Human Rights Developments
The states of the hemisphere must adopt effective measures to prevent future human rights violations and to punish abuses by agents of the state and those operating with official acquiescence. Just as it is unacceptable for a state to adopt torture or disappearance as official policy, a government may not condone such violations or decline to protect those subject to its jurisdiction. Nearly every state in the region has assumed the affirmative obligation under international law to secure the unconditional exercise of the rights enshrined in that law. They have thus assumed the responsibility to bring domestic legislation into accord with international human rights standards and develop independent and impartial judiciaries capable of prosecuting and punishing the perpetrators of human rights violations.
The spread of institutional democracy in the region has given national legislatures unparalleled opportunities to enact human rights reforms and to provide oversight of state security agencies, a challenge that has yet to be met. In 1995, most civilian governments in the region had yet to reform penal codes to criminalize explicitly human rights violations such as torture, disappearances, and extrajudicial executions; guarantee due process; restrict the jurisdiction of military courts; and repeal desacato (contempt) laws and other legislative artifacts of authoritarian regimes that penalize the free expression of ideas. Further, national legislatures did not exercise sufficient diligence in bringing human rights considerations to bear on the foreign policy of their governments.
Frequently, judiciaries in the hemisphere abdicated their central role in the defense of rights. Judicial authorities took an excessively formalistic view of their role, forgetting that procedural requirements are a means of reaching justice and not justice in themselves. Their failure to take even minimal steps to protect people whose rights were violated guaranteed impunity for the perpetrators of abuses. Peru's "faceless courts" and secret military tribunals, for example, robbed civilians accused of terrorism or treason of their most basic due process guarantees. Colombia's secret "public order" courts, used to prosecute individuals charged with rebellion and drug trafficking, raised similar due process concerns. In Chile, the judiciary, especially the Supreme Court, remained ineffectual, with the notable exception of the prosecution of the security police officers responsible for the 1976 slaying of Orlando Letelier and Ronni Moffitt in Washington, D.C. Fear of the army permeated the Guatemalan judicial system, rendering it incapable of resolving disappearances and extrajudicial executions. Disorganization and a lack of resources plagued the Haitian judiciary, which had not prosecuted any member of the armed forces by November 1995.
Military justice systems, which failed in most cases to meet international standards of impartiality and independence, continued to foster a climate of impunity for perpetrators of human rights violations. In Peru, military courts achieved a near-perfect conviction rate against civilians (97 percent in 1994), while compiling an equally impressive acquittal rate when judging soldiers accused of human rights violations.
A Human Rights Watch/Americas review of internal Mexican army documents on the 1994 Ocosingo clinic massacre in Chiapas found military prosecutors more interested in accusing human rights groups of dishonesty than in investigating and prosecuting those responsible. In Brazil, military courts made little more than perfunctory inquiries into gross abuses by the military and police, despite the existence of ample evidence. National legislatures, meanwhile, neglected to take the necessary steps to ensure that human rights violations committed by members of the armed forces were judged in civilian courts.
Not all the news emanating from judges' chambers during the year was bad. Courageous prosecutors and judges did pursue human rights cases in some countries, despite considerable pressure to abandon their investigations. Peruvian prosecutor Ana Cecilia Magallanes reopened the investigation into the 1991 massacre in the Barrios Altos district of Lima, and Judge Antonia Saquicuray Sánchez found Peru's sweeping amnesty law inapplicable to the case. Sonia Marlina Dubón de Flores, the Honduran special prosecutor for human rights, initiated the hemisphere's first investigation of active-duty military officers for human rights violations, and Judge Roy Medina issued arrest warrants in October for three of the ten Honduran military officers under investigation. Special prosecutor Abraham Méndez García vigorously investigated the 1993 killing of Jorge Carpio Nicolle in Guatemala. Until he resigned from the case of Efraín Bámaca Velásquez under threat in July, Guatemalan special prosecutor Julio Arango Escobar showed integrity and initiative in pursuing the case. Stella Kuhlman, a Brazilian prosecutor in charge of the case of 111 detainees who were killed in Carandiru prison in 1992, diligently investigated the prison case and other instances of police abuse and corruption despite threats to her life; in 1995, she and seven other prosecutors in Sao Paulo's military justice system challenged military jurisdiction in cases of crimes against civilians. Colombia's Constitutional Court issued a number of decisions in 1995 demonstrating both a commitment to the defense of human rights and a resistance to political control; in one of these, it found unconstitutional President Ernesto Samper's August 1995 declaration of a "state of internal commotion."
In most instances where jurists worked to promote justice in human rights cases, however, they did so against the prevailing sentiment of elected civilian officials. This was clearest in Peru, where President Alberto Fujimori signed the most sweeping amnesty law in the region. He granted amnesty to all military, police, and civilians who had committed serious crimes in the course of the counterinsurgency effort between 1980 and 1995. In Colombia, where President Ernesto Samper began the year by admitting state responsibility for a spree of extrajudicial killings and disappearances in Trujillo in 1990, the president went on to support continued military jurisdiction over human rights cases, despite the impunity that military courts have fostered.
President Cardoso of Brazil introduced legislation to compensate the victims of disappearances during the military regime. This otherwise positive step proved cosmetic but the new law failed to provide any mechanism for determining the circumstances of the disappearances, identifying those responsible, or rendering justice.
In Argentina, the army chief of staff, Gen. Martín Balza, issued an historic apology to the nation for the crimes of the "dirty war" of the 1970s; yet the administration of President Carlos Menem failed to compel officers to disclose what they knew about the fate of thousands of disappearances to the families and to Argentine society.
In addition to the failure of elected civilian leaders to consolidate human rights protections in the new era of democracy, these leaders also often failed to prevent ongoing human rights violations. Extrajudicial executions, disappearances, and torture persisted in the region. In Guatemala, soldiers killed eleven repatriated refugees, a bitter reminder that the advancing peace process had not fundamentally changed the human rights situation there. In Brazil, state police officials in Rio de Janeiro, Sao Paulo, and Rio Grande do Norte and Mato Grosso do Sul participated in extermination squads to dispose of marginais ("lowlives")_street youth, the homeless, and others suspected of general lawlessness but often no particular crime. The prevalence of these grave violations in Colombia led the U.N. special rapporteurs for extrajudicial executions and torture to issue a joint report characterizing the situation as "alarming."
Disappearances were documented in such formally democratic countries as Brazil, Colombia, Guatemala, and Peru. Even in Argentina, provincial police were tied to several cases of disappearance, revealing that this tactic of repression had not been eradicated despite earlier, temporarily successful attempts to end it.
Torture during 1995 was also documented by local and international human rights groups and multilateral organizations in countries such as Brazil, Colombia, Guatemala, and Peru. The methods used differed little from those employed by military dictatorships during the 1970s and 1980s. Although Cuba ratified the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment in 1995, both political and common-crime prisoners reported suffering denial of medical attention, beatings, violent and arbitrary searches, and other degrading treatment for minor infractions or nonviolent protests such as hunger strikes. In Mexico, police employed severe physical and psychological torture to obtain confessions, which judges_to their shame_accepted as evidence.
The positive model for the region, as a response to torture, was the Argentine Supreme Court ruling in 1981 that confessions obtained by torture were inadmissible, even with corroborating evidence. The Alfonsín government codified this judicially adopted ruling at the federal level in 1984, and the prohibition was retained in the 1992 revision of the criminal procedure code. Even Argentina did not achieve this standard, however, in 1995. Unfortunately, some appellate courts continued to admit as presumptive evidence confessions as the result of torture. Region-wide, the failure of judges to reject confessions obtained through torture and of legislatures to prohibit their use provided an incentive for state agents to continue to torture.
In Mexico, Brazil, and to a lesser extent in Argentina, which have federal systems of government, federal authorities sought to avoid responsibility for abuses committed by security forces of state governments. This was the case, for example, in Mexico's state of Guerrero, where state police gunned down seventeen peasants in June but federal officials maintained they could not intervene to ensure justice was done. The American Convention on Human Rights holds national governments responsible for abuses committed by state government officials.
Freedom of expression, too, remained restricted in several countries. Cuba continued systematically to violate this right, frequently charging human rights activists and political dissidents with "enemy propaganda," "clandestine printing," "contempt of authority," "anti-social behavior," or the violation of "socialist morality." In Chile, several individuals were arrested and punished for remarks deemed offensive to the honor of military and civilian authorities or government institutions.
A study of desacato laws by the Inter-American Commission on Human Rights published in February noted that thirteen states in the region had some form of legislation criminalizing expression that offends, insults, or threatens a public official, in violation of the American Convention on Human Rights.
Guerrilla groups in several countries of the region violated international humanitarian law, killing civilians or destroying their homes or other property. All sides in an internal armed conflict, whether government or guerrilla, are bound by the provisions of common article 3 of the Geneva Conventions, the principal international treaty delineating the laws of war.
The Shining Path (Sendero Luminoso) of Peru continued consistently to violate international humanitarian law, targeting local authorities, members of peasant patrols, and its political opponents for assassination, threats, or humiliating and degrading treatment. Some killings followed "popular trials" in which the guerrillas mimicked a judicial process but provided no semblance of independence or impartiality. In May, the group slaughtered an entire community for its failure to pay a "war tax."
In Colombia, the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) were implicated in numerous cases of hostage-taking and assassination, including a massacre in September in which twenty-three people were killed near Urabá. In June, members of the FARC apparently executed two abducted American missionaries. Other Colombian guerrilla groups, notably the Camilist Union-National Army of Liberation (Unión Camilista-Ejército de Liberación Nacional, UC-ELN), carried out executions and took hostages during the year. In Guatemala, guerrillas failed to exercise care to minimize danger to civilians during attacks on military targets and imposed "war taxes" on civilians with the implicit threat that those who did not pay would suffer bodily harm or damage to their property. In addition, several civilians were killed by land mines laid by the Guatemalan guerrillas.
The Right to Monitor
As in previous years, independent monitors ran the serious risk of injury or death, especially in Colombia and Guatemala. At least three human rights activists_Ernesto Fernández Fester, Javier Barriga Vergel, and Humberto Peña Prieto_were killed in Colombia in 1995. In June, Guatemalan rights monitor Manuel Saquic Vásquez disappeared. His decapitated corpse was found the following month with thirty-three stab wounds. Human rights monitors in other countries, such Brazil, Honduras, Mexico, and Peru faced threats and other forms of harassment for doing their work.
The Role of the International Community
The United Nations
The U.N. High Commissioner for Human Rights announced plans to study the possibility of opening a permanent office in Colombia. The initiative stood a chance of helping improve the human rights situation if conducted in coordination with, not instead of, other U.N. human rights projects in Colombia, including the special rapporteurs on extrajudicial executions and torture and the Working Group on Enforced or Involuntary Disappearances. Human Rights Watch/Americas echoed the concern of Colombian human rights groups that a U.N. High Commissioner office should not preclude other U.N. initiatives, such as the appointment of a country rapporteur for Colombia.
The Inter-American System
The court fills the valuable role of the tribunal of last resort for the region in cases of human rights violations. As it observed in the now-famous case of Velásquez Rodríguez, the sentences pronounced by the court serve as a form of reparation by establishing the facts, identifying with precision the nature of the violations committed, and establishing the state's responsibility to take concrete steps to prevent, investigate, punish, and disclose violations, and restore an individual's rights or provide reparations to victims or their relatives. In 1995, the court found Peru responsible for violations of the right to life in the deadly suppression of the 1986 prison riot in El Frontón. However, when Venezuela accepted full responsibility for the massacre in El Amparo, the court merely noted this admission without issuing a declaratory judgment of Venezuela's violation of the convention or determining the resulting legal consequences. As representatives of the victims, Human Rights Watch/Americas urged the court to cure this deficiency in the context of determining the nature and scope of reparations.
The work of the commission was marred in 1995 by the deficient performance of its secretariat. Over the course of the year, management anomalies made it nearly impossible to discern what, if any, criteria were used to guide the secretariat's proceedings. The secretariat's disinclination to grant requests for precautionary measures_instrumental in saving the lives of countless victims of disappearances and threats throughout the hemisphere_reversed its decades-long tradition of responsiveness in such cases and, exemplified a growing inconsistency in its work. Other procedural irregularities included unwarranted delays in the release of reports; arbitrary and illegal refusal to admit new complaints; impeding the resolution of cases before the commission; and affording certain government representatives access to documents and petitions even before they came under the consideration of the commissioners. Under these circumstances, some government representatives were able to use personal or political influence with the secretariat, thus undermining the independence of the commission and the credibility of the OAS as a protecter of human rights.
Human Rights Watch/Americas was extremely concerned about these developments at the commission; the weight and influence of the commission's resolutions and recommendations depend not only on their content but also on the moral authority of the institution itself.
As a consequence of the irregularities at the secretariat, the commissioners informed the secretary-general of the OAS in September that they lacked confidence in the commission's executive secretary. Nevertheless, some governments, particularly Venezuela and Chile, sought to maintain the executive secretary in her position. As of this writing, the secretary-general had not acted to solve a situation that threatened the autonomy and integrity of the commission.
In a similar vein, the administration failed to seize the opportunity presented by the Summit of the Americas in December 1994 to advance human rights protection in the hemisphere. Human rights concerns were included in the final plan of action approved at the summit, but no specific follow-up meetings or reporting provisions were included to ensure that human rights would be actually addressed over the coming years. Other subjects in the plan of action, such as trade, included detailed follow-up mechanisms.
In Bolivia, human rights principles were sacrificed to the pursuit of counternarcotics programs. Bolivia's rural counternarcotics forces_created, funded, and trained by the U.S._rode roughshod over residents in coca-growing areas, beating them, stealing their money and goods, and arbitrarily searching their homes at all hours. The U.S. Drug Enforcement Administration (DEA) was intimately involved in counternarcotics operations in Bolivia; yet the results of the agency's internal investigations into alleged complicity or acquiescence in abusive interrogations were not made public.
In the wake of its successful restoration of the democratically elected government of Haiti, the Clinton administration rushed to return Haitians who had found "safe haven" at the U.S. naval base in Guantánamo Bay, Cuba, without first determining if they qualified as refugees under international law. The January 1995 forced repatriation of more than 3,700 Haitians from Guantánamo violated the U.S.'s obligation under the 1967 Protocol Relating to the Status of Refugees not to return (refouler) a refugee to a territory where his or her life or freedom would be threatened on account of persecution. The Department of Defense also restricted independent monitoring of the Guantánamo facilities, making it difficult to investigate reports of mistreatment and to independently verify the claims of those detained there. In the first months of 1995, unaccompanied Haitian minors reported some abuses by U.S. military personnel, including shackling and isolation. The U.S. military did not release the results of its investigation into these complaints or its regulations governing discipline.
On May 2, the Clinton administration announced a new policy to interdict and repatriate Cuban asylum seekers based on an agreement struck with the government of President Fidel Castro. Under the agreement, most of the 20,000 Cubans remaining in Guantánamo camps would receive humanitarian parole into the U.S.; those found excludable because of past criminal activity or other statutory reasons would be repatriated. After returning several groups of Cubans without adequate refugee screening, the U.S. improved its procedures to adhere to international requirements.
U.S. covert links to human rights violators in the hemisphere became front page news in 1995 with the revelation that a Guatemalan military officer paid by the Central Intelligence Agency (CIA) had been involved in two extrajudicial executions, including the 1990 murder of American citizen Michael DeVine. The CIA's links to human rights violations in Guatemala followed a similar pattern previously disclosed in El Salvador, Haiti, Honduras, and Peru. The Clinton administration announced several executive branch inquiries to deal with the crisis, disciplined several CIA officials, expanded a review of its foreign agents, and began writing new rules governing their recruitment. No review appeared to be underway, however, of the so-called liaison programs that the CIA routinely establishes with foreign intelligence services without informing Congress or the public. As the details of the CIA relationship with Guatemala became public in March and April, it was revealed that the agency had spent millions of dollars in such a program with Guatemala's notoriously abusive military intelligence service after overt military aid had been suspended in the wake of Michael DeVine's murder.
The initial steps taken to curb the CIA were positive but insufficient. Human Rights Watch called for the enactment of legislation_rather than classified internal regulations_that would prevent the agency from keeping murderers and torturers on its payroll and would prohibit liaison relationships with units that consistently violate human rights.
The Work of Human Rights Watch/Americas
Our work in 1995 focused on seven countries_Brazil, Colombia, Cuba, Guatemala, Haiti, Mexico, and Peru_in which the nature and extent of the violations and the response of the state raised urgent human rights concerns. We conducted missions, wrote and released publications, and advocated for change in these countries' human rights practices as well as highlighting discrete issues in other countries, such as the human rights violations associated with the drug war in Bolivia and the need for accountability for past CIA activities in Honduras. We called attention to the need of the Chilean government to enforce the judgment of its highest court against the head of the intelligence agency during the dictatorship, and we emphasized the obligation of the Chilean state to investigate, prosecute, and punish those responsible for human rights abuses. In an amicus brief prepared jointly with the Center for Justice and International Law (CEJIL), we urged the Argentine Supreme Court to guarantee the right of the victims of human rights violations and their families to know the truth about the role of the state in the abuses_an indispensable step to prevent future abuses and provide compensation for the victims of past cruelty.
Among our efforts to press for accountability for past human rights violations, we cosponsored an international conference on amnesties in Guatemala with the Myrna Mack Foundation, which concluded that grave human rights violations and breaches of the laws of war should never be amnestied, and we worked with the national commissioner for human rights of Honduras, to press the Clinton administration to declassify documents relating to disappearances carried out by a U.S.-funded death squad in the 1980s. In Mexico, we released new information on a 1994 massacre of civilians in Chiapas which helped advance domestic efforts to investigate the crime. Our work on Peru and Bolivia drew attention to the lack of due process guarantees for out-of-favor groups or individuals such as those accused of drug offenses or support for terrorists. We also continued our traditional monitoring of laws of war violations by all sides to the region's armed conflicts, including violations of international humanitarian law by guerrillas in Colombia and Peru.
In partnership with CEJIL and several national human rights organizations, we are involved in nearly one hundred cases at the Inter-American Commission on Human Rights, which has referred ten of these to the Inter-American Court of Human Rights.