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From issue: Human Rights (Summer 2009)

AQ Feature

The Inter-American Commission on Human Rights: 50 Years of Advances and the New Challenges

Since its creation, the Inter-American system of human rights has exceeded its founders' expectations. But can it evolve to address new challenges facing the Americas?

On August 18, 1959, the Inter-AmerIcan CommIssIon on Human Rights was created in a meeting of ministers of foreign affairs held in Santiago, Chile. Over the course of the next five decades, it has evolved into a cru­cial tool against injustice—exceeding the imagination of its founders and mak­ing it a force in the hemisphere and an example in the world.

Since its founding, the Commission has not only helped to raise the bar against human rights violators, but focused international attention on abuses committed by repressive regimes, helping to facilitate the region’s transition to democracy. With the adoption of the 1969 American Convention on Human Rights, also known as the Pact of San José, Costa Rica, its mission expanded to include normative instruments relating to the death penalty, torture, forced disappearances, violence against women, violations of economic, social and cultural rights, and discrimination against people with disabilities. And in 1979, with the establishment of the Inter -American Court of Human Rights, its mandate was strengthened with a jurisdictional arm.

The Commission’s evolution reflects the chang­ing political realities of the hemisphere. But looking back at the Commission’s impressive record can also help to chart the way forward.

Among its most notable achievements are the 1978 report denouncing human rights violations commit­ted by the Anastasio Somoza regime in Nicaragua and a 1979 report on Argentina that called international attention to systematic and massive abuses in that country, particularly the kidnapping and forced dis­appearance of thousands of opponents to the mili­tary government that ruled from 1976 to 1983. A 1998 site visit to Peru led to a groundbreaking report that accurately detailed, for the first time, the precarious situation of the rule of law under the government of then-President Alberto Fujimori.

Such site visits, aimed at documenting and denouncing abuses, as well as the processing of indi­vidual petitions from victims of human rights abuses or their families (more than 1,500 such petitions were received in the first eight years), formed the core of the Commission’s initial work. But the grad­ual strengthening of its mandate allowed it to play a more pro-active role.

During the last 20 years, paralleling the end of most of the region’s armed conflicts and the transi­tion toward elected government, the Commission’s focus shifted to the strengthening of its case system, which provided a vehicle for the resolution of indi­vidual human rights complaints. Between 1997 and 2003, the number of petitions increased by 170 per cent. During the last five years alone, the Commis­sion has received more than 7,500 petitions—reflect­ing the increased centrality of the Inter-American system in protecting individual and collective rights. Together with the Court, it has been instrumental in applying universal human rights standards in the region. The Commission played an important part in dealing with collective conflicts and structural issues of the rule of law.

Photograph by Marcelo Montesino (courtesy of OAS)
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The case system, strengthened by the establish­ment of the Court, led to a series of precedent-setting cases that expanded the scope and authority of the Commission and the Inter-American System in ways that could never have been imagined in 1959.

On April 24, 1986, the Commission sent its first two cases to this Court, both concerning Honduras. They concerned the illegal detention, torture and dis­appearance of Angel Manfredo Velásquez Rodríguez, a student at the National Autonomous University of Honduras, and the illegal detention and disappear­ance of Saúl Godínez Cruz, a teacher at the univer­sity—both at the hands of Honduran security forces. The Court found the State of Honduras responsible for violation of the right to life, humane treatment and the personal liberty of the victims. The ruling marked the beginning of the Court’s jurisdictional activity, and also greatly contributed to the develop­ment of international law on human rights. It estab­lished the jurisprudential bases for interpreting the obligation to respect and guarantee human rights, set forth in Article 1 of the Inter-American Human Rights Convention and conceptualized the forced disappearance of people as a crime involving multi­ple violations of the most fundamental rights estab­lished in the Convention.

The strengthening of the case system has not only allowed human rights advocates to secure justice for individual petitioners, but to facilitate the structural changes needed to prevent future violations.

In 1992, for example, the Commission concluded that amnesty laws for serious human rights viola­tions committed during the military dictatorships in Argentina and Uruguay were incompatible with the Inter-American Convention on Human Rights.

In 2005, the Supreme Court of Justice of Argen­tina cited these Court decisions as a legal precedent for declaring unconstitutional the amnesty laws approved in the mid-1980s that had ended the pros­ecution of military officers that committed crimes against humanity. Following this decision, cases against people accused of serious human rights vio­lations during the dictatorship were opened for the first time in Argentina. Similarly, in Peru, the Attor­ney General issued a resolution requiring all prosecu­tors who had participated in the amnesty processes to request that their respective courts comply with the sentence by the Court. These decisions are prob­ably the most important in the Inter-American sys­tem. By eliminating impunity for violations that cost tens of thousands of lives, they strengthened the rule of law across the region.

In 1994, the Commission expanded the scope of the right to freedom of expression by ruling against ­criminal contempt and libel laws—a precedent that had profound ripple effects throughout the region in protecting the rights of journalists. The decision arose from a petition filed by Argentine journalist Horacio Verbitsky, who had been sentenced to jail for having criticized a minister of the Supreme Court. At the time, Argentine law mandated criminal sanc­tions against anyone that insulted public officials who were lawfully performing their duties. Under an agreement negotiated through the Court, the law was repealed. Soon afterwards, similar contempt laws were stricken from the books in Belize, Chile, Colombia, Costa Rica, Guatemala, Honduras, Mexico, Panama, Paraguay, and Peru.

Another case taken up by the Commission in 2000 resulted in the strengthening of women’s rights in Brazil. Maria da Penha Maia Fernandes, a Brazilian woman who had been left paralyzed since 1983 as a result of abuse by her husband, claimed that her efforts at seeking legal redress had been systematically ignored by Brazilian courts. The Commission agreed with her, concluding that Brazil had violated her rights under the American Convention on Human Rights and under the Inter-American Convention to Prevent, Punish and Eradicate all Violence against Women. In 2006, as a result of the Commission’s recommendations, Brazil enacted a law that made spousal abuse a crime, established specialized courts in domestic and family violence, and created Women Public Offenders Offices across the country. The law, named after da Penha, also mandated speedy resolution in the courts of such cases and helped to launch what was called the National Policy to Face Violence against Women. Da Penha’s husband was brought to trial, where he was convicted and sentenced to jail. She was awarded compensation and other reparation measures by the state.

Another vital tool used by the Commission is the practice of granting precautionary measures. When the Commission is informed of a situation that could lead to serious and immediate human rights violations to an individual or group, it can request that the respective government take immediate protective actions. Since 1980, the Commission has enacted more than 600 such measures. In recent years, it has received between 250 and 350 requests for precautionary measures every year, and has granted fewer than 100 per year. In 2008, the Commission granted 28 precautionary measures. Through these measures, the Commission requested the states to protect the lives of human rights defenders, of indigenous peoples and of persons living with HIV—by providing them with antiretroviral drugs—among others.

Raising public awareness of human rights has become a key part of the Commision’s growing mandate. Since 1990, it has created rapporteurships to draw the attention of governments to emerging issues. Beginning with the Rapporteurship on the Rights of Indigenous Peoples, the Commission has created Rapporteruships over the last two decades on freedom of speech and on the rights of women, migrant workers, children, persons deprived of liberty, and Afro-descendants.

Toward the Next Generation

The past 50 years have not only left an enviable record of accomplishment, but have created a solid also created a solid legal foundation for the protection of human rights in the region. But now we must build on that founda­tion to fulfill the promise of our democracies.

The first order of business is to establish univer­sality. All states in the region must ratify the Amer­ican Convention. Without this, the region’s human rights system will be fundamentally flawed. The countries that have ratified all the system’s tools are few: Argentina, Costa Rica, Colombia, Ecuador, Mex­ico, Paraguay, Peru, Panama, and Venezuela. It is particularly troubling that hemispheric leaders such as the United States and Canada have not ratified the Convention. Nor have most of the English- speaking Caribbean countries (except for Barbados, Dominica, Grenada, and Jamaica). In the U.S., then-President Carter sent the Convention to the Senate in 1979, but was unable to have it ratified. We hope that President Barack Obama’s administration will place human rights as the central axis of his policy and ratify the Convention.

Equally critical, the Commission and the Court ­must retain their independence and autonomy. They must continue to play the supervisory role they have assumed in the region if human rights are to be protected. The continued acceptance of the Commision’s role by individual states, as well as their active participation—and compliance—in Inter-American processes, is crucial.

Although the system was established by governments working together, it was civil society— through the courageous actions of individuals and human rights groups around the continent—served as the engine for its creation. And it was the emerging and energized human rights movement of the 1970s that helped the system to evolve and to strengthen by filing petitions and complaints when all other doors had been closed. Now civil society is­playing a leading role once again in identifying the challenges that threaten to weaken the system. These groups, as well as a new generation of civil society organizations, are bringing petitions on new topics. Issues such as social rights and the right to property may again provide an opportunity to expand the scope and authority of the Inter-American system and the Commission, if it is done with respect for fundamental rights and institutional processes.

Compliance with the Court’s decisions is essen­tial, particularly when decisions require strong action on the part of individual states. The

Inter-American Court
has delivered a sentence in 16 of the 110 cases presented. The other 94 cases have not been complied with. Partial compliance with the recommendations and sentences is the most common situation, and this accounts for many of the successes of the Inter-Amer­ican system. However, full compliance is still a chal­lenge, especially in the area of justice.

The growing number of petitions and requests places an additional burden on the Commission’s human and financial resources. To be more effec­tive, the Commission needs a larger budget—which can only be achieved through an increase in contributions from the states of the region.

If these challenges can be addressed, the Commis­sion will be able to extend the vision of its founders and provide justice for those who face discrimination and systematic abuse throughout the region.

 

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