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On Monday, March 3, the Inter-American Commission on Human Rights (IACHR) held a regional thematic hearing titled “State Human Rights Obligations in Corruption Contexts.” Civil society organizations discussed specific examples of corruption and its impact on the enjoyment of human rights in several Latin American countries. This essay delves into key elements that the IACHR should consider when responding to the intersection of corruption and human rights. It outlines recent developments on this issue within the Inter-American System of Human Rights (IAS) and examines certain aspects of the international responsibility of States for acts of corruption, the status of victims of this crime under IAS instruments, and the parameters of reparation that should be used by the IACHR.
Recent developments in the human rights and corruption agenda in the IAS
The Inter-American Court of Human Rights (IACtHR) and, above all, the IACHR have issued significant rulings clarifying certain State obligations concerning human rights and corruption. In 2017 and 2018, the IACHR adopted two resolutions and, in 2019, published a thematic report on the subject. This report remains the most comprehensive systematization of human rights obligations in corruption contexts to date.
The IACHR’s preliminary observations following its in loco visit to Guatemala and its report on the human rights situation in Honduras contain new sections on human rights violations committed by corruption networks where public and private actors converge. Over the past three years, its scrutiny of human rights situation across the continent, as outlined in Chapter IV of its Annual Report, has incorporated examples of corruption-related human rights violations, many of which qualify as grave violations.
For its part, the Inter-American Court has issued numerous rulings examining the impact of corruption on democracy, the rule of law and human rights. Among the recent significant rulings are the analysis of widespread corruption in adoption processes in Guatemala (Case of Ramírez Escobar et al.), the failure to comply with obligations to protect a whistleblower for acts of corruption in Ecuador (Case of Viteri Ungaretti et al.), and the effects of corruption and the lack of access to information on illegal logging in Chile (Case of Baraona Bray). In an effort to systematize its jurisprudence on the subject, the IACtHR published a compendium on human rights and corruption in 2021.
Despite these recent developments, several questions remain regarding procedural criteria and attribution of responsibility for human rights violations resulting from corruption. Below, we propose interpretative elements that could guide these criteria.
International responsibility for acts of corruption
Under international law, a State is held responsible when an action or omission by its agents violates a treaty or when the actions of a private agent that contravenes said treaty is attributable to the State. The United Nations (UN) and the Organization of American States (OAS) have specific treaties that include obligations to prevent and combat corruption, the breach of which generates the international responsibility of the State party. However, not every breach of these treaties implies a violation of human rights per se. Nevertheless, there are several cases in which an act of corruption results in the breach of obligations contained in the ISHR regulatory framework.
Such a situation occurs, for example, when a judicial decision is the product of influence peddling or other forms of corruption, thus violating the judicial guarantees and protections provided for in Articles 8.1 and 25 of the American Convention on Human Rights (ACHR). Similarly, an indigenous community or people would have their right to collective property violated when their territory is titled in favor of third parties through fraud, bribery, or corruption of the State authority responsible for the registration and recording of real estate. Far from being hypothetical situations, the examples described here occur daily in the region and have been reflected in contentious cases already decided by the bodies of the ISHR.
These examples demonstrate the complexity of the problem in cases where there is a clear breach of the international obligation to guarantee human rights, for at least two reasons. On the one hand, there is the violation of the duty to prevent human rights violations that occur as a consequence of acts of corruption due to the lack of adequate and effective mechanisms in the fight against this crime. On the other hand, because investigations and sanctions related to acts of corruption do not take into account the effects on individual or collective victims, those victims can be deprived of access to reparation for violations of their rights.
One of the primary challenges in strengthening the human rights and corruption agenda within the IAS is securing more specific rulings from IAS bodies on corruption’s role in concrete human rights violations. To achieve this, it is essential to clarify when a victim of corruption can be considered a victim of ACHR violations. Additionally, the IACHR must develop more specific reparative standards in corruption-related cases.
Status of Victims of Human Rights Violations
The IACHR and the IACtHR have yet to define a clear criterion for victim status in contentious cases based on acts of corruption. Nonetheless, the consistent practice of these bodies imposes certain procedural requirements for a person or group to be considered victims of ACHR violations. Among these, petitioners must demonstrate personal harm suffered by the alleged victim, who must be properly identified. This procedural burden excludes from the system of petitions and cases the so-called actio popularis, aimed at protecting the diffuse rights of an indeterminate number of people. This requirement resembles the concept of legitimate procedural interest in certain civil and constitutional actions, whereby the claimant must hold a material right.
In short, the IACHR and the IACtHR cannot attribute international responsibility to a State in the abstract, without an individualized petitioner substantiating the case. Mutatis mutandis, supranational bodies have dismissed claims brought on behalf of an indeterminate group of persons or when the alleged victim fails to demonstrate harm to himself or herself. This criterion has been applied, for example, in environmental and climate-related disputes decided by the IACHR (Case of the Metropolitan Natural Park v. Panama) and by the European Court of Human Rights (Case of Carême v. France).
The IACHR’s 2019 thematic report on human rights and corruption clarifies that: “It is not possible to consider corruption as a crime without victims; when cases of corruption and/or systems of corruption arise, it is necessary for States to make every effort to identify the victims, determine the damage caused and take appropriate measures for reparation,” (paragraph 487). This approach should be expanded through rulings on petitions and cases in which specific victims of violations of the ACHR are established as a result of acts of corruption.
Specific Reparative Measures
Any international crime generates the obligation to compensate the subject of the infringed right. The bodies of the ISHR have followed the categories of reparation systematized in the Draft Articles on Responsibility of States for Internationally Wrongful Acts. While some of these measures fulfill a restorative function in favor of those who have suffered harm (e.g., compensation and rehabilitation), others seek to settle the effects of the international wrong in favor of both the victims and the community, or to prevent its repetition (e.g., satisfaction and measures of non-repetition), and others fulfill both functions (e.g., restitution and cessation).
In its 2019 thematic report, the IACHR emphasized that, in contexts of grand corruption—where corruption operates as a systemic model within State institutions—comprehensive reparative policies are essential. These policies should aim to redress specific victims while restoring democratic rule of law (paragraph 521).
When examining contentious cases in which corruption constitutes a central element of the context or appears as a cause of a violation of human rights, the IACHR should establish specific reparations that seek, on the one hand, to compensate the specific victims for the damages suffered. On the other hand, it should establish measures that transcend individual damages and encompass the structural conditions of corruption and its impact on the enjoyment of fundamental rights examined in the ruling on the merits. For instance, the IACHR could order the restitution of public funds lost to corruption when such losses have obstructed the realization of economic and social rights. This measure could be implemented through judicial prosecution of public and private actors involved in corruption that directly violates the ACHR, with courts imposing financial penalties and civil reparations to restore affected public services.
Regarding guarantees of non-repetition, institutional reforms to anti-corruption laws and mechanisms for transparency and access to information should be mandated, as these are crucial for citizen oversight and democratic governance of State resources.
Final considerations
We recommend prioritizing the development of standards across all IACHR workstreams concerning acts of corruption, given that corruption remains one of the primary threats to democratic stability and human rights in the region. A substantial contribution would be to clearly establish that, as part of their obligation to guarantee human rights and ensure access to effective remedies, States must recognize corruption victims as human rights violation victims when a causal link exists, guarantee their participation in judicial processes, and ensure comprehensive reparations for corruption-related harm.
Finally, it is crucial to prioritize the processing of petitions alleging human rights violations caused by acts of corruption, thereby bringing concrete cases into regional jurisprudence to clarify the applicable State obligations.