Jeffrey Davis

This book studies how victims of human rights violations in Latin America, their families, and their advocates work to overcome entrenched impunity and seek legal justice. Their struggles show that legal justice is a multifaceted process, the overarching purpose of which is to restore human dignity and prevent further violence. Uncovering, revealing, and proving the truth are essential elements of legal justice, and are also powerful tools to activate the process. When faced with stubborn impunity at home, victims, families, and advocates can carry on their work for legal justice by bringing cases in courts in other countries or in the Inter-American human rights system. These extra-territorial courts can jumpstart the process of legal justice at home. Seeking Human Rights Justice in Latin America examines the political and legal struggle through the lens of the human story at the heart of these cases.

In 1973 the U.S. Supreme Court ruled that education was not a fundamental right, leaving in place systems that continue today to perpetrate vast inequities among school districts. Through a comparative analysis of treaties, constitutions, legislation, and international and state judicial decisions, we demonstrate that education is indeed a fundamental human right, though our constitutional jurisprudence has denied its fundamental right status. We use case studies from Baltimore, a typical city whose residents face economic hardships, to reveal the dire consequences of this ruling. Without the right to an education, schoolchildren in poor systems continue to be deprived of the myriad of human rights that a quality education delivers.

In two cases decided in 2017 the United States Supreme Court announced that enforcing human rights in civil litigation was now “disfavored judicial activity.”  In the first, the Supreme Court rejected a claim by dozens of men detained without cause or judicial review simply because they were believed to me Muslim or Arab after the September 11 terrorist attacks.  In the second, it urged the dismissal of a claim by the family of a Mexican teenager gunned down without cause by a U.S. border patrol agent.  These decisions were the culmination of a decades-long eradication of human rights from American law inspired by the desire to preserve racial oppression and undiluted national sovereignty.  European democracies took a different path after World War II.  While sovereignty, security, and race pressures result in rights violations and loud complaints about human rights, the European Convention and Court of Human Rights has served as a meaningful check.  This paper shows the different paths taken by the U.S. and Europe and explains a cause for this divergence.  While it is part of a larger project examining the marginalization of all human rights, this paper focuses on the obligation to protect and the right to a judicial remedy.  It does so in order to show how the U.S. judiciary has marginalized rights and, thanks largely to the European human rights system, European democracies have preserved them.

This Chapter describes the human rights protections possessed by those suspected of terrorist activities.  It explains that human rights law applies in nearly all counter-terrorism operations, and that even when the law of war applies, suspected terrorists possess fundamental protections.  The analysis explains how the rights to life, to be free from torture, cruel, inhuman and degrading treatment, to fair trials, to judicial remedies, to truth, and to privacy apply in counter-terrorism situations.  The court cases enforcing these rights demonstrate that it is especially important to respect human rights in counter-terrorism cases in order to preserve the ideals of democratic societies governed by the rule of law.

The USA, UK and other nations implemented national security policies and oper- ations after 9/11 that revealed a gap between capabilities and insecurity and estab- lished a gap between counter-terrorism operations and international human rights law. For example, when states prosecute or detain suspected terrorists, they often do so on the basis of secret evidence. This creates a gap between the state’s national security operations and international human rights law protections. I examine how the USA and UK have challenged fair trial rights when prosecuting alleged terror- ists and how domestic, regional and international courts have responded. I demon- strate that international human rights law severely limits governments from prosecuting and detaining terrorism suspects based on secret evidence. Based on this law, I propose rules to attain a balance between national security and fair trial rights. These would narrow the gap between national security operations and inter- national law and, in turn, narrow the gap between capabilities and insecurity.

When those swept up in counter-terrorism operations try to hold governments accountable for rights violations, their efforts are frequently derailed by legal secrecy doctrines such as the state secrets privilege and public interest immunity. This paper shows the effects of legal secrecy doctrines on efforts to hold officials accountable for rights violations in counter-terrorism cases.  It sets out the limits imposed by international human rights law on these secrecy doctrines, and it explores how these limits are handled in U.S. and British courts.  Finally, it sets out requirements in order for legal secrecy practices to comply with international human rights law.

Amnesty laws are perhaps the most formidable barrier to accountability for human rights violations in Latin America.  This Chapter examines how the Inter-American Court of Human Rights (IACtHR) confronted these amnesty laws and the effect of its rulings in these cases. It analyzes the Barrios Altos case, Almonacid-Arellano v. Chile, Gelman v. Peru and Gomes Lund v. Brazil to make the following arguments:
1. The IACtHR established and developed the right to truth through its decisions in these amnesty cases.
2. Through these decisions, the IACtHR enables legal accountability in the nations from which these cases arose.
3. Despite these accomplishments, significant barriers to accountability remain.

In this paper, we examine the role of the Inter-American Court of Human Rights in its efforts to impose accountability for human rights violations in Latin America. We suggest that, because domestic enforcement mechanisms are irreconcilably deficient in this task, accountability must emanate from beyond the state. We test this contention by examining one of the most challenging nations in the region — Guatemala.