Inter-American Human Rights - Case Study Example

Reparation orders are a powerful tool of the Inter-American Court in its efforts to fight against impunity in the Americas. Discuss their nature, role and effectiveness in light of the Court’s case-law. Name of student Course Tutor Date Inter-American Court of Human Rights The inter-American Court of Human Rights (IACHR) is an independent judicial institution located in San Jose, Costa Rica city. The court was established by the organisation of American states in 1979 with an aim of enforcing and interpreting the provisions of the American convention on human rights. The court is therefore, mandated to adjudicate by hearing rules on specific cases of human violations referred to it, and offer advisory by issuing its opinion on matters of legal interpretation referred to it by member states.1 The institution works in conjunction with the Inter-American Commission on Human Rights to make up a protection system of human rights of American States Organisation.2 The court was constituted to fight impunity, which is an institutionalised phenomenon in most America states. The court deals with matters of reparation orders whose aim is to prevent human right violators from further engagement in similar and other violations. This is done by ensuring the offenders are made aware of the effects of their violations on their victims and making amendments. In the inter-American court system, reparation is classified and subdivided into: restitutio in integrum, pecuniary damages, non-pecuniary damages, and the satisfaction and guarantees of non-repetition. In the light of the inter-American court’s case-law the nature, role and effectiveness of the reparations is worth discussing. Brief History of Human rights violation in America Most American states regimes have been characterised with human rights violations such as; tortures, forced disappearances, and indigenous genocides among other invasive facts of impunity. Most of the cases involving such crimes under national courts go undecided, which leads to the socialised idea that everything is accommodated in law; including absurd reification of human beings.3 The colonisation of the American continent represented a paradigmatic model of the disgusting human rights violations, which were not later appropriately addressed by legal systems. As a result, this culture has broken down the legal system’s mutual reciprocity, solidarity and the political spirit of the society. This way, impunity has legalised abuse of structural and symbolic violence unconsciously.4 For example, the Latin American genocide’s impunity is a reflective part of America’s history. Since this has not been adequately addressed, the injustice in the American courts has changed people to be suspicious. Most Americans, who lost their cases unjustly, have lost trust with the state and its legal system because it does not guarantee the rule of law on matters pertaining to search for justice and truth.5 It can be argued that, the current impunity in American courts is as a result of long time accumulated trauma, which is revived and reinforced from time to time. The history of America is built upon unfair wars, which left many people dead and the living with a lot of pain. Although one would like to forget about it, it is not easy. Although the law and its organisation, reparation and cohesion functions have tried to end impunity, it still remains a major challenge in ending social catastrophes, and this challenge has spilt over to inter-American court as presented by noncompliance by national courts under it (Organisation of American States 43).6 As long as the conflicts and injustice remain unresolved and repressed, the community will never be at peace. For example, America suffered violent conflict of the guerilla wars, internal struggles and cruel dictatorship among other problems during the 70s all through to the 90s.7 Human rights were systematically, continuously and grossly violated during this period.8 Jurisprudence of Inter-American Court of Human Rights Since the court began issuing its judgment, it has changed its composition over ten times. During the span of twenty years, various violations of its articles have occurred.9 For instance, article 4 of the American convention, which is the right to life has been violated in about fifty different occasions. Out of the fifty cases, forty two have been unanimously decided in 24 occasions where the state has acknowledged fully and partially the international responsibility associated with the violation of the right of lives of victims.10 The court has exercised its right in twenty five cases to solicit an ad hoc judge. Despite this fact, in two occasions, the majorities have failed to vote although the cases involved matters not related to human rights violation. On the same note, the court has ordered an array of measures to avoid conducts that repeat themselves from time to time. The following measures are granted by the court.11 Responsibility to investigate, prosecute and punish wrong doers Publication of operative parts of judgment Adjustment of internal legislation Locating and informing the relatives of the victim of the remains of the victim Holding a public act to acknowledge international responsibility Naming places in honor of the victims Providing health benefits to both the victim and his next of kin Conducting human rights training to state agents Providing educational benefits Providing security Reforming prison conditions Establishing community trust fund Granting retrials Providing shelter for internally displaced persons Creating national awareness campaign to protect children Reforming existing children legislation Creating databases with DNA for identification of missing children Through its judgments, the court has managed to locate victims of various illegal deaths. These victims can be classified as 12 cases of children, 9 cases of people detained in prisons awaiting trial or convicts, 7 cases of women, 5 cases of indigenous people, 4 cases of leaders, and 9 cases of students. Among these classifications, various reparations like adjusting internal legislation and naming places in honor of the victims among others have been ordered.12 The reparation ordered depends of the category where the individual falls but in most cases, the reparations are not implemented. The Role of the Court in Fighting against Human Rights Violations and Impunity The inter-American court was established to fight against violations of human rights and impunity that comes when such violations are not punished or otherwise reprimanded. In most of the cases handled by the court, different reparation methods have been applied; some of them have been partially or fully implemented by the states involved. The first controversial case to be decided by the inter-American court was Velasquez Rodriguez v. Honduras. The case was on the human rights body that ruled an illegal nature of forced disappearance practice.13 During the phase of reparation, the representatives of the victim requested the court to order Honduras to first investigate and prosecute every individual who was involved in the acts, to stop the practice immediately and conduct forced disappearance policy, to publish a formal report illustrating the events, to emit a public apology for violating international policies; to mention a public property like a school, hospital or street in the name of all victims of forced disappearances; and to set up an educational and retirement funds for the next of kin victims to enjoy.14 Most of these reparation measures were adopted by the court, but some petitions were dropped. The court has the duty to ensure human right violations are addressed to the best interest of the victims and also to ensure the violators are shown the magnitude of their crimes and the pain the victims undergo. In Portugal v.Panama the Inter-American Court ruled that the state is entitled to the investigations and punishment of individuals who commit human rights violation.15 The court ordered the state to first publish the pertinent parts of the ruling in a local periodical as well as the country’s official gazette; provide medical and psychological care to the immediate family members of the victim; name a street in memory of the victim; acknowledgement of the state’s international responsibility in one of the public ceremony attended by state officials of the high rank as well as the heirs of the victim; and typify forced disappearances and torture crimes for satisfaction of Panama’s obligations under the convention against torture and forced disappearances.16 The above approaches that the inter-American court adopted to the cases of Velasquez Rodriguez v. Honduras and Portugal v.Panama are examples of non-pecuniary reparation damages adopted by the court. In gross violation of human rights, this type of reparation is the most justified to be granted but the most difficult because of ‘irrecoverability’ of pre-perpetration conditions. The category of reparation is included by the court because compensation granted bring about a form of satisfaction to the offended and the healing process becomes a continual process rather than an event. The American convention on human rights, whose interests are safeguarded by the inter-American court hold that a state will be blamed for failing to take adequate measures to ensure the welfare of the foreigner.17 However, states are not required to guarantee the foreigners’ safety, and there is not attachment of international responsibility to accidental deaths instances or cases whereby the victim provoked or contributed to the cause of his death. In addition, there is no international responsibility incases where the death is associated to a private actor.18 The state will, however, be held accountable if it fails to properly investigate and punish offenders. The responsibility depends highly on the specific circumstance of the case on the ground.19 For instance, it is the responsibility of the state to assign appropriate resources to respond promptly to specific events or implement proper measures required to prevent predictable events, which are likely to bring about unlawful deaths. Incase of a breach, the state will be expected to espouse the claim from the victim against the state that is breaching and has exclusive discretion to decide how the reparations will be sought.20 One challenge that faces the inter-American court is that in most cases, a state may choose to ignore claims against another state for reasons that can be military, political, economical or diplomatic. In such a case, the traditional international state responsibility will not recognise the victim’s right to reparation against the offender state. This policy underwent reformation to recognise the fact that every human being is born with inalienable rights, which should be respected by all states.21 Treaties have been created to direct states to voluntarily accept, ensure and respect these rights within the jurisdiction. These treaties also require states to adopt legislative measures, which will ensure that incase there is violation of any event, individuals will have an opportunity to enforce their rights, present their claims and seek for redress. If a state fails to comply with this obligation, the state will have violated its international responsibility before other states despite the nationality of the victim or his legal status.22 This principle is recognised as an international responsibility tenet and is found in the commissions of international law draft articles on the responsibility of states for internationally wrongful acts. Moreover, a state has an equal responsibility to provide reparation to the offended party. The duty of making reparations in international law, as in inter-American court, has been recognised over time and it is called customary international law.23 There are various ways of awarding reparations ranging from restitution, satisfaction and compensation among others in the inter-American court. Restitution is done to return the situation to its original state or the way it was before the committing of the illegal act.24 For instance, the release of an illegally arrested person or return of illegally seized property is restituting. Restitution is impossible in some circumstances. For instance, incase of a wrong death or destroying of wrong property will be impossible to restitute.25 Sometimes restitution does not address the seriousness of an injury adequately. In such cases, compensation will be used by providing the victim with monetary imbursement as a way of repairing the moral and material damage inflicted by the wrongdoer. For example, following the court’s first case26, which related to disappearance of persons during the Honduras armed conflict, the Inter-American Court upheld the moral damage caused by the conflict through its reparation orders and awarded monetary compensation. Satisfaction is taken by an offending state to mend the non-material harm and avoid the injury in future. There are basic principles on state responsibility enumeration.27 Some of the acts considered valid in assuring non-repetition of the offenses include; immediate cease of the violation; promising to fully disclose the results of an effective investigation; searching for bodies of victims and assisting to identify and bury the remains of the victims according to the victim’s cultural practice.28 An example of such reparation is the case of Villagrán Morales vs. Guatemala.29 The American Convention of Human Rights has been ratified as a binding instrument to more than 25 countries.30 As signatories, these states have undertaken to respect the freedoms and rights recognised by the convention to ensure every individual subject to jurisdiction freely and fully exercise the rights and freedoms without discriminating. The states are also expected to recognise the right to simple and prompt recourse to any competent court or tribunal that can protect him or her against violations of his fundamental rights recognised by the constitution of the state and laws apprehended by the convention.31 The state has the responsibility to monitor the compliance of the state within the region falls on the Inter-American Court of Human Rights (Court) and the Inter-American Commission of Human Rights (Commission). These two organs were crafted in the first instance to resemble their counterparts, which had been already found in European human rights system, (European Court of Human Rights and European Commission of Human Rights which no longer exists), but certain differences were created between them. For example, the Inter-American Court has a mandate to issue binding judgments on member states as well as issuance of advisory opinions, but its authority to emit advisory opinions is broader as compared to that of European Court.32 The court has power to issue protective measures, which may require the states to take immediate action or refrain from going on with a certain conduct. Inter-American Commission’s role is more vigorous as compared to that of its counterpart EU. The problem of state noncompliance with Inter-American Court decisions Research into legal mutualism has it that making national courts autonomous makes the relationship with international human rights regimes mutual. However, there have been challenges presented by the case of the inter-American court because of its innovative equitable remedies in enforcing human rights. There are two dynamics of the court that relates strongly to noncompliance with the court decisions. The first dynamic comes in when the inter-American court makes most of its contentious ruling and demands that some prosecutorial and or judicial action such as investigation, trial or hearing be taken. The court has also made orders for laws in some countries to be amended or dropped. For example, in the cases of Raxcacó-Reyes v. Guatemala,33 the court discouraged judges from Guatemala from continued application of death penalty in their court decisions. In this, the court has the mandate through its reparation orders to let member states and organs to identify cases of human rights violation and advise them to make amendments in favour of the victims. The second dynamic is the noncompliance by the Latin American judges and prosecutors, to enforce actions demanded by the inter-American court’s rulings. Their constitutions grant prosecutors the autonomy from executive in order to ensure accountability.34 Therefore, in every ten cases that the inter-American court demands action and execution of actions, only one is implemented by the justice systems.35 Most scholars36 and experts in law have argued that the non-implementation of inter-American court orders inheres from the high cost of the procedures, difficulty to undertake due to government’s lack of political will, or even inadequate judicial independence.37 However, the primary cause of noncompliance is the involvement of different state actors with divergent interests, ideologies and institutional settings from those of executives who are not well informed and aware of the way inter-American court should function. This makes it difficult to execute some orders from the court especially when the court seems to cross boundaries into the jurisdiction matters of a certain state. For example in Apitz v. Venezuela, the inter-American Court requests that the national judiciary recall three of its suspended judges. There are other cases where the inter-American court asks the national courts in some states to nullify existing sentences.38 These reparation orders are made for the best interest of the victims who might face injustice in the hands of legal agencies and organs. According to Huneeus39, prosecutorial and judicial politics should be seen as different but united in making rights and enhancing effectiveness of the already established strategies and reparations.40 The argument is that is it incorrect to argue that judges and prosecutors are not wiling to comply with the inter-American court’s decision; it is the whole state that can decide to comply or to not comply with orders. Therefore, the problem of noncompliance with the inter-American court should be seen as a more complex issue than a mere straightforward event. If these issues are addressed critically and the best strategies and amendments are made, blame game is bound to remain. The role of reparation orders in fighting impunity and human rights violations Reparation orders from the inter-American court system plays a critical role in politics which are the major results of human rights violations. For example, the court recommended Argentina to emit certificates of disappeared people.41 Between 1989 and 1990, the first two reparations were awarded by the court. The reparations were issued on the same day, and both were dealing with the illegal practice of forced disappearance in Honduras in which the court held that Article 63(1) of the American Convention was violated.42 The article codified a customary international law rule, which allowed victims of international violation to bring claims for reparations. After the examination of the case facts, reparations were awarded to the victims for pecuniary and moral damages. These damages serve as deterrents to states and members who have the power of resources and gun such that their impunity is checked. From 1993 to 2004, the court decided a case that involved torturing and killing of 15 indigenous persons who included minors by Suriname’s military forces.43 Suriname was ordered by the court to create a trust fund for facilitating the administration for the monetary compensation awarded.44 Suriname was also ordered to rehabilitate a medical facility and a school within the vicinity of Marron school in honor of the victim. This was the first reparation addressing economic, social and cultural rights addressed by the court, and that serve to tame impunity that may arise if such issues are not justly handled. Between 1995 and 1997, the court issued reparations for the El Amparo (Venezuela) and the Caballero Delgado and Santana cases (Colombia). In El Amparo case, the commission demanded that the court ordered Venezuela to first publicly acknowledge its failure to honor international responsibility and promise that the same will not happen again. Venezuela was also ordered to amend its military justice code, to establish a foundation which will promote human right, to investigate and prosecute individuals who were responsible for the action, and to honor the victims.45 The two nations acknowledged violation of international responsibility to the American Convention, although they reported having failed to reach a friendly settlement with the petitioners. Moreover, from September 1997 to December 1997, the court issued a ruling on the Neria-Alegria case in Peru. The decision of the court was that Peru must do everything possible to spot and locate the remains of victims and inform their next of kin. This reparation is unique from other issued by the court earlier because it states that states must locate, identify and return the remains of the victims.46 The merits phase of the case revealed to the court the facts that out of 111 people who had been killed by Peruvian navy, only 7 had been positively identified. This revealed the fact that all people who had been killed by this navy were in the state’s custody. The expansion of this measure was steered by the gross negligence of the state.47 From January 1998 to September 1999, three cases were decided by the court. The case marked progressive achievements. Among the cases were Benavides-Cevallos case and Garrido case.48 The court ordered proper reparations for the cases. From 1999 to 2001, the court handled three cases from Guatemala. The cases were; Blake, White Van, and Street Children and two other cases from Peru.49 The cases were Durand and Uguarte. All the cases revealed violation of the American Convention’s various articles and various reparations were ordered for the victims except the Blake case. The Blake case was found not to have violated any human right.50 The rights of Mr. Nicholas Blake were not violated because Guatemala complied with the jurisdiction of the court by reserving them except the acts predating the ratification date. In 2002, the court issues 5 judgments which are Bamaca, Trujillo, Hilarie, El Caracazo, Las Palmeras Massacre. In 2003, the court reviewed the validity of two friendly settlements which were the Bulacio case and Myrna Mack. A new reasoning of the existence of the duty to investigate and prosecute criminals was introduced by the court. From 2004 to 2006, judgments on unprecedented twenty two cases were issued by the court.51 In 2007, the court approved a friendly settlement between parties who contained various awards from the Massacre Rochela. The awards included public apology and using a plaque to memorise the victims among others. In 2008, the Helidoro Portugal case which was dealing with the right of life was terminated by the court because it had no jurisdiction to rule on the victim’s forced disappearance.52 In all cases, various appropriate reparations were ruled out for the victim’s relatives.53 Since fighting impunity and human rights violations is among the major duties of the inter-American court, the reparation application serve as deterrents to future human rights violations and tamers of impunity among the states within the jurisdiction of the inter-American court. This way, reparation orders continue to be powerful tolls in fighting against impunity among the American states. Table of Cases Apitz v. Venezuela, 2008 Inter-Am. Ct. H.R. (ser. C) No. 182, at 246 (Aug. 5, 2008) Argüelles et al. v. Argentina (2014) I/A Court HR. Case of Order of the President of the Inter-American Court of Human Rights, 10[2014]. Community Garifuna Triunfo de la Cruz & its members v. Honduras (2014) I/A Court HR 7 [2014]. Order of the President of the Inter-American Court of Human Rights Herrera Ulloa v. Costa Rica, 2004 Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004) Liakat Ali Alibux v. Suriname. Preliminary Objections, Merits, Reparations and Costs (2014) 276 I/A Court H. R., 30, [2014] J v. Peru. Preliminary Objection, Merits, Reparations and Costs (2013) 275. I/A Court H. R., 27, [2013]. Wong Ho Wing v. Peru (2014) I/A Court H.R. Order of the Inter-American Court of Human Rights 31 [2014]. I/A Court H. R., Matter of the Socio-Educational Internment Facility v. Brazil. Order of the Inter-American Court of Human Rights of January 29, 2014. I/A Court H.R., Case of García Asto and Ramírez Rojas v. Peru. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of November 26, 2013. I/A Court H.R., Case of Atala Riffo and daughters v. Chile. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of November 26, 2013. Order of the President of the Inter-American Court of Human Rights. Case of Tarazona Arrieta et al. v. Peru. Victims Legal Assistance Fund of January 22, 2014. Order of the President of the Inter-American Court of Human Rights. Case of the Garífuna Community and its members v. Honduras. Victims Legal Assistance Fund of December 18, 2013. Raxcacó-Reyes v. Guatemala, 2005 Inter-Am. Ct. H.R. (ser. C) No. 133 (Sept. 15, 2005) Uson Ramírez v. Venezuela, 2009 Inter-Am. Ct. H.R. (ser. C) No. 207 (Nov. 20, 2009) Velásquez-Rodríguez v. Honduras. Judgment of July 29, 1988, and Godínez-Cruz v. Honduras. Judgment of January 20, 1989. Table of Bibliography Buergenthal T, Norris DS, Protecting Human Rights in the Americas. Cases and material, (Kehl, N.P Engel Publisher. Verlag, 1995.) Burgorgue-Larsen, L and Ubeda de Torres, A, The Inter-American Court of Human Rights. Case law and Commentary, (Oxford, OUP, 2011). Diego A. L. Analyzing non-pecunary reparations awarded by the Inter-American Human Rights Court. ( April 2009). http://works.bepress.com/diego_alcala/2 Donoso G. “Inter-American Court of Human Rights’ reparation judgments”. Strengths and challenges for a comprehensive approach, (Vol. 49, no.18, 2003 31-68). Cavallaro, James. Reevaluating Regional Human Rights Litigation in the Twenty First Century: The Case of inter American Court. (Harvard Law School: London 2008, pp.768-827). Contreras-Garduño D and Rombouts, Collective Reparations for Indigenous Communities before the Inter-American Court of Human Rights. (2010 – Volume 27/Issue 72, Article, pp. 04-17). Huneeus Alexandra. Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights (2011) Lea, Shaver. The Inter-American Human Rights System: An Effective Institution for Regional Rights Protection? (9 Wash. U. Glob. Stud. L.Rev. 639, 2010) http://digitalcommons.law.wustl.edu/globalstudies/vol9/iss4/4 University of Minessota, Statute of the Inter-American Court on Human Rights, O.A.S. Res. 448 (IX-0/79), O.A.S. Off. Rec. OEA/Ser.P/IX.0.2/80, Vol. 1 at 98, Annual Report of the Inter- American Court on Human Rights, OEA/Ser.L/V.III.3 doc. 13 corr. 1 at 16 (1980). Organization of American States. Inter-American Commission on Human Rights, 2014. http://www.oas.org/en/iachr/. Shelton, D., Remedies in International Human Rights Law (Oxford University Press, New York, US, 1999), p. 292 Read More