Justified Disobedience? Disobeying Court Orders to Comply With International Obligations

[Javier Urizar is a Guatemalan human rights lawyer, currently working at the International Service for Human Rights (ISHR)]

National courts have always had an inseparable relationship with human rights. As the controlbody by excellence, they have been fundamental in limiting the acts of authority and sanctioning those responsible for human rights violations. Only if they fail in this task can the violations be analysed by supranational human rights bodies, such as the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACrtHR).

However, in recent years, the Courts have subverted their role and abused their power to violate human rights – not limiting themselves to denying access to justice, but going so far as to ordering violations to be committed. Judicial rulings have been used in strategic litigation against public participation (“SLAPP”), in the persecution of human rights defenders and activists, the criminalisation of political opponents and dissidents, the release of war criminals, the irregular suspension of political parties to favour certain groups or produce electoral fraud, and the dissolution of associations, among other things.

There are many cases where the judiciary has gone from being a line of defence against the abuses of power to a tool for legitimising them. There are multiple reasons for this: through the use of the courts, states justify their violations of human rights under an alleged veil of legality; on the other hand, the authorities who execute these orders excuse themselves from potential responsibility by saying that they are simply “obeying the law”.

Finally, there is also a practical aspect, in the sense that judicial resolutions are not, in general, subject to horizontal or ‘crossed’ control (by another branch of the State). Only higher-ranking judicial authorities can modify or revoke judicial orders, so that the means of control and redress for potential violations are limited. A different case is, for example, that of an administrative order that violates rights, which can be immediately revoked by judicial bodies.

The frequency and severity of these actions has forced the IACHR and the IACrtHR to grant precautionary and provisional measures (respectively) requiring States to limit or annul certain court orders which, if executed, would cause an irreparable violation of the rights of the victims.

The Commission and the Inter-American Court have required States to ensure that court orders providing for the destruction of material evidence in transitional justice cases, the criminal prosecution of human rights defenders, the detention of criminalised persons and the auctioning or sale of private property, among others, do not take effect (or are rendered ineffective).

Such cases, although complex, have been resolved by domestic courts, usually the highest courts in the country, through the mechanism of control of conventionality, giving effect to the decisions issued by the Inter-American Human Rights System (IAHRS) and disapplying the orders that violate human rights.

Conflict Between Control of Conventionality and Domestic Jurisdiction

There are some cases, however, where the legal solution is not so simple. Although conventionality control is the responsibility of all State authorities, the Inter-American Court of Human Rights has been emphatic in stating that the authorities must do so ‘within the scope of their competence’- reaffirming that the internal authorities cannot overstep their powers on the grounds that they were exercising ‘conventionality control’.

This limitation, although reasonable, presents certain complexities when it comes to implementing some of the precautionary measures we have been discussing – in particular, when the rulings that the IAHRS orders to be disregarded are not subject to challenge or review, as there are no mechanisms within domestic law to do so. This occurs, for example, when the Commission or the Court orders the non-application of an order issued by a constitutional court.

The integration of international law into domestic law – known as the ‘conventionality block’ – does not resolve this tension either, as the measures granted by the IASHR have very strict requirements which can only be met by disobeying a court order. There is no margin for interpretation that would allow this problem to be avoided.

Generally speaking, no official has the power to question, much less review, an order issued by the highest court in a country. It is a basic element of the rule of law, and even of the right to access to justice, that validly issued court orders must be complied with.

In the aforementioned examples, the orders of the Inter-American Court of Human Rights were simply disregarded: when questioned about disobeying an order of the Inter-American Human Rights System, the authorities simply replied that they were ‘complying with the law’.

It would seem, then, that there is an antinomy between the reasoning of the IAHRS: on the one hand, conventionality control can only be exercised ‘within the powers’ of each authority; on the other, compliance with precautionary measures is required through acts that would inevitably be outside the powers of any authority. Is there any way to resolve this apparent conflict?

One potential solution is found in the constitutional provisions of several countries that recognise that ‘no one is obliged to obey illegal orders’ – others use the terminology manifestly illegal. Such provisions exist in the constitutions of: Guatemala, Honduras, the Democratic Republic of the Congo, the Maldives, Niger, Zimbabwe, Timor-Leste, and South Africa. In the area of international humanitarian law, this is even considered customary law.

In other countries, although the constitutions do not include a similar provision, the Penal Codes exempt from criminal responsibility those who disobey a manifestly illegal order (e.g. Spain [art. 410.2], France [art. 122-4], Italy [art. 51]), while others recognise that ‘due obedience’ can only serve as a justification if the order issued was not manifestly illegal (e.g. Colombia [art. 32.4], Mexico [art. 178] and Argentina [art. 239]).

All these examples demonstrate that there is an express or tacit recognition, at a national and international level, that anyone has the right to disobey manifestly illegal orders. Although it will be up to each country to determine what a manifestly illegal order entails, it is not unreasonable to conclude that a court order that supranational bodies have classified as contrary to a State’s international obligations would fit this definition.

Clearly, this is a power that cannot be taken lightly, since, in principle, it is not for anyone other than a court of appeal to determine the legality of a court order; otherwise it would create a dangerous precedent that would open the door to abuse.

However, the cases in which supranational bodies call for specific court orders to be disobeyed are extraordinary, and it seems reasonable that this should be the exception to the rule. In any case, it is not the ‘disobedient’ authority (for example, the police) that is qualifying the legality of the order as such, but rather that legality (understood as its compliance with the State’s international obligations) has already been qualified by the competent bodies: the IACHR and the Inter-American Court of Human Rights; it is they who have indicated that the order is manifestly illegal. The national authority would simply be within its rights – or even obliged – to disobey a manifestly illegal court order. More importantly, such disobedience would be within its competence.

The precautionary measures of the IACHR or the provisional measures of the Inter-American Court of Human Rights that order the annulment or non-application of judicial orders present significant dilemmas regarding the correlation between international law and national law, as well as the limits of conventionality control and the conventionality block. These dilemmas, however, cannot justify inaction in the face of repeated human rights violations that are increasingly being committed through judicial orders. Specific court orders that the Inter-American system has ordered not to be applied can be considered manifestly illegal, insofar as the competent interpreters of the Convention have concluded that they are incompatible with it.

Under this interpretation, the principle of justified disobedience of manifestly illegal orders can allow the tension between the obligation of all authorities to exercise control of conformity with the Convention and that of obeying judicial orders of national law to be resolved in a manner favourable to human rights.