CNN, ‘Opposition leader claims victory as Guatemala’s next President’, 9 Nov 1999. http://cnn.com/WORLD/americas/9911/08/guatemala.election.03/ [17 April 2000].
Guardian, ‘Guatemala admits killings’, 11 Aug 2000, p. 15.
Independent, Jan McGirk, ‘Guatemalan leader admits civil war atrocities’, 11 Aug 2000, p.12.
Washington Post, John Ward Anderson, ‘Guatemala swears in new President’, 15 Jan 2000. http://washingtonpost.com/…yn/world/americas/A49170-2000Jan15.html [17 April 2000].
Abi-Mershed, Elizabeth, Secretariat Staff Attorney, Inter-American Commission on Human Rights. E-mail, 22 Aug 2000.
Harris, Bruce, Regional Director, Casa Alianza Latin America. E-mail, 5 Sept 2000.
Mendez, Juan E., Commissioner, Inter-American Commission on Human Rights. Interview, London, 18 March 2000.
Ventura Robles, Manuel E., Secretary, Inter-American Court of Human Rights. E-mail, 5 Sept 2000.
American Convention on Human Rights ('Pact of San Jose, Costa Rica') (1969)133
Article 1 - Obligation to respect rights
The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
For the purposes of this Convention, ‘person’ means every human being.
Article 4 - Right to life
Every person has the right to have his life respected. This right shall be protected by law, and, in general from the moment of conception. No one shall be arbitrarily deprived of his life.
In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgement rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply.
The death penalty shall not be reestablished in states that have abolished it.
In no case shall capital punishment be inflicted for political offenses or related common crimes.
Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.
Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.
Article 5 - Right to humane treatment
Every person has the right to have his physical, mental, and moral integrity respected.
No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
Article 7 - Right to personal liberty
Every person has the right to personal liberty and security.
No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.
No one shall be subject to arbitrary arrest or imprisonment.
Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.
Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.
Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.
No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
Article 19 - Rights of the child
Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society and the state.
Article 25 - Right to judicial protection
Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.
The States Parties undertake:
to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;
to develop the possibilities of judicial remedy; and
to ensure that the competent authorities shall enforce such remedies when granted.
Inter-American Convention to Prevent and Punish Torture (1985)134
The States Parties undertake to prevent and punish torture in accordance with the terms of this Convention.
In accordance with the terms of Article 1, the States Parties shall take effective measures to prevent and punish torture within their jurisdictions.
The States Parties shall ensure that all acts of torture and attempts to commit torture are offenses under their criminal law and shall make such acts punishable by severe penalties that take into account their serious nature.
The States Parties shall likewise take effective measures to prevent and punish other cruel, inhuman, or degrading treatment or punishment within their jurisdiction.
The States Parties shall guarantee that any person making an accusation of having been subjected to torture within their jurisdiction shall have the right to an impartial examination of his case.
Likewise, if there is an accusation or well-grounded reason to believe that an act of torture has been committed within their jurisdiction, the State Parties shall guarantee that their respective authorities will proceed properly and immediately to conduct an investigation into the case and to initiate, whenever appropriate, the corresponding criminal process.
After all the domestic legal procedures of the respective State and the corresponding appeals have been exhausted, the case may be submitted to the international fora whose competence has been recognized by that State.
Key paragraphs of the Judgement
Paragraph 144 The right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights. If it is not respected, all rights lack meaning. Owing to the fundamental nature of the right to life, restrictive approaches to it are inadmissible. In essence, the fundamental right to life includes, not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence. States have the obligation to guarantee the creation of the conditions required in order that violations of this basic right do not occur and, in particular, the duty to prevent its agents from violating it.
In the light of Article 19 of the American Convention, the Court wishes to record the particular gravity of the fact that a State Party to this Convention can be charged with having applied or tolerated a systematic practice of violence against at-risk children in its territory. When States violate the rights of at-risk children, such as ‘street children’, in this way, it makes them victims of a double aggression. First, such States do not prevent them from living in misery, thus depriving them of the minimum conditions for a dignified life and preventing them from the ‘full and harmonious development of their personality’ [CRC Preamble, para. 6], even though every child has the right to harbor a project of life that should be tended and encouraged by the public authorities so that it may develop this project for its personal benefit and that of the society to which it belongs. Second, they violate their physical, mental and moral integrity and even their lives.
Inter-American Court of Human Rights
Villagrán Morales et al v. State of Guatemala 19th November 1999 Joint Opinion of the Judges A. A. Cançado Trindade and A. Arbeu Burelli
Destiny would have it that the last judgement of the Inter-American Court of Human Rights this year, and on the eve of the year 2000, should be passed on a situation which affects a particularly vulnerable section of the population of Latin America: the sufferings of street children. Paragraph 144 of this Judgement, in our opinion, faithfully reflects the evolution of the concept of the right to life within the framework of International Law of Human Rights in general, and within the American Convention on Human Rights (Article 4) in particular. It stresses the fundamental nature of the right to life, which apart from being non-derogable, requires positive measures of protection on the part of the State (Article 1 (1) of the American Convention).
The right to life implies not only the negative obligation of not arbitrarily depriving anyone of life, but also the positive obligations of taking necessary measures to ensure that this basic right is not violated. This interpretation of the right to life today finds backing both in international jurisprudence as in theory135, in order to ensure that it encompasses [in practice] positive measures of protection on the part of the State. There can be no doubt that the fundamental right to life belongs to the category of jus cogens.136
The right to life cannot continue to be perceived restrictively, as it has been in the past, to refer only to the prohibition of depriving another of physical life. We believe that there are several ways of depriving a person of life arbitrarily: when a person’s life is expropriated directly by the act of homicide, but also when the circumstances which conduce to [original emphasis] death are not prevented - as in the present case.In the present case, Villagrán Morales et al v. Guatemala pertaining to the death of children by police agents of the State, there is the additional aggravating circumstance that the lives of those children had already lost meaning: that is, the children who were victims already were deprived of the possibility of creating and developing the project of their life and of finding a meaning for their own existence.
The duty of the State to take positive measures is accentuated [original emphasis]precisely in relation to the protection of the life of people who are defenceless and vulnerable, and who are at risk, as are street children. The arbitrary privation of life is not limited, then, to the illegal act of homicide: it extends to the deprivation of the right to live with dignity. This conception of the ‘right to life’ extends not only to civil and political rights but also to economic, social and cultural rights, illustrating the interrelationship and indivisibility of all human rights.
The Inter-American Court has indicated in the present Judgement (paragraph 193) and in its 16th Advisory Opinion on the Right to Information on Consular Assistance in the framework of the Guarantees of Due Legal Process (1999)137 that the interpretation of an international instrument of protection must ‘accompany the evolution of time and current conditions of life’ and that this understanding that interpretation of law is evolutionary, in harmony with the general rules of interpretation of treaties, has contributed decisively to the advances of international human rights law.
Our conception of the right to life under the American Convention (Article 4, in conjunction with Article 1 (1)) is manifested in this evolutionary interpretation of international norms of protection of the rights of the human being. The last years have seen the deterioration of the conditions of life of broad sectors of the population of the States Parties to the American Convention, and an interpretation of the right to life cannot treat this reality as an abstraction, above all when it refers to the condition of children at risk in the streets of our Latin American countries.
The need to protect the most vulnerable people - as in the case of street children - definitely requires an interpretation of the right to life which encompasses the minimum conditions for life with dignity [una vida digna].This is the reason for which we stress the inexorable link in the present case between Articles 4 (the right to life ) and 19 (rights of the child) of the American Convention, so well articulated by the Court in paragraphs 144 and 191 of the present Judgement.
We believe that the project of life is consubstantial with the right to existence, and that its realisation requires the conditions which make possible a life with dignity and enable the human person to have security and humane treatment. In our unanimous decision on the case Loayza Tamayo v. Peru (Reparations, 1998), we maintained that damage to the project of life must be integrated within the conceptual universeof reparations under Article 63 (1) of the American Convention.
We expressed that:
The project of life is indissolubly bound to liberty, as is the right of each person to elect their own destiny. (....) The project of life encompasses the ideal of the American Declaration of the Rights and Duties of Man (1948) of the elevation of the spirit as the supreme and maximum objective of human existence.138 A person who in their infancy lives, as so many do in Latin America, in the humiliation of destitution, without having the minimum conditions in which to develop their own project of life, experiences a state analogous to a death of the spirit. The physical death which follows in these circumstances is the culmination of the total destruction of the human person. These violations do not only victimise the persons who suffer them directly in their body and spirit: they are projected painfully onto those who love them, and in particular their mothers, since these usually also find themselves in the same condition of abandonment. Added to the suffering which follows the violent loss of their children is the indifference with which the mortal remains of these children are treated.
In circumstances such as those of the present case, as the Court has recognised (para. 174 - 177), it is impossible not to encompass in the wider concept of victims, the mothers of the murdered children139. The vision which we maintain corresponds to the deeply rooted beliefs held by the peoples of Latin America: the idea that the death of the spirit of a human being is consummated only when that person is forgotten. 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.
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.
Antonio Augusto Cancado Trinidade, Judge
Alirio Abreu Burelli, Judge
Manuel E. Ventura Robles, Secretary
1Use of the term ‘street children’ and definitions thereof are contested within NGO circles. For the purposes of this dissertation, the term ‘street children’ is used to refer to both ‘street living’ (homeless) street children (also known as children ‘of’ the streets who maintain little or no contact with their families) and ‘street working’ children (children ‘on’ the street who maintain regular contact with their families). However, the unique situation of each individual case is acknowledged as often defying any such generalisations. A popular accepted definition is that formulated by the Inter-NGO Programme for Street Children and Street Youth: “Street children are those for whom the street...more than their family has become their real home, a situation in which there is no protection, supervision or direction from responsible adults.” (Save the Children, Street and Working Children: A Guide to Planning Development: Manual 4 (1994) at 15).
2Testimony of Rosa Angélica Vega, street child at the time the events occurred; in Villagrán Morales et al v. Guatemala, Int. Am. Ct. H. R. Judgement of 19 November 1999 [hereinafter Judgement], para 65(d). All quotations in this study are taken from the English translation available at http://www.casa-alianza.org
3Expert witness evidence of Roberto Carlos Bux, Deputy Director of the Bay County Forensic Center, San Antonio, Texas; Judgement, para 66(a).
4He had just been threatened using the words “you are going to turn up dead like your friends, the others” by Rosa Trinidad Morales Pérez, a kiosk woman known for both her hatred and mistreatment of street children (throwing hot coffee at them) and for her friendship with the police in question. She was implicated in both sets of murders. See Testimony of Rosa Angélica Vega, Judgement, para. 65(d); Testimony of Julia Griselda Ramírez López, who worked in a kiosk on 18th Street, Judgement, para. 65(e); and the police report sent to the Second Criminal Trial Court (Guatemala City) (case No. 1, 712/90) on 25 March 1991, Judgement, paras. 98-99.
5Casa Alianza is the Latin American branch of New York-based NGO Covenant House, providing educative, rehabilitative programmes and legal aid to street children in Guatemala, Honduras, Mexico and Nicaragua. Casa Alianza began working in Guatemala in 1981. At the time of the events, according to Amnesty International, it had approximately 570 children in programmes in Guatemala and had suits pending against 25 policemen for involvement in 13 incidents of alleged abuses against street children. (Amnesty International, Guatemala: Extrajudicial Executions and Human Rights Violations Against Street Children, AMR 34/37/90, (July 1990) [hereinafter Amnesty Report] at 3).
6Rosa Caal Sandoval, mother of the victim Julio (who was, at one stage, the private prosecutor of the case in Guatemala), apparently received threats and later died in a traffic accident. Gustavo Adolfo Cóncaba Cisneros, alias ‘Toby’, a street child who had been an eye witness and who had identified one of the policemen involved also died, apparently stabbed by another street child. No direct connection has been proved between the threats and the subsequent deaths, however.
7Testimony of Bruce Harris, Casa Alianza Regional Director for Latin America, Judgement, para. 65(c).
8American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted inBlackstone’s International Human Rights Documents, 1st Ed., P.R.Ghandi, 1995, at 147. Guatemala ratified the American Convention on Human Rights (hereinafter Convention or ACHR) on 25 May 1978, and accepted the contentious jurisdiction of the Court in accordance with Article 62 therein on 9 March 1987.See Appendix A for full text of articles relevant to this case.
9 Inter-American Convention to Prevent and Punish Torture, opened for signature December 9, 1985, entered into force 28 February 1987, OAS Treaty Series, No. 67, reprinted inBlackstone’s International Human Rights Documents, 1st Ed., P.R.Ghandi, 1995, at 171 [hereinafter IACPPT or Torture Convention]. The IACPPT was ratified by the State of Guatemala on 29 January 1987. See Appendix A for full text of the articles relevant to this case.
10Jan McGirk, Guatemalan leader admits civil war atrocities, Independent, 11 August 2000, at 12.
11Amnesty Report, supra note 5, at 1.
12Amnesty International, Government Sponsored Killings: Strategies For Combating Extrajudicial Executions In The World Today, AI Index: ACT 30/04/90 (10 November 1990).
13 Established by the Accord of Oslo, June 1994. The CEH received information on the human rights violations committed during the 36 years of Guatemalan civil war and published its final report in 1998.
14 Jan McGirk, supra note 10.
15Amnesty Report, supra note 5, at 1. It is important to note that any quantitative statistics on street children quoted without reference to definition, or unqualified by qualitative criteria, are to be approached with great caution. As a group of people so uniquely mobile, unsupervised by adults and beyond all regular institutional census categories (i.e. school, family etc), street children defy head counts. Thus the number of street children worldwide (street living, street working or temporary) is unknown.
16 Inhaling the fumes of shoe glue or paint thinner eases hunger pangs, pain and desolation. Solvent abuse amongst street children is strongly related to a sense of identity and belonging in the context of street gang culture. Long term effects of solvent fume inhalation include mental impairment and destruction of organ tissues.