A/HRC/42/37 Right to a fair trial 21. Among the rights to due process and a fair trial enshrined in article 14 of the International Covenant on Civil and Political Rights, are that all persons are equal before the courts, entitled to a fair and public hearing by a competent, independent and impartial tribunal and have the right to be presumed innocent until proved guilty. Everyone has the right to be tried without undue delay, to legal counsel and to the free assistance of an interpreter if they cannot understand the language used in court. 22. As mentioned above, the United Nations Declaration on the Rights of Indigenous Peoples underlines the obligation to provide interpreters in indigenous languages in judicial proceedings. 23. With regard to members of indigenous peoples who face criminal penalties under the general law, the Indigenous and Tribal Peoples Convention states that “account shall be taken of their economic, social and cultural characteristics”, and “methods of punishment other than prison shall be given preference” (art. 10). C. Indigenous concepts of law and justice 24. The customs, laws and judicial institutions of indigenous peoples are as diverse as the many distinct indigenous peoples, communities or nations and cultural groups that inhabit the globe. A general characteristic of indigenous justice systems that is fundamentally different from ordinary justice systems is that the sources of law applied do not derive from codified laws or tribunal decisions, but rather from oral histories, world views, spiritual and other cultural traditions, family or clan relations and obligations, and their close relationship with their traditional lands. In many respects, notions of justice or law are not seen as separate from spiritual, religious, cultural or other aspects of indigenous societies and cultures that bring coherence to their communities and are accepted by their members. Customary practices are an integral part of everyday life and play a key role in resolving disputes between indigenous individuals and communities, such as land disputes, conflicts between communities, management of natural resources and protection of the environment. 25. While exhibiting many levels of diversity and complexity across the globe, indigenous justice systems in general seek the restoration of harmony within the community, family or clan relations as an ultimate goal and emphasize the reintegration of offenders rather than retribution (see A/HRC/42/37/Add.2). 9 It is of their essence that the offender provides reparation for the harm caused. The resolution of conflict is situated in a broader social context and considers future relationships and cohesion in the community. 10 Procedurally, indigenous justice systems are less formal and adversarial than ordinary justice systems.11 The proceedings are generally led by traditional elders and often provide for the participation of not only the specific parties in a case, but also relatives of both parties and other members of the community. Compliance with indigenous justice sanctions tends to be strong and is ensured by the sense of spiritual duty and the importance of community belonging. 26. It is important to note that with the passage of time and contact with outside and dominant cultures, various indigenous customary norms and justice systems have undergone change and may have incorporated outside practices and concepts, but still constitute norms that derive from and are considered legitimate by indigenous communities. Indigenous justice systems generally are more flexible precisely because of 9 10 11 6 See also Brendan Tobin, Indigenous Peoples, Customary Law and Human Rights – Why Living Law Matters (Abingdon, United Kingdom of Great Britain and Northern Ireland, Routledge, 2014), pp. 29–32. See International Development Law Organization, “Navigating complex pathways to justice: engagement with customary and informal justice systems” (2019), p. 13. See Ada Pecos Melton, “Indigenous justice systems and tribal society” in Justice as Healing: Indigenous Ways, Wanda D. McCaslin, ed. (St. Paul, Minnesota, Living Justice Press, 2005), pp.108– 120.