2Since the 1980s and 1990s, Latin America has witnessed a transformation in how it views “national regimes of otherness,” often referred to as the “multicultural turn” (Gros and Dumoulin 2011). Contrary to historical republican principles of integration through miscegenation, Latin American states have recently officially recognized the multiplicity of affiliations, particularly indigenous and afrodescendant affiliations. This “multicultural turn” has given rise to many studies on claims of ethnic citizenship, to the implementation of policies of difference, to the attribution of rights based on identity, and to an emphasis on cultural practices. However, because States have often failed to translate multicultural policies into reality, political action has increasingly become a judiciary process (Feoli 2016) and legal action has now become a fundamental way of asserting citizenship rights. In a Latin American context marked by violence, the legal system seems to be the last bastion to be conquered to achieve the recognition and redistribution promised by multicultural laws. International law, and more particularly international human rights law, has thus been described as the new “cosmopolitan legality” and “counter-hegemonic globalization” (Rodríguez Garavito and de Sousa Santos 2005). One of the challenges of the Inter-American Court has been to formulate a universalist logic with respect to the law, that denounces all forms of discrimination, while at the same time defending a differentialist logic that attributes specific rights to minority groups.

5Between 1991 and 2022, I identified 46 cases submitted to the Inter-American Court that I consider to involve ethnic and racial issues; 38 cases were resolved and 8 are currently pending resolution; of these 38 resolved cases, 23 involve at least one anthropologist. The first section of the article looks at the origins and workings of the Inter-American Court and the emergence of two major changes: the development of an international human rights law for indigenous and afrodescendant peoples; and the use of anthropological expertise. The next section compares the comments of anthropologists during the hearing in the Awas Tingni case (Nicaragua, 2001) considered to be at the origin of the Inter-American Court’s ethnic and racial jurisprudence, and the reinterpretation of their comments by the judges, and notably the way the notion of cosmovision was imposed as a link between traditional and international law. The third section examines the contradictions in the role ascribed to anthropology: while the judges consider it as a positivist demonstration based on scientific objectivity, the anthropologists justify their participation in the trials by their support for the indigenous and afrodescendant cause, in the name of an activist anthropology. The final section analyzes the alternatives that anthropologists have tried to bring to the Court’s “legal categorizations” (Colemans and Dupret 2021) and to the instrumentalization of knowledge in an essentialist conception of difference.

Judges, anthropologists, and indigenous and afrodescendant peoples at the Inter-American Court of Human Rights

6The Inter-American Court of Human Rights is one of the entities belonging to the Organization of American States (Pasqualucci 2013). It is governed by the American Convention on Human Rights, which was adopted on November 29, 1969, in Costa Rica and came into force on July 18, 1978. The Convention has established a list of rights that States must respect, and the Inter-American Court ensures that they are respected. Three parties are involved in Inter-American Court proceedings: the Inter-American Commission on Human Rights, which submits the case to the Court on behalf of the Inter-American Human Rights System; representatives of the State accused of violating the rights enshrined in the American Convention; and representatives of the victims. This adversarial procedure is central to the Court’s legal system; it guarantees institutional impartiality between the parties and the expression of antagonistic viewpoints regarding the facts and their interpretation. Each party bases its allegations on the statements of victims, witnesses, and experts expressed in person during the hearing or in writing. Any citizen or social organization can lodge a complaint against a State by following a formal procedure: after all legal remedies have been exhausted at the national level, the complaint is submitted to the Commission, which checks its form and content, and refers it to the Inter-American Court. The procedure, which can take years, leads to a friendly settlement agreement or a trial, usually held at the Court’s headquarters in San José, Costa Rica. At the end of the trial, the Court demands reparations from the States deemed responsible to guarantee that violations are not repeated in the future. The Court’s judgments are binding and final, but there is no coercive mechanism to compel States to comply with them.

7The Inter-American Court has been recognized for the innovative nature of its judgments. The distinctive feature of the Inter-American Court regarding human rights (Hennebel and Tigroudja 2009) is notably the emergence of rulings with an ethnic and racial dimension. Although the Inter-American Court’s actions are based on the principle of universality, and on the American Declaration of the Rights and Duties of Man (1948) and more specifically the American Convention on Human Rights (1969), it has introduced international laws that provide specific protection for the continent’s indigenous and afrodescendant peoples. The Awas Tingni case (v. Nicaragua, 2001) in which Nicaragua was accused of violating collective land rights, is considered the starting point of the Inter-American Court’s ethnic jurisprudence (see Wiggins, 2002, for a description of the way the case was submitted to the Inter-American Court and the social and political issues involved). For the first time, the Inter-American Court referred to Article 21 of the American Convention, which concerns the rights of individuals to property, to claim that it also guarantees a form of collective land ownership considered to be specific to indigenous peoples. The Awas Tingni case set a legal precedent, but it had an additional novel aspect: the introduction of anthropology. Four anthropologists were heard as experts during the trial: Rodolfo Stavenhagen, a Mexican university professor who had held and would subsequently hold various positions at UNESCO, the ILO and the UN (including that of special rapporteur on the rights of indigenous peoples between 2002 and 2008); Charles Hale, professor of anthropology at the University of Texas, a specialist in indigenous issues, and more particularly for Nicaragua; Galio Gurdián, founder of the Central American and Caribbean Research Council, an NGO of professors and activists –of which Charles Hale was also a member– that defends racial, cultural and economic equality, particularly on the Caribbean coast of Central America; Theodore Macdonald, professor of anthropology at Harvard University and member of the university’s Committee on Human Rights Studies, who, between 1979 and 1994, led projects for and later headed the NGO Cultural Survival which played a major role in raising awareness about indigenous issues at the international level in the 1980s.

8The expert is defined by the knowledge and ability to enlighten the judge’s decision.

The term ‘expert witness’ refers to the person who, possessing particular scientific, artistic, technical, or practical knowledge or experience, informs the Court about issues in contention inasmuch as they relate to his or her special area of knowledge or experience. (Rules of Procedure of the Inter-American Court of Human Rights, 2009, art. 2)

9The choice of evidence and experts is made in accordance with the adversarial procedure characteristic of the Inter-American Court. The parties (Inter-American Commission, State representatives, victims’ representatives) submit a list of pieces of evidence and names of experts to the Court. The other parties have ten days to challenge the list; in the event of disagreement, the judges make the final decision. They may also request, at any stage of the proceedings, the authorization to introduce new evidence or expert witnesses. The parties who have requested an expert witness must provide the object of the expert’s statements before the hearing. The expert makes a ten-minute presentation, then answers the questions raised by the parties, who have ten minutes each. The expert then answers the judges’ questions, which have no time limit.

Cosmovision: a dialogue between traditional and international law in the name of anthropology

11The Awas Tingni case gives Antônio A. Cançado Trindade the opportunity to associate his universalist philosophy of human rights with his spiritual concerns regarding the relationship between the living and the dead. Of Brazilian origin, Antônio A. Cançado Trindade was elected twice to the Inter-American Court (in 1994 and 2000). He was also appointed Vice-President (from 1997 to 1999) and President (from 1999 to 2001, during the Awas Tingni case, and from 2002 to 2004). He went on to become a judge at the International Court of Justice in The Hague (from 2009 to 2022). His many publications, the critical studies of his doctrine, and his famous personal opinions in judgments of the Inter-American Court and of the International Court of Justice (Spielmann and Drzemczewski 2014, Tigroudja 2018) provide valuable insights into his thinking. His writings notably focus on international law, the humanization of law and the human person in international justice (Cançado Trindade 2008, Burgorgue-Larsen 2012). His consideration for individuals and their suffering, and a return to the law of nations (jus gentium) are considered his major doctrinal contributions. Drawing on a wealth of literature from legal theory and moral philosophy, he discusses the relationship between life and death, the duties of the living towards the dead, and how international law takes these into account. His goal is to defend individuals against States; the question of a collective right is not one of his concerns. The Awas Tingni case was the opportunity for him to apply his ideas about death and spirituality to indigenous peoples and establish a link between cosmovision, traditional law and international law, and thus to lay the foundation for an indigenous jurisprudence stemming from indigenous law.

12Antônio A. Cançado Trindade claims to base his opinion on the anthropological expertise provided, but this expertise is distorted by the oral (hearing) and written (judgment) legal procedure. Extracts from Theodore Macdonald’s interview (Awas Tingni hearing, November 16, 17, 18, 2000) illustrate this point.

State: The first question that comes to my mind when I see a map that supposedly evinces an ancestral presence is whether an ancestral possession and history can be constructed of indigenous peoples of differing ethnic groups. (…)

Theodore Macdonald: At that time, it was not necessary because there were no threats. The question of boundaries, or rather the sense of boundaries (sentido de fronteras), became stronger little by little with more interaction with neighboring communities. (…)

Antonio A. Cançado Trindade: Could you elaborate, explain to us of what that consists, in the cosmovision of the community, this ‘sense of boundaries’?

Theodore Macdonald: Yes, I mention sense because, in the beginning, there were not many conflicts. They had an idea of their territory; the idea comes, as you mentioned, from the cosmovision. (…) The presence of the animals and the possibility of using the animals through hunting is based on the cosmovision. (…) So, there is a very strong cosmovision link with these sacred sites (…) a special relationship –spiritual, they can be called– with the mountain animals. That is their sense of being from the territory.

14The same semantic shift could be seen in Rodolfo Stavenhagen’s statements. He gave a highly academic speech tracing the history of the domination of indigenous peoples from colonization to the present day using notions such as structural discrimination, second-class citizenship, subordination and so on. In his very political overview, he reminded the Court that the land “[is] part of the geographic space and the social space, of the symbolic space, of the religious space with which the history of indigenous peoples is connected and with which the current functioning of those same peoples is connected.” Antônio Cançado Trindade resumed his questioning and once again addressed the issue of land:

Professor Stavenhagen, in your statement you referred to the land (…) as a social space with a religious origin. I would like to know if, in your opinion, that conception has been accepted by all indigenous customary laws and, if so, if it has been adequately accepted by the internal public law of the State and the international human rights instruments?

15Here again, the President of the Court interpreted the expert’s words in his own way, limiting to the religious dimension alone the original reference to a geographic, social, symbolic and religious space, and seeking to establish a correspondence between religion, traditional law, national law and international law. Rodolfo Stavenhagen’s response stays in the context introduced by Antônio Cançado Trindade. He talks about the link between the Earth and religion, spirits and the buried dead, which “forms part of the indigenous cosmovision.” Antônio Cançado Trindade’s continued interest in the indigenous religion and cosmovision has a purpose from a legal perspective: they form the basis of the “traditional rights” of indigenous peoples, which the Inter-American Court has the unique opportunity to recognize in international human rights law.

16In the judgment, the term cosmovision appears in the summaries of the hearing of Theodore Macdonald and Rodolfo Stavenhagen, and the text suggests that both speakers introduced it themselves. In Theodore Macdonald’s testimony: “the presence of animals and the possibility of hunting them is based on their cosmovision…” (Awas Tingni, 2001, par. 83, c). The term cosmovision is used twice more in the judgment in the separate opinion signed jointly by three of the Inter-American Court’s seven judges, including Antônio A. Cançado Trindade. The territory is now considered sacred, a place where customs and ancestors are preserved. Referring to ancestral law, the separate opinion considers that the Court, for the first time, establishes a correspondence between an indigenous cosmovision, ancestral law and international law.

17Anthropology made its entrance in the Court but was conditioned and shaped by the legal framework. The indigenous vision adopted by the Inter-American Court was based on a selective understanding of the anthropologists’ empirical data. The four anthropologists invited to the Court presented a complex and changing situation. They referred to a certain ancestry, to specific cultural practices, and to an autonomous organization. But they also mentioned overlaps (traslapes) and territorial conflicts, the presence of several ethnic groups on the same territory, the migratory dynamics of the region’s indigenous peoples, and the economic exploitation of forest resources by indigenous peoples. The expertise they shared, and the documents submitted describe a dynamic, unstable socio-historical situation with multiple stakeholders (different indigenous groups, afrodescendant and mestizo populations, the State and its regional administrations, and foreign companies), while highlighting the originality of the Nicaraguan context (revolution, autonomy of the Caribbean region, adoption of a multicultural philosophy). The judges, however, turned away from nuanced and contradictory empirical data, of which they were fully aware, to adopt an essentialized and disembodied representation of the “indigenous person”, that formed the basis for their future jurisprudence. As Tom Antkowiak (2013: 160) notes, “it all started with Awas Tingni” when the Court invented “‘idealized’ indigenous peoples who sustain themselves pursuing only ‘traditional’ relationships with ancestral lands.” The “special relationship” between indigenous peoples and nature, their immemorial cultural and spiritual characteristics, and the correspondence between cosmovision, traditional law and international law were affirmed. And this was established in the name of anthropology, which produces a far more complex and contextualized discourse than what the judges drew out of it.

Positivist anthropology, activist anthropology and anthropology for the Court

19In the Awas Tingni case, two anthropological texts were more specifically discussed during the hearing. One is the “Diagnostic study of land tenure in the indigenous communities on the Atlantic Coast” (Diagnóstico de la tenencia de la tierra de las comunidades indígenas de la Costa Atlántica), written by the Central American and Caribbean Research Council (1998) and signed by Galio Gurdían and Charles Hale, among others, who were heard in the Awas Tingni trial. Drafting of the second document “Awas Tingni, an ethnographic study of the community and its territory” (Awas Tingni un Estudio Etnográfico de la Comunidad y su Territorio) was coordinated by Theodore Macdonald, who was also an expert in the Awas Tingni trial. These two reports were frequently cited as evidence at the hearing and in the Inter-American Court ruling. The words “knowledge,” “scientific point of view, “no doubt”, “demonstrate” are mentioned in the judges’ presentation of the reports during the hearing.

20The reports were considered by their authors to reflect their activist anthropology and their advocacy for the indigenous peoples. The study “Awas Tingni, an ethnographic study of the community and its territory” was written to back the Mayagnas’ demands for recognition of their lands, based notably on participatory mapping. Its conclusion is clear:

This report shows that the Mayagnas of Awas Tingni have established and continue to maintain a system of land use and a form of settlement linked to it. They recognize that this is their traditional territory. (Macdonald 1999: 67)

21In an article written before the trial, Theodore Macdonald claims that the purpose of anthropology is to serve the legal cause.

The project’s anthropological work and mapping, although guided by objectively defined parameters, are part of the advocacy that is done in the community’s behalf. (Anaya and Macdonald 1995, unpaginated)

22The other document, “Diagnostic study of land tenure in the indigenous communities on the Atlantic Coast” also follows the principle of participatory research and support for indigenous and afrodescendant peoples. A few years later, Charles Hale used the Awas Tingni trial to illustrate his activist approach to anthropology, which represents “a political alignment with an organized group of people in struggle” (Hale 2006: 112). He points out the need to “give crucial support to the claims of the community, wrapping those claims in a mantle of scholarly authority” (Hale 2006: 97). The issue is not to discuss Mayagna culture in academic terms, an approach Charles Hale disqualifies as “cultural critique,” but to achieve a legal victory that could legitimize similar claims by other indigenous and afrodescendant peoples.

23During the hearing, the Nicaraguan State representatives refuted the legitimacy of the reports and the experts’ testimonies. First, they argued that the diagnosis coordinated by the Central American and Caribbean Research Council does not include the Mayagna peoples. Second, to the investigation led by Theodore Macdonald, they opposed a counter-expertise by Ramiro García Vásquez, a Nicaraguan archeologist, and asked that it be added to the official trial documents. The judges did not take into account the Nicaraguan State arguments that questioned the value of the evidence and, beyond that, of anthropological knowledge. At no time did the Inter-American Court judges consider as possible signs of partiality, scientific activism or invalid evidence the experts’ open support for the Mayagna cause and their contribution to the drafting of documents whose conclusions support the indigenous claims against the Nicaraguan State, which were used as evidence during the trial. More generally, in their expert appraisals, anthropologists often draw from local knowledge, oral history and participatory mapping to understand the historical and cultural characteristics of indigenous and afrodescendant peoples, whereas the States only recognize the archives, censuses and maps prepared by their own administrations. This conflict over the source of legitimate legal knowledge (Wainwright and Bryan 2009) is not discussed by the judges, who, de facto, include oral and popular knowledge as evidence, against the advice of the States.

24The Triunfo de la Cruz and Punta Piedra cases (Honduras, 2015) confirm the discrepancy between the positivist anthropology of the Court and the activist anthropology of the experts. These cases dealt with the Honduran State’s failure to respect collective ownership of the land of the Garífunas, a group of mixed African and indigenous origin. Christopher Loperena, a professor of anthropology at the University of San Francisco at the time, took part in these trials in several capacities: he was heard as an expert proposed by the victims’ representatives in the Punta Piedra trial; his expert testimony was cited by the judges in the Triunfo de la Cruz case; he submitted an amicus curiae brief, which is an outside opinion from a specialist not directly involved in the legal case, in the Triunfo de la Cruz trial. A few years earlier, Christopher Loperena had dedicated his doctoral dissertation in anthropology to Miriam Miranda and the OFRANEH, Organización Fraternal Negra Hondureña, representing the victims in the Triunfo de la Cruz and Punta Piedra cases (Loperena 2012, v). Christopher Loperena claims the same role of “activist researcher” as Charles Hale, his dissertation supervisor (Loperena 2012: 6-9), and yet his advocacy for the victims is never mentioned in the legal proceedings.

25When examining Christopher Loperena’s writings, different nuances can be found in his anthropological discourse: while the amicus curiae and the expert report mostly emphasize the richness and originality of Garífuna culture and the threats to it, the doctoral dissertation adopts a more political angle of research. The expert report on Punta Piedra, for example, focuses on Garífuna culture, society and ethnicity (Christopher Loperena, expert report to the Inter-American Court, August 22, 2024: 1), warns of transformations in ancestral practices leading to “cultural loss” or “cultural genocide,” focuses on the Garífuna cosmovision, and stresses the opposition between two reified groups, Garífunas and non-Garífunas, the latter seen as invaders with practices that destroy the land and the environment. The dissertation, however, places greater emphasis on the “processes of political struggle” and claims that Garífuna culture is “commodified in accordance with the racial structuration of Honduran society” (Loperena 2012: viii). Culture thus appears to be a resource that can be used to make political claims. “Since cultural rights are an idiom understood by the state, Garífuna land rights defenders make claims on the basis of cultural difference” (Loperena 2012: 210).

26When the activist anthropologist-expert testifies both as an impartial anthropologist in the legal procedure (expertise and amicus curiae) and as an anthropologist who mentions in his doctoral dissertation that he is an “ally” of OFRANEH (Loperena 2012, v, 20), one of the parties in the conflict, could he be overstepping the legal and anthropological rules of the game? The Honduran State representatives were quick to point out these contradictions, and once again rejected the expert’s report. While the State’s reaction is not surprising, the judges’ attitude raises questions about their perception of knowledge and their authority. They considered that there was insufficient evidence of “close links” between Christopher Loperena and the victims’ representatives; furthermore, the Court noted that experts may express personal opinions without them being considered biased if these opinions are related to their “particular knowledge” (especial saber) (Punta Piedra, Resolution of the President of the Inter-American Court, July 31, 2014, paras. 15-21). Paradoxically, Christopher Loperena’s expert opinion was accepted by the Court in the name of a scientific positivism that he himself contests because of his political activism. If “activist research” aims to bridge the gap between anthropology for academia and anthropology for the community (Loperena 2012: 9), we might wonder whether anthropological expertise is not introducing a third type of anthropology, anthropology for the Court: an anthropology which, in a logic of strategic essentialism, emphasizes culture in order to meet the supposed expectations of judges and support the cause of the victims.

What are the alternatives for anthropological expertise?

27In 2020, Charles Hale reflected once again on the role of anthropologists in a legal context. His tone was less optimistic. He no longer sought to defend an activist anthropology, but to find a position between using the legal system (“struggling from within”) or refusing it (“active imagining of an alternative political horizon”) (Hale 2020: 619). Re-examining his role in the Awas Tingni case, Charles Hale wondered whether he was right to try to advance the indigenous cause “from within” while complying with the framework imposed by the Inter-American Court (Hale 2020: 621). Does the role of an anthropologist at the Inter-American Court necessarily imply the need to adopt the dominant language of cultural exoticism, to convert into an expert on indigenous knowledge and speak on behalf of indigenous and afrodescendant peoples? To conclude this article, let me return to some of the ideas suggested by anthropological experts that could allow them to continue to act “from the inside” while escaping the conditioning imposed by legal procedure.

We need to express arguments that are not dogmatic, but very emphatic. (…) I understand that if I give the judges a nuanced argument, they will say: “Oh, so there actually is no cultural function.” (…) We need to present a more coherent argument, to make sure that justice is guaranteed. We need to use the cultural argument as a coherent, credible and inalienable issue. Of course, this is done to win the case.

29Stuart Kirsch, Professor of Anthropology at the University of Michigan, is regularly consulted as an expert on land and mining issues involving indigenous peoples. He testified in the case of the Kaliña and Lokono peoples v. Surinam (2015) concerning mining activities on land claimed by indigenous peoples. Stuart Kirsch refused to adopt the Court’s culturalist framework. He rejected the idea of “cultural survival” (supervivencia cultural) used by the judges (Kirsch 2018: 48) and challenged the connection constantly established by the Court between indigenous peoples and nature preservation. His position was unique: instead of conforming to the Court’s cultural and territorial discourse, he insisted on the issue of freedom: hunting and fishing on one’s own land, having one’s own cultural knowledge and values, etc. (Kirsch 2018: 49; written expert opinion submitted to the Inter-American Court, January 27, 2015). Stuart Kirsch transformed the role assigned to him and shifted the perspective of his expertise: it is not so much culture that justifies territorial rights, but freedom that makes it possible to maintain that culture. Reversing ideas assigned to his discipline and using legal discourse instead, the anthropologist focused more on access to rights than on culture.

30Richard Price, an anthropologist who has been a professor at several different US universities (Yale, Johns Hopkins, Stanford, College of William and Mary, etc.), is a recognized specialist of the Caribbean. He was invited twice to testify as an expert before the Inter-American Court, in defense of the Saramakas, descendants of fugitive slaves in Surinam (in the case of Aloeboetoe v. Surinam, 1991, involving the massacre of a group of Saramakas; and the case of Saramaka v. Surinam, 2007, on the violation of collective land ownership). Richard Price acknowledges that he gave the Court a culturalist view of the Saramakas, that he supposed to be the position the Court wanted to hear (Price 2012: 140, 261-262). But his expert opinion also draws the attention to a political and historical ethnogenesis based on a 1762 treaty between the Dutch state and fugitive slaves. For Richard Price (Aloeboetoe hearing; Price 2012: 67, 94), this treaty lays the foundation for the Saramakas’ right to autonomy and governance according to their own laws by guaranteeing their freedom, independence and control of their territory. Richard Price grounds the Saramakan identity and territory on a history of negotiation (1762 treaty) and resistance (Maroon system).

31Rosalva Aída Hernández Castillo (case of Fernández Ortega v. Mexico, 2010, and case of Rosendo Cantú v. Mexico, 2010, relating to the rape of two indigenous women by soldiers) has made a significant contribution to the debate on the role of anthropologists in the courts (Hernández Castillo and Ortiz Elizondo 2012, Loperena, Hernández Castillo, Mora 2018, Hernández Castillo 2018) and on the counter-hegemonic use of the legal system (Hernández Castillo 2016). Her explicit goal was to support the individual and collective struggle of two indigenous women much more than to write an expert report that fit the mold imposed by legal procedures. Anthropological expertise, in this sense, is only one aspect of a broader scientific and political approach. Rosalva Aída Hernández Castillo did not consider that Inès Fernandez Ortega and Valentina Rosendo Cantu were fighting to preserve indigenous customs, but that they were first and foremost defending human rights. She claimed to be wary of the role of “purist guardians of indigenous culture” (Hernández Castillo 2016: 52) played by some experts. By means of lengthy interviews with those she called Inès and Valentina, participation in collective workshops among the indigenous peoples, and a methodology described as intercultural dialogue and co-construction of knowledge, her aim was to go beyond “the essentialist perspectives of culture by incorporating history and an analysis of political context into our affidavits” (Hernández Castillo 2016: 54). In her testimony before the Court, Rosalva Aída Hernández Castillo emphasized the impact of the two women’s rape on the entire indigenous population, and how the rape reflected the continued violence that has marked relations between the indigenous peoples and the armed forces in the region. The emphasis is on gender-ethnicity intersectionality, and more secondarily on gender-ethnicity-class intersectionality, which rules out any representation of a disembodied “indigenous person.”

Conclusion

32It is important to note the limits of the attempts described above to operate a “transformation from within” because they ultimately did not weigh much in the judges’ decisions. The idea of freedom is absent from the Kaliña and Lokono judgment. The Saramakan autonomy treaty was rejected by the judges because it contains measures authorizing the capture of fugitive slaves and is therefore considered to disrespect human rights. The request for demilitarization of the region, presented in the expert opinion as the only means of guaranteeing that violence will not be repeated, does not appear in the reparations of the two Mexican cases.

33While claiming to base its judgments on evidence, empirical data and scientific expertise, the Inter-American Court holds a position of authority which makes it the sole judge of the value of the information and analyses provided (Paúl 2015). It summarizes and transforms the words of the witnesses and experts in its rulings. The judges have “discretional authority” to select evidence and expert witnesses (Awas Tingni, 2001, par. 102). The origin of the knowledge to which they refer is not discussed. In the meantime, the experts who want to “win the cause” tend to produce an anthropology designed for the Court that conforms to legal categories based on a cultural (cosmovision) and collective (people, community) conception of identity, but also to legal procedures that impose a binary framework of interpretation (victim v. perpetrator, indigenous v. non-indigenous), even though these positions are challenged by anthropologists outside the courts.

34Moreover, the instrumentalization of anthropology by the judges and the construction of an idealized indigenous identity also have an impact on the other stakeholders. Some States, in response, play the game of identity one-upmanship and demand from ethnic organizations unattainable guarantees of authenticity and ancestrality (case of the Garífuna community of Triunfo de la Cruz and its members v. Honduras, 2015) or, on the contrary, denounce, in the name of anthropology, the essentialization of identities by judges and anthropologists (the case of the Kichwa indigenous people of Sarayaku v. Ecuador, 2012). Ethnic and racial organizations also tend to insist on their ancestry and authenticity. This reinforces identity-based divisions and overshadows demands such as the denunciation of racism that must then be defended outside the courts. Also, while indigenous knowledge has effectively made its way into the Inter-American Court, until now it has been introduced either by anthropologists, who are supposed to play the role of translators, or by victims or representatives of victims, but no indigenous or afrodescendant expert in anthropology has ever been summoned to the Court.

35The status of the legal anthropologist presents a clear scientific, political, human, ethical and personal dilemma for those who accept this role. The experiences of the anthropologists mentioned in this article ultimately raise the question of the supposed epistemological impossibility of reconciling anthropology and the legal system (Anders 2014) either by subscribing to the fictional indigenous perspective of the judges or reversing the instrumentalization of the legal procedure. Instead of confirming the ethnocentric and positivist prejudices of the judges, anthropologists could show their political commitment by returning to the foundations of their discipline, which are contextualization, nuance, complexity, contingency, and ambiguity. They could, finally, challenge the indigenous perspective developed by the Inter-American Court, instead of embracing it within the Court and denouncing it outside.