Indigenizing reconciliation: questions of jurisdiction for Indigenous victimizers in post-conflict zones and an argument for traditional systems

Abstract

Indigenous peoples’ around the world face multiple vulnerabilities that are exacerbated in armed conflict scenarios. Members of indigenous communities are hit by the scourge of conflict from two perspectives. On the one hand, they are victims of crimes and violations of their human rights, while on the other hand, community harmony is affected by Indigenous individuals who by decision or forced recruitment become victimizers, participating in the armed hostilities and often affecting their own community. This article aims to analyze the effectiveness of Indigenous peoples' legal systems to apply criminal accountability on indigenous individuals who commits crimes that fall under the jurisdiction of the International Criminal Court (such as crimes against humanity and war crimes) during domestic armed conflicts. The paper analyzes whether the objectives of effective international criminal accountability are fulfilled with the application of justice by customary legal systems that differ from national and international jurisdictions recognized from Western justice perspectives. To this end, the article analyzes the international legal framework that supports Indigenous peoples’ rights to engage in their traditional justice systems, also explores different notions of justices and criminal responsibility of indigenous communities around the world, and, studies a variety of indigenous jurisdictions in Latin America which recognize a legal pluralism, with a special emphasis on the Colombian case. Later, the article studies the objectives of the international criminal jurisdiction, and finally, it discusses the harmonization of indigenous legal systems in compliance with international parameters of criminal accountability. The article concludes that Indigenous Peoples’ traditional justice systems can be compatible with international standards of criminal responsibility, as long as the systems comply with human rights obligations and the international standards of the International Criminal Court (ICC).