On Mar. 22, 2023, dozens of people watched a live broadcast from San José, Costa Rica, on a large screen at the University of El Salvador, in San Salvador, of the open hearing of the Inter-American Court of Human Rights, listening to the testimony of witnesses in the Beatriz v. El Salvador case. The screenshot shows Beatriz's mother giving her testimony. CREDIT: Edgardo Ayala/IPS

By Edgardo Ayala
SAN SALVADOR , Mar 24 2023 (IPS)

An open hearing in the Inter-American Court of Human Rights in the Beatriz v. El Salvador case is raising hopes that this country and other Latin American nations might overturn or at least mitigate the severe laws that criminalize abortion.

That will happen if the Inter-American Court rules that El Salvador violated the right to health of Beatriz, as the plaintiff is known. In 2013 she sought to have her pregnancy terminated because it was high risk and her life was in danger."I hope that in the end my daughter's name will be vindicated, and that what happened to her will not happen again to any other woman.” -- Beatriz´s mother

But she was not given an abortion, only a tardy cesarean section, which affected her already deteriorated health and, according to the plaintiffs, eventually led to her death in October 2017.

The hearing on the emblematic case was held Mar. 22-23 at the Inter-American Court in San José, Costa Rica. Beatriz’s case builds on similar ones: the cases of Manuela, also from El Salvador, Esperanza from the Dominican Republic, and Amelia from Nicaragua.

The seven judges heard the arguments of the plaintiffs, the representatives of the Salvadoran State and the witnesses on both sides.

After the hearing, the parties have 30 days to deliver their written arguments and the magistrates will then take several months to debate and reach a resolution.

The open hearing held by the Inter-American Court of Human Rights on the Beatriz v. El Salvador case is the first time that the complete ban on abortion has been tried, and the verdict will have implications for Latin America, a region that is especially restrictive in terms of women’s sexual and reproductive rights. CREDIT: Inter-American Court of Human Rights

A historic case

“I hope that in the end my daughter’s name will be vindicated, and that what happened to her will not happen again to any other woman,” Beatriz’s mother said when testifying on the stand. Her name was not revealed in court.

The hearing has drawn international attention because it is considered historic for the sexual and reproductive rights of women in a region that is especially restrictive with regard to the practice of abortion.

“This will be the first case where the Court will rule on the absolute prohibition of the voluntary interruption of pregnancy, particularly regarding the risk to health and when the fetus is nonviable,” Julissa Mantilla Falcón, from the Inter-American Commission on Human Rights (IACHR), told the Inter-American Court.

Beatriz turned to the IACHR when the Constitutional Court of El Salvador denied, on Apr. 11, 2013, her request for an abortion.

On Apr. 19, the IACHR issued a precautionary measure in favor of Beatriz, and on May 27, 2013, it asked the Inter-American Court to adopt provisional measures which would be binding on the State.

In its November 2020 Merits Report, the IACHR established that the Salvadoran State was responsible for the disproportionate impact on various rights of Beatriz, by failing to provide her with timely medical treatment due to the laws that criminalize abortion.

The IACHR identified the disproportionate impact of this legislation on Salvadoran women and girls, especially the poor.

The Commission stated that it did not expect full compliance by the State with the recommendations of the report, and therefore referred the case to the Inter-American Court, which now, ten years later, is a few months away from handing down a resolution.

Anabel Recinos, from the Citizen Association for the Decriminalization of Abortion, one of the Salvadoran organizations that are co-plaintiffs in the Beatriz v. El Salvador case, hopes that the Inter-American Court sentence will set a legal precedent and pave the way for the modification of the 1998 law criminalizing abortion under any circumstances in El Salvador. CREDIT: Edgardo Ayala/IPS

For her part, Anabel Recinos, from the Citizen Association for the Decriminalization of Abortion, one of the Salvadoran organizations that are co-plaintiffs in the case, told IPS that she hopes that the Inter-American Court ruling will set a new precedent.

She said her hope is that the court will rule that laws in El Salvador and the region banning abortion under all circumstances must be modified.

In addition to El Salvador, Honduras, Nicaragua and the Dominican Republic are the countries in the region where abortion is completely prohibited in their penal codes. It is only legal in five countries in Latin America, while it is allowed only in strict circumstances in the rest.

“Or at least it should be allowed for specific reasons or exceptions, such as safeguarding health and life, or the incompatibility of the fetus’s life outside the womb,” Recinos said.

Twenty Latin American and Caribbean countries recognize the jurisdiction of the Inter-American Court: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay.

The IACHR and the Court make up the inter-American human rights system. They are independent bodies and in the case of the Court the sentences are final and binding, although they are not always enforced.

Recinos spoke to IPS at the University of El Salvador, in the country’s capital, where dozens of people gathered to watch the hearing, broadcast live from San José, on a large screen.

The activist added that it is likely that the Court will rule against the Salvadoran State, backing the IACHR’s conclusions.

The Court is made up of judges Ricardo Pérez Manrique (Uruguay), Humberto Sierra Porto (Colombia), Eduardo Ferrer Mac-Gregor (Mexico), Rodrigo Mudrovitsch (Brazil), Nancy Hernández López (Colombia) and Verónica Gómez (Argentina).

In March 2003, Beatriz requested an abortion during her second pregnancy, because she suffered from lupus, an autoimmune disease in which the body’s immune system mistakenly attacks healthy organs, and preeclampsia, a dangerous increase in blood pressure during pregnancy, as well as other health problems.

In other words, her life was at risk. In addition, the fetus had malformations and would not live long at birth.

However, the medical personnel, although they were aware that an abortion was indicated to save Beatriz’s life, did not carry it out due to the fear of prosecution.

Beatriz was forced to continue with a pregnancy that continued to harm her health as the days went by.

But after the Inter-American Court granted provisional measures, Beatriz underwent a cesarean section on Jun. 3, 2013, almost three months after requesting an abortion.

The child, who was born with anencephaly, missing parts of the brain and skull, died just five hours later.

Activists for the sexual and reproductive rights of women in El Salvador demonstrate on Mar. 22 outside the Inter-American Court of Human Rights in San José, Costa Rica, during the hearing for the emblematic case of Beatriz v. El Salvador. Many carried green balloons, whose color is a symbol of the fight for the right to abortion in Latin America. CREDIT: Collaborating Organizations

Misogyny on the part of the State

Since 1998 El Salvador, this Central American country of 6.7 million inhabitants, has been the most drastic in the region in the persecution of abortion, punishing women who terminate their pregnancies with sentences of up to 30 years, in all cases, even when the life and health of the pregnant woman is at risk or in cases of rape.

The legislation mainly affects poor women in rural areas. According to data from women’s rights organizations, 181 such cases have been prosecuted since 2019.

Guillermo Ortiz, a gynecologist and obstetrician who specializes in high-risk pregnancies, testified before the Inter-American Court: “Yes, I saw many women die because they did not have access to a safe abortion, despite my having requested it.”

In her testimony, Beatriz’s mother said that the many doctors who treated her daughter had recommended that the pregnancy be terminated, but did not dare to perform an abortion or c-section to remove the fetus, for fear of going to prison.

“They told my daughter that they couldn’t, because in El Salvador it’s a crime, and if they did, they could go to jail,” said the mother.

“The State failed Beatriz twice,” said the mother, before breaking down in tears.

She was referring to the failure to carry out an abortion promptly, despite her daughter’s serious health conditions. She also was talking about a motorcycle accident that the 22-year-old suffered later.

“She had an accident that shouldn’t have been fatal, she was in stable condition” when she was admitted to the hospital in Jiquilisco, a municipality in the eastern department of Usulután.

But a storm caused a flood in some parts of the hospital, so they transferred her to the hospital in Usulután, the capital of the department.

“The doctor who treated her there didn’t even know what lupus was,” she said. In the hospital, Beatriz caught pneumonia.

The mother’s testimony and that of the other witnesses at the hearing has been closely followed in El Salvador and other nations by feminist and human rights organizations that have been monitoring and criticizing the country’s strict anti-abortion law.

Mayan indigenous communities in eastern Guatemala are waging an ongoing struggle for the defense of their lands and resources, in the face of encroachment by mining, power and oil corporations. These struggles have resulted in protests on behalf of the affected communities and against the Guatemalan government's repression of activists and indigenous inhabitants, and have now reached the Inter-American Court of Human Rights. CREDIT: Courtesy of Raúl Ico Pacham/FB

By Edgardo Ayala
SAN SALVADOR, Feb 21 2022 (IPS)

A struggle for the defense of their territories waged by indigenous Maya Q’eqchi’ communities in eastern Guatemala could set a historic precedent for Latin America’s native peoples because it would ensure not only their right to control their lands but also their natural resources, denied for centuries.

This could happen if the Inter-American Court of Human Rights based in San José, Costa Rica rules in favor of these communities involved in litigation for the defense of their ancestral territories and for control over their own future and development.

The struggle is against a nickel mine operated since 2011 by the Switzerland-based transnational Solway Investment Group on lands in Guatemala that these communities consider their own, in the municipality of El Estor near Lake Izabal, in the department of the same name in eastern Guatemala."We hope it will be a historic decision, that the Court can decide for the first time on the permanent sovereignty of indigenous peoples over their natural resources.” -- Leonardo Crippa

The mine is a private venture over which the local indigenous communities had no say. Furthermore, they argue that there is evidence that it is contaminating the area’s natural resources, lawyers and activists told IPS.

The mine “pollutes the rivers, destroys the hills, without regard for the lives of the people in the municipality,” said activist Abelino Chub of the Maíz de Vida Association, in an interview with IPS from El Estor.

Chub, of the Mayan Q’eqchi indigenous people, lives in El Estor and has worked for years in defense of indigenous territories in Izabal, in the face of inroads made by international consortiums in the production of nickel, bananas, electricity and oil, he said.

Because of his involvement in that struggle he was arrested and imprisoned in February 2017, as part of a pattern of persecution that other people who have fought against the transnationals have also experienced firsthand.

Solway Investment has been operating the mine since 2011, after purchasing it from the Canadian corporation Hudbay Minerals, which obtained the exploration permit in 2004 and the mining permit in 2006.

However, work on the mine came to a halt when Guatemala’s Constitutional Court accepted an appeal for legal protection from a union of fishermen from Izabal, who alleged that fishing had been hurt by pollution from the mine.

In addition to Guatemala, Solway Investment operates in Ukraine, Russia, Macedonia and Indonesia, and in 2019 reported more than one billion dollars in total assets, according to its official website.

Abelino Chub, a Mayan Q’eqchi’ activist from the Maíz de Vida Association, who is part of the struggle in defense of the Mayan territories located in the area of El Estor and surrounding municipalities in the eastern Guatemalan department of Izabal, was arrested and imprisoned in February 2017 for opposing extractivist projects granted concessions by the Guatemalan government in the area. CREDIT: Courtesy of Abelino Chub/FB

In the hands of the Court

Since 1974, more than a dozen Q’eqchi’ Mayan communities have been trying to obtain a collective land title from the government’s National Land Fund (Fontierras).

But the government of that time and subsequent administrations denied them that right, despite the fact that since that year they have met all the legal requirements.

In 1985 they even obtained a provisional collective agrarian title, attorney Leonardo Crippa of the Washington-based Indian Law Resource Center (ILRC) told IPS.

In 2002 the communities met the last of the requirements: the payment to Fontierras of a quota on the value of the land, Crippa said from the U.S. capital.

But they were denied their right to collective title as a result of obscure legal maneuvering.

The General Property Registry claimed that documentation on the provisional title had been lost, and demanded that the communities themselves make the effort to replace it, despite the fact that by law it was the responsibility of the government agency.

“The Registry allowed a page from a document to be extracted that made the registry entry disappear and that prevented the land titling agency from granting the definitive title in due time and form,” Crippa said.

As a result, the communities were not only denied their right to collective ownership of their land. In addition, extractive industry projects were imposed on them in their territory, and in other indigenous communities in the country, without carrying out the consultations required by law, or without conducting them properly.

In the case of the nickel mine, “they never asked the communities, they only asked the workers to sign some forms in support of the supposed consultation,” said Chub, 39.

The mining activities are carried out on overlapping lands, i.e., the boundaries are unclear and intermingle with those of the indigenous villages, due to problems in the land registry, and to date the discrepancy is still in place.

Following the struggles of the Mayan communities to defend their territories, which included the seizure of land in eastern Guatemala, the Guatemalan government authorized evictions that turned violent. Now the Maya Q’eqchi’ communities await an Inter-American Court of Human Rights ruling. CREDIT: Courtesy of Raúl Ico Pacham/FB

These indigenous communities, where the majority of the population speaks only their ancestral Mayan language, Q’eqchi’, did not stand idly by.

In August 2018, following legal action in Guatemala, they brought the case before the Inter-American Commission on Human Rights (IACHR), based in Washington.

The ILRC had been working with them since 2005 and three years later they had a clear strategy: to focus on one of the 16 communities, known as Agua Caliente, because it best represented the indigenous cause.

Agua Caliente is home to some 400 people, according to a 2014 census.

In a March 2020 report, the IACHR recognized the responsibility of the State of Guatemala for the violation of the indigenous community’s right to property, and violation of due process, among other rights protected by the American Convention on Human Rights.

Furthermore, the IACHR added that the State does not have a law that recognizes the right of indigenous peoples in Guatemala to collective ownership or dominion of their lands and the resources under their possession, as guaranteed by international agreements to which the country is a signatory.

The IACHR also said that the titling procedure to which Agua Caliente was subjected for more than 45 years had not been effective because it did not grant a definitive title within a reasonable period of time.

As the basis of the litigation still remains, regarding the overlapping of the Agua Caliente and mine lands, the case has been referred to the Inter-American Court of Human Rights, which together with the IACHR make up the inter-American human rights system created by the Organization of American States (OAS).

In a Feb. 9 hearing the parties were heard, and final arguments will be presented in writing on Mar. 11.

“We hope it will be a historic decision, that the Court can decide for the first time on the permanent sovereignty of indigenous peoples over their natural resources,” said Crippa. As an Inter-American Court verdict, this would have regional effects, especially since its rulings are not subject to appeal and set a legal precedent.

Raúl Ico Pacham, a Mayan Q’eqchi’ native of the Chab’ilch’och’ community in the municipality of Livingston, in the eastern Guatemalan department of Izabal, had to flee the country following the persecution of activists in defense of their ancestral territories. He is now living as an undocumented immigrant in New York and has applied for political asylum in the United States. CREDIT: Courtesy of Raúl Ico Pacham/FB

Government persecution of activists

In the midst of this struggle, in October 2021, the State of Guatemala, through the Public Prosecutor’s Office and police forces, persecuted people who led protests against the government for granting the concession, and against the mine.

The government also declared a one-month state of siege in the area.

“They did that to scare people,” said Chub, who had to flee because he feared for his life, mainly because of his involvement in the fight against banana companies in the area.

He added, however, that in this area there are several major companies that band together to persecute activists regardless of whether they are fighting against mining, oil or banana companies.

Chub’s home was raided on Oct. 26, during the state of siege. But he had already fled to another part of the country.

“They broke the lock with a sledgehammer and entered. The only thing they found there was water, corn and beans,” he said.

Raúl Ico Pacham, who also belongs to the Q’eqchi’ Mayan people, had to leave Guatemala, fleeing persecution by the State. He is a native of Livingston, one of the municipalities in the department of Izabal, and has been an activist with the Guatemalan Comité Campesino del Altiplano (CCDA).

“My struggle was, more than anything, for the recovery of our ancestral lands that had been taken from us long ago by landowners and the military,” Pacham, 35, told IPS in an interview from New York, where he arrived without documents in April 2021 and has requested political asylum.

In 2016 the activist participated with other members of the affected indigenous communities in a takeover of ancestral lands. But the government ordered their eviction, a process that turned violent in October 2017.

In August of that year they broke into his house and stole, he said, documents from investigations they were carrying out on the land that had been taken from the indigenous people.

“In 2021 I was almost killed, I was stabbed and I had to leave the country,” he said.