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CHAPTER I

INTRODUCTION

 

1. The Annual Report of the Inter-American Commission on Human Rights (IACHR) for 1999 presents an evaluation of compliance with the obligation to observe and guarantee the fundamental rights of inhabitants of the Americas in accordance with the legal instruments in force in the inter-American system. This analysis reflects the human rights situation in the member states of the Organization of American States (OAS) at the end of the millennium, which also marks 40 years of work by the IACHR and of observation of historical, social, and institutional developments in the Hemisphere.

2.    In a significant number of the countries in the region, the process of democratization, based upon free elections in almost all of the member states, has been a vital step forward in accomplishing the purposes of the Organization and in complying with the basic prerequisites for protecting the fundamental rights of our inhabitants. Moreover, the democratic election of authorities, already occurring for a third or fourth consecutive time in many countries, has improved hemispheric oversight by the Commission and the Inter-American Court.

3.    However, the institutions functioning in most member states still have flaws that hamper the rule of law, thereby jeopardizing the effective exercise of the fundamental rights of the inhabitants and impeding the stability they need for sustained social, economic, and cultural development. The Commission notes with concern that in 1999 several political and institutional crises occurred in various states, which confirmed the serious nature of their problems as well as the difficulties their political systems encountered in coping with the societal demands. Thus, it seems evident that there must be a serious and urgent effort to consolidate the rule of law and the constitutional state in accordance with the standards of our regional system, and thereby avert setbacks that can compromise the legitimacy and legality of the institutions.

4.    The Commission must point out that, despite the existence of democratic forms of government, numerous inhabitants of the Hemisphere continue to be the victims of violations of fundamental rights, such as the rights to life, to liberty, and to personal security. Seventy percent of the individual cases before the IACHR, as well as a significant number of the petitions that it continues to receive, deal with the alleged violation of the right to life. The police, the armed forces, the deficiencies and weaknesses of the judiciaries, prison staff, and other public servants continue to abuse their authority. In many cases, there is also a persistent failure to prevent or fairly redress the consequences of violations.

5.    Besides individual victims of violence, among whom are human rights defenders and journalists (see below), broad sectors of the population, located in areas where there are still situations of emergency, including internal armed conflict, continue to be deprived of their fundamental rights. States that have benefited from the restoration of peace in recent years still face a bitter legacy that calls for greater efforts to cultivate tolerance and justice. Furthermore, many survivors of past violations still await redress.

6.    In countries affected by emergency situations or where there is still internal strife, grave violations of international law have been verified, in addition to serious humanitarian problems such as those suffered by refugees and internally displaced persons who are forced to leave their places of residence to avoid situations of extreme violence. In these latter circumstances, there is an urgent need to fully comply with the international law of human rights and observe the basic provisions of international humanitarian law, in order to avoid any act that might hinder the return to peace and national reconciliation. The Commission believes that the definitive establishment of the principle of individual criminal responsibility in the international order and of its corollary, the principle of universal jurisdiction, will help to consolidate the rule of law and fundamental individual freedoms.

7.    The protection and guarantee of the fundamental rights of the inhabitants of the Hemisphere depends on the immediate adoption of measures to improve the administration of justice. As the contents of the Annual Report make clear, impunity and violations of due process are a serious problem affecting both victims and persons accused of breaking the law. In countries in the Hemisphere that apply capital punishment, these deficiencies may well lead to irreversible consequences. At the same time, tardy disposition of cases compromises the presumption of innocence for almost 70% of the prison population. That population, as the Commission continues to document, generally lives in crowded conditions and is supervised by poorly trained staff. In may cases these detainees have no effective mechanisms for internal complaints or external supervision, and are subjected to conditions that make a mockery of the right to humane treatment.

8.    The Commission is seriously concerned about repeated delays and/or ineffectiveness in prosecuting human rights violations involving state agents. Impunity and the mistrust it generates with respect to effective exercise of the rule of law present some of the most intractable challenges faced by our Hemisphere.

9.    The extensive use of military courts deserves separate comment. The Commission and the Court have rejected the notion that civilians should be subject to special tribunals, in particular military tribunals, the jurisdiction of which should be limited to the prosecution of members of the armed forces in active service for dereliction of duty or crimes committed in the line of duty. Nor should military jurisdiction be used to investigate actions, such as crimes against humanity and human rights violations, for which provision is made under the civil jurisdiction. Members of the security forces who commit common crimes should be prosecuted in the ordinary courts in accordance with the principles of independence and impartiality.

10.    Despite the efforts made in several member states, structural flaws in the justice systems, such as inadequate budgets, impossibility of access for indigent persons, and the fact that state-appointed defense counsel generally are not in a position to carry out their duties effectively, seriously hamper how those systems function. In certain circumstances, the lack of a formal judicial career affects the caliber, as well as the tenure, of the judges, and this is reflected, for example, in their unfamiliarity with international human rights standards.

11.    Furthermore, threats against judges, prosecutors, and witnesses continue to increase, and protective measures taken by the State in response to such threats as well as actions taken to combat their sources have been insufficient. The security of individuals engaged in the promotion, monitoring, and legal defense of human rights and of the organizations to which many of them belong, warrants special mention. Such individuals and institutions play a crucial role, both in the litigation of cases relating to the effective exercise of human rights and in the oversight of democratic institutions exercised by civil society.

12.    In 1999, acts of intimidation, disappearances, and assaults, some leading to fatalities, continued to be perpetrated against persons and organizations engaged in the defense of human rights. The Commission must express grave concern regarding this matter, and believes that the member states should take the necessary steps to protect the life, personal security, and freedom of expression of those who work to ensure respect for fundamental rights, in accordance with the collective commitment expressed in OAS General Assembly resolution AG/RES. 1671 (XXIX-O/99).1

13.    Likewise, the Report of the IACHR Special Rapporteur for Freedom of Expression clearly states that journalists of the Hemisphere continue to be the target of threats and assassinations. Acts of harassment, persecution, and reprisal against the investigative press or other persons who exercise their right to freedom of expression in the media, such as members of opposing political parties, create an atmosphere in which the effective exercise of this right is seriously diminished. Unfortunately, the Commission continues to receive complaints that indicate that many of these acts go unpunished. The failure to diligently investigate these crimes against journalists and other acts that attempt to curtail freedom of expression indirectly have a chilling effect on other professionals in the media and on citizens generally, as it discourages them from criticizing those who hold the reins of power or to denounce abuse and illicit acts.

14.    Freedom of expression must be fully exercised if democracy is to be strengthened in the region. The Commission believes that the member states should make a firm commitment to assume the challenge of guaranteeing full respect for this right in all its manifestations and, in particular, through the media. The right of any citizen to disseminate political ideas on government and public concerns through the press should be protected under law and criminal laws such as contempt of public authority should be repealed, in accordance with the standards established by the organs of the inter-American system.

15.    Inadequate protection of the right to life, to freedom, to justice, and to freedom of expression, goes hand in hand with the lack of firm measures to deal effectively with the social, racial, or ethnic marginalization that afflicts the peoples of the Hemisphere. The member states should implement positive measures to guarantee equal access to opportunities in all spheres of national life. As the OAS Charter provides, equality of opportunity, the equitable distribution of wealth and income, and full participation in decision-making are "basic objectives of integral development."

16.    It is true that millions of our region’s men, women, and children still cannot meet their daily needs for food, clothing, and housing, and lack equitable access to education, health care, potable water, sanitation services, and electricity. The recent entry into force of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights "Protocol of San Salvador" is a step in the right direction for the protection of the social, economic, and cultural rights of the inhabitants of the region. The Commission hopes that the states that have not yet done so will formally commit to guaranteeing that the rights recognized in that instrument progressively take effect.

17.    As mentioned above, the principle of non-discrimination is a lynchpin of the inter-American system and observance of that principle is also a primary challenge for member states, who must create or strengthen the legal and institutional mechanisms to fight discrimination within the parameters established in the system. In particular, the Commission must reiterate its concern regarding persistent gender discrimination in the laws and current practices in a significant number of the countries in the Hemisphere. Likewise, the member states should, once and for all, seriously commit themselves to providing special protection for certain persons or groups of persons, such as children, the handicapped and indigenous communities.

18.    It is a fact that the survival and development of hundreds of thousands of the region’s children have been and are still being threatened by violence, poverty and lack of opportunity, as well as by the existence of practices such as slave labor, sexual exploitation or the use of children as soldiers in situations of armed conflict. Despite the fact that the member states are obligated to provide special protection for children, the Commission continues to document cases of abuse, particularly of street children, which go unpunished in the countries. Many children are still forced to work in conditions that are detrimental to their right to development and education. A child’s labor should be subordinated to his/her education and development, which, at a minimum, must include free obligatory primary education, and a guarantee of access to secondary education. It is imperative that member states commit themselves fully and definitively to the challenge of protecting children and taking positive measures to guarantee their security, health, and education.

19.    The Commission’s concerns in the areas of justice, equality, and economic and cultural development converge when addressing the problems afflicting the indigenous communities in various parts of the Hemisphere. The members of these communities are often victims of extreme poverty and their essential human rights are often violated, inside and outside their communities. The member states are facing a challenge of particular historic, geographic, and social importance: national unity based on consolidation of the multicultural composition and harmony of our societies, and respect for various forms of social organization, development, and individual and collective well-being that are not necessarily taken into account in systems protected by national law. Such a process involves the restitution of the plundered lands, territories, and resources of indigenous peoples and communities, to enable them to exercise the right to develop in accordance with their own traditions, needs, and interests.

20. It is now several years since the IACHR approved the Proposed American Declaration on the Rights of Indigenous Peoples in 1997.2 The Commission considers that the member states must, finally and conclusively, express their recognition of the rights and just aspirations of indigenous populations of the Hemisphere by adopting the American Declaration on the Rights of Indigenous Populations, at the General Assembly of the Organization without further delay.

21.    Another of the IACHR’s concerns is the status of migrant workers and their families, as their situation is often particularly vulnerable, due, inter alia, to differences of language, race, and culture. As a result, the essential rights of these individuals and their families are often ignored in the countries in which they work. The Commission considers it fundamentally important that member states promote observance of the essential rights of migrant workers and their families and protect those rights in national legislation in accordance with international standards in this area.

22.    The following is a list of general recommendations that the Commission deems it advisable to make to the states of the Hemisphere at this time in the hope that they will serve as an instrument for attaining the objectives of the inter-American system for the protection of human rights:

 

I.    The Commission urges the member states to adopt effective measures to protect the right to life, personal security, and liberty of their inhabitants and to ensure that violations committed are duly investigated and redressed. It also recommends that the member states adopt such legislative and other measures as may be necessary to invoke and exercise universal jurisdiction in order to bring to justice those responsible for genocide and other crimes against humanity and war crimes.

II.    The Commission urges the member states to adopt the necessary measures to ensure the independence and impartiality of judges, administer justice in accordance with the standards of due process, and strengthen their judicial systems so as to ensure that those under their jurisdiction are afforded judicial protection. The Commission calls upon the member states to adopt the necessary measures to improve the condition of persons deprived of their liberty in light of the minimum standards established in the American Convention and the American Declaration, and in international law of human rights.

III.    The Commission urges the member states to adopt the necessary measures to protect the life, personal security, and freedom of expression of human rights defenders, in keeping with the collective commitment set forth in resolution AG/RES. 1671 (XXIX-O/99) of the General Assembly of the Organization3 and other instruments adopted by the international community.

IV.    The Commission recommends that the member states adjust the legal framework for the exercise of freedom of expression under their jurisdiction in the light of the standards of the American Declaration and the American Convention; eradicate indirect restrictions, in particular the harassment of journalists and other persons exercising their right to free speech; as well as ensure judicial protection for the dissemination of information and the effective investigation and prosecution of crimes against journalists.

V.    The Commission calls on the member states that still have not done so to ratify the Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights so as to extend the protection of those rights for the benefit of the inhabitants of the Hemisphere.

VI.    The Commission reiterates its call to the member states to repeal provisions of domestic law that permit discrimination and to fight such practices resolutely, in view of their international obligations. The Commission also calls upon the six states that have not yet done so to ratify the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women.

VII.    The Commission urges the member states to commit themselves fully and definitively to take up the challenge of protecting children and to take positive steps to ensure their security, health, and education.

VIII.    The Commission urges the member states to recognize the rights and just aspirations of the indigenous populations of our Hemisphere by adopting the American Declaration on the Rights of Indigenous Populations.

IX.    The Commission recommends to the member states that they promote respect for and guarantee the essential rights of migrant workers and their families in their domestic legislation in accordance with standards recognized by international law in this area.

 

21.    The Commission considers that the member states must meet these challenges, individually or collectively, as a matter of urgency, to guarantee the human rights of the inhabitants of the region. Human and institutional development, the pillars of the successful workings of democracy as a form of government, and stability and peace, in turn largely depend on attaining the objectives agreed by the member states in the area of human rights.

22.    As indicated at the outset, the scope of the task of hemispheric supervision by the organs of the inter-American system has broadened in the last two decades, as has the participation of the member states. Notable in this area are cases in which international responsibility was recognized before the Court as well as the many friendly settlements reached in individual cases. These developments reflect the interest of the states in redressing, in light of the standards and spirit of the American Convention, the consequences of human rights violations.

23.    During 1999 there have been a number of attempts aimed at strengthening the inter-American system of protection. In this regard, priority must be given to increasing the material and human resources available in the system to effectively fulfill the mandate to promote and protect human rights in the Region. The Commission is aware that it must do its part in connection with these initiatives to strengthen the system, and to this end it is committed to reforming, in a responsive and responsible, way a variety of its procedures and practices.

24.    As the Commission has often indicated, the integrity and effectiveness of our regional system of human rights depend on faithful fulfillment of the international obligations of the member states. This first requires all member states to take the necessary steps to achieve the universality of the system by ratifying the Pact of San Josť and the other instruments in force and by accepting the jurisdiction of the Court. In this respect, the Commission regrets the entry into force of Trinidad and Tobago’s denunciation of the American Convention, which represents a serious step backwards in the Hemispheric attempt to strengthen the inter-American human rights system. Secondly, proper operation of the system requires fulfillment of the obligation to adapt the domestic legislation of the states parties so as to include the rights enshrined in those international instruments, and to ensure that they are duly interpreted and applied by their organs, particularly the courts. Finally, the states must respect their international commitments and comply fully with the decisions and orders of the supervisory organs of the system. In this respect it must be noted that, during 1999, the Commission called the attention of the Permanent Council of the Organization to the fact that two member states –specifically the Republic of Peru and the Republic of Trinidad and Tobago— had acted in a way manifestly inconsistent with their international obligations by ignoring the IACHR’s recommendations and not complying with judgments and orders of the Inter-American Court of Human Rights.

25.    Despite the complexity of these challenges, and the need for serious and urgent action, the states of the Region have the vision, maturity, and capacity to move in the right direction. The Commission hopes to continue to collaborate with the member states and with civil society in responding to these challenges and to work together towards a 21st century which inaugurates an era of full respect for human rights in the Hemisphere.

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1  "Human Rights Defenders in the Americas" Support for the Individuals, Groups, and Organizations of Civil Society Working to Promote and Protect Human Rights in the Americas" (Resolution adopted at the first plenary session, held on June 7, 1999).

2 Approved by the Inter-American Commission on Human Rights on February 26, 1997, at its 1333rd meeting, 95th regular session.

3 "Human Rights Defenders in the Americas". Support for the Individuals, Groups, and Organizations of Civil Society Working to Promote and Protect Human Rights in the Americas," a resolution adopted by the General Assembly at the first plenary session of its regular session, held on June 7, 1999.