Truth Commissions

According to Cuya (2001) “investigative bodies created to help societies that have faced serious situations of political violence or internal war, to critically confront with its past, in order to overcome the profound crises and traumas generated by the violence and prevent such events from repeating themselves in the near future. Through the Truth Commissions, they seek to discover the causes of the violence, identify the elements in conflict, investigate the most serious acts of human rights violations, and establish the corresponding legal responsibilities.” In the international sphere, certain requirements have been established with which a Truth Commission must comply. In this way, the Commission must be established by law or another recognized state act in which it must be clearly established that the Commission "[...] does not intend to supplant justice, but rather contribute, as a maximum, to safeguard the memory and tests". In addition, it must be guaranteed that (i) the position of commissioner is irremovable during the term of office; (ii) the persons who hold said position enjoy immunity, and (iii) there is a plurality of opinions among the members of the Commission. All this implies the independence and impartiality of the Commission's work (Medellín, 2004: 46).

According to Medellín (2004: 47) it is necessary to mention that the Truth Commissions, at first, were considered as the most adequate mechanisms to respond to past regimes when there were norms – of self-amnesty, prescription and pardon– that impeded judicial proceedings. However, currently, with the new national and international criteria, which tend to prohibit this type of regulation, the Truth Commissions have acquired a role as a complementary means to the delivery of justice.

The most prominent Truth Commissions have been those of Argentina (National Commission for the Disappeared), Chile (National Truth and Reconciliation Commission), El Salvador (Truth Commission for El Salvador), Guatemala (Historical Clarification Commission), Peru (Truth and Reconciliation Commission) and South Africa (Truth and Reconciliation Commission).

Inter-American Commission on Human Rights

Principal OAS charged with promoting observance and defense of human rights in the American continent. It also serves as a consultative body for OAS on human rights ( OAS, 1948: Article 106).

The IACHR was created in 1959, as an autonomous entity of the OAS. However, in 1967 it was integrated as one of its main organs (Rodríguez-Pinzón, 2004: 174-175). It is headquartered in Washington, DC, and is made up of seven independent experts, who must have high moral authority and a recognized track record in the field of human rights. The experts are elected individually by the Member States of the OAS and will remain in office for four years with the option of being re-elected (Statute of the IACHR, 1960: articles 2-3, 16).

The IACHR exercises its functions at three levels. The first group of functions is exercised in relation to all OAS. The second group of functions is exercised in relation to the Member States that have ratified the ACHR, or another international instrument that grants it the same powers. The third group of functions is exercised in relation to the OAS that have not ratified the ACHR, or any other international instrument that grants it these powers (Statute of the IACHR, 1960: articles 18-20).

The functions of the IACHR can be divided into (Rodríguez Pinzón, 2004: 177-206):

i) Politics. They consist of all those mechanisms –negotiation, political pressure, etc.– that allow you to promote and protect human rights in an OAS. Within the political functions, we find:

Observations or on-site visits. It is the power of the IACHR to carry out visits to the countries with the purpose of verifying human rights in their territory. However, to be carried out the invitation of the State is required.

Reports. It is the power of the IACHR to prepare reports, which can be general, follow-up, thematic or special.

Talks. It is the power of the IACHR to create rapporteurships on a specific topic that it considers important for the region.

Other features. The IACHR has other functions, such as requesting precautionary measures (see Precautionary Measures) and provisional measures (see Provisional Measures), issuing opinions required by OAS and requesting advisory opinions from the Inter-American Court . (see Inter-American Court of Human Rights).

ii) Judicial. It consists of the mechanism to process individual cases for violation of human rights recognized in the DADDH, in the CASH or in other international instruments that grant these powers, against a State that has jurisdiction over the territory where the violations occurred. In relation to the ACHR and other international instruments, it is required that the State in question has previously ratified them, and that the facts have occurred after said act. The knowledge of the cases can come from an individual petition, from an interstate petition, or, the IACHR. To process a case, the IACHR must verify that the judicial protection mechanisms (see Judicial Protection) of the States have been exhausted, that is, the domestic jurisdiction remedies. The IACHR can issue reports on admissibility, non-admissibility, friendly settlement, merits, as well as resolutions to follow up on the recommendations of the reports. Likewise, it can send cases to the Inter-American Court ( see Court rights, Inter-American System, concept of)

Public commissions of human rights

They are established through article 102, section B, of the CPEUM in which it is instituted that the Congress of the Union and the legislatures of the states will establish organisms for the protection of human rights. These organizations are currently known as public human rights commissions and are competent to intervene in cases of human rights violations contemplated by the Mexican legal order, caused by acts or omissions of an administrative nature from any authority. or public servant, with the exception of those of the Judicial Power of the Federation. They are bodies with management and budget autonomy, legal personality and their own assets.

Among its main powers are those of formulating autonomous public recommendations —non-binding (see Recommendation)—, as well as filing complaints with the respective authorities (CPEUM: article 102, section B). The aim is to achieve reparation for the aforementioned violations; denounce through special and periodic public reports on the issues investigated and suggest reforms and modifications to practices, regulations and administrative laws, for a better provision of public services (Fix-Zamudio, 1999: 403). The issues in which these bodies do not have jurisdiction are those of an electoral, labor and jurisdictional nature.

Among the names that have been designated in the different countries we can highlight, Parliamentary Commissioner, Mediateur, Popular Advocacy, Ombudsman, Promoter of Justice, Human Rights Ombudsman, Ombudsman (see Ombudsman), etc.

International Committee of the Red Cross

Independent, impartial and neutral institution focused on the promotion and protection of International Humanitarian Law, which seeks to guarantee a certain degree of protection to the victims of armed conflicts – anyone who whatever their type – and from riots or other internal violence, while serving as a neutral intermediary between the parties involved in such conflicts.

The ICRC was founded in 1863 by five Swiss citizens: Louis Appia, Théodore Maunoir, Gustave Moynier, Guillaume-Henri Dufour and Henry Dunant. On June 24, 1859, more than 40 thousand soldiers were killed or wounded in the Battle of Solferino, between the French and Austrian armies; this fact, witnessed by Henry Dunant, became the starting point of his struggle for international recognition of certain rules governing actions in armed conflicts, and for the establishment of an organization responsible for promoting, disseminating and monitoring the cum enforcement of those rules, which evolved into the ICRC. The nature of the ICRC is, without a doubt, sui generis.

Although, according to Swiss law, it continues to be an ordinary company made up of Swiss citizens, the international community has recognized and granted it, over time, certain powers and mandates that allow it to act specifically in the international arena (Bouvier and Sassòli, 1999: 279-287).

Mandate ICRC comes from, and can be classified, from two sources (Bouvier and Sassòli, 1999: 279-287):

1. Conventional: Powers or responsibilities formally established in an international instrument, among which the following stand out: (i) serving as a neutral intermediary between the parties in conflict; (ii) visit prisoners of war; (iii) provide relief and protection to the civilian population from any type of conflict, and (iv) locate missing persons – whether civilian or military – in order to reunite them with or provide information to their families, among others.

2. ExtraConventional: Those established in other documents that do not constitute international treaties, mainly the Statute of the International Movement of the Red Cross and Red Crescent. These instruments grant a general but highly relevant mandate: to serve as guardian of the norms of International Humanitarian Law, in addition to recognizing the possibility of taking all those humanitarian measures that derive from its role as an independent, impartial and neutral institution.

Main lines of activity ICRC are: (i) providing medical care for victims of armed conflicts; (ii) provide food assistance in conflict zones; (iii) visit the places of detention of prisoners of war and the protected civilian population; (iv) visit and provide material assistance to persons detained for security reasons; (v) assist displaced persons, internally or internationally, due to conflicts; (vi) disseminating and promoting knowledge of the norms of International Humanitarian Law, and (vii) training members of the national armed forces in International Humanitarian Law, among others (Bouvier and Sassòli: 279-287).

Complementarity

Characteristic of the jurisdiction of the International Criminal Court, created by the Rome Statute of 1998. Paragraph 10 of the preamble of the Statute establishes that “[…] the International Criminal Court […] will be complementary to the national criminal jurisdictions”; article 1 reaffirmed this characteristic: “[t]he Court […] shall have a complementary character to the national criminal jurisdictions”, and article 17(1), which deals with questions of admissibility, makes explicit reference to paragraph 10 of the preamble and to the Article 1. The complementarity of the jurisdiction of the International Criminal Court with respect to the jurisdictions, implies that the responsibility to investigate, punish and repair the crimes established in the Rome Statute (that is, the crime of genocide, the crimes of crimes against humanity, war crimes and the crime of aggression, the latter still undefined) is the primary responsibility of the national courts, so that if they are unwilling or unable to investigate and/or prosecute such crimes, the Court Criminal International can hear the case. Article 17 of the Rome Statute explains in detail the meaning and assumptions under which a State “does not want” or “cannot” investigate and/or prosecute.

The complementary nature of the Court's jurisdiction is opposed to the scheme established by ad hoc tribunals (International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda), which have "primacy" of jurisdiction over national courts even without the need to demonstrate the inadequate functioning of national justice (see International Criminal Court; International Criminal Justice, concept of; Ad hoc international criminal courts).

Conciliation

Conciliation is a form of conclusion of the investigation (CDHDF Law: article 40; Internal Regulations of the CDHDF: article 121), it establishes the forms of conclusion of an investigation substantiated by the CDHDF, which consists of an agreement between the party complainant and the authority or public servant to whom the human rights violation is attributed.

Conciliation is a procedural figure, which, together with arbitration and mediation, are alternative forms to the process as conflict resolution. The fundamental difference is that the process culminates in an imperative resolution that resolves the social conflict through the application of the law in which one of the parties is declared the winner for having a better right. In conciliation there is an agreement between the parties in accordance with procedural rules applied by the instance that presides over the conciliation.

It can be interpreted that article 40 of the CDHDF Law, by proposing in its text an informal conciliatory practice, does not refer to the assumption of conciliation provided for in the second section of Chapter VI, of the Internal Regulations of the CDHDF; the application of article 40 of the law would produce the legal effect of the conclusion of the procedure for having been resolved during the process; this interpretation would leave without reference in the law the cited second section of the Regulation; therefore, it must be understood that article 40 is regulated by the section called “Conciliation”, contained in the Regulation.

The regulation of conciliation in the CDHDF law (CDHDF Law: article 17, section III) provides that in order for it to be applied, the express acceptance of the complainant is required (CDHDF Internal Regulations: article 130); the same is required for the conciliation to take effect (Internal Regulations of the CDHDF: article 127, third paragraph). The conciliation agreements will be signed by the inspectors or general directors at the proposal of the deputy inspectors, prior agreement of the president of the CDHDF (Internal Regulations of the CDHDF: article 127, last paragraph). Settlement agreements have a similar structure to Recommendation agreements.

Regarding the substantiation of the procedure, the authority may or may not accept a Conciliation Agreement (Internal Regulations of the CDHDF: article 130, in fine). If you accept it, you must comply with the specific proposals within a period not exceeding 15 business days (Internal Regulations of the CDHDF: articles 131 and 132, second paragraph); the term may be extended at the discretion of the Commission, when so required by the nature of the matter. If the authority does not accept the conciliation or if the term has expired and the authority concerned does not document its compliance, the Commission will continue with the processing of the file.

Conciliation is not allowed when it comes to serious human rights violations (Internal Regulations of the CDHDF: article 127, second paragraph). The CDHDF Regulation considers serious violations of these acts or omissions that involve attacks on the right to life, physical or mental integrity of persons, freedom, security, as well as those that may affect a community. or group of individuals (Internal Regulations of the CDHDF: article 128).