Confronting Human Rights violations in Argentinean, Chilean and Venezuelan prisons

Table of contents

1. Introduction

2. The struggle for the rights of the imprisoned people
2.1. Some considerations about the boomerang effect
2.2. The public security issue in a democratic and anomic state
2.3. The situation inside Argentinean, Venezuelan, and Chilean prisons
2.4. The discourse on public security concept
The Manhattan Institute: diffuser of repressive strategies
The civil rights coalition: a defeated coalition?

3. The Interamerican System for the Protection of Human Rights: An essential ally of the civil rights coalition

4. Concluding Remarks

5. Bibliography

1. Introduction

This study will analyse the extremely difficult situation that the convicted population is living in Argentina, Chile, and Venezuela. The importance of this theme is stressed by the paradox that these are democratic countries having submitted various international treatments for the protection of Human Rights. Among them the Interamerican Human Rights Charta of the United Nations and the American Convention of Human Rights (also known as San José Pact), pillar of the Interamerican System for the Protection of Human Rights. Regardless, these countries are still continuously violating the human rights of the imprisoned population that belongs to the poorest and most unprotected class of society. Its situation is ignored by the state, by the mass-media, and by the society that considers them social abnormalities, which deserve to be confined in prison under inhuman conditions.

It is important to remark that the specific issue of the human rights violations inside the prison system has to be seen as one element of the much broader public security debate. In this regard, it is possible to distinguish between two groups or coalitions in Latin American societies. The alliance that aims to protect the rights of the imprisoned individuals from power abuses will be called the civil rights coalition, while its opposition will be called the law and order coalition that supports the strengthening of repressive strategies to increase the public security (Fuentes 2002, 5).

It will be argued that Human Rights violations in Argentinean, Chilean and Venezuelan prisons represent a non-resolved challenge for the civil rights coalition. This is related to the fact that the civil rights coalition (1) has had serious problems to adapt to the present institutional framework characterised by the democratization and the anomie of the state. (2) Furthermore, the civil rights coalition has lost the battle for the dominant public security concept, whereas the law and order coalitions has established its repressive oriented strategy as the dominant perspective to increase public security. (3) For this reasons, the accusation presented by the civil rights coalition before both the Interamerican Human Rights (IHR) Commission and Court, as also the sentences and recommendations pronounced by them, can be seen as a first step to revert the current situation but certainly not as a definite victory of the civil rights coalition.

The theoretical framework of this study is based on the boomerang effect model developed by Thomas Risse and Kathryn Sikkink (Risse/Sikkink 1999). From the theoretical perspective, this study also aims to test the validity and applicability of that model on democratic states. This appears to be of great importance since the boomerang effect was developed to describe the influence of Human Rights NGOs on authoritarian regimes. The here done state analysis is going to show that the boomerang model cannot adequately explain how states that violates human rights can be pushed towards a norm-conform position.

Argentina, Chile, and Venezuela were chosen as case studies mainly because of two reasons: (1) the different violence levels that present these societies. In an imaginary continuous Venezuela would be placed at the most violent extreme, Argentina in the middle, while Chile would be placed at the most peaceful extreme. (2) The other reason is the institutional weakness/solidity (or different grades of state anomie). Venezuela as well as Argentina has institutions characterised by instability, corruption, and inefficiency, while Chilean institutions are considered relatively stable and free of corruption. Nevertheless, it is possible to observe permanent and heavy Human Rights violations in these three countries, independently of their differences and similarities. Thus, this study also shows how the civil rights coalitions deal with these different frameworks. The period of time that will be studied is limited to the beginning of the 1990s until the present (2008).

The study is structured as follows: (1) some theoretical considerations will be approached in the next section; (2) followed by the analysis of the most important institutional changes and their relation with the public security issue; (3) a description of the situation inside the prison system; (4) and the discussion about the public security concept. (4) After that the accusations presented at the IHR System will be discussed in detail (5) followed by concluding remarks in the last section.

2. The struggle for the rights of the imprisoned people

2.1. Some considerations about the boomerang effect

The boomerang model developed by Risse and Sikkink presuppose that the diffusion of international Human Rights norms is facilitated by alliances formed by national non-governmental Organisations (NGOs) with international NGOs or international institutions. These organisations put the none-fulfilling State from the exterior under pressure in order to improve the states fulfilment of international norms. The process of putting the state under pressure is what they call the boomerang effect, which is observable when

„domestic groups in a represive state bypase their state and directly search out international allies to try to bring pressure on their state from outside“ (Risse/Sikkink 1999, 18).

The boomerang effect leads the state to change its position, then (1) it situates the non-fulfilling States in the focus of the international debate on Human Rights, (2) which in turn legitimates the NGOs demands, protects them from being eventually threatened by the accused State, wich makes the creation of human rights organisations possible. (3) The pressure on the non-fulfilling State provokes a change of its human rights policy (Risse/Sikkink 1999, 5). A gradually internalisation and socialization of international Human Rights laws by the accused state – that finally leads to a complete adoption and enforcement of these laws – accompany this process^[1].

A central problem of this model applied to the prison issue is that it presupposes that the national and international civil society is interested in the very difficult situation of the imprisoned people and – more important – that they support the idea that the state is not protecting human rights adequately and in concordance with international law. In consideration of the constant Human Rights violations inside these prison systems this is a questionable supposition. It has been the law and order coalitions, and not the civil rights coalitions, which have imposed its views, namely a repressive oriented strategy.

At this point it is necessary to briefly explain what human rights violations mean for the imprisoned population. The IHR Court has incorporated into its jurisprudence some minimal rights, as

“the state is the guarantor of the rights of the arrested people and (it) has to offer them life conditions according to their dignity” (in Medina 2007, 71*)^[2].

In that very sense a state violates human rights when the jails are overcrowded; when the medical and sanitary services are insufficient: when the security forces use inappropriate force injuring the physical well being of the imprisoned individual or depriving it of its life (Medina 2007, 70).

The following two sections approach reasons why states violate human rights and why during the 1990s the civil rights coalition has not been able to mobilise the civil society and the international institutions with the aim of persuading the state to revert the dramatic situation under which hundred of thousands of imprisoned people suffer every day.

2.2. The public security issue in a democratic and anomic state

It is necessary to explain some characteristics of the Latin American state in order to understand why the civil rights coalitions have not succeeded in changing the state’s policies. They face two difficulties that are not described by the boomerang model: (1) the democratic framework in which human rights violations occur (2) and the weak institutions the state disposes of. Both elements bear important consequences for the success chances of the civil rights coalition.

The international arena plays a central role in the creation of a boomerang effect, as it is the stage where the civil right coalition can present its demands. However, the fact that the analysed states are at least formally democracies makes it much more difficult for them to target the accused State as evidently repressive. From the perspective of the international community – and considering that the typical ideological confrontations of the Cold War disappeared during the 1990s – the problems inside the prison systems are viewed as isolated cases that do not occur systematically, so that they are not worthy to be discussed at the international level. In addition, the recognition as a democratic regime gives the State a much broader bargaining space than authoritarian regimes. They can defend themselves from accusations on diverse international forums trough declarations in prestigious international mass media or through common diplomatic channels (Fuentes 2002, 3-4).

The second aspect that has to be considered are the weak institutions of almost every Latin American state, a phenomenon that is also called anomie. The anomic State is

“A source of disorder. It does not create the conditions for the existence of certainty in relation to its behaviour and orientation, but it rather contributes to disorientate and confuse the citizens. (In this context,) civil servants, judges, and certainly the police are sources of arbitrariness and norm deviation” (Waldmann 2006, 19*).

The state has a twofold inability with respect to the public security issue. On the one hand it is not able to guarantee public security and on the other hand it cannot guarantee the rights of the imprisoned people. In other words, the state is neither protecting the rights of the victims nor the rights of the victimizers.

The anomic state is structurally weak and it has never completely manifested the statehood, which can clearly be observed in the judicial sphere. The public authorities and the judges apply the laws in an arbitrary manner. Moreover, most people don’t trust any kind of public servant. As a consequence of this, the anomic State can not guarantee the pacific living-together and the fulfilment of the human rights norms (Waldmann 2006, 17).

What implications bear these findings for the civil rights coalition? It represents a big challenge since they are not fighting states that deny the legitimacy of international recognised human rights norms (because of its democratic nature), but against states that are not able to adequately implement them. As the chapter dedicated to the Interamerican Human Rights System shows, no matter how strong the Commission and the Court pronounces against the violations, if the state is not able to implement Human Rights oriented policies, no advances will be possible.

2.3. The situation inside Argentinean, Venezuelan, and Chilean prisons

The over-crowding is probably the main problem that the imprisoned population faces in the analysed countries (See table 1). Chile and Venezuela have occupation rates over 100%. Argentina probably also exceeds the actual capacity of its prisons, considering that the official information is incomplete. In addition, a large part of the convicted population has not even been condemned. For example, in Venezuela more than half of the imprisoned may be innocent.

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*All marked citations were translated by the author from Spanish.

^[1] The socialization is characterised by three processes: (1) the adaptation and strategic bargaining process, (2) the argumentation, dialog, persuasion, and shaming process, and (3) the institutionalization and habitualization process (Risse/Sikkink 1999, 11)

^[2] In 2005, the Court failed against Perú and specified that “imprisonment under over-crowding conditions, the isolation in small cells, without ventilation and natural light, without bed nor adequately hygienic conditions, and the solitary confinement or unnecessary restrictions to the visit regime constitutes a violation of the personal integrity (in Medina 2007, 72*).