The State, the assailant? Guaranteeing economic and social rights after widespread violence through the Inter-American Court of Human Rights
| Author | Felix E. Torres |
| Date | 01 March 2022 |
| Published date | 01 March 2022 |
| DOI | 10.1177/09240519221086436 |
| Subject Matter | Articles |
The State, the assailant?
Guaranteeing economic and
social rights after widespread
violence through the Inter-
American Court of Human
Rights
Felix E. Torres
*
Law School, University of Birmingham
Abstract
The Inter-American Court of Human Rights has traditionally addressed the socio-economic
wrongs that result from episodes of widespread violence indirectly, under the lens of civil and pol-
itical rights abuses. This article provides a historical explanation of this approach and expands on
the limitations that follow from it in the Court’s jurisprudence. Using empirical data on victims and
perpetrators in countries affected by armed conflict and organised crime, the article measures the
magnitude of these limitations. To overcome them, it suggests that the right to a ‘dignified life’and
recent developments concerning the enforceability of economic and social rights be applied after
widespread violence, following the lead of the Colombian Constitutional Court regarding the pro-
tection of internally displaced people by violence.
Keywords
Economic and Social Rights, Reparations, Inter-American Court of Human Rights, Armed Conflict,
Post-Conflict, Internally Displaced People
* TeachingFellow, Law School, University of Birmingham. A version of this text was presented at the ESRAN-UKI Summer
Workshop 2021, co-hosted with the Irish Centre for Human Rights, NUI Galway. The author wants to thank all parti-
cipants for their comments, especially the detailed remarks by Stefano Angeleri. Aoife Nolan and Nigel D. White pro-
vided detailed feedback on early versions of this article and the author is grateful to them for their support and guidance
during the research that led to this publication. The author worked at the Constitutional Court of Colombia during the
period 2011–2017.
Corresponding author:
Felix E. Torres, Law School, University of Birmingham.
Email: f.torres@bham.ac.uk
Article
Netherlands Quarterly of Human Rights
2022, Vol. 40(1) 12–34
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519221086436
journals.sagepub.com/home/nqh
1. INTRODUCTION
The Inter-American Court of Human Rights (IACtHR or Court) began to operate through its advis-
ory function in the early 1980s, with its first contentious judgment issued in 1988. Embedded in the
growing momentum for the protection and promotion of civil and political rights driven by the
Inter-American Commission (IACmHR or Commission) in the late 1980s and early 1990s,
1
the newly established Court largely framed violence in the region as a matter of ‘State terrorism’.
2
That is to say, primarily as ‘systematic practices’affecting civil and political rights ‘tolerated or
perpetrated by the State in a situation of general impunity’.
3
Hence, from its inception, the Court
followed the Commission’s classic approach to human rights law, according to which its main func-
tion is to address those situations in which the State, ‘whose function is to protect the individual,
becomes his assailant’.
4
In framing violence in this way, the Court neglected for a significant
time the socio-economic wrongs arising from armed conflict and other instances of widespread vio-
lence affecting certain States in the region.
5
By widespread violence, this article understands the
forms of violence that cannot be reduced to State-led action (either through its own security
forces or proxy militias), but are also perpetrated by other armed actors (for example, rebel
forces, groups of organised crime) and result from the dynamics of conflict as such (for
example, armed combat).
With the turn of the century and with States beginning to move away from the shadows of dic-
tatorships, the Court has progressively taken into account certain socio-economic issues in two
directions. On the one hand, in conflict-related scenarios, it has stretched traditional duties to
respect and protect civil and political rights to include the socio-economic distress of those affected
by violence, especially the plight of internally displaced persons (IDPs).
6
It has also ordered far-
reaching remedies that involve the provision of socio-economic goods after widespread violence,
including the adoption of comprehensive development plans.
7
On the other hand, in peacetime,
the Court developed the notion of the right to a ‘dignified life’and more recently directly enforced
economic and social rights (ESR).
8
The 2017 case Lagos del Campo,
9
deemed to be the ‘major
triumph’in terms of ESR adjudication given that the Court decided for the first time to directly
enforce Article 26 of the American Convention on Human Rights (ACHR), opened previously
unknown avenues for the protection of ESR in the region.
10
1. Robert Goldman, ‘History and Action: The Inter-American Human Rights System and the Role of the Inter-American
Commission on Human Rights’(2009) 31 Human Rights Quarterly 856, 874–5.
2. Victor Abramovich, ‘From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the
Inter-American Human Rights System’(2009) 6 Sur-International Journal of Human Rights 7, 8–9; Laurence
Burgorgue-Larsen and Amaya Úbeda de Torres, ‘“War”in the Jurisprudence of the Inter-American Court of Human
Rights’(2011) 33 Human Rights Quarterly 148, 156–160.
3. Burgorgue-Larsen and Úbeda de Torres (n 2) 160; Abramovich (n 2) 9, 11.
4. Annual Report of the Inter-American Commission on Human Rights 1990–1991 (IACmHR, 22 February 1991) ch V, s
II 2.
5. See Section 2.
6. See Section 3.
7. See Section 4.
8. See Section 6.
9. Case of Lagos del Campo v Peru IACtHR Series C 340 (31 August 2017) paras 141–154, 166.
10. Isaac de Paz González, The Social Rights Jurisprudence in the Inter-American Court of Human Rights: Shadow and
Light in International Human Rights (Elgar 2018) 2.
Felix E. Torres 13
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