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The South Does Rights Thing; Why US & Canada Fear Human Rights Court, Part II

Human rights as something existing outside of national borders but enforceable within those borders is the furthest frontier of international law.

Human rights as something existing outside of national borders but enforceable within those borders is the furthest frontier of international law. Conflict resolution outside of national legal systems began with trade and spread to border disputes and the rules (such as they are) of warfare. In the Atomic Age, very few disputes justify going to war, and recognition of that has driven even more acceptance of international law.

Human rights law is a step beyond peaceful dispute resolution between nations. It demands that nations check their sovereignty at the courthouse door and submit to decisions by human rights tribunals. The law for supranational human rights courts to apply, like the courts themselves, did not exist until this century and is still a work in progress. Much of that law is being written in this hemisphere, south of Canada and the U.S. So far.

Canada and the U.S. are too civilized to require human rights protections for Indigenous Peoples, or so those governments claim. If we are to differ with that claim, it’s necessary to keep our eyes on the growth of human rights law, a process in which the western hemisphere leads the world but the nations quickest to claim the mantle of civilization remain aloof.

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The Inter-American Court of Human Rights is the newest of three supranational tribunals that protect individuals and groups from the nations of which they are citizens. Submitting to the Court’s jurisdiction diminishes sovereignty in the traditional sense and, like all courts, this one must depend on its powers of persuasion to create legitimacy and summon aid if judgments need enforcement. There is no international sheriff.

Because there was no international sheriff in the age of imperialism, the colonizers of the Americas did as they pleased, killing and stealing with impunity. If one goal of international law is to end that impunity, courts must do their best to unravel arrangements based in theft and homicide. That unraveling has to proceed in places where the most havoc was wreaked by colonization. Leadership in the development of human rights law for indigenous people has come to this hemisphere because American nation-states were all created by colonization at the expense of people already living here and so the cases arise in the Americas.

Most of the lines on American maps were drawn in Europe, beginning with the Treaty of Tordesillas in 1494. Following the dictates of the Pope, the so-called New World was divided between Spain and Portugal, sight unseen. The Pope rejiggered the lines several times, but the basic scheme lives on to this day: the Portuguese confined to a tip of South America that is now Brazil, with Spain awarded all the rest of South America and North America, and Portugal given a free hand in Africa.

The repercussions of this imperial hubris still ripple through the indigenous communities of Africa and the Americas. While the evils done are recognized in these post-colonial times, the questions of reparations and protections remain for the international law of human rights.

The Permanent International Court of Justice (one of the few remnants of the League of Nations, the failed brainchild of President Woodrow Wilson that was born and died between the world wars) decided what became a landmark case on the general rule of compensation for a bad act, also known as reparations. Germany v. Poland, in 1928, held that “reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.” That’s a noble goal, and often an impossible one, particularly when wiping out the consequences of the bad act would require raising the dead.

When the Inter-American Court of Human Rights began hearing cases, unlawful killings and the repercussions of those killings on indigenous communities were the first issues brought forward. The only “law” the court was specifically tasked to apply was the American Convention on Human Rights. Like Chief Justice Marshall in the United States, the Inter-American Court was tasked to write on a blank slate and define the status of Indigenous Peoples before the law. Perhaps because an international court is not bound to the interests of any particular government, the writings so far on the blank slate of indigenous human rights differ radically from the courses chosen by the national courts of Canada and the United States. Here are a few of the landmarks in that process:

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— Indigenous Peoples do not lose their tribal status by intermarrying

In Aloeboetoe et al. v. Suriname, the Inter-American Court addressed a 1988 incident in which seven Saramakas, members of what the Court found to be a “tribal population,” were murdered by army troops on suspicion of being part of an insurgency. Suriname objected to the “tribal population” designation because the victims were Maroons, a word derived from the Spanish cimarrón, referring to a wild animal and used to describe escaped African slaves intermarried with South American Indians. When Suriname lost on the issue of whether the Saramakas were a tribal population, it conceded responsibility for the killings, which brought forward the issue of what living persons were due reparations.

Suriname wanted to apply its law of descent and distribution, the method of determining heirs when the deceased left no will. The Saramakas, however, were a polygamous, matrilineal people, two practices not accounted for if the law of Suriname were to define heirship. The court managed to offend all parties when it recognized traditional polygamous relationships as superior to national law but still insisted on reckoning ascendant relatives without regard to sex, apprehending gender neutrality as a value that trumped tribal traditions just as tribal traditions had trumped the domestic law of Suriname.

The Human Rights Commission, representing the victims, argued that the killings were racially motivated and therefore the government owed reparations to the Saramaka community as well as the relatives of the victims. Accepting this novel principle in cases involving attacks on indigenous communities, the court ordered that a school and a clinic serving the Saramaka be reopened and staffed at government expense.

Some commentators have faulted the court for paternalism, because it required the monetary payments to the survivors go into a trust fund. The lost support to the dependents of the victims was totaled and then the court added $29,070 for each victim in “moral damages.” In the development of the law, the Aloeboetoe case is important for privileging customary law over the law of the responsible nation. The paternalistic action of paying damages through a trust is a paternalistic action quite familiar to American Indians and so does not represent uncharted legal territory.

The next indigenous case that lead the Inter-American Court to new legal ground involved something that happened before the Aloeboetoe case but after the court decision and another killings case, El Amparo v. Venezuela, that involved no new legal issues and a “mere” 14 deaths. Plan de Sánchez Massacre v. Guatemala took human rights abuses to a whole new level, and the court had to come along.

— Legal harm to indigenous individuals may amount to legal harm to indigenous communities

Guatemalan commandos, hunting for guerilla forces, invaded a Maya Achi village in 1982 and executed 260 people. Because Guatemala had not accepted the court’s jurisdiction at the time of the massacre, the killings were not before the court. The welfare of the survivors was the problem presented. The military terrorized the 317 survivors, driving them from their homes and destroying or stealing their property and their animals.

The court found that harassment from the military prevented the survivors from burying their dead or performing traditional funeral rituals and the result was damage to the mental health of the survivors, for which the court ordered “moral damages” of $20,000 each. But the court was not finished.

Given that the victims in this case are members of the Mayan people, this Court considers that an important component of . . . reparation is the reparation that the Court will now grant to the members of the community as a whole.

The court directed that an apology be tendered at a public event at the scene of the massacre attended by government officials and “taking into account the traditions and customs of the members of the affected communities.”

Over and above the normal appropriations for public works in the region, the court ordered the government to complete, within five years, improvements to the roads, the sewage system, and potable water supply. The order required establishment of a health center in the village and the assignment of teachers to the village “trained in intercultural and bilingual teaching.”

The court ordered the American Convention on Human Rights and the judgment of the court to be translated into the Maya-Achi language and copies delivered to all the survivors.

Río Negro Massacres v. Guatemala followed the same paradigm to order reparations for five operations involving both straightforward killings and “disappearances.” The remedies ordered were both cash payments to the survivors and improvements to the communities affected.

The massacres litigated in the Inter-American Court were perpetrated in the 1980s. Most of the decisions were rendered after the turn of the 21st century and part of the challenge for the court was to put things right when the very worst—the killings—happened before the court existed. A similar problem will confront the court if the U.S. and Canada ever sign on. The shooting part of the Indian wars is over, but there are still human rights violations on a scale yet to be admitted by the governments in America del Norte.

— Colonial land titling customs cannot be used alone to overcome aboriginal title

Historically, the threat to indigenous lives was followed by threats to property, particularly land, and the Inter-American court weighed in on land theft in Mayagna (Sumo) Awas Tingni v. Nicaragua. While Nicaraguan law recognized communal property, the Awas Tingni people had never gotten their rights memorialized on colonial paper.

— International law will protect rights the U.S. Supreme Court has failed to protect

The Inter-American court held that the right to property in the American Convention on Human rights protects aboriginal title, a holding directly in conflict with the U.S. Supreme Court in Tee Hit Ton Indians v. United States, where the SCOTUS in 1955 blew right past aboriginal title to separate Alaska Natives from their real estate.

The Inter-American court ordered Nicaragua to adopt laws necessary “to create an effective mechanism for delimitation, demarcation, and titling” of the communal lands. In more common language, to make the papers in the official records match the reality on the ground.

— The right to life in the American Convention on Human Rights means more than not being killed, and living conditions on a reservation could violate that right

Other land thefts were addressed in cases involving three plaintiffs—Yakye Axa Community, Sawhoyamaxa Indigenous Community, and Xákmok Kásek Indigenous Community—but only one defendant, Paraguay. The Paraguayan Indians had been evicted from their ancestral lands and were living under abysmal conditions.

The three Paraguayan Indian cases moved human rights law forward by holding the government responsible for the deaths of Indians placed in settlements with no access to their customary modes of subsistence. In both Yakye Axa and Xákmok Kásek, the court found that the “right to life” in the American Convention means a right to vida digna, officially rendered in English by the court as “decent life,” but which I would translate as “dignified life.” In either translation, the court recognized that a right to life means more than just not being killed and a government may be responsible for damages for denial of vida digna in addition to its obligation to restore the Indians to their lands.

— The right to property in the American Convention on Human Rights means more than use of the surface, so that right is violated even when the colonial government owns the mineral rights if it pursues development without regard for impact on the Indian community

In a property case remarkably similar to Department of the Interior actions in the U.S., Saramaka People v. Suriname, the court found that the government violated fundamental human rights by granting timber and mining concessions on Indian land without prior consultation, benefit-sharing and environmental impact assessments. This broad reading of the right to property matches the broad reading of the right to life. In letting these concessions, the Indians were entitled to “informed participation and consent.”

— Violation of the right to aboriginal lands may damage a tribal people’s cultural identity

In Kichwa Indigenous People of Sarayaku v. Ecuador, the government had recognized aboriginal land title but reserved eminent domain in the subsurface mineral rights, a fairly common arrangement in Latin America. Still, the court ordered damages for “the suffering caused to the People and to their cultural identity.”

— Human Rights in the American Convention includes a right to meaningful political participation in the affairs of the colonial state

In YATAMA v. Nicaragua, the court found that the exclusion of an indigenous slate of candidates from the ballot violated the due process and equal protection rights of the community. After ordering substantial electoral reforms, the court ordered that the decision be broadcast on the radio in Spanish, Miskito, Sumo, Rama and English.

The Inter-American Court is quickly forging a reputation for creative measures to protect indigenous rights of communities, but still remained willing to address individual rights in López-Álvarez v. Honduras, when the court imposed damages in favor of an individual who had been imprisoned for six years without being convicted of a crime and banned from speaking in his native Garifuna language. The court held this violated his rights to personal integrity, liberty, equality, due process and freedom of expression.

— There are many violations of human rights that cannot be compensated by money alone

Most of the Inter-American Court’s money damage awards have been paid and, surprisingly, the more creative remedies have been met with little governmental obstruction. The court is, however, exploring new legal territory in the protection of human rights and not every order has been followed.

Bámaca-Velásquez v. Guatemala involved the “disappearance” of a Mayan, Efraín Bámaca-Velásquez. This case gained some notice in the U.S. through the efforts of Bámaca-Velásquez’s U.S. citizen wife, Jennifer Harbury, to discover his fate. All parties to the case agree that Bámaca-Velásquez (unlike most victims in these human rights cases) was involved in anti-government activities, that he was last seen in the custody of the Guatemalan army, that he was tortured and murdered without trial.

Bámaca-Velásquez’s family was awarded monetary damages that included his wife’s costs in her long search for her husband. However, the family wanted to locate his remains so they could conduct Mayan funeral ceremonies. Without proper ceremonies, his Mayan relatives believe they will not be able to find him when they walk on. It has now been over 10 years since the court ordered the government to produce Bámaca-Velásquez’s remains for traditional burial, but the remains have not been turned over and it is unclear whether they have been found.

Guatemala was the perpetrator in a number of other disappearance cases that came to the Inter-American Court, all of which resulted in both monetary reparations to the relatives and various forms of compensation to the indigenous communities affected.

Florencio Chitay-Nech, another Mayan disappeared by Guatemala, was mayor of a small city, San Martin Jilotepeque. The last Guatemalan case to reach decision, Tiu-Tojín v. Guatemala, involved the disappearance of Mayan Indians Maria Tiu-Tojín, and her daughter Josefa. As in Bámaca-Velásquez, the government’s failure to produce the remains for ceremonial burial resulted in more compensation to the family for violation of their spiritual beliefs.

In a disappearance case from another country, Escué-Zapata v. Colombia, the government took four years to produce the remains of Germán Escué-Zapata, an indigenous leader from the Nasa community. This delay led the court to increase the monetary damages to his relatives to compensate for “moral and spiritual repercussions” for the Nasa culture.

— Rape of indigenous women harms the community as well as the women and their families

In 2010, the Inter-American Court issued two judgments against Mexico, Fernández-Ortega et al. and Rosendo-Cantú. Both of these cases involved rapes of indigenous women by Mexican soldiers and subsequent failures of the Mexican justice system to provide effective redress for the victims.

Once again, the court went far beyond monetary compensation and psychological care for the rape victims, ordering scholarships for Fernández-Ortega’s five children and, on the community level, that “the girls of the community of Barranca Tecoani that currently carry out their middle school studies in the city of Ayutla de los Libres, … be provided with housing and a proper diet” and that the government fund a community center under the management of the women of the community “adapted to the indigenous community’s view of the world.”

Professor Thomas M. Antkowiak of the Seattle University School of Law commented on the Mexican judgments, “Clearly, petitioners’ efforts to document the systematic violations suffered by Me’phaa women... yielded fruit.”

— The decisions of the Inter-American Court on Human Rights defining the legal status of Indigenous Peoples are the cutting edge of human rights law in the world

Enforcing the American Convention on Human Rights in a court dedicated to the purpose has yielded substantial fruit and the court’s decisions have become the seeds of the developing international jurisprudence of indigenous rights. The most distinctive aspect of that jurisprudence has been the court’s recognition of damage to indigenous communities as worthy of compensation in cases that begin with damages to individuals.

If the governments of the U.S. and Canada take the position that the depredations on indigenous communities in Latin America are in the historical rearview mirror for North Americans, then why has neither the U.S. nor Canada submitted to the jurisdiction of the Inter-American Court of Human Rights? That will be the subject of the third and last of these reports.