Inter-American System of Human RightsJust Showing Up Isn’t Enough, but It Is the First Step

The Inter-American Commission on Human Rights (IACHR or Commission) held its 165th Extraordinary Period of Sessions from October 23rd to October 27th, 2017 in Uruguay, its 166th Session from November 29th to December 7th, 2017 in Washington D.C. and the 167th Session of public hearings from February 22nd to March 2nd, 2018 in Colombia. During these three sessions, the Commission launched two thematic reports: “Toward the Effective Fulfillment of Children’s Rights: National Protection Systems” and “Toward a Comprehensive Policy to Protect Human Rights Defenders;” held over 50 hearings on 20 countries in the region; and signed a cooperation agreement with the State of Colombia to provide technical assistance in the implementation of the Peace Agreement. The support will seek to encourage authorities involved in the implementation of the accord to follow the Inter-American standards for the protection of human rights through high-level dialogues.

Since our first report “Liberals, Rogues & Enablers: The International Order in the 21st Century,” countries have been less cooperative in the Inter-American System of Human Rights, with only one country, Panama, receiving a perfect score for constructive participation. It has become more common for country delegations to read from a prepared script without addressing specific concerns brought up by civil society. By doing so, the country delegations fail to use these hearings for what their original design envisioned: opportunities for dialogue between civil society and the government to find solutions to human rights issues in the country. Governments have to do more than show up. They have to actively participate and demonstrate that they are willing to continue talks with civil society outside of the Commission.

But even with the decrease in active participation, there are still some governments that completely fail to address civil society concerns and excuse government action. While we expect this type of reaction from the government of Venezuela, this time, it was the governments of Jamaica, Peru and the United States that received some of the lowest scores.

Jamaica, a no show at the IACHR

During the 165th session of hearings, the government of Jamaica failed to attend its hearing because the government did not have diplomatic representation in Uruguay. But more important, the country said it failed to understand why a hearing on extrajudicial executions and excessive use of preventative detention against Afrodescendants was called if 92–93% of the country identify as black, 6% as mixed and less than 2% as not having African origins.

The Jamaican government’s excuse that because the majority of the country’s population identifies as black, the law enforcement’s attacks on Afrodescendants aren’t targeted attacks is worrying. The country’s failure to acknowledge it has a problem of extrajudicial executions and excessive use of preventative detention and its use of the country’s racial makeup to completely dismiss this issue is a sad contrast with its position on consistently backing regional resolutions on Venezuela. One of a few Caribbean countries to do so, Jamaica has voted in favor of U.S. backed resolutions on Venezuela calling for the country to release political prisoners, allow access to humanitarian aid and, at the 48th OAS General Assembly, prepare for the possible suspension of Venezuela from the OAS. In this respect, could Jamaica’s actions on Venezuela just be a ploy to stay in the U.S.’s good graces while ignoring human rights domestically? Or does the government truly support human rights? If it’s the latter, what about the human rights of Jamaicans, regardless of race?

The Humanitarian Pardon of Former President Alberto Fujimori

The Commission also heard a hearing on the pardon granted to former Peruvian President Alberto Fujimori. On December 24th, 2017 the government of then President Pedro Pablo Kuczynski granted Fujimori a humanitarian pardon and a “derecho de gracia,” which would protect him from prosecution for any other past crimes. Fujimori was less than halfway into a 25–year sentence for his role in extrajudicial killings, abductions and forced disappearances.

The Peruvian government was quick to cite Fujimori’s medical conditions—at 79 the former president suffers from tongue cancer, hypertension, tachycardias, and hemorrhagic gastritis—as the reason for the pardon. However, there are strong reasons to believe his release was a result of a negotiation between Kuczynski and Kenji Fujimori, a member of congress and son of the former president, to relieve growing pressure against Kuczynski from the fujimorista Fuerza Popular political party. During the hearing, it was clear that the Peruvian government could not provide a coherent explanation for the pardon. Although citing the former president’s medical conditions, the Peruvian delegation tiptoed around the question and constantly referred to other cases in which criminals had been pardoned for worse crimes. The delegation continued by describing Fujimori’s pardon as a way to move toward reconciliation without “forgetting the past” though with no explanation of what that meant exactly.

Human rights groups and relatives of victims also presented their cases “Families to the Inter-American Court of Human Rights.” After three months, on June 15th, 2018, the Court ruled that the Peruvian courts did not fully comply with “the obligation to investigate, prosecute, and, in this case, sanction the serious violations of human rights in the Barrios Altos and La Cantuta cases.” The Peruvian government must now review the case again in order to guarantee the right of access to justice and submit information on the progress made by October 28th, 2018. Last, the Court also stated that a measure designed to protect the physical integrity or life of the person convicted of human rights violations should only be applied in very extreme cases and should not necessarily result in their release.

The Court confirmed that under Article 68.1 of the American Convention on Human Rights, it was within its jurisdiction to rule on the case.

The United States at the IACHR

Compared to the hearings we covered in our last report, during hearings at the 166th Session in Washington D.C., the U.S. delegation was respectful. However, it failed to even remotely address the topic of the hearings. During the hearings, “Labor rights in the automotive industry in the United States” and “Rights to freedom of association, peaceful assembly and freedom of expression in the United States,” the delegation refused to discuss the subject matter because the subjects raised in the hearing are a part of ongoing investigations, and they were not in a position to comment. Similarly, in the hearing “Reports of impunity for extrajudicial executions in the United States,” the delegation acknowledged the issue but maintained that it was out of the Department of State’s jurisdiction.

The responses were more in line with past U.S. positions before the Commission that the issues were not under the State Department’s authority, still being adjudicated, or in courts not under federal jurisdiction. And it was an improvement on past performances; at the 161st Session the United States failed to show up for three hearings related to immigration; and at the 164th Session U.S. representatives did show up for its two cases but challenged the authority of the Commission and the U.S.’s obligations under the Inter-American Human Rights System.

But the more positive tone from the 166th Session shifted dramatically during the 167th Session. During the two U.S. hearings on the regulation of gun sales and social violence and the human rights of persons affected by the cancellation of the Temporary Protection Status and Deferred Action on Childhood Arrivals programs, the American delegation was dismissive. The delegation was completely unwilling to interact with the Commission in a constructive matter, criticizing the Commission for encroaching on issues concerning domestic politics and on the Commission’s spending “an inordinate amount” of resources to pursue the case. For those reasons, the delegation said it was becoming difficult for the U.S. to meaningfully engage with the Commission.

In addition, there was also a stark difference in the number of representatives in the U.S. delegation at the hearings. At the 166th Session the U.S. delegation comprised at least six representatives, but only two U.S. representatives showed up for the 167th hearings. As we’ve mentioned in our past reports, the U.S.’s resistance to cooperate fully with the body undermines U.S. support and authority to urge compliance with the Commission on the part of other member states.

The U.S.’s supposed concern for the IACHR’s budget in discussions on cases that involve the United States may well be a not-too-subtle threat to the Commission to downplay cases involving the U.S., especially since Washington is a major donor to the IACHR. But regardless of the intentions behind the recent U.S. attitude towards the Commission, the behavior encourages other governments to follow suit. It’s a dangerous, sinister threat, especially since the IACHR and the Inter-American Human Rights System overall has been the most prominent and forward-leaning professional, independent critic of the countries the U.S. purports to be concerned about.

Who Is Cooperating with the Inter-American Commission?

Here we list the thematic hearings at the OAS Commission’s 165th to 167th sessions and rate them based on government attendance and participation. A 0 indicates that the government representatives did not attend; 1 that the government attempted to disrupt or protested during the hearing; 2 neutral participation; and 3 active and posi-tive engagement by the government. If a country had multiple hearings, the score presented is an average.

Inter-American Court of Human Rights Candidate Biographies

At the OAS 48th General Assembly, member states elected three new members of the Inter-American Court of Human Rights (the Court), each of whom will serve a six year term. Countries voted to elect Eduardo Ferrer MacGregor (Mexico, 21 votes), Humberto Sierra Porto (Colombia, 16 votes), and Ricardo Pérez Manrique (Uruguay, 16 votes). Nardi Suxo Iturry, the Bolivian candidate, received seven votes.
The new justices will fill the seats currently held by Roberto de Figueiredo Caldas (Brazil), Eduardo Ferrer MacGregor (Mexico), and Humberto Sierra Porto (Colombia). Both Ferrer MacGregor and Sierra Porto were renominated for their seats.
The candidates and their qualifications are listed below alphabetically by country.

Nardi Suxo Iturry, Bolivia
Nardi Suxo Iturry, the only female nominee to the Court, is a lawyer and sociologist who is the current Ambassador of Bolivia to International Organizations in Geneva, Switzerland. Before her current position, she served as Minister of Institutional Transparency and the Fight Against Corruption from 2006 to 2015 (the position is now defunct; it merged with the Ministry of Justice in 2017). Her nine-year term is tied for the longest serving minister in the Morales government. At an event at the Inter-American Dialogue in April 2018, Suxo faced questions from the audience about her background in human rights and failed to promise independence from the Bolivian government in her decisions if she were to be elected to the Court. Prior to the vote, a largely critical editorial in the Bolivian newspaper Página Siete pointed out that Suxo was the only candidate with a strictly political background.

Humberto Sierra Porto, Colombia
Humberto Sierra Porto has served as a judge on the Inter-American Court of Human Rights since 2013. He served as president of the Court from 2014–2015. He is a researcher at the Instituto de Estudios Constitucionales Carlos Restrepo Piedrahita at the Universidad Externado de Colombia. A specialist in constitutional law, Sierra Porto previously served as a member of the Constitutional Court of Colombia from 2004 to 2012.

Eduardo Ferrer MacGregor, Mexico
Eduardo Ferrer MacGregor has served as a judge on the Inter-American Court of Human Rights since 2013. He was vice president of the Court from 2016–2017 and became its president on January 1, 2018. He is a member of the Instituto de Investigaciones Jurídicas at the Universidad Nacional Autónoma de México and has been a visiting professor at the Washington College of Law at American University, at Stanford University and at Notre Dame. He is author of numerous books and monographs on human rights and constitutional law.

Ricardo Pérez Manrique, Uruguay
Ricardo Pérez Manrique served on the Supreme Court of Uruguay from 2012 to 2017 and served as its president in 2016. Pérez Manrique has served in the Uruguayan justice system in various capacities since 1989, taught at universities in Uruguay and throughout the region including at Universidad de la República and Universidad de Argentina, and published dozens of articles in legal journals. He specializes on issues of domestic violence and is a vocal advocate for women and children’s rights.