David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human
Rights—Law, Policy and Process (3d ed. 2001)
Supplement to Chapter 11: The Inter-American System and the Interpretation and
Application of Human Rights Instruments (October 17, 2002)

Section E-3 (pp. 604-08): The Inter-American Commission—Typical Cases
in the Inter-American Commission.
There currently are two important pending cases against the U.S. before the InterAmerican Commission on Human Rights (IACHR) arising out of U.S. detention of
certain persons after September 11, 2001. 1
1. Detainees at Guantanamo Bay, Cuba. 2
On February 25, 2002, in Detainees at Guantanamo Bay, Cuba, the IACHR was
presented with a petition by certain persons being detained by the U.S. at its naval base in
Guantanamo Bay, Cuba. The petition alleged that they were denied their rights to be free
from arbitrary, incommunicado and prolonged detention, unlawful interrogation and trials
by military commissions in which they could be sentenced to death, all as guaranteed by
Articles I, XVII, XVIII, XXV and XXVI of the American Declaration on the Rights and
Duties of Man (American Declaration). (Selected International Instruments at 219-23.)
Pursuant to Article 25(1) of the IACHR’s Rules of Procedure, 3 the petition requested the
Commission to ask the U.S.
(i)
to adopt measures necessary to protect their right to personal integrity and
fair trial;
(ii)
to treat each detainee as a POW until any doubt as to status is determined
by a competent tribunal;
1
As has been noted, over U.S. objections, the IACHR has determined that the American Declaration
applies to the U.S. and that the U.S. is subject to the jurisdiction of the IACHR to determine whether the
U.S. has violated that Declaration. (David Weissbrodt, Joan Fitzpatrick & Frank Newman, International
Human Rights—Law, Policy and Process at 598-99 (Anderson Publishing Co., 3d ed. 2001); IACHR
Statute, http://www.cidh.org/Basicos/basic15.htm. See also IACHR’s Summary of Its Current Statute
(http://www.cidh.org/Basicos/basic1.htm#G.%20%20%20%20THE%20NEW%20STATUTE%20AND%2
0NEW%20RULES%20OF%20PROCEDURE%20OF%20THE%20INTER-AMERICAN). The U.S.,
however, is not a State Party to the American Convention on Human Rights, which created the IACHR.
(See id. at 589; Selected International Instruments at 210-14.)
2
Efforts to challenge the Guantanamo Bay detentions in U.S. courts have been unsuccessful on
jurisdictional grounds. (Coalition of Clergy v. Bush, 189 F. Supp. 2d 1048 (C.D. Cal. 2002), on appeal,
No. ____ (9th Cir.); Rasul v. Bush and Al Odah v. Bush, Nos. Civ 02-299 & Civ 02-828 (D.C. D.C. July 31,
2002), on appeal, Nos. 02-5251 & 02-5288 (D.C. Cir.).
Article 25 (1) provides, “In serious and urgent cases, and whenever necessary according to the
information available, the Commission may, on its own initiative or at the request of a party, request that
the State concerned adopt precautionary measures to prevent irreparable harm to persons.” (Cf. Fed. R.
Civ. P. 65 (a)(preliminary injunctions).)
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(iii)
to provide the detainees written notice of the charges, access to legal
counsel with confidential communications and access to judicial review;
(iv)
to identify the detainees;
(v)
to notify them of their rights to consular representatives;
(vi)
suspend their interrogation until their rights are guaranteed;
(vii) to stay any proceedings before military commissions pending resolution of
their status;
(viii) to permit the IACHR to inspect the site; and
(ix)
to find that any order of precautionary measures is binding on the U.S.
(Request by Center for Constitutional Rights, et al. for Precautionary Measures under
Article 25 of the Commission’s Regulations, Detainees in Guantanamo Bay, Cuba
(IACHR Feb. 25, 2002); Bravin, Lawyers Seek Intervention by OAS To Change
Treatment of Prisoners, WALL S. J., Feb. 25, 2002.)
On March 12, 2002, the Commission granted, in part, the request for precautionary
measures and asked the U.S. “to take urgent measures necessary to have the legal status
of the detainees at Guantanamo Bay determined by a competent tribunal.” Explained the
Commission, such measures were appropriate and necessary so that the detainees were
“afforded the legal protections commensurate with the status that they are found to
possess, which in no case may fall below the minimum standards of non-derogable
rights.” In passing, the Commission noted that it had ruled that OAS member states like
the U.S. were subject to an international legal obligation to comply with such a request
for precautionary measures. (IACHR Request for Precautionary Measures, Detainees in
Guantanamo Bay, Cuba (IACHR March 12, 2002),
http://www.photius.com/rogue_nations/guantanamo.html ; Bravin, OAS Panel Claims
White House Policy On Prisoners in Cuba Violates Law, WALL S. J., Mar. 14, 2002.)
In its April 11, 2002, response to the IACHR’s request, the U.S. argued that there was no
basis in fact or law for the Commission’s request for these reasons: (a) international
humanitarian law, not international human rights law, applied; (b) the IACHR had no
jurisdiction to apply international humanitarian law; (c) the detainees, as a matter of
public record, were unlawful combatants, not prisoners of war; and (d) the detainees were
treated humanely. Therefore, the U.S. asked the Commission to rescind its request for
precautionary measures. (Response of U.S. to Request for Precautionary Measures—
Detainees in Guantanamo Bay, Cuba, (IACHR April 11, 2002; American Soc’y of Int’l
Law, International Law in Brief, June 4, 2002, http://www.asil.org/ilib/ilib0508.htm#r2;
U.S. Asks Agency To Dismiss Complaint About Cuba Prisoners, WALL S. J., April 18,
2002.)
This, however, was not the end of the matter. On May 28, 2002, the Commission, acting
on further observations by the petitioners, 4 asked the U.S. to comment on the contention
4
The petitioners argued that the IACHR had authority to adopt the precautionary measures, that it had
jurisdiction to consider international humanitarian law in interpreting the American Declaration, that the
U.S. had not rebutted the evidence of irreparable harm. Accordingly, they reiterated their original full
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that some of the detainees were not captured on any battlefield, that some were suffering
from mental disorders, that the legal status of the detainees was unclear and that the
uncertainty of their status was “placing them increasingly at risk of irreparable harm.” In
addition, the U.S. was to advise whether there had been any change in the status of the
detainees since the prior U.S. response and whether the U.S. had complied with the
request for precautionary measures. (IACHR Request for Information to U.S., Detainees
in Guantanamo Bay, Cuba (IACHR May 28, 2002).)
On July 15, 2002, the U.S. submitted an additional response to the Commission. The
U.S. argued that the IACHR had no jurisdiction to review the U.S.’ detention of enemy
combatants and that similarly it had no jurisdiction to issue requests for precautionary
measures to the U.S., much less binding ones. (Additional Response of U.S. to Request
for Precautionary Measures, Detainees in Guantanamo Bay, Cuba (IACHR July 15,
2002).)
Eight days later, on July 23, 2002, the Commission refused to rescind its March 12, 2002,
request and instead reiterated its request for information as to how the U.S. had complied
with the request. In addition, the Commission stated that “it has the competence and
responsibility to monitor the human rights situation of the detainees and in so doing to
look to and apply definitional standards and relevant rules of international humanitarian
law in interpreting and applying the provisions of Inter-American human rights
instruments in times of armed conflict.” (IACHR Request to U.S., Detainees in
Guantanamo Bay, Cuba (IACHR July 23, 2002).)
On August 23, 2002, the petitioners requested a hearing on their request for precautionary
measures. They noted that there apparently are 598 detainees at Guantanamo, that not all
of them were initially detained in Afghanistan, that the U.S. planned to increase the
capacity of the base to 2,000 cells, that U.S. courts had refused to hear similar claims,
that the detention is having detrimental impact on the detainees (at least 30 attempted
suicides), that petitioners have had difficulty getting information about the facility.
(Petitioners’ Request for Hearing, Detainees in Guantanamo Bay, Cuba (IACHR Aug.
23, 2002).)
The request for a hearing was granted, and a closed hearing was held on October 16,
2002.
2. Post-September 11, 2001 INS Detainees.
On June 20, 2002, in Post-September 11, 2001 INS Detainees, another request for
precautionary measures was presented to the Commission by “dozens of Muslim men of
Arab and South Asian origin” who were being detained in the U.S. by its Immigration
and Naturalization Service (INS) after being ordered deported or granted voluntary
departure. Like the petition in the Guantanamo Bay case, they alleged that they were
denied their rights to be free from arbitrary or prolonged detention as well as their right to
request for precautionary measures. (Petitioners’ Observations to U.S. Government’s Response to Request
for Precautionary Measures, Detainees in Guantanamo Bay, Cuba (IACHR May 13, 2002).)
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equality before the law, the right of protection of personal integrity and family life, and
the due process rights of recognition of juridical personality and access to the courts, all
as guaranteed by Articles I, II, V, XVII, XVIII, XXV and XXVI of the American
Declaration on the Rights and Duties of Man (American Declaration). (Selected
International Instruments at 219-23.) (Request for Precautionary Measures, PostSeptember 11, 2001 INS Detainees, June 20, 2002,
http://www.hrlawgroup.org/resources/content/IACHRPrecautionaryMeasures.pdf.)
Pursuant to Article 25 (1) of the IACHR’s Rules of Procedure, the petitioners requested
the IACHR to request the U.S. to take the following precautionary measures with respect
to the detainees: release them from detention; allow the implementation of final orders
for deportation or voluntary departure from the U.S.; specify the bases for the detention
so that they can effectively seek legal remedies; ensure them equal treatment; protect
their honor, reputation and family life; protect their due process rights; treat them
humanely and in accordance with international law; and identify all such detainees. (Id.)
After receiving the U.S.’s September 18, 2002, response to the IACHR’s request for
information and the petitioners’ September 17, 2002, additional information, the
Commission on September 26, 2002, granted the request for precautionary measures and
asked the U.S. “to protect the fundamental rights of the [petitioners], including their right
to personal liberty and security, their right to humane treatment, and their right to resort
to the courts for the protection of their legal rights, by allowing independent courts to
determine whether the detainees have been lawfully detained and whether they are in
need of protection.” In support of this decision, the Commission stated that the U.S. had
failed to clarify or contradict petitioners’ information indicating that (i) there was no
basis under domestic or international law for their continued detention; (ii) there was no
information regarding their conditions of detention although former detainees have
claimed that they were subjected to harsh conditions and verbal and physical abuse; 5 and
(iii) the detainees were being held without any effective means of challenging the legality
or conditions of detention before the domestic courts. In addition, the IACHR noted, as it
had in the Guantanamo Bay case, that “no person under the authority and control of a
state, regardless of his or her circumstances, is devoid of legal protection for his or her
fundamental and non-derogable human rights.” (Letter, IACHR to Petitioners’ Counsel,
Post-September 11, 2001 INS Detainees, Sept. 26, 2002,
http://www.hrlawgroup.org/resources/content/IACHR_Award.pdf.)
5
Is this at least a suggestion of U.S. torture or inhumane treatment of the detainees in violation of the
Convention Against Torture and other international law? (See Bravin, U.S. Army Has 30 Ways to Convince
Al Qaeda Prisoners to Talk, Maybe, WALL S. J., April 26, 2002 (U.S. Army interrogation school provides
instruction in how to convince people to provide information by means “just short of torture); Supplement
to Chapter 5.)
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
Section F (pp. 608-15): Advisory and Contentious Jurisdiction of the InterAmerican Court of Human Rights.
1. Massacre at Plan de Sánchez Guatemala
On August 26, 2002, Susana Villarán, the human rights investigator in Guatemala for the
Organization of American States (OAS), brought to the Inter-American Court for Human
Rights (CIDH) the case of the massacre in the village of Plan de Sánchez. “We are
asking the court to declare the State of Guatemala responsible for the violation of the
right to personal integrity and, therefore, to indemnify the victims,” said Villarán.
According to the Inter-American Human Rights Commission (IACHR), the Court
accepted the case, “due to the negation of justice and other acts of intimidation and
discrimination.” “The case is very important,” said Frank La Rue, head of the
Guatemala-based Center for Human Rights Legal Action (CALDH), “since it is the first
massacre on the continent that will be heard by the CIDH.” In 1992, according to a
CIDH document, “survivors and relatives of the victims overcame their fear and reported
to the judicial authorities” what happened in Plan de Sánchez. However, in the ten years
since then, nothing has been done to bring the perpetrators to justice. On August 9, 2000,
the Guatemalan government made a proposal to indemnify the survivors and the victims’
families, but never fulfilled its commitment. “We do not know how much time the case
will be in the CIDH, but we are sure that the State will be found guilty,” said La Rue.
Guatemala’s new Human Rights Procurator welcomed the decision by the CIDH to hear
the case. “All searches for justice are welcome,” he said. He said it would strengthen the
law, since all human rights are under universal jurisdiction. In addition, he said, the
Guatemalan government was “out of order” in not fulfilling its commitment to indemnify
the massacre survivors.
On August 9, 2000, the Guatemalan government and the IACHR signed an agreement in
which the Guatemalan State acknowledged its participation in 16 acts of violence
committed during the 36-year-long internal armed conflict, including the Plan de Sánchez
massacre, and the acknowledgement was accompanied by the agreement to indemnify the
survivors and the families of non-survivors. At that time, Guatemalan president Alfonso
Portillo said, “What we are doing is so that [massacres] do not happen again.”
Fernando López, CALDH, said the names of the members of the military involved in the
massacre are known, but that the suit is not against them, but rather, against the impunity
with which they were treated. Nuria Maldonado, also of CALDH, said the CIDH will
begin taking testimony from survivors in September.
According to CALDH, the massacre took place in the village of Plan de Sánchez,
municipality of Rabinal, in the department of Baja Verapaz on July 18, 1982. Former
military dictator Efraín Ríos Montt, now president of the Guatemalan congress and head
of the ruling rightist Guatemalan Republican Front (FRG), was in power, and his
5
government was fighting the leftist then-guerrilla army, the Guatemalan National
Revolutionary Unity (URNG). The massacre took place when 60 members of the
Guatemalan Army, military commissioners, and members of the so-called voluntary
Civilian Self-Defense Patrols (PACs) entered the village. An officer, identified as
“Captain Solares,” led the operation. At 5:00 in the afternoon hundreds of residents were
forced to stand together in various locations around the village and during the next one
and a half hours, 268 people, including men, women and children, were murdered, with
gunshots, hand grenades and beatings. The military accused them all of being
“subversives,” sympathizers with the URNG.
(EL DIARIO LA PRENSA, 8/27/02; PRENSA LIBRE, Guatemala City, 8/26, 27/02) 6
2. Berenson Case
On September 6, 2002, the Inter-American Human Rights Court (CIDH) announced that
it will consider the appeal by the Peruvian government from a recommendation by the
Inter-American Commission on Human Rights (IACHR) that the 2001 civilian retrial of
U.S. activist Lori Berenson was unfair. The CIDH has one-year in which to make a
ruling; possible decisions, according to Peruvian jurists, are Berenson's immediate
release, another trial or confirmation of the Peruvian court's decision. [LA REPULICA
(Lima) 9/12/02]
Bereneson has been jailed in Peru since late 1995 on charges of actively supporting the
rebel Tupac Amaru Revolutionary Movement (MRTA). In 2001 she was retried before a
civilian court on these charges, again convicted and sentenced to 20 years in prison.
Peruvian foreign minister Allan Wagner Tizon said that his government will comply with
the CIDH's decision, whatever it may be. However, Luis Solari de la Fuente, President
of the Council of Ministers, said that the Peruvian government will prove to the CIDH
that Berenson was tried with full respect for due process. President Alejandro Toledo
also said Peru would comply with the CIDH decision, but warned that his government
would not take any measures that might allow “terrorism” to resurface in Peru. (LA
REPULICA (Lima), 9/13/02; LA REPULICA (Lima), 9/15/02;
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There have been other recent developments regarding human rights in Guatemala. On October 3, 2002, a
Guatemalan army officer was convicted in a Guatemalan court of ordering the killing of Myrna Mack, a
Guatemalan anthropologist who was investigating complaints about the military’s mistreatment of rural
indigenous communities while two other officers were acquitted. (Gonzalez, Guatemala Tries 3 Officers,
Saying They Instigated ’90 Killing, NEW YORK TIMES, Sept. 9, 2002; Associated Press, Guatemalan Officer
Convicted In ’90 Stabbing Death of Activist, WALL S. J. Oct. 3, 2002; Amnesty International, Guatemala:
Myrna Mack Verdict—a tribute to courage and persistence, HUMAN RIGHTS WATCH, Guatemala’s Verdict
a Victory for Military Accountability, Oct. 4, 2002, http://www.hrw.org/press/2002/10/guatemala.htm.) On
October 8, 2002, a Guatemalan appellate court reversed the conviction of three military officers and a priest
for the 1998 murder of Bishop Gerardi. (Associated Press, New Trial in Killing of Guatemala Cleric, NEW
YORK TIMES, Oct. 9, 2002.) In recent months, Guatemalan human rights workers and organizations have
been harassed, and in September a Guatemalan human rights activist was tortured and murdered.
10/17/02
6