CHAPTER I

INTRODUCTION

1.                 The aftermath of the September 11, 2001 terrorist attacks has provoked a process of collective introspection during the year 2002 regarding the means employed to clarify and adjudicate responsibility for the commission of these kinds of crimes and the intensity of the strategies pursued in order to avert them.  The legitimacy of these adjudicative and preventive efforts is related to the very purpose of democracy and therefore their implementation must not disrespect the rule of law.  Notwithstanding the exceptional circumstance justifying their adoption or their magnitude, anti-terrorist initiatives must be pursued with full respect of international law and international law of human rights.  This is an area in which OAS member states must carefully preserve the balance between their duty to protect civilians and the institutions of democracy, and their obligation to ensure the proper administration of justice pursuant to due process guarantees.

2.                 In an effort to provide member states with guidance on these matters, in December 2002 the Commission made public its “Report on Terrorism and Human Rights” in which it presented a study on the enforcement and respect of human rights vis-à-vis anti-terrorists initiatives legitimately adopted by member States.  The Commission based the study on its four decades of relevant experience as well as upon prevailing standards of international law.  Throughout its report, the Commission articulates several core principles concerning the role of human rights in opposing terrorism. The Commission indicates in no uncertain terms that governments of the Americas are obliged to take the measures necessary to prevent terrorism and other forms of violence and to guarantee the security of their populations. At the same time, the Commission declares that states remain bound by their international human rights obligations at all times, subject only to suspensions or restrictions that are specifically permitted under international law when the life of the nation is threatened.  The report also acknowledges that terrorist violence may occur in times of peace, in states of emergency, and in situations of war, and therefore considers states’ obligations under both international human rights and the law of armed conflict.

3.                 The report considers standards of protection under these regimes of law in six main areas: the right to life, the right to humane treatment, the right to personal liberty and security, the right to a fair trial, the right to freedom of expression, the rights to judicial protection and non-discrimination, and the protection of migrants, refugees, asylum seekers, and other non-nationals.  The report emphasizes, for example, that detainees must never be subjected to torture or other cruel, inhuman or degrading treatment or punishment, through conditions of detention, methods of interrogation or otherwise. Closely connected with this proscription is the requirement that the treatment of detainees be subjected to appropriate oversight mechanisms as prescribed under applicable regimes of international law, in times of peace and in times of war.  The report stresses that persons charged with and tried for terrorist-related offenses must, in all situations, be afforded fundamental due process protections, including the right of a defendant to prompt notification in detail of the charges against them, the right to be assisted by counsel without delay, and the right to a public trial. Moreover, the report urges member states to guarantee the right to freedom of expression in all circumstances and subject only to permissible restrictions and derogations, as an informed public can be an effective tool in monitoring and preventing abuses by public authorities during situations of terrorist threat. The situation of migrants, refugees, asylum seekers and other non-nationals is afforded specific attention by the Commission, as these persons are particularly vulnerable to human rights violations in the development and execution of counter-terrorist measures. Finally, the report emphasizes the need for states to comply in all circumstances and situations with the absolute prohibition of discrimination of any kind, including discrimination based upon race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth or any other social condition. The report concludes with a series of specific recommendations for OAS member states to give effect to the Commission’s conclusions.

4.                 In can also be observed in relation to the impact of terrorism in our region that the anxiety generated by the threat of terrorist violence and the expectations to counter such violence tends to divert attention away from the endemic economic, social and cultural shortcomings of our societies and their more vulnerable groups.  The persistence and intensification of these problems continue to erode citizen participation in the democratic process and undercuts the premises on which democracy itself rests, thereby weakening its efficacy as a tool for representative governance and peaceful coexistence.

5.                 This perception of frustration on the part of the population to feel effectively included in the democratic process appears to affect all of the member States in various ways and with varying intensity.  In the more notorious cases, the degradation of democratic participation and the resulting exclusion of vast numbers of citizens aggravates the institutional precariousness affecting many States of the Hemisphere and undermines the cohesion needed to advance democracy, resulting in a loss of the stability necessary to achieve governability and the enjoyment of fundamental rights.

6.                 The progressive deterioration of democratic institutions is a matter of concern for the IACHR.  Despite the convocation of periodic elections throughout the Hemisphere, many of the democracies of the region exhibit institutional weaknesses and have even been the target of attempted coups and other irregular attempts to alter the constitutional order.  In this respect, OAS member states have shown consistency in collectively rejecting such attempts and invoking instruments such as Resolution 1080 and the Inter-American Democratic Charter.

7.                 Poverty, exclusion, and social, economic, ethnic and gender inequalities contribute to the lack of legal certainly and corruption and thereby result in instability.  The situation is aggravated by a lack of effective access to justice, which not only perpetuates the kind of impunity and inefficacy that poisons the judicial systems of the Hemisphere but also encourages the exclusion of citizens from the administration of justice.  The failure of systems of justice to protect those who are most vulnerable when they are the victims of discrimination and to provide them with effective access to processes for the determination of their rights fosters a mistrust in the institutions of government, which in turn exacerbates the growing feeling of insecurity vis–a-vis growing violence and criminality.

8.                 As a consequence of these factors, there is a persistent call for measures that tend to give priority to public order and security over due process guarantees.  This situation calls for urgent action to facilitate access by vulnerable or excluded persons or group of persons to the administration and protections of justice.  There is also a need to deepen respect for judicial guarantees and modernize penalties with a view to reintegrating offenders into society at large.   All of these legitimate concerns have generated serious debates in legislative and other fora regarding efforts to toughen criminal legislation, broaden the ambit of crimes, and impose mandatory sentences.

9.                 The spectrum of this situation reflects the constant challenges faced by democracy as a tool to respond to the social, economic and cultural needs of the population and the duty of the State to guarantee the observance of fundamental human rights and progressive advancement in a way that contributes to governability and fosters development.

10.             This Hemispheric context, which reflects to a large extent the situation at a global level, requires that the mechanisms for the protection of human rights to continue to play a fundamental role.  The role of human rights defenders and officials involved in the administration of justice in promotion, prevention, control, denunciation and representation continues to be of vital importance to the enforcement of human rights in our nations.  At present, the work of human rights defenders and the organizations they represent provide access to information that is necessary to understand the situation of vulnerable groups, groups of persons or individuals affected by violence, poverty, exclusion and discrimination, as well as those who are the victims of abuse during states of emergency and respond to their complaints.  As a consequence of their work at the national, regional and international level, these persons and organizations are in many cases the targets of violence.  Therefore the member states, in the context of the political organs, as well as the IACHR, have begun to explore their obligations to secure and promote the work of human rights defenders.

11.             During this year, the IACHR has continued to address these and other Hemispheric challenges through the exercise of its mandate to promote and protect human rights.  The Commission continued its activities relating to vulnerable groups through its special rapporteurships on the rights of children, women, indigenous peoples, and migrant workers whose work is reflected in Chapter VI of this annual report.  The IACHR has also devoted its attention to the situation of afrodescendants through its promotional activities, studies on the general situation of human rights in member States, individual cases and precautionary measures.  The Rapporteurship on Freedom of Expression in the Americas has likewise continued with its promotional and advisory work, as reflected in its study for 2002.

12.             In view of the challenges presented this year and the evaluation of the situation of human rights in the Hemisphere contained in this annual report, the Commission calls upon the member states to search for solutions to ensure, collectively, the human rights of the inhabitants of the Hemisphere through the mechanisms provided by the Inter-American system, and to strengthen the principles that are the basis for peace, security, prosperity, and the successful functioning of democracy as a form of government

13.             The Commission takes this opportunity to make the following general recommendations to member states as a means of fulfilling the objectives of the inter-American system for the protection of human rights:

I.        The Commission calls upon the member states to consider and respect the standards established by international law in the establishment of legislative and other responses to violence and the threat of terrorism.

II.       The Commission calls upon the member states to adopt measures to ensure the observance of the social, economic, and cultural rights of the inhabitants of the Hemisphere, individually and collectively.  In addition, it urges those states that have yet not done so to ratify the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, and thereby expand the protection for those rights to the benefit of the inhabitants of the Hemisphere.

III. The Commission reiterates its call upon the member states to derogate those laws that permit discrimination within the meaning of the applicable instruments and to decidedly combat these practices in light of their international obligations.

IV.      The Commission urges the member states to fully and definitively meet the challenge to protect children and to take positive actions to ensure their human development, security, health, and education.

V.      The Commission calls upon the member states to redouble their efforts to ensure respect for the rights of women and girls to live free of violence and gender discrimination.  In particular, the IACHR urges the five member states that have still not done so to ratify the Inter-American Convention, "Convention of Belém do Pará" on the Prevention, Punishment, and Eradication of Violence Against Women.  It is imperative that member states adopt legislative or other measures to ensure that the regional norms that guarantee equality and nondiscrimination are reflected in their entirety in their domestic laws and practices, including concrete measures to address the lack of impartiality based on gender in the administration of justice.

VI.      The Commission urges the member states to recognize the rights and just aspirations of the indigenous peoples of our Hemisphere by adopting the American Declaration on the Rights of Indigenous Peoples.

VII.     The Commission urges the member states to adopt the necessary measures to protect the rights of afrodescendants without discrimination and to take into account their human and social development needs.

VIII.    The Commission recommends to the member states that they promote respect for and ensure in their domestic legislation the fundamental rights of migrant workers and their families, in keeping with international standards on the subject.

IX.      The Commission urges the member states to adopt the measures necessary to protect the life, personal integrity, and freedom of expression of human rights defenders.

X.      The Commission urges the member states to ensure that the legal framework under which freedom of expression is exercised in their territory is in line with the standards of the Declaration of Principles on Freedom of Expression and the American Convention, to eliminate indirect restraints including in particular the harassment of journalists and other persons who exercise their right to express themselves freely, and to ensure the protection of justice for the dissemination of information and effectively investigate and prosecute crimes against professionals in the area of information.

XI.      The Commission urges the member states to adopt effective measures to protect the right to life, physical integrity, and liberty of their populations and to ensure that violations are duly investigated and remedied.

XII.     Member states must continue with efforts to consolidate the Rule of Law in light of the standards of the regional system and thereby avoid setbacks that can affect the legitimacy and legality of institutions.

XIII.    The Commission urges the member states to adopt the measures necessary to ensure the independence and impartiality of judges, to administer justice in accordance with the standards of due process, and to strengthen their judicial systems so as to ensure the protection of justice for all persons under their jurisdiction.

XIV.     The Commission calls upon the member states to adopt the measures necessary to improve the situation of persons deprived of liberty in light of the minimal standards established in international human rights law, including those under the American Convention and the American Declaration.

XV.       The Commission calls upon the member States that have not yet done so to ratify the Statute of the International Criminal Court as approved by the Diplomatic Conference of Rome on July 17, 1998 and adopt legislative and other measures necessary to invoke and enforce universal jurisdiction regarding individual responsibility in the commission of crimes against humanity and war crimes.

14               The integrity and effectiveness of the protection afforded by the Inter-American human rights system to the inhabitants of the Hemisphere depends first and foremost on the efforts of the member states to achieve the universality of the system by ratifying the American Convention and the other instruments and accepting the jurisdiction of the Court. Member states must also implement the obligation to bring their domestic legislation into line with the rights enshrined in the instruments adopted within the framework of the system as interpreted and applied by their organs, in particular by the courts, and must comply with their international commitments and the decisions and orders of the Commission and the Court.

15               More than a decade ago, with the return of freely elected governments in the vast majority of the States in the Hemisphere, the IACHR forecasted a promising phase for the rebuilding of democracy in a manner that would contribute to the enjoyment of human rights.  Sadly, an assessment of the present state of affairs indicates that a situation of uncertainty has afflicted our societies.  As proclaimed in the Inter-American Democratic Charter, the effective exercise of representative democracy is the basis for the rule of law and of the constitutional regimes of the member states of the Organization of American States. Representative democracy is strengthened and deepened through permanent, ethical, and responsible participation by the citizenry, and member states must ensure that this participation is accompanied by transparency in government activities, probity, and respect for social rights and fundamental human rights, in order to contribute to the consolidation and stability of democratic governance.

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