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INTERNATIONAL HUMAN RIGHTS


LAW IN EVOLUTION”:

THE IMPLICATIONS OF


VILLAGRAN MORALES ET AL V. GUATEMALA

(THE ‘STREET CHILDREN’ CASE,

INTER-AMERICAN COURT OF HUMAN RIGHTS) FOR INTERNATIONAL HUMAN RIGHTS LAW.


By




Marie Wernham


MA Understanding and Securing Human Rights



Institute of Commonwealth Studies


University of London

September 15, 2000


INTERNATIONAL HUMAN RIGHTS



LAW IN EVOLUTION”:

THE IMPLICATIONS OF


VILLAGRAN MORALES ET AL V. GUATEMALA

(THE ‘STREET CHILDREN’ CASE,

INTER-AMERICAN COURT OF HUMAN RIGHTS) FOR INTERNATIONAL HUMAN RIGHTS LAW.


By




Marie Wernham




This dissertation is submitted in partial fulfillment of the requirements for the degree of

MA in Understanding and Securing Human Rights


of the University of London.

September 15, 2000


(10,992 words, excluding footnotes, bibliography and appendices)

“Faced with the imperative of protecting human life, and the uncertainties and reflections provoked by death, it is very difficult to separate dogmatically judicial from moral concerns: we are before an order of higher values – the substratum of judicial norms – which helps us to find the meaning for the existence and destiny of each human being. International human rights law, in evolution on the threshold of the 21st century, must not remain insensible or indifferent to these questions.”

Judge Antônio Augusto Cançado Trindade

Judge Alirio Abreu Burelli


Joint Opinion, Villagrán Morales et al v. Guatemala,



19 November 1999

Inter-American Court of Human Rights



ABSTRACT

In June 1990, in Guatemala City, five friends were tortured and murdered by the police. Three of them were children. No attempt was made to identify the bodies and they were buried in unmarked graves. The police investigation was as half-hearted as the domestic judicial proceedings were negligent. However, nearly ten years later, in the Inter-American Court of Human Rights, November 1999, these five unfortunate street children and youths – albeit at far too great a price - made posthumous legal history.


The first child murder case, the first arbitrary detention case involving children, and the most severe threshold of torture in relation to children to come before a judicial international human rights tribunal, Villagrán Morales et al v. Guatemala sets two remarkable legal precedents. Firstly, its expanded definition of the right to life to encompass the right to life ‘with dignity' brings State responsibility for the provision of a minimum threshold of socio-economic rights into an enforceable legal arena. Secondly, the Court has effectively established the world's first judicial mechanism by which to hold States accountable for non-implementation of the rights contained in the UN Convention of the Rights of the Child.

This study sets out to examine both these and other implications of this recent, innovative judgement, with a view to establishing the place of Villagrán Morales in the pantheon of landmark human rights cases to have significantly contributed to the promotion and protection of human rights everywhere.


TABLE OF CONTENTS

Introduction Page
Summary of the case 1

Background context: Guatemala in 1990 4

Street children in Guatemala 5

Implications 7


Chapter 1: Right to Life
Introduction 9

1) ‘Negative’ aspects 10

2) ‘Positive’ aspects 11

a) State complicity via failure to investigate and prosecute 11

b) Right to life with dignity 12


Chapter 2: Rights of the Child
1) Defining parameters 26

a) UN Convention on the Rights of the Child 27

b) UN ‘Riyadh Guidelines’ and ‘Beijing Rules’ 28

2) Applying parameters 30

3) Implications for internatinal children’s rights law: 32

a) UN Committee on the Rights of the Child 32

b) UN Human Rights Committee 33

c) European Court of Human Rights 33

d) African human rights system 34
Chapter 3: Right to Humane Treatment
1) ACHR Article 5.1 and 5.2 35

2) IACPPT Articles 1, 6, 8 41


Conclusions: Wider implications
1) Profile of street children 42

2) Inter-American System / Rule of Law 43

3) National level 44
Bibliography 48
Appendix A: Text of ACHR / IACPPTarticles 54

Appendix B: Key paragraphs of the Judgement, 144 and 191 57

Appendix C: Joint Opinion of Judges Trindade and Burelli 58
INTRODUCTION

Summary of the case

On 15 June 1990, a group of friends named Henry Giovanni Contreras (18), Federico Clemente Figueroa Túnchez (20), Julio Roberto Caal Sandoval (15) and Jovito Josué Juárez Cifuentes (17) were violently apprehended, mid-morning, in an area of Guatemala City centre where they were often seen together - an area infamous for its high crime rate and large number of street children1 and youths, including the four in question. They were held up at gunpoint by armed men in civilian clothes (identified as police agents2) before being handcuffed, beaten with pistols and taken away in a pick-up truck.


The next day, on 16 June, the tortured and mutilated bodies of Jovito and Federico were found thrown in the San Nicolas Woods (Bosques de San Nicolás) in an isolated area of Mixco, a suburb of Guatemala City. The day after that, Henry and Julio were likewise found in the same place. Their eyes had been burned or gouged out, ears and tongues severed, and the youngest, Julio, had had a boiling liquid poured over his chest and chin. All of them had been shot multiple times through the head at close range3.
At midnight, ten days later, on 25 June 1990, Anstraum Aman Villagrán Morales (17), a friend of the other victims, was approached by the same two policemen, Samuel Rocael Valdes Zúñiga and Néstor Fonseca López, in the same area where his friends had been kidnapped4. They spoke with him alone, let him walk away, and then fatally shot him in the back.

The case was taken up by Casa Alianza (a regional non-governmental organisation (NGO) working with street children5). During the course of the investigation, key witnesses were threatened (two of whom subsequently died6) and workers at Casa Alianza were intimidated to the extent that three of the staff had to leave Guatemala. Bruce Harris, Regional Director, testified that in July 1991 “three men came to look for him in an amoured vehicle without license plates and, as he was not at Casa Alianza, ‘they covered the facade of our building with bullet holes’”7.

Despite strong evidence to support the plaintiff’s case, including ballistics tests linking one policeman directly to the crime, the case was subject to arbitrary consideration, judicial partiality and omission of vital evidence and investigation at every level of the Guatemalan judicial system right up to the Supreme Court appeal, which upheld the decision in favour of the defendants. Having exhausted all domestic remedies, this led to the decision by Casa Alianza in association with CEJIL (Centre for Justice and International Law - based in Washington) to present the case to the Inter-American Commission on Human Rights (Commission) on 15 September 1994.
Having examined the admissibility and merits of the case, and both parties being unwilling to negotiate a friendly settlement, the Commission presented the case to the Inter-American Court of Human Rights (Court) on 30 January 1997.
On 19 November 1999, almost nine and a half years after the events took place, the Court unanimously found the State of Guatemala in violation of the following articles of the American Convention on Human Rights8:




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