Section E-3 (pp. 604-08): The Inter-American Commission—Typical Cases in the Inter-American Commission

 

There currently are two important pending cases against the U.S. before the Inter-American Commission on Human Rights (IACHR) arising out of U.S. detention of certain persons after September 11, 2001. [1]

 

1. Detainees at Guantanamo Bay, Cuba [2]

 

On February 25, 2002, in Detainees at Guantanamo Bay, Cuba, the IACHR was presented with a petition by certain persons being detained by the U.S. at its naval base in Guantanamo Bay, Cuba. The petition alleged that they were denied their rights to be free from arbitrary, incommunicado and prolonged detention, unlawful interrogation, and trials by military commissions in which they could be sentenced to death, as guaranteed by Articles I, XVII, XVIII, XXV, and XXVI of the American Declaration on the Rights and Duties of Man (American Declaration).  (Selected International Instruments at 219-23.)  Pursuant to Article 25(1) of the IACHR’s Rules of Procedure, [3] the petition requested the Commission to ask the U.S.

 

(i)                  to adopt measures necessary to protect their right to personal integrity and fair trial;

(ii)                to treat each detainee as a POW until any doubt as to status is determined by a competent tribunal;

(iii)               to provide the detainees written notice of the charges, access to legal counsel with confidential communications and access to judicial review;

(iv)              to identify the detainees;

(v)                to notify them of their rights to consular representatives;

(vi)              suspend their interrogation until their rights are guaranteed;

(vii)             to stay any proceedings before military commissions pending resolution of their status;

(viii)           to permit the IACHR to inspect the site; and

(ix)              to find that any order of precautionary measures is binding on the U.S.

 

(Request by Center for Constitutional Rights, et al. for Precautionary Measures under Article 25 of the Commission’s Regulations, Detainees in Guantanamo Bay, Cuba (IACHR Feb. 25, 2002); Bravin, Lawyers Seek Intervention by OAS To Change Treatment of Prisoners, Wall S. J., Feb. 25, 2002.)

 

On March 12, 2002, the Commission granted, in part, the request for precautionary measures and asked the U.S. “to take urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal.�  The Commission explained that such measures were appropriate and necessary so that the detainees were “afforded the legal protections commensurate with the status that they are found to possess, which in no case may fall below the minimum standards of non-derogable rights.�  In passing, the Commission noted that it had ruled that OAS member states like the U.S. were subject to an international legal obligation to comply with such a request for precautionary measures. (IACHR Request for Precautionary Measures, Detainees in Guantanamo Bay, Cuba (IACHR March 12, 2002), <http://www.photius.com/rogue_nations/guantanamo.html> (last visited November 2003); Jesse Bravin, Panel Says U.S. Policy on Detainees In Cuba Breaks International Law, Wall S. J., Mar. 14, 2002 at B2.)

 

In its April 11, 2002, response to the IACHR’s request, the U.S. argued that there was no basis in fact or law for the Commission’s request because: (a) international humanitarian law, not international human rights law, applied; (b) the IACHR had no jurisdiction to apply international humanitarian law; (c) the detainees, as a matter of public record, were unlawful combatants, not prisoners of war; and (d) the detainees were treated humanely. Therefore, the U.S. asked the Commission to rescind its request for precautionary measures. (Response of U.S. to Request for Precautionary Measures—Detainees in Guantanamo Bay, Cuba, (IACHR April 11, 2002; American Soc’y of Int’l Law, International Law in Brief, June 4, 2002, <http://www.asil.org/ilib/ilib0508.htm#r2> (last visited November 17, 2003); U.S. Asks Agency To Dismiss Complaint About Cuba Prisoners, Wall S. J., April 18, 2002 at D4.)

 

On May 28, 2002, the Commission, acting on further observations by the petitioners, [4] asked the U.S. to comment on the contention that some of the detainees were not captured on any battlefield, that some were suffering from mental disorders, that the legal status of the detainees was unclear, and that the uncertainty of their status was “placing them increasingly at risk of irreparable harm.�  In addition, the U.S. was to advise whether there had been any change in the status of the detainees since the prior U.S. response and whether the U.S. had complied with the request for precautionary measures.  (IACHR Request for Information to U.S., Detainees in Guantanamo Bay, Cuba (IACHR May 28, 2002).)

 

On July 15, 2002, the U.S. submitted an additional response to the Commission.  The U.S. argued that the IACHR had no jurisdiction to review the U.S.’s detention of enemy combatants and that similarly it had no jurisdiction to issue requests for precautionary measures to the U.S., much less binding ones.  (Additional Response of U.S. to Request for Precautionary Measures, Detainees in Guantanamo Bay, Cuba (IACHR July 15, 2002).)

 

Eight days later, on July 23, 2002, the Commission refused to rescind its March 12, 2002, request and instead reiterated its request for information as to how the U.S. had complied with the request.  In addition, the Commission stated that “it has the competence and responsibility to monitor the human rights situation of the detainees and in so doing to look to and apply definitional standards and relevant rules of international humanitarian law in interpreting and applying the provisions of Inter-American human rights instruments in times of armed conflict.�  (IACHR Request to U.S., Detainees in Guantanamo Bay, Cuba (IACHR July 23, 2002).)

 

On August 23, 2002, the petitioners requested a hearing on their request for precautionary measures.  They noted that there apparently are 598 detainees at Guantanamo, that not all of them were initially detained in Afghanistan, that the U.S. planned to increase the capacity of the base to 2,000 cells, that U.S. courts had refused to hear similar claims, that the detention is having detrimental impact on the detainees (at least 30 attempted suicides), that petitioners have had difficulty getting information about the facility. (Petitioners’ Request for Hearing, Detainees in Guantanamo Bay, Cuba (IACHR Aug. 23, 2002).)

 

The request for a hearing was granted, and a closed hearing was held on October 16, 2002.

 

2.  Post-September 11, 2001, INS Detainees

 

On June 20, 2002, in Post-September 11, 2001 INS Detainees, another request for precautionary measures was presented to the Commission by “dozens of Muslim men of Arab and South Asian origin� who were being detained in the U.S. by its Immigration and Naturalization Service (INS) after being ordered deported or granted voluntary departure. Like the petition in the Guantanamo Bay case, they alleged that they were denied their rights to be free from arbitrary or prolonged detention as well as their right to equality before the law, the right of protection of personal integrity and family life, and the due process rights of recognition of juridical personality and access to the courts, all as guaranteed by Articles I, II, V, XVII, XVIII, XXV, and XXVI of the American Declaration on the Rights and Duties of Man (American Declaration). (Selected International Instruments at 219-23.) (Request for Precautionary Measures, Post-September 11, 2001 INS Detainees, June 20, 2002, <http://www.hrlawgroup.org/resources/content/IACHRPrecautionaryMeasures.pdf.> (last visited November 17, 2003))

 

Pursuant to Article 25 (1) of the IACHR’s Rules of Procedure, the petitioners asked the IACHR to request the U.S. to take the following precautionary measures with respect to the detainees:  release them from detention; allow the implementation of final orders for deportation or voluntary departure from the U.S.; specify the bases for the detention so that they can effectively seek legal remedies; ensure them equal treatment; protect their honor, reputation and family life; protect their due process rights; treat them humanely and in accordance with international law; and identify all such detainees. (Id.)

 

After receiving the U.S.’s September 18, 2002, response to the IACHR’s request for information and the petitioners’ September 17, 2002, additional information, the Commission on September 26, 2002, granted the request for precautionary measures and asked the U.S. “to protect the fundamental rights of the [petitioners], including their right to personal liberty and security, their right to humane treatment, and their right to resort to the courts for the protection of their legal rights, by allowing independent courts to determine whether the detainees have been lawfully detained and whether they are in need of protection.� In support of this decision, the Commission stated that the U.S. had failed to clarify or contradict petitioners’ information indicating that (i) there was no basis under domestic or international law for their continued detention; (ii) there was no information regarding their conditions of detention although former detainees have claimed that they were subjected to harsh conditions and verbal and physical abuse; [5] and (iii) the detainees were being held without any effective means of challenging the legality or conditions of detention before the domestic courts. In addition, the IACHR noted, as it had in the Guantanamo Bay case, that “no person under the authority and control of a state, regardless of his or her circumstances, is devoid of legal protection for his or her fundamental and non-derogable human rights.� (Letter, IACHR to Petitioners’ Counsel, Post-September 11, 2001 INS Detainees, Sept. 26, 2002, <http://www.hrlawgroup.org/resources/content/IACHR_Award.pdf.> (last visited November 17, 2003)).

 

            Several Guantánamo detainees have, by next friends, filed petitions for writ of habeas corpus in various federal district courts in the United States.  28 U.S.C. §2241(c)(3) allows a federal court to grant a petition for habeas corpus if the petitioner is being held in violation of the laws, treaties, or Constitution of the United States of America.  The U.S. Supreme Court has granted certiorari in two of these cases.[6] 

 

3.  Mayagna Awas Tingni Case

  

In August 2001, the Inter-American Court of Human Rights reaffirmed the rights of indigenous peoples in the case of the Mayagna (Sumo) Awas Tingni Indigenous Community of the Atlantic Coast of Nicaragua.  The case secured recognition of the community’s rights to its ancestral lands, establishing a historical precedent at the international level for the communal rights of indigenous peoples. The Awas Tingni community case was the first submitted to the Inter-American Court on the issue of the property rights of indigenous peoples.

 

Facts of the case[7]

 

·        The Mayagna Awas Tingni Community is an indigenous Mayagna or Sumo community of approximately 630 individuals on the Atlantic or Caribbean coast of Nicaragua.  The Community functions under a traditional leadership structure, based on custom, which is recognized in Articles 89 and 180 of the Nicaraguan Constitution and 11(4) of the Statute of Autonomy of the Regions of the Atlantic Coast of Nicaragua, Law No. 28 of 1987.  The Community subsists principally on family and communal agriculture, the collection of medicinal plants and fruits, and hunting and fishing these activities are carried out within a specific territorial area, in accordance with a traditional system of land ownership.  Its principal village is on the Wawa River, in the municipality of Waspan, in the North Atlantic Autonomous Region (RAAN).

 

·        In June 1995, the RAAN Regional Council signed an agreement with Sol del Caribe S.A. (SOLCARSA), an international logging company, to begin operations in the territory claimed by the community.  In July, the legal representative of the Community sent a letter to the Ministry of the Environment and Natural Resources (MARENA) in which the Community protested the possibility of a concession on its lands being granted without it previously having been consulted.

 

·        The community attempted to delay the grant of the concession through legal actions in the domestic courts but in September 1995, the case was declared inadmissible on the ground that it had not been filed within the legal time limit.  The community appealed to the Supreme Court, which pronounced judgment on February 27, 1997, dismissing the application as time-barred.

 

·        While the Supreme Court decision was pending, the State granted a 30-year concession to SOLCARSA on March 13, 1996, to exploit approximately 62,000 hectares of tropical forest in the Atlantic coast region on land claimed by the Community.  The RAAN claimed that the indigenous communities of the region did not have any independent legal existence or status, but were represented by the Regional Council, which had the authority to dispose of the land.  Community leaders submitted a request to the plenary session of the Regional Council for assistance to demarcate their ancestral lands and delay operation of the concession granted without the consent of the communities.  On October 8, 1997, after another appeal to the Supreme Court had found the grant of the concession unconstitutional, the majority of the Regional Council approved the concession.  The Community denounced the Council members for having approved the concession without having considered the rights of the indigenous communities, although it had made a formal request to the Regional Council in this respect.  On February 12, 1998, the Supreme Court of Justice of Nicaragua issued an order that the concession be delayed.

 

Proceedings Before The Inter-American Commission on Human Rights[8]

 

• On October 2, 1995, the Commission received a petition from the Community.  On December 3, 1995, the Commission received a supplementary request regarding precautionary measures, because the State was about to grant SOLCARSA the concession to commence logging on communal lands. 

 

• Several attempts were made to reach a friendly settlement, none of which succeeded.  Instead, the state announced the creation of the National Demarcation Commission and invited the petitioners to take part.

 

• On March 5, 1997, faced with the commencement of logging operations, the Community repeated its request for precautionary measures from the Commission.  On April 23, 1997, the State requested that the Commission reject the precautionary measures requested by the petitioners due to the delivery of the judgment of the Supreme Court of Justice, which it agreed to comply with.  However, on June 11 that year, the Community informed the Commission that, despite the judgment of the Supreme Court of Justice, the State and SOLCARSA continued to act as though the concession was valid and that logging operations were continuing on the Community’s lands.

 

• On October 31, 1997, the Commission requested that the State adopt precautionary measures designed to suspend the concession granted to SOLCARSA.  The State argued that precautionary measures were inappropriate since appeals were still pending in domestic courts and domestic remedies had not yet been exhausted.  The State invoked the application of Articles 46 of the Convention and 37 of the Commission’s Regulations.  The Community nevertheless requested that the Commission proceed to issue a report in accordance with Article 50 of the Convention.

 

• On March 3, 1998, the Inter-American Commission approved Report No. 27/98, which was forwarded to the State on March 6 that year.  In the report, the Commission concluded:

 

-         That the State of had not complied with its obligations under the American Convention on Human Rights. 

-         That the State had not demarcated the communal lands of the Awas Tingni Community or other indigenous communities, nor had it taken effective measures to ensure the property rights of the Community on its lands. 

-         That the omission by the State constituted a violation of Articles 1, 2 and 21 of the Convention, which together establish the right to such effective measures.

-         That the State was actively responsible for violations of the right to property, embodied in Article 21 of the Convention, by granting a concession to the company SOLCARSA to carry out road construction work and logging exploitation on the Awas Tingni lands, without the consent of the Awas Tingni Community.

-         That despite the establishment of a Demarcation Commission, the State did not guarantee an effective remedy to respond to the claims of the Awas Tingni Community regarding their rights to lands and natural resources, pursuant to Article 25 of the Convention.

 

• The Commission recommended that Nicaragua:

 

-         establish a legal procedure, acceptable to the indigenous communities involved, that would result in the rapid official recognition and demarcation of the Awas Tingni territory and the territories of other communities of the Atlantic coast.

-         suspend the concession granted to SOLCARSA until ownership of the land was resolved, or  the State and the Awas Tingni Community reached an agreement.

 

• On May 7, 1998, the Commission received the State’s reply, past the date it was due, reporting the measures that it had taken to comply with the recommendations.  The Commission accepted the reply so as to make it part of the record of the case that it would send to the Inter-American Court of Human Rights.  In its reply the state outlined several measures it had taken:

 

-         It had established a National Commission for the demarcation of the lands of the Indigenous Communities of the Atlantic Coast.

-         A draft Law on Indigenous Communal Property had been prepared and would be passed within three months after full consultation with civil society.

-         The State cancelled the SOLCARSA concession on February 16, 1998.   

 

• On May 28, 1998, the Commission decided to submit the case to the Court.

 

Proceedings before the Inter-American Court of Human Rights

 

• In submitting the case to the Court, the Commission requested a declaration that the State was obliged to establish and apply a legal procedure for demarcating the lands of the Community, to abstain from granting concessions on these until the issue of their ownership had been resolved, to compensate the Community. It also requested that Nicaragua pay the costs and expenses of the proceeding. 

 

• On August 19, 1998, Nicaragua filed the preliminary objection that domestic remedies had not been exhausted pursuant to Articles 46 and 47 of the Convention and requested the Court to declare the application inadmissible.  After a hearing, the Court concluded that the State tacitly waived filing the objection that domestic remedies had not been exhausted because it did not allege this in a timely manner before the Commission.

 

• The court reasoned that:[9]

 

-         the Convention requires that the state ensure that the competent authorities comply with judicial decisions, pursuant to article 25(2)(c) of the Convention. In the domestic cases brought by the Awas Tingni community, the State ignored the judicial decision issued in favor of the indigenous communities.  For two years the Community suffered damage to its property from the continued logging, which the government should have stopped, as required by its own laws. The suspension of the SOLCARSA concession took place almost two years after the Supreme Court’s order. These failures constituted a violation of the right to judicial protection.[10] 

-         The lack of a mechanism for determining indigenous peoples’ land title also constituted a violation of judicial protection. The state had been “negligent and arbitrary in the face of the titling requests by the Communityâ€?[11] and had provided no appeal from decisions by state bodies that determined indigenous land to be State-owned.  The existence of a pro-forma body to determine land title was not sufficient.  The case law of the court requires that effective remedies be available.

-         The State was estopped from arguing that the Community had no traditional land tenure or rights to the land as that was a position contrary to the one it had taken before the Commission or the Community.

-         The granting of the SOLCARSA concession was a violation of articles 1 and 2 of the Convention, as well as a violation of article 21, the right to private property.

 

• In its judgment, the Court adopted all the Commission’s recommendations and decided:

 

-         that the State violated the right to judicial protection as contained in article 25 of the American Convention on Human Rights, to the detriment of the members of the Community.

-         that the State violated the right to property as contained in article 21 of the American Convention on Human Rights.

-         that the State should adopt within its domestic legal system, in conformance with article 2 of the American Human Rights Convention, an effective mechanism for official recognition, demarcation and titling of the indigenous communities' properties, in accordance with the customary law, values, usage and customs of these communities.

-         that the State shall officially recognize, demarcate, and issue title for those lands belonging to the members of the Community and cease all acts which could cause agents of the State, or third parties acting with its acquiescence or tolerance, to affect the existence, value, use or enjoyment of that property.

-         that the State should invest, as reparation for moral damages, within a period of 12 months, the sum total of US$50,000 in public works and services in the collective interest and for the benefit of the Community.

that the State should pay the members of the Community the sum of US$30,000 for expenses and costs incurred by Community members and their representatives, both in domestic proceedings as well as international proceedings before the Inter-American system for the protection of human rights.

 

ADDITIONAL READINGS:

 

Richard J. Wilson, United States Detainees at Guantanamo Bay:  The Inter-American Commission on Human Rights Responds to a “Legal Black Hole,� 10 Hum. Rts. Br. 2 (2003);

 

Richard J. Wilson & Jan Perlin, The Inter-American Human Rights System:  Activities from Late 2000 Through October 2002, 18 Am. U. Int’l L. Rev. 651 (2003);

 

Jennifer Elsea, Treatment of “Battlefield Detainees� in the War on Terrorism (Congressional Research Service, CRS Report for Congress, September 17, 2003);

 

Jennifer Elsea, Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions (Congressional Research Service, CRS Report for Congress, December 11, 2001).