IACHR

Press Release

IACHR Wraps Up its 160th Session

December 19, 2016

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) held its 160^th special session on December 9-10, 2016, at its headquarters. The session included six public hearings on issues involving Canada and the United States, and one day of internal meetings. The Commission also presented its thematic report on human mobility and Inter-American standards.

The Commission thanks the civil society organizations and representatives of the States of Canada and the United States for participating in the hearings. The IACHR also appreciates the special funding from the United States that made it possible to organize this special session at the Commission’s headquarters.

In commemoration of Human Rights Day, the Commission presented its report “Human Rights of Migrants, Refugees, Stateless Persons, Victims of Human Trafficking and Internally Displaced Persons: Norms and Standards of the Inter-American Human Rights System.” The Commission underscored the importance of protecting and promoting human rights for the peoples of the Americas.

“There’s no such thing as an ‘illegal’ person. The use of such terms reinforces the criminalization of migrants and the false stereotype that migrants are criminals for the simple fact of being in an irregular situation,” Commissioner Enrique Gil Botero said. “A person’s irregular entry or stay in a country is not a criminal offense but an administrative misdemeanor. ‘Legal’ or ‘illegal’ are not qualities that can be ascribed to human beings.” Those who participated in the event included the Secretary General of the Organization of American States (OAS), Luis Almagro; Michel Pinard, Permanent Observer of France to the OAS; James Cavallaro, President of the IACHR; Enrique Gil Botero, Rapporteur on the Rights of Migrants; Paulo Abrão, IACHR Executive Secretary; and numerous representatives of Permanent Missions to the OAS, along with representatives of civil society and IACHR staff.

The Commission held a public hearing on “Case 10.573 - Salas and others”, in which petitioner Gilma Camargo and representatives of the United States participated. The petitioner indicated that the State is responsable for the military operation carried on in Panama City, Panama, on December 20, 1949. The petitioner alleged that the US military operation caused the deaths of hundreds of Panamanian civilians. She also said that hundreds of people were injured and thousands of people lost their homes. Shee added that some people are missing to date. The petitioner indicated that to date the victims have not been duly compensated. Yolanda Cortéz offered her testimony about the facts of the case. The State alleged that it is not internationally responsible. The United States alleged that the military operation observed the general principles of International Law. In addition, the State requested that the IACHR archives the case. This is due to the passage of time since the submission of the petition, and due to the newly conformation of a truth commission in Panama called "The December 20 Commission". The State alleged that this commission, which has received the support of the United States, will be responsible for identifying the victims of the events, as well as the corresponding responsibilities.

In the hearing “Human Rights Situation of Indigenous Persons in the Context of Projects and Extractive Industries in the United States”, the Cheyenne, Yankton and Standing Rock Sioux tribes came to inform the Commission about the United States’ government’s failure to fulfil their obligations regarding indigenous people’s rights in the context of extractive projects. The representatives insisted on the excessive use of force that was deployed against peaceful protesters at Standing Rock, denouncing the use of water cannons, grenades, attack dogs, rubber bullets containing shrapnel, and highlighting three particular incidents that had terrible consequences on the physical integrity of three women. They also highlighted the failure of the State to consult tribal governments during the licensing process and prior to rerouting the Dakota Access Pipeline to lands adjacent to their reservations, on sites of religious significance to them, and beneath water sources such as the Missisipi river and Lake Oare, thereby violating national statutes and applicable international standards. The representatives also indicated to the Commission that the State did not meet the environmental review requirements for projects that affect indigenous natural resources and had not undertaken a full environmental impact statement. The State, for its part, insisted on the fact that the Army Corps of Engineers had finally denied the access to the easement under the river, to allow for additional environmental studies and further consultation with indigenous people. Members of the State panel, from the Army Corps of Engineers, the Advisory Council on Historic Preservation, and the Justice Department, all acknowledged the need to improve consultation with tribal governments, to make it meaningful and timely, as well as recognized the need for a full environmental impact statement.

In the hearing “Human Rights Situation of Asylum Seekers in the United States”, the organizations that requested the hearing noted that in certain jurisdictions in the United States, immigration judges and prosecutors use open and notorious sub-regulatory rules that have no normative legal legitimacy to create asylum free zones, spaces where asylum seekers are systematically denied protection, such as the Atlanta and Charlotte immigration courts. The organizations also stated that while the appeal process for asylum cases is designed to fix errors in case-by-case adjudication, it does nothing to address flaws in the design of the system of adjudication. Indeed, the appeal process has not corrected the abnormality in adjudications as the trend line has worsened over time in these asylum free zones. The organizations stressed that the existence of jurisdictions where asylum seekers have no hope of international protection violates the American Declaration on the Rights and Duties of Man and requires the U.S. government to design corrective actions to come into compliance with its human rights obligations. The State recognized that the Executive Office for Immigration Review (EOIR), an office of the U.S. Department of Justice, has taken several steps to address these important issues. In November 2008, EOIR took the following 3 steps: 1. identified the “outlier” immigration judges in terms of their asylum grant rates; 2. examined their professional conduct and legal performance and; 3. Conducted training with immigration judges. The State also pointed out that in November 2016, GAO issued an updated study on the variation of the outcomes of completed asylum applications between 1995 and 2014 and across immigration courts and judges. The Government Accountability Office (GAO) found that disparities in asylum decision making still persisted among immigration courts, including low rates in certain courts, such as Atlanta. The GAO established that there were variables that impacted these rates, such as whether the applicant was represented by counsel, had dependents, and the number of years the immigration judges were on the bench. The IACHR called attention to its concern about the disparities in asylum decisions of the immigration courts in Atlanta and Charlotte, stating if this is personal discriminatory consideration by the judges. The Commission also stated that bias is not an unusual occurrence in courts. The IACHR also stated that these disparities in asylum grant rates could be based in racial, national, area community, religious and gender discrimination.

In the hearing “Human Rights Situation of Indigenous Children in Canada" the organization that requested the hearing provided information on the discrimination faced by aboriginal children in access to basic services as well as the challenges of the current child welfare and protection policies in providing adequate care for aboriginal children. According to this organization, the State of Canada has historically and consistently failed to provide access to quality, tailored and equal public services for aboriginal children compared to services provided to non-aboriginal children. This situation would mean that First Nations children are 12 times more likely to be placed in foster care than non-aboriginal children, which in practice means perpetuating the assimilation policy that the State had operated in the past. About 163,000 indigenous children living in reserves would be suffering from this discrimination in access to basic services and family welfare. The Canadian Court of Human Rights in a 2016 ruling found that Canada discriminated against the services it provided to aboriginal children and that this resulted in the separation of many children from their families. A chronic inequitable financing of child welfare services in indigenous reserves would contribute to this situation. The State declared Canada's commitment to First Nations while recognizing the challenges in the field of protection of indigenous children. In this regard, State representatives presented a number of measures being taken to comply with the decision of the Canadian Human Rights Court, although they recognized that medium- and long-term measures to overcome this discrimination are still pending. These measures will be consulted with the First Nations and will require sufficient funding to overcome the current situation. The State made itself available to the IACHR to continue to provide information on this process.

In the hearing “Right to Freedom of Expression and Antiterrorist Legislation in Canada”, the delegation of the Canadian Journalists for Free Expression (CJFE) expressed concerns regarding the implementation of the Antiterrorism Act, 2015 (also known as Bill C-51), which grants broads powers to the State in order to monitor communications, share information and place people on a "no‐fly list", among others. The delegation of CJFE highlighted that Part 3 of the Anti‐terrorism Act amends the Criminal Code to penalize those who publish statements that promote the commission of terrorism offenses in general, without providing a definition of this conduct. According to the applicant, this disposition is the most troubling component of the Anti‐terrorism Act for the right to freedom of expression, as it could criminalize protected speech and captures an overly broad range of communications, including words spoken, written, and private, among others. On the other hand, the delegation of the State of Canada reiterated Canada’s commitment to the protection of human rights and stated that the Anti-Terrorism Act contemplates check and balances mechanisms that meet national legislation and international standards. Commissioner Cavallaro asked the State on the application of the international standard mens rea to the Anti-Terrorism Act, expressed his concern about the difficulties to delist people from the "no‐fly list", and stressed that it is problematic that the State could share information without proper safeguards. Furthermore, the Special Rapporteur on Freedom of Expression highlighted the increasing amount of attacks and harassment cases against journalist, due to the enactment laws that restrict freedom of expression; and offered the technical assistance of the Office of the Special Rapporteur to the State of Canada to protect the right to freedom of expression in the fight against terrorism. The Special Rapporteur as well expressed concern about the vague and ambiguous definition of the criminal figure that criminality "defense and promotion of terrorism". The Special Rapporteur for Freedom of Expression asked on the impact of the powers of communication surveillance upon the confidentiality of journalistic sources and requested further information regarding the amount of people included in the "no‐fly list" as well as the reasons for their inclusion. CJFE delegation stressed its concern regrinding the possible criminalization of journalists for reporting statements made by accused terrorists and broad construction of the Anti-Terrorism Act to allow general communication surveillance measures in secret. The delegation of the State of Canada acknowledged the importance of the conversation with organizations of the civil society and informed that will provide further information in response to the questions of Commissioner Cavallaro and the Special Rapporteur for Freedom of Expression.

In the hearing “Situation of Disappearance and Murders of Indigenous Women and Girls in Canada”, the Native Women’s Association of Canada and the Feminist Alliance for International Action informed the IACHR on the shortcomings in the terms of reference for the national inquiry on Murdered and Missing Aboriginal Women. The requesting organizations underscored that said terms of reference do not integrate a human rights approach and do not incorporate the recommendations of the IACHR and the United Nations Committee for the Elimination of Discrimination against Women (the “CEDAW”). They argued that they do not provide for adequate witness support. They also argued that the terms of reference made no mention of any formal or informal participation of indigenous women’s organizations in the inquiry, choosing men-led organizations rather than ones that had lengthy experience on women’s issues in general, and extensive knowledge of the problem of murdered and missing indigenous women in particular. In addition, the terms of reference fail to examine policing practices or to provide for an independent review mechanism for cases of alleged inadequacy and partiality in police investigations, which is of concern given that police officers are at times the perpetrators of violence against indigenous women, as was once again revealed in the recent scandal in Val d’Or. The State reiterated its commitment to improve its relationship with indigenous people in Canada, and its recognition of the importance of properly addressing the issue. It also highlighted the various efforts it was making to set in place a National inquiry that was culturally appropriate and had the adequate human and financial resources to provide meaningful solutions to this national tragedy.

Those who participated in the 160th regular session included the President of the IACHR, James L. Cavallaro; the First Vice-President, José Eguiguren Praeli; the Second Vice-President, Margarette May Macaulay; Commissioners José de Jesús Orozco Henríquez, Paulo Vannuchi, Enrique Gil Botero, and Esmeralda Arosemena de Troitiño; the IACHR Executive Secretary, Paulo Abrão; the Assistant Executive Secretary, Elizabeth Abi-Mershed; the Special Rapporteur for Freedom of Expression, Edison Lanza; and other members of the IACHR Executive Secretariat.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 192/16