Human Rights for all: How the Inter-American system protects Human Rights

After the fire at the Armadale Girls Home in St Ann that killed seven girls, the Commission heard a report on the incident at the instance of Jamaica For Justice and the Solicitor General of Jamaica headed a team that gave the Commission the assurance that Government was moving quickly to investigate the tragedy and to take steps to improve the situation of children in the care of the Jamaican state.

The Commission drafts admissibility and merits reports as well as thematic, country and annual reports. For instance the Commission has published reports on terrorism and human rights, citizen security and human rights, measures that must be taken to ensure greater access to justice;  the human rights situation of women, children, migrant workers and their families, persons deprived of their liberty, persons of African descent and human rights defenders.  The Commission has published numerous reports on freedom of expression.  One report that will be of considerable interest in the region is the Report on Corporal Punishment and Human Rights of Children and Adolescents (2009).  This report deals with the severity and seriousness of the practice of corporal punishment and recommends concrete measures to the States for full protection of the human rights of children and adolescents.  In the report the Commission advocates the outright banning of corporal punishment.

Why a universal and regional systems.

It may well be asked why it is necessary to operate two systems for the protection of human rights – the universal system or the UN system and the regional system – the Inter–American system.  The regional system provides greater focus on the human rights issues of the region. The system also provides greater access for the individual to bring his government to an international body for redress for abuse of his rights.

How  the recommendations of the Commission and the Orders of the Court Are Enforced.

The most powerful weapon in the armory of the Commission and the Court is to bring the state before the General Assembly as a state which shows its non-commitment to carrying out the recommendations of the Commission or the orders of the Court.  No member state wishes the shame of being thus labeled.

What are these human rights anyway?

John Milton wrote in 1651

Our liberty is nor Caesar’s.  It is a blessing we have received from God himself.  It is what we are born to.  To lay this down to Caesar’s feet, which we derive not from him, which we are not beholden to him for, were an unworthy action, and degrading of our very nature.

Human rights are rights inherent to all human beings, regardless of our race, place of origin, political opinions or affiliation, sex, creed or language or any other social condition.  We are equally entitled to our human rights without discrimination.  Human rights are described as civil and political and economic, social and cultural.  These rights are said to be all interrelated, interdependent and indivisible. It is to be noted that the fundamental or essential rights are not given to us by the constitution or any international convention; they are part of what makes us human beings.  As the American Declaration of the Rights and Duties of Man puts it, the essential rights of man “are based upon the attributes of his human personality”.   Note that the constitutions and the American Declaration and Convention all declare and recognize these rights as attributes of our humanness.

Perhaps the best way of understanding what fundamental or essential human rights are is to imagine life without them.  Imagine for a moment – that you could be arbitrarily deprived of life; you could be tortured by state entities and punished without being convicted of any crime; you could be subjected to slavery or involuntary servitude; you could be subjected to arbitrary arrest or imprisonment; you would have no right to privacy; and you would have no right to practise the religion of your choice or to change your religion; your freedom of expression and of association would be curtailed even more than acceptable;  you would have no right to a name, nationality or to raise a family;  You would have no right to property; you could not move about your country as you wished and you would have no right to vote or to run for politics.  What I just described is what our forbears withstood during hundreds of years of slavery.  You begin to see why we should be particularly passionate about the protection of human rights and capitalize on every means to protect them. The Inter-American system is one such means of protection of our rights.  Our lawyers must see this as a further tool to ensure justice.

Human Rights under Pressure

Human rights come under pressure during extreme situations.  For instance serious rise in violent crime, especially murders can lead one to the temptation to accept sacrifice of fundamental rights for security.  It is for this reason that an independent international system such as the Inter-American system is key.  The system acts as the conscience of the region.  It continues to remind of the international human rights standards which trump domestic considerations.  It keeps us human.

Let me give you an example of this.  At one stage the challenge was terrorism now in the Caribbean the challenge is violent crime or citizen security.  In all the islands  violent crime has escalated to unheard of numbers.  Once tranquil islands are now challenged by violent crime such as murders, armed robbery, rape and the like.  It is the business of the Government to provide a peaceful environment in which to live – so that the women of Manchester or anywhere else in Jamaica for example should be able to move around without being raped.

Extrajudicial killings

Notwithstanding the seriousness of the crime situation, it is not an option to have the police or military carry out extrajudicial executions – where the police decide on the guilt and punishment without the intervention of the judicial system including the Director of Public Prosecutions, defence counsel and the courts.

All this gets very complicated when the leading democracy in the world undertakes a “targeted killing program”  where the CIA and the President of the United States decide issues of guilt and punishment.    The Attorney General of the United States of America, Eric Holder, is reported to have asserted recently “the right” of the President of the United States of America to secretly order the elimination of anyone considered to be a threat to the US, including US citizens. His remarks were cast within the framework of the so-called war on terror:  The President may put persons on a “kill or capture list” when these persons were never formally charged and no direct evidence presented against them.  In this regard I commend the report on terrorism and human rights by the Commission. The difficulty with the so-called war on terror is that it is geographically undefined, its duration is unlimited and its enemies are determined by politicians.

Citizens are tempted to accept extrajudicial killings in the face of the rise of violent crime.  No! No! No! A thousand times no.  We are on the slippery slope to barbarism if we accept this approach.  So you have for instance the editorial of the Jamaica Observer newspaper for Monday the 12th March 2012 pronouncing, “It seems to this newspaper that we run the risk of missing the point completely if we seek to zero in on police abuses and excesses without bearing in mind the overall context of crime in Jamaica”’.  That there was no outcry at that statement is evidence that we have a long way to go in creating a society where promotion and protection of human rights are paramount.

I was talking to a citizen of one of the Windward Islands just a few weeks ago trying to convince him that the police did not have a right to eliminate persons whom they decided were perpetrators of violent crime. He informed me that the police did not need the cover of saying that they were acting in self defence.  He was willing to do without that fig leaf and accepted that the police could create their own kill or capture list and act on it.

This is where the Commission and the Inter-American Court must play their parts  to bring us back from the brink of barbarism.

Civil and Political and Economic, Social and Cultural Rights

There is a difference between civil and political rights on the one hand and economic social and cultural rights on the other.  Broadly speaking in statements of civil and political rights governments give undertakings not to impose certain disabilities on their subjects, such as depriving them of freedom of speech or the protection of the courts against arbitrary arrest or interfering with their freedom of movement or torturing them.  In statements of economic social and cultural rights governments accept that they ought to take certain positive steps to promote the welfare of their citizens, such as ensuring adequate employment opportunities, fair wages, proper medical facilities, and universal education. They also undertake to ensure the realization of the right of every one to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to a continuous improvement in living conditions.

The Convention anticipates a progressive achievement of economic social and cultural rights as opposed to the immediacy of our civil and political rights.

Article 26 of the Convention provides –

The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic social, educational, scientific and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.

Caribbean Court of Justice and Human Rights

On another note –

William Demas – President of the Caribbean Development Bank, as he then was, wrote in 1977 in a paper he entitled Human Rights and their Promotion:

But there is a paradox – indeed the supreme irony – that the West Indian countries are content with having perhaps the most vital aspect of their judicial system, the right of final judicial appeal, located in the metropolis outside the Caribbean.  An essential pre-condition, both logical and moral, for the establishment of a Human Rights Commission in the English –speaking Caribbean must be the replacement of the Judicial Committee of the Privy Council as the final Court of Appeal by a West Indian or Commonwealth Caribbean Court of Appeal.  Only then will it be possible to think of a Human Rights Commission for the English–speaking Caribbean.  Lawyers and other well–intentioned persons cannot have it both ways.  They cannot on the one hand argue for the retention of the Judicial Committee of the Privy Council outside of the region in London and at the same time urge the need for the establishment of  a Human Rights Commission within the Caribbean (emphasis his).

William Demas must be turning in his grave that 35 years later we are still having this discussion about our final court of appeal – a discussion which it seems to me will only end when we are pushed out of the committee room afforded to us in England as our highest court.

Recommendations

In the best tradition of the Commission, I have some recommendations:

Jamaica and the other Caribbean states should work with the Commission to intensify human rights education and awareness at all levels of society, especially among the police and the military.

Jamaica and other Caribbean states should work with the Inter-American Commission to develop human rights plans for each state.

Jamaican and other states of the Caribbean should work with the Commission with a view to becoming party to all of the treaties and conventions of the regional system, including accepting the jurisdiction of the Inter-American Court of Human Rights.

End

Thanks again to Independent Jamaican Council on Human Rights for its sterling efforts in promoting and protecting human rights. It is very important work. I also thank and encourage the Norman Manley Law School for its efforts to imbue a consciousness of human rights among the lawyers that it is producing.  And to Human rights defenders all:  Each of you in your own way must continue the tenacious and ceaseless struggle to promote and protect human rights thus steadfastly striving to make us all human.

And in this fiftieth year of the independence of Jamaica, may the Government and people of Jamaica continue to work steadfastly and passionately to create a more sophisticated democracy where there are Human Rights for All.

Sir Clare K Roberts, KCN, QC is a Commissioner at the Inter-American Commission of Human Rights.

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