Bringing It Home: The Inter-American System and State Obligations - Using a gender approach...

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BRINGING IT HOME: THE INTER-AMERICANSYSTEM AND STATE OBLIGATIONS

USING A GENDER APPROACH REGIONALLYTO ADDRESS WOMEN'S RIGHTS

VIOLATIONS DOMESTICALLY

VINODH JAICHAND* and ClARA O'CONNELL**

"No written law has ever been more binding thanunwritten custom supported by popular opinion."I

1. INTRODUCTION

Women's rights violations have the ability to reveal a society's structural inequalitiesas well as notions of subordination, citizenship and patriarchal customs and traditions.Women's rights are human rights, and it is for this reason that understanding the'why' behind gender-based human rights violations not only illuminates rights specificto women, but also opens the door for a discussion about the State's role in theprotection and promotion of all human rights.

The purpose of this essay is two-fold: first the increasing trend toward dealing withgender issues will be highlighted in the Inter-American system. A brief discussion offour gender-related cases will illustrate a progression on such issues within the Inter-American Commission on Human Rights (Inter-American Commission) and theInter-American Court on Human Rights (Inter-American Court). These cases notonly serve to demonstrate a progressive development in women's rights in regionalhuman rights law, but will also elucidate underlying social issues that have been andremain in place in Latin American countries. The objective of the first part of this

Vinodh Jaichand (BA (UDW), LL B (Natal), LL M (Miami), LL M JSD (Notre Dame)) is Deputy-Director of the Irish Centre for Human Rights, National University of Ireland, <[email protected]>.Ciara O'Connell (BA (University of Washington), LLM (Irish Centre for Human Rights, NationalUniversity of Ireland)) is an intern at Human Right to Health, National Economic & Social RightsInitiative (NESRI), New York, <[email protected]>.Carrie Chapman Catt, Women's Rights Activist [in a speech at the US Senate].

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Vinodh Jaichand and Ciara O'Connell

research is to examine the connections between the Inter-American system andwomen's rights and the societal inequalities that have allowed, and continue to cause,the subordination of women.

The thrust of the essay focuses specifically on the relationship between the Inter-American system and the state of Peru with regard to the Maria Mamirita MestanzaChdvez case. 2 This case is unique for several reasons: firstly, it is the only forcedsterilisation case to have been heard at the Inter-American Commission; secondly, thecase not only acknowledges the State's violations of women's rights, but also calls foran end to domestic impunity; thirdly, as of 2009 the State has failed to fully complywith the Commission's recommendations and fourthly, it raises questions about ideasof progress and modernity in Latin America. This case allows for a critical analysis ofnot only the connection between the regional human rights system and the obligationsof the State, but also State practices and policies that violate women's rights.

For purposes of this essay it is important to understand the motivating factorsbehind forced sterilisation in Peru. In order to provide context for this case a sectionis dedicated to the examination of Peru's family planning program in the 1990s, as ameans of eugenics-influenced population control. Although population control mayseem fairly removed from a discussion about gender and regional and staterelationships, it is in fact a crucial component in underscoring women's rights inPeruvian society. The analysis of this case will not only illustrate how the Inter-American system and the member State function, but also show how the State's failureto address women's rights can be understood as a conflict between concepts ofmodernity and progress and deep-seated Latin American traditional and patriarchalcustoms.

Finally, in an effort to 'bring it home,' domestic implementation of women's rights,or rather a lack thereof, reveals how the state and the Inter-American system often failto eliminate impunity for gender-based crimes. It is the goal of this research to clearlyestablish a connection between traditional viewpoints on women's rights and genderjustice at both the State and regional levels.

2. THE PRACTICE OF GENDER JUSTICE IN THEINTER-AMERICAN SYSTEM

The Inter-American system's Organization of American States (OAS), which wasestablished in May of 1948, currently has thirty-five3 member states. It is the regional

2 IACommHR (Report) Case No. 12.191, Report No. 66/00, 3 October 2000, Maria MambritaMestanza Chdvez v. Peru; IACommHR (Report) Case No. 12.191, Report No. 71/03, 22 October2003, Maria Mambrita Mestanza Chdvez v. Peru.Ratifications of the OAS Charter, <www.oas.org/en/member-states/default.asp>. Cuba'sparticipation in the OAS is limited. Cuba has not participated as a member since 1962 because it isnot a democracy. Canada and the United States have not ratified the American Convention on

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The Inter-American System and State Obligations Using a Gender ApproachRegionally to Address Women's Rights Violations Domestically

system which applies the American Declaration on the Rights and Duties of Man asthe first international human rights instrument in April 1948 that preceded theUniversal Declaration of Human Rights, on which the European Convention onHuman Rights is based, by seven months. The American Convention on HumanRights was adopted on 22 November 1969. The Convention of Belim do Pard (1994),or the Inter-American Convention on the Prevention, Punishment and Eradication ofViolence Against Women, is the only human rights document whose sole purpose itis to address violence against women. The Inter-American regional system is similarin many ways to the European system, but differs in the types of issues and casesbrought before it. Latin American States have historically been plagued with coupsd'6tats, military dictatorships and human rights abuses such as disappearances,extrajudicial killings, torture and sexual violence against women.4 It was with thisbackground that the Organization of American States created a human rights systemwith the goal of being effective within all the member States. The Inter-Americansystem has two enforcement bodies: the Inter-American Commission on HumanRights, which was created in 1959, and the Inter-American Court of Human Rights,which was established by the American Convention on Human Rights.5 The Inter-American Commission is a quasi-judicial body that has the ability to proposerecommendations to the Member State, refer cases to the Court and is responsible forapplying the American Declaration and the American Convention to both individualand interstate complaints. The Inter-American Commission, in its work to conductaccurate reporting mechanisms, has been criticised for its failure to demand Stateaccountability before the Inter-American Court.6

It is important to highlight one ofthe Inter-American Court's notable advancementsin establishing State accountability by referring to the 1988 Velasquez Rodriguez case'where the Court ruled that Honduras had a negative obligation not to disappear itscitizens, and a positive obligation to protect its citizens from violence. This case was ofspecial importance to the Court's future proceedings because it related individualevents with a widespread problem, and called for the State's cooperation in addressingthe underlying issues that caused the violations.8 The Velasquez Rodriguez caseexpanded the Inter-American Court's authority by allowing it not only to rule on

Human Rights.4 Rhona Smith, Textbook on International Human Rights (Oxford, Oxford University Press, 2nd ed.

2005), p. 115. For a more complete view, see Tom Farer, "The Rise of the Inter-American HumanRights Regime: No longer a Unicorn, Not yet an Ox", 19 Human Rights Quarterly (1997), p. 510-546.

s Henry Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context: Law,Politics, Morals (Oxford, Oxford University Press, 3rd ed. 2008), p. 1019-1021.

6 Ibid., p. 1023-1025.7 IACtHR (Judgment) 29 July 1988, Velasquez Rodriguez v. Honduras, paras. 165, 166.a Steiner and Alston, supra n. 5, p. 1042.

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individual cases but also to address the State's role in collective human rightsviolations.

The Inter-American Court and the Inter-American Commission have increasinglyadopted a gender perspective in their work over the past two decades as a result of theboth the Commission and the Court's approach to interpreting the AmericanDeclaration on the Rights and Duties of Man, the American Convention, and theConvention of Belim do ParA on violence against women in the region. The sectionwhich follows will illustrate progress of gender justice by looking at four cases wheregender is fundamental to the Commission or Court's findings.

In January 2007 the Inter-American Commission released a document titledAccess to Justice for Women Victims of Violence in the Americas. In its work, alongwith the research completed by the Inter-American Commission's Rapporteur on theRights of Women, the Commission found that all too often prompt and effectiverecourse to judicial remedies eludes women victims of violence, even after they reportthe crimes committed against them... The vast majority of these offenses are neverpunished and neither the victimised women nor their rights are protected.9

The intention of this report was to make recommendations to States based on thelack of compliance witnessed by the Inter-American Commission over the previousdecade. The Inter-American system has increasingly used a gender approach in itsrulings, and found that Member States were complicit in human rights violations byfailing to domestically enforce women's rights protections. The cases that illustratethis include: X. and Y. v. Argentina (1996),10 Maria da Penha v. Brazil (1998),11 MiguelCastro-Castro Prison v. Peru (2006)12 and Gonzalez and Others v. Mexico (2009).13

These cases highlight developments in women's rights and display the Inter-Americansystem's perspective on the States' obligation to protect and promote women's rightsat the domestic level.

The X. and Y. v. Argentina case addressed the issue of women and children whowere forced to undergo vaginal inspections in order to visit inmates in Argentineprisons.14 The Inter -American Commission ruled that the inspections were a violationof several articles of the American Convention. The State had allowed for a violationof the right to privacy (Article 11), the right to family (Article 17) and the rights of thechild (Article 19). Because the visiting women were forced to forego their right to

9 IACommHR, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser.L/V/II.Doc68, vii, 20 January 2007.

10 IACommHR (Report) 15 October 1996, Case No. 10.506, Report No. 38/96, X. and Y. v. Argentina.11 IACommHR (Report) 16 April 2001, Case No. 12.051, Report No. 54/01, Maria da Penha Fernandes

v. Brazil.12 IACtHR (Judgment) 25 November 2006, Miguel Castro- Castro Prison v. Peru.13 IACtHR (Judgment) 16 November 2009, Gonzdlez et al. ("Cotton Field") v. Mexico.14 Center for Reproductive Rights, Reproductive Rights in the Inter-American System for the Promotion

and Protection of Human Rights (New York, Center for Reproductive Rights, October 2002), p. 10,<www.reproductiverights.org>.

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privacy when entering the prison, the State failed to fulfil its obligation to "facilitateand regulate contact between detainees and their families." 5 This case was ofparticular importance as the victims were women, and their gender was directlyrelated to a violation of their rights. It also established a link between the right toprivacy and the right to physical and psychological integrity."6 The Inter-AmericanCommission recommended that the State adopt legislation to abolish this practiceand to update them on the progress of said legislation, as well as to provide monetarycompensation to the victims.17

In Maria da Penha Maia Fernandes v. Brazil the Inter-American Commissionfound that the State had been complicit in allowing for patterns of domestic abuse togo unrecognised and unpunished. The victim, Mrs Fernandes, suffered domesticabuse at the hand of her husband for fifteen years, was paralysed as a result of hisattempt to murder her and was denied justice for over 17 years.t8 The Inter-AmericanCommission stated that this case involves not only a failure to fulfil the obligationwith respect to prosecute and convict, but also the obligation to prevent thesedegrading practices, General and discriminatory judicial ineffectiveness also createsa climate that is conducive to domestic violence, since society sees no evidence ofwillingness by the State, as the representative of the society, to take effective action tosanction such acts.19

The State's acquiescence in ignoring domestic abuse allowed for the followingviolations of the Convention of Belim do Pari: the right to be free from violence inpublic and private spheres (Article 3), the right to exercise to the protection of awoman's human rights (Article 4) and the duty upon the State to condemn all formsof violence against women and pursue policies to prevent and punish such violence(Article 7).20 The State's failure to provide due diligence in this trial was a violation ofArticle 8(1) of the American Convention. In its recommendations the Inter-AmericanCommission ordered that the State complete domestic criminal proceedings, conductinvestigations about the delay of such proceedings and, inter alia, train public officials

15 IACommHR (Report) 15 October 1996, Case No. 10.506, Report No. 38/96, X. and Y. v. Argentina,para. 97.

16 Center for Reproductive Rights, supra n. 14, p. 10.17 Organization of American States, American Convention on Human Rights, 22 November 1969,

O.A.S.T.S., No. 36, Section 2, Article 62, "A State Party may, upon depositing its instrument ofratification or adherence to this Convention, or at any subsequent time, declare that it recognizes asbinding, ipso fatp and not requiring special agreement, the jurisdiction of the Court on all mattersrelating to the interpretation or application of this Convention."

18 IACommHR, Update on the Work of the Rapporteurship on the Rights of Women, 13 February 2002,Chapter VI(c) 7, <www.cidh.oas.org/annualrep/200leng/chap.6c.htm>.

19 Giulia Paglione, "Domestic Violence and Housing Rights: A Reinterpretation of the Right toHousing", 28 Human Rights Quarterly (2006), p. 143.

2o Organization of American States, Convention on the Prevention, Punishment and Eradication ofViolence Against Women "Convention of Belim do Pari", 9 June 1994, 2 4 th Session.

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about domestic abuse. 21 It was with this case that the Inter-American Commissionapplied the Convention of Belm do Pari for the first time, and, as a result, it was alsothe first time that the State was held accountable for violations of a Convention whosesole purpose is to protect women from crimes that are gender-based in nature.22

In 2006, the Inter-American Court heard the Miguel Castro-Castro Prison v.Peru23 case, which involved an attack in 1992 by government forces on the woman'sward of the prison. This attack took place on women's visiting day, which was alsoMother's Day. In the days following the attack the survivors were stripped of theirclothing and many were submitted to sexual violence and rape. 24 This case was notablein gender justice advancements for several reasons. First, the Court found that bydenying justice to the victims the State violated both the due process (Article 8) andjudicial protection (Article 25) provisions of the American Convention. Second, theCourt linked the Convention violations to the Convention of Bel6m do Pari's Article7(b) which calls on the State to "apply due diligence to prevent, investigate and imposepenalties for violence against women." The Court concluded that because the Inter-American Commission has jurisdiction over the Convention of Belim do Pari, andthe Commission refers cases to the Court, the Court has the ability to rule using theConvention of Belim do Pard in its resolution process. 25 Finally, the Inter-AmericanCourt responded to the grievances of women when it found violations of both prenataland postnatal care of mothers during detainment. In this finding the Court determinedthat both women and their children were victims for reparations purposes. This caseexpanded the Court's jurisdiction to include the Convention of Belim do Pari, definedvictim's family members as reparation beneficiaries and ruled that the State has a dutyto ensure domestic due diligence.

In Gonzalez and Others (also known as "Campo Algodonero" or "Cotton Fields"case) v. Mexico 26 the Inter-American Court found that the failure of the Mexicangovernment to effectively investigate, prosecute and prevent the murders of ClaudiaIvette Gonzalez, Esmeralda Herrara Monreal and Laura Berenice Ramos Monarrezviolated the American Convention of Human Rights and the Convention of Belim doPari as their inaction constituted gender-based violence against women and girls inCiudad Juirez. Mexico in effect had failed to respect the rights set out in the AmericanConvention on Human Rights27 and did not fulfil its obligation to adopt legislativeand other measures to give effect to the rights and freedoms recognised in the

21 Center for Reproductive Rights, supra n. 14, p. 9.22 Ibid., p. 10.23 IACtHR (Judgment) 25 November 2006, Miguel Castro-Castro Prison v. Peru.24 Patricia Palacios Zuloaga, "The Path to Gender Justice in the Inter-American Court of Human

Rights", 17 Texas Journal of Women and the Law (2007-2008), p. 240-241.25 Ibid., p. 242.26 IACtHR (Judgment) 16 November 2009, Gonzdlez et al. ("Cotton Field") v. Mexico, para. 602.27 Article 1 ACHR.

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Convention. 28 These included violations of the right to life (Article 4), right to personalintegrity (Article 5), right to personal liberty (Article 7), right to a fair trial (Article 8),rights of the child (Article 19) and the right to judicial protection (Article 25).

Mexico argued that the Inter-American Court had no jurisdiction to make afinding under the Convention of Belim do Pari. The Court's reply was clear:international law was composed of both a set of rules and a set of values and that inthis case the Inter-American Court interpreted the jurisdictional rule of theConvention of Belim do Pard through taking into account the values the Inter-American system sought to safeguard and protect. 29 Article 62 permitted the Courtunder the American Convention to evaluate violations in terms of that Conventionand in relation to other Inter-American instruments such as the Convention of Belimdo Pard.30 The Court recognised that the killings of the women constituted femicideand held Mexico accountable for the failure to protect its citizens from such genderviolence. In reaching its decision the Court examined a number of sources of fact andlaw including the 2009 European case of Opuz v. Turkey,31 where the European Courtof Human Rights found Turkey in violation of its obligations to protect women fromgender-based violence as a form of discrimination under the European Convention ofHuman Rights. 32

The progression illustrated above serves to illuminate the Inter-American system'sincreasing prioritisation of women's rights violations as it calls for the State to fill the"significant gap between the formal availability of certain remedies and their effectiveapplication."33 Although the Inter-American system recognises this "gap" in genderjustice, it has failed to consider the context in which it was created. Gender justice hasbeen completely absent in the Inter-American Court up until recently when women's

25 Article 2 ACHR.29 Daniela X. Cornejo, "IACtHR Finds Mexico Violated Convention on Eradication of Violence

Against Women", Human Rights BriefBlog (23 March 2010), <http://hrbrief.org/2010/03/23/iacthr-finds-mexico-violated-convention-on-eradication-of-violence-against-women>.

3o Article 12 of the Convention of Belem do Para permits petitions before the Inter-AmericanCommission of Human Rights: "Any person or group of persons, or any nongovernmental entitylegally recognized in one or more member states of the Organization, may lodge petitions with theInter-American Commission on Human Rights containing denunciations or complaints ofviolations of Article 7 of this Convention by a State Party, and the Commission shall consider suchclaims in accordance with the norms and procedures established by the American Convention onHuman Rights and the Statutes and Regulations of the Inter-American Commission on HumanRights for lodging and considering petitions."

31 ECtHR (Judgment) 9 June 2009, Case No. 33401/02, Opuz v. Turkey.32 Article 14 of the Convention states: "The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground such as sex, race, colour,language, religion, political or other opinion, national or social origin, association with a nationalminority, property, birth or other status."

3 IACommHR, Access to Justicefor Women Victims of Violence in the Americas, OEA/Ser.L/V/II.Doc68, viii, 20 January 2007.

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rights have become "justiciable."34 The State continues to neglect women's rightsbecause of the underlying traditional and social issues that have place women inmarginalized positions within society.

The structural inequalities that exist in Latin America differ in composition, originand societal implications based on each particular country, and that country'sexperience with colonisation and modernisation. Gender inequality is in many waysreflective of each country's experience. Catharine MacKinnon refers to "gender as asocial system that divides power."35 She elaborated this concept by referring to theState, in the feminist perspective, as male, where the "law sees and treats women theway men see and treat women." 36 Her explanation raises concerns about addressingStates' responsibilities to protect women in a system that inherently fails to protectwomen. It is outside the scope of this essay to discuss the societal and genderinequalities in each country of the Organization of American States, but for purposesof this research the underlying issues that continue to plague Peruvian women willserve as an indicator of the situation in Latin America.

Structural inequalities in Peru have roots that date back to the colonial processwhen the Spanish introduced the Catholic religion, destroyed rural communities inthe Andean region, and imposed different moral values as well as a different languageon the people.37 Colonisation created deep stratifications in society where the ruralpeoples became increasingly insignificant as Peru experienced modernisation. In1993, approximately 30 per cent of the 11 million women living in Peru lived in ruralareas. 38 Currently, the Quechua-speaking Peruvian indigenous represent 30 to 50 percent of the population. It is estimated that about 67 per cent of the entire Peruvianpopulation live in urban areas, and 33 per cent live in rural areas.39 Roughly 36 percent of those below the poverty level live in rural areas, whereas only 4.6 per cent ofurban populations experience that level of poverty.40 The rural population may bereferred to as indigenous, campesinos or mestizos, the categorisation of which isdetermined by social interactions. A man may be mestizo in a rural community butthen becomes campesino or indigenous in an urban setting. These relationships arefurther complicated when gender is included in the equation.

3 Zuloaga, supra n. 24, p. 245.3s Catharine MacKinnon, Toward a Feminist Theory of the State (Cambridge, Harvard University

Press 1989), p. 161.36 Ibid., p. 161-162.3 Ernesto Vasquez del Aguila, "Invisible Women: forced sterilization, reproductive rights, and

structural inequalities in Peru of Fujimori and Toledo", 6 Estudios e Pesquisas em Psicologia (2002),p. 111.

3 Julie Guillerot, "Linking Gender and Reparations in Peru: A Failed Opportunity", in Ruth RubioMarin, (ed.), What Happened to the Women? Gender and Reparations for Human Rights Violations(New York, Social Science Research Council 2006), p. 144.

3 Center for Reproductive Rights, Women's Sexual and Reproductive Rights in Peru: A Shadow Report(New York, Center for Reproductive Rights 1998), p. 5, <www.reproductiverights.org>.

40 Vasquez del Aguila, supra n. 37, p. 111.

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A rural woman is more likely to dress in traditional clothing, to speak Quechuaand to remain in her rural community. A rural man, on the other hand, may wearwestern clothing, have a greater opportunity to learn Spanish and travel to urbanareas as well as other rural regions.4t The clear division between rural and urbanessentially makes women invisible members of Peruvian society. Rural women's statusas that of an undocumented person causes them to face restrictions on their votingrights, access to health, education and social programs, marriage, the opportunity tolegally record their births, acquire property and find employment.42 This system ofinequality is clearly seen when looking at literacy in Peru. Three out of four illiteratePeruvians are women; in urban areas one out of every ten women is illiterate, and inrural areas the number jumps to more than four women in every ten is illiterate. 43

Rural women are the most marginalised group in Peru.As was discovered in the Peruvian Truth and Reconciliation Commission 44,

women often do not recognise themselves as victims of human rights abuses. Mostoften women seek justice not for themselves, but for their male family members.Women who have been victims of sexual violence are most concerned with returningto what they know as their status quo, not with reinventing it (our emphasis).45 Thenorm for a rural Peruvian woman is that of subordinate to men and invisible to theState. Carolyn Deere and Magdalena Le6n de Leal summarise this concept clearly bystating:

"since women's subordination seems natural within patriarchal ideologies, it isdifficult for change to erupt spontaneously from the condition of subordination.Empowerment must be introduced by first creating consciousness of genderdiscrimination.46

Instead of working to eradicate inequality and discrimination, the State has beenreluctant to first, recognise the woman's role as subordinate to men as a violation ofhuman rights, and second, to implement a judicial system that protects women fromcustoms or values that violate her rights.

41 Ibid.42 Guillerot, supra n. 38, p. 144.4 Center for Reproductive Rights, supra n. 39, p. 5.4 The Peruvian Truth and Reconciliation Commission was created with the purpose of"[...] clarifying

the process, facts and responsibilities of the terrorist violence and human rights violations producedfrom May 1980 to November 2000 [...]." Eduardo Gonzalez Cueva, The Peruvian Truth andReconciliation Commission, in Naomi Roht-Arriaza and Javier Mariezcurrena (eds.), TransitionalJustice in the Twenty-First Century. Beyond Truth versus Justice (Cambridge, Cambridge UniversityPress 2006), p. 70.

4 Guillerot, supra n. 38, p. 144-145.46 Carolyn Deere and Magdalena Leon, Empowering Women: Land And Property Rights In Latin

America (Pittsburgh, University of Pittsburg Press 2001), p. 19.



3. THE INTER-AMERICAN SYSTEM AND A PERUVIANCASE STUDY

The Inter-American Commission appointed a Rapporteur on the Rights of Women in1994, with a mandate to "analyze the extent to which member state law and practiceswhich affect the rights of women comply with the broad obligations of equality andnondiscrimination contained in the American Declaration of the Rights and Dutiesof Man and the American Convention on Human Rights.""7 Over the past few decadeson-site visits have played an integral role in the assessment of a member State'sadvancements, as well as member State failures to incorporate women's rights in lawand policies. The State of Peru has had six on-site visits, and has been included innumerous annual reports, as well as two country specific reports on the situation ofwomen's rights in Peru.48 The most recent of these country specific reports wasreleased in 2000; a specific focus was placed on discriminatory practices againstwomen and reproductive health.4 9 Reports issued by the Inter-American Commissionare distributed to the government of the member State, and include recommendationsthat will be investigated upon future on-site visits.

The member State is fully aware that the reporting mechanism of the Inter-American Commission is limited in that it is unable to do more than "name andshame" a member State which has violated provisions of the American Convention orAmerican Declaration. Although a member State often fails to respond to either thereporting mechanism or the judicial proceedings of the Inter-American Commissionit may choose to implement legislation domestically as a response.

Peru's history with the Inter-American system can be described as tumultuous. In1999 Peru withdrew its acceptance of the Inter-American Court's jurisdiction,50 anddid not renew acknowledgement of the Court's jurisdiction until 2003.51 AlthoughPeru ratified the Convention of Belim do ParA in 1996, its failure to enforce regionaland domestic law has allowed for the continuance of violence and discriminationagainst women, and most especially indigenous women.52

47 IACommHR, Update on the Work of the Rapporteurship on the Rights of Women, Chapter VI(c) 1,13 February 2002, <www.cidh.oas.org/annualrep/200leng/chap.6c.htm>.

48 Peru's on-site visits took place in May of 1989, October-November of 1991, April and May of 1992,May of 1993 and November of 1998. This information is available at <www.cidh.oas.org/visitas.eng.htm>.

4 IACommHR, Second Report on the Situation of Human Rights in Peru, Chapter VII, paras. 6-8,2000, <www.cidh.oas.org/women/chapter7.htm>.

so IACommHR, Remarks by the Chairman of the Inter-American Commission on Human Rights,Robert Kogod Goldman, at the Opening of the 104th Regular Session, 21 September 1999, <www.cidh.oas.org/Discursos/09.21.99English.htm>.

s1 IACtHR, Annual Report of the Inter-American Court of Human Rights 2003 (San Jose, Inter-American Court of Human Rights 2004), p. 19.

52 IACommHR, Second Report on the Situation of Human Rights in Peru, Chapter VII, paras. 2-3,2000, <www.cidh.oas.org/women/chapter7.htm>.

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Women have historically been victims of violence in Peru. Domestic violence isembedded in the historical and cultural traditions of Peruvian society, and also infamilial traditions that are characterised by male dominance.53 Women havecontinuously faced violence not only as a result of conflict, but also as a result of State-mandated policies. In 1980, an insurgent group, Sendero Luminoso (the Shining Path),began what would become over a decade of violence in the rural regions of Peru.5 4

This violence was a result of the State's failure in its rapid economic, political andsocial expansion to reach marginalised groups, mainly in the Andean region of Peru. 55

The State's response to insurgent violence was state-sponsored violence, and ruralmen and women who shared similar socio-demographic backgrounds were mostaffected by the conflict.56 In fact, 80 per cent lived in rural areas, 34 per cent wereilliterate and 48 per cent were between the ages of 10 and 30 years old.5" Women weremost affected by the following crimes under the following percentages: extrajudicialexecutions (50 per cent), detentions (27 per cent), torture (23 per cent), kidnappings(17 per cent), disappearances (16 per cent) and rape (10 per cent).58 Women sufferedfrom both indirect and direct violence, and as a result their experience was intrinsicallyintertwined with the man's experience, the child's experience and the community'sexperience. The State was responsible for a significant proportion of the sexual violencecommitted between 1980 and 2000. State sexual violence was not limited to the timeperiod in which the direct threat of insurgent group violence loomed in Peru'scountryside, but also occurred in State-sponsored government programs, such as itsfamily planning program.

Following the violence that occurred between the years of 1980 through 2000 thePeruvian government established the Peruvian Truth and Reconciliation Commission(2001-2003).59 The Commission included violence against women in its mandate, butfailed to provide a voice for over "200,000 marginalized, indigenous, Quechua-speaking women in Peru who were victims of a state-sponsored enforced sterilizationcampaign."60 By ignoring forced sterilisation as a violation of women's rights, thePeruvian Truth and Reconciliation Commission compounded the harm by the failureto address and challenge Peru's underlying issues associated with deep-rootedconcepts of racism as well as reproductive rights, population control, discriminationand modernisation.

s3 Guillerot, supra n. 38, p. 145.5 Pamela Yates, State ofFear: The Truth about Terrorism (Skylight Pictures, 2006).ss Guillerot, supra n. 38, p. 137.56 Yates, supra n. 54.5 Guillerot, supra n. 38, p. 140-141.58 Ibid., 141.5 Gonzalez Cueva, supra n. 45, p. 71.6o Jocelyn E. Getgen, "Untold Truths: The Exclusion of Enforced Sterilizations from the Peruvian

Truth Commission's Final Report", 29 Third World Law Journal (2009), p. 3.



In his book, Open Veins in Latin America, Eduardo Galeano states: "in LatinAmerica it is more hygienic and effective to kill guerrillas in the womb than in themountains or the streets."61 This thought serves as a conclusion to his discussion ofpopulation control in Latin America. Development and population control programsin Latin America.were almost entirely funded by outside sources, such as the UnitedStates.62 Modernisation and development became synonymous with populationcontrol in Latin America in the 1990s, and policies to achieve the Western idea ofprogress were swiftly implemented by the State. As a result of an international push toimplement family planning programs, Latin American countries often forcedpermanent forms of contraception upon rural, indigenous, illiterate and poor womenin an effort to decrease the population, and to do so by targeting the most marginalisedpeople. Population control in Latin America was infused with eugenics thinking, 63

and ultimately had the aim of creating a "fit" and developed nation.64

Originally, Latin American eugenics policies did not include sterilisation practices.Nancy Leys Stepan, on assessing the eugenics situation in Latin America notes that"on the whole, the eugenicists operated in a political, cultural and religious climate inwhich birth control, abortion for any but the most strictly defined medical reasons,and sterilization, whether for eugenic or feminist purposes, were unacceptable."65

In 1979, the Peruvian Constitution recognised the right offamilies and individualsto manage their fertility, and for the following decade concern mounted regardingfertility and Peru's population growth. 66 During this period, the Peruvian governmentadopted the National Population Policy Law in 1985 and the National PopulationProgram in 1987. The main goal of the National Population Program was the"reduction of the growing population to a level no more than 2 per cent per year by1995."67 The law, whose initial intentions were to "guarantee the rights of all humanbeings to freely determine the number of their children, to comprehensive health and

61 Eduardo Galeano, Open Veins of Latin America: Five Centuries of the Pillage of a Continent (NewYork, Monthly Review Press 1997), p. 6.

62 Frank Dikotter, "Race Culture: Recent Perspectives on the History of Eugenics", 103 The AmericanHistorical Review (1998/2), p. 468. For example, the majority of Peru's population funding, betweenthe years of 1994 and 1998, is estimated to have come from contributions by the United StatesAgency for International Development (85 million US$), the United Nations Population Fund (14million US$) and the United Kingdom (7 million US$).

63 Frank Dikotter explains eugenics as "giving scientific authority to social fears and moral panics,lending to racial doctrines and providing legitimacy to sterilization acts and immigrations laws."Eugenics wording has historically referred to concepts such as "the nation," "future generations," and"gene pool" when explained in the economic and medical context. This collective sense of bettermentfor the future of a people by restricting the reproduction of the "unfit" implies a collective protection,and removes individual reproductive rights.

64 Nancy Leys Stepan, The Hour of Eugenics: Race, Gender, and Nation in Latin America (New York,Cornell University Press 1991), p. 12.

65 Ibid., p. 201.6 Coe, supra n. 76, p. 59.67 Vasquez del Aguila, supra n. 37, p. 113.

Intersentia60


to the free development of their personality," would remain in place throughout the1990s, and is still in effect. 68

Under President Fujimori's presidency the Population Policy Law was expanded inSeptember 1985 to include the legalisation of sterilisation.69 Also in 1995 a wide rangeof contraceptive products was made available at no charge to the public. At the UnitedNations Fourth World Conference on Women in Beijing, Peru's president AlbertoFujimori announced that his "government ha(d) decided to carry out an integralstrategy of family planning that confront(ed) openly, for the first time in the historyof our country, the serious lack of information and services available on the matter."70

Fujimori's use of feminist rhetoric in this speech helped to garner the support of theinternational community, feminist activists and the Peruvian people. On the surfacePeru's population control policy seemed to benefit women's reproductive rights, but,its deeper implications revealed a coercive program that embodied the worst aspectsof eugenics thinking, population control and women's rights violations. The PeruvianState ultimately viewed family planning as a means to reduce poverty rather than topromote women's rights.71

It is estimated that over 200,00072 Peruvian women were forcibly sterilised as partof Fujimori's national family planning program from the early to mid-1990s. 73 In1990, the State established a "Voluntary Surgical Contraception" program(Anticoncepci6n Quirnrgica Voluntaria), but it was not until 1995, with the assistanceof international funding,74 that the program became effective. 75 In 1998 a programmanager at the Peruvian Ministry for Health stated:

"The fertility rate among poor women is 6.9 children - they are poor and areproducing more poor people. The president is aware that the government cannotfight poverty without reducing poor people's fertility. Thus, demographic goals are

68 Center for Reproductive Rights, supra n. 39, p. 16.69 Ibid., p. 17.70 Christina Ewig, "Hijacking Global Feminism: Feminists, the Catholic Church, and the Family

Planning Debacle in Peru", in Carolyn M. Elliott (ed.), Global Empowerment of Women: Responsesto Globalization and Politicized Religions (New York, Routledge 2008), p. 330. Ewig quotes directlyfrom Fujimori's speech made on 15 September 1995.

71 Ibid., p. 331.72 Vasquez del Aguila, supra n. 37, p. 113. Some estimates put this number at over 300,000. Rick

Kearns, "Forced sterilization of indigenous case re-opened in Peru" (Indian Country Today,29 February 2009), <www.indiancountrytoday.com/global/39910172.html>. It is estimated thatapproximately 22,000 men underwent vasectomy procedures without formal consent.

7 Getgen, supra n. 60, p. 26.74 Vasquez del Aguila, supra n. 37, p. 115-116. USAID, UNFPA as well as numerous other donors,

provided funding for sexual and reproductive health programs, and the Anticoncepci6n QuirdirgicaVoluntaria program was included in the programs that received funding. This increase in fundingcorrelates with Fujimori's 1995 UN World Conference Speech.

75 Getgen, supra n. 60, p. 10.

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a combination of the population's right to access family planning and thegovernment's anti-poverty strategy."76

The State's implementation of Anticoncepci6n Quirtirgica Voluntaria resulted in anintensive sterilisation campaign in the rural regions of Peru. "Health festivals"(festivales de salud) were carried out in poor communities with the intention ofcoercing women into permanent forms of contraception.77 Julia Tamayo, arepresentative from a woman's rights NGO, Flora Tristan, discovered some officialgoals for sterilisation clinics. An obligatory quota system of annual numeric goals wasformulated for program employees to meet in order to remain employed, receivepromotions or obtain monetary compensation.78 Tamayo's evidence concludes thatonly ten per cent ofthe women sterilised under the "Voluntary Surgical Contraception"program underwent the procedure with "real" consent.79 The sterilisation clinics, inan effort to force the women to comply, would often threaten to withdraw access tohealthcare, humiliate the women by calling them "irresponsible for having so manychildren,"80 and in some cases even told the women that having more than five childrenwas a violation of Peruvian law.8' The program also utilised propaganda both in healthclinics as well as in rural communities to convey the idea of a small family as beingnecessary for happiness and modernity.82

The Catholic Church firmly opposed the sterilisation campaign in Peru, but notbecause it was concerned with forced sterilisation as a women's rights violation.Instead, the Church was against the right of choice for women with regard to theirreproductive rights in their entirety by objecting to all forms of contraception, whetherit was forced or not. The Church agenda, therefore, differed from the human rightsmovement's reproductive rights goals. As a result of Peru's increasingly stable economyand Fujimori's widespread political support he was able to confront the Church inregards to reproductive rights. 83 The Church, as a result of their opposition to awoman's right to choose a contraception method, consequently referred to thesterilisation campaign as a "genocide campaign."84 This concept of forced sterilisationas genocide was addressed in the final report of a Congressional Subcommittee, where

76 Anna-Britt Coe, "From Anti-Natalist to Ultra-Conservative: Restricting Reproductive Choice inPeru", 12 Reproductive Health Matters (2004/24), p. 61-62.

77 Vasquez del Aguila, supra n. 37, p. 113.78 Getgen, supra n. 60, p. 12.7 Vasquez del Aguila, supra n. 37, p. 113.so Ibid., p. 114-115.81 Getgen, supra n. 60, p. 13.82 Ewig, supra n. 70, p. 335.83 Getgen, supra n. 60, p. 10.84 Ibid., p. 24. And, the genocide charges brought against Fujimori were thrown out because of

"mistakes in the categorization of the crime." See also Angel Paez, "Rights-Peru: Forcibly SterilisedWomen Gain Voice in Congress" (IPS News 10 July 2006), <http://ipsnews.net/news.asp?idnews=33918>.

Intersentia62


Fujimori was accused of "committing genocide against the Quechua people" throughthe Anticoncepci6n Quirdrgica Voluntaria program.85 In its findings the Subcommitteereferred to Article 2(d) of the Convention on the Prevention and Punishment of theCrime of Genocide of 1948: "any of the following acts committed with intent todestroy, in whole or in part, a national, ethical, racial or religious group, such as: (d)imposing measures intended to prevent births within the group (our emphasis)."86 TheQuechua-speaking population in the rural Andean regions of Peru was distinguishedas both a racial and ethnic group in Peru, and Fujimori's sterilisation campaigntargeted these groups.

In its Second Report on the Situation of Human Rights in Peru - Women's Rights,the Inter-American Commission stated that, "a campaign to disseminate familyplanning methods is a positive action, so long as it is voluntary planning."87 TheReport also adds that in its 1998 on-site visit to Peru it received 168 complaints offorced sterilisation.88 It is only within the last ten years that the Inter-American systemhas begun to seriously look at forced sterilisation in Peru; some women have beenwaiting twenty years for justice. The Inter-American Commission has addressedsexual and reproductive rights twice, by way of the friendly settlement mechanism:the first was a forced sterilisation case and the second an abortion case.89

The Inter-American system's advancement in utilising an increasingly genderapproach to justice is further illustrated in Maria Mambrita Mestanza Chivez v.Peru,90 which not only further illustrates this progression, but also serves as a tool toobserve the interfused relationship between the system and the State.9'

Maria Mambrita Mestanza Chivez, hereinafter referred to as Maria Chivez, was arural woman of about thirty-three years of age and the mother of seven children. In1996 she began experiencing harassment by the public health centre of the EncafiadaDistrict (La Encallada).92 The couple was told on numerous occasions by health centre

as Getgen, supra n. 60, p. 22-23. Getgen researched this information in Subcomisi6n Investigadora dePersonas e Instituciones Involucradas en Acciones de Anticoncepci6n Quirdrgica Voluntaria, InformeFinal sobre le aplicacian de la Anticoncepci6n Quirdrgica Voluntaria (Lima, Congress June 2002).

86 United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 1948,9 December 1948, Res. 260 (III) A, Article 2 (d).

87 IACommHR, Second Report on the Situation of Human Rights in Peru, Chapter VII, para. 5, 2000,<www.cidh.oas.org/women/chapter7htm>.

88 Ibid.89 Zuloaga, supra n. 24, p. 261-262. The Inter-American Court has not heard a sexual or reproductive

rights case. The "abortion case," Ramirez Jacinto v. Mexico, involved a nine-year-old rape victimwho was denied an abortion by the State of Mexico (2007).

9o IACommHR (Report) Case No. 12.191, Report No. 71/03, 22 October 2003, Maria MamiritaMestanza Chdvez v. Peru.

91 Forced Sterilisation is specifically mentioned in the 1998 Rome Statute (Article 7(g)), which Peruratified in 2001. Rome Statute of the International Criminal Court, 17 July 1998, <http://untreaty.un.org/cod/icc/statute/romefra.htm>.

92 IACommHR (Report) Case No. 12.191, Report No. 66/00, 3 October 2000, Maria MambritaMestanza Chdvez v. Peru, para. 2.

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staff that if they were to refuse the sterilisation procedure, Maria Chivez would betaken to prison for violating a law that made it illegal to have more than five children.Chavez and Mr. Suirez, her husband, were also told they would have to pay fines inrelation to this violation.93 Because Ms. Chivez and Mr. Suirez were uneducated andpoor, these threats seemed valid and real. Ultimately, as a result of coercion over aperiod of almost two years, Maria Chivez underwent a tubal ligation procedure on27 March 1998. The operation was performed without prior medical examination,and Maria Chdvez was not given a medical consent form to sign until the day after theprocedure. 94 On 28 March Maria Chaivez was discharged from La Encahada althoughshe complained of intense headaches and stomach irritation. Her complicationsintensified over the following days, and in spite of Mr Suirez's repeated attempts to getmedical assistance for his wife, the health centre denied the family follow-up aid. LaEncaiiada instead insisted that Maria Chivez's poor condition was a temporary after-effect of the anaesthesia used in the procedure. Maria ChAvez died at home on 5 April1998, nine days after her sterilisation operation.95 The death was ruled to have been adirect result of the procedure. Shortly after, as is reported, a physician from LaEncahada attempted to offer Mr SuArez a sum of money to forget the issue.96

On 15 April 1998 Mr Suirez implicated the chief of La Encahada in the death ofMaria Chdvez, and formal criminal charges were brought before a Provincial Judge on15 May 1998. On 4 June the Judge declared "that there were no grounds for openingan investigation,"97 and in July of that year the Specialized Chamber for CriminalMatters confirmed that decision. The Maria ChAvez case was formally closed in Peruon 16 December 1998.98

A number of women's rights and human rights organisations 99 brought a petitionagainst Peru before the Inter-American Commission on behalf of Maria ChAvez andher family. The Commission received the complaint in June of 1999.100 The petitionersclaimed that Peru's family planning program was discriminatory and violatedwomen's reproductive rights. They maintained that the State of Peru had violated the

93 IACommHR (Report) Case No. 12.191, Report No. 71/03, 22 October 2003, Maria MambritaMestanza Chdvez v. Peru, para. 2.

94 Center for Reproductive Rights, supra n. 14, p. 15-16.9 Getgen, supra n. 60, p. 22-23.96 IACommHR (Report) Case No. 12.191, Report No. 66/00, 3 October 2000, Maria Mamirita

Mestanza Chdvez v. Peru, para. 2.9 Ibid.98 Ibid.9 Article 44 ACHR and Article 12 Convention of BelIm do Pari authorize human rights organisations

to submit a petition on behalf of the victim, or the victim's family. The organisations are as follows:Office for the Defense of Women's Rights (DEMUS), Latin American and Caribbean Committee forthe Defense of Women's Rights (CLADEM), Asociacidn Pro Derechos Humanos (APRODEH), Centerfor Reproductive Law and Policy (CRLP) and Center for Justice and International Law (CEJIL).

1oo IACommHR (Report) Case No. 12.191, Report No. 71/03, 22 October 2003, Maria MambritaMestanza Chdvez v. Peru, paras. 1-3.

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law set forth in the American Conventioniol, and in particular, the States' obligationto respect human rights (Article 1); the right to life (Article. 4); the right to humanetreatment (Article 5) and the right to equal protection (Article 24). They also claimedthat the Peruvian State had violated rights explicitly designated in Articles 3, 4, 7, 8and 9 of the Convention of Bel6m do Pard. 102 Although the State claimed that domesticremedies had not been exhausted and that the case was therefore inadmissible beforethe Inter-American Commission, the Commission concluded on 3 October 2000 thatthe State had in fact failed to provide a domestic remedy for the case, and that it waswithin the Commission's jurisdiction to hear the case. The petitioners asserted intheir opening remarks that this case represents one more of a significant number ofcases of women affected by the implementation of a massive, compulsory, andsystematic government policy that emphasised sterilisation as a method for quicklymodifying the reproductive behaviour of the population, especially the poor,indigenous, and rural women.103

The Commission considered that Peru's family planning project had becomeinvoluntary and intended to turn women into objects of control in order to makepopulation growth adjustments.t0 4 By admitting this case the Inter-AmericanCommission recognised Peru's alleged discriminatory practices in family planningprograms, the State's alleged neglect in providing impartial judicial investigation andrecourse for victims and its alleged failure to guarantee equality before the law.

The Inter-American Commission, the State of Peru and the petitioners agreedupon a "Friendly Settlement" in March of 2001.105 On 26 August 2003 therepresentatives of both the victims and the State signed the agreement and requested

1o1 The petitioners also noted violations of the Protocol of San Salvador (Additional Protocol to theAmerican Convention on Economic, Social and Cultural Rights), i.e. Articles 3 and 10, and theInternational Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW), Articles 12 and 14(2).

102 Organization of American States, Convention on the Prevention, Punishment and Eradication ofViolence Against Women "Convention of Belim do Pard", 9 June 1994, 2 4 th Session, Article 3: theright to be free from violence in both the public and private spheres; Article 4: the right to recognition,enjoyment, exercise and protection of all human rights; Article 7: duty of the State to condemn allforms ofviolence against women and pursue policies to prevent, punish and eradicate such violence;Article 8: States' duty to progressively undertake measures such as social programs and educationthat emphasize women's rights; and Article 9: States' duty to take note of women's vulnerability toviolence, especially those women from a racial or ethnic background, or whose status is that of amigrant, refugee or displaced persons, pregnant women, disabled women, etc.

103 IACommHR (Report) Case No. 12.191, Report No. 66/00, 3 October 2000, Maria MameritaMestanza Chdvez v. Peru, para. 2.

104 IACommHR, Second Report on the Situation of Human Rights in Peru, Chapter VII, para. 6, 2000,<www.cidh.oas.org/women/chapter7.htm>.

105 Organization of American States, American Convention on Human Rights, 22 November 1969,O.A.S.T.S., No. 36, Article 48(1)(f). The 'Friendly Settlement' provision is provided for within theAmerican Convention.

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that the Commission ratify the contents.10 6 While the extent of the agreement isexpansive, certain aspects highlight the responsibilities of the State in relation to thespecific victim, the 200,000 other victims indirectly affected by the case and the futureproceedings of the case within the Inter-American system. The "Friendly Settlement"agreement outlined fifteen points, 0 7 of which seven are of particular interest. Thethird condition, "investigation and punishment," called on Peru to thoroughlyinvestigate the facts and legally punish any person, whether military or civilian, whoparticipated in or perpetrated, either directly or indirectly, the forced sterilisation ofMaria Chivez. 08 The fourth item awarded a one-time compensation of ten thousandU.S. dollars to each beneficiary for reparation of moral injury, which amounted toUS$80,000. The eighth, ninth and tenth conditions detailed medical and educationpayments to be awarded to Mr Suirez and his seven children. It also awarded aUS$20,000 payment to Mr Suarez to assist in the purchase of land or a home. Theeleventh condition outlined "changes in laws and public policies on reproductivehealth and family planning," that the State must implement as part of the "FriendlySettlement" agreement.10 9

The Inter-American Commission on Human Rights' Annual Reports consideredthe stipulations of the agreement, recorded communications with the State anddescribed Peru's compliance, or lack thereof, with the agreement. The Reports mademention of Peru's December 2008 submission that detailed the implementation of theconditions of the agreement. The State maintained that monetary compensation ofthe amounts specified in the agreement had been distributed to the victim's family, aswell as the educational and healthcare provisions. The petitioners replied by statingthat the 20,000 US$, had not been paid in whole, but was instead being paid by theState in instalments.110 Peru's report also outlined the July 2004 establishment of theNational Health and Strategy for Sexual and Reproductive Health, which focused onthe training of health care professionals in family planning and contraceptionmethods.11' The petitioners are noted in this report as stating that there was no factual

106 IACommHR (Report) Case No. 12.191, Report No. 71/03, 22 October 2003, Maria MamaritaMestanza Chdvez v. Peru, para. 2.

107 Ibid. (1) The background of the case; (2) the State's recognition of the crime and its responsibility toprotect and enforce compliance ofhuman rights; (3) the investigation and punishment ofperpetrators;(4) monetary indemnification; (5) waives future claims by petitioner, victim, beneficiary against theState in this matter; (6) right of recovery; (7) compensation as tax-exempt; (8) medical payments; (9)education payments; (10) payment for land/house for victim; (11) changes in domestic law and publicpolicies on reproductive health andfamily planning; (12) the legal basis for the case; (13) interpretation;(14) homologation; and (15) acceptance.

1os IACommHR (Report) Case No. 12.191, Report No. 71/03, 22 October 2003, Maria MambritaMestanza Chavez v. Peru, para. 3.

109 IACommHR (Report) Case No. 12.191, Report No. 71/03, 22 October 2003, Maria MambritaMestanza Chdvez v. Peru, paras. 3-9.

110 IACommHR, Annual Reports of the Inter-American Commission on Human Rights 2008, 2009 and2010 (Washington DC, Inter-American Commission on Human Rights 2009/2010/2011).

n' Ibid.

Intersentia66


validation that supported the State's health training claims. The Inter-AmericanCommission deduced that the fourth, eighth through tenth, and eleventh conditionsof the agreement had been met and followed in accordance with the agreement. Thethird condition, "investigation and punishment," was initiated by the State in Marchof 2004, but the Annual Report noted that four years later no complaint had beenlodged against an individual. The Commission concluded that the State of Peru hadcarried out the terms of the "Friendly Settlement" in part. 112

In January of 2009 the Public Ministry of Peru announced that it would bere-opening investigations into the sterilization of approximately 200,000 indigenousPeruvian women.113 The federal attorney had a mandate to authorize charges ofgenocide, torture and other criminal acts. This response by the Peruvian State to fulfilthe "third" obligation under the "Friendly Settlement" agreement had the originalintention of bringing justice to the thousands of victims of Peru's "Voluntary SurgicalContraception" family planning program.114 However, in May 2009 the publicprosecutor decided to stop the investigations, claiming that the statute of limitationshad expired.115 Immediately following this decision a complaint with the Inter-American Commission was filed in which it was maintained that the State of Peru, inshelving the forced sterilisation investigations, violated both the terms of the "FriendlySettlement," as well as its obligations under the Convention to Eliminate All Forms ofDiscrimination Against Women (CEDAW). 116 In its 13 7th Session, from October to13 November 2009, the Inter-American Commission's chairwoman, Luz PatriciaMejia, demanded that the Peruvian government prosecute those responsible for theforced sterilisation program.

The Maria Mamirita Mestanza Chivez v. Peru case now faces the possibility ofreferral by the Inter-American Commission to the Inter-American Court. This will bethe first reproductive rights case to reach the judicial organ of the Inter-Americansystem.

4. BRINGING IT HOME

The Inter-American regional system of protecting human rights can only be strongand effective if its decisions are implemented by its Member States. As has beenillustrated in each of the cases mentioned in this essay, the State fell short of itsresponsibilities when it came to implementation of gender justice. While the State ofPeru's National Population Law explicitly prohibits forced sterilisation, and theGeneral Health Law regulates sterilisations to ensure that consent is properly

112 Ibid.113 Kearns, supra n. 72." Ibid.us Paez, supra n. 84.116 Ibid.



administered, the judicial system within Peru has failed to investigate and providepunishment for over 200,000 forced sterilisations.117 The State has failed to "bringhome" the recommendations of the Inter-American Commission because it has notyet recognised rural women, and especially their reproductive rights, as deserving ofthe resources and time to carry out judicial proceedings. Elizabeth Moen argues that"no woman, anywhere, has full reproductive freedom"118 because there are internalnorms and external controls in place that restrict women's rights. The rural indigenouswoman in Peru is not immune to these norms and controls. The State's law, in effect,has been built within the patriarchal structure of society, where women are notincluded, but rather, disenfranchised.1 19

The Inter-American system, in order to promote its gender justice modeldomestically, needs to first face the challenge of the underlying issues within LatinAmerican societies. If the status quo in Peru is fundamentally opposed to theempowerment of women through their judicial system, recommendations by theInter-American system to the State will be consistently ignored. The Commission andthe Court, both attempt to address women's rights issues by calling for trainingprograms, reparations for victims and their beneficiaries as well as the implementationof new laws and policies that protect women's rights, but the system fails to confrontthe issues at the core of the problem. One can only speculate that the reason might bethat the Inter-American Commission lapses into believing its role is to decide onjustice in the matter before it and not to proselytise on behalf of other affected parties.If this is true then it is contrary to the jurisprudence in Velasquez Rodriguez inidentifying a widespread problem and to address the State's role in collective humanrights violations. In the Maria Mambrita Mestanza Chdvez v. Peru case,120 the Inter-American Commission did not recognise the "Voluntary Surgical Contraception"program as part of a wider program of eugenics-based population control. Perhaps ifthe Inter-American Commission had taken into account the funding for Peru'ssterilisation program, and then explored the concepts of modernity and progress thatfuelled the population control ideology throughout Latin America in the 1990s, itmight have reached another conclusion.

While gender justice in the Inter-American system appears to have had somesuccess in removing some cases on "domestic violence" as private issues into thedomain of state (or public) responsibility and further into a regional system as humanrights, it has a long way to go to interrogate the traditional norms that historicallysubordinate women. At the same time it is being presented with new opportunitiesnow to push for a wider understanding of the reasons behind such violations. Perhaps

117 Center for Reproductive Rights, supra n. 39, p. 10.us Elizabeth Moen, "Women's Rights and Reproductive Freedom", 3 Human Rights Quarterly (1981),

p. 1.119 Zuloaga, supra n. 24, p. 248.120 IACommHR (Report) Case No. 12.191, Report No. 71/03, 22 October 2003, Maria Mamdrita

Mestanza Chdvez v. Peru.

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that will come when an action is brought by the Inter-American Commission onbehalf of the 200,000 women who were coerced into sterilisation by a state policy andpractice. 121

121 The Annex to Press Release 78/09 on the Regular Period of Sessions of the IACHR states: "Withregard to Peru, the IACHR expresses... its deep concern over the possibility that this matter couldremain in a state of impunity, and hopes that the necessary measures can be adopted so that this canbe investigated and those responsible punished", <www.cidh.org/Comunicados/English/2009/78-09engAN.htm>.


Bringing It Home: The Inter-American System and State Obligations - Using a gender approach...

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