infanticide

Maíra de Paula Barreto

In Brazil, the position of many representatives of the responsible governmental agencies for indigenous questions is for the non-interference in cultural practices. There is a lack of official data concerning infanticides committed within the tribes. It is known that infanticide occurs mainly (it may vary from ethnic group to ethnic group) when the child is born with some disability, when twins are born, when a single mother gives birth.

The universality of human rights defends that they are valid for all people, regardless their culture, ethnic group, sex, etc. So, legally, Brazil adopts the human rights as universal, but in practice, Brazil is adopting a policy of tolerance about cultural practices that violate human rights (such as the right to life and physical integrity, guaranteed to all Brazilian children).
In an UNICEF study called "Ensuring the rights of Indigenous Children", there was a reference about harmful traditional practices:
"On the other hand, group claims that seek to maintain traditional acts otherwise deemed prejudicial to the child's dignity, health or development – this would be the case, for instance, with female genital mutilation, non-consensual marriage or inhuman or degrading punishments for antisocial behaviour – contravene the rights of the individual and therefore cannot be legitimized as a right by the community. It is an operative principle under international law that the individual should receive the highest level of protection and, in the case of children, 'the best interests of the child' (CRC Article 3) cannot be neglected or violated to safeguard the best interests of the group."
Although there is enough legislation (national and international) about the prevalence of human rights when it comes to harmful traditional practices, there is no specific mention about indigenous infanticide on the UN documents. When it comes to infanticide, only the female type is referred.
For example, the item 48 of the Fact Sheet n. 23 about Harmful Traditional Practices Affecting the Health of Women and Children, produced by the Office of the United Nations High Commissioner for Human Rights, says that:
"Female infanticide and female foeticide should be openly condemned by all Governments as a flagrant violation of the basic right to life of the girl child."
It is common to find more about harmful traditional practices in a female context. The Resolution adopted by the General Assembly in the year 2002, called "A world fit for children" asks to:
"9. End harmful traditional or customary practices, such as early and forced marriage and female genital mutilation, which violate the rights of children and women".
The most discussed traditional practice is the female genital mutilation and there is a study of the UNICEF called "Changing a harmful social convention: female genital mutilation/cutting". As the other documents, it says that:
"International human rights instruments promote the right of an individual to participate in cultural life, but they do not uphold traditional practices that violate individual rights. Therefore, social and cultural claims cannot be evoked to justify FGM/C. In deciding to abandon FGM/C, a community is not rejecting their cultural values, but rather a practice that causes harm to girls and women and reinforces gender inequalities."
It is important to emphasize that ATINI's cause is totally in accordance with the UN principles and international law. It is also in accordance with Brazilian law (that has signed all main Human Rights Treaties and has a very complete list of fundamental rights on its Constitution). People who have different opinions on this subject (such as "cultural practices should prevail even when they violate human rights”) are not covered, endorsed by the law. It is a delicate issue indeed, but the UN and International Law positions are quite clear about harmful traditional practices.
The Brazilian Decree nº 5.051, from 2004 (which is the ILO Convention nº 169), ensures to indigenous people the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national and international legal system.
The Convention on the Rights of the Child establishes that States Parties shall take all effective measures with a view to abolishing traditional practices prejudicial to the health of children. Moreover, the Brazilian Federal Constitution and the Statute of the Child and Adolescent guarantee the child's right to life as the right par excellence.
It is important to stress that the culture is dynamic and not immutable. The culture is not the highest value to be protected, but the human being, trying to minimize his suffering.
ATINI believes that a more immediate solution (but not definitive) for this delicate problem would be an adoption policy (only when the treatment and reinstatement are not possible), to assure this indigenous children the right to life, for they are protected by the Brazilian judicial system, but neglected by the governmental actuation.