Human
Rights Council
Expert
Mechanism on the Rights of Indigenous Peoples
Sixth
session
United
Nations, Geneva, 8-12 July 2013
Agenda
item 5. Study on access to justice in the promotion and protection of the rights
of indigenous peoples.
Mr
Chairperson,
Access
to justice intersects with human rights in a number of ways. It is itself a
fundamental right as set out in Article 8 of the Universal Declaration of Human
Rights: “Everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the
constitution or by law.”. The right to justice for indigenous peoples and
individuals is also protected under international law, such as under
the International
Covenant on Civil and Political Rights (ICCPR),
the ILO Convention 169 and the Declaration on the rights of Indigenous peoples.
Nevertheless,
the historical and ongoing denial of the rights of indigenous peoples and the
growing imbalance and inequality affecting the enjoyment of their civil,
political, economic, social and cultural rights results in indigenous peoples
often being the victims of discrimination and racism in the administration of
justice.
States
should ensure that specific laws, such as modern anti-terrorist or intelligence
measures, are not used in such a way as to violate the human rights of
indigenous peoples and, in particular, that they are not used as a means of
intimidation in the context of legitimate civil protest or land claims. It is
also important to examine all cases relating to imprisoned indigenous human
rights defenders in which there is evidence that the trials were politically
motivated or procedurally defective.
Mr.
Chairperson, let us remind you a clear example of such injustices by citing the
case of Leonard Peltier, a worldwide recognized Indigenous Human Rights
Defender. As you may remember, this case was examined as an emblematic case at
the Expert Seminar on Indigenous Peoples and the Administration of Justice,
organized by the Office of the High Commissioner on Human Rights, in Madrid, in
november 2003.
Leonard
Peltier, a Lakota-Anishinabe, member of the American Indian Movement (AIM) is
still arbitrarily incarcerated in the United States after 38
years
for a crime he did not commit. Mr. Peltier's personal testimony of the case is
recorded in the U.N. Commission on Human Rights' document
E/CN.4/1997/NGO/80.
In
1977, Mr. Peltier stood trial in the United States where he was denied due
process and access to justice in violation of the US Constitution and
international human rights standards. The trial judge made rulings that made a
proper defense impossible. Furthermore, this same judge consistently refused to
hear new evidence supporting Mr. Peltier’s innocence, thus skewing his avenues
for redress in a severely unfair manner.
We
note that for the last 27 years, the US government has consistently conceded
that they cannot prove who is guilty of the crime Mr. Peltier was originally
convicted for (see Peltier
v. Henman,
997 F.2 at 469). Moreover, the Appellate Court has found that Mr . Peltier might
have been acquitted had the FBI not improperly withheld evidence. Yet, a new
trial was never granted.
Mr.
Peltier is not, and has never been in prison to pay restitution for a crime.
Rather, he has been held in prison for vindictive and political reasons. His
incarceration and the Reign of terror by the FBI on the Pine Ridge Lakota
Reservation, from 1972 to 1976, have functioned as an overall method to silence
and inhibit indigenous peoples in the U.S. So far, all domestic remedies to
bring justice to Mr. Peltier and to the Lakota people who were victims of the
Reign of Terror in the 1970s, have been obstructed by US. Prosecutors and the
Federal Bureau of Investigation (FBI).
As
Nobel Peace Prize Laureate and UNESCO Goodwill Ambassador for the Culture of
Peace, Mrs. Rigoberta Menchu, so eloquently stated : « all over the world the
Peltier case is seen as an example of how the justice system deals with
Indigenous people – we have been subjected to an unjust justice.[...] We support
this cause as a paradigmatic instance of the need to resolve long-standing
injustices suffered by indigenous peoples. […] It is necessary to investigate
this case so that the truth can come forward, and so that a healing process for
the Indigenous community of North America can begin. We call for this as our
commitment to promote the accomplishment of universal justice ».
Special
Rapporteur, James Anaya, in his conclusions in his « Report on the situation of
indigenous peoples in the United States of America » (document A/HRC/21/47Add.1,
91.), arrived at the same recommendation : « Other measures of reconciliation
should include efforts to identify and heal particular sources of open wounds.
[…] New or renewed consideration should be given to clemency for Leonard
Peltier. »
Truth,
justice and reconciliation are needed between Indigenous Peoples and States
around the world as stated in the EMRIP study on « Access to justice in the
promotion and protection of the rights of Indigenous people ». Freedom for
Leonard Peltier, considered by many as the « indigenous peoples' Nelson
Mandela » would be an important step in this direction.
To
conclude, Mr. Chairperson, we commend the EMRIP study for addressing the theme
of justice for Indigenous peoples as it is key to enabling them to fully enjoy
the benefits of domestic and international laws.
Access to justice is the guarantee to avoid discrimination and racism against
Indigenous peoples. It is also a way to affirm the right of self-determination
for Indigenous peoples under international law.
We
recommend EMRIP add to the study a paragraph refering to the legal protection of
indigenous human rights defenders, such as Leonard Peltier and many others. We
also invite the EMRIP to include the subject of « Access to justice in the
promotion and protection of the rights of indigenous people » as a permanent
item on its agenda.
We
would also like to recommend that EMRIP consider proposing a mechanism under the
Permanent Forum for the Rights of Indigenous Peoples to act as third party in
the truth and reconciliation commissions related to Indigenous peoples' issues.
Thank
you, Mr. Chairperson.