The International Human Rights and Conflict Resolution Clinic (IHRCRC) engages in advocacy in partnership with individual victims and potential victims of rights abuse, as well as with communities and human rights organizations. The clinic also focuses on use of international mechanisms for promotion of human rights–as featured in the blog below written by IHRCRC student Nari Ely (JD ’16). Nari shares her clinic work experience contributing to cases for the Inter-American Human Rights Commission. She and fellow student Enrique Molina (JD ’16) attended the hearings of the Inter-American Court of Human Rights last week.
Human Rights en vivo—There are very few places in the world where a lawyer can engage in human rights advocacy and hope to have an impact. Last week, I was lucky enough to go to one such place: the 52nd extraordinary session of the Inter-American Court of Human Rights. Fellow 2L Enrique Molina and I joined Professor James Cavallaro in Cartagena, Colombia to assist the Inter-American Human Rights Commission in its work before the Inter-American Court.
The Inter-American Commission decides cases of human rights violations by member states under a number of regional instruments in the first instance and refers cases to the Court when the defendant state has not complied with the Commission’s recommendations. The Inter-American Court has the power to order monetary and equitable relief against member states that have submitted to its contentious jurisdiction generally, or specifically for a given case. All but two of the 25 states that have ratified the American Convention have submitted to the Court’s general contentious jurisdiction.
Prof. Cavallaro (director of the IHRCR Clinic) is one of seven elected Commissioners on the Inter-American Commission on Human Rights. Alongside two Commission staff lawyers, he represented the Commission for the final oral arguments of two cases in the 52nd extraordinary session: Velásquez Paiz v. Guatemala and Ruano Torres v. El Salvador. Enrique and I assisted the Commission as it prepared for both cases. Incredibly – to me, at least – not only were we tasked with critical legal research and analysis (we used Lexis!), but the results of our analysis helped guide the Commission’s litigation strategy as we went into court.
In Velásquez Paiz v. Guatemala, the father of a young victim of femicide filed a petition with the Commission against the state of Guatemala. The Commission ruled that Guatemala had violated the victim’s rights under Articles 1, 4, 8, and 25 of the American Convention on Human Rights and the Convention of Belém do Pará and forwarded the case to the Court. (Adopted in 1994, the Convention of Belém do Pará is also known as the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women.) Guided by the research and analysis Enrique and I produced, the Commission opted to pursue a litigation strategy that included not only the failure of the duty to investigate, but also asked the Court to clarify its jurisprudence on the duty to prevent. In particular, the Commission sought to persuade the Court to apply more clearly the standard first
articulated in Pueblo Vello v. Colombia (2006). This standard evaluated the state’s obligation to actbased on what it knew, or reasonably should have known, at the time that the state became aware of the threat (in this case, the parents’ report of their daughter’s disappearance).
In Ruano Torres v. El Salvador, the cousin of a man who had spent 14 years in prison filed a petition with the Commission against the state of El Salvador. The Commission ruled that El Salvador had violated the victim’s right to a fair trial under Article 8 of the American Convention, resulting in a wrongful conviction. As in the Guatemala Case, our work supported the Commission’s decision to ardently pursue the failure to provide the victim with effective assistance of counsel in the El Salvador case, in addition to the violation of the victim’s presumption of innocence. The precedential value of this argument was, from my perspective, extraordinary. This was especially so because, to our surprise, the state of El Salvador conceded the case in full, leaving it up to the Court to determine precisely why and how it will find for the victim against the state.
I will close this account with the experience of being in the Court itself. First, an extraordinary session of the Inter-American Court – a session held outside the Court’s usual seat in San José, Costa Rica – bears little resemblance to a session of the US Supreme Court. While both carry the necessary hallmarks of decorum and gravitas, the latter meets in a small room while the former, when it is abroad, meets in convention halls or university auditoriums, usually filled to capacity. This was certainly true last week, where the crowd behind us at one point numbered over a thousand, with many times that on a waiting list. A large portion of the observers were Colombian law students, who are required to learn the jurisprudence of the Inter-American Court as much as that of their own national courts – the precedent of the Inter-American Court is binding in Colombia and many other member states.
Second, participating in a session of the Court demonstrated to me the potential power of international human rights bodies. Enrique and I observed four different states (including two additional cases involving Chile and Ecuador) argue their defenses before the Court. While the level of respect for the Court’s judgments varies from state to state, all the state delegations emphasized the steps they had taken to comply with international human rights law, and two – El Salvador and Chile – took great pains to express their esteem for the Inter-American system. This stood in stark contrast in my mind to the general attitude towards such bodies in the US. By way of illustration, the US has yet to ratify the American Convention, among other international human rights instruments).
Finally, I cannot conclude without expressing my personal gratitude to Professor Cavallaro, the Mills Legal Clinic, and the Commission itself for the opportunity to support the Commission at court. It is a rare chance indeed for a law student to experience and participate in meaningful human rights advocacy, and, last week, Enrique and I were part of the team. Not only did our work contribute to the Commission’s legal strategy in both cases, but the Court itself took a vocal interest in the analysis that we produced. During oral argument, the judges asked questions that indicated their interest in developing the jurisprudence the Commission argued. For example, during argument in Ruano Torres v. El Salvador, one judge pondered whether the right to effective assistance of counsel should apply to privately retained as well as state-appointed counsel, and asked the Commission to respond to this question in its final written submissions – on which Enrique and I continue to work. In this way, we are contributing to the development of Inter-American jurisprudence in real time.