On June 16, 2015, at the 45th Regular Session of the General Assembly of the Organization of American States (OAS) in Washington, D.C., Member States elected four commissioners to the Inter-American Commission on Human Rights (IACHR) and four judges to the Inter-American Court of Human Rights (IACtHR). [IACHR Press Release] These eight positions comprise more than half of the total seats on the Commission and the Court and the outcome of the elections is expected to “affect both the composition and identity of the Commission and the Court for years to come.” [Open Society Foundations Press Release] Only one seat was filled by an incumbent candidate, although several current members were eligible for reelection.
Civil society organizations have criticized both the selection process and some of the outcomes. They urged the OAS to institute a greater role for non-governmental organizations in vetting candidates and advocated for increased diversity and independence among the members of each body, particularly in light of the election of the president of Ecuador’s Constitutional Court, who has been a critic of the Inter-American human rights system. Following last week’s elections, the Inter-American Court includes only one female and no Caribbean nationals, while the Commission lost some of its most active and vocal members. The new commissioners and judges will begin their four and six-year terms, respectively, in 2016.
IACHR Election Results
The following four commissioners were elected to the IACHR for terms that will begin on January 1, 2016, and end on December 31, 2019: Enrique Gil Botero (Colombia), Esmeralda Arosemena de Troitiño (Panama), Margarette May Macaulay (Jamaica), and Francisco José Eguiguren Praeli (Peru).
Commissioner-elect Enrique Gil Botero, a citizen of Colombia, was previously magistrate of the Colombian State Council, a trial lawyer before the Chamber for Administrative Litigation (from 1984 to 2006), a founding member of the Institute for Civil and State Responsibility of Antioquia, and president of the Council of State from April 2008 to February 2009. [IACHR Press Release]
Commissioner-elect Esmeralda Arosemena de Troitiño is a Panamanian citizen. Her prior experiences include serving on the Special Commission for the 2011-2012 Constitutional Reforms in Panama and serving as magistrate of the Supreme Court from 2004 to 2009. Presently, her work includes forming teams of trainers in the accusatory criminal system for the public prosecutor’s office and at the inter-institutional level. See id.
Commissioner-elect Margarette May Macaulay is a citizen of Jamaica and presently works as an attorney in private practice. She also serves as a mediator in the Supreme Court of Jamaica, as well as an associate arbitrator and notary public. She served as a judge of the Inter-American Court of Human Rights from 2007 to 2012, contributing to the formulation of the Court’s Rules of Procedure. See id. Patrick Atkinson, the Attorney General of Jamaica, stated that Macaulay’s seat on the Commission will “allow for the representation of the common-law legal system of the English-speaking and Commonwealth countries, as well as gender balance.” [Jamaica Observer]
Commissioner-elect Francisco José Eguiguren Praeli is a citizen of Peru. He served as the Peruvian ambassador to Spain from 2012 to 2014 and minister of the Office of Justice. He is currently a legal consultant and adviser at both the national and international level, specializing in issues related to constitutional law, administrative law, and human rights. [IACHR Press Release]
The commissioners who will be replaced when their mandates end on December 31 are: Rose-Marie Antoine, Felipe González, Rosa María Ortiz, and Tracy Robinson. The commissioners who will continue to serve on the IACHR are: José de Jesús Orozco Henríquez, James L. Cavallaro, and Paulo Vannuchi, whose terms will end on December 31, 2017. See id.
According to the criteria established in the Statute of the IACHR, the Commission should be composed of seven members who have high moral character and a recognized competence in human rights. Commission members, who are elected by secret ballot of the OAS General Assembly from a list of candidates proposed by governments of the Member States, are elected for a four-year term and may be reelected once. Each government may propose up to three candidates; if three candidates are proposed, at least one of the candidates must be a national of a State other than the proposing State. To be elected, a candidate must obtain a number of votes equal to the majority of Member States; with 35 OAS Member States, a candidate must secure 18 votes.
IACtHR Election Results
The following four judges were elected to the IACtHR for terms that will begin on January 1, 2016, and end on December 31, 2021: Elizabeth Odio Benito (Costa Rica), Patricio Pazmiño Freire (Ecuador), Eduardo Vio Grossi (Chile), and Eugenio Zaffaroni (Argentina).
Judge-elect Elizabeth Odio Benito is an attorney who was vice president of Costa Rica from 1998 to 2002. She served as a justice on the International Criminal Tribunal for the former Yugoslavia between 1993 and 1998 and on the International Criminal Court from 2003 to 2012. She also represented Costa Rica as the country’s permanent representative at the United Nations in Geneva in 1993.
Judge-elect Patricio Pazmiño Freire is a citizen of Ecuador, with a doctorate in law, an international diploma in policy management, and a master’s degree in social science. He is currently the president of the Constitutional Court of Ecuador. Freire has also held other positions in government, including as the national director of legal consultancy, staff attorney general, and general director of economic and social Rights. [CEJIL Elections Press Release]
Eduardo Vio Grossi, a citizen of Chile, was reelected to the Court. Vio Grossi is a member of the National Group of the Permanent Court of Arbitration at The Hague and a member of the “list of conciliators” of the United Nations Convention on the Law of the Sea. He has also held positions with the OAS and the IACHR. Vio Grossi has also held several academic positions. See Biography of Eduardo Vio Grossi, Inter-American Court of Human Rights.
Judge-elect Eugenio Zaffaroni served as a Supreme Court justice in Argentina from 2003 to 2014. Zaffaroni is considered Argentina’s leading expert on criminal law. He has authored draft amendments to the penal codes of Argentina (1991), Ecuador (1969 and 1992), and Costa Rica (1991), and is a professor emeritus and director of the Criminal Law and Criminology Department at the University of Buenos Aires. Zaffaroni has also presided over the United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders (ILANUD). [Buenos Aires Herald]
The Statute of the IACtHR states that the Court should be composed of seven judges who are nationals of OAS Member States, of the highest moral authority, and have a recognized competence in human rights. Judges are elected for six-year terms, may be reelected only once, and no two judges may be nationals of the same State. Each government may propose up to three candidates; when three candidates are proposed, at least one of them must be a national of a State other than the proposing State. The judges are elected by secret ballot by an absolute majority of States parties to the American Convention on Human Rights; with 23 States parties, a candidate must secure 12 votes.
Recommendations from the Independent Panel on the Election of Inter-American Judges and Commissioners
Prior to the elections, the Open Society Justice Initiative convened an Independent Panel on the Election of Inter-American Judges and Commissioners for the purpose of monitoring the IACHR and IACtHR elections. This panel, which was endorsed by more than 70 human rights groups, non-governmental organizations, universities, and legal clinics, was made up of five renowned jurists from the human rights community: Marion Bethel (Bahamas), Belisário dos Santos Jr. (Brazil), Cecilia Medina (Chile), Juan Méndez (Argentina), and Naomi-Roht Arriaza (United States).
In their assessment of the election process, the panel made the following conclusion: “the current process […] does not necessarily generate nominees that are the most highly qualified for the job, nor does it guarantee that the requirements of impartiality and independence are met.” [Open Society Foundations Press Release]
With respect to the national-level selection of candidates, the panel recommended that States create “a formal, independent, and non-political body to select the nominated candidates” that would be broadly representative. The panel also suggested that each State nominate at least two candidates, one of whom should be a woman. Additionally, the panel called for candidates to provide evidence of their compliance with the convention and statutes of the respective body. Independent Panel for the Election of Inter-American Commissioners and Judges, Final Report of the Independent Panel for the Election of Inter-American Commissioners and Judges (2015), 42-44.
The panel advised the OAS to establish an ad hoc Advisory Committee to review the suitability of candidates and to provide guidance to States in the election process, noting that both the European Court of Human Rights and the International Criminal Court have such processes in place. Additionally, the Panel encouraged the election process to consider the need for diversity on the Court, including gender, ethnicity, and sexual orientation. Id. at 44-45.
Criticism about the Election Process and Outcome
The process and outcomes of both the IACHR and IACtHR elections have been criticized on several fronts, including with regard to a perceived lack of transparency, inadequate opportunities for civil society input, and the possibility of electing candidates who are not independent.
A Weakening of the Inter-American Human Rights System
In a speech on strengthening the Inter-American system, Viviana Krsticevic, executive director of the Center for Justice and International Law (CEJIL), highlighted several issues of concern. For example, Krsticevic emphasized the need to address the democratic deficits in the selection process, especially by streamlining the electoral process and making it more transparent, both at the national and international levels. She also argued that Member States should consider the effect of the existing selection process in their respective countries on the legitimacy and effectiveness on the Inter-American system. Additionally, Krsticevic stressed the need to address the gender imbalance on the IACtHR and also noted that the commissioners are expected to undertake “a hefty amount” of work without proper compensation, thereby undermining the Commission’s effectiveness.
Lack of Public Dialogue between Stakeholders and IACHR and IACtHR Candidates
The International Coalition of Human Rights Organizations in the Americas’ request that the OAS convene a dialogue between civil society organizations and candidates of the IACHR and the IACtHR went unanswered by the OAS. Members noted that this lack of response signals a decline in the transparency and legitimacy of the selection process, particularly given that public forums have taken place in the past, including in May 2013, when the OAS held a session with candidates to the IACHR, and, more recently, with candidates for the positions of Secretary General and Deputy Secretary General. [CEJIL Statement of Civil Society Organizations]
The coalition expressed that, given that IACHR and IACtHR decisions directly impact the protection and advancement of human rights in the Americas, the selection of candidates should be scrutinized by relevant actors, including victims, national protection organs, the press, and academics. Such a dialogue would permit relevant stakeholders to inform themselves about the candidates’ policies, evaluate their independence and suitability, and address issues such as diversity and gender equality. They expressed great concern that the OAS did not respond to the call for a convening that would have provided greater transparency, participation, and legitimacy. See id.
The Election of Patricio Pazmiño Freire to the IACtHR
The candidacy and election of Patricio Pazmiño Freire to the IACtHR sparked criticism based largely on the fact that Freire has been a critic of the IACtHR and also that he will likely maintain his position on the Constitutional Court of Ecuador while presiding as a judge on the IACtHR, thereby creating a potential conflict of interest. [El Espectador Blog]
Given that Freire failed to respond to a questionnaire that the above-mentioned panel sent to all IACHR and IACtHR candidates prior to the elections to assess the suitability of each candidate, the panel concluded that while Freire has experience as a judge and has knowledge of human rights, his suitability as an IACtHR judge could not be determined. See Independent Panel for the Election of Inter-American Commissioners and Judges, Final Report of the Independent Panel for the Election of Inter-American Commissioners and Judges (2015), 25-27. The panel’s report notes that there are potential concerns about whether Freire’s qualifications meet the requirements of American Convention Article 52.1, which reads:
The Court shall consist of seven judges… of the highest moral authority and recognized competence in the field of human rights, who possess the qualifications required for the exercise of the highest judicial functions in conformity with the law of the state of which they are nationals or of the state that proposes them as candidates.
An additional basis upon which Freire’s qualifications have been questioned is with respect to the “National Brewery” scandal, which occurred while Friere was serving as President of Ecuador’s Constitutional Court. This incident involved the Constitutional Court’s dismissal of the Attorney General’s formal accusation that the National Brewery, a party in a labor dispute, had bribed judges on the Constitutional Court panel hearing the case. [El Espectador Blog]
Many experts and organizations view Freire as a “Trojan Horse” who will attempt to advance the political agenda of Ecuador and make counter-reforms to the Inter-American system. See id. Specifically Ecuador, along with other countries, has been involved in efforts to defund and marginalize the position of IACHR Special Rapporteur for the Freedom of Expression. [The University of Texas at Austin Journalism in the Americas Blog]
Additional criticism against Freire originates in the fact that he supported the Ecuadorian Law of Communication, which has been criticized by, among others, the Committee to Protect Journalists, the former IACHR Special Rapporteur for the Freedom of Expression, and Human Rights Watch for undermining free speech. [IACHR Press Release; CPJ Press Release; Human Rights Watch]
For these reasons, Ecuador’s interest in putting a judge before the Court has been questioned. Since Freire was nominated as a candidate, at least Ecuadorian 70 jurists and academics, including an ex-judge of the IACtHR, advocated that he not be considered. [El Espectador Blog]
The report issued by the panel of experts concluded that, while neither the American Convention nor Court’s Statute prohibit an individual from serving on the Court while also continuing to serve on a State’s highest court, holding this dual role raises concerns both in terms of workload as well as potential conflicts of interest.
The IACHR addresses human rights conditions and violations in the 35 Member States of the OAS. The Commission has the authority to respond to petitions by individuals, groups of individuals, and non-governmental organizations concerning alleged human rights violations and to request States to take precautionary measures in serious and urgent cases when necessary to prevent irreparable harm. To carry out its mandate, the Commission also holds thematic hearings on areas of concern, publishes studies and reports, makes recommendations to OAS Member States to adopt measures promoting human rights in their constitutions and legislation, and conducts on-site visits. Additionally, the Commission has established several rapporteurships to closely monitor certain human rights themes or the rights of specific communities in the hemisphere.
The IACtHR is an autonomous judicial institution, which may only decide cases brought against the OAS Member States that have specifically accepted the Court’s contentious jurisdiction; these cases must first be processed by the Commission. .