CHAPTER III

AREAS IN, WHICH FURTHER STEPS ARE NEEDED TO GIVE EFFECT TO THE HUMAN RIGHTS SET FORTH IN THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN AND THE AMERICAN CONVENTION ON HUMAN RIGHTS

1.          In its five annual reports, the Commission has presented to the General Assembly of the Organization several topics whose seriousness and importance to respect for and effectiveness of human rights it considered on each occasion of the highest interest, and on which it has suggested specific measures in order to advance along the path to their full observance.  The General Assembly, for its part, has on several occasions endorsed the recommendations of the Commission in the resolutions adopted at its annual sessions.

2.          Among the topics to which the Commission assigned special importance in its previous reports are the phenomenon of disappeared prisoners, torture, social, economic, and cultural rights, and the problems of refugees in the Americas.  The IACHR wishes to take this occasion to set forth some ideas on those topics, in which further steps are needed to give effect to human rights.

3.          In relation to the most serious phenomenon of the disappeared/detained persons, the Commission in its last five annual reports to the General Assembly has pointed, inter alia, the following:

This procedure is cruel and inhuman.  As experience shows, a “disappearance” not only constitutes and arbitrary deprivation of freedom but also a serious danger to the personal integrity and safety and to even the very life of the victim.  It is, moreover, a true form of torture for the victim’s family and friends, because of the uncertainty they experience as to the fate of the victim and because they feel powerless to provide legal, moral and material assistance.

Further, it is a demonstration of the government’s inability to maintain public order and state security by legally authorizes means and of its defiant attitude toward national and international agencies engaged in the protections of human rights.[1]

          As the IACHR has stated, a particularly serious aspect of this problem is the fact, repeatedly denounced by this Commission, that the children born of women who have “disappeared” while pregnant and young children abducted with their parents are not handed over to their legitimate guardians—grandparents, uncles, aunts or other relatives—but placed in institutions and in some cases given up to adoption in the country or abroad.  The Commission has also stated:

It has been the opinion of the Commission that the status of “disappeared” seems to be a comfortable expedient to avoid application of the legal provisions established for the defense of personal freedom, physical security, dignity, and human life itself.  In practice, this procedure nullifies the legal standards established in recent years in some countries to avoid illegal application of the use of physical and psychological duress against persons detained.[2]

The Commission also repeated its request that the fate of those who have disappeared after being arrested be clarified and their families informed of their status.  It also recommended that centralized arrest records be established, that only competent authorities with proper identifications make arrests, and that the detainees be held in places designed for the purpose.[3]

For its part, the General Assembly in resolution AG/RES. 443 (IX/0/79), adopted on October 31, 1979, resolved in its operative paragraph 3 the following:

To declare that the practice of disappearance is an affront to the conscience of the hemisphere, and is totally contrary to common traditional values and to the declarations and agreements signed by the American states, and to endorse the Commission’s recommendations for prompt clarifications of the status of persons who have disappeared….

The General Assembly at its tenth regular session, in resolution AG/RES.510 (X-0-80) adopted in relation to the Annual Report and Special Reports of the IACHR, referred again to this topic in its operative paragraphs 12 and 13 as follows:

          12.          To emphasize the need to put an immediate end, in those countries in which it may occur, to any practice that leads to the disappearance of persons and also to urge that the necessary efforts be made to determine the status of persons whose disappearance has been reported.

          13.          To recommend to the governments, in connection with the preceding paragraph, that central records be established to account for all the persons that have been detained, so that their relatives and other interested persons may promptly learn of any arrest that may have been made; to request that arrests be made only by competent and duly identified authorities, and that the arrested persons be kept in premises designed for that purpose.

At its eleventh regular session, held in Saint Lucia, the General Assembly, in adopting resolution AG/RES.543 (XI-0/81) did not mention this delicate topic, despite the recommendations made in that sense by the Commission.  However, at its twelfth regular session it adopted resolution AG/RES.618 (XII/0/82), which in its operative paragraphs 7 and 8 reiterated the recommendations of the Commission endorsed in 1980.

To judge by the denunciation received, the use of this inhuman practice has apparently diminished; but it is a matter of concern to the Commission that in some countries the structure that has permitted the disappearances still exists, as is shown by the arrests made by elements of the security forces with the acceptance or acquiescence of the Governments, followed by a period of time in which the authorities, especially the police authorities, deny the arrest, even, as in some cases known to the Commission, in the replies of the authorities to the judges called upon to pronounce judgment on writs of habeas corpus.

For the foregoing reasons, the Commission reiterates the severe condemnation that this cruel and inhuman procedure deserves which constitutes a very serious present or potential violation of such fundamental rights as the right to life, to freedom and to personal security and integrity of a human being.  Moreover, it places the victim in an absolutely defenseless position, with serious violation of the rights to justice, to protection against arbitrary arrest and to due process of law.  It also affects the whole circle of relatives and friends, who wait months and sometimes years for some news on the victim’s fate.  This uncertainty and the deprivation of all contact with the victim creates serious family disturbance, particularly to the children, who in some cases have been eye witnesses of the abduction of their parents or relatives and of the physical or verbal abuse to which they were subjected during such operations.

Because of the social consequences this practice generates, the Commission must reiterate its recommendations and urge all the states to avoid its use, the IACHR also proposes to the  General Assembly that it declare that the practice of forced disappearances in the Americas should be considered a crime against mankind.

4.          En relation to torture, the Commission has constantly rejected its use and has advocated the adoption of measures to suppress it and punish those who practice it.  Thus, in its 1977 report, the Commission pointed out:[4]

The absence of a concerted effort at national and international levels to put an end to torture is obvious.  In this regard, a most significant step would be the adoption of a convention to make torture an international crime.

Moreover, in its reports of the years 1978 through 1982, the Commission showed its concern for this topic in the following terms:[5]

The Commission also regret the fact that in some states of the Organization, there is systematic recourse to the use of all types of physical and mental coercion, not only during pretrial interrogation, but even after an administrative or legal prison sentence has been handed down.

Torture in some countries appears to be a usual practice in the investigation of all kinds of facts, particularly those that have to do with public policy (ordre publique) or the security of the State.

The Commission is also concerned by the fact that despite its repeated observations and recommendations, complaints continue to be received alleging physical and psychological torture of individual under detention not only for reasons of public order but also for common crimes and, even worse, that effective measures do not appear to have been taken to prevent and punish these practices.

Rather, torture is due to the lack of standards that would effectively protect persons detained or due to the fact that these standards are not applied in practice or, what is more various, due to the intimidation of judges and high officials of the administration, who do not perform their duty of preventing these acts by investigating and punishing those responsible for such acts with all force.

It is necessary for all governments to adopt a deliberate policy against torture.  This policy must have two basic components: a thorough investigations of all accusations of torture, to be conducted by impartial authorities, and public example and sanction of those responsible for acts of this nature, no matter what their position or standing.

Only through rigorous investigations, submission to trial, and the imposition of severe penalties on the persons responsible for these tortures will it be possible to put an end to, or at least to limit, this abominable practice and prevent its recurrence.

In its Annual Reports of the years 1980-1981 and 1981-82, the Commission, having continued to receive denunciations and reports on the use of this practice, reiterated to the General Assembly its recommendations on the mater made in earlier years.

Endorsing the recommendations made by the Commission in its 1977 report, the General Assembly at its eighth regular session adopted resolution AG/RES. 368, on July 1, 1978, which, in its sixth operative paragraph, requested the Inter-American Juridical Committee to prepare, in cooperation with the IACHR, a draft convention defining torture as an international crime.

The Commission and the Inter-American Juridical Committee prepared and presented no the General Assembly for consideration, at its tenth regular session, in November 1980, the aforementioned draft convention.  The General Assembly, through resolution AG/RES. 509 (X-0/80), adopted at that same session, resolved in its second operative paragraph:

To forward that draft with its statement of reason and the explanations of votes given by the members of the Commission, to the governments of the member states for consideration, so that they may formulate their observations and comments and send them to the Permanent Council before April 30, 1981, so that the Council may introduce the appropriate amendments in the draft convention and submit it to the next regular session of the General Assembly.

Despite the recommendations made by the General Assembly, as of November 1982 only nine governments had made their observations and the Permanent Council had not concluded its study of the draft convention, for that reason, the General Assembly resolved in its resolution AG/RES. 624 (XII/0/82) as follows:

1.          To extend the period given to the Permanent Council through resolution AG/RES. 509 (X-0-80), so that the government of the member states may have the opportunity to present their observations and comments on the draft Conventions Defining torture as an International Crime before June 30, 1983, and so that the Permanent Council may introduce the appropriate amendments and submit them to the General Assembly at its thirteenth regular session.

2.          To urge the governments of the member states that have not already done so to send their observations and comments on the draft Convention Defining Torture as an International Crime before the deadline set in this resolution.

As of the date of the approval of this report, thirteen states had made their observations, and a Working Group of the Committee on Juridical and Political Affairs had been working on the mandate issued by the Assembly.

The Commission, respectful of the internal sovereignty of the states, considers that the time that has passed for considerations of a topic of the importance and seriousness of the one analyzed here has been sufficient, and that the events that continue to occur to the hemisphere warrant urging the countries that during this session of the General Assembly the study be concluded and the draft convention be approved, or that a special session of the General Assembly be convoked for that exclusive purpose during the course of 1984.  The adoption of either of those alternatives would be the best demonstration of the will of the governments to eradicate the use of the practice of torture which is the shame of the Hemisphere and incompatible with the noble ends of the Inter-American System.  Finally, the Commission also reiterates the need to punish with all of the force of the law those who have perpetrated this crime.

5.          With special emphasis, the Commission has referred, in its Annual Reports for the years 1979 through 1982, to the subject of social economic, and cultural rights.  On various occasions the IACHR has pointed out the following ideas:

Neglect of the economic and social rights is another cause, though more diffuse and problematic, of the violence and social conflicts.  The general and apparently well-founded belief is that in some countries, the extreme poverty of the masses--the result in part of an inequitable distribution of the resources of production--has been the fundamental cause of terror that afflicted and continued to afflict those countries.  However, in general, the Commission has been extremely cautions in this sensitive area, because it recognized the difficulty of establishing criteria that would enable it to measure the state’s fulfillment of their obligations.  It has also seen the very difficult options that the governments face when allocating resources between generations, consumption and investment, and hence, between current and future generations.  Economic policy and national defense policy are closely related to national sovereignty.[6]

          It also stated:

…that the essence of the legal obligation incurred by any government in this area is to strive to achieve the economic and social aspirations of its people, by following an order that assigns priority to the basic needs of health, nutrition, and education.  The priority of the “rights of survival” and “ basic needs” is a natural consequence of the right to personal security.

The Commission added that efforts to eliminate extreme poverty have been made under radically different political, economic, and cultural systems.

In turn, those efforts have produced spectacular results as has been shown in those countries that have expanded public health care services at the lowest level of society, hat have tackled the problem of mass illiteracy systematically, that have undertaken comprehensive agrarian reform programs, or that have extended the benefits of social security to all sectors of the population.

To date, there is no political or economic system or individual development model that has demonstrated a clearly superior capability to promote economic and social rights; but whatever the system or model may be, it must assign priority to attaining those fundamental rights which permit the elimination of extreme poverty.[7]

The General Assembly, in its resolution AG/RES. 510 (X-0-80), adopted on November 27, 1980 AG/RES. 543 (XI-0-81), adopted on December 10, 1981, and AG/RES. 618 (XII-0/82), adopted on November 20, 1982, has shared the considerations put forth by the Commission, reaffirming the conviction that effective protection of human rights should also extend to social, economic, and cultural rights, and pointing out, likewise, the responsibility of the economically more developed member states to make every possible effort to participate fully in cooperation for hemispheric development, since it is a fundamental means of helping alleviate extreme poverty in the Americas, especially in the most needy countries.

Moreover, the IACHR whishes to mentions particularly resolution AG/RES. 619 (XII-0-82), adopted on November 20, 1982, which instructed the General Secretariat to prepare a preliminary draft Additional Protocol to the American Convention on Human Rights defining the social, economic, and cultural rights, and provides that once the preliminary draft had been prepared, the General Secretariat should forward it to the governments of the member states and to the Preparatory Committee, to give them an opportunity to make their observations and recommendations thereon, so that it might be considered by the General Assembly at its thirteenth regular session.

The Inter-American Commission on Human Rights is aware that the General Secretariat of the Organization has prepared a preliminary draft protocol in compliance with the mandate from the General Assembly described in the preceding paragraph, and has forwarded it to the governments of the member states so that they may make observations and recommendations and inform the General Assembly thereon.

In this respect, the Commission considers that as an organ specifically responsible for promoting and defending human rights, it has the obligation to play a more active role to protect economic, social, and cultural rights, just as it has in relation to civil and political rights.

By virtue of the foregoing, the Commission wishes to reaffirm the right it has in accordance with Article 77 of the American Convention on Human Rights to submit proposed additional protocols to that Convention for consideration by the States Parties of the General Assembly.  Pursuant to that provision, the IACHR will in due course present its observations on the preliminary draft Additional Protocol prepared by the General Secretariat.

The Commission considers that the General Assembly should reiterate the criteria stated on this topic, cited above, adopting specific measures for effective carrying out of its resolutions.  In this connection, the Commission proposes to the General Assembly that, to celebrate the twenty-fifth anniversary of the establishment of the Commission and the fifteenth of the American Convention, it convoke, during 1984, a Specialized Conference, to be held in 1985, taking into account administrative and financial considerations and offers to countries to be host to it, which may conclude the essential and pressing task of approving the Protocol to the Convention, point out the competent organs for the protection of these rights, and establish suitable mechanisms for promoting their effect.

6.          In its last two annual reports, the Commission has also expressed to the General Assembly its concern over the impressive phenomenon of the massive displacement of persons, which has caused transfers of thousands of persons from one country to another.

In the Commission’s judgment, the events of the seventies and the beginning of the eighties have represented a shift in the old tradition of granting political asylum.  This shift has come about for the following reasons:  a) the number of people needing political asylum is several times more than at any other time in the region’s history; b) the make-up of groups requesting political asylum has changed from individual political leaders to large groups of people whose fears are well-founded given the state of widespread violence and their own militancy in politically vulnerable sectors of society, even though they may not necessarily have taken part in individual political action; c) while the earlier exiles were generally people of means and with a certain level of education, those asking for asylum in recent years are overwhelmingly people without financial resources, and who are lacking in education and job skills; d) some of the countries that have traditionally offered refuge   to political exiles are refusing to accept Latin American refugees, but are indeed the principal sources of refugees in the region; e) the domestic laws and regional conventions on refugees and asylees are inadequate for mass asylum situations; f) the generally poor economic  conditions in mots of the hemisphere make it difficult to relocate  thousands of additional aliens, and g) many governments in the regions have  not been willing to take in refugees for ideological reasons, considering them to be a threat to their national security.[8]

In the Commission’s view, the Organization of American States has an obligation to solve this problem, especially considering the new and dramatic situation of refugees in the last few years.

The General Assembly in its resolution AG/RES. 618 (XII-0/82), adopted on November 20, 1982, in its imperative paragraph 10, resolved:

10.  To take note of the recommendations made by the Inter-American Commission on Human Rights regarding the question of human displacements in the regions and of the Permanent Council’s resolution on the same subject (CP/RES. 377 (510/82), and to request that body to present a report to the thirteenth regular session of the General Assembly on the status of work in this area, including the Commission’s recommendations contained in Chapter VI of its report and on the work being carried out under the United Nations High Commissioner for Refugees (UNHCR/Organization of American States cooperation program.

Bearing in mind the foregoing the Commission whishes to reiterate at this opportunity the measures proposed in its Report 1981-82, which in its opinion are fundamental requisites for dealing with this problem.  They are:

a.   That the Organization of American States reaffirm the member states’ obligation to recognize and honor the principle of non-refoulement, and that this principle be respected both in border areas and throughout their entire territory.

b.   That the Organization of American States reaffirm the humanitarian and non-political nature of the granting of asylum, which under no circumstances constitutes are unfriendly act by one state against another.

c.  That the Organization of American States urge the member states to ratify the United Nations Conventions and Protocol relating to the Status of Refugees, and that they also expand their domestic legislation in areas related to refugees and asylum.

d.   That the definition of refugees in the region recognize persons fleeing their countries because their lives have been threatened by violence, aggression, foreign occupation, massive violations of human rights and other circumstances that cause a threat-down in l’ordre pulic and for which there are no domestic remedies.

e.   That the Organization of American States urge those member states in whose territories exiles have sought political asylum to cooperate fully with the efforts of the United Nations High Commissioner for Refugees and its local affiliates, and to facilitate their work.

f.     That the member states that are unable to assimilate large groups of refugees on a permanent basis, take measures to assure the refugees’ security in their territory until them can be permanently relocated.[9]

Finally, the IACHR whishes to make clear that it is not intended, through the adoption of these measures, to establish an inter-American agency parallel to that which exists in the United Nations for refugees, since that would be a duplication of efforts and ignore the admirable work that the Office of the High Commissioner for Refugees has been carrying on.  What is sought is to establish an inter-American authority charged with giving assistance to and protection of refugees, to work in close collaboration with the Office of the High Commissioner.  The experiences that the Inter-American Commission has had in the cases of Haitian refugees in the United States, of Guatemalan in Mexico and of Nicaraguan Miskito Indians in Honduras, especially in the joint work carried out with the Office of the High Commissioner in this last case, and the many individual cases in which the Commission has had to act so that the principle of “non-return” may be respected, reaffirm its conviction that the Commission is the natural organ that would appear to be called upon to act with the inter-American authority.  Another example of joint work by the Organization and the Office of the High Commissioner is the case of the cooperative program on the legal status of asylees, refugees and displaced persons that is now being developed and that also indicates the need for stipulating powers and setting functions in this field.

7.          In the light of what has been said the Commission desires to reiterate the urgent need for a resolution that will institutionalize authority in this field in the Americas, determine its relations with the Office of the United Nations High Commissioner for Refugees, and grant it the resources and funds it may need for its work of helping the refugees and participating in resettlement programs.

RECOMENDATIONS

In view of the foregoing consideration, the Commission, in addition to repeating its earlier recommendations, requests the General Assembly of the Organization of American States at its thirteenth regular session to adopt the following measures:

1.          That it declare that the practice of forced disappearance in the Americas be considered a crime against mankind, urging the states in which it has occurred to inform the relatives of the persons who have disappeared about their status.

2.          That it conclude the study of and approve the draft Convention Defining Torture as an International Crime during the course of its thirteenth regular session, or in the alternative, that it convoke a special session of the General Assembly for that exclusive purpose to be held during 1984.

3.          That to reaffirm the importance of social, economic, and cultural rights, and to celebrate the twenty-fifth anniversary of the establishment of the Inter-American Commission on Human Rights and the fifteenth anniversary of the “Pact of San Jose”, a Specialized Conference be convoked during 1984 to be held in 1985, that will approve the Additional Protocol to the American Convention that will define social, economic, and cultural rights; designate the competent organ for the protection of those rights; and establish suitable mechanisms for promoting their effect.

4.          That it take the necessary decisions to institutionalize the authority in the Americas responsible for assistance to and protection of refugees in the hemisphere; determine its relations with the Office of the United Nations High Commissioner for Refugees; and grant to that authority the resources and funds it may need for carrying out its work.

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