October 14, 1993 (*)
This case concerns claims arising from military action taken by
the United States in Panama in December of 1989.
Just before midnight on December 19, 1989, the United States
initiated a military operation in Panama aimed at removing from power
the regime of General Manuel Noriega. The operation involved the mobilization of approximately
24,000 U.S. troops. In an
assault backed by helicopters, gunships and tanks, U.S. paratroopers,
infantry and marines took control of Panama City on December 20, 1989.
In the early morning of December 20, the coalition Government of
Guillermo Endara, believed to have won the May, 1989 elections, was
sworn in and announced the formation of a new administration.
General Noriega, who had taken refuge at the residence of the
Papal Nuncio, surrendered to U.S. authorities on January 4, 1990, and
was taken to the U.S. for arraignment on drug trafficking and money
Isolated elements of the Panamanian Defense Forces continued
armed resistance until January 31, 1990.
The additional U.S. forces deployed in Panama for the invasion
were withdrawn by February 13, 1990.
The petitioners submitted sixty petitions on behalf of named
victims, and on behalf of all other Panamanians similarly harmed by the
invasion, on May 10, 1990. Pursuant
to the receipt of certain supplementary information, the petitions were
consolidated and this case was opened July 2, 1993.
The victims are identified as civilian Panamanians, and in
several instances non-citizen residents of Panama, who did not engage in
combat, but nonetheless suffered the death of family members, personal
injury, and destruction of homes and property as a direct result of
indiscriminate military action carried out by U.S. forces during the
December 1989 invasion of Panama. (See
attached list naming petitioners and victims in this case.)
The complainants dispute the official U.S. count of 202 civilian
and 314 military Panamanians killed as a result of the invasion, noting
that independent sources have estimated many more civilian deaths.
A number of civilians disappeared, and were buried in mass graves
with other victims of the invasion.
Numerous civilians were wounded, and approximately 18,000
civilians remain homeless due to the destruction of their homes by the
invasion. Many of the
homeless live in crowded refugee camps such as the Albrook Encampment.
"Residential areas of El Chorrillo, in Panama City and in
the City of Colon and many other locations were indiscriminately bombed
and fired upon."
The complainants contend that the U.S. Government violated the
fundamental principles of non-intervention
of the OAS Charter. Articles
18 and 20 categorically prohibit military action by one member state
against another. The intervention as well raises Article 27 which provides
that acts of aggression against the sovereignty of one American State
will be considered an act of aggression against the other American
In addition, petitioners claim that the U.S. military forces
acted in "an indiscriminate manner with reckless disregard for the
safety of Panamanian civilians during the U.S. military operations in
Panama" in gross violation of the following Articles of the
American Declaration of the Rights and Duties of Man:
the right to life, liberty, and security
the right to protection of mothers and children
the right to inviolability of the home
the right to work
the right to property
the right to security for all, and the petitioners'
demands of the general welfare and advancement of
a consequence of this intervention in violation of the prohibition on
intervention of the OAS Charter, and in violation of the rights of the
individual set forth in the American Declaration, the United States
should be held responsible for compensating civilian victims who
suffered loss of life, personal injury and destruction of property.
The complainants note that the OAS Permanent Council has
recognized the gravity of the U.S. intervention in Panama and its
complaint alleges other violations of international law, including
Article 3 of the OAS Charter, Article 2(4) of the United Nations
Charter, common Article 3 of the 1949 Geneva Conventions and Articles
51, 52, and 57 of Protocol I to the Geneva Conventions.
complainants contest justifications invoked by the U.S. for its actions.
They assert that the circumstances in Panama just prior to the
invasion did not rise to the level of a threat of imminent armed attack
required to invoke the self-defense exception of Article 51 of the UN
Charter, nor did the circumstances interfere with the functioning of the
Panama Canal as required to invoke the provisions of the Canal Treaty.
Petitioners note that the UN Commission on Human Rights
"denounced the U.S. violation of international law and human rights
petitioners request that the Commission:
Declare that the United States military intervention in Panama
was illegal and violative of the OAS Charter;
Declare that the human rights of Panamanian civilian victims were
violated under the American Declaration of the Rights and Duties of Man;
Declare that the United States violated principles of
non-intervention, the inviolability of sovereignty and human rights
under the UN Charter, the Geneva Convention, the Geneva Protocols, the
Panama Canal Treaty of 1977, and the Treaty Concerning the Permanent
Neutrality and Operation of the Panama Canal of 1977, according to its
obligation to abide by international law under Article 3 of the OAS
Declare that as a consequence of the United States' violation of
international law and the resulting damage to the lives, homes, and
property of Panamanian victims, the United States should compensate
Panamanians who have suffered damages and other losses;
Conduct a full and independent investigation...into the U.S.
intervention in Panama to determine the complete damage, injuries, and
losses to the Panamanian people;
Call for the United States to indemnify all individual Panamanian
complainants herein in the total amount of $250 million U.S. dollars for
the loss of life, personal injuries, and property damages resulting from
the U.S. military operations in Panama;
Engage in such actions as will help secure that Panamanian
victims of the U.S. military intervention are compensated.
In particular that the Inter-American Commission on Human Rights
Demand action by the United States to indemnify all Panamanian
victims of the U.S. military invasion and operations in Panama;
Report to the OAS all violations of international law and human
rights by the United States and to seek that [the] OAS take appropriate
action to secure the integrity, sovereignty, and self-determination of
Demand action by the OAS to have the United States indemnify all
Panamanian victims who suffered from the illegal intervention in Panama.
Call for the immediate withdrawal of all U.S. military forces
Demand that the United States adhere to all the principles of
international law, including the OAS Charter, the American Declaration
of the Rights and Duties of Man, and all other international laws,
treaties and norms as the Inter-American Commission deems appropriate;
Conduct hearings on this case before the Inter-American
Take all necessary actions to bring this case before the
Order such other remedies or actions as the Inter-American
sees just and proper.
Additional Information Submitted by Petitioners
claimants provided additional information concerning the exhaustion of
domestic remedies in a submission dated June 29, 1990.
First, petitioners assert, there is no jurisdiction for claims
against the United States in Panamanian courts.
Pursuant to Article VIII of the Panama Canal Treaty of 1977,
agencies and instrumentalities of the United States are immune from suit
in Panamanian courts. The
treaty, as domestic law in Panama, precludes the possibility of such a
suit, and denies petitioners access to remedies in Panamanian courts.
the rule of law was inoperative in the post-invasion conditions.
Civil functions were halted and taken over by U.S. forces; the
U.S. forces have been restructuring civil functions since December 20,
1989. "It is
inconceivable that the petitioners could receive due process in a
challenge to the legality of the invasion from the judicial system
installed as a result of that invasion."
the relevant domestic forum in which they are required to bring claims
is that of the Panamanian judiciary.
Nonetheless, petitioners have attempted in numerous cases to have
their claims for indemnification resolved through the U.S. army claims
program. In each of these
cases the claims were denied. Furthermore,
method of resolution is incapable of addressing the petitioners' human
petitioners should not be required to bring suit in the courts of the
United States because U.S. courts do not recognize a right to sue the
Government or its officials for the type of acts alleged in this case.
See, Saltany v. Reagan,886 F.2d 438, 441 (D.C. Cir.
The Government's Response
a note dated January 4, 1991, the respondent Government filed its
response to the petitioners' complaint.
The Government denies that it engaged in the human rights
violations alleged, and maintains that the Commission should find the
complaint inadmissible pursuant to Article 32 of its Regulations.
The respondent Government contends: (1) that the Commission does
not have competence over the subject matter of the case and (2) that
domestic remedies have not been exhausted.
regard to the facts at issue, the U.S. Government points out that it
engaged in diplomatic efforts throughout General Noriega's regime to
persuade him to step down, particularly following his indictment by a
U.S. grand jury. The U.S.
Government notes General Noriega's invalidation of elections presumably
won by the opposition, and Noriega's execution of the leaders of an
unsuccessful coup attempt soon after.
"On December 15, 1989, at the instigation of Manuel Noriega,
the Noriega-controlled National Assembly declared without provocation
that a state of war existed between the Republic of Panama and the
United States." Following
that announcement, several attacks on U.S. personnel or their dependents
were carried out by Panamanian Defense Forces personnel.
U.S. Government asserts that President-elect Endara and his
vice-presidents welcomed the intervention when advised of it before the
additional deployment of U.S. troops landed in Panama, and that
President Endara again welcomed it after his swearing-in.
The Government characterizes the actions of its military as
"limited to what was necessary and proportionate, and were
specifically designed to minimize (to the extent possible) injury and
loss to civilians and civilian property."
respect to the issue of the Commission's competence, the U.S. Government
is of the view that this petition "seeks to draw the Commission
into areas that exceed the scope of its competence as it has been
spelled out in Article 111 of the OAS Charter and Articles 1, 18, and 20
of the Commission's Statute."
respondent Government argues that Article 111 of the OAS Charter and
Article 1 of the Commission's Statute establish the Commission as a
"consultative organ" of the OAS, not a body with the inherent
power to adjudicate issues and pronounce remedies that exceed the powers
that have been accorded to it. Consequently, in the view of the U.S. Government, the
Commission "may only review the instant human rights allegations in
reference to the American Declaration, which is an agreed statement of
non-binding general human rights principles."
petitioners are asking the Commission to determine two issues clearly
beyond its mandate and purpose: (i) whether the United States was
justified under the OAS and UN Charters in using military force in
Panama for the purposes stated, and (ii) whether, in undertaking those
actions, the United States properly complied with international legal
instruments and customary international law governing the treatment of
non-combatants during times of armed conflict.
Government contends that its actions were consistent with the OAS and UN
Charters, and with the 1949 Fourth Geneva Convention.
It notes that it is not a party to Convention Protocol I.
U.S. Government considers that the petitioners' claims "are wholly
dependent upon proof of alleged violations of the Fourth Geneva
Convention of 1949 and other international instruments governing the use
of force and the law of armed conflict."
The OAS Member States did not expressly or implicitly consent to
the competence of the Commission through its Statute to adjudicate
matters concerning that complex and discrete body of law.
In the view of the respondent Government those legal authorities
are "extraneous to and fall outside the scope of the Commission's
jurisdiction to interpret or apply."
respondent Government maintains that the Commission is not an
appropriate organ to apply the provisions of the Fourth Geneva
Convention to the United States since the U.S. has not given
"express authority" to the Commission to do so.
The Fourth Geneva Convention "provides a wholly separate
series of internal procedures and remedies for its enforcement,
including the use of protecting powers, the activities of the
International Red Cross and its national counterparts, and the
conducting of inquiries. There
is no basis in the Commission's mandate to preempt, disregard or attempt
to enforce these procedures and remedies."
the American Declaration was adopted in 1948, predating the existence of
the Fourth Geneva Convention signed in 1949.
Thus it cannot be asserted that the Declaration was adopted with
the intention to encompass the principles of the Fourth Geneva
respondent Government claims that the petitioners have failed to exhaust
all available local remedies in both Panama and the United States prior
to bringing this claim before the Commission.
(a) The respondent Government maintains that "while it may
be true that under Article VIII(2) of the Panama Canal Treaty, United
States agencies and instrumentalities may not be sued in the courts or
other tribunals of Panama, petitioners have not addressed in their
pleadings the possibility of pursuing their claims against the
Government of Panama through local judicial, administrative or other
available procedures in Panama."
The U.S. Government asserts that the Endara Government
affirmatively endorsed and approved the United States military operation
in question. It also notes
that the action of the Panamanian Defense Forces contributed to the
losses. The respondent Government maintains that "the Panamanian
judiciary is independent and functioning."
(b) With regard to the exhausting of local remedies by filing
administrative claims, as of January 14, 1991, the United States
Government could only verify that twenty of the named petitioners
submitted claims to the Army Claims Service.
All of these claims have been reviewed and denied according to
the U.S. Army South Command claims service in Panama.
The respondent Government points out that "the U.S. Army has
in fact paid some claims arising from the military operation,"
which demonstrates the need for all petitioners to file administrative
(c) As to the exhausting of domestic remedies by filing judicial
claims, the respondent Government notes that as of January 14, 1991,
"there were pending not less than four lawsuits before the courts
of the United States brought by Panamanian nationals, both individuals
and juridical persons, seeking damage awards against the United States
Government arising out of the U.S. military operation in Panama."
(See, Cencal, S.A., et al. v. United States of America,
Civil Action No. 90-1966 JGP; Panamuebles, S.A. et al. v. United
States of America, Civil Action No. 90-2266 SSH; Industria
Panificadora, S.A., et al. v. United States of America, Civil Action
No. 90-1694 SSH; and Lindo and Madura, S.A. v. United States of
America, Civil Action No. 90-2589.)
(d) Respondent Government continues that the litigation position
of its Executive Branch is that because the Government has not waived
its sovereign immunity with respect to the claims asserted in those
cases, the claims must be dismissed for lack of subject matter
jurisdiction and for failure to state a claim for which relief can be
granted. The courts have
not yet decided this jurisdictional issue.
Even if, however, the courts dismiss the claims, those plaintiffs
will have a full opportunity to appeal any adverse decisions.
Government contends that the petition is inadmissible with regard to the
unnamed Panamanian civilians similarly harmed.
The Government particularly notes Article 32.a of the
Commission's Regulations, which specifies that the name of the
complainant should be included in the complaint.
Government contends as well that the individual petitions lack the
detail and particularity necessary to support a finding as to how the
damage complained of was caused. The
Government cites two examples of individual petitions that do not supply
sufficient information as to time and causation; and argues that
"this lack of specificity falls far short of the kind of `required'
information contemplated by Article 32.b and .c."
the respondent Government points out that "the one billion dollar
infusion of U.S. foreign assistance program benefits for the Panamanian
economy and people should be taken into account in deciding the issue of
exhaustion of remedies."
respondent Government gave Panama $42 million for the "housing of
those displaced from the Chorrillo area, for emergency public works and
to help businesses affected by the looting."
An additional $420 million has been made available for balance of
payments support, public investment, and development support to enhance
Panama's relations with international financial institutions."
The funds are being used for job creation, private sector
reactivation, judicial reform and improving police services.
aid package "represents a broad effective program for the
Panamanian people as a whole. It
is a far more appropriate approach to the needs of the Panamanian people
- regardless of the reasons or causes of their injuries - than any
piecemeal adjudication of isolated, random individual claims that cannot
be determined with any significant degree of accuracy."
a communication dated February 12, 1991, the petitioners presented their
observations to the Government's response.
In their communication, the petitioners respond to the U.S.
position that domestic remedies have not been exhausted, as follows:
(a) The requirement of "exhaustion of domestic remedies is
not an inflexible or rigid rule of law." Case 9102 (Nicaragua),
Resolution 29.86, April 16, 1986, p. 64.
There exist exceptions to the rule in the interest of avoiding
denial of justice. Panamanian
petitioners assert the nonavailability of domestic remedies in light of
the denial of justice inherent in an illegal invasion under
international law that results in human rights abuses;
(b) As domestic law in Panama, the Panama Canal Treaty precludes
a suit against the United States in the Panamanian courts;
(c) With respect to the U.S. assertion that it is the Panamanian
and not the U.S. Government that should be sued due to the Endara
Government's affirmative approval and endorsement of the invasion,
petitioners state that "Guillermo Endara was faced with a fait
accompli...[t]he United States made its plans to invade well
before December 20, 1989...Guillermo Endara was informed of the invasion
just `[b]efore the additional US forces had landed'...Guillermo Endara
stated unequivocally prior to the invasion that he was not in accord
with military intervention by any country."
(d) Petitioners assert that the Panamanian judicial system is not
an independent one. The
fact that the United States is involved in restructuring and
re-establishing governmental and judicial systems is evidence of the
fact that "those systems are still imbued with corruption and
(e) Citing the Velasquez Rodriguez case, the petitioners
argue that "the State claiming non-exhaustion has an obligation to
prove that domestic remedies remain to be exhausted and that they are
effective." In Panama,
the petitioners allege, more than a thousand people have been jailed for
months without having been charged, so that even if the U.S. were
capable of being sued in Panama, the system is incapable of processing
the many claims arising from the U.S. invasion and is therefore
inaccessible and ineffective as a remedy.
(f) The petitioners argue that the army claims service has been
proven an ineffective remedy. Although
the Government states that it has paid some claims, petitioners assert
that no claims made by Panamanian nationals for the type of damages at
issue in the instant case have been paid.
In addition, petitioners point out that no legislation has been
passed by the U.S. Congress to compensate Panamanians for loss of life,
injuries, and other damages resulting from the invasion of Panama.
(g) The petitioners reiterate that forcing Panamanians to file in
the United States, a foreign jurisdiction, would not be a
"domestic" remedy as required by Article 37 of the
(h) The petitioners note that the Government cites four cases
pending before the U.S. District Court for the District of Columbia to
suggest that remedies in the instant case are indeed available through
the U.S. courts. The four
cases, however, are brought on behalf of corporate businesses that seek
to recover for economic losses on the theory that the United States had
an obligation during and after the invasion to control the looting and
other acts by Panamanians that led to their losses.
These are fundamentally different claims based on different laws
than are those brought by the Panamanian petitioners in this case.
(i) The U.S. denies any legal obligation to compensate victims.
An internal U.S. Military Memorandum clearly states that under
U.S. law the Foreign Claims Act, 10 U.S.C. Sec. 2734, prohibits
compensation for damages incurred during combat, and that no exception
should be made to allow for compensation in the case of the Panama
invasion. In addition, the
Memorandum states that, "a program similar to the USAID program in
Grenada would not be in the best interest of the Department of Defense
or the United States because of the potentially huge number of such
(j) The U.S. pledge of $1 billion in assistance has not remedied
the petitioners' losses. In
fact, the President's request for funding was later reduced to $600
million, and the legislation passed by Congress only authorized $420
million. As the U.S. owes Panama at least $450 million in Canal fee
payments, and for U.S. military bases on Panamanian soil - the $420
million does not even meet the debt owed to Panama.
"Moreover, the $42 to 50 million that was sent to Panama did
not go into `housing the displaced from the El Chorrillo area' as
promised by President Bush, but instead went to make up for the U.S.
petitioners also take issue with the Government's contention, first,
that the Commission is limited to fulfilling the role of a
"consultative organ," and, second, that the claims fall
primarily in the purview of the 1949 Geneva Convention and thus, the
Commission lacks jurisdiction to hear this case.
Petitioners cite the admissibility decision in Disabled
Peoples' International et al. v. the United States, Case 9213
(United States)(1987) for the argument asserted in the claimant's case
that the Commission was competent to hear cases such as the instant case
under its OAS Charter, Article 112, mandate to "promote the
observation and protection of human rights."
The Government's Observations
a communication dated May 9, 1991, the respondent Government presented
its observations to the reply of the petitioners dated January 14, 1991.
This communication made the following point regarding the issue
of the exhaustion of domestic remedies:
United States District Court for the District of Columbia dismissed a
lawsuit (Industria Panificadora, S.A., et al. v. United States of
America, Civ. Action No 90-1694) that had been filed against the
United States Government by "Panamanian business firms seeking
damages for the looting, burning and destruction of their commercial
properties by Panamanian civilians during the breakdown of law and order
that occurred when US Armed Forces and the Panamanian Defense Force were
militarily engaged." The
court also expressly disposed of sixteen related suits brought by other
Panamanian plaintiffs seeking to recover money damages.
"[I]t has been and remains the position of the United States
Government that the United States has not waived its immunity from suit
with respect to the claims asserted by the Industria
plaintiffs," but that the matter remains in litigation and "is
on appeal before the United States Court of Appeals for the District of
Columbia Circuit." An
affirmation on appeal would indicate a more substantial basis to
conclude that effective judicial remedies in the United States are
unavailable to petitioners.
Government disputes the petitioners' assertion that the U.S. Congress
has not passed legislation to provide compensation for Panamanian
citizens' losses. The
Government points out the enactment of the "Urgent Assistance for
Democracy in Panama Act of 1990" (P.L. 101-401), which authorizes
shelter and housing guarantees of $12.5 million for 2500 citizens of the
El Chorrillo area.
The Petitioners' Response
filed an additional reply dated May 9, 1991, which essentially
reiterated their earlier arguments on certain issues.
regard to the interim occurrence of the summary dismissal of Industria
Panificadora and the related cases, the petitioners assert this as
clear proof that U.S. law provides no remedies for these types of
petitioners characterize the Government's emergency assistance as
The few shelters that have been constructed in the Chorrillo
district are considered among the residents of El Chorrillo and
elsewhere to be inhumane and unsafe.
These shelters have no windows, are poorly constructed and are
dangerously small....No one is receiving any assistance which is
comparable to the amount of losses they sustained.
September 19, 1991, a hearing was held before the Commission in which
oral presentations were made by the petitioners' and the Government's
representatives on the issue of admissibility.
At that time the petitioners' representative presented 212
additional individual petitions to be included in this case (see the
list of petitioners and victims attached).
Petitioners' Supplemental Petition
212 petitions join to the case additional Panamanian civilian victims
who suffered death, personal injury, and destruction of homes and
property as a direct result of the U.S. invasion of Panama. (The
additional petitioners are included in the list attached.)
They bring claims on their own behalf, on behalf of those named,
and on behalf of those similarly situated.
"No other remedies are available to them to address the
illegality of the U.S. invasion and to seek indemnification for their
losses resulting from the illegal military intervention."
The supplemental cases present further evidence of the
"massive destruction and profound victimization" caused by the
U.S. actions in violation of the OAS Charter and the American
Additional Information Submitted by the Petitioners
a note dated March 12, 1992, the petitioners' representative advised the
Commission that the United States Court of Appeals for the District of
Columbia had, in its decision of March 6, 1992, affirmed the lower
court's denial of access to any remedy through the U.S. courts for
damages suffered by Panamanian business enterprises as a result of the
invasion. The decision, Industria
Panificadora, S.A. et al. v. United States, No. 91-5147 (D.C. Cir.
1992), further verifies that U.S. legislation does not provide any
remedy for the claims presented by the petitioners in this case. The decision shields discretionary governmental decisions to
engage in military action from tort liability.
a note dated July 1, 1992, the petitioners submitted information they
assert shows that U.S. Government economic aid to Panama "has not
gone and was never intended to serve the poor who were
disproportionately harmed by the 1989 U.S. invasion of Panama."
The submission asserts that U.S. economic aid has not
significantly affected the economy or underlying political instability;
that 70% of the funds aimed at helping the poor and assisting democratic
institutions have yet to be disbursed; that too much was spent on the
banking sector; that the primary portion of the aid went to pay debt,
improve infrastructure and provide business credit.
a note dated July 9, 1992, the petitioners advised the Commission that
the Fourth Circuit Court of Appeals had affirmed the lower court ruling
in Goldstar (Panama), et al. v. United States of America, No.
91-2229 (4th Cir. 1992) that held that subject matter for claims such as
those before the Commission did not exist in U.S. courts.
This holding, and the Industria Panificadora holding, the
petitioners assert, provide conclusive proof that the remedies requested
in this case are not available through the U.S. court system.
a note dated July 31, 1992, the petitioners submitted the text of a U.S.
General Accounting Office Report to the Chairman of the Subcommittee on
Foreign Operations, entitled "Aid to Panama: Improving the Criminal
Justice System." The petitioners assert that this report shows that the
Panamanian judiciary is still troubled by serious problems, including a
severe backlog of cases; a lack of experienced judges; untrained court
personnel; and prolonged detention without trial.
The Government's Observations
to the Commission's reiteration of its request for information in the
case of July 29, 1992, the United States Government filed its
observations on September 16, 1992.
Government first addresses the question of U.S. remedies available to
(a) The Government submits that the Federal Tort Claims Act, 28
U.S.C sections 2671-2680, is the only tort claims statute that provides
a judicial remedy against the United States Government in the courts of
the United States. The
Government concedes that this Act does not apply to the petitioners'
claims because the claims arose overseas, and because the Act prohibits
compensation for claims arising out of combat activities of U.S. armed
(b) The Foreign Claims Act, 10 U.S.C. section 2734, authorizes
Department of Defense payment to "foreign inhabitants."
The statute prohibits compensation for claims arising from
hostile action or directly or indirectly arising from the activities of
U.S. forces in combat.
(c) Article 20(8) of the Agreement in Implementation of Article
IV of the Panama Canal Treaty, 33 UST307; 1280 UNTS 201, specifies that
tort claims against the U.S. Government will be processed through the
authority provided in the Foreign Claims Act, whether the claim is
accepted, denied, or lack of authority to pay a claim is decided.
Government provides the following figures of claims heard as of
September 16, 1992, by the Army Claims Service:
(a) Total Operation Just Cause Claims:
(b) Total Dollar Amount Claimed: $372,706,376.15
(c) Chart Breakdown:
AMOUNT CLAIMED AMOUNT PAID
than 100 of the claims were brought by U.S. citizens, the remainder by
Government concedes that, in view of recent U.S. court rulings upholding
the argument that the Government had not waived its immunity to suit by
the Panamanian plaintiffs and therefore the courts lacked subject matter
jurisdiction, the Government "considers it unlikely that the
petitioners here would obtain a different result, should they seek a
judicial remedy in U.S. courts. (See,
Cencal, S.A., et al. v. United States of America, Civil Action
No. 90-1966 JGP; Panamuebles, S.A. et al. v. United States of America,
Civil Action No. 90-2266 SSH; Industria Panificadora, S.A., et al. v.
United States of America, 763 F. Supp. 1154 (D.D.C.), 957 F.2d 886
(D.C. Cir. 1992); and Lindo and Madura, S.A. v. United States of
America, Civil Action No. 90-2589; Goldstar (Panama), et al. v.
United States of America, No. 91-2229 (4th Cir. 1992) .)
Government reiterates that the petitioners have not exhausted remedies
available to them in Panamanian courts for losses attributable to
actions of the PDF or the Dignity Battalion.
This, the Government contends, shows a failure to exhaust
domestic remedies and makes the petition inadmissible.
Government reiterates its arguments that the petitions are inadmissible
with respect to the unnamed victims; and that the petitioners' claims
lack the detail and particularity necessary to support a finding of
Government also reiterates its argument that U.S. economic assistance to
Panama "is a far more appropriate approach to the needs of the
Additional Information Submitted by Petitioners
petitioners submitted their arguments as to "The Competence of the
Inter-American Commission of Human Rights to Address Claims Arising Out
of Combat Situations" by a note of December 30, 1992.
The petitioners argue that the Commission must protect human
rights in all situations, including armed conflict.
The most fundamental of all rights, the right to life, represents
a norm of jus cogens. Petitioners
note the nonderogability of the right under Article 27 of the American
Convention, and the nonderogability of the right as a peremptory norm.
petitioners submit that the Commission's mandate contains no provision
restricting its jurisdiction to peacetime.
It is observed as well that the Commission is not merely a
consultative organ to the OAS, as submitted by the United States
note the concern for protecting fundamental rights in times of war
evidenced by the American States during the period in which the Charter
and the American Declaration were promulgated.
This concern is reflected in the text of the Declaration in the
Defense of Human Rights (1938) and Resolution XL on "International
Protection of the Essential Rights of Man."
Petitioners contend that the Commission's failure to investigate
the merits of the case would contradict the terms of its mandate, and
its historical foundation.
cite the Inter-American Court's advisory opinion concerning "`Other
Treaties' Subject to the Advisory Jurisdiction of the Court" to
support the Commission's use of treaties, norms, and customary law in
determining matters within its jurisdiction.
The Commission has referred to other treaties, including the
Geneva Conventions, in its reports on Argentina, Nicaragua, and El
Salvador. Other treaties
applicable to the present case would include the Geneva Conventions of
1949 and the Additional Protocols.
maintain that common Article 3 of the Geneva Conventions applies to this
case, as the International Court of Justice has set forth in the Corfu
Channel case that it provides the minimum standard of protection to
be observed in all types of armed conflict.
Common Article 2 provides that the Conventions apply to all armed
conflicts. The United States is directly bound as a party to the
Conventions, and to the extent the Conventions represent customary law,
it is indirectly bound as well. Petitioners
reiterate that the Court has held that the jurisdiction of the
Inter-American system extends "to any provision of human rights set
forth in any international treaty applicable in the American
the United States has not ratified the Additional Protocols, the
provisions of Protocol I applicable to this case are recognized as
customary law. As a
signatory to the Protocols the United States is obliged to refrain from
acts contravening the purpose of the Protocols.
Article 57 of Protocol I requires that precautionary measures be
taken to protect civilian populations and civilian objects. The Protocol also codifies certain customary principles such
as the prohibition of indiscriminate attacks, and the prohibition of
direct attacks against civilians. U.S.
combat regulations reflect some of the Protocol's provisions.
The United States supported UN General Assembly Resolution 2444
"Respect for Human Rights in Armed Conflict," and has
acknowledged that it reflects binding customary law.
The resolution states that the means parties may use in warfare
are not unlimited, that civilian populations may not be the subject of
attack, and it sets forth the principle of distinction.
recall that the Commission has exercised its competence over situations
relating to armed conflict many times. They cite the Commission's work
in the Dominican Republic in 1965, in El Salvador and Honduras, and more
recently in Haiti following the military coup.
They note as well the Commission's decision on admissibility in a
case similar to this one, Case 9213.
reiterate their request that the Commission consider the alleged
violations of Article 18 and 20 of the Charter.
They assert a direct causal relationship between the violation of
the Charter and the violation of human rights in this case.
This issue, they maintain, is within the competence of the
Commission. Alternatively they request that the Commission submit the
question of the legality of the invasion to the Inter-American Court for
an advisory opinion.
pertinent parts of the petitioners' December 30, 1992 communication were
transmitted to the Government by a note of January 12, 1993.
a note of January 21, 1993, the petitioners submitted additional
information, informing the Commission that the United States Supreme
Court had denied certiorari in Industria Panificadora, S.A. et al. v.
United States, 113 S.Ct. 304 (1992); Goldstar (Panama), S.A. et
al. v. United States, 113 S.Ct. 411 (1992).
The petitioners set forth that this final decision by the highest
court of the United States confirms the petitioners' argument that no
remedies are available in the courts of the United States to victims of
the 1989 invasion.
information was submitted to the Government in pertinent part by a note
of January 29, 1993.
a note of January 29, 1993, the parties were informed that the
Commission had requested that they present their arguments concerning
this stage of the case at a hearing to be held February 25, 1993.
parties attended the February 25, 1993 hearing, and both presented
written submissions relative to their arguments as to the admissibility
of the case. The
petitioners submitted a response dated February 26, 1993 to the
Government's written submission. This
response was transmitted to the Government.
a note of April 16, 1993, the Commission requested the Government to
supply information on the substantive aspects of the case.
This request was reiterated June 21, 1993.
Government addressed the Commission July 12, 1993 for the purpose of
indicating that it intended to present a filing in this case "as
soon as possible." To date the Commission has not received this filing.
The complaint is in compliance with Articles 38 and 39 of the
Commission's Regulations. The complaint also meets the procedural requirements set
forth in Article 32.a, b and d. Two
threshold issues are raised by the respondent Government with respect to
the admissibility of this complaint:
(a) Does the Commission have competence over the subject matter
dealt with in the petitions?
(b) Have domestic remedies been exhausted or do any of the
exceptions set forth in Article 37 of the Commission's Regulations
excuse the petitioners from exhausting domestic remedies?
The Competence of the Commission to Consider Cases Alleging
Violations of the Rights Set Forth in the American Declaration
The United States Government has contested various aspects of the
Commission's competence or jurisdiction over the subject matter of the
petitions in arguing that this case is inadmissible.
The Commission's jurisdiction over member states not party to the
American Convention derives from the relevant provisions of the Charter
of the Organization of American States and from the prior practice of
the Commission. Article 1
of the Commission's Statute, reflecting Article 111 of the
Organization's Charter, sets forth the Commission's mandate to promote
the observance and protection of human rights.
As to non-ratifying member states, the rights concerned are those
delineated in the American Declaration of the Rights and Duties of Man.
The Charter and the Declaration are sources of international
obligation for members states of the Organization of American States.
Article 20 of the Commission's Statute expressly provides that as
to non-ratifying member states, the Commission is authorized to examine
communications and other information submitted, to request information
from the Government concerned, and to make recommendations in relation
to the foregoing. Article
20 further obliges the Commission "to pay particular attention to
the observance of the human rights referred to in Articles I, II, III,
IV, XVIII, XXV, and XXVI" of the Declaration.
Article 51 of the Commission's Regulations provides that:
The Commission shall receive and examine any petition that
contains a denunciation of alleged violations of the human rights set
forth in the American Declaration of the Rights and Duties of Man,
concerning member states of the Organization that are not parties to the
American Convention on Human Rights.
to Article 52 of the Commission's Regulations, petitions alleging the
commission of violations by non-ratifying member states are subject to,
among other provisions, the basic requirements listed in Article 32 of
the Regulations. Such
petitions are also subject to the preliminary screening provided for in
Article 35 as to the issue of exhaustion of domestic remedies and
questions of admissibility based on the record.
These provisions set forth the competence of the Commission in
relation to petitions, such as the one at issue, alleging breaches by
member states that have not ratified the Convention.
A combined reading of these provisions clearly
the Commission's authority to admit and consider petitions alleging the
commission of violations of the rights recognized in the American
The United States Government has also contested the
characterization of the facts on which the petitions are based as
alleging violations of human rights.
Consistent with Article 41 of the Regulations, the Commission
will declare inadmissible petitions which fail to meet the basic
requirements of Article 32, which fail to state claims, or which are
manifestly groundless. This
analysis may be interpreted with reference to Article 47 of the American
Convention which provides that petitions which fail to "state facts
tending to establish a violation of the rights guaranteed" in the
Convention shall be considered inadmissible.
It is the Commission's view that the petition sets forth facts
from which may be determined the elements constituting a violation of
the rights contained in the American Declaration.
Where it is asserted that a use of military force has resulted in
noncombatant deaths, personal injury, and property loss, the human
rights of the noncombatants are implicated. In
the context of the present case, the guarantees set forth in the
American Declaration are implicated.
This case sets forth allegations cognizable within the framework
of the Declaration. Thus,
the Commission is authorized to consider the subject matter of this
Exhaustion of Domestic Remedies
Article 37.1 of the Commission's Regulations provides that:
For a petition to be admitted by the Commission, the remedies
under domestic jurisdiction must have been invoked and exhausted in
accordance with the general principles of international law.
The petitioners assert that first, as suit against the United
States or its instrumentalities in Panamanian courts is precluded by the
terms of the Canal Treaty, which has the status of domestic law in
Panama, domestic remedies through the courts there are unavailable.
Second, petitioners assert that the army claims program
established by the United States to handle claims arising from the
invasion has proven to be essentially nonavailable or ineffectual due to
its pattern of denial of the type of claims involved here; and
furthermore, that it is not competent to offer the remedies sought by
the petitioners. Third, the
petitioners argue that they should not be required to file suit in the
courts of the United States as that forum is not the applicable domestic
forum, and moreover, such suit is precluded by the law of the United
Pursuant to Article 37.3, when the petitioner asserts an
inability to prove exhaustion, the Government bears the burden of
showing that domestic remedies remain to be exhausted.
The Government has conceded that it "considers it unlikely
that the petitioners here" would prevail in the domestic fora of
the United States, as its courts had determined that domestic law barred
all such suits on the basis of sovereign immunity.
(Government's Submission of September 16, 1992, p. 4.)
Moreover, the Government has recognized "that under Article
VIII(2) of the Panama Canal Treaty, United States agencies and
instrumentalities may not be sued in the courts or other tribunals of
submission of January 4, 1991, p. 10.)
The Commission therefore concludes that the domestic courts of
Panama and the United States are fora unavailable to the petitioners to
invoke their claims. The
Government continues to maintain its view that the army claims program
is the applicable forum to which the petitioners are required to bring
their claims, and that because only twenty of the individual petitioners
have filed such claims and been denied, the case is inadmissible for
failure to exhaust this remedial mechanism.
Procedurally, the American Convention in Article 46, and the
Commission's Regulations in Article 37, require that domestic remedies
be "pursued and exhausted in accordance with generally recognized
principles of international law." The recognized principles of international law dictate that
exhaustion is required only where adequate and effective remedies are
Adequate domestic remedies are those which are suitable to
address an infringement of a legal right....not all are applicable in
every circumstance. If a
remedy is not adequate in a specific case, it obviously need not be
exhausted....A remedy must also be effective -- that is, capable of
producing the result for which it was designed.
respect to the issue of exhaustion of domestic remedies, then, by the
terms of the Government's own argument this case would be admissible at
least as to the twenty individual petitioners in this case known to have
brought claims before the U.S. army claims program which were denied.
With regard to the other individual petitioners, the issue is
whether the remedy provided by the army claims program was indeed an
available and effective remedy such that their failure to exhaust that
remedy renders their claims inadmissible.
scope of this domestic remedy that the United States asserts is the
applicable remedial channel may be determined first by examining the
legislation authorizing the claims service to make payments.
The terms set forth in the Foreign Claims Act, 10 U.S.C. section
2734, include compensation for loss of or damage to real property,
personal property, personal injury or loss of life, "if the damage,
loss, personal injury, or death occurs outside the United States...and
is caused by, or is otherwise incident to noncombatant activities of,
the armed forces...." A
claim under these terms will be allowed "only if...it did not arise
from action by an enemy or result directly or indirectly from an act of
the armed forces of the United States in combat...."
scope of this remedy may also be determined by examining how the claims
service interprets its authority in practice.
A memorandum [submitted by petitioners, referred to in the first
part of this report at para. 33(i)] identified by subject as
"Operation Just Cause Claims - Lessons Learned" authored by a
chief in the Special Claims Branch, supports a literal reading of the
prohibition on combat-related claims set forth in the Foreign Claims
Act. The memorandum notes
the Act's "prohibition against payment of combat related
claims;" notes that one focus of the claims service's efforts was
"ensuring that DA staff and the Department of State were aware that
the Army was prohibited from paying combat related claims;" and
notes that another focus was on obtaining a consensus within the army
staff that an exception to the prohibition, as was made with the USAID
program in Grenada, would not be in the best interests of the United
States "because of the potentially huge number of such
claims." It may be
noted that the memorandum reflects that the identification and
adjudication of claims resulting from the loss of goods in transit to or
from Panama, and resulting from the appropriation of personal property
for use by the army formed a very significant part of the claims
Commission also notes the letter dated March 25, 1990, from the Command
Claims Service to Jose Isabel Salas.
Mr. Salas, one of the individual petitioners in this case, had
reported the death of his wife, injury to three other family members and
extensive property damage due to military gunfire to the claims program
and requested compensation. The
letter from the Claims Service acknowledges receipt of the "report
of your wife's death resulting from combat operations during Operation
`Just Cause'" but concludes "there is no legal authority to
compensate you for your loss."
twenty petitioners that United States records show filed claims and were
denied suffered damage attributable to combat-related activities, as
reflected by the substance of their individual petitions in this case.
The denial of each of these claims is evidence of a pattern of
practice of the claims program. This
denial is entirely consistent with the text and indicated purpose of the
authorizing legislation by which payment is limited to non-combat
claims program, by the terms of its authorizing legislation and as
reflected in its practice, is limited to the payment of non-combat
related claims. The
substance of the individual petitioners' claims are, however, combat
related. The petitioners
seek measures to remedy damage suffered as a result of the combat
actions of United States armed forces which constituted the invasion.
claims program does not provide the petitioners with the possibility of
redress appropriate to the remedies they request.
"Adequate domestic remedies are those which are suitable to
address an infringement of a legal right....not all are applicable in
every circumstance." The
claims program does not provide a forum for resolution of the type of
violations which form the gravamen of the petitioners' complaint.
"If a remedy is not adequate in a specific case, it
obviously need not be exhausted."
conclusion, as to the threshold issues raised, the Commission is
authorized by means of its established competence to receive and
consider petitions alleging the violation by a non-ratifying member
state of rights recognized in the American Declaration of the Rights and
Duties of Man. The facts
upon which the instant petitions are grounded provide a basis from which
may be determined a violation of the Declaration's provisions.
Given the lack of adequate and effective remedies capable of
repairing the violations alleged, the requirement that domestic remedies
be exhausted is inapplicable.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare admissible the petitions presented by the petitioners
in this Case 10.573.
To transmit this report to the Government of the United States
and to the petitioners.
To proceed to consider the merits of the case.
4. To order publication of this report.
(*) Commission member Prof. Michael Reisman abstained from participating in the consideration and voting on this report.
Pursuant to receiving Report 31/93, on February 1, 1994 the
Government of the United States submitted its views contesting the
Commission's finding of admissibility in Case 10.573, and asserting
that the case should be dismissed on procedural and substantive
grounds. The Government
argues that the petitioners have failed to exhaust domestic remedies
available to them in Panama. The
petitioners, the Government insists, should have requested "ex
gratia payments for losses arising from the actions of
Panamanian military units" engaged with United States forces.
The Government also contends that the petitioners should have
sought redress from the Government of Panama through application to
the domestic judicial system. Thus, the Government asserts that the Commission's decision
is procedurally flawed and must be corrected.
The Government also
reiterated the substantive grounds it has previously asserted as
barring admissibility: United
States military action in Panama
(continued) (Continuation) "was
entirely justified under, and consistent with, international
law;" the military action was supported by the terms of the
Panama Canal Treaty; and the military operations were conducted in
compliance with the applicable law of armed conflict and provisions
of humanitarian law. Because
the Commission, the Government contends, lacks the authority to
interpret or apply general international law, the law of armed
conflict, or humanitarian law, there is no substantive basis upon
which the Commission could decide this case.
THE COMMISSION OBSERVES:
The obligation to exhaust domestic remedies contained in Article 46
of the American Convention requires that the remedies shown to exist
within the legal system of the responsible state must be utilized
and exhausted. Remedies
which do not offer the possibility of redressing the alleged injury
cannot be regarded as effective, and therefore need not be
obligation to exhaust domestic remedies does not require petitioners
to exhaust remedies available in a state against whom a petition has
not been lodged. The
texts of Article 46 of the American Convention, Article 20 of the
Commission's Statute, and Article 37 of the Commission's Regulations
clearly indicate that the remedies to be exhausted are those of the
legal system of the state against whom a violation is alleged.
In this case the respondent state is the United States, and
the obligation to exhaust domestic remedies refers only to remedies
available through the legal system of the United States.
As to the Government's
substantive arguments, at this stage of the case, the Commission
need only restate that pursuant to the terms of its mandate and
procedures it is clearly authorized to admit and consider petitions
alleging the commission of violations of rights recognized in the