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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