Contemporary forms of cultural genocide in the natural resource sector: indigenous peoples’ perspectives from Bolivia and Colombia

ABSTRACT

This article re-conceptualises genocide on indigenous peoples by disentangling its cultural dimensions. Extractive and similar operations gradually deteriorate lands and environment, exerting severe impacts on territorial rights, eventually on their physical and cultural annihilation. The article approaches the crime of genocide in both its physical and cultural dimensions, demanding its integration into IHRL and criminal law. Recent ethnographic research in Bolivia and Colombia demonstrates how indigenous peoples are gradually exposed to genocidal policies despite strong legal frameworks. Such rights materialise in the form of prior consultation, land rights, prohibition of forced relocation and maintaining of organisational and decision-making procedures.

RÉSUMÉ

Cet article reconceptualise le génocide des populations autochtones en distinguant ses dimensions culturelles. Les activités extractives et autres activités semblables détruisent graduellement les terres et l’environnement, engendrant de graves conséquences pour les droits territoriaux et menant, éventuellement, à l’extermination physique et culturelle. L’article aborde le crime de génocide dans ses dimensions à la fois physique et culturelle, demandant son intégration dans le droit international en matière de droits de la personne (DIDP) et le droit pénal. De récentes recherches ethnographiques en Bolivie et en Colombie montrent comment les populations autochtones sont progressivement exposées à des politiques génocidaires malgré l’existence de cadres juridiques solides. Ces droits se concrétisent sous la forme de consultations préalables, de droits fonciers, d’interdiction de procéder à des réinstallations forcées et du maintien des structures et procédures de prise de décision.

KEYWORDS:

• Indigenous rights
• cultural genocide
• natural resources
• resource exploitation
• Bolivia and Colombia

Introduction

Extractive projects and other mainstream “development” models show a long-term impact beyond violations of physical integrity and dispossession in terms of lands and resources: this may materialise in infringements of indigenous peoples’ rights to cultural identity and self-determined development which are at stake here in the same manner. In that sense, the significance of the collective right to maintain (an) indigenous identity(ies) has been explored elsewhere (Odello 2012), specifically in the Bolivian and Colombian contexts (Fontana 2014; Postero 2007; Fabricant and Postero 2015; Barrantes-Reynolds 2016; Weber 2013; Clavero 2011a; Martel et al. 2002). The very relationship between cultural identity and territory-related rights eventually found legal embedment, established in the Sarayaku judgement by the Inter-American Court of Human Rights (2012) which relates communal property associating the right to prior consultation and the right to cultural identity (paras.341(1)-(4)); and in the UN Declaration on the Rights of Indigenous Peoples which extends the right to land to natural resources as well as the right to maintain and strengthen indigenous peoples’ spiritual relationship with traditional territories (UNDRIPS, 2007: Arts.25, 26, 29). In an attempt to bridge isolated debates on cultural identities and socio-environmental land rights, this piece dives deeper into practices affecting the two.

Contemporary debates on natural resource appropriation and exploitation highlight the significance of socio-environmental impact and social dynamics (Martel et al. 2016), social mobilisation and inequalities (Humphreys Bebbington and Bebbington 2010; Eichler 2016) as well as the intrinsic relationship between consultation processes with indigenous peoples and social conflicts (Schilling-Vacaflor 2014). The latter may be attributed to exclusionary practices towards indigenous peoples in the context of negotiations between State, companies and indigenous communities (Schilling-Vacaflor and Eichler 2017). However, little has been said about the larger and long-term cultural impact on indigenous peoples, their identities and environment in these settings. While existing research attributes a strong role to current peasant and indigenous movements in environmental issues and climate change mitigation at global scale (Claeys and Delgado Pugley 2016), this piece engages with the very vulnerability emerging in such relations including severe cultural rights infringements amounting to a slow-burning cultural genocide; current developments in the Amazon in fact add empirical weight to the conclusions drawn. In fact, Neo-extractivist agendas hence demonstrably translate pressures from the global to the local scale; these broadly encompass political, economic and legal forces driven by corporations and the State, to some extent (Goodale 2016). We thereby attempt to gain an understanding of the multiplicities of actors in the extractive sector and the way these engage in adverse conduct that culminates in forms of (indigenous) genocide beyond solely physical attacks. Accordingly, we try to explore to what extent cultural genocide on indigenous peoples may be identified based on specific human rights violations concerning (I) territorial and organisational dimensions, (II) physical integrity and (III) infringements on respecting community decisions.

The first part of the article approaches the (criminal) definition of genocide while engaging critically with existing definitions, including conceptual separations between physical and cultural genocide. In the second part, a brief contextual explanation of our fieldwork experience is introduced in order to examine contemporary forms of cultural genocide in Colombia and Bolivia in the third part. The fourth and final part of the article, is devoted to evaluating our case studies from a comparative perspective.

Recognising indigenous peoples in the (cultural) genocide context

During the last six decades of the legal development of the crime of genocide, it has become clear that it is the most pondered crime within the framework of international law. After 1948, with the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), and after 1998, with the Rome Statute of the International Criminal Court (ICCS), it has been confirmed that genocide constitutes the most serious of the crimes within its jurisdiction. The instrument places Genocide first, followed by Crimes against Humanity, War Crimes and the Crime of Aggression. It is precisely in this interregnum that the definition of genocide under international criminal law appears. First, within the CPPCG and then it was repeated by Article 6 of the ICC Statute. According to this definition, genocide is any of the following committed with the intention to destroy a national, ethnical, racial or religious group in whole or in part:

1. Killing members of the group

2. Causing serious bodily or mental harm to members of the group

3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

4. Imposing measures intended to prevent births within the group

5. Forcibly transferring children of the group to another group

In 1947, the Secretary General of the United Nations submitted a draft of the CPPCG that expressly included that the intention and action of bringing about the disappearance of human groups “can be undertaken and committed, separately or concurrently, in many different ways” (Clavero 2009, 2). Indeed, the draft instrument was more careful when defining the scope of the crime. On the one hand, the level of detail with which the draft tackles the meaning of destruction and physical harm is accurate. On the other, it repeats the terms destruction and destroy; however, their legal scope goes beyond the allusion to the elimination of human life. The acts qualified as genocide in the official draft include physical, biological, and cultural genocide.

Indigenous peoples were undoubtedly included in the official draft of the CPPCG “since the draft referred to potential attacks on the culture of groups which corresponded objectively to habitual State policy towards these peoples” (Clavero 2011b, par. 5). However, Brazil objected arguing that this condition would diminish any possibility of creating States because the inclusion of those minorities would go against the values needed to establish the equality of a States’ citizens. According to Brazil,

this would allow ‘minorities’ to oppose policies necessary to State-building and to the equality of a State’s citizens. New Zealand, South Africa and Canada agreed with Brazil. The American States and the European States that were current or former colonial powers, such as Great Britain, France and Belgium, also supported Brazil’s position. (Clavero 2011b, par. 5)

Formally, beyond the aforementioned virtual disappearance and in compliance with its qualification, the CPPCG protects the right to life of indigenous peoples; nevertheless, both doctrine and the jurisprudence of the International Court of Justice have tended to minimise the legal and semantic scope of the crime of genocide, which has ultimately contributed to the genocide of indigenous peoples (Schabas 2005, 117–132; Chalk and Jonassohn 1990, 23). This has occurred to the extent that the perception that equates genocide with physical elimination is the prevailing approach. This “doctrinal” perspective can be traced back to the transition between the official draft and the final CPPCG in which the definition of genocide was abridged, and some components erased, among them, the removal of political groups as well as “[a]ll reference to the perpetration of genocide by destroying or harming a group’s cultural heritage”. However, nowadays the CPPCG and the ICCS consider both physical and mental harm and, this last-mentioned injury, may be perpetrated by “policies that are destructive of – or harmful to – language and cultural heritage” (Clavero 2009, 2). In this terrain, there is also a need to think responsibly about policies intended at seizing the land and stealing the natural resources of indigenous communities and peoples; especially, if we consider the troubled history of the UN War Crimes Commission. Indeed, Mark Mazower has argued that “its vicissitudes provided an earlier indication that the great powers sponsoring the new peacetime United Nations Organization had strong doubts about making international criminal law a prominent part of the new world order” (Mazower 2009, 127).

As might have been expected, the enormously restricted definition of “genocide in the case of indigenous peoples was applied in theory, but rarely in practice” (Clavero 2011b, par. 7). Moreover, when the CPPCG entered into force in 1951, new practical constraints emerged. The United States delayed its ratification because a civil rights group “immediately submitted to the United Nations the case of the intentional partial destruction of the African-American group in the United States, but received no response whatsoever” (Clavero 2011b, par. 7). On one side, questions pertaining to what criminal responsibility means in the context of racial violence emerged; on the other, it was symptomatic that this case did not find a response by the United Nations. Additionally, the CPPCG’s provisions stipulated “that only States were entitled to submit complaints of genocide against other States to the United Nations, and particularly to the International Court of Justice as the international court with jurisdiction under the convention (arts. 8 and 9)” (Clavero 2011b, par. 7).

In the end, the so-called colonial clause advocated by Brazil, New Zealand, South Africa, Canada, Great Britain, France and Belgium remained: the CPPCG did not protect the indigenous peoples affected, given that its validity was restricted to the territory of the ratifying States, and only by express communication to the Secretary-General of the United Nations would the territories under their “responsibility” be included. Indeed, according to article 12

[a]ny Contracting Party may at any time, by notification addressed to the Secretary General of the United Nations, extend the application of the […] Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.

In fact, the Genocide Convention, established in the framework of treaty law, did not extent the States’ international commitments to the colonies (Clavero 2011b, par. 8). The United Nations Permanent Forum on Indigenous Issues (UNPFII) noted in its Study on International Criminal Law and the Judicial Defense of Indigenous Peoples’ Rights, drafted by Bartolomé Clavero, that

[t]his significant exclusion of colonies from the Genocide Convention was not applicable to indigenous peoples living within the borders of a State, [nevertheless, the decision about whether or not those peoples belong to a specific territory was placed on the States themselves which] made the Convention even less effective in respect of all indigenous peoples. (Clavero 2011b, par. 9)

However, this was not the only matter at stake: in practical terms, Brazil’s “diplomatic triumph” connoted the exclusion of indigenous peoples from the arena of international law as subjects of genocide and, with this, the expansion of many troubling cases of partial physical destruction of these peoples.

Today it seems colonial history is repeating itself by recurring in the present: indigenous peoples “should get integrated into the State”, and, nevertheless, have different rights of citizenship. From a criminal law point of view, the States – led by Brazil – achieved the exclusion of what was later called cultural genocide, a concept that, according to orthodox criminal lawyers, represented a new category different from genocide.

Towards a reinvention of genocide – cultural components and their constitutive essentiality

At this point, it is important to remember that “genocide and ethnocide were originally synonyms”, as a matter of fact, the Polish-Jewish international legal scholar Raphael Lemkin coined the terms as equivalents in order to build a concept able to link both physical and cultural genocide (Clavero 2009, 6; Lemkin 1944, 79). Nevertheless, as Mazower has argued,

the Genocide Convention itself only passed once a clause that made ‘cultural genocide’ a crime was dropped – the clause that Lemkin himself described as the ‘soul of the Convention’ – […]. The voting down of the cultural genocide clause revealed the deep misgivings many States had at allowing their own actions to be brought before an international court. (Mazower 2009, 130–132)

Therefore, the practical consequence of the colonial clause was not only the virtual exclusion of indigenous peoples from the final CPPCG but also “the subsequent establishment of a separate form of genocide, namely cultural genocide” (Clavero 2011b, par. 5).

However, the concept of genocide was broadened subsequently, following the adoption of CPPCG and theoretical discussions initiated by Raphael Lemkin in the same historical context (Lemkin 1946; Northcott 2012). In fact, Lemkin’s work would soon be constitutive of a larger framework than originally envisioned (Moses 2010) which would, in turn, allow to disclose policies and their (neo-)colonial creators in their attempt to destroy indigenous cultures and hence, indigenous peoples (Short 2010). Especially in present day indigenous contexts, “social death”, “culturally destructive processes” (Short 2010, 833, 842) and the right to access territories (Wolfe 2006) are equally counted as genocide following a growing academic consensus: empirical evidence further suggests its wider application beyond terms such as race and physical destruction. In the case of indigenous peoples, their particular collective right not to be subjected to “any act of genocide” has been stipulated in international human rights law, namely the UN Declaration on the Rights of Indigenous Peoples (UNDRIPS, Arts.7(2), 8(1)), which was reaffirmed by the American Declaration on the Rights of Indigenous Peoples (OASDRIPS) while establishing that indigenous peoples in voluntary isolation or initial contact have the right to remain in that condition and to live freely and in accordance with their cultures (OASDRIPS, Art.26(1)).

In order to categorise different forms of cultural genocide towards indigenous peoples in the Americas, Fenelon and Trafzer distinguish between “lethal systems of cultural genocide”, the “targeting of destruction of culture in order to subordinate by culturicide” and “general cultural suppression” showing different levels of coercion and destruction (2014, 15). According to the latter conceptual distinction, physical and cultural destruction go hand in hand, materialising in a wide range of ways. The specific form of “indigenous genocide” equally becomes apparent in the context of global ecology entailing political claims that aim to keep indigenous territories alive and ultimately represent resistance towards a continued and ongoing genocide (Kopenawa and Albert 2013). Similarly, Clavero counts other actors apart from States as perpetrators and as the ones who make policies and are responsible for actions that amount to contemporary forms of genocide (Clavero 2011a). This is particularly relevant here as the extractive sector includes a high number of players who violate indigenous peoples’ rights. Debates on land and natural resource issues provide insights into this: the Canadian land claims process and its policies, for instance, have been described as transforming indigenous lands and lives in such a way which would amount to cultural genocide (Samson 2014). Such “cultural genocide” was even adopted in official discourse (Buckland and O’Gorman 2016) and addressed in the final report of the Truth and Reconciliation Commission of Canada (2015). As a response to the foregoing debates and supported by empirical foundations we develop a comparative analysis, disclosing a long-term impact or “slow-burning effect” as coined by Zarni and Cowley (2014, 684) to describe the continued violation of fundamental rights.

Methodological considerations: translating from the vernacular

Understanding and identifying different dimensions as inherent to the concept of cultural genocide requires us to dive deeper into peoples’ realities; on the ground research as carried out in Bolivian and Colombian contexts inform us of how such dimensions manifest themselves.

One author spent one year (April 2014–April 2015) in the Subtropical Lowlands of Bolivia doing research on indigenous peoples’ participatory rights in the gas and mining sectors and conducted more than one hundred in-depth interviews and focus groups in Guaraní and Chiquitano Lowland communities. These included community members, indigenous leaders, members of local mining cooperatives and advisors which allowed her to explore the micro dynamics of prior consultation processes and similar participatory mechanisms. She further monitored consultation processes as part of her collaboration with an NGO; such processes included several actors including indigenous communities, the State and gas companies where she gained an understanding of the interactions between indigenous peoples, companies and the State in addition to exploring adverse practice and impact on the communities. The other author undertook field visits from 2013–2016 and 2017–2018 to several Colombian regions and the country’s capital. His main engagement with the legal and social complexities about indigenous peoples’ genocide took place in 2013 when the Governing Council of the National Indigenous Organization of Colombia (hereinafter ONIC), appointed him as Analyst of Human Rights and International Humanitarian Law. The participation as a report writer in the ONIC campaign Palabra Dulce, Aire de Vida, in support of indigenous peoples at risk of genocide, brought him to the most remote locations of the Colombian geography, having the opportunity of witnessing for himself an “ongoing genocide of indigenous peoples” (Bacca 2013, 20). By using international standards as a backdrop for discussion, the report revealed the political and economic assumptions underlying abstract human rights principles. Later on, the author has worked on the narration of the history of the contemporary Colombian indigenous movement in the age of climate change.

Cultural genocide in the Bolivian lowlands? The resource boom and its impact

Indigenous peoples in the current (Plurinational State of) Bolivia are faced with a contradictory blend of constitutional safeguards enshrining collective cultural rights in all branches of the State and sphere of life and a growing influence of global corporatist logics permeating indigenous local contexts and environment(s). In that sense, the very concept of cultural genocide finds application rather subtly against the background of gradually evolving forms of participation in self-governance and share in the very machinery of the State, yet continued forms of neo-colonialism materialising in extractive policies, one-sided identity recognition processes at grassroots levels and a wide range of homogenising practices culminating in what could be identified as infringements on cultural rights.

Most notably, the Guaraní have faced such adverse consequences while transforming situations of imposition to demands of justice in encounters with the State, hence creating forms of representation in their own accord, rendering cultural violations visible in everyday politics. In fact, Guaraní people(s) have systematically opposed any forms of domination since colonial times until today (Hirsch 1996). This ranged from decades of violent territorial struggle against dominant groups from the Andes including Inca populations in precolonial times to contemporary forms of resistance. Post-colonial domination was maintained during several centuries which could be best exemplified by the forced labour and bondage system to which Guaraní people were subjected (Inter-American Commission on Human Rights 2009). In the debt-bondage system, the Guaraní could not access their own territory and hence depended on illegitimate administrators who exercised control over the communities and demonstrably eliminated their cultural self-esteem (Guerrero Peñaranda 2005). Forms of rights-infringing, systematic practice persist until today: some communities were only recently liberated from slavery or slavery-like conditions, encompassing debt bondage, forced labour and discriminatory treatment. Official figures indicate the continued use of forced labour and the continued existence of conditions of captivity in 600 Guaraní families in the Bolivian Chaco (Defensor del Pueblo 2007). Some estates build on conditions of servitude; others combine these with seasonal labour persisting until today (German Development Service 2008). As a result, indigenous organisations have shown resisting attitudes vis-à-vis a strong corporate sector, orienting governmental strategies in circumventing socio-environmental standards in the extractive sector, including less rigorous prior consultation mechanisms with indigenous peoples (Presidential Decrees 2366 and 2400, adopted in 2015).

Such ongoing struggles on the multiplicities of indigenous rights claims, forms of displacement and eco-cultural rights violations become apparent in a variety of contexts. Cultural and other forms of genocide on indigenous peoples have long been absorbed by civil society discourse challenging decision-makers by adopting legal and extra-legal means. In that sense, indigenous peoples in Bolivia and Brazil attributed responsibility to the government for committing environmental genocide in the Amazon region declaring the executive “persona no grata” in their territories for omitting to adopt measures resulting in irreparable losses (El Deber 2019). Accordingly, 506 indigenous peoples face immediate risks of extinction as well as acts of racism and structural discrimination (El Deber 2019). In that sense, so-called “statistical genocide” (Pretel 2014) or genocide in numbers in Bolivia has seemingly been complemented by cultural elements; ever since colonial age linguistic superstructures would suppress indigenous language practice, but also forms of social organisation (Apaza Apaza 2012). Similar terminology had been used in the Amazonian Pando region one decade earlier, accusing the government of colonising large parts of indigenous territories causing, firstly, natural damage and ecological destruction and secondly, (planned) cultural genocide on indigenous people in the Pando area (Arrázola Mendivil 2009). As a response, the Bolivian executive initiated a drafting process to include “cultural genocide” in the Bolivian penal code with the objective of punishing those affecting indigenous peoples’ existence and their identities, knowledge and proper procedures (Oxigeno 2013).

One of the most emblematic situations, however, concerns the TIPNIS (Territorio indígena y parque nacional Isiboro Sécure) conflict, transforming global demands for natural resources into a large-scale infrastructure project by connecting Latin American industries horizontally. The Park had been declared “indivisible, indispensable, inalienable and irreversible” (art.1(II)) by law 180, later to be reversed by Law 969, jeopardising its cultural, socio-environmental recognition played out to the detriment of indigenous peoples’ and other populations’ very needs. Most notably, law 180 had declared TIPNIS “sociocultural heritage, area of ecological preservation, historical reproduction and indigenous peoples’ livelihoods whose protection is of utmost interest to the Plurinational State of Bolivia”. This, in fact, illustrates how closely such dimensions are, in fact, inherently related, especially as far as the eco-cultural dimensions of cultural genocide are concerned. Similar observations were made in the Chepete-Bala case, in Rositas, defending the nature reserve of Tariquia, the case of Defending the Chimán Forest and others (Barrientos 2018). In 2017, a Commission delegated by the International Rights of Nature Tribunal (IRNT) would eventually demand specific action including the halting of bridge constructions in TIPNIS.

“Slow-burning” effects of what could result in cultural genocidal practice also materialise in the way land and resource-related decision-making is undertaken. Such intrinsic link gains explanatory force when relating it to existing norms, most notably UNDRIPS that derives its legitimacy from indigenous collective demands: the Declaration associates political, legal, economic, social and cultural institutions (Art.5), it relates forced assimilation, destruction of culture, dispossession of lands, territories and resources and forced population transfer and racial or ethnic discrimination in propaganda (Art.8) and qualifies the right to consult and cooperate to be in line with indigenous peoples’ own representative institutions (Art.32) through appropriate procedures (Art.30(2)). These very underlying, self-determined, proper organisational structures and procedures undergo processes of submission. It is to be differentiated between community-driven autonomies and indigenous encounters with the State, embracing umbrella organisations and the way political leverage is negotiated through higher institutional instances. In the first case, constitutional promises came to be localised, taking the shape of indigenous autonomies in 2017, most notably “Autonomía Guaraní Charagua Iyambae” recognised as a public authority (Heras and Escudero 2018). While including classical elements of legislative and executive branches, indigenous particular governance mechanisms such as “Ñemboiti Guasu” have found recognition by the State and with it indigenous proper participation proceedings (Heras and Escudero 2018). Critiques, however, identify strong bureaucratic entanglements of the State and limits imposed by the logic and goals of the novel Plurinational State on such forms of self-governance (Tockman and Cameron 2014) despite its fundamental merits for realising indigenous collective rights. In fact, indigenous autonomies become strengthened in processes of “constitutionalisation” assumed and adopted by indigenous organisations (Sieder and Barrera Vivero 2017). At macro scale, however, consolidation of indigenous political control is severely limited; this may become manifest in missing “marches for territories and dignity” in the last five years, being accompanied by measures reflecting normative regression as to natural gas exploitation and other resources, agricultural boundaries and the like (Barrientos 2018). In that sense, indigenous peoples show the need to re-establish their very organisational structures (Barrientos 2018) in various ways; firstly, in terms of levels of representation diminishing with a shrinking shared space with the State, as exemplified by marches or other ways to translate voices; secondly, on grounds of claims functioning as channels to promote related issues and respective rights, building upon strong “umbrella claims” on, for instance, lands and territories. Such proper instances are demonstrably overridden by external players subverting indigenous decision-making in accordance with their own procedures and ultimately mechanisms (Schilling-Vacaflor and Eichler 2017). In fact, grass roots accounts allow us to identify such nexus, associating violations of indigenous cultural orders underlying decision-making and externally-driven extractivist agendas:

Dialogues are to be held within the community, not only with captains (leaders). They should come and conduct a water assessment and see our situation here. (Interview in Guaraní with female, middle-aged community member)

Contemporary forms of cultural genocide in Colombia

In the Colombian case, the slow-burning genocide of indigenous peoples is configured through forced displacement, selective murder, detention and collective confinement. In fact, some indigenous representatives have placed the fight against the crime of genocide in their larger struggles for self-determination, territorial defence and control over natural resources (interview with Luis Evelis Andrade). Others, for their part, refer to “indigenous ecological survival” as to include all-encompassing claims such as various forms of resistance and defence of communal lands, traditional authorities, own educational and health systems, indigenous languages, history and cosmologies (interview with Taita Víctor Jacanamijoy). In this context, eco-cultural threats have become a major obstacle for processes of land in terms of restitution by jeopardising indigenous communities’ specific forms of subsistence in the middle of growing pressures driven by natural resource industries.

In 2009 the Colombian Constitutional Court (CCC) determined the existence of 36 indigenous peoples at risk of extinction because of causes directly and indirectly connected with the armed conflict and the social phenomenon of forced displacement in the country (Ruling 004). Indeed, a phenomenon of slow-motion slaughter characterises the Colombian case where the intended disappearance of indigenous peoples is underpinned by a variety of economic and developmental policies as well as criminal conduct, for example, policies aimed at grabbing their land and stealing their resources (Clavero 2009). In fact, the United Information System of ONIC reveals a direct relationship between the arrival of mining or hydrocarbon extraction companies and an increase in collective and individual violations of indigenous peoples’ rights. ONIC representatives also emphasised the significance of considering usurpation of traditional territories as a strategy to expropriate indigenous peoples’ natural resources resulting in a form of genocide:

… genocide (was) still the expression of the State-arranged policy and the implementation of an economic model by which the usurpation of territories (was) an easy way to access the resources available in the indigenous territories. (ONIC 2010)

Conversely, the Colombian Government argued that indigenous peoples constitute the social sector with the greatest number of allocated hectares of land, surpassing the number of 30 million. Indeed, more than 25 million of these hectares were allocated by the Office of Indigenous Affairs with the purpose to create collective indigenous territories throughout the country which happened before the enactment of the 1991 Constitution, the first instrument that recognised indigenous peoples’ rights in Colombian history. Furthermore,

79% of hectares are located in the Amazon and Orinoquia areas, regions where a population of about 71,000 people lives, that is 5% of the total national indigenous population. (ONIC 2010)

Therefore, it has been incorrectly argued that the area allocated guarantees indigenous peoples’ physical and cultural existence in Colombia. On the contrary, the model of territorial usurpation is inserted into the logic of socio-environmental conflicts. The rise of those struggles revolves around the tenure and exploitation of indigenous territories and are framed by an economic system in which extractive industries indulge State interests to obtain raw materials and drive transnational competition to keep strategic lands and extend corporative tentacles to frontier territories (Rodríguez-Garavito 2011). These are precisely the regions which accommodate large numbers of indigenous peoples at risk of cultural and physical extermination and thus reveal particularly high levels of vulnerability. Land dimensions falling outside the established State-centric scope thereby fail to be recognised; ignoring as a consequence that in indigenous worlds, traditional territories are conceived as an ecological web that involves human and non-human actors (Duchesne Winter 2015). Such approximations as invoked in indigenous cosmovisions do not find recognition in territorial dimensions.

Similarly, indigenous peoples are considered most affected in terms of forced displacement or relocation: between 2002 and 2009 more than 1400 indigenous men, women and children were murdered as a result of the conflict; approximately 176 forcibly disappeared among which indigenous peoples form about seven per cent of the displaced population (ABColombia 2010). It has been in this context that the UNPFII stated that the indigenous genocide in Colombia is inextricably linked to economic policies underpinned by an extraction-based, inequitable and unsustainable development model (Clavero 2009). In fact, ONIC itself has associated the existence and risk of genocide on indigenous peoples with structural conditions: the current political economy, it is observed, is taking over indigenous peoples’ territories violently; and in this regard, ethnocentric policies concealed in the discourse of human rights may help to explain the existence of an ongoing indigenous genocide.

The UN Special Rapporteur at the time reiterated this, holding that indigenous communities in particular were under threat of cultural or physical extermination (Anaya 2010) exemplifying yet another facet of displacement policies. This in fact reopens debates on the very meaning and far-reaching consequences of forced displacements as such: it could be enhanced that the

notion of displacement instead of referring solely to the movement of people from their places of belonging, refers rather to the loss of the land and resources beneath them, a loss that leaves communities stranded in a place stripped off the very characteristics that made it inhabitable. (Nixon 2011)

This, in turn, lies at the core of indigenous collective community life being under threat of extinction and hence cultural genocide. It has been argued elsewhere that practices of forced displacement themselves could be considered breaches of indigenous peoples’ wide-ranging cultural practices encompassing

the rupture of indigenous calendars which traditionally calculate time for sacred, productive and political activities; the disruption and dispersion of ethnic educations processes, indigenous health practices, and those processes strengthening culture and identity; the change of cultural practices such as beliefs, manners and customs; and the breaking of supportive mechanisms of material and spiritual exchange such as the ‘minga’ constituting cooperative work for the common good or the ‘fogón’ being meetings around the fire to transmit and enhance their knowledge. (Bacca 2018)

Another way of exerting severe forms of violence includes homicidal attacks on indigenous leaders and similar forms of silencing. The connection between the neo-extractivist development model and violence that accompanies it is reaffirmed through a cultural-political order. The different armed actors in Colombia encompassing the regular army, guerrillas, paramilitaries or emerging criminal gangs feed the conflict in two ways: they try to win control over strategic territories from a military point of view and to control coca plantations, processing centres and routes to ensure successful marketing. This order has been imposed by force on indigenous territories and, consequently, tribal leaders have been singled out for homicidal attacks.

One emblematic tragic case of these entanglements is the abduction and subsequent murder of Kimy Pernía Domicó, an Embera Katío indigenous leader and water justice activist. Pernía’s leadership coincided with the implementation of the Colombian extractivist development model that had severe impacts on indigenous peoples’ lives. Most notably, Kimy led the collective mobilisation of the Embera Katío nation against the construction of the Urrá dam, a massive hydroelectric project of the Multipropósito Urrá S.A. Enterprise that would change the course of the Sinu River, a main stream that passes through the northern Antioquia province and continues its way across the north Cordoba province before flowing into the Caribbean. In a broader sense, Embera Katío resistance exemplifies a form of “environmental struggle of the poor” within the Colombian indigenous movement on the part of people who give their life to “offer resources of hope in the unequal battle to apprehend, to stave off, or at least retard the slow violence inflicted by globalising forces” (Nixon 2011, 30) in terms of an extractivist monist development model. ONIC itself has invoked ecology-related rights in relation to genocide stating that they have become victims of an “unconventional war being prosecuted by ecological means” (Nixon 2011).

It could also be argued that killing and abducting indigenous leaders can be considered as part of a broader strategy to weaken, and in some cases, destroy indigenous organisational processes all together. The latter takes place in the specific context of the armed conflict in Colombia where indigenous organisations are silenced alongside similar destructive strategies including the instauration of military bases without communities’ prior consent, the presence of anti-personnel mines in indigenous lands, the massacres perpetrated against indigenous communities, the forced enlisting of indigenous persons into illegal armed units, the accelerated loss of the native languages, the magnitude of the problem that displacement poses on indigenous women and children, and the continued violation of fundamental rights more generally. In such contexts, indigenous organisations and strong social movements can be considered threats to military hegemony and different military and politically powerful actors. As the former UN Special Rapporteur on the rights of indigenous peoples asserts:

many indigenous communities report selective killings of their leaders and spokespersons, and of their traditional authorities. Such killings appear to form part of a strategy to impede and confuse the indigenous communities, and they certainly hasten their social and cultural disintegration. (Stavenhagen 2004, para 29)

Eliminating indigenous authorities and organisations or preventing their proper functioning thus takes different shapes, in some cases, they are simply products or side-effects of other policies; in the latter case, they form part of an explicit and intentional strategy aimed at their elimination. The destruction of indigenous organisational processes gains particular importance in natural resource sector where silencing indigenous leaders and organisations severely affects indigenous peoples’ survival. In fact, indigenous leader Taita Víctor Jacanamijoy who was interviewed by the author underlined that indigenous political structures have been used to fight against indigenous genocide since colonial times. At the same time, this ongoing struggle is the backdrop for promoting traditional educational and health systems, or invigorating indigenous thinking, and repossessing communal lands.

Indigenous cultural genocide compared: natural resource contexts as spaces of violation

Given the sheer size of indigenous peoples in numbers in Bolivia, indigenous communities as a social group or movement have triggered extensive developments from below: an estimated indigenous population of about 61% has pushed for political, legal, cultural, linguistic recognition and respective pluralism and cultural multiplicities (Böhrt Irahola 2010) as well as more indigenous representation in the different organs of public power (Romero 2009) embedded in the 2008 Constitution. However, the current government has recently been subjected to severe criticism based on disguised forms neo-colonialism under a leftist regime and neo-extractivist policies. The TIPNIS conflict most emblematically reveals how indigenous Lowland people are undermined by a political regime in the Andes capital which determines the way development is understood (Postero 2017) and decisions on territorial issues are taken (Rossell Arce 2012).

In Colombia, by contrast, indigenous peoples have used the constitutional route to make their voices heard: with 3.4% of the total population and low demographic density, indigenous peoples could not form large social movements as in Bolivia or Ecuador (Jaramillo Jaramillo 2017). In the light of armed conflict and expropriation and the former indicators of vulnerability, indigenous organisation brought their concerns to the courts as a matter of last resort. Paradoxically, the Court responded as follows. Firstly, by enabling indigenous rights-enhancing and judicial strategies to flourish at national level; however, it also became a forerunner in Latin America and serves as a role model for the region (Aylwin 2017). This can be exemplified by its case law on prior consultation in which the Court requires the State to obtain indigenous peoples’ free, prior and informed consent alongside the right to consultation in development or investment projects which have a major impact (Corte Constitucional de Colombia decisions T129/11 and T769/09 respectively). And, secondly, by its interpretation concerning indigenous jurisdictions that has been assumed elsewhere as a legal defence of indigenous peoples’ rights. Conversely, critical remarks could be made: the decisions presumably “favouring” indigenous jurisdictions tend to identify indigenous populations as “object of protection” rather than as an active “self-determined subject” (Bacca 2008, 200). This becomes apparent in the case of “Special Indigenous Jurisdiction” in which the constitutional jurisprudence silences indigenous peoples’ voices by over-representing State-centric laws (Corte Constitucional de Colombia, decision T254–94; decision T494–96; decision T1127–01).

The terms “slow violence” or “slow-burning genocide” could be provocatively used to describe the Colombian case where the intended disappearance of indigenous peoples is underpinned by a variety of economic and developmental policies as well as criminal conducts such as land grabbing. Consequently, slow violence materialises in the form of structural or systemic violence inherent in the education system, in the way land deals are negotiated in the Bolivian case, for instance, but also other complex categories of violence enacted slowly over time (Nixon 2011). In that sense, any narrow definition of genocide would not cover the complexities, material expressions and particular policies that characterise the treatment of indigenous communities in the Bolivian and Colombian extractive sectors. It becomes clear that “generic” international legal categories exclude other forms of destruction: particularly the Bolivian case demonstrates that politics of dispossession does not have to be bloody to count as genocide, rather it could be argued that the specific intention is decisive (Clavero 2011a).

At first glance, indigenous peoples in Bolivia seem protected under a strong human rights catalogue, resembling a legal umbrella which has come to form part of the new Plurinational constitutional order established by an indigenous government under Evo Morales Ayma. Yet, the increasing demand for natural resources both worldwide and domestically have led to a particularly sophisticated form of dispossession in the natural resource sector as extraction is authorised and legitimised at all decision-making levels and instances. Most notably, participatory mechanisms may undergo processes of subversion, transforming social structures as indigenous representatives underlie direct influence by State and corporate institutions. Slowly, albeit with increasing certainty, traditional authority structures are eroded: this in a way exemplifies one of the State’s and corporate most sophisticated strategies in silencing local voices, in “circumventing cognitive dissonance” (Samson 2014, 253) in land deals or disguising dispossession and top-down style in the form of “participatory exclusion” (Akbulut 2012, 1626; Agarwal 2001). The slow burning impact can similarly be observed in terms of “collateral damage” or side-effects of extractive projects where co-optation of indigenous leaders take place. Demographic changes as direct results of poor water quality force considerable parts of the population to migrate elsewhere as both human and animal populations are affected by degrading water quality and quantity.

Contrary to the Bolivian case where leaders are co-opted and traditional decision-making mechanisms are subverted or destroyed in the long term, indigenous leaders who oppose extractive projects in Colombia are explicitly targeted and murdered in some cases. Selective killings have become a strategy to explicitly disenable and disempower indigenous communities and organisational structures hastening their social and cultural disintegration. Furthermore, indigenous peoples’ collective fight for lands, resources and legal reform is fundamentally jeopardised by such severe human rights violations adding weight to our proposal to identify such policies and adverse practice as cultural genocide by means of “culturally destructive processes” (Short 2010, 833), “slow violence” (Nixon 2011, 11) or even “slow-motion slaughter” (Clavero 2009, 2).

Reconceptualising cultural genocide: concluding remarks

Grass roots observations in both cases make us rethink indigenous peoples’ possibilities in shaping such very understanding, implying a conceptual transformation of the law and beyond. At the same time, this exposes the ambiguous role of international law in recognising indigenous rights and the need to think differently about indigenous legal thinking and practice. This might, in turn, require a transformative process, namely “indigenizing international law” (Bacca 2018), meaning that Western jurisprudential accounts as embedded in international law should be more perceptible to ecological and spiritual relations underlying indigenous peoples’ own laws. This has, in turn, spurred decolonisation processes in the very institutions creating the laws, finding institutionalised responses and constitutional accommodation in the Bolivian and Ecuadorian contexts as well as jurisprudential developments in the Colombian jurisdictions. Nevertheless, this procedural response requires a structural transformation of the very understanding of international law. This suggests, concomitantly, the reassessment of the epistemological trajectory by which Western jurisprudence in general, and international law in particular, have shaped legal doctrines and jurisprudential concepts in relation to indigenous rights, assigning to indigenous laws and its very peoples, an apparent Western essence and appearance in order for them to be “worthy of recognition” – a process that results in an obliteration of indigenous peoples and their knowledge.

This suggests, at the same time, recognition of a holistic approach integrating a pluralistic understanding, reading, creation and implementation of international legal standards, international human rights law in particular. In fact, violations of indigenous collective cultural rights have largely been neglected in current criminal legal accounts steered by a one-sided conception of the crime of genocide. Destructive practices have, however, assumed a multiplicity of dimensions encroaching upon indigenous very cultural identities and ultimately enjoyment of collective rights. The decolonising, indigenising approach towards international law hence entails a number of legal theoretical reconsiderations, recognising that such standards are both part of the problem and the solution to fulfilling indigenous peoples’ self-determination and ongoing genocide.

Existing international criminal law and human rights law create a somewhat isolated framework of distinct rights, drawing clear boundaries between the triadic legal regime protecting collective cultural rights, entitlements to land and natural resources, as well as rights to autonomy, self-governance and basic participatory rights. In that sense, existing international legal provisions require a re-opening of drafting processes, allowing indigenous peoples to articulate demands, enabling proper procedural and organisational particularities to find approval. Similarly, this concerns reconsiderations of existing land rights regimes that reveal blind spots as to cultural rights and inviolability of physical integrity. The slow-burning effects inherent to cultural genocide require a re-conceptualisation of genocide towards a gradual degradation or softening of constituent elements: the very systematic, gross, widespread criteria characterising genocide include high thresholds to be met which fall short of appreciating holistic human rights approaches in a non-anthropocentric spirit. The latter approaches concern non-absolute rights that may fail to qualify as cultural genocide, yet which would demonstrate similar degrees of intensity and urgency if understood in their entirety or by considering the longevity of violations and the recognition of indigenous territories as victims of such an ongoing genocide.

Both cases reveal the strong need for constitutionally departmentalising or subsidiarising any law dealing with the atrocious crime of genocide and its cultural dimensions: most notably, autonomies, and organisation of territories, and self-determination are key to both physical integrity and maintaining cultural practices. In fact, forced relocation practices reveal the disastrous effects of land-related violations on the erosion of community structures and cultural rights enjoyment more generally. Conversely, international conventions, customary law, general principles of law including jurisprudence such as developed by the Colombian Constitutional Court, however, remain silent on such intrinsic link. Similarly, extractive and other impacting operations have given rise to particular participatory rights such as the right to prior consultation and consent remaining largely disintegrated from the prohibition of (cultural) genocide. Relatedly, indigenous multifaceted demands of collective self-determination, for instance, do not enter the legal realm as established by criminal and human rights law on (cultural) genocide.

Re-conceptualising (cultural) genocide on indigenous peoples hence demands (I) a rethinking of related rights as relating to the former and (II) the very integration of the prohibition of cultural genocide into other legal orders such as ESC regimes, CPR standards and criminal codes. We thus deem an understanding of its surrounding codified framework and institutional contexts fundamental for appreciating the extent to which existing international criminal jurisprudence alienates itself from the collective cultural impact and identities it pretends to protect.

Additional information

Funding

The authors express their gratitude to the Fritz Thyssen Stiftung für Wissenschaftsförderung and the Universidad del Rosario, in particular the Rosario University Law School.

Notes on contributors

Jessika Eichler

Jessika Eichler holds the Alfred Grosser Chair at Sciences Po Paris (CERI)/Nancy and a Fritz Thyssen post-doc fellowship with the Law and Anthropology Department (Max Planck Institute) and trAndeS (LAI, FU Berlin). Jessika explores indigenous peoples’ rights from an interdisciplinary angle, informed by theoretical perspectives and empirical insights. Broader debates on collective rights, intersectionalities and human rights generally similarly fall within her field of interest.

Paulo Ilich Bacca

Paulo Ilich Bacca is the Director of the Ethnic and Racial Justice Department of Dejusticia, a Colombia-based research and advocacy organisation. As legal ethnographer, Paulo is proposing the idea of indigenising international law, following an anthropological turn in which indigenous cosmologies are directed to the framework of the international legal order. This displacement highlights the power of indigenous law to counteract international law’s colonial legacies while at the same time transforming and enriching its anthropocentric matrix.