A/HRC/42/37
support indigenous peoples in their advocacy for the recognition of their justice
systems.
107. States should include compulsory training on the status, concepts and methods
of indigenous justice in formal training programmes for judges, lawyers, prosecutors
and law enforcement officials, recognizing indigenous justice systems as a right.
108. States and indigenous justice systems should develop and institutionalize
processes of exchange of information, understanding and mutual capacity-building,
both within their countries and with their counterparts in other States with pluralistic
systems (A/HRC/15/37/Add.7, para. 9).
109. Discriminatory attitudes that assume that indigenous justice systems are
necessarily more prone to violations or abuses of human rights than State systems
should be rejected and countered. The engagement of State authorities with
indigenous justice actors should be based on the principle of respect and dialogue and
not unilateral and discriminatory subordination or interference. States must ensure
their own justice systems fully respect human rights, including the rights of
indigenous peoples, recognizing that cultural or other adaptations of the State system
may be necessary to this end.
110. In consultation with indigenous peoples and the United Nations mechanisms
dedicated to the rights of indigenous peoples, the Human Rights Committee should
consider reviewing the references in its general comment No. 32 to “courts based on
customary law”, in light of the United Nations Declaration on the Rights of Indigenous
Peoples.
111. Indigenous peoples, State authorities, international development actors, civil
society and other interested parties should coordinate efforts to help strengthen and
promote indigenous justice systems and provide them with the necessary funds and
logistical support.
Jurisdiction and judicial review
112. In delineating jurisdictional relationships between indigenous and ordinary
justice systems, the jurisdiction of indigenous systems should not be unduly restricted
and indigenous justice systems should not be deemed inherently inferior to State
systems. States must not allow situations of impunity to persist because of
jurisdictional ambiguity.
113. States and indigenous authorities should consider establishing joint
mechanisms for cooperation and coordination between indigenous and State justice
systems. While recognizing that each context is different, consideration should be
given to models whereby decisions from both indigenous and non-indigenous systems
are subject to review or appeal by an integrated judicial body comprised of both
indigenous and non-indigenous judicial authorities.
114. In countries where ordinary judicial authorities review decisions by indigenous
justice authorities, ordinary courts cannot make fair and impartial decisions without
an intercultural understanding of the particular context of indigenous peoples and
their institutions and legal systems, which can be enabled, for example, through the
participation of cultural experts. In particular, the participation of indigenous Elders,
traditional cultural authorities or anthropologists as experts in State courts should be
systematic when an indigenous defendant, victim or witness is involved.
115. Any processes of judicial or other review of the decisions of indigenous justice
decisions must give due consideration and effect to the obligation of the State to
respect and strengthen the rights of indigenous peoples to their juridical systems and
customs.
Indigenous justice and human rights
116. States should acknowledge that indigenous laws and juridical institutions
change and develop over time. Any codification of indigenous laws should be designed
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