Is the Inter-American Commission of Human Rights too progressive?

By maintaining its independence and standing up to member states, the IACHR has irritated too many governments at once.

Brazilian indigenous men stand next to an environmental activist as he holds a banner that reads
Following an outcry from indigenous communities that would be affected by the Belo Monte dam, the IACHR ordered the Brazilian government to halt the project [Reuters]

San Francisco, CA – The Inter-American Commission of Human Rights (IACHR) has been threatened yet again to be sent to the doghouse. The 42nd General Assembly of the Organisation of American States (OAS), held in Cochabamba, Bolivia, June 3 to 5, became another occasion for the ALBA bloc to intensify its offensive against the IACHR. President Evo Morales inaugurated the three-day summit suggesting the elimination of the IACHR. Venezuela’s representative deplored the “decadence” of the OAS, whereas Ecuador’s president exceptionally attended the meeting to put the international bureaucracy “back in its place“. Earlier this year, President Hugo Chávez promised that Venezuela would leave the Inter-American human rights system, Nicaragua’s President Daniel Ortega linked the OAS to the Monroe Doctrine, and Ecuador’s chancellor denounced the IACHR as an inquisitor against member states. 

Governments have alternatively accused the Commission of being a platform for US imperialism, an obsolete institution inadequate to contemporary geopolitical realities, or a biased judicial body exceeding its jurisdiction. As some progressive governments on the left pledge to reject the “old and worn-out OAS”, they promote a Community of Latin American and Caribbean States (CELAC) as a desirable alternative.

Since the Commission was established in 1979 to hold governments accountable for human rights violations, it has been doing exactly that. But since the Commission started sticking its nose in matters presidents would rather sweep under the carpet, a wave of discontent has spread across the region.

The challenge is not as much to reform the Commission’s proceedings as to appease the wrath of states when rulings interfere with their political agendas. When the IACHR next meets at its Costa Rica headquarters on July 16, it will elect a new Executive Secretary to replace Santiago Cantón. Some governments under scrutiny will try to reduce the judicial independence of the Commission, notably by pressuring the OAS’s hesitant Secretary General José Miguel Insulza. But if anything, the attacks against the IACHR reinforce the legitimacy of a progressive judicial system.

Government discontent with the IACHR

The IACHR is so unpopular among governments because it monitors human rights violations. The Commission has held the government of Venezuela accountable for its systematic violation of judicial independence. Similarly, it recommended that Ecuador’s government stop harassment against the press, notably in the case of El Universo.

[When the IACHR] issued precautionary measures in favour of indigenous communities of the Xingu River and ordered the Brazilian government to halt the construction of the Belo Monte hydroelectric dam project. Brazil threw a fit.

Recently, the IACHR has been expanding its jurisdiction in ways that put member states in uncomfortable situations. The Commission, traditionally focused on civil and political rights, has accepted various cases of collective rights. In May, the first case of femicide in Guatemala reached the Commission, while another case recognised education as a collective human right. Most importantly, the Commission has defended cases of prior consultation brought forward by indigenous peoples. Expanding the jurisdiction to collective, environmental rights has fueled a wave of discontent.

Argentina’s recent silence when questioned about violence against indigenous peoples was mild. Things really turned sour when the IACHR upset the strongest kid on the block. In April 2011, it issued precautionary measures in favour of indigenous communities of the Xingu River and ordered the Brazilian government to halt the construction of the Belo Monte hydroelectric dam project. Brazil threw a fit, keeping its ambassador to the OAS grounded at home in Brasilia in a sign of protest, recalling its candidate to the IACHR and suspending payment of its annual dues to the organisation ($6 million of past dues were paid in full in 2012).

The Commission has impartially held accountable governments in both small countries like Guatemala and large, powerful ones like Brazil, while pursuing cases against the US for its Guantanamo military base in Cuba and against Venezuela for censorship of the mass media. So what exactly is the problem?

Blowing hot and cold

The inconsistency of government discontent indicates the tensions are often political. In Ecuador, Luis Saavedra, from the human rights organisation INREDH, notes that President Rafael Correa invoked reports from the Inter-American system to discredit prior rightist governments. Correa’s administration also cited principles of non-intervention in the OAS Charter to condemn the 2008 Colombian bombing against FARC leader Raul Reyes on Ecuadorian territory. It was only when the Special Rapporteur for Freedom of Expression called into question efforts to censor opposition media, notably recommending precautionary measures on the case of the newspaper El Universo, that the Correa administration reacted strongly against the IACHR.

The Brazilian relation to the Commission has been similarly contradictory. President Rousseff strongly supported the IACHR request that Brazil create a Truth Commission to shed light on human rights violations that took place during the 1964-1985 military dictatorship. In fact, prior to the Belo Monte rulings, President Rousseff invoked the Commission’s authority and stressed her country’s engagement with the hemispheric human rights system.

The IACHR is the strongest human rights system in the Americas in part because it is independent enough to stand up to member-states.

These cases demonstrate that Commission decisions are supported when they are aligned with governmental agendas and attacked and discredited when the Commission’s actions are perceived as inconvenient. This indicates that the problem is not the legal procedures of the IACHR. What bothers governments is not how decisions are made but who they are seen to favour. The IACHR is the strongest human rights system in the Americas in part because it is independent enough to stand up to member-states.

The IACHR in perspective

There is nothing new about states resenting international mechanisms of accountability to human rights. Before Chavez, it was Fujimori who removed Peru from the OAS (he was subsequently found guilty of crimes against humanity). The IACHR is crucial as the last instance for many cases of human rights abuse, providing access to justice to individuals and entire communities. For Katya Salazar, at the Due Process of Law Foundation, it is as important to recognise the decisive leadership of the IACHR in shaping human rights norms, for the hemisphere and beyond.

The Inter-American system helped countries and governments move beyond dictatorships. In Argentina, the IACHR shed light on the clandestine detention centres where the military junta tortured and killed thousands of people (closing down the facility of El Vesubio, for instance). In the 1990s, the Court supported the Peruvian government in rebuilding the country after the fall of the Fujimori regime. If there are so many Truth Commissions across Latin America it is also because the Court challenged amnesty laws as incompatible with OAS principles.

Inside Story Americas – The real cost of Brazil’s dam

The revocation of amnesty laws is just one example of the Commission promoting judicial reform in the region. The case Maria da Penha (2001), the first case of domestic violence to reach the Commission, not only upheld the rights of the victim but also led to legislative reforms in Brazil to reduce official governmental tolerance with in instances of domestic violence against women.

As the IACHR creatively interprets human rights norms, it expands the definition of rights, generates innovative, cutting-edge and progressive legislation. The IACHR’S pioneering role has inspired other human rights courts around the world, from Africa to Europe.

Tensions around collective rights to prior consultation like Belo Monte show the evolving face of human rights across the region. Cases brought to the Commission against the depredations of mining companies reveal both the collective dimension of human rights and the intricate relationship between states, multinational corporations and indigenous peoples.

Cases involving extractive industries also blur the lines between political parties on the right and the left. The form may vary, but the substantive content of these cases does not. Following in the footsteps of authoritarian governments before them, progressive governments on the left from Bolivia to Brazil are being taken to court for human rights abuses. Beyond the inevitable disillusionment with the arrival of the left to power, the current situation shows that human rights violations transgress familiar political and ideological camps.  

The point is not to tar political parties on the right and the left with the same brush, however, but rather to point out that it may matter less whether the right or the left is in power as much as to call attention to the fact that that it is in the nature of power itself to resist and deny mechanisms of accountability. And that is precisely why the IACHR will always be necessary.

If heads of state hesitate in supporting an independent IACHR in July, they may simply be thinking that eventually they, too, will be on the other side of power.

Manuela Picq has just completed her time as a visiting professor and research fellow at Amherst College.