Inter-American Rights Watch

Chile to Vote on Whether to Adopt New Constitution with Right to Life Provision

By: Carlos Dominguez Scheid

Impunity Watch Staff Writer

SANTIAGO, Chile – On November 7, 2023, the Chilean Constitutional Council presented President Gabriel Boric with a proposal of a new constitution that includes a right to life provision and outlaws the death penalty.

 
President Gabriel Boric is presented with the proposal of the New Constitution by Beatriz Hevia, President of the Constitutional Council | Photo courtesy of the Associated Press
  

The current Chilean Constitution, in effect since 1981 and approved by referendum in 1980 during Augusto Pinochet’s dictatorship, has been a point of contention due to its undemocratic origins despite undergoing significant reforms in 1989 and 2005. In response to major social unrest in October 2019, political parties agreed to initiate the process of drafting a new constitution, seeking to address the popular demands for improvements in the quality of life. In a 2020 referendum, with a 50.95% turnout, 78.28% of voters supported the creation of a new constitution and endorsed the establishment of a new, independent body, distinct from Congress, tasked with drafting it. The election for the 155 members of the Constitutional Convention was held in May 2021, and the results yielded a supermajority for the left and far left. In the September 2022 referendum, the people rejected their drafted Constitution, with 62% voting against it. The referendum had a historic 85.86% turnout.

Subsequently, a new political agreement led to a different process, involving a Commission of Constitutional Experts appointed by Congress to prepare a draft constitution. This was to be reviewed and voted on by the Constitutional Council, a 50-member body elected in May 2023. With a supermajority held by the right and center-right, the Council is poised to introduce changes to the proposed constitution.

Article 4.1 of American Convention of Human Rights (About the Right to Life), from 1969, states that:

“Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”

In Chile, the current Constitution states that:

“The Constitution ensures to all persons the right to life and to the physical and mental integrity of the person. The law protects the life of the one about to be born. The death penalty may only be instituted for a crime established in a law approved by a qualified quorum.” (Article 19 N° 1)

The Commission of Constitutional Experts proposed the following change:

“The Constitution ensures to all people the right to life. The death penalty is prohibited.”

The Constitutional Council’s final proposal, which will be voted on in the December 17th Referendum, states:

“The Constitution ensures to all people the right to life. The law protects the life of the one who is to be born. The death penalty is prohibited.” (Article 16 N° 1)

This constitution is the first in Chile’s history to prohibit the death penalty. If approved, it would close the debate on this issue. Although the death penalty was abolished in the Penal Code in 2001, it remains in effect for military crimes during wartime. This has allowed for legislative proposals to reintroduce it in the Penal Code, arguing that Chile has not fully abolished it and therefore is not bound by Article 4.3 of the American Convention on Human Rights.

The issue about the protection of the right to life of the unborn was subject to a strong debate. In Chile, abortion is governed by the Penal Code and the Sanitary Code. A total ban on abortion was implemented in 1989, during the last year of the dictatorship, through an amendment to the Sanitary Code. It was only in 2017 that abortion was legalized again, but strictly under three distinct situations: if the woman’s life is at risk, if the fetus is diagnosed with a condition that renders it nonviable outside the uterus, or in cases where the pregnancy has occurred due to rape, with the gestation period capped at twelve weeks (fourteen weeks for those under 14 years of age). This legislative change, stemming from a constitutional mandate ​to protect ‘the life of​ the one about to be born,’ was hotly debated. Ultimately, the Constitutional Court upheld the legality of this limited decriminalization of abortion in a 6-4 decision.

The right and center-right dominated Council proposed a key change to the current constitution and to the draft of the Commission of Constitutional Experts, focusing on enhancing the protection of the unborn. In the debate, ​Article 4.1 of the American​ ​Convention on Human Rights​ was referenced. The distinction between ‘the law protects the life of the one about to be born’ and ‘the law protects the life of the one ​who is about to be born​’, while subtle, underscores crucial legal and ethical interpretations regarding the protection of the nasciturus. The use of ‘who’ suggests personhood, advocating for the recognition of the unborn as individuals with rights from conception. This implies a broader scope of protection, viewing the fetus as an individual entity, rather than an extension of the pregnant woman.

A referendum was announced for December 17, 2023, where Chileans will vote on whether to adopt the new constitution.

For further information, please see:

Reuters – Chile voters sour on right-wing constitution as abortion clause stirs debate – 6 Oct. 2023

Bloomberg – Chile’s Right Takes Aim at Abortion, Gender in Amendments to Constitution Draft – 18 Jul 2023

Le Monde – Chile’s draft constitution calls into question right to abortion – 24 Sept 2023

The Guardian – Chile’s right wing presents draft conservative constitution – 7 Nov 2023

AP News – Chile president calls for referendum on new constitution proposal drafted by conservative councilors – 7 Nov 2023

Inter-American Commission of Human Rights – The Death Penalty in the Inter‐American Human Rights System: From Restrictions To Abolition – 31 Dec 2011

Rodrigo Delaveau Swett – Constitution of Chile – 2021

 

IACHR Releases Resolution Finding Displaced Triqui Families at Risk of Damage to Their Rights, Requests Action from Mexican Government

By: Alexa Connaughton

Journal of Global Rights and Organizations Associate Articles Editor

SAN JOSE, Costa Rica – The IAHCR has recently released a resolution finding that Triqui families who were displaced from their villages are at “risk of irreparable damage to their rights” and requesting that the state of Mexico take precautionary measures to protect the displaced Triqui families.

 
Venustiana, a teacher, in front of one of the protest banners commemorating one year since the forced displacement. | Photo Courtesy of Pie de Página and Isabel Briseño.
  

In December of 2020 a group of about 100 people, all part of a paramilitary group called MULTI (Triqui Struggle Unification Movement), attacked two Triqui villages, Tierra Blanca and Copala in Oaxaca, a state in southern Mexico. The attack started the morning of December 26th, when the paramilitary group began shooting into houses, killing, injuring, and kidnapping residents. Families were forced to flee in secret, resulting in the displacement of a total of 144 Triqui families. Some families were told to return to their homes, but no protection or preventative measures were offered by the government. Another attack occurred less than a month later. Following the December attack, there have been several instances of violence with little to no intervention by the government.

In 2020, it was estimated that approximately 4,077 indigenous people had been forcibly displaced from their home territories in Mexico. In Oaxaca alone, an estimated five indigenous communities were displaced, comprising 33 percent of the 4,077 total indigenous people. Meanwhile, 35 percent of the Triqui population has been displaced by violence.

Many of the Triqui families who were displaced went to the capital city of Oaxaca, Mexico City, and a nearby village of Yosoyuxi, where they have been living on the streets while they wait to be heard by authorities. Since the displacement in December of 2020, groups such as the MULTI have formed and conducted demonstrations and protests to seek help from the Mexican government for the Triqui families to return to their homes. These efforts have been met with more violence. During one sit in in Mexico City, people were forcibly removed and taken to shelters where they were met with deplorable conditions and no path to return to their homes.

In the course of their investigation, the IACHR heard arguments from the state of Mexico regarding their actions in response to these violent events. Mexico argues that they have given attention to the Triqui conflict as well as provided food, and health and economic support.  After investigating the issue, the IACHR found that there was a serious threat the Triqui families rights. The IACHR requested that Mexico adopt the measures necessary to safeguard the life and integrity of Triqui families, as well as take the security measures necessary to guarantee that the families can return to their communities. Finally, the IACHR requested that Mexico report on investigation of the events in an effort to prevent future attacks.

For further information, please see:

Inter-American Commission on Human Rights – Resolución 62/2023 – 27 Oct. 2023

Inter-American Commission on Human Rights, OAS – CIDH Otorga Medidas Cautelares a Familias Indígenas Triquis Desplazadas en México – 1 Nov. 2023

Latin America Reports – Mexico City Police Break Up Encampment of Displaced Triqui People Near National Palace – 29 April 2022

Pie de Página – Displaced Triquis in Mexico City Demand Safe Return to Their Land – 7 Feb. 2022

Pulse News Mexico – Massive Displacement of Oaxaca’s Triqui Disregarded by Government – 19 April 2022

 

 

 

 

 

                                                           

ICJ Hears Oral Arguments on Whether to Issue Provisional Measures Against Venezuela’s Consultative Referendum Questions

By: Megan Mary Qualters

Impunity Watch Staff Writer

THE HAGUE, Netherlands – The Co-Republic of Guyana (Guyana) is asking the International Court of Justice (ICJ) to issue provisional measures against the Bolivian Republic of Venezuela (Venezuela) regarding their border conflict and the Agreement that governs it. The ICJ, after establishing its jurisdictional authority in this situation, heard initial oral arguments from each country on Tuesday, November 14th and Wednesday, November 15th, 2023.

 
Photo map of Venezuela and Guyana and the region known as the “Guayana Esequiba.” | Photo courtesy of WLRN Public Radio and Television.
  

Background:

The Arbitral Agreement of 1899 (Agreement) established the boundary line between the “Colony of British Guiana” (Guyana) and the “United States of Venezuela” (Venezuela). However, a strip of land called the “Guayana Esequiba” is highly contested territory between the two countries. The Agreement establishes that the Guayana Esequiba is administered to Guyana, but Venezuela claims that the Guayana Esequiba is its own territory. The dispute originates from the colonial powers; Venezuela declared its independence from Spain in 1811, and Guyana only received independence from the United Kingdom in 1966. Venezuela contends that the Agreement was fraudulently imposed, despite the fact that it did not contest the border upon the Agreement’s inception. The dispute between the countries is before the ICJ upon referral from the Secretary-General acting within the authority of the Geneva Agreement of 1966. The Geneva Agreement established how a peaceful settlement was to be reached between border controversies should countries not reach their own agreement; Venezuela and Guyana are both a party to this agreement.

What’s New:

On October 3rd, 2023, Venezuela’s National Electoral Council published a list of five questions that it plans to use in a public “Consultative Referendum” on December 3rd, 2023. Notably, the first question is “Do you agree to reject, by all means in accordance with the Law, the line fraudulently imposed by the 1899 Paris Arbitral Award, that seeks to strip us of our Guayana Esequiba?” The third question is about ignoring the jurisdiction the ICJ has over this controversy. The fifth question calls for the creation of a Guayana Esequiba State with a plan to present that territory’s citizens with Venezuelan citizenship, and incorporate it into Venezuelan territory. Guyana asserts that these questions reflect Venezuela’s intention to unilaterally and unlawfully seize, annex, and incorporate the Guayana Esequiba. Therefore, Guyana asked the ICJ on October 27th, 2023 to issue provisional measures that would prohibit Venezuela from publishing questions and any other attempt to “seize annex or incorporate” any land that belongs to Guyana. The ICJ agreed to hear oral arguments regarding this issue on November 14th and 15th, 2023.  

What is a Provisional Measure Issued by the ICJ:

A provisional measure is an interim order issued for immediate protection of an individual’s rights under a treaty or convention, if those rights are at “a real imminent risk that irreparable prejudice will be caused to the rights claimed, before the Court gives its final decision, of suffering irreparable prejudice absent enactment measures.”

Guyana’s Call for Urgent Action:

In Guyana’s request for provisional measures from the ICJ, Guyana argues that if Venezuela holds the Referendum on December 3rd, it can anticipate being annexed unlawfully. Guyana argues that if annexation happens, it will be irreparably prejudiced in the ICJ proceedings regarding the validity of the Agreement. Furthermore, the Guyana argues that it will be unable to recover even if the ICJ later holds the Agreement to be valid or settles the dispute in a way which grants Guyana any part of the Guayana Esequiba.  Guyana urges that according to Article 41(1) of the Statute of the ICJ, the ICJ must issue provisional measures.

For further information, please see:

United Nations – Agreement to Resolve the Controversy over the Frontier between Venezuela and British Guiana (Geneva Agreement) – May 6 1966

ICJ – Arbitral Award of 3 October 1899, (Guyana v. Venezuela) – Accessed November 9, 2023

UN: Political and Peacebuilding Affairs – Boarder Controversy between Guyana and Venezuela – ND

ICJ – Case Concerning Arbitral Award of 3 Oct. 1899, (Guyana v. Venezuela)

Lieber Institute – The ICJ’s Provisional Measures Order: Unprecedented – Mar. 17, 2022

ICJ – Press Releases – Nov. 9, 2023

WLRN – Venezuelans Say Most Of Guyana Is Theirs. Guyanese Call That A ‘Jumbie’ Story – Sept. 14, 2021

IACHR Notifies Brazil of Filing of Case Regarding Lack of Investigation Into Extrajudicial Executions of Teenagers

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.”

 
Four of the accused policeman facing trial twenty four years after the executions | Photo Courtesy of Portal G1
  

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

 

 

IACHR Rules Guatemala Must Halt Legislative Action on Bills Providing Amnesty to Perpetrators of Human Rights Abuses

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.

 
Members of the Guatemalan Congress featured above have introduced bill 5920 “Law on Consolidation of Peace and Reconciliation” and Bill 6099 “Law on Strengthening Peace.” | Photo courtesy of Reuters/Luis Echeverria
  

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