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International Legal Updates Sebastian Amar American University Washington College of Law Human Rights Brief Volume 13 | Issue 3 Article 14 2006 International Legal Updates Sebastian Amar American University Washington College of Law Shirley Woodward American University Washington College of Law Sabrina Balgamwalla American University Washington College of Law Amy Tai American University Washington College of Law Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Human Rights Law Commons, and the International Law Commons Recommended Citation Amar, Sebastian, Shirley Woodward, Sabrina Balgamwalla, and Amy Tai. "International Legal Updates." Human Rights Brief 13, no. 3 (2006): 53-58. This Column is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Amar et al.: International Legal Updates INTERNATIONAL LEGAL UPDATES LATIN AMERICA Vilela Commission have brought these benches, as well as non-elected members issues before the Inter-American from the judiciary, the bar, and academia. BRAZILIAN JUDICIARY FAILS TO Commission on Human Rights. In April Recently, the Congress of Argentina PROVIDE JUSTICE IN CARANDIRU 2000 the Court rendered a decision requir- approved compositional changes to the PRISON MASSACRE CASE ing that Sao Paulo and Brazilian authorities Council proposed in a bill sponsored by implement reparative measures, including On February 15, 2006, Sao Paulo’s Senator Cristina Fernandez de Kirchner. The compensation to family members and the Supreme Court overturned Colonel new law reduces the Council from 20 to 13 creation of an oversight body to ensure the Ubiratan Guimarães’ conviction. This deci- members while increasing the proportional rights of detainees. To date, Brazil has imple- sion symbolizes the judiciary’s failure to representation of politicians. This is the first mented none of these measures. uphold international human rights stan- time since the Council’s inception that politi- dards and its failure to punish the perpetra- The Supreme Court overturned cians will outnumber legal experts and pro- tor of one of the most disturbing incidents Guimarães’ conviction on grounds that he was fessionals. Amnesty International noted that of human rights abuses in Latin America. acting in accordance with his duties and one concern with this new legislation is that According to Amnesty International reports, responsibilities as a Colonel in the military. the governing party will also increase its Colonel Guimarães led a contingent of This ruling accepts that Guimarães was acting weight on the new Council. Together with Brazil’s Military Police shock troops into Sao within his duties when he failed to prevent the the single member who is appointed by the Paulo’s Casa de Detenção prison use of excessive force, which implies that his executive branch, the governing party will (Carandiru) on October 2, 1992, to quell a actions provide an acceptable model for a mil- now hold seven of the 13 votes. Because the disturbance, which resulted in the deaths of itary official’s behavior rather than a glaring Council’s decisions are taken by a two-thirds 111 unarmed detainees. Other human rights disregard for the rights of detained individu- majority when the selection or dismissal of groups have claimed that the number of als. The decision by the Supreme Court and judges is debated, the governing party will be deaths is closer to 300. In 2001 Colonel the failure to hold any other officials account- in a position to veto candidates for the judi- Guimarães was sentenced to 632 years in able is a clear indication of the ongoing ciary and to block dismissals. prison for his role as commanding officer in acceptance of impunity for military officials There is also concern about the proposed the Carandiru massacre. implicated in human rights abuses, as well as change in rules governing the quorum in the the government’s unwillingness to endure the In a 1993 report, Amnesty International Council, which could allow it to function burdens and responsibilities that are a neces- cited numerous shortcomings in the mili- without any participation from it’s non- sary element of the reparations process. tary’s chain of command and its attempts to political members, i.e., judges, lawyers, and ensure that excessive use of force would not academics. This is by far the most damaging be used during the operation. These proce- COMPOSITION OF ARGENTINE COUNCIL aspect of the legislation as it pertains to the dural failures included “ignoring interna- OF THE JUDICIARY ALTERED political influences surrounding the tional codes of practice on the use of force The 1994 Constitution of Argentina Council. With this new composition, the six and firearms; allowing military police to created the Council of the Judiciary legislators and the representative of the exec- enter the prison with their identity tags (Council), which is responsible for selecting utive branch could hold sessions on their removed; and sending in police units with judges for appointment by the executive own. In a letter to Argentine President past records of multiple fatal shootings to branch. According to the Constitution, the Nestor Kirchner, Human Rights Watch quell the disturbance.” Of the 113 members Council should be composed of a balance cited recommendations of the European of the police force implicated in these mur- between legislators, judges, lawyers, and Charter on the Statute for Judges that at ders, not one is serving a prison sentence for academics. The Council was created to pro- least half of those individuals who sit on their involvement. Although homicide tect judicial independence and curtail abus- independent bodies responsible for the selec- charges have been brought against 84 offi- es that resulted from a system in which tion and dismissal of judges should be cers, none of these officers have ever been judges were often chosen for their political “judges elected by their peers following brought to trial. Further, the expiration of affiliation rather than their professional methods guaranteeing the widest representa- the statute of limitations will prevent anoth- qualifications. Supporters of the Council tion of the judiciary.” er 29 officers charged with causing physical believed that the most effective means of The Argentine government justified its injury in the massacre from ever being tried protecting the judiciary against political decision by arguing that the majority on the in Brazilian courts. interference was the creation of an inde- Council should be held by officials elected pendent council composed of legislators Americas Watch, the Center for Justice by popular vote because they are theoretical- from both government and opposition and International Law, and the Teotonio ly bound by a “citizens’ mandate.” Members Published by Digital Commons @ American University Washington College53 of Law, 2006 1 Human Rights Brief, Vol. 13, Iss. 3 [2006], Art. 14 of the international community, including limits placed on Council members, which Chad, has been accused of torture and other Human Rights Watch, see this argument as allow a maximum of two consecutive terms of atrocities committed from 1982-1990. In implicitly rejecting the standard of balance three years. Ambassador Bolton stated his con- September 2005 Belgium issued a warrant that the European Charter adopted as a cern that this would preclude the United States for his arrest and extradition from Senegal, method to ensure transparency and preserve from having a continuous presence on the where he has resided for the last 15 years. an essential check on the executive and leg- Council, which “will be to the detriment of the Rather than send Habré to Belgium, islative branches of government. Commission.” In addition, the United States Senegalese Foreign Minister Cheikh Tidiane had sought a two-thirds majority vote and a Gadio said that Habré could remain in This new legislation has been viewed by ban on the election of countries subject to UN Senegal until African heads of state at the national and international organizations as trade and economic sanctions due to human AU Summit made a decision regarding how indicating a trend toward a more authoritar- rights violations and acts of terrorism. In vot- to handle his case. The Committee was ian approach to government by Argentina’s ing against the proposed Council, Ambassador formed to aid in this decision. It is mandat- current administration. By essentially elimi- Bolton stated, “We did not have sufficient con- ed to take into account “adherence to princi- nating the role of unelected experts in the fidence in this text to be able to say that the ples of total rejection of impunity; adherence process of selecting and dismissing judges, Human Rights Council will be better than its to international fair trial standards, includ- the re-structured Council threatens the abil- predecessor.” ing the independence of the judiciary and ity of the judiciary to operate independently impartiality of proceedings; jurisdiction over and to place limits on executive and legisla- Ironically, the isolationist stance of the the alleged crimes for which … Habré tive authority. Moreover, this change dra- U.S. may have prompted Cuba to vote in should be tried; efficiency in terms of cost matically affects the judiciary’s ability to ade- favor of the new Council. Despite its initial and time of trial; accessibility to the trial by quately advocate for and protect those indi- opposition, Cuba voted in favor of the reso- alleged victims as well as witnesses; priority viduals whose political views are not repre- lution based in part on U.S. criticisms. for an African mechanism.” The Committee sented by the governing party. Cuba’s UN Ambassador Rodrigo Malmierca will submit a report for the Assembly’s con- stated that “[t]he attacks of the current U.S.
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