Minerva, Fall 2011 - Citizens for Global Solutions

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proved worth the many years of struggle.This, for me, was transitional justice atwork. The experience tells us that to beeffective, any transitional justice systemwill need the active participation of IndigenousPeoples. It also demonstrates theimportance of real commitment by statesto address the issue. Indigenous Peoplesdid not establish the declaration on theirown, but with the active support of states.Transitional justice will only come ifstates are fully committed to creating aprocess with Indigenous Peoples’ full engagement,in a manner that meets theirneeds, and with outcomes that recognizeIndigenous histories and the legacy ofhistory.ïThe Big PictureINTERVIEW:Rodolfo StavenhagenJoanna RiceThis interview another part of the set ofarticles on “Indigenous Rights and TruthCommissions” in the Spring 2011 editionof Cultural Survival Quarterly.Other parts:• “The Reckoning”, by Fien Jaranggaand Galuh Wandita – about a truth commissionlaunched by a group of Papuanwomen to give support to victims ofviolence “both outside and inside theirhomes for the past 40 years” and to“pressure the government to change itsbehavior”;• “Indian Residential School Truth andReconciliation Commission of Canada”,by Joanna Rice – about the government’struth commission dealing with “100years [when] the Canadian governmentran a system of boarding schools specificallydesigned to destroy Indigenousculture and language, and they requiredall Native children to attend”;• “Homemade Justice”, by Esther Atteanand Jill Williams – about a group ofWabanaki women in Maine who have“launched their own truth commission toexplore the effects and implications ofthe state’s child welfare system, hopingto heal some of the damage, promotecultural decolonization, and change theway Native children are cared for” infoster care.Reprinted by permissionof Cultural Survival.Rodolfo Stavenhagen served as the UN Special Rapporteur on the Rights of IndigenousPeoples from 2001 to 2008, the first person to hold that office. He conducted rigorouson-the-ground investigations of violations of Indigenous rights in a dozen countries,interviewing victims and collecting hard data on government actions. He also issuedcomprehensive reports that made specific recommendations for changes, restitution,and reconciliation. Although different in form than a conventional truth commission,his work involved many of the same principles, and offers many of the same benefits.Joanna Rice, an associate at the International Center for Transitional Justice, interviewedhim in January [2011] to get his perspective on truth-seeking processes as toolsfor defending Indigenous rights.Joanna Rice: In your work as the Special Rapporteur, and in your many roles since,were you involved in the work of a truth commission or other truth-seeking processthat looked into violations of Indigenous rights? Could you describe the goals andimpacts of these processes?Rodolfo Stavenhagen: My work as the Special Rapporteur on the Rights of IndigenousPeoples included country visits that took the form of fact-finding missions. While I wasnot formally involved in truth commissions as such, I did receive a number of such reports(Canada, Guatemala, Chile), which I was able to use to prepare my reports to theHuman Rights Council. My country visits included extensive meetings and conversationswith government officials, judges, Indigenous Peoples, and individual membersof existing or former truth commissions or similar processes, as well as access to documentsreferring to various kinds of violations of Indigenous rights. The results of theseinquiries were summarized in my reports and enabled me to make specific recommendationsto governments and the UN system. Sometimes my communications withgovernment officials and with Indigenous organizations appeared as a form of publichearings, during which complaints were aired and facts were presented. But being aUN-mandated rapporteur, I always pointed out that I could not act as a judge but onlyas an objective observer who would transmit his findings to national authorities and theHuman Rights Council and General Assembly.In the years following the end of my UN mandate, I have undertaken some other factfindingmissions, invited by international nongovernmental organizations, to report onspecific situations involving human rights violations of Indigenous Peoples, for examplein Peru, Mexico, and Israel.JR: I’ve heard you liken the work of the UN Permanent Forum on Indigenous Issues toa truth commission with international scope. Would you explain that further?20 • Minerva #39 • November 2011
RS: The Permanent Forum and the formerWorking Group on Indigenous Populationsof the UN Human Rights Commissionboth provide opportunities toIndigenous Peoples to present their caseto an international human rights body.Although not structured as formal truthcommissions, these two spaces at the UNallow Indigenous Peoples from all overthe world to draw attention to their plight,and they also give state representativesthe opportunity to respond.These public dialogues in Geneva andNew York have helped heighten worldawareness of these issues, and their effortsresulted in the adoption of the UNDeclaration on the Rights of IndigenousPeoples in 2007. However, being internationalbodies, they cannot pursue particularcountry situations beyond a certainpoint, and therefore their specific impactis limited.JR: Where has transitional justice failedIndigenous rights? What can be adaptedin the way truth commissions, specifically,have been approached in the pastto make them better reflect the specificrights and goals of Indigenous groups?RS: Up to now, the work of truth commissionsfocused specifically on the rights ofIndigenous Peoples has not had, in myopinion, a particular impact on transitionaljustice for these peoples. In somecountries, an independent judiciary canconceivably follow up on recommendationsmade by such bodies, but progresshas been slow and piecemeal. For example,several years ago the Canadianfederal parliament carried out an extensivecommission of inquiry on the situationof Aboriginal people that presentedimportant findings and recommendationsthat were not immediately acted upon bythe federal authorities. Only years laterhas another commission of inquiry comeinto existence to deal with the outstandingissue of the victims of the Indigenousresidential schools. And Canada is, up toa point, a model of justice for IndigenousPeoples, when compared to other countriesin the world.JR: Does transitional justice reflect an Indigenousapproach to justice?RS: Yes, I think it does, although it isdifficult to obtain consensus around thispoint. Certainly the acknowledgement bya modern state of historical harm done toIndigenous Peoples is considered by Indigenousorganizations as a necessary stepto move forward. The next issue raises theproblem of reparations and compensation,which has become a very controversialpolitical issue in many countries, particularlywhen Indigenous territories are involved.Domestic judiciaries are usuallynot yet sufficiently prepared to deal withthese issues.JR: How can Indigenous Peoples find theterrain to start a process like a truth commissionwhen it seems there is no politicalwill to look at past and ongoing crimes?RS: It is easier for Indigenous Peoples toobtain access to a justice-seeking process,at least in Latin America, after a regimechange (such as the post-Pinochet-dictatorshipdemocratic transition in Chile)than in a state during a period of stablegovernance. Political will must be generated,and therefore a strong Indigenoussocial movement would be a plus to startsuch a process. When land ownership ispart of the problem, then strong privateeconomic interests make it very difficultfor Indigenous communities to obtainjustice, particularly when there has beenlittle or no progress in the passing of adequatelegislation.JR: No one has a broader and betterknowledge of the status of Indigenousrights globally than you do: Do you haveanything to add regarding the value andthe possible risks of truth-seeking effortsinvolving indigenous rights work?RS: Truth-seeking efforts must be firmlygrounded in political support nationwideand, if possible, in strong legislation. Themedia must help in getting widespreadpublic support for such efforts. Professionalassociations (lawyers, environmentalists,educationalists, anthropologists,etc.) must also be enlisted. Politicalparties must be persuaded to support suchefforts. Whenever possible, strategic litigationshould be undertaken to pave theway for further judicial involvement.International organizations (the UN, theInter-American system, the EuropeanUnion, the African Commission of Humanand Peoples Rights) must continueto work closely with Indigenous Peoplesand the international human rights organizations.A possible risk is that truth commissions,once established, have a relatively short“shelf-life” and can be used to distractpublic attention from more persistent involvementby legislatures, courts, executivetask forces, or political campaigns.The commissions themselves must includefollow-up procedures in their recommendations,including time-tables andevaluation processes.ïJames Anaya, now in his 2nd term (until May 2014) as Special Rapporteur on theRights of Indigenous Peoples, has released his annual report on communications withgovernments concerning 25 cases of specific violations of human rights of IndigenousPeoples in 15 countries — including, in some cases, detailed observations with specificrecommendations or descriptions of follow-up measures he has taken (Cultural Survival,2 September 2011). See page 59 for news of his later report to the UN.See also Minerva #30 (May 2006) for James Anaya’s essay on “The Current State ofInternational Law (& Indigenous Peoples)”.“Maori wisdom puts it best: He waka ekenoa – we are all in this canoe together,”Secretary-General Ban Ki-moon said atAuckland University in New Zealand on6 September, noting that there is no optoutclause for global problem-solving. “Inother words, we must unite and squarelyface the anxieties and the opportunities ofthe 21st century.”21 • Minerva #39 • November 2011
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