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...article. Villagran Morales the very first case in the history of the Inter-American Court where the victims of human rights violations were children, and the first case ever involving street children before an international adjudicatory body. This article examines the significance of this decision for street children.
A world which abandons its children in the streets has no future; it no longer renders it possible to create and develop project of life.... A world which tries to ignore the precariousness of the human condition inspires no confidence.... It is a world wherein each one survives amongst a complete spiritual disintegration. It is a world that has become simply dehumanized, and which today needs urgently to awake to the true values. (1)
--Judge A.A. Cancado Trindade, The Inter-American Court of Human Rights
INTRODUCTION
On November 19, 1999, the Inter-American Court of Human Rights, in Villagran Morales v. Guatemala, (2) rendered a landmark decision in which the Court found the Republic of Guatemala in violation of several provisions of the Inter-American Convention on Human Rights ("IACHR") (3) on account of the 1990 abduction, detention, and/or murder of five street youths (three of whom were minors). On May 26, 2001, the Court awarded damages totaling $508,865.91 against Guatemala in favor of the surviving relatives of the murdered children. (4) The Villagran Morales case was significant for two reasons. It was the first case involving street children ever to come before an international adjudicatory body. (5) It was also the first case in the history of the Inter-American Court in which the victims of human rights violations were children. (6)
Focusing on the Villagran Morales decision and drawing on subsequent discussion with the National Director of Casa Alianza Guatemala (one of the organizations that filed the petition in the Villagran Morales case), this Article examines the effectiveness of litigation before international human rights tribunals as a strategy for protecting the rights of street children across the globe. (7) This inquiry is relevant because more than six years after this landmark decision, the plight of street children in Guatemala, other Latin America countries, and other parts of the developing world remains bleak. (8) However, international human rights litigation frequently involves difficult choices and trade-offs, and the rewards for the actual victims of abuse often come at a cost. In the context of limited resources, advocates must evaluate the wisdom of pursuing litigation before a regional or international human rights tribunal at the expense of diverting resources from alternative advocacy strategies and important social welfare programs for street children.
In this Article, I argue that international human rights litigation can be a powerful means of political expression and community mobilization for abused and victimized children in developing countries and can result in precedent-setting interpretations of core treaties affecting the rights of children. However, the potential for such litigation to bring about tangible changes in the living conditions of street children is limited by a number of factors, particularly weaknesses in international human rights laws and processes. Moreover, international human rights litigation hardly addresses the core factors that contribute to the street children problem and that frequently shape the experiences of street children, such as underdevelopment, systemic poverty, economic disparities, armed conflict, inequitable socio-economic structures, and discriminatory attitudes--especially discrimination on the basis of race and ethnicity.
The Villagran Morales case signals a welcome turning point in the history of international law's engagement with poor children, (9) suggesting a new willingness on the part of international human rights bodies to subject states' observance of their international legal obligations to heightened scrutiny whenever the interests of children are implicated. However, in the short term, the effectiveness of international litigation as a strategy for improving the lives of street children may be minimal.
The Villagran Morales case could potentially influence national courts, other regional human rights institutions, and the United Nations' human rights bodies. (10) It is, however, unlikely that regional and international human rights bodies will experience a flood of petitions on behalf of street children. There will probably not be a wave of decisions by human rights bodies holding states or individuals in violation of international human rights law as a result of their treatment of street children. This is unlikely for three reasons. First is the continued exclusion of non-state actors from the domain of international human rights law. Thus, when the aggressor is a non-state actor, it is extremely difficult to utilize the regional and international human rights complaints mechanisms to hold that actor responsible. Second, in contrast to civil and political rights, economic and social rights remain neglected and under-theorized in international human rights law. Thus, because most of the deprivations that street children experience are economic and social in nature, the Villagran Morales case may have a limited impact on the actual living conditions of street children. Third, there are a limited number of fora (regional or international) where these children's human rights claims may be brought. Currently, there are only three major regional courts that hear cases concerning human rights violations. (11)
This paper is comprised of five sections. In Section I, I offer a brief overview of the street children phenomenon. In Section II, I introduce the Villagran Morales case. This Section provides a useful background to the street children problem in Guatemala and highlights the core holdings of the Court. In Section III, I analyze the Villagran Morales case with a view toward highlighting its significance in the growing international children's rights law jurisprudence. In Section IV, I examine the limitations of international human rights litigation as a strategy for safeguarding the rights of street children and improving the conditions of their lives today. I offer my conclusions in Section V.
I. STREET CHILDREN--GLOBAL PERSPECTIVE
The phenomenon of street children is a worldwide problem involving both sexes, and is in no way limited to poor countries. (12) In Europe, though some countries deny it, the problem of street children is immediate. (13) In a study of thirty-one countries in Europe conducted by the Council of Europe Study Group on Street Children, (14) only three countries--Cyprus, Liechtenstein, and San Marino--reported a total lack of street children. (15) The Study Group on Street Children predicts that in Europe the problem "is likely to become more and more visible" and that "the situation of street children will deteriorate" in the coming years. (16) Street children are also a feature of urban life in Latin America, where they are regarded with a mix of fear and pity and have increasingly become victims of violence and murder. (17)
Former socialist countries are also seeing rising numbers of street children, some for the first time. In Poland and Hungary, for example, an increase in the number of children living in desolated buildings, cellars and railway stations has been reported. (18) Street children are emerging in Mongolia as well--a fall-out from the economic crisis precipitated by the collapse of the Soviet Union. (19) Systemic poverty, civil strife, and the HIV/AIDS epidemic have led to a surge in the number of street children in Africa. (20)
Who are street children? How many street children are there in the world today? Although the street children phenomenon is a global problem of growing magnitude, there is still little official recognition of this phenomenon and reliable statistics are lacking; in Europe, the Study Group on Street Children notes that "precise knowledge about the phenomenon of street children ... is in general limited." (21)
A. The Problem of Definition: Who is a Street Child?
There is no commonly accepted definition of street children, although numerous attempts to establish one have been made. (22) Underlying these attempts are fundamental disagreements about the relevant criteria for determining who is a street child. (23) The problem of definition is compounded by the fact that the street has different meanings and connotations in different contexts. (24)
Because children craft different relationships with the street, no one definition can capture the totality of the experiences of street children worldwide. A street child may be "of the street" or "on the street." A child "of the street" has no home but the street; (25) such a child may have abandoned or been abandoned by his family, or he may have no surviving family member--a situation increasingly common with the AIDS epidemic. A child "on the street" is one who has not severed all family ties; such a child spends a considerable amount of time on the street but returns home either every night or periodically. (26) Children who are part of street families (in the sense that they live on the sidewalks or city squares with the rest of their families) do not generally fall under the heading of "street children" for research and advocacy purposes. (27) They are differentiable both in the sense that they definitively lack any alternative and in the sense that they stay with their families. Their concerns are more likely to be dealt with under the heading of homelessness and poverty in general. This should not be taken to mean that homelessness among young people is not a problem: in Belgium, for instance, the number of children registered each year in homeless shelters (along with their parents) accounts for twenty percent of the total. (28)
B. The Problem of Numbers: How Many Street Children Are There?
There are few accurate statistics on the number of street children in the world today. This problem is not limited to developing countries. In Europe, the Study Group on Street Children found that precise knowledge about the phenomenon of street children in Europe was limited (29) and that "[t]here [were] no reliable statistics, although estimates of the number of street children are available in some countries." (30)
In the mid 1990s, the World Health Organization (WHO) and the United Nations Children's Fund (UNICEF) estimated the number of street children to be about 100 million worldwide. (31) No more recent statistics on the number of street children worldwide exist, which in itself indicates how national, regional and international policy makers have neglected the issue. (32) No new statistics on the number of street children were offered at a September 2005 hearing on the growing problem of street children held by Representative Christopher Smith (R-NJ), Chairman of the Subcommittee on Africa, Global Human Rights, and International Operations. (33) Estimates of the number of street children worldwide depend on a variety of factors including the identity of the person counting, (34) whether the study is conducted by a government or a non-governmental agency, (35) the definition of street children adopted by those doing the counting, (36) and the time of the day or season of the year during which such surveys are conducted. (37)
II. THE VILLAGRAN MORALES CASE
A. Background on Street Children in Guatemala
Street children have long been a problem in Guatemala. The problem persists although Guatemala has ratified the United Nations Convention on the Rights of the Child ("CRC") (38) and despite the requirement of article 51 of the Guatemalan Constitution that the State protect the physical, mental, and moral health of minors and guarantee their rights to food, health, education, security, and social welfare. (39)
An estimated five thousand children live on the streets of Guatemala. (40) There do not appear to be any official statistics on the number of street children in Guatemala, but in its 2000 report to the United Nations Committee on the Rights of the Child, the Government of Guatemala noted that "[a]ccording to various organizations, there are between 3,500 and 5,000 street children" in the country. (41) In this report, the government admitted that "[t]he number of street children has increased in recent years." (42) According to Human Rights Watch, "[s]ixty-five percent of Guatemala City's street children and youth are between the ages of ten and seventeen. Most of the rest are eighteen or older, with only about 3 percent younger than ten." (43) A majority of the street children in the country live in the downtown area of Guatemala City and approximately ten to fifteen percent are immigrants from neighboring Central American countries, especially Honduras and El Salvador. Life on the street is grim for Guatemalan street children. In general, "[s]treet children have little or no education and their health is poor; they suffer from conditions such as malnutrition, anaemia, chronic and acute respiratory infections, gastro-intestinal diseases, dental caries, and sexually transmitted diseases. Many of them take drugs, sniff glue or solvents, drink alcohol, and smoke." (44)
Street children in Guatemala face routine beatings, thefts, and sexual assaults at the hands of policemen and private security guards. (45) In the late 1980s and early 1990s, the murder and torture of street children was not uncommon, and these practices continue to some extent today. (46) According to Human Rights Watch, during a 1996 investigation nearly every child the organization spoke with reported experiencing habitual assaults and thefts by the police. "These assaults occurred on busy city streets in broad daylight, on quiet streets in the middle of the night, in alleys and deserted areas, and in police stations. Often, they were witnessed by passersby or other police officers." (47)
The experiences of street children in Guatemala are not unique. Across the globe street children experience the worst forms of exploitation, abuse and neglect. (48) Frequently charged with offenses such as loitering or vagrancy, street children are prime candidates for police round-ups. (49) Police round-ups are carried out ostensibly because the police believe the children are "in need of protection." (50) However, more often than not, police round-ups and accompanying forced institutionalization are attempts to hide the problem instead of addressing it. In Latin America, death squads and police officers routinely comb the streets of cities to carry out "social cleansing." (51) In Egypt, mass arrests of street children are very common; beatings and sexual abuse while in police custody have also been widely reported. (52) As the September 2005 hearing on street children by the Subcommittee on Africa, Global Human Rights, and International Operations reveals, "[s]ome children are murdered by vigilantes, used by criminal gangs or become child soldiers. Others are trafficked and exploited sexually and for forced labor. Those left are often incarcerated in adult prisons, where they are victimized even further." (53)
B. Genesis of the Villagran Morales Case
On June 15, 1990, four street youths (54)--Henry Giovanni Contreras (age 18), Federico Clemente Figueroa Tunchez (20), Julio Roberto Caal Sanoval (15), and Jovito Josue Juarez Cifuentes (17)--were abducted and driven away in a pick-up truck manned by heavily armed men, two of whom were later identified as officers of the National Police Force (NPF) of Guatemala. The bodies of the four youths were later discovered in San Nicholas Wood on June 16, 1990. In all four cases, the official cause of death was identified as injuries produced by gunshots to the head. (55) Ten days later, on June 25, another street child, Anstraum Aman Villagran Morales (17), was killed by a gunshot in the "las Casetas" sector of Guatemala City by people identified as members of the state security force.
Although criminal charges were filed in Guatemala against the two policemen implicated in the kidnapping and murder of the youths, the men were eventually acquitted after considerable delays. (56) On September 15, 1994, Casa Alianza (57) and the Center for Justice and international Law (CEJIL) (58) filed a petition with the Inter-American Commission on Human Rights, (59) alleging that Guatemala had violated several provisions of the IACHR. On October 16, 1996, the Commission found Guatemala in violation of the relevant provisions of the IACHR. (60) The Commission allotted a two-month period for Guatemala to implement the recommendations. On January 30, 1997, upon the expiration of the two-month period, the Commission submitted an application against Guatemala to the Inter-American Court.
C. The Villagran Morales Case
The question before the Court in Villagran Morales was whether the Guatemalan government had violated Articles 4, 5, 7, 19, 8 and 25 of the IACHR.
1. Violation of Article 7 (Right to Personal Liberty): Did the abduction and arbitrary detention of the five youths amount to a violation of Article 7 in relation to Article 1.1? (61)
Article 7 guarantees to every person "the right to personal liberty and security" (62) and provides in the relevant part that no one "shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto." (63) This provision also expressly prohibits arbitrary arrest or imprisonment. (64) Guatemala did not offer any defense with regards to allegations of Article 7 violations. (65) The Court accepted as proven the fact that former officers of the National Police Force, Nestor Lopez and Samuel Valdez, had abducted four of the youths. (66)
Finding Guatemala in violation, the Court noted that there was both a material and a formal aspect to Article 7 guarantees. (67) Emphasizing the particular importance of Article 7, (68) the Court held that neither aspect of the legal rules pertaining to detention was observed in the detention of the four youths. The Court observed that the murdered youths were not arrested pursuant to "an order issued according to law by a competent judicial authority," that the boys were not "caught infraganti while committing a crime or offence," and that they were not promptly "brought before [a] competent judicial authority." (69)
2. Article 4 (Right to Life): Did Guatemala violate Article 4 in relation to Article 1.1 of the Convention? (70)
Article 4 of the IACHR guarantees to "[e]very person," "the right to have his life respected." (71) In finding Guatemala in violation, (72) the Court emphasized the fundamental nature of the right to life (73) and the fact that some of the victims were minors. (74) Adopting a broad interpretation of the right to life, the Court read Article 4 to implicate both a negative and a positive obligation on States Parties. In the opinion of the Court, States Parties have an "obligation to guarantee the creation of conditions required in order that violations [of the right to life] do not occur and, in particular, a duty to prevent its agents from violating" this right. (75) The Court stressed the "particular gravity" of the case due to the age of the victims and the fact that "the conduct of the State not only violated the express provisions of Article 4 ..., but also numerous international instruments, that devolve to the State the obligation to adopt special measures of protection and assistance for the children within its jurisdiction." (76)
3. Article 5 (Right to Humane Treatment): Did Guatemala violate Article 5 in relation to Article 1.1? (77)
Article 5.1 provides that "[e]very person has the right to have his physical, mental, and moral integrity respected." Article 5.2 goes on to provide that "[n]o one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment," and that "[a]ll persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person."
The Court determined that there are two aspects to the Article 5 guarantee: the victim's perspective and the victim's family's perspective; the Court held that Guatemala had violated Article 5 on both levels. From the victim's perspective, the Court found, based on circumstantial evidence, that Guatemala had violated the right of the children to have their physical, mental, and moral integrity respected and also their right not to be subjected to torture or cruel, inhuman, or degrading treatment. (78)
As for the victims' families' perspective, the question was whether the circumstances of the youths' deaths caused their next of kin anxiety and fear amounting to a violation of Article 5. (79) There was evidence that the next of kin were never formally notified of the victims' deaths and that when the families inquired about their loved ones, state officials tried to intimidate them. (80) One woman learned of the death of her son from a local newspaper and another heard about her son's death only eight days later from another street child. (81) There was also ample evidence that national authorities did not take adequate measures to establish the identity of the victims; some of the victims remained registered as "XX" until their relatives came to identify them. (82) The Court concluded that there were acts of omission and commission that, taken together, amounted to a violation of Article 5 with respect to the families of the victims. (83)
4. Article 19 (Rights of the Child): Did Guatemala violate Article 19 of the IACHR by not taking adequate preventative and protective measures on behalf of the three victims who were minors?
Article 19 provides that "[e]very minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state." (84) The skeletal nature of Article 19 posed a potential problem for the Court. The IACHR does not define the term "child" nor does it define the nature of protection that is owed to minors. (85) The Court bypassed these lacunae and found Guatemala...
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