The implications of


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The key importance of Villagrán Morales in relation to children’s rights therefore lies in its incorporation of the CRC into Article 19, and the emphasis on the indivisibility of the rights therein, once again opening up the judicial field to socio-economic claims, as with the right to life.



[NB: This section applies to four of the five victims: Jovito, Federico, Julio and Henry.]

This aspect of the case is considered under two conventions: the American Convention on Human Rights and the Inter-American Convention to Prevent and Punish Torture.

1) American Convention on Human Rights, Article 5.1 and 5.2

“The Court considers that the violation of this Article should be examined from two angles. First whether or not Article 5.1 and 5.2 have been violated to the detriment of the youths...should be analysed. Second, the Court should evaluate whether the families of the victims were, themselves, subjected to cruel, inhuman and degrading treatment” (para. 156).

a) The victims:

i) Evaluation of evidence

In its evaluation of evidence both generally in the case, and specifically in relation to torture96, the Court has established wide parameters of interpretation of both direct and indirect evidence (paras. 69-71). This interpretive latitude is particularly significant in the present case on two counts.

Firstly, the facts surrounding the torture of the victims are unclear: Amnesty International’s graphic report (which was not contested by the State in its defence and therefore may be presumed by the Court to be true97) details eyes gouged / burnt out, tongues and ears cut off and burning liquid thrown on the chest and chin of the youngest victim, Julio (15). However, the exact nature of these injuries could not be corroborated due to the complete inadequacy of the Guatemalan autopsy reports and minimal forensic and photographic evidence collected by the State at the time of the murders98. [It must be remembered that the Inter-American Court judgement was made over nine years after the actual events.]

Circumstantial, corroborative evidence is provided, once again, by the background context of a systematic pattern of torture and mistreatment of street children in Guatemala at that time (paras. 161 and 167), along with the testimony of a street girl who had been abducted previously under similar circumstances (para. 161). With this in mind, the Court stated that, in spite of the lack of other evidence, given the violent nature of the victims’ abduction and the state of their bodies recovered subsequently, abandoned in a wood with gunshot wounds to their heads, it is reasonable to assume that the treatment they received during the 10 - 21 hours of their illegal detention was “extremely aggressive” (para. 162)99.

Secondly, it may be claimed that, by giving the victims ‘the benefit of the doubt’, this interpretation of the facts reflects the “rising global insistence that States, governments, institutions and laws exist to serve the people…The human factor is emerging, at last, as the factor which should govern in every situation”100. This approach is inherent in the Court’s reasoning throughout this case.

As regards responsibility, the Court draws on European jurisprudence to establish that “the State is responsible for ill-treatment exhibited by a person who has been in the custody of State agents, if the authorities are incapable of demonstrating that those agents did not incur in such behavior.”101

ii) Definitions of torture, cruel, inhuman and degrading treatment

Even without concrete evidence of physical torture, the Court considers that, based on its own and European case law102, the mere fact of the victims being held incommunicado constituted a violation of Article 5: “While they were retained, the four youths were isolated from the external world and certainly aware that their lives were in danger. It is reasonable to infer that, merely owing to this circumstance, they experienced extreme psychological and moral suffering during those hours” (para. 163)103.

This leads into the current debate concerning the definition of torture in relation to children: i.e. is it sufficient and appropriate to rely on the existing ‘adult’ definition such as that contained in Article 1 of the UN Convention Against Torture (CAT)104?

“Children may also fall through the net of international legal protection because they may suffer the effects of traumatic events in ways which are different from adults. The jurisprudence of regional and international human rights fora appears to be based principally on adult victims, and, despite some judicial dicta to the contrary, there is a real risk that international and regional standards may mechanically be applied to cases involving child victims. Such an approach is inappropriate because it promotes an analysis which fails to address both the particular vulnerabilities of children and the role of children as social actors”105.

Much work is being done on this issue currently, concentrating on aspects such as the degree of suffering -which should be established by taking into account the “effect experienced” and the age of the child, rather than a so-called ‘objective’ examination106: “A child may experience the same event as an adult but perceive it in a completely different manner and be unable to assess it cognitively. Consequently, events can be more frightening and disturbing, and hence ‘cruelty is more terrifying’ for children”107.

It is therefore unfortunate that, given the contemporary academic debate on this subject and combined with the excellent opportunity afforded by this case to examine such issues, although raised by the Commission (para. 152), the Court does not specifically consider the violation of Article 5 in the context of two of the victims being children. Therefore, although reference is made to Article 37 of the CRC (concerning torture) in the context of the rights of the child generally (see Chapter 2), it is not mentioned specifically here, in the context to which it applies directly. (This is the same as in the case of Article 6 of the CRC on the right to life which is likewise mentioned with regard to Article 19 but not in the direct context of Article 4 of the ACHR (see Chapter 1). However, the decision in this case will nonetheless stand as a reference for future cases in international human rights law involving children as victims of inhumane treatment.

Finally, although not a subject of consideration in this particular judgement, treating deprivation of social and economic rights as ‘inhuman and degrading treatment’ offers a further means by which to engage State responsibility for their positive provision (as examined in Chapter 1 on the right to life incorporating quality of life108).

b) The families of the victims:

The Court, in addition to finding that Article 5 had been violated to the detriment of the four youths themselves, also found a violation of Article 5(1) to the detriment of their mothers. This ruling was made on the basis of the anxiety and distress caused by the unknown fate and whereabouts of their children (drawing on European and Human Rights Committee precedents109), the fact that no attempts were made by the authorities to identify the bodies or notify the next of kin, the burial of the bodies in unmarked graves and the failure of the authorities to investigate the crimes and punish those responsible (para. 173).

Also, citing its previous decision in Blake v Guatemala110, the Court stated that “the treatment given to the remains of the victims [abandoned to the weather and animals in the wood], which were sacred to their families and particularly their mothers, constituted cruel and inhuman treatment for them” (para. 174). This is stated more eloquently and poignantly by the judges in the Joint Opinion:

“The children who were murdered on a street and in a wood (ironically, the wood of St. Nicolas, a figure with such symbolism for children) not only did not have the opportunity to reconcile themselves to their passage to eternity; the respect of the physical remains of those children would have ensured that the mothers at least had the opportunity of maintaining alive within themselves the memory of their children prematurely disappeared.”111

2) Inter-American Convention to Prevent and Punish Torture, Articles 1, 6, 8

Villagrán Morales constitutes only the second ever finding of a violation of this convention112, therefore adding to the body of regional jurisprudence on serious human rights violations and making use of all available treaties in the promotion and protection of human rights. However, although the definition of torture in Article 2 is comparatively wider than that in the UN CAT113, “a former president of the Inter-American Court has characterised this convention as a ‘disappointing instrument’, since it has eliminated the reaffirmation of torture as an international crime…”114

In its arguments, the Commission referred to the UN CAT (Articles 7 and 12), the UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment115, and the UN Body of Principles for the Protection of All persons under Any Form of Detention or Imprisonment116. Although these documents were not referred to directly by the Court, reference to them by the Commission provides another example of the Inter-American Human Rights system accepting cross-fertilisation of all available standards, thus indirectly enhancing receptivity of its own jurisprudence by cultivating a general atmosphere of reciprocity within the international human rights community.


The implications of Villagrán Morales for international human rights law are therefore immense, particularly in terms of accessing socio-economic rights through the reconceptualisation of the right to life as encompassing the right to life with dignity, and by establishing a judicial implementation mechanism for the UN Convention on the Rights of the Child.

Thus the main focus of this study has been on the legal precedents set by this case. However, the ramifications of these judicial findings will hopefully extend beyond the legal sphere and impact (to varying degrees) on different aspects of work with street children, as well as on the specific situation in Guatemala. A full exploration of the extent of these ramifications lies beyond the scope of this study, but their brief mention here is intended to indicate the potential of this case for bridging the divide between international legal theory and grassroots promotion and protection of human rights.
1) Profile of street children

The effect of an official, high-profile and well-respected regional legal mechanism making a sympathetic, intelligent and holistically considered judgement in favour of street children has great symbolic significance for the profile of this particularly vulnerable and marginalised group. It is fair to say that the most dangerous threat posed to street children lies in their dehumanisation in the eyes of society in that it absolves people, especially the authorities, of the obligation to accord them their human rights. Their transposal from children to street children to undesirables to discardables is expressed in many countries by annihilation - either actively by death squads or passively by neglect. This judgement confronts such widely held perceptions and challenges those in power to face up to their responsibilities by addressing the root causes of the problem from a socio-economic perspective, in addition to combating impunity in civil and political rights violations.

2) Inter-American human rights system / Rule of law
This decision marks another phase in the evolution and strengthening of the regional system, representing a landmark example of the Court delivering controversial, well-considered, impartial decisions which have the effect of “de-politicising” contentious issues in a politically turbulent region117. Whilst accepting the limitations of legal decisions to have immediate, concrete, grassroots effect, the Inter-American system is nonetheless central to the advancement of the rule of law and the discouragement of violations of human rights by State agents acting with impunity:
“Courts really make only minor contributions to the solution of societal problems. We live in a part of the world with tremendous societal problems: economic, social, and political problems. No court, regardless of its power, is going to solve those problems. So, you cannot have illusions of grandeur that you are going to do this.
What you can do, in my opinion, is strive to create, through very responsible judicial decisionmaking, a climate in which compliance with a judicial decision legitimises governmental behavior and where noncompliance illegitimises governmental action. And the more legitimacy, or delegitimacy if you will, you can create through your opinions, the more you move to a climate in which law, as distinguished from arbitrary action, can play a role. Here a court can play a very important role...”118
2) Implications at the national level in Guatemala

In the decade that has passed since the events of the case took place, there has been a marked reduction in levels of violence against street children in Guatemala (although they are still unacceptably high119):

“A few years ago it was very common to see kids who had been beaten up by the police. They would beat them, sometimes severely...I saw burst bladders and intestines, broken ribs. They’d make the children swallow bags of glue. I still see these kind of abuses, but less than before. Five years ago, I’d see four or five cases of police beatings a day. Now, I see five or six a month. Bruises, contusions.”120
The reasons for this improvement may be attributed to any combination of the following factors: the peace accords of 1996; the attempted process of healing through the Commission for Historical Clarification 121; the introduction of a trained police force122; and, undoubtedly, the work of courageous NGOs holding the State accountable for cases such as this one and pursuing the government to uphold its responsibilities to protect victims and punish perpetrators who would otherwise literally get away with murder.
More recently, the election in January 2000 of President Alfonso Portillo has resulted in a climate more receptive to the improvement of human rights123: President Portillo has abolished the previously powerful army unit attached to the presidency (Estado Mayor de Presidencial); he has created a new ‘strategic civilian office’ with input from human rights NGOs; and he has spoken of his intention to reform the judiciary124.

In a move very likely linked directly to the negative publicity and the embarrassment caused by the Villagrán Morales case, “[t]he State has entered into friendly settlement negotiations in relation to approximately 15 of the 75 cases pending against it before the Commission. It is apparently studying which other cases it might be able to move forward with in the same manner. The Portillo administration has indicated its interest in pursuing a permanent dialogue with the nongovernmental organisations involved in cases before the Commission in order to pursue negotiated settlements. [...] Friendly settlement is more a process than a result, so we will have to see steps toward implementation of agreements before we can know how these processes will unfold.”125

It will therefore be interesting to see how the reparations phase of the Villagrán Morales case ,due to be completed in the spring of 2001, will affect the State’s attitude and actual behaviour, particularly bearing in mind the petitioners’ insistence on a national plan to help street children and the passing of the Children and Adolescents’ Code126 as part of the reparations127. It would also be interesting to see if the findings from this case could be incorporated into police training programmes with the preventative aim of reducing police violence against street children. However, from a grassroots perspective, in reply to queries as to the tangible benefits of this case, Casa Alianza is circumspect: “I don’t think there will be any direct benefits to the policeman on the beat as a result of this case. [...] Once we set (high) reparations and the government has to cough up money then there may be more attention paid to the ruling. But don’t hold your breath...”128
It is an uphill battle, and of the other NGOs working with street children in the area, very few are actively involved in such contentious advocacy work due to both the physical dangers involved (harassment, death threats, attempted murder, suspicious death of two witnesses etc129) and the threat to project funding from the very governments under criticism: “Governments are very smart and will often give small amounts of funding to NGOs which has the effect of shutting them up. […] Advocacy will inevitably cost the agency funding”130.

Despite the difficulties, although early days, Villagrán Morales already seems to have had a direct impact on Guatemala’s attitude towards other cases before the Commission. Although it will undoubtedly take time for these changes to filter down the judicial and police hierarchy, and, bearing in mind the words of the former Court judge, Thomas Buergenthal, on the limited power of any court to effect real ground level societal change, the potential still exists for this case and others like it to make a contribution to combating a climate of impunity and institutionalised violence against vulnerable members of society. Buergenthal concludes his observations with: “a lot of lives can be saved in situations where a government says, ‘Listen, we can’t do this because if we do it, the Court is going to decide this, and if the Court decides this, we are going to have all sorts of adverse political reactions.’”131

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