Our incoming Global Americans program officer William Naylor had a chance to talk with Doug Cassel, professor of law at Notre Dame and the U.S. nominee to serve on the Inter-American Commission on Human Rights.
Regarded as a leading scholar on international human rights law, Cassel has filed numerous amicus curiae briefs in the United States Supreme Court concerning, among other things, the rights of prisoners at Guantanamo. He has represented victims of human rights violations from across Latin America in cases before the Inter-American Commission and the Inter-American Court of Human Rights. He holds a law degree from Harvard.
The election for the three open seats on the seven-member Commission will take place at the OAS annual meeting in Mexico City in June. If elected, Cassel would serve a four-year term beginning in January 2018.
Here he talks about his views of the region’s human rights challenges, the inter-American human rights system’s priorities, past efforts at reform, the problem of natural resource extraction in the hemisphere, and why the U.S. should have attended the most recent Commission hearings.
Professor Cassel, first off, congratulations on the nomination. I’m sure it’s an exciting time.
Well, thank you very much. It’s an honor to be nominated.
Can you tell me a bit about the cases you’ve litigated before the commission before and your experience with the organization?
I’ve worked in and around the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights for over 25 years as a teacher, as a scholar, and as a practitioner. I’ve represented various victims of human rights violations in a number of countries before the Commission and the Court.
I have a sense of the challenges that are faced by victims and, frankly, also by states in terms of the delays and congestions of the proceedings before the inter-American human rights system. I also have, because of that experience, a profound appreciation for the importance of the inter-American human rights system, which has done a great deal of good for human rights in the Americas.
What do you see as the primary accomplishments of the inter-American human rights system?
Speaking of the system as a whole, I’ll give some examples of some of the most noteworthy achievements of the Commission and the Court.
It used to be the case, following the atrocities and patterns of gross violations of human rights committed by military governments in the 20th century, that the outgoing military government, or even the sitting military government, would grant itself amnesty. The self-granted amnesty would basically preclude criminal investigation or prosecution of any of the perpetrators of massacres, disappearances, torture, etc. Spurred by the Commission, the Inter-American Court, beginning in 2001 and then in a series of cases since then, has made it quite clear that the obligations of states under the American Convention of Human Rights to guarantee the protection of human rights in their territories prohibits granting amnesties from criminal prosecution for those who engage in atrocities. That is certainly one of the signal achievements of the inter-American human rights system in the fight against impunity.
The system has also been very important in terms of protecting and defending democratic institutions. I refer particularly to the free press and the independent judiciary. In a number of cases, in various countries, the Commission and the Court have ruled in favor of the media to be free from suits for defamation, which typically result in outlandish damage awards. They have ruled in favor of the media to be free from criminal prosecution for things they write. They’ve also ruled to protect journalists from the dangers of physical violence. With regard to the independence of the judiciary, the Commission has recommended, and the Court has ordered, the restitution of wrongfully dismissed judges to their positions in a number of countries. The system has repeatedly defended the independence of the judiciary.
So both of those areas—the free press and the independent judiciary—are examples of the multiplier effect of the system, because the system can only handle a relatively small number of cases directly. In defending the institutions in a specific country, the inter-American system’s rulings can have a multiplier effect that extends far beyond its own docket.
Last year, the Inter-American Commission went through a funding crisis and barely avoided shut-down. A number of countries have pledged reforms that put the commission’s core functions at risk. Why do you want the job given all this? Do you know what’s still on the table as far as proposed reforms are concerned? What do you think about them?
Of course, as I said, it’s an honor to be nominated. But the reason I want the job is that I believe that the system provides valuable support and protection for human rights in the Americas. I want to help defend against the challenges it faces.
First of all, with regard to the budget: in my opinion, the Commission and the Court have never had an adequate budget. They don’t have enough meetings during the year. The commissioners and the judges aren’t paid, so they have to have other jobs or somehow live on their savings. That cuts into the physical capacity of the Commission and the Court to do their work. So that’s just an endemic situation. That’s been true since the beginning of the system.
Last year, as you mentioned, there was a particular budget crisis. This was in part because some of the European governments that had been funding the Commission needed to terminate their funding because they needed to use their human rights funds for their domestic refugee crises. That situation resulted in a budgetary crisis that was fortunately overcome because the United States and several other governments stepped up to the plate and plugged the gap. [Editor’s note: for a summary of who had stepped up financially in the hemisphere as of November 2016, see our report here: https://theglobalamericans.org/reports/liberal-rogue-latin-american-foreign-policy-human-rights/]
As I understand it, however, much of that was done with one-time-only money; the Commission will face another funding crisis as the course of 2017 moves on. And so, if I were so fortunate to be elected, one of my primary responsibilities would be to do everything I can on Capitol Hill to try to defend the inter-American human rights system from U.S. budget cuts. The Commission and the Court get a large portion of their total budget from the United States and almost all of that is funneled through the State Department, which, as you know, is apparently may take an approximately 20% budget cut in the next fiscal year. I don’t have any illusions that I could persuade Capitol Hill to increase the Commission’s budget, but I’ll do everything I can to try and minimize the decrease. That 20% might be allocated differently in terms of affecting some expenditures more deeply than others, so I want to make sure that the system is as protected as I can make it. So, the fact that there is a budgetary crisis is precisely one of the reasons that I want to serve on the Commission.
With regards to the reform proposals, this is a matter that’s been going on for decades. There have been at least four or five major rounds of so-called reforms of the Commission in the last 25 years. I’ve been involved in all of them on the side of trying to defend the system. In each instance, one or more countries come forward with proposals that they say will strengthen the Commission, but which most of us involved in working in and around the Commission understand will actually weaken it.
The latest big round of attempted reforms was fought out in the period of 2011 to 2013, and fortunately the upshot of it was that the Commission ended up strengthened. There’s always an inherent tension between a regional human rights commission and the states—who both create it and then find themselves on the receiving end of criticism or adverse recommendations from the Commission. So there is always going to be a certain number of states that will look for ways to make their lives easier under the Commission; that’s just a fact of life in this area of work. I would hope to do everything I can, whether I’m on the Commission or not, frankly, to defend the system against the almost inevitable backlashes that you get from some states.
That’s a great summary of the institutional challenges facing the Commission and the Court. But what do you think are the main human rights challenges facing the commission? If you were to be elected, what would you hope to achieve as far as specific human rights issues in the region?
Well, the Commission has just issued its strategic plan for the period of 2017-2021 after a series of consultations around the hemisphere involving hundreds of NGOs, human rights groups, and governments. That plan looks like the menu in the most well-stocked restaurant you’ve ever had dinner in. You have every conceivable human rights issue in their strategic plan. Whoever makes up the new Commission, I think one of their principal tasks will be to answer the question you just put to me: namely, what are the real priorities? You can’t prioritize everything, even in a good budget year, and we’re not going to be in a good budget year. There are going to have to be some hard decisions made to give emphasis to certain areas of work.
(I say a new Commission because there are seven members of the Commission, and three new members will be elected in June to begin serving in January, so we’re looking at a turnover there of almost half the Commission. Additionally, the Colombian member of the Commission, about a month ago, resigned to become the Colombian minister of justice, and Colombia has just nominated a new member who everyone expects to be elected in the coming days. So really you’ll have four new commissioners out of seven.)
I have, of course, a personal list, and I’ll mention some of them, but it’ll have to be something worked out by all of the commissioners as a collective decision. On my list, certainly, would be two of the items that I just mentioned to you, namely defense of the free press and defense of the independence of the judiciary, both from legal attacks—civil lawsuits and criminal prosecution—but also from physical violence against journalists and in some cases judges and lawyers. I see those as priorities as I mentioned because of the multiplier effect.
A third area that I think has to be absolute top priority is to defend the human rights defenders across the region. That is, advocates, lawyers, NGO representatives, union organizers, peasant organizers, who are often in many Latin American countries—not all of them—under threat of death. Not a week goes by when I don’t receive an email with a press release that another human rights defender somewhere in the hemisphere has been assassinated. That threat has a sort of negative multiplier effect, because when you take out the leadership, when you take out the advocates, you both remove some of the most effective defenders of human rights and also intimidate a lot of other people. We’ve got to do everything we can to neutralize or eliminate that negative multiplier effect and also to protect the lives of the people we’re talking about. The Commission and the Court have systems where they issue what amount to orders of protection; they negotiate with the governments to provide police protection and other means of security for people who are under threat, but that system is not perfect. It needs improvement. A number of the people who have been killed have been under orders of protection and were killed anyway. There’s no magic solution to this, but it’s certain that this problem must be addressed with a great deal of emphasis. No stone should be left unturned to figure out the best way that we can protect human rights defenders.
I’ll add one more, although there are so many more that could be added and should be added. Of particular and increasing importance is the issue of large multi-national corporations and their impact on human rights. In the Americas, that often takes the form of mining and oil projects, and typically it is not the large company that is directly engaged in the human rights violations. Instead, it often has to do with the security contractors they hire, or the relationship of the corporation with the local or national governments, which lead to issues of complicity or involvement in human rights violations. In recent years, the United Nations has begun to take a proactive approach in this, developing the United Nations Guiding Principles on Business and Human Rights, which were published with the consensus of the United Nations Human Rights Council, including the United States, back in 2011. Those principles—while recognizing that states have the primary duty to protect human rights—also stress clearly that business has a responsibility to respect human rights, through exercising due diligence, to try to anticipate and then avoid or mitigate any involvement or likely involvement in human rights violations. That’s a United Nations initiative. The OAS has endorsed it in a resolution or two, but that needs to be more operational as far as the work of the Commission to try and work with major multi-national companies. It needs to make sure they’re aware of human rights issues and try to prevent them before they become literally fatal.
Those are four priorities: free press, independent judiciaries, protecting defenders, and increasing multi-national corporation accountability.
Finally, as the United States nominee, do you have a reaction to the fact that the U.S. didn’t attend its last round of hearings in front of the commission?
I do. First of all, as the U.S. nominee to the commission I want to stress that each commissioner is elected in his or her individual capacity, and not as a representative of the government. You have to be nominated by governments, but once you’re on the Commission, you’re there as your own person and I would exercise my independent professional judgment in defense of human rights.
At the same time, I would engage in dialogue with all governments to try and work with them whenever possible in a cooperative way to protect human rights. That would include the United States government, although I should add that when it comes to any cases that are filed with the U.S. government, the Commission regulations require the U.S. member, if there is one, to be recused from ruling on that particular case.
In terms of not attending the hearings, that’s very unfortunate. For decades, the U.S. State Department and I—and others—have worked to persuade all the member states of the OAS to show full procedural respect for the Commission and the Court by attending and participating in the proceedings as they are obligated to do as members of the OAS. So whenever any government, whether it’s the United States or anyone else, fails to attend a hearing, it signals a degree of disrespect for the system which is regrettable.
Thank you for your time, Professor Cassel. Best of luck to you in the nomination process.