OF THE COMMISSION
TO THE ADMISSIBILITY
Disabled Peoples' International et al,
the United States
The facts of the case as submitted by the parties may be
summarized as follows:
November 5, 1983 Disabled Peoples' International (D.P.I.) et al.
filed a complaint with the Commission on behalf of the "unnamed,
unnumbered residents, both living and dead, of the Richmond Hill Insane
Asylum Grenada, West Indies" against the United States.
Monday, October 24, 1983 the Richmond Hill Insane Asylum in Grenada was
bombed by military aircraft of the United States of America.
U.S. Government sought to have the petition declared inadmissible since
the "unnamed, unnumbered residents" were not identified as
required by the Commission's Regulations.
of D.P.I. et al. traveled to Grenada December 17-21, 1984 to
correct the defects in the original petition. The D.P.I. et al.
lawyers identified the following 16 persons who were killed as a result
of the bombing of the asylum:
the following six persons who were injured:
applicants' complaint requests that:
to Article 26 of the Commission's Regulations that the Commission
investigate the current situation at Richmond Hill Insane Asylum in
Grenada. Applicants invoke Article 26 based on the "possible
irreparable damage" which may occur to persons who are still
residents in the bombed-out facility.
to Article 34(2)(c) of the Commission's Regulations that the requirement
of exhaustion of domestic remedies be waived. Applicants allege that
domestic U.S. remedies are not sufficient to protect the human rights of
defenses of military necessity or military error not be accepted to
excuse or justify violations of the right to life, liberty and security
of the person, and
that acts committed in violation of the OAS Charter are not
subject to military necessity or military error defenses; and
that acts committed in violation of the Geneva Conventions of
1949 are not subject to military necessity or military error defenses.
this connection applicants allege a violation of:
- Articles I and
XI of the American Declaration of the Rights and Duties of Man
("American Declaration") given the current conditions at the
- Article I of
the American Declaration in so far as the aerial bombing resulted in
deaths and injury;
- The Convention
Relative to the Protection of Civilian Persons in Time of War (The
Fourth Geneva Convention).
PROCEEDINGS BEFORE THE COMMISSION
Commission forwarded the pertinent parts of the complaint to the U.S.
Government on November 14, 1983, requesting information thereon within
90 days. The Commission's request for information was stated not to
constitute a decision as to the admissibility of the communication.
letter received May 7, 1984 the U.S. Government acknowledged receipt of
the complaint and requested a short delay over the 90 day period for the
submission of its response.
note of September 21, 1984 the U.S. Government submitted its response to
the complaint which it argued should be declared inadmissible.
SUBMISSIONS OF THE PARTIES
respondent Government's submissions (of September 21, 1984)
1. The legal
instruments upon which petitioners rely are outside of the Commission's
U.S. Government maintains that the petition asks the Commission to
determine matters outside the competence assigned to it by Article 112
of the OAS Charter and by the Commission's Statute and Regulations. The
U.S. Government further maintains that the Commission is not an
appropriate organ to apply the Fourth Geneva Convention to the United
States because "the Geneva Conventions govern the relations between
nations in times of armed conflict, a broad subject that extends beyond
this Commission's mandate, i.e., examination of the enjoyment or
deprivation of the 'rights set forth in the American Declaration of
Rights and Duties of Man'."
U.S. argues, in the alternative, that "putting aside the question
of the Commission's competence, it is clear that the actions of the
United States were entirely consistent with the Fourth Geneva
failure to exhaust domestic remedies renders the petition inadmissible.
U.S. Government maintains that "only the Government of Grenada
(...) can authorize reconstruction of the mental hospital or can
determine where patients will be housed in the interim", and
therefore the petitioners should seek redress from the Government of
Grenada, and the exhaustion requirement should not be waived.
the U.S. Government states that the victims had access to remedies
against the United States. The U.S. Government established a procedure
by which the U.S. made payments to persons and entities that incurred
damage during October-November 1983. Any of the mental patients (or
their survivors) were allegedly entitled to take advantage of this
3. The U.S.
Government further maintained that the complaint should be declared
inadmissible because the victims were not identified. As stated above,
this defect was corrected by the Petitioners and need not be considered
applicants' submissions (of February 8, 1985)
claims are within the competence of the Commission.
maintain that since Article 112 of the OAS Charter provides that:
shall be an Inter-American Commission on Human Rights, whose principal
function shall be to promote the observance and protection of human
this complaint is within the Commission's competence.
violations of Articles I and XI of the American Declaration
maintain that the deaths and physical injuries of helpless mental
patients caused by purposeful armed attack on their hospital constitute
violations of Articles I and XI of the American Declaration.
The Commission may be guided by general international law
state that their claim is based on Articles I and XI of the American
Declaration but that these provisions be construed in conformity with
other relevant international rules protecting the human person, such as
the Geneva Conventions.
argue that to do so is consistent with both regional and international
understanding of the competence of protection systems. Applicants cite
as authority: Advisory Opinion "Other Treaties" subject to the
Consultative Jurisdiction of the Court, Inter-American Court of Human
Rights, Ad. Op. Bo. OC-l/82 (September 24, 1982), and 1981-82 Annual
Report, Inter-American Commission on Human Rights, OAS Doc.
OEA/Ser.L/V/II.57 (1982) at 116 (application of Geneva Conventions to El
c) The right to
life is non-derogable.
maintain that the right to life is non-derogable and is a pre-emptory
norm of international law (jus cogens) regardless of which
treaties have been ratified by that state. Applicants note that all
relevant international instruments protect civilians from derogation of
this right even in states of emergency.
The U.S. Government may not invoke exceptions to the norm that
the right to life is non-derogable.
maintain that the right to life is in fact derogated during wartime.
Applicants argue that the Geneva Conventions, customary humanitarian
law, general principles of civilized nations and The Hague Convention,
must be consulted to ascertain whether the U.S. Government's defense
states a permissible exception to the right to life.
continued violation of Article XI of the American Declaration.
maintain that the insane asylum was and still is in shambles and that
the residents continue to suffer serious medical and health problems.
f) Article 26 of
maintain that the petition is admissible under the emergency
jurisdiction provided for by Article 26 of the Commission's Regulations.
have satisfied all requirements for exhaustion of domestic remedies.
maintain that they have no domestic remedies to exhaust. They have not
initiated judicial proceedings in U.S. courts because at the time the
petition was filed, the dead and injured Grenadans were not members of
DPI or IPI, the two organizations representing the victims. U.S. law
requires that plaintiffs have actual injuries in order to have standing
to sue. Applicants assert that U.S. law would not allow a domestic suit
since petitioners allege death and injuries to foreigners incurred
outside the territorial borders of the U.S., and in addition, the U.S.
Foreign Claims Act and the Military Claims Act both preclude claims
arising from military actions.
further assert that a suit in Grenadan courts was impossible at the time
of filing due to the fact that the Grenadan judicial system was in
complete disarray and that the Courts were not functioning.
also point out that the victims were unable to participate in the U.S.
claims process. As mental patients they were not and are not now free to
come and go. U.S. Government agents did not seek out the injured asylum
victims to receive their claims and the victims could not go to the U.S.
Government. Applicants allege that no agent of the U.S. assisted the
victims in presenting claims despite the fact that the U.S. Government
knew where they were.
maintain the admissibility of their complaint and request that the
Commission find that the U.S. Government has violated Articles I and XI
of the American Declaration and to make the appropriate recommendations.
In the alternative, they request that the Commission facilitate a
friendly settlement between the parties if such remedy is available to
States that have not ratified the American Convention.
respondent Government's second submissions
August 26, 1985)
U.S. Government reiterated the positions expressed in its initial
submission but included the following precisions.
1. The Petition is
outside of the Commission's competence.
U.S. Government states that "although petitioners refer "to
Articles I and XI of the American Declaration, the gravamen of their
petition is the contention that the United States violated the law of
armed conflict, particularly the Fourth Geneva Convention, which
pertains to the protection of civilians in time of war." The U.S.
Government argues that "only if" the Commission concludes that
the U.S. violated the law of armed conflict could the Commission find in
petitioners' favor, and since the OAS member states did not consent to
the Commission's jurisdiction over that subject, the petition is
inadmissible. The U.S. maintains that it is a fundamental principle of
international law that international tribunals do not have the
competence to decide a particular dispute without the express consent of
each State involved in that dispute. Repondent Government cites: Case
of Monetary Gold Removed from Rome in 1943, 1954 I.C.J.
Rpts., p. 32 as authority for this argument.
U.S. Government states that the Commission has been empowered by the OAS
member States with competence only over "the rights set forth in
the American Declaration of the Rights and Duties of Man." The OAS
member States did not grant to the Commission competence "to
adjudicate matters arising under the complex and discrete body of
international law that governs armed conflict," and "moreover,
that body of law contains its own procedures for the resolution of
alleged violations thereof, such as the enquiry procedure contained in
Article 149 of the Fourth Geneva Convention."
the U.S. Government dismisses the applicants' contention that the
Commission has applied the law of armed conflict to El Salvador. The
phrase in question cited from the 1982 Annual Report "cannot be
construed as an application by the Commission of the law of armed
conflict to a member State".
2. The Petition is
inadmissible because petitioners did not exhaust domestic remedies.
U.S. Government reiterated its position that it had established a
procedure whereby Grenadan individuals and entities could present claims
for compensation, and that "it appears that the Richmond Hill
mental patients, or their survivors, could have presented precisely the
sort of claim that has repeatedly been compensated under this
program." According to Respondent Government, the petitioners fail
to demonstrate that "they or the individuals they purport to
represent should not be required to exhaust domestic remedies against
the United States," and that petitioners "should not be
excused from the exhaustion requirement where none of the exceptions in
Article 34.2 apply."
Organizational Petitioners have not Demonstrated that they Represent the
U.S. Government challenges D.P.I. and I.D.I.'s claims to represent the
cause of the dead and injured mental patients, in part, because they did
not assist them or their survivors in the filing of claims against the
U.S Government. The U.S. recognizes that the Commission does not require
the consent of the victim in order to admit the petition. The petition,
the U.S. states, complains about the bombing of the hospital and about
conditions after the bombing. The U.S. responds that "to the extent
that patients, their guardians, or their survivors desired compensation
for injury or death resulting from the bombing, a well-publicized
procedure was available (...) to the extent that they seek relief from
present conditions it is futile to address such a grievance to the
Settlement is Not Appropriate in this Case.
U.S. Government rejects applicants proposal of a friendly settlement
procedure for two reasons: 1) the American Convention does not apply to
the United States, and 2) a friendly settlement procedure would require
the Commission to apply the law of armed conflict to the United States,
"and would therefore exceed the Commission's competence."
applicants response of February 4, 1986
1. The issue of
the Commission's competence
reiterate that they bring this case under Articles I and XI of the
maintain that the "Commission could find a violation of the right
to life and security of the person and a right to the preservation of
health with no mention of aggravated violations due to the occurrence of
the violations in the course of armed conflict. Both human rights and
humanitarian law prohibit the acts admitted to. Petitioners raise
humanitarian law both to answer possible defenses of Respondent and
because Petitioners maintain that humanitarian law as a whole is subject
to interpretation of the Commission where the right to life and other
rights are violated by a party to armed conflict."
2. Express consent
for a particular action is not required.
reiterate their position that the Commission has competence to apply
international humanitarian law rules to OAS member States.
exhausted domestic remedies
reiterate that at the time the U.S. claims procedure was instituted in
Grenada the victims were committed mental patients at the Richmond Hill
Facility "unable to leave or exercise their right to submit claims
to Respondent." Applicants argue that respondent did not send a
representative to visit the asylum to assist the victims in filing
claims. Applicants point out that respondent knew of the status of the
patients since the petition had already been filed and the respondent
had been notified by the Commission. Applicants further state that they
seek relief from the conditions of the facility caused by the U.S.
Government's armed attack on it.
request determination on the merits
urge the Commission to decide the merits of the case given that the U.S.
Government is not amenable to a friendly settlement procedure.
issues are raised by the applicants and the respondent Government:
Do the alleged facts constitute a prima facie violation of
a human right recognized in the American Declaration by a member State
of the OAS?
Have domestic remedies been exhausted or do any of the exceptions
set forth in Article 37 of the Regulations excuse the applicants from
exhausting domestic remedies?
Inter-American Commission on Human Rights sitting in private on April
17, 1986, the following members being present:
THE APPLICATION ADMISSIBLE.
remedies were not provided by the legislation of Grenada or the United
States; given the ad hoc nature of the U.S. compensation
program, the evident failure of the U.S. Government to contact these
incapacitated victims, and the unwillingness of the U.S. Government to
compensate these victims subsequent to the expiration of the ad hoc
compensation program, lead the Commission to conclude that the domestic
remedies could not be invoked and exhausted so as to render the
provision of Article 37 (2) (a) applicable.
Mr. Bruce McColm, an American national, pursuant to Article l9 of the
Regulations, did not participate in the consideration of this matter.
Mr. Monroy Cabra was absent.