Unreported News made by the International Commission of Jurists

What is news?

Seems like a simple question. News is something that happens that is important enough to be picked up by the media and commented on and discussed.

As anyone following the Honduran coup d'etat and its aftermath knows, however, what is news depends on the judgment of the media, and that judgment is very selective. Horse-race show elections are news, but the protests against them are not. The installation of a meaningless "Truth Commission" which has no credibility with conservative or progressive ends of the political spectrum is news, but the formation of a commission with independence and credibility is not. And tragically, too little of the violence perpetrated against union organizers, peasant cooperatives, women, sexual minorities, and even journalists is unworthy of serious news coverage, at least in mainstream English media.

But despite knowing all this, we find it extraordinary that the US media completely ignore even high profile international organizations that continue to call attention to the serious failures of Honduras to redress any of the circumstances that the coup d'etat of June 2009 set in motion. Human Rights Watch's statement on from December 20, for example, has barely has been noticed.

Now, perhaps there hasn't been enough time to get news coverage of the HRW report out. Yet the same is true of the stinging report by the International Commission of Jurists, which has now been available for weeks.

What's the news here? Well, this is a rebuke not only to Honduras, but to the government claiming most loudly that Honduras has put the coup behind it, which is the US. It repudiates the main claims in the US argument for "progress" in returning to civil order, which are the election of Porfirio Lobo Sosa and the appointment of a "Truth Commission". Instead, it urges Honduras to follow the proposals of Latin American nations, including UNASUR, about the necessary steps to take to regain political credibility following a coup.

Here are a few points from the CJI statement that reporters might have followed up as news:

• The CIJ endorsed giving the alternative truth commission the same level of resources, international support, and access to government sources of data as the official "Truth Commission", arguing that the latter has no credibility with the victims of the coup. Why is this news? because the US claims the "Truth Commission" is meaningful and an effective step to restoring democracy.
  

• The CIJ called for the installation of an International Commission against Impunity and an office of the High Commission of the UN for Human Rights. Noting (without naming him) that Ramón Custodio supported the coup, it argued that the Honduran Human Rights commission had lost credibility. News, again, because Custodio remains in office under the Lobo Sosa government.
  

• The CIJ called explicitly for the restitution of the judges dismissed for their opposition to the coup d'etat. The CIJ provided grounds in international law in support of the right, and actually duty, of judges to oppose disruptions of constitutional order. These dismissals happened during the term of office of Porfirio Lobo Sosa and can hardly be ignored as evidence that the present government of Honduras is still carrying on the violence against democratic order of the coup d'etat.
  

• The CIJ also called for effective investigations of the many extrajudicial killings that have occurred since the coup d'etat. It specifically called for police and military to be tried in civil courts, not special military tribunals. The US refuses to even respond meaningfully to press questioning about the continued killings of activists.
  

• Finally, going beyond the coup itself, the CIJ also expressed concerns about a newly proposed "Law on Financing of Terrorism". This kind of legislation has all sorts of potential for abuse. We will not be holding our breath for coverage of this issue, anymore than we will for coverage of any of the other points made by the CIJ.
  

[We have posted our translation of the statement, which can be found here in Spanish, as a document. If an English version exists, we have not been able to find it, and we thought this was significant enough to make it available more broadly.]

Justice Delayed for Honduras

In light of statements that the Procuraduria General of Honduras is happily poised to appoint a "defender" for José Manuel Zelaya Rosales, so his trial can proceed without waiting for him to actually participate, it is especially timely that today also brought news of a visit to Honduras by a non-partisan international body monitoring the Honduran judiciary.

The news is not good.

La Tribuna reports that the Comisión Internacional de Juristas (CIJ)-- International Commission of Jurists, in English-- visited Honduras between December 6 and 10 of this year. The CIJ concluded that its opinion registered in 2003, that

the Judicial system of Honduras “is permeated with extreme partisan polarization",

still is valid; and that in 2010,

"despite the efforts realized by NGOs and the international community, the advances are few and the majority of recommendations have not been followed."

As we noted during the heat of last summer, changes undertaken in the Honduran legal system in the last decade were intended to shift the Honduran legal system from an inquisitorial to an adversarial system, in which the rights of the accused include, among other things, the presumption of innocence.

These reforms require Honduran judges to change their role from zealously pursuing evidence themselves, to assessing arguments by prosecutors and defenders. Inquisitorial systems do not generally include a presumption of innocence, and in our view, it is this change that has not fundamentally been absorbed in Honduran legal proceedings, which still appear to operate on the until-recently familiar inquisitorial model.

For those of you who don't quite get the distinction-- which, based on reading Mary Anastasia O'Grady's recent wad of words about Honduras, includes columnists for some of our major newspapers-- under an adversarial system there is a presumption of innocence, meaning the accusers or prosecutors have to demonstrate their case.

"Where there's smoke, there's fire" may be a good traditional folk saying-- but it ain't the law of the land, not in the US, and not (anymore) in Honduras.

(O'Grady's problem is confusing the presumption of innocence, which is uniform in US legal practice, with the existence of different standards of proof in criminal and civil cases. Criminal cases use a standard of proof "beyond a reasonable doubt". Civil cases-- which are differentiated from criminal cases because the state is not one of the parties, and the outcome is awarding damages, not jail sentences-- usually use a standard of "preponderance of evidence". As a result, while civil cases also incorporate the common law "presumption of innocence", meaning the accusers have to make a case, once they have done so convincingly, it may be up to the accused to refute the arguments made. The reason why OJ Simpson could be found liable in a civil action is that there was a different, easier to reach, standard of proof-- not that he started out presumed guilty. At least not legally. While expecting anything sane from O'Grady is probably too much to ask, her belief that the trumped-up charges against Manuel Zelaya were not subject to the criminal legal code of Honduras simply shows how little she knows of Honduran jurisprudence. But it beggars belief that she doesn't understand the US legal system.)

Which reminds me, back to the primary topic here: in 2003, the CIJ singled out as an example of extreme partisanship the procedures for the appointment of Honduran Supreme Court justices:

“A clear example of this partisanship can be observed in the election of magistrates for the Supreme Court. While the procedures for selection anticipated the participation of diverse sectors of civil society and the political task, the election of those magistrates had as a result a Court divided along lines of political affiliation, with a majority clearly identified with officialdom and a minority in opposition."

A press release summarizing the current findings of the CIJ can be downloaded (Spanish only) from their website. The CIJ noted that the coup exacerbated previously identified weakness of the judicial system, pointing to an increase in impunity in violations of civil rights and a lessening of judicial independence.

The actual report is worth reading in full. In item 6 it goes to lengths to argue that "the restoral of constitutional order doesn't come about simply by convening and carrying out general elections":

The return to democratic legality demands identifying the responsibility of the authors [of the disturbance of constitutional order], without prejudice to other means necessary for reconcilation as an element of co-existence; in addition, according to international legal doctrine it is impossible to legitimate a coup d'etat by means of de facto measures or the development of apparently constitutional arguments about the de facto doctrine that contradict the same principles of democracy and the International Law of Human Rights.

As we noted last summer, the CIJ has been quite critical of judicial progress in Honduras since it began monitoring the attempts to modernize and professionalize the legal system.

Since nothing has improved, it is hardly surprising that the CIJ concludes that things are bad. But it is heartening to see clear endorsement of the need to address impunity and the targeted killings of women, lawyers, and journalists advanced by an international body that is not afraid to say that a coup cannot be put behind simply by recognizing an election.

It is a message the US would do well to heed.