Regional Human Rights Systems

Inter-American Human Rights System

I. Introduction🔗

Created by the Organization of American States (OAS, an international organisation established in 1948 to achieve ‘an order of peace and justice’ among its Member States),1 the Inter-American human rights system came into existence with the adoption of the American Declaration of the Rights and Duties of Man in Bogotà in 1948. There, the OAS adopted the OAS Charter, which declares that the ‘fundamental rights of the individual’ is one of the principles upon which the OAS is founded.2

Under the Inter-American human rights system, three treaties are particularly relevant to CRSV: the American Convention on Human Rights (ACHR), the Inter-American Convention to Prevent and Punish Torture (IACPPT) and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará).

The Inter-American Commission on Human Rights (IACHR)3 monitors States’ implementation of the American Convention. Its main function is ‘to promote respect for and defense of human rights’.4 The Inter-American Court on Human Rights (IACtHR)5 similarly monitors States’ implementation of the American Convention in a binding manner.

Note to reader
On the authoritativeness and the question of bindingness of the Commission and the Court’s work, and for an explanation of the measures the Commission and the Court may adopt to enforce States’ human rights obligations, please consult the “Ratification and Enforcement of Treaties” chapter, “Inter-American Human Rights System” subsection.

I.1 Sexual Violence in the Inter-American System🔗

The Court has held that sexual violence encompasses acts of a sexual nature committed against any person without their consent. In addition to physical invasion of the human body, sexual violence may include acts which do not involve penetration or any physical contact.6 Sexual violence violates a person’s right to humane treatment, which encompasses their physical and mental integrity, and may amount to torture and cruel, inhuman or degrading treatment or punishment (“ill-treatment”) under article 5 of the American Convention and the IACPPT.7

Taking into account decisions of the now defunct European Commission on Human Rights, the Commission has determined that treatment is inhuman if it ‘deliberately causes severe mental or psychological suffering’ and is unjustifiable, and that it is degrading if it severely humiliates a person in front of others or forces that person to act against their wishes or conscience.8

The Commission has also quoted with approval the jurisprudence of the European Court of Human Rights, stating that treatment must attain a minimum level of severity to be considered ‘inhuman or degrading’. This level is relative and depends on the circumstances of each case,9 including the ‘characteristics of the action, the duration, the method used, or the way in which the suffering was inflicted, the potential physical and mental effects, and also the status of the person who endured this suffering, including their age, gender, and physical condition’.10

The Court has similarly followed the jurisprudence of the European Court of Human Rights to find that psychological and moral suffering may be deemed inhuman ‘even in the absence of physical injuries’. The degrading aspect of ill-treatment is characterised by the inducement of fear, anxiety and inferiority to humiliate and degrade the victim, and break their physical and moral resistance. This situation ‘is exacerbated by the vulnerability of a person who is unlawfully detained’.11

Whether acts amount to torture or ill-treatment depends primarily on ‘the intensity of the suffering inflicted’: torture is an aggravated form of inhuman treatment perpetrated ‘with a purpose, which is to obtain information or confessions, or to inflict punishment’. The classification should be done on a case-by-case basis, taking into account the nature of the acts, the duration of the suffering, and the physical and mental effects on and the personal circumstances of each specific victim/survivor.12 While the American Convention does not define torture, the Commission has frequently referred to the definition of torture provided in the IACPPT to find violations of article 5 of the American Convention.13

Under article 2 of the IACPPT, torture is described as any act committed intentionally to cause physical or mental pain or suffering on a person during criminal investigations, to intimidate, to personally punish, as a preventive measure, to penalise, or for any other purpose. Torture also includes methods intended to destroy the personality of the victim or to diminish their physical or mental capacities, even in the absence of physical pain or mental anguish. Torture does not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures.

In sum, treatment amounts to torture when it is i) intentional; ii) causes severe physical or mental suffering, and iii) is committed with a purpose, including intimidating, degrading, humiliating, punishing, or controlling the victim.14 The Court has found that sexual violence often fulfils these criteria.

In Fernández Ortega v Mexico, the Court determined that the rape suffered by the victim/survivor and perpetrated by Mexican soldiers constituted torture: it was an intentional and deliberate act,15 and was an extremely traumatic experience that had severe consequences, including significant physical and psychological damage that physically and emotionally humiliated the victim/survivor.16 Rape causes severe suffering, ‘even when there is no evidence of physical injuries or disease’. Further, women victims/survivors of rape also experience complex psychological and social consequences.17 The Court held that ‘punishing the victim because she failed to provide the required information’ during interrogation was the specific purpose of the rape.18 The Court went on to note that ‘rape, as in the case of torture, has other objectives, including intimidating, degrading, humiliating, punishing, or controlling the person’.19

The Court has held that rape may constitute torture even when it is based on a single fact alone and takes place outside State facilities, such as in the victim’s home.20 Nevertheless, sexual violence committed by State agents remains especially objectionable: sexual violence, including and apart from rape, perpetrated by States agents as an intentional and targeted form of social control constitutes torture. Sexual violence committed by and under the custody of State agents is a serious and reprehensible act.21

While sexual violence may affect anyone,22 women are particularly at risk. Accordingly, under the Convention of Belém do Pará, sexual violence is prohibited as ‘a paradigmatic form of violence against women’.23 Under article 1 of the Convention of Belém do Pará, violence against women encompasses ‘any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere’. Violence against women is not only a violation of human rights, but also ‘an offense against human dignity’. It is a manifestation of ‘the historically unequal power relations between women and men’ that ‘pervades every sector of society, regardless of class, race, or ethnic group, income, culture, level of education, age or religion’.24

I.2 When is Sexual Violence Conflict-Related?🔗

The Inter-American System on Human Rights is applicable during both times of peace and conflict, and is complementary to international humanitarian law.25 International humanitarian law does not prevent the application of international human rights law’.26 International human rights law is fully in force during international or non-international armed conflicts.27

Accordingly, sexual violence need not be conflict-related for the Inter-American Conventions to apply.28 Further, the prohibition of torture and ill-treatment is absolute and non-derogable, even in situations ‘such as war, threat of war, the fight against terrorism or any other crime, internal states of emergency, unrest or conflict, suspension of constitutional guarantees, internal political instability, or other public emergencies or catastrophes’.29

The Commission and the Court have examined conflict situations involving CRSV several times.30 The Court, in particular, has found that situations of unrest, conflict, massacres or social control make certain groups more vulnerable to sexual violence, and that such violence is used as a symbolic means of humiliating, punishing or subjugating the other party.31 In conflict, sexual violence not only affects victims/survivors directly, but also ‘may be designed to have an effect on society’.32 In the case of Las Dos Erres Massacre, the Court specifically found that the rape of women was a State practice, executed in the context of massacres, meant to destroy women’s dignity ‘at the cultural, social, family, and individual levels’.33

II. Legal Framework🔗

III. Obligations🔗


III.1 States must ensure that no one subject to their jurisdiction is exposed to CRSV🔗

III.2 States must address CRSV committed by private individuals and groups🔗

III.3 Special protection against CRSV is owed to persons facing compounded, intersectional forms of discrimination🔗

III.4 Special protection against CRSV is owed to non-citizens and non-nationals🔗

III.5 Special protection against CRSV is owed to persons deprived of their liberty🔗

III.6 States must educate their population on CRSV🔗

Justice and Accountability🔗

III.7 States must investigate and prosecute CRSV🔗

III.8 States must conduct proceedings within a reasonable time🔗

III.9 States must avoid the revictimisation of victims/survivors of CRSV during proceedings🔗

III.10 States must ensure that women victims/survivors of CRSV have access to gender-sensitive proceedings🔗

III.11 States must ensure that child victims/survivors of CRSV have access to child-sensitive proceedings🔗

III.12 States must provide victims/survivors of CRSV and their families with access to justice🔗

Humanitarian Response🔗

III.13 States must rehabilitate victims/survivors of CRSV🔗


III.14 States must provide victims/survivors of CRSV with redress🔗


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