Humanos en America Latina

Ko'aga Roe'eta



Richard J. Wilson
Professor of Law and Director
International Human Rights Law Clinic
American University
Washington, D.C.

Both the Inter-American Commission on Human Rights (Commission) and the Inter-American Court of Human Rights (Court) enjoyed dynamic growth in their contentious caseloads 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 long-time Executive Secretary Edith Márquez. In the wake of the protest resignation of Commissioner 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 political than 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 during its 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 Americas.

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 indigenous 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 gave consideration 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 prepared, 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 circumstances, 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 psychological 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 Loayza v. Perú, in which it had alleged that the rape of the victim constituted cruel and degrading treatment. 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 which 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 States that 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 case which 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 conviction 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 Colombia, 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. 11.212), 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 the 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 because 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 Guatemalan military.

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 Páez 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 government on 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. Nicaragua, 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. Colombia, the 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 Colombian military.

Provisional Measures -- The Court ordered provisional measures to protect witnesses or victims in several cases pending before the Commission. In Arnoldo Alemán Lacayo v. 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. Guatemala, 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 System.

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 <> 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 reforms of 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 y Organización de Estados Americanos, 1995-1996, in November, 1996. Some of the documents from the December, 1996 conference on the system, held in Washington, may also become available.

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. 155 (1996);

S. James Anaya, The Awas Tingni Petition to the Inter-American Commission on Human 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, Petition 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 (1996);

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 L. & POL'Y 687 (1996);

Elizabeth F. Schwartz, Getting Away with Murder: Social Cleansing in Colombia and the 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 City, 27 COLUM. HUM. RTS. L. REV. 57 (1995);

Judith Kimerling, Rights, Responsibilities, and Realities: Environmental Protection Law in 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: 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. L. J. 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 Membership, 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.


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.

8. Ibid.

9. Organization of American States, ANNUAL REPORT OF THE INTER-AMERICAN 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 Press Release.

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.

Article originally published in ACLU International Civil Liberties Reporter, January 1997

Cite as: Wilson, Richard J.The Inter-American Human Rights System: Principal Activities in 1996 KO'AGA ROÑE'ETA se.vii (1997) -

Human Rights in the Americas
Ko'aga Roñe'eta, Series VII

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