More Commentary on Ciudad Juarez Case

Earlier this week, Feminist Law Prof Caroline Bettinger-Lopez (Columbia) summarized the Ciudad Juarez case (see here and here) for members of the  Bringing Human Rights Home Lawyers’ Network.    Here is Professor Bettinger-Lopez’s e-mail (reprinted with permission):

Dear BHRH Network Members,

As you know, on December 10, 2009, the Inter-American Court of Human Rights issued an important decision (in Spanish) in the Campo Algodonero case, concerning three in a series of hundreds of unsolved and poorly investigated disappearances, rapes, and murders of young (predominantly migrant) women and girls in Ciudad Juarez (on the US-Mexico border) over the past fifteen years. (See here for more information on the case, including a nice quote from BHRH member Ariel Dulitzky). The Court found Mexico in violation of the American Convention of Human Rights and the Convention Belém do Pará (Inter-American Convention on The Prevention, Punishment And Eradication of Violence Against Women) and ordered Mexico to comply with a broad set of remedial measures including a national memorial, renewed investigations and reparations of over $200,000 each to the families in the suit.   The decision and concurrences can be found  here.   The decision is important for a number of reasons, including the fact that, for the first time, the Court considers States’ affirmative obligations to respond to violence against women by private actors, looks at the cases at issue in the context of mass violence against women and structural discrimination, and finds that gender-based violence can constitute gender discrimination.

Since this decision is so important, I wanted to circulate a summary of some key points (note that this is just quick-and-dirty summary, and only focuses on select parts of the decision that seem most relevant to BHRH members; I hope to develop a more substantial piece on the decision in the future. Others should feel free to add their impressions as well). We have been told to expect an English-language version of the decision by mid-January.

By way of background, you may remember that earlier this year, Professor Rhonda Copelon testified as an expert in the case (see her testimony here at ), and this summer, over 50 U.S.-based amici, including many BHRH members, submitted an amicus brief in the case – see here – arguing that the longstanding failure to investigate, prosecute, or prevent the crimes in this case violated Mexico’s obligations under the American Convention, The Convention Belem Do Para, and other international human rights norms. The arguments in Rhonda’s testimony and the amicus brief are clearly reflected in the Court’s decision.

Best Wishes for the holiday season,

Carrie

SUMMARY OF SELECT POINTS IN CAMPO ALGODONERO

1. Jurisdiction of the Court (p. 10)

(N.B. Even though the Court does not have jurisdiction to hear cases against the U.S., the Court’s discussion of its competency to review claims under Belem do Para is interesting as a general matter and useful for people thinking about the intersection of gender/VAW and economic and social rights issues; this was a question that featured in Rhonda’s testimony and the amicus brief)

The Court first considered whether it had jurisdiction over claims brought under Article 7 of the Convention Belem do Para, which requires states to”condemn all forms of violence against women and agree to pursue, by all appropriate measures, and without delay, policies to prevent, punish and eradicate such violence through legal, legislative, administrative, and policy initiatives.”Article 12 of BDP states that a petitioner”may lodge petitions with the Inter-American Commission on Human Rights containing denunciations or complaints of violations of Article 7 of this Convention by a State Party, and the Commission shall consider such claims in accordance with the norms and procedures established by the American Convention on Human Rights and the Statutes and Regulations of the Inter-American Commission on Human Rights for lodging and considering petitions.”After undergoing a detailed analysis of the text of the Convention Belem do Para and the American Convention, a consideration of systematic and teleological interpretations of Belem do Para (BDP), the traveaux prepartoire for BDP, and Court precedent (in the Castro Castro v. Peru case), the Court confirmed that it indeed had jurisdiction over Art. 7 claims.

Next the Court considered its competency to hear claims brought directly under Articles 8 and 9 of the Convention Belem do Para.   Under Article 8, States”agree to undertake progressively specific measures”to eradicate violence against women, including social public educational initiatives, institutional education, measures and programs supportive of victims (including social services readjustment, and training programs for affected persons), data collection, and international exchange. Article 9 provides that, with respect to the state obligations contained in Articles 7 and 8, States”shall take special account”of vulnerable groups of women who may experience gender-based violence on account of their multiply marginalized (“intersectional”) status (i.e., age, race, ethnicity, class, disability, etc.).   The Court emphasized that Art 12 of BDP states specifically that the petition system focuses exclusively on Art 7 of BDP.   Systematic and teleological reasons for making Articles 8 & 9 directly cognizable are insufficient. Thus, the Court concluded that it didn’t have competency to consider alleged violations of Art 8 & 9 of BDP as independent violations in a contentious case.   However, the Court found, the various articles of BDP (including 8 and 9) can be used for the interpretation of Article 7 of BDP & other pertinent Inter-American instruments.

This last pronouncement is important for future advocacy. The programs outlined in Article 8 give definition and specificity to the legal, legislative, policy, and administrative measures for eradicating violence against women specified in Articles 7(c), (e), and (h). Moreover, the legal, legislative, administrative, policy, and other measures articulated in Article 7, and the progressive specific measures outlined in Article 8, should arguably be tailored to take”special account”of vulnerable groups of women, as specified in Article 9. Although the Court did not explicitly refer to Articles 8 and 9 in its decision, their spirit was clearly present.

1. Substantive Law Violations (p. 30)

The Court found Mexico violated the following international legal obligations:

American Convention

• Article 4 – right to life
• Article 5 – right to personal integrity
• Article 7 – right to personal liberty
• Article 19 – rights of the child
• Articles 8 & 25 – judicial protection/due process
• Article 1.1 – obligation to respect rights
• Article 2 – duty to adopt domestic legal effects

(The Court rejected the petitioners’ allegations of Mexico’s violation of Article 11 (dignity and honor)).

Convention Belem do Para

• Article 7(b)
• Article 7(c)

In considering the alleged violations of Articles 4, 5, 7, 8, and 25 of the ACHR in light of Article 1.1 (duty to respect and ensure), the Court reiterated the elements of due diligence originally articulated in the seminal Velasquez Rodriguez case, when considering state responsibility for human rights violations committed by private actors: the duty to prevent, investigate, punish, and compensate (para 236). The Court also considers the element of discrimination that allegedly overlays all these substantive law violations.

The Court divided its inquiry into two time frames: the time leading up to the disappearances/murders (i.e. the duty to prevent/protect), and the time after authorities were informed (i.e. the duty to investigate/punish/compensate, all of which link back to the duty to prevent).

Duty to prevent (p. 67)

The Court notes that the duty to prevent arises in two key moments in this case: (1) before the disappearances of the victims; (2) before the discovery of their bodies. The Court cites to Osman v UK (ECHR) for its”real and immediate risk”standard, and concludes that the State did not act reasonably, with due diligence, especially in a situation involving vulnerable groups and violence against women (para 284). Thus, the Court finds violations of Art 1.2, 2,4, 5, 7 of ACHR and     7(b) and (c) of BDP.

Duty to investigate (p. 75)

The Court outlined the basic elements of the duty to investigate: a serious, impartial, and effective investigation oriented toward uncovering truth, and punishment of those responsible. The Court refers to the ECHR standard for an effective investigation (para 292) and the application of this concept in the IA system. The Court then spends a great deal of time analyzing 6 alleged areas of inadequacy of the investigation in the cases at issue: the maintenance of the crime scene, no immediate action taken against suspects (and possible fabrication of suspects), unjustified delay, incomplete/patchy investigations, no sanctions against public officials who were associated with the irregularities, and delays and denials of access to the case file. The Court found State responsibility in these areas, and thus found violations of the right to grant families access to justice, effective judicial protection, and the right of the families and society to know the truth. The Court also found that this indicates a State failure to ensure, through a serious and adequate investigation, physical integrity and personal liberty of the 3 victims.   It also points to impunity and the insufficiency of domestic measures to address these violations. Thus, the Court finds violations of Art 1.2, 2, 4, 5, 7, 8, and 25 of ACHR and     7(b) and (c) of BDP.

State Obligation to Not Discriminate: Violence Against Women as a Form of Discrimination (p. 100)

The title of this subsection is indicative of what is groundbreaking here: the Court clearly finds that the violence against women that is at issue in this case (and in the larger context of Ciudad Juarez) constitutes a form of gender discrimination.   The Court begins by highlighting the definitions of gender discrimination that have been articulated by the CEDAW Committee, the European Court, and the IA Court itself in Castro Castro, emphasizing that discrimination includes gender-based violence, violence directed against a woman because she is a women, or acts that affect women disproportionately (para 394-96).   In para 396, the Court describes the various ways in which the ECHR has found that disparate impact can be proved.   In para 398, the Court notes that Mexico itself admitted there existed”a culture of discrimination”that contributed to the Juarez homicides previously to the CEDAW Committee.

The Court then finds that State inaction and indifference in the beginning of the investigation functioned to condone/reinforce the violence against women. Impunity also functioned to send a message that VAW is tolerated by Mexico.   The Court notes that subordination of women is associated with gender stereotypes, and that”the creation and use of stereotypes is one   of the causes and consequences of gender based violence against women.”(para 401). In sum, the Court finds (para 402) that”in the present case, the violence against women constituted a form of discrimination and declares the State in violation of Art. 1.1, in relation to Arts. 4,5,7,8,25.

Rights of the Child (p. 103)

Court found that Mexico had violated Art 19 (rights of the child). The Court emphasized the additional rights that correspond to children under Art 19 of the ACHR, and the fact that these rights are complemetary to the other rights contained in the ACHR that apply to all people. The Court also emphasized the importance of special-needs children – here, the status of the victims as girls who belong to a vulnerable population. The Court discussed the importance of the state adopting positive measures, especially given the context in Juarez.

Family Members’ Right to Personal Integrity (p. 104)

The Court found that the victims’ family members had suffered mental and emotional health problems as a result of the disappearance and murders of the victims; in their search for truth; and in the threatening, intimidating, and hostile ways in which the families had been treated by the authorities. One family had even sought political asylum in the US.   This amounted to a violation of Article 5 – the right to personal integrity.

Right to Dignity and Honor (p. 112)

The Court rejected the representatives’ claims to Art 11 (dignity and honor) violations because these claims were based in facts concerning the treatment of the victims’ families after they disappeared. The legal consequences of such treatment were already examined with respect to Art 5 (above), and thus the Court found it unnecessary to also examine them under Art 11.

1. Reparations (p. 113)

The Court ordered vast reparations,”keeping in mind the context of structural discrimination in which the facts took place.”   The Court praised Mexico for accepting responsibility for the irregularities committed in the first phase of the investigations, but said that those irregularities were not adequately rectified in the second phase (para 435). The State must now investigate the facts, and identify, bring to justice, and if necessary, sanction those responsible – both those who committed the homicides, and the government officials who acted with negligence or contributed to the irregularities in the case. With respect to investigation, the State should: remove all obstacles to a full investigation, include a gender perspective in the investigation, provide resources necessary to the organs/individuals who participate in the investigation to do an adequate, independent and impartial investigation, and publicly announce the results of the process to Mexican society (para 455).

With respect to means of satisfaction, the Court ordered remedial measures including publication of the sentence, a public ceremony where the State recognizes responsibility, and a national memorial to the victims.

With respect to guarantees of non-repetition, the Court pointed to the lack of data and information that would allow it to evaluate the actions that Mexico has taken to respond to the problem in Juarez (para 495). The Court then ordered Mexico to:

• standardize its protocols, and manuals, experts, etc, that are used to investigate crimes related to disappearances, sexual violence, and murders of women, in conformity with international standards that include a gender perspective. The State must produce a report in three years on progress on this front. (para 502).
• create a website containing all relevant information pertaining to women and girls who have disappeared in Chihuahua since 1993, and who remain missing.
• Create or update a database of genetic information for the disappeared/murdered women/girls
• Implement educational courses and capacity-building programs in human rights and gender
• Create an educational program for the people of the state of Chihuahua to improve the situation there

With respect to the guarantees of rehabilitation, the Court ordered the State to offer free medical, psychological, and psychiatric care to the victims’ families.

With respect to indemnization/compensation, the Court ordered Mexico to pay over $200,000 each to the families in the suit, for material and moral harm.

1. General observations

(I have included below some of my own general observations as well as those that others have expressed to me in discussing the decision).

Sources of fact & law

Interestingly, the Court looked to a variety of sources of fact and law in its decision. For the factual context, it looked to reports on the situation of violence against women in Ciudad Juarez produced by the Inter-American Commission, the CEDAW Committee, the UN Special Rapporteur on Violence Against Women, Amnesty International, and the Mexican government’s Commission to Prevent and Eradicate Violence Against Women in Ciudad Juarez. (see p. 39). It was not necessary for the Court to do this, since it is a Ct of law. Dong so is a positive sign, as it indicates that if there is an international trend, the Court might be willing to follow it.

For the legal context, the Court cited heavily to relevant jurisprudence from the European Court of Human Rights, including the recent case of Opuz v. Turkey, in which the European Court found Turkey in violation of its obligations to protect women from domestic violence, and for the first time held that gender-based violence is a form of discrimination under the European Convention.   The Court also cited to concluding observations from the CEDAW Committee.

Context of Gender-Based Violence & Gender Discrimination

As the Court undertook its legal analysis, it continually referred back to the general phenomenon of epidemic levels of violence against young women in Juarez, and linked this context of violence against women to gender discrimination – an important development that Rhonda’s testimony had emphasized. (see p. 39, 63, 116)

On p. 63, the Court finds that the homicides at issue should be classified as”gender-based violence”under the ACHR and BDP. First, it explained, the victims in the case were all young women of low income, workers or students, who were made to disappear and whose remains were found in the cotton fields, much like so many other homicide victims in Juarez.   Second, even the Mexican government has conceded that these crimes took place within the context of violence against women in Ciudad Juarez. Thus, they were gender-based homicides.

p. 116-17:”The 3 gender-based homicides in this case occurred in the context of discrimination and violence against women.”The Court urges Mexico to consider this context as they adopt measures of prevention of VAW in the future.

Cecila Medina’s concurring opinion

Judge Medina’s concurrence argues that the Court should have found a violation of ACHR Art. 5.2’s prohibition on torture, as the suffering at issue here was sufficiently severe to constitute torture, as this Court (and other international bodies) has repeatedly found in other similar cases. Instead, the Court’s decision sidesteps the issue of how to classify the Art. 5 violation.

Limits on State Responsibility

The Mexican government, in the course of this case (and before CEDAW Committee), partially recognized responsibility re the context of VAW in Juarez, but argued that the problems had been resolved post-2004. The Court says it values recognition of responsibility. But it also says that the State can’t recognize responsibility while sustaining a controversy re the facts. So the Court didn’t get taken in. In fact, the Court recognizes that the profound nature of the irregularities in the first part of the investigation makes it impossible to have a thorough investigation in the second part.   Additionally, the Court declined to assign direct state responsibility to violations of Articles 4,5, and 7, since no proof had been offered that state agents had been directly involved in the crimes at issue (though the petitioners had suggested that state agents may have played a direct role).