Restitution of the side event held online on April, 21st 2023 on the occasion of the 22nd session of the United Nations Permanent Forum on Indigenous Issues.

TRANSITIONAL JUSTICE AS A MEANS OF REAFFIRMING THE RIGHTS OF INDIGENOUS PEOPLES?

This meeting was organised as part of the 22nd session of the United Nations Permanent Forum on the Rights of Indigenous Peoples, held from 17 to 28 April 2023.

This online webinar enabled the participation of indigenous experts and authorities who were not in New York during the session.

This forum for dialogue between indigenous representatives and transitional justice specialists was organised by Leslie Cloud and Laetitia Braconnier Moreno. The video in French of this meeting is available on the website of the CNRS Normandy Chair of Excellence for Peace.

This webinar follows an initial mission carried out in Santiago de Chile in November 2022 by Emilie Gaillard and Leslie Cloud as part of the UNPFII’s first international meeting of experts on transitional justice and indigenous peoples, chaired by Darío Mejía Montalvo of the Zenú people, President of the UNPFII. A report on this international meeting and the resulting report are available on the Chair’s website.

1. First panel with the director of the IJFD and indigenous representatives from Burundi and Mali

Magalie Besse, a doctor of public law and director of the Francophone Institute for Justice and Democracy (Institut Francophone pour la Justice et la Démocratie) (IFJD), an organisation specialising in transitional justice and democratisation issues, presented the activities carried out by the IFJD’s research, training and action departments, in this case in the area of indigenous peoples and participation. As Ms Besse pointed out, in the field of transitional justice, the aim is to remove the barriers that prevent indigenous peoples from gaining access to transitional justice and democratisation processes, and also to introduce indigenous peoples to these issues.

She then presented the work carried out by the IFJD in the Central African Republic to support the members of the Central African Republic’s Truth and Reconciliation Commission (CVRR) in addressing the violence committed against the Ba’aka people. These activities are part of a wider programme of action by the IFJD’s office in the Central African Republic, which provides support for the CVRR, accompaniment for women victims of sexual violence and a programme for the indigenous peoples of the Central African Republic, currently focused on the situation of the Ba’aka. In this respect, an IFJD study was carried out in 2021 in CAR, mainly in the province of Lobaye, with the support of the local organisation Pygmy Children’s and Women’s Home (La Maison de l’enfant et de la femme pygmée), to investigate the violence suffered by the Ba’aka during the crisis of 2013, 2014 and 2015, gather their expectations in terms of justice, their desire to participate in the transitional justice process underway and identify the reparations sought. The information gathered from the Ba’aka victims made it possible to raise the awareness of the members of the CVRR about their situation during the crisis and today, about the need to ensure their participation in the transitional justice process and to put in place specific reparations and guarantees of reparation that are culturally appropriate and correspond to their needs. These field surveys also made it possible to confirm the serious economic and social situation (lack of access to health, food and education) and the daily violence in which the Ba’aka still find themselves today, and which is also an obstacle to their participation in transitional justice.

The IFJD has made initial recommendations of a humanitarian nature, calling on NGOs working in the fields of health, food and education to support the Ba’aka victims. As Magalie Besse pointed out, access to transitional justice depends on the urgent need for victims to regain their dignity.

Magalie Besse then referred to the exploratory process currently being conducted as part of the « French Guiana » project on Indian homes. The Indian homes were Catholic boarding schools with which the State had contracted to place indigenous and Bushinengue children. The Indian residential schools caused considerable damage to the children, in particular by creating a break between the children and their families and preventing the transmission of their identity, culture, know-how, way of life, etc. This situation has never been remedied, and remains complex and unresolved to this day for young indigenous and Bushinengue people who do not live in the big cities.

The current exploratory process aims to identify the relevance of setting up a truth commission, but also its nature, i.e. a CVR created by the State or carried out by non-state actors if the State refuses, in order to account for the Truth, obtain Reparations and put in place Guarantees of non-repetition.

Aminata Diallo: indigenous child soldiers and transitional justice in Mali.

The following presentation on the challenges of transitional justice in Mali in the context of indigenous child soldiers was given by Aminata Diallo, a Tuareg and Fulani researcher from Mali and a member of the Ărramăt project and the tinhinane association.

She recalled that although a number of peace agreements have been signed in Mali, including the Algiers Agreements signed in 2015, the conflict persists and is moving from the north of Mali to the centre of the country. The Algiers Agreements focus on four areas: institutional policies, security and defence; economic, social and cultural development; truth, justice and reconciliation; and humanitarian issues.

She pointed out that indigenous peoples in Mali are severely affected by the violence in the areas where they live. After the terrorist attacks in 2012, the phenomenon of child soldiers came to light in Mali. While it is estimated that 40% of child soldiers are found in Africa, in Mali the majority come from indigenous peoples, whose rights are not recognised under Malian law. This raises the question of their role in the conflict and the means that can be mobilised in terms of transitional justice to put an end to the situation of indigenous child soldiers, restore their rights and preserve their identity and culture threatened by the conflict, which has imposed a culture of arms on indigenous cultures.

In this context, her study, based on field research carried out in Kidal, Timbuktu, Gao, Mopti, Menaka and the capital, looks at the role of these child soldiers, the impact of their participation in the conflict and of the conflict itself on their communities, and the issues and challenges of transitional justice for indigenous child soldiers in Mali. Her study identified a link between the situation of child soldiers and the growing insecurity in Mali. It also confirmed the failure of Mali’s traditional justice system to ensure the participation of indigenous peoples in the peace agreements and to take account of the specific situation of indigenous child soldiers, who in particular are not the subject of specific reintegration policies. Currently, this delicate and necessary mission is managed without specificity by the DDR programme (disarmament-demobilisation-reintegration), which is however intended for adults, and by the Transit and Orientation Centres (CTO) for minors (not specific to child soldiers), which also suffer from precarious funding.

She also reiterated the importance of setting up infrastructures for indigenous children and peoples in the fields of education, health and access to development, and of training indigenous peoples in their rights.

In response to the questions raised in her presentation, she called for support for research into the situation of indigenous child soldiers, for media coverage of these issues and for further reflection on the reintegration of indigenous child soldiers into their families, communities and Malian society.

To complete this presentation, we recommend reading the text of his speech at the November 2022 UN expert meeting on Transitional Justice and Indigenous Peoples.

Vital Bambanze on the participation of the Batwa in transitional justice in Burundi

Following his presentation, Vital Bambanze took the floor to talk about the impact of the crises and violence suffered in Burundi by the Batwa and to discuss their place in the transitional justice process underway.

Vital Bambanze is Mutwa from Burundi, a member of the UN Permanent Forum on Indigenous Issues, a former senator from Burundi, a member of the Association Unissons nous pour la promotion des Batwa (Let’s unite for the promotion of Batwa people) (UNIPROBA), the Indigenous Peoples of Africa Coordinating Committee (IPACC) and the Central African Indigenous Peoples’ Network for Ecosystem Management (REPALCA). Referring to his own personal experience, he highlighted the many institutional barriers that prevent the Batwa people from gaining access to education, and said that he was the first Mutwa to gain access to university in Burundi, despite suffering severe discrimination.

He recalled that transitional justice must not only focus on the origins of the conflict, but must also identify the causes that prevent the most vulnerable groups, such as indigenous peoples, from enjoying their rights as citizens on an equal footing with other citizens. In this respect, he recalled the reluctance of African states to recognise the existence of indigenous peoples on their territories.

In Burundi, where a TRC came into operation in 2014 to investigate the violence that occurred between 1885 and 2008, the Batwa people, who represent only one per cent of the population, want to be involved in the transitional justice process underway and for investigations to be carried out into the consequences that the crises and conflicts have had on their population, particularly the economic impact of the crisis. In this respect, he explained that the Batwa people’s subsistence economy based on the sale of their pottery had been considerably altered by the conflict and by the provision of modern goods and cooking utensils to the victims, so that Batwa pottery was no longer sought after as it once was. He also points out that the Batwa people are unaware of the ins and outs of the conflicts and violence they have suffered, and that they have been taken to task by both the army and the rebel groups, who have recruited their people.

He therefore called for the creation of a Commission to represent all the peoples of Burundi and to rewrite the history of Burundi with the Batwa people in order to ensure their recognition and to decide together on the reparations and guarantees of non-repetition to be put in place.

At the end of this presentation, Magalie Besse recalled the issues of representation in the transitional justice bodies and the reflections that need to be made on the number of indigenous representatives, their quality and the way they are elected or appointed: Who is legitimate to represent the communities? She also stressed the distinction to be made between general TRCs and TRCs specialising in indigenous issues, such as those set up in Canada, Australia, the United States, Sweden and Norway, which deal specifically with violence suffered by indigenous peoples.

2.  Second panel with indigenous authorities from Colombia and Guatemala

During one of the sessions at the 2023 UNPFII, Colombia’s ambassador to the United Nations, Eleonor Zalabata, an Arhuaca woman, described the UNPFII as a forum for recognition and historical reparation. Echoing this statement, the following questions were put to the three guests on this second panel: What historical reparation mechanisms would be appropriate? To what extent can transitional justice mechanisms strengthen the territorial rights of indigenous peoples?

The war and the context of the conflict have opened up great opportunities for the business sector, which now benefits from these industrial processes (Amilcar Pop)

The first speaker, Amílcar Pop, a lawyer for the Maya Q’eqchi’ people, is a member of the Congress of the Republic of Guatemala and the Central American Parliament, where he chairs the Commission on Indigenous and Afro-descendant Peoples. He has been a university lecturer and is President of the Mayan Lawyers Association. As an activist lawyer, he has appeared before the Inter-American Court of Human Rights, where he has defended the rights of indigenous peoples to land and territory. He recalled that the armed conflict caused more than 250,000 victims, 50,000 of whom are still missing.

On the characteristics of the conflict, later described as genocide by the Guatemalan Constitutional Court (Corte de constitucionalidad), he explained that « historical circumstances and reality show us that this was not so much an ideological conflict as a mechanism for appropriating indigenous territories ». Today, these territories are affected by « major conflicts over mining exploration and exploitation, the construction of hydroelectric power stations and oil exploitation ».

In 1996, the Peace Accords were signed with little indigenous participation. These agreements, which provide for the protection of the collective rights of indigenous peoples, were confronted by three sectors of the population: « the white and racist business sector, the military sector, which wishes to remain unpunished, and the political sector, with its radical thinking opposed to human rights and historical memory ».

As a result of these agreements, an agrarian jurisdiction to resolve historical conflicts over land, a presidential commission against racism and an indigenous development fund have emerged. However, Mr Amilcar Pop warned of the critical situation facing these institutions, which were set up to resolve certain conflicts. Their gradual weakening and recent abolition have caused serious harm, including the isolation of many peoples, attacks on transitional justice and food sovereignty.

According to the MP, indigenous peoples are facing a situation of impunity similar to that experienced after the conflict, marked in particular by the expulsion of key players in the fight against impunity or their exile from the country, as illustrated by the emblematic expulsion in August 2022 of Iván Velásquez, who headed the International Commission on Impunity. This persecution is compounded by a process of criminalisation of indigenous leaders. In this regard, the deputy referred to the issue of more than 540 arrest warrants against them.

« Indigenous peoples’ approach to damage, to the seriousness of the facts, is distinct. It emerges from feeling, from the way of thinking, doing and understanding life in differentiated terms. » (Belkis Izquierdo)

The floor was then given to Magistrate Belkis Izquierdo, an indigenous woman from the Arhuaco people, the first indigenous woman to be appointed to a high court of justice. Since the inception of the Special Jurisdiction for Peace, following the 2016 Peace Agreement, she has been a magistrate in the Truth Recognition Room and Vice-President of the tribunal.

After referring to the « serious, widespread and lasting damage » suffered by Colombia’s ethnic peoples, she stressed that they had helped to build « lasting peace, progress and the country’s economic and social development ».

She set out the various means introduced to restore the rights of peoples as part of the peace process initiated in Colombia, which has led to the trial of FARC guerrilla leaders and military commanders who have committed crimes against humanity. She also recalled that the mechanisms and procedures of the Special Jurisdiction for Peace must follow an ethnic-racial approach, and that its internal rules and normative framework had been the subject of consultations with indigenous peoples. She explained that this was the first time that transitional justice instruments had been the subject of consultation with ethnic peoples.

She also stressed the need to adopt a new approach with indigenous peoples so that they are no longer perceived solely as victims by the justice system, and are recognised as full participants in the peace process. She noted the valuable role played by the eight indigenous and Afro-Colombian judges of the JEP in reporting on the justice systems of the various indigenous peoples. She also spoke of the need to establish an equal relationship between indigenous and Afro-Colombian judges and their colleagues. The Arhuaca magistrate pointed out that in cases where the accused and/or the victims invoke ethnicity, the indigenous and Afro-Colombian authorities of their territories of origin are invited to take part in the hearings as special interveners « to defend the cultural, ancestral and territorial order ».

According to the judge, ordinary law’s lack of awareness of the legal assets protected by indigenous justice systems is the result of strong discrimination, both epistemological and with regard to the sources of indigenous peoples’ right to transitional justice. In such a context, the contributions of indigenous peoples are limited to discourse and logistics, without enabling the substantial transformations necessary for the reparation and reconciliation expected by the victims.

She also emphasised the sensitive role of the territorial authorities of the peoples and ethnic judges in understanding the situations of imbalance experienced by these peoples. In this respect, she made special reference to assets that are not usually protected by ordinary law, such as territory and nature. She thus invites us to stop putting the human at the centre, to think about how to repair the territory, sacred, cultural and civil goods, and to return to indigenous justice systems as sources of transitional justice: She emphasises that « they should take into account the principles, rationalities and logics of their justice systems aimed at seeking the truth from the point of view of conscience, reconciliation, healing and harmonisation between victims and the accused, which will strengthen the community process, as well as the harmonisation of the territory ».

To complete this report, we recommend reading the text of her speech.

“As long as the laws are contrary to the manifestations of nature, we don’t have to obey them” (Ariel Hormiga)

Finally, in order to give an account of a vision of transitional justice from the territories, we spoke to Ariel Hormiga, who presents himself as the liberator of the Mother Earth of the Nasa People. He took part in the meeting from a territory in northern Cauca in Colombia, a territory currently in conflict between armed groups. During the meeting, Ariel Hormiga had to deal with an emergency situation that he was unable to comment on for security reasons. This situation led to connection problems during the discussion.

Ariel Hormiga explained that in the face of territorial conflicts that undermine the cosmovisions of indigenous peoples, the Guardia Indígena is working to recover the lands that ancestrally belonged to indigenous peoples. Once the spiritual and cultural work has been completed, the freed-up lands are reinvested by the indigenous peoples so that they can organise their own « life plans », their own socio-economic organisation: « our ways of life go beyond what we now call human rights, which are so much called into question by the institutions. Our life plans are above traditional humanism and above policies that are already obsolete ».

Asked about the principles underpinning indigenous law, he stressed the importance of selecting and cultivating the seeds, while referring to the principle of integrity, which makes it possible to be more combative in order to « keep dignity alive », and the principle of spirituality, which was undermined by colonial ideology.

At the end of the meeting, the guests recommended considering transitional justice from an intercultural approach and from the experience of the territories. In this respect, Amilcar Pop emphasised the crisis that Guatemala’s judicial institutions are currently going through. He denounced the seriousness of the abolition of indigenous institutions, which he linked to the delay in implementing agrarian jurisdiction.

Magistrate Belkis Izquierdo also insisted on the need to take into account the legal consequences of all the damage suffered by indigenous peoples so that the victims and the territory can benefit from culturally appropriate reparations.

In response to the question as to whether it is the responsibility of indigenous justice systems to find solutions to the damage caused by external actors on their territories, it was pointed out that indigenous peoples are not responsible for the extraction of natural resources by private actors. On the contrary, they are the main victims of socio-environmental conflicts encouraged by armed conflicts.

« If they don’t listen to us as authorities when we have our own systems of justice, then we lose an opportunity » (Belkis Izquierdo)

The guests also emphasised the place of indigenous justice systems in transitional justice processes. The Arhuaca magistrate acknowledged that ethnic justice systems are other victims of the war, but insisted that they must not remain in the role of victim. The fact that they have been weakened by the conflict should not be used as an argument not to consider them as a source of justice for the YJP. In this respect, she defended the idea that recourse to indigenous justice systems not only provides solutions for repairing the damage suffered, but that it can also in itself constitute historical reparation for indigenous forms of organisation.

Finally, Magisrate Belkis Izquierdo and the Liberator of Mother Earth, Ariel Hormiga, stressed the importance of involving spiritual authorities and spiritual work in the processes of transitional justice and historical reparation. The religious aspect must be seriously taken into account when it comes to harmonising territories. With this in mind, the Arhuaca magistrate explained the need for the JEP to recognise the spiritual authorities so that they can take part in the hearings and be the voice of the territories.

The meeting ended with a thought for the indigenous organisations in French Guiana who are working to find out the truth about the colonial processes that caused serious harm to Amerindian children in the “Indian homes”.