Demanding Justice and Security

Rachel Sieder

• Publisher: Rutgers University Press
• Year: 2017
• ISBN:
  9780813587943
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

Across Latin America, indigenous women are organizing to challenge racial, gender, and class discrimination through the courts. Collectively, by engaging with various forms of law, they are forging new definitions of what justice and security mean within their own contexts and struggles. They have challenged racism and the exclusion of indigenous people in national reforms, but also have challenged ‘bad customs’ and gender ideologies that exclude women within their own communities.
 
Featuring chapters on Bolivia, Colombia, Ecuador, Guatemala, and Mexico, the contributors to Demanding Justice and Security include both leading researchers and community activists. From Kichwa women in Ecuador lobbying for the inclusion of specific clauses in the national constitution that guarantee their rights to equality and protection within indigenous community law, to Me’phaa women from Guerrero, Mexico, battling to secure justice within the Inter-American Court of Human Rights for violations committed in the context of militarizing their home state, this book is a must-have for anyone who wants to understand the struggle of indigenous women in Latin America.
 

Part One

Gender and Justice

Mediating State Law and International Norms

1

Between Community Justice and International Litigation

The Case of Inés Fernández before the Inter-American Court

ROSALVA AÍDA HERNÁNDEZ CASTILLO

Based on an analysis of the case of Inés Fernández Ortega versus the Mexican state presented before the Inter-American Court of Human Rights (IACtHR), in this chapter I analyze the ways in which violence, racism, and gender inequalities affect the lives of Mexican indigenous women and determine their lack of access to justice. I also explore how Inés and the women in her organization appropriated human rights discourses and spaces of international justice as tools to denounce the violence, racism, and economic marginalization they and their communities face.

Human rights discourses are deployed in processes of resistance, but they are also being used as new forms of state control of social protest and can encourage neoliberal, individualized conceptions of the person. Here I analyze the complexities associated with processes whereby human rights discourses are vernacularized within a context of militarized violence and lack of access to justice. My research is based on collaborative workshops with Inés Fernández Ortega and women and men from her organization that formed part of the elaboration of an anthropological expert report presented to the IACtHR, together with ethnographic research within different national and international spaces for justice associated with the case.

Inés Fernández Ortega, a leader of the Organization of the Me-phaa Indigenous Peoples (OPIM) in Guerrero state, was raped by soldiers from the Mexican army. On March 22, 2002, eleven soldiers from the Forty-First Battalion arrived at Inés Fernández Ortega’s home, located in the Barranca de Tecuani community, part of the municipality of Ayutla de los Libres in the state of Guerrero, Mexico. Three of the soldiers entered the room that was being used as a kitchen without the consent of Inés, who at the moment was accompanied only by her four children, who were all under the age of eighteen. The soldiers asked questions in Spanish, which she couldn’t answer, after which one of them raped her. Two days after the incident the victim presented a formal allegation to the Attorney General’s Office (Ministerio Público of Ayutla de los Libres),¹ which determined that it was not the correct authority to investigate either the unauthorized and illegal entrance to Inés’s property or the rape, due to the fact that the accused parties were part of the Mexican army. In May 2002, the local authorities forwarded the case to the military authorities.

As I analyze in this chapter, Inés Fernández Ortega’s experience with the Attorney General (Ministerio Público) of Ayutla de los Libres and with the military authorities confirms a tendency towards triple discrimination within the Mexican legal system on the basis of class, race, and gender. She was denied the right to a translator and was examined by doctors who treated her with contempt and ended up “misplacing” the forensic tests they had conducted. After eight years trying to achieve justice in national courts, to no avail, she appealed to the inter-American human rights system.

The IACtHR became not just a space for the search for justice: throughout the lengthy litigation process, collective efforts coalesced and new leaderships were strengthened. Although repressive violence can often have a demobilizing effect, in this case the response was to strengthen local organization and particularly the leadership role of women, who have appropriated human rights discourses as tools for struggle. My analysis focuses on this double process of female victimization and personal reconstruction in the struggle for justice.

Appropriation of International Litigation by Women’s Struggles

As a legal anthropologist and a feminist, I face the dilemma of understanding statutory law as a cultural product of liberalism that must be critically analyzed, while simultaneously, as an activist, recognizing the possibilities it offers as a tool to build a fairer life for women. Feminist jurists and anthropologists have extensively analyzed the ways that power works through statutory law to reproduce the ethnocentric and patriarchal viewpoints that have hegemonized Western cultural imaginaries (see Engle Merry 1995; Facio 1992; Fineman and Thomadsen 1991; Hernández Castillo 2004). But they have also shown that in certain contexts law and state justice can be used by women to articulate different forms of resistance (Hirsch and Lazarus-Black 1994; Smart 1989; Sierra and Hernández 2005). In the case I discuss here, international justice had both a restorative effect on the lives of women who have been victims of sexual torture, and a political effect through denouncing gender violence by Mexican state security forces. It also played an important part in promoting legislative reforms in Mexico to limit military jurisdiction.

International law is increasingly becoming a last resort for Latin American women whose human rights are violated by representatives of their states (directly or through omission) and whose demands for justice go unresolved by their national justice systems. In many instances strategic litigation has served to challenge gender discrimination and obtain legislative changes in favor of women’s rights. For example, the case of Maria da Penha v. Brazil, presented to the IACtHR in 2006, resulted in the approval in that country of one of the most progressive laws on domestic violence anywhere in the region (known as the Maria da Penha Law; see MacDowell Santos 2007). Last, the case of González et al. v. Mexico, known as the Cotton Field case because the petition was lodged by the mothers of eight young women whose bodies were found in a cotton field in Ciudad Juárez, Chihuahua, is considered paradigmatic in strategic litigation in favor of women’s rights because of the resulting international acknowledgment of the structural causes of gender violence.²

While it is true that these paradigmatic cases tend to be positively evaluated by feminist organizations based on their impacts on gender jurisprudence and public policies, we know very little of the concrete effects of processes of denunciation on the women who have had the courage to confront state powers and take their cases beyond national borders. It was this concern that made me hesitate when I was first invited to participate as an expert witness before the IACtHR in the case of Inés Fernández Ortega. I was asked to present an anthropological expert witness report that could help to explain the community impact of sexual violence considering the indigenous cultural context in which the aggression took place. These expert witness reports, also known as anthropological affidavits, are elaborated by specialists and outline the cultural context of the defendant or the plaintiff in any given case. The main objective of these reports is to provide information to the judges on the importance of cultural differences in understanding a specific case.³ In Inés Fernández Ortega v. Mexico, we were required to analyze the impact of this sexual assault and the impunity surrounding the case on the community. We inquired specifically into how the cultural concepts of personhood, violence, and lack of justice influenced how the rape and the latter context of impunity were dealt with.

The Inter-American Commission on Human Rights and the legal representatives of Inés Fernández decided to invite me as an expert witness, taking into consideration my previous academic work on the intersection of indigenous collective rights and gender rights, and my advocacy for a gender agenda that considers the cultural diversity of women in Mexico. But I had many doubts: did she really want to take her case to that international court, or did the human rights organizations that supported her pressure her into “strategic litigation”?

It was with those questions in mind that in March 2009 I first arrived in Barranca Tequani, a Me’phaa community with a population of about five hundred inhabitants in the municipality of Ayutla de los Libres, in the state of Guerrero, where I met Inés Fernández Ortega, a small woman with a piercing look and an inner strength you can feel when she looks you in the eyes. She dispelled my fears, telling me, “I’m the one who wants to present the complaint so that justice is done, so the guachos [soldiers] know that they can’t get away with it, so my daughters and the girls in the community don’t have to go through what I did, so all the women in the region can walk in the mountains without being afraid.”⁴ Her conviction that the submission at the IACtHR was necessary not only for her but for all Me’phaa women made it clear to me that she was a very different community leader from many others I had met.

Inés’s legal representatives from the Tlachinollan Human Rights Center of the Mountain of Guerrero also put her needs and decisions at the forefront of their strategies. For the Human Rights Center the presentation of her case at the IACtHR was not an end in itself, but part of what they call an “integral defense of the person,” which places the victims of human rights violations, and not the litigation itself, at the center of their efforts. It was this political outlook on international litigation on the part of Tlachinollan, as well as Inés’s resolve to take her complaint outside the country, that convinced me to embark on the long voyage that took me in April 2010 to Lima, Peru, where I participated in the public hearing convened by the Inter-American Court. My role was to inform the judges of the content of the expert report I had elaborated together with the ethnologist Héctor Ortiz in the previous months, which formed part of the documentary evidence presented by Inés Fernández’s legal representatives.

One of the objectives of the expert testimony was to demonstrate that the sexual violence suffered by Inés had affected not only her and her family, but also the women of her community and her organization. The elaboration of the report brought me close to Inés and the women in the Organization of Me’phaa Indigenous Peoples (OPIM); I learned not only of their courage, but also of their collective solidarity and communal cohesion. I came to understand that the need for an expert opinion of this type was established not only by the legal representatives, but by Inés herself, who from the very beginning of the process insisted that her rape constituted part of a series of aggressions against her people and her organization, and that it therefore could not be treated in isolation. Her conviction forced her lawyers to argue in favor of community reparations for this case of individual rape, a legal strategy that had never been used before at the IACtHR. It was because of Inés Fernández’s steadfast decision to use the court as a space to denounce a whole chain of violence—of which her rape was just one link—that it was necessary to draft the anthropological expert report.

Searching for Justice at the Local Level

After her sexual assault Inés first resorted to her community assembly to ask for support in making a legal complaint, but the support of community authorities was conditional at best and was later withdrawn due to fear of army reprisals. She then went to the state Public Prosecutor’s Office (Ministerio Público), where the racism that permeates Mexico’s justice system became evident. In common with the situation in most of Mexico’s indigenous regions, the attorney general with jurisdiction over Ayutla de los Libres is a mixed-race government official, unfamiliar with the indigenous languages that are spoken in the region (Mepha’a, Tu’un sávi, or Mixteco) and does not have the support of a translator or an interpreter, which is why Inés requested the help of Obtilia Eugenio, a leader of OPIM, to present her allegation. In our interviews with Inés Fernández, she talks about the poor treatment and lack of interest on the part of the judicial authorities, the same authorities who determined that they could not take on the case, due to the fact that the accused parties were part of the Mexican army, which is why they decided to turn it over to the Military Attorney General (Ministerio Público Militar).

A number of studies in Mexico regarding indigenous women’s access to state justice have revealed the ways in which gender-discriminatory ideologies and a lack of cultural sensitivity on the part of those who administer justice have affected the relationship between this sector of the population and national law (see Hernández Castillo 2004, 2016; Sierra Camacho 2004). These studies demonstrate that systems of class, gender, and ethnic oppression are mutually constituted and have a direct effect on poor indigenous women’s lack of access to legal recourse. Afro-American feminists have proposed an intersectional theoretical approach as a means for analyzing how socially constructed categories of discrimination, such as class, gender, race/ethnicity, and generation, interact simultaneously, creating contexts of social inequality (see Crenshaw 1991; Hill Collins 1990). In this sense, Inés’s testimony allows us to access the privileged viewpoints of those who have experienced the multiple forms of oppression that characterize Mexican society as a whole.

The simultaneous interaction of these forms of exclusion became evident in the revictimization that Inés suffered when trying to gain recourse to the state legal system. The lack of knowledge of indigenous languages on the part of officials and the high level of monolingualism and illiteracy of the female indigenous population hinder their access to justice. Studies on access to justice indicate that Inés’s experience is the norm for indigenous men and women in the state justice system, even though the 2001 reform to article 2 of the Constitution establishes the right of access to a translator and anthropological expert opinion (see OACNUDH 2013). The requirement to provide interpreters is also established in the Federal Penal Code (CPF) and the Federal Code of Penal Procedures (CFPP), but the responsibility for determining what constitutes sufficient fluency in Spanish is left up to the Public Prosecutor (MP), which means that in practice the right to an interpreter depends on what the MP considers “sufficient.”

This violation of indigenous people’s linguistic and cultural rights is not only the product of a lack of staff and adequate training; it goes hand in hand with degrading and racist treatment by government employees, which in many ways reproduces the racial hierarchies that characterize Mexican society as a whole. In the case of indigenous women, the structural racism reproduced by state institutions is aggravated by gender discrimination, which often revictimizes them by treating cases of sexual violence with an insensibility that takes the form of symbolic violence. This was the case of the forensic doctor who first attempted to attest to the rape of Inés Fernández. When she requested that a female doctor examine her, he responded, “What difference does it make if a man examines you? It wasn’t women who raped you.”⁵

For ten years Inés traveled the roads of the Costa Chica region of Guerrero in pursuit of justice, suffering the racism and misogyny of government employ...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Preface
• Introduction. Demanding Justice and Security: Indigenous Women and Legal Pluralities in Latin America
• Part One. Gender and Justice: Mediating State Law and International Norms
• Part Two. Indigenous Autonomies and Struggles for Gender Justice
• Part Three. Women’s Alternatives in the Face of Racism and Dispossession
• Part Four. Methodological Perspectives
• Notes on Contributors
• Index