Torture, identity, and indigenous peoples: individual and collective rights.

• Author: Birch, Marcheta L.
• Position: Torture: Paradigms, Practices, and Policies

Marginalization and identity come to the forefront when we consider the plight of indigenous peoples as targets of torture. In general, indigenous peoples were and still are the first to be marginalized when issues of an essentially political nature--who gets what--arose. This resultant push to the periphery and the attendant silencing and dehumanizing exacerbates the perception by those in positions of political power that indigenous peoples are expendable as individuals and communities. Therefore, when oppression and fear become tools of control, indigenous peoples become convenient targets precisely because they have been marginalized. The perception of indigenous peoples by perpetrators is that, as torture victims, indigenous peoples can be used as examples with seemingly little risk from the indigenous peoples themselves or anyone else coming to their defense.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture) (1) and the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Convention Against Genocide) (2) are significant among international human rights instruments insofar as they define and establish criteria and mechanisms for the redress of gross violations of human rights. Adopted by the General Assembly in 1984 and 1951, respectively, each document was drafted at a time when individual human rights were understandably of primary concern. Arguably, the intervening decades saw a legal excursion into balancing individual and collective rights (3) with the concurrent drafting of the International Covenant on Civil and Political Rights (ICCPR) (4) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), (5) culminating with their adoption by the General Assembly in 1966. This activity to develop international human rights instruments was undertaken virtually to the exclusion of collective or community rights, with the noted exceptions of the Convention Against Genocide and the ICESCR. (6) With this as a backdrop, we may now turn to a discussion of the nexus of torture, individual and collective human rights, indigenous peoples' identities, marginalization, and international law.

In ever expanding ways, indigenous peoples are finally being recognized and accepted as having a voice and role in global political affairs. (7) Their political activities vis-a-vis global relations--as well as their political, legal, and socio-economic arrangements--challenge our current assumptions, norms, and practices of protecting and promoting human rights as well as international law in general. More specifically, individual as the accepted norm or foundation upon which human rights protection and promotion ought to be based--and, concurrently, our understanding of torture--is shown to be limited and limiting. These challenges make it clear that the Convention Against Torture and the Convention Against Genocide have significant constraints with respect to protecting the human rights of indigenous peoples as such. (8) The United Nations Draft Declaration on the Rights of Indigenous Peoples (9) could potentially minimize these strictures if it retains a core orientation of collective rights as it makes it way through the Commission on Human Rights and, eventually, the General Assembly.

Of initial relevance is that the Convention Against Torture, in Article 2, stipulates that the perpetrator be a public official or agent thereof. (10) Historically, as well as today, indigenous peoples on virtually every continent have experienced torture by such perpetrators and therefore would be covered as individuals under the terms of the Convention Against Torture. In more recent decades, however, non-state actors also have engaged in torture against indigenous peoples. In situations of armed conflict many parties to the conflict essentially are unaffiliated militarized groups. For example, the various Bambuti peoples located in the eastern Democratic Republic of the Congo and numerous indigenous peoples of South America--such as the Kogi of the Sierra Madre de Santa Marta in Colombia--are being victimized because they are essentially in the wrong place at the wrong time. The Bambuti are being subjected to human rights violations including cannibalism by various parties to the armed conflict. (11) The Kogi--perhaps the only people in South America adhering...