Protection of Indigenous Peoples

This article summarizes the state of indigenous rights today. It discusses how international law, specifically the Rome Statute, was used to defend indigenous rights. Pay particular attention to how Guatemala used the Rome Statute to alter its national laws and address crimes against indigenous peoples. What other rights and issues do they address here? How do these rights intersect with indigenous rights?

Ten years on from a key UN Declaration, 370 million indigenous people face rising exploitation, marginalization and oppression.

9 August marks the International Day of the World's Indigenous Peoples, serving as an opportunity to commemorate the anniversary of the UN Declaration on the Rights of Indigenous Peoples.

So how can the rights of indigenous peoples be protected within the Rome Statute system of international criminal justice?

“Indigenous peoples are inheritors and practitioners of unique cultures and ways of relating to people and the environment.” —United Nations

What is Meant by “Indigenous”?

The term “indigenous” is ambiguous but generally refers to communities with their own distinct languages, cultures, and social and political institutions which diverge from those of the dominant societies in which they live.

It is estimated that there are around 370 million indigenous people representing over 5,000 different cultures in 90 countries across the world.

"To exclude and to discriminate not only violates human rights, but also causes resentment and animosity, and could give rise to violence.” —Goal 16 of the UN’s 2030 Agenda for Sustainable Development (SDG16)

Why is it Important to Recognize this Day?

Despite forming less than 5% of the global population, indigenous peoples account for 15% of the poorest. They are often subject to exploitation, marginalization and oppression.

Indigenous peoples are often historically associated with a territory on which their livelihood depends. Yet in the face of discrimination, they have had to fight for recognition of their heritage and right to traditional lands and natural resources.

The International Day of the World's Indigenous Peoples marks the first meeting of the UN Working Group on Indigenous Populations of the Subcommission on the Promotion and Protection of Human Rights in 1982.

On this Day, the world pays tribute to the rich and valuable diversity in identities, languages and knowledge systems among indigenous peoples.

The Rome Statute system of international justice is an important means of protecting indigenous peoples along with their cultural heritage.

A joint statement from the Chairperson of the UN Permanent Forum on Indigenous Issues, the UN Expert Mechanism on the Rights of Indigenous Peoples, and the Special Rapporteur on the rights of indigenous peoples in August 2017 read:

“It is now 10 years since the UN Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly, as the most comprehensive international human rights instrument for indigenous peoples. The Declaration, which took more than 20 years to negotiate, stands today as a beacon of progress, a framework for reconciliation and a benchmark of rights.

But a decade on, we need to acknowledge the vast challenges that remain. In too many cases, indigenous peoples are now facing even greater struggles and rights violations than they did 10 years ago.

Indigenous peoples still suffer from racism, discrimination, and unequal access to basic services including healthcare and education. Where statistical data is available, it shows clearly that they are left behind on all fronts, facing disproportionately higher levels of poverty, lower life expectancy and worse educational outcomes."

“Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination.” —Art 2 of the United Nations Declaration on the Rights of Indigenous Peoples

What International Legal Protection do Indigenous Peoples Have?

On 13 September 2007, the UN General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples, drawing on existing sources of international law to elaborate indigenous peoples’ human rights. The Resolution gives the General Assembly guidelines and standards for approaching the protection of these rights.

The Declaration reaffirms the principles of justice and human rights, and advancements have been made in addressing grave crimes against indigenous peoples.

As the Declaration’s Preamble outlines: “[I]ndigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.”

Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide defines the crime as any number of acts from killing to inflicting impossible conditions of life to sterilization or forcibly transferring children, all "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group."

As such, indigenous groups are protected under the Genocide Convention and its signatory states are obliged to prevent genocide and prosecute perpetrators.

And while the Rome Statute of the International Criminal Court, which draws its own genocide definition from the Genocide Convention, does not contain explicit provisions for indigenous peoples, it codifies individual accountability for perpetrators of grave crimes.

“The creators of the Court very much had crimes against Indigenous Peoples in mind, when drafting the Court’s Rome Statute." —John Washburn, American Coalition for the ICC (AMICC)

The ICC and Indigenous Peoples

The Rome Statute is a valuable framework for delivering justice to indigenous groups.

When states incorporate the Statute’s far-reaching crimes provisions into domestic legislation, these crimes can be investigated by national authorities and specific harms affecting indigenous peoples recognized in domestic courts.

Although crimes against indigenous groups have yet to see the ICC courtroom, the case has been made that ICC crimes definitions cover a lot of ground where indigenous peoples may be concerned.

Genocide and crimes against humanity are considered most applicable when thinking about atrocities against or affecting indigenous groups.

If an attack on fundamental elements of cultural identity can be shown to be the result of intent to “destroy in whole or in part, a national, ethnical, racial or religious group,” the crime of genocide may apply. This would cover methods of ensuring a group’s destruction, including through mental harm. And even victimized groups that are small in number could arguably measure up to the ICC’s gravity standard.

The Rome Statute’s crimes against humanity provisions, which include systematic murder, extermination, enslavement, torture, sexual violence, and persecution against any identifiable group on racial, national, ethnic, cultural, religious or gender grounds, would cover many of the remaining grave human rights violations that indigenous peoples can experience. And when such conduct happens in the context of armed conflict, related war crimes provisions may apply.

Importantly, individuals prosecuted for Rome Statute crimes against indigenous groups do not have to have ordered or directly committed the crimes – those with knowledge of and the responsibility to put an end to such crimes are expected to do so by the Rome Statute.

Under the Rome Statute complementarity principle, the ICC may only step in to address impunity for crimes not being investigated or prosecuted at the national level.

National Justice: Guatemala Leading the Way

One of the most notable courtroom victories for indigenous rights was the 2013 Guatemalan court conviction of former dictator José Efraín Ríos Montt of genocide and crimes against humanity committed against the indigenous Mayan Ixil population during the country’s civil war.

After ratifying the Rome Statute in 2012, Guatemala embarked on the process of bringing the Rome Statute into domestic law. With a Rome Statute implementation law in the works, Guatemala has a chance down the road to take further steps in its domestic response to international crimes affecting indigenous peoples and other vulnerable groups.

“Indigenous peoples face particularly acute challenges due to loss of their lands and rights over resources, which are pillars of their livelihoods and cultural identities.” —Joint UN Declaration on the Rights of Indigenous People

Environment, Land and Resources

Crimes committed through or resulting in destruction of the environment, the illegal exploitation of natural resources, and the illegal dispossession of land (land-grabbing) disproportionally affect indigenous groups.

In 2014, the International Federation of Human Rights filed a communication to the ICC Prosecutor alleging crimes against humanity by the Cambodian government through land-grabbing said to affect an estimated 770,000 people (6% of the country’s population), with indigenous minorities suffering disproportionately.

While the ICC has yet to prosecute these crimes, the prosecutor has indicated that they would be an area of focus in the coming years.

“Indigenous women face double discrimination, both as women and as indigenous peoples. They are frequently excluded from decision-making processes and land rights, and many suffer violence.” —Joint UN Declaration on the Rights of Indigenous People

Gender Justice for Indigenous Peoples

Reports show that threats commonly faced by indigenous communities, such as land-grabbing and forced migration, result in indigenous women and girls facing increased risk of trafficking and economic and sexual exploitation.

Civil society has long advocated enhanced access to gender justice through the Rome Statute.

The ICC Office of the Prosecutor (OTP) has been prioritizing the investigation and prosecution of sexual and gender-based violence since its 2014 Policy Paper on Sexual and Gender-Based Crimes, which was followed by the Court’s first conviction for rape as a war crime and as a crime against humanity in March 2016.

The Rome Statute is the first international treaty to establish conflict-related sexual and gender-based violence as crimes against humanity, war crimes and, in some instances, genocide. These groundbreaking provisions have provided a new language to describe and prosecute these heinous crimes.

"Indigenous peoples are increasingly being drawn into conflicts over their lands, resources and rights." —Joint UN Declaration on the Rights of Indigenous People

Indigenous Rights Defenders on the Frontline

On the 10 anniversary the UN Declaration on the Rights of Indigenous Peoples a group of United Nations experts and specialist bodies warned that:

“The worsening human rights situation of indigenous peoples across the globe is illustrated by the extreme, harsh and risky working conditions of indigenous human rights defenders. Individuals and communities who dare to defend indigenous rights find themselves labelled as obstacles to progress, anti-development forces, and in some cases, enemies of the State or terrorists.

They even risk death. Last year alone, some sources suggest that 281 human rights defenders were murdered in 25 countries – more than double the number who died in 2014. Half of them were working to defend land, indigenous and environmental rights. We urge States to protect indigenous human rights defenders. Crimes committed against them must be duly investigated and prosecuted, and those responsible brought to justice.”

A 2017 report by the watchdog Global Witness confirmed this worrying increase in killings and forced exile of indigenous peoples protecting their lands, coming under increasing attack from state and corporate actors.

Global Witness has teamed up with the Guardian newspaper to launch a project documenting the deaths of everyone who dies over the next year in defence of the environment.

Source: Coalition for the International Criminal Court,
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Last modified: Wednesday, September 15, 2021, 9:17 AM