By: Megan Mary Qualters

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – The International Court of Justice (hereinafter ICJ) ordered provisional measures to protect Guyana’s rights in highly contentious territory dispute with Venezuela.

Procedural History

In March 2018, the Co-operative Republic of Guyana’s government (hereinafter “Guyana”) filed proceedings against the Bolivarian Republic of Venezuela (hereinafter “Venezuela”). The legal issue is whether the Arbitral Agreement of 1899, which establishes the border line between Guyana and Venezuela, in a region called the “Guayana Esequiba,” is legally valid. Guyana claims it is valid and thus grants the Esequiba to Guyana, but Venezuela claims it is void and argues that the Esequiba is Venezuelan territory.

On October 23, 2023, Venezuela published a list of five questions it planned to use in a “Consultative Referendum,” to be held on December 3, 2023. The questions asked for support in rejecting the validity of the 1899 Award, the ICJ’s jurisdiction, and advocated for an accelerated plan to incorporate the Esequiba into Venezuela.

On October 30, 2023, in response to Venezuela’s questions and referendum plans, Guyana requested the ICJ issue provisional measures to prevent Venezuela from publishing its questions, ultimately asking the ICJ to protect its rights to the Esequiba region while the validity of the 1899 Award is pending.

On November 14 and 15, 2023, the ICJ heard oral arguments from both parties regarding the issue of provisional measures. Guyana asked the Court to order the following provisional measures, while Venezuela asked the court to reject the request.

1. “Venezuela shall not proceed with the Consultative Referendum planned for 3 December 2023 in its present form;
2. In particular, Venezuela shall not include the First, Third or Fifth questions in the Consultative Referendum;
3. Nor shall Venezuela include within the ‘Consultative Referendum’ planned, or any other public referendum, any question encroaching upon the legal issues to be determined by the Court in its Judgment on the Merits . . .
4. Venezuela shall not take any actions that are intended to prepare or allow the exercise of sovereignty or de facto control over any territory that was awarded to British Guiana in the 1899 Arbitral Award.
5. Venezuela shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”

Required Elements of an ICJ Provisional Measure

The ICJ, after affirming its 2020 Judgement that it has the necessary jurisdiction to adjudicate the claims of Guyana, turned to Article 41 of the ICJ Statute, which focuses on the preservation of rights claimed by parties in a case. To issue provisional measures the Court must find (1) the rights claimed by a party is plausible, (2) there is a link between the right claimed and the provisional measure requested, and (3) without the provisional measure “there is a real and imminent risk that” (4) “irreparable prejudice will be caused to the rights claimed before the Court gives its final decision.”

Here, the Court found that Guyana’s right to “preservation and protection of its right to the territory” is plausible. The Court notes that a right’s existence need not be proven, it only need be asserted plausible. Therefore, the Court need not determine which country has a right to the territory, but only that Guyana could have a plausible right to the Esequiba. The Court held that the existence of the 1899 Award and the dispute itself are sufficient to give Guyana a plausible right to the Esequiba.

Moreover, the Court found there is a link between the plausible right and the provisional measure sought. Guyana “seeks to ensure” that Venezuela does not prepare to, or exercise control of, the territory awarded to Guyana in the 1899 Award, which the ICJ considers a measure “aimed at protecting Guyana’s right which the Court has found plausible.”

Lastly, the Court turned to “Venezuela’s expressed readiness to take action with regard to the territory in dispute in these proceedings at any moment following the referendum scheduled for 3 December 2023” as sufficient evidence to find that Guyana is at serious risk of irreparable prejudice, and that the risk of this is urgent in a real and imminent sense.

ICJ’s December 1 Order

Due to the reasons above, the Court found it necessary to issue a provisional measure to protect Guyana’s right to the Esequiba.  However, the Court found the measures provided need not match exactly what Guyana requested. Its resulting provisional measure consisted simply of ordering Venezuela to refrain from taking any action “which would modify the situation that currently prevails in the territory in dispute” and that both Parties “shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” The ICJ has yet to determine the validity of the 1899 Award.

For further information, please see:

ICJ – Order of 1 December 2023 – 1 Dec. 2023

ICJ – Arbitral Award of 3 October 1899 (Guyana v. Venezuela) Latest Developments

New York Times – Venezuela Renews Claims to Part of Guyana, the Oil-Rich ‘Second Qatar’ – 21 Dec. 2023

By: Rafael Sbeghen Freitas

Impunity Watch Staff Writer

BELÉM, Brazil – On June 16th, 2023, the Inter-American Commission on Human Rights submitted to the IDH Court the 12,398 case of Brazil, regarding the extrajudicial execution of teenagers Max Cley Mendes, Marciley Roseval Melo Mendes, and Luís Fábio Coutinho da Silva, during a slaughter that took place on December 13th, 1994 and became to be known as “The Massacre of Tapanã.”

The accusation reports that the Military Police officers received orders from higher authorities to locate and apprehend the murderers of Military Police Corporal Waldemar Paes Nunes, who had been a victim of robbery-murder moments earlier in an area nearby the “Tapanã Highway” in Belém, Pará. The information indicated that the perpetrators of the corporal’s murder had also stolen his firearm. The officers took police vehicles to carry out the order and brought with them the victim’s property caretaker as a witness, who had allegedly seen the corporal being murdered after his weapon was stolen.

According to court records, the police officers reportedly spotted Max Cley Mendes, Marciley Rosenaldo Melo Mendes, and Luiz Fabio Coutinho da Silva, who were recognized by the witness as the perpetrators of the robbery-murder that claimed the corporal’s life. After being approached, the suspects were handcuffed and executed. Eyewitnesses reported that four young individuals were apprehended: two of them were handcuffed and executed even before they entered the police vehicle and the other two had apparently tried to escape into the nearby wooded area, but were also executed after a pursuit.

The trial of the seventeen accused policemen happened only twenty four hours after, and resulted in the acquittal of all of them based on lack of evidence. The prosecutor did not appeal the decision.

Historically, in Brazil, the violent use of police force evolved from being a means of political control during the military dictatorship into a tool for social control, particularly in the context of managing criminality in the current days. The country still struggles to maintain civilian control of the military police and the military itself, notoriously being unable to properly investigate, prosecute and discipline the majority of crimes committed by those forces.

In that context, the Commission determined that the State violated the victims’ right to life and personal integrity and concluded that the operation did not adhere to the appropriate regulations for the use of force, and the agents failed to apply the criteria of necessity and proportionality. It was also stated that these events occurred within a context of state permissiveness towards police abuses and that the victims had endured torture prior to their execution.

The Brazilian state was notified of the filing on September 25th, and now has the opportunity to present a countercharge.

For further information, please see:

Brasil de Fato – What is Behind Police Brutality? – 06 Oct. 2023

Humans Rights Watch – Prosecutors Should Lead Police Killings Inquiries – 12 Sep. 2023

IACHR – Caso Cley Mendes y Otros vs. Brasil – 16 Jun. 2023

IACHR – IACHR Files Case with IA Court on Lack of Investigation Into Extrajudicial Executions of Adolescents in Brazil – 28 Aug. 2023

By: Jacob Riederer

Impunity Watch News Staff Writer

GUATEMALA – The Inter-American Court of Human Rights (IACHR) issued a ruling on October 23, 2023, requiring Guatemalan authorities to take action to prevent the adoption of two proposed bills that would provide immunity to those alleged to have committed human rights atrocities.

Between, 2002 and 2018 the IACHR ruled on 14 cases alleging forced disappearances, executions, torture, war crimes, genocide and other issues that took place during Guatemala’s civil war. These rulings resulted in investigations, trials, and sentences for those responsible for these heinous actions. 

Bill 5377, introduced in the Guatemalan Legislature in 2019, threatened to invalidate these rulings. If passed, the bill would have halted investigations and provided amnesty to those convicted in the 14 cases. Proponents of the bill and ones like it argue that it would allow the nation to heal divisions from the civil war. Others assert that it’s unfair to hold those accountable since these crimes were not specifically codified into law at the time. 

In 2019, the IACHR issued ruling requiring that Guatemala “guarantee the right to access to justice for the victims” of the 14 cases and to take action to prevent the passage of Bill 5377. The Government of Guatemala complied with the ruling and Bill 5377 was tabled and not passed into law. 

Recently, however, two new Bills, 5920 and 6099, were introduced to the Guatemalan Congress that would give amnesty to the perpetrators of human rights abuses during the Guatemalan Civil War. Notably, these bills not only immediately free those convicted of crimes but punish prosecutors, judges, and courts that attempt to review or dispute this law.

In response, representatives of victims of crimes perpetrated during conflict asked the court to “suspend and correspondingly definitively table” the bills, arguing that that the newly proposed laws violate IACHR’s previous ruling and have the same purpose as the previously invalidated 5377 bill in erasing liability for those convicted of serious human rights atrocities.

The Government of Guatemala maintains that they are in compliance with the court’s previous resolution, asserting that the ruling to table legislation only applied to Bill 5377. It further argues that Guatemala already has legislative and judicial “mechanisms to guarantee constitutionality and compatibility with conventional norms” with respect to these two bills.

The court sided with representatives of victims noting that both bills “seek to declare the extinction of criminal responsibility and absolute amnesty regarding all crimes committed during the internal armed confrontation.” Because of this, they are in violation of the court’s 2019 ruling which forbade Guatemala to put forth claims “excluding responsibility that prevent the investigation of the violations of serious human rights.”

Further, the court rejected the government’s argument that there are already national measures in place to ensure checks on the legal and constitutional validity of the laws, arguing that “there is a high risk that judicial control cannot be carried out internally.” This is because the bills would require the immediate release of those convicted before a review process may be able to take place. 

Additionally, the provisions in the bill mandate criminal punishments for prosecutors, judges and courts officials seeking to review the law and hold the offending parties accountable.   The court also notes the potential for harassment, intimidation, and threats to Guatemalan judicial officials in this situation based on past accounts of this in these cases.  The courts, therefore, see these laws as harmful because of their potential to eliminate judicial independence, review and safety.

In the resolution, the court also required the Guatemalan government to present a report on how it’s complying with the ruling no later than December 4, 2023 and to continue sharing updated compliance reports every three months thereafter.

For further information, please see:

Amnesty International, Guatemala – Bill Could Grant Amnesty For Grave Crimes: Bill 5377 – January 29, 2019

Epicentro – Guatemala, FADS – Iniciativas de ley para «reconciliación» son inconstitucionales – 14 Sept 2022

Epicentro-Guatmala – Iniciativas Legislativas Para Amnistiar Graves Violaciones a Los Derechos Humanos, Reincidencia del Estado de Guatemala – 26 OCT 2023

IACHR, Resolución de la Corte Interamericana de Derechos Humanos:  Caso De Los Miembros De La Andrea Chichupac Y Comunidades Vecinas Del Municipio de Rabinal. Caso Molina Theissen Y Otros 12 Casis Contra Guatemala – 20 OCT 2023

IACHR – Resolución de La Corte Interamericana De Derecho Humanos: Caso de Los Miembros De La Aldea Chichupac Y Comunidades Vecinas Del Municipio de Rabinal Caso Molina Theiseen Y Otros 12 Casos Contra Guatemala -12 MAR 2019

International Justice Monitor – In Defiance of Court Rulings, Guatemalan Congressional Leaders Push Amnesty Bill – 5 SEPT 2019

Prensa Libre – Tercer Intento Para Motivar a La Aprobación de Una Ley de Amnistía – 6 AUG 2022

Prensa Libre – Congreso Envía Nueva Consulta a La CC Sobre Iniciativa que Busca Aprobar Una Amnistía Para Los Delitos del Conflicto Armado Interno – 23 OCT 2023