On October 30, the Inter-American Commission on Human Rights released its report, Impact of the Friendly Settlement Procedure, elucidating the history, mechanics, and emblematic results of the friendly settlement mechanism, which allows petitioners and States to resolve disputes concerning human rights violations without obtaining a decision or judgment from an Inter-American human rights body. See IACHR, Impact of the Friendly Settlement Procedure (2013).
The Commission prepared this report after studying 106 friendly settlement reports approved between 1985 and 2012; establishing a working group on human rights and alternative dispute resolution; and issuing a special questionnaire requesting feedback from States, civil society organizations, and experts on alternative dispute resolution. See id. at paras. 11–15. The report is intended to strengthen the friendly settlement mechanism by increasing understanding of how the mechanism works and serving as a guide for how to use the procedure effectively. See id. The first section of the report discusses the evolution of the procedure, and the second section covers the impacts of friendly settlement agreements’ implementation. [IACHR Press Release]
Section One: Evolution of the Procedure
The friendly settlement procedure is outlined in Article 40 of the Commission’s Rules of Procedure, and Article 48(1)(f) of the American Convention on Human Rights. The report tracks how the procedure has evolved over the years to ultimately create a more flexible mechanism. See IACHR, Impact of the Friendly Settlement Procedure, 18 December 2013, paras. 7, 51–58. For example, the report explains how the 2000 revisions to the Rules of Procedure adapted the mechanism so that it authorized, inter alia, the Commission to determine whether the petitioner has consented to the agreement, and to implement follow-up measures to verify compliance with the settlement. See id. at para. 51–54.
In addition to monitoring compliance, the Commission has taken on an increasingly active role in facilitating negotiations among the parties. See id. at para. 9. The Commission has also created a Friendly Settlement Group to act as a point of contact for parties, conducted trainings for the Executive Secretariat staff on alternative dispute resolution, and prepared an internal protocol to facilitate the processing of friendly settlements. See id. at para. 10.
The Current Friendly Settlement Procedure
The option to reach a friendly settlement is available to States and petitioners once the Commission has begun processing a petition, meaning the Executive Secretariat has determined that the petition has undergone an initial evaluation and has been forwarded to the State. The friendly settlement procedure will continue unless the Commission finds that the “matter is not one susceptible to resolution through a friendly settlement” or that one of the parties “opposes it or does not show a willingness to reach a friendly settlement respectful of human rights.” See id. at para. 59. The parties may hold meetings to negotiate on their own or with the participation of the Commission. When the Commission participates, the negotiations are usually facilitated by the Commissioner who acts as the Country Rapporteur for the State involved. If the parties are unable to reach an agreement, the Commission continues processing the petition through its admissibility or merits phase, depending on whether an admissibility determination had already been made when the parties entered friendly settlement negotiations. See id. at paras. 59–62.
If the parties are able to reach an agreement, the Commission must determine whether the victim or the victim’s successors have consented to the settlement and whether the agreement is “based on respect for the human rights recognized in the American Convention, the American Declaration [of the Rights and Duties of Man] and other applicable instruments.” See id. at para. 61. If the Commission finds that both questions may be answered in the affirmative and that the agreement is acceptable, it publishes a report setting out the facts established and the final agreement. The Commission’s follow-up measures may include requesting information from the parties and holding hearings to verify compliance. See id. at para. 63. Friendly settlement reports previously published by the Commission may be viewed on its website. State compliance with friendly settlements and merits reports may be found in the Commission’s Annual Reports, where it analyzes the State’s compliance and classifies it as either “total, partial, or pending.” See id.
Section Two: Impacts of Implementing Friendly Settlements
In the second part of its new report, the Commission explains how friendly settlements “have had a positive impact, not only on the immediate victims of human rights violations, but on society as a whole, because the agreements provide for measures of reparation that have fostered change in the structure in which the violations occurred.” See id. at para. 159. The report stresses that an effective friendly settlement is only possible when there is a trusting relationship between petitioners and the State. The petitioners must be able to clearly express what reparations they believe are in order, and States must be open-minded to the petitioners’ requests, while remaining realistic about the measures the they are able to undertake. See id. at paras. 228–231.
When victims bring forth claims of human rights violations under the Inter-American human rights system, they are “entitled to adequate reparation for the harm suffered, in the form of individual measures of restitution, compensation and rehabilitation, as well as general measures of satisfaction and guarantees of non-repetition.” See id. at para. 64. Many victims of human rights violations “have obtained full restitution” through friendly settlements. [IACHR Press Release] The report discusses each type of reparation in turn with reference to specific case examples, while emphasizing that one of the benefits of friendly settlements is that petitioners and the State are able to specifically agree on how the violation should be remedied. See IACHR, Impact of the Friendly Settlement Procedure, 18 December 2013, para. 69.
Individual Measures of Restitution
Restitution is intended to stop the violation and to return the victim to the condition he or she was in before the violation occurred. See id. at para. 68. Out of 106 friendly settlement agreements, measures for restitution have been included in 18 agreements. Examples of individual measures of restitution involve the restoration of an individual’s liberty, the repeal of laws that violate the rights set forth in the American Convention, the return of ancestral land, and the reinstatement of employment. See id. at paras. 71–90. In the past, a State’s agreement to repeal national legislation has had a “ripple effect,” causing other nations to strike down their similar laws. See id. at paras. 77–80.
Compensation and Rehabilitation
Friendly settlements may result in the provision of medical, psychological, and social rehabilitation. Providing for rehabilitation may involve the State paying a certain sum of money for expenses, ensuring access to the necessary treatment free of charge, or giving the victim permanent health coverage. See id. at paras. 95–99. Social rehabilitation is designed to assist victims with their personal development, which often includes “vocational rehabilitation so that they can obtain and maintain adequate work.” See id. at para. 101. To this end, many victims have received educational scholarships, technical training, or funding for community projects through friendly settlements. See id. at paras. 102–104.
Economic compensation has been ordered in 82 out of the 106 friendly settlement agreements, to remedy both pecuniary and non-pecuniary damages. See id. at para. 149. States have complied with their agreement to provide economic compensation in 92% of friendly settlements. See id.
Satisfaction Measures
Satisfaction measures are intended to uncover the truth surrounding human rights violations and punish those responsible, so that it becomes “possible to ascertain facts, restore the victims’ dignity and reputation, and prevent future human rights violations.” See id. at paras. 105–106. These measures include: public acknowledgement of State responsibility, searching for the remains of victims of human rights violations and requiring their return, official declarations to restore victims’ honor and reputation, enforcement of judicial and administrative sanctions against perpetrators of human rights violations; and the establishment of tributes and monuments to honor the victims. See id. at paras. 105–145. Acknowledgement of State responsibility has been included in 77 of the 106 friendly settlement agreements. See id.at para. 109.
Guarantees of Non-Repetition
Measures of non-repetition are designed to prevent human rights violations from reoccurring. Some such measures include: implementing legislative and regulatory reform, adopting public policies, and training State officials and civil servants. See id. at paras. 158–227. Measures of non-repetition that involve legislative reform have been included in 29 friendly settlements, and have been respected in 58% of cases. See id. at para. 164.
Proposals for Best Practices
The report also discusses proposals for best practices that arose at the First Inter-American Conference on Human Rights and the Exchange of Best Practices on Friendly Settlements, in June 2013. See id. at para. 18. These proposals included: the establishment of ad hoc arbitration courts to determine the amount of economic compensation, State adoption of domestic legislation establishing mechanisms to ensure enforcement of friendly settlements, and State creation of multi-institutional teams to participate in the negotiation of friendly settlements. See id. at para. 232. Moreover, participants in the conference urged the Inter-American Commission to “play a more active role as a facilitator of the [friendly settlement] process,” including by adopting guidelines for negotiations and methods for measuring State compliance. Id. at para. 233-36. The report states, “The Commission has taken note of” these recommendations. Id. at para. 237.
Additional Information
For more information on the Inter-American Human Rights System, visit IJRC’s Online Resource Hub.