Volume 43 | Number 2 Spring 2008
Upholding Human Rights in the Hemisphere: Casting Down Impunity Through the Inter-American Court of Human Rights
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I. Introduction
Torture, improper incarceration, forced disappearances, and brutal murders: these are the kinds of crimes and human rights violations that the Inter-American Court of Human Rights (hereinafter the “IACHR” and the “Court”) combats in the Western Hemisphere.1 As the highest institution in the Inter-American system of human rights, its jurisdiction reaches as far north as the U.S.-Mexico border.2 Thus, the Court serves a critical function in upholding human rights in the Western Hemisphere.
In order to diminish impunity, the Court has sought to establish a solid record of compliance with its judgments, and in fact, compliance with the judgments of the Court is exceptionally high. Professor Douglas Cassel argues the IACHR has actually been faced with defiant responses in only one and one-half instances.3 Though the compliance theory legal literature is burgeoning, a gap in the scholarly literature exists in analyzing the nature of state compliance with the judgments of the IACHR.4
In addition to discussing the high rate of compliance with the IACHR, Cassel notes the Court’s foundational paradox.5 The IACHR is at the zenith of its acceptance as well as the exercise of its broad formal powers, even though it has heretofore received a relative paucity of diplomatic support.6 Though the Court has forged important precedents and gained significant authority and acceptance since its foundation, the nations under its jurisdiction are hesitant to allow the Court this increased power.
Peru was the first state to openly defy the Court7 through the actions of President Fujimori,8 who fled the country in October 2000.9 However, because Peru has since formally reaffirmed its commitment to the Court10 and has collaborated with it on pending cases,11 the court can count itself the victor. The second instance of noncompliance involved Trinidad and Tobago,12 who withdrew from the Court’s jurisdiction due to a dispute over capital punishment cases.13 However, Trinidad and Tobago has also re-accepted the Court’s jurisdiction, albeit with reservations.14 Thus, the Court has ultimately prevailed even in the rare instances of noncompliance.
This article is an attempt to assess the general state of compliance of the IACHR leading up to and through the critical phase when it first declaimed judgments on the merits. Accordingly, this article traces the very important early history of the Court and its first judgments on the merits, focusing on compliance by member States therewith. The beginning phase is the most important period in assessing compliance because it set the first precedents, established the Court’s authority, and served as a cultural landmark for inculcating a greater ethos of respect for human rights. This article seeks to identify why the IACHR has been relatively successful in compliance, and to provide theory based clues as to how the Court might achieve greater compliance and influence in the future. It also critically examines the functioning of the Court in the larger context of the Inter-American system of human rights and the countries that come under its umbrella. Finally, it reflects upon these critical cases and history in the light of compliance theory, a necessary component for effectively reducing impunity.
II. Brief History and Structural Analysis
Some historical background and a structural analysis of the Inter-American human rights system, including a history of the Court’s practices and procedures, gives context to understanding compliance. More broadly, two bodies enforce human rights for the Inter-American system: the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights.15 The history of these institutions, along with a structural analysis of them, lends understanding upon which the remainder of the article is built.
Before World War II, human rights had traditionally been under each State’s sovereignty,16 and there was little basis for intervention in the domestic arena for the protection of human rights. Following World War II, however, a major stream of thought and sentiment developed worldwide which held that gross violations of human rights were matters of international concern—to the extent of impinging upon traditional notions of state sovereignty.17 Eventually, the United Nations drafted two covenants on human rights, the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic, and Cultural Rights. The seeds of the Inter-American system were also planted post-World War II,18 emerging over several years from the Organization of American States (OAS).19 The Inter-American system was intended to prevent the atrocities of World War II from ever occurring in the Americas.20
The pertinent OAS documents for the Inter-American system are the OAS Charter and the American Declaration. The relationship between these documents loosely parallels the relationship between the U.S. Constitution and the Bill of Rights.21 As a reaction to the Cuban Revolution in 1959, the OAS resolved to create the Inter-American Commission on Human Rights.22 The Commission had the limited authority to observe human rights compliance in the Americas and make general recommendations to member states.23 In 1966, after the adoption of the two U.N. human rights covenants, the OAS recognized the need for a legally binding instrument for the enforcement of human rights.24 Consequently, the American Convention was adopted in 1969, which created the Inter-American Court and redefined the Commission.25
According to the American Convention, the Inter-American Commission on Human Rights serves two functions: (1) to hear and decide whether to refer individual petitions to the Court, and (2) to visit member states and prepare country reports concerning human rights compliance.26 Because the Commission and Member States are the only parties who can refer cases to the Court, and no state has ever done so,27 the Commission effectively determines the syllabus of the Court. Individuals seeking review by the Court must present their cases to the Commission, which then decides how to proceed. The Commission receives any information the individual can provide and whatever information the state is willing to turn over.28 The Commission attempts to negotiate a friendly settlement, but if none can be reached, then the Commission draws up a report and sends it to the state.29 After all procedures have been exhausted by the Commission, if the state has accepted the Court’s jurisdiction, the Commission then determines whether or not to refer the case to the Court.30 This structure lends itself to the view that the Commission is, in a limited sense, a Court of first instance.31
The IACHR is the sole judicial organ of the Inter-American human rights system.32 It is charged with adjudicating the American Convention on Human Rights,33 which was entered into force on July 18, 1978.34 As such, the Court serves as the final arbiter for the American States that have ratified the American Convention.35 As of January 2003, twenty-four of the thirty-five Member States of the OAS were State Parties to the American Convention.36 Under the Convention, the IACHR has two primary functions: (1) to decide individual cases, and (2) to issue advisory opinions.37 The constituted functions of the Court are circumscribed by the fact that it only has the authority to protect civil and political rights, not social, economic, and cultural rights.38
In order for a case to be heard by the Court, an individual, as discussed above, must present the case to the Commission.39 Non-governmental organizations (NGOs) may also file on behalf of an individual.40 The individual or NGO can do this under the American Convention, or alternatively, on an ad hoc basis by special agreement for a particular case.41 The complaint must be attributable to a state for acting or failing to act. In other words, a state may be held responsible for failing to remedy a rights violation even when the action is not otherwise directly imputable to the state.42 Moreover, the complainant must exhaust all domestic remedies prior to turning to the Inter-American system of human rights unless a “manifest denial of justice” is shown.43
Notably, the IACHR amended its Rules of Procedure in 2001 to allow individuals’ representatives complete autonomy in the Court proceedings.44 Prior to this change, the Commission was the individual’s advocate in the Court proceedings. Now, both the individual and the Commission are autonomous, and the role of the Commission in the proceedings has changed substantially.45
Until 1989, the Court was largely unsuccessful in ameliorating the human rights situation across the Americas46 as dictators in the Western Hemisphere perpetrated gross and systematic violations of human rights. State-sponsored disappearances, extra-judicial killings, and torture were commonplace. Because the Commission failed to refer contentious cases between 1979 and 1986, the Court’s principal vehicle for contributing to international law during that period was its advisory opinions.47 The Court did not issue its first decisions on individual petitions until 1989.48
The referral of individual petitions, and the Court’s adjudication of them, coincided with the re-democratization of several countries in the Western Hemisphere.49 Prior to the establishment of democracies throughout the OAS member states, it was very difficult to determine whether domestic remedies had been exhausted—therefore, it was difficult for the Commission to determine when cases should be referred.50
Despite the changes occurring internally within the newly emerging democracies of some member states, and the seemingly sudden change in the Court’s posture, States generally responded to the applications filed against them and participated in the adjudicative process.51 States still filed preliminary objections to the Court, but if the Court denied these, the States proceeded to present their defenses.52
Once a contentious case is referred to the Court, the Rules of Procedure establish several phases to the claim’s adjudication. The State may initially make preliminary objections and the Commission is allowed to respond.53 Following the Court’s decisions regarding preliminary objections, the Court hears a presentation of the case by the Commission or participating state. If the case meets all the requirements of Article 33 of the Rules of Procedures, the Court will issue a formal notification to the responding State.54 The State is given four months to answer, but can request extensions if needed. After this period, the parties may request additional written presentations.55 When the case is finally heard, the Court will consider testimony by the parties, as well as their witnesses and experts. The Court’s decision on the merits cannot be appealed.56 Moreover, the Court can issue orders on reparations at that time or in a later opinion.57 The Court may reserve the right to supervise the execution of its judgments, a right it has exercised.
The following eight cases form the corpus of the foundational stage of the IACHR when it first judged cases on their merits: (1) Velásquez Rodríguez, (2) Godínez Cruz, (3) Aloeboetoe, et al., (4) Caballero-Delgado y Santana, (5) Suárez-Rosero, (6) El Amparo, (7) Gangaram Panday, and (8) Neira Alegría. These first judgments on the merits represent a watershed in the history of the IACHR and the Inter-American system of human rights, a turning point of major proportions for human rights in the hemisphere.