Both the Inter-American Commission on Human Rights (Commission) and the
Inter-American Court of Human Rights (Court) enjoyed dynamic growth in their contentious
in 1996, but not without the political consequences attendant on such growth. Real change
occurred in the management of the Commission when it demanded that the General Secretary of
the Organization of American States (OAS), César Gaviria, remove the Commission's
Executive Secretary Edith Márquez. In the wake of the protest resignation of
Michael Reisman, a Yale Law School professor, in late 1995, Gaviria named Jorge Taiana of
Argentina as the new Executive Secretary in early 1996.
In the 1996 OAS General Assembly debates, the Commission heard open criticism from
the representatives of Ecuador and Perú that its case resolutions were based more on
legal factors. There were also open suggestions that the human rights system in the Americas is
ripe for "reform." The reform most often suggested is to follow the example of the European
human rights system's Protocol 11, which will, when it enters into force, consolidate the
commission and court in that system into a single organ.(1)
There, however, the impulse to
consolidate is motivated by goals of easier access for victims to the system, the steep rise in
number of states parties (from 10 to 35 or 40) and number of complaints, and the need for greater
efficiency in a system with a proven track record. No observer doubts, on the other hand, that the
true motives for consolidation within the OAS have more to do with diminishing the profile of
human rights in the Americas and gutting the power of the Commission to issue reports, either on
countries or in individual complaints, which are critical of certain countrys' adherence to
international human rights norms, particularly those countries which have not yet accepted the
jurisdiction of the Court. Other reforms on the table and not yet acted upon include a proposal to
expand the membership of the Commission from 7 to 11,(2)
and a proposal which would limit the
Commission's activities to "educative functions," both of which are seen as ways to politically
manipulate the power and authority of that body. The leaders of the "reform" movement include
Perú, Chile and México, and it is expected that their representatives will be more
active in the
1997 Security Council and General Assembly meetings in advancing reform measures which will
diminish or dilute the power and force of these human rights organs. The vigor of the assaults on
their work is, in large part, a measure of the effectiveness of these institutions in shining the light
of truth on dark human rights practices in the Americas.
The Commission and the Court continued to take on additional cases in 1996, with a
strong inclination on the part of both bodies to the friendly settlement of contentious matters. The
Commission saw 140 new filings in 1995, bringing their total pending individual cases to 735 at
the beginning of the year.(3) Given that the Commission
published a total of 15 case resolutions in
1994 and 1995, the backlog of cases will continue to grow if it is not addressed more aggressively
and systematically. On the other hand, the Commission did increase dramatically its referral of
cases to the Court, sending 6 new cases during its 90th Ordinary Session and 4 more
91st.(4) This brings to more than 20 the
number of contentious cases which have been referred to
the Court for resolution. In addition, the Commission was extremely active on a number of the
other fronts permitted under its broad operational authority.
I. Commission Activities in 1996.
Under the administration of its new President, Dean Claudio Grossman of the Washington
College of Law at American University, the Commission was active in several ongoing thematic
projects, carried out one new on-site visit, issued a number of important precedent-setting
decisions, settled several individual complaints amicably by acting as mediator between the
governments and the complaining parties, and held a major conference on human rights in the
The Commission conducted a number of jail and prison visits in Venezuela (May) and the
United States (October) in conjunction with the preparation of its report on "Conditions of
Confinement in the Americas." Commissioners and staff visited U.S. prisons in Allenwood, PA;
Lompoc, CA; Leavenworth, KA; and Markville and Amite, Louisiana, where they interviewed a
number of Cuban refugees from Mariel whose detention by immigration authorities continues
years after their flight from Cuba.(5) The Commission also
extended the time for submission of
country surveys on prison and jail conditions before completion of its report. The principal issues
explored during the visits included availability and accessability of medical services, living
conditions, educational opportunities, recreational and vocational programs, availability of family
and legal visits, and disciplinary rules and methods.
On another front, the Commission continued a series of regional meetings held to consider
its Draft Inter-American Declaration on the Rights of Indigenous Peoples. Following on its 1995
sessions in Canada, the United States, Panamá and Perú, the Commission met with
groups in Guatemala and Ecuador in November, 1996.(6)
The Commission hopes to present a final
draft of the Declaration for consideration by the OAS at its 1997 General Assembly meeting. At
its 93rd Ordinary Session, from Sept. 30 to Oct. 18, 1996, the Commission also
to a draft study on "The Situation of Migrant Workers and their Families in the Hemisphere," and
examined the progress of the Special Rapporteur on the Rights of Women, who is preparing a
report on aspects of legal and actual discrimination against women in the Americas.(7)
Under the authority of its Statute, Article 18(g) permits the Commission to conduct on-site
observations, either with the consent of or invitation by a member state. In July, 1996, the
Commission conducted such a visit to México. This visit, from which a report will be
was part of a series of on-site visits carried out in Guatemala (1994) and Brazil (1995) for which
reports are still in preparation, and may be included as part of the 1996 Annual Report.(8)
The Commission's 1995 Annual Report contained a total of 9 new case resolutions, some
with serious implications for the system. First, in case No. 10.970, Raquel Martín
de Mejía v.
Perú, the Commission found that the offense of rape can constitute torture in some
under prevailing international human rights norms. The Commission found that the rape of Sra.
Martín de Mejía by agents of the Peruvian state constituted both physical and
torture under Article 5 of the Inter-American Convention on Human Rights, as well as a violation
of Article 11's protection of moral integrity and personal dignity.(9) Interestingly, the Commission
had previously sent another Peruvian case to the Inter-American Court, María Elena
Perú, in which it had alleged that the rape of the victim constituted cruel and
There is little to distinguish the factual circumstances of the two women -- both were victimized
by state authorities during states of exception -- although Sra. Martín de Mejía
was not in custody
or charged with a crime while the other victim was.(10)
Another interesting resolution was that of COMADRES v. El Salvador, a case
found continuous violations, over a decade-long period, against the members of an activist group
of families of the disappeared in El Salvador. The case implicitly acknowledges the open
jurisdictional lines of the Commission by recognizing the right of an organization to bring the
action before the Commission on behalf of its individual members.(11) The case report relied
extensively on the report of the UN Truth Commission, whose work in El Salvador gave high
visibility to serious human rights violations in the country during its long civil war.
In other matters, the Commission definitively ruled in Richmond Hill v. United
the case had been settled when the Richmond Hill Insane Asylum, destroyed by U.S. bombing of
Grenada in 1983, had been rebuilt with funds from the U.S. Agency for International
Development. The U.S. government noted for the record that "its actions were entirely in
conformance with the law of armed conflict, and that therefore the U.S. had no legal liability for
any damages claimed."(12) The Commission also declared
admissible the highly publicized case
involving the murder, allegedly by agents of the Guatemalan state, of Prof. Myrna Mack, an
anthropologist studying the displacement of indigenous peoples in that country.(13) Finally, on
October 15, 1996, the Commission published its decision in Marzioni v. Argentina, a
occasioned much discussion at the December conference discussed below. In that decision, the
Commission reiterated and amplified its development of the "fourth instance formula," by which it
decides on admissibility in certain circumstances. The term refers to a kind of extraordinary
appellate review of domestic decisions which, in Latin America, are often said to be appealed in
"second or third instance" when referring to intermediate or supreme court review. Here, the
Commission said it is not its role to constitute a fourth instance, and that it would refuse review,
where, as here, the petition "contains nothing but the allegation that the decision was wrong or
unjust in itself. . .".(14) The Commission goes on to note
that the doctrine is derived both from its
own prior jurisprudence and acknowledged principles in the European human rights regime.
At the end of the year, the Commission had further activity from Guatemala when two
men, Roberto Girón and Pedro Castillo, were scheduled for execution following their
for the rape and murder of a young girl. A local NGO sought precautionary measures to prevent
the execution, and the measures were issued in due course, with enough time to prevent the
execution. The men, however, were subsequently shot, in televised proceedings, first by a firing
squad and then by coup de grâce -- a single pistol shot to the head of each.
While it does not take on as much public attention as the published decisions, the
Commission's work in friendly settlement of disputes is extremely important, and was exercised
extensively in 1996. The Commission settled cases from Argentina, Colombia, Guatemala,
Honduras, Nicaragua and Paraguay.(15) In Argentina, the
federal government and the province of
Mendoza participated in the creation of an ad-hoc investigatory commission and an eventual
arbitral award in the forced disappearance cases of Paulo C. Guardatti (Case 11.217), and
Garrido and Baigorria v. Argentina, then pending at the Inter-American Court. In
several cases were continued on the contentious docket while the Rapporteur for Colombia makes
an on-site investigation of the matters in Colombia to explore the possibility of friendly settlement.
In Guatemala, the Commission, through settlement of the Colotenango Case (No.
facilitated the dissolution and disarmament of the Civil Defense Patrols in that municipality in
August, while the friendly settlement discussions were also undertaken in a case before the
Commission on discrimination against women in the Civil Code, as well as in Jorge Carpio
Nicolle v. Guatemala, an assassination case still pending at the Court.(16) In Nicaragua, the
government and members of the Awas Tingni indigenous community met to discuss the issue of
delineation of ancestral lands in the community and the granting of commercial concessions to
foreign companies. In the Paraguayan matters, the petitioners in case No. 11.561 seek the
extradition of an Argentine couple accused of child kidnaping of two infants taken from detained
and disappeared mothers. Another three cases (Nos. 11.558, 11.559 and 11.560) allege delays in
resolution of domestic criminal matters pending since 1989. The parties will meet on both cases
to decide on bases for agreement in the matters.
From December 2-4, 1996, the Commission sponsored a seminar on "The Inter-American
System for the Promotion and Protection of Human Rights," held at the OAS headquarters in
Washington, D.C. The conference, with an attendance of about 150 invited governmental
representatives, experts and NGO's working in the field of human rights, presented panels and
spirited discussion on a number of topics of concern in the development of the system, such as
structure of the system, admissibility and processing of individual cases, the influence of the
regional system in domestic law, the contentious and advisory jurisdiction of the Court, and new
challenges in the system, such as drug trafficking, terrorism, and the additional assumption of
competence of the Commission under new instruments such as the Inter-American Convention on
the Prevention, Punishment and Eradication of Violence Against Women.
II. Court Activities in 1996.
The Court adopted new regulations governing its operations in
September.(17) The Court
did not consider or decide any questions under its advisory jurisdiction during 1996. It did,
however, undertake a number of new cases on referral from the Commission, held its
33rd and 34th
Regular Sessions, and issued or continued provisional measures in a number of cases on request
of the Commission.
The Court took on four new cases referred to it from the Commission during the
Commission's 91st Ordinary Session. Because it had taken another six cases from
Commission's prior session, and because of its pending matters, the Court now finds itself
significantly behind in the conduct of evidentiary hearings on matters for which all written
pleadings have been submitted by the parties. The following new cases, in all of which written
proceedings are in process or now complete, went to the Court:
Efrain Bámaca Velásquez v. Guatemala --
This case, which gained international
notoriety in the United States because of alleged CIA involvement in Bámaca's death, and
his wife (and one of his representatives at the Court) is US lawyer Jennifer Harbury, involves the
detention, torture and extrajudicial execution of Mr. Bámaca at the hands of the
Juan Cantoral v. Perú -- This case presents a
scenario so unbelievable it almost reads
like fiction. It involves identical twins, the Cantoral brothers, who were tried by the Peruvian
military courts for terrorism. The petitioner was acquitted, but his brother was convicted.
Because of the similarities in their names and physical appearance, the condemned brother was
released, and he quickly fled the country. The petitioner, who had been acquitted, was then
retried before a civilian court on the same facts, but on the basis that the government had new
evidence, which he asserted was falsified. The brother in custody was then told that he would be
released if his twin surrendered. The twin did not, and the petitioner was sentenced to twenty
years in prison of the charge of terrorism. He alleges double jeopardy and violations of due
process, and also asserts he was subjected to beatings and torture.
Gabriel Ugarte and Nolberto Durán v. Perú
-- This case involves the disappearance of
the two men while incarcerated in Peruvian jails during the 1980's.
Consuelo Benavidez v. Ecuador -- This case, in which the
author, among others, is
named as Advisor to the Commission before the Court, involves the arrest and disappearance of a
well-known teacher in Ecuador in 1985. In 1988, the national notoriety of the case led to the
appointment of a special commission to investigate the matter. The commission's report named
several military officials as the perpetrators of the offense and also implicated high-ranking
government officials as the intellectual authors of the act. Although judicial proceedings went
ahead in the matter, and the Senate unilaterally offered some monetary compensation for the
family's losses, the intellectual authors were never charged or convicted, and the family refused to
acknowledge the government's offer of compensation.
In cases in process in the Court, the following actions were taken regarding judgments on
preliminary objections, on the merits, on reparations and on the issuance of provisional measures:
Preliminary Objections -- In Paniagua Morales et al. v.
Guatemala, the Court ruled 6-1, on January 26, 1996, that the preliminary objections of the
government were unfounded and
ordered the case to decision on the merits. The case, sometimes called the "Panel Blanco," or
White Van Case, involves the use of this type of vehicle as part of the modus
operandi of the
Guatemalan Treasury Police, who are charged here with the kidnap and murder of several citizens
during 1987 and 1988. In Castillo Páez v. Perú and Loayza
Tamayo v. Perú, the Court
unanimously rejected, on January 30 and 31, 1996, respectively, the government's preliminary
objections. The first case involves the arrest and subsequent disappearance of Mr. Castillo
by Peruvian National Police, while Ms. Loayza Tamayo's case, discussed above, seeks
compensation for her physical and psychological suffering when tortured and raped by Peruvian
police. Ms. Loayza Tamayo, a Professor, also alleges double jeopardy and procedural
irregularities in her acquittal by a military tribunal on charges of treason, followed by her
conviction in a civilian court on the same charge.
In Blake v. Guatemala, the Court rejected the preliminary objections of the
July 2, 1996. The case involves the kidnap and disappearance of Nicholas Chapman Blake and
Griffith Davis by Guatemalan authorities, as well as allegations of subsequent cover-up of Mr.
Blake's disappearance by these officials.
Judgments on the merits -- The only judgment on the merits in 1996
was the Feb.2,
1996 friendly settlement in Garrido and Baigorria v. Argentina, discussed above in the
Commission's activities. Arguments on the merits were held in Jean Paul Genie v.
and a decision is expected in the Spring of 1997. In that case, Genie was allegedly killed in
October, 1990 by bodyguards of General Umberto Ortega.
Reparations -- First of all, the Commission noted in its fall, 1996,
session that the
government of Honduras had, in August, finally satisfied in full the reparations ordered by the
Court in the Velásquez Rodríguez and Godínez
Cruz cases, the first contentious cases decided by
the Court in 1990. In September, 1996, the Court ordered full reparations in both Indalecio
Guerrero, et al. (El Amparo) v. Venezuela, and in Neira Alegría, et al. (El
Frontón) v. Perú. The
former case involved the 1988 killing of 14 fishermen by Venezuelan authorities. The
government accepted responsibility for the killings, but no agreement on damages could be
reached. In the latter case, three men who were prisoners in the San Juan Bautista prison (El
Frontón) were disappeared after a riot. In Caballero Delgado and Santana v.
Court held hearings in September on compensation issues, and a decision is pending. The case
involves two members of Movimiento 19, an insurgent group, disappeared while in custody of the
Provisional Measures -- The Court ordered provisional measures to
protect witnesses or
victims in several cases pending before the Commission. In Arnoldo Alemán
Nicaragua, the Court ordered measures to protect the presidential candidate who eventually
prevailed in Nicaraguan elections. In the Colotenango and Carpio
Nicolle cases, the Court
extended provisional measures against the Guatemalan government during its January, 1996
session. Measures were extended in June in the cases of Father Daniel Vogt v.
Serech and Saquic v. Guatemala, and in the Loayza case against
Perú, discussed above.
III. Important Sources and New Scholarship on the Inter-American Human Rights
A. Web Sites. The Commission and Court now have their own sites on
the world wide
web, both as part of the home page of the Organization of American States. The Commission's
English version is <
http://www.oas.org/EN/PROG/pa32e.htm> and the Court's is
>. Unfortunately, the sites, like much of the work of
the Commission and Court, are not up to date; the most recent materials on both date from 1994.
The best comprehensive web site on both the Commission and the Court is the University of
Minnesota's Human Rights site, at <
That site has the index to the decisions of the Commission, prepared by the author in 1995, and
searchable text of the Commission's individual case decisions since 1991, as well as jump links to
numerous other human rights sources. Another site with extensive coverage of the work of the
Commission and Court is Human Rights Brief, an on-line and hard-copy publication
of the Center
for Human Rights and Humanitarian Law at American University, at
B. New Documents. The most important two new documents of the
system are the 1995
Annual Report and a new, May 1996 edition of Basic Documents Pertaining to
Human Rights in
the Inter-American System. Another important document worth review is the report on
the Inter-American system proposed by Secretary General César Gaviria, entitled
Toward a New
Vision of the Inter-American Human Rights System.(18) The Secretary General proposes reforms of
the human rights system, many of which are salutary, but others, such as an "appropriateness"
doctrine for admissibility similar to the U.S. political question doctrine, of dubious merit. Finally,
the International Human Rights Group issued its helpful Spanish report, Derechos Humanos
Organización de Estados Americanos, 1995-1996, in November, 1996. Some of
from the December, 1996 conference on the system, held in Washington, may also become
C. New Scholarship. In English-language publications, the following
is some of the
useful scholarship on the Inter-American human rights system and its member countries:
Biographical Notes on the Seven Judges of the IACourtHR, 17 HUM. RTS. L.J.
S. James Anaya, The Awas Tingni Petition to the Inter-American Commission on
Rights: Indigenous Lands, Loggers, and Government Neglect in Nicaragua, 9 ST.
THOMAS L. REV. 157 (1996);
Inter-American Commission on Human Rights, Organization of American States,
by the Mayagna Indian Community of Awas Tingni and Jaime Castillo Felipe, on his Own
Behalf and on Behalf of the Community of Awas Tingni, 9 ST. THOMAS L. REV. 164
Osvaldo Kreimer, The Beginnings of the Inter-American Declaration on the Rights of
Indigenous Peoples, 9 ST. THOMAS L. REV. 271 (1996);
R. Andrew Painter, Property Rights of Returning Displaced Persons: The Guatemalan
Experience, 9 HARV. HUM. RTS. J. 145 (1996);
John C. Pierce, The Haitian Crisis and the Future of Collective Enforcement of
Democratic Governance, 27 L. & POL'Y INT'L BUS. 477 (1996);
Gabriel M. Wilner, Reflections on Regional Human Rights Law, 25 GA. J. INT'L
POL'Y 687 (1996);
Elizabeth F. Schwartz, Getting Away with Murder: Social Cleansing in Colombia and
Role of the United States, 27 U. MIAMI INTER-AM. L. REV. 381 (1995-1996);
Tamara Rice Lave, Breaking the Cycle of Despair: Street Children in Guatemala
COLUM. HUM. RTS. L. REV. 57 (1995);
Judith Kimerling, Rights, Responsibilities, and Realities: Environmental Protection
Ecuador's Amazon Oil Fields, 2 SW. J. L. & TRADE AM. 293 (1995).
D. Upcoming Events. The Inter-American Human Rights Digest
Project and the Inter-American Human Rights Moot Court Competition are both sponsored by the
Center for Human
Rights and Humanitarian Law of the Washington College of Law, American University. The
Digest Project, with a large grant from the Dutch government, will produce its work, the case law
of the Inter-American Court, in the spring of 1997. The first Inter-American Moot Court was held
in May, 1996 with the participation of 25 teams from 22 law schools in 13 countries. The
finalists were the Diego Portales Law School, from Santiago, Chile, and the University of
Maryland. Diego Portales won first place. Best Oralist went to Ms. Eddy Manzo from the
Universidad Central de Venezuela, while Hamline and DePaul Universities won Best Memorial
awards. More than 40 teams, including two from Brazil, have enrolled for participation in the
1997 competition, to be held at American University from May 19-23, 1997. More information
can be obtained from the Center by e-mail at: email@example.com. Finally, American
University's Journal of International Law and Policy plans to publish an updated and expanded
version of the 1994 (Vol. 10, No. 1) index to case resolutions of the Inter-American Commission
on Human Rights in its spring 1997 issue.
1. Andrew Drzemczewski and Jens Meyer-Ladewig, Principal
Characteristics of the New ECHR
Control Mechanism as Established in Protocol 11, Signed on 11 May 1994, 15 HUM. RTS.
81 (1994). Protocol 11 requires ratification by all States Parties to the European Convention at
the time of its promulgation. As of July, 1996, 21 of 33 member states had ratified it, with many
prominent states -- Belgium, Denmark, Greece, Italy, Portugal and Spain -- still outstanding.
The 39 Member States of the Council of Europe (CoE) According to their Date of
17 HUM. RTS. L. J. 234 (1996).
2. Renewed Request for Comments and Observations on the
Proposed Amendment to Article 34
of the American Convention on Human Rights, OEA/Ser.P/AG/doc.3400/96, 7 June 1996.
3. International Human Rights Law Group, DERECHOS
HUMANOS Y ORGANIZACIÓN DE
ESTADOS AMERICANOS, 1995-1996 [HUMAN RIGHTS AND THE ORGANIZATION OF
AMERICAN STATES, 1995-1996], at 7.
4. Id., at 6.
5. Comunicado de Prensa [Press Release] No. 20/96,
Washington, D.C., Dec. 10, 1996.
6. Comunicado de Prensa No. 17/96, Washington, D.C.,
Oct. 30, 1996.
7. Comunicado de Prensa No. 16/96, Washington, D.C.,
Oct. 18, 1996.
9. Organization of American States, ANNUAL REPORT OF THE
COMMISSION ON HUMAN RIGHTS 1995, Case 10.970, OEA/Ser.L/V/II.91, Doc. 7 rev., at
157, 182-188 (1996).
10. See discussion in DERECHOS HUMANOS, supra, n.
3, at 7-8, n. 2.
11. Id., at 101. This case was submitted by students in the
International Human Rights Law
Clinic at the Washington College of Law, American University, of which the author is director.
They acted as counsel for COMADRE and brought two witnesses from that organization to testify
before the Commission on behalf of the bereaved families. It should be noted that the case was
among the first to be brought by the clinic in its inaugural academic year, 1990-'91. The
government of El Salvador never responded to the complaint, but the case was not resolved until
some six years later, after the Salvadoran civil war was settled. Obviously, its impact would have
been immeasurably greater, in my view, were it to have been decided in a more timely fashion.
12. Id., at 201-202.
13. Myrna Mack v. Guatemala, Case 10.636,
Id., at 125.
14. Report No. 39/96, Case 11.673, Argentina, October 15, 1996.
15. Comunicado de Prensa No. 16/96, supra, n. 7. All
references in this paragraph are to the
16. See, Richard J. Wilson, Recent Developments in the
Inter-American Human Rights System,
ACLU INT'L CIV. LIB. REP. 21, 25 (Feb. 1996).
17. Corte Interamericana de Derechos Humanos, Reglamento
de la Corte Apropado Durante el
XXXIV Período de Sesiones, 16 de septiembre de 1996.
18. OEA/Ser.G/CP/doc.2828/96, 26 November 1996.