Indigenous justice in Guatemala: Indigenous women’s access to justice versus indigenous communities’ collective rights

Abstract

In 2016, the Constitutional Court of Guatemala ruled in favor of validating the application of ancestral justice by the indigenous authorities of the community of Comitancillo, San Marcos, to an individual who raped a 10-year-old girl. In addition to recognizing the application of an ancestral punishment that consisted in asking for forgiveness and receiving some lashings from members of his family as valid, the court ordered the dismissal of the case in the legal ordinary system, claiming the aggressor had already been judged and punished. This study analyzes the challenges regarding indigenous women and girl’s access to justice due to legal pluralism in the country and discrimination in the state’s legal system. It argues that the collective rights of indigenous peoples regarding the application of justice by their ancestral authorities are gaining ground in detriment to the individual rights of indigenous women and girls, as a result of a lack of gender perspective in both the indigenous communities and the legal ordinary system. Moreover, it reveals how the absence of recognition and regulation of indigenous justice in Guatemala’s legal framework is leading to a violation of women and girls’ human rights.