In 2012 Ecuador and Argentina—along with Bolivia and Venezuela—led an effort to gut the prestigious Inter-American Commission on Human Rights (IACHR). Their more radical proposals included eliminating outside funding of the IACHR on which it depends, reducing the role of its special rapporteur for freedom of expression and limiting the IACHR’s country reports. Those “reforms” curtailing some of the most basic functions and sources of independence of the IACHR were fortunately rejected at a March 2013 ad hoc meeting of the Organization of American States (OAS) General Assembly.
Three years later, at the 45th General Assembly meeting in Washington, DC this June, representatives from both Ecuador and Argentina were elected to the Inter-American Court of Human Rights (Court)—the court which receives appeals from the IACHR and is the second leg of the inter-American human rights system. Did these governments change their position on the inter-American system of human rights?
The governments may not have; but we can only hope that their candidates, once seated in San José where the Court is based, will act more as jurists than as political lackeys.
Both of the new Court justices, Patricio Pazmiño Freire of Ecuador and Eugenio Raúl Zaffaroni of Argentina, who will take their seats in January 1, 2016, have been key allies of their respective presidents. In both countries, these governments have systematically weakened their domestic judicial systems and, in the case of Pazmiño, undermined the freedom of expression.
President Rafael Correa of Ecuador nominated Pazmiño to the Constitutional Court after the pro-Correa National Assembly had dismissed the entire membership of the previous court. In a case involving an earlier—and similar—clearing out of the Constitutional Court, in August 2013 the Inter-American Court of Human Rights (where he’s now going to sit) handed down a ruling that the Ecuadoran state had violated due process norms with the arbitrary termination and impeachment proceedings against the members of the previous Constitutional Court. The finding was ignored.
That same year Pazmiño dutifully ratified President Correa’s Organic Communications law. The law permits the government to sue critics, as it had done in the case against columnist Emilio Palacio and his paper, El Universo in 2011—even before the 2013 law that now permitted it. The IACHR’s criticism of the law and the suit was what sparked Correa and his friends to vitiate the IACHR. Not coincidentally, shortly before the 2015 election of Pazmiño, Correa delivered a nice, fat check of $1 million to support the Court, raising the question: “Even if a Court’s justice—Pazmiño—can’t be bought, can the Court?”
More troubling than the election of Pazmiño and the blood money, has been Correa’s reaction to criticism of his appointee. The week Pazmiño was elected, Correa took to the airwaves to denounce and attack those who had criticized the nomination of his candidate, including photos of the critics. The message was clear: not only was the former Constitutional Court judge Correa’s man in San José, the President’s usual tactics of smearing his critics would apply not just to domestic policies, but also would be his tactics regarding extra-national human rights institutions. Hardly encouraging.
The case of Justice Zaffaroni is more complicated. Although the well-respected jurist and law professor has been closely tied to the government of Cristina Fernández de Kirchner, Zaffaroni has also been an independent voice on issues of disappearances and human rights abuses under Argentina’s military government. But it was clear in the nomination and the announcement of his selection that Zaffaroni was President Fernández de Kirchner’s man.
So, despite receiving the backing of a government that has packed the judicial system with allies and temporary appointees and gutted Argentina’s Consejo de la Magistratura intended to ensure the integrity, objectivity and professionalism of judicial appointees, will Zaffaroni answer to his higher moral calling after January 1, 2016? We can only hope.
Because, beyond these new Court judges, the inter-American system has been under consistent attacks in the past decade by governments of both the right and the left. Former Colombian President Álvaro Uribe railed against the system when it criticized his government’s policies and attempts to accumulate power. In the same vein—though from the other side—former president of Venezuela Hugo Chávez pulled out to the inter-American system when the Court handed down a decision that his government allow Leopoldo Lopez—former mayor of Chacao and now political prisoner—to compete in elections.
In another example of how resistance to judicial independence and international law can make odd bed-fellows, the government of the Dominican Republic also recently suspended its membership in the inter-American system. The government had been stung by the inter-American system’s resounding rejection of the government’s—judicial and executive—decision and policy to deny citizenship to and deport undocumented Haitian immigrants and their children. The result was an embarrassing (and curious) decision by the Dominican government that it had never been a party to the inter-American system.
According to the statutes governing the inter-American system of human rights,“[T]he position of judge of the Court or member of the Commission is incompatible with any other activity that might affect the independence or impartiality of such judge or member.”
Will Pazmiño and Zaffaroni uphold those obligations? Given the widening criticism and attacks it is under, there is a real risk that a system that has protected human rights and freedom of expression and expanded hemispheric norms for citizens could fall victim to a fraying consensus among thin-skinned governments with little regard for judicial independence—in their own countries and internationally.
