Inter-American Commission on Human Rights (IACHR) repudiates a severe attack against its autonomy and independence

Paulo Abrão

Given the decision of the Secretary-General of the Organization of American States (OAS), Luis Almagro, to refrain from advancing in the process of renewing the mandate of its Executive Secretary, the Inter-American Commission on Human Rights (IACHR) states its most vigorous protest. Also, as its alarm at a severe attack against its independence and autonomy.

In the exercise of its powers, on July 27, 2016, the IACHR selected Paulo Abrão, after an extensive process, for the position of Executive Secretary, and, in accordance with the terms of Article 11 of its Rules of Procedure, submitted his name to the Secretary General, Luis Almagro, who confirmed the selection and appointed him to the position, having taken office on August 16 of that same year.

In exercise of the same powers, the Inter-American Commission, during the session held in Mexico from January 8 to 9, 2020, decided unanimously to renew the mandate of its Executive Secretary for the period 2020-2024, which was made public through the IACHR Press Release from January 9, 2020 . For the administrative hiring procedure, on the same January 9, the Secretary-General was notified by an official note “per Article 11, paragraph 3, of the Commission’s Regulations.” Among the reasons that motivated the decision of the Inter-American Commission to renew the mandate of the current Executive Secretary and confirm its trust in him, was the need to have an Executive Secretary who fulfills the conditions, and has the capabilities to consolidate a process of transformation and modernization of the work of the Commission. Also, who possesses the necessary ability to lead the process of completion of its Strategic Plan 2017-2021, as well as the construction of its new plan for the future, under the Commission’s vision for the protection of human rights in the region.

On August 15, 2020, the last day of the Executive Secretary’s contract, the Secretary-General of the OAS communicated to the IACHR, without prior consultation, his determination to abstain “from advancing in the process of appointing the Executive Secretary” of the IACHR. Which, in practice, translates into a refusal to extend the employment contract, a procedure required to give administrative continuity to the mandate of the Executive Secretary. The Commission, thus, announces to the international community that this unilateral decision of the Secretary-General constitutes an open disregard of the IACHR’s independence and autonomy, which seeks the de facto separation of the Executive Secretary, and nullifies the renewal decision adopted eight months earlier by the IACHR. It continues to draw the attention of the IACHR that during that period, it did not receive any questioning from the Secretary-General regarding the renewal procedure.

The Commission noted that in this communication, received on the last day of the first mandate of the Executive Secretary, the Secretary-General cited two reports as the basis for his decision: an opinion prepared by the Secretariat for Legal Affairs of the OAS General Secretariat, on the powers of the Secretary-General over the process for appointing the Executive Secretary and the procedure for preparing proposals from the IACHR; and another, by the OAS Ombudsperson, warning about the confidential nature of its content.

In this regard, the IACHR observes with extreme concern the interpretation of the norms made in the legal report on which the Secretary-General bases his decision, according to which the IACHR Rules of Procedure are a mere non-binding interpretation of the IACHR Statute and the OAS Charter. Therefore, the Secretary-General would not be obliged to comply with any of its provisions. This interpretation also ignores the current norm and practice that have been consistently upheld since 2000. And that was applied both in 2012 and 2016 for the selection and appointment of the last two Executive Secretaries and also for the latest renewal of the Special Rapporteur Special Edson Lanza in 2017 and of the Special Rapporteur on ESCER, Soledad Garcia, in 2020. Likewise, the interpretation of the norms referred to by the Secretary-General is contrary to the opinion of the Inter-American Court of Human Rights, which has established that the IACHR “As an organ of the inter-American system for the protection of human rights, it has full autonomy and independence in the exercise of its mandate in accordance with the American Convention on Human Rights.”

Indeed, by interpreting that the Inter-American Commission would not be the authorized body for the selection and renewal of the Executive Secretary, the legal opinion ignores two core aspects. That the OAS Charter created the Inter-American Commission on Human Rights as a Principal Organ of the Organization, with the same rank of the General Secretariat, autonomous and independent. And that IACHR’s Statute, approved by the General Assembly, entrusts the Inter-American Commission to adopt its own Rules of Procedure. By this mandate, the IACHR has adopted various Regulations, which are mandatory in accordance with the provisions of the Statute in its transitory Article 25. The report also omits to indicate that, as a safeguard of the autonomy of the IACHR, the Statute establishes that in order for the Secretary-General to proceed with the removal of the Executive Secretary from the Commission, he must first consult his decision with the Commission and inform it of the reasons on which it is based.

Given that the power to appoint and remove its staff in positions of trust from their duties is essential for the Commission to carry out its mandate to monitor and promote human rights in the hemisphere, the norms on which the inter-American Human Right System was built respond to the need to safeguard its powers and institutional autonomy. This is in such a way that external actors cannot determine who will carry out these positions, much less the moment of removal from office of such staff.

Throughout the 61-year history of defending human rights, the autonomy and independence of the Inter-American Commission have been strengthened and defended at all costs as one of the central pillars of legitimacy by the member states, by civil society and by victims of human rights violations. In fact, since 2000, the Commission had made significant progress in relation to its greater administrative autonomy, in the process of dialogue and coordination with successive General Secretaries, including Secretary Almagro himself, who, in 2016, confirmed the selection of the current Secretary Executive Officer and appointed him to the post for four years, in compliance with the IACHR Regulations. This is not the first time that the Inter-American Human Rights System has faced these attacks. However, the significant progress in the area of Inter-American standards would not have been achieved if the Commission had not fully exercised its autonomy and independence.

The IACHR, thanks to its reinforced autonomy and independence, carries out its work impartially, free from any political influence, and is an example and a reference for the world. The legal interpretation that the IACHR used to unanimously decide to renew the Executive Secretary has grounds on the Inter-American legal framework and precedents in force, as well as in the commitment of the General Secretariat “to achieve greater technical and administrative autonomy for the Commission,” established in Directive D-1/2000.

It should be remembered that in the past, this discussion has already been raised, and resolved, in dialogue with all the relevant actors in the hemisphere, including the Secretary-General, in terms of the IACHR Rules of Procedure. The IACHR hopes that this serious situation can be overcome through dialogue.

Regarding the confidential report of the Ombudsperson on the situation of the Secretariat in 2019, notified to the Commission on August 10, 2020, the IACHR, as the main body of the OAS in charge of the promotion and protection of Human Rights in the American continent, attaches the utmost importance to it and, to that effect, requests that it be processed with the highest standards of due process, the duty of investigation, and due diligence.

The IACHR reports that throughout the year of 2019, it has given maximum attention to the issue and has monitored each of the situations and the measures that have been adopted to address them. At the same time, the Commission is genuinely astonished that despite dealing with situations referring to 2019, the Ombudsperson waited up to 5 days before the expiration of the Executive Secretary’s contract, to transmit it. Both the Commission and its Executive Secretary, with due diligence and seriousness, provided the Ombudsperson with extensive information and openly received suggestions on the situations raised by her, the vast majority of which were implemented, as recorded in a detailed report presented to Secretary-General on August 14. At the same time, the Commission reiterates its full willingness to collaborate with the General Secretariat to address the new situations that have been brought to the attention only at this time and will process them to reaffirm the priority given to the needs of the Executive Secretariat’s team; in particular, the well-being, stability and professional development of all staff. The IACHR also highlights its firm position on the need to address each and every one of the situations raised, take into account and verify all the points that are part of said document, with full respect for the guarantees of due process and the principle of the presumption of innocence, as well as considering the implementation of all the measures that have been taken within the Executive Secretariat of the IACHR throughout 2019 and that were duly informed to the General Secretariat through a report prepared by the Executive Secretary. However, the IACHR reiterates that the Executive Secretary is a trusted official.

In this sense, it is inadmissible that a confidential institutional report of the Ombudsperson or the information that an administrative investigation is being initiated could be used as the basis for a decision on the administrative process of renewal of the Executive Secretary of the IACHR, in clear violation of standards reiterated by the System. The IACHR recalls the jurisprudence of the Inter-American Court of Human Rights, according to which the guarantees of due process established in Article 8 of the American Convention on Human Rights are applicable to all proceedings, including administrative in nature; in particular, the principle of the presumption of innocence and impartiality of the competent authority, so that all persons are in a position to adequately defend their rights against any type of act that may affect them, be it administrative or disciplinary in nature.

On this occasion, the IACHR highlights, supports, acknowledges, and thanks the work carried out by Secretary Abrão over the past four years, in whom it confirms its trust and reiterates its unanimous decision to renew his mandate. Thus, requesting the Secretary-General to continue the administrative process of contractual extension of the mandate of the Executive Secretary. Indeed, thanks to his leadership, the Commission has been able to strengthen access to more effective and accessible inter-American justice for victims of human rights violations in the Americas, integrated and timely monitoring, and the strengthening of technical cooperation actions. The results can be accompanied through progress reports on the implementation of the 2017-2021 Strategic Plan and other balances: expansion of the 2017 structure; balance for the year of 2017; balance of the year 2018; reports of the special follow-up mechanisms in 2018; outcomes of the precautionary measures in 2018; stages of the program to overcome the 2019 procedural backlog; balance of the year of 2019; balance of SACROI COVID-19; and 2020 partial balance report.

The Inter-American Commission on Human Rights rejects all kinds of interference in the exercise of its mandate and, in particular, in its power to elect, renew, and dismiss its officials in positions of trust. The IACHR also calls for full compliance with the Cancun commitment about doubling the budget approved by the General Assembly so as not to backtrack in the capacities for the protection and defense of human rights of the Inter-American Human Rights System. The Commission makes its most energetic call for the defense and respect of these attributions that are essential for it to carry out its mandate preserved from any pressure or interference by means of which it is intended to limit the scope of the tasks of defending, supervising and promoting human rights in the hemisphere independently and autonomously.

Finally, the IACHR reiterates its vote of confidence for the renewal of the mandate of the Executive Secretary, expressing its willingness to dialogue with the Secretary-General and all the bodies of the OAS, to reach a solution that respects the autonomy and independence of the Commission.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

Image source: https://watson.brown.edu/chrhs/people/paulo-abr-o

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