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An individual case or collecive case: Choosing a case for liigaion is an important moment where the case is
measured against the chance of fulilling the objecives you wish to achieve. Demonstraing muliple discriminaion sufered by indigenous women requires
making visible the diferent facets of the case but it is also fundamental to assess its potenial for successful prosecuion. Demonstraing muliple
discriminaion deinitely falls into the category of strategic liigaion, which seeks to bring about social change through jurisprudence and through the
creaion or modiicaion of public policy in this area. Unil now, the complex reality of indigenous women has not been fully
relected in case law or public policy. Usually, cases involving indigenous women are addressed only from a gender perspecive and not from the
perspecive of indigenous peoples. Indigenous peoples do not always take into account women’s reality. It is therefore important to show that it is possible
and fundamental to link both perspecives. Strategic liigaion can be brought via an individual case but also through a
collecive case, whether for the prosecuion of a public policy or a community situaion which paricularly afects women. An individual case can weigh
heavily on the shoulders of the vicim and since the judicial process is diicult and long, can place the vicim in situaions of high emoional and spiritual
risk. A community case or the prosecuion of a public policy is less risky individually but demands a level of staisical and comparaive evidence in a
world where data on indigenous women is virtually nonexistent. However, as part of this project, the team in Jujuy built a database with informaion speciic
to indigenous women, paying special atenion to the situaion of indigenous women in the sphere of educaion, an essenial tool to inluence public policy.
B. Documentation and interview process
Documentaion implies a long process requiring innovaive thinking, from the irst checks to see whether a case can be brought to jusice, to the construcion
of both individual and contextual evidence. Documentaion guided by the conceptual framework and indigenous principles:
It is important that the conceptual framework and indigenous principles described above are relected in the search for informaion and evidence from
the beginning of the documentaion process. In fact, the quesions asked and
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the collecion of informaion must necessarily seek to include data related to the collecive rights of indigenous people to which the afected woman or
women belong, about their worldview in general but especially from a human rights perspecive and a women’s perspecive, taking into account the history
of oppression and its relaion to paterns of systemic discriminaion. Building the content of rights that have been violated:
Throughout the process we found that the impact of colonizaion and andocentric dominaion in our socieies has also impacted on the content
of many of the rights recognized in naional consituions and internaional treaies, which have excluded the reality and vision of indigenous women and
their peoples. For that reason, we learned that during the documentaion
process it is essenial to use as a staring point the quesion of whether the content of violated rights relects the reality and vision of indigenous women,
and that if it is not so, it is necessary to construct this content according to its meaning for them.
We achieved this by holding workshops to give indigenous women a chance
Skype discussion between Mexican indigenous women and a IACHR lawyer in Washington
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to relect on the scope of rights as they are described in norms and legal instruments and to idenify elements to incorporate in order to relect their
lives and in paricular the speciic discriminaion they face.
12
Making the efort to outline the content of rights for indigenous women from their perspecive, allows us to be clear about the elements which must
be documented and included as evidence. For example, when trying to give content to the right to a life without violence, Colombian indigenous women
emphasized the importance of including spiritual violence as causing them harm, in addiion to psychological, physical or sexual violence, and this is absent
in instruments such as the Convenion of Belém do Pará. Spiritual violence is related to, among other things, damage to, militarizaion of, or destrucion of
sacred sites, making funerals or other rituals impossible. If we want to argue the existence of such violence and the need to take it into account, it is essenial
to understand the diferent ways in which it manifests itself and document all these aspects.
In Mexico the same exercise was carried out, enabling the team to verify whether the content of the right to health for indigenous women was a
comprehensive concept, not only limited to the health of the body itself. The term “wellbeing” is relected in the Declaraion of Cajamarca on the health of
indigenous peoples, as “the ability for the harmonious coexistence of all the elements which consitute inner peace for men and women in relaion to other
beings, spirits and deiies”. Ater understanding whether a paricular right includes content in line with
indigenous women’s perspecives, an exercise can be undertaken to see how this is relected or not in naional and internaional human rights law,
by breaking down the component elements of the paricular right see the exercise on the right to educaion presented to the Inter-American Commission
on Human Rights in the text box below.
12 We can cite the example of the right to private property, protected in Aricle 21 of the
American Convenion on Human Rights, in relaion to the decision of the Inter-American Court in the case of Awas Tingni against Nicaragua in 2001. This Nicaraguan indigenous community
whose territory had been granted in part to a Taiwanese company claimed that this had violated their right to private property in their territory. Since this ruling, the right to private property
for indigenous peoples is understood as the collecive or community ownership they have over their lands or territories. Speciic content has been given to the right to private property under
the indigenous worldview in the coninent. Inter-American Court of Human Rights, Case of the Mayagna Sumo Awas Tingni vs Nicaragua, Sentence of 31 August 2001: htp:www.corteidh.
or.crdocsariculosseriec_79_ing.pdf
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Example of the Right to Education, in relation to the situation identified in Argentina
13
Every indigenous woman is enitled to good quality educaion that is consistent with her culture, worldview and spirituality, that respects her
role in transmiing culture and values her contribuion to her community and people. She has the right to an educaion in a physically and spiritually
safe environment, with guarantees and efecive protecion against violence. These educaional services must be:
Accessible:
• Without endangering her physical, emoional, spiritual and community
integrity as a woman and an indigenous person •
Taking into account in the locaion of educaional services, the importance of the relaionship of an indigenous woman with her community
• Without barriers related to economic or geographical factors, or because
of threats and risks or otherwise
Without discriminaion:
• Culturally appropriate
• Taking into account the schedules and cycles of indigenous women
• In the language of the people to which she belongs
• Relecing the history, worldview and wisdom of her people and its elders
• Respecing her cultural role, with respect for reciprocity and duality
Gender sensiive from the outset, with regards to the principles of duality man woman, person community:
• Taking into account the tradiional roles assigned to indigenous women
and ofering tools to rethink them and build equitable relaionships between women and men
• Taking into account her role in reproducion
• Adoping airmaive measures to ensure the right of women and girls to
lives free from violence
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• Promoing processes for relecion on the paterns and stereotypes that
have led to her subordinaion and afected her rights
Respecing the Community insituions of her people:
• With the paricipaion of the community authoriies in the design of the
curriculum •
With the paricipaion or control of the authoriies recognized by indigenous peoples themselves, in the management of educaional
insituions •
Taking into account the history of assimilaion and the situaion of poverty in which indigenous communiies live
• Respecing indigenous educaional insituions
• Promoing the reappropriaion of methodologies, and ancestral teaching
pedagogies
Quality:
• Making scieniic and technological knowledge available to indigenous
women •
In accordance with the highest standards of training and performance of administraive and teaching staf, via training and awareness on the rights
of women, children and the indigenous peoples they belong to, subject to controls regarding respect for such rights
• Equal to the educaion given to the rest of the populaion while respecing
indigenous peoples’ cultural paricularity
13 “ Informe sobre discriminación contra las mujeres indígenas en las Américas, Report on discriminaion against indigenous women in the Americas, hearing during the 144th ordi-
nary period of sessions of the Inter-American Commission on Human Rights “ p.37-38
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Conideniality: Documentaion processes have diferent emphases, depending on whether the
type of case we want to bring to jusice, is individual or collecive. Individual cases will focus on a personal situaion of discriminaion and human rights
violaion, while collecive cases will focus on the community to contextualize or analyze a discriminatory policy. In both cases these must be related to
indigenous women, who may face risks, and this therefore involves relecing on the conideniality of some data.
Working with indigenous women means working with their communiies and their authoriies. Generally, indigenous communal cultures greatly value
public discussion. There may be a conlict between the requirements of conideniality in a case, the need to protect the afected women and the need
to inform the community, especially if we want to gain protecion or support
from the community. There are no universal rules but we have to engage in dialogue with both the afected women and with the community authoriies,
explaining the requirements and purpose of the protecion of conidenial data and assessing what needs to be handled conidenially and what can be
shared .
Re-vicimizaion: Re-vicimizaion is the impact on afected women, in addiion to the original
violaion against her; sufered during the documentaion, reporing or prosecuion stage, due to the women’s exposure to new hosile situaions
or causing them to sufer again. We generally talk of re-vicimizaion in court when a vicim is forced to relive painful situaions without receiving emoional
support or preparaion. However re-vicimizaion may arise in all stages of the jusice process from the iniial documentaion stage.
The historic oppression and colonizaion of indigenous women and their peoples has had an inluence on their percepion and feelings. We have to take
into account and not repeat situaions that could be interpreted as new forms of oppression and aggression. Women have been discriminated against or seen
as folkloric elements and not as lesh and blood human beings who are fully- conscious leaders of their own lives.
One iniial way to avoid re-vicimizaion, is to engage in community awareness-
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raising aciviies to strengthen self-esteem. This is achieved by creaing spaces where the afected women can talk without feeling judged or excluded, as a
irst step towards the creaion of favourable condiions for their empowerment. The awareness-raising process will open unhealed wounds or problems
will arise or impacts which have not been dealt with, and we must have alternaives for psychosocial support or atenion to this renewed sufering.
The experience in Jujuy, as menioned above, shows that it is possible to use elements of spiritual healing as a strategy not only for psychosocial support,
but also for reconstrucing and re-valuing the lives of women in relaion to all that surrounds them.
Empowerment is crucial because as already menioned above, indigenous women oten do not report incidents for fear of being re-vicimized, confronted
with a system that oten despises and humiliates them and use codes that they do not understand. That which was noted in the documentaion secion of this
paper, is also valid to avoid re-vicimizaion at the liigaion stage, since this is a coninuous process and an ongoing individual and collecive relaionship.
This applies both to individual cases and when collecing informaion to show the discriminatory efect of a public policy. We can look for psychosocial care
opions within indigenous pracices, especially in spiritual pracices, and via intercultural mechanisms such as healthcare, legal or psychological services.
It is important to create alliances with these services so that they accompany the process.
When tesimonies are collected and we have the elements for a possible case, we must also start thinking and providing alternaives against re-vicimizaion,
by encouraging and helping the afected women to make a legal complaint and then supporing her throughout the process.
Free, prior and informed consent: During both the documentaion and liigaion stages it is imperaive to ensure
free, prior and informed consent. While this concept is applied individually before medical procedures and also collecively in the case of economic
development projects in indigenous territories, it is also relevant in the case of legal or analyical work with indigenous women.
For consent to be informed it is essenial to build a process with community members, and to prioriize decision-making by the vicims, who must know
what is meant by paricipaion in the documentaion process, by a complaints
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procedure or by legal proceedings in a court. First they must be fully aware of the rights that have been violated; that is why the awareness-raising phase is
so important. Ater this all the relevant informaion must be provided in an accessible way in their own language. They must know the implicaions of and
the actual extent of all the stages and phases which they will be part of and must be accompanied throughout both individually and at the community
level. This can be veriied by designing speciic indicators. Vicims must have access to all the informaion gathered during the process and it is important to
have a record of the process so that it can always be referred to.
To be truly free, consent must always be revocable. The obligaions of consent
do not end once the vicims have given their agreement to undertake legal proceedings. We have to check for each decision made.
It is also important to strengthen the afected woman or women and their communiies, using a variety of diferent approaches, so they can deal
directly with the jusice system, and know the steps they are undertaking. The afected woman or women need to know what evidence will be submited
during the trial, and must be given opportuniies for preparatory role-play, psychosocial support mechanisms, interpreters who understand and can
translate comprehensibly, and they must know the possible outcomes of the legal process.
The principle of reciprocity in the documentaion process: We must ensure that the framework for all stages of our work, but even
more so during the stage of documentaion, is based on the life principles of indigenous peoples, including reciprocity and duality, that is to say, treaing
the other person as we would like to be treated and therefore not treaing potenial witnesses as mere reporters, but rather as part of a dual relaionship.
In this way the person vicim or afected person will understand the process, and will place importance on their role, in line with their individual and above
all community values. During the documentaion stage, women must not only be used as bearers of
informaion; indigenous peoples’ principle of reciprocity must be respected, which involves giving and receiving; that is to say, ensuring that whoever
ofers elements for the documentaion of discriminaion also obtains useful informaion, training, support or atenion to their problems.
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Cultural and gender appropriateness of the mechanisms used in the documentaion stage:
During the documentaion process itself; it is important to decide what will be the appropriate elements, devices, andor mechanisms to record the
informaion, such as the quesions for writen or oral interviews or whether a camera or camcorder is invasive or not. This calls for an adaptaion of tradiional
methods in line with indigenous principles, and with their cultural and gender speciiciies.
Documentaion is crucial because it provides the basis to build the case for liigaion. There are two main requirements for documentaion, namely the
focus and the relaionship with the afected women. The approach must include a gender and indigenous perspecive, both in relaion to tradiional
indigenous law and to collecive rights recognized in internaional human rights law. The speciic content that indigenous women give to these rights must also
be included, so that they are not reduced to their western understanding. Relaionships with afected women, either during their own individual cases
or when they are acing as witnesses showing the damages caused by public policies, require conideniality; non re-vicimizaion; psychosocial support;
free, prior and informed consent; and above all must be culturally coherent. The process is closely linked with its content and in this case the ability to
produce or collect relevant informaion from indigenous women’s perspecive.
Ecuadorian women paricipaing in the Naional Assembly of Indigenous Women of Colombia
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C. Building evidence of discrimination
