By Claudio Nash (Ph.D.); Professor, Universidad de Chile; Consultant, Due Process of Law Foundation
The Inter-American Commission on Human Rights (IACHR) and the Due Process of Law Foundation (DPLF) held an international meeting on July 17 and 18, in Washington, DC, on “Corruption, Organized Crime and Human Rights: Advances and Challenges for the Inter-American Human Rights System”. Participants came from different areas, both geographically and professionally, including human rights organizations, international agencies, NGOs and academics.
The IACHR’s particular objective was to receive inputs for the drafting of a new resolution on the issue of corruption, organized crime and human rights, which will follow the resolutions issued in 2017 and 2018, and to provide continuity to the IACHR’s Thematic Report “Corruption and Human Rights” (hereinafter “Thematic Report”) of December 2019.
The meeting began with a talk by General Oscar Naranjo Trujillo, former Vice President of Colombia, who focused on the current regional context and, particularly, on the prominence of organized crime in the region and the punitive responses that have been adopted in various countries. New forms of organized crime, such as Tren de Aragua, are complex criminal organizations with novel characteristics, that are strengthened by the use of traditional corruption mechanisms and the capture of public spaces and authorities (police, judiciary, etc.).
The first roundtable focused on the theme of “Corruption and human rights: convergences, recent advances and new approaches”. A central issue was the differences in the way the various human rights systems have worked on the issue of corruption and human rights in recent years. The IACHR reached a fundamental milestone with the publication of its 2019 Thematic Report, but in recent years it has not kept up this momentum, despite some occasional references to corruption in thematic and country reports. By contrast, in the UN system there has been a coordinated effort from the Office of the High Commissioner to develop a holistic strategy to address corruption, focused on access to justice and reparation for victims. Finally, in the European human rights system there are advances in the area of the climate crisis that can open the door to the discussion on corruption, by analogy to cases with indirect and collective victims.
The debate that followed the general presentations made it possible to clarify that the link between corruption and human rights has been consolidated, and today there seems to be no doubt about the process of convergence of the anti-corruption agenda and the agenda for the protection of human rights. There is also agreement on the impact of corruption, particularly grand corruption, on democracy and the rule of law. On the other hand, it is clear that there are new challenges in this area, marked by the growing authoritarianism in the region and the punitive responses to the problems caused by social inequality, the security crisis and the growing power of organized crime. Finally, although some cases on human rights violations in the context of corruption have been addressed, it was also noted that the IACHR has yet to hear a case that deals directly with corruption as a basis for the international responsibility of the State for human rights violations.
Participants noted that grand corruption and organized crime must be addressed comprehensively, from a human rights perspective, as two criminal designs that are distinct but related, which interact with and strengthen each other. There was consensus that the element that most characterizes organized crime is not violence (its most visible expression), but rather the multiplicity of interests or businesses that are managed through complex forms of organization, with territorial control and strong international presence. It was noted that international efforts must be deployed to tackle organized crime and to control the corruption that serves as a tool to ensure impunity.
The third roundtable was devoted to the analysis of the “Negative impact of corruption on ESC rights in international mechanisms and courts”, with particular emphasis on the strategic aspects that could be used by the IACHR’s Economic, Social, Cultural and Environmental Rights Rapporteurship to prioritize this issue in its international monitoring work. The conversation emphasized the problems that exist in litigating corruption cases in the criminal justice system, highlighting the causal relationship (corruption as the basis of the offense) and the link between the damage caused by corruption and specific victims, which must allow for comprehensive reparation through participatory mechanisms.
The discussion focused on the problems of access to justice in national litigation and the need to make progress in clarifying who can be considered “victims” in cases of grand corruption. In this regard, there are two causalities that must be taken into account when litigating cases of corruption related to ESCR, namely 1) the causal relationship between the act of corruption and the State’s failure to comply with its international obligations, and 2) the relationship between the damage caused by corruption in ESCR matters and the specific victims. It was suggested to use the mechanisms of precautionary measures as a form of rapid action in cases of grand corruption and to consider submitting a request for an Advisory Opinion to the Inter-American Court of Human Rights on the determination and rights of victims in matters of corruption.
The two days of work culminated with a meeting with the plenary of the IACHR and the Secretariat, and it was interesting to hear the Commissioners express their concerns and interests on the subject; thus, some apprehensions were raised about the repressive and politicized use of mechanisms that some governments have utilized with the excuse of the fight against corruption and organized crime. It was also perceived that there is a genuine interest on the part of the commissioners to integrate this approach into the work of the IACHR, since the main recommendation of the meeting focused on the need to advance standards in the framework of concrete cases, through the system of petitions and cases, in order to help the Inter-American system promote its jurisprudential development. In the first quarter of 2025 a dialogue will be opened at the IACHR on the prioritization of individual cases, which offers an important opportunity to move forward on those cases related to corruption.
It seems pertinent to conclude with some considerations about the meeting and the challenges that the issues of corruption and organized crime continue to present to the IACHR. A first aspect that should be highlighted is the consolidation of the process of convergence between the agenda for the protection of human rights and the fight against corruption. Second, the Thematic Report on “Corruption and Human Rights” (2019) continues to be an instrument that responds to the main issues arising from this convergence between the two agendas. Thus, the conclusions and recommendations formulated should be a general guide for States, civil society and the Inter-American Commission itself to advance and deepen the fight against corruption and effectively built on the human rights approach that gives it legitimacy.
Third, it is evident that today there is an ever more complex context in Latin America: today there is a growing authoritarianism that deepened in several countries during the pandemic. In addition, there is an escalation of corruption and organized crime, particularly in the form of transnational crime, which is advancing at a much faster rate than the States have been able to deal with it. Dismantling these networks requires an enormous international and national effort to follow the flow of money and control the penitentiary systems.
Fourth, the effects of organized crime and macro-criminality and the impact of these criminal phenomena on civilians, particularly on the most vulnerable groups, have led many States to adopt punitive policies (trigger-happy laws, increased sentences, limitation of procedural rights, excessive use of pretrial detention, among others), in some cases taking political advantage of the context of organized crime, which are in clear tension with the protection of human rights. A clear conclusion of this meeting is that the agenda of the fight against organized crime and the protection of human rights are not contradictory; on the contrary, they are perfectly complementary and necessary. A state system that does not respect human rights, that generates more violence in the fight against organized crime and that is not capable of protecting the population and repairing the consequences of criminal acts, loses legitimacy and this is an incentive for those who seek effective “criminal governance”.
Fifth, the IACHR faces the challenge of once again promoting the corruption and human rights agenda. Thus, a deeper institutional effort is needed so that this process of convergence becomes a reality in the daily practice of the Commission. It is no coincidence, then, that one of the main conclusions of the various working groups was that the IACHR should re-evaluate the creation of a rapporteurship on corruption and, if this is not possible, at least create a Working Unit on this matter and, finally, have a focal point that would allow for a coherent agenda on corruption and human rights in the work of the Commission. Undoubtedly, it is not enough to simply mechanically incorporate this issue in the reports, in the supervision of countries, among other mechanisms for the protection of human rights, but it is necessary to have a strategic agenda in this area that allows for progress after the Thematic Report of 2019 and not just repeat what has obviously already been consolidated within the system.
Sixth, the new resolution to be issued by the IACHR in 2024/2025 is an opportunity to reinforce past resolutions and the conclusions and recommendations of the Thematic Report of 2019; to make progress on the new issues that have emerged on the regional agenda (organized crime, macro criminality, access to justice and comprehensive reparation for victims of grand corruption, risks of politicization, among others) and, above all, to create an institutional mechanism to take charge of the issue within the Commission itself. Finally, it is hoped that these conclusions and lessons learned from the discussion could be useful for other regions of the world that are also grappling with the human rights challenges posed by corruption and organized crime.