The Rule of Law in a democratic society depends largely on the action taken by the Judicial Branch. Transparent and effective functioning of that Branch represents a basic and unavoidable challenge for any State. The international law of human rights –enshrined, in the inter-American system, in the American Declaration on the Rights and Duties of Man, the American Convention on Human Rights and other applicable instruments— must be considered a minimum standard in the task of applying the law, even in times of political, social, or economic crisis.

With regard to institutional matters, the Commission recommends that the member States take the measures necessary to ensure the independence of members of the Judicial Branch. Impartiality and transparency are concepts inherent in the very idea of administration of justice. Unfortunately, the members of the Judicial Branch--including, apart from judges, prosecutors and defense attorneys--and the members of the legal profession representing citizens before the courts, are at times subjected to harassment and intimidation. Accordingly, the member States should not neglect their physical and moral integrity.

With regard to jurisdictional matters, the Commission reminds the member States that their citizens must be judged pursuant to ordinary law and justice and by their natural judges. Thus, civilians should not be subject to Military Tribunals. Military justice has merely a disciplinary nature and can only be used to try armed forces personnel in active service for misdemeanors or offenses pertaining to their function. In any case, this special jurisdiction must exclude the crimes against humanity and human rights violations.

With regard to basic and universal principle of administration of justice, the Commission recalls that the member States' legal order should fully and effectively contemplate the following principles: detention pursuant to arrest warrant duly grounded on facts and law and issued by a competent authority; the right of the accused to be informed of the charges against him; the right to appear before a competent judge and to be assisted by a legal representative; the right to the presumption of innocence; and the right to defend himself and be impartially and expeditiously judged.

The member States must put an end to situations of impunity. They must ensure that effective legal remedies are available to their citizens to defend their rights and to have access to justice rendered by independent and impartial judges, according to the aforementioned principles on jurisdiction. In this regard, the Commission reminds the member States of their obligation to investigate cases involving the alleged violations of human rights, identify the perpetrators, and impose the sanctions provided by the law according to the rules of due process. Member States should also ensure that the victims or their heirs receive appropriate compensation.

 2. The Commission recommends that the member States take the measures necessary to improve the operation of the prison system and the conditions of imprisonment and detention

On repeated occasions, the Commission has expressed its concern over the extremely precarious situation of men, women, and children inmates who live over crowded in many prisons of the hemisphere. The Commission reiterates to the member States the urgent need to improve the existing prison infrastructure and provide it with trained staff. It also urges them to provide for the separation of inmates between those who are being tried and have been convicted; between minors and adults; and according to the severity of the crimes committed. The Commission also invites the member States to consider the adoption of alternative sanctions to that of imprisonment.

The Commission also reiterates its concern over the practices adopted in many member States with regard to preventive detention. States seriously violate the principle of presumption of innocence by imprisoning citizens charged but not convicted of crimes, together with those already serving their prison sentences. This situation is exacerbated when the precautionary measure of detaining the accused is adopted in a general way without considering the objective parameters established by the legislation, and extends over unreasonable periods which, in some well documented cases, have even exceeded the maximum prison sentence applicable under the law. The Commission reiterates that the liberty of the accused must be the rule, and the exceptions must be expressly set forth by the law and be duly invoked and grounded in each case.

3. The Commission recommends that the member States clearly establish the role of Armed and Security Forces in the context of the Rule of Law

In every democratic State, the Armed and Security Forces perform a crucial role in the protection of civilians, their property and their rights. This is a function with many nuances and which involves different institutions –amongst them the police and the Armed Forces—with features of their own.

The Commission recommends that the member States give special attention to the training provided to police officers, who have the delicate task of exercising public authority vis-à-vis society. The democratic order requires the citizens to trust in the professionalism and, above all, the ethics of police authorities. The Commission reiterates its appeal to the member States to adopt United Nations standards on the conduct of law enforcement officials for guidance in this area.

The task to be fulfilled by the police in the civilian context is delicate and requires special instruction and training. Accordingly, as a general principle, the police cannot be replaced by the Armed Forces in the fulfillment of its role. The Commission wishes to recommend, with emphasis, that the Armed Forces not be deployed for the purposes of law enforcement. Due to their specialty, complexity and degree of interaction with civilians, the investigation of common crimes and arrests, amongst other tasks, require a duly trained police corps particularly respectful of the Law.

The Commission must also express concern over the fact that the Armed and Security Forces of some member States continue to be related to the commission of abuses, directly or through unofficial armed groups. Amongst the measures to be adopted in order to ensure that Armed and Security Forces are duly subject to civil authority and act within the law, the Commission urges the member States to train their agents on the rules regarding the respect to human rights and international humanitarian law and adequately sanction those who violate such rules.

With regard to the Armed Forces in particular, the Commission cannot but call attention to the use of military tribunals to review cases involving issues ruled by ordinary law, amongst them, those relating to the observance of individual rights. The Commission reiterates that military tribunals should only be employed to address those cases involving internal discipline within the Armed Forces. The Commission recommends, emphatically, that the member States take the necessary measures to ensure that those members of the Armed Forces who commit common crimes be judged by ordinary courts and pursuant to ordinary law so as to ensure the right of the affected party to an impartial judge.

4. The Commission recommends that the member States take all necessary measures to protect the physical integrity of human rights defenders and to ensure they can work under appropriate conditions

The Commission must highlight the importance, as well as the ethical dimension, of the work carried out by persons and organizations dedicated to promote, monitor and provide counsel in the area of human rights. As part of the civil society, these persons and organizations have a crucial role in the scrutiny of democratic institutions.

The United Nations, conscious of the importance of the work of human rights defenders and organizations, has approved the "Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms." This instrument establishes that everyone has the right, individually and in association with others, to promote the protection of human rights and fundamental freedoms at the national and international levels. To that effect, this instrument also recognizes that all persons have the right to meet peacefully, form and participate in non-governmental organizations and to make complaints regarding the policies and actions of State agents regarding human rights violations

Periodically, the Commission takes cognizance of acts of intimidation and violence perpetrated against persons and organizations carrying out this kind of work in the Member States. Many of these acts have fatal consequences. Unfortunately, during 1998 persons well known for their human rights work both at the national and the international level have been the victims of these acts of violence.

Consequently, the Commission recommends that the Member States promote the principles established in the UN Declaration and take all necessary measures to ensure the freedom of expression of those who work for the respect of fundamental rights and to protect their lives and physical integrity.

5. The Commission recommends that the Member States give special attention to the full protection of children's rights

The American Declaration, the American Convention, and other instruments of universal character reflect a consensus that children have the right to special measures of protection. Accordingly, the necessary resources should be allocated to the care and development of children, and the necessary legislative and other measures should be taken to protect their rights. In this regard, the Commission recommends to the member States that all decisions affecting the life, freedom, physical or moral integrity, development, education, health or other rights of children, be made with a view to ensuring that their best interests are taken into account.

The Commission recalls that the member States are to take specific measures enabling children living within their jurisdiction to gain access to primary education --which must be compulsory and free-- and secondary education which, in areas where it does not exist, should gradually become available free of charge to all.

The Commission also wishes to reiterate that, as provided for in the San Salvador Protocol, persons under 18 years of age should not be subject to nocturnal work schedules or unhealthy or dangerous conditions and that, in any case, they must be treated according to the standards established in ILO Convention 138.

In this regard, the Commission calls upon member States to cooperate and collaborate with the Rapporteur on the Rights of the Child.

6. The Commission recommends that the member States fully recognize and ensure the rights of women and adopt the measures necessary to correct, as soon as possible, sexual discrimination persisting in their domestic legislation

The rules of the inter-American system are based on broad principles of equality and non-discrimination. Member States have the obligation to adapt their legislation to such principles whenever a legal provision proves to be discriminatory simply by virtue of its existence, its effects, or the manner in which it is interpreted and applied in practice.

The Commission has verified that the legislation in force in the jurisdiction of some member States does not conform to the principles of equality and non-discrimination and that this situation mainly affects women. Such de jure discrimination transforms the legal system itself into an instrument of subordination, and is an affront to the most fundamental principles of the inter-American system.

Pursuant to the study conducted by the Rapporteur on Women's Rights and the guidelines set out in his report, the Commission wishes to request the States that still have not done so to conduct a comprehensive review of their national legislation. Such review should be focused on the areas of civil, labor, commercial, and criminal law and should have the aim of identifying provisions that establish distinctions, exclusions, or restrictions of a sexual character, whose purpose or effect is to diminish the recognition or exercise of human rights by women.

In all cases in which discrimination is detected, and given that it constitutes a patent violation of the fundamental principles on which the inter-American system is founded, member States should act without further delay to modify their legislation as necessary.

Member States should also review their domestic remedies with a view to evaluating the extent to which they are accessible and effective in ensuring the exercise of the right not to be subjected to any form of sexual discrimination in public as well as private life. The member States should also strengthen the effectiveness of those remedies and should take the appropriate measures to ensure that women have access to the information needed to avail themselves thereof.

7. The Commission recommends the member States that they take the necessary measures to protect those suffering from mental or physical disabilities

The Commission has verified that those persons suffering from mental or physical disabilities are particularly vulnerable to discrimination, to arbitrary restriction of their personal freedom and to inhuman and degrading treatment. This situation, and its impact in their integration into society, has also been acknowledged in different international guidelines.

The Commission wishes to reiterate that the full exercise of the rights enshrined in the Declaration, the Convention and its Protocols, and other instruments in force in the inter-American system, must be ensured without any kind of discrimination whatsoever. Therefore, it recommends the member States to take all legislative or other measures necessary to ensure that those with physical or mental disabilities can exercise their civil and political rights without discrimination; and, in the light of the compromises set forth in the San Salvador Protocol, to ensure that their economic, social and cultural rights receive special protection.

8. The Commission recommends that the member States take special care to guarantee the exercise of freedom of expression

The Commission deems it necessary to emphasize the importance of the exercise of freedom of expression in the strengthening and development of democracy. The member States must protect this important right, taking measures to ensure its exercise, including the prosecution of those who attempt to hinder it. This recommendation should be especially taken into account in the case of those who collect and transmit information as a profession and thus perform a vital role in a democratic society.

Bearing in mind the purpose of this recommendation, the Commission has decided to establish an Especial Rapporteur on Freedom of Expression and calls the Member States to cooperate and collaborate with it.

9. The Commission recommends that the member States adopt measures necessary to consider and approve the proposed "Inter-American Declaration on the Rights of Indigenous Peoples"

The Commission reiterates its recommendation to consider and approve the American Declaration on the Rights on Indigenous Peoples –on account of which the meeting of government experts convoked by the General Assembly (AG/RES. 1549 XXVIII-0/98) has already been held— with a view to its adoption at the twenty-ninth regular session of the General Assembly. The Commission underscores that, as indicated by the General Assembly, "the text of the Draft American Declaration on Indigenous Peoples reflects the concerns of the indigenous populations as well as the work of the United Nations in the field."

The Commission, through its Rapporteur on the Rights of Indigenous Peoples, shall continue collaborating with the Member States to promote consensus leading to the approval of the Draft Declaration. The Commission shall also continue working together with the Permanent Council in order to advance the process of approval by the General Assembly.

10. The Inter-American Commission on Human Rights recommends to the member states of the OAS that they accede to or ratify the 1951 Convention and its 1967 Protocol on the status of refugees, and the Conventions of 1954 and 1961 on the status of stateless persons

The Commission notes the growing phenomenon of the forced displacement of persons and populations in certain countries of the Hemisphere. Persecution, violations of human rights, and infractions of international humanitarian law contribute to forced displacement and the flow of refugees, and to preventing their voluntary, safe return to their homes. To prevent and solve the problem of refugees, it is therefore imperative to protect human rights and humanitarian norms in the countries of origin. Respect for human rights in the countries of destination is also essential to the protection of refugees and stateless persons. The right to nationality is a basic right that is closely allied to other fundamental liberties. Loss of nationality impairs international human rights law and leads directly to forced displacement, exile, and stateless status.

The Commission recognizes that the 1951 Convention and its 1967 Protocol on the status of refugees are the only international human rights instruments offering a global, uniform and specific framework for the protection of refugees. The Commission celebrates and affiliates itself with the world campaign to promote new accessions to any treaties issued by the United Nations High Commission on Refugees on the occasion of the UNHCR Executive Committee meeting held in October 1998.

The Commission notes with satisfaction that most of the OAS member states have acceded to or ratified the 1951 Convention and its 1967 Protocol, and recommends that the states that have not yet done so incorporate these instruments into their national legal systems and that they adopt the necessary regulatory or supplementary legislation. They will, by these means, contribute to universal application of the principles and provisions enshrined in these instruments, and confirm the commitment to treat the refugee question as a shared international responsibility.

Finally, the Commission notes the changing political context that has left thousands of persons without nationality and without the legal protection of any State. The 1954 Convention on the status of refugees provides a legal framework for dealing with legal stateless residents. The objective of the 1961 Convention on the Reduction of Statelessness is to reduce statelessness in general. The Commission therefore recommends to the member states that have not yet done so that they incorporate the conventions on statelessness into their domestic legislation so as to make a concrete contribution to strengthening the international system for protection this extremely vulnerable group.

11. The Commission recommends the member States to respect, protect, and guarantee the rights of migrant workers and their families

Frequently, migrant workers and their families find themselves without protection in the States where they work. This results from, among other factors, differences in language, race, custom, culture, economic resources, and educational level. This situation of vulnerability repeatedly leads to discrimination against migrant workers and their families and to delays or the absence of recognition of their fundamental rights.

The Commission recommends that the member States, in accordance with the relevant international instruments and their own domestic legislation, should promote, respect, and ensure the fundamental rights of migrant workers and their families.

In this regard, the Commission calls upon member States to cooperate and collaborate with the Rapporteur on Migrant Workers and their families.

12. The Commission recommends that the member States should undertake to respect the customary and conventional international humanitarian law

The Commission recommends that the member States should undertake to respect customary and conventional international humanitarian law. Particularly, it recommends that member States consider ratifying the instruments of international humanitarian law intended to reinforce the protection of fundamental human rights in situations of armed conflict, such as the Geneva Conventions of 1949 and their Additional Protocols of 1977.

13. The Commission recommends that the Member States adopt, respect and implement the Guiding Principles on Internal Displacement

The Commission is concerned about the situation of persons who are obliged or forced to abandon their place of residence, without crossing international boundaries, in order to avoid the effects of armed conflicts, situations of extreme violence, or catastrophes of different kind. Such displacements have become a serious humanitarian problem.

The Commission welcomes the compilation of the "Guiding Principles on Internal Displacement" by the UN Secretary General’s Representative for the Internally Displaced, Francis Deng. These thirty Principles constitute the most comprehensive restatement of norms applicable to the internally displaced, and will provide authoritative guidance to the Commission on how the law should be interpreted and applied during all phases of displacement.

Consequently, the Commission recommends that the Member States encourage the dissemination of such Principles and take all necessary measures to respect and implement them whenever persons under their jurisdiction are affected by situations that may or effectively involve internal displacement.

14. The Commission recommends that member States whose legislation provides for compulsory military service take measures to ensure protection for the individual rights of the inductees

The Commission is aware that a number of member States, rather than applying current legal provisions for the recruitment of inductees, resort to the arbitrary detention of candidates. In other cases, the individuals recruited are not permitted recourse to the courts to demonstrate that the law exempts them from service. The Commission also has knowledge that certain ethnic, religious, and racial minorities are subjected to discriminatory practices upon recruitment. The Commission urges the member States to put an end to those practices.

The Commission takes note of the suggestions made by other international bodies to the effect that States must effectively implement the right to freedom of conscience and religion, through legislative amendments providing for exemptions from military service in cases of conscientious objection.

Accordingly, the Commission recommends that States whose legal order provides for compulsory military service should revise their legal provisions on recruitment with a view to respecting and protecting the right of inductees to humane treatment, due process, freedom of conscience and religion, and equality before the law. The Commission also invites the member States whose legislation still does not exempt conscientious objectors from military service or alternative service, to review their legal regimes and make modifications consistent with the spirit of the international law of human rights.

15. The Commission urges the member States to comply with the recommendations made by the Commission in its reports on individual cases and to abide by the requests of provisional measures

The Inter-American Court has indicated that States parties to the American Convention have the obligation to adopt the recommendations issued by the Commission in its reports on individual cases, in the light of the principle of good faith. This obligation extends to the member States in general, provided that, pursuant to the OAS Charter, the Commission remains one of the main organs of the Organization with the function of promoting the observance and defense of human rights in the hemisphere.

Accordingly, the Commission urges the member States, whether they are parties to the American Convention or not, to fulfill their international obligations by following the recommendations issued in the reports on individual cases and abiding by the requests of provisional measures.

The Commission also invites them to invoke, in good faith, and to follow the friendly settlement mechanism provided for in the Convention and its Regulations.

16. The Commission invites the member States to adopt legal mechanisms for the execution of the recommendations of the Commission in the domestic sphere

As aforementioned, member States have the obligation to comply with the recommendations issued by the Commission in its reports on individual cases. Such obligation must be satisfied by whichever organ of the State is competent to adopt the corresponding measures. However, in some cases, State authorities have indicated that the lack of appropriate mechanisms for the execution of international obligations in their respective legal orders has somehow hindered compliance with the recommendations. The Commission wishes to urge the States that consider this legal vacuum as an impediment, to follow the example of other member States -- as well as other States of the international community – which have found it convenient and expedient to establish specific legal mechanisms, either of a judicial or administrative nature, to implement directly the Commission's recommendations.

17. The Commission recommends that the member States ratify the American Convention on Human Rights and its Protocols

The Commission recommends to the ten member States that have not ratified the American Convention on Human Rights --Antigua and Barbuda, Bahamas, Belize, Canada, Cuba, United States, Guyana, Saint Vincent and the Grenadines, St. Kitts and Nevis, and Saint Lucia-- that they should ratify this instrument and thus allow for the consolidation of the system within a unified legal framework.

The Commission also recommends that Trinidad and Tobago reconsider its decision to denunciate the American Convention on Human Rights, and remain a State party to the Convention.

The Commission also recommends that Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Canada, Chile, Costa Rica, Cuba, Dominica, Dominican Republic, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Nicaragua, St. Kitts and Nevis, St. Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago, United States of America, and Venezuela, should ratify the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights.

The Commission also recommends that Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Canada, Chile, Colombia, Cuba, Dominica, Dominican Republic, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Paraguay, Peru, St. Kitts and Nevis, St. Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, and the United States of America, should ratify the Additional Protocol to the American Convention on Human Rights to Abolish Death Penalty.

18. The Commission recommends that the member States ratify the inter-American instruments on human rights

The Commission also recommends that Antigua and Barbuda, Bahamas, Barbados, Belize, Bolivia, Canada, Costa Rica, Cuba, Dominica, Ecuador, Grenada, Guyana, Haiti, Honduras, Jamaica, Nicaragua, St. Kitts and Nevis, St. Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago and the United States of America, should ratify the Inter-American Convention to Prevent and Punish Torture.

The Commission also recommends that Antigua and Barbuda, Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Peru, St. Kitts and Nevis, St. Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, and the United States of America should ratify the Inter-American Convention on the Forced Disappearance of Persons.

The Commission also recommends that Canada, Cuba, Grenada, Jamaica, Suriname and the United States of America should ratify the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.

19. The Commission recommends that the States Parties to the American Convention accept the compulsory jurisdiction of the Inter-American Court of Human Rights

The Commission recommends that the States Parties to the American Convention on Human Rights that have not accepted the compulsory jurisdiction of the Inter-American Court on Human Rights--Barbados, Dominica, Grenada and Jamaica--undertake the obligations set forth in Article 62 of the American Convention and accept the jurisdiction of the Inter-American Court. The Commission also calls the member States that have not yet ratified the American Convention, referred to in recommendation 17 above, to accept the compulsory jurisdiction of the Court at the moment of ratifying that Treaty.

20. Recommendation on Access to Government Files and Documents

1. The Inter-American Commission on Human Rights, in its capacity as the organ of the Organization of American States principally responsible for the promoting the defense and observance of human rights, considers that the right of free access to information existing in government archives and documents is one of the fundamental guarantees of constitutional democracy, inasmuch as it ensures citizen participation in discussion and decisions on matters of common interest, and increases the transparency of government activity. This right was only recently enshrined in legal provisions, although its origins date back to the period of the Enlightenment and can be found in the revolutionary declarations and national constitutions that gave rise to the liberal state. The legitimacy of government decisions thus depends largely on the degree to which they are made public, since only through public scrutiny can the risks of corruption and despotism inherent in state secrets or acts of power not open to public view be avoided.

2. The administration of swift and effective justice, especially in exposing, sanctioning, and providing remedy for atrocities or grave violations of human rights by agents of the state, often requires reference to documents that have been classified as secret or inaccessible for reasons of national security. Maintaining State secrecy in such cases perpetuates impunity and erodes State authority, inwardly and outwardly. Such legal and administrative obstacles must be removed, and the way cleared for the Commission to establish state and individual responsibility for such reprehensible conduct, with all of the legal and moral consequences it entails, by opening the archives and declassifying documents requested by appropriate national as well as international authorities.

3. Accordingly, the Inter-American Commission on Human Rights, in pursuance of its functions under article 41(b) of the American Convention on Human Rights, article 18(b) of its Statutes, and article 63(f) of its Rules of Procedure, decides:

21. Recommendations on Universal Jurisdiction and the International Criminal Court

1. On this the fiftieth anniversary of the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights, the Inter-American Commission on Human Rights (IACHR) takes note of one of the greatest advances in recent international public law: establishment of the principle of individual criminal responsibility within the international legal order. Pursuant to the Principles of Nuremberg, adopted by the United Nations General Assembly in 1946, and the resolutions establishing the international criminal courts for the former Yugoslavia and for Rwanda, issued by the United Nations Security Council in 1993 and 1994, the recent diplomatic conference in Rome approved the Permanent Statute of the International Criminal Court on July 17, 1998. Articles 1 and 25 of that Statute proclaim the criminal responsibility of any person accused of committing a crime against international law in one of the following three categories: genocide, crimes of war, and crimes against humanity (such as the forced disappearance of persons, torture, and grave or systematic violations of human rights). These Articles also permit the prosecution and adjudication of such crimes by the new international criminal court regime in cases where the national system of criminal law concerned is not willing or able to perform this function.

2. This evolution in the legal framework has further consolidated the principle of universal jurisdiction, by virtue of which any state has the authority to prosecute and sanction individuals responsible for such international crimes, even those committed outside of a State’s territorial jurisdiction, or which do not relate to the nationality of the accused or of the victims, inasmuch as such crimes affect all of humanity and are in conflict with public order in the world community.

3. As a principal human rights organ of the inter-American system, the IACHR has the mission to promote the observance and defense of human rights in the hemisphere among the member countries of the OAS. It therefore considers that enshrinement of the principle of individual criminal responsibility in the international legal order, together with the principle of universal jurisdiction, will contribute significantly to the strengthening of international systems for the protection of human rights, and even more importantly, to consolidation of the rule of law and fundamental human freedoms in the world community. Accordingly, in the exercise of its functions under Article 41(b) of the American Convention on Human Rights, article 18(b) of its Statutes, and Article 63(f) of its Rules of Procedure, the Inter-American Commission on Human Rights decides:

A.    To recommend that the member States of the Organization of American States adopt such legislative and other measures as may be necessary to invoke and exercise universal jurisdiction in respect of individuals in matters of genocide, crimes against humanity, and war crimes.

B.    To recommend that the member States of the Organization of American States that have not yet done so sign and ratify the Statute of the International Criminal Court approved by the Diplomatic Conference of Rome on July 16, 1998.