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Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court

Published online by Cambridge University Press:  27 February 2017

James L. Cavallaro  and
Stephanie Erin Brewer
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Extract

Over the past few decades, regional human rights tribunals have grown in both number and activity. The European Court of Human Rights (European Court or ECHR) now receives tens of thousands of petitions and issues over fifteen hundred judgments on the merits each year. The Inter-American Court of Human Rights recently tripled the number of cases that it resolves annually. At the time of this writing, in mid-2008, Africa’s own regional human rights court, the African Court on Human and Peoples’ Rights, prepares to begin hearing its first contentious cases. Currently, sixty-eight states are subject to the decisions of the two established regional courts (forty-seven in Europe and twenty-one in the Americas), up from less than half that number twenty years ago. In the nascent African system, twenty-four African Union member states have ratified the Protocol establishing the African Court, with an additional twenty-five signatory states.

Type
Research Article
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American Journal of International Law , Volume 102 , Issue 4 , October 2008 , pp. 768 - 827
Copyright
Copyright © American Society of International Law 2008

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References

1 European Court of Human Rights [ECHR], Annual Report 2007, at 134, 137 [hereinafter ECHR Annual Report]. This and the other documents of the Court cited below are available at its Web site, <http://www.echr.coe.int>..>Google Scholar

2 See Rights Court ‘Yet to Start Work,’ BBC News, Sept. 24, 2008, at <http://news.bbc.co.uk/2/hi/africa/7633383.stm>>Google Scholar. Additionally, supranational bodies charged with establishing individual criminal liability have flourished over the past fifteen years. Beginning with the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda in 1994, these bodies now include the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court.

3 ECHR, Composition of the Court, at the Court’s Web site, supra note 1.

4 Inter-American Court of Human Rights, Annual Report 2007, at 5 [hereinafter 2007 IACHR Annual Report]. This report and the decisions and other documents of the Court are available at its Web site, <http://www.corteidh.or.cr>>Google Scholar. The Uniform Resource Locator will be cited in full for documents that are available only in Spanish.

5 See ECHR Annual Report, supra note 1, at 11 (reporting that the European system exercised jurisdiction over twenty-two states in 1990; this number refers to the combined jurisdiction of the European Commission, now dissolved, and the Court); Inter-Am. Comm’n H.R., American Convention on Human Rights “Pact of San José, Costa Rica,” at <http://www.cidh.oas.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm>.

6 See Rights Court ‘Yet to Start Work, ‘supra note 2; African Union, Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (Oct. 15, 2007), at <http://www.africa-union.org>. The African Court on Human and Peoples’ Rights will eventually merge with the Court of Justice of the African Union to create the African Court of Justice and Human Rights, which will assume jurisdiction over any human rights cases under consideration by the Court on Human and Peoples’ Rights. See African Union, Protocol on the Statute of the African Court of Justice and Human Rights, July 1, 2008, available at <http://www.africa-union.org/root/au/Documents/Treaties/treaties.htm>.

7 Note that our use of the term “supranational” throughout this piece does not imply that regional human rights courts have a direct, hierarchical relationship to domestic institutions or even that their judgments are automatically enforceable in domestic courts. Rather, we refer to regional courts as supranational simply in the sense that they exercise jurisdiction over a variety of countries and represent a judicial recourse for victims who have exhausted remedies available at the domestic level.

8 Laurence, R. Heifer & Anne-Marie, Slaughter Toward a Theory of Effective Supranational Adjudication , 107 Yale L.J. 273 (1997)Google Scholar. Factors identified include, e.g., functional capacity, fact-finding capacity, quality of legal reasoning, and independence from political interests. See id. at 300–36.

9 Id. at 329–30, 333–34.

10 ECHR Annual Report, supra note l, at 11.

11 Id.

12 Heifer & Slaughter, supra note 8, at 276.

13 Id. at 296.

14 Dinah, Shelton The Boundaries of Human Rights Jurisdiction in Europe , 13 Duke J. Comp. & Int’l L. 95, 147 (2003)Google Scholar (footnotes omitted). Some observers caution that compliance in Europe may be more nuanced than existing scholarship demonstrates. Professor Mark W. Janis, for example, calls for more comprehensive studies of the past and present effectiveness of the European system. Janis notes that while the system’s compliance record may well be comparable to that of many domestic courts, without truly comprehensive data, “one must be careful not to go too far in asserting a nearly perfect record for compliance with Strasbourg judgments and decisions.” Mark, W. Janis The Efficacy of Strasbourg Law , 15 Conn. J. Int’l L. 39, 41–42 (2000)Google Scholar. We note, for example, the large number of judicial process violation cases lacking compliance by Italy as a clear counterexample. See Council of Europe, Simplified Global Database with All Pending Cases for Execution Control (July 2007), at <http://www.coe.int/t/e/human_rights/execution/02_documents/PPIndex.asp> [hereinafter Global Database]. Whether or not the European system ever enjoyed near-perfect compliance, what is important here is the general trend toward domestic implementation that was historically demonstrated in a large number of European cases.

15 Shelton, supra note 14, at 147.

16 Heifer & Slaughter, supra note 8, at 333–34.

17 Id. at 329 (citing Menno, T. Kamminga Is the European Convention on Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations? 12 Neth. Q. Hum. Rts. 153, 153–54 (1994)Google Scholar). Christina M. Cerna, a specialist in the Inter-American Commission Secretariat, also underscores this distinctive feature of the early ECHR, stating: “Until 1989, the European human rights system functioned as a kind of regional Supreme Court, concerned with what I would call lifestyle issues, whereas the Inter-American system dealt with traditional human rights violations involving the right to life and physical integrity.” Christina, M. Cerna The Inter-American System for the Protection of Human Rights , 95 ASIL Proc. 75, 76 (2001)Google Scholar. Note that while we highlight this contrast in relation to the ability of human rights courts to stimulate change on the relevant issues, we do not mean to minimize the serious impact that nonviolent or “administrative” violations can have on victims’ lives (examples that come to mind include cases of discrimination or delays and irregularities in judicial proceedings).

18 Shelton, supra note 14, at 143 (noting challenges to the authority of the Court’s judgments in cases of serious or widespread violations).

19 Significantly, in those cases the ECHR’s power has historically been weakest. Id. at 142 (“The ECHR has been fortunate in having few cases of gross and systematic violations. Those cases that have been brought indicate the limitations of the judicial process in resolving systemic failure of the rule of law.”).

20 ECHR Annual Report, supra note 1, at 136.

21 ECHR, Annual Report 2006, at 5 9 - 6 1 , 63.

22 Global Database, supra note 14. Note that multiple factors (such as the number of cases brought against a state, when they were decided, and how many issues are involved) influence the distribution of cases under supervision. We do not view these data as an exact measure of state willingness to implement ECHR decisions. However, they serve as a broad indicator of the scale on which enforcing compliance in newer member states is a challenge that the European system must address.

23 In an article published this year, Heifer discusses the more complex political landscape currently facing the ECHR and the European system’s overwhelming docket crisis. In response to these challenges, Heifer argues that the European system should enact reforms to enhance its embeddedness in national legal systems, defined roughly as the extent to which the ECHR “can penetrate the surface of the state to interact” directly with government institutions. Laurence, R. Heifer Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime , 19Eur.J. Int’l L. 125, 131 (2008)Google Scholar. The ultimate goal of embeddedness is to bolster domestic institutions until they can assume the task of resolving violations without the need for intervention by the Court. Id. at 156. Under this same model, however, the ECHR is justified in increasing its level of scrutiny and intervention in states whose domestic systems are currently inadequate to remedy human rights violations. See id. at 138–46.

24 Not to oversimplify, we recognize that the early European Court did address some cases that focused on situations of violence, even in established Western European democracies (to name just one well-known example, Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at 25 (1978), considered brutal interrogation techniques employed by British forces in Northern Ireland). The data in the paragraphs above are meant to demonstrate a very broad trend; there are, of course, exceptions to each of the tendencies referenced here.

25 Christina, M. Cerna The Inter-American System for the Protection of Human Rights , 16 Fla. J. Int’l L. 195, 202 (2004).Google Scholar

26 See, e.g., Thomas, Buergenthal New Upload—Remembering the Early Years of the Inter-American Court of Human Rights , 37 N.Y.U. J. Int’l L. & Pol. 259, 276–77 (2005)Google Scholar (“[D]espite the fact that this year the Court celebrates its twenty-fifth anniversary, it still has a long way to go to gain the acceptance and prestige in the Americas that the European Court enjoys in its region—or at least in the Western European parts thereof.”).

27 Frans, Viljoen & Lirette, Louw State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights, 1994–2004 , 101 AJIL 1, 5 (2007)Google Scholar (reporting that as of mid-2003, only 14 percent of African Commission cases had resulted in full compliance).

28 We recognize that significant variation exists among states subject to the jurisdiction of the Inter-American Court, and that some states have stronger legal mechanisms for implementing its decisions than others.

29 Heifer & Slaughter, supra note 8, at 312. Political scientists studying the European Union have argued that supranational litigation can serve as a catalyst for social mobilization by, inter alia, defining rights in ways that spur or strengthen the development of social movements around these rights and paving the way for future strategic litigation in domestic courts. Once mobilized, social actors can then exert influence on the broader policy issues at stake and potentially expand space for citizen participation in government processes in the long term. See generally Rachel, A. Cichowski The European Court and Civil Society: Litigation, Mobilization and Governance (2007)Google Scholar (analyzing the interactions between litigation and mobilization in the context of the European Court of Justice, with particular attention to gender equality rights and environmental protection). While the institutional setting of the European Union is distinct from that of the inter-American system, the basic principle that supranational cases can serve as focal points for domestic mobilization is relevant to our arguments regarding the role of the Inter-American Court.

30 Obiora Chinedu, Okafor The African System on Human and Peoples’ Rights, Quasi-Constructivism, and the Possibility of Peacebuilding within African States , 8 Int’l J. Hum. Rts. 413, 431 (2004)Google Scholar (footnotes omitted).

31 Viljoen & Louw, supra note 27, at 28–31. Viljoen and Louw’s data also suggest that democratic openness in a country predicts better compliance, id. at 26, as do follow-up enforcement efforts, id. at 32. These results fit with a model in which domestic activism, international pressure, and supranational enforcement efforts combine with a particular domestic climate to prompt positive change.

32 This is not to assert that regional courts are the main tool for eliminating human rights abuses by governments. As noted, in our experience supranational courts constitute just one tool in the broader processes that ultimately lead to lasting human rights improvements, often led by public advocacy campaigns, national courts, and/or nonjudicial mechanisms. Importantly, however, regional courts should operate in the most effective way possible, whether playing a leading or subsidiary role in the broader process of improving particular human rights practices. In this regard, analysts have identified several possible models for how international adjudicatory bodies can best contribute to the advancement of human rights. One vision holds that such bodies should simply provide justice for individual litigants. See Henry, J. Steiner Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee? in The Future of UN Human Rights Treaty Monitoring 15, 32–36 (Philip, Alston & James, Crawford eds., 2000)Google Scholar. A second view, often termed the “constitutional” model, posits that a rights body should seek broader impact by using “appropriate cases to elucidate the [human rights] instrument that they are applying, to interpret and explain it.” Id. at 39. Variants of the constitutional model focus on the use of emblematic cases to address endemic problems in a given country. See Heifer, supra note 23, at 135. While we contend that a tribunal such as the Inter-American Court should seek to create impact beyond its cases, we believe that merely elucidating the American Convention will not suffice to reverse the human rights problems in the Americas but that, as a variant to the models above, the Court can best increase its impact by working in ways that are relevant and useful to domestic actors.

33 American Declaration of the Rights and Duties of Man, May 2, 1948, OAS Res. XXX, adopted by the Ninth International Conference of American States (1948), 43 AJIL Supp. 133 (1949), available at the Court’s Web site, supra note 4.

34 American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123, available at the Court’s Website, supra note 4.

35 Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion, Inter-Am Ct. H.R. (ser. A) No. 10, at 11, paras. 43–45 (July 14, 1989).

36 The twenty-one states that have recognized the Court’s contentious jurisdiction are Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela. 2007 IACHR Annual Report, supra note 4, at 5.

37 Background information on the Commission is available at the Commission’s Web site, <http://www.cidh.org/>.

38 Inter-Am. Comm’n H.R., Annual Report 2007, ch. III, graph B.l.b., Total Number of Complaints Received by Year, available at the Commission’s Web site, supra note 37.

39 Id., para. 4, & graph B.4.a., Cases Submitted to the Inter-American Court of Human Rights.

40 The possibility of converting the Commission into the binding fact-finder of the system may appeal to some observers because the inter-American system currently uses a duplicative procedure in which the Commission conducts fact-finding and decides the merits of a case, after which, if the case proceeds to the Court, that body also conducts fact-finding to reach its own merits determination. As an initial matter, since the results of domestic investigations or judicial proceedings concerning human rights violations in the Americas are frequently suspect (indeed, these domestic proceedings may form part of the alleged violations in a case), it is clear that despite the cost in resources, the inter-American system must continue to conduct independent fact-finding. We argue that, barring radical changes in the fact-finding resources and procedures of the Commission (a possibility to which we are open but do not think likely to occur soon), the Court must continue to be the authoritative judicial fact-finder of the system. This position does not discount the possibility of other reforms to the relationship between the Commission and the Court.

41 Inter-Am. Comm’n H.R., Rules of Procedure of the Inter-American Commission on Human Rights, Art. 44(1), Dec. 8, 2001, as amended July 25, 2008, available at the Commission’s Web site, supra note 37.

42 2007 IACHR Annual Report, supra note 4, at 60.

43 Background information on the Court is available at the Court’s Web site, supra note 4.

44 Velásquez Rodríguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988).

45 See Baena Ricardo v. Panama, Competence, Inter-Am. Ct. H.R. (ser. C) No. 104, sec. Ill (Nov. 28, 2003).

46 Inter-Am. Ct. H.R., Rules of Procedure, Art. 23, Nov. 24, 2000, as amended Nov. 25, 2003, available at the Court’s Web site, supra note 4.

47 Inter-Am. Ct. H.R, Jurisprudence: Decisions and Judgments, at the Court’s Web site, supra note 4. Following the practice of the Court, we count as one contentious case Hilairev. Trinidad and Tobago, Inter-Am. Ct H R (ser C) No. 94 (2002), which constitutes the joinder of three separate initial applications.

48 See JO M., Pasqualucci The practice and Procedure of The Inter-American Court of Human Rights 343–48 (2003).Google Scholar

49 Inter-Am. Ct. H.R., Informe a la Comisión de Asuntos Jurídicosy Políticos del Consejo Permanente de la Organizatión de los Estados Americanos (OEA) en el marco del diálogo sobre el Sistema Interamericano de Protección de los Derecbos Humanos 32 (Mar. 16,2000), available at <http://www.corteidh.or.cr/discursos.cfm>. Note that in this article all translations from documents available only in Spanish or Portuguese are those of the authors.

50 Letter from the judges of the Inter-American Court of Human Rights to César GaviriaTrujillo, Secretary General of the OAS (Nov. 20, 2003), reprinted in Manuel E. Ventura Robles, La Corte Interamericana de Derecbos Humanos: La necesidad inmediata de convertirse enun tribunal permanente, 1Revtsta Cejil (Center for Justice and International Law) 12, Annex 1, at 24 (2005), available at <http://www.cejil.org/revista/revista_l.pdf> [hereinafter IACHR Letter].

51 Id. at 23.

52 Letter from César Gaviria Trujillo, Secretary General of the OAS, to die judges of the Inter-American Court of Human Rights (Jan. 16, 2004), reprinted in Ventura Robles, supra note 50, Annex 2, at 25–26.

53 2007 IACHR Annual Report, supra note 4, at 78.

54 See Inter-American Court of Human Rights, Annual Report 2006, at 6, 13, 16, 18, 19.Google Scholar

55 Id. at 64. In 2006, for example, Mexico donated $125,000 and Colombia announced a contribution of $300,000.

56 See Antônio A. Cancado Trindade, President of the Inter-Am. Ct. H.R., Hacia la consolidación de la capacidad jurídica internacional de los peticionarios en el Sistema Interamericano de Protección de los Derechos Humanos 28–29 (Presentation Before the Committee on Juridical and Political Affairs of the OAS, Apr. 19, 2002), OEA/Ser.G/CP/CAJP-1933/02 (Apr. 25, 2002), available at <http://www.corteidh.or.cr/docs/discursos/01cancado_19_04_02.pdf>.

57 Caesarv. Trinidad & Tobago, Inter-Am. Ct. H.R. (ser. C) No. 123, at 25, paras. 37–38 (Mar. 25,2005) (Ventura Robles, J., sep. op.).

58 See Inter-Am. Ct. H.R., Síntesis del Informe Anual de la Corte Interamericana de Derechos Humanos Correspondiente al Ejercicio de 2007, at 5 (Apr. 3, 2008), available at <http://www.corteidh.or.cr/discursos.cfm>>Google Scholar [hereinafter IACHR Síntesis]. Rather than working to strengthen the enforcement of these judgments, however, OAS member states have been reluctant to raise the matter. CEJIL notes, “Within the OAS, Member States refuse to tackle this issue head-on, not wanting to publicly denounce each other for non-compliance. The prevailing opinion is that if States question the compliance of another Member State, they are infringing on that State’s sovereignty.” CEJIL, Activities Report 2003–2004, at 42, available at <http://www.cejil.org/labores.cfm>>Google Scholar.

59 Indeed, in several important ways, the Inter-American Court’s procedures have responded to the particular factors present in the Americas. Thus, given the lack of a committee of ministers to supervise compliance, the Court has developed specific mechanisms for monitoring compliance with its own judgments. See Baena Ricardo v. Panama, Competence, Inter-Am. Ct. H.R. (ser. C) No. 104, at 33–34, para. 105 (Nov. 28, 2003).

60 See James, L. Cavallaro Toward Fair Play: A Decade of Transformation and Resistance in International Human Rights Advocacy in Brazil , 3 Chi. J. Int’l L. 481, 489 (2002).Google Scholar

61 See Cerna, supra note 25, at 203–04 (stating that “only in the rarest case is [the state] willing to investigate, try and punish the perpetrators, and in those rare cases where it does punish them, they tend to be released from prison after short periods, or never serve prison terms at all”).

62 One could argue that prosecution of all perpetrators is not, a priori, the most relevant indicator of the Court’s impact, particularly when significant time and resources would be required to prosecute a particular defendant. However, given the central role that persistent impunity for human rights abuses has played in Latin America; the symbolic, deterrent value of punishing perpetrators in high-profile cases, such as many of those that reach the Inter- American Court; and the high importance placed on accountability by victim populations (as seen in very clear forms in, e.g., continuing efforts to hold accountable participants in the “dirty wars” of countries such as Argentina and Chile), we consider this element of reparations orders important in achieving progress in long-term respect for human rights and thus a highly relevant factor in evaluating compliance with the orders of the Court. Additionally, while in certain cases a failure to prosecute may result from the practical difficulties in locating an individual or other internal constraints, the extremely low level of full compliance in this regard strongly suggests a recurrent lack of political will to enforce this aspect of the Court’s decisions.

63 Baena Ricardo, Competence, Inter-Am. Ct. H.R. (ser. C) No. 104, at 10–13, para. 54 (Nov. 28, 2003).

64 IACHR Síntesis, supra note 58, at 9.

65 Blanco Romero v. Venezuela, Inter-Am. Ct. H.R. (ser. C) No. 138 (Nov. 28, 2005); Montero Aranguren v. Venezuela, Inter-Am. Ct. H.R. (ser. C) No. 150 (July 5, 2006).

66 Telephone interview with María Daniela Rivero, Comité de Familiares de las Victimas de los sucesos ocurridos entre el 27 de febrero y los primeros días de marzo de 1989 (Oct. 17, 2007). This lack of compliance continues at the time of this writing.

67 Gustavo, Rodríguez 241 Presos han sido asesinados durante el primer semestre , El Universal.Com. (Venez.), July 4, 2007, <http://buscador.eluniversal.com/2007/07/04/sucgc_art_241-presos-han-sido_345395.shtml>Google Scholar; Yolimer, Obelmejías Valdez Denuncian aumento de31%de violencia en cárceles venezolanas , El Universal.Com., Aug. 6, 2007, <http://buscador.eluniversal.com/2007/08/06/pol_ava_denuncian-aumento-de_06A911051.shtml>.Google Scholar

68 Yakye Axa Indigenous Community v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005); Sawhoyamaxa Indigenous Community v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 146 (Mar. 29, 2006).

69 Yakye Axa Indigenous Community, Inter-Am. Ct. H.R. (ser. C) No. 125, at 2, para. 2; Sawhoyamaxa Indigenous Community, Inter-Am. Ct. H.R. (ser. C) No. 146, at 1–2, para. 2.

70 Telephone interview with Julia Cabello, Tierraviva a los Pueblos Indígenas del Chaco (Sept. 18,2007); Yakye Axa Indigenous Community, Compliance with Judgment (Inter-Am. Ct. H.R. Feb. 8, 2008); Sawhoyamaxa Indigenous Community, Compliance with Judgment (Inter-Am. Ct. H.R. Feb. 8, 2008).

71 Sawhoyamaxa Indigenous Community, Compliance with Judgment, Considerando, para. 11 (Inter-Am. Ct. H.R. Feb. 2, 2007).

72 Barrios Altos v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 75 (Mar. 14, 2001).

73 See Barrios, Altos Cumplimiento de Sentencia, para. 15 (Inter-Am. Ct. H.R. Sept. 22, 2005), available at <http://www.corteidh.or.cr/docs/supervisiones/barrios_22_09_051.pdf>>Google Scholar; International Federation for Human Rights, Fujimori: jExtradición al Perú o Juicio en Chile! La Letra, NO. 476/3, May 2007, at 6, available at <http://www.fidh.org/IMG/pdf/peru.pdf>..>Google Scholar

74 Suárez Rosero v. Ecuador, Inter-Am. Ct. H.R. (ser. C) No. 35 (Nov. 12, 1997).

75 See Tribunal Constitucional, Resolución No. 119–1-97 (Dec. 24, 1997), available at <http://www.consep.gov.ec/> (declaring unconstitutional a provision of the penal code relating to pretrial and presentencing detention); UN Human Rights Committee, Información adicional presentada por el Estado Parte: Ecuador, UN Doc. CCPR/C/84/Add.8, para. 102 (Dec. 17,1998) (describing the effects of this declaration), available in English at <http://documents.un.org/simple/asp>.

76 Bulacio v. Argentina, Inter-Am. Ct. H.R. (ser. C) No. 100, at 48–49, paras. 116–17 (Sept. 18, 2003).

77 Corte Suprema de Justicia [CSJN], 23/12/2004, “Espósito, Miguel Angels/ incidente de prescripción de la acción penal promovido por su defensa,” Collección Oficial de Fallos de la Corte Suprema de Justicia de la Nación [Fallos] (2004–327-5668), paras. 12–15, available at <http://www.csjn.gov.ar/>. The Supreme Court noted that because of this procedural resolution, the Inter-American Court had declined to consider expert evidence offered on the facts of the case. Id., para. 15 - We critically examine acknowledgments of responsibility and their relationship to the exclusion or limitation of evidence in part IV infra.

78 Id., para. 16. The relevant criminal case is ongoing. For further examples of domestic jurisprudence citing inter-American instruments and decisions, see Brian, D. Tittemore Ending Impunity in the Americas: The Role of the Inter-American Human Rights System in Advancing Accountability for Serious Crimes Under International Law , 12 Sw. J. L. & Trade Am. 429, 449–61 (2006)Google Scholar. The existence of such jurisprudence is a positive indication of the inter-American system’s influence. At the same time, this cannot serve as the only criterion for studying the Court’s impact. Domestic judgments that involve progressive jurisprudence or call for large-scale reforms may themselves suffer from a lack of implementation when political will is lacking in other governmental institutions.

79 See Comisión Especializada Permanente de lo Civil y Penal, Ley Orgánica para la Ejecución de Sentencias de la Corte Interamericana de Derechos Humanos e implementatión de acuerdos amistosos y de cumplimiento ante la Comisión Interamericana, OficioNo. 153-CEPCP-P-07 (Nov. 15, 2007), available at <http://apps.congreso.gov.ec/sil/documentos/informes/574.doc>.

80 More detailed versions of the first two case studies that follow (based on the cases Loayza Tamayo v. Peru and Castillo Petruzzi v. Peru) appear in James, L. Cavallaro & Emily, J. Schaffer Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas, % Hastings L.J. 217, 245–49 (2004).Google Scholar

81 Loayza Tamayo v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 33 (Sept. 17, 1997).

82 Id. at 2–3, 21–24, paras. 3, 46.

83 Id.

84 Id., sec. XvTII, at 31–35.

85 See, e.g., Castillo Petruzzi v. Peru, Preliminary Objections, Inter-Am. Ct. H.R. (ser. C) No. 41, at 24, para. 100(a) (Sept. 4, 1998) (quoting Peru’s assertion that “the sovereign decision of the legal organs of Peru cannot be modified much less rendered ineffective by any…international authority”); Castillo Petruzzi, Inter-Am. Ct. H.R. (ser. C) No. 52, at 63, para. 216(f) (May 30, 1999) (quoting Peru’s statement that the Inter-American Court “does not have the right to order that criminals be released”).

86 Loayza Tamayo, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 42, at 2, para. 4 (Nov. 27, 1998). The state challenged and refused to comply with various other reparations orders in the case. Loayza Tamayo, Compliance with Judgment, Inter-Am. Ct. H.R. (ser. C) No. 60 (Nov. 17, 1999).

87 In 1995 Loayza Tamayo was able to send a letter from prison to Amnesty International describing how she had been raped and otherwise tortured during her detention. Amnesty Int’l, Peru/Japan, Alberto Fujimori Ex-president of Peru Must Be Brought to Justice , AI Index AMR 46/017/2001 (2001), available at <http://www.amnesty.org/en/library/info/AMR46/017/2001/en>..>Google Scholar

88 Castillo Petruzzi, Inter-Am. Ct. H.R. (ser. C) No. 52, at 1, 20–31, paras. 1, 86 (May 30, 1999).

89 Id, sec. XVII.

90 Castillo Petruzzi, Compliance with Judgment, Inter-Am. Ct. H.R. (ser. C) No. 59, at 3, para. 3 (Nov. 17, 1999).

91 Legislative Res. No. 27152 (July 8, 1999); ^ f Letter from Fernando de Trazegnies Granda, Minister for Foreign Affairs, Republic of Peru, to Cesar Gaviria, Secretary General, OAS (July 8,1999), available at <http://www.umn.edu/humanrts/iachr/Annuals/appl6–99.html>.

92 The situation with regard to Castillo Petruzzi would change several years after Fujimori left power. In 2003, a time when rejection of Fujimori’s abuses was of growing importance in public opinion, Peru’s Constitutional Court cited Castillo Petruzzi in its landmark decision to strike down several pieces of antiterrorist legislation. See Constitutional Court, 01/03/2003, “MarcelinoTineo Silvay más de 5,000 ciudadanos,” Exp. No. 010–2002-AI/TCLIMA, available at <http://www.tc.gob.pe/jurisprudencia/2003/00010–2002-AI.html>. Later that same month, Peru at last opened a new trial for the victims in Castillo Petruzzi. See, e.g., New Trial Opens fir Chileans Imprisoned in Peru on Terrorism Charges, AP, Jan. 30, 2003, available at <http://www.highbeam.com/doc/lPl-7140021l.html>.

93 Yean and Bosico v. Dominican Republic, Inter-Am. Ct. H.R. (ser. C) No. 130 (Sept. 8, 2005).

94 See id. at 25, para. 85(b)(1).

95 See Juan Bolívar, Díaz Haitianos, dominicanos ó dominicohaitianos? El Diario Hoy, Oct. 16, 2005, available at <http://www.clavedigital.com.do/App_Pages/Portada/Titulares.aspxJId_Articulo=6231>Google Scholar (reporting that most Dominicans who knew of the judgment had strong negative reactions).

96 Diógenes, Pina República Dominicana: Acatamiento parcial a Corte Interamericana , Inter Press Serv., Mar. 23, 2007, available at <http://ipsnoticias.net/interna.asp?idnews=40469>Google Scholar. At the same time, the Court’s decision appears to have galvanized international concern over the plight of Dominicans of Haitian descent. In 2007 Dominican activist Sonia Pierre received the Robert F. Kennedy Human Rights Award. See Marc, Lacey A Rights Advocate Whose Work Divides Dominicans , N.Y. Times, Sept. 29, 2007, at A4Google Scholar. A coalition of NGOs in Washington has also taken up the issue. Interview with Michael Camilleri, staff attorney, CEJIL, Washington, D.C. (Oct. 11,2007). It remains to be seen whether these developments will produce change on the ground.

97 Ximenes Lopes v. Brazil, Inter-Am. Ct. H.R. (ser. C) No. 149 (July 4, 2006).

98 One of the witnesses presented by Brazil was Pedro Gabriel Godinho Delgado, National Coordinator of the Mental Health Program of the Ministry of Health. Godinho Delgado’s testimony focused on measures taken by the state to increase outpatient care, as opposed to confinement, as well as measures designed to promote and respect human rights within the mental health system. See id., para. 47.3.b.

99 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion, Inter-Am. Ct. H.R. (ser. A) No. 5 (1985).

100 Buergenthal, supra note 26, at 268–69.

101 Id. at 272.

102 Margaret, E. Keck & Kathryn, Sikkink Activists Beyond Borders: Advocacy Networks In International Politics (1998)Google Scholar; see, e.g., id. at 107.

103 Id. at 13.

104 Id. at 105–07.

105 Id. at 109.

106 Sonia, Cardenas Conflict and Compliance: State Responses to International Human Rights Pressure (2007)Google Scholar; see, e.g., id. at 38–39.

107 Id. at 65.

108 Id. at 27–28.

109 Id. at 67–68.

110 Id. at 69.

111 Id. at 83.

112 Id. at 82.

113 Id. at 134.

114 Cavallaro, supra note 60, at 487.

115 Victim testimony may also greatly benefit victims themselves, providing them with the chance to tell their stories in a neutral, authoritative forum. Because this article focuses on the wider advocacy impact of Court decisions, we do not discuss in depth the potential loss to victim witnesses that accompanies the Court’s procedural reforms. We note, however, that this is another cost to be considered in evaluating the reduction in the use of public hearings by the Court, as discussed in text below.

116 Speaking in the early 1990s, Professor Jochen A. Frowein noted that in the vast majority of cases to come before the European system, “the documents produced by both parties lead to a non-controversial establishment of the facts.” Jochen, A. Frowein Fact-Finding by the European Commission of Human Rights, in Fact-Finding Before International Tribunals: Eleventh Sokol Colloquium 237, 238 (Richard, B. Lillich ed., 1991).Google Scholar

117 One ECHR judge reported in 1997 that when dealing with established democracies, the ECHR has generally been able to accept the findings of domestic courts as true; however, this rule did not necessarily hold for Turkey or for newly entered Eastern European states. See Visita de la Corte Europea de Derechos Humanos(noviembre de 1997, extractos de bs debates), in 2 Inter-Am. Ct. H.R., Informe: Bases Para UN Proyecto de Protocolo A LA Convención Americana Sobre Derechos Humanos, Para Fortalecer su Mecanismo de Protecclón 501, 509 (Antônio Augusto, Cancado Trindade ed., 2d ed. 2003), available at <http://www.corteidh.or.cr/docs/libros/Semin2.pdf>.Google Scholar

118 Importantly, a Court’s perceived fact-finding abilities make a crucial contribution to its legitimacy. Heifer and Slaughter state, “An important dimension of [a human rights court’s] powers is the ability to elicit credible factual information on which to base the tribunal’s decisions. A guaranteed capacity to generate facts that have been independently evaluated, [e.g.,] through the public contestation inherent in the adversary system, helps counter the perception of self-serving or ‘political’ judgments.” Heifer & Slaughter, supra note 8, at 303.

119 See Tatiana Rincón, Covelli La verdad histórical una verdad que se establece y legitima desde el punto de vista de las víctimas , 7 Estudios Socio-Jurídicos 331, 340–41 (spec. ed. 2005)Google Scholar (Colom.).

120 Indeed, the Court has placed increasing importance on setting forth a narrative of facts even in cases of acknowledgment of responsibility, as discussed in part IV infra.

121 In some cases, certain facts may remain unclear even after rigorous fact-finding. In such situations, the Court may have sufficient proof to declare, e.g., a violation based on failure to protect but not to declare direct responsibility for the original violation (such as a killing). We do not suggest that every example of this type indicates deficient fact-finding; rather, in some cases it will be the best outcome that the petitioners can achieve if there are true obstacles to clarifying the underlying facts. Note also that we intend the phrase “rigorous fact-finding” to denote a process that determines as precisely as possible the facts of a case, regardless of whether these facts turn out to support the petitioners or the state.

122 For example, the international NGO and inter-American litigant CEJIL notes the value of the Court’s establishment of the specific military unit responsible for the victim’s death in Mack Chang v. Guatemala, Inter-Am. Ct. H.R. (ser. C) No. 101 (Nov. 25, 2003). CEJIL, supra note 58, at 27.

123 We recognize, of course, that the Court’s remarkable increase in the number of cases heard and the speed with which decisions are issued may have beneficial effects for individual victims. As we discuss below, however, we worry that actors within the system may be overlooking any price paid for these gains. We believe that, at a minimum, critical evaluation of the Court’s new procedures is warranted.

124 ECHR Annual Report, supra note 1, at 146.

125 Id at 134.

126 Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, May 13, 2004, Europ. TS. No. 194, available at <http://conventions.coe.int/>.

127 Jean-Paul Costa: Urgent Need to Implement Reforms to Secure Future of European Court, Eur. Ct. H.R. Press Release 063 (2007) (Jan. 25, 2007), available at <http://www.coe.int/>.

128 For instance, in the absence of a European Commission to act as a filter, the ECHR admits only a small minority of its applications, in sharp contrast to the Inter-American Court. Other differences worth analyzing include the phenomenon of so-called clone cases in the European system (groups of cases raising the same questions of law in the same countries), as well as the subject matter of these cases (including the large percentage of European cases that continue to involve procedural violations related to the length of judicial proceedings). See, e.g., ECHR Annual Report, supra note 1, at 142–45.

129 We recognize that the testimony of witnesses and that of expert witnesses can play different roles in Court proceedings. For the purposes of this piece, however, which represents an initial exploration of this material, we group together witnesses and experts as one category in our statistical analyses, using the term “witnesses” to refer to this combined group.

130 Velásquez Rodríguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988).

131 Id. at 5–6, para. 28.

132 Id. at 7, para. 34.

133 Rather than speaking of twenty-two witnesses, one can view this figure as an average of just over seven witnesses per case in Velásquez Rodríguez, Godínez Cruz, and Fairén Garbi, respectively. However, since the testimony in these matters occurred largely simultaneously, we find it logical to discuss the cases as one proceeding for the purposes of illustrating the role of live testimony.

134 Velásquez Rodríguez, Inter-Am. Ct. H.R. (ser. C) No. 4, sec. XIV, at 34–35 (July 29, 1988). Empirically it is not possible to test whether the Court could have found the necessary facts to reach these conclusions through affidavits rather than testimony. However, the fact that after hearing the offered witnesses, the Court went to great lengths to receive more live testimony suggests that it may have recognized some fact-finding value in testimony (which, among other things, allows for in-person assessments of credibility) as compared to written evidence.

135 See Juan, E. Méndez & José Miguel, Vivanco Disappearances and the Inter-American Court: Reflections on a litigation Experience , 13 Hamlinel. Rev. 507, 557—58 (1990)Google Scholar (noting the wide press coverage of the hearings).

136 Neira Alegría v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 20 (Jan. 19, 1995).

137 Villagrán Morales v. Guatemala, Inter-Am. Ct. H.R. (ser. C) No. 63 (Nov. 19,1999); Baena Ricardo v. Panama, Inter-Am. Ct. H.R. (ser. C) No. 72 (Feb. 2, 2001).

138 Mack Chang v. Guatemala, Inter-Am. Ct. H.R. (ser. C) No. 101 (Nov. 25, 2003).

139 The numbers of hearing days and witnesses reported in this article come from our manual count of these data in each judgment issued by the Court. For purposes of our analysis, we count a case as decided in the year in which the merits judgment was issued, although the relevant hearings may be spread out over a period of several years before and after this year. In addition, we have excluded cases that, owing to dismissal or discontinuance, did not reach either the merits or the reparations stage of the case.

140 As the above data illustrate, the number of hearing days and especially of witnesses has traditionally varied from case to case, sometimes greatly. We do not assert that the Court ever heard a certain uniform number of witnesses in each case, nor do we maintain that it should establish any such number. Rather, we favor a model in which it retains the flexibility to receive as many witnesses as needed for each case, meaning that variance from case to case is to be expected.

141 See note 51 supra and corresponding text.

142 Inter-Am. Ct. H.R., Rules of Procedure, supra note 46, Art. 47(3).

143 Note that we count all public hearings in these calculations, regardless of whether these hearings involved witness testimony.

144 In addition, although the growing percentage of cases resolved through a state’s recognition of responsibility for alleged violations (discussed infra) contributes to this trend, the same general pattern is apparent even when only contested cases are considered.

145 Interview with Juan Pablo Albán, litigation officer, Inter-American Commission, Washington, D.C. (Feb. 21, 2007); Interview with Lilly Ching, litigation officer, Inter-American Commission, Washington, D.C. (Feb. 21, 2007).

146 Interviews with Albán and Ching, supra note 145.

147 Indeed, the judges of the Inter-American Court indicate that the Court’s process of reform is an ongoing effort requiring constant evaluation. In this sense, they invite commentary to aid them to “incorporate well-founded reforms, anchored in experience, necessity, and possibility.” Inter-Am. Ct. H.R., Síntesis del Informe Anual de la Corte Interamericana de Derechos Humanos Correspondiente al Ejercicio de 2006, at 17 (Mar. 29, 2007), available at <http://www.corteidh.or.cr/discursos.cfm>>Google Scholar. We hope that the ideas set forth in this article contribute to the Court’s ongoing evaluations as envisioned in this quotation.

148 Former Inter-American Court judge Thomas Buergenthal comments on the challenge of generating media attention for a case and the negative consequences of failing to do so, stating:

Judges and court employees are prevented from making any but the blandest pronouncements about the cases being heard…. Those statements they feel free to make certainly do not attract the public attention that human rights courts need in order to have an impact…. Judgments of international human rights courts that are not adequately publicized are much easier for governments to disregard.

Buergenthal, supra note 26, at 279. These observations reinforce the value of public hearings, in which the media have firsthand access to the parties, witness testimony, and the arguments at issue in a far more compelling form than would otherwise occur.

149 Urso Branco v. Brazil, Provisional Measures Order (Inter-Am. Ct. H.R. June 18, 2002).

150 See Urso Branco v. Brazil, Provisional Measures Order, para. 22 (Inter-Am. Ct. H.R. Apr. 22, 2004).

151 See, e.g., Crise na prisão Urso Branco leva Brasila se explicar na OEA , O Estadodes. Paulo, May 20, 2004, available at <http://www.estadao.com.br/arquivo/cidades/2004/not20040520p13325.htm>>Google Scholar.

152 Montero Aranguren v. Venezuela, Inter-Am. Ct. H.R. (ser. C) No. 150 (July 5, 2006).

153 See, e.g., Solbella Pérez, Rodríguez Juzgarán masacre del Retén de Catia , El Universal.Com, Apr. 3, 2006, <http://buscador.eluniversal.com/2006/04/03/pol_art_03156A2.shtml>Google Scholar.

154 Pasqualucci, supra note 48, at 195.

155 One example of such timing is De la Cruz Flores v. Peru, in which the detained victim was released within days of the public hearing. See De la Cruz Flores v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 115, at 5–6, 40, paras. 28, 73(48) (Nov. 18, 2004); see also Ximenes Lopes v. Brazil, Inter-Am. Ct. H.R. (ser. C) No. 149 (July 4, 2006) (in which Brazil took concrete steps to improve conditions in several mental health centers shortly before the public hearing in the case).

156 Notably, in recent months the Court has initiated the practice of holding private hearings to receive information regarding compliance. All compliance reports are available at the Court’s Web site, supra note 4.

157 ECHR Annual Report, supra note 1, at 137.

158 See Cerna, supra note 25. Many cases of severe violations also arise out of facts occurring in Turkey.

159 Interviewing witnesses in-country, of course, is not identical to having those witnesses testify in court. However, fact-finding missions are more akin to live testimony than to affidavits, as during fact-finding missions the judges may formulate questions (rather than simply the party offering the witness). Live interviews also allow judges to pursue new lines of inquiry that emerge and to evaluate witnesses’ demeanor. (These advantages of live testimony will be discussed further infra.)

160 Common contexts for fact-finding missions include cases regarding prison conditions and cases arising from political conflicts such as the dispute over Cyprus, the conflict between the PKK political party and the Turkish government, and the Russian-Chechen conflict. See note 161 infra for citations.

161 Benzan v. Croatia, App. No. 62912/00 (Eur. Ct. H.R. 2002); Adali v. Turkey, App. No. 38187/97 (Eur. Ct. H.R. 2005); N. v. Finland, App. No. 38885/02 (Eur. Ct. H.R. 2005); Shamayev v. Georgia and Russia, 2005-III Eur. Ct. H.R.; Kaja v. Greece, App. No. 32927/03 (Eur. Ct. H.R. 2006); Ilaşcu v. Moldova and Russia, App. No. 48787/99 (Eur. Ct. H.R. 2004); Naumenko v. Ukraine, App. No. 42023/98 (Eur. Ct. H.R. 2004). Note that the respondent state does not always correspond to the location of the on-site fact-finding.

162 Ipek v. Turkey, 2004–11 Eur. Ct. H.R., para. 8 (extracts), available in full at the Court’s Web site, supra note 1. It is noteworthy that when one witness failed to appear and instead sent a sworn affidavit, the Court pointed out that his statement could not be weighed as heavily as live testimony since it was not subject to cross-examination. Id, paras. 119–20.

163 Taniş v. Turkey, 2005-VIII Eur. Ct. H.R., paras. 23–137.

164 Balyemez v. Turkey, App. No. 32495/03, paras. 59–64 (Eur. Ct. H.R. 2005). The fact-finding missions listed here appear in the ECHR’s Annual Section Activity Reports, Annual Grand Chamber Activity Reports, and/or archived press releases that mention the term “fact-finding” for the years 2002–2006.

165 Ilaşcu, App. No. 48787/99, paras. 12–13.

166 Id., para. 3.

167 Id., op. paras. 9, 10, 14, 15.

168 We do not assert that the ECHR’s current, limited use of witness testimony is ideal or that there is no room for improvement in its fact-finding procedures despite its large caseload. We note, for instance, that Françoise Hampson, a leading practitioner before the European Court, has proposed that the ECHR create another chamber that would focus exclusively on fact-finding hearings. See Philip, Leach Human Rights Hotspots and the European Court , N.L.J., Feb. 6, 2004, available at <http://www.londonmet.ac.uk/research-units/hrsj/affiliated-centres/ehrac/>Google Scholar (follow “media and journals” hyperlink; then follow “European Court of Human Rights” hyperlink).

169 See, e.g., Bitiyeva v. Russia, App. Nos. 57953/00, 37392/03, paras. 132–35 (Eur. Ct. H.R. 2007) (finding the state liable for extrajudicial executions in Chechnya under a shifted burden of proof since it did not sufficiently rebut the applicants’ prima facie case or produce necessary documents); Bazorkina v. Russia, App. No. 69481/01, paras. 104–05 (Eur. Ct. H.R. 2006) (reiterating the ECHR’s jurisprudence concerning the shifted burden of proof applicable in cases of individuals injured while in police custody).

170 Webcast: Emilia Segares Rodríguez, Remarks, in Washington College of Law, American University, Second Annual Meeting on Human Rights, Overview of the Current Status of the Inter-American Human Rights System’s Case Law (Mar. 9, 2007) [hereinafter Overview], available at <http://www.wcl.american.edu/humright/hracademy/2008/meeting_webcast.cfm#>.

171 While providing less opportunity than common law systems to question a witness directly or via cross-examination, civil law procedure still places value on the statements of live witnesses. See, e.g., Abraham, S. Goldstein & Martin, Marcus The Myth of Judicial Supervision in Three “Inquisitorial” Systems: France, Italy, and Germany , 87 Yale L.J. 240, 266 n.63 (1977)Google Scholar.

172 In her detailed discussion of the value of live versus written testimony in the context of international criminal tribunals, former ICTY Judge Patricia M. Wald makes this observation, based on the experience of the ICTY: “Cross-examination, considered alongside lifeless affidavits, counsels a prudent skepticism of written testimony.” Patricia, M. Wald Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal , 5 Yale Hum. Rts. & Dev. L.J. 217, 229 (2002)Google Scholar.

173 Interview with Alban, supra note 145; Interview with Ariel Dulitzky, then human rights senior specialist, Inter-American Commission, Washington, D.C. (Feb. 21, 2007).

174 E.g., Interview with Dulitzky, supra note 173 (noting that examining a state witness in Yean and Bosico v. Dominican Republic, Inter-Am. Ct. H.R. (ser. C) No. 130 (Sept. 8,2005), gave rise to a line of questioning by judges concerning the criteria used to issue birth certificates and noting that in Serrano Cruz Sisters v. El Salvador, Inter-Am. Ct. H.R. (ser. C) No. 120 (Mar. 1,2005), cross-examination elicited information concerning the military’s failure to keep records of what happened to children taken by the armed forces).

175 Méndez & Vivanco, supra note 135, at 540.

176 Aloeboetoe v. Suriname, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 15, at 14–15, para. 58 (Sept. 10, 1993).

177 Fermín Ramírez v. Guatemala, Inter-Am. Ct. H.R. (ser. C) No. 126, at 5, para. 23 (June 20, 2005).

178 Fermín Ramírez v. Guatemala, Resolution of the Court, Considerando, para. 19 (Inter-Am. Ct. H.R. Apr. 28, 2005) (on file with authors).

179 Servellón Garćia v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 152, para. 3 (Sept. 21, 2006) (Cançado Trindade, J., sep. op.).

180 A positive example is the 1999 case of Villagrán Morales v. Guatemala, involving the extrajudicial execution of street children, in which one of the expert witnesses testified entirely on the defects of domestic investigations and judicial proceedings. After highlighting various failures of the investigating authorities, this expert cited precedents within Guatemalan law to show how a domestic judge’s procedure had been irregular and demonstrated partiality. Villagrán Morales v. Guatemala, Inter-Am. Ct. H.R. (ser. C) No. 63, at 20–22, para. 66(b) (Nov. 19,1999). This expert’s presentation of the narrative of the case probably facilitated the judges’ understanding of the degree to which the domestic procedures had been deficient; the Court subsequently set forth a detailed condemnation of the flawed investigation and domestic judicial proceedings. Id. at 53–55, paras. 228–38.

181 Nogueira de Carvalho v. Brazil, Inter-Am. Ct. H.R. (ser. C) No. 161 (Nov. 28, 2006).

182 The Commission maintained that the deficiencies in the state investigation violated Articles 8 and 25 of the Convention, Nogueira de Carvalho v. Brasil, No. 12.058, Demanda at 23 (Inter-Am. Comm’n H.R. Jan. 13,2005), while the petitioners additionally argued that these actions violated Article 4 by failing to protect and guarantee the right to life. Justiça Global, Alegações Finals, Gilson Nogueira de Carvalho v. Brasil, paras. 67–109, Mar. 10,2006; see also 2006 IACHR Annual Report, ch. III, para. 524.

183 See Justiça Global, supra note 182, para. 2 n.2; Nogueira de Carvalho v. Brazil, Inter-Am. Ct. H.R. (ser. C) No. 161, at 6, para. 23 (Nov. 28, 2006).

184 Brazilian bodies condemning the role of the state agents in Nogueira’s murder and/or the deficiency of the investigation include a special commission of the state office of the public prosecutor, the human rights commission of the National Bar Association, the human rights commission of the national legislature, and the Federal Commission of Rights of the Human Person, a body with a mixed civil society/government composition. Scores of Brazilian civil society groups joined in condemning the state at the time of Nogueira’s murder and in criticizing the subsequent investigation performed by Brazilian police and prosecutors. On this latter point, see the October 2006 statement of the Brazilian Forum of Human Rights Organizations (a network of fifty leading Brazilian rights groups) on the tenth anniversary of Nogueira’s death. Fórum de Entidades Nacionais de Direitos Humanos, Dez anos do assassinato de Gilson Nogueira (Oct. 19, 2006), available at <http://www.direitos.org.br/index.php?option=com_content&task=view&dd=2010&Itemid=2>.

185 See, e.g., Hum. Rts. Watch, World Report 1998: Brazil, available at <http://www.hrw.org/worldreport/Americas-01.htm>>Google Scholar (noting the general lack of investigation into violations against human rights defenders in Rio Grande do Norte and stating that the investigation of Nogueira’s death was closed “despite significant evidence of police involvement in his killing”); Amnesty Int’l, Brazil: The Killing of Francisco Gilson Nogueira and Threats Against Witnesses, in Special Appeals on Behalf of Human Rights Defenders in Latin America 7, AI Index AMR 01/03/ 99, June 1, 1999, available at <http://archive.amnesty.org/library/pdf/AMR010031999ENGLISH/$File/AMR0100399.pdf>.

186 See Sérgio, Vilar Estado é absolvido pela Corte Interamericana , Diário de Natal (Braz.), Dec. 21, 2006, at 6.Google Scholar

187 Id.

188 See IACHR Síntesis, supra note 58, at 8.

189 See. e.g., Manuel Ventura, Robles The Discontinuance and Acceptance of Claims in the Jurisprudence of the Inter- American Court of Human Rights , 5 Ilsa J. Int’l & Comp. L. 603, 619 (1999)Google Scholar (“The acceptance of a claim has an enormous importance because it represents a serious and responsible attitude by the States demanded before the Court. . ); Zambrano Vélez v. Ecuador, Inter-Am. Ct. H.R. (ser. C) No. 166, at 4, para. 10 (July 4, 2007) (in which the Commission describes the state’s acknowledgment as a “positive step toward the vindication of the victims memory and dignity, as well as toward “efforts aimed at avoiding the repetition of similar situations”); Escué Zapata v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 165, at 6, para. 20 (July 4,2007) (noting that the state’s acknowledgment was a positive contribution to “the proper fulfillment of the Inter-American human rights jurisdictional function and, in general, the enforcement of the principles enshrined by the American Convention”)

190 Ximenes Lopes v. Brazil, Inter-Am. Ct. H.R. (ser. C) No. 149 (July 4, 2006).

191 Id. at 7, paras. 35–36.

192 Id. at 26, para. 80 (footnote omitted).

193 Id. at 23, para. 64.

194 In its initial submission, the state questioned the cause of the victim’s death and also alleged that it had taken all the proper steps to investigate the case. República Federativa do Brasil, Ximenes Lopes v. Brasil, Contestação do Estado Brasileiro, paras. 4, 84, 175 (Mar. 9, 2005).

195 Brazil recognized responsibility by acknowledging “the insufficiency, during the time of the events that led to the passing away of Sr. Damião Ximenes Lopes, of positive results in the implementation of public policies in mental health that would have made possible at that time a more effective process of accreditation and inspection” of the mental health facility in which the victim was beaten to death. Justiça Global, Alegações Finais, Damião Ximenes Lopes v. Brasil 3, Jan. 9, 2006.

196 Montero Aranguren v. Venezuela, Inter-Am. Ct. H.R. (ser. C) No. 150 (July 5, 2006).

197 See Montero Aranguren v. Venezuela, No. 11.699, Demanda, paras. 17, 23 (Inter-Am. Comm’n H.R. Feb. 24, 2005), available at <http://www.corteidh.or.cr/expediente_caso.cfm?id_caso=233>.

198 Id., para. 28.

199 This case comes within a broader context of resistance by Venezuela to the inter-American system. CEJIL notes:

[T]he [Venezuelan] government has consistently taken an antagonistic position with regard to the Inter- American System, has openly questioned the need to comply with the decisions of the Commission and Court, and has failed to guarantee the protection of human rights defenders, some of whom are protected by precautionary arid provisional measures, among others.

CEJIL, Activities Report 2003–2004, at 67, available at <http://www.cejil.org/labores.cfm>..>Google Scholar

200 The Court recognized that Venezuela’s engagement in the case had been contradictory for the reasons described above. Montero Aranguren, Inter-Am. Ct. H.R. (ser. C) No. 150, at 10–11, paras. 47–49.

201 Id. at 9, para. 40.

202 Id., para. 42.

203 Interview with Albán, supra note 145.

204 See, e.g., Emilie, M. Hafner-Burton & Kiyoteru, Tsutsui Human Rights in a Globalizing World: The Paradox of Empty Promises , 110 Am. J. Soc. 1373 (2005)Google Scholar. The results of Hafner-Burton and Tsutsui’s global study demonstrate that on average, “[i]n no instance does state ratification of any of the six core UN human rights treaties predict the likelihood of government respect for human rights.” Id. at 1398. Rather, state ratification often correlated negatively with signatories’ behavior: “treaty members are more likely to repress their citizens than nonratifiers.” Id. Hafner-Burton and Tsutsui maintain that the true value of treaty ratifications often lies in providing global civil society with tools for human rights campaigns, explaining, “Even though treaties often do not directly contribute to improvement in practice, the norms codified in these treaties are spread through INGOs that strategically leverage the human rights legal regime to pressure governments to change their human rights behavior.” Id. at 1399.

205 Servellón García v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 152, at 4, 17,paras. 16, 54 (Sept. 21,2006).

206 Rochela Massacre v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 163, at 21, para. 70 (May 11, 2007).

207 Escué Zapata v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 165, at 4 - 5 , paras. 11–12 (July 4, 2007). The Court ultimately declared that it did not have sufficient evidence to find that the victim’s death fit within the alleged pattern. Id. at 21, paras. 6 3 - 64. Regardless of whether the Commission and petitioners’ version of the factual context is accurate, this case draws attention to the potentially vast difference in advocacy impact between two judgments finding identical legal violations but having different factual narratives (e.g., one in which a murder is an isolated incident and another in which it is emblematic of a decades-long pattern of targeted repression). In light of this dynamic, states’ attempts to decontextualize alleged violations in their allanamientos serve as a call for rigorous fact-finding regarding the context in each case.

208 For an example of states’ attempts to reduce witness testimony against them, see La Cantuta v. Peru, Resolution of the Court, Considerando, para. 16 (Inter-Am. Ct. H.R. Aug. 17,2006) (on file with authors) (reporting Peru’s unsuccessful attempts to block the testimony of numerous witnesses offered by the other parties on the grounds that, since the state had acknowledged many of the relevant facts and violations, their testimony would lack purpose).

209 El Amparo v. Venezuela, Inter-Am. Ct. H.R. (ser. C) No. 19 (Jan. 18, 1995).

210 See id. at 3, 5, paras. 10–12, 20.

211 See Mack Chang v. Guatemala, Inter-Am. Ct. H.R. (ser. C) No. 101, at 6–7, paras. 21–25 (Nov. 25,2003) (García Ramírez, J., sep. op.); Plan de Sánchez Massacre v. Guatemala, Inter-Am. Ct. H.R. (ser. C) No. 105, at 3–4, paras. 14–15 (Apr. 29, 2004) (García Ramírez, J., sep. op.).

212 Plan de Sánchez Massacre, Inter-Am. Ct. H.R. (ser. C) No. 105, para. 14 (García Ramírez, J., sep. op.).

213 Interview with Albán, supra note 145.

214 Allanamientos generally reference the facts listed in the Commission’s demanda (application) as acknowledged. However, these factual narratives could potentially be deepened by witness testimony before the Court (although the parties cannot allege facts different from those in the demanda). In addition, the added advocacy value of facts set forth in a Court judgment, as compared to a Commission demanda, should not be underestimated.

215 For instance, in Montero Aranguren (the Retén de Catia case), the Venezuelan media specifically reported the facts declared proven by the Court (including the available details about how the detainees were killed, such as that the guards used firearms and tear gas against them and that some detainees were shot from behind). See, e.g., Edgar, López Corte IDH condenó a Venezuela por masacre del retén de Catia , El Nacional (Venez.), Aug. 2, 2006, at B21 Google Scholar (on file with authors).

216 See Mack Chang, Inter-Am. Ct. H.R. (ser. C) No. 101, at 24, para. 100 (Nov. 25, 2003).

217 M a t 55–87, para. 134.

218 Rochela Massacre v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 163, at 23–27, paras. 77–91 (May 11,2007).

219 See, e.g., Mapiripán Massacre v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 134, at 9, para. 37 (Sept. 15, 2005) (quoting Mapiripán Massacre, Preliminary Objections, Inter-Am. Ct. H.R. (ser. C) No. 122, at 12, para. 32(5) (Mar. 7,2005)) (“The object of the testimony and expert opinions will be restricted as appropriate, regarding those parts of the merits, reparations, and costs with regard to which there is still a dispute among the parties.”).

220 See, e.g., Montero Aranguren v. Venezuela, Inter-Am. Ct. H.R. (ser. C)No. 150, at 4 - 6 , paras. 21, 26 (July 5,2006) (reduction in length of scheduled hearing); Servellón García v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 152, at 5, para. 18 (Sept. 21, 2006) (declaring hearing unnecessary). The Commission or representatives may also indicate that they no longer view live testimony as needed in light of an allanamiento; the final decision rests with the Court. See, e.g., Vargas Areco v. Paraguay, Resolution of the Court, Considerando, para. 19 (Inter-Am. Ct. H.R. Feb. 7, 2006) (noting that the Commission did not consider live testimony necessary in light of the state’s acknowledgment).

221 Servellón García, Inter-Am. Ct. H.R. (ser. C) No. 152, at 1, para. 3 (Cancado Trindade, J., sep. op.).

222 We have also noted that despite the state’s highly questionable engagement in the initial stages of litigation in Ximenes Lopes v. Brazil, owing to the strength of the ongoing campaign on mental health policy generated by the death of Sr. Ximenes Lopes (including support from other sectors of government), the Court case helped to advance broader domestic advocacy efforts.

223 See, e.g., Pueblo Bello Massacre v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 140, at 95–96, paras. 123–26 (Jan. 31,2006) (discussing Colombia’s liability for violations of the right to life due to, inter alia, the government’s failure to adopt positive protective measures in light of the real and immediate risk to the victims of a massacre by paramilitary forces).

224 See, e.g., Sawhoyamaxa Indigenous Community v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 146, at 87, para. 178 (Mar. 29, 2006) (stating that Paraguay violated the right to life of nineteen individuals who died of treatable health conditions “since [the state] has not adopted the necessary positive measures within its powers, which could reasonably be expected to prevent or avoid risking the right to life of the members of the Sawhoyamaxa Community”).

225 James, L. Cavallaro & Stephanie Erin, Brewer The Virtue of Following: The Role of Inter-American Litigation in Campaigns for Social Justice , 8 Sur Int’l J. Hum. RTS. 85 (2008), available at <http://www.surjournal.org>Google Scholar; Cavallaro & Schaffer, supra note 80.

226 Laurence, R. Heifer Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes , 102 Colum. L. Rev. 1832, 1871 (2002).Google Scholar

227 Id. at 1879.

228 Id. at 1881.

229 W. at 1882–83.

230 Wat 1910.

231 Id. at 1854 (emphasis added).

232 See id. at 1910.

233 Indeed, Heifer acknowledges that the pace and degree of human rights innovation that will be successful in a country depend on a variety of pressure sources, including other states, transnational advocacy networks, and domestic opinion. Id. at 1855.

234 Prof. Robert Goldman, former Commission member, Comments, in Overview, supra note 170.

235 Id. Cases cited by Professor Goldman in which the Commission chose not to submit the matter to the Court include Abella v. Argentina (Tablada case), Case 11.137, Inter-Am. C.H.R., Report No. 55/97, OEA/Ser.L/V/ 11.98, doc. 6 rev. (1997); Gallardo Rodriguez v. Mexico, Case 11.430, Inter-Am. C.H.R., Report No. 43/96, OEA/ Ser.L/V/II.95, doc. 7 rev. (1996); and Río Frío Massacre v. Colombia, Case 11.654, Inter-Am. C.H.R., Report No. 62/01, OEA/Ser.L/V/II.lll, doc. 20 rev. (2000).

236 In addition, the Court might consider ways of working more closely with the Commission to ensure implementation of the former’s decisions. Given its experience in the countries that form the OAS and its understanding of the political dynamics in each of them, the Commission is well suited to design strategies to foster implementation of Court judgments. While the Commission, as a general matter, encourages states to comply with the determinations of the system, if it were to do this in greater coordination with the Court, the Court’s results might well improve.

237 Cases 10.147,10.181,10.240,10.262,10.309,10.311, Inter-Am. C.H.R., Report No. 28/92, OEA/Ser.L/ V/II.83, doc. 14, corr.l (1992–93) (Argentina); Cases 10.029,10.036, 10.145,10.305,10.372,10.373, 10.374, 10.375, Inter-Am. C.H.R., Report No. 29/92, id. (Uruguay).

238 Certain Attributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 44, 46, 47, 50 and 51 of the American Convention on Human Rights), Advisory Opinion OC-13/93, Inter-Am. Ct. H.R. (ser. A) No. 13 (July 16, 1993).

239 Id, paras. 30, 37, 57(1).

240 Barrios Altos v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 75 (Mar. 14, 2001).

241 Hum. Rts. Watch, World Report 2002, at 168, available at <http://www.hrw.org/wr2k2/pdf/peru.pdf>.

242 See CSJN, 14/06/2005, “Simón, Julio Héctor s/ privación ilegítima de la libertad, etc.,” Fallos (2005–328- 2056), para. 24, available at <http://www.csjn.gov.ar>.

243 Almonacid Arellano v. Chile, Inter-Am. Ct. H.R. (ser. C) No. 154 (Sept. 26, 2006).

244 See, e.g., Andrea, Chaparro Suprema no reabrirá caso amnistiado pese a fallo de la Corte Interamericana , La Nación (Chile), Oct. 17, 2006, available at <http://www.lanacion.cl/prontus_noticias/site/artic/20061016/pags/20061016212857.html>Google Scholar (reporting the view of the president of Chile’s Supreme Court that the inter-American judgment was not binding).

245 See id.; Macarena, López Bachelet da fuerte respaldo a DD.HH y anuncia derogación de ley de amnistía , El Mostrador (Chile), Oct. 14, 2006, available at <http://www.memoriando.com/noticias/101–200/l64.html>Google Scholar.

246 See Supreme Court of Chile, crim. ch., Molco Case, No. 559–2004, Considerando, paras. 19–20 (Dec. 13, 2006), available at <http://www.cecoch.cl/htm/htm/revista/docs/estudiosconst/revistaano_5_l_htm/sentenci_molco5_l-2007.pdf>.

247 For a thorough analysis of the impact of the proceedings against Pinochet on domestic efforts to achieve accountability for abuses by military regimes in Latin America, see Naomi, Roht-Arriaza The Pinochet Effect: Transnational Justice in The Age of Human Rights (2005)Google Scholar.

248 Velásquez Rodríguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988).

249 See, e.g., 3 Human-Rights Groups Say Abuses Increase in Honduras , N.Y.Times, Feb. 10, 1984, at A8Google Scholar; Americas Watch (Hum. Rts. Watch), Honduras: Inter-American Court of Human Rights Wraps up First Adversarial Case 2–3, Sept. 5, 1990, available at <http://hrw.Org/reports/pdfs/h/honduras/honduras909.pdf>>Google Scholar (describing HRWs factfinding trips to Honduras in the 1980s and listing several reports that it published following these trips, publicizing the methodology of forced disappearances).

250 Commenting on the success of the ECHR and the European Court of Justice in the mid-1990s, Heifer and Slaughter discuss the interplay between judicial independence and strategic decision making in terms helpful to the present discussion:

[Tribunals must be willing to brave political displeasure, searching always for generalizable principles, even as they search for formulations or procedural mechanisms to render the principles more palatable to the states concerned.

…

Bold demonstrations of judicial autonomy by judgments against state interests and appeals to constituencies of individuals must be tempered by incrementalism and awareness of political boundaries.

Helfer & Slaughter, supra note 8, at 314.

251 Juridical Condition and Rights of die Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18 (Sept. 17, 2003).

252 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 151–52 (2002).

253 Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18, para. 4.

254 Id, para. 47.

255 Id, para. 87 (quoting Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/02, Inter-Am. Ct. H.R. (ser. A) No. 17, para. 45 (Aug. 28, 2002)).

256 Id, para. 101.

257 Id, paras. 153, 155.

258 See Beth, Lyon The Inter-American Court of Human Rights Defines Unauthorized Migrant Workers’ Rights for the Hemisphere: A Comment on Advisory Opinion 18 , 28 N.Y.U. Rev. L. & Soc. Change 547, 586–87 (2004).Google Scholar

259 See, e.g., Sarah, H. Cleveland Case Report: Legal Status and Rights of Undocumented Workers. Advisory Opinion OC-18/03, in 99 AJIL 460, 463 (2005).Google Scholar

260 Separate Opinion of Judge A. A. Cançado Trindade, Advisory Opinion OC-18/03, para. 1.

261 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, GA Res. 45/158 (Dec. 18, 1990), available at <http://www2.ohchr.org/english/law/cmw.htm>.

262 Id., Arts. 26, 40. The older ILO Convention No. 143 (the Migrant Workers Convention of 1975) also enshrines different levels of protection based on migratory status. International Labour Organization, Migrant Workers (Supplementary Provisions) Convention (No. 143), Arts. 8–10, June 24, 1975, available at <http://www.ilo.org/ilolex/index.htm>.

263 As mentioned by the Inter-American Commission in its brief in Advisory Opinion OC-18, previously the body of jus cogens norms was restricted to a very small number of rights, such as freedom from slavery, genocide, apartheid, and arguably racial discrimination. Dictamen de la Comisión Interamericana de Derechos Humanos en aplicación de los Artículos 57 y 64 de la Convenci6n Americana sobre Derechos Humanos at 6 (Jan. 2003) (submitted to the Inter-American Court of Human Rights) (on file with authors).

264 For a discussion of the various human rights norms that the Inter-American Court has held to be jus cogens, see Gerald, L. Neuman Import, Export, and Regional Consent in the Inter-American Court of Human Rights , 19 Eur. J. Int’l L. 101 (2008)Google Scholar. Professor Neuman also presents a detailed critique of the Court’s reasoning in Advisory Opinion OC-18.

265 Professor Douglas Donoho notes that while “ [e] nforcement mechanisms regarding well-defined, universally accepted rights for which international consensus over meaning exists will be…more readily accepted by governments,” attempts to “enforce specific applications of human rights that are subject to genuine cultural and political dispute inevitably raise concerns about overreaching.” Douglas, Donoho Human Rights Enforcement in the Twenty-first Century , 35 Ga. J. Int’l & Comp. L. 1, 49–50 (2006).Google Scholar

266 Telephone interview with Sarah Paoletti, Transnational Legal Clinic, University of Pennsylvania Law School (May 24, 2007).

267 Ley Federal del Trabajo, Art. 372(11), as amended, Diario Oficial de la Federación, 17 de enero de 2006, available at <http://info4.juridicas.unam.mx/ijure/fed/>. This law remains in force despite recommendations from the UN Migrant Workers’ Committee that it be amended. Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, Concluding Observations: Mexico, para. 36, UN Doc. CMW/C/MEX/ CO/1 (Dec. 20, 2006).

268 One could argue that, particularly if the Court expects low compliance with regard to certain unpopular issues such as migrants’ rights regardless of the form that its jurisprudence takes, it might just as well set forth a progressive vision to influence scholars and judges in other regions and to set the stage for later progress once the social and political climate improves. This argument would take a longer-term view of the effectiveness of a human rights court. However, we question this approach given the uncertainty that visionary jurisprudence will achieve the desired goals in the future, coupled with the more certain outcome of resistance that such jurisprudence can generate in the present.

269 Miguel Castro Castro Prison v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 160, at 2, para. 3 (Nov. 25, 2006).

270 See id. at 61–63, paras. 197(13), (16).

271 Id. at 167, para. 470(16). The Commission and the victims’ representatives had suggested the creation of a monument to the victims as a measure of symbolic reparations; in an apparent attempt to avoid the construction of such a monument, the state referenced the existence of The Eye That Cries, a monument officially dedicated to all victims of political violence. Id. at 163, para. 453.

272 See Mario Vargas, Llosa El ojo que llora , El País (Spain), Jan. 14, 2007, available at <http://www.elpais.com/articulo/opinion/ojo/llora/elpepiopi/20070114elpepiopi_5/Tes>.Google Scholar

273 Dan, Collyns Peru Slams Ruling on Rebel Rights , BBC News, Jan. 10, 2007, available at <http://news.bbc.co.uk/1/hi/world/americas/6246917.stm>.Google Scholar

274 In an article attacking the Court judgment, the domestic newspaper Correo reported finding two of the relevant names already inscribed in the monument, a discovery that prompted the mayor to vow to remove all names of “subversives” from the monument. Terroristas en “El ojo que llora , “Correo, Jan. 11, 2007, available at <http://www.correoperu.com.pe/lima_nota.php?id=40746>..>Google Scholar

275 See Este jueves protestan por ataque a ‘El Ojo que Llora,’ Agencia Andina, Sept. 25, 2007, available at <http://www.adehrperu.org/noticias-ddhh/este-jueves-protestan-por-ataque-a-el-ojo-que-llora.html>.>.>>Google Scholar

276 Penal Miguel Castro Castro v. Perú, Interpretación de la Sentencia de Fondo, Reparaciones y Costas, Inter- Am. Ct. H.R. (ser. C) No. 181, at 17, para. 57 (Aug. 2,2008), available at <http://www.corteidh.or.cr/docs/casos/articulos/seriec_181_esp.pdf>.

277 Inter-Am. Ct. H.R., New Format for Judgments, available at the Court’s Web site (Oct. 2008).

278 Id.

279 See, e.g., Escué Zapata v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 165, at 8, para. 24 (July 4, 2007).

280 Rochela Massacre v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 163, at 22–31, paras. 73–100 (May 11, 2007).

281 Id. at 34–37, paras. 105–20.

282 Mapiripán Massacre v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 134, at 17–32, paras. 75–76 (Sept. 15, 2005); Rochela Massacre, Inter-Am. Ct. H.R. (ser. C) No. 163, at 15–18, paras. 57–58.

283 Further, not all of the Court’s new judgments have set forth detailed factual contexts for each violation found; this lack is especially of concern with respect to violations of the duty to investigate, which may be complex and consist of many stages. In Bueno Alves v. Argentina, for example, the Court found that the state’s investigations and judicial proceedings violated the American Convention. To support this conclusion, the Court referenced several facts, such as the delay in performing a medical examination on the victim following his denunciation of torture. Bueno Alves v. Argentina, Inter-Am. Ct. H.R. (ser. C) No. 164, at 23–25, paras. 110–16 (May 11,2007). However, a fuller, chronological summary of the state’s investigative and judicial processes, drawing on concrete events by specific actors in these processes, could have aided in both the clarity and completeness of this discussion.