Harris, Terri J.

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Human Rights BriefVolume 8 | Issue 1 Article 72000News From the Inter-American SystemTerri J. HarrisAmerican University Washington College of LawFollow this and additional works at: http://digitalcommons.wcl.american.edu/hrbriefPart of the Human Rights Law Commons, and the International Law CommonsThis Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ AmericanUniversity Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons@ American University Washington College of Law. For more information, please contact fbrown@wcl.american.edu.Recommended CitationHarris, Terri J."News From the Inter-American System." Human Rights Brief 8, no. 1 (2000): 17-18.17by Terri J. Harris *Inter-American Commission CasesCase Gary T. Graham, now known as Shaka Sankofa (United States)Facts: In October 1981, Shaka Sankofa was convicted of cap-ital murder and sentenced to death in the State of Texas.Sankofa was 17 years old at the time of the offense. The Inter-national Human Rights Law Clinic at the Washington Collegeof Law filed a petition on behalf of Sankofa with the Inter-American Commission on Human Rights (Commission) onApril 26, 1993. The petition asserted a violation of the right tolife, liberty and personal security (Article 1), the right to equal-ity before the law (Article 2), the right to a fair trial (Article 18),and the right to due process of law (Article 26) under theAmerican Declaration of the Rights and Duties of Man. As a pre-caution, the Commission requested Texas to ensure a stay of exe-cution and grant Sankofa a full and fair hearing before the TexasBoard of Pardons and Paroles.Decision: On June 15, 2000, the Commission declared thepetition admissible. The findings on admissibility stated thatSankofa had exhausted all available domestic remedies or elsehad been prohibited from petitioning by domestic legislation.The Commission further held that the 19-year delay in the exe-cution and his age at the time of the offense eliminated any rea-sonable prospect of success in a domestic court.Caso Caloto Massacre (Colombia)Facts: On December 16, 1992, a petition was filed on behalfof members of the Paez indigenous community of the northernCauca region of Colombia against the Colombian State for theCaloto Massacre. The massacre resulted from a dispute over theEl Nilo hacienda between the Paez community and the SociedadAgropecuaria Piedra Blanca company, which purchased the landknowing it was inhabited by the Paez. The petitioners claimedColombia violated the right to life (Article 4), the right tohumane treatment (Article 5), the right to personal liberty(Article 7), the right to a fair trial (Article 8), and the right tojudicial protection (Article 25) read in conjunction with Arti-cle 1(1) of the American Convention on Human Rights (Con-vention). Prior to the massacre, members of the indigenous com-munity were harassed by company representatives and armedmen for refusing to abandon the land in exchange for paymentfor their houses and improvements made to the land. TheState conceded that on the night of December 16, 1991, mem-bers of the National Police, along with heavily armed civilians,went to the El Nilo hacienda, executed the leaders of the com-munity, and shot others trying to flee. Before leaving, the armedmen also burned the houses and property of the Paez.Decision: While the parties originally agreed to a friendly set-tlement procedure according to Article 48(f) of the Conven-tion, by October 1998 the petitioners asked the Commission toissue a ruling on the merits. The petition was considered admis-sible in light of the explicit acknowledgement by the State of itsresponsibility for the massacre. The Commission interpretedthe rights in the Convention in the context of the specific rightsof indigenous communities found in the International LaborOrganization’s 1989 Convention 169 on Indigenous and TribalPeoples, the Inter-American Charter of Social Guarantees (1948),and the Commission’s 1996 resolution on Special Protection forIndigenous Peoples. The Commission ruled the State violated theright to life (Article 4), the right to physical integrity (Article 5(1)),the right to personal liberty (Article 7), and the right to a fair trialand to judicial protection as provided for in Articles 8 and 25 ofthe Convention, respectively. The State also failed to respectand ensure all rights in the Convention under Article 1(1) by nottaking measures to prevent the massacre, even after members ofthe Paez community reported threats made against them. TheCommission recommended Colombia investigate and punishthose responsible for the massacre, make both monetary and socialreparations benefiting the entire Paez community, and adopt mea-sures to prevent future massacres.Caso Carmelo Soria Espinoza (Chile)Facts: On February 15, 1997, the daughter of Carmelo SoriaEspinoza filed a complaint with the Commission against the Stateof Chile alleging a violation of the right of access to justice. In July1976, while working for a UN agency, Soria was kidnapped byagents of Chile’s National Intelligence Agency (DINA), arbitrar-ily detained, tortured, and later executed. In 1995, the ChileanSupreme Court of Justice confirmed Soria was murdered andidentified the state agents responsible. The Supreme Court, how-ever, later terminated the criminal proceedings and declared the1978 Amnesty Law (Decree Law Number 2.191) prevented theprosecution and punishment of those responsible. The petitionrequested the Commission declare the Amnesty Law incompati-ble with Chile’s international obligations under the Convention.Decision: On November 19, 1999, the Commission declaredthe Amnesty Law in Chile violated the State’s obligations underArticle 1(1) and 2 of the Convention. In applying the AmnestyLaw to the disappearance and murder of Soria, the State violatedthe rights of judicial protection and access to justice underArticles 1(1), 2, 8, and 25 of the Convention. Pursuant to Arti-cle 29 of the Convention, the Commission also determinedthe State had violated Article 2(1) of the Prevention and Pun-ishment of Crimes against Internationally Protected Persons. TheCommission recommended the State prosecute and punishthose responsible for the murder of Soria and repeal the self-Amnesty Law. The Commission placed special emphasis onthe principles of individual criminal responsibility and univer-sal jurisdiction for grave human rights violations. The Com-mission concluded that if Chile could not fulfill its interna-tional obligation to prosecute those responsible, the State wouldautomatically be subject to universal jurisdiction. Case Desmond McKenzie, et. al (Jamaica)Facts: Six death row inmates at the St. Catherine DistrictPrison in Jamaica individually petitioned the Commissionbetween June 1998 and May 1999, claiming the mandatoryimposition of the death sentence in each of their cases violatedthe state’s obligation to respect rights (Article 1), the right tolife (Article 4), the right to humane treatment (Article 5), theright to personal liberty (Article 7), the right to a fair trial(Article 8), the right to equal protection (Article 24), and theright to judicial protection (Article 25) under the Convention.The Commission later consolidated the cases into one reportbased on the similarity of facts and the issues presented. The peti-tioners asserted that the process of requesting a pardon orNEWS FROM THE INTER-AMERICAN SYSTEMcontinued on next pageThe 19-year delay in the execution and hisage at the time of the offense eliminatedany reasonable prospect of success in adomestic court.1Harris: News From the Inter-American SystemPublished by Digital Commons @ American University Washington College of Law, 200018procedural provisions of the Rome Statute that distinguish theICC from U.S. common law procedures. First, the Rome Statuteprovides for the use of a fact-finding panel of judges rather thana jury (Articles 34, 39(2)(b)(ii), 74). As discussed above, historicU.S. treaty participation already subjects U.S. citizens to this pro-cedure. Second, verdicts rendered by the ICC are by a vote ofat least two judges (Article 74(3)). Finally, the ICC prosecutormay file an appeal based on errors of fact, law, and procedure(Article 81(1)(a)). Because U.S. citizens who commit crimesabroad are generally subject to the rules either of foreign courtsor of the U.S. military courts-martial system, it is safe to assumethat a U.S. citizen could encounter these same rules of proce-dure in a foreign country. In addition, U.S. courts-martial rulessimilarly stipulate that verdicts, in cases of acts resulting inunintentional civilian casualties or other unintentional harms,need not be rendered by a unanimous vote: “a finding of guiltyresults only if at least two-thirds of the members present vote fora finding of guilty” (R.C.M.921(c)(2)(B)). Further, the United States has the capacity to ensure the con-stitutionality of the ICC’s Rules of Procedure and Evidence(Rules) before committing itself to the provisions of the RomeStatute. At the signing of the Rome Statute, the Rome Confer-ence adopted Resolution F, mandating the establishment of aPreparatory Commission (PrepCom) to complete draft textscommutation from the Jamaican Privy Council violated theirright to apply for amnesty, pardon, or commutation of their sen-tence under Article 4(6) of the American Convention. TheJamaican Privy Council may pardon or commute a death sen-tence under Articles 90 and 91 of the Constitution of Jamaica,but prisoners have no procedural guarantees.Decision: On April 13, 2000, the Commission ruled Jamaicahad violated Articles 4(1), 5(1), 5(2), 8(1), and 4(6) of the Con-vention by disallowing the petitioners to present mitigatingevidence at an individualized sentencing hearing before impos-ing the death penalty. The Commission found the Jamaican PrivyCouncil’s power to grant a pardon or commute a death sentencedoes not serve as a form of judicial review because underJamaican law the petitioners have no effective right to apply forthis form of discretionary relief. The Commission recommendedthe State commute the death sentences and offer the petition-ers compensation. Additionally, the Commission recommendedJamaica adopt domestic legislation requiring the death penaltybe imposed only in accordance with the American Conventionand pass legislation allowing criminal defendants to apply foramnesty, pardon, or commutation of the death penalty.The “Second Report on the Situation of Human Rights in Peru”On June 2, 2000, the Commission issued the “Second Reporton the Situation of Human Rights in Peru” (Report), followingan on-site visit in November 1998. The Report described mea-sures implemented by the executive, legislative and judicialbranches of government, restricting the right of political par-ticipation of its citizens, as guaranteed by Article 23 of the Con-vention. The Commission criticized the Peruvian IntelligenceService’s (SIN) use of wiretapping, espionage and physical sur-veillance to harass and intimidate opposition presidential can-didates. In documenting the State’s interference in citizens’ par-ticipation in the political process, the Commission referred tocontentious cases from Peru currently under review, previouslydecided, or already submitted to the Inter-American Court ofHuman Rights. These included the Case of Mariela Barreto Rio-fano, the Case of Susana Higuchi Miyagawa, and the Case of BaruchIvcher Bronstein.The Commission also reviewed reports by the Organization ofAmerican States Electoral Observation Mission, the Commis-sion’s Rapporteur for Freedom of Expression, the PeruvianHuman Rights Ombudsman, and non-governmental organizationswithin Peru that observed the April 9, 2000, presidential and leg-islative elections. These reports documented serious abnormal-ities and persistent inequities in the voting process, including thetallying of the votes. Consequently, the Electoral Observation Mis-sion and other election monitoring organizations decided againstobserving the second round of elections on May 28, 2000, whichultimately declared Fujimori the winner of the presidency. TheCommission concluded the 2000 elections were not free andfair in light of international standards enshrining the right of polit-ical participation. The Commission further held that Peru shouldhold another election, guaranteed to be free and fair, within areasonable time period, to uphold the rule of law and guaranteethe right of political participation. As of November 27, 2000,Fujimori has resigned the presidency and been replaced by for-mer congressman Valentin Paniagua. * Terri J. Harris is a J.D. candidate at the Washington College ofLaw. Inter-American System, continued from previous pageThe Commission criticized the PeruvianIntelligence Service’s (SIN) use ofwiretapping, espionage, and  physical surveillance to harass and intimidate opposition presidential candidates.The Global Court, continued from page 16 Ratifications of the ICC Statute as of November 2000.COUNTRY DATE OF RATIFICATIONSenegal February 2, 1999Trinidad and Tobago April 6, 1999San Marino May 13, 1999Italy July 26, 1999Fiji November 29, 1999Ghana December 20, 1999Norway February 16, 2000Belize April 5, 2000Tajikistan May 5, 2000Iceland May 25, 2000Venezuela June 7, 2000France June 9, 2000Belgium June 28, 2000Canada July 7, 2000Mali August 16, 2000Lesotho September 6, 2000New Zealand September 7, 2000Botswana September 8, 2000Luxembourg September 8, 2000Sierra Leone September 15, 2000Gabon September 21, 2000Spain October 25, 2000continued on  page 302Human Rights Brief, Vol. 8, Iss. 1 [2000], Art. 7http://digitalcommons.wcl.american.edu/hrbrief/vol8/iss1/7

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