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INTRODUCTION
1. In 2004, the region achieved significant advancements in various areas, such as in political stability, decreased corruption and in the administration of justice. The strengthening of all of these areas is necessary for the full observance of fundamental liberties.
2. The IACHR highlights certain exceedingly positive achievements in the region: The launch of a comprehensive national program on human rights in Mexico that includes the structural reform of public policies in this area; the adoption of constitutional reforms to modernize the judicial system and broaden judicial mechanism to combat impunity for human rights violations in Brazil; and the realization of a referendum despite conditions of extreme political polarization in Venezuela.
3. This report concerns, likewise, a period characterized by a continuance of the efforts to combat impunity for serious human rights violations committed in preceding decades. The Commission emphasizes, inter alia, the prosecution of the former president of Chile for the atrocities committed during the military dictatorship in said country; the elimination of various legal obstacles that impeded the judicial prosecution in cases of “disappearances” and other human rights violations in Argentina; the creation of a Truth Committee in Paraguay; an in-depth report on political imprisonment and torture that completes the official documentation of acts that occurred during the military dictatorship in Chile; acknowledgments of international responsibility for serious human rights violations by Guatemala and Peru, in cases pending before the Inter-American Court of Human Rights; and the signing of a comprehensive friendly settlement in cases of forced disappearance that occurred during a civil war in Honduras. The Commission also observes with approval a number of important jurisprudential developments during 2004, such as the reaffirmation in the United States of the right to judicial appeal or review in the event of arrest of citizens or persons classified as enemy combatants in the context of the war on terrorism; the affirmation of the right to the truth and the restriction of military tribunals to investigate human rights violations by the Constitutional Tribunal in Peru; and the possibility to reopen criminal investigations based on decisions of international organizations.
4. These constructive developments have arisen in the context of renewed emphasis in matters of domestic security and the fight against terrorism. The Commission and the Court recognize the right and inalienable duty of States to guarantee the safety of their citizens, without prejudicing the questioning by the Commission of many excesses committed in the name of security. During 2004, the region has continued to witness the indefinite detention without charge or trial of hundreds of foreign citizens in the United States. The security policies adopted by the Government of Colombia continued to exacerbate the already grave humanitarian and human rights crisis, while the proposed process for the demobilization of paramilitaries failed to stop the violence or ensure an end to impunity. In some Central American countries so-called zero tolerance policies were implemented against gangs or presumed members of these gangs, who were labeled as terrorists in some occasions.
5. The region continued to be affected by crises of political, economic and social nature in several countries. These problems expose the institutional fragility of the rule of law and the precariousness of the process for strengthening democracy in the hemisphere. Deteriorating economic and social conditions in various countries have provoked mass popular demonstrations that have often been met with excessive use of force by the police, and in many cases, intensified the political instability. In Haiti, the breakdown of government led to the resignation of the democratically elected president amid rising political violence, as the prevailing economic conditions continued to deteriorate. In Ecuador, the removal of a majority Supreme Court magistrates, along with the dismissals of judges of the Constitutional Tribunal and the Supreme Electoral Tribunal have created deep concern in relation to the correct functioning of institutions essential to the rule of law and the observance of the fundamental principle of separation and independence of powers. Corruption, as a region-wide phenomenon, continues to impede the construction democratic and transparent societies. The vast majority of the States continued without confronting the causes and consequences produced by social exclusion and discrimination based on factors such as ethnicity, class, race, and gender.
6. According to the Economic Commission for Latin America and the Caribbean (ECLAC), the sustained economic growth of the region in 2004 has enabled approximately four million Latin Americans to lift themselves out of poverty from 2003 to 2004. Despite this improvement, however, ECLAC admits that it is insufficient to offset the decline in the 2001-2003 periods. This means that at least 221 million people, that is, 44.0% of the population of Latin America, live in poverty. Of those, 97 million live in conditions of extreme poverty or destitution. Furthermore, Latin America remains the region with the worst distribution of income in the world, a situation aggravated by the fact that in some countries income concentration is on the increase. In 2004, the World Bank warned that inequality is a dominant feature of Latin American societies in terms of income differences, access to services, and power and influence. The World Bank indicates that this high level of inequality hinders the reduction of poverty.
7. The Commission notes that this economic situation, the high poverty rates and the extensive inequality prevailing in the region are obstacles for the effective enjoyment of economic, social and cultural rights, and likewise negatively affect the observance of many civil and political rights. At the same time, in 2004, several social leaders and groups that questioned this economic situation were frequently repressed, harassed, and criminally prosecuted for their activities.
8. Furthermore, crime and citizen insecurity reached alarming proportions in various countries. In many countries the insecurity generated by the high rates of crime and the growing inequality led both the governments and the general public to demonstrate a higher tolerance for repressive methods used by the police. In this context, torture and excessive use of force are tools commonly used by the security forces in many countries in the region.
9. In the midst of this, in many respects, gloomy, panorama, the Inter-American Commission on Human Rights continued to represent an important forum for the defense of democracy and advancement of human rights in the hemisphere. The inter-American system of human rights, and the IACHR in particular, play a crucially important role in responding to human rights violations and combating impunity.
10. In its analysis of the challenges facing in the area of human rights, the Commission continued, in 2004, with a process of reflection on ways to strengthen the inter-American system as an essential mechanism to respond to the increasing needs of the region in this area. The IACHR recognizes that there are new challenges to confront, foremost among which, are the observance by the State of the rule of law and the effective protection of economic, social, and cultural rights.
11. Given this situation, it is necessary for the system to reflect on how to respond more effectively to the problems mentioned. This process of reflection was initiated by the Commission some time ago, and continued in the present year with an extraordinary period of sessions in Mexico that benefited from the presence of judges of the Inter-American Court of Human Rights, as well as important figures from government agencies and civil society organizations from different countries in the region. This process was also supported by the political organs of the OAS, which, at the last General Assembly, called for a parallel and complementary process.
12. The reflection processes that the Commission organizes derive from certain basic premises that will be referred below.
I. LEGITIMACY OF THE SYSTEM AND NECESSARY CAUTION
13. The region is living times of great promise in a Hemisphere in which both men and women have seen the essential possibility of developing as free human beings. In this context, the inter-American system enjoys extensive legitimacy that transcends beyond its organs and projects throughout the regional organization. This reality, together with the deficiencies of national judicial systems, compels more and more men and women from this Hemisphere to appeal to the Inter-American Commission in search of responses to their petitions for protection of their human rights protection, and leads the Commission to increase its individual caseload. It is imperative to establish a regional dialogue stemming from this basic premise, and to proceed with caution in order to preserve one of the OAS’ main sources of legitimacy.
II. THE NEED TO BUILD CONSENSUS AMONG ALL ACTORS IN THE SYSTEM
14. The IACHR confers the utmost importance to the maintenance of an open and public dialogue on improving the inter-American system. In order to preserve the legitimacy of the system, every discussion, debate, or dialogue seeking to build consensus around strengthening the inter-American system must include each and every actor associated with the system. We particularly have in mind the States, the bodies of the system, and civil society organizations. Each of these actors has its own vision emanating from its particular roles, responsibilities, and experiences that will contribute to a comprehensive vision of the system. Consensus building requires time and dialogue. For this reason, the Commission maintains that hasty measures that might jeopardize the achievements made thus far should not be taken.
III. STRATEGIC AND INTEGRAL VISION OF THE SITUATION OF HUMAN RIGHTS IN THE REGION AND THE NEEDS OF THE SYSTEM
15. The core strategic objective of the reflection process must be to strengthen the system. Any measures arising from areas of consensus built in this process should be guided in this direction. This entails strengthening of mechanisms that work, in particular the system of individual petitions and precautionary measures; consolidation of successful areas of activity, such as the thematic rapporteurships on the rights of women, indigenous populations, migrant workers and their families, persons deprived of their liberty, children, and freedom of expression; identification of situations that do not receive proper attention, and identification of the areas not properly addressed and amendment of any aspects not consistent with the core objective.
IV. THE POLITICAL AND PROMOTIONAL ROLE OF THE COMMISSION
16. The Commission understands, furthermore, that the reflection process should include an analysis of its promotional and political role in the future. The new times, described above, that the States and civil societies of the hemisphere traverse, in addition to the encouraging spirit of cooperation between the majority of states and the Commission, challenge the Commission to intensify joint activities between State bodies and the Commission aimed at shaping public policies that strengthen protection of human rights.
V. RAPID AND EFFECTIVE RESPONSE CAPACITY
17. One of the main challenges for the Commission and for the hemispheric community is defining how to respond to situations of serious human rights violations in a quick and effective manner. . Although institutional crises are chiefly the responsibility of the political organs of the OAS, the IACHR is an organ specialized in the area of human rights and, as such, it should use it mechanisms to protect the inhabitants of the Americas from violations of their rights. In this regard, the reflection process should encourage discussions on identification of tools to enable a response in situations of this nature.
VI. THE RELATIONSHIP BETWEEN PROTECTION OF DEMOCRACY AND PROTECTION OF HUMAN RIGHTS
18. The Inter-American Democratic Charter, adopted in September 2001 during the extraordinary period of sessions of the General Assembly of the OAS, highlights with clarity the interrelationship between democracy and human rights. In this connection, it is essential that the response mechanisms of the Organization for dealing with crises of democratic governance be coupled with full observance for human rights. Systematic and serious human rights violation, as well as reiterated and consistent failure to comply with the decisions of the organs of the inter-American system of human rights, must be a central part of the process of reflection to consolidate the rule of law through protection and advancement of human rights. At the same time, in order to prevent the exacerbation of crises, some kind of preventive response mechanism should be created to answer calls for assistance and early warnings from the IACHR.
VII. UNIVERSAL RATIFICATION
19. The inter-American system for the protection of human rights encompasses three levels of adherence. One is universal and minimum for all member states whose inhabitants are protected by the rights recognized in the American Declaration, through the Inter-American Commission. A second level of the system’s protection is that which is enjoyed by the citizens of member states that have ratified the American Convention but have not accepted the jurisdiction of the Court; and the third level includes those who have ratified the Convention and accepted the jurisdiction of the Court. This system is not ideal. From the human rights standpoint, it creates a disadvantage for the inhabitants of important countries in the region in terms of the international protection of their rights. The IACHR believes that the application of the American Declaration gives the system universal significance. It also recognizes that some of the countries that have not ratified the Convention offer a level of human rights protection comparable to the regional ideal. Nonetheless, it is disquieting for a member State to not ratify the Convention and accept the jurisdiction of the Court because of the risk of limiting the universal value of the protection mechanism. In a hemisphere rapidly moving towards commercial and economic integration, human rights must not be left behind.
VIII. COMPLIANCE WITH DECISIONS OF THE HUMAN RIGHTS ORGANS AND COLLECTIVE SUPERVISION BY THE POLITICAL ORGANS OF THE ORGANIZATION
20. While compliance with the decisions issued by the IACHR and the Court has increased when compared to the period when many dictators reigned in the Hemisphere, the situation remains far from satisfactory. The reflection process should lead to the identification of the necessary measures to enable states to act as collective guarantors of the system.
IX. INCORPORATING INTERNATIONAL OBLIGATIONS INTO THE DOMESTIC REGIME
21. In order to improve the system, it is necessary to analyze more precise mechanisms to help member states to adopt the legislative measures necessary to ensure that legal mechanisms exist to implement internally the decisions adopted by the Commission and the Court. Furthermore, in a complementing manner, an important contribution for improving the inter-American system would be for the legislative branches of countries in the region to adopt all the provisions necessary to guarantee the rights recognized in the international regime, and to amend or derogate all provisions in contravention of international human rights treaties. Likewise, it is necessary to modify or repeal all of the provisions that are irreconcilable with international, human rights treaties. The judiciaries, for their part, should fully apply treaty provisions and the jurisprudence emanating from the Commission and the Court.
X. THE NEED FOR INCREASED FUNDING
22. The process of reflection must lead to overcoming of one of the endemic and increasingly urgent problems that plague our system: budgetary limitations. Over the years, the Inter-American Commission has responsibly assumed the various mandates assigned to it by the General Assembly and Summits of the Americas, which denote the rising legitimacy of the system and recognition for its important role by the States. In this respect, the reflection process should seek to identify the measures necessary to increase funding, in order to enable the inter-American system properly to complete all its assigned tasks.
XI. STRENGTHENING AND INCREASED INDEPENDENCE AND AUTONOMY FOR THE INTER-AMERICAN COMMISSION AND ITS EXECUTIVE SECRETARIAT
23. The Commission considers that, in order to ensure effective and comprehensive completion of its functions and mandates, the IACHR must have complete independence and sufficient autonomy in administrative, financial, and political matters. This is indispensable for any international human rights organization. In practice, in recent years, the Commission managed to increase its autonomy with a directive from the General Secretary of OAS that grants ample prerogatives for the selection of its senior appointees, while it’s professional and technical staff is selected by its Executive Secretary. As a result, the professionalism, suitability, dedication and commitment to the human rights cause of the Executive Secretariat staff have risen considerably.
24. For that reason, the reflection process should seek the consolidation of this important aspect, which is essential for strengthening the inter-American system of human rights. The proposed restructuring of the OAS in 2004 demonstrated the need for a stronger legal framework for the autonomy of the IACHR. The Commission was forced publicly to make clear its opposition to the proposal that would have significantly reduced its autonomy because that would undermine its capacity to protect human rights. This position was met with broad consensus on the part of the states and civil society organizations.
25. A little over two decades ago, the reestablishment of freely elected governments commenced in the vast majority of the States in the region. At that time, the IACHR forecasted a promising phase for the rebuilding of democracy in a manner that would contribute to the enjoyment of human rights. However, in spite of this, an assessment indicates that democracy finds itself in a state of uncertainty and precariousness in many of our societies. As proclaimed in the Inter-American Democratic Charter, the effective exercise of representative democracy is the basis for the rule of law and of the constitutional regimes of the member states of the Organization of American States. Representative democracy is strengthened and deepened through permanent, ethical, and responsible participation by the citizenry, and member states must ensure that this participation is accompanied by transparency in government activities, probity, and respect for social rights and fundamental human rights, in order to contribute to the consolidation and stability of democratic governance. The reflections that the Commission proposes and promotes seek to strengthen its capacity and that of states to meet these challenges.
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