INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
ORGANIZATION OF AMERICAN STATES
IN THE CASE
SALAS ET AL.
CASE 10.573 (UNITED STATES)
Karen Parker, J.D.
Attorney for Amici Curiae
Legal Assistant for Amici Curiae
BRIEF OF AMICUS CURIAE
Humanitarian Law Project/International Educational Development, Disabled Peoples' International and Karen Parker resectfully submit this brief amicus curiae.
INTEREST OF AMICI
Humanitarian Law Project/International Educational Development (HLP/IED) is a non-sectarian, non-governmental organization granted consultative status at the United Nations by Dag Hammarskjold. HLP/IED advocates and promotes world-wide compliance with human rights and humanitarian law. The organization has sent many missions to war-torn areas including El Salvador, Guatemala, Mexico, Turkey, Sri Lanka, Croatia, Kashmir, and Indonesia to investigate compliance with the Geneva Conventions and international human rights law standards applicable in war-time. It has published a number of reports and has presented voluminous testimony at the United Nations human rights bodies. The United Nations has published more than 25 HLP/IED written statements. The organization has presented the situation of war-wounded combatants to the Inter-American Commission on Human Rights. The organization has a strong interest in this case due to its focus on full realization of humanitarian and human rights law rights.
Disabled Peoples' International (DPI) is a non-profit organization of persons with physical, sensory and mental impairments founded in 1981 to obtain full participation and equality for disabled persons in all societies. DPI's members include disabled national legislators, judges, scholars and leaders of international renown. DPI has consultative status at the United Nations and actively participates in United Nations forums. DPI petitioned the Inter-American Commission on Human Rights on behalf of the victims of United States armed attacks in Grenada. (Disabled Peoples' International, et al. v. United States, Case 9213, 1987 Inter-Am. C.H.R. 184). DPI has a strong interest in full compensation for all victims of armed conflicts and an especially strong interest in this case due to its similarity to DPI's Case 9213.
Karen Parker is an attorney specializing in human rights and humanitarian law. She represented DPI in Case 9213 at the Inter- American Commission on Human Rights and from 1982 - 1994 represented DPI at the United Nations. She has represented HLP/IED at the United Nations since 1989, has gone on numerous investigative missions for the organization and has presented issues to the Inter-American Commission for the organization. She has represented Sierra Club Legal Defense Fund at the United Nations since 1989 and is counsel on a petition before the Inter- American Commission brought by CONFENIAE on behalf of the Huaorani Nation. She has been accepted as an expert witness on international law before the Tokyo High Court (Japan); the Court of Norway (Olso second instance); before the United States Magistrates in San Francisco; in immigration proceedings in Harlingen, Texas; San Francisco, California; Los Angeles, California; Washington, D.C.; Baltimore, Maryland; Omaha Nebraska; and in several state courts in California. (See, e.g. In the Matter of Santos-Gomez, Immigration Court for Washington, D.C., Case #A29564-781, 785, 801 at p. 3, citing Fed. R. Evid.) Her views on international law have been cited in several judicial opinions, including Von Dardel v. Union of Soviet Socialist Republics, 623 F. Supp. 246 (D.D.C. 1985); In the Matter of Jesus del Carmen Medina, Immigration Court for Harlingen Texas, Case # 26 949 415 (1985); and In the Matter of Santos-Gomez, Immigration Court for Washington, D.C., Case #A29564-781, 785, 801 (1990) on issues now before the Inter- American Commission in this case. She has written more than 30 statements published by the United Nations (NGO series), has testified at hearings of the United States Congress and is widely published in legal and other scholarly publications on issues relevant to this case.
The activities and experience of amici give them a unique perspective on and substantial interest in the issues before the Inter-American Commission. For these reasons amici submit this brief amicus curiae.
STATEMENT OF CASE
The Inter-American Commission on Human Rights (Commission) admitted Petitioners' case. (Salas, et al. v. United States, Case 10.573, 1993 Inter-Am. C.H.R. 312 (Admissibility))
This brief addresses two issues presented by this case: (1) whether the United States violated the rights of Petitioners established in the American Declaration of Rights and Duties of Man (American Declaration) and the laws and customs of war in the course of armed attacks on their country by Respondent government; (2) whether the Respondent Government is obligated to compensate Petitioners for those acts.
STATEMENT OF FACTS
On December 20, 1989, twenty-four thousand U.S. troops invaded Panama in a military mission, code-named "Operation Just Cause" with simultaneous attacks on supposed military targets in Panama. According to eyewitnesses, however, U.S. troops fired indiscriminately at people and neighborhoods throughout Panama.
The U.S. claims that onlyb 516 Panamanians were killed of which 202 were civilians. However, the United Nations (UN) puts the death toll at 500; the Central American Human Rights Defense Commission (CODEHUCA) and the Peace and Justice Service of Panama both claim between 2,000 to 3000; the Panamanian National Human Rights Commission and an independent inquiry by former Attorney- General Ramsey Clark claim over 4,000. Thousands were injured. Credible sources indicate that the U.S. troops continued acts of violence when military resistance had ceased.
Experts stress that the lack of sufficient training of U.S. soldiers contradicts any United States claim of concern for civilians. Edward Litvak, strategy chair at the Center for Strategic and International Studies, points out that the high numbers of civilian casualties as well as in the excessive destruction of civilian property was a direct result of both inappropriate fighting methods and inadequate training:
The extensive destruction of civilian housing seen by TV viewers around the world was not caused by specific tactical errors. It resulted rather from an entire style of fighting that is based on abundant firepower in place of tactical skill -- a style that might be suitable for large-scale conventional war but which was utterly inappropriate in Panama....This grossly excessive use of firepower was partly the result of questionable command decisions, but mostly it reflected the state of training. Even though U.S. troops are now all professionals, they are still the product of a "shake and bake" training system designed to quickly mass-produce large armies of draftees for large-scale continental war. Instead of the 30 weeks and more of basic training for new British recruits, instead of the 22 weeks of the Israelis, U.S. Army and Marine recruits have 10 weeks to remedy all inadequacies.... [S]kill levels and tactics remain rudimentary. Instead of cat- like movements of the well-trained infantryman, instead of the sparing use of firepower that marks the well- trained force which can rely on tactical skill, TV viewers around the world saw the results of an out- dated system of mass-production training: troops certainly brave and willing to do their best -- but visibly clumsy and much too ready to fire with any and all weapons. (Edward N. Litvak, Just Cause -- A Military Score Sheet, Wash. Post, Dec. 31, 1989, at C4).
As a result of "Operation Just Cause," the U.S. Army Center for Lessons Learned published a three-volume series documenting the difficulties inherent in urban warfare. (Caleb Baker, Study: Panama Underlines U.S. Need to Prepare for Urban Fight, Defense News, Dec. 3, 1990, at 43). Major Dave Buckley, an analyst at the Center for Lessons Learned, who assisted in the preparation of the report, stated: "We had always practiced for war in the European scenario, where the battlefield was always clear before we went in. Now we are fighting on a battlefield with [civilians]. Who do you engage and who do you not engage with your weapon system? That is the biggest lesson learned." (Id.) One recommendation of the report is that U.S. commanders use civilians in future training exercises. (Id.) Buckley "noted some Army commanders are considering using family members or hiring civilians to act as non-combatants in training exercises." (Id.)
I. RESPONDENT GOVERNMENT COMMITTED BOTH HUMAN RIGHTS AND HUMANITARIAN LAW VIOLATIONS
Documents provided amici by counsel in this case support Petitioners' claims of deaths, injuries and damage to property caused by military personnel under the control of the Respondent Government. In addition to evidence of civilian casualties in residential areas, the information indicates that the Respondent Government failed to assist those wounded or sick. The Respondent Government also failed to disclose deaths, leaving family members to try to find their relatives. In some instances, persons were found in a common grave at Jardin de Paz cemetery. Information provided amici also indicates that the Respondent Government destroyed private residences, often by purposefully burning them. Amici assert that these claims state violations of the American Declaration of Rights and Duties of Man (American Declaration) and the laws and customs of war or humanitarian law.
In denying liability, Respondent Government improperly attempts to persuade the Commission that the American Declaration and the laws and customs of war are themselves at war. (Communication of Respondent Government of 14 January 1991 (as provided to Petitioners) at pp. 2, 6-9; Communication of Respondent Government of 26 October 1994 (as provided to Petitioners) at pp. 10 - 12). The gist of the Respondent Government's argument is that human rights law applies only in peacetime and is therefore irrelevant to the situation in Panama presented by Petitioners. Shockingly, the Respondent Government also seems to maintain that if its war in Panama were "justified" and therefore not inconsistent with general international law, then neither human rights violations nor humanitarian law violations occurring in that course of that conflict are actionable. (Communication of Respondent Government of 14 January 1991 (as provided to Petitioners) at pp. 3 - 6; Communication of Respondent Government of 26 October 1994 (as provided to Petitioners) at pp. 3 - 5). These communications show fundamental errors relating to humanitarian law and human rights law. The human rights standards established under the American Declaration apply at all times, whether in peacetime or war. (See, e.g. General Assembly Resolution 2675 (XXV) of 9 December 1970 (G.A. Res. 2675), Operative Paragraph 1: "Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply in situations of armed conflict.") The American Declaration does not contain any language that suspends its operation in whole or in part in time of war. The American Convention on Human Rights allows a State Party to make certain suspension of some rights "in time of war, public danger, or other emergency that threatens the independence or security of a State Party." (American Convention, art. 27). The United States is not a State Party of the American Convention of Human Rights and may not therefore invoke its Article 27.
Humanitarian law applies in all circumstances where there is armed conflict, whether between two or more countries or internal to one country. It is clearly invoked when there is a military invasion of one country by another. In addition to the general laws and custom of war binding an all nations, most countries, including Respondent Government, are State Parties to the Hague Convention of 1907 (The Laws and Customs of War on Land (Hague IV) and Annexed Regulations, Oct. 18, 1907, 1 Bevans 631)(The Hague Convention or Hague Regulations) and the Geneva Conventions I-IV of 1949, 75 U.N.T.S. 31, 85, 135, 267.
Application of the laws and customs of war to a situation also governed by human rights law creates an interplay between the two bodies of law. In certain circumstances, the laws and customs of war allow acts that would violate human rights if committed in peacetime. Accordingly, those war-time acts usually would not result in human rights liability. In this regard, the laws and customs of war provide certain suspension of human rights even for governments, such as Respondent Government, that are not parties to the American Convention. On the other hand, acts prohibited by the laws and customs of war are almost always subject to full liablity under human rights law as well as full liability under the laws and customs of war.
Amici will set out their opinion on the law of the the right to life and the right to property as they interrelate in humanitarian law and human rights law. Amici will apply the principles of jus cogens and obligations erga omnes to this question.
A. Respondent Government Clearly Violated The Right To Life And Related Rights Protected By The American Declaration And The Laws And Customs Of War
Article I of the American Declaration protects the right to life, liberty and security of the person. The right to life is non- derogable. (American Convention, Article 27). The right to life, however, is one right that is subject to some modification in time of war. While in peacetime and in war the right to life is considered non-derogable, it is subject to exceptions. One exception is a lawful application of the death penalty for adults with sufficient mental competence. In war, the right to life of soldiers in lawful combat and the right to life of civilians in certain circumstances is excepted or suspended. Because of this universal understanding of the laws and customs of war, the exceptions to the right to life in war-time must supersede peace- time interpretation Article I of the American Declaration.
Amici note that Respondent Government has correctly stated that the American Declaration does not take precedence over the laws and customs of war. However, amici strongly opposes Respondent Government's preposterous conclusion that therefore human rights standards do not apply at all: to take precedence does not mean to completely abrogate or annul. The actual rule is that the right to life not excepted by the laws and custom of war remains intact.
Petitioners' claims do not require the Commission to "eclipse" the laws and customs of war as Respondent Government contends. (Communication of Respondent Government, Oct. 26, 1994 at p. 11). In fact, the opposite is true: Petitioners' claims allow Respondent Government to eclipse the peace-time right to life in circumstances where the laws and customs of war allow it. Accordingly, the laws and customs of war must be consulted to establish if a war-time claim of right to life under a human rights instrument is tenable. If a death or injury claimed by Petitioners was caused by a military activity in conformity with the laws and customs of war (sometimes referred to as " a lawful act of war"), then that death or injury is not actionable under Article I of the American Declaration. On the other hand, if a death or injury claimed by Petitioners was a result of a violation of the laws and customs of war, then that death or injury is actionable under Article I of the American Declaration and would also constitute a breach of the laws and customs of war.
In order to show that Respondent Government's acts causing deaths and injuries to Petitioners violated the laws and customs of war it is essential to understand the concept of lawful military operations under the laws and customs of war. Lawful combat means a military operation necessary to defeat enemy military forces unless specifically prohibited or limited. Only the military forces or facilities or objects of the enemy whose destruction would provide a distinct military advantage of the enemy and which are not subject to specific prohibitions or limitations may be targets of military action. Pictet refers to this principle as the "ratione loci" restriction. (Jean Pictet, The Principles of Interntional Humanitarian Law, Int'l Rev. Red Cross 54 (1966)(Principles).)
Military necessity means that the military action, if successful, would provide an articulable military advantage weighed against the cost (materiel and personnel) to the perpetrating forces. Pictet refers to this as the "ratione conditionis" restriction. (Pictet, Principles at 55). Thus, even military actions by soldiers against enemy soldiers could be viewed as illegal if the gain was only marginal and the cost of life and materiel heavy. One modern example of such an illegal military operation occurred in the Iran-Iraq war when the Iranian army used thousands of poorly trained youths in "human wave" assaults against Iraqi forces when the best that could be gained was a few inches of desert. In this instance, the right to life is not excepted, and the Iranian government should be held accountable for violations of the right to life of its own soldiers. Another modern example occurred in the United States/Iraq war when the United States forces carried out a military operation against fleeing, retreating Iraqi soldiers after the war, for all practicable purposes, had been already won by the United States. The United States should be held accountable for deaths occurring from this operation.
The right to life of civilians is only partially excepted in time of war. A basic rule of humanitarian law is that wars are not fought against the civilian populations: the civilian population must be not be the object of military operations or exposed to undue dangers of war. This is the customary principle of war-time civilian immunity.
The principle of war-time civilian immunity has been a part of the laws and customs of war for at least several centuries. Jean Pictet refers to the immunity principle as the "ratione personae" restriction to the rules of war. (Jean Pictet, Principles at 52).
Professor S.E. Nahlik refers to the rule arising especially from the works of the great scholars of the Siecle de Lumieres. (S.E. Nahlik, The Role of the Geneva Protocols in the Progress of the Law of Armed Conflicts, in European Seminar on Humanitarian Law 11, 15 (ICRC 1979).) Of these early scholars, Pictet cites Suarez for his depiction of the civilian population as the "innocents" and Vitoria for the rule that civilian casualties must be accidental. (Pictet, Principles at 52-3). The Lieber Code states the rule of civilian immunity as of 1863:
All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage, or sacking even after taking of a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under penalty of death, or such severe punishment as may seen adequate for the gravity of the offense. (Lieber Code, Art. XLIV).)
The Hague Convention also addresses civilian immunity, condemning, inter alia, "attacks or bombardments, by whatever means, of towns, villages, dwellings or buildings which are undefended" (Art. XXV), and protecting civilian lives, honour, property and religion (Art. XLVI).
Geneva Convention IV of 1949, 75 U.N.T.S. 287, the first convention in humanitarian law solely to address civilians, reinforces the protections of the civilian population under the laws and customs of war by expanding on the existing rules of the Hague Convention and the customary law of civilian immunity. While the whole of Geneva Convention IV is of relevance to Petitioners' cases, Articles 3 and 147 are particularly pertinent: Article 3 provides basic protections for the civilian population; Article 147 provides that wanton killing and injuring of civilians is a grave breach (war crime). The International Court of Justice, in its opinion Military and Paramilitary Activities In and Against Nicaragua, 1986 I.C.J. 14 (Nicaragua), stated that Article 3
constitutes a minimum yardstick, in addition to the more elaborate rules, which are to apply in international conflicts; and they are rules which reflect what the Court in 1949 called "elementary considerations of humanity [in the Corfu Channel case]". (p. 114).
Amici agree with Respondent Government that Articles 48 and 51 of Protocol Additional I "reflect principles of customary international law" regarding civilian immunity. (Communication of Respondent Government, Oct. 26, 1994 at p. 8). Article 48 provides
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
Similar language is found in operative paragraphs 2-7 of G.A. Res. 2675, and is used by the International Committee of the Red Cross in its listing of basic rules. (See, e.g. Basic Rules of International Humanitarian Law to be Used by Red Cross and Red Crescent First Aiders 14 (Geneva 1985).) In addition to Articles 48 and 51, amici maintain that Articles 49 - 50 and 52 - 59 of Protocol Additional I also reflect customary international law relating to civilian immunity.
Pictet describes duties under the "rationae personae" restriction as follows:
Belligerents will take all precautions to reduce to a minimum the damage to which non-combatants will be subjected in actions directed against military objectives.
Such precautions will consist, for example, in carefully selecting military targets from which the civilian population will be removed, directing attacks with the utmost precision, refraining from bombing zones and encouraging measures of civilian defense. (Pictet, Principles at 53).
In spite of the principle of war-time civilian immunity, all civilian deaths or injuries do not constitutue violations of the laws and customs of war. In amici's view, the general rule is that civilian deaths that are incidental to an otherwise legal military operation are not violations of the laws and customs of war. On the other hand, a military action targeting civilians or or carried out with wanton disregard for civilian casualties in proportion to military gain violates the principle of civilian immunity.
For instance, the death of a civilian resulting from a military operation against a military facility of the enemy when that civilian happens to be there by chance would ordinarily not constitute a violation of the right to life in times of war. This would be viewed as an "inadvertant", "incidental" or "accidental" casualty. On the other hand, civilian casualties resulting from attacks on civilian hospitals, homes or neighborhoods would violate the right to life in war and therefore also under human rights law. Likewise, a civilian casualty arising from a military action undertaken in spite of a strong probably that high civilian casualties would result, even if against an otherwise legal military target, is not excepted and therefore would constitute a violation. Such would be the case if there were a military action against a military facility known to house large numbers of civilian refugees.
Amici also stress that the right to life is a norm of jus cogens. (Disabled Peoples' International et al. v. United States, Case 9213, 1986-1987 Inter-Am. C.H.R. 184; Roach et al. v. United States, Case 9647, 1986-1987 Inter-Am. C.H.R. 167; See also Karen Parker & Lyn Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int'l & Comp. L. Rev. 411 (1989)(Jus Cogens), citing inter alia Gormley, Ramcharan, Wako, Ribero, Abi-Saab, Tunkin, Alexidze.) Scholars also refer to the right to life as imposing obligations erga omnes on states. Ribero urges:
"[T]he right to life . . . is one of the rights universally recognized as forming part of jus cogens and entailing, on the part of States, obligations erga omnes toward the international community as a whole." (A.V. Ribero, Report on the Implementation of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, U.N. Doc. E/CN.4/1987/35 (1987)).
The status of the right to life as jus cogens and as imposing obligations erga omnes on states means that the duty of warring parties to protect civilians from the dangers of war is especially strong. As a minimum, states must provide meaningful training to its military forces in how to avoid civilian casualties. Military plans should include adequate consideration for potential civilian casualties, and contain civilian evacuation procedures as well as plans for emergency medical attention to all wounded or sick civilians. In this light, amici stress again that Articles 57 and 58 of Protocol Additional I to the Geneva Conventions state the current law and customs of war. Accordingly, these provisions are in substance binding on Respondent Government even though the Protocol has not been ratified by Respondent Government. These articles set out a number of precautionary measures in attacks (Article 57) and the effects of attacks (Article 58) that must be undertaken by states at war. Civilian deaths occuring when there has not been meaningful advance training and provision or precautionary measures should be considered prima facie "wanton" for purposes of the right to life.
Examples of civilian casualties not excepted by the laws and custom of war abound in the material presented amici by Petitioners. The death of a civilian "held by soldiers [sh]ot in head and back at close range" (Case 112: Florentino Espinoza Rodriguez as presented by Petitioners) cannot possibly be an "incidental" casualty. The death of a young female civilian who was visiting in a hospital maternity ward (Case 3: Elizabeth Ramos Rudas) likewise cannot possibly be an "incidental" casualty. A civilian killed in his own home (Case 72: Omar Everto Martinez) cannot be viewed as an "incidental" casualty.
Amici also note several cases in which the bodies of dead civilians were either hidden or buried in mass graves without consulting next of kin or public authorities. (See, e.g. Petitioners' brief of January 1995). An aspect of the right to life under the laws and customs of war is a duty by the parties to conflicts to "facilitate the steps taken to search for the killed and wounded . . . and to protect them against . . . ill treatment. (Geneva Convention IV, Article 16). It appears that this aspect of the right to life in war-time has been violated by Respondent Government.
Amici finally point out that there is compelling evidence that the Respondent Government failed to properly train its military force regarding protection of the civilian population and that its military plans did not adequately provide for the protection of civilians. Amici also agree that there is compelling evidence that Respondent Government failed to take minimum precautionary measures. (See, e.g. Commander Charles A. Allen, Implementing the Limitations on the Use of Force: The Doctrine of Proportionality and Necessity, 86 Am. Soc'y Int'l L. Proc. 39, 58 (1992)).
Amici conclude that civilian casualties and injuries allegedly suffered by Petitioners are not defendable by the laws and customs of war. Rather, these casualties show direct violation of and a wanton disregard for armed conflict laws. Amici maintain that because the acts in question are not allowed by the laws and custom of war, they cannot be used to eclipse the right to life, liberty and security of the person as set out in Article I the American Declaration.
B. Respondent Government Violated The Right To Property As Protected By The American Declaration And The Laws And Customs Of War
Article XXIII of the American Declaration protects the right to property. This right is subject to derogation under the American Convention. However, Respondent Government is not a party to the American Convention and accordingly may not take advantage of its Article 27 to defend against claims of violation of the right to property.
THe right to property also exists in under the laws and customs of war and can ce called the civilian property immunity rule. Amici urge the Commission to pay particular attention to the Hague Convention of 1907 regarding the protection of property: "The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended aris prohibited" (Article XXV) and "[P]rivate property . . . must be respected." (Article XLVI). Additionally, Geneva Convention IV, Articles 18 - 20 set out exacting rules on the protection of of medical facilities. Amici also point out the protection of civilian property provided in G.A. Res. 2675, operative paragraphs 5 and 6:
5. Dwellings and other installations that are used only by the civilain populations should not be the object of military operations.
6. Places designated for the sole use of civilians, such as hospital zones or similar refuges, should not be the object of military operations.
The right to property, like the right to life, is subject to some exception in times of war. Accordingly, for war-time property damage claims, the laws and customs of war must be consulted to know whether a violation of the right to property under the American Declaration has occurred. Analysis of military action in terms of military necessity is part of that consultation. As in the right to life and security of the person, civilian property damage that is "inadvertant", incidental" or "accidental" and that occurs as part of a lawful military action is not a violation of the laws and customs of war and therefore not a violation of the right to property under human rights law. Additionally, because the right to property may not be universally considered jus cogens, the civilian property immunity rule may be less exacting than the civilian immunity rule, particularly in the interpretation of the terms "incidental", "accidental" or "inadvertant". Even so, property damage cannot automatically be considered immune from human rights action. Determination must be made from the whole of the circumstances involved in property loss.
Amici considers that information provided by Petitioners indicates destruction of civilian property that can not be justified even under the most lenient of interpretations. For example, Petitoners indicate indicate the destruction of Mercado Periferico and a juvenile detention center. (Petitioners' brief of January 1995, at 11). A local school and two civilian bus depots were attacked. (Id.) There is also evidence that in San Miguelito and Colon, civilian areas far away from military targets, were attacked. (Id at 12).
C. Respondent Government Fails To Answer Charges
Amici note that Respondent Government dismisses allegations made by Petitioners of violations of the rights to life and property of the American Declaration and the laws and customs of war by stating that it complied with all applicable rules in the course of its military incursion into Panama. To support that contention, Respondent Government relies on its own claim that its military personnel were provided with a book containing basic humanitarian law rules. (Communication of Respondent Government, Jan. 14, 1991, at p. 6; Communication of Respondent Government, Oct. 26, 1994 at pp. 6 - 7).
Amici are alarmed by this grossly inadequate reply. Petitioners present serious claims of violations of human rights and humanitarian law. Respondent Government cannot possibly consider that the Commission would dismiss Petitioners' claims of violations of human rights merely because Respondent Government passed out standard humanitarian law materials to its soldiers. Even the most minimum of minimum standards for education and training in humanitarian law requres more than passing out a booklet.
Petitioners have made a prima facie showing to the satisfaction of the Commission that these deaths, injuries and damaged civilian facilities occurred because of violations of the rules and customs of war. Respondent Government must defend its actions against each claim Petitioners make. Respondent Government must show that its militiary forces received meaningful training in humanitarain law. It must prove that its military operations were planned with adequate attention to the principle of civilian immunity. It must prove that a particular death, injury or damaged civilian facility was not a violation but rather an incidental casualty to a lawful military operation.
Respondent Government further asserts that its troops were "often frustrated" by actions contrary to the laws and customs of war it attributes to enemy forces. (Id. at p. 8). Respondent Government is egregiously in error in alluding that alleged violations of the laws and customs of war on the part of the enemy forces in any way justifies or excuses Respondent Government's violations. A basic rule of the laws and customs of war is that no belligerent can "absolve" itself of breaches. All four Geneva Conventions of 1949 contain an article containing the rule against absolution. (See, e.g. Geneva Convention IV, Art.148). Additionally, illegal actions supposedly in retaliation for enemy breaches could be considered reprisals, specifically prohibited in Geneva Convention IV, Article 33.
II. RESPONDENT GOVERNMENT SERIOUSLY VIOLATED PETITIONERS' RIGHT TO THE PARTICIPATORY GOVERNMENT OF THEIR CHOICE AS PROTECTED BY THE AMERICAN DECLARATION AND THE LAWS AND CUSTOMS OF WAR
Amici are convinced that Respondent Government committed violations of Article XX of the American Declaration. Amici note that the original petition does not directly address issues arising from Article XX of the American Declaration. Accordingly, amici wish to point out their concern with regard to that article.
Amici emphasize that Article XX of the American Declaration is an expression of the right of people to the government freely elected by them. This right is an important aspect of the right to self-determination. Amici categorically state that the Respondent Government interfered with this right and accordingly violated the right of Petitioners to full civil and political rights, especially the right to self-determination of peoples.
Amici point out the erga omnes obligation of all governments to respect and guarantee civil and political rights of people. (Inter-Am. C.H.R. Press Communique No. 13/93, 1993 Inter-Am. C.H.R. 602). In this light, Respondent Government was under an erga omnes duty to respect the full civil and political rights of Petitioners. Amici also acknowledge that the right to self- determination is a norm of jus cogens and cannot be abrogated under any circumstances. (See Parker and Neylon, Jus Cogens, citing inter alia Tunkin (p. 414 note 6), Gros Espiell (p. 440 note 182), Legal Consequences for States of the Continues Presence of South Africa in Namibia (S.W. Africa) notwithstanding Security Council Resolution 276, 1971 I.C.J. 16, 89-90 (Ammoun,J., separate opinion)(p. 441), Cassese (p. 441 note 187) and Brownlie (p. 441)). States have a very strong duty to allow people in one state to take their own political and civil intiative even in times of political crisis.
The status of Article XX rights as jus cogens and and imposing obligations erga omnes also reflects Articles 18 of the OAS Charter prohibiting intervention in the internal affairs of another state "directly or indirectly, for any reason whatsoever". Article 18 specifically prohibits armed force and is renforced by Article 21. A violation by any member state of Article 18 or 21 of the OAS Charter would constitute a per se violation of Article XX of the Declaration and hence also a per se violation of the right to self-determination.
Amici note the repeated invocation of the right to self- determination in relation to the use of force against another state in all international forums. This relationship has been particularily stressed by the International Court of Justice. For example, in Nicaragua the Court stresed the understanding that the prohibition against the use of force is a norm of jus cogens of which armed attack is "the most grave form." (Nicaragua at para. 190). In its elaboration of illegal use of force the Court quoted a number of international instruments linking violation of the prohibition of the use of force with a violation of the right to self-determination. (Id, at paras. 191 - 92, citing, G.A Res. 2625: Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States; the Convention on the Rights and Duties of States in the Event of Civil Strife; and Resolution 78 of the General Assembly of the OAS).
The United Nations has already found that the Respondent Government's military invasion of Panama constituted a flagrant violation of international law. (U.N. G.A. Res. 44/240 of 29 December 1989). The United Nations Commission on Human Rights, in its resolution 1990/10 of 20 February 1990 called Respondent Government's action a "foreign military intervention" that interfered with the right of the people to decide their future freely.
In light of the findings by the United Nations bodies, Amici have studied the Respondent Government's justifications for military actions against Panama and find them flagrantly inadequate if not frivolous. The main justifications presented by Respondent Government to the Commission are (1) self-defense; (2) intervention by invitation; (3) the right to defend United States citizens; (4) rights granted under the Panama Treaty to defend "strategic and economic interests"; (5) the right to defend democracy; (6) the right to defend the Panama Canal; (7) the argument that Panama and the United States were in state of war; (8) the Respondent Government's need to bring Noriega to trial. These defenses cannot justify depriving the people of Panama the right to determine their own destiny through their own methods and mechanisms.
In Nicaragua, the International Court of Justice ruled against Respondent Government in a similar case arising in the Americas in which Respondent Government made similar justifications. In discussing the Respondent Governments' claim of self-defense, the Court ruled that the right to individual self-defense arises when the State has been been subject of attack that has already occurred. (Nicaragua at para. 195, citing, inter alia, the Definition of Aggression annexed to G.A. Res. 3314). Regarding exercize of the collective right of self-defense, the Court found a prohibition of invocation of the right based on unilateral assessment. (Id). The Court gives further examples of inadequate justifications for use of force or intervention: disagreements with the "domestic policies of another country, its ideology, the level of its armaments or the direction of its foreign policy." (Id. at para. 207). Clearly under the Court's determination of international law rules, there is no right to unilateral use of force or other intervention to "defend democracy", or because of "strategic interests" or to "defend its citizens" when no military action or other hostile acts have occurred against the state. Likewise, a justification based on unilateral assessment of and decision to capture and try General Noriega cannot possibly be upheld.
Amici agress with Respondent Government government that relations between it and the Noreiga regime were strained at best. It is clear that several provocative acts had been carried out by Panamanian officials agaisnt United States military personnel in Panama. Yet amici find that the United States response -- full scale armed invasion -- a grossly excessive response in light of any realistic threat the Panamanian armed forces could pose to the United States.
Because Article XX rights, incompassing the right to self- determination, are jus cogens and impose obligatins erga omnes, amici argue that a justification based on an alleged "welcome" by Guillermo Endara, must also be viewed as inadequate. The rights to self-determination and non-intervention are held by the people of Panama and may not be waived, especially not by one political leader.
Amici note the frequency in the past two centuries that Respondent Government has used military force or other coercive measures against the people and governments of sovereign states in this hemisphere. The realization of the rights and duties of both the American Declaration and the OAS Charter requires that all the peoples of the Americas are free from unilateral military force or other coercive measures that restrict or interrupt the natural evolution of their national life. The Commission cannot allow any member states to violate the most basic of civil and political rights, the right to determine one's own government. Clearly the Americn system of human rights will perish if that is the case.
III.RESPONDENT GOVERNMENT MUST COMPENSATE VICTIMS
Amici notes that Respondent Government appears to argue that because it asserts its military activities in Panama were legal, Respondent Government has no legal obligation to compensate its victims. This cavalier dismissal of the right to compensation for victims and the duty to compensate by states defies the clear state of the law. Amici insist that compensation is fundamental to the concept of procedures to vindicate rights.
A. Duty To Compensate In OAS System
Following World War II when the international community set up international and regional legal regimes for human rights, the right to compensation and mechanisms for redress are a prominent feature. (See Karen Parker & Jennifer Chew, Compensation at 526- 27, citing, inter alia, Theo Van Boven, Study Concerning the Right to Restitution, Compensation and Rehibilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Progress Report, U.N. Doc. E/CN.4/Sub.2/7/1991 at 13-15 (annotates OAS cases) and Second Progress Report, U.N. Doc. E/CN.4/Sub.2/1992/8 (annotates European Commission and Court cases)).
The provisions encompassing the right of victims to compensation and the duty of governments to compensate in the Inter-American system are found in Articles XVIII (the right to a procedure to vindicate rights) and XXIV (the right of petition) of the American Declaration.
These articles are reinforced by the Statute of the Inter- American Commission on Human Rights (approved by G.A. Res. No. 447, OEA (Ninth sess. 1979), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System (Basic Documents) 65, OAS Doc. OEA/Ser/L.V/II.71 Doc.6 rev.1 (1987)(Statute)). Article 18 of the Statute grants the Commission with the power to make recommendations to governments, including measures to be taken to further human rights as set out in the Declaration. The Regulations of the Inter-American Commisison on Human Rights (approved by Inter.Am. C.H.R. (49th and 70th sess.), reprinted in Basic Documents 75 (Regulations)) provides further reinforcement of the right and duty of compensation by providing for recommendations by it to governments alleged to have violated human rights as well as a deadline for implementation of any recommendations. (Regulations, Art. 53). No substantive or procedural limitation on recommendations is set out: the Commission has full authority to make recommendations, including recommendations regarding compensation. Recommendations can indicate suggested compensation amounts, and can even propose mechanisms for evaluating individual or group claims.
B. General Duty To Compensate In Internal And International Law
Amici stress that the international and regional law of compensation requires Respondent Government to compensate Petitioners. Amici also stress that the right of war-time compensation a fundamental part of the law of Respondent Government. Amici now provide some historical analysis of these points for the benefit of the Commission.
The Hague Convention of 1907, a treaty of the United States, provides that a party which violates its provisions must pay compensation and that each party is liable for all acts committed by persons forming part of its armed forces. (The Hague Convention art. III). The Hague Convention condemns the acts committed against the Petitioners as set out above. The Hague Convention also contains the Martens Clause:
Until a more complete code of laws of war has been issued . . . in cases not included in the Regulations ... the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from usages established among civilized peoples, from the laws of humanity and from the dictates of the public conscience. (The Hague Convention, 8th preamb. para.).
Amici state that the acts committed against Petitioners also violate the Martens Clause. The Hague Convention, as a treaty of Respondent Government, was fully in force throughout the Panama action. Petitioners have a right under the Hague Convention to seek and receive compensation.
Even without the clear right under the Hague Convention, the right to compensation in general had been a recognized long before World War II as either jus cogens or a fundamental principle of law. Whether viewed a jus cogens or a fundamental principle of law, the right to compensation under either theory is binding on all states, and as such is automatically incorporated in any national, international or regional forum to determine rights.
Grotius lists the obligation to make restitution for wrongful acts fourth in his five basic elements of law. (Hugo Grotius, De Jure Belli Ac Pacis Libri Tres 12 (Francis Kelsey trans. 1949)(original published 1625)). Furukawa Terumi calls the fourth Grotius element "self-evident". (Furukawa Terumi, Punishment in A Normative Approach to War, Peace and Justice in Hugo Grotius 221, 240 (Onuma Yasuki, ed., 1993)). Terumi goes on to say that the Grotius elements are incorporated into all legal systems. (Id). Amici concur, and know of no legal system that does not incorporate these precepts. All legal systems recognize the two purposes of law: punishment/social control (penal law) and dispute resolution, including civil penalties and remedies (civil law).
In United States jurisprudence, Marbury v. Madison reflects the "fundamental principle of law" theory of compensation:
The very essence to civil liberty consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. [Blackstone] says, 'it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, or action at law, whenever that right is invaded.'" (Marbury v. Madison, 5 U.S. (Cranch) 137, 163 (1803))The duty to compensate and the corresponding right of individual to seek and receive compensation are as essential to the concept of international law as to domestic law. (Note that the Grotius work cited above addresses international law). A German court stated it clearly, also reflecting the "fundamental principle of law" theory: "[redress] is indispensable to the existence of the law of nations as an international legal order and the observance of which is required by all members of the international community. (German Federal Constitutional Court, Judgment of Apr. 7, 1965, BVerfGE).
Commentators are equally convincing. Addressing the issue of compensation in international law, Justice Guha Roy from India presents it this way: "[it is] a timeless axiom of justice without which social life is unthinkable, that a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed." (Guha Roy, Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?, 55 Am. J. Int'l L. 863 (1961)). Bin Cheng affirms the duty of redress is a fundamental principle of international law. (Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 169 (1953); Accord Theo Van Boven, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Preliminary Report, U.N. Doc. E/CN.4/Sub.2/1990/10 (1990): "There is no doubt that the obligation to provide for compensation as a means to repair a wrongful act or a wrongful situation is a well-established principle of international law.").
Commentators since at least the last century recognized the then- existing international law duty to compensate individuals for injuries from breaches of international law. For example, Woolsey wrote: "The right of redress exists in the case of individuals. . . . Redress consists of compensation for injury inflicted and for its consequences." (Theodore D. Woolsey, Introduction to the Study of International Law 17-18 (1892)). Woolsey also wrote about what he called the "duty of humanity": [c]ruelty may also reach beyond the sphere of humanity; it may violate rights, and justify self-protection and demand for redress. (Id. at 23).
The Permanent Court of International Justice, in its decision in the Chorzow Factory case, (Chorzow Factory (Indemnity), 1928 P.C.I.J. (ser. A) No. 17) clearly acknowledges the fundamental nature of the duty to compensate, calling it a part of "the general conception of law" and an "indispensable complement" to breaches of international norms. (Id. at 29).
For at least several centuries war-time violations have been viewed to impose a stronger duty to compensate for injuries than the duty imposed in peacetime. An early United States case, in which the Court analyzed existing customary international law, found that rights to compensation "are fully acquired by private persons during war, more especially if derived from the laws of war . . . [and] against the enemy, and in that case the individual might be entitled to compensation." (Ware v. Hylton, 3 U.S. (3 Dall.) 199, 279 (1796)).
International claims tribunals established following wars prior to World War II had consistently provided individual compensation mechanisms. For example, the General Claims Commission between Mexico and the United States awarded compensation to the parents of a Mexican girl killed by United States soldiers. (Decision of the General Claims Commission, United States and Mexico, Garcia v. United States, (Docket No. 292, Dec. 3, 1926, reprinted in 21 Am. J. Int'l L. 581 (1927)). The Treaty of Peace with Germany (Treaty of Versailles) established mixed arbitration tribunals for private claims against Germany. (Treaty of Versailles, June 28, 1919, 1 Bevans 43)).
The international duty of states to compensate for injury to persons or property was widely understood within the legal community in the period between the two world wars. Recognition of this law was not limited to Western nations. For example, Japanese scholars concurred with their peers for Europe and the Americas regarding a state's duty to compensate. (See, e.g., L'Association de Droit International du Japon, Draft Rules Prepared by the Kokusaiho-Gakkwai, reprinted in 23 Am. J. Int'l L. (Special No. 1929)) which went as far as providing liability for negligent as well as intentional acts). The Japanese draft and others submitted for and incorporated in the Draft of the Law of Responsibility for Damages Done in Their Territory to the Persons or Property of Foreigners (known as the Harvard Draft) clearly reflect the assumption that claimants would file legal actions for damages in relevant tribunals. (Harvard Draft, 23 Am. J. Int'l L. 131 (Special No. 1929)).
Following World War II Germany entered into a number of agreements with Israel, 11 European countries and a number of private organizations representing victims to provide direct compensation for Germany's World War II victims. I herein incorporate into this Brief the section entitled "Germany's Postwar Reparation Scheme" in the article Compensation for Japan's World War II War-Rape Victims (Karen Parker & Jennifer Chew, Compensation at 528-32). The German government has considered compensation for its victims "an essential moral prerequisite for Germany's readmission to the family of nations." (Benjamin Ferencz, Compensating Victims of the Crimes of War, 12 Va. J. Int'l L. 343, 353 (1972)). Amici consider that the right of the Commission to decide on the merits of this case, including recommendations for compensation and how compensation will be paid is absolute. The Commission can propose a specific claims procedure, or may reveiw proposals presented by Respondent Government or Petitioners. The Commission can also establish its own claims process, and appoint either its own members or other persons to carry out its functions.
Amici conclude that the Respondent Government committed violations of the American Declaration and htat vicitms of these violations should receive compensation. The Commission has full authority to make findings and recommendation regarding violations and compensation.
Attorney for Amici Curiae