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.