Futureproofing Human Rights Symposium: Learning from the Nasa Indigenous Justice System to Rethink Accountability

[Valeria Ruiz-Perez is a Research Associate at the Centre for Applied Human Rights (University of York) and a Visiting Fellow at LSE Law School. She is a main researcher of the Rethinking accountability from the bottom: Setting a research agenda on traditional grassroots justice mechanisms (TGJMs) project. 

Piergiuseppe Parisi is a lecturer in international human rights law at the Centre for Applied Human Rights and the York Law School (University of York), as well as the Principal Investigator of the project TGJMs project.]

While international human rights and humanitarian law (respectively IHRL and IHL) offer various accountability mechanisms, responses to serious violations of human rights—such as torture, extrajudicial killings, and enforced disappearances—are often narrowly focused on individual criminal responsibility, emphasising prosecution and imprisonment. This narrow approach has overshadowed alternative justice practices, particularly traditional grassroots justice mechanisms (TGJMs) in many Indigenous and traditional communities, which address these violations through distinct and culturally rooted approaches.

TGJMs have largely been dismissed by the dominant literature due to their perceived ‘inadequacy’ to address large-scale rights violations, as well as potential conflicts with international standards—primarily provisions on due process and the prohibition of torture and cruel, inhuman, or degrading treatment or punishment. Yet there are epistemic and practical advantages that make such mechanisms valuable and more legitimate when addressing violations that have affected the communities that employ them. While surveying such advantages is beyond the purview of this piece, it is worth emphasising the ability of TGJMs to “speak” a language that is more easily understood by communities as well as their geographical, cultural and social proximity to the affected individuals.

Against this backdrop, the project Rethinking Accountability from the Bottom, hosted by the Centre for Applied Human Rights at the University of York, seeks to challenge the dominant approach to accountability, and to re-evaluate the role of TGJMs within IHRL. We posit that interlegal—but perhaps more aptly intercultural—dialogue can shed light on some of the limitations and strengths of competing or parallel legal systems. In particular, we ask what lessons can the (mainstream) frameworks of international law and domestic criminal law learn from TGJMs when dealing with IHRL and IHL violations.

Our reflections draw from testing our theoretical and conceptual framework in Colombia through a pilot study. We focus in particular on how Nasa Indigenous communities in Colombia have addressed serious human rights violations through their justice mechanisms. Exploring the distinct approaches to and categories of accountability and sanctions embedded within these practices, the project seeks insights for reimagining more comprehensive and robust notions of accountability. In the remainder of this blog post, we summarise some of the key findings of our pilot project. The empirical data that informs this piece was collected during fieldwork conducted in Colombia in August 2023. Eight research participants were interviewed, including Nasa experts in Indigenous justice and members of the ordinary justice system.

Nasa Indigenous Justice

Unlike other examples of TGJMs around the world (see, for example, South Africa in Penal Reform International 2001: 21-37), the Indigenous jurisdiction in Colombia stands out as an institutionally recognised, permanent, and autonomous system. A core component of the pluralistic arrangements of the 1991 Constitution, systems of Indigenous justice offer an alternative framework for accountability for serious human rights violations in a context of prolonged violence—stemming from armed conflict, State-sponsored violence, and struggles over territorial control. In practice, Indigenous justice systems have not only been a tool for self-governance, but have also played a fundamental role as a pillar for enhancing collective life while resisting violence, state neglect, environmental destruction, and enduring marginalisation. 

Nasa Derecho propio—that is, a system of traditional and customary norms and practices—is rooted in the Nasa cosmovision and ley de origen or ancestral ‘law’, which seeks to preserve harmony between the different spiritual and material forces of nature. In this worldview, diseases (in Spanish enfermedades), which may be internal or external, cause harms or disharmonies, which must be restored to ensure balance within individuals, families, the community, and the territory. While these diseases often intersect with conduct that state law defines as criminal offending, they are not understood as individual deviances or pathologies. Instead, Nasa derecho propio sees them as symptoms of broader internal and external imbalances, requiring the restoration of harmony at various levels.

In the context of a long-standing conflict, which has particularly impacted communities in the North of Cauca, the Nasa system has been inevitably confronted with various diseases and disharmonies. While conventional legal frameworks define these harms as serious human rights violations and violations of international humanitarian law, as well as other forms of violence or environmental harms, Nasa jurists – experts in derecho propio – have developed broader categories that reflect the impact that various diseases may have upon individuals, the community, and the environment. While not constituting a strict hierarchy, and remaining highly sensitive to contextual factors, the Nasa system distinguishes three distinct categories of diseases: very serious ones (homicide, massacres, rape and other sexual offences, displacement, and other conducts that encompass serious human rights violations); serious ones (such as narcotrafficking and environmental harms); and minor or lesser diseases (theft, burglary, and others). Though not entirely fixed, each category is also indicative of the type of remedies or sanctions required to restore harmony.

Below we provide an approximation to some of the key concepts of Nasa Indigenous justice and we put these in conversation with elements that characterise conventional justice systems. By doing so, we also reflect on the potential and limitations of these concepts for identifying a thicker notion of accountability. 

Responsibility, Remedies, and Sanctions

The notion of responsibility in the Nasa cosmovision is characterised by an apparent fluidity that sets it apart from Eurocentric ideas of criminal liability. Where criminal law attaches responsibility to an individual for their conduct and the harm it has produced, the derecho propio looks for fragments of responsibility both within and outside the individual. 

One research participant recalled a case of around twenty teenagers between the ages of twelve and seventeen belonging to one of the Indigenous territories, who organised themselves into a gang and began to engage in criminal activities, including the abduction of some comuneros—Indigenous inhabitants of an Indigenous territory—and the extortion of some teachers. The Indigenous authorities determined that the spiritual remedy (whipping—see below) should be applied not only to the minors but also to their parents, who were deemed to have failed in bringing up their children. Even more interestingly, the community assembly left the decision as to whether they would subject themselves to the application of the remedy to the parents themselves. 

As the example above demonstrates, the idea that responsibility is exclusively individual does not always fit with the Nasa cosmovision. This is intimately linked to the notion of disease, which, as explained above, may be internal or external to the individual. Some individuals may be born with a disease, which has to be remedied by the family; diseases may also be brought in by external agentic forces, such as illicit economies that pull the Indigenous youth into harmful activities through the false promise of easy gains. Diseases may alter the harmony of the people in the same way as an illness alters the body. This broad notion of responsibility also has implications in terms of the responses required for the restoration of harmony, which come in the shape of remedies and sanctions. On the one hand, remedies seek to restore spiritual balance and heal the disease, and often involve collective dialogue and rituals. Precisely because the responsibility to remedy a disease may rest with more than its bearer, the application of the remedy can extend to the offender’s family members and, in some cases, to the entire community. In other words, derecho propio is capable of imputing diseases not simply to individual choices, but also to the reasons behind those choices. 

Sanctions, on the other hand, are more ‘materially-oriented’, seeking Yu”Cenxi—a term that encompasses ‘correction’, resocialisation, the prevention of similar conducts, isolation, reparation, and harmonisation. A broad and evolving notion, sanctions retain a more individualised character and include diverse responses: corporal punishment (such as whippings and stocks), community labour, isolation in harmonisation centres, and patios prestados (‘borrowed jails’)—that is, the restriction of liberty through placement in official jails and prisons. Participants in our research noted that traditional remedies have become more diluted through time, blurring the line between remedies and sanctions, and highlighted a tendency towards the reproduction of state-based dynamics and practices, particularly when it comes to very serious diseases. 

What we find particularly interesting about the Nasa conception of responsibility is its elasticity. While this elasticity may contradict the Eurocentric idea that criminal responsibility must be individual, it is also valuable insofar as it allows us to see what lies behind criminal conduct. In other words, it forces us to answer the ‘why’ question. Similarly, while the flexibility and contextual character of sanctions may seem at odds with the Western notion of legal certainty, they reflect the influence of collective and contextual factors on both offending and reparation, challenging us to rethink how existing practices of punishment could more effectively account for these dimensions.

Procedural Guarantees

Critiques of Indigenous justice systems in Colombia emphasise the weaknesses of their procedural infrastructure. These range from system-wide critiques that highlight the embeddedness of the Indigenous justice architecture in patriarchal societal structures to more specific critiques that, for example, question the use of certain traditional investigative methods highlighting their incompatibility with global human rights norms. Such challenges are not unknown to Indigenous jurists. One research participant highlighted that the stock (cepo) can only be used as a remedy and not as an investigative tool, as this would likely contradict the prohibition of torture under IHRL. 

To guarantee the fairness of decisions and, more generally, fair trial rights, proceedings before Nasa Indigenous authorities are celebrated before different congregations of community members, depending on the gravity of the disharmony caused. The most serious disharmonies—that is those that may substantiate serious IHRL or IHL violations—will be heard by a jury that incorporates spiritual elders, Indigenous authorities and the community assembly. This system ensures that, on the one hand, Indigenous authorities comply with their mandate—which emanates from the people—and, on the other, the decision is culturally and spiritually guided by the elders who, in the Nasa cosmovision, maintain the strongest connection to the ley natural.

Nonetheless, research participants themselves acknowledged that the Nasa justice system can be vulnerable to abuses and does sometimes fall prey to desires for vengeance—especially at the evidential and sentencing stages. The same participants highlighted both the value of interjurisdictional dialogue and the need for some form of regulatory process to ensure that certain minimum standards are consistently respected. Some developments in this direction can be seen in the establishment of Indigenous schools of derecho propio; the professionalisation of some Indigenous jurists, who in addition to becoming experts in derecho propio also qualify in Colombian law; the pedagogical work carried out by lawyers who advise Indigenous organisations; and the increased knowledge exchange with state justice institutions—though with varying degrees of success.

Conclusion

In this short piece, we have shown some of the idiosyncrasies of the Nasa justice system. The cosmovision that feeds this system offers interesting conceptual categories to grapple with IHRL and IHL violations, which unfortunately are very much part of the daily life of the Nasa people in Colombia. Through these categories, the Nasa tell a much more complex story about accountability than state justice institutions. A story that goes beyond individual (criminal) responsibility in the search for the societal and spiritual reasons that may have led someone to commit an offence; a story that does not individualise harm, but connects it to the whole, that is, the community and the territory; a story that seems to be much more naturally inclined towards reconciliation. Yet it is important to avoid romanticising Indigenous justice mechanisms. Nasa jurists are conscious of its limitations, especially in relation to the guarantees that this system is (un-)able to offer to the alleged offender of harmony. They are also actively seeking to identify tools to improve its robustness without compromising its cultural distinctiveness. These adaptation processes contribute to making Nasa justice difficult to grasp. And yet, in Colombia, a country tragically marked by a conflict that does not seem to wane, intercultural and interjurisdictional dialogue are essential to deal with the violence and the harm it produces. Perhaps, there is learning in this dialogue that escapes geographical boundaries.

The research that informed this blog post was possible thanks to C & JB Morrell Trust funding and the financial support of the Generating Respect Hub at the University of York.

Authors’ note: The authors are grateful to Dr Mattia Pinto, who co-leads the TGJMs project for his invaluable comments on an earlier draft of this blog. Furthermore, we would like to extend our gratitude to all the research participants who generously dedicated their time to provide their insights on the themes of this blog post. An academic article that analyses in depth the themes raised in this blog post is currently in the making.

This blog is part of a seven-part symposium which was reviewed and edited by members of the IBOF Futureproofing human rights’ team: Tine Destrooper (Ghent University), Wouter Vandenhole (Antwerp University), Ben Grama (Ghent University), and Marion Sandner (Hasselt University).