March 3, 2006

Accountability for International Development Banks and their Sponsors

The Pending COHRE Petition for Atrocities in Guatemala

By Bret Thiele and Mayra Gomez

A petition filed by the Centre on Housing Rights and Evictions (COHRE) in September, 2004, based on displacements and killings in Guatemala has been initially accepted by the Inter-American Commission on Human Rights (IACHR).

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The petition seeks to hold the Government of Guatemala, the Government of the United States, the World Bank and the Inter-American Development Bank (IADB) jointly and severally liable for gross human rights violations stemming from the Chixoy Dam project in Guatemala. The IACHR will likely consider the issue of admissibility in October, 2006.

The Chixoy Project and the Massacre and Displacement of Maya-Achi Peasants

Man by Rio Negro

Credit: Bret Thiele

In the early 1980s the Government of Guatemala was involved in one of the most brutal phases of an already brutal war against the majority of the Guatemalan people. At that time, the World Bank and the Inter-American Development Bank partnered with the Government of Guatemala to fund the construction of the Chixoy Hydroelectric Dam, a project that would greatly benefit many of the military leaders who owned vast tracks of land in the area. The first phases of the dam project involved displacing Maya-Achi peasants from the reservoir basin in which they had lived for generations. The displacement of the village Rio Negro was carried out through a series of brutal massacres, all under the financial support and supervision of the two banks.

Legal Responsibility of States as parts of the World Bank and IADB

In addition to the Government of Guatemala, the COHRE petition joined the States with human rights obligations under the Inter-American Human Rights system which were Directors of the two banks and held disproportionate voting power, in particular the United States.

One argument presented in the petition is that States that make up the banks all have human rights obligations. These States cannot ignore, or indeed violate, these obligations simply by organizing themselves into inter-governmental organizations or by using the banks as agents to carry out policies that violate their respective international human rights obligations.

The United Nations General Assembly's International Law Commission (ILC) has begun to address the issue of the international responsibility of States for the internationally wrongful act of an international organization. The ILC, in the provisionally adopted articles on the Responsibility of International Organizations, states in Article 1 that the said articles do indeed apply to the international responsibility of States for the internationally wrongful act of an international organization. Furthermore, the provisionally adopted Article 3 states, inter alia, that an internationally wrongful act has occurred "when conduct consisting of an action or omission: (a) is attributable to the international organizations under international law; and (b) constitutes a breach of an international obligation."

The World Bank, States and International Human Rights Law

Massacre Site by Rio Negro

Credit: Bret Thiele

Additionally, as to specific legal obligations of the World Bank, as a Specialised Agency of the United Nations, the World Bank is obligated not to defeat the purposes of the Charter of the United Nations. Indeed, the World Bank must work to further the objectives of the Charter of the United Nations, and of course must not undermine those objectives, including the promotion of "universal respect for, and observance of, human rights and fundamental freedoms for all." Furthermore, Article 103 of the UN Charter makes clear that "in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."

States cannot abrogate their respective human rights obligations simply by acting collectively through inter-governmental organisations, including inter-governmental development banks. Human rights advocates, and indeed human rights mechanisms, such as those of the United Nations, the Organization of American States, the African Union and the Council of Europe, must hold such entities and their Member States accountable for human rights violations. To do otherwise will simply create and maintain impunity for some of the gravest violations of international law. Advocates must therefore work to develop arguments to hold such actors accountable, and to force human rights mechanisms not to abrogate their respective obligations to provide judicial or quasi-judicial remedies to victims of such human rights violations.

Current Proceedings before the IACHR

Under the Rules of Procedure for the Inter-American Commission on Human Rights, issues of admissibility, which will be likely be considered for this case in October, 2006, include whether the petition makes claims under the relevant treaties, timeliness of submission of the petition, whether domestic remedies have been exhausted, and whether the case is being considered by another international mechanism. Additionally, jurisdiction over the Member States of the two banks will likely be one of the more contentious issues.

For organizations interested in learning more or supporting the petition with an amicus curiae brief, please contact Bret Thiele at Litigation@cohre.org. For more information on the Chixoy Dam case, including a longer version of this article and the Petition filed with the Inter-American Commission on Human Rights, see: www.cohre.org/guatemala.

About the Authors and COHRE

Dilapidated Housing for Displaced Rio Negro Residents

Credit: Bret Thiele

Bret Thiele is a member of the Nation Lawyers Guild. Bret and Mayra Gomez work for the Centre on Housing Rights and Evictions (COHRE), an international human rights organization based in Geneva, Switzerland with offices in the U.S., Brazil, Ghana, South Africa, Sri Lanka, Thailand and Australia. COHRE is involved with the Chixoy Dam Reparations Campaign in an effort to finally bring justice to the survivors of the Rio Negro massacres, including just and fair compensation from the Government and the two Banks.

COHRE, the National Lawyers Guild, and the Jerusalem Centre for Human Rights submitted a joint amicus curiae brief to the Jerusalem District Court in the case of State of Israel v. Ascherman, et al. in February, 2004, challenging the demolition of Palestinian homes. That brief is available at http://nlg.org/mideast/pleadings-briefs/AschermanAmicusFINAL.pdf