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CHAPTER V
ACTIVITES
OF THE IACHR After
September 21, 1982, the closing date of the Commission’s last annual
report, the Commission held five sessions: the fifty-eighth, the
fifty-ninth, the sixtieth and the sixty-first. The
57th Period of Sessions was held in the city of San Jose,
Costa Rica and was an extraordinary meeting just as was the 60th
Period held in Washington, D. C. The
other periods previously mentioned were carried out at headquarters at
the General Secretariat of the Organization of American States in
Washington, D. C. and were ordinary meetings. As
shown in detail in the summary given below on the activities of each
session, the Commission reviewed and took a number of decisions on the
various subjects under consideration, in accordance with its agenda. The
last three session were opened at the inaugural meeting by the Secretary
General and the Chairman of the OAS Permanent Council, who congratulated
the Commission for its effective and important work, which was sometimes
conducted under difficult circumstances, and expressed their best wishes
for the Commission’s continued success in its far reaching work for
better implementation of the principles on which the Inter-American
System is based. The
inaugural meeting of the fifty-eighth session commemorated the
publication of the document “Ten Years of Activities, 1971-1981,”
with which the IACHR resumed publications of the three prior volumes of
its series entitled: “The Organizations of American States and Human
Rights,” which covered the Commission’s work during the 1960’s.
On the occasion of this commemoration, the publications issued by
the IACHR since its establishment were exhibited and distributed. The
inaugural ceremony of the sixtieth session paid tribute to the memory of
the Dean of its members, the distinguished Brazilian jurist, Carlos
Alberto Dunshee de Abranches, who, prior to his recent death, had
actively participated in all of the Commission’s activities for
nineteen consecutive years. In
accordance with the Commission’s Regulations, both the Chairman and
the Executive Secretary presented their reports in writing at each of
these sessions. As
stated further on in the pertinent parts of this chapter, the Commission
also conducted other activities starting September 21, 1982, in
connection with the promotion and observance of human rights. A.
Fifty Seventh Period (Extraordinary) The
Commission met in its 57th Period of Sessions, an
extraordinary meeting, at San Jose, Costa Rica from September 17-20,
1982. The members present
were Marco Gerardo Monroy Cabra, Chairman; Cesar Sepulveda, First
Vice-Chairman; Luis Demetrio Tinoco, Second Vice-Chairman; Carlos
Dunshes de Abranches and Tom J. Farer. On
that occasion the Commission participated in two public hearings called
by the Inter-American Court of Human Rights to consider the advisory
opinions requested by the Government of Peru regarding the application
of Article 64.1 of the American Convention concerning the Court’s own
competence, and that formulated by the Commission regarding the
application of Articles 74 and 75 of the Pact of San Jose concerning the
date of the entry into Force of the Convention for a given state when it
ratifies with reservations. Likewise,
it approved the Annual Report to the General Assembly. In
addition, the Commission accepted the proposal dated August 24, 1982
made by the Government of Nicaragua that the Commission serve as an
organ of friendly settlement in conformance with Article 48.1 (f) of the
American Convention on Human Rights regarding the controversy between
that Government and the Nicaraguan citizens of Miskito origin.
The text of the Commission’s note addressed to the Minister of
Foreign Relations of Nicaragua reads as follows: Mr.
Minister:
I have the honor of addressing your Excellency in relation to the
Document/Proposal prepared by the Government of Nicaragua and delivered
to the Inter-American Commission on Human Rights, dated August 24, 1982,
in which you request that the Commission “assume the duties of an
organ of friendly solution in keeping with the American Convention on
Human Rights and the Commission’s own Statute and Regulations”
regarding the difficulties that have arisen between the Government of
Nicaragua and citizens of that country of miskito origin.
The Commission, seated in its 57th (Extraordinary)
Period of Sessions, at that city, has carefully analyzed the proposal
and accepts the petition contained therein and places itself at the
disposition of the interested parties for the purpose of arriving at a
friendly settlement of the matter founded on the respect for human
rights in conformance with Article 48 f of the American Convention on
Human Rights. Of course,
the Commission will act, within the limits established in its Statute
and Regulations, with the power and discretion necessary to carry out
this function.
For the achievement of this purpose, the Commission has
designated a Special Commission composed of Lic. Cesar Sepulveda and
ex-Chairman Tom J. Farer, which hopes to meet with the Nicaraguan
authorities as soon as possible to discuss procedures and other
modalities related to the quest for a friendly settlement in all those
matters that affect the observance and force of human rights of
Nicaraguan citizens of Miskito origin seeking to conciliate the interest
of the parties involved.
Likewise, the Special Commission will make contact with
representative leaders of the Nicaraguan Miskito communities and with
representatives of international organizations that might assist in the
solution of some of the problem that have prompted the involvement of
this Commission. Naturally,
the Commission reserves the discretionary right to end its participation
at any time it considers that it is not possible to achieve a friendly
settlement.
Finally, I wish to express to your Excellency that the Commission
believes that in order to play an effective role as a conciliator it is
necessary that the Government of Nicaragua take measures that might
allow it to overcome the difficult relations that it maintains with a
substantial portion of the Miskito population.
In that regard, the Commission trusts that your Excellency’s
Government will be able to carry out the recommendation contained in its
Preliminary Report dated June 26, 1982, which could have immediate
application.
Accept, Excellency, the testimony of my highest and most
distinguished consideration. Marco
Gerardo Monroy Cabra President B.
On-site observation visit to Guatemala As
stated in the previous Annual Report (1981-82), immediately after the
fifty-seventh session, which was a special session held in San Jose,
Costa Rica, on September 17-20, 1982, the Special Committee designated
for that purpose began, at the invitation of the Guatemalan Government,
its on-site observation in that country (September 21-26, 1982.) To
prepare for the visit, the Assistant Executive Secretary, Dr. David
Padilla and attorney Manuel Velasco Clark traveled to the country on
September 15, 1982. The
following IACHR members participated in the in the Special Committee
that visited the country: Dr. Marco Gerardo Monroy Cabra, chairman;
Cesar Sepulveda, First Vice-Chairman; Prof. Carlos A. Dunshee de
Abranches; Prof. Tom J. Farer and Dr. Francisco Bertrand Galindo.
These members were accompanied by the Executive Secretary and the
Assistant Executive Secretary, Drs. Edmundo Vargas Carreño and David
Padilla and Drs. Manuel Velasco Clark and Santiago Chaves Escoto,
Secretariat Attorneys, as well as administrative staff members Mrs.
Hilda Wicker and Elsa Ergueta and Miss Nora Espinoza. On
arriving in Guatemala, the Committee set up a permanent office at the
Hotel Conquistador Sheraton to receive complaints and issued its first
press release, which described the purposes on its visit. In
the first days of its visit, the Committee had a number of interviews
and audiences with the President of the Republic, General Efrain Rios
Montt, the Minister of Foreign Affairs, Dr. Eduardo Castillo Arriola,
the Minister of Defense, Interior and Labor, the President of the
Supreme Court, the Chief of Staff of the Armed Forces, the President of
the National Reconstruction Committee, and the Director of the Forensic
Medical Service, as well as a number of other civilian and military
officials, of both the national and departmental governments, and on
September 24, the Council of State. Interviews
and meetings were also held with representatives of the most important
associations, entities, groups and sectors of Guatemalan society:
political, religious, humanitarian, professional, university, business,
labor and Indian leaders, as well as members of the mass media, the
press and television. Before
traveling into the interior, the Committee visited in Guatemala City the
penal center known as Segundo Cuerpo de Policia and the women’s Jail
of Santa Teresa. For
its trip into the interior of the country, the Committee split up into
four working groups, which went to: 1) the cities of Santa Cruz del
Quiche and Chichicastenango and the towns of Parratux, Pichiquil and El
Pajarito in the Department of Quiche; 2) the city of Huehuetenango, in
the department of the same name (where another office was opened to
receive complaints in the hotel Zaculeu) and the town of Nenton and the
village of Colotenango; 3) the towns of La Estancia de la Virgen in the
Municipality of San Martin Jilotepeque and Agua Caliente in the
Municipality of San Jose de Poaquil, both in the Department of
Chimaltenango; and 4) the Department of Alta Verapaz, to visit the towns
of Coban, Pacayas and Somuc. The
latter group could not carry out its mission because bad weather
prevented them from landing in any of the location scheduled and forced
them to return to Guatemala City. In
all of the places visited, the persons interviewed gave testimony,
reported alleged violations and provided valuable information on the
status of human rights. The
Special Committee completed its on-site observations in the country on
September 25, 1983, and held a press and television conference at its
offices in the Hotel Conquistador Sheraton, at the end of which its
second and last press release was handed out. Finally,
in a courtesy visit to the Foreign Minister, Dr. Castillo Arriola, the
Special Committee thanked him for all of the facilities and assistance
he had provided and submitted to him for transmission to the Guatemalan
Government a private document containing its preliminary
recommendations. After
completing its mission, the Special Committee submitted to the IACHR its
preliminary report for consideration by the full Commission at its
fifty-eighth session, which began on November 16, 1982, in Washington,
D. C. C.
Twelfth Regular Session of the General
Assembly of the Organization of American States While
the Commission was holding its fifty-eighth meeting, the General
Assembly of the Organization of American States conducted its twelfth
regular session on November 15-21, 1982, at OAS General Secretariat
headquarters in Washington, D. C. At
this session of the OAS General Assembly, the IACHR was represented by
its Chairman, Dr. Marco Gerardo Monroy Cabra and the other members of
the Commission, accompanied by the Executive Secretary, Dr. Edmundo
Vargas Carreño and other Secretariat staff members. Pursuant
to its agenda, the OAS General Assembly took up the Annual Report of the
Inter-American Commission on Human Rights (1981-82), contained in
Document AG/doc.1509/82, and two other topics connected with the IACHR
field of action: the Preliminary Draft Additional Protocol to the
American Convention on Human Rights (“Pact of San Jose”) and the
Draft Convention Defining torture as an International Crime, and adopted
the following resolution regarding them. AG/RES.
618 (XIII-0/82) ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS (Resolution
adopted at the eighth plenary session, held on November 20, 1982) THE
GENERAL ASSEMBLY HAVING
SEEN the Annual Report of the Inter-American Commission on Human Rights
(AG/doc. 1509/82) and the observations and replies of the governments,
and CONSIDERING: That
the protection and enforcement of human rights is one of the highest
objectives of the Organization of American States, and their observance
is a source of solidarity among the member states as well as a guarantee
for the respect of human life and the dignity of man; That
the Inter-American Commission on Human Rights has the principal aim of
promoting the respect for and defense of human rights in all the member
states. That
a democratic structure is an essential factor in establishing a
political society in which human values can be fully developed; That
the trend already under way or completed in some countries leading to a
return to democracy should be pointed out as a positive fact. That
mention should be made of another positive fact: the measures adopted in
some countries that contribute significantly to respect for the rights
specified in the American Declaration of the Rights and Duties of Man
and in the American Convention on Human Rights (Pact of San José). That,
the foregoing notwithstanding, the Commission points out in detail in
its 1981-82 Annual Report that in some countries of the hemisphere
serious violations of human rights have occurred. That
it is necessary to reiterate the importance of economic, social and
cultural rights in the context of human rights for the integral
development of the human being, and That
Chapter Vi of the Annual Report of the Inter-American Commission on
Human Rights refers to the urgent need to find appropriate solutions to
the problems that stem from the massive displacement of people in the
hemisphere, especially taking into consideration the new situation that
has arisen in recent years concerning displaced persons and refugees the
need for the OAS to adopt speedy measures to alleviate the situation of
people displaced from their homes and without the possibility of any
government protection. RESOLVES: 1.
To note with interest the Annual Report and the Recommendations
of the Inter-American Commission on Human Rights and to express
appreciation for the serious and important work it carries out in the
area of protecting and promoting human rights. 2.
To express its regret at the serious violations of human rights
that have occurred or may occur in the hemisphere. 3.
To take note of the observation and comments made by the
governments of member States and of information about the measures that
they have taken and will continue to implement to ensure human rights in
their countries. 4.
To urge the government of member States that has not yet done so
to adopt and implement the necessary measures to preserve and ensure
full effectiveness of human rights. 5.
To reiterate the need to avoid and, where applicable, to put an
immediate end to the flagrant violation of fundamental human rights,
particularly the right to life, humane treatment and personal liberty,
and to reaffirm the fact that summary execution, torture an detention
without due process constitute most serious violations of human rights. 6.
To recommend that the government of the member States, within the
context of a democratic system of government, ensure that the exercise
of power is predicated on the free and legitimate manifestation of the
will of the people in accordance with the specific circumstances and
characteristics of each country. 7.
To reiterate the need, in those states where prisoners have
disappeared, for their situation to be clarify and for their families to
be notified. 8.
To recommend that the governments of the member states set up
central detention registries containing a record of all persons who have
been subject to imprisonment, and that detention be carried out
exclusively by competent and duly identified authorities and that
persons detained be kept in custody in the places established for such
purpose. 9.
To reaffirm that effective protection of human rights should also
extend to social, economic and cultural rights, emphasizing the
responsibility incumbent upon the governments of the member states in
the process of promoting cooperation for development in the hemisphere. 10.
To take note of the Recommendations made by the Inter-American
Commission on Human Rights regarding the question of human displacements
in the region 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 are, including the Commission’s Recommendations
contained under the United Nations High Commissioner for Refugees
(UNHCR)/Organization of American States cooperation program. 11.
To note with satisfaction the decision of the governments of
member states that have invited the Commission to visit their respective
countries, and to urge the governments of stares that have not yet done
so to establish a date for such a visit at the earliest possible time. 12.
To emphasize the need for the Inter-American Commission on Human
Rights to continue to observe the situation of human rights in the
member states and to present a report on this subject to the thirteenth
regular session of the General Assembly. 13.
To urge all governments to provide the Commission with the
cooperation necessary for it to carry out its work, particularly through
timely response to the Commission’s request for information regarding
individual cases. AG/RES.
619 (XII-082) PRELIMINARY
DRAFT ADDITIONAL PROTOCOL TO THE AMERICAN
CONVENTION ON HUMAN RIGHTS (PACT OF SAN JOSE) (Resolution
adopted at the eighth plenary session, held
on November 20, 1982)
THE GENERAL ASSEMBLY
HAVING SEEN operative paragraph 9 of resolution AG/RES. 618/82,
which reads:
“To reaffirm that effective protection of human rights should
also extend to social, economic and cultural rights, emphasizing the
responsibility incumbent upon the governments of the member states in
the process of promoting cooperation for development in the
hemisphere.” RESOLVES:
To instruct the General Secretariat to prepare a preliminary
draft Additional Protocol to the American Convention on Human Rights,
“Pact of San Jose,” defining the social, economic and cultural
rights referred to in operative paragraph 9 of resolution AG/RES.
618/82.
Once the preliminary draft Additional Protocol has been prepared,
the General Secretariat shall forward it forthwith to the governments of
the member states and to the Preparatory Committee, to give them the
opportunity to make their observations and recommendations thereon, to
that it may be considered by the General Assembly at its thirteenth
regular session. AG/RES.
(XII-0/82) DRAFT
CONVENTION DEFINING TORTURE AS AN INTERNATIONAL CRIME (Resolution
adopted at the eighth plenary session, held on November 20, 1982) WHEREAS:
Through resolution AG/RES 509 (X-0/80), the General Assembly sent
the draft Convention defining torture as an international crime to the
governments of the member states for consideration, with the
Recommendation that they forward their observation and comments to the
Permanent Council before April 30, 1981, so that the Council, in turn,
might introduce the appropriate amendments into the draft and submit
them to the General Assembly at its eleventh regular session.
In resolution AG/RES. 547 (X-0/81), the Assembly extended the
original mandate until the twelfth regular session.
To date, nine governments have made observations on the draft
Convention, which suggests that it would be advisable to extend the
deadline set for compliance with the Council’s mandate, so that other
governments may have the opportunity, if they wish, to give their
opinions on the draft, and
Through resolution CP/RES. 372/82 (509/82), the Permanent Council
recommend to the General Assembly that it extend the mandate contained
in resolution AG/RES/ 509 (X-0/80).
THE GENERAL ASSEMBLY RESOLVES:
1.
To extend the period given to the Permanent Council through
resolution AG/RES. 509 (X-0/80), so that the governments of the member
states may have the opportunity to present their observations and
comments on the draft Convention 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 has 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.
The Fifty-eighth session of the Commission was held November
16-24, 1982, and was attended by all of its members: Marco Gerardo
Monroy Cabra, Chairman, Cesar Sepulveda, First Vice-Chairman, Luis
Demetrio Tinoco Castro, Second Vice-Chairman, Andres Aguilar, Carlos A.
Dunshee de Abranches, Tom J. Farer and Francisco Bertrand Galindo.
On that occasion, the IACHR took up the report of the Special
Committee which, at the invitation of the Guatemalan Government, had
made an on-site visit to that country September 21-26, 1982, and began
to draft its preliminary report on the status of human rights in
Guatemala, which, when completed, would be submitted for review and
approval at the fifty-ninth session in April 1983 and then transmitted
to the Government of Guatemala for its comment.
The IACHR also took up the reports on the Special Committee and
the Special Subcommittee, which visited, respectively, the Atlantic area
of Nicaragua, and the Miskito refugees camps in Honduras, and considered
the Nicaraguan Government’s request of the IACHR to use its good
offices to resolves the difficulties between that government and its
citizens of Miskito origin. To
that end, the Commission held a special hearing with representatives of
the Nicaraguan Government to determine what conciliatory role the IACHR
could play and the procedure that should be followed in each case.
Finally, it submitted to the Nicaraguan authorities a document
containing the various steps that should be taken subsequently.
In addition, the Commission continued its consideration of the
seventh report on the status of human rights in Cuba, and adopted
several measures regarding the status of human rights in the Argentine
Republic, Chile, and Uruguay.
During this session, the Commission accepted, subject to the
setting of final dates at the earliest opportunity, invitations from the
Governments of El Salvador and Grenada to carry out on-site observations
on the status of human rights in those countries.
Finally, the Commission heard with great satisfaction the United
States decision to release some 2,000 Haitian refugees, whose case were
being considered by the IACHR, which had conducted on-site visits to
Miami, the Fort Allen Camp in Puerto Rico, and the INS processing center
in Brooklyn. E.
Visit to Guatemalan Refugees in the border area of the State
of Chiapas, Mexico, to supplement the on-site visit to Guatemala
This visit was made January 2-8, 1983, by Dr. David Padilla,
Assistant Executive Secretary, and Dr. Manuel Velasco Clark both
secretariat attorneys, who, by delegation of the IACHR, went, with the
knowledge of the Guatemalan Government and with the prior approval of
the Government of Mexico, to the Guatemalan border area in the State of
Chiapas, Mexico, where most of the Guatemalan Indian who had left their
towns to emigrate in search of refugee were located.
The delegation visited the “Puerto Rico,” “Boca Chajul,”
“Aguatinta,” “Cuauhtemoc,” “El Vertice,” “Benito
Juarez,” and “La Union” refugee camps, and the rural border areas
where most of the Guatemalan who had flied from their country were
located. These people were
interviewed and complaints, declarations and testimony were received
from those who wish to furnish it, which provided additional valuable
information for the documentation in the possession of the IACHR.
The fifty-ninth session of the IACHR was held April 6-15, 1983,
and was attended by all members, except for Prof. Dunshee de Abranches,
who could not attend for health reason.
However, he sent from his sick bed in the hospital of Washington,
D. C., where he had undergone delicate surgery, a number of important
contributions to the studies on the Commission’s agenda.
At that session, the Commission’s main activity was
consideration and completion of the draft report on the situation of
human rights in Guatemala. The
report was approved provisionally and submitted to the Guatemalan
Government, so that, pursuant to existing regulations, it could make, by
the deadline set, any comments it deemed pertinent before the report was
finally approved and published.
In addition, the Commission took up at that session the seventh
report on the situation of human rights in Cuba, and at its last
session, it received at a special hearing a large group of persons and
institutions, who came forward to testify.
Moreover, the IACHR gave particular consideration at that time to
providing its good offices in the difficulties between the Government of
Nicaragua and the Miskito citizens of that country, and reviewed the
development of that situation. In that connection, the Executive Secretary was authorized to
travel immediately to Nicaragua and the border region of Honduras to
report to the Commission at its next session on the situation and the
manner in which the Nicaraguan Governments had been complying with the
Commission’s recommendations.
At this meeting also, study was continued on the situation of
human rights in El Salvador, Grenada and Suriname, and in light of the
invitations from each of those governments, it was agreed to determine
officially with those governments the earliest possible dates for making
on-site visits to observe the situation of human rights in those
countries.
Finally, a basic difference has arisen between the IACHR and the
Guatemalan Government on the interpretation of subparagraph 2 of Article
4 of the American Convention on Human Rights and the imposition of the
death penalty. This
difference had been brought out during the visit of the Special
Delegation of the Guatemalan Government, which was received at a private
hearing by the Commission at this session.
The IACHR unanimously decided to request an advisory opinion on
the matter from the Inter-American Court of Human Rights, and an
official note date April 14, 1983, was sent to the Secretary of the
Court for that purpose. In
addition, the Commission notified the Government of Guatemala that the
Court’s opinion had been requested and asked that government to
refrain from imposing death penalties in the country until the Court had
handed down its opinion. The
text of the Commission’s request is transcribed below: G.
Request submitted by the Inter-American Commission on Human
Rights for an Advisory Opinion
As an organ given the duty under that Charter of the Organization
of American States to promote the observance and defense of human
rights, and in use of the authority given it under Article 64.1 of the
American Convention on Human Rights, the Inter-American Commission on
Human Rights requested the Inter-American Court of Human Rights to give
an advisory opinion on its interpretation of Article 4, subparagraph 2
of the Convention.
Pursuant to Article 49.2 b of the Regulations of the
Inter-American Court of Human Rights, the Inter-American Commission on
Human Rights submitted its request for an advisory opinion, the
pertinent portions of which are transcribed below: A)
Provisions to be interpreted: The provisions on which the Inter-American Commission on Human
Rights is requesting an advisory opinion is the last part of Article 4,
subparagraph 2 of the American Convention on Human Rights. Article 4. Right to Life
2.
In countries that have not abolished the death penalty, it may be
imposed only for the most serious crimes and pursuant to a final
judgment rendered by a competent court and in accordance with a law
establishing such punishment, enacted prior to the commission of the
crime. The application
of such punishment shall not be extended to crimes to which it does not
presently apply. (Emphasis
added).
The Commission whishes to stress that its request for an advisory
opinions refers particularly to the last part of subparagraph 2 of
Article 4, regarding the following points. 1)
Can a government apply the death penalty to crimes for which its
domestic laws did not impose such punishment when the American
Convention on Human Rights entered into forced to that State? 2)
Can a government, based on a reservation made at the time it
ratified Article 4, subparagraph 4 of the Convention, enact, after entry
into force of the Convention, legislation imposing the death penalty for
crimes that did not carry the death penalty when the ratification was
made? B)
The consultation with respect to the
sphere of competence of the Commission The
Inter-American Commission on Human Rights according to the Article 13 of
the American Convention on Human Rights is one of the organs competent
to hear matters related to the fulfillment of obligations assumed by
states parties in this treaty. Moreover,
Article 41 of the Convention provides that the Commission has a
principal function the promotion and defense of human rights and Article
19 of the Statue hold that it may consult the Court regarding the
interpretation of the American Convention on Human Rights. C)
Considerations that gave rise to the
consultation 1.
Following the Special Court’s sentences imposing the death
penalty on Hector Haroldo Morales Lopez and Marco A. Gonzales—who were
later executed on March 4, 1983—the Commission made a number of
efforts to prevent those executions.
One of the Commission’s arguments to justify its position was
the following sent directly to the Ministry of Foreign Affairs of
Guatemala in a cable date February 9. EXPANDING
ON THE LAST CABLEGRAM OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
I MUST INFORM YOU THAT THE IACHR REGARDS THE IMPOSITION OF SUCH A
PENALTY TO BE IN OPEN CONTRADICTION WITH THE LAST PART OF SUBPARAGRAPH 2
OF ARTICLE 4 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS, TO WHICH
GUATEMALA MADE NO RESERVATION AT THE TIME OF ITS RATIFICATION NOR OR ANY
OTHER OCCASION, WHICH READS: THE
APPLICATION OF SUCH PUNISHMENT SHALL NOT BE EXGENDED TO CRIMES TO WHICH
IT DOES NOT PRESENTLY APPLY. IN
FACT, NONE OF THE CRIMES CONTEMPLATED IN THE PENAL CODE ARTICLES
MENTIONED IN ARTICLE 4 OF DECREE LAW 46-82, WHICH ESTABLISHED THE
SPECIAL COURTS AND AUTHORIZED THEM TO IMPOSE CAPITAL PUNISHMENT, CARRY
THE DEATH PENALTY, AND CONSIDERING THAT ARTICLE 7 OF THE GOVERNMENT’S
BASIC STATUTES, WHICH ARE CURRENTLY IN FORCE IN GUATEMALA, READS AS
FOLLOWS:
AS A MEMBER OF THE INTERNATIONAL COMMUNITY, GUATEMALA SHALL
FAITHFULLY MEET ITS INTERNATIONAL OBLIGATIONS AND SHALL BE SUBJECT IN
ITS RELATIONS WITH OTHER STATES TO THE RULES OF THESE GOVERNMENT
STATUTES, INTERNATIONAL TREATIES, AN THE RULES OF INTERNATIONAL LAW
ACCEPTED BY GUATEMALA.
AND SINCE GUATEMALA ACCEPTED WITHOUT RESERVATION WHEN IT RATIFIED
THE AMERICAN CONVENTION ON HUMAN RIGHTS THAT IN THE FUTURE, IMPOSITION
OF THE DEATH PENALTY WOULD NOT EXTEND TO CRIMES THAT DID NOT CARRY THAT
PENALTY AT THE TIME OF RATIFICATION, THE INTER-AMERICAN COMMISSION ON
HUMAN RIGHTS URGES YOUR EXCELLENCY’S GOVERNMENT TO SET ASIDE THE DEATH
SENTENCES IMPOSED BY THE SPECIAL COURTS AND SUBSEQUENTLY TO AMEND
ARTICLE 4 OF DECREE LAW 46-82, IN COMPLIANCE WITH ARTICLE 4,
SUBPARAGRAPH 2 OF THE CONVENTION.
2.
In response to this argument, the Government of Guatemala in a
communications of March 15, 1983, (that is, after the death sentences
were imposed stated the following:
AS REGARDS THE ARGUMENT THAT THE CONVENTION PROVIDES THAT THE
DEATH PENALTY MAY NOT BE IMPOSED FOR CRIMES THAT DID NOT CARRY THAT
PENALTY UNDER A COUNTRY’S DOMESTIC LAW AT THE TIME IT RATIFIED THE
CONVENTION, THAT RULE OBVIOUSLY CANNOT LIMIT A STATE’S SOVEREIGN
AUTHORITY TO AMEND ITS DOMESTIC PENAL LAW WHEN SPECIAL OR EXCEPTIONAL
CIRCUMSTANCES IN A COUNTRY MADE IT IMPERATIVE TO IMPOSE THE DEATH
PENALTY FOR THE COMMISSION OF SERIOUS CRIMES, AS A MEASURE TO PROTECT
THE SOCIETY ITSELF.
COUNTRIES CONFRONTING THE PROBLEM OF SUBVERSION, IN WHICH
SUBVERSIVE ELEMENTS CONTINIOUSLY COMMIT SERIOUS COMMON CRIMES FOR
POLITICAL PURPOSES, ARE COMPELLED, BASED ON THE ABSOLUTE NECESSITY OF
ENSURING THE SECURITY OF THEIR CITIZENS, TO TAKE ALL MEASURES REQUIRED
TO COMBAT SUCH CRIMINALES, BECAUSE THEY CONSTITUTE A PUBLIC DANGER AND
THEIR ACTIONS ARE A THREAT TO THE PEOPLE.
CONSEQUENTLY, A RIGID AND RESTRICTIVE INTERPRETATION OF THE
PROVISION MENTIONED, ONLY LEAD TO A SITUATION IN WHICH ANY STATE THAT
HAS RATIFIED THE CONVENTION IS DEPRIVED OF THE SOVEREIGN AUTHORITY TO
AMEND ITS DOMESTIC LAW, WHICH DENIES THE REALITY THAT LAW IS BY ITS VERY
NATURE ESSENTIALLY MODIFIABLE AND MUST ADAPT TO THE SOCIAL
CHANGES—POSITIVE AND/OR NEGATIVE--THAT OCCUR IN ALL NATIONS.
MOREOVER, WHEN GUATEMALA RATIFIED THE AMERICAN CONVENTION ON
HUMAN RIGHTS, IT EXPRESSLY MADE THE APPROPRIATE RESERVATION THAT IT
WOULD CONTINUE TO IMPOSE THE DEATH PENALTY ON COMMON CRIMES CONNECTED
WITH POLITICAL CRIMES.
THE RESERVATION MUST BE INTERPETED IN GENERAL TERMS, SINCE THE
REASON IT WAS CITED SPECIFICALLY IN SUBPARAGRAPH 4, ARTICLE 4 OF THE
CONVENTION IS THAT IT IS THAT PORTION OF THE TEXT THAT CONTAINS THE
PROHIBITION ON IMPOSING THE DEATH PEANALTY FOR COMMON CRIMES CONNECTED
WITH POLITICAL CRIMES, BUT IN NO EVENT CAN THE RESERVATION BE
INTERPRETED AS REFERRING ONLY TO THAT SUBPARAGRAPH.
IT REFERS TO ANY PORTION OF THE CONVENTION IN WHICH A SIMILAR
RULE APEARS.
3.
On April 8, the Government of Guatemala submitted to the
Commission a document that reads as follows:
The Government of the Republic of Guatemala maintains that its
reservation to Article 4, subparagraph 4 of the Convention permits it to
enact regulations and legislation on the death penalty for common crimes
connected with political crimes. Guatemala
bases its position on the fact that its reservation covers the right to
enact laws on the death penalty for common crimes connected with
political crimes after the entry into force of the Convention, because
otherwise the reservation would have no meaning.
If at the time the Convention entered into force, Guatemala could
no longer enact laws imposing the death penalty for common crimes
connected with political crimes, why did it make the reservation if it
could no longer enact such laws because it was prohibited from doing so
by subparagraph 2 of Article 4 of the Convention?
On the assumption that the Inter-American Commission on Human
Rights was correct and the death penalty as of July 18, 1978 (the date
of entry into force of the Convention). Why did Guatemala make its
reservation? Because, with on without the reservation, the death penalty
could no longer be imposed on any crime other than those crimes to which
it was already applicable at the date of entry into force of the
Convention.
Guatemala considers that having made its reservation, the purpose
of that reservation was to preserve the right to be able to impose the
death penalty on common crimes. No
other interpretation can be given, because if the Commission’s
contention were correct, there would be no reason for having made a
reservation, because with or without that reservation, no law could
impose the death penalty for common crimes in connection with political
crimes. It is precisely the
purpose of a reservation to enable a state to express upon ratifying a
provision. That was
precisely what Guatemala expressed:
That it would not be obligated by paragraph 4 of Article 4.
Why? So it would be able to enact legislation imposing the death
penalty for common crimes connected with political crimes.
Basically, it would be emphasized that it is an accepted
principle of international law that interpretations of international
conventions must take into consideration the intent of the parties.
What was Guatemala’s intention in making its reservation?
The Guatemalan Government’s clear intent was to reserve the
right to enact legislation and establish the death penalty for common
crimes connected with political crimes, if circumstances so required. Treaties must be interpreted in accordance with their
reasonable meaning. This is
an accepted principle of international law.
Consequently, when Guatemala made its reservation, that gave it
the authority to enact legislation imposing the death penalty for common
crimes connected with political crimes, otherwise there would have been
no reason for making the reservation.
The fact that no bearing on the situation, because the very
reason for making the reservation was to preserve the right to enact
legislation imposing the death penalty for common crimes connected with
political crimes. No other
interpretation can be given, because if a reservation was made, it was
made for some reason. And
the reason is the one that has been pointed out. In addition, ancillary provision comes under main provisions,
and the reservation refers to the main part: subparagraph 4 of Article
4.
4.
The Commission disagrees entirely with the Guatemala
Government’s interpretation of Article 4, subparagraph 2 of the
American Convention on Human Rights.
To claim, as does the Government of Guatemala, that a state can
unilaterally dissociate itself from the requirements imposed on it by an
international treaty because “law is by its very nature essentially
modifiable and must adapt to the social changes—positive and/or
negative—that occur in all nations” or even more serious, to assert
that a state can disregard a solemn commitment that it has contracted
internationally and proceed to amend its domestic penal law “when
special or exceptional circumstances to a country make it imperative to
impose the death penalty for the commission of serious crimes” is not
to understand the very essence of international law, and still less,
what a state’s international obligations are in the area of human
rights, which moreover, always represent progress with respect to the
preservation of human dignity and never a regression to situations that
were regarded as having been overcome.
5.
The Commission also holds that since the Guatemalan
Government’s reservation was made to a treaty on human rights it must
always be understood restrictively.
The Inter-American Court of Human Rights has so stated in its
advisory opinion No. OC-2/82 of September 4, 1982, which emphasizes the
special nature of convention on human rights as being different from
ordinary multilateral treaties.
In these conditions, the Guatemalan Government’s reservation
can only be interpreted in the most restricted manner, and no other
interpretation can be made. Thus,
contrary to what the Guatemala Government maintains in its positions,
the scope of its reservation is limited by the terms of Article 4,
subparagraph 4, and cannot be extended, as the Guatemalan Government
claims, to other provisions in Article 4 of the Convention.
6.
Moreover, Article 4, subparagraph 4 of the Convention—to which
Guatemala made a reservation—expressly states that “in no case shall
capital punishment be imposed for political offenses or related
common crimes,” by which the Commission understands that the
Guatemalan reservation would authorize the death penalty at most for
common crimes connected with political crimes, that are already
punishable by the death penalty under its laws, but not to any other
crimes which, at that time, did not carry that penalty. 7.
The Commission considers, moreover, that a government’s
decision to impose the death penalty is also subject to a number of
conditions, which emerge from the text of the Pact of San Jose, since
human rights treaties must be interpreted according to their objective
and purpose, which is no other than primarily to protect the basic
rights of human beings from crimes by the state.
As has been established in modern international law, provisions
on human rights are jus cogens, that is, imperative law,
and the reason for any departure from them must be precisely and duly
stated, which is not true of the case under review here.
8.
In these circumstances, the text of the reservation must be
construed to mean that Guatemala could—if other conditions
occur—impose the death penalty for common crimes connected with
political crimes that did not carry that penalty under the laws in force
at the time it ratified the Convention.
However, with regard to crimes that did not carry that penalty
after Guatemala ratified the Convention of San Jose, the IACHR finds
that if that government imposes the death penalty, it is definitely in
violation of subparagraph 2 of Article 4 of the Convention cited,
because the final part of that provision categorically states that
application of such punishment (the death penalty) “shall not be
extended to crimes to which it does not presently apply.”
9.
Consequently, the crimes that have become punishable by the death
penalty, like those established in the “law of Special Courts”
enacted by the Government of General Rios Montt on July 1. 1982 did not
carry the death penalty under the law in force when the Convention was
ratified by Guatemala, cannot legally be subject to capital punishment,
both because Guatemala made no reservation to subparagraph 2 of Article
4 of this international instrument and because it does not provide any
legitimate bases for the connection between political and common
crimes, the relationship between that crime and some other crime would
have to be established. This
has certainly not occurred, since no definition has been made of
political crimes nor their connection with common crimes.
These facts make it clear that the Government of Guatemala has
violated its contractual obligations under the terms of the American
Convention on Human Rights. 10.
As the Court can see there is a fundamental difference between
the position of one member State of the Organization of American States
and the Commission regarding one of the most important provisions of the
American Convention on Human Rights.
For that reason, the Commission feels that the Court could again
make a valuable contribution in humanitarian international law if it
would interpret the true meaning of the final portion of subparagraph 2
of Article 4 of the Pact of San Jose, Costa Rica, in replay to the
questions submitted by the Commission in its petition at this time.
The Commission designated its Chairman, Dr. Marco Gerardo Monroy
Cabra, its First Vice-Chairman, Cesar Sepúlveda, and its Second
Vice-Chairman, Luis Demetrio Tinoco Castro as its delegates for all
purposes connected with its request.
The Inter-American Court of Human Rights in its Advisory Opinion
OC-3-/83 of September 8, 1983, unanimously held that “The Convention
absolutely prohibits the extension of the death penalty and that, as a
consequence, the government of a state party may not apply the death
penalty to crimes for which its was not previously contemplated in its
internal legislation, and likewise, a reservation limited by its own
text to Article 4.4. of the Convention, does not allow the government of
a state party to subsequently create the death penalty and extend its
application to crimes, which were not previously so punishable. H. Follow-up on the visit to Nicaragua and Honduras by the Commission’s Executive Secretariat regarding amicable solution of the problems affecting Nicaraguan citizens of Miskito origin
As its fifty-ninth session, the Commission decided that the
Executive Secretary and any staff he regarded as necessary should travel
to Nicaragua and Honduras to make determinations regarding the IACHR
good offices in the difficulties that have arisen between the Nicaragua
Government and the Nicaraguan population of Miskito origin.
As a result of that decision, Dr. Guillermo Fernández de Soto
and Mrs. Dafne Murgia sent to Honduras on May 12-16, and Dr. Edmundo
Vargas Carreño and Dr. Christina Cerna traveled to Nicaragua on June
7-12, 1983.
In Honduras, the IACHR Secretariat members interviewed high
government officials of that country and of the office of the United
Nations High Commissioner for Refugees.
However, its main activities were to take the testimony of
hundreds of Nicaraguan refugees of Miskito origin in various camps of
the Gracias a Dios Department of Honduras.
The Executive Secretary and Dr. Cerna interviewed a number of
high government officials in Nicaragua, including a member of the
Government Junta, Dr. Rafael Córdova Rivas; the Minister of the
Exterior, Miguel D’Escoto Brockmann, the Secretary Minister of the
Government Junta, Dr. Rodrigo Reyes; and the President of the Supreme
Court, Dr. Roberto Arguello Hurtado.
They also interviewed officials of the Department of Zelaya, the
National Commission for the Promotion and Protection of Human Rights,
the Permanent Commission on Human Rights, the delegate of the
representatives of the Moravian Church.
In extensive travels n the Department of Zelaya, they visited a
number of towns where they had the opportunity to talk with the people
and to investigate certain events, as instructed by the Commission.
At the invitation of the Surinamese Government, this visit was
made June 20-24, 1983, by a Special Commission, composed at that time of
Dr. Andrés Aguilar, as Chairman and Dr. Francisco Bertrand Galindo and
Prof. Tom J. Farrer, as members. They were accompanied by the IACHR Executive Secretary, Dr.
Edmundo Vargas Carreño, Secretariat attorneys Drs. Ernst Brea and
Christina Cerna, and the administrative officer, Mrs. Diana Decker, as
well as Dr. Claudio Grossman, technical consultant, who served ad the
group’s interpreter. The
Special Commission received full cooperation from the Director of the
OAS Office in Paramaribo, Dr. Felipe Sanfuentes and his staff.
According to procedures established for on-site visits, the
Special Commission set up a permanent office in the Hotel Torarica, in
Paramaribo on its arrival in the country and issued a press release at
the outset explaining the objectives of its mission and the opening on
its office to receive complains, testimony and other information that
the people might wish to bring to its attention and to hold interviews
in connection with its mission.
In addition to its initial interview with officials of the
“National Commission for Guidance and Information,” of the
Department of Social and Internal Affairs, presided over by Mr. Phillip
Akkrum and designated by the Government as coordinating organ of the
activities to be carried out in the country, the IACHR Special
Commission met on June 23, with the President of the Republic, Mr.
Lachmipérsad Frederik Ramdat Misier, along with the head of the
President’s Cabinet.
The Special Commission also visited the Commander-in-Chief of the
Armed Forces and leader of the revolution, Lieutenant Colonel Desire D.
Bouterse, and the following government officials; the acting Prime
Minister and Minister of Planning and Finance, Mr. M. Caldeira, since
the Minister, Mr. Errol Alibux, was away from the capital; the Minister
of Justice, Dr. Frank Leeflang; the Attorney General of the Republic,
Dr. R. M. Reeder, the President of the Supreme Court, Dr. R. E.
Oosterling; and the Director of the National Information Service, Mr.
Dick de Bie.
Interviews were held with a number of private citizens who
provided important information. However,
almost all of them exercised their prerogative not to make their names
public.
In addition, the Special Commission visited the penitentiary
centers of: 1) “Santo Boma,” where it interviewed two persons who
had been condemned for their alleged participation in the “Rambocus”
coup, and a third person who was condemned for the events of
December 8, 1982; 2) Fort Zeelandia, where it visited the cell in which
Major Roy Horb was stated to have committed suicide, and interviewed
four members of the deceased Major Horb’s custodial staff who were
detained in the Fort Zeelandia prison and 3) finally, the “Memre
Boekoe” prison, where it inspected penitentiary facilities and
installations, accompanied by the Director.
On completing their mission, the Special Commission submitted its
draft report to the plenary meeting of the IACHR meeting in Washington,
D. C., at its sixtieth session, which took place June 28 to July 1,
1983.
This was a special session that was held June 28, July 1, 1983,
in Washington, D. C.
The inaugural session paid tribute to the memory of the
distinguished ex-chairman and on various occasions vice-chairman of the
IACHR, Professor Carlos Alberto Dunshee de Abranches, who died in his
native Brazil on June 22, 1983, after having provided uninterrupted
valuable services to the Commission (with which he had identified his
life since it was established as one of its most outstanding member for
over nineteen years. In
addition to the members of the IACHR plenary and all of the attorneys
and staff of the Executive Secretariat, the ceremony was attended by
distinguished representatives of the Brazilian community residing in
Washington, D.C. At the
commemorative meeting, the following spoke in tribute to the
distinguished professor: the Chairman of the IACHR, Marco Gerardo Monroy
Cabra; the Secretary General of the OAS, Alejandro Orfila, the Acting
Chairman of the Permanent Council of the OAS, Ambassador Juan Guillermo
Franco, of the Dominican Republic, the Permanent Representative and
Ambassador of Mexico to the OAS, Rafael de la Colina and the Second
Vice-Chairman of the IACHR, Luis Demetrio Tinoco Castro.
Finally, on behalf of his country and the family of Professor
Abranches, the Ambassador, Permanent Representative of Brazil to the
OAS, Alarico Silveira Junior, thanked all of those present for their
expressions of condolence and for the tribute paid to the memory of his
distinguished compatriot.
At this session, the following ISCHR officers were unanimously
elected: Chairman, Cesar Sepulveda, First Vice-Chairman, Luis Demetrio
Tinoco Castro, and Second Vice-Chairman, Dr. Francisco Bertrand Galindo.
At the end of the election, the Commission, meeting in plenary
session, expressed its appreciation to the former Chairman, Dr. Marco
Gerardo Monroy Cabra, for his concern and steadfast dedication to
activities in the defense of human rights in the hemisphere.
The Commission’s main activity at its sixtieth session was to
review and discuss the draft report that was submitted to it on the work
of the Special Commission that visited Suriname in response to the
invitation from the Government of that country to make an on-site visit.
The visit took place immediately before the present session, from
21-24 June 1983, as mentioned above.
Based on the investigation made by the Special Commission and
information from other sources to which the IACHR had access, I drew up
and the IACHR approved a report on the situation of human rights in the
country, which, after being translated to English, was submitted to the
Government of Suriname for it to make comments on it by the indicated
deadline. The Commission
would then consider those comments at its next session, at which time it
would give final approval to the report, which would then be published.
In addition, the Commission continued at this session to study
and consider the seventh report on the situation of human rights in
Cuba, and progress was made on its preparation.
The IACHR also continued to consider at this time its
participation in the quest for a friendly solution to the difficulties
between the Government of Nicaragua and the Nicaraguan citizens of
Miskito origin, and asked that Government to send relevant information
on the manner in which it had been complying with the Commission’s
previous recommendations, in order to determine whether the Commission
should continue its activities and whether a friendly solution to the
difficulties was feasible.
Finally, the Commission approved the directives for preparing its
Annual Report for consideration and final approval at its following
(sixty-first) session and for submission of the OAS General Assembly a
its XII Regular Session, and designated as its representatives to attend
the hearing scheduled for July 25 by the Inter-American Court of Human
Rights at the Court’s headquarters in San José, Costa Rica, in
connection with the advisory opinion requested by the IACHR on
subparagraph 2, Article 4 of the American Convention on Human Rights,
regarding imposition of the death penalty, an activity that is described
in the following section of this chapter. K.
Hearing by the Inter-American Court of
Human Rights on interpretation of Subparagraph 2 of Article 4 of the
American Convention on Human Rights
The Advisory opinion
requested from the Inter-American Court by the IACHR at its fifty-ninth
session, a copy of which is contained in sub-paragraph F of this
chapter, was transmitted, pursuant to Article 52 of the Court’s
Regulations, by its Secretary to the Secretary General of the
Organization of American States for submission to any pertinent OAS
organs—in accordance with Article 52 of the Court Regulations, Art.
61.1 of the Convention and Chapter X of the OAS Chapter—that might
have an interest in the consultation, so that they might submit written
comments in due time and form, along with any documentation they
considered relevant on this consultation.
Initiation of public hearings were scheduled for July 26, 1983.
At that time, and in accordance with their designation by the
IACHR at the conclusion of its sixtieth session, the following persons
traveled to the headquarters of the Court, in San José, Costa Rica, to
attend the hearings as representatives of the Commission: Luis Demetrio
Tinoco Castro, the First Vice-Chairman, and Dr. Marco Gerardo Monroy
Cabra, ex-chairman and member of the Commission, accompanied by Dr.
Guillermo Férnandez de Soto, attorney of the Executive Secretariat.
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