In Defense of Human Rights Defenders

On this day in 1998, paramilitaries stormed into the office of Jesús María Valle Jaramillo (left), a Colombian lawyer and human rights defender who had been active in denouncing crimes committed by paramilitaries in conjunction with members of the Colombian army. Valle Jaramillo was executed. With him on this day 13 years ago were his sister Nelly Valle Jaramillo and a friend, Carlos Fernando Jaramillo Correa. These two individuals were tied, dragged across the office, and threatened with death.
The victims brought a case against Colombia before the Inter-American human rights system (the Commission and the Court). Remarkably, before the Commission, the state partially admitted its responsibility by omission, apologized, and offered reparations. The victims, however, argued that the terms of the admission denied the State's responsibility for its agents as co-authors, accomplices, or instigators in the alleged violations and thus did not fully contribute to the victims' desires for truth and justice. Accordingly, they pressed the Commission to forward the case to the Court.
Before the Court, Colombia was found responsible by omission for violations of the victims' rights to

• personal liberty (Article 7 of the American Convention on Human Rights),
• humane treatment (Article 5),
• life (Article 4),
• freedom of movement and residence (Article 22) and
• judicial protection (Article 25).

Drawing on the conclusions of its prior cases involving Colombia, the Court noted that the state originally encouraged the creation of “self defense” paramilitary groups, but that these groups began to "function beyond the law" and commit human rights abuses. The Court also noted that prior cases demonstrated numerous links between paramilitary groups and members of the armed forces such that the Colombian state bore direct international responsibility for the failure to comply with “its obligation to ensure human rights, [and, thus,] its duty of prevention and protection.” In addition, the Court found that

even though the State has adopted certain legislative measures to prohibit, prevent and sanction the activities of the “self defense” or paramilitary groups, these measures did not translate into the effective deactivation of the danger that the State helped create. [T]his accentuates the State’s special obligations of prevention and protection...

In addition, the Court made note of the special guarantees owed to human rights advocates in light of their work defending and promoting human rights. The Court acknowledged that Colombia had already implemented a series of measures to assist and protect human rights defenders including

• the legal recognition of human rights organizations;
• the formulation and implementation of the National Action Plan on Human Rights and International Humanitarian Law; and
• the provision of police protection to human rights organizations.

Nonetheless, full compliance with the obligation that states create the necessary conditions for the effective enjoyment and exercise of the rights established in the Convention,

is tied intrinsically to the protection and recognition of the importance of the role of human rights defenders, whose work is essential to strengthen democracy and the rule of law.

Thus, where a state is aware of a real and immediate danger to human rights defenders, a State

has the obligation to adopt all reasonable measures required to guarantee the rights to life, to personal liberty, and to personal integrity of those defenders who denounce human rights violations and who are in a situation of special vulnerability such as the internal armed conflict in Colombia.

With respect to reparations, the Court also undertook an interesting discussion of which family members should be recognized as "next of kin", reflecting the civil law's more expansive notions of dependents/beneficiaries.

For more on the risks undertaken by human rights defenders, see the programs at Amnesty International, the International Federation for Human Rights (FIDH), and Human Rights First.

Inter-American verdicts against Mexico

Mexico owes compensation to women who suffered sexual abuse at the hands of military personnel, the human rights court for the Americas reportedly has ruled.

According to reports here and here, the 2 judgments came yesterday in the cases of Valentina Rosendo Cantú and Inés Fernández Ortega, Tlapaneca (Me'phaa) indigenous women from the Mexican state of Guerrero. (The website of the Inter-American Court of Human Rights does include judgments in both cases, but they are dated in August and September, respectively.)

Leaders of nongovernmental organizations praised the judgment, which came after 8 years of litigation by the 2 women. The judgment "represents 'a light of hope'" that victims and their families can attain justice, said Alejandra Nuño (left), director of the Mexico and Central America program at CEJIL, the Center for Justice and International Law (prior post), which focuses on the Inter-American Court.

Found responsible for having "failed to guarantee the rights to personal integrity, dignity and legal protection" to Rosendo and Fernández, the Mexican government said it would abide by the court's call for a civilian investigation, for compensation, and for publication of the judgment. The government added that it

reiterates its full commitment to the promotion and protection of human rights, in particular to combat violence against women and girls.

Report from the XVIIIth International Congress of Comparative Law in Washington

(Delighted to welcome back alumna Afra Afsharipour, who contributes this guest post)

I am here in Washington, D.C., at the XVIIIth International Congress of Comparative Law (logo at left).

The congress is taking place all of this week, presented by the International Academy of Comparative Law and the American Society of Comparative Law, and hosted by three local law schools, American University Washington College of Law, George Washington University Law School, and Georgetown University Law Center. It is a pleasure to be among such a diverse group of jurists, lawyers, and scholars from around the world. The Academy, which is composed of academics and jurists from around the world, organizes every 4 years in different parts of the world an international congress of comparative law. From my understanding, this is the first time that an international congress has been held in the United States.
The conference got off to a great start today with an opening plenary addressing the "Role of Comparative Law in Courts and International Tribunals." The panel was chaired by the Secretary-General of the International Academy of Comparative Law and Director of the Max Planck Institute for Comparative and International Private Law in Hamburg, Dr. Jürgen Basedow. Representing views from both domestic and international courts, as well as a viewpoint from practice, the distinguished panelists discussed the role of both international and comparative law in their own courts:

► Judge Rosemary Barkett (right), U.S. Court of Appeals for the Eleventh Circuit (for whom I had the privilege of clerking), began by remarking that to some extent comparing laws has some role in all jurisdictions. She presented a historical perspective from the United States to demonstrate that the practice of considering foreign sources is rooted in the legal history and tradition of the United States, citing to the Declaration of Independence, the U.S. Constitution, and the Federalist papers, as well as to numerous opinions from the U.S. Supreme Court. One of Judge Barkett’s most important points was that, as international and comparative scholars, we need to address the definitional problems in comparative law. For example, many jurisdictions espouse allegiance to the rule of law, but what exactly does rule of law entail?

► Justice Sabino Cassese (left), of the Constitutional Court of Italy, next provided three distinct examples of courts looking beyond their own nation’s borders for insights. He emphasized that recourse to comparison by high courts is widespread, and that increasingly supreme courts are acting as comparatists. Justice Cassese emphasized two tasks for comparative lawyers and scholars: one, to examine and evaluate how judges and courts use foreign law; and two, to develop methods and procedures for comparison.
► The presentations of Judge Barkett and Justice Cassese were followed by the practitioner’s perspective, Carolyn Lamm (right), a partner at White & Case in Washington and President of the American Bar Association. She emphasized the importance of looking to other systems for persuasive, not precedential, value. Lamm reminded us of the speech from former U.S. Chief Justice William H. Rehnquist, in a 1989 talk titled "Constitutional Courts -- Comparative Remarks," in which he remarked:

For nearly a century and a half, courts in the United States exercising the power of judicial review had no precedents to look to save their own, because our courts alone exercised this sort of authority. . . . But now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process.

(Reprinted in Germany and Its Basic Law: Past, Present and Future, A German-American Symposium 411, 412 (Paul Kirchhof & Donald P. Kommers eds., 1993). Lamm also cited to the “Obama-Clinton Doctrine” speech that State Department Legal Adviser Harold Hongju Koh delivered to the American Society of International Law annual meeting. (prior IntLawGrrls post) The speech is definitely worth a read.

► Judge Diego García Sayán (right), President of the Inter-American Court of Human Rights, spoke of the role of his regional court with respect to national courts in the Americas. He explained that most Latin American national courts openly and explicitly use judgments of the Inter-American court in their decisions, and that the Inter-American court also has used local and national criteria used by national courts. Judge García Sayán also remarked on the use of international law by the Inter-American court, particularly noting the influence of the jurisprudence of the European Court of Human Rights. While this influence used to be primarily a one-way street, recently the European Court of Human Rights has also looked to the jurisprudence of the Inter-American court for persuasive value.
► Judge Bruno Simma (left) followed by describing his experience on the International Court of Justice and his use of comparative law in an early opinion on the Oil Platforms dispute between Iran and the United States. Judge Simma warned both of the dangers that could befall a comparatist and of comparative law accidents.
The presentations were followed by a dynamic discussion among the panelists on a variety of issues, including the weight to be given to comparative law in judicial opinions and the relationship between international and comparative law.
The opening plenary was followed the rest of the day with various breakout sessions, including the delivery and discussion of general and national reports prepared for the conference. For those of you interested in comparative surveys of various legal issues, the reports should not be missed.
The conference got off to a great start yesterday. Today’s program, which will be held at the George Washington University Law School, promises to be as dynamic as this first day.

Breaking News: ICJ Rules in Germany v. Italy on Legality of Counter-Claim

Hot off the presses and straight from the source, I have an advanced copy of the International Court of Justice preliminary ruling concerning Italy’s counterclaims in the Jurisdiction Immunities of the State (Germany v. Italy). (The opinion should be online soon; the ICJ's press release, dated 20 July, is here).
By way of background, the original claims by Germany stem from the fact that Italian courts had permitted certain civil claims to be pursued by Italian nationals based on violations of international humanitarian law (including the forced labor of Italian POWs and deportation (see photo, below left)) in the World War II and postwar period. Germany has argued that it is entitled to sovereign immunity. In particular, in its initial Application and Memorial to the Court, Germany argued that the claims were barred by virtue of the 1947 Peace Treaty between the two countries—which promised restitution for seized property and contained a waiver of other claims on behalf of Italy and Italian citizens.
Italy, in turn, appended a counter-claim in its Counter-Memorial, espousing the claims of certain nationals against Germany arising out of WWII-era violations. Both the primary and counter-claims premised ICJ jurisdiction on the 1957 European Convention for the Peaceful Settlement of Disputes, in which parties agreed submit to the judgment of the ICJ all international legal disputes that may arise between them, including those that may constitute a breach of an international obligation and any claims for reparation. The Convention is prospective in that it does not apply to

[d]isputes relating to facts or situations prior to the entry into force of [the] Convention

which for the parties occurred in 1961.
In its subsequent objections to the counter-claim, Germany argued that the counter-claims were not proper according to Rule 80 of the Rules of the Court, which requires that counter-claims:

1. Come within the jurisdiction of the Court and
2. Be directly connected with the subject matter of the original claim.

Germany reserved its position on the second element of the test. On the question of jurisdiction ratione temporis, Germany argued that the only operative facts at issue in the counter-claims concern violations of international law allegedly committed by German armed forces and occupation authorities in the immediate post-WWII period, well before the enactment of the European Convention.
For its part, Italy argued that whereas the underlying breaches (the fact of which are not in dispute between the parties) occurred in that period, the right to reparation (which is in dispute) emerged anew from the 1961 Agreements—which post-date the entry into force of the European Convention and voided any waiver of claims in the original Peace Treaty—and the Law on “Remembrance, Responsibility and Future” Foundation and other legislation enacted by Germany more recently to address an outpouring of WWII claims not subject to postwar peace treaties or agreements. Italy argued in essence that these subsequent actions barred Germany from relying on the waiver in the Peace Treaty.
In response, Germany argued any right to reparation was not a new claim, but a “consequence” of the original claims. It also argued that Italy unequivocally waived any claims it or its citizens might have had in the original Peace Treaty; the 1961 Agreements were mere “gesture[s] of goodwill;” and the exclusion of Italian claims from the ambit of more recent reparative legislation does not give rise to any new claim of right.
In ruling against Italy and rejecting the counter-claims, the ICJ made clear that it would consider only those facts and situations that are the true “source of the dispute” or its “‘real cause.’” In this regard, the Court ruled that

• the original waiver remained extant and by its subsequent actions, Germany did not renounce any right to rely on it in the present dispute;
• the 1961 Agreements did not create any new claims of right on behalf of the Italian citizens whose claims undergirded the counter-claims, and
• the 2000 legislation did not create any new obligations on the part of Germany to pay reparations to Italian citizens.

As such, the Court lacked temporal jurisdiction over Italy’s counter-claims.
Judge Antonio Cançado Trindade (right, from Brazil), who joined the Court in 2009 having served as a Judge on, and President of, the Inter-American Court of Human Rights (IACHR) from 1995-2008, appended a Dissenting Opinion five times the length of the majority holding. Judge Trindade, who became known at the IACHR for his ever frequent and always elegant separate opinions, is staying true to form at the ICJ.
His opinion, which focused on the complexities of the parties’ positions not apparent from the superficial majority holding, hinged on the idea that Germany’s breaches of international law were of a continuing character, as recognized by

• Article 14(2) of the ILC’s Articles on State Responsibility,
• the ICJ in the South West Africa Case (wherein the Court ruled that South Africa’s continued occupation of Namibia constituted a continuing violation giving rise to international responsibility), and
• a host of international human rights decisions.

In particular, he cited a number of decisions and instruments concerned with forced disappearances, which have been deemed to constitute continuing violations of the victim’s right to life, right to liberty and security of person, and right to be free from torture and other cruel treatment, as well as family members’ rights to access to justice and to a fair trial.
In this regard, Judge Trindade decried the fact that the majority opinion homogenized and rendered invisible the victims’ newly acquired rights arising from the 1961 Agreements (which embodied new obligations, voluntarily assumed by Germany), subsequent German legislation revisiting the question of reparations, and subsequent dealings between the parties, inter alia. In so doing, the Court left the state immunity claim in artificial isolation, notwithstanding that the original claim and the impugned counter-claim were “ineluctably intertwined” and, as such, indivisible. Most importantly, Judge Trindade correctly noted that the Court missed an opportunity to interrogate more closely the power of states to waive rights (especially rights arising from jus cogens) that are not, ultimately, theirs to waive. All in all, he summed up the majority opinion as follows:

The Court’s decision … seems more open and receptive to the sensitivities of States than to the victimized human beings, subjected to deportation and sent to forced labour.

In his estimation, the counter-claims should have been declared admissible and then subject to a rigorous testing on the merits. Hear hear.

Guest Blogger: M.C. Sungaila

It's IntLawGrrls' great pleasure to welcome M.C. Sungaila (right) as today's guest blogger.

M.C. joined the firm of Horvitz & Levy, Encino, California, in 1997, and became a partner in 2003. She earned her B.A. with multiple honors from Stanford University and her J.D. from the University of California, Los Angeles, then clerked for Judge Alicemarie H. Stotler of the U.S. District Court for the Central District of California and Judge Ferdinand F. Fernandez of the U.S. Court of Appeals for the Ninth Circuit.
An appellate specialist, M.C. has consistently helped secure important rights for women and girls internationally, nationally, and throughout California. She's served as pro bono counsel of record for amici in, or consulted on, more than 17 women’s and civil rights cases before the U.S. Supreme Court, the Inter-American Commission on Human Rights, the Inter-American Court on Human Rights, and the California Supreme Court and Courts of Appeal. Recognitions of M.C.'s work include listings in the Best Lawyers of America (2010) and the Top 50 Southern California Female Super Lawyers (2008-2010), as well as profiles in the Los Angeles Times and National Law Journal.

Along with David S. Ettinger, a colleague at Horvitz & Levy, M.C. filed a brief in the Inter-American Court of Human Rights on behalf of Amnesty International and more than 50 other groups and legal experts in Campo Algodonero, involving violence against women in Ciudad Juárez. She analyzes the Inter-American Court's decision in her guest post below.

M.C. dedicates her IntLawGrrls contribution to the women of Ciudad Juárez who fought for dignity, respect, and justice for decades and at great personal cost. She calls special attention to 2008 Mexican National Human Rights Award winner Esther Chávez (left), who was one of the first to discover the widespread murder of young female factory workers, advocate for their murders and disappearances to be investigated, and founded Casa Amiga (the region’s first rape crisis and domestic violence center). (photo credit) Born in Chihuahua, Mexico, in 1933, Chávez died in Ciudad Juárez on Christmas Day 2009, weeks after the Campo Algodonero decision became public.

Towards holistic transnational protection against kidnapping: public law approaches

(Thank you to IntLawGrrls for the invitation to provide a guest post based on a forthcoming article of mine)

My most recent area of research is the global criminal phenomenon of kidnapping as it relates to an increased presentation of asylum claims in the United States, Canada, Belgium, France, United Kingdom and New Zealand.
This most striking aspect of this problem is that the private market is both part of its origin and part of its solution.
Inequitable enjoyment of socio-economic resources and the exclusion from participation in formal markets prompt marginalized individuals to pursue the criminal market of kidnapping, in which the human body becomes the ultimate commodity. In turn, corrupt and ineffective judicial bodies and police leave family members little choice but to employ private security and insurance companies. This creates a growth industry based on safe return of victims.
At the international level, there has been increased attention, not only from the UN Economic and Social Council, but also from UN Secretary-General Ban Ki-moon (above right), who declared in 2009:

Kidnapping is an inhumane and unjustifiable crime, as well as a gross violation of international human rights and humanitarian law.

Among the related human rights at stake, one may cite:
► guarantees of liberty, physical integrity and security, and the prohibition of arbitrary detention, as detailed in Article 9 of the International Covenant on Civil and Political Rights;
► the right to life, as in Article 6 of the ICCPR;
► the prohibition against torture, in Article 7;
the ban on interference with family, Article 17; and
► protection against sexual violence, established in, for example, the November 16, 2009, judgment (available in Spanish) by the Inter-American Court of Human Rights in Gonzalez et. al. v. Mexico.
Indeed, the most relevant case law has emerged at the regional level, where the focus is on state responsibility for investigating and punishing kidnappers.
The Inter-American Court thus issued 2 notable provisional orders, in:
► In the Matter of the Communities of Jiguamiandó and Curbaradó, a case involving the kidnapping and murder of a manm allegedly via complicity by police and paramilitary; the order called for State investigation, identification of perpetrators, and punishment; and
► In the Matter of the United States of Mexico Digna Ochoa y Plácido et. al., in which the order called upon the State to protect the lives of human rights activists who had been subject to kidnapping.
Similarly, the Inter-American Commission on Human Rights has repeatedly condemned kidnapping by nonstate actors in countries including Colombia, Guatemala, El Salvador, Venezuela, and Brazil.
In like manner are decisions of the European Court of Human Rights:
► In the case of Avsar v. Turkey, the Court held Turkey to be in violation of Articles 2 (right to life) and 13 (effective remedy) of the European Convention on Human Rights, for failing to carry out adequate and effective investigation in a case involving the kidnapping and killing of a man by village guards with complicity by the state.
► The Court held Russia liable for violation of the same articles in Elmurzayev and others v. Russia and Khadzhialiyev and others v. Russia, cases involving kidnappings by “unidentified armed men” and subsequent delays by the state in investigation and proceedings respecting those crimes.
In large part, the international community’s response to the global threat of kidnapping is reflected in the innovative institutional trend towards horizontal and vertical cooperation across the public-private divide. Initiatives to combat the spread of kidnapping include assistance in border control, intelligence-sharing, police training, and management (seeking transparency, accountability, and professionalization), telecommunication interception, assistance in legislative amendments, extradition, and overview of financial transactions.
Furthermore, there are increased calls for strengthening citizen and community participation in the implementation of security plans. The European Council issued Recommendation 2007/562/EC of 12 June 2007, which requires states to share information in all terrorist kidnappings. Similarly, the need for international cooperation to address crime (including kidnapping) has been promoted by the Organization of American States Permanent Council’s Special Committee on Transnational Organized Crime and the Ministers Responsible for Public Security.

It is important to note issues of continuing concern:
► We still await the establishment of implementation mechanisms for the UN Convention Against Transnational Organized Crime; and
► None of these initiatives highlights the importance of asylum, for victims and their families, as an element of holistic protection.

Look On! Films on the Juárez femicides

(In this Look On! post, Part 2 of a 2-part series, guest blogger Regina Austin reviews documentaries concerning the epidemic of violence known as the Juárez femicides. The series' 1st post, by guest blogger Caroline Bettinger-López, is here.)

As detailed in yesterday's post, the Inter-American Court of Human Rights has ruled against Mexico in a gender discrimination case involving three young women whose bodies were found in a field across the street from the Association of Maquiladoras in Ciudad Juárez, Mexico. Their stories as told by their mothers would be familiar to anyone who has seen the most noteworthy documentaries made about the scores of young women who have disappeared or been murdered in Juárez since 1993.
These documentaries are invaluable for illuminating the context surrounding the so-called Juárez femicides. I examine the films in depth in "Women's Unequal Citizenship at the Border: Lessons from Three Nonfiction Films about the Women of Juárez," a chapter in Gender Equality: Dimensions of Women's Equal Citizenship (Linda McClain & Joanna L. Grossman eds., 2009) that's available online here and here. As I describe in that chapter, the films take viewers back to the beginning, as it were, back to the time when:
► Social and economic upheaval made the young women of Juárez especially vulnerable to deadly violence;
► Criminal investigations of their murders were botched because of incompetence and corruption at every level of government, without regard to which party was in power; and
► Female relatives of those who had been kidnapped and killed were forced to become human rights activists and civic leaders in the effort to assure that the victims got due respect.
Early on, it was assumed that the victims were targeted because they were workers in the maquiladoras, and that the murders were a response to the upheaval in social and economic relations that globalization and immigration were bringing to the border between the United States and Mexico. Foreign-owned factories were magnets for single young mestizo women from the south of the country. As a result, Juárez experienced tremendous unplanned growth. Housing without adequate municipal services sprang up in the desert. The lack of reliable transportation proved particularly dangerous for young women who went to work early and came home late. While manufactured goods traveled legally from south to north, people did not. Juarez became a staging area for illegal immigration to the United States. As gender relations changed along with the population, bars and clubs catering to the female workers brought them into contact with transients and criminals willing to take advantage of the women's social, economic, and political weaknesses.
This scenario is reflected in Performing the Border (1999), directed by the Swiss artist Ursula Biemann (below right), which offers a postmodern take on the physical and metaphysical boundary between Texas and Juárez, Mexico. (credit for above left still from this film) However, the explanatory power of globalism and the exploitative fragmentation of the female body that the director found reflected in factory work and the work of a serial killer does not fully account for the hateful mass violence of the Juárez femicides.
Narcotrafficking and police corruption were most likely the sinister forces at the heart of the waves of murders. The Texas-Mexican border is important in this chronicle of death because it is a gateway to the largest illegal drug market in the world. Americans' insatiable taste for illegal narcotics and the violence and governmental corruption it breeds compromised the rights of women in Mexico and others whose interests were allied with them. This story of the Juárez femicides is complicated in a way that is ideal for documentaries to tell, given their ability to move visually between micro and macro explanations of social phenomena.
Thus, in the hands of Chicana Lourdes Portillo (below left), director of Señorita Extraviada (Missing Young Woman) (2001), the dead and disappeared young women cease to be anonymous and fungible victims of not only misogyny but also xenophobia, racism, and classism, at the same time that their female relatives are transformed from mothers, aunts, and sisters into committed civic leaders and political activists before our eyes.
Finally, La Batalla De Las Cruces (Battle of the Crosses) (2005), which is directed by Mexican social scientists Patricio Ravelo Blancas and Rafael Bonilla Pedroza, attempts to list or catalogue the myriad complex intersecting sets of public and private actors who, with massive amounts of private money and political power at their disposal, managed to directly or indirectly violate the human rights of scores of young Mexican women, their families and defenders, falsely accused defendants, their murdered lawyers, and journalists without anyone being held accountable.

Guest Blogger: Caroline Bettinger-López

It's IntLawGrrls' great pleasure to welcome Caroline Bettinger-López (left) as today's guest blogger. She contributes, below, the 1st post in a 2-part series concerning gender violence in Ciudad Juárez; specifically, an analysis of the recent Inter-American Court of Human Rights decision against Mexico. Tomorrow, in Part 2, guest blogger Regina Austin will review films treating that epidemic of violence.
Carrie is the Deputy Director of the Human Rights Institute and a Lecturer in Law and Clinical Staff Attorney for the Human Rights Clinic at Columbia Law School in New York City.
Carrie's research, activism, and teaching focus on international human rights law and advocacy, including the implementation of human rights norms at the domestic level. She devotes particular attention to Latin America and the United States, with particular respect to violence against women, gender and race discrimination, and immigrants’ rights.
Before joining Columbia, Carrie clerked for U.S. District Judge Sterling Johnson Jr., Eastern District of New York, and worked as a Skadden Fellow at the American Civil Liberties Union's Women’s Rights Project. As mentioned in her post below, she's filed Jessica Gonzales v. United States before the Inter-American Commission on Human Rights, on behalf of a domestic violence victim whose three children were killed after police in Colorado failed to enforce a restraining order against her estranged husband.
Carrie earned her J.D. from Columbia, and also holds a B.A. in anthropology from the University of Michigan.
Heartfelt welcome!

Inter-American Court rules against Mexico on gender violence in Ciudad Juárez

(In this post, Part 1 of a 2-part series on the "Juárez femicides" case, guest blogger Caroline Bettinger-López analyzes a recent judgment by the inter-American human rights court. Tomorrow, in Part 2, guest blogger Regina Austin will review films about the epidemic of violence at issue before the court.)

The Inter-American Court of Human Rights has issued an important decision, in Spanish, in Caso González y otras v. México, known familiarly as the Campo Algodonero case.

Campo Algodonero concerns three in a fifteen-year series of hundreds of unsolved and poorly investigated disappearances, rapes, and murders of young, predominantly migrant women and girls in Ciudad Juárez, a Mexican city of 1.5 million people just across the border from El Paso, Texas.

In its decision handed down at the end of 2009, the Inter-American Court (logo above; courthouse below left) ruled that Mexico had violated both the 1978 American Convention of Human Rights and the 1994 Inter-American Convention on The Prevention, Punishment And Eradication of Violence Against Women, known as the Convention of Belém do Pará in recognition of the Brazilian city where it was adopted. It thus ordered Mexico to comply with a broad set of remedial measures, including a national memorial, renewed investigations, and reparations of over $200,000 each to the families in the suit.The decision is important for a number of reasons, including that, for the first time, the Court:

► Considered states’ affirmative obligations to respond to violence against women by private actors;

► Looked at the cases at issue in the context of mass violence against women and structural discrimination; and

► Found that gender-based violence can constitute gender discrimination.

By way of background, Professor Rhonda Copelon (left), CUNY School of Law, gave testimony testified as an expert in the case, and over 50 U.S.-based amici submitted a brief in the case, arguing that the longstanding failure to investigate, prosecute, or prevent the crimes in this case violated Mexico’s obligations under international human rights law. The arguments set out in Rhonda’s testimony and the amicus brief are clearly reflected in the Court’s decision.

(Note that the Campo Algodonero decision is directly relevant to the case of Jessica Gonzales v. United States, which has been filed with the Inter-American Commission of Human Rights by the Human Rights Institute at Columbia Law School, for which I am Deputy Director. This litigation on behalf of Jessica (right) (subsequent to the U.S. Supreme Court's decision in Castle Rock v. Gonzales (2005)) concerns the question of government’s affirmative obligations to protect domestic violence victim-survivors and their children from known risks posed by the perpetrators of domestic violence. (photo credit))

In this post, I set forth key points from the Campo Algodonero decision (a fuller summary is here). Page references are to the Spanish-language decision; an English version is expected soon.

The Court's jurisdiction
The Court concluded (p. 10) that it had jurisdiction over claims brought under Art. 7 of the Convention of Belém do Pará, which provides that states must condemn all forms of violence against women and agree to pursue, by all appropriate measures,

and without delay, policies to prevent, punish and eradicate such violence
through legal, legislative, administrative, and policy initiatives.

The Court futher concluded, however, that it did not have jurisdiction over claims brought directly under that Conventions' Article 8 -- by which states “agree to undertake progressively specific measures” to eradicate violence against women -- or 9 -- by which states “shall take special account” of vulnerable groups of women. The Court emphasized that Article 12 of the Convention provides specifically that the petition system focuses exclusively on Article 7. Still, the Court found that the various articles of the Convention -- including Articles 8 and 9 -- can be used to aid interpretation of Article 7 and of other pertinent Inter-American instruments.

This last pronouncement is important for future advocacy. The programs outlined in Article 8 give definition and specificity to the legal, legislative, policy, and administrative measures for eradicating violence against women that are specified in subsections (c), (e), and (h) of Article 7. Moreover, the measures articulated in Articles 7 and 8 should arguably be tailored to take “special account” of vulnerable groups of women, as per Article 9. Although the Court did not explicitly refer to Articles 8 and 9, they clearly were present in spirit.

Substantive law violations
The Court found (p. 30) that Mexico had violated numerous international legal obligations. Violated provisions of the American Convention included:

► Article 4, life

► Article 5, personal integrity

► Article 7, personal liberty

► Article 19, child

► Articles 8 and 25, judicial protection and due process

► Article 1.1, obligation to respect rights

► Article 2, duty to adopt domestic legal effects

The Court rejected the petitioners’ allegations of Mexico’s violation of Article 11, dignity and honor.

Violated provisions of the Convention of Belém do Pará included:

► Article 7(b), due diligence to prevent, investigate and impose penalties for violence against women

► Article 7(c), penal, civil, administrative provisions to prevent, punish and eradicate violence against women

In considering the violations, the Court reiterated the elements of due diligence originally articulated in the Court's seminal case, Velásquez Rodríguez (1988). By paragraph 236 of that case, relevant to the question of state responsibility for human rights violations committed by private actors are the duties to prevent, investigate, punish, and compensate. The Court further considered the element of discrimination that overlaid all these substantive law violations.

Reparations

The Court ordered vast reparations (p. 113), “keeping in mind the context of structural discrimination in which the facts took place.” With respect to investigation, the Court in paragraph 455 ordered the State to:

► Remove all obstacles to a full investigation;

► Include a gender perspective in the investigation;

► Provide resources necessary to the organs or individuals participating in the investigation to do an adequate, independent and impartial investigation; and

► Publicly announce the results of the process to Mexican society.

With respect to means of satisfaction, the Court ordered remedial measures including publication of the sentence, a public ceremony where the State recognizes responsibility, and a national memorial to the victims.

With respect to guarantees of non-repetition, the Court pointed in paragraph 495 to the lack of data and information that would allow it to evaluate the actions that Mexico has taken to respond to the problem in Juarez. The Court in paragraph 502 then ordered Mexico to:

► Standardize protocols used to investigate crimes related to disappearances, sexual violence, and murders of women, in conformity with international standards that include a gender perspective;

► Create a website and database of genetic information containing information pertaining to the disappeared/murdered women/girls; and

► Implement educational courses and capacity-building programs in human rights and gender.

With respect to the guarantees of rehabilitation, the Court ordered the State to offer free medical, psychological, and psychiatric care to the victims’ families.

With respect to indemnization/compensation, the Court ordered Mexico to pay over $200,000 each to the families in the suit, for material and moral harm.

Sources of fact and law

Interestingly, the Court looked to a variety of sources of fact and law in its decision (p. 39), including reports produced by the Inter-American Commission, the CEDAW Committee, the U.N. Special Rapporteur on Violence Against Women, Amnesty International, the Mexican government’s Commission to Prevent and Eradicate Violence Against Women in Ciudad Juárez, and decisions from the European Court of Human Rights, such as Opuz v. Turkey (2009) (prior IntLawGrrls post). It was not necessary for the Court to do this, since it is a court of law. Doing so is a positive sign, as it indicates that if there is an international trend, the Court might be willing to follow it.

Gender-based violence and discrimination
As the Court undertook its legal analysis, it continually referred (pp. 39, 63, 116) to the general phenomenon of epidemic levels of violence against young women in Juárez, and linked this context of violence against women to gender discrimination.

Judge Medina’s concurring opinion

Also noteworthy was one of the two concurring opinions filed along with the principal Campo Algodonero judgment; specifically, the concurrence by a jurist about whom IntLawGrrls previously have posted, Judge Cecilia Medina Quiroga (right), a Chilean law professor and expert on the law pertaining to violence against women. Medina’s concurrence argued that the Court should have found a violation of the prohibition against torture found in Article 5.2 of the American Convention.

Arrests and Convictions of Rights Violators in Latin America: Justice Delayed but Not Denied

Simultaneous advances in the prosecution of grave international crimes by national courts took place in Guatemala and Chile yesterday.

Chile
In Chile, Investigating Judge Victor Montiglio issued arrests warrants for 129 former associates of the secret police (DINA) during the Pinochet years. The warrants involve members of all three branches of the military as well as the police, accused of working with the DINA to forcibly disappear suspected opponents of the government of General Augusto Pinochet during the 1970s. The cases on which the warrants are based include the forced disappearance of top leaders of the Communist Party, the killing of members of the Movement of the Revolutionary Left, which at the time was portrayed as a result of internecine war within the left, and killings and disappearances as a result of Operation Condor, the South America-wide coordinated effort by the military regimes (with U.S. backing) to rid themselves of leftist activists. The judge indicated that he is pursuing anyone who was involved in the crimes, not just those “most responsible.”
A few interesting issues raised by the warrants:
► First, technically, Chile still has an amnesty law in place, and the center-left governments that succeeded Pinochet have been unable to overturn or “interpret” the law legislatively despite a clear decision by the Inter-American Court of Human Rights, in Caso Almonacid Arellano y otros v. Chile (2006), that the government must do so. Rather, the judiciary has itself interpreted the amnesty law so that it does not apply in cases involving either forced disappearances or other international crimes. The amnesty has not stopped indictments, trials and convictions (nor has the statute of limitations on the crimes, which has been held not to apply to either continuing crimes or crimes against humanity). Rather, Chile's Supreme Court, in a number of cases starting last year, has allowed convictions but then reduced the sentence greatly as a result of a procedural device called “half prescription.” Under this device, because the cases have taken so long to go forward, the defendant gets the applicable sentence reduced, and the aggravating factors that would otherwise increase the sentence do not apply. In a number of cases, convictions for the disappearance of sizable numbers of people have led to 3-to-7-year sentences: any sentence less than 5 years can be served on parole. This has led to an interesting debate in Chile:
► Is it better to convict but not punish the former security forces (most now quite elderly), or is that yet another affront to the victims?
This debate is sure to recur as the current crop of cases comes to trial.

Guatemala
In Guatemala yesterday, a trial court convicted Felipe Cusanero of 6 counts of enforced disappearance in the early 1980s. Cusanero was a military commissioner (local army representative) from Chimaltenango province outside the capital. He was sentenced to 25 years in prison for each count. The victims were Mayans from the village of Choatulún, and the disappearances were part of an estimated 200,000 deaths and 40,000 disappearances that took place from 1960 to 1996 in Guatemala. This is the first time a local court has convicted a military participant in the massacres that took place in the early 1980s, and the first time the Public Prosecutors’ office has successfully led a prosecution of crimes from that era. The three judges ruled that to condemn the accused on grounds of forced disappearance did not violate the prohibition on ex post facto law, since the underlying acts have long been criminal in both national and international law. The case was closely watched in the Guatemalan courts as a possible small break in the almost-total impunity that now exists for those who ordered and participated in massacres and widespread and systematic disappearances and torture during the “internal armed conflict” period. The judges -- Walter Paulino Jiménez Tixaj, Alba Delia Moscoso Linares y Neslie Guisela Cárdenas Bautista – showed tremendous courage in their verdict, given threats against them, and against any judge who dares hear witnesses or evidence about genocide or crimes against humanity in Guatemala.

So ... a good day for the fight against impunity for international crimes in the Americas. Eric Holder, are you listening?

Reparations for "terrorists"?

(In this guest post, Lisa Laplante discusses her recent article examining whether the award of reparations victims of human rights violations turns on the status of those victims.)

Should victims of human rights violations with alleged or certain ties to groups that use terrorism receive reparations? This complex and sensitive dilemma has begun to arise in countries implementing reparation programs pursuant to the recommendations of their truth and reconciliations commissions.
Reparations law has special relevance to the transitional justice paradigm, as countries seek to respond to widespread human rights abuses — situations in which the line between victim and perpetrator often blurs. New case studies reveal the serious challenges of implementing administrative plans of reparations that first require that recipients be qualified. While some issues are purely technical and logistical, others — those that hold potential to generate new forms of harm and even new rights violations — beg further discussion and clarification. Certainly, as the recognition of the right to reparation grows, so do the legal issues pertaining to its practical application. In the realm of international human rights law, new cases offer opportunities to continue defining the parameters of this right, as noted in an ever-growing jurisprudence with respect to remedies law. Such is the case with equity's Clean Hands Doctrine, which dictates that an injured party's wrongdoing may limit his or her claim to reparations. When applied in cases in which victims of human rights violations seek relief, however, this doctrine conflicts directly with the well-established legal principle of nondiscrimination.
Should a person's innocence or guilt factor into whether he or she deserves to be repaired?
In answering this question, it is important to ask some others:
► What actions, allegiances and beliefs constitute a basis for exclusion, as well as what the standard is for determining wrongdoing-such as a firm criminal conviction or mere allegations?
► What if a person suffered torture, rape, unjust imprisonment and perhaps even was disappeared or killed, but was alleged to have connections to "subversive" and "terrorist" organizations, sometimes called "illegally armed groups"?
► Who determines whether such a person qualifies as a victim with a right to reparations?
There is only limited and inconsistent jurisprudence on the Clean Hands Doctrine in international law. In this article I argue that, in relation to human rights law, the Clean Hands Doctrine does not and should not apply. The very nature and purpose of human rights protections and guarantees protect against as much state abuse and domination as against state negligence. Thus, a state’s failure to observe international norms should result in the victim received a remedy for harm suffered regardless of the status of the victim. A contrary standard would read that, but for the wrongful conduct of the person, he or she would not be subject to state control, and thus would not have suffered harm. In other words, a person who committed a wrong would lose the protections enjoyed by “non-delinquents.” This would create a two-class tier of rights holders.
Given that the overarching purpose of human rights protection is to curb state abuse, one could argue that carving out exceptions where human rights violations have no consequences presents a worrisome precedent. Arguably, this approach has been assumed by the organs of the inter-American system, including the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights (below left). Although neither of these international human rights bodies has ruled directly on the issue, decisions issued by each suggest that neither body considers the character or status of the victim as a factor relevant to the determination of reparations. In effect, this reading supports the general rejection of the Clean Hands Doctrine in relation to reparations for human rights violations.
Nonetheless, states that have confronted politically divisive transitions from repressive regimes and internal armed conflict have not necessarily assumed this general rejection of the Clean Hands Doctrine.
For example, a transitional justice project was launched in 2001 by Peru's Truth and Reconciliation Commission (above right). (photo credit) Formed in the wake of twenty years of internal armed conflict between the state and illegally armed groups, the Commission presented its Final Report in 2003, and included recommendations for a Plan Integral de Reparaciones (Integral Plan of Reparations), which adopts a partial rejection of the Clean Hands Doctrine. Yet, as the Peruvian government now attempts to implement this Plan, it confronts the controversial and divisive issues related to how it can, and must, approach victims of state abuse who allegedly have, or had, ties to illegally armed groups. Due to political pressure, the national legal norms codifying the Plan include exclusionary clauses that reflect a full adoption of the Clean Hands Doctrine.
Peru's policy has generated much tension with respect to the implementation of the law. The situation grew more contentious when the inter-American system ordered reparations for survivors/victims of a massacre that occurred in 1992, during a state lockdown of a prison in which persons were held on suspicion of terrorist activity (many had not been convicted). This case, Miguel Castro Castro Prison v. Peru (2006), threatened to unravel the implementation of domestic reparations.
Local rejections of equitable reparations present serious political challenges for emerging democracies as they attempt to build the rule of law and respect for human rights.

On this day

On March 13, ...
... 1949, Rt. Hon. Dame Sian Elias (left) was born in London, England, the daughter of a father of Armenian heritage and a mother of Welsh heritage. Educated at Auckland University in New Zealand and Stanford University in the United States, she became a barrister in Auckland in the early 1970s. Appointed a Queen's Counsel in 1988 and a High Court judge in 1995, she became New Zealand's 1st woman Chief Justice, a position she holds to this day, in 1999. That same year she was named Dame Grand Companion of the New Zealand Order of Merit and appointed to the Privy Council. She also serves as Administrator of the Government, the person who would assume the duties of the Governor-General, the "personal representative of" the "Head of State, Queen Elizabeth II of New Zealand," if the Governor-General should be unable to perform those duties.
... 1979, "members of the New Jewel party, a left-wing opposition group" in parliament, staged a coup d'état in Grenada, a Caribbean island state. The group's leader, Maurice Bishop, would govern until October 1983, when he was killed by "supporters of his deputy, Bernard Coard, who resented attempts to mend bridges with the US," according to BBC, which added that "[l]ater that month 6,000 US troops invaded Grenada." Detention occurring during the 1983 military action was held violative of the 1948 American Declaration of the Rights and Duties of Man in Coard v. United States, a 1999 decision of the Inter-American Court of Human Rights about which I've written here.

On January 29, ...

... 1978 (30 years ago today), Sweden became the world's 1st country to ban aerosol sprays, which contain chlorofluorocarbons believed to deplete the ozone layer and thus harm the global environment.
... 2007, an Associated Press story entitled Mujeres aumentan presencia en Corte Interamericana reported that the Inter-American Court of Human Rights (right) began its 1st session of the year with 3 new judges. In an historic first, the panel comprised 3 women judges: Margarette May Macaulay of Jamaica and Rhadys Abreu Blondet of the Dominican Republic, both new, who joined the lone woman already on the Court, Cecilia Medina Quiroga of Chile.

IntLaw/Women & WikiVisibility

The excellent post from Nanny of the Windward Maroons on women leaders in Jamaica, coupled with Eleanor Roosevelt's comment on same, touched off a search for more information about the women who serve on the Inter-American Court of Human Rights (above).
Found precious little: Court-supplied biographies of Judges Rhadys Abreu Blondet, Dominican Republic (top row, 2d from right), Margarette May Macaulay, Jamaica (top row, 2d from left), and Cecilia Medina Quiroga, Chile (front row, left) are sparse, and devoid of individual photos.
A Westlaw search revealed almost nothing on the session at which the Court's 7-member bench included, for the 1st time, 3 women: "Mujeres aumentan presencia en Corte Interamericana," a January 29, 2007, Associated Press-Spanish dispatch, appears not to have been picked up by any newspaper. A bit more searching turned up a bit more information on 2 of the 3: Macaulay, a Sierra Leone-born and England-educated human rights lawyer, and Medina, a human rights law professor who's served on the U.N. Human Rights Committee and is the Court's Vice President. No luck with Abreu.
Such Web-absence helps make invisible the role that law plays in the international system, not to mention the role that women play within the international legal system. Here's 1 way to raise the public profiles of both, courtesy of Legal History Blog: contribute to Wikipedia, a Web-ubiquitous source of information that's reportedly eager to augment its international law offerings. (As it stands, there's a Wiki entry on the Inter-American Court, plus a blurb on Medina, but nothing on the Court's other 2 women.)
A research project for all those I/L students soon to return to campus, perhaps?