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@00329380 Friendly Settlement in the Inter-American System for Human Rights Protection: the Case of Mariana Selva Gmez

et al vs Mexico. Diplomats and international negotiators have always sought ways to solve conflicts in a peaceful manner. One of the most common techniques for reaching agreement is mediation -also called good offices-, through which a third party facilitates communication and compromise between the affected parties. This mechanism has been adapted and adopted in most of the contemporary systems for the protection of human rights, including through the figure known as friendly settlement. The distinguishing feature of these systems, and the procedures that they use, is that it allows for mediation between a state and an individual (or a group of individuals) whose rights have been violated. The mechanism is officially set out in the regulations of both the European and Inter-American human rights protection systems, and it is favored by commissioners because it is a faster way to achieve resolution, and also because it means the case does not get sent up to the regional courts. However, the procedure is not the most adequate mean to address gross violations of human rights, particularly those that include torture. This paper will review the friendly settlement procedure, focusing on its use and implementation by the Inter-American Commission of Human Rights, as the case used for illustration, Case 12.846 - Mariana Selva Gmez et al vs Mexico, concerns that body. It will review the strong points of the mechanism, as well as some of the criticisms leveled against it. As Case 12.846 - Mariana Selva Gmez et al vs Mexico concerns rape as a tool for torture, there will also be mention of how this figure has become recognized in international law. This is an endeavor with a wide scope of research and, though there is some literature on the friendly settlement procedure itself, there is very little on how it relates to cases of torture and other gross violations of human rights. The extent of this paper will not allow for more than a brief mention of some of the issues present when dealing with torture, for example, through a friendly settlement procedure. In early May 2006 and after some protests by members of an organization for the defense of agricultural lands in San Salvador Atenco, Estado de Mexico (a state inside Mexico, north of Mexico City), security forces from the Federal Police, state police and local police forces, arrested, tortured and imprisoned farmers who belonged to different organizations for the defense of their lands. The security forces broke into the houses where rioters and protesters had taken refuge, as well as into houses of people who had nothing to do with them. The violence that ensued saw two people dead, including a minor, over 200 detainees, at least 47 women raped and sexually abused, arbitrary detentions, and even

the expulsion of several foreigners. The women who were sexually abused were also beaten repeatedly, threatened and humiliated by the police officers who had arrested them. When they arrived to the prison, the authorities did not let them file complaints for the treatment received, and the medical doctors who examined them refused to acknowledge the rapes. Afterwards, when they took the case to the local, and later federal, authorities, they were told they were lying and again refused to investigate and prosecute. The federal Office of the Prosecutor for Crimes of Violence Against Women and Trafficking of People declared itself incompetent to investigate the case and sent it back to the state authorities (Centro PRODH). In light of this ostensible lack of political will to investigate and prosecute rape and other violations to their human rights, eleven women decided to take their complaint to the Inter-American Commission of Human Rights. The case, known as Case 12.846 - Mariana Selva Gmez et al vs Mexico, was admitted in November 2011 and the first hearing took place in March 2013. At the end of the hearing, the representative of the state of Mexico requested the support of the Commission to reach an agreement with the petitioners through the process of friendly settlement. The petitioners rejected the offer, since rape was a form of torture used against them, and the state has remained impassive. Article 1 of the UN Convention Against Torture defines torture as any act that involves severe pain or suffering intentionally inflicted on a person for, among others, punishing him or her for an act he or she is suspected of having committed, or intimidating or coercing him or her. This act must be perpetrated by or at the instigation of or with the consent or acquiescence of a public official (OHCHR 2013). The Inter-American Convention to Prevent and Punish Torture uses a similar definition, but includes actions intended as a personal punishment, as preventive measure, as a penalty, or for any other purpose (OAS 1987). The ultimate goal of torture is to strip a person of his or her dignity. More directly related to Case 12.846 - Mariana Selva Gmez et al vs Mexico, the UN General Assembly, in its Resolution 67/161 on Torture and other cruel, inhuman, and degrading treatment, includes a paragraph addressing gender-based violence (United Nations General Assembly 2013). Special Rapporteur on Torture Manfred Nowak, in his report to the Human Rights Council on 15 January 2008, also stated that rape constitutes torture when it is carried out by or at the instigation of or with the consent or acquiescence of public officials, and he included not only rape but also other forms of sexual assault, such as undressing, threats of rape, inappropriate touching, or sexual humiliations (Nowak 2008, 8-9). Furthermore, in Case 11.565 - Ana, Beatriz and Celia Gonzlez Prez vs Mexico, in which three indigenous sisters were illegally detained, beaten and raped by soldiers, the Inter-American Commission on Human Rights ruled that rape committed by public officials can be a

form of torture (IACHR 2001) . This is exactly what happened to the women who were arrested in San Salvador Atenco. The police officers undressed, touched, threatened, raped and humiliated them repeatedly, all the way from the village to the prison. The police officers were acting in the name of the state, by orders from then governor Enrique Pea Nieto, and they arrested the women in some cases without even suspicion of participation in the protests, using sexual violence to punish and humiliate them. Now the very government who allowed these violations to happen is offering the victims an agreement through friendly settlement. In Article 40 of its Rules of Procedure, approved in 2009 and modified in 2011, the InterAmerican Commission of Human Rights states that it shall place itself at the disposal of the parties concerned... with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in the American Convention of Human Rights, the American Declaration and other applicable instruments (OAS 2009). This can be done at any stage of the examination of the petition, either at the request of any of the parties or on its own initiative. Once a settlement has been reached, the Commission publishes a report that only includes the facts and the resolution, but which is included in its annual report. Although this report is not made available to the public at large, the Commission may follow up on the implementation of the agreements and if it finds that the state has not complied with them in a satisfactory way, it may send the case on to the Inter-American Court of Human Rights. If there is no agreement, the Commission may continue examining the case, issue a report on its findings, and it always has the option of recommending it to the Court. This poses a very special problem for the friendly settlement procedure, namely, that the Commission does not act only as a neutral mediator during the friendly settlement process. If it deems the state is not committed enough, it resumes its role as prosecutor. This dual position could potentially limit the state's willingness to submit itself to a friendly settlement. Indeed, the problem is compounded precisely by the limits posed by the willingness of the parties to use the mechanism: the state might refuse recourse to it if it fears the Commission will not be impartial. Another problem of this procedure lies in its private nature. It is true that the Inter-American Commission must include a report on the friendly settlements reached in its annual report, but the whole process remains confidential between the parties. Public, open procedures allow for better reconciliation in cases of grave violations to human rights, especially in those that involve a specific targeted population, in this case, women. This is particularly important, as the friendly settlement mechanism does not always prove adequate to resolve certain human rights situations, including illegal or prolonged detention without charges, illegal taking of life, torture, cruel, inhuman and

degrading treatments, and summary executions (Estepa 2011, 344; my translation). Especially in cases where human rights violations are systematic or at least beginning to become a trend, the Commission might not offer the option of friendly settlement, because the state willingness to participate in this procedure could only be a token gesture (Gonzlez 2009, 110). In Case 12.846 - Mariana Selva Gmez et al vs Mexico, [t]he horrific nature of the crimes involved raises questions about the ability of such a model to encourage respect for human rights, assign responsibility to abusers, and bring a sense of justice to the victims (Standaert 1999, 520) and violations of human rights such as torture seem more pervasive in Mexico now than 10 years ago. In this respect, the petitioners claim that the state has not shown enough political will to address their grievances; its response to the violations suffered by the women are directly related to their taking the case to the Inter-American Commission. Concerning this same point, states use friendly agreements to commit to those actions they should have taken before as part of their responsibility to protect human rights investigation, prosecution , and to provide a monetary compensation to the victims. And these agreements do not always include structural changes that would help to avoid further violations to human rights. In fact, as Basch, Filippini et al (2010) found out, upon comparing the remedies agreed upon in the framework of processes of friendly settlements with those that the Court ordered, it is observed that in the former, practically no measures of legal reform have been agreed upon. No commitments to investigate and punish requiring legal reforms are found in any of the friendly settlement solutions, and only 10 remedies demanding legal reforms as a preventive measure were identified (17). In a 2009 article, Abramovich states that the main problems... regarding noncompliance with the IACHR's recommendations and the Court's judgments, relates to criminal investigations conducted by the state, particularly when they have closed the investigation and its reopening could affect the rights of the accused (25). Although he does not single out agreements reached through the friendly settlement procedure, they can be understood to be included in his statement, particularly in light of the findings by Basch, Filippini et al. A final issue with the friendly settlement procedure is also highlighted by Basch, Filippini et al, when they state that None of the provisions of the ACHR makes reference to the consequences derived from failing to comply with the agreement or whether, under such situation, the case should be deemed as closed. In practice, if the state fails to comply with an approved friendly settlement, the case is not sent to the Inter-American Court. Therefore, it has been said that from the point of view of the petitioner, selecting the friendly settlement route may be a disadvantage in comparison with the options of the contentious route (31).

It seems then, only natural for petitioners to choose the longer legal procedure, even when there is no guarantee that the Inter-American Court will rule in their favor. Of course, the friendly settlement procedure also has its advantages. The first and most important one is that the victims of a human rights violation finally have a forum albeit a private one to address their grievances, their voice is heard and, at the same time, the state implicitly or explicitly recognizes that there has been a violation of rights and shows its political will to redress the victims. Much like a Truth and Reconciliation Committee, a friendly settlement procedure recognizes individual citizens as having equal dignity, since it provide[s] a forum in which the victims of injustice c[an] tell their stories of oppression in a way that the forensic constraints of a courtroom [do] not permit (Dyzenhaus 1999, 313). In a way, a friendly settlement becomes the middle ground between punishing the state and leaving it in complete impunity. There is certainly a need for retributive justice, in order to combat impunity and strengthen democracy, and this is one of the demands of the petitioners in Case 12.846 Mariana Selva Gmez et al vs Mexico. However, due to the unwillingness of the state to investigate and prosecute the claims of torture and rape, as well as violations to other human rights, punishment has not been achieved. The friendly settlement agreements could include measures for both retributive and restorative justice, through actions by the state in which it publicly acknowledges its responsibility. In this respect, measures tending towards restorative justice would help to restore the social relationship of equality between victim and perpetrator that has been disturbed by the perpetrator's crimes, with the ultimate goal of seeing to it that both victim and perpetrator can 'live as equal citizens of the society in question' (Dyzenhaus, 313). It cannot be ignored that remedies agreed upon in friendly settlements approved by the IACHR are those that register the greatest degree of compliance. 54% received total compliance.... In contrast, only 29% of remedies ordered by the Court and 11% of remedies recommended in the Commission's final reports were totally satisfied (Basch, Filippini et al, 20). This is most likely due to the fact that the agreements were reached through dialog, negotiation and the voluntary participation of both victims and state; therefore, the will to actually comply with the agreements is higher than those decisions reached against the will of the state. Another advantage to the mechanism is that, because of its very nature, it takes less time to reach a conclusion than if the petitioners were to wait on the Commission to investigate the case and, later, for the Court to issue a decision on it. Even then, there is no guarantee that the final decision will favor the petitioners or that it will be enough for them to consider that justice has been done, whether

by justice the victims mean a genuine acknowledgment of their suffering, monetary compensations, a sense of closure, or investigation and prosecution of the perpetrators. It seems, however, that the party that would benefit the most from a friendly settlement procedure is the state. The mechanism allows it to curtail the damage to its public image, and indeed present itself in a positive light. Furthermore, if the final agreement is generous enough, the state might be seen as being fully committed to the defense and protection of human rights in its territory (Carmona Tinoco 2005, 118). A last point in favor of friendly settlements. For the Inter-American Commission, facilitating this procedure might mean a faster way to solve all the petitions presented to it. The growing number of cases it receives every year means that it is not able to adjudicate in all of them, at the risk of losing credibility; but promoting friendly settlements is a means to reaching a conclusion in a less costly way, both in terms of time and resources (Burke and Webster 2010, 22). Despite these advantages, we have seen that the petitioners in Case 12.846 - Mariana Selva Gmez et al vs Mexico have rejected the friendly settlement proposed by the state of Mexico. Their argument is that the state has not shown enough political will to prosecute their torturers and bring justice to the women. Thus, they argue, it is likely that the agreements reached through a friendly settlement will actually consist of the obligations the state had already acquired as opposed to further obligations and compensation , and there is an underlying fear that even these agreements might no be implemented. How are they then to regain their dignity as human beings? The petitioners in Case 12.846 - Mariana Selva Gmez et al vs Mexico believe that freedom from rape, the tool of torture used against them by police officers, is not a right that can be negotiated or mediated. The procedure seems a slap in the face, after local authorities insisted that they had made up the charges against the police officers and refused to prosecute. And it is not only an individual issue; as has been seen, a friendly settlement does not allow for community healing, as the truth about what happened will not be known and there is no public acknowledgment of responsibility. In this respect, in 2012 the UN Committee Against Torture indicated that establishing the truth and providing official recognition of responsibility are important steps for restoring the lives of victims and their families. The petitioners believe that if the Commission continues to investigate the case and perhaps to recommend it to the Inter-American Court of Human Rights, truth might be established and they will be able to move on. The argument for truth and reconciliation at a community level in this case is particularly important, since the events of San Salvador Atenco had a worldwide audience. In Mexico, every one has heard of them, and a friendly settlement with the petitioners would not allow either for public

accountability by the state, or for regaining trust in the security forces at a larger scale. In fact, despite the fact that Mexico claims to be committed to solving human rights cases through friendly settlements (SRE 2011), during their study Basch, Filippini et al found this state had only reached two agreements of this kind in comparison with Ecuador, for example, which had reached 14 (23). Although compliance might be high, the low number of friendly settlements reached with the state of Mexico might show a lack of trust on the side of the victims that the agreements will be fulfilled or that that the state is engaging in good faith with the procedure. It might seem as though the friendly settlement procedure, at least in the Inter-American system for the protection of human rights, has more problems than advantages. However, due to its very nature, it is a useful mechanism to resolve cases that do not involve grave or systematic violations to human rights. The changing Latin American context, in which judicial processes have been opened against genocidal regimes, and where both the Inter-American Court and Commission of Human Rights are highly regarded, opens the door for more cases to be settled in this way. There is still a need to put in place enforcement and follow-up mechanisms, to ensure compliance, but it seems that most states are fulfilling the agreements they reach through the friendly settlement procedure. However, in situations that involve gross violations of human rights, including torture, a friendly settlement is not the best solution. This is shown in Case 12.846 - Mariana Selva Gmez et al vs Mexico since it involves arbitrary detention, torture, sexual violence, rape, and a disproportionate use of force by local and federal police forces. The petitioners argue that the state has proved unable to respond to their demands, that the measures it finally took are only related to the petition being brought to the Inter-American Commission, and that, though the state claims to have taken action, in fact the violations remain unpunished. They consider that full access to justice, to which they had a right from the moment the rights were violated, would now be impossible to reach. The petitioners doubt the state's political will to investigate the claims and prosecute the perpetrators, and therefore its commitment to fulfill any agreements reached through the friendly settlement procedure (OASVideos 2013). They are right to be skeptical: in Mexico, impunity is rampant and no matter how much lip service is paid to human rights and justice, they have become abused rhetorical concepts gradually emptied of political meaning, as noted by Aguayo Quezada, Trevio Rangel and Pallais in a 2006 article on the investigation, prosecution and publication of the truth about past violations of human rights in Mexico (65). The petitioners do not want restorative justice except as it relates to public acknowledgment of responsibility , but punishment for the state agents who beat and raped them, as well as for the authorities who dismissed their case at the local and national levels. They fear that unless the

perpetrators are publicly shamed and punished, rape and torture, along with other violations of their rights, such as the right to a fair trial, will become a trend in Mexico as, indeed, they already are. An unequivocal international condemnation of those actions would send a strong signal that human rights violations will not be allowed to continue in Mexico, and that the lives and dignity of women are valued. Dignity cannot be restored through a procedure that allows only for private, not public recognition of responsibility in gross violations of human rights, that does not allow for the truth of what happened to made widely available, and that seems to focus on monetary compensation to the victims, rather that on their healing and rehabilitation. In short, victims remain victims and they have to negotiate their rights, accepting to refrain from further action against the state even when it does not fulfill its commitments. In such cases as Case 12.846 - Mariana Selva Gmez et al vs Mexico the Inter-American system for the protection of human rights should not allow for a friendly settlement, but rather consider the Commission and the Court as the most adequate means to redress violations and restore dignity to the victims, through recognition of their pain suffering and public punishment for the state that failed to comply with its international human rights obligations. References Abramovich, V (2009) From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter-American Human Rights System. Sur. International Journal on Human Rigths. (December 2009) 6:11. pp. 7-38. Retrieved from: http://www.surjournal.org/eng/conteudos/pdf/11/01.pdf Aguayo Quezada, S, Trevio Rangel, J, & Pallais, M (2006) Neither Truth nor Justice. Mexico's De Facto Amnesty. Latin American Perspectives. 33:2 pp 56.68 Retrieved from: http://www.jstor.org/stable/27647917 Basch F, Filippini L, et al (2010) The Effectiveness of the Inter-American System of Human Rights Protection: A Quantitative Approach to its Functioning and Compliance with its Decisions. Sur. International Journal on Human Rights. (June 2010) 7:12 pp. 9-36. Retrieved from: http://www.surjournal.org/eng/conteudos/pdf/12/miolo.pdf Burke, S.B. & Webster, M (2010) Facilitating Friendly Settlements in the Inter-American Human Rights System: A Comparative Analysis with Recommendations. Retrieved from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1676603 Carmona Tinoco, J.U. (2005) La solucin amistosa de peticiones de derechos humanos en el mbito universal y regional, con especial referencia al sistema interamericano. Anuario Mexicano de Derecho Internacional. Vol. 5 pp. 83-122 Retrieved from: http://biblio.juridicas.unam.mx/estrev/pdf/derint/cont/5/art/art3.pdf

Centro PRODH -- Caso Mujeres Denunciantes por Tortura Sexual en Atenco. URL: http://www.centroprodh.org.mx/index.php? option=com_content&view=category&layout=blog&id=187&Itemid=69&lang=es Dyzenhaus, D (1999) Debating South Africa's Truth and Reconciliation Commission. The University of Toronto Law Journal. (Summer, 1999) 49:3 pp. 311-314. Retrieved from: http://www.jstor.org/stable/826001 Estepa, M.C. (2011) La solucin amistosa en el marco del Sistema Interamericano de Derechos Humanos. Revista Estudios Socio-Jurdicos. 13:2, pp. 327-352. Retrieved from: http://www.scielo.org.co/scielo.php?pid=S0124-05792011000200012&script=sci_arttext Gonzlez, F (2009) The Experience of the Inter-American Human Rights System. VUW Law Review. 40:2009. Retrieved from: http://www.austlii.edu.au/nz/journals/VUWLawRw/2009/7.pdf IACHR (2001) Case 11.565 Ana, Beatriz and Celia Gonzlez Prez vs Mexico. In Report No. 53/01. 4 April 2001. URL: http://cidh.org/annualrep/2000eng/ChapterIII/Merits/Mexico11.565.htm Markel, D (1999) The Justice of Amnesty? Towards a Theory of Retributivism in Recovering States. In The University of Toronto Law Journal. (Summer 1999), 49:3, pp 389-445. Retrieved from: http://www.jstor.org/discover/10.2307/826004? uid=3738032&uid=2&uid=4&sid=21102237576437 Nowak, M (2008) Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. URL: http://daccess-ddsny.un.org/doc/UNDOC/GEN/G08/101/61/PDF/G0810161.pdf?OpenElement OAS (1987) Inter-American Convention to Prevent and Punish Torture URL: http://www.oas.org/juridico/english/treaties/a-51.html (2009) Inter-American Commission. Rules of Procedure. URL: http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp OASVideos (2013) March 14, 2013 RD2 Audiencia CIDH Mexico, online video, accessed 20 April 2013 URL: http://www.youtube.com/watch?v=pwX3vUxPlsA OHCHR (2013) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. URL: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx SRE (2011) Sistema Interamericano de Derechos Humanos. Retrieved from: http://www.sre.gob.mx/index.php/direccion-general-de-derechos-humanos/sidh Standaert, P (1999) The Friendly Settlement of Human Rights Abuses in the Americas. Duke Journal of Comparative and International Law. 9:2. pp. 519-542. Retrieved from: http://scholarship.law.duke.edu/djcil/vol9/iss2/8/ UN Committee Against Torture (2012) Closing the Circle for Victims of Torture. Retrieved from: http://www.ohchr.org/EN/NewsEvents/Pages/Closingvictimsoftorture.aspx

United Nations General Assembly (2013) Resolution 67/161. Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. URL: http://www.un.org/ga/search/view_doc.asp? symbol=A/RES/67/161