UNSR Victoria Tauli-Corpuz

Observations on strengthening indigenous women's access to justice and protection against violence Print

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Observations on strengthening indigenous women's access
to justice and protection against violence

Presentation by Victoria Tauli-Corpuz,
United Nations Special Rapporteur on the rights of indigenous peoples

for the

Seminar on "Experiences in litigation of cases of Violence against Women
and Women's Access to Justice in Central America" - Guatemala

February 2016

Introduction

The current litigation related to the Sepur Zarco case in Guatemala represents an important historical moment to highlight the need for guaranteeing access to justice for indigenous women who have been one of the most vulnerable sectors in Guatemala and other places in the world. As the report by the Guatemala Commission for Historical Clarification pointed out, indigenous Mayan women constituted the majority of rape victims during the country's armed conflict and the profound trauma and shame was felt by the women victims and their communities (CEH, p. 35).[1] This was part of the violence and genocide endured by the Mayan people during the armed conflict. However, indigenous women in Guatemala have been vulnerable to violence and other human rights violations before, during and after the armed conflict which makes it necessary to address historical and ongoing socioeconomic, cultural and other barriers that have permitted acts of violence against indigenous women and impeded their access to justice.

To address these interrelated factors, concerted efforts between representatives of indigenous peoples, civil society and Government representatives are needed taking into account those interrelated factors and the individual and collective character of the issues and of the remedies required. In this paper, I will discuss relevant international human rights standards on the rights of indigenous peoples including their right to access to justice, of the need to understand the cultural and collective dimensions of rights violations, the racialized, gendered and sexualized violence against indigenous women, and some recommendations for reparations and reforms to address these forms of violence against indigenous women.

Relevant international standards on indigenous peoples

Under the United Nations Declaration on the Rights of Indigenous Peoples, indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms recognized under international human rights law (art. 1). This includes rights of indigenous individuals to "life, physical and mental integrity, liberty and security of person" and also includes collective rights of indigenous peoples to "live in freedom, peace and security as distinct peoples and... not be subjected to any act of genocide or any other act of violence" (art. 7). The Declaration provides that "States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination" (art. 22). Furthermore, it provides that the rights and freedoms in the Declaration are guaranteed equally to male and female indigenous individuals (art. 44).

The Declaration states 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). It is important to note that an important component of the international standard of access to justice applicable to indigenous peoples is the special consideration of the cultures, languages, traditions and particular social and economic situation of indigenous peoples. Under the jurisprudence of the inter-American human rights system, States are to guarantee indigenous peoples the right to judicial protection taking into account their "specificities, their economic and social characteristics, as well as their situation of special vulnerability, their customary law, values and customs."[2]

In a case about a Mayan woman and her daughter who were disappeared during the armed conflict in Guatemala, the Inter-American Court of Human Rights found that the relatives of the victims faced social, cultural, language and economic barriers in trying to get local authorities undertake investigations about the fate of the victims. The Court stated that to guarantee access to justice for the relatives 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."[3] In cases of violations of the human rights of indigenous individuals including cases of violence against women and girls, the Inter-American Court has also held that the State obligation "to repair the damage caused in a case involving victims belonging to an indigenous community may call for measures that encompass the entire community."[4]

Special considerations regarding the situation of indigenous women

I would like to highlight some relevant observations I previously made in my 2015 report to the Human Rights Council about the rights of indigenous women and girls. In that report I noted the need for attention on the nexus between individual and collective rights, and how intersecting forms of discrimination and vulnerability contribute to ongoing abuses of indigenous women's rights.[5] As is well known, indigenous women face racism, discrimination and sexism at various levels, for being women, poor and indigenous. And the historic racism, discrimination and marginalization faced by indigenous peoples leaves indigenous women particularly vulnerable to various forms of violence, including sexual violence and sexual slavery. Such racialized, gendered and sexualized violence against indigenous women have not been examined enough and justice has eluded most of the victims of such crimes.

Therefore, it is important to understand the unique historical experiences of indigenous communities and the strong intergenerational element of many of the forms of violence and abuse that indigenous women and girls have endured. These include historical and ongoing attacks on indigenous cultures, lands, natural resources, autonomy and self-determination.[6] As noted in my report, military officials have often perpetrated sexual violence as a weapon to weaken the resolve of indigenous peoples where rights to lands and resources are disputed.[7] It is my understanding that the acts of violence against Mayan women alleged in the Sepur Zarco case occurred within a context where, previous to the events in question, the husbands of the victims were disappeared by members of the military for seeking recognition of their communities' land rights.

The strong interrelationship felt by members of indigenous peoples, including women, to their ancestral lands and communities must be understood. In addition, the role and place that women have in indigenous societies, cultures and worldviews is important in assessing the magnitude of the acts of sexual violence and other human rights violations on indigenous women. How sexual and other types of violence against women is perceived from the standpoint of specific indigenous cultures also has implications on indigenous women victims and survivors. Those implications can vary from an individual and collective demoralizing effect caused by the violence, the undermining of cultural and family-related roles and relationships, to more pronounced forms of social stigmatization within the indigenous women's own communities. In any case, the violence perpetrated also extends to the indigenous women's families and communities. Thus, the social and cultural fabric of many indigenous peoples and communities can be gravely affected in ways that are fundamentally different than in other population sectors.

Formulating necessary reforms and reparations benefitting indigenous women

It is clear that under its international human rights commitments, the Guatemalan State is expected to enact measures to remedy the human rights violations faced by indigenous women, including barriers they face in accessing justice. As the Special Rapporteur on violence against women, its causes and consequences recommended in her 2011 report (A/HRC/17/26), States should undertake a holistic approach to addressing violence against women that is based on the indivisibility and universality of all human rights, that recognizes the multiple interconnections between different forms of violence against women, its causes and consequences, and addresses multiple and intersecting forms of discrimination. Finding solutions to these problems can be something that the Government can seek to do in collaboration and consultation with indigenous women, indigenous peoples' organizations and civil society.

In many countries discrimination and racism continues to be embedded in dominant societies, including in state institutions like the police, the military and the justice systems. This is a reality which has to be challenged in a holistic and systemic way. The discriminatory and sexist attitudes, behaviour and practices of military and the police men have to be addressed when looking at situations of violence against indigenous women. There is a need to acknowledge the past and present effects of colonization on the lives of indigenous women. The structural inequality faced by them and the root causes of the gendered, racialized and sexualized violence they face have to be explored more deeply and addressed so that long-lasting solutions can be found.

In formulating remedies for indigenous women that have been victims of violence, it is necessary to not just ensure the legal prosecution and sanction of the individuals responsible for acts of violence, but also consider the material and immaterial damages suffered by indigenous women, which could include individual and, in some cases, collective reparations. Collective reparations could look into addressing the legal, socioeconomic and other impediments members of indigenous peoples face, including women, in seeking justice for violations of their human rights. They should also include measures to address the collective land, natural resource and other rights issues that many times underlie episodes of violence against indigenous women.

Discussions for broader policy, legal and institutional reforms need to be encouraged to provide for indigenous women's access to justice taking into account their particular circumstances, social characteristics, their situation of special vulnerability, and their cultures, values and customs. In my last annual report, I recommended the establishment of special tribunals that can respond in a culturally appropriate manner to the individual needs of indigenous women seeking access to justice for violations of their human rights. Such tribunals would comprehensively address rights violations faced by indigenous women, and establish effective links and coordination with indigenous justice systems.[8]

In cases before the Inter-American system dealing with violence against indigenous women, various forms of reparations have been requested to or ordered by the Inter-American Court that involve specific legal, policy and programmatic reforms as well as health and medical attention. The following comments are based, in part, on some of the reparations addressed.[9]

The provision of specialized legal aid or legal assistance programs for indigenous women seeking access to State tribunals and other forums to enforce their rights or obtain reparations would be an important step towards improving access to justice. Special divisions within State justice administration entities like the Attorney General (Ministerio Público) and Prosecutor's offices (fiscalía) could also be established to investigate and prosecute cases involving indigenous women victims of violence. All these institutions would of course need to have the necessary technical and financial resources as well as be geographically and culturally accessible to indigenous women.

Special training programs for Government officials could be promoted in order to enable them to assess, prevent and investigate cases of violence and institute appropriate responses. In addition, specific protocols to investigate acts of sexual and other types of violence against indigenous women should be developed which would be culturally sensitive and incorporate international standards for investigation and evidence gathering in these types of cases. These programs and protocols could be developed with assistance of indigenous women representatives to ensure consideration of indigenous women perspectives and their particular cultures and worldviews.

Legal, policy and other initiatives should also promote culturally appropriate medical, psychological and other necessary care for women victims of rape and their families, in order to facilitate their recovery and reinsertion into their communities. These health services would need to be developed in coordination and consultation with indigenous women and include resources for necessary personnel and infrastructure. The personnel providing these services should come from the indigenous communities or receive appropriate cultural training. In addition, I would emphasize where these instances of violence against women have led to the fracturing of family and community relations, there should be support for measures promoting the restoration of harmony for the indigenous women victims and other indigenous community members taking into account indigenous peoples' own cultural, ceremonial and other traditional practices and worldviews.

There is also a need for permanent human rights education programs for members of police and military which will include how to eradicate racist, discriminatory and sexist attitudes and practices and how to protect women's rights and prevent the multiple forms of discrimination experienced by indigenous women. These programs should promote the observance of international human rights instruments on the rights of indigenous peoples (including respect for rights to lands, resources, cultures, and consultation and free, prior and informed consent) and the protection of women's rights.

Lastly, it is also important to promote effective awareness raising campaigns at the level of the Government and the general population about the problem of violence against women, and the intersecting forms of human rights violations and discrimination faced by indigenous women.

Conclusion

As indicated above, indigenous women face various intersecting forms of discrimination which makes them vulnerable to sexual violence, sexual slavery and other grave human rights violations. Solutions to these problems must be based on an understanding of the histories, cultures and other specific circumstances that indigenous women face as members of indigenous peoples and communities. The damages suffered happen at an individual and collective level, and likewise, the measures that must be taken to remedy these violations need to have an individual and collective focus, depending on each circumstance.

The Sepur Zarco case currently before the Guatemalan court system should serve as a basis for further dialogue and awareness raising at the national level, not just about the ongoing wounds and legacy of the armed conflict, but also of the need to institute much needed legal, policy and other reforms to address violence against indigenous women and the discrimination they face as members of indigenous peoples. It is an opportunity to re-structure current social, cultural and political dynamics and relationships that have perpetuated acts of violence against members of indigenous peoples, including indigenous women. Thus, this is an opportunity and an essential step in achieving restorative justice for indigenous peoples in Guatemala and other countries.

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NOTES

[1] Report of the Commission for Historical Clarification, Guatemala: Memory of Silence – Conclusions and Recommendations (1999), p. 35.

[2] 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.

[3] IA Court H.R., Case of Tiu Tojín v. Guatemala, Judgment of November 26, 2008, para. 100.

[4] IA Court H.R., Case of Rosendo Cantú and other v. Mexico, Judgment of 31 August 2010, para. 206; Aloeboetoe et al. v. Surinam, Judgment of September 10, 1993, paras. 96,97; Case of the Plan of Sánchez Massacre v. Guatemala, Judgment of November 19, 2004, para. 86; and Case of the Moiwana Community v. Surinam, Judgment of June 15, 2005, para. 194.

[5] A/HRC/30/41, para. 8.

[6]A/HRC/30/41, para. 12.

[7] A/HRC/30/41, para. 47(c).

[8] A/HRC/30/41, para. 78(e).

[9] For further information, see e.g., IA Court H.R., Case of Rosendo Cantú and other v. Mexico, Judgment of 31 August 2010, paras. 230-268, 295(9)-(25).

 

 

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