Should regional human rights courts, such as the Inter-American Court of Human Rights (IACHR) and the European Court of Human Rights (ECHR), expand their mandates to explicitly address corruption? Commentators have explored the possibilities of incorporating corruption into the human rights framework (see here and here), and in a previous post, Kaitlin Beach specifically explored the benefits of utilizing regional human rights courts to address corruption (see here and here). Kaitlin emphasizes certain advantages that regional human rights courts have, mainly their flexibility in the types of reparations they can demand. This enables them to order structural anticorruption changes at the state level, as opposed to simply issuing individual indictments.
Despite these advantages, though, we should not get our hopes too high about the role these courts can play in the fight against corruption. Indeed, the IACHR – which Kaitlin points to as her lead example for the productive role that regional human rights bodies can play in combating corruption – is currently burdened by its lack of compliance mechanisms, inefficiency, and financial instability. These setbacks have caused the IACHR to have only limited success in combating human rights abuses. To expect an institution that is still struggling to fulfill its original mandate to also take on an additional mission is unrealistic, and adding this additional burden would further strain the limited resources that courts like the IACHR have available to remedy human rights abuses.
Consider the following limitations of the IACHR, which are characteristic of other regional human rights bodies as well, and which make it unlikely that these institutions will be able to do what some anticorruption advocates hope:
- First, the IACHR is inefficient. Consider, by way of example, the Favela Nova Brasilia case, which concerns the killing of 26 individuals by Brazilian police forces in 1994 and 1995. A petition was filed with the Inter-American Commission on Human Rights in 1995, but it was not until 2011 that the Commission released its Merits Report, which recommended an independent investigation into the police violence, modification of Brazil’s relevant laws and policing procedures, and compensation for the victims. Despite this apparent victory, the majority of these remedies have yet to be realized. After years of extensions, the case was finally submitted to the Inter-American Court, and a hearing was held in October of this year. The IACHR still has not issued its judgment on the case. Such delays are not unusual. According to a 2013 study, the average delay between the occurrence of the human rights violation that gives rise to an IACHR case and the issuance of a compliance order from the Court was 20.9 years. According to another study, it takes an average of 6.5 years from the submission of an initial petition for the Commission to issue a merits report, which must occur before a case can even be sent to the Court. These delays make the Court especially unsuitable for tackling ongoing corruption cases, which may be more pressing than certain human rights cases regarding past violations (although many human rights abuses are ongoing as well). Furthermore, encouraging the Court to take on additional cases relating to corruption would only increase the number of cases being sent to the court, causing further delays.
- Second, the Inter-American System suffers from an unstable funding system and is currently undergoing a severe financial crisis. The IACHR is only allocated 6% of the Organization of American States (OAS) budget, which is funded by both member states and non-member states. The most recent funding crisis is due in large part to a severe cut in support from Scandinavian countries (the main non-member contributors), because they have redirected their money to address the European migration crisis. But even before the recent crisis, the IACHR had faced a shortage of funds for decades, and there is a discrepancy between the amount that countries are required to contribute in the OAS mandate and the actual amount that the IACHR ends up receiving. Without a restructuring of the OAS’s financing, the IACHR may not exist in the long term. It would be a waste of resources for the anticorruption community to focus its efforts on integrating corruption into the IACHR’s agenda when the Court’s long-term sustainability is in question.
- Third, and most importantly, the IACHR lacks teeth. The victories for the victims of human rights abuses are largely symbolic, both in terms of the types of reparations mandated and the lack of compliance by the states. Reparations vary by case, but generally they consist of 1) symbolic gestures such as acknowledgement of wrongdoing by the state, 2) compensation for the victims through payment of medical expenses or scholarships, 3) orders to investigate for cases in which the government failed to hold individuals accountable (generally violations perpetrated by the military or police), and 4) modifications to a state’s laws and procedures (as recommended in the Favela Nova Brasilia case). A 2013 study on the rate of compliance with the remedies concluded that states frequently only comply with the “softer” aspects of the Court’s orders, such as symbolic gestures, and fail to fulfill the “harder” obligations, such as orders for criminal prosecution and accountability measures. And even when a state does attempt an investigation or indictment, these processes are subject to the deficiencies of the police and judicial system in that country. The IACHR cannot demand that a state reaches a conviction, and so states are able to feign compliance by bringing a case against the alleged perpetrator that ends in a dismissal or acquittal. Similarly, even if a country modifies its laws in compliance with the IACHR’s orders, that does not guarantee enforcement of those laws. While symbolic measures certainly can contribute to a victim’s healing and raise public awareness of human rights abuses by the state, the “harder” measures are what will have a greater and more immediate impact for the purposes of combating corruption. And the fact that compliance with these harder orders is dependent on the integrity of the state’s institutions has obvious repercussions for using the IACHR for combating corruption: the remedies that would best address corruption are those that are least likely to be carried out.
None of this is to say that regional human rights courts like the IACHR should never address corruption issues. On the contrary, the Court frequently touches on corruption concerns when they are tied to the human rights abuse in question. For example, the Court has promoted the right to truth and access to information, especially in the context of forced disappearances, and it has ordered states to investigate officials who escaped prosecution due to corrupt judicial systems. Addressing corruption in this limited manner is both appropriate and necessary, and does does not detract from the Court’s human rights focus. Still, we should not forget that even in this limited manner, compliance is dependent on state consent. For the foregoing reasons, the IACHR and similar courts will not be capable of effectively tackling corruption until they have undergone significant structural changes that provide greater efficiency, funding, and enforcement mechanisms.
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Thank you for the post. The third point would seem to be at odds with the first one. If sanctions are ramped up, defendants will have a more of an incentive to ardently fight the charges, and greater due process protections would likely need to be added. This in turn would make the court move more slowly and increase the backlog further. Do you have any ideas for how to make the process more efficient without sacrificing due process protections? Do you know what causes the 20 year delays, is it something that could be removed without making the process unfair?
I too would be curious why the delay is so long. Why the average 6.5 years before a report has even been submitted to the IACHR for consideration?
It seems the most important reason not to be unduly hopeful of regional human rights courts potential is the very last point: “the remedies that would best address corruption are those that are least likely to be carried out”. The funding and delay issues strike me as pointing to the weakness of the institution no matter what cause happens to be before it, but the third point appears to be a weakness of the institution particular to the cause at hand and which indicates they should not see causes of action for bribery alone. For that reason, I don’t think increasing efficiency would go very far towards improving the court’s potential to see bribery COAs.
As for the reasons for the delay, the second study in my first point goes into great depth on this, discussing both the reasons for the inefficiency as well as possible remedies. One of the main reasons is that the Commission breaks its decision into two phases–admissibility and merits–which elongates the process. Another is simply the fact that there are significantly more petitions filed each year than the Commission can process, resulting in a larger backlog every year.
Also, something not mentioned in the article is that after the Commission releases its merits report, it generally grants the state’s requests for extensions for compliance. In some cases I worked on, these extensions went on for over two years before the Commission would finally recognize the failure to comply and send the case to the Court.
Carina, thanks for a great post! You are right that IACtHR’s underfunding, delay, and symbolic rather than binding solutions are significant challenges to any realistic impact the Court’s decisions could have on corruption. I completely agree with the bottom line that the limitations of the IACtHR mean it cannot effectively cause immediate, legally binding solutions to specific instances of corruption. We cannot currently expect the Court to be “tak[ing] on an additional mission.”
At the same time, I would argue both that IACtHR has a role to play and that we should expect that role to grow. For one, the Court has begun to address corruption as part of the cases that do come before it. Despite inefficiency and delay, frank acknowledgment of corruption and sanctions for particular individuals’ corrupt acts have become part of the Court’s repertoire. I don’t take your argument to be that the Court should stop talking about corruption as part of an issue already before it. I would agree that corruption shouldn’t (yet) support separate causes of action before the IACtHR. However, we should expect the discussion of corruption to continue where appropriate. Moreover, we can and should expect that the IACtHR’s aptitude as an anticorruption force will grow as the Court gains institutional stability.
Another point is that even assuming absolutely no legal effect on corruption can come from the Court’s opinions (which I would dispute, since Commission oversight and the ability to reopen investigations creates pressure to resolve identified problems), the expressive effect of the IACtHR’s rebuke of corruption could still be valuable for anticorruption efforts. Neighboring countries can look to the Court and Commission issuances—as regional governance bodies—as fodder in deal-making or public shaming. Investors can use the IACtHR’s findings on corruption, and the country’s subsequent response to those findings, to influence decisions about initial investment or expansion. Intranational political forces can also create pressure to address Court-identified pockets of corruption. Any such effects may be limited and not immediate, but they would be something.
Far from being a “waste of resources,” asking to integrate corruption more heavily into the current activities of the IACtHR is a simple step without much downside. Again, here I do not mean the addition of a stand-alone cause of action but greater integration of corruption responses in a holistic look at the issues currently before the Court. Fact-finding required for a decision may already be revealing corruption. The Court can be explicit in identifying and condemning any such corruption, as well as in using its flexible remedies to demand action (even if that action cannot easily be coerced). The additional costs would be negligible.
A final note is that not all regional human rights bodies do face the same degree of defiance, ineffectiveness, and underfunding currently seen in the IACtHR. The 2014 Annual Report of the European Court of Human Rights (ECHR) mentions a budget close to $68 million euros. The ECHR receives thousands upon thousands of petitions each year, issues large numbers of decisions, and works closely and productively with national courts. The newly formed African Court on Human and Peoples’ Rights, meanwhile, is just getting off the ground. Anticorruption campaigners’ approaches to the three different tribunals should be different. Still, in a world where sanctions for corruption can be frustratingly elusive, I think these tribunals should provide hope for some effect—however small.
Thank you for your comments, Kaitlin! I think we largely agree that there is no harm in the IACHR addressing corruption when it is related to the human rights violation in that specific case. However, it seems that many of the “expressive effects” that you highlight would require a stand-alone cause of action. For example, I am not sure that investors would choose to review IACHR decisions to parse out the corruption implications when making their investment decisions, unless the IACHR was deciding cases purely based on corruption claims. But I do agree that the symbolic victory through regional human rights courts is meaningful and beneficial in the long run. Symbolic victories can raise public awareness and facilitate public shaming that may pressure governments to implement anticorruption measures. Yet I question whether these expressive, long-term effects 20 years after a violation are enough of a reason to turn to regional human rights courts, and I wonder if there are better mechanisms to create change that we should instead focus our efforts on. Other types of courts that have proven to be effective are those that contain both international and domestic components, such as the CICIG. This integrated approach has been written about extensively on this blog and does not raise as many compliance issues as the top-down IACHR approach.
It seems to me that much of the push to use regional human rights courts is simply the fact that they already exist, and therefore it would be efficient to build off of these pre-existing structures. While it may be less efficient up front to create a new anticorruption structure such as CICIG, it is arguably equally inefficient to rely on the IACHR over time, for the above mentioned reasons.
As for the ECHR, perhaps that body is better equipped to handle corruption cases due to its financial stability. I have not researched the ECHR in-depth, but I would imagine that it still is limited by compliance and inefficiency issues. I have also read that the ECHR is more conservative in terms of the types of reparations it is willing to issue, which may constrain its ability to order corruption remedies. Still, you raise a fair point about not extrapolating these critiques of the IACHR to other regional human rights courts too broadly.
Reblogged this on Matthews' Blog.
Dear Carina:
Thank you for elevating the opportunity for countering corruption in regional human rights tribunals for discussion. In response, I would offer that the lack of rigor and consistency in enforcement in these tribunals may reflect the fact that under international law, there is no specific, enumerated human right of freedom from corruption.
A colleague, Andy Spalding, and I have done some research on this subject (which can be found in the below link.) In the course of our research, we cited the important work that the European Court of Human RIghts has done to adjudicate corruption by hearing cases that are brought by citizens in the name of protecting the human right of protection of property. We further argue that the time has arrived for both the legal and anti-corruption communities to seriously consider creating a stand-alone human right of freedom from corruption. In our view, this would alter the enforcement paradigm and help these tribunals work more efficiently.
Click to access Murray-and-Spalding_v06.pdf
I look forward to following your work on this important subject.
Best regards,
Matthew Murray