Based on our own experience in litigation before the Inter-American System of Human Rights, in this article we argue that the primary strength of the Inter-American Court has been and will continue to be providing a forum where victims can make the moral weight of their words heard. They are the ones who turn from victims into victors when they tell their stories.
Who do we represent? That is one of the fundamental questions that SUR asks in this edition. A question – challenge.. It is something that we human rights defenders from the Global South often fail to ask.
Do we represent, before the high courts of international justice, the voice of mute victims of human rights violations? Do we act, as in reverse ventriloquism, by saying what we would like our clients to say?
Based on personal experience in the proceedings before the Inter-American System of Human Rights, in this article we argue that we haven’t done either one. We have not lent our voice to the victims, because they have their own. We don’t speak for them, but rather with them.
We also maintain that the primary strength of the Inter-American Court has been and will continue to be providing a forum where victims can make the moral weight of their words heard. They are the ones who turn from victims into victors when they tell their stories.
The role of human rights defenders is simply to open up a space so that this can happen, and, at most, to join our voices to those of the victims in order to call for justice.
Rather than call ourselves representatives, we should call ourselves partners.
In its 35 years of history, the Inter-American Court of Human Rights (hereafter Inter-American Court) has become a regional space where the most pressing issues of American continent reality are discussed from the perspective of rights. Its legal advances have allowed for new developments in human rights theory and practice, and they draw on the contributions made by the parties during litigation.
The Inter-American Commission and the Inter-American Court base their decisions on methods of interpretation that follow the Corpus Iuris of international human rights law, and the legal arguments of the parties, in general, are grounded in frequent references to the standards generated through the jurisprudence of the same Inter-American System and other systems for the protection of rights.
It is no less relevant to point out, however, that the Inter-American Court offers victims of human rights violations on the American continent an opportunity for their cases to be verbally and publicly argued before a court. The hearings allow fresh air to come in where topics that are uncomfortable for societies and states have been guarded. The fact that cases are aired in the presence of the Court and under the gaze of the media and any spectators who wish to follow the hearings either there in the room or through the webcast, which is now a requirement in the Inter-American System of Human Rights, helps to reveal situations that are often otherwise hidden from public scrutiny in order to protect those responsible.
Just the fact that a hearing is held is, by itself, restorative for the victims (BERINSTAIN, 2009).
When the Inter-American Court holds a hearing, it opens up a privileged space where people whose human dignity has been undermined by the violation of their rights, as recognized in the American Convention on Human Rights, can appear before that high court and tell their truth.
For example, a particularly significant moment in the history of the fight for justice for the victims of the dictatorships in the Southern Cone was Macarena Gelman’s declaration before the Inter-American Court, in a hearing held in Quito in November 2010.
She described the circumstances of her birth, which happened while her mother was being held by her oppressors, the suppression of her real identity when she was given by the perpetrators to a new family to be raised as their own daughter. Her encounter as an adult with her grandfather, her continued ignorance of her mother’s whereabouts, and the impacts these have had on different dimensions of her life (CORTE INTERAMERICANA DE DERECHOS HUMANOS, Caso Gelman v. Uruguay, 2011).
No less powerful it must have been, years before, in 2004, when the mothers of three children killed in the fire at the “Panchito Lopez” child re-education center in Paraguay spoke at the hearing before the Inter-American Court. With how much pain they must have told the judges who then comprised the Court about the overcrowding and extreme abuse that their children suffered in that institution, until a fire put an end to the ancient building and to the lives of nine children, including their own (CORTE INTERAMERICANA DE DERECHOS HUMANOS, Caso Centro de Reeducación del Menor v. Paraguay, 2004).
In every one of the cases that has had a hearing in the Inter-American Court, there must have been people who, with broken hearts, uncovered the recesses of human evil through their testimonies. The voices of the victims, which are, without a doubt, the new voices of human rights on our continent, have been heard by the judges with respect and empathy. Just by doing this, the Inter-American Court has justified its existence before history.
In July 2011, the author of this article had the privilege, together with Viviana Krsticevick, the Director of Center for Justice and International Law – CEJIL of representing the Kichwa people of Sarayaku, in the Ecuadorian Amazon, in a hearing before the Inter-American Court, as part of a case against the State of Ecuador.
The facts of the case are related to the concession granted by the Ecuadorian state for an oil project that affected 65% of the peoples’ ancestral land. The community of Sarayaku was not informed, consulted, or asked for consent in the granting of this concession.
The presence of the oil company in Sarayaku brought violence, pain, and sacrifice for the people of the village, and the destruction and deterioration of parts of nature that were particularly significant for the worldview and spirituality of their ancestors. Sacred trees were felled, and the very soil of the jungle, across 20 square kilometers, was drilled and planted with explosives in order to conduct seismic explorations in search of oil.
It is hard to imagine a scene less familiar to the daily lives of the indigenous peoples, whose traditional home is the Amazon jungle, and whose culture and worldview set them apart from modern white-mestizo society, than the courtroom of an international tribunal. Nevertheless, a delegation of 20 Sarayaku people, including men, women, youths, the elderly, and a baby born only a few months prior, made it there, overcoming all kinds of difficulties, in order to be there at the key moment when the representatives of the Ecuadorian government would answer for everything the community had suffered.1
To reach that point, they had to pursue a seven-year process before the Inter-American Commission of Human Rights, and another year and a half before the Court. But for Sarayaku, awaiting justice was worth the trouble.
In my opinion, the most important moment in the litigation of Pueblo Kichwa de Sarayaku v. Ecuador was when Don Sabino Gualinga, yachak, the spiritual leader of Sarayaku, got up on the witness stand to give his declaration before the Court, with steady steps despite his 92 years of age.
Don Sabino had to testify in order to reveal to the judges something that his people do not like to talk about. Only he could show the court the most painful and disturbing side of the drama that resulted in the unwanted presence of an oil company in their territory. No other type of evidence used in the Court could attest to the deepest dimension of the damage committed against the village: when strangers entered, protected by armed military personnel, to plant in Mother Earth – in 467 places, 12 meters down, and 100 meters apart – a total of 1,433 kilograms of high explosives, in order to set them off in search of oil (CORTE INTERAMERICANA DE DERECHOS HUMANOS, Caso Pueblo Indígena Kichwa de Sarayaku v. Ecuador, 2012, para. 101).
When the witness responded to questions about the impacts of the oil company activities on Sarayaku territory, Don Sabino said that half of the “lords of the jungle were no longer there. Sarayaku is a living land”, he said,
it is a living forest. There are trees and medicinal plants and all kinds of beings… Many hid, others died when it burst. They are the ones who maintain the jungle, the woods. If there is too much destruction, the mountains will also collapse … All of those who wish to cause damage, they don’t understand what they are doing. We do understand it, because we see it.2
He also told the story of another yachak, the old man César Vargas, whose tree of power, known as Lispungo, was destroyed by the oil workers:
Mr. Cesar Vargas had his lands in a place called Pingullo, and he lived there with his trees; there, woven like threads was his way of curing. When they felled this Lispungo tree it made him very sad (…) When they cut down that big Lispungo tree that he used as threads, he became very sad, and his wife died, then he died, and a son also died, and after that another son died, and now only two daughters are left.
(CORTE INTERAMERICANA DE DERECHOS HUMANOS, Caso Pueblo Indígena Kichwa de Sarayaku v. Ecuador, 2012, nota 290).
The Court weighed his testimony and determined that for the Sarayaku, the company’s destruction of sacred trees, such as the “Lispungo” tree, was a violation of their worldview and cultural beliefs. The damages caused by the oil operation in Sarayaku territory meant that “according to the beliefs of the People, the spirit owners of that sacred place left the site, thereby bringing sterility to the place and the permanent disappearance of the animals from that area, until the spirituality of the place is restored” (CORTE INTERAMERICANA DE DERECHOS HUMANOS, Caso Pueblo Indígena Kichwa de Sarayaku v. Ecuador, 2012, para. 218).
That was not the first time that a witness explained to the Court the impacts that human rights violations have on the spirituality of traditional peoples. For example, in the hearing for Moiwana v. Surinam, witness Erwin Willemdam recounted how community members would be able to return to live in a place once there was justice for the family members who were killed in a massacre.
The community members believe that while those who died at Moiwana are not vindicated, their souls will not be at peace. Furthermore, as long as their bodies do not receive a proper burial, this will bring negative consequences upon the living. The witness is fearful of these angry spirits.
(CORTE INTERAMERICANA DE DERECHOS HUMANOS, Caso Moiwana v. Surinam, 2005).
It is not often that those who administer justice in Western judicial systems hear from witnesses who maintain that the damages also include the death or disappearance of spiritual beings, or the angering of the spirits of their ancestors. The judges of the Inter-American Court not only listened, but also tried to understand and gauge the pain that it caused people to feel that the spiritual beings in whom they place their faith and trust to maintain harmony and order have abandoned them, or that the violent, unjust, and unpunished death of their loved ones makes the spirits of their ancestors angry and turns them into a threat. In those cases, the Court considered those elements when declaring the states’ responsibilities for having violated human rights, and when determining reparations.
In the Sarayaku case, the Court recognized
the importance that sites of symbolic value have for the cultural identity of the Sarayaku people, and for their worldview, as a collective entity; several of the statements and expert opinions presented during the proceedings indicate the strong bond that exists between the elements of nature and culture, on the one hand, and each member of the people’s sense of being.
(CORTE INTERAMERICANA DE DERECHOS HUMANOS, Caso Pueblo Indígena Kichwa de Sarayaku v. Ecuador, 2012, para. 219).
(…) The Court considers that the failure to consult the Sarayaku people affected their cultural identity, since there is no doubt that the intervention in and destruction of their cultural heritage entailed a significant lack of respect for their social and cultural identity, their customs, traditions, worldview, and way of life, which naturally caused great concern, sadness, and suffering among them.
(CORTE INTERAMERICANA DE DERECHOS HUMANOS, Caso Pueblo Indígena Kichwa de Sarayaku v. Ecuador, 2012, para. 220).
It was a historic moment when, after the public hearing held in 2011, the Inter-American Court decided to go to the village of Sarayaku on April 21, 2012. It delegated its Chief Justice, Diego García Sayán, and Judge Radhis Abreu to go to the community and hear the testimonies of the residents in their own territory. That was the first time that the judges had gone to the homes of victims to talk with them.
The visit was extraordinary. José Gualinga, Tayak Apu (President) of Sarayaku, put things in perspective in his welcoming remarks when he said that his people had been waiting for that day since time immemorial, because when the tayak, or the mythical founders of the community, came down the Bobonaza river to the place where the village sits today, they took ayahuasca and had a vision that one day some wise chiefs would come there to resolve a serious problem facing their people. That is why they founded Sarayaku on that site.
The Court heard the declarations of the residents of Sarayaku, men and women of all ages. For the first time in its history, the highest court of justice in the Americas heard from indigenous victims in their own territory. In doing so, the Inter-American Court took a leap forward in fulfilling the principle of immediacy. There, the Ecuadorian state also acknowledged its responsibility, and the community of Sarayaku held an assembly the same day to determine its response to the judges and to the state, accepting and acknowledging the admission, but asking the Court to issue the expected ruling.
It requires tremendous effort for a victim to take legal action at the national and international level. The first victory is in filing a complaint, overcoming the feelings of fear, shame, and helplessness that often weigh on those who have suffered acts that cause serious harm to their own human dignity or that of their loved ones. Activities like denouncing the perpetrators before the authorities and following up on the case help the person reconstitute their personality after a violation of their rights.
When there is a group of victims, like in the Sarayaku case, the process of standing up for their rights has helped the members of the group to strengthen social cohesion and hold on to their ethnic identity.
When the oil company personnel and the soldiers came into the jungle between 2002 and 2003 to place explosives, the people of Sarayaku had to face an armed invasion of their territory. To do so, they formed Camps of Peace and Life: small groups of community members, including mothers with small children, who went through the jungle to intercept parties of oil company workers and armed personnel, risking their lives in order to try to prevent them from destroying their land.3
The misery they suffered, the insults, threats, aggressions, and relentless pressure from the oil company and from different state authorities who did not overlook any opportunity to pressure, belittle, and discredit them for their anti-oil position, which was portrayed as being against the “national interest”, undoubtedly left a deep mark on both their individual and collective identities.
The proceedings before the Inter-American judicial system helped Sarayaku to channel the need for recognition and justice in a positive, creative and non-violent manner, thanks to the leadership role assumed by their leaders, and the permanent engagement of their members.
The hearings that were held in the Court headquarters in San Jose, Costa Rica, and in the community of Sarayaku, felt, somehow, like an end point. Pursuing the case for almost a decade without being defeated by the costs, the distances, or the difficulties, felt justified at that moment when the people of the village could tell their truth while looking into the faces of the representatives of the state that could not protect them, and that turned over their sacred lands behind their backs to a company that would turn it into an oil field.
My impression is that the significance of that act, of bringing an end to the cycle through a ritual of saying before the judges what one had carried inside for almost an entire lifetime, is best illustrated through the story of Rumi.
When Rumi’s mother, a leader of the community in 2003, stood up to lead a group of women in the Camps of Peace and Life, Rumi was only eight years old and would walk through the jungle with his hand in hers. Another young man in Sarayaku was an amateur filmmaker studying communication; he managed to document the militarization of his village with a video camera, turning it into the documentary I am the defender of the jungle (SOY DEFENSOR…, 2003), which was used as evidence before the Inter-American Court, and which has also won several international prizes. The documentary ends with an image of a small boy who has the phrase that became the film’s title written across his bare chest.
Nine years later, in the Assembly House of Sarayaku, where the Inter-American Court heard the case, a 17-year-old boy was called to the stand. Like most of the boys his age in the community, he was dressed in jeans, a t-shirt, and sneakers. Only his face paint and the llauto or headband that he wore revealed his ethnicity. As he took the five steps from where he was sitting to where he would testify, face to face with the judges, with the state representatives on his left and his community’s lawyers on the right, he paused and before a crowd of photographers, took off his t-shirt and prepared to make his voice heard. Like that, with a bare chest, just like the camera captured him when he was a boy accompanying his mother to defend their territory.
He didn’t say it and didn’t need to, but that virile, ancestral gesture tuned us in to the significance that moment had for him. Without a doubt, that declaration, being able to say what he was thinking and feeling after a young life full of struggle, represented the end of a cycle and an opportunity to move forward.
Since the beginning, the Inter-American System of Human Rights has been a meeting place. Judges, commissioners, and lawyers who have been trained in the common law tradition meet and work shoulder-to-shoulder with colleagues who have been trained in the continental European legal tradition.
States and victims meet there, in a difficult, conflictive, but always fruitful dialogue mediated by the bodies of the System, the Commission and the Inter-American Court.
Languages meet there. The legal language of the lawyers and judges comes together with the language of experts from other disciplines—psychologists, anthropologists, doctors, economists, etc… – that help resolve the cases. The languages of activism and of the press are also found there.
But most of all, we find the language of the victims, those who speak firsthand about their pain, their suffering, their cry for justice. The language of those who were tortured, of the family members of the disappeared, of the elderly who unjustly lost their pensions or their jobs, of the indigenous and those from other traditional communities. The language of women and that of men. That of adolescents and that of children. All of them are the languages of human rights.
The richness of this exchange of experiences strengthens the victims by making them feel that they are not alone. Their defenders are there with them, less to represent them than to be their comrades in the struggle.
1. To learn more about the presence of the Sarayaku delegation at the Inter-American Court hearing in July 2012, I recommend that you watch the documentary “Children of the Jaguar” (LOS DESCENDIENTES…, 2012).
2. We recommend that you watch Don Sabino Gualinga’s complete testimony in the video posted by the Inter-American Court. Available at: http://vimeo.com/26136863. Last accessed in: Feb. 2014.
3. See the testimony of Marlon Santi in the hearing before the Inter-American Court in San Jose, Costa Rica. Available at: http://vimeo.com/28835695. Last accessed in: Feb. 2014.
Bibliography and other sources
BERINSTAIN, C.M. 2009. Diálogo sobre la reparación. Quito. Ministerio de Justicia del Ecuador.
LOS DESCENDIENTES del Jaguar. 2012. Dirección: Eriberto Gualinga, Mariano Machain, David Whitbourn. Producción: Sarayaku y Amnistía Internacional. Equador/Inglaterra. (29 min). Available at: http://www.youtube.com/watch?v=MisSLxg7vLk&hd=1. Last accessed in: Feb. 2014.
SOY DEFENSOR de la selva. 2003. Dirección: Eriberto Gualinga. Producción: Comunidad de Sarayaku y Eriberto Gualinga. Equador. (20 min). Available at: http://www.youtube.com/watch?v=gvYwTmO6gZM&hd=1. Last accessed in: Feb. 2014.
CORTE INTERAMERICANA DE DERECHOS HUMANOS. 2004. Sentencia de 2 de septiembre, Caso Centro de Reeducación del Menor v. Paraguay.
______. 2005. Sentencia de 15 de junio, Caso Moiwana v. Surinam.
______. 2011. Sentencia de 24 de febrero, Caso Gelman v. Uruguay.
______. 2012. Sentencia de 27 de junio, Caso Pueblo Indígena Kichwa de Sarayaku v. Ecuador.