THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS AND THE SITUATION OF INDIGENOUS WOMEN 2/20

13. Through its different mechanisms, the IACHR has consistently received reports reflecting the gravity of the situation of human rights of indigenous women throughout the Americas. In response, the IACHR has addressed the challenges they face in the context of hearings, thematic and country reports, press releases, working visits, and individual petitions, among other mechanisms. As an introduction to this report, the IACHR will briefly describe below some of the main findings of its work on indigenous women, as a basis for the following analysis. 

A. IACHR Hearings 

14. The IACHR has convened several country, regional, and individual case hearings pertaining to the situation of human rights of indigenous women. The general human rights situation of indigenous women in Nicaragua was addressed in the context of a hearing in 2014,12 while other hearings have focused on specific issues, such as the multiple levels of discrimination they face,13 barriers to accessing education,14 violence inflicted upon indigenous women, 15 and the situation of disappearances and murders in British Columbia, Canada.16 Additionally, case hearings have been held by the IACHR about sexual violence against indigenous women perpetrated by armed forces, and in the specific matters of Inés Fernández Ortega and Valentina Rosendo Cantú17, which culminated in landmark judgments of the    Inter-American Court of Human Rights (hereinafter the “Court” or the “InterAmerican Court”) and are discussed later in the report. It is also important to highlight the hearings held on the situation of indigenous women at the regional level, which weighed heavily on the IACHR’s decision to write this report. 18 

15. In the above-mentioned hearings, a diversity of States, indigenous women, civil society organizations, and academics informed the Commission of the acute situation of discrimination faced by indigenous women in the hemisphere in spheres such as health services, property, education, employment, and political participation. The IACHR was also informed of different forms of violence against indigenous women. A major issue highlighted was the need for an intersecting and culturally appropriate approach to the processing of cases of human rights violations against indigenous women, and the response of all state sectors to issues which affect them. 

B. The IACHR and individual cases concerning  indigenous women 

16. In several merits reports, the Commission has addressed petitions denouncing violations of a range of indigenous women’s human rights. A noteworthy case on this issue was that of Ana, Beatriz and Celia González Pérez19 of Mexico, in which members of the military forces detained three Tzeltal sisters for interrogation for two hours in the hopes of obtaining a confession of their affiliation to the Zapatista Army of National Liberation.20 The sisters – one of which was still a girl – were separated from their mother, as well as beaten and raped repeatedly. In its merits decision, the IACHR reiterated its stance that rape is a form of torture and concluded to a violation of the sisters’ right to humane treatment and to dignity and privacy. The decision also alluded to the particular obstacles faced by indigenous women in their access to judicial protection and underscored the additional pain and humiliation they endured as they did not speak the language of their assailants or the other authorities involved, and as a result of their repudiation from their own community as a consequence of their rape. 

17. Another noteworthy case is that of Mary and Carrie Dann, which addressed the right to equality, a fair trial and to property of the ancestral land of the Dann sisters and of the Western Shoshone tribe.21 The two sisters argued that the State had interfered with their use and occupation of their ancestral lands by appropriating the lands as federal property. They claimed this was done through an unfair procedure before the Indian Claims Commission, by threatening to remove and then physically removing the Dann’s livestock from their lands, and by permitting or acquiescing in gold prospecting activities within the Western Shoshone traditional territory. Although the Commission found that the property claim was more appropriately left for the determination of the State, it also considered the Danns were not afforded resort to the courts to protect their property rights in conditions of equality, and in a manner that takes into account the collective and individual nature of their property claim. The Commission based its decision on the American Declaration on the Rights and Duties of Man. 

18. The Commission has processed and decided a number of relevant cases which, as indicated below, were then presented before and decided by the Inter-American Court of Human Rights. 

C. Cases decided by the Inter-American Court 

19. In the cases of Inés Fernández Ortega22 and Valentina Rosendo Cantú,23 regarding rape and torture of Me’phaa indigenous women in the State of Guerrero, Mexico by members of the armed forces, the Inter-American Court of Human Rights ruled extensively on the factors which place indigenous women at greater risk of human rights violations in the justice and the health care systems. The Inter-American Court mentioned particular obstacles faced by indigenous women to gain access to justice, such as speaking a different language, not having access to interpreters, and the inability to afford an attorney, among others. The Court found that these obstacles, which breed mistrust in the justice system and other public bodies of protection, are particularly serious given that indigenous women also face rejection and ostracism from their own communities when they report crimes of sexual violence. In both cases, the Court highlighted its concern over the lack of interpreters in court proceedings, and the processing of these cases in military jurisdiction, which is contrary to existing international human rights standards. The Court overall held the State responsible for failing to exercise due diligence in investigating and prosecuting those responsible. In its analysis and in determining reparations, the Court took into consideration the fact that the victims were indigenous women, in a situation of special vulnerability, when the abuses took place.24 

20. It is also important to call attention to the case of Tiu Tojín v. Guatemala,25 in which the Inter-American Court examined the forced disappearance of Mayan indigenous woman Maria Tiu Tojín, and her daughter Josefa perpetrated by members of the Guatemalan Army and of the paramilitary group the Self-Defense Patrols during the internal armed conflict which affected Guatemala for over thirty years. In this case, the Inter-American Court insisted that in order to ensure access to justice for indigenous peoples, it is absolutely essential for States to take into account their particular economic and social needs, their situation of special vulnerability, as well as their customary law, values, practices and customs. 26 In determining reparations for the case of the Massacre of Plan de Sánchez,27 also linked to the internal armed conflict in Guatemala, the Inter-American Court took into account the special suffering that the indigenous women, who were the targets of sexual violence at the hands of State’s agents, continued to endure. It held that this practice of the State had been designed to destroy the dignity of women at the cultural, social, and individual levels.28 In its judgment in the case of Massacre of Río Negro,29 the Inter-American Court also took into consideration the specific effects that the practices of rape, the killings of pregnant women, and the induction of abortions had on indigenous women in the context of the massacres perpetrated during the internal armed conflict in Guatemala.30 

21. Finally, in the case of the Massacre of las Dos Erres, the Inter-American Court established that “during the armed conflict in Guatemala the women were specifically selected as victims of sexual violence”31 and reiterated that rape “was a practice of the State, executed in the context of the massacres, aimed at destroying the dignity of the woman at the cultural, social, family and individual levels.”32 In addition, the Court held that “the lack of investigation of grave facts against humane treatment such as torture and sexual violence in armed conflicts and/or systematic patterns, constitutes a breach of the State’s obligations in relation to grave human rights violations.”33 The Court also held that this contravenes norms of jus cogens and generates obligations for States such as investigating and punishing those practices, in conformity with the American Convention, the Inter-American Convention to Prevent and Punish Torture (ICPPT), and the Convention of Belém do Pará.

D. IACHR Thematic and Country Reports 

22. The IACHR’s thematic and country reports have also documented a diversity of violations of the human rights of indigenous women in the Americas. Most of these reports are the result of working and on-site visits to different States in the region, and incorporate the findings of numerous meetings with indigenous women, State authorities, victims, and civil society organizations. 

23. In 2014, the IACHR released its report Missing and Murdered Indigenous Women in British Columbia, Canada, underscoring its concern over the alarming rate of disappearances and murders of indigenous women in Canada, and their link to the wider pattern of discrimination against indigenous peoples in the country, based, in particular, on the experiences of colonization, the forcible removal of children to attend residential schools, and the continuous application of inadequate and unjust laws and policies such as the Indian Act.34 The Commission underscored that these numbers of murders and disappearances were of particular concern in light of the fact that indigenous women represent a small percentage of the total population of Canada. It also highlighted the fact that according to information received, the police offered a dismissive response to reports of missing aboriginal women, and failed to prevent, promptly investigate and sanction violence against indigenous women and girls. The IACHR established emphatically that a comprehensive and holistic approach to the problem of violence against indigenous women was necessary, and should address past and present inequality of an institutional and structural nature, notably the racial and gender discrimination that originate and exacerbate the violence. The IACHR also recommended that the State provides a nationwide and coordinated response to this problem, in consonance with existing international human rights law standards.  

24. The Commission has focused attention on the special situation of risk and discrimination faced by indigenous women, the issue of sexual violence, as well as their obstacles to access to justice. In its report Access to Justice for Women Victims of Violence in the Americas (2007), the IACHR found structural racism, social exclusion, and geographic inaccessibility to be major obstacles to their access to the justice system.35 These topics were also discussed in the report Access to Justice for Women Victims of Sexual Violence in Mesoamerica (2011)36, which placed particular emphasis on the situations of El Salvador, Guatemala, Honduras, and Nicaragua. In this report, the IACHR reiterated that States must consider the specific needs of indigenous women in their response to the problem of violence, respecting their cultural identity, ethnicity, language, and the need to incorporate cultural expert testimonies in cases of violence.37 The IACHR also addressed the intersection of various forms of discrimination against indigenous women in its report Legal standards related to gender equality and women’s rights in the interAmerican human rights system (2011, Update 2011-2014)38. 

25. The IACHR has also emphasized in diverse instances the particular difficulties indigenous women face in exercising their economic, social, and cultural rights. In its report Access to Justice for Women Victims of Sexual Violence: Education and Health (2012), the Commission noted that health services tended to be offered without taking into account the expectations, traditions and beliefs of indigenous women.39 It stressed that indigenous girls and women were particularly at risk of human rights violations, given the historical dual discrimination they face by virtue of being women and indigenous. 40 Additionally, in the report Access to Information on Reproductive Health from a Human Rights Perspective (2011), the IACHR noted that indigenous women are the most affected in their access to information on sexual and reproductive health.41 Similarly, the report Access to Maternal Health Services from a Human Rights Perspective (2010) highlighted the disproportionately high number of indigenous women who cannot access their rights in the area of maternal health during pregnancy and the post-partum period. 42 In its report The Work, Education and Resources of Women: the Road to Equality in Guaranteeing Economic, Social and Cultural Rights (2011), the IACHR also noted that indigenous women and girls face barriers in school accessibility and attendance, as well as in gaining control over their economic and financial resources.43 In the report Women’s Political Participation in the Americas (2011), the Commission pointed out indigenous women’s under-representation in State decisionmaking bodies, identifying a variety of barriers to their political participation, such as lack of economic resources and geographic distance.44 

26. In its country reports, the IACHR has also addressed the situation of indigenous women. In its numerous reports on Guatemala, the IACHR has reiterated its concern over the situation of violence and discrimination faced by indigenous women, the racism and exclusion which affect them, and the barriers to access basic health services and judicial protection when they suffer human rights violations.45 In its reports on Bolivia, the Commission highlighted problems that particularly affect indigenous women, including high illiteracy rates in the majority of indigenous municipalities, shortcomings in the investigation of cases concerning violence against women, and high levels of poverty, social exclusion, and maternal mortality.46 

27. In the Third Report on the Situation of Human Rights in Paraguay (2001), the IACHR noted that poverty especially affected indigenous women and women inhabiting rural areas.47 It recommended to Paraguay to make adequate services, reproductive health information and assistance programs available to women, particularly indigenous women and those affected by poverty.48 In the Second Report on the Situation of Human Rights in Peru (2000), the IACHR also noted persistent discrimination in education, labor, marriage, and politics, which were worse among indigenous women.49 

28. In the Report on the Situation of Human Rights in Guatemala: Diversity, Inequality and Exclusion (2016),50 the Commission insisted on the issue of indigenous women’s economic social and cultural rights, and the high rates of illiteracy and poor quality of employment that affect them, as well as their reduced access to basic health and education services.51 The Commission underscored the forms of violence and discrimination faced by indigenous women in Guatemala, and highlighted their exacerbation when indigenous women were deprived of liberty.52 The IACHR also addressed the issue of sexual violence against indigenous women during the armed conflict, highlighting in particular the case of the military detachment of Sepur Zarco.53 In this regard, it reiterated the statement of the United Nations Deputy High Commissioner for Human Rights, Flavia Pansieri, calling on the State to guarantee the rights to the truth, justice, and reparation to victims of serious human rights violations during the internal armed conflict, and measures to preclude a repetition of those violations.54 The Commission also referred to the need to strengthen indigenous women's participation in community decision-making.55 

29. Lastly, several IACHR reports on Colombia deal specifically with the situation of indigenous women in the context of the armed conflict. In its Report on violence and discrimination against women in the armed conflict in Colombia (2006), the IACHR highlighted the especially critical situation experienced by indigenous women in Colombia, due to the serious effects of the armed conflict, along with the history of discrimination and exclusion affecting them, including the problem of displacement.56 The report Truth, Justice and Reparation: Fourth Report on the Situation of Human Rights in Colombia 57 again addressed the multiple forms of discrimination and violence affecting indigenous women in Colombia due to the armed conflict, and noted with particular concern that sexual violence was being used as a tactic of war, having an especially severe impact on indigenous women.  

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