Volume 43 | Number 3

Upholding Human Rights in the Hemisphere:  Casting Down Impunity Through the Inter-American Court of Human Rights

by Morse H. Tan

Abstract

This article further fills the lacuna in the scholarly literature regarding compliance theory and the Inter-American Court of Human Rights.  It builds upon a previous publication by this same author titled “Member State Compliance with the Judgments of the Inter-American Court of Human Rights.” Like its predecessor, this Article explores various prominent theoretical models including the managerial model, fairness and legitimacy, transnational legal process, and self-interest.  Harmonizing aspects of these distinctive theoretical models as an analytical base, this Article proposes a new, hybrid model which suggests that many of the central tenets of the previous theories reflect reconcilable dimensions of compliance with the Court’s judgments rather than representing an ineluctable, theoretical conflict.

This new hybrid model has been developed in the context of the Inter-American Court of Human Rights’ early jurisprudence on the merits:  the hybrid model finds application in the Court’s first decisions in contentious cases, which constitute the critical corpus of precedent upon which its growing caseload, legitimacy and authority have been built.  The Article’s focus allows its conclusions to be tailored specifically to the Inter-American system to bring greater comprehension of international law compliance in our hemisphere specifically, as well as contributing to the ongoing theoretical discussion of compliance theory.

Summary

  1. Introduction
  2. Brief History and Structural Analysis
    1. Velásquez Rodríguez
      1. Narrative
      2. Judgment on the Merits
      3. Form and Amount
      4. Commission and Government
    2. Godínez Cruz
      1. Narrative
      2. Judgment on the Merits
    3. Clarification of the Velásquez Rodríguez and Godínez Cruz cases
      1. Compliance in the Aftermath of the Clarification
      2. Closing of the Cases
    4. Aloeboetoe
      1. Narrative
      2. Judgment on the Merits
      3. Compliance with Aloeboetoe
      4. Closing the Case
    5. Gangaram Panday
      1. Narrative
      2. Judgment on the Merits
      3. Compliance with Gangaram Panday
    6. El Amparo
      1. Narrative
      2. Judgment on the Merits
      3. Reparations
      4. Compliance with El Amparo
    7. Neira Alegría
      1. Narrative
      2. Judgment on the Merits
      3. Indemnification
      4. Reparations
      5. Compliance with Neira Alegría
    8. Caballero-Delgado y Santana
      1. Narrative
      2. Judgment on the Merits
      3. Judicial Proceedings
      4. Compensation
      5. Compliance with Caballero-Delgado y Santana
    9. Suárez-Rosero
      1. Facts
      2. Judgment on the Merits
      3. Investigation
      4. Indemnity
      5. Reparations
      6. Interpretation
  3. Compliance Theory and the Court
    1. Why Do Nations Obey International Law?
      1. The Managerial Model
      2. Inherent Fairness
      3. Transnational Legal Process
      4. Self-Interest
      5. Cultural Homogeneity and Conformity with Broader Human Rights Schemes
    2. Synthesis of the Frameworks: How Do They Apply to the IACHR?
      1. The Ability of the States to Influence the Shape of the Court
        1. Composition of the Tribunal
        2. Caseload and Functional Capacity of the Court
        3. Capacity for Independent Fact-Finding
        4. The Court’’s Formal Authority to Enforce the American Convention
      2. The Interplay of State Influence on the Court with External Factors Out of State Control
      3. The Perception of Fairness and Legitimacy in the Court’’s Decisions
  4. Conclusion: Future of the Court

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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.
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A. Velásquez Rodríguez

1. Narrative

Velásquez Rodríguez was a case about kidnapping, torture, and forced disappearance.58 According to the petition filed with the Commission, Manfredo Velásquez, a student at the Universidad Nacional Autónoma de Honduras, was forcibly detained by members of the National Office of Investigations (DNI) and G-2 of the Armed Forces of Honduras, without a warrant for his arrest.59 He was accused of political crimes and subjected to torture and interrogation at the Public Security Forces Station.60 However, the police and security forces denied that he was detained.  Since the Commission received no response from the Honduran authorities to the petitions it transmitted regarding Velásquez, he was presumed to have disappeared.61

Subsequently, Sergeant José Isaías Vilorio, who had been summoned to serve as a witness for this case, was assassinated in Honduras.62 Then, Mr. Angel Pavón Salazar, who had already testified as part of the case was also assassinated in Honduras.63 The Court denounced the assassinations as “reprehensible.” 64

Because other witnesses had also been threatened based of their testimony before the IACHR, the President and Secretariat of the Court sent notes to the agent of the government of Honduras on November 6 and December 18, 1987.  These notes requested the Honduran government to take the necessary steps to protect the lives, property, and well-being of those who had been threatened.65

As the basis of its authority for making such a request, the Court cited Article 1(1) of the Convention.66 The IACHR also looked to Articles 63(2) and 23(5) to take the provisional measures to avoid irreparable damage to persons in cases of extreme gravity and urgency.  In addition, the Court ordered Honduras to investigate the assassinations and impose punishments under Honduran law.67

2. Judgment on the Merits

Velásquez Rodríguez was the Court’s first judgment on the merits of a contentious case and was decided on July 29, 1988.68 The Court ruled that Honduras violated the Article 7 right to personal liberty, the Article 5 right to humane treatment, and the Article 4 right to life in conjunction with Article 1(1) through its conduct towards complainant Angel Manfredo Velásquez Rodríguez. 69 All of these rulings were unanimous.  The Court also unanimously decided that Honduras was required to pay fair compensation to the victim’s next-of-kin.70

3. Form and Amount

On July 29, 1988, the Court decided six votes to one (Judge Rodolfo E. Piza dissenting) that if the Commission and Honduras failed to come to an agreement on the form and amount of compensation within six months from the date of the judgment, the Court would retain jurisdiction and would settle the form and amount of compensation.71 The Court also unanimously determined that its approval was necessary regarding compensation, and that it was unnecessary at that time to make a decision on the question of costs.72

Nearly one year later, on July 21, 1989, the Court unanimously set compensatory damages at 750,000 lempiras (free from taxes) to be paid to the family of Angel Manfredo Velásquez Rodríguez.73 Moreover, the Court determined that it would supervise the entire indemnification, which could be paid in six monthly installments, the first being made within ninety days from the date of notification of the judgment.74 Appropriate interest rates applied.75

4. Commission and Government

Both the Commission and Government of Honduras came before the Court concerning compensation.76

B. Godínez Cruz

1. Narrative

Saul Godínez Cruz was a schoolteacher whose house was put under surveillance.77 He disappeared on July 22, 1982 after leaving his house by motorcycle at 6:20 a.m.78 He was on his way to his work at the Julia Zelaya Pre-Vocational Institute in Monjaras de Choluteca.79 A witness claimed that a man in a military uniform and two persons in civilian clothing put someone who looked like Godínez and his motorcycle in a double-cabin vehicle without license plates.80

Saul Godínez was a leader of a teachers’ group, had participated in several strikes, and was in the midst of planning a new strike when he disappeared.81 Godínez was then (presumably) tortured, executed, and clandestinely buried by agents of the Armed Forces of Honduras.  His disappearance was part of a systematic and selective perpetration of between approximately one-hundred and one-hundred-and-fifty disappearances, which the government either assisted or tolerated from 1981 to 1984.82

2. Judgment on the Merits

The Court unanimously declared that Honduras violated Saul Godínez Cruz’s rights by breaching Articles 7 (personal liberty), 5 (humane treatment) and 4 (right to life) in conjunction with 1(1).83

Accordingly, the Court awarded 650,000 lempiras to the family of Saul Godínez Cruz,84 to be paid tax-free ninety days from the date of notification, as in Velásquez Rodríguez.85 The Court assumed responsibility for supervising the implementation and would close the case upon full compliance.86

C. Clarification of the Velásquez Rodríguez and Godínez Cruz cases

On September 29, 1989, delegates of the Inter-American Commission on Human Rights in the Velásquez Rodríguez case, asked the President of the Court to clarify and interpret the compensatory damages judgment of July 21, 1989.87 They made an identical request for the Godínez Cruz case.88 The Commission based its motions on Article 67 of the American Convention (disallowing appeal, but allowing for interpretation by the Court) as well as Article 48 (allowing for the participation of the Honduran government by “written observations”) of the Rules of Procedure of the Inter-American Court of Human Rights.89

The Commission’s concerns stemmed from the effect that inflation and currency devaluation would have on the monetary awards for the concerned children in both cases.  Some of the children involved would not receive their payments for nearly two decades.90 Given how inflation and currency devaluation had been historically common in Latin America, the Commission was concerned that future devaluation would diminish the value of court-ordered damages.91 As they stated in their brief, the Consumer Price Index (CPI) had risen 721 percent in Latin America as a whole from 1983 to 1988, or 144 percent per annum.92

In Honduras, CPI increases had been milder, but a trust set up with 562,500 lempiras in 1971 would be worth only 147,127 lempiras in 1989.93 The lempira had stayed steady (about two lempiras to one dollar) vis-à-vis the dollar over the previous fifty years, but when the Commission petitioned the Court for clarification, the lempira was declining in relation to strong currencies, such as the dollar.

The Commission therefore suggested that the value of the capital placed in trust be calculated as a fixed purchasing power rate of lempiras that would be grounded by its value in dollars.94 This approach could still cause the beneficiaries to lose purchasing power as the dollar devalued, but the dollar’s decline would likely not be as precipitous as the currency of many Latin American countries.  In addition, this approach had the functional benefit of relative simplicity and clarity for all parties involved.95

The Commission made its case on the basis of a portion of the judgment of the Court which provided that the beneficiaries will receive interest “under the most favorable conditions permitted by Honduran banking practice.”96

The Commission also noted the special, precedential legal value such a clarification would have, not only in the Latin American context, but in the overall development of the international humanitarian legal order.97 With regard to the Court’s oversight of compliance, the Commission aptly stated, “[t]he Court’s specific assumption of the supervision of compliance with its judgment is an eloquent indication of the responsibility the Court assigns to full and exact compliance, and serves to justify the importance of the interpretation we request.”98

The IACHR had thus indicated a willingness to take a more proactive role in seeking compliance with its judgments than, for instance, the U.S. courts, which in the midst of overflowing dockets, are often loath to supervise judgments, especially for certain types of equitable relief.

On the other hand, given the OAS General Assembly’s passivity in levying sanctions against non-complying member states, U.S. contempt laws, especially for criminal contempt, provide more forceful incentives to comply with courts’ judgments.  However, in recent years, the IACHR has benefited from the OAS General Assembly’s concern with promoting democracy in Latin America (e.g., in the case of Peru).99

In the Honduran cases, on August 17, 1990, the Court took a bold step and handed down the pioneering interpretation that the real amount of the award (purchasing power) needed to be preserved.100

1. Compliance in the Aftermath of the Clarification

The Honduran government refused to comply with the judgment aimed at preserving purchasing power, but it did undertake to make payments in the amounts the court had previously specified.101 Through its Ambassador, Edgardo Sevilla Idiáquez, Honduras expressed surprise at the “broad interpretation” the Court gave in response to the Commission’s request for clarification.102 Idiáquez protested the effect of increasing the amount that Honduras would pay to the beneficiaries in the Godínez Cruz and Velásquez Rodríguez cases.  Honduras claimed that the Court’s judgments of July 21, 1989, fixed the amount of compensation in the lempira without tying it to any foreign currency.  Idiáquez felt that these judgments required no clarification.103

Furthermore, Honduras protested that it had already set its budget for the year and that the country faced economic constraints.104 These two factors, according to Idiáquez, made it infeasible for Honduras to provide the extra allocation to the judgment’s beneficiaries.105 So Honduras reaffirmed its commitment to pay no more than the literal amount specified in the judgments.106

The Court, in a letter from President Héctor Fix-Zamudio, rejected the arguments of Honduras and reiterated its orders of payment according to its judgments.107 According to the President, non-compliance would damage the Inter-American system of human rights.108

i. Closing of the Cases

In its 1996 Report, the court revealed that on September 10, 1996, the IACHR unanimously decided to close both the Velásquez Rodríguez and the Godínez Cruz cases based on compliance with the Judgments on Compensatory Damages and Their Interpretations.109 Honduras had made official communications to the Commission that it had made the compensation in accordance with the Court’s order.110 Honduras also submitted a brief directly to the Court on April 12, 1996 in which it indicated that its President had delivered the requisite checks.111 Both the Commission and Honduras thus requested that the Court close the cases.112 The petitioners also indicated that they did not want to go forward with further pleadings pertaining to the incidental plea to establish Honduras’ compliance with the judgments.113 The first judgment on the merits of the Court thus found compliance with the payment of reparations, a landmark outcome for human rights in the hemisphere.

D. Aloeboetoe

1. Narrative

The reported events of this case occurred in the South American Republic of Suriname.  Specifically, what transpired took place in both Atjoni, which is the landing stage of the village of Pokigron, District of Sipaliwini, and also in Tjongalangapassi in the District of Brokopondo.114 Soldiers beat over twenty male, unarmed maroons (“bushnegroes”) with rifle-butts, and detained them under suspicion that they were Jungle Commando members.115 The soldiers wounded some of the maroons with bayonets and knives, and the soldiers also forced them to lay face down while they stepped on their backs and urinated on them.116

The roughly fifty persons who witnessed these events, as well as those who were beaten, were villagers from Paramaribo who were passing through Atjoni on their way home.117 The army commander ignored onlookers who told him that these people had no involvement in the Jungle Commando.118

The soldiers detained seven of the maroons (including a fifteen-year old) and let the others continue on their way.  The soldiers then blindfolded and dragged their captives into a military vehicle and drove them along the Tjongalangapassi road towards Paramaribo.119 One soldier told the captives that they would be celebrating the end of the year with them.120

After about thirty kilometers, the vehicle stopped and the victims were ordered to get out; those who refused to exit were forcibly removed.  The seven men were given a spade and told to begin digging a short distance from the road.121 When asked what they were digging for, one of the soldiers responded that they were going to plant sugar cane; another soldier said again that they would celebrate the end of the year with them.122

Richenel Voola, one of the maroons, then bolted.  The soldiers fired bullets, wounding him, and Voola collapsed to the ground feigning death.  Laying there on the ground, he witnessed the execution of his six friends.123

On January 2, 1988, men from the village went to the authorities to demand information regarding the whereabouts of the seven abductees.  Neither the Coordinator of the Interior for Volksmobilisatie, nor the Military Police of Fort Zeeland would tell them where the men were.124

Accordingly, the village men began searching on their own, going back into the Tjongalanga area.125 There they found the corpses of the murdered maroons, whose bodies had already been partially consumed by vultures.126 The six deceased’s next-of-kin did not receive permission to bury them until January 6.127 The villagers also found Voola, still alive, but critically wounded, with a bullet embedded in the muscle above his right knee.128 Voola’s wound had become infested with maggots and an “X” had been carved into his right shoulder blade.129

Voola was brought back to Paramaribo, and after negotiating with the authorities for twenty-four hours, an International Red Cross representative received permission to evacuate him to better care facilities.130 The Academic Hospital of Paramaribo admitted him on January 6, and despite caring for him for several days, the doctors were unable to save his life.  Adding insult to injury, the Military Police prevented Voola’s relatives from visiting him during his stay in the hospital.131

In filing its petition to the Court against Suriname on behalf of the seven deceased men, the Commission raised Articles 51 and 61 of the Convention as well as Article 50 of its Regulations in order to allege violations of Articles 1 (Obligation to Respect Rights), 2 (Domestic Legal Effects), 4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), and 25 (Right to Judicial Protection).132 Appearing for Suriname were Carlos Vargas-Pizarro (Agent), Ramon de Freitas, Albert Vrede, and Fred M. Reid, while the Inter-American Commission’s Delegates were Oliver H. Jackman and David J. Padilla.133

2. Judgment on the Merits

Noting Suriname’s admission of responsibility concerning the violation of Articles 1(1)–(2), 4(1), 5(1)–(2), 7(1)–(3) and 25,134 the Court unanimously set the reparations at $453,102 U.S. dollars, or the equivalent in Dutch Florins.135 Accordingly, Suriname was ordered to pay this amount to the victims’ heirs.136 The IACHR decided, however, not to order the payment of costs.137

The Court also ordered the creation of two trust funds and a one time payment of U.S. $4,000 for the establishment of a foundation to administer the funds as trustee.138 In addition, Suriname was ordered to reopen and staff the school in Gujaba (where most of the families lived) with teaching and administrative workers on a permanent basis, as well as ensure that the medical dispensary there was operational beginning in 1994.139 Finally, the Court determined that it would supervise compliance with its orders before taking steps to close the case.140

3. Compliance with Aloeboetoe

Noting in its report to the OAS General Assembly that it had not received any official communication from the Suriname Government with regard to compliance with the judgment,141 the Court requested that Suriname be compelled to disclose its progress, if any, in fulfilling the orders of the Court.142

However, members of the Foundation established under the terms of the judgment that Suriname had:  (1) deposited the sum of U.S. $3,853 in Dutch Florins as working capital for the Foundation’s operations; (2) deposited U.S. $134,990 as partial payment of the $453,102 that the Court ordered as reparation to the injured parties; and (3) that the balance of these reparations would be paid out in seven monthly installments.143

Yet in its 1996 Report, the Court stated again that it had not received any official communications from Suriname on its compliance in the Aloeboetoe Case.144 The Court noted the necessity of receiving official communication in order to be able to decide whether or not to close the case.145

During Regular Session XXXIII, from January 22 to February 3, 1996, the Court reviewed compliance with the Judgment on reparations in the Aloeboetoe Case.  Here, Judge Héctor Fix-Zamudio required Suriname to inform the Court on the status of the reparations.

4. Closing the Case

On February 5, 1997, the Court closed the Aloeboetoe Case.146 The Commission informed the Court that Suriname had paid US $453,102.00 in accordance with points one, two, and three of the Court’s September 10, 1993 decree.147 The State also complied with point four by providing the stipulated funds for the functioning of the Foundation.148 The Foundation, according to its Article 3k, must send annual reports to the Court concerning the economic well-being, administration, and development of the trusts which it is charged with overseeing.

The Government also repaired and reopened the school in Gujaba with the teaching staff as well as made functional the dispensary in conformity with point five of the Court’s order.149 Given Suriname’s compliance, the Court closed the case but left open the possibility of reopening it under circumstances that would merit it given the ongoing nature of some of the reparations.150

E. Gangaram Panday

1. Narrative

Having been expelled from Holland, Asok Gangaram Panday arrived at Zanderij Airport in Suriname on November 5, 1988.151 Upon his arrival, Panday’s brother, Leo, and wife, Dropati, both saw the Military Police taking him into custody, supposedly to investigate his expulsion from Holland.152 Initially, Panday was detained in a cell for deportees located in the Military Brigade at Zanderij,153 but on Sunday, November 6, he was transferred to Fort Zeeland.154

At no time between November 5th and November 8th, when Panday’s body was found, was he presented before a tribunal.155 Throughout the days of his incarceration, Leo Panday made repeated calls to the Military Police to inquire into the whereabouts and well-being of his brother.156 Eventually, on November 8th, Leo was informed that his brother had hanged himself.157

After viewing his brother’s nearly naked body at the morgue, Leo Panday, in his petition to the Court, claimed to have discovered that his brother had suffered large hematomas on the chest and stomach, had a black eye, a cut lip, a short belt around his neck, and that his testicles had been crushed.158 While the initial autopsy report concluded that Panday’s death was attributable to suicide, the coroner subsequently determined that, in fact, Panday had died from violent treatment.159

2. Judgment on the Merits

The Court unanimously declared that the Surinamese authorities had violated Asok Gangaram Panday’s right to personal liberty as provided by Article 7(2) of the Convention in conjunction with Article 1(1).160 However, as the case progressed, the Court was unable to conclusively determine all of the necessary facts for imposing additional liability.  Thus, the judges unanimously dismissed the charges that Suriname had violated Articles 5(1), 5(2), 25(1), and 25(2),161 while splitting 4–3 in finding that Suriname had not violated Panday’s right to life under Article 4(1).162 The dissenting judges were Sonia Picado-Sotela, Asdrubal Aguiar-Aranguren, and Antonio A. Cançado Trindade.163

The Court unanimously set damages at U.S. $10,000, or the equivalent sum in Dutch Florins, to be paid within six months of the date of the judgment,164 but did not award any costs.165 Moreover, the Court decided to supervise the payment of damages and indicated that it would close the case only upon compliance.166

3. Compliance with Gangaram Panday

Up to its 1994 Annual Report, the Court had received no information from the Government of Suriname regarding compliance with its judgments.  Thus, the IACHR requested the General Assembly to urge the State of Suriname to comply with the Court’s January 21, 1994 judgment.167

In 1997, the Court laid down a resolution stating that Suriname should make every effort to find the beneficiaries of the Court’s award168 and that if it were unable to locate the beneficiaries, it must deposit the amount in a bank trust.169 If the funds were not claimed by the rightful beneficiaries within ten years, the money would be returned to the government, and Suriname would be considered to have complied with the sentence.170

The Court also urged the Commission to attempt to locate Gangaram Panday’s next-of-kin so that the Government could fulfill the sentence handed down on January 21, 1994.171 The Court also required the parties to update information concerning compliance six months after this resolution.172
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F. El Amparo

1. Narrative

Judge Oliver Jackman recused himself from this case because of his prior involvement with the case while serving on the Commission.173 As a result, the case was heard by only five judges.174

The Court halted further inquiry into the facts after Venezuela failed to contest the narrative in the complaint.175 According to the Commission, sixteen fishermen, residents of the village of El Amparo, were traveling towards La Colorada Canal on the Arauca River when they encountered members of the Venezuelan military and police.  The latter were conducting a military operation called Anguila III, and in the course of events killed fourteen of the sixteen fishermen.176

The two surviving fishermen, Wollmer Gregorio Pinilla and José Augusto Arias, escaped by leaping into the water and swimming across La Colorada Canal.  The two men then found refuge in the Buena Vista farm, located about fifteen kilometers from the site of the shootings.177

The next day, Gregorio and Augusto turned themselves in to the Commandant of the Police of El Amparo, Adán de Jesús Tovar-Araque.  Tovar and other police officials immediately offered them protection.178

Military functionaries and police of San Cristóbal, State of Táchira pressured Tovar to turn the two fishermen over to the military.  They even attempted to seize Gregorio and Augusto by force, but numerous people standing in front of the police post foiled the effort.179

The Chief Inspector of the Dirección de los Servicios de Inteligencia y Prevención (DISIP),180 Celso José Rincón-Fuentes, visited Tovar during the afternoon of October 29th.  The Chief Inspector told Tovar that the military had killed fourteen guerrillas and that two had escaped.181

That same afternoon and early the next day, relatives of the fishermen came to Tovar seeking the whereabouts of the fishermen who had left on the 29th.  Meanwhile, the media had begun airing reports about an armed confrontation involving irregular Colombian combatants.182

2. Judgment on the Merits

The Court took note of Venezuela’s acknowledgment of responsibility and unanimously decided that Venezuela owed compensation to the surviving victims and the deceased fishermen’s next-of-kin.183 Upon notification of its judgment, the Court allowed Venezuela and the Commission six months to reach an agreement on the form and amount of this compensation.184 The judges also reserved the right to review and approve the agreement.185 Moreover, the Court stipulated that in the event Venezuela and the Commission failed to reach an agreement, the Court itself would decide the amount of the indemnities, court costs, and attorneys’ fees.186 Therefore, throughout the period of negotiations, the Court retained the case on its docket.187

3. Reparations

After the Commission and Venezuela failed to reach an agreement, the court initiated its own reparation and compensation procedures.  Both Venezuela and the Commission were granted the opportunity to submit briefs on the subject.188 The Court set the total reparations at U.S. $722,332, payable to the next-of-kin and the surviving victims, and ordered Venezuela to pay within six months.189

When divided among the sixteen victims in this case, a strong argument can be made that the Court set damages at an inexcusably low amount.  However, the Court also ordered Venezuela to continue investigating the events of the case and to punish those responsible for the massacre.190 The Court decided to leave the means of the investigation, as well as the type and extent of punishment, to Venezuela’s discretion.191

4. Compliance with El Amparo

February 27, 2006, still found the El Amparo Case open at the IACHR although the case has been closed in Venezuela.192 The most recent compliance-related order issued by the Court in this case was dated November 18, 2002.193 The Court told Venezuela to publicly name the guilty parties.194 With the responsible parties not yet brought to justice, El Amparo fisherman Wolmer Gregorio Pinillo lodged a complaint with the Ombudsman, reportedly fearing for his own life and the lives of his family.195

The Venezuelan government paid U.S. $722,000 to the victims and next-of-kin.196 However, the case remains open with the IACHR because Venezuela still owes U.S. $28,751.44 in interest payments and has not brought the responsible parties to justice.197 While Venezuela complied by paying the reparations, it still has not paid interest or brought the responsible parties to justice—much less effectively reform its legal system to obviate the need for IACHR adjudication of similar cases in the future.

G. Neira Alegría

1. Narrative

On June 18, 1986, the Peruvian Navy quelled a prison uprising at the San Juan Bautista Prison in Peru.198 The Court found that Victor Neira-Alegría, Edgar Zenteno-Escobar, and William Zenteno-Escobar were being held in the Blue Pavilion of the San Juan Bautista Prison.199

As a means of ending the riot, the Peruvian Navy demolished the Pavilion.200 Autopsies of many of the deceased revealed that the prisoners had been crushed to death.201 Moreover, the Peruvian Congress found a disproportionately larger use of force than was necessary.202 There was also a demonstrated lack of interest in rescuing the survivors, as four inmates appeared alive a few days later.203

In addition, the government failed to exercise due diligence to identify the bodies.204 This presented a threshold evidentiary issue, because none of the three upon whose behalf suit had been brought were identified as having been killed.  An issue thus arose as to whether this fact needed to be established conclusively for the case to go forward.

In answering affirmatively, the Court held that when the investigation is entirely within the control of the government, the burden of proof shifts to the state to show that the victims had not been killed.205 The Court considered that the evidence would have, or should have been, at the disposal of the government had it acted with due diligence.206

The Court also cited its previous rulings, saying that, “in contrast to domestic criminal law, in proceedings to determine human rights violations, the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State’s cooperation.”207 It continued, “[t]he State controls the means to verify acts occurring within its territory.  Although the Commission has investigatory powers, it cannot exercise them within a State’s jurisdiction unless it has the cooperation of that State.”208

In light of the above, the Court concluded that Victor Neira-Alegría, Edgar Zenteno-Escobar, and William Zenteno-Escobar lost their lives in the Peruvian Navy’s crushing of the Pavilion.209

2. Judgment on the Merits

The Court unanimously found that Peru violated the right to life recognized by Article 4(1) in the cases of Victor Neira-Alegría, Edgar Zenteno-Escobar, and William Zenteno-Escobar.210 The IACHR also found a violation of the right to habeas corpus established in Article 7(6) in connection with the prohibition of Article 27(2).211

3. Indemnification

The Court determined that Peru must fairly compensate the next-of-kin of the deceased and reimburse the costs that had been incurred pursuing domestic remedies.212 Peru and the Commission were to come to a mutual agreement concerning the form and extent of compensation and reimbursement within six months of the judgment notification date.213 However, the Court left the case open in the event that Peru and the Commission did not come to an agreement,214 in which case, the Court would determine the compensation and expenditures.  The IACHR also reserved review and approval power for the agreement.215

4. Reparations

On September 19, 1996, the Court (by a vote of 5–1) set the reparations at U.S. $154,040.74 for the next-of-kin and surviving victims to be made by Peru within six months from notification of its judgment.216 The Court further ordered Peru to do all that it could to locate and identify the remains of the victims and bring them to the next-of-kin.217

5. Compliance with Neira Alegría

According to the Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, February 25, 2000:

In May the Government paid full compensation, as ordered by the Inter-American Court of Human Rights, to the family of Neira-Alegría, who disappeared in 1986.  At year’s end, the Government still had not paid $245,000 in compensation to the family of Ernesto Rafael Castillo Paez, who disappeared after the police forcibly detained him in 1990, despite the Court’s 1997 ruling that the Government had violated Castillo Paez’s right to life, liberty, and personal integrity.  The Court also had ordered the Government to punish those responsible and to return the victim’s remains to his family; however, the Government had not done either by year’s end.218

H. Caballero-Delgado y Santana

1. Narrative

The events considered by the court in this case occurred in the Municipality of San Alberto (El Cesar), the site of intense army, paramilitary, and guerrilla activity.219 In El Cesar, the Colombian Army and several collaborating citizens detained and caused the disappearance of Isidro Caballero-Delgado and María del Carmen Santana in 1989.220 As more than six years had passed since the disappearance of Caballero-Delgado and Santana, the Court concluded that they were dead.221

Captain Forero, who commanded the army patrol that was alleged to have killed and buried the detainees, was discharged from the Colombian Army in 1990 by a military court, which found that he “did not carry out his obligation of custodian [and] guarantor of the life and personal safety” of the two Colombian citizens.222

The Court did not find sufficient evidence that Santana or Caballero-Delgado had been subjected to torture or inhumane treatment during their detention.223

2. Judgment on the Merits

The Court decided that Colombia violated Articles 7 and 4 (read in conjunction with Article 1(1)) against both Caballero-Delgado and Santana (Judge Nieto-Navia dissenting).224 However, the Court decided that Colombia had not violated Article 5 (Judge Pacheco-Gomez dissenting).225 The Court unanimously decided that Colombia did not violate Articles 2 (adopt measure to give effect to the Convention), 8 (fair trial) and 25 (judicial protection of rights), 51(2), and 44 of the American Convention.226

3. Judicial Proceedings

The Court unanimously decided that Colombia must continue judicial proceedings in accordance with internal law concerning the disappearance and presumed deaths of Santana and Caballero-Delgado.227

4. Compensation

The IACHR decided that Colombia was obligated to pay fair compensation to the victims’ relatives and to reimburse the expenses of the continued internal proceedings within Colombia.228 The Court left itself the option to decide the manner and amount of compensation and reimbursement.229

5. Compliance with Caballero-Delgado y Santana

On September 30, 1998, the State of Colombia presented a brief to the Court declaring that it was not possible to create the ordered trust funds for the victims’ relatives because of “practical internal order obstacles.”230 Instead of modifying its reparations judgment as the State’s brief asked, the Court asked that Colombia clarify some of the statements contained in its brief by January 15, 1999.231

I. Suárez-Rosero

1. Facts

Ecuadorian police officers arrested Rafael Ivan Suárez-Rosero at 2:30 a.m. on June 23, 1992.232 This arrest took place in the context of a police operation code-named Ciclón, which sought to “disband one of the largest international drug-trafficking organizations.”233 Area residents in Quito had told the police that the occupants of a “Trooper” were burning what appeared to be drugs, and subsequently the police order which culminated in Suárez-Rosero’s arrest was issued.235

Suárez-Rosero gave an initial statement to police officers in the presence of three prosecutors from the Ministry of Public Affairs.236 However, no defense attorney was present at this questioning.237

From June 23rd to July 23rd of 1992, Suárez-Rosero found himself detained incommunicado at the “Quito Number 2” Police Barracks.238 The cell, poorly ventilated and damp, measured five by three meters.239 Sixteen other prisoners occupied this cell.240

On July 23, 1992, per the order of the Commissioner-General of Police of Pichincha, the Director of the Men’s Social Rehabilitation Center kept Suárez-Rosero incommunicado for five more days.241 From July 28, 1992 onward, Suárez-Rosero’s family, lawyer, and members of human rights organizations were allowed to visit him.242

The Third Criminal Court of Pichincha issued an order of preventive detention against Mr. Suárez-Rosero on August 12, 1992.243 After the President of the Superior Court of Justice of Quito ordered investigative proceedings to be instituted on December 9, 1992, Suárez-Rosero filed a writ of habeas corpus four months later.244 On August 25, 1993, the President of the Superior Court requested that the Public Prosecutor have Suárez-Rosero’s detention order revoked.245 This revocation request was denied on January 26, 1994; the President of the Superior Court denied the habeas corpus request on June 10, 1994.246

The gavel fell on September 9, 1996, as Suárez-Rosero was judged an accessory to the crime of illegal trafficking in narcotic, drugs, and psychotropic substances.247 He was sentenced to two years less time served,248 and a fine amounting to two thousand times the minimum living wage.249 Suárez-Rosero testified that he was never summoned by a competent judicial authority to inform him of the charges against him.250

2. Judgment on the Merits

The IACHR found that Ecuador’s treatment of Suárez-Rosero violated Articles 5, 7, 8 and 25 of the American Convention on Human Rights.251 The Court further found that the final paragraph of the unnumbered article after Article 114 of the Criminal Code of Ecuador, which denies certain process based protections to persons charged with drug offenses, violated Article 2 of the Convention in conjunction with 7(5) and 1(1).252

The Court ordered Ecuador to investigate the persons responsible for the human rights violations set forth in Suárez-Rosero’s case and bring them to justice.253 In addition, the Court decided that Ecuador must pay a fair indemnity to the victim and his relatives and also cover expenses relating to their representations in this proceeding.254 Finally, the Court ordered the initiation of the reparations stage and authorized the President to adopt necessary measures as the circumstances demanded.255 The Court rendered all of these decisions unanimously.256

3. Reparations

The Court awarded U.S. $27,324.77 to Suárez-Rosero for wages lost during his detention from June 23rd, 1992 to April 29, 1996.257 The Court also deemed it just to give Ms. Ramadán Burbano U.S. $1,497.00 for her costs and the aid she rendered during the incarceration of her spouse.258

Furthermore, the Court gave U.S. $1,500.00 to Suárez-Rosero for the physical abuse he received and U.S. $4,280.00 for the psychological abuse.259 Mrs. Ramadán Burbano also received U.S. $2,020.00 for psychological abuse.260

The Court also deemed it proper to give moral damages to Suárez-Rosero and his immediate, nuclear family.  The reparations breakdown amounts to U.S. $20,000.00 for Suárez-Rosero, U.S. $20,000.00 for Ramadán Burbano and finally, U.S. $10,000.00 to their child Micaela Suárez Ramadán.261

Although Suárez-Rosero wanted a formal apology, the Court deemed their ruling to constitute a sufficient moral satisfaction for Suárez-Rosero and his family, and did not require a formal apology.262

The Court also prohibited Ecuador from requiring Suárez-Rosero to pay the fine it had levied against him.263 It also ordered Ecuador to remove Suárez-Rosero’s name from the Register of Previous Criminal Convictions as well as from the National Council of Narcotics and Psychotropic Drugs.264 Additionally, Ecuador was ordered to investigate and prosecute the acts that had led to the violations of the American Convention in this case.265

On the macro level, the Court commanded Ecuador to make internal reforms consistent with the American Convention of Human Rights.267 The Court deemed Ecuador’s early proffering as insufficient.268

The State offered to pay the costs of Mr. Suárez-Rosero and the Court took Ecuador up on its offer.269 It ordered the State to pay U.S. $2,300 for costs related to domestic legal action and U.S. $10,530.45 for the costs in the Inter-American system.270 The Court, as usual, declared that it would supervise the carrying out of its sentence.271 All of these orders came by unanimous vote of the Court on January 20, 1999.272

4. Interpretation

The Court admitted the State’s demand for interpretation.273 On May 29, 1999, the Court unanimously went on to reiterate that the State must fully pay Mr. Suárez-Rosero, his family, and his attorneys the complete amount indicated in its reparations judgment.274 This included making sure that inflation, insolvency, negligence, or the fiduciary agent’s lack of skill did not dilute the awards, especially for the child Micaela.275 The Court further clarified that the State could not tax the awards, especially those going to the attorneys.276 On November 27, 2003, the Inter-American Court declared that Ecuador had complied with operative paragraphs 1, 2, and 3 of the January 20, 1999 Judgment.277 Specifically, the State had not enforced the fine against Mr. Suárez-Rosero; his name had been removed from the register of criminal records of the national police and the register of the national council of narcotic drugs and psychotropic substances; the payments ordered in favor of Rafael Iván Suárez-Rosero and Margarita Ramadán Burbano had been made; and the payment of the costs and expenses ordered in favor of Alejandro Ponce Villacís and Richard Wilson had also been completed.278 However, the Court has not closed the case and continues to monitor the establishment of a trust fund in favor of the minor, Micaela Suárez Ramadán, and the investigation and punishment of the persons responsible for the human rights violations.279
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III. Compliance Theory and the Court

The Court’s reputation has steadily improved based on the quality of its jurisprudence.280 The growing respect for the Court is reflected in the status of witnesses—including presidents—who have appeared to defend State actions.281 Similarly, some states, rather than facing adjudication and judgment before the Court, have simply accepted responsibility for human rights violations, leaving only reparations to be decided.282 These occurrences implicitly demonstrate not only acceptance of the Court’s jurisdiction, but also an acknowledgment that an IACHR judgment is to be taken seriously, both domestically and internationally.283

Moreover, compliance with court-ordered reparations among states has been high.  Because the Court possesses few enforcement mechanisms, some critics were concerned that parties to cases before the Court might ignore judgments or refuse to make reparations.  However, most pecuniary compensation ordered by the Court has ultimately been paid, even if occasionally delayed for extensive periods.284

However, successful compliance with IACHR orders extends beyond compensation alone, as the Court may order State-parties to take action or to desist from particular acts.285 For example, the Court required Peru to release both Maria Elena Loayza Tamayo in Loayza Tamayo v. Peru286 and Cesti Hurtado in Cesti Hurtado v. Peru.287 Peru complied with both orders, marking a new level of compliance with the Court’s judgments.288 Some countries have amended, annulled, or declared unconstitutional domestic laws and judgments after the Court determined they were in violation of the American Convention.289 Such extensive compliance has supported the supranational stature of Inter-American human rights law.

In Velásquez Rodríguez, the Court declared that states have the duty under the American Convention to investigate and prosecute perpetrators of human rights violations.290 The Court also confirmed in an advisory opinion that individuals may be held responsible for complying with state laws that violate human rights under the American Convention.291 Moreover, states may be held responsible not only for violating human rights, but for failing to prevent illegal human rights violations.292 Notwithstanding these rulings, States have seldom been willing to adhere to Court orders to investigate, prosecute, and punish individuals responsible for the human rights violations.293 Thus, the states are generally willing to investigate only in the rarest instances, and when they do, the perpetrators normally serve a short prison sentence if they are sentenced to prison at all.294

Thus, a dichotomy of compliance exists.  States have generally been willing to comply with judgments for monetary reparations, but have been extremely unwilling to investigate and prosecute those responsible for human rights violations.  To some extent this reluctance is based on the States lacking the means to bring the perpetrators to justice.295 Another potential explanation, however, is that if a State complied with a judgment requiring investigation and prosecution, such an investigation might reveal that responsibility should fall on the State itself.  Because this result would be politically unacceptable for many governments, the motivation to stop short of investigatory or punitive action might be substantial.

If the Court can somehow overcome this reluctance and obtain full compliance with its orders, the Inter-American system will have contributed even more substantially to reduce impunity and to deter human rights violations in this hemisphere.296

Furthermore, this climate of impunity has resulted in numerous domestic amnesty laws.297 In several cases, the Commission and the Court have ruled that such amnesty laws are incompatible with the obligations of States in the Inter-American system.298 For instance, the Court ruled that amnesty laws protecting perpetrators were invalid in Argentina, Peru, and Uruguay.299 Thus, the Court has made clear that despite domestic amnesty laws, states have a responsibility under the American Convention to protect human rights and punish those who violate them.300

A. Why Do Nations Obey International Law?

It is said that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”301 This statement has been corroborated by a host of studies.302 Accordingly, “international law scholarship has generally assumed that nations tend to comply with international law.”303

Tragically, this assumption may not hold true in the realm of international human rights.  Despite the adoption of several human rights instruments since World War II, noncompliance remains more common than one might expect.304 In the case of the IACHR, however, compliance—at least with regard to reparations—has largely been the norm.

1. The Managerial Model

Professor Abram Chayes305 and Antonia Handler Chayes306 contend that a “Managerial Model” best accounts for compliance with international law within treaty regimes, such as the one placing countries under the jurisdiction of the IACHR.307 In other words, states do not choose to obey international rules for fear of sanctions, but rather as a result of the iterative process of discourse, which exists among the parties to a particular treaty regime.308

This contention fits the circumstances of IACHR compliance well because it does not rely much upon the direct threat of sanctions as its motivating force.  As the Organization of American States (OAS) General Assembly has never actually administered sanctions upon any member state, no such precedent exists that would provide motivation for future compliance with IACHR judgments.  However, the Managerial Model has been criticized for “assum[ing] a tendency to comply rather than explaining compliance.”309

2. Inherent Fairness

There is also some support for the theory that the inherent fairness of international rules themselves gives rise to compliance with international institutions such as the IACHR.  For example, Professor Thomas Franck points to considerations of legitimacy (“right process”) and distributive justice as the primary motivation for compliance with international law.310 Franck’s views, similar to those of Chayes and Handler Chayes, state the process of discourse is crucial.  Whereas the Managerial Model posits that discourse induces compliance,311 Franck contends that discourse and negotiation, if successful, lead to an agreed upon formula, which all participants consider fair.312

This theory also applies well to the IACHR, especially with respect to judicial legitimacy.  Among the factors that impact judicial legitimacy are:  (1) unanimity or near unanimity in decisions; (2) professional civility in opinions; and, (3) continuity of the law over time.313 The IACHR scores highly on the first two factors, and is only prevented from fulfilling all three by its relative youth.314 It is likely, therefore, that fairness, legitimacy, and considerations such as higher law contribute to IACHR compliance.

3. Transnational Legal Process

Transnational Legal Process is a view of compliance adopted by Dean Harold Koh.  Koh describes this as the “complex process of institutional interaction whereby global norms are not just debated and interpreted, but ultimately internalized by domestic legal systems.”315 Koh argues that the world stage upon which international law is played out is changing rapidly and fundamentally.316 He points to factors such as the erosion of national sovereignty, the growth and multiplication of international regimes, institutions, and non-state actors, the blurring of any distinction between public and private international law, the rapid formation of customary and treaty-based rules, and the increasing interpenetration of international and domestic systems as major signs of this change.317

As applied to the Inter-American System of Human Rights, transnational legal process is manifested in the formation of the OAS, the Inter-American Commission, and the Court itself.318 Because member states have an obligation to conform their laws with the Court’s judgments, and because domestic governments bear responsibility for carrying out the Court’s rulings, this process of interaction, interpretation, and internalization inextricably involves the interpenetration of national and international systems.319 The transnational legal process appears to apply to the Inter-American system and might suggest that the question of why compliance exists relates in part to the method by which compliance occurs.

4. Self-Interest

Self-interest constitutes another motivation for compliance with international law.  Scholars such as Jack Goldsmith and Eric Posner have embraced self-interest as the primary factor compelling compliance.320 In their estimation, the convergence of national self-interest with the tenets of international law has led states to analyze compliance with regard to present and future costs and benefits.321 Under this analysis, compliance will result whenever the long-term benefits such as reputation, trade, and international relations outweigh the short-term costs such as the financial burden of compliance and limitations on the range of governmental power.322 However, the power of international public opinion and the value that states place on their international reputations are factors that have debatable weight.

Jo M. Pasqualucci maintains that these factors carry surprisingly significant weight, and she points to the positive effect that even referral of a case to the Court can have within the state involved.323 However, to accept that national self-interest could adequately explain compliance would require ignoring two things:  (1) the discrepancy between the timescale of most governments, and that of the international system; and (2) the self-interest of those in power.  To postulate that a state government may comply with international law in the present to reap future benefits discounts the fact that those in positions of power rarely remain in power long enough to reap the benefits of compliance, while they can often benefit themselves immediately by noncompliance.

5. Cultural Homogeneity and Conformity with Broader Human Rights Schemes

Laurence Helfer and Anne-Marie Slaughter provide factors pertaining to the establishment of effective supranational adjudicative bodies and compliance therewith in their rigorous and informative article.324 Although the immediate application of their theory is to other supranational bodies such as the European Court of Justice, the European Court of Human Rights, and the United Nations Human Rights Committee, the authors explicitly state that their factors can be applied to other international bodies.325

Helfer and Slaughter divide these factors into three main categories:  (1) those within the control of the state parties to an agreement establishing a supranational tribunal; (2) those within the control of the judiciary; and (3) those beyond the control of the states and judges.326

Within the first category, the authors note four sub-factors in descending order of importance:  (a) composition of the tribunal; (b) caseload or functional capacity of the court; (c) independent fact-finding capacity; and (d) authority and status of the instrument that the tribunal is charged with interpreting and applying.327

In addition, the authors identify sub-factors within the second category:  (a) awareness of audience; (b) neutrality and demonstrated autonomy from political interests; (c) incrementalism; (d) quality of legal reasoning; (e) judicial cross-fertilization and dialogue; and (f) the form of opinions.328

The third category divides items into factors that do not fit into the first two categories.  Here, the authors note three major sub-factors:  (a) the nature of the violations; (b) autonomous domestic institutions committed to the rule of law and responsive to citizen interest; and (c) the relative cultural and political homogeneity of states subject to a supranational tribunal.329

While the IACHR has its own particular characteristics, it draws significantly from European bodies, and this framework is helpful in analyzing its success.330 The IACHR, through the American Convention, resembles its European analogue.  In fact, the IACHR even receives funding from the European Union and its Member States.331

Moreover, in Velásquez Rodríguez and Godínez Cruz, the Commission cited case law from the European Court to bolster its appeal to the IACHR.332 Notwithstanding the absence of case law in the Inter-American system prior to these cases, the appeal to the European Court’s precedents indicates the regard that the Commission has—and that the Commission would expect the IACHR to have—for its predecessor court in Europe.

This point takes on greater significance in noting the degree to which the European system of human rights has impacted the Inter-American system, both directly and indirectly.  In early November 1997, the full Court and its secretaries held a working meeting with representatives of the European Court of Human Rights in which they discussed matters of common interest to the two Courts.333 Specifically, they examined the changes in the courts’ respective rules and jurisprudence, the effects of the entry into force of Protocol XI, changes in the structure of the European Court of Human Rights and potential improvements in the Inter-American human rights system.334

These dynamics add to the notion of a community of international law.  Indeed, the IACHR has even expressly mentioned the continuity between its own jurisprudence and that of the European Court of Human Rights:  “[t]he case law of this Court is consistent with that of the European Court of Human Rights.” 335

On the other hand, some contend that the relative homogeneity (culturally and politically) of a given region, like Europe, is such that it would be difficult to find a universal approach therein that would apply to regions without the same sort of relative homogeneity.336 International human rights often conflict with issues of state sovereignty, a central tension, for example, in the Inter-American system.  At the same time, however, when human rights law reflects universal norms applicable across cultures, it greatly bolsters the case for supranational, supra-regional application.

B. Synthesis of the Frameworks:  How Do They Apply to the IACHR?

Each of the aforementioned frameworks has portions that help to explain compliance with the IACHR; thus, a synthesis of the frameworks will aid this analysis.  Considering each of the models above, and drawing heavily from the Helfer-Slaughter model, this author concludes that states comply with judgments of the IACHR for three major reasons:  (1) the states’ influence over the Court and the Court’s decisions; (2) the interplay of state influence on the Court with external factors that are out of the control of the state; and (3) decisions by the Court are perceived as fair and legitimate or in the best interest of the state.

Within the first category falls Helfer-Slaughter’s four sub-elements relating to the state’s control:  (a) composition of the tribunal; (b) caseload or functional capacity of the court; (c) independent fact-finding capacity; and (d) formal authority or status as law of the instrument that the tribunal is charged with interpreting and applying (the American Convention in this case).  The interplay of these factors is examined below.

Most of these factors remain fixed, at least within the context of a single case, such as the composition of the court (with the exception of ad hoc judges for that case) and the established status of the American Convention.  The stability of fixed factors can enhance the state’s perceived legitimacy of the decision.  Accordingly, each of these factors is also applicable to analyzing compliance with the Court’s decisions.

1. The Ability of the States to Influence the Shape of the Court

i. Composition of the Tribunal

The composition of, and the process of selection of judges to, the Court is a substantial factor in compliance.  States can control the Court through the selection of judges and commissioners as the OAS is responsible for these choices.337 On one hand, state control over the composition of the Court can greatly increase the perceived legitimacy of, and resulting compliance with the decisions of the Court.  However, nominations to the Court can also undermine the Court’s independence—and the pressure to comply with its orders—if sub-caliber, or non-independent judges are nominated and selected to serve.  Though the Court has had tremendous jurisprudence in the past, recent nominations have raised questions in the minds of certain scholars as to the quality of justices being elected to the bench.338

Similarly, the state may have some control over the composition of the Court in individual decisions through ad hoc judges.  In Velásquez Rodríguez, for example, the President of the Court recused himself and the state of Honduras was allowed to appoint an ad hoc judge to the Court.339 Similarly, in Gangaram Panday, the President requested that Suriname appoint an ad hoc judge.340 Interestingly, in Gangaram Panday, the ad hoc judge dissented in favor of the Commission on the violation of the Right to Life under Article 4(1).341 An ad hoc judge was also appointed in Neira Alegría, et al.342

In the case of Caballero-Delgado y Santana the presence of a Colombian national on the Court was not out of the ordinary as members of defendant nations were present on the bench in many of the Court’s previous cases.  What makes the case of Caballero-Delgado y Santana different is the extensive dissenting opinion authored by Judge Rafael Nieto Navia, the Court’s only Colombian.343 Since Judge Navia’s dissent hinged on an evidentiary matter, it is discussed more extensively in the analysis of evidentiary issues which proceeds below.

Apart from the direct control over the composition of the Court exercised by states in specific instances such as the appointment of ad hoc judges in Velásquez Rodríguez, Godínez Cruz, Gangaram Panday, and Aloeboetoe et al., states also can exercise indirect control over the Court’s decisions.  The potential for influence of this sort might occur, for example, when judges who are native to the defendant country sit on the court when a case involving that country is heard.

In both Velásquez Rodríguez and Godínez Cruz, the presence of Judge Rodolfo E. Piza (along with the ad hoc judge) meant that two Honduran judges served on the bench for these cases.  Because one might presume that Honduran judges would not disfavor their own country’s government, this likely gave the Court more credibility with the government of Honduras than it would have enjoyed if no nationals were sitting on the Court at that time.

But the question remains how much, if any, sway the presence of two Honduran nationals on the Court afforded Honduras.  Given the increasing interpenetration of international systems and domestic ones, the erosion of national sovereignty, and the blurring of the public-private distinction as considered in Koh’s discussion of transnational legal process theory, it is unlikely that either Judge Rodolfo E. Piza or Judge Rigoberto Espinal Irías considered themselves Hondurans first in discharging their judicial duties in either case.  The ability to serve impartially and to rise above one’s nationality is a necessary characteristic for judges of an international tribunal if supranational adjudication is to be respected and followed.

ii. Caseload and Functional Capacity of the Court

For the most part, the Commission has authority over the caseload of the Court.  In turn, states have control over the composition of the Commission.  Moreover, state control over the financial resources of the Court is inextricably bound to the functional capacity of the Court, and, unfortunately, the financial resources are generally lacking.

Certain financial protections are built into the agreement between the Republic of Costa Rica and the Court in Articles 7–10.344 For example, Article 7 forbids taxes on the Court with the exception of charges for public utility services.345 It also bars the imposition of customs, duties or charges for official use by the Court, and specifically protects the Court’s publications from any such customs, duties, or charges.346 Moreover, Article 7 prevents retaliatory charges from being placed on the Court.  In this way, the Court is somewhat protected from attempts to sway or intimidate it by attacking its figurative pocketbook, however meager it has been.  Such measures increase the Court’s financial independence.

Additional financial security and independence is provided by Article 8, which permits the Court to operate accounts in any currency and to transfer and convert funds between currencies without any financial controls or moratoria.347 The advantage this provision offers is greatest with respect to monetary reparations.  Through Article 8, the Court can avoid any attempts to circumvent the payment of reparations through the imposition of currency conversion charges or other financial controls.

Article 9 provides judicial immunity to the Court, allowing it to work without itself being subject to the domestic courts of any country or to any administrative process.348 Article 10 safeguards the Court’s lines of communication by authorizing total franking privileges.349 These privileges provide free postage and diplomatic status for the Court’s correspondence, so that it may be free from the threats of censorship and interception.  Chapter XI, Article 28 provides that Costa Rica will continue to subsidize the court annually in an amount not less than its initial grant, which is recorded in the Law of the General Budget of the Republic of Costa Rica.350

Despite these protections, according to Pasqualucci,351 there are several ways in which states may limit the power of the Court.  First, states can limit the financial resources available.  The budget of the Inter-American System is determined by the OAS, which has afforded only an extremely constricted budget.352 In fact, the Court has so little funding at this point, that its overall influence on human rights is limited.  The financial restrictions cause serious delays due to the fact that the Court cannot afford to hold the number of yearly sessions sufficient to hear all of the cases that are waiting.353 Consequently, the Court’s direct effect on human rights in the hemisphere is proportionate to the limited number of cases it is afforded the resources to hear.354 It is encouraging, however, to note that despite this limitation, the number of cases that the Court is handling each year has generally moved in an upward direction.

Rescia and Seitles also draw attention to the limited functioning of the Court and Commission as a result of the skeletal budget, thus calling for member states to provide sufficient resources so both bodies may function permanently.355 They contended such funding would include a sufficient budget to compensate judges and commissioners for their time, which is not the case at present.356 In addition, the Court and Commission need administrative independence from the OAS General Secretary.357

iii. Capacity for Independent Fact-Finding

In addition to the Court’s dependence on the states for funding, it also relies heavily on them in fact-finding for deciding cases.  This stands to reason from the perspective that the victims of human rights violations frequently have little or no access to evidence—thus, the Court must rely on the State.  In Velásquez Rodríguez, the Court emphasized this relationship with regard to fact-finding, stating that:

the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State’s cooperation. . . . The State controls the means to verify acts occurring within its territory.  Although the Commission has investigatory powers, it cannot exercise them fully and freely within a State’s jurisdiction unless it has the cooperation of that State.358

The Gangaram Panday case illustrates how dependent the Court can be on the state for evidence.  Here, the government of Suriname successfully frustrated the fact-finding efforts of both the Commission and the Court.  As discussed previously, the Commission in this case alleged torture and homicide by the State.359 All of the evidence required to prove both the occurrence of torture and the cause of death were controlled by the government.  Although the petitioners were allowed to watch and videotape,360 Suriname’s doctors performed the autopsy.361 Unfortunately, the quality of the tape was so poor that it could not be used by disinterested doctors to assess torture or the cause of death.362 Throughout the trial, despite orders by the Court to provide evidence and documentation, the Surinamese government neglected to do so.363 Given the lack of evidence, the Court had no choice but to dismiss two of the three claims against the government.364 Despite the Surinamese also failing to provide evidence regarding the third charge, the Court was able to infer guilt based on other facts.365

Such an inference is not unusual in the Court’s decisions because of the often glaring lack of direct evidence.  In the Godínez Cruz case for example, the Court stated that:

[t]he practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision.  Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent whit [sic] the facts.366


In the same case, the court went on to explain that circumstantial evidence is of specific importance in disappearance cases because the primary issue is the victim’s disappearance itself, which typically does not avail a corpse.367

Nonetheless, the question of how far to take circumstantial evidence is a question with which the Court must wrestle.  In the Caballero-Delgado y Santana case, for example, the dissenting opinion of Judge Nieto-Navia hinged on what he found to be a lack of direct evidence.  He took note that the implicated Colombian troops were cleared of any wrong doing by a domestic criminal court after it determined that only “weak and circumstantial” evidence existed against them.368 Because the IACHR had little other evidence at its disposal, he concluded it should have come to the same conclusion.369

In Neira Alegría, on the other hand, there was substantially more evidence available to the Court.370 The government of Peru had appointed an investigative committee, who was able to obtain much information regarding the disproportionate use of force to crush a riot at the prison.371 Despite there being several witnesses and survivors of the riot, the military refused to provide enough information to identify the bodies of those killed.372 Accordingly, the IACHR was invoked to assist.  Based on the information resulting from the investigation, the Court found the government had the evidence necessary to identify the vast majority of the bodies and had failed to do so.373

Similar to its dependence on the states for evidence, the Court also must rely on the states to protect witnesses.  Unfortunately, this reliance, in some cases, has been misplaced.  In Velásquez Rodríguez, for example, the Court called upon the state of Honduras to protect witnesses who were being threatened,374 yet several witnesses were assassinated before they were able to testify.375 Similarly, several witnesses in Neira Alegría refused to testify as to statements made regarding the human rights abuses.376 Though it was obviously not explicitly stated, it is reasonable to infer that these witnesses refused to testify because of threats.

The Court also relies on states to provide primary evidence on the exhaustion of domestic remedies.  In an effort to simplify this determination, the Court in Velásquez Rodríguez clarified this burden, holding that the State claiming non-exhaustion must prove domestic remedies remain to be exhausted, and that they are effective.377 If the state is able to show that additional domestic remedies exist, the burden shifts to the plaintiff to show the remedies proposed by the state have been exhausted or that the case falls within the exceptions of Article 46(2).378 Despite this burden shifting framework being established, the state still has substantial control over the evidence required to prove the existence and effectiveness of domestic remedies.

iv. The Court’s Formal Authority to Enforce the American Convention

The Court is charged with implementing the American Convention,379 which is binding on those nations which have ratified it—although some have done so with reservations.380 The decisions of the Court, however, are only binding on the states that have additionally ratified the jurisdiction of the Court.381 Furthermore, the Court is authorized only to adjudicate civil and political rights, as opposed to issues relating to economic, social, and cultural rights.382 In addition to issuing judgments, and unlike Article III courts under the U.S. Constitution, the Court may also issue advisory opinions, which are not binding on the states.383

While overall compliance with the IACHR has been relatively high, we have already discussed examples of partial and piecemeal compliance among states subject to the judgments of the Court.  Thus, the Court enjoys formal authority to enforce the convention, but not the authority to completely enforce its judgments.  Why then do the states within the jurisdiction of the IACHR choose to comply with its judgments at all?
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2. The Interplay of State Influence on the Court with External Factors Out of State Control

As discussed by Koh, the increasing interpenetration of international systems and domestic ones will have an effect on state compliance.384 As this interpenetration occurs among countries within the Inter-American System, pressure on states to comply with IACHR decisions will likely grow.  Yet while states cannot control this international pressure, they have the ultimate decision-making capability over whether to ratify the Convention and the Court’s jurisdiction.  Moreover, states can choose whether to comply with a decision of the Court in its entirety, as the Court intends.  However, more frequently, states comply with damages but neglect Court-ordered investigation of individuals.

Nonetheless, the steady interpenetration of international and domestic law may well lead to an erosion of national sovereignty, eventually limiting the states’ ability to pick and choose how much of the Court’s decisions with which to comply.  One example of this dynamic occurs when the Court is asked to enforce and interpret state laws.  In the Gangaram Panday case, for example, the Court found by inference that Suriname illegally and arbitrarily detained the victim under Suriname’s Constitution and other applicable laws of the State.385

Although state sovereignty remains strong in the Western Hemisphere, there is little question that states have relinquished some of their authority, and that they have obligations under the Convention that cannot be easily altered if they are to remain in compliance with the Convention.  Consider Trinidad and Tobago’s withdrawal from the Court’s jurisdiction effective immediately, in contradiction to the American Convention’s requirement of one-year advance notice.386 The pressure of the OAS community ultimately did lead to Trinidad and Tobago’s reacceptance of the Court’s jurisdiction, albeit with reservations.

Finally, the rapid formation of treaty-based rules and customary law will continue to provide constraints through which the state must determine its level of compliance.387 Most importantly, state interest in complying with the American Convention will limit the ability to disregard the decisions of the Court.  But while states still have the authority to determine whether they will ratify and comply with treaties, including their continuing acceptance of the American Convention, customary law remains less within the control of specific nations.  If a customary norm for human rights protection in a specific context lends support for an IACHR decision, there would likely be international pressure on the state to comply.

Clearly, self-interest plays a substantial role when a nation considers its response to external pressure of this kind.  As the potential for external pressure mounts, many states begin to view compliance with human rights protection as being in their own best interests.  Self-interest, of course, carries through to areas other than compliance with judgments.  For example, it could also play a role in the state’s willingness to engage in independent fact-finding.

Moreover, if human rights compliance is seen as being within the best interests of the state because it improves international status, then the state may engage in activity such as that described by the managerial model—facilitating discourse among the parties, the treaty organization, and the public.  In Aloeboetoe et al., for example, Suriname not only admitted responsibility with regard to violation of Articles 1(1)–(2), 4(1), 5(1)–(2), 7(1)–(3), and 25 of the American Convention,388 but it also complied fully, albeit over the course of several years, with the Court’s judgment.  Suriname’s compliance is best explained by self-interest.  Because Suriname does not occupy a prominent place in world affairs, a forward-looking government might attempt to change this.  Suriname—perhaps realizing that accepting the Court’s jurisdiction would lend legitimacy to their regime, and that compliance with the judgment would advance their interests—may have complied with the decision to improve their international standing.  Behind this move can be seen the need to be accepted in the global economy, a significant motivating factor for states.

Finally, temporal proximity to the human rights violation might also affect the likelihood of compliance.  A state may be less likely to view compliance as advancing its best interests.  Given any perceived threat to their political situation, a state might cooperate as little as possible.  Such reluctance to cooperate could increase the atmosphere of impunity for perpetrators of human rights violations.  Moreover, unwillingness by states to cooperate would dramatically slow the process of fact-finding and the fulfillment of other requests by the Court.

Ironically, this delay in processing cases might actually help compliance in this respect.  The longer the time period between the violations and the decision by the Court, the less likely it would be that those responsible for the violations would still hold the reins of power.

3. The Perception of Fairness and Legitimacy in the Court’s Decisions

As pointed out by Helfer-Slaughter, the communication by, as well as the actual fairness and legitimacy of the Court is largely within the Court’s control.389 The Court must engage in quality legal reasoning for a decision to be legitimate and respected.  In addition to rational, logical application of the relevant law that does not jettison common sense or public values, the Court must ensure the quality of organization and flow in its decisions.  Only by doing so will it make its decisions accessible to those who must comply.

Similarly, the Court should evaluate the overall structure and flow of its judicial system as a whole.  For example, the Court and the Commission must improve coordination in their common goal to protect human rights in the Americas.390 The Court and the Commission have frequently acted unilaterally to modify internal activities, such as procedural changes, which have worked to the detriment of the other body.391 The fact that the headquarters for each body are located in two different places also contributes to the lack of coordination between them.392 The Commission is situated in Washington, D.C., while the Court is in San José, Costa Rica.  One solution might to locate both headquarters in San José.  This would address both the need for coordination as well as situating the bodies centrally among the countries that have fully engaged in the Inter-American system of human rights.393

Moreover, the two-tiered system that requires the Commission to hear cases before referring them to the Court is time-consuming and may increase state impunity.  The delay may limit the responses available to the Court and prevent the Court from effectively protecting human rights.394 For instance, in cases involving illegally imprisoned individuals, the Court may take too long to hear the case and subsequently order the state to release the detainee—after the imprisoned person has served out a sentence as long as the delay in the Inter-American system.

Rescia and Seitles also mention the time delay for cases to proceed through the Court:  “[t]he delay to resolve the demands of human rights abuses, the duplicity of processes, the loss of evidence, and the anguish of having to relive often horrific events after eight or ten years contradicts the purpose of a system which seeks to emotionally and economically compensate victims.”395

Because the Commission is not an international tribunal, the process does not fully have judicial characteristics.  Thus, when a case proceeds before the Court, the Court must make legal decisions without considering the findings of the Commission, which results in duplicative consideration of the evidence.396 Rescia and Seitles suggest a procedural change that allows the Court to accept some of the Commission’s findings as undisputed.  If the Court contemplated this route, it would have also had to safeguard due process and not shortchange either side from proffering important evidence in Court that it could not, or did not, present before the Commission.

As a more extreme option, the Commission could be deemed the sole finder of fact,397 somewhat like a trial court in the U.S. court system.  Such a change, however, must be balanced against the possibility of decreased overall credibility of the Court.  As a possible middle-ground, Rescia and Seitles suggest that if the Commission were to respect “due process, the right to a defense, and all the rights of the parties, and the State Party [did] not object to its decision, the Commission’s decision would achieve a presumption of validity.”398 Fundamentally, the alleged victim should not be subject to excessive redundancies in international processes, both of which obtain the same information and force the victim to relive tragic memories.  Thus, the challenge must be to decrease such painful redundancy while not compromising a full, fair judicial process.

IV. Conclusion:  Future of the Court

The major contribution of the IACHR to the fall of impunity in this hemisphere happens to the extent of state compliance with its judgments.  States have complied with the judgments of the Inter-American Court of Human Rights for a number of reasons, including:  the member states’ role in the composition, fact-finding, and support of the Court, the fairness and legitimacy of decisions by the Court, the self-interest of the state, the gradual internalization of the standards enunciated by the Convention, and the progression of a culture with greater respect for human rights.

Notwithstanding the existence of very few mechanisms for enforcing its judgments, the Inter-American Court of Human Rights has enjoyed substantial compliance with its orders for reparations.  It has also succeeded in modifying domestic law to comply with the Convention.  However, the IACHR should still strive to improve compliance among states in prosecuting culpable individuals through domestic systems.  As such compliance increases, the grip of impunity will weaken.

As the Court waxes in support, authority, caseload, and legitimacy, it will continue to play a more substantial role in upholding human rights in the hemisphere.  One would wish that perpetrators of heinous human rights violations—whether of inhumane torture, improper incarceration, horrific homicides, or diabolical “disappearances”—increasingly will find justice knocking on their doors through the Inter-American Court of Human Rights.

Footnotes

For complete footnote citations, download the PDF.

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