Human rights, indigenous jurisdiction and access to justice:
Towards intercultural dialogue and respect
Presentation by Victoria Tauli-Corpuz,
United Nations Special Rapporteur on the rights of indigenous peoples
International Seminar on Investigative Techniques and Indigenous Issues
Bogotá, Colombia, February 24, 2016.
Dr. Jorge Fernando Perdomo, Vice Attorney General of the Government of Colombia, Dr. Natan Elkin, Head of Unit, Employment, Tripartite Consultation, Indigenous Peoples, Freedom of Association Branch of the ILO, Dr. Pedro Posada, Director of the Asuntos Indigenas del Ministerio del Interior, Dr. Shirley Cuillieirrier, Chief Superintendent, Director General, National Aboriginal Policing and Crime Prevention Services Contract and Aboriginal Policing of the Royal Canadian Mounted Police, Ladies and Gentlemen,
Let me thank the Fiscalia for inviting me to speak before this important international seminar. This issue is an issue covered by my mandate as the Special Rapporteur on the Rights of Indigenous Peoples. I am tasked to look into the obstacles, challenges, barriers and good practices of States in protecting, respecting and fulfilling indigenous peoples’ rights. Thus, a seminar of this kind gives me the opportunity to understand more deeply how indigenous justice systems are recognized and used in Colombia.
I also want to give my respect to the indigenous peoples of this country whose right to exercise their indigenous justice system is one of their basic rights and it is the subject of discussion in this seminar.
The ability of indigenous peoples to continue and strengthen their own systems of justice administration is an integral component of their rights to self-governance, self-determination and access to justice recognized under international human rights instruments adhered to by Colombia and most States in Latin America. To implement these rights and guarantee indigenous peoples’ access to justice, an intercultural dialogue and understanding between indigenous and State justice authorities is vital. Seminars of this type represent important worthwhile efforts to that end.
I will begin by making observations on relevant international human rights standards related to indigenous customary justice and access to justice that should serve as points of reference for dialogue between indigenous and ordinary justice authorities. Secondly, I will discuss principles that can be considered in addressing the issue of competencies between indigenous and ordinary jurisdictions. Thirdly, I will make some observations on the need for an intercultural dialogue and understanding of human rights. Lastly, I will discuss areas for further work and collaboration between indigenous and State authorities.
International standards on indigenous justice systems and access to justice
The maintenance of indigenous peoples’ own customary legal institutions and norms is an essential aspect of self-governance and self-determination. The United Nations Declaration on the Rights of Indigenous Peoples (“Declaration”), supported by Colombia, affirms indigenous peoples’ right to self-determination by which they freely determine their political status and freely pursue their economic, social and cultural development (art. 3). Article 4 of the Declaration specifies that “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.” In addition, it provides for the right of indigenous peoples to maintain and strengthen their political, legal, economic, social and cultural institutions (art. 5) and to promote, develop and maintain their institutional structures, including their juridical systems or customs (art. 34).
The ILO Convention 169 on indigenous and tribal peoples, ratified by Colombia in 1991, recognizes the rights of indigenous peoples to exercise their customs, customary laws and methods for dealing with penal matters subject to fundamental human rights principles recognized in domestic and international legal sources. Any conflicts in the application of these principles call for the establishment of procedures to resolve said conflicts (arts. 8,9). This is similar to the provisions of the Constitution of Colombia which state in article 246 that indigenous authorities may exercise their jurisdictional functions within their territories according to their own laws and procedures, while providing that subsequent legislation would establish the forms of coordination of indigenous peoples’ special jurisdiction with the national judicial system.
It is important to note that in devising legislation or other possible measures that affect the rights of indigenous peoples, there must be observance of other provisions contained in the above international instruments; most importantly, the State obligation to consult indigenous peoples.
Article 6 of the ILO 169 speaks of the duty of States to consult indigenous peoples “through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly”; and said consultations should be undertaken “in good faith and in a form appropriate to the circumstance, with the objective of achieving agreement or consent to the proposed measures.” Similarly, the Declaration provides in article 19 that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
In addition to respecting indigenous peoples’ own systems of justice, States must guarantee the ability of indigenous peoples to access justice within the national legal system when necessary to protect their rights. The ILO 169 provides for the right of indigenous peoples to “be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of [their] rights. Measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings, where necessary through the provision of interpretation or by other effective means” (art. 12). ILO 169 also states that in situations where members of indigenous peoples face criminal penalties under general law, “account shall be taken of their economic, social and cultural characteristics” and methods of punishment other than prison shall be given preference (art. 10).
The Declaration affirms the right of indigenous peoples to “access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights” and said decisions should consider the customs, traditions and legal systems of indigenous peoples and international human rights (art. 40).
Under the jurisprudence of the Inter-American Court of Human Rights, States are to guarantee the right to judicial protection taking into account indigenous peoples’ “specificities, their economic and social characteristics, as well as their situation of special vulnerability, their customary law, values and customs.“ The Inter-American Court specified that to enable indigenous peoples to access justice within national courts without obstacles or discrimination, “the State must ensure they understand and are understood in the legal proceedings started, thus offering them interpreters or other effective means for said purpose” and shall also guarantee they “do not have to make excessive or exaggerated efforts to access the centers for the administration of justice in charge of the investigation of [their] case.“
The above reflects the rights indigenous peoples have in a context where they face language, cultural, economic and other barriers within the national legal system. Without consideration to those barriers, members of indigenous peoples before the criminal justice system may face violations of due process if they do not understand the legal procedures instituted against them. Without accessible courts or other legal mechanisms through which they can protect their rights recognized under national and international normative instruments, indigenous peoples become vulnerable to actions by others that threaten their lands, natural resources, cultures, sacred sites or economic livelihoods. At the same time, it should also be apparent that the recognition of indigenous peoples’ own justice systems is another important way to respond to the needs of indigenous peoples with respect to justice in that those systems are better suited to the social, cultural, economic needs and particularities of indigenous peoples. Therefore, an effective access to justice implies access to both the national legal system and indigenous peoples’ own systems of justice.
Principles for addressing competencies between indigenous and ordinary jurisdictions
In Bolivia, constitutional recognition of indigenous jurisdiction has been followed by subsequent legislation that dealt with the competencies of indigenous justice authorities and delineated the areas that indigenous jurisdiction does not apply. This has led to some observations that such legislation has significantly restricted the jurisdictional powers of indigenous authorities.
Similarly, the Constitution of the Philippines specifically recognizes the rights of indigenous peoples. It was the first country in Asia to pass a law governing indigenous peoples’ rights in 1997 or 10 years ahead of the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2007. The Philippine law recognizes the right of indigenous peoples “to use their own commonly accepted justice systems, conflict resolution institutions, peace building processes or mechanisms and other customary laws and practices within their respective communities and as may be compatible with the national legal system and with internationally recognized human rights.“
Yet even with this law, indigenous justice systems in the Philippine face numerous challenges in terms of full implementation and lack of clear strategies for its interplay with ordinary justice authorities. In a recent Decision by the Supreme Court, it was declared that the National Commission on Indigenous Peoples could not adjudicate cases where one of the parties involved is not an indigenous person or does not belong to the same ethno-linguistic group as the other party, thus limiting the understanding of indigenous justice. While the National Commission is not an indigenous justice system, as it is the government machinery mandated to implement the Indigenous Peoples’ Rights Act, limiting its quasi-judicial powers will have implications on how indigenous justice systems are recognized and utilized.
In commenting about Ecuador’s efforts in instituting a legislation on the coordination of indigenous and ordinary jurisdiction, my predecessor James Anaya, emphasized the need for flexibility in attempting to define the spheres of competency of indigenous justice authorities. As he stated, an important point of departure is ascertaining the jurisdictional powers that indigenous authorities have exercised de facto, so that their day to day decisions are given official recognition by ordinary justice operators. In considering the types of conflicts or disputes that indigenous justice authorities can adjudicate, there should be consideration of the possibility that indigenous jurisdiction not be strictly limited only to cases occurring within a community’s territory or that it is appropriate only with regards to members of the same indigenous community or people.
Before I came here I was in Guatemala where I spoke before a seminar related to the Sepur Zarco case which was brought by 15 Maya indigenous women who were raped and made sexual slaves by some members of the Guatemalan Army in 1982 during the war. I had a chance to visit the Guatemalan Attorney General, Thelma Aldaña Hernandez. I asked her about indigenous justice in Guatemala and she said that in reality only about 10% of the indigenous peoples in Guatemala are reached by the ordinary justice system. This means 90% do not have access to justice using the ordinary justice system. Thus, the role of indigenous justice systems in ensuring access to justice for indigenous peoples is crucial and should be better supported by the State.
This situation is not unique to Guatemala. The right to access to justice by indigenous peoples in many parts of the world is violated because of the immense barriers faced by them in using the ordinary justice system which include lack of resources to have access to lawyers, the low level of knowledge and awareness of justice operators of indigenous peoples rights and realities, the continuing existence of discriminatory laws against indigenous peoples, among others. Generally, the indigenous justice systems are not even recognized.
It is therefore necessary that indigenous justice authorities be provided a space where they can determine in specific circumstances where matters involving non-community members or that occur outside their territorial boundaries should be adjudicated by them. One possible factor to be considered by both State and indigenous authorities in such discussions would be the degree to which a given case or issue would have a significant effect on the cultures, traditional institutions, economic livelihood, social cohesion or physical security of an indigenous community or people.
As can be gathered from the above discussion, there needs to be a fluid intercultural dialogue between indigenous and State justice authorities in order to understand those matters that indigenous justice operators consider they should adjudicate, and accordingly recognize those faculties based on the circumstances of particular indigenous communities or peoples. This in turn would also provide flexibility in those cases where indigenous authorities consider that a particular matter should be adjudicated by ordinary justice authorities, as part of a process of intercultural coordination and cooperation. It is also necessary to hold as principle the ability of indigenous peoples’ justice systems to have a dynamic character that would allow them to evolve and adapt to future situations and contexts, in a manner that is consistent with their social, political and cultural precepts.
Consequently, intercultural dialogue and flexibility in outlining jurisdictional functions can better serve the rights and interests of indigenous peoples rather than a strict codification of matters that indigenous authorities can adjudicate or not adjudicate. This would facilitate the processes of consultation and consent that should in any case apply with regards to legislative or other mechanisms to coordinate indigenous and ordinary justice systems.
An intercultural understanding of human rights
As domestic and international legal sources state, the rights of indigenous peoples to apply their customary justice practices are subject to the limitation that they respect fundamental human rights. However, there needs to be a dynamic and intercultural interpretation that takes into account the diverse manifestations of human rights within a context of nondiscrimination. Such an understanding is necessary particularly where decisions by indigenous justice authorities are reviewed by State judicial authorities.
I consider as a good practice the use by tribunals in this country, including the Colombian Constitutional Court, of cultural expert testimonies (peritajes culturales) in cases before them in order to understand a particular indigenous people’s own precepts of justice, due process and the meaning of penalties imposed. Based on the information obtained through these expert opinions, the Colombian Constitutional Court has developed an important jurisprudence where it has balanced the interests of ethnic and cultural diversity promoted by the Constitution and equally important concepts of fundamental constitutional rights. In establishing the limits that must be observed by indigenous authorities as part of an “intercultural consensus”, the Court determined that the minimum human rights requirements that indigenous authorities must respect in their decisions are the right to life, the prohibition against slavery and torture, and the right to due process. Due process would depend on the particular laws and procedures of the indigenous community concerned based on its social and political organization.
The above shows how intercultural dialogue can be established, and I would encourage this practice in courts throughout the country and in other countries and regions. I would also like to encourage the further participation of indigenous elders and traditional cultural authorities as experts, in addition to academics before national courts.
I would also like to add that just as indigenous authorities are expected to comply with universal human rights, so should all ordinary justice operators be continuously reminded of their duty in that regard. Like all systems of justice, mistakes in the application of jurisdiction and of penalties imposed by indigenous authorities could occur. If that happens, there should not be a condemnation of indigenous jurisdiction as a whole, just as the State’s system of justice should not be discredited as a whole for the mistakes and excesses committed by some ordinary justice operators. Therefore, spaces of intercultural dialogue should be further strengthened in order to constructively develop common understandings of universal human rights, as suggested by the Constitutional Court, and to resolve any conflicts resulting from the assertion of indigenous jurisdiction.
When legitimate questions arise about the observance of international human rights by indigenous justice authorities or the suitability of indigenous jurisdiction for a particular matter, specialized review bodies can be devised in addition to the Constitutional Court. As suggested by my predecessor, a capable intercultural review body made of representatives of indigenous and ordinary justice authorities could also make determinations in those matters. Said review body should represent a space for true intercultural dialogue and decision-making.
I would echo the recommendation previously made that coordination mechanisms and judicial review processes should respect and guarantee a maximum level of autonomy for indigenous jurisdictional authorities and also understand and respect the cultural context in which the decisions by indigenous authorities are made. Furthermore, the determinations in the judicial review process should contribute constructively to the respect and strengthening of indigenous jurisdictional powers.
Areas for further collaboration
As recommended by my predecessor, there should be an ongoing processes of exchange of information, understanding and capacity-building between State and indigenous justice authorities. In the case of State authorities, such programs should provide them with information about the cultures, languages, customs, laws and procedures of indigenous peoples in order to prevent prejudicial attitudes against indigenous systems of justice. Through such exchanges, indigenous authorities can also be informed about the functions and procedures of the ordinary justice system. Both authorities would also be able to learn about fundamental international human rights standards.
As the UN Declaration on Indigenous Peoples stated, indigenous peoples have the right to technical and financial assistance from States and international cooperation for the enjoyment of their rights (art. 39), including assistance to finance their autonomous functions (art. 4). There should be coordinated efforts between indigenous peoples, State authorities, international donors and other interested parties to help strengthen and promote indigenous justice systems. Such efforts could enable each indigenous people to value and, where necessary, recover their own knowledge and practices related to conflict resolution and administration of justice. The strengthening and capacity-building of both indigenous and ordinary justice systems, within the framework of tolerance and respect for human rights, should be seen a an integral component to achieve a shared goal to end impunity and promote access to justice in the country.
In addition, I would also encourage the comparative study of other countries where indigenous justice systems are recognized and actively function alongside ordinary justice systems. For example, in the United States, the Navajo Nation’s system of tribal and “peacemaker” courts have incorporated traditional Navajo customary law (or Navajo common law) and conflict resolution methods in their decisions. This has proven suitable in the resolution of disputes involving not just Navajo Nation members but also non-indigenous persons, and at a fraction of the costs and without excessive legal formalisms that exist in the ordinary jurisdiction. The Navajo people have been able to strengthen their self-determination and promote the resolution of contemporary social, legal and other problems they face through the use of their own customary laws and traditional knowledge.
Through my comments and observations in this paper, I seek to encourage dialogue and cooperation between indigenous peoples and State authorities about the issue of justice administration. Any measure contemplated to resolve problems in the application of indigenous justice and to coordinate between indigenous and ordinary jurisdictions should use as points of reference the international standards related to indigenous peoples’ rights to self-determination, of their right to be consulted on all matters affecting them with a view to obtaining their free, prior and informed consent, as well as their rights and particular needs with respect to access to justice. The respect, promotion and strengthening of indigenous languages, cultures, and their own institutions should also be an integral part of mechanisms for facilitating indigenous peoples’ access to the national legal system and their own systems of justice.
I will certainly look forward to receiving the general observations and conclusions reached in this Seminar. These will feed into a future report I will make on indigenous justice. I reiterate my thanks again to the Fiscalia and wish you all the best in your efforts to respect the rights of indigenous peoples to have access to justice and to use their own indigenous justice systems.
 IA Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005, para. 63; and IA Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of March 29, 2006, paras. 82,83.
 IA Court H.R., Case of Tiu Tojín v. Guatemala, Judgment of November 26, 2008, para. 100.
 See, Ley No. 073 de Deslinde Jurisdiccional (2010), art. 10. The matters in which indigenous jurisdiction was deemed not to reach included, inter alia, crimes against international law; crimes against humanity; crimes against internal and external security of the State; terrorism; drug-trafficking; trafficking of persons; crimes against children; rape and homicide; and matters dealing with labor, mining, oil and gas, and forestry laws.
Indigenous Peoples Rights Act, Chapter IV, Section 15.
 Informe del Relator Especial sobre pueblos indígenas, James Anaya, Adición: Observaciones sobre los avances y desafíos en la implementación de las garantías de la Constitución Política del Ecuador sobre los derechos de los pueblos indígenas (2010), A/HRC/15/37/Add.7, para. 12.
 A/HRC/15/37/Add.7, para. 10.
 A/HRC/15/37/Add.7, para. 15.
 Sentencia T-523 de 1997.
 A/HRC/15/37/Add.7, paras. 17, 54(d).
A/HRC/15/37/Add.7, para. 17.
A/HRC/15/37/Add.7, para. 9.
 A/HRC/15/37/Add.7, para. 10.
A/HRC/15/37/Add.7, para. 16.
 For more information, see Raymond D. Austin, Navajo Courts and Navajo Common Law: A Tradition of Tribal Self-Governance, University of Minnesota Press (2009).
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