Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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No Justice = Get Lynched?!

Kia Roberts-Warren

When a community feels that there is no justice, what should they do? In the United States, citizens’ have taken to protesting. We’ve had the Civil Rights Movement, Women’s Liberation Movement, Black Lives Matter, and the recent Women’s March. However, what happens when a country’s citizens are constantly disappointed in their government and police authority? When they have lost trust and faith in the judicial system? Traditionally, in many Latin American countries people have taken up vigilante justice. However, this vigilante justice is not a man/woman dressed in a costume fighting to keep their neighborhood safe; it is lynchings. Lynchings are acts of violence against individuals that usually result in death.[1] These lynchings are not being committed by criminals, nor crazed individuals, but by normal citizens/communities that come together as vigilante groups.[2] Lynchings started back in 2007 in many Latin American countries.

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Serving Some Good Old Fashion Vigilante Lynchings

Today, it has been reported that Guatemala, Bolivia, and Peru are dealing with an increase of vigilante lynchings.[3] Also, the Côte d’Ivoire has seen a rise in vigilante lynchings.[4] The victims are usually tortured, in order to force them to reveal the names of any accomplices.[5] They are beaten, mutilated, stoned, shot, or burned alive before being hung.[6] These victims are taken after being suspected of committing a crime, with many  victims  taken from home or the workplace.[7] In Latin America, men are mainly the victims but there have been a few cases involving women and children.[8] However, in the Côte d’Ivoire, children are mainly the victims due to their association in street gangs.[9]

In countries like Bolivia and Guatemala, there has been an argument that vigilante lynchings can be linked to indigenous people (there is a high population of indigenous people). However, many experts have attacked this argument because “indigenous justice” rarely includes death as a punishment.[11] ItIndigenous justice tends to focus on “righting the wrong” committed by the wrongdoer through manual labor and in extreme cases expulsion from the community.[12]

Cash Me Ousside, How Bow Dah?

In Guatemala, for example, from 2008 to October 2015, 297 died and 1,043 people were injured from lynchings.[13] The National Civil Police (PNC) reported that, of the 84 people who died at the hands of lynch mobsfrom January 2012 to May 2015, 76 were men and 8 were women.[14] Often vigilante lynchings are linked to the corruption and ineptitude of the police authorities.[15] A robbery, for example, often illicits no response or slow and ineffective response from the authorities and, therefore, the crime is never solved.[16] In the Côte d’Ivoire, violent crimes committed by street gangs have sparked vigilante lynchings of suspects.[17] In Bolivia, impunity of government officials responsible for human rights violations are the reason for vigilante lynchings.[18] In March 2016, a mentally disabled man was burned then lynched because a mob had suspected him to be a criminal.[19]

One major  problem with vigilante lynchings is that often many of the victims are innocent. For example, in Bolivia, a 54-year-old grave worker was mistaken for a grave robber by five Bolivian men visiting a grave.[20] He was tied, beaten, and hung, and, by the time he arrived at the hospital, he was declared dead.[21] In Peru, a local prosecutor’s son, was beaten, burned, and hung to death after being mistaken for a thief.[22]

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What Can Be Done?

A big problem is that lynchings usually go unpunished. This is due to the many different actors involved and the code of silence the community takes once the lynching is done.[23] In Bolivia, the prosecutor’s office is still investigating 12 lynchings from 2013.[24] There have only been a minimal number of lynching cases that have been resolved by the judicial system.[25] The idea of “People’s Justice” seems to control. [26]  Therefore, the government must do more to restore the people’s confidence that the authorities and judicial system can and will resolve crimes.

Guatemala recently submitted its country report to the Inter-American Commission for Human Rights. The Commission’s recommendations were underwhelming and not very helpful. It stated:

“The Commission urges the State to adopt a comprehensive policy for preventing   and combating lynchings. The State must provide a prompt, coordinated and interinstitutional response in places where lynchings could be committed. There must be a rapprochement between the State and the communities, and the Government must have with a prevention policy, and the political will to enforce it. There must also be collaboration with municipal authorities, traditional indigenous authorities, and the Ombudsman’s Office.”[27]

 

This vague recommendation doesn’t help to guide Guatemala. It is merely a reiteration of things that Guatemala should be doing. The Organization of the American States is a regional legal organization. Its influence and presence could help countries like Guatemala, Peru, and Bolivia and make them more accountable. It would also let the people know that there is somewhere they can put their trust in besides themselves. In the Côte d’Ivoire, the government has taken steps to remove the word “microbe” (“germ”) to describe children in gangs.[28] However, it has not come up with an effective and comprehensive strategy to put this change into effect.

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Alejandra Maria Torres sits bloodied on a street after being beaten, doused with petrol and set on fire during a lynching in Guatemala City

In the case of Latin America, it seems that a more international presence is needed to help reduce corruption and train police authorities in resolving crime. A great way to do this is to use the Organization of the American States since it is a regional organ. The same can be suggested of the African Union with the Côte d’Ivoire. These regional organizations are a part of the international community. Therefore, if they help these countries with vigilante lynchings it gives them more legitimacy and validity, but also helps to promote international law and security.

An example of the Organization of the American States taking lead would be to have the Inter-American Human Rights Court take a case on the vigilante lynchings since a case has yet to go before the court. However, the lynchings are being committed by non-State actors who are not acting under the State’s control or permission. Therefore, police officers who are in the crowd and fail to act can be tried. The police officers are State actors who are failing to act when they have a legal duty to do so. So, the omission of acting would be attributable to the State.

Kia Roberts-Warren is a 3L at UB Law. She is concentrating in international law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in international trade and human rights. She is also interested in fashion law and art law in the international context. Last year, she held the position of Career Development Director of the International Law Society and participated in the 2016 Philip C. Jessup Moot Court Competition. She recently attended UB’s Aberdeen Summer Abroad Program. 

[1] http://www.oas.org/en/iachr/reports/pdfs/Guatemala2016-en.pdf

[2] Id.

[3] https://www.pri.org/stories/2014-01-24/lynching-still-common-practice-across-latin-america

[4] https://www.hrw.org/world-report/2017/country-chapters/cote-divoire

[5] http://www.oas.org/en/iachr/reports/pdfs/Guatemala2016-en.pdf

[6] Id.

[7] Id.

[8] Id.

[9] https://www.hrw.org/world-report/2017/country-chapters/cote-divoire

[10] https://www.pri.org/stories/2014-01-24/lynching-still-common-practice-across-latin-america

[11] Id.

[12] Id.

[13] http://www.oas.org/en/iachr/reports/pdfs/Guatemala2016-en.pdf

[14] Id.

[15] https://www.pri.org/stories/2014-01-24/lynching-still-common-practice-across-latin-america

[16] Id.

[17] https://www.hrw.org/world-report/2017/country-chapters/cote-divoire

[18] https://www.hrw.org/world-report/2017/country-chapters/bolivia

[19] Id.

[20] https://www.pri.org/stories/2014-01-24/lynching-still-common-practice-across-latin-america

[21] Id.

[22] Id.

[23] https://www.pri.org/stories/2014-01-24/lynching-still-common-practice-across-latin-america

[24] Id.

[25] Id.

[26] http://www.worldcrunch.com/culture-society/lynching-in-latin-america-why-colombia-vigilante-mobs-are-spreading

[27] http://www.oas.org/en/iachr/reports/pdfs/Guatemala2016-en.pdf

[28] https://www.hrw.org/world-report/2017/country-chapters/cote-divoire


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A Twisted Tale of Legitimacy – The ICJ’s Decisions in Latin America

Maya Zegarra

By agreeing to become member states of the United Nations (UN), states have accepted the legitimacy and authority of the International Court of Justice (ICJ). Chapter XIV of the UN Charter establishes the ICJ, as the “principal judicial organ of the United Nations”[1]. In fact, article 92 requires all members of the UN to comply with the decisions of any case to which they are a party.[2] Also, article 36 of the ICJ Statute states that the court has jurisdiction by special agreement or when member states agree to it. Additionally, article 2(3) of the UN Charter, requires all members to settle international disputes by peaceful means. In Latin America, most states have even gone a step further and have agreed to the jurisdiction of the ICJ via the Pact of Bogotá (April 30, 1948), agreeing that Latin American states should settle any disputes peacefully through the ICJ.

Peace-Palace

In theory, this seems to be a fair structure: a State agrees to be part of the UN, and therefore agrees to adhere to its Charter, which recognizes the ICJ as its highest judicial order. However, in practice, some states who were either unsuccessful or in disagreement with the ICJ’s decision in their case have rejected the ICJ’s ruling, questioned its legitimacy, or have gone as far as withdrawn from the ICJ’s jurisdiction.

On January 18, 1985, the U.S. informed the ICJ that it had withdrawn from the proceedings of Nicaragua v US,[3] arguing that the “the Court lack[ed] jurisdiction and competence.”  In 1986, the ICJ entered its decision on this case and found the U.S. in violation of international law, stating that the U.S. was “in breach of its obligations under customary international law not to use force against another State.”[4] The U.S. contested ICJ jurisdiction, claiming that the ICJ could not hear cases arising under multi-lateral treaties, and finally U.S. withdrew its consent to the Court’s compulsory jurisdiction.

On December 6, 2001, Nicaragua filed an application to introduce proceedings before the ICJ in order to determine whether Nicaragua or Colombia had sovereignty over a number of islands in the San Andrés Archipelago (Western Caribbean) and to determine the maritime boundaries between Colombia’s and Nicaragua’s continental shelf. This dispute goes back to the early 19th century, when Latin American states were fighting for their independence from Spain. On December 13, 2007, the ICJ delivered its opinion and concluded that the court had jurisdiction, under article XXXI of the Pact of Bogotá[5], and ruled that a group of the disputed islands belonged to Colombia, but extended Nicaragua’s maritime limits.

NicCol

Nicaraguan President, Daniel Ortega, gratefully stated, “The court has given to Nicaragua what belonged to us: thousands of kilometers of natural resources”. Meanwhile Colombian President Juan Manuel Santos openly rejected the ICJ’s judgment and stated that the ruling “cannot be implemented” claiming that new international borders can only be established by bilateral agreements.[6] Finally, President Santos decided to take extreme measures and announced that he was pulling Colombia out of the Pact of Bogotá, renouncing its membership on November 27, 2012.

On January, 27, 2014, the ICJ issued its judgment regarding the maritime dispute between Peru and Chile, which dates back from the Pacific War of (1879-1883). The ICJ decided that a maritime boundary already existed between Peru and Chile, and created a new method not offered by either party to create the demarcation.[7] The ICJ created a starting point (Marker 1) and a parallel maritime boundary line that extended 80 nautical miles (Point A), and then extended the boundary to 200 nautical miles (Point B), then dropped down the border at a Point C, where the maritime boundary would end for both states.

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Because the ICJ did not use the solutions proposed by either Peru or Chile, the judgment was received with nationalist reactions by both states. Former Chilean President, Sebastián Piñera said he “profoundly disagree[d] with the decision…and the economic loss of an area of between 20,000 and 22,000 km2 in favor of Peru.”, while the current President, Michelle Bachelet, stated this was a “grievous loss.” Peruvian President Ollanta Humala stated “the country will benefit from the exploitation of one of the richest marine areas in the world”. However, unlike in the Nicaragua-Colombia conflict, both states have agreed to implement the ICJ’s ruling gradually.

A more controversial case is Bolivia v. Chile, which is currently pending before the ICJ. Bolivia hopes to reclaim coastal access to the Pacific Ocean that it had lost after the Pacific War. Bolivia is requesting the ICJ to compel Chile to negotiate, in good faith, an agreement that would grant Bolivia access to the Pacific Ocean.

Bolivian President Evo Morales Ayma speech delivered on March 23, 2013 stated: “The sea we are claiming as a matter of justice is a sea for the people […] a sea for the Great Fatherland; the Bolivian people shall never renounce the sea, Bolivia shall never be at peace so long as the maritime issue remains unresolved, because giving a solution to this kind of issues is a part of integration”.[8] In fact, Chilean President Bachelet stated on national television that Chile will contest the ICJ jurisdiction in this case.[9] This is despite the fact that Chile had already accepted the ICJ’s judgment in the Peru v. Chile case.

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It is reasonable and understandable for a State to defend its sovereignty; this is in fact a well-known principle of international law, which supports the idea that a State has the ability to exercise control over its land and people. However, it is important to remember that International Law is based on consent and, importantly, good faith (pacta sunt servanda). If States agree to be bound by an agreement or treaty, it is central that they actually follow through and act according to what they have already agreed. The UN Charter and the Pact of Bogotá have acquired legitimacy because parties have voluntarily accepted them and agreed to act based on them.

The ICJ was created to help states peacefully resolve their conflicts and states agreed to be bound by the ICJ’s decisions. So, it is vital that countries who agreed to be bound by an agreement or treaty, act according to the principle of pacta sunt servanda (“agreements must be kept”). After all, international law has been created from the free will of states as expressed in conventions or by usages generally accepted as laws (i.e. customary international law). Withdrawing participation from the ICJ in these types of situations gives the impression of adopting a sore-loser attitude – if a country cannot win before the ICJ, then they will stop participating. When this happens, it chips away at the legitimacy of the ICJ and stops international law from advancing.

 

Maya Zegarra is a third-year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a concentration in International Law. She has a Sociology degree, and is fluent in Spanish, German, English and French. Maya grew up in Peru and attended a German high school, where she participated in a student exchanged program and lived in the Baden-Württemberg area in Germany for four months.

During the summer after her first year of law school, Maya studied abroad in France, where she focused on French Law, European Union Law, and Comparative Fundamental Rights. While in France, she interned with an international and criminal defense attorney. Most recently, she participated in the Annual International Humanitarian Law Seminar, hosted by University of Virginia Law, in March 2014. Her primary interests are international law and international humanitarian law. Through her internships Maya has worked on cases related to asylum, refugee, and immigration law.

In addition to being a Fellow at the Center for International and Comparative Law, Maya currently serves as the Publications Editor for the Journal of International Law, President of the Latin American Law Student Association, Vice-President of International Law Society, Treasurer of the Immigration Law Association, and 3L Representative of the University of Baltimore Students for the Public Interest. Maya is also a Maryland Rule 16 Student Attorney at the Immigrant Rights Clinic.

 

[1] U.N. Charter art 92.

[2] U.N. Charter art 94.

[3] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).

[4] Id.

[5] American Treaty on Pacific Settle “Pact of Bogotá”, Apr. 30, 1948, 449 U.N.T.S. 30.

[6]  UN ruling gives Colombia isles but Nicaragua more sea, BBC (Nov. 19, 2012), http://www.bbc.com/news/world-latin-america-20391180.

 

[7] Peru v. Chile, 2014 I.C.J. 137 (Jan. 27).

[8] Minister of Foreign Affairs of Bolivia, The book of the Sea 6 (Strategic Management For Maritime Vindication Edition, 2nd rev. ed. 2014).

[9] Bachelet: Chile will challenge ICJ jurisdiction in Bolivia case, The Santiago Times (Jul. 8, 2014), http://santiagotimes.cl/bachelet-chile-will-challenge-icj-jurisdiction-bolivia-case/.