CAPTIVE COMMUNITIES:  SITUATION OF THE GUARANÍ INDIGENOUS PEOPLE AND CONTEMPORARY FORMS OF SLAVERY IN THE BOLIVIAN CHACO
 

VI.       CONCLUSIONS AND RECOMMENDATIONS

213.          At this time, in the Bolivian Chaco, approximately 600 families are living in conditions that constitute contemporary forms of slavery. During its visit in June 2008 the Commission verified how members of the Guaraní indigenous people are kept in a situation of servitude whose origins date back over a century, and which has been perpetrated in the face of the passivity of the national and international community.^[304]

214.          The declarations made by the victims of such violations should suffice for the Government of Bolivia, all Bolivians, and the international community to take urgent international initiatives to bring an end to these practices, which constitute an attack on the most essential dignity of every human being.

215.          From the standpoint of international human rights law, the situation described represents violations of the American Convention on Human Rights and other international agreements signed by the Bolivian State that prohibit bondage, forced labor, and other practices similar to slavery, such as the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, ILO Convention 29 on forced or compulsory labor, ILO Convention 169 on indigenous and tribal peoples, and the United Nations Declaration on the Rights of Indigenous Peoples.

216.          The problem of bondage and forced labor in the Bolivian Chaco has its origins in the dispossession of their territory suffered by the Guaraní indigenous people over more than a century, which resulted in the subjugation of its members to conditions of slavery, bondage, and forced labor. The solution to this problem lies not only in the elimination of contemporary forms of slavery on the estates of the Chaco, but also in measures of reparation including the restitution of the ancestral territory of the Guaraní people and integral measures that solve their needs in health, housing, education, and technical training that would arise after the “emancipation” of the Guaraní captive communities.

217.          The IACHR recognizes that the efforts of the State to solve this problem face serious resistance from economically and politically powerful groups in the eastern region of the country who have strong ties to estate owners in the Bolivian Chaco. This has generated a climate of high levels of social conflict, with numerous violent incidents.

218.          The Commission reiterates the need to ensure that as part of the process of social inclusion, the State develop channels of dialogue so as to reach points of consensus that make it possible to resolve the differences in interests that underlie a multiethnic and multicultural country, especially in the context of implementing the provisions of the Political Constitution of the State. Nonetheless, the IACHR also reiterates that the State cannot derogate from its international obligations regarding the prohibition and eradication of contemporary forms of slavery to comply with some provision of its domestic law; and these obligations include the duty to prevent, investigate, prosecute, and punish the persons responsible for the use of such practices, which constitute crimes under Bolivia’s domestic law and under international law.

219.          The State also has the obligation, under the international instruments it has ratified, as well as the provisions of its own Constitution, to ensure the rights of the indigenous peoples to collective property, to their own forms of self-government, and to the development of their own cultural, political, social, and legal institutions, and at the same time to provide the financial and technical resources required by the members of the Guaraní people in the areas of health, housing, education, and professional training.

220.          The Commission’s recommendations are aimed at helping the Bolivian State in the design of an integral state policy that takes account of the specific needs of the members of the captive communities. The recommendations have three dimensions:  (1) recommendations to prevent, investigate, and punish contemporary forms of slavery; (2) recommendations to reconstitute the territory of the Guaraní indigenous people; and, (3) recommendations to guarantee access to justice for the Guaraní indigenous peoples and all other indigenous peoples in Bolivia.

221.          The Commission is aware that the change in direction needed to solve the structural problems of more than a century is no easy task. Through this report, the Commission reaffirms its willingness to continue working to protect human rights in Bolivia, and, in that regard, it will follow up on each of the issues described and on the implementation of the following recommendations.

Recommendations to prevent, investigate, and punish contemporary forms of slavery in the Bolivian Chaco

1.                  Immediately investigate, prosecute, and punish all those who continue to keep persons in conditions of bondage and forced labor, pursuant to the international law obligations contracted by Bolivia and to the Bolivian Criminal Code, which defines slavery and conditions similar to slavery as crimes; and likewise adapt agrarian policy and legislation so as to provide that bondage and forced labor are punishable offenses, in addition to being grounds for the reversion of agrarian lands.

2.                  Adopt the measures necessary for eradicating all types of discrimination based on the indigenous condition of persons under its jurisdiction, particularly promotion campaigns to raise the awareness of the national population, and the public servants of the Bolivian State, as to the discrimination against the Guaraní communities and their subjugation to bondage and forced labor.

3.                  Design public policies for eradicating all forms of discrimination against the Guaraní workers in the Chaco, and in particular see to the strict enforcement of labor laws on the length of the workday and equality of pay compared to all other salaried workers.

4.                  Design policies for eradicating all forms of discrimination against Guaraní indigenous women in the Chaco, and in particular see to the strict enforcement of labor laws on length of the workday and equality of pay compared to men.

5.                  Design and implement policies for eradicating the work of children under 14 years of age in the Chaco region, and see to the strict enforcement of the standards in which work is allowed for persons under 18 years of age in terms of social rights, as well as the restriction on length of the workday and the activities performed.

6.                  Create spaces for inter-institutional dialogue and a greater degree of cooperation to eradicate practices similar to slavery in Bolivia.

7.                  Adopt the measures necessary for achieving the greatest possible coverage of judges, prosecutors, and public defenders in the Chaco region in Bolivia. These measures should include support in terms of the budget and human resources so that in addition to the physical presence of the respective authority, his or her permanence and the stability of the staff should be guaranteed.

8.                  Create and improve systems and records of statistical and qualitative information on the number of persons subject to bondage, forced labor, and other practices similar to slavery in the Chaco region and the rest of the country. Special attention should be given to the number of children and women in those conditions.

9.                  Incorporate the voices and specific needs of the indigenous peoples and of the organizations that represent them in the design of legislation and public policies aimed at eradicating the conditions of servitude and forced labor to which their members are subjected.

10.              Strengthen the legal system and create mechanisms of coordination between the criminal jurisdiction and the agrarian jurisdiction to overcome gaps in the investigation, prosecution, and punishment of the persons liable for the crimes of bondage and forced labor.

11.              Make a diagnosis of the problems in the Public Ministry that keep it from being able to act on its own initiative in investigating and punishing the cases of bondage and forced labor reported to this body, and to all the institutions of the State, and provide the economic, technical and human resources that the Public Ministry needs to undertake its work of investigation and punishment.

12.              Strengthen the mechanisms used by the Public Ministry for receiving and responding to the complaints as to the existence of practices similar to slavery made by the indigenous peoples, the organizations that represent indigenous peoples, other government institutions, the Human Rights Ombudsman, and civil society in general.

13.              Provide the economic, technical, and human resources necessary to strengthen the National Agrarian Tribunal, and facilitate the capacity of that Tribunal, in coordination with the Public Ministry and other institutions of the administration of justice and agrarian reform, to collaborate in the investigation and punishment of practices similar to slavery in the Chaco and other regions of the country. Give impetus to the resolution, by this body, of the challenges to the reversion orders or other orders as part of the process of clearing title so as to benefit the Guaraní people.

14.              Promote the operation of the Constitutional Court to avoid delays in the administration of justice in the cases decided by the Agrarian Tribunal and other entities and jurisdictions involved in the process of eradicating the practices of bondage, forced labor, and other practices violative of human rights.

15.              Identify and create inter-institutional indicators and systems for monitoring with a view to implementing the legislation and policies aimed at eradicating, investigating, and sanctioning contemporary forms of slavery in the Chaco region and nationally.

            Recommendations to reconstitute the territory of the Guaraní indigenous people

16.              Adopt a comprehensive plan for the territorial reconstitution of the Guaraní indigenous people with special attention to the rights to collective property, self-government, education, health, housing, and training services in the area of agriculture and other economic activities.

17.              Develop channels of dialogue to reach consensus and pursue negotiations on the differences in interests and priorities that underlie the process of resolving the claims of the Guaraní people.

18.              Ensure that the current measures taken by the State in this area, such as the process of clearing title under the agrarian legislation and the 2007-2008 Transitory Inter-Ministerial Plan for the Guaraní People are in line with international standards as to the scope and contents of the rights of indigenous peoples to their lands, territories, and natural resources; forms of social, political, and cultural organization; and the right to consultation and to the prior, free, and informed consent of the indigenous peoples. In this respect, special attention should be given to the provisions contained in the international human rights instruments ratified by the State, particularly ILO Convention 169 on indigenous peoples, the United Nations Declaration on the Rights of Indigenous Peoples, and the standards established in the case law of the inter-American human rights system as interpretation of the rights enshrined in the American Convention on Human Rights.

19.              Ensure that all the measures taken by the State for the restitution of the territory of the Guaraní people, such as clearing title, expropriation, and reversion of lands, be taken with the consensus of the Guaraní people, in keeping with their own procedures for consultation, values, uses, and customary law.

20.              Ensure that the tracts of land received by the communities belonging to the Guaraní indigenous people are sufficient to ensure the maintenance and development of their own ways of life.

21.              Ensure that the Guaraní communities that receive territory as part of the process of territorial restitution obtain the political, technical, or financial support they need to exercise their rights to autonomy, self-government, and political participation guaranteed by the Political Constitution.

22.              Guarantee the right of the communities of the Guaraní people, before and after obtaining legal recognition of their territories, to determine and articulate their own priorities and strategies for development and to participate actively in the design and determination of their health and housing programs and all other economic and social programs that concern them and that they administer those programs through their own institutions.

23.              Adopt special measures to ensure the continuous improvement of the economic conditions in the spheres of education, employment, training and professional re-training, housing, sanitation, health, and social security for the members of the Guaraní indigenous people.

24.              Ensure that the collective property rights acquired by the Guaraní communities also guarantee the rights over the natural resources in their territories.

25.              In terms of other types of measures, activities, laws, or policies that affect the interests of the communities of the Guaraní people, the State should ensure the participation of those communities by means of a process of consultation that entails the obligation to obtain their prior, free, and informed consent in keeping with their own customs and traditions.

26.              Identify and create inter-institutional indicators and monitoring systems so as to implement the legislation and policies aimed at resolving the situation of the communities of the Guaraní indigenous people in relation to their rights to their lands, territories, natural resources, and the development of their own institutions and the satisfaction of their needs in the areas of health, education, housing, and other social services.

27.              Identify and resolve possible unmet demands of the Tierras Comunitarias de Origen, particularly in the Alto Parapetí, as a result of prior processes of clearing title undertaken in the region. The resolution of those demands should conform to the same standards on the rights of indigenous peoples mentioned above.

Recommendations to guarantee access to justice for the Guaraní indigenous people and all other indigenous peoples in Bolivia

28.              Adopt and reform national policies and laws so as to institute effective procedures to solve the indigenous peoples’ land claims – with special attention to the situation of the Guaraní communities in the Chaco region.

29.              Adopt and reform the national legislation so that the indigenous peoples can institute legal proceedings, personally or through their representative bodies, to ensure respect for their human rights. Such procedures should be fair and equitable and lead to prompt decisions with effective reparations for harm to their individual and collective rights. Particular attention should be given to the cases related to injuries suffered by indigenous individuals who have been victims of acts of violence.

30.              Ensure that the administrative steps of the procedures for claiming indigenous lands are accessible and simple, and that the bodies in charge of them have the necessary technical and material conditions for providing a timely response to the requests made by the indigenous peoples in the context of those procedures. In addition, those procedures should consider the customs, traditions, norms, and legal systems of the interested indigenous peoples as well as international human rights standards. Further, in the legal procedures in which members of indigenous peoples participate, the presence of interpreters of the respective indigenous languages should be guaranteed, if those participating deem it necessary.

31.              Adequately implement national legislation to ensure compliance with the time periods established in the law for resolving the actions, appeals, or other remedies pursued within the administrative, legal, or other procedures relating to the rights of the indigenous peoples.

32.              Ensure that there is a sufficient presence of authorities on labor and judicial matters in the regions where indigenous peoples are found, particularly in the Chaco region.

33.              Incorporate the specific voices and needs of the indigenous peoples and of the organizations that represent them in the design of legislation and public policies aimed at improving access to the national justice system by the indigenous peoples.

34.              Adopt immediate measures for ensuring effective training in labor rights and indigenous rights for all public employees (including prosecutors, police, judges, public defenders, and administrative officers) who might be involved in processing cases on situations of bondage, forced labor, or acts of violence against members of indigenous peoples so that they apply the domestic and international provisions for adequately prosecuting these crimes and so that they respect the integrity and dignity of the victims and their next of kin when reporting these acts, and during their participation in the judicial proceeding.

35.              Facilitate free legal assistance to address the demands the members of indigenous peoples may have, particularly in isolated areas such as the Chaco. Coordinate with other state institutions to facilitate the right of access to justice for the indigenous peoples. Implement larger sums of state resources allocated to the agencies in charge of providing legal assistance services to the indigenous peoples.

36.              Increase investments in health and education. Particular attention should be given to disseminating information with respect to the labor rights, agrarian rights, and human rights of the indigenous peoples.

37.              Ensure that the members of the indigenous peoples have identification papers to facilitate their participation in state assistance programs, and to gain access to the national justice system.

38.              Identify and create inter-institutional indicators and monitoring systems for the implementation of the legislation and policies aimed at ensuring the right of indigenous peoples to have access to justice.