The absence of a differentiated focus based on ethnicity in the peace agreements signed between the Colombian government and the FARC guerrilla has caused discontent among indigenous and Afro-Colombian peoples, as well as grassroots organizations. This discomfort has grown with the prosecution of Feliciano Valencia, an indigenous leader who faces criminal charges for kidnapping because, along with other authorities of the indigenous guard of his community, applied a punishment within their justice system to a soldier of the national army that infiltrated their guard. In a Minga, they decided to condemn the soldier to 20 lashes a bath with medicinal plants, for having disturbed the peace in their land.
This discussion requires us to return to the principle of autonomy of peoples and their normative hierarchy, including in transitional contexts. The principle of autonomy of peoples or ethnic groups as a manifestation of the right to self-determination, has been interpreted several decades ago as a binding obligation on States. However, the autonomy of peoples continues to be object to many criticisms that privilege Western systems of government and justice, even within States that have ratified international instruments that consecrate this principle as a mandate.
There are several notable examples of autonomous practices of ethnic groups, which have obtained broad application and acceptance within the corresponding State. The government of Botswana, for example, has regulated the activity of traditional leaders from different communities through the ‘Chieftainship Act’, which recognizes their authorities as collective leaders, and even assigns them administrative functions and budgetary responsibilities, given their role as representative authorities of their communities. Additionally, The Waitangi Tribunal, in New Zealand has been verifying and litigating compliance of the Waitangi Treaty, signed between the Maori and the British Crown in 1840. Based on this treaty, the Maori people have promoted measures such as that adopted in August of 2012, with the elaboration of a report regarding the State of New Zealand, which recommended the suspension of the Maori’s water sources by a company that had obtained a State concession, until a formula was established to mediate the rights of the Maori people. The State accepted the recommendation.
However, these generous examples do not represent a generalized practice, at least in the context of agreements to end internal armed conflict. There are very few known cases of ethnically differentiated peoples whose right to autonomy has been respected in the framework of peace agreements or post-peace agreements. The right to autonomy of ethnic groups seems to have resonated more in events in which separation is the principle motive for the conflict. For example, we can recall the cases of Bosnia, Kosovo, and the less conflictive case of Aland in Finland.
In many cases, ethnic groups’ ways of creating and maintaining peace have been officially displaced by general agreements, which the State signs within the legal framework and ontology of the dominant society. It is worth remember, to this end, cases such as El Salvador, Guatemala, South Africa, and Rwanda, countries in which a large portion of the victims, or the population, in the latter case, belonged to ethnic groups.
For example, in Rwanda, an International Criminal Tribunal was formed, based on a resolution of the UN Security Council, which only have way to Gacaca, as a system of traditional justice, when the prisons were overflowing with hundreds of thousands of people awaiting trial, and the system could not cope with these numbers. Through Gacaca, a judge led by traditional judges elected by the community, more than 1 million people were tried as a result of trials specifically focused on divulging the truth and promoting reconciliation, more than setting a punishment. In fact, the United Nations has recognized that “the courts gave lower sentences if the person was repentant and sought reconciliation with the community. Often, confessed prisoners returned home without further penalty or received community service orders.” At the same time, the United Nations determined that “the Gacaca trials also served to promote reconciliation by providing a means for victims to learn the truth about the death of their family members and relatives. They also gave perpetrators the opportunity to confess their crimes, show remorse and ask for forgiveness in front of their community.”
By contrast, by December, 2012, the ICTR had only completed the trial phase, and in March 2014, 12 cases were still in the appeals stage. According to the UN, the balance of its functioning was the following: of 92 people accused of genocide, crimes against humanity and war crimes, 49 were declared guilty and sanctioned; 2 cases were withdrawn; 10 were sent to national jurisdictions (2 to France and 8 to Rwanda); two defendants died before the finalization of their cases, and 14 were acquitted.”
Some international organizations have questioned “the extrajudicial nature of the Gacaca, and has questioned whether judges with no legal or human rights training can withstand the political pressure to impose retributive sentences.” Even within the country its functioning was questioned, due to the high level of corruption on the part of some judges and violence against witnesses.
Nonetheless, many of these questions suppose that the only valid, legitimate, and effective forms of trials should be based on standards elaborated in Western societies. And, additionally, that Western forms of justice are not susceptible to mistakes, as are traditional forms of justice: corruption, reprisals, violations of the principle of legality, etc.
Of course, the State of Rwanda, and more generally States that are internationally bound to follow human rights and humanitarian norms, are required to ensure their compliance through adequate judicial means that guarantee the rights of victims. But autonomy and self-governance of ethnically differentiated peoples are also international legal principles. These principles mean that each ethnic group freely and voluntarily chooses the ways in which it attempts to seek justice, peace, and reconciliation. A fair ponderation of all the relevant principles at play should start from the recognition that self-determination of ethnic groups is also mandatory.
* Sara Milena Ferrer Valencia is a researcher at the Center for the Study of Law, Justice, and Society (Dejusticia).