Friday, December 25, 2015

When does discipline become torture/cruel, inhumane, degrading treatment?

Corte Interamericana de Derechos HumanosIn the judgment Quispialaya Vilcapoma v. Peru, issued on November 23, 2015, the Inter-American Court of Human Rights was confronted with the question when does physical discipline become torture or cruel and inhumane treatment in a military context.  The Peruvian military, which, like many others in Latin America, is now voluntary, attracts young men who have limited employment possibilities elsewhere.  In this case, Valdemir Quispialaya made some mistakes during target practice and his superior, Juan Hilaquita, struck him in the head as a disciplinary measure, an action that resulted in Quispialaya eventually losing sight in his right eye

The Inter-American Commission on Human Rights, which brought the case to the Court and decided it first, stated that Mr. Quispialaya had been the victim of a pattern of torture and cruel, inhuman and degrading treatment within the military dependencies which derived from an entrenched and erroneous interpretation of military discipline.  The Court, however, recognized the existence of  a context of physical and psychological mistreatment in the military service environment in Peru, arising from an entrenched culture of violence and abuse in the application of discipline and military authority, however it accepted the State's argument that there was not sufficient probative information to affirm that during this time there was a pattern or situation of generalized practice of torture, cruel, inhuman and degrading treatment related to military service.

Despite the fact that the Court did not find that there was a "pattern" of torture or ill-treatment, it gave importance to the suffering of the victim.  The Court found that the physical aggression  that led to the loss of his sight caused both physical and mental suffering to Mr. Quispialaya and was therefore removed from the category of "disciplinary" actions appropriate for military jurisdiction and became a violation of Mr. Quispialaya's human rights.  So the Court has narrowed the scope of military jurisdiction once more.  What looked like a case of military discipline between a superior and a subordinate in the military context, depending upon the consequences of the action for the victim, becomes a human rights violation.  The consistent jurisprudence of the Court has stated that human rights violations are to be tried in ordinary civilian tribunals and not under military jurisdiction.

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