emailcumipaz@emapaz.com
"Duty of States to investigate violations of Human Rights" - Manuel E. Ventura Robles

"Duty of States to investigate violations of Human Rights" - Manuel E. Ventura Robles

Good morning, Dr. William Soto Santiago, Executive President of the Global Embassy for Peace; Judge Augustino Ramadhani, President of the African Court of Human Rights; Gabriela Lara, General Director of the Global Embassy of Activists for Peace.

Before I begin, I would like to thank the Global Embassy of Activists for Peace for their invitation to participate in this Peace Integration Summit (CUMIPAZ), which has emerged as an inspiration for peace activist Dr. William Soto Santiago, who for several decades has led many initiatives aimed at the promotion and defense of Human Rights and the Rights of Mother Earth.

We now turn to the role of the Inter-American Court of Human Rights in matters of justice, truth, and reparations. The Inter-American Court of Human Rights has the competence to determine the international responsibility of the States parties to the American Convention on Human Rights, for the violations consecrated therein, or other inter-American instruments that grant it jurisdiction.

In this way, a formulation of international standards is given based on its jurisprudence and its consequent interpretation of the Convention.

Very early in its jurisprudence, the Inter-American Court has deepened the concept of the right to the truth as a collective and particular right of the victims; The Court reiterated the double dimension of the right to the truth by determining that the investigation of the facts and punishment of those responsible are a State obligation and that, in addition, the right to the truth constitutes a mechanism of reparation.

Likewise, in analyzing the conduct of States tending to obstruct justice and allowing impunity, the obligation to investigate, prosecute, and punish perpetrators was raised to an international standard; Including material and intellectual authors, determiners and beneficiaries of the crime; even in situations of complex criminality, even in cases of State terrorism, contexts of crimes against humanity and so-called crimes against the system.

In relation to reparation, the Court has indicated in its judgments two types of damage: one moral or immaterial and another material. The latter is classified in turn, in emergent damage and loss of profit. Like other measures of reparation it has ordered restoration, equivalent to restitutio in integrum; Rehabilitation, such as medical and psychological treatment of victims; Those of satisfaction, among which are the acts of recognition of public responsibility and apologies of States, guarantees of non-repetition, educational programs for state officials, institutional strengthening measures in the field of research, prevention measures, information and search systems, etcetera; As well as compensatory allowances based on those data.

Impunity in light of the jurisprudence of the American Convention on Human Rights.

The concept impunity does not strictly describe a legal issue, but a phenomenon of legal, social, cultural, psychological, and even economic dimensions; In general terms, can be understood as the absence of punishment, non-punishment or absence of punishment, which are clearly distinguished from the widely known concepts of impunity, imputability and immunity.

At this point, it should also be noted that the Inter-American Court has raised the ban on the use of laws, amnesties and pardons to international standards when they prevent or impede the investigation and, where appropriate, prosecute and punish serious violations of Human rights.

Since 1978, impunity laws have proliferated in the countries of Central and South America, which (these countries) have suffered long periods of political violence and systematic violation of human rights by the State.

These laws took the form of amnesty, prescription, and pardon, recognizing due obedience as a defense for crimes committed by government agents. The purpose of these laws has been to prevent, investigate, and punish serious violations of human rights.

The wave of laws of impunity in our continent is the result of state terrorism and represents the policy of its makers to cover up the facts. These laws have generally not been issued to encourage return to peace or to reintegrate political prisoners, refugees, exiles, but to legitimize human rights violations committed by the State, avoiding the prosecution of those responsible.

That is why amnesty as such, entails a series of effects, among them, that apply retroactively, and in a general way, to a certain category of crimes, and not to groups indicated by it.

For example, an amnesty may include the military, the security forces or government agents, without specifically saying so. Its impact is, moreover, immediate, since in considering that the alleged crime is included in the amnesty, it can be requested the immediate restraint of the cause.

The laws of impunity have been adopted in the name of peace and reconciliation; But generally, suppresses the rights of the victims. In some cases it has stimulated a resurgence of violence and has ensured the impunity of governments and their agents for serious crimes against their audiences. These have prevailed mainly because the beneficiaries remain in power, in the executive branch or in military barracks.

The impact of this phenomenon can be measured around several questions; for example: How many agents have been prosecuted and punished? In how many cases of human rights violations have impartial and thorough investigations been conducted? In how many cases have responsibilities been established? And how many victims or their families have received fair compensation?

Impunity data in our countries are alarming; In some cases, they exceed and reach almost 100%, exceed 90%.

In the face of the inability to obtain justice in their countries, many individuals and non-governmental organizations have resorted to international institutions, both regional and international, to try to reverse a situation that was notoriously contrary to the international obligations of States.

This is where the importance of investigations, rulings, and decisions of the regional organizations for the protection of human rights arises, such as the Inter-American Court of Human Rights or the Inter-American Commission on Human Rights.

The Inter-American Court has defined impunity as: "The lack, as a whole, of investigation, prosecution, arrest and prosecution, as well as the conviction of those responsible for violations of the rights protected by the American Convention. Since the State has an obligation to combat this situation by all available legal means, since impunity promotes the chronic repetition of human rights violations and the total defenselessness of the victims and their families."

This is a phrase most commonly repeated by the Court, especially when adopting provisional measures, where it has repeatedly said that impunity leads to a chronic repetition of the violation of Human Rights.

This obligation to investigate the perpetrators refers to both perpetrators, intellectuals and human rights abettors; And the Court has also repeatedly added, in numerous cases: the State has an obligation to combat this situation by all available legal means, since impunity leads to a chronic repetition of the violation of Human Rights and the total defenselessness of the victims and their families.

The issue of impunity is one of the most sensitive in the inter-American system for the protection of human rights, since by the fulfillment of the judgments of the Inter-American Court, the State parties promptly comply with the payment of pecuniary compensation and other given obligations, as they are known in international law. But, progress is made very slowly or not at all in the investigation of facts and prosecution of those responsible.

If one sees the list of cases pending closure in the Inter-American Court, we would be frightened, due precisely to the fact that they cannot be closed because the facts have not been adequately investigated. In this sense, the Court has established that the State must remove all de facto or de jure obstacles that maintain impunity, and that it must be eradicated through the determination of responsibility, both general of the State, and individual, the criminal ones and those of another nature of its agents or individuals.

In this sense, the Court has considered that it is necessary to combat impunity by all available legal means, taking into account the need to do justice in the concrete case, and that propitiates the defenselessness of the victims, I repeat.

This Court has also emphasized that the nature and seriousness of the facts, whether they be contexts of systematic violations of human rights, generate a greater need to eradicate impunity of the facts. In addition, this obligation to combat impunity is heightened when it comes to rape whose victims are children.

Impunity is closely related to the right of access to justice, since it requires that the determination of the facts be carried out, that the corresponding criminal responsibility be investigated and, where appropriate, in a reasonable time. For which a prolonged delay may in itself constitute a breach of judicial guarantees.

We have received cases in the Inter-American Court that have occurred 20, 30 and even 40 years ago, which have been judged precisely because the State has accepted jurisdiction for that particular case. If not, then the mandatory jurisdiction of the Court had not been accepted, nor was the American Convention perhaps in force.

It is worth recalling an important ruling issued by the Supreme Court of Justice of the Argentine nation, which referred to this issue, in which it resolved – among others – to declare the nullity of the laws of final point and due obedience, which interrupted the criminal proceedings that were carried out at that time against Argentine military accused of crimes against humanity during the repression of the dictatorships of the late 70's and early 80's. In addition, the Court upheld Law 25779 of 2003, which, precisely, declared the nullity of the aforementioned laws.

This court pointed out that in order to comply with the international treaties ratified by the Argentine State, the abolition of end-point laws and due obedience is imperative. This means that those who benefited from such laws cannot invoke either the prohibition of retroactivity of the most serious criminal law, or res judicata, since according to the judgment, as established by the Inter-American Court, such principles cannot become an impediment to the annulment of the aforementioned laws.

The Supreme Court of the Argentine nation was founded to dictate this sentence, in another well-known ruling of the Inter-American Court: the Barrios Altos case, which – after the Court issued this judgment – had the same effects in Peru, which provided this other sentence of the Supreme Court in Argentina; And all criminal proceedings that had been closed due to two amnesties approved by the Peruvian Congress under President Fujimori were reopened. And this case, and another sentence of the Inter-American Court, but especially the Barrios Altos case, was one of the two sentences or cases by which Chile acceded to the extradition of President Fujimori to be tried in Peru.

Now, what is the duty of investigating violations of human rights? The Inter-American Court of Human Rights established, from its first contentious sentence, the Velásquez Rodríguez case against Honduras, the existence of a State duty to investigate seriously by all means available to the State, any violations committed within the area of its jurisdiction, in order to identify those responsible, to impose the relevant sanction, and to ensure the victim adequate reparation.

The Court has also been clear in establishing that the obligation to investigate is maintained, regardless of the agent to which the violation may be attributed, even individuals; For if their acts are not punished with seriousness, they would be aided by Public Power, which would compromise the international responsibility of the State.

The protection of Human Rights must be one of the central objectives that determine the action of any type of investigation. For this reason, the determination of the perpetrators can only be effective if it is based on a comprehensive view of the facts, taking into account the background and context in which they occurred and seeking to unveil the structures of participation.

The judicial investigation of serious violations of Human Rights constitutes a fundamental element for the clarification of what happened to the victims, having as main objectives the establishment of the truth, the effective punishment of those responsible for it, restitution, or, where appropriate, reparation of the victims' rights, and identification of those measures necessary to prevent similar events from reoccurring. In this sense, they are key to guarantee the rights to truth, justice and reparation.

In this regard, the Inter-American Court has referred to the link between truth and justice as follows: The Court has recognized that the right to know the truth of the relatives of victims of serious human rights violations falls within the law Access to justice; The Court has also substantiated the obligation to investigate as a form of reparation in the light of the need to redress the violation of the right to know the truth in the specific case. The right to know the truth has also been recognized in various instruments of the United Nations and recently by the General Assembly of the Organization of American States.

It has been very fashionable recently to talk about transitional justice, due to the signing of the peace treaties in Colombia. In two expositions that I have allowed myself to do in Colombia, I pointed out that transitional justice cannot imply impunity, and that this should be very clear. But in the end, it's an issue that I do not have to dig deep into now, but I did want to point it out.

The Court has also established that the establishment of the truth not only has an individual dimension aimed at reparation of the facts of the victim and their relatives, but a collective dimension designed to make known what happened to society as a whole. In this regard, the Court has stated literally that the Court considers that the right to know the truth has the necessary effect in a democratic society to know the truth about serious human rights violations.

However, these objectives set out in international jurisprudence include, but are not limited to, those traditionally conceived in the area of ​​criminal procedure.

In order to establish what happened and begin the reparation process, in some cases the investigation is also aimed at identifying the victims themselves as against some types of membership; As in the case of members of associations or members of indigenous peoples or communities, the steps to be taken in the process to determine some of the omissions or actions that generate responsibility, beyond the results necessary to guarantee a fair trial for the result of criminal proceedings.

Based on the jurisprudence of the Court, the general principles that must be respected in any legal system and guide investigations to ensure effective access to justice are: trade, opportunity, competence, independence and impartiality, completeness, and participation of the victims and their families.

Through previous regulations of the Inter-American Court, enormous work had to be done in the identification of victims, generally in the case of massacres, especially of indigenous peoples whose members often lacked identification.

CONCLUSION

Within the framework of the peace process or transition to democracy, the international obligation to investigate, prosecute, and condemn serious violations of Human Rights and International Humanitarian Law cannot be ignored.

The existence of an internal transitional justice program does not limit access to inter-American jurisdiction, nor does it prevent it from investigating or determining the State's responsibility for action or omission in cases of serious violations of human rights or other types of cases, either by state agents or by armed groups outside the law.

In defining the principles of proportionality of punishment and access to justice and how to assess reparations, the Court has pointed out that it is not enough to create exceptional and massive measures (and these do not imply), a comprehensive reparation to the victims according to the damage that has been caused.

Thank you and good morning.