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supra note 81, at 9. It must be noted, however, that Ennew is also critical of the implications of this symbolism - she speaks elsewhere of street children ‘hijacking’ both the urban agenda and the child rights agenda, at 2-3.


91Andre Alen and Wouter Pas, The UN Convention on the Rights of the Child’s Self-executing Character, in Monitoring Children’s Rights 176 (E. Verhellen, ed., 1996).

92The Court’s evolving acceptance of CRC standards can be chartered from Nielsen v Denmark (1989) 11 E.H.R.R. 175 where the emerging principles of the CRC were ignored, via Costello-Roberts v UK (1993) 19 E.H.R.R. 112, to Keegan v Ireland (1994) 18 E.H.R.R 342, para. 50 where reference was made to CRC Article 7, and, most recently, A v UK (1998) 27 E.H.R.R. 611 where the European Commission draws not only on Article 19 of the CRC, but also on the Committee on the Rights of the Child’s 1995 concluding observations of the UK’s State Report (para. 49 and 52).

93Inze v. Austria, Eur. Ct. H. R. (1987) 10 E.H.R.R. 394. See also inter alia, Johnson et al v. Ireland (1986) 8 E.H.R.R. 214. This concept in relation to children’s rights can be traced back to Marckx v. Belgium (1979) 2 E.H.R.R. 330: “the Convention had to be interpreted in the light of present day conditions.”

94African [Banjul] Charter on Human and People’s Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 Oct 1986. Article 18(3) provides: “The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.”

95African Charter on the Rights and Welfare of the Child, adopted by the Organisation of African Unity (OAU) at 26th Ordinary Session 1990, entered into force 29 November 1999.


96 “With specific regard to the evidence of torture, the Court deems it pertinent to state that, in order to establish if torture has been inflicted and its scope, all the circumstances of the case should be taken into consideration, such as the nature and context of the respective aggressions, how they were inflicted, during what period of time, the physical and mental effects and, in some case, the sex, age and state of health of the victim.” Judgement, para. 74, citing the following cases from the Eur. Ct. H. R.: Costello-Roberts v UK (1993) Series A no. 247-C, p. 59, para. 30; Soering v UK (1989) Series A no. 161, p. 39, para. 100; Ireland v UK (1978) Series A no. 25, p. 65, para. 162; Tyrer v UK (1978) Series A no. 26, pp. 14-15, paras. 29-30.

97Judgement, para. 68: “the Court considers, as it has done in other cases, that when the State does not specifically contest the application, the facts on which it remains silent are presumed to be true, provided that the existing evidence leads to conclusions that are consistent with the facts.” Based on Godínez Cruz case. Judgement of 20 January 1989. Series C No. 5, para. 144 and Velásquez Rodríguez , supra note 30, para. 138.

98See Judgement, paras. 158, 160, and para. 66(a) summarising the findings of the expert witnesss Roberto Carlos Bux, Deputy Director of the Bay County Forensic Center, San Antonio, Texas.


99See also Velásquez Rodríguez, supra, note 30, para. 188: “the context in which the disappearance of Manfredo Velásquez occured and the lack of knowledge seven years later about his fate create a reasonable presumption that he was killed”, cited in Scott Davidson, supra note 48, at 220.

100 Ramcharan, supra note 23, at 1.

101Judgement, para. 170, citing Eur. Ct. H. R. cases: Aksoy v. Turkey (1996) Reports of Judgements and Decisions 1996-VI, p. 2278, para. 61; Ribitsch v. Austria (1995) Series A, no. 336, p. 26 et seq., para. 34; Tomasi v. France (1992) Series A no. 241-A, pp. 40-41, paras. 108-111.

102In Castillo Páez, Judgement of 3 Nov. 1997. Series C No. 34, para. 66, the Court stated that the mere fact of being placed in the trunk of a car constitutes a violation of Article 5, “even if no other physical or ill-treatment occurred”, due to it contravening “the respect due to the inherent dignity of the human person”. Similarly, in Suárez Rosero, (Judgement of 12 Nov. 1997. Series C No. 35, para. 90), the Court outlines the grave moral and psychological effects of incommunicado detention which exacerbates the victim’s vulnerability and increases the risk of aggression. Citing the European Court decision in Campbell and Cosans v UK (1982) Series A No. 48, p.12. para. 26, the Inter-American Court states that the mere threat of torture, “when it is sufficiently real and imminent” may, in some circumstances, constitute inhuman treatment (Judgement, para. 165).


103On this subject, see also Geraldine Van Bueren, Opening Pandora’s Box - Protecting Children Against Torture, Cruel, Inhuman and Degrading Treatment and Punishment [hereinafter Van Bueren], in Childhood Abused, supra note 73, at 66: “The prohibition on torture, cruel, inhuman and degrading treatment and punishment is not limited to institutional deprivations of liberty, but when children are deprived of their liberty they may become more vulnerable to such treatment and punishment. Hence during the drafting of the Convention on the Rights of the Child, Venezuela proposed that the imprisonment of children per se constituted a specific form of abuse to which Article 39 and the right to rehabilitation would automatically apply. It would be an understatement to record that the proposal did not meet with the approval of the majority of states.”

104 Adopted and open to signature, ratification and adhesion by the General Assembly of the United Nations in its resolution 39/46, of 10 December 1984: entered into force 26 June, 1987. Guatemala is a party to this Convention since February 1990.

105Van Bueren, supra note 103, at 57-58.

106Eric Sottas, Director of the World Organisation Against Torture (OMCT), statement made to the Committee on the Rights of the Child, 13 November 1995, Geneva. Cited in Judith Ennew, Shame and Physical Pain: Cultural Relativity, Children, Torture and Punishment, [hereinafter Ennew, Shame and Physical Pain] in Childhood Abused, supra note 73, at 16. See also Martin Richards, The Ill-Treatment of Children - Some Developmental Considerations, in id., at 36: “expectations, perceptions and the social context are everything in assessing the consequences of experiences in childhood.”


107Van Bueren, supra note 103, at 60, citing the record of an interview by Jill Peasley with Dr. Naomi Richmond. Institute of Child Health, University of London. Project for Care of Children in War and Disasters. See also Ennew, Shame and Physical Pain, supra note 106, at 27-30 on the issue of a child’s sense of dignity: “Whatever adults may feel about the idea of physical pain inflicted on children, this may not be the prime definitional factor for children themselves. Children’s dignity is fragile, their self-awareness (whether based in group or individual identity) is in the process of development. Thus punishments and maltreatments that infringe that dignity may be worse than physical pain, not only at the time inflicted but also with respect to their long-term effects” at 30. For a fuller dicussion on these issues, see, Eric Sottas, A Non-Governmental Organisation Perspective of the United Nations’ Approach to Children and Torture, in Childhood Abused, supra note 73, at 143-150.

108See e.g. McBride, supra note 73, at 107-116; Van Bueren, supra note 103, at 58-59 on “the argument that poverty is inherently degrading”; Sottas, Perpetrators of Torture, in Childhood Abused, supra note 73, at 71 on the “link between socioeconomic underdevelopment and massive violation of civil and political rights” and at 79 on the effects of socioeconomic exclusion and inequality on violence (with specific reference to street children); Antonio Cassese, Can the Notion of Inhuman and Degrading Treatment be Applied to Socio-Economic Conditions? , supra note 63.


109Judgement, para. 176 citing: Eur. Ct. H. R. Kurt v Turkey (1998), Reports of Judgements and Decisions 1998-III, p. 1187 §§ 130-134; Human Rights Committee, Quinteros v Uruguay, (1983) (19th Session) Communication No 107/1981, para. 14.

110Blake v Guatemala (1998). Series C No. 36, para. 115: “the burning of Mr Nicholas Blake’s mortal remains...is an assault on the cultural values prevailing in Guatemaln society, which are handed down from generation to generation, with regard to respecting the dead. [This action] increased the suffering of Mr Nicholas Blake’s relatives.”

111Joint Opinion, supra note 31. See Appendix C for full text.

112The first was Paniagua Morales et al (1998), Series C No. 37, para. 136.

113The IACPPT definition, unlike CAT, makes no reference to the severity of pain inflicted and the necessity of involvement of a ‘public official’, and it adds that “[t]orture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish”. The regional definition would therefore appear to be wider in scope than that of the UN CAT.

114The quotation continues: “and [it] also allows for continued application of the right to asylum, thereby suggesting that torture may be considered as a political crime, excluding it from the application of extradition treaties as well as eroding the principle of universal jurisdiction.” Love Kellberg, Torture: International Rules and Procedures, in An End to Torture, supra note 32, at.28, citing Pedro Nikken, L’Action Contre le Système Interaméricain des Droits de l’Homme, in The International Fight Against Torture (Antonio Cassese ed., 1991).


115Adopted by the General Assembly of the United Nations in its resolution 3452 (XXX), of 9 December 1975.

116Adopted by the General Assembly of the United Nations in its resolution 43/173, of 9 December 1988.

117See inter alia Harris and Livingstone, supra note 47, at 20-23; Lynda E. Frost, The Evolution of the Inter-American Court of Human Rights: Reflections of Present and Former Judges, 14 Hum. Rts. Q. 171.

118 Thomas Buergenthal, United States Judge, Inter-American Court of Human Rights (1979-1991) in id., at 201 [hereinafter Buergenthal].

119See Human Rights Watch Report, supra note 20.

120Dr René Zamora, Casa Alianza doctor, Guatemala City, 4 September 1996 - Human Rights Watch Children’s Rights Project interview, in id., at 9.

121See supra note 13.

122 As referred to by the State in its defence, Judgement, para. 215.

123The following information is courtesy of Juan E. Mendez, Inter-American Commission on Human Rights, personal interview, 18 March 2000. Notes on file with the author.


124See Amnesty International, New President Should Fulfil his London Human Rights Promises News Release AMR 34/02/00 (14 Jan 2000). Available online: http://www.amnesty.org/news/2000/23400200.htm [3 March 2000].

125Elizabeth Abi-Mershed, Secretariat Staff Attorney assigned to the case of Villagran Morales, Inter-American Commission on Human Rights, personal communication, 22 Aug 2000. Notes on file with the author. She emphasises, however, that “the Commission still has to review the settlement for conformity with the principle of respect for the American Convention prior to ‘signing off’ on any settlement.” (N.B. statistics here refer to all cases, not just those involving children / street children).

126See supra note 75.

127Bruce Harris, supra note 70. “Anstraum [Aman Villagran Morales] has a (now) 11 year old son for whom we will get compensation. The other family members will also receive compensation. I guess my principal interest at the moment is to milk as much money out of the government as possible.”

128Id..

129See background information on the case, p. 2 of this study.

130Bruce Harris, supra note 70.

131Buergenthal, supra note 118, at 201.


132Bruce Harris, supra note 70.

133 Reprinted in Blackstone's International Human Rights Documents, 1st Ed., P. R. Ghandi, 1995 at 147.

134 Reprinted in Blackstone's International Human Rights Documents, 1st Ed., P. R. Ghandi, 1995 at 171.

135 See e.g. B. G. Ramcharan (ed.), The Right to Life in International Law, Dordrecht, Nijhoff, 1985, pp. 1-314; J. G. C. van Aggelen, Le rôle des organisations internationales dans la protection du droit à la vie, Bruxelles, E. Story-Scientia, 1986, pp. 1-104; D. Prémont and F. Montant (eds.), Actes du Symposium sur le droit à la vie - Quarante ans après l’adoption de la Déclaration Universelle des Droits de l’Homme: Evolution conceptuelle, normative et jurisprudentielle, Genève, CID, 1992, pp. 1-91; A.A. Cançado Trindade, “Human Rights and the Environment”, Human Rights: New Dimensions and Challenges (ed. J. Symonides), Paris/Aldershot, UNESCO/Dartmouth, 1998, pp. 117-153; F. Przetacznik, “The Right to Life as a Basic Human Right”, 9 Revue des droits de l’homme/Human Rights Journal (1976) pp. 585-609. And see General Comments 6/1982 and 14/1984 of the Human Rights Committee, on the UN ICCPR reproduced in: United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. doc. HRI/GEN/1/Rev. 3, of 15.08.1997, pp. 6-7 and 18-19.


136 See e.g.., W. Paul Gormley, “The Right to Life and the Rule of Non-Derogability: Peremptory Norms of Jus Cogens”, The Right to Life in International Law, op. supra n. (1), pp. 120-159; Y. Dinstein, “The Erga Omnes Applicability of Human Rights”, 30 Archiv des Völkerrechts (1992) pp. 16-37; and see in general, inter alia, Alfred Verdross, “Jus Dispositivum and Jus Cogens in International Law, 60 American Journal of International Law (1966), pp. 55-63; Charles de Visscher, “Positivisme et jus cogens”, 75 Revue générale de Droit international public (1971) pp. 5-11; see also: International Court of Justice, South West Africa Cases (2a. fase, Ethiopia and Liberia v South Africa), Dissenting Opinion of Judge K. Tanaka, ICJ Reports (1966) p. 298: “(...) surely the law concerning the protection of human rights may be considered to belong to the jus cogens”.

137 Inter-American Court on Human Rights, El Derecho a la Información sobre la Asistencia Consular en el marco de las Garantías del Debido Proceso Legal - Advisory Opinion OC-16/99, of 01.10. 1999, Series A, n. 16, para. 114.

138 Inter-American Court of Human Rights, Loayza Tamayo versus Peru (Reparations), Judgement of 27.11.1998, Series C, n. 42, paras. 15-16.



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