pará requires States to adopt special and prompt measures to prevent and respond to the gender-based violence that affects indigenous women in a systematic and rampant fashion. The following section describes the nature of the institutional and structural violence that indigenous women face and the different settings and contexts where it takes place. 

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