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What is Terrorism?

Report on Terrorism & Human Rights
Inter-American Commission on Human Rights
OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr.
22 October 2002
 

Preface
Executive Summary

I. Introduction

A. Purpose and Context of the Report
B. Terrorism in the Context of International Law
C. Methodology

II. Legal Framework for Commission's Analysis

A. The International Law Against Terrorism
B. International Human Rights Law
C. International Humanitarian Law

III. Norms and Principles of International Human Rights and Humanitarian Law Applicable to Terrorist Situations

A. Right to Life

1. International Human Rights Law
2. International Humanitarian Law
3. The Right to Life and Terrorism

B. Right to Personal Liberty and Security

1. International Human Rights Law
2. International Humanitarian Law
3. Right to Personal Liberty and Security and Terrorism

C. Right to Humane Treatment

1. International Human Rights Law
2. International Humanitarian Law
3. The Right to Humane Treatment and Terrorism

D. Rights to Due Process and to a Fair Trial

1. International Human Rights Law
2. International Humanitarian Law
3. Rights to Due Process and to a Fair Trial and Terrorism

E. Right to Freedom of Expression

1. International Human Rights Law
2. International Humanitarian Law
3. The Right to Freedom of Expression and Terrorism

F. The Obligation to Respect and Ensure, Non-Discrimination and the Right to Judicial Protection

1. International Human Rights Law
2. International Humanitarian Law
3. The Obligation to Respect and Ensure without Discrimination, the Right to Judicial Protection and Terrorism

G. Other Fundamental Rights

1. Rights to Freedom of Assembly, Association, and Conscience and Religion
2. Rights to Property and Privacy
3. Right to Participate in Government

H. Migrant Workers, Asylum-Seekers, Refugees and other Non-Nationals

1. Right to Personal Liberty and Security
2. Right to Humane Treatment
3. Right to Due Process and to a Fair Trial
4. Obligation to Respect and Ensure, Non-Discrimination and the Right to Judicial Protection

IV. Recommendations

Annexures

Annex I - IACHR Resolution on Terrorism and Human Rights ;
Annex II - Table of OAS Member State Participation In Human Rights
and Humanitarian Law Treaties

Annex III - Inter-American Convention Against Terrorism, adopted and opened
for signature by OAS General Assembly Resolution AG/RES. 1840 (XXXII-O/02)
Annex IV - OAS General Assembly Resolution AG/RES. 1906 (XXXII-O/02),
“Human Rights and Terrorism”

Footnotes

PREFACE

One of the most challenging responsibilities confronted by the Inter-American Commission on Human Rights since its creation over 40 years ago has been supervising compliance with human rights protections in member states of the Organization of American States that have faced terrorist threats.

In fulfilling this responsibility, the Commission has emphasized in no uncertain terms that ensuring fundamental human rights in these situations does not contradict the obligation of member states to protect their populations from terrorist violence. To the contrary, the very purpose of anti-terrorist initiatives is to preserve the fundamental rights and democratic institutions that terrorism seeks to undermine and destroy. And through mechanisms such as derogations and restriction clauses, international human rights law recognizes and provides for means by which the restriction or suspension of certain rights may be necessary in exceptional circumstances to protect human rights and democracy.

The terrorist attacks that occurred in the United States on September 11, 2001, though extraordinary in their magnitude and horror, have not changed these fundamental precepts. Indeed, now more than ever it is crucial for member states to ensure that their responses to these inexcusable acts of violence honor faithfully the liberties and values upon which the democratic societies of our Hemisphere are built. To accept less only furthers the interests of forces that present among the most profound threats to our region in the 21st Century.

In this setting, the Inter-American Commission on Human Rights presents this Report on Terrorism and Human Rights, in the hope that it will assist member states of the Organization of American States and other interested actors in the inter-American system in ensuring that anti-terrorism initiatives comply fully with fundamental human rights and freedoms and thereby achieve one of the crucial components for a successful campaign against terrorist violence.

The Commission would like to recognize the work of its Executive Secretariat in the preparation of this report. In particular, it wishes to acknowledge the contributions of Brian Tittemore, principal drafter, with the collaboration of Bernard Duhaime, Human Rights Specialists. Also contributing to particular components of the report were Eduardo Bertoni, Special Rapporteur on Freedom of Expression, Lisa Yagel, Attorney with the Special Rapporteurship on Freedom of Expression, Helena Olea, Attorney with the Rapporteurship on Migrant Workers and their Families, and Gabriela Hageman, Principal Secretary, and Nora Anderson, Gloria Hansen, Documents Technicians.


EXECUTIVE SUMMARY

1. Numerous notorious terrorist incidents in this Hemisphere in recent years, culminating in three attacks of unprecedented proportion perpetrated simultaneously in the United States on September 11, 2001, have harshly illustrated that terrorism remains a significant threat to the protection of human rights, democracy and regional and international peace and security. This reality has prompted states and intergovernmental organizations to undertake a variety of initiatives to confront these serious threats. Anti-terrorist measures have included developing domestic legislation and procedures to criminalize, investigate and prosecute terrorist activities and negotiating multilateral treaties on interstate cooperation against terrorism.

2. On June 3, 2002 the OAS General Assembly adopted and opened for signature the Inter-American Convention Against Terrorism, in which OAS member states reaffirmed the “need to adopt effective steps in the inter-American system to prevent, punish and eliminate terrorism through the broadest cooperation.”

Among the principles explicitly recognized in this Convention is the requirement that anti-terrorist initiatives must be undertaken in full compliance with member states’ existing obligations under international law, including international human rights law. According to Article 15 of the Convention, “[t]he measures carried out by the states parties under this Convention shall take place with full respect for the rule of law, human rights, and fundamental freedoms.” This prerequisite reflects the fundamental principle that the campaign against terrorism and the protection of human rights and democracy are complementary responsibilities; the very object and purpose of anti-terrorist initiatives in a democratic society is to protect democratic institutions, human rights and the rule of law, not to undermine them.

3. The Inter-American Commission on Human Rights, as the OAS organ charged with promoting the observance and protection of human rights in the Hemisphere, has since its creation in 1959 gained extensive experience in evaluating the human rights implications of numerous anti-terrorist initiatives undertaken by OAS member states. In doing so, the Commission has consistently emphasized the need for unqualified respect for the full scope of human rights. This includes rights that have not been legitimately suspended under a state of emergency in strict compliance with the principles and conditions governing derogations from certain protected rights.

4. In order to reinforce its doctrine in this area and to assist OAS member states in complying with their international legal obligations, the Commission decided in December 2001 to undertake a study by which it would reaffirm and elaborate upon the manner in which international human rights requirements regulate state conduct in responding to terrorist threats. To this end, the Commission convened a panel of international experts during its regular period of sessions in March 2002 to obtain timely and specialized information on the issue of terrorism and human rights. The Commission also invited OAS member states and pertinent non-governmental organizations to submit written observations on this topic.

5. In preparing its report, the Commission adopted a rights-based approach, by which it has examined counter-terrorism initiatives in relation to several core international human rights, in particular the right to life, the right to humane treatment, the right to personal liberty and security, the right to a fair trial, the right to freedom of expression and the obligation to respect and ensure, non-discrimination and the right to judicial protection. The Commission has also included an abbreviated discussion of several additional rights potentially affected by anti-terrorist measures, as well as an analysis of the particular vulnerabilities of migrant workers, asylum seekers, refugees and other non-nationals.

6. Several fundamental precepts underlie the Commission’s analysis as a whole. First is a recognition that to date there has been no international consensus on a comprehensive international legal definition of terrorism.

As a consequence, the characterization of an act or situation as one of terrorism, including the labeled “war on terrorism”, cannot in and of itself serve as a basis for defining the international legal obligations of states.

The Commission has not disregarded in this connection that terrorist acts such as those perpetrated on September 11, 2001 may well lead to further developments in international law. This could include, for example, the negotiation of international instruments that are designed to address a new form of “terrorist war” waged by or against non-state actors engaged in armed violence with states at an international level. Such developments are only speculative at this stage, however, and accordingly the Commission’s discussion in this report has focused upon member states’ obligations under international law as presently constituted.

7. The absence of an internationally-accepted definition of terrorism does not mean that terrorism is an indescribable form of violence or that states are hot subject to restrictions under international law in developing their responses to such violence.

To the contrary, it is possible to identify several characteristics frequently associated with incidents of terrorism that provide sufficient parameters within which states’ pertinent international legal obligations in responding to this violence can be identified and evaluated. These characteristics relate to the nature and identity of the perpetrators of terrorism, the nature and identity of the victims of terrorism, the objectives of terrorism, and the means employed to perpetrate terrorist violence.

 In particular, the Commission has noted that terrorism may be perpetrated, individually or collectively, by a variety of actors, including private persons or groups as well as governments, may employ varying means and levels of violence ranging from mere threats devised to induce public panic to weapons of mass destruction, and may impact detrimentally upon a variety of persons who are afforded particular protections under international law, including women, children and refugees.

8. Drawing upon these factors, the Commission has observed that several regimes of international law may potentially apply to situations of terrorism. Terrorist violence may be perpetrated in times of peace, when international human rights law is fully applicable, during a state of emergency, when certain human rights protections may be the subject of derogations, or during an armed conflict, to which international humanitarian law applies.

Further, the nature and level of violence generated by or against perpetrators of terrorism may trigger a state of emergency or armed conflict. Accordingly, the Commission’s analysis is not limited to member states’ obligations under inter-American human rights instruments. It has also taken into account member states’ conventional and customary international legal obligations regardless of their bilateral or multilateral character, or whether they have been adopted within the framework or under the auspices of the inter-American system, including international humanitarian law and international refugee law.

These obligations constitute components of a interrelated and mutually-reinforcing regime of human rights protections that must be interpreted and applied as a whole so as to afford individuals the most favorable standards of protection available under applicable law. Certain obligations may also provide a lex specialis for the interpretation and application of international human rights law. In particular, international humanitarian law prescribes extensive and detailed rules, standards and mechanisms concerning the protection of victims of war that must be taken into account in properly interpreting and applying international human rights protections in armed conflict situations.

9. Closely connected with the regimes of law considered in the Commission’s analysis is the importance of properly determining the status of persons who fall within the authority or control of a state or its agents in the course of anti-terrorist initiatives. It is only when the legal status of such persons is properly determined that they can be afforded the rights to which they are entitled under domestic and international law by reason of that status. Where terrorist violence triggers or occurs in the context of an international armed conflict, it is particularly crucial for member states to determine, in accordance with the Third Geneva Convention of 1949 and Additional Protocol I with respect to States that have ratified it, whether a person falling within a state’s power constitutes a civilian or combatant and, in the case of the latter, whether the combatant is “privileged” and therefore entitled to prisoner of war status and immunity from prosecution under the domestic law of his captor for his hostile acts that do not violate the laws and customs of war.

10. In the context of the above precepts, the Commission has reached several conclusions, which are summarized below, concerning the rights and freedoms most implicated by states’ anti-terrorist initiatives:

the right to life, the right to humane treatment, the right to personal liberty and security, the right to a fair trial, the right to freedom of expression, and the obligation to respect and ensure, non-discrimination and the right to judicial protection, as well as the situation of migrant workers, asylum seekers, refugees and other non-nationals.

In particular, the Commission has identified the minimum standards of protection that are common to both international human rights law and international humanitarian law in these areas. Where appropriate, the Commission has also identified areas in which the lex specialis of international humanitarian law may result in distinct standards of treatment applicable in situations of armed conflict.

11. Perhaps in no other area is there greater convergence between international human rights law and international humanitarian law than in the standards of humane treatment. While governed by distinct instruments, both regimes provide for many of the same minimum and non-derogable requirements dealing with the humane treatment of all persons held under the authority and control of the state. Moreover, under both regimes the most egregious violations of humane treatment protections give rise not only to state responsibility, but also individual criminal responsibility on the part of the perpetrator and his or her superiors.

12. Foremost among these standards is the absolute prohibition of torture or any other cruel, inhuman or degrading treatment or punishment by the state or its agents. This proscription applies to all forms of treatment attributable to the state including, for example, penal or disciplinary sanctions such as corporal punishment and prolonged periods of time in solitary confinement. Also prohibited are inhumane methods of interrogation, including severe treatment such as beatings, rape, or electric shocks, as well as more subtle but equally injurious treatments such as administration of drugs in detention or psychiatric institutions or prolonged denial of rest or sleep, food, sufficient hygiene or medical assistance. International human rights and humanitarian law also prescribe comparable standards concerning conditions of detention. These requirements relate to such matters as accommodation, nutrition and hygiene, as well as additional protections for particular categories of persons, such as women and children.

13. According to standards applicable in peacetime and in wartime, the treatment of detainees must remain subject to continuous and effective supervision by the appropriate mechanisms as prescribed by international law. In situations other than armed conflict, this requires supervision by regularly constituted courts through habeas corpus or equivalent relief. In times of war, oversight mechanisms include the International Committee of the Red Cross and, in situations of international armed conflict, the Protecting Powers regime provided for under the 1949 Geneva Conventions.

14. Notwithstanding the existence of these specific rules and mechanisms governing the detention of persons in situations of armed conflict, there may be circumstances in which the supervisory mechanisms under international humanitarian law are not properly engaged or available, or where the detention or internment of civilians or combatants continue for a prolonged period. Where this occurs, the regulations and procedures under international humanitarian law may prove inadequate to properly safeguard the minimum standards of treatment of detainees, and the supervisory mechanisms under international human rights law, including habeas corpus and amparo remedies, may necessarily supercede international humanitarian law in order to ensure at all times effective protection of the fundamental rights of detainees.

15. As with the standards governing humane treatment, international human rights and humanitarian law subject member states to essentially the same non-derogable obligation to respect and ensure respect for their international commitments through appropriate and effective mechanisms. They also share the absolute and overriding prohibition against discrimination of any kind, including impermissible distinctions based upon race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

While the doctrine of the inter-American human rights system does not prohibit all distinctions in treatment in the enjoyment of protected rights and freedoms, any permissible distinctions must be based upon objective and reasonable justification, must further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and the means must be reasonable and proportionate to the end sought.

Distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments are subject to a particularly strict level of scrutiny whereby states must provide an especially weighty interest and compelling justification for the distinction. In the campaign against terrorism, states must be particularly vigilant to ensure that state agents, including military forces, conduct themselves fully in accordance with the proscription against discrimination.

16. The Commission’s analysis clarifies that international human rights and humanitarian law share many of the same minimum prerequisites governing an individual’s right to due process and to a fair trial. Where member states endeavor to investigate, prosecute and punish individuals for crimes relating to terrorism, the Commission stipulates that member states remain bound by fundamental and non-derogable due process and fair trial protections in all instances, whether in times of peace, states of emergency or armed conflict. These protections encompass fundamental principles of criminal law as well as entrenched procedural and substantive safeguards.

17. Among the protections highlighted by the Commission is the requirement that any laws that purport to proscribe and punish conduct relating to terrorism be classified and described in precise and unambiguous language that narrowly defines the unlawful conduct, in accordance with the principle of legality.

The Commission observes that states in this and other regions have taken a variety of approaches in attempting to prescribe sufficiently clear and effective anti-terrorism laws. Some states have endeavored to prescribe a specific crime of terrorism based upon commonly-identified characteristics of terrorist violence. Others have chosen not to prescribe terrorism as a crime per se, but rather have varied existing and well-defined common crimes, such as murder, by adding a terrorist intent or variations in punishment that will reflect the particular heinous nature of terrorist violence. Whichever course is chosen, OAS member states should be guided by the basic principles articulated by the Inter-American Court and Commission on this issue. In order to ensure that punishments imposed for crimes relating to terrorism are rational and proportionate, member states are also encouraged to take the legislative or other measures necessary to provide judges with the authority to consider the circumstances of individual offenders and offenses when imposing sentences for terrorist crimes.

18. Fundamental principles of due process and a fair trial applicable at all times also entail the right to be tried by a competent, independent and impartial tribunal as defined under applicable international human rights or humanitarian law. This requirement generally prohibits the use of ad hoc, special, or military tribunals or commissions to try civilians for terrorist-related or any other crimes. A state’s military courts may prosecute members of its own military for crimes relating to the functions that the law assigns to military forces and, during international armed conflicts, may try privileged and unprivileged combatants, provided that the minimum requirements of due process are guaranteed. Military courts may not, however, prosecute human rights violations or other crimes unrelated to military functions, which must be tried by civilian courts.

19. Among the non-derogable procedural guarantees identified by the Commission under both international human rights and humanitarian law are the right of an accused to prior notification in detail of the charges against him or her, the right to adequate time and means to prepare his or her defense which necessarily includes the right to be assisted by counsel of his or her choosing or, in the case of indigent defendants, the right to counsel free of charge where such assistance is necessary for a fair hearing, and the right not to testify against oneself. Also protected is the right to be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal a judgment to a higher court.

20. In situations of emergency, there may be some limited aspects of the right to a fair trial that may be legitimately suspended, provided that states comply strictly with the conditions governing derogation clauses under international human rights instruments, and provided that they do not endeavor to deny an individual more favorable protections that are non-derogable under other applicable international instruments.

Potentially derogable protections may include, for example, the right to a public trial and a defendant’s right to examine or have examined witnesses against him or her, where limitations on these rights are necessary to ensure the safety of judges, lawyers, witnesses or others involved in the administration of justice.

Such measures can never be justified, however, where they may compromise a defendant’s non-derogable due process protections, including the right to prepare a defense and to be tried by a competent, impartial and independent tribunal.

21. The right to life is afforded both similar and distinct treatment under international human rights and humanitarian law. Under both regimes, the use of lethal force by state agents must comply with principles of proportionality and distinction as defined under each area of law.

Accordingly, in armed conflict situations, parties to the conflict must distinguish between military objectives and civilians or civilian objects, and launch attacks only against the former.

Similarly, in peacetime situations, state agents must distinguish between persons who, by their actions, constitute an imminent threat of death or serious injury, or a threat of committing a particularly serious crime involving a grave threat to life, and persons who do not present such a threat, and use force only against the former.

At the same time, privileged combatants in situations of armed conflict are not prohibited from using lethal force against enemy combatants who have not laid down their arms or been placed hors de combat and the death of a combatant under these circumstances does not constitute a violation of the right to life when interpreted in light of the applicable laws or customs of war.

22. Also pertinent to the right to life is the imposition of the death penalty as a punishment for terrorist-related offenses. Irrespective of whether this measure is imposed during peacetime or armed conflict situations, states must ensure that their legislative provisions comply with certain conditions that limit a state’s capacity to apply capital punishment to certain offenses or offenders. They must also ensure that the proceedings through which a capital sentence may be imposed comply with strict procedural requirements and are subject to rigorous control by fundamental minimum judicial guarantees. Without going so far as to abolish the death penalty, the inter-American instruments impose restrictions designed to delimit strictly its application and scope, in order to reduce the application of the penalty to bring about its gradual disappearance.

23. The right to personal liberty and security similarly exhibits both comparable and distinct requirements in peacetime, states of emergency and armed conflict, as provided for under international human rights and humanitarian law. All persons falling within the authority or control of a state are entitled to the right to personal liberty and security. However, under prevailing international human rights standards, states may, under certain limited circumstances, deprive individuals of their liberty, both in relation to the investigation and punishment of crimes as well as the administration of state authority in other areas where measures of this nature are strictly necessary. This may include, for example, administrative detention for compelling reasons relating to law enforcement, health or other public purposes. These measures must, however, comply with standards as prescribed under applicable regimes of international law.

24. Outside of armed conflict situations, standards governing the right to personal liberty include ensuring that the grounds and procedures for the detention be prescribed by law, the right to be informed of the reasons for the detention, prompt access to legal counsel, family and, where necessary or applicable, medical and consular assistance, prescribed limits upon the length of continued detention, and maintenance of a central registry of detainees. The Commission also emphasizes that appropriate judicial review mechanisms must be available to supervise detentions, promptly upon arrest or detention and at reasonable intervals when detention is extended. In no circumstances may states impose prolonged incommunicado detention. Aspects of the foregoing requirements should also be considered non-derogable, because of their integral role in protecting the non-derogable rights of detainees such as the right to humane treatment and the right to a fair trial and the need to ensure that detainees or prisoner are not left completely at the mercy of those holding them.

25. Where emergency situations arise, states may be justified in derogating from certain limited aspects of the right to personal liberty and security. This may include, for example, subjecting individuals to periods of preventative or administrative detention for periods longer than would be permissible under ordinary circumstances. As with all derogations, however, any extended detention must be strictly necessary in the exigencies of the situation, must remain subject to the non-derogable protections noted above, and may in no case be indefinite.

26. Where terrorist acts may trigger or otherwise take place in the context of an armed conflict, the detailed lex specialis of presumptions and mechanisms prescribed under international humanitarian law must inform the manner in which states give effect to the right to personal liberty. In the case of international armed conflicts, privileged combatants who fall into the hands of an enemy generally may be interned until their repatriation at the cessation of active hostilities. Unprivileged combatants may also be interned and, moreover, may be subject to prosecution for their unprivileged belligerency. In either circumstance, the detention remains subject to supervision by the mechanisms prescribed under international humanitarian law, including the Protecting Powers regime under the 1949 Geneva Conventions and access by the International Committee of the Red Cross.

27. Enemy non-nationals in the territory of a party to an international armed conflict or civilians in occupied territory, on the other hand, may not be administratively detained or interned except where the security of the detaining or occupying power make it absolutely necessary. Where such detention or internment is imposed, it must be subject to reconsideration or appeal with the least possible delay and, if it is continued, subject to regular review by an appropriate or competent body, court or other tribunal designated for that purpose.

28. As in the case of the right to humane treatment, there may be circumstances in which the regulations and procedures under international humanitarian law may prove inadequate to properly safeguard the minimum human rights standards of detainees. This may occur, for example, where the continued existence of active hostilities becomes uncertain, or where a belligerent occupation continues over a prolonged period of time. As the paramount consideration must at all times remain the effective protection of the fundamental rights of detainees, the supervisory mechanisms under international human rights law or domestic law may necessarily supercede international humanitarian law in such circumstances in order to safeguard the fundamental rights of detainees.

29. Also included in the Commission’s analysis is the right to freedom of expression, which exhibits a lesser degree of convergence between international human rights and humanitarian law, but which nevertheless prescribes fundamental controls upon states’ counter-terrorism initiatives. In this connection, the Commission has emphasized the particular importance of respect for and protection of the right to freedom of expression in the Americas, as it plays a fundamental role in strengthening democracy and guaranteeing human rights by offering citizens an indispensable tool for informed participation. Further, the Commission highlights the fact that during situations of terrorist threat, an informed public can be an effective tool in monitoring and preventing abuses by public authorities.

30. Several rules and protections governing the right to freedom of expression warrant particular comment in the context of terrorism. In situations short of a state of emergency, prior censorship should not be used to prevent the circulation of ideas and information. In addition, subsequent penalties for the dissemination of opinions or information may only be imposed through laws that are clear and foreseeable and not overly broad or vague. Moreover, any subsequent penalties must be proportionate to the type of harm they are designed to prevent.

States should also refrain from promulgating laws that broadly criminalize the public defense (apologia) of terrorism or of persons who might have committed terrorist acts, without requiring a showing that such expressions were intended to incite, and were likely to produce lawless violence or other similar actions.

With respect to access to information in the hands of the government and the right of habeas data, there should be a presumption of openness, with restrictions on access only when releasing the information in question would or would be likely to cause serious prejudice to national security. States bear the burden of proof to show that such restrictions are necessary.

31. In states of emergency, the Commission observes that the right to freedom of expression is derogable for the time and to the extent strictly required by the exigencies of the situation. The Commission specifically observes in this connection that laws that impose prior censorship on the publication or dissemination of terrorist-related information or opinions may be permissible through derogation in times of emergency. States may also be justified during emergency situations in imposing additional restrictions on freedom of expression and access to information. However, the burden of proof is again on States to demonstrate that any derogations are not excessive in light of the exigencies of the situation.

32. With regard to situations of armed conflict, the Commission emphasizes in particular the obligation of parties to a conflict to afford journalists and media installations the protection to which their status under international humanitarian law entitles them, which is presumptively that of civilians and civilian objects.

33. The Commission recognizes that persons who find themselves in the territory of a state of which they are not nationals, including migrant workers, refugees and those seeking asylum from persecution, are particularly vulnerable to human rights violations in the development and execution of counter-terrorist measures.

This report therefore addresses several fundamental human rights specifically as they pertain to non-nationals in the context of anti-terrorism strategies, including the right to personal liberty and security, the right to humane treatment, the right to due process and to a fair trial, and the absolute and non-derogable prohibition against discrimination.

In order to ensure that measures adopted concerning the situation of non-nationals are not formulated or executed in a manner that transgresses these fundamental human rights, states must avoid in particular such practices as unjustified and prolonged detention, failure to inform detainees of their right to consular assistance, mass expulsions of non-nationals, and unavailable or ineffective review of judicial or administrative proceedings involving non-nationals.

The Commission has also stressed that proceedings involving the removal or deportation of such persons must properly consider and give effect to the principle of non-refoulement as reflected in such provisions as Article 33 of the UN Convention on the Status of Refugees, Article 3(1) of the UN Convention on Torture, Article 13 of the Inter-American Convention to Prevent and Punish Torture, and Article 22(8) of the American Convention on Human Rights.

34. Finally, the Commission’s analysis acknowledges that member states’ anti-terrorist initiatives may have detrimental implications for a broad range of human rights beyond those discussed above, including the rights to freedom of assembly and of association, the right to freedom of conscience and religion, the rights to property and privacy, and the right to participate in government. Accordingly, the report provides an abbreviated analysis of these rights and observes in particular that any measures taken by member states to restrict these rights must comply strictly with the procedural and substantive requirements governing restriction clauses under international human rights instruments. This requires that any restrictions be necessary for the security of all and in accordance with the just demands of a democratic society and must be the least restrictive of possible means to achieve a compelling public interest. In addition, any such restrictions must be prescribed by law passed by the legislature and in compliance with the internal legal order and cannot be subject to the discretion of a government or its officials.

35. The Commission’s report concludes with a series of specific recommendations that are intended to guide member states in implementing the rules and principles articulated in the Commission’s analysis.


I. INTRODUCTION

A. Purpose and Context of the Report

1. Terrorism and the violence and fear it perpetuates have been a prevalent and distressing feature of the modern history of the Americas, and one with which the Inter-American Commission on Human Rights is all too familiar. In recounting its activities between 1971 and 1981, for example, the Commission made the following observations which echo with disturbing familiarity today:

In several countries of the Hemisphere acts of violence have been occurring with alarming frequency, representing serious attacks against the essential rights of man. The most evident form of this violence is terrorism, a massive crime that tends to create a climate of insecurity and anxiety, on the pretext of bringing about a greater degree of social justice for the less-favored classes.[1]

2. Not only have manifestations of terrorist violence in the Americas presented a grave threat to the protection of human rights, but they have most frequently affected democratic governments and institutions.[2] Further, both state and non-state actors have been broadly implicated in instigating, supporting and perpetrating terrorism against the Hemisphere’s population, through such heinous practices as kidnappings, torture and forced disappearances.[3]

3. Numerous notorious incidents of terrorism in the Hemisphere in recent years[4] have confirmed that terrorism remains an on going and serious threat to the protection of human rights and to regional and international peace and security. Moreover, the three terrorist attacks of unprecedented proportion perpetrated simultaneously in the United States on September 11, 2001[5] suggest that the nature of the terrorist threat faced by the global community has expanded both quantitatively and qualitatively, to encompass private groups having a multinational presence and the capacity to inflict armed attacks against states. The implications of these developments for the protection of human rights and democracy are extremely grave and demand immediate and thorough consideration by the international community, including the organs of the Organization of American States.

As this Commission has frequently declared, international law obliges member states to take the measures necessary to prevent terrorism and other forms of violence and to guarantee the security of their populations.[6] Indeed, it cannot be ruled out that these measures may include future developments in international law that will address recent manifestations of terrorism as, for example, a new form of international warfare between private individuals or groups and states. Consistent with their obligation to eliminate terrorist violence, member states of the OAS and other intergovernmental organizations have taken numerous initiatives to respond to the threat of terrorism. States have, for example, negotiated multilateral treaties on terrorism,[7] including most recently the Inter-American Convention Against Terrorism adopted and opened for signature by the OAS General Assembly during its thirty-two regular session in June 2002.[8] States have also developed domestic laws and procedures to criminalize and prosecute terrorist activities.[9]

4. In undertaking these initiatives, however, member states are equally obliged to remain in strict compliance with their other international obligations, including those under international human rights law and international humanitarian law.[10] OAS member states have recognized this fundamental requirement in Article 15 of the Inter-American Convention against Terrorism, which provides as follows:

15.1. The measures carried out by states parties under this Convention shall take place with full respect for the rule of law, human rights and fundamental freedoms.

2. Nothing in this Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, in particular the Charter of the United Nations, the Charter of the Organization of American States, international humanitarian law, international human rights law, and international refugee law. 3. Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including the enjoyment of all rights and guarantees in conformity with the law of the state on the territory of which that person is present and applicable provisions of international law.[11]

5. The Inter-American Commission, as the organ of the OAS charged with promoting the observance and protection of human rights in the Hemisphere, has in past country reports and its reports on individual cases evaluated the human rights implications of numerous anti-terrorist initiatives undertaken by OAS member states. The Commission has consistently emphasized that unqualified respect for the full scope of human rights or rights which have not been legitimately suspended under an emergency must be a fundamental part of any anti-terrorist strategies.[12] Central to this approach is recognition of the fact that efforts to oppose terrorism and the protection of human rights and democracy are not antithetical responsibilities. To the contrary, derogation clauses in international human rights instruments specifically contemplate that exceptional measures requiring the temporary suspension of some rights may sometimes be necessary for the very purpose of protecting democratic institutions and the rule of law from terrorist and other threats, not to weaken or destroy them.

6. In order to reinforce its doctrine in this area and to assist member states in complying with their corresponding international legal obligations, the Commission decided in December 2001 to undertake a study by which it would reaffirm and elaborate upon the manner in which international human rights requirements regulate state conduct in responding to terrorist threats. The Commission pursued this project in fulfillment of its functions and powers under the OAS Charter and the Commission’s Statute, including the powers under Article 18 of its Statute:

b. to make recommendations to the governments of the states on the adoption of progressive measures in favor of human rights in the framework of their legislation, constitutional provisions and international commitments, as well as appropriate measures to further observance of those rights;

c. to prepare such studies or reports as it considers advisable for the performance of its duties.[13]

7. As described in further detail in Part II(C), the Commission has through the report and its underlying methodology endeavored to provide a timely and focused analysis of the principal human rights implications of efforts by states to respond to terrorist threats. It has done so by placing those efforts within the established framework of several core international human rights, in particular the right to life, the right to humane treatment, the right to personal liberty and security, the right to a fair trial, the right to freedom of expression and the right to judicial protection.

8. In its resolution adopting and opening for signature the Inter-American Convention Against Terrorism, the OAS General Assembly proclaimed that “the fight against terrorism must be undertaken with full respect for national and international law, human rights, and democratic institutions, in order to preserve the rule of law, liberties and democratic values in the Hemisphere, which are essential components of a successful fight against terrorism.”[14] The Commission is hopeful that the results of its study will assist OAS member states and other interested actors in the inter-American system in fulfilling this crucial responsibility.

B. Terrorism in the Context of International Law

9. Before undertaking a detailed analysis of the implications of terrorist violence for the human rights obligations of states in the inter-American system, it is first necessary to articulate the Commission’s understanding of the meaning and role of terrorism within the broader regime of international law.

10. Terrorism[15] is far from a new phenomenon; indeed it may even be said to antedate recorded history.[16] Its treatment as a subject of international law is of more recent origin. Among the earliest efforts to address terrorism as a matter of legal concern to the international community was the drafting by the League of Nations of the 1937 Geneva Convention for the Prevention and Punishment of Terrorism drafted by the League of Nations, which never entered into force.[17] The United Nations subsequently took up similar anti-terrorism initiatives through the negotiation of multilateral treaties[18] and the work of bodies at various levels of the Organization.[19]

11. Member states and organs of regional international organizations have likewise endeavored to address manifestations of terrorism in their respective jurisdictions through the negotiation of multilateral conventions and other measures. These organizations have included the Council of Europe,[20] the European Union,[21] the Organization for Security and Cooperation in Europe,[22] the African Union,[23] and the Organization of American States.

In the inter-American system in particular, notable anti-terrorist initiatives efforts have included the promulgation of the 1977 Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance,[24] the on going work of the Inter-American Committee against Terrorism,[25] and the recently adopted Inter-American Convention Against Terrorism.[26] Owing in part to the considerable impact of terrorism upon the protection of human rights and democracy in the Americas, the Inter-American Commission on Human Rights has for much of its history considered the problem of terrorist violence as a part of its mandate to promote the observance and protection of human rights in the Hemisphere.[27] These efforts within the inter-American system in turn have produced a considerable body of instruments and jurisprudence from which the Commission may draw for the purposes of this study.

12. In attempting to address the concept of terrorism within the framework of international law, it should first be recognized that the language of terrorism is used in a variety of contexts and with varying levels of formality to characterize:

• actions, including forms of violence such as highjacking or kidnapping
• actors, including persons or organizations
• causes or struggles, where the cause or struggle may be so marked by terrorist violence as to be indistinguishable from it, or where a movement may commit isolated terrorist acts or engage in terrorist strategies. It is largely in this respect that international disagreement on a comprehensive definition of terrorism has arisen, where certain states have considered that what are often referred to as “national liberation movements” and their methodologies should by reason of their association with the principle of self-determination of peoples be excluded from any definition of terrorism[28]
• situations, where terrorist violence is a particularly serious or widespread problem in a state or region
• armed conflicts, in the sense, for example, of the labeled post-September 11, 2001 “war on terrorism”

13. In connection with the final characterization above, terrorist attacks such as those occurring on September 11, 2001 in the United States suggest that assumptions regarding the characteristics of modern terrorism must be re-evaluated, to acknowledge that terrorist groups, apparently with the support or acquiescence of certain states, have gained access to financial and technological resources that permit them to operate multinationally and to perpetrate acts of mass destruction on an unprecedented scale. These developments have been coupled with an evolution in the objectives of these same groups to destroy particular societies at an international level.[29]

14. In this context, it cannot be ruled out that these new manifestations of terrorist violence may lead to future developments in international law. The international community may, for example, regard these forms of terrorism as giving rise to a new type of “terrorist war” and, correspondingly, develop international humanitarian law conventions to address armed conflicts waged internationally between states and non-state actors. Debates have also materialized concerning the permissibility under international law of “pre-emptive” military attacks as a defense against potential terrorist threats.[30] While the Commission will closely follow and, consistent with its mandate, may play a role in defining any future direction that international law may take in these respects, it will not speculate on such developments for the purposes of this report. Rather, the Commission will consider member states’ international legal obligations as presently constituted. As reflected in Article 15 of the Inter-American Convention against Terrorism, these include the requirements of international human rights, humanitarian, and refugee law which, as noted above, expressly contemplate the need to take exceptional measures in certain situations to protect human rights and democratic governance.

15. In defining the parameters of member states’ obligations under current international law, it must also be recognized that to-date there has been no consensus on a comprehensive international legal definition of terrorism.[31] At best, as reflected in Article 2 of the Inter-American Convention against Terrorism,[32] it may be said that the international community has identified certain acts of violence that are generally considered to constitute particular forms of terrorism. These include, for example, the taking of hostages,[33] the seizure and destruction of civilian aircraft,[34] attacks against the life, physical integrity or liberty of internationally protected persons including diplomatic agents,[35] and, in the context of armed conflicts, acts or threats of violence the primary purpose of which is to spread terror among the civilian population.[36]

16. The absence of agreement on a comprehensive definition of terrorism under international law suggests in turn that the characterization of an act or situation as one of terrorism cannot in and of itself serve as a basis for defining the international legal obligations of states. Rather, each such act or situation must be evaluated on its own facts and in its particular context to determine whether and in what manner contemporary international law may regulate the responding conduct of states.[37]

17. At the same time, the fact that terrorism per se may not have a specific meaning under international law does not mean that terrorism is an indescribable form of violence or that states are not subject to restrictions under international law when developing their responses to such violence. To the contrary, it is possible to identify several characteristics frequently associated with incidents of terrorism that provide sufficient parameters within which states’ international legal obligations in responding to terrorist violence may be identified and evaluated. The United Nations General Assembly, for example, has developed a working definition of terrorism for the purposes of its various resolutions and declarations on measures to eliminate terrorism, namely “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes [which] are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be used to justify them.”[38]

These and other authorities suggest that characteristics common to incidents of terrorism may be described in terms of: (a) the nature and identity of the perpetrators of terrorism; (b) the nature and identity of the victims of terrorism; (c) the objectives of terrorism; and (d) the means employed to perpetrate terror violence.[39] More specifically:

(a) the perpetrators or instigators of terrorism may be comprised of states as well as private individuals or groups who may act independently or with the direct or indirect support of states.[40] “State terrorism” has a notable history in the Americas where many governments have engaged in kidnappings, forced disappearances and other egregious human rights violations against their own populations, often under the guise of fighting terrorism;[41]

(b) the targets of terrorist violence have also varied to include persons, institutions and property.[42] Commentators have observed, however, that the victims of terrorism have predominantly remained human ones, due in part to the strength that terrorism draws from the intrinsic value of human life and the psychological stress and fear created when human lives are jeopardized.[43] Similarly, terrorism has tended to take advantage of the sources of strength in democratic communities, such as open societies, constitutional safeguards and a science-based and technological civilization, as vulnerable targets and as a source of the very weapons used to attack those communities. “Terrorism,” as one commentator has observed, “has never had a chance in an effective dictatorship, but hardly a major democratic society has entirely escaped it.”[44]

(c) the motivations driving the perpetrators of terrorism tend to be ideological or political in nature;[45]

(d) concerning the means of perpetrating terrorism, terrorist violence may occur at a domestic or international level and has most often been perpetrated through the use of conventional weapons, although the possible use of weapons of mass destruction by terrorists is an ever-increasing matter of concern to the international community.[46] Further, terrorist incidents, whether perpetrated on a recurring or sporadic basis, are inevitably clandestine and unpredictable; the exploitation of fear and terror, the resulting intimidation and subversion of public order, and the publicity generated by these techniques, have traditionally constituted central tools of terrorist violence.[47] Distinguishing characteristics of terrorist methodology have also generally included a willingness in the part on its perpetrators to take risks and make personal sacrifices for their cause to a greater extent than common criminals.[48]

18. In light of the general characteristics of terrorist violence and their changeable nature, as described above, it is apparent that the obligations of states in responding to such violence do not exist in a void. Rather, as properly recognized in Article 15 of the Inter-American Convention against Terrorism, states’ reactions to terrorism may be regulated, independently or concurrently, by several regimes of international law, including international human rights law and international humanitarian law. As discussed in further detail in Part II, this in turn is dependent upon whether the nature and degree of terrorist violence triggers or otherwise occurs in the context of

• a situation of peace, where international human rights law is fully applicable

• an emergency that threatens the independence or security of a state, in which case international human rights law applies subject to any permissible derogations based strictly on the exigencies of the situation, or

• an armed conflict, where both international human rights law and international humanitarian law apply coextensively but where states’ human rights obligations may have to be interpreted in light of international humanitarian law as the applicable lex specialis.

19. The detailed interrelationship between these regimes of law in the context of particular rights is the subject of further discussion in the substance of this report. At this stage, however, it should be recognized that the classification of an act or situation as one of terrorism in and of itself does not affect the application of a regime of international law where, in the circumstance, the conditions for the application of that regime are satisfied. The significance of this caveat is most clearly illustrated by the manifestation of terrorist violence in the context of an international armed conflict.

20. For example, where a situation of hostilities is considered to constitute an international armed conflict and the armed forces of one of the parties to the conflict satisfy the requirements for prisoner of war status under Article 4 of the Third Geneva Convention, or Articles 43 to 45 of Additional Protocol I in the case of states parties to that instrument,[49] the fact that members of those forces may have engaged in acts of terrorism in the course of hostilities does not alter the continued application of international humanitarian law to the conflict or the entitlement of those members to the protections of the Third Geneva Convention or Additional Protocol I where applicable.[50]

At the same time, those members may be prosecuted and found individually criminally responsible for terrorist acts to the extent that those acts may constitute grave breaches of the 1949 Geneva Conventions or of Additional Protocol I where applicable, or other serious violations of international humanitarian law.[51] Similarly, where combatants in an international armed conflict fail to satisfy the requirements of prisoner of war status and are therefore not entitled to the protections under Third Geneva Convention , they will remain the beneficiaries of the minimum customary standards of treatment set forth in common Article 3 and Article 75 of Additional Protocol I notwithstanding the fact that those combatants may have participated in acts of terrorism in the course of hostilities.

21. Also pertinent to the Commission’s analysis are the characteristics of initiatives frequently taken by states to respond to terrorist violence. As confirmed by the information submitted by member states in relation to this study, states have endeavored to adapt existing law enforcement mechanisms, and develop new mechanisms, to investigate, suppress and punish terrorism, on a domestic level and internationally.[52] These efforts have included enhanced implementation of extradition, mutual legal assistance, information sharing and other forms of inter-state cooperation in criminal matters,[53] more rigorous enforcement of measures to exclude, remove or extradite aliens suspected of participation in terrorist activities,[54] the criminalization of terrorist-related activities and detention, prosecution, and punishment of persons suspected of having committed those crimes,[55] the freezing of financial and other assets used in the furtherance of terrorist activity,[56] undertaking police or military operations against terrorist groups, within a state’s territory or in the territory of another state affiliated with such groups,[57] and negotiating treaties that prescribe bilateral and multilateral anti-terrorist cooperative measures.[58]

 Particularly significant for the effective execution of many of these methods of inter-state cooperation is the explicit stipulation in certain international anti-terrorism instruments that terrorist crimes as defined under those instruments are not to be regarded as political or related common offenses for the purposes of extradition or mutual legal cooperation.[59]

22. Efforts of the nature described above may in principle be considered to coincide with the long-recognized obligation of member states to take the measures necessary to prevent acts of terrorism and violence and to guarantee the security of their populations,[60] which includes the duty to investigate, prosecute and punish acts of violence or terrorism.[61] At the same time, the Commission cannot overemphasize the overriding requirement that any counter-terrorism initiatives by states comply with their existing obligations under international law, including those under international human rights and humanitarian law. As the Commission has previously observed, “unqualified respect for human rights must be a fundamental part of any anti-subversive strategies when such strategies have to be implemented.”[62]

This in turn entails respect for the full scope of human rights or rights that have not been legitimately suspended under an emergency. Not only is a commitment to this approach dictated as a matter of principle, namely to respect the very values of democracy and the rule of law that counter-terrorism efforts are intended to preserve, it is also mandated by the international instruments to which states are legally bound, including the American Declaration of the Rights and Duties of Man,[63] the American Convention on Human Rights,[64] the Universal Declaration of Human Rights,[65] the International Covenant on Civil and Political Rights,[66] and the 1949 Geneva Conventions,[67] the 1977 Additional Protocols thereto,[68] and other pertinent international humanitarian law instruments and corresponding norms of customary law.

These international legal obligations create no general exception for terrorism in their application, but rather establish an interrelated and mutually reinforcing regime of human rights protections with which states’ responses to terrorism must conform.[69] In this respect, the campaign against terrorism and the protection of human rights should not be regarded as antithetical responsibilities; to the contrary, derogation clauses in international human rights instruments clearly recognize that exceptional measures requiring the temporary suspension of some rights may sometimes be necessary in responding to threats for the very purpose of protecting democratic institutions and the rule of law, not to weaken or destroy them. This doctrinal approach has been particularly significant in the Americas, where the instigators and perpetrators of terrorism have frequently sought to undermine not only the human rights of civilian populations but the democratic systems of government upon which the protection of those rights fundamentally depend.

23. Through this report, the Commission will attempt to articulate in further detail the manner in which the human rights obligations of OAS member states should inform their responses to threats of terrorist violence.

C. Methodology

24. The Inter-American Commission announced its decision to undertake the present study on terrorism and human rights in a resolution adopted on December 12, 2001.[70] In declaring its intention to examine this topic, the Commission placed the pressing problem of terrorism in the context of OAS member states’ correlative obligations to protect the Hemisphere’s population against violence of this nature, and to ensure that their efforts in this regard conform with international law. Accordingly, the Commission’s study was conceived as an opportunity to assist states in adopting anti-terrorism measures that accord with their international human rights commitments. To this end, the Commission has in this report addressed the minimum requirements of international human rights and humanitarian law in respect of several fundamental human rights, and to evaluate the manner in which these requirements may impact upon a variety of anti-terrorism practices.

25. Following the release of its resolution on terrorism, the Commission decided to convene a panel of international experts during its 114th regular period of sessions at its Headquarters in Washington, D.C., in order to obtain timely information on the issue of terrorism and human rights from a variety of specialized perspectives. On March 11, 2002 at the Commission’s invitation, five experts, Aryeh Neier, President of the Open Society Institute, Dr. Jorge Santistevan, former Defensor del Pueblo of Peru, Yale and Johns Hopkins University Law Professor Ruth Wedgwood, University of Washington Law Professor Joan Fitzpatrick, and University of Virginia Law Professor David Martin, attended before the Commission and provided extensive and insightful oral and written presentations on various aspects of the issue. Topics of discussion included the propriety of using military commissions to try terrorism-related offenses, the conditions under which persons may be the subject of administrative detention for immigration and related reasons, and the possible role of international humanitarian law in regulating state responses to terrorist attacks.

26. To supplement the information gained through the experts hearing and to provide the Commission with the broadest input possible, the Commission, by notes transmitted in March and April 2002, invited each of the member states of the Organization of American States as well as several pertinent non-governmental organizations to submit in writing any general or specific observations that they may have on the subject matter of the Commission’s study. The Commission received a considerable number of responses to its invitations, including communications from the Governments of Venezuela, Panama, Argentina, Brazil, Colombia, Mexico, and the Commonwealth of Dominica as well as observations from various non-governmental organizations including London-based Interights, the Center for Constitutional Rights in New York, and Columbia Law School’s Human Rights Institute. The Commission also received information from other international institutions, including the International Commission of Jurists and the Office of the United Nations High Commissioner for Refugees, and drew upon pertinent material otherwise available in the public domain.

27. In the course of its study, the Commission took particular notice of the comprehensive draft conventions on terrorism prepared under the auspices of the United Nations and the Organization of American States, the negotiation of which coincided with the Commission’s initiative. These conventions, the latter of which was ultimately adopted by the OAS General Assembly and opened for signature and ratification on June 2, 2002 during its thirty-second regular session and which are discussed in further detail in Part II(A), signify the cooperative attitude among many states to confront terrorism. These instruments also illustrate several of the methods likely to be adopted by states in pursuing this objective and that may have implications for the protection of human rights. In this regard, the Commission noted with approval the prominent role that recognition of compliance with member states’ human rights and other existing international agreements played in the negotiation and final text of the OAS convention. As noted above, Article 15 of the Inter-American Convention Against Terrorism requires, inter alia, that measures carried out by states parties under the Convention must take place with full respect for the rule of law, human rights and fundamental freedoms and that “[n]othing in this Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, in particular the Charter of the United Nations, the Charter of the Organization of American States, international humanitarian law, international human rights law, and international refugee law.”[71] Also as observed above, ensuring compliance with existing international human rights and humanitarian law commitments in the campaign against terrorism is dictated both as a matter of principle, and in the terms of the international instruments by which states are legally bound.[72]

28. In evaluating the information received in the course of its study, the Commission considered that a rights-based methodology provided the most effective structure for its analysis. Under this approach, the implications of counter-terrorism initiatives are examined within the established framework of several core international human rights, in particular the right to life, the right to humane treatment, the right to personal liberty and security, the right to a fair trial, the right to freedom of expression and the right to judicial protection, as well as a variety of other potentially significant freedoms. In light of the fact that the circumstances surrounding instances of terrorism can, as noted above, involve a variety of perpetrators, victims, motivations and methodologies, the Commission considered it necessary to address the framework of these core rights in light of international human rights law and international humanitarian law.

29. The Commission wishes to remark briefly upon its use of international humanitarian law in the analysis of each of the rights under discussion. As explained in further detail in Part II(C), there may be occasions in which terrorist acts are perpetrated in the context of an existing armed conflict or where the nature and degree of violence generated by terrorist situations itself triggers the application of the law of armed conflict. Consistent with established international legal doctrine in this area, where situations of armed conflict may be concerned, international human rights law is in no way displaced by the law of armed conflict or any other regime of international law. Rather, human rights law continues to apply except to the extent that it may properly be made the subject of derogations. In interpreting and applying human rights protections in such circumstances, however, it may be necessary for the Commission to refer to and consider pertinent provisions of international humanitarian law as the applicable lex specialis.[73] This methodology is particularly significant where situations of international armed conflict are concerned, as the four Geneva Conventions of 1949 and other applicable instruments prescribe extensive and specific rules and standards concerning the protection of victims of armed conflict and must be considered in order to properly interpret and apply international human rights protections during these armed conflicts. Consistent with this approach, the Commission has integrated into its analysis of the various rights under discussion consideration of the manner in which applicable norms of international humanitarian law may affect state’s obligations in undertaking counter-terrorism initiatives.

30. The Commission would like to express its gratitude for the generous participation and input on the part of the experts, member states and organizations who contributed time and observations to this study.


 

II. LEGAL FRAMEWORK FOR THE COMMISSION’S ANALYSIS

31. A complete and accurate analysis of the international human rights commitments of states in the context of terrorist violence requires consideration of conventional and customary rules and principles of both international human rights law and international humanitarian law as well as the framework of international instruments developed specifically for the purpose of preventing, suppressing and eradicating terrorism. This section of the report provides a general overview of each of these regimes of international law, which will in turn provide a basis for the examination of specific rights in the context of terrorism in Part III.

A. The International Law Against Terrorism

32. As suggested in Part I, the longstanding campaign by states against terrorism has given rise to a body of international law specifically intended to prevent, suppress and eradicate forms of terrorist violence. This area of international regulation is significant for several reasons. It provides examples of efforts by states to protect their populations from the dangers of terrorism. As the Commission has previously emphasized, OAS member states are obliged to guarantee the safety of their populations,[74] which includes taking the measures necessary to investigate, prosecute and punish acts of terrorism.[75] These prescriptions also form part of the international framework within which member states’ human rights obligations must be interpreted and applied.

33. Much of the international law of terrorism has taken the form of multilateral treaties. Major anti-terrorism instruments include the International Convention Against the Taking of Hostages,[76] the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,[77] and the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents.[78] These and other treaties on terrorism have developed to contain several provisions that are considered particularly pertinent in combating this form of violence.

These provisions include articles that define particular acts of terrorism as criminal offenses for the purposes of the treaties,[79] oblige states parties to make the offenses punishable by appropriate penalties under their domestic law, [80] and require states parties to establish their jurisdiction over offenses and suspected offenders in particular cases and to prosecute or extradite alleged offenders.[81] Also included in anti-terrorism instruments are provisions that require states parties to cooperate in preventing terrorist offenses and to provide mutual legal assistance in criminal proceedings relating to crimes of terrorism,[82] that require terrorist offenses to be included as extraditable offenses in any extradition treaties between states parties,[83] and that oblige states parties not to regard certain terrorist offenses as political offenses, as offenses connected with a political offense or as offenses inspired by political motives for the purposes of extradition.[84] It is notable in this respect that the provisions of this body of law that require states parties to investigate, prosecute and punish terrorist crimes coincide with the doctrine under international human rights law according to which states are obliged to investigate the acts and punish those responsible whenever there has been a violation of human rights.[85]

34. In addition to treaties that address particular manifestations of terrorism, the international community has endeavored to develop treaties that address terrorism on a more inclusive basis. These efforts have included negotiations at the United Nations for a comprehensive convention on international terrorism. Responsibility for elaborating this convention has been assigned to the UN General Assembly’s Ad Hoc Committee on Terrorism[86] as well as a Working Group of the General Assembly’s Sixth Committee.[87] According to the most recent draft treaty available,[88] the Convention includes articles similar to those found in the more specific treaties discussed above addressing, for example, the investigation and prosecution or extradition of alleged offenders and mutual legal assistance between states in criminal proceedings involving terrorist crimes. More controversially, the draft convention endeavors to provide a comprehensive definition of terrorism, which has not yet reached agreement among states.[89] The relationship between the comprehensive convention and more specific treaties on terrorism has also been the subject of continuing debate, with some states contending that the treaty should add to the existing conventions while others have asserted that it should be more of an umbrella convention.[90] As of this writing, the draft convention has remained under consideration by the General Assembly’s Ad Hoc Committee and by the Working Group of the Sixth Committee.[91]

35. Similar initiatives to develop comprehensive terrorism conventions have been pursued at the regional level.[92] As emphasized by member states in their responses to the Commission’s invitation to submit information on the present study, these efforts have included the Inter-American Convention Against Terrorism, which was approved and opened for signature by the OAS General Assembly on June 3, 2002 with the stated object and purpose of preventing, punishing and eliminating terrorism.[93] As of this writing, the Convention has been signed by 32 member states but has yet to be ratified by any governments.[94] Many of the provisions of the Inter-American Convention against Terrorism are similar to those under other anti-terrorism treaties.

These include, for example, articles that oblige states parties to afford one another mutual legal assistance, including cooperation among law enforcement authorities, with respect to the prevention, investigation and prosecution of the offenses addressed by the treaty.[95] It also renders the political offense exception inapplicable to crimes under the treaty and requires member states to ensure that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed such a crime.[96] Unlike the UN terrorism convention, however, the OAS treaty refrains from providing a comprehensive definition of terrorism, but rather incorporates the crimes prescribed by ten existing international treaties on terrorism.[97] The Convention also contains extensive provisions addressing the prevention, combating and eradication of the financing of terrorism by, for example, requiring states parties to “institute a comprehensive regulatory and supervisory regime for banks, other financial institutions, and other entities deemed particularly susceptible to being used for the financing of terrorist activities.”[98] It similarly addresses the seizure and confiscation of funds or other assets constituting the proceeds of, used to facilitate, or used or intended to finance, the commission of any of the offenses under the Convention.[99] And as noted previously, pursuant to Article 15 all of the measures under the treaty are subject to the requirement of respect for the rule of law, human rights and fundamental freedoms.[100]

36. Elements of the international law of terrorism described above are discussed in greater detail in the substantive analysis of rights and freedoms contained in this report. It may be noted at this stage, however, that particular regard must be paid to fundamental human rights in the interpretation and application of certain treaty provisions. This includes, for example, implications of the right to personal liberty and security, the right to due process, and the non-refoulement principle for the apprehension, detention and prosecution or extradition of suspected terrorists, as well as the impact of the rights to property and privacy upon the investigation, seizure and confiscation of property allegedly used for terrorist purposes.

B. International Human Rights Law

37. Within the inter-American system, the human rights obligations of member states of the Organization of American States flow from several sources.

38. By virtue of their ratification of the OAS Charter, all member states are bound by the human rights obligations incorporated in that instrument, which the political[101] and human rights[102] organs of the Organization have recognized are contained in and defined by the American Declaration of the Rights and Duties of Man. Significant aspects of the American Declaration may also be considered to reflect norms of customary international law.[103] On the basis of treaty and custom, therefore, the American Declaration constitutes a source of legal obligation for all OAS member states, including in particular those states that have not ratified the American Convention on Human Rights.[104]

39. Member states that have ratified the American Convention on Human Rights explicitly undertake pursuant to Articles 1(1) and 2 of that instrument to respect the rights and freedoms recognized in the Convention, and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms without discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. They also agree to adopt, in accordance with their constitutional processes and the provisions of the Convention such legislative or other measures as may be necessary to give effect to the rights or freedoms where the exercise of those rights or freedoms is not already ensured by legislative or other provisions.

40. Numerous additional treaties have supplemented and expanded upon the rights contained in these two principal instruments and constitute additional international obligations for member states that have ratified or acceded to their terms. These agreements include the Inter-American Convention to Prevent and Punish Torture,[105] the Inter-American Convention on Forced Disappearance of Persons,[106] the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (“Convention of Belém do Pará”),[107] and the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (“Protocol of San Salvador”).[108]

41. The Commission also observes that these instruments must be interpreted and applied in light of several well-established rules and principles governing international legal obligations generally, and human rights obligations in particular, as outlined below.

42. As with all international obligations, a state’s human rights obligations are superior to the requirements of its domestic law and must be performed in good faith. Accordingly, states cannot invoke their contrary domestic law as an excuse for non-compliance with international law.[109] It is also well recognized that the international human rights commitments of states apply at all times, whether in situations of peace or situations of war. This precept flows from the jurisprudence of this Commission[110] and other pertinent international authorities[111] as well as the terms of human rights instruments themselves.[112]

43. A state’s human rights obligations have also been recognized as distinct from its other international commitments, because states are, through their international human rights commitments, deemed to submit themselves to a legal order within which they assume various obligations, not in relation to other states parties, but toward all individuals within their jurisdiction. Accordingly, human rights instruments are to be interpreted in light of an object and purpose consistent with their fundamental nature, namely the protection of the basic rights of individual human beings irrespective of their nationality, both against the state of their nationality and against all other contracting states.[113]

44. Consistent with this approach, a state’s human rights obligations are not dependent upon a person’s nationality or presence within a particular geographic area, but rather extend to all persons subject to that state’s authority and control.[114] This basic precept in turn is based upon the fundamental premise that human rights protections are derived from the attributes of an individual’s personality and by virtue of the fact that he or she is a human being, and not because he or she is the citizen of a particular state. This principle is explicitly recognized in the preambles to both the American Declaration and the American Convention[115] and is also recognized in other provisions of these instruments, including those which guarantee all persons the rights under those instruments without any discrimination for reasons of sex, language, creed or any other factor, including national or social origin,[116] and the right to recognition as a person before the law.[117]

45. When interpreting and applying the provisions of inter-American human rights instruments, it is both appropriate and necessary to take into account member states’ obligations under other human rights and humanitarian law treaties, which together create an interrelated and mutually reinforcing regime of human rights protections. These treaties include, but are not limited to, the Universal Declaration of Human Rights,[118] the International Covenant on Civil and Political Rights,[119] the UN Convention relating to the Status of Refugees[120] and its 1967 Additional Protocol,[121] the UN Convention on the Rights of the Child,[122] the International Convention on the Elimination of all Forms of Racial Discrimination,[123] the Vienna Convention on Consular Relations,[124] the 1949 Geneva Conventions,[125] and the 1977 Additional Protocols thereto.[126] Under this interconnected regime of treaty obligations, one instrument may not be used as a basis for denying or limiting other favorable or more extensive human rights that individuals might otherwise be entitled to under international or domestic law or practice.[127] A chart stipulating OAS member states that have at present signed,[128] ratified or acceded to each of the foregoing instruments has been included as Annex “II” to this report.

46. Moreover, these treaties, together with the instruments and jurisprudence of other international human rights systems, reflect and form part of developments in the corpus of international human rights law more broadly that are properly taken into account in evaluating states’ human rights obligations in the inter-American system. As the Inter-American Court has proclaimed, the provisions of the inter-American instruments must be interpreted in the context of developments in the field of international human rights law since those instruments were first composed and with due regard to other relevant rules of international law applicable to member states.[129] These developments may in turn be drawn from the provisions of other prevailing international and regional human rights instruments as informed by relevant principles and customary rules of international law.[130]

47. It is also pertinent to observe that the human rights framework established by member states of the OAS is one that speaks generally to the obligations and responsibilities of states,[131] which are obliged to refrain from supporting, tolerating or otherwise acquiescing in acts or omissions that fail to conform with their international human rights commitments.[132] Consistent with this premise, the Commission's mandate is to promote the observance and protection of human rights by states and their agents rather than non-state actors.[133]

48. This does not mean, however, that the conduct of non-state actors, including terrorists and terrorist groups, bears no relevance to the evaluation of states’ obligations concerning human rights protections in the Hemisphere. Throughout its history, the Commission has, for example, referenced the atrocities committed by armed dissident groups in its press releases, in communications with governments, and in its reports on the situation of human rights in the various member states of the OAS.[134] The Commission has considered violence of this nature to constitute a relevant component of the environment in which states’ general compliance with human rights standards must be evaluated, and as a justification that may potentially be invoked by states as grounds for temporarily suspending the exercise of certain rights.[135]

49. This in turn raises the issue of derogation from rights protected under the inter-American human rights instruments. As noted above, the fundamental human rights protection of persons apply at all times, in peace, during emergency situations, and in war.[136] Nevertheless, the American Convention, like other international human rights instruments,[137] permits states to take measures derogating from certain treaty protections under narrowly-prescribed situations of emergency. Article 27 of the Convention provides in this regard as follows:

Article 27

1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.

3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.[138]

50. While the American Declaration does not explicitly contemplate the possibility of restricting or suspending the rights prescribed thereunder, the Commission has considered that the derogation criteria derived from the American Convention on Human Rights embody the Hemisphere’s deliberations on the issue and are properly considered and applied in the context of the Declaration.[139]

51. According to the doctrine of the inter-American human rights system, the ability of states to take measures derogating from protections under the human rights instruments to which they are bound is strictly governed by several conditions, which are in turn broadly regulated by the generally recognized principles of proportionality, necessity and nondiscrimination:[140]

• In order to consider that there is an emergency justifying suspension of rights, there must be an extremely grave situation of such a nature that there is a real threat to law and order or the security of the state, including an armed conflict, public danger, or other emergency that imperils the public order or security of a member state;[141]

• Any suspension may only be for such time as is strictly required by the exigencies of the situation and may not be proclaimed for indefinite or prolonged periods;[142]

• Any suspension may only be effectuated to the extent strictly required by the exigencies of the situation, and thereby precludes the unnecessary suspension of rights, the imposition of restrictions more severe than necessary, or the unnecessary extension of suspension to regions or areas not affected by the emergency;[143]

• Any suspension of rights cannot entail discrimination of any kind on such grounds as race, color, sex, language, religion or social origin;[144]

• Any suspension must be compatible with all of a member state’s other obligations under international law;[145]

• The declaration of a state of a state of emergency must be notified to the members states of the OAS with sufficient information that others may determine the nature of the emergency, whether the measures are strictly required by the exigencies of the situation, and whether they might be discriminatory or inconsistent with the state’s other obligations under international law.[146]

52. It must also be considered, however, that certain rights can never be the subject of derogation. The implications of this restriction in the context of particular rights will be explored in further detail in Part III of this Report. It may be observed at this stage, however, that Article 27(2) of the American Convention enumerates all of the rights that may not be the subject of derogation, namely the right to juridical personality, the right to life, the right to humane treatment, the prohibition of slavery and servitude, the principle of non-retroactivity of laws, freedom of conscience and religion, protection of the family, right to a name, rights of the child, right to nationality, and the right to participate in government, as well as the “judicial guarantees essential for the protection of such rights.” In accordance with the latter qualification and the jurisprudence of the Inter-American Court of Human Rights, non-derogable rights within the inter-American system also include the rule of law, the principle of legality, and habeas corpus and amparo remedies, which have been held to constitute judicial guarantees essential for the protection of rights that are non-derogable.[147] Derogable rights, in the other hand, include the right to privacy, the right to freedom of expression, the right of assembly, the right to freedom of association, the right to property, and the right to freedom of movement and residence. They also include derogable aspects of the right to personal liberty and the right to a fair trial, as discussed in further detail below.

53. In addition to the rules governing derogation from rights, it is apparent that certain rights protected under the inter-American human rights instruments may properly be the subject of certain restrictions that are specifically provided for in the provisions protecting these rights. These restrictions, described generally as those “prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others,” are found in the provisions of the American Convention governing the right to freedom of conscience and religion,[148] the right to freedom of thought and expression,[149] and the right freedom of association.[150] While these restriction provisions are distinct in several fundamental respects from derogation clauses,[151] they are, like derogation provisions, governed by specific requirements that are the subject of strict and rigorous review by the supervisory bodies of the inter-American system.[152] They must also be interpreted in light of the general terms of Article 30 of the American Convention, and the corresponding stipulations under Article XXVIII of the American Declaration,[153] according to which the “restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purposes for which such restrictions have been established.”

54. According to inter-American jurisprudence, in determining the legitimacy of restrictions of this nature and, hence, in judging whether such provisions have been violated, it is necessary to decide on a case by case basis whether the specific terms of restrictions or limitations have been respected.[154] These terms provide both procedural and substantive requirements for the proper imposition of restrictions or limitations on particular human rights.[155] The procedural requirements mandate that any action that affects rights must be prescribed by law passed by the legislature and in compliance with the internal legal order and cannot be subject to the discretion of a government or its officials.[156]

55. The substantive requirements provide that any restrictions must be necessary for the security of all and in accordance with the just demands of a democratic society, and that their application be proportionate and closely tailored to the legitimate objective necessitating them.[157] The Inter-American Court has suggested in this respect that both public order and general welfare may properly be considered in evaluating limitations upon rights of the above nature. Public order[158] in turn refers to the conditions that assure the normal and harmonious functioning of institutions based on a coherent system of values and principles, while the concept of general welfare within the framework of the American Convention refers to the conditions of social life that allow members of society to reach the highest level of personal development and the optimum achievement of democratic values.[159] When these concepts are invoked as grounds for limiting human rights, however, they must be subjected to an interpretation that is strictly limited to the just demands of a democratic society, which takes account of the need to balance the competing interests involved and the need to preserve the object and purpose of the Convention.[160]

56. As will be expanded upon in the remainder of this report, it is clear that the human rights protections of the inter-American system are pertinent to member states’ initiatives to respond to terrorism in several respects: they constitute international legal obligations that are binding on member states at all times, whether in times or war or other emergency or in times of peace; certain situations of terrorism might conceivably provide conditions under which member states may properly restrict or derogate from certain rights; and certain rights, including the right to life, the right to humane treatment and the fundamental components of the right to due process and a fair trial, may never properly be the subject of restriction or derogation under any circumstances. As specified previously, this latter restriction arises from the explicit terms of the applicable human rights instruments, as well as the mutually reinforcing interrelationship between states’ various domestic and international human rights obligations, according to which restrictions and derogations authorized under one instrument or law cannot be used to legalize or justify otherwise impermissible restrictions on or derogations from human rights under another instrument or law.[161]


 

C. International Humanitarian Law

57. To the extent that terrorist or counter-terrorist actions may give rise to or occur in the context of the use of armed force between states or armed violence between governmental authorities and organized armed groups or between such groups within a state, as described in further detail below, they may implicate the possible application of rules of international humanitarian law in evaluating states’ human rights obligations. This section provides for an introduction to humanitarian law, its scope of application and its basic rules as they presently exist. As observed in the introduction to this report, however, it cannot be ruled out that new manifestations of terrorist violence such as those perpetrated in the United States on September 11, 2001 may lead to future developments in international humanitarian law.

58. International humanitarian law is a branch of international law that applies in situations of armed conflict and which principally regulates and restrains the conduct of warfare or the use of violence so as to diminish its effects on the victims of the hostilities. The victims of armed conflict who are afforded this protection include civilians, prisoners of war, and any other members of armed forces placed hors de combat by sickness, wounds, detention or any other cause and who have fallen into the hands of an adverse party.[162]

59. International humanitarian law is applicable during armed conflicts, that is to say whenever there is a resort to armed force between states or low intensity and armed confrontations between State authorities and organized armed groups or between such groups within a State.[163] In this respect, armed conflicts may be of an international or non-international nature, which in turn affects the specific international rules that apply to a conflict. In particular, as will be discussed throughout this report, situations of international armed conflict trigger an extensive and specialized regime of rules and regulations under the 1949 Geneva Conventions and related instruments that impact upon the manner in which international human rights law may be considered to apply to the victims of such conflicts, including prisoners of war, unprivileged combatants and civilians. For their part, internal armed conflicts must also be distinguished from situations of internal tensions and disturbances, such as demonstrations without a concerted plan from the outset or isolated sporadic acts of violence,[164] which are not presently governed by international humanitarian law but rather are covered by universal and regional human rights instruments.[165] In all cases, the determination as to the existence and nature of an armed conflict is an objective one, based upon the nature and degree of hostilities, irrespective of the purpose or motivation underlying the conflict[166] or the qualification by Parties to the conflict.[167]

60. Temporally and geographically, international humanitarian law applies “from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.”[168]

61. In situations of armed conflict, both international human rights law and international humanitarian law apply.[169] Nevertheless, the American Convention and other universal and regional human rights instruments were not designed specifically to regulate armed conflict situations and do not contain specific rules governing the use of force and the means and methods of warfare in that context. Accordingly, in situations of armed conflict, international humanitarian law may serve as lex specialis in interpreting and applying international human rights instruments.[170] For example, both Article 4 of the American Convention and humanitarian law applicable to armed conflicts protect the right to life and, thus, prohibit summary executions in all circumstances. However, reference to Article 4 of the Convention alone may be insufficient to assess whether, in situations of armed conflicts, the right to life has been infringed. This is in part because the Convention is devoid of rules that either define or distinguish civilians from combatants and other military targets. Nor does the Convention specify the circumstances under which it is not illegal, in the context of an armed conflict, to attack a combatant or civilian or when civilian casualties as a consequence of military operations do not imply a violation of international law. Consequently, in such circumstances, one must necessarily look to and apply definitional standards and relevant rules of international humanitarian law as sources of authoritative guidance in the assessment of the respect of the inter-American Instruments in combat situations.[171]

62. It is therefore appropriate, and indeed imperative, for the Commission to consider all relevant international norms, including those of international humanitarian law, while interpreting the international human rights law instruments for which it is responsible.[172] International humanitarian law is also pertinent to the Commission’s interpretation of and application of human rights protection to the extent that, as described previously, states’ treaty obligations in these regimes of international law prescribe interrelated and mutually reinforcing standards of protection.[173]

63. The principal sources of international humanitarian law are the four Geneva Conventions of 1949,[174] their Additional Protocols I[175] and II[176] of 1977, the Hague Conventions of 1899 and 1907 and associated regulations,[177] and the customary laws of war. Most of the provisions of the Hague Conventions,[178] the 1949 Geneva Conventions,[179] and Additional Protocol I,[180] are applicable in international armed conflicts or belligerent occupations, defined as cases of declared war or of any other armed conflict which may arise between two states, even if the state of war is not recognized by one of them, cases of partial or total occupation of the territory of a state by another, even if the said occupation meets with no armed resistance,[181] and, in the case of Additional Protocol I, armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.[182] Article 3 common to the Four Geneva Conventions, on the other hand, was developed to apply to armed conflicts which are not of an international character[183] and has subsequently been interpreted as constituting the minimum standards of international humanitarian law applicable in all armed conflicts.[184]

Additional Protocol II,[185] which develops and supplements many of the protections contained in common Article 3, is specifically applicable in a more narrowly defined category of internal armed conflicts, namely those which take place in the territory of a state between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement international humanitarian law.[186]

Notwithstanding the narrower application of Additional Protocol II, however, certain of its provisions, including the fundamental guarantees under Articles 4, 5 and 6, are considered to develop protections prescribed in common Article 3 and should therefore likewise be considered to apply in all non-international armed conflicts. Virtually every OAS member state has also ratified one or more of the 1949 Geneva Conventions and or other humanitarian law instruments.[187]

64. Much of the treaty law canvassed above is widely considered to constitute customary international law[188] binding on all states,[189] including in particular the 1907 Hague Convention and its annexed Regulations concerning the Laws and Customs of War on Land,[190] the Four Geneva Conventions of 1949[191] including their grave breach provisions[192] and common Article 3,[193] and the core of Additional Protocols I and II,[194] including Articles 51(1), 52(1) and 75 of Additional Protocol I[195] and Articles 4, 5, 6 and 13(2) of Additional Protocol II.[196]

65. In addition, notwithstanding the distinctive regimes of protection that apply to international and non-international armed conflicts, it has been widely recognized that certain norms apply in all armed conflicts regardless of their nature.[197] These include the protections under common Article 3 and their corresponding provisions under Additional Protocol II,[198] as well as:

• The principle of military necessity, which justifies those measures of military violence not forbidden by international law that are necessary and proportionate to securing the prompt submission of the enemy with the least possible expenditure of human and economic resources.[199]

• The principle of humanity,[200] which both complements and inherently limits the doctrine of military necessity. This principle prohibits the infliction of suffering, injury or destruction not actually necessary, i.e. proportionate, for the realization of lawful military purposes.[201] Moreover, the principle of humanity also confirms the basic immunity of civilians from being the object of attack in all armed conflicts. Accordingly, the conduct of hostilities by the parties to all armed conflicts must be carried out within the limits of the prohibitions of international law, including the restraints and protections inherent in the principles of military necessity and humanity.[202]

66. Inherent in the principles of military necessity and humanity are the principles of proportionality and distinction. The principle of proportionality prohibits an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.[203] In a similar vein, the principle of distinction prohibits, inter alia, the launching of attacks against the civilian population or civilian objects and requires the parties to an armed conflict, at all times, to make a distinction between members of the civilian population and persons actively taking part in the hostilities or civilian objects and military objectives,[204] and to direct their attacks only against persons actively taking part in the hostilities and other legitimate military objectives.[205]

67. While certain norms are common to all armed conflicts regardless of their nature, others are limited to the realm of international armed conflicts as defined in the 1949 Geneva Conventions and Additional Protocol I. Among the most significant of these norms is the notion of the “combatant’s privilege” and the related concept, discussed below, of “prisoner of war status.” A “combatant” is generally defined as a person who directly engages in hostilities by participating in an attack intended to cause physical harm to enemy personnel or objects. A “lawful” or “privileged” combatant is a person authorized by a party to an international armed conflict to engage in hostilities and, as such, is entitled to the protection encompassed in the “combatant’s privilege” as well as the status and protections of a prisoner of war as provided for under the Third Geneva Convention when they have fallen into the power of the enemy.[206] Article 4A of the Third Geneva Convention, which reflects the requirements of the 1899 and 1907 Hague Conventions and is broadly considered to constitute customary international law, prescribes the categories of privileged combatants as encompassing the following:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.[207]

68. The combatant’s privilege in turn is in essence a license to kill or wound enemy combatants and destroy other enemy military objectives. A privileged combatant may also cause incidental civilian casualties. A lawful combatant possessing this privilege must be given prisoner of war status, as described below, upon capture and immunity from criminal prosecution under the domestic law of his captor for his hostile acts that do not violate the laws and customs of war. This immunity does not, however, extend to acts that transgress the rules of international law applicable in armed conflict.[208]

69. In converse to this is the status in international armed conflicts of the “unprivileged” combatant, sometimes referred to as an “unlawful combatant”, namely a person who does not have the combatant’s privilege but nevertheless directly participates in hostilities.

Such unlawful belligerents include irregular or part-time combatants, such as guerrillas, partisans, and members of resistance movements, who either fail to distinguish themselves from the civilian population at all times while on active duty or otherwise do not fulfill the requirements for privileged combatant status, as well as those privileged combatants who violate the requirements regarding mode of dress, such as regular military personnel who are caught spying while out of uniform.

Others falling within the category of unprivileged combatants are civilians, noncombatant personnel in the armed forces, as well as noncombatant members of the armed forces who, in violation of their protected status, actively engage in hostilities.[209] These persons temporarily forfeit their immunity from direct individualized attack during such time as they assume the role of a combatant.[210] It is possible in this connection, however, that once a person qualifies as a combatant, whether regular or irregular, privileged or unprivileged, he or she cannot on demand revert back to civilian status or otherwise alternate between combatant and civilian status.[211]

Unlike privileged combatants, unlawful combatants upon capture can be tried and punished under municipal law for their unprivileged belligerency, even if their hostile acts complied with the laws of war. It should also be noted that the term “unlawful” combatant is used only to denote the fact that the person lacks the combatant’s privilege and is not entitled to participate in hostilities. Mere combatancy by such persons is not tantamount to a violation of the laws and customs of war, although their specific hostile acts may qualify as such.

70. Since lawful combatant and prisoner of war status directly flow from the combatant’s privilege, recognition of this privilege is limited under customary and conventional international law to situations of international armed conflict as defined under the 1949 Geneva Conventions and Additional Protocol I. In contrast, a government engaged in a civil war or other kind of internal hostilities is not obliged to accord its armed opponents prisoner of war status since these dissidents do not have the combatant’s privilege. Such governments therefore are free to prosecute all captured dissidents for sedition and their other violent acts.[212] At the same time, there is no rule of international law that prohibits a government during international armed conflict from according members of dissident armed groups prisoner of war or equivalent status.

71. With regard to the issue of supervision of compliance with the law of armed conflict, international humanitarian law treaties are to a significant extent self-regulating, as states parties to the treaties undertake to respect and ensure respect for the terms of the agreements through such mechanisms as training, information dissemination, and prescription and enforcement of disciplinary and penal sanctions under domestic law.[213] The terms of the 1949 Geneva Conventions do, however, provide for two specific external supervisory mechanisms: the Protecting Powers regime, which is applicable only in international armed conflicts and to-date has never been employed;[214] and the services of the International Committee of the Red Cross, which may be offered and accepted in the context of international or non-international armed conflicts[215] as well as potentially in situations of tensions and disturbances falling short of armed conflict.[216]

These mechanisms are supplemented by provisions under the Third and Fourth Geneva Convention and Additional Protocol I which provide for review procedures for the determination of the status and treatment of protected persons under certain circumstances and are discussed in Part III(F) below.[217] Article 90 of Additional Protocol I further provides for an International Fact Finding Commission, whose mandate includes, inter alia, inquiring into any facts alleged to be a grave breach as defined in the Geneva Convention or Protocol I or other serious violations of those instruments in respect of those states parties that have recognized the competence of the Commission in this regard.[218] Finally, it should be recalled that the recently-established International Criminal Court has been provided with jurisdiction to prosecute, inter alia, serious violations of international humanitarian law committed in international and non-international armed conflicts, where the conditions for the admissibility of such violations have been satisfied.[219]

72. It is also significant to recognize that international humanitarian law differs from international human rights law in terms of the actors whose conduct it regulates and in respect of whom it imposes international legal responsibility. As mentioned in the previous section, international human rights law governs directly the conduct of the state and its agents. Accordingly, certain violations of such norms by the state may imply state responsibility. International humanitarian law also governs the conduct of the state and its agents, but, in addition, that of non-state actors, as it equally applies to and expressly binds all the parties to an armed conflict.[220] In this way, international humanitarian law regulates the behavior of state security forces, dissident armed groups and all of their respective agents and proxies.[221] Moreover, certain violations of international humanitarian law may generate not only state responsibility, but also the individual criminal responsibility of the perpetrator and, under the doctrine of superior or command responsibility,[222] his or her superior.[223] Violations of international humanitarian law by states, groups or persons during a conflict do not, however, affect the continued application of humanitarian law to that conflict nor do they justify violations by opposing parties.[224]

73. Although terrorist or counter-terrorist action may give rise to or occur in the context of situations of armed conflict, it must be recalled that the concepts of terrorism and war are distinct. In certain circumstances, terrorist or counter-terrorist actions may involve organized violence of such intensity as to give rise to an armed conflict. Such would be the case, for example, where terrorist or counter-terrorist actions involve resort to armed force between States or low intensity and armed confrontations between a State and a relatively organized armed force or group or between such forces or groups within the territory of a state,[225] which in some cases may take place with the support or connivance of states.

 In addition to constituting the trigger for an armed conflict, terrorist or counter-terrorist actions may take place as discrete acts within an existing armed conflict. Terrorist violence committed under these circumstances is also subject to international humanitarian law,[226] even if it occurs in territory where combat is not taking place,[227] provided that the incidents are sufficiently linked to the armed conflict.[228] This would clearly be the case, for example, where the terrorist or counter-terrorist acts are committed by agents of a belligerent party against the members or objects of an adverse party.[229] In all circumstances, the specific international humanitarian law norms applicable to terrorist violence will vary depending upon whether they give rise to or take place in the context of a conflict of an international or non-international nature. It is also important to recall that the fact that terrorist acts are perpetrated within the context of an armed conflict does not otherwise affect the legal status of that conflict, although it may, as noted above, render the perpetrator and his or her superior individually criminally responsible for those acts that constitute serious violations of the law and customs of law.

74. The Commission also considers it crucial to note at this stage the importance of determining the status under international humanitarian law of individuals who take part in terrorist violence in the context of international armed conflicts, as it is from this status that the lex specialis of international humanitarian law protections for such individuals will to a significant extent be derived. Specifically, where, in the context of an international armed conflict, individuals take direct part in hostilities by perpetrating or otherwise participating in terrorist violence but do not qualify as lawful combatants, because, for example, they are not authorized by a party to the conflict to engage in hostilities as provided for under Article 4 of the Third Geneva Convention, they may properly be considered to be unlawful combatants.[230] While these individuals will, as a consequence, not qualify for the protections of the Third or Fourth Geneva Conventions, they will nevertheless be entitled to the minimum standards of protection under Article 75 of Additional Protocol I.

75. Where, in relation to a terrorist act or situation, an armed conflict cannot be said to exist, terrorist actions or anti-terrorist initiatives would be subject exclusively to international human rights law and domestic law, as described in the previous section.[231]

76. Given the broad focus of the current report, the Commission’s analysis will consider principally those fundamental human rights and humanitarian law protections that are widely considered to constitute a part of customary international law and to be applicable to all armed conflicts. These protections include the core rights common to most international human rights instruments such as the right to life, the right to humane treatment and the right to due process, as well as corresponding protections embodied in specific provisions of international humanitarian treaty law, in particular Article 3 common to the Four Geneva Conventions,[232] core provisions of Article 75 of Additional Protocol I to the 1949 Geneva Conventions,[233] and Articles 4 to 6 of Additional Protocol II to the 1949 Geneva Conventions.[234] Common Article 3 provides as follows:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

77. This provision contains fundamental guarantees applicable at all times during armed conflicts, for the benefit of persons who do not or no longer take an active part in the hostilities. Similar guarantees, which supplement and develop those under Common Article 3, are provided for by Articles 4 to 6 of Additional Protocol II in respect of persons no longer taking part in the hostilities of a non-international armed conflict, and by Article 75 of Additional Protocol I in respect of persons who are in the power of a party to the conflict to an international armed conflict and who do not benefit from more favorable treatment under the 1949 Conventions or Additional Protocol I, such as certain unprivileged combatants who do not fall within the protection of the Third or Fourth Geneva Convention or Additional Protocol I with respect to states parties to that instrument.[235]

78. Finally, it should be emphasized that the rules of international humanitarian law are non-derogable, subject to very limited exceptions.[236] As a consequence, the minimum standards prescribed under international humanitarian law cannot be suspended, even if the American Convention might otherwise permit derogation from corresponding protections. Where, for example, international humanitarian law prescribes minimum standards of due process, states cannot rely upon any permissible derogations from this right under international human rights law to avoid respect for these standards in armed conflict situations. This approach is mandated in part by Articles 27 and 29 of the American Convention, which prohibit any measures of derogation that are inconsistent with a state’s other obligations under international law and which foreclose any interpretation of the Convention that restricts the enjoyment of exercise of any right or freedom recognized by virtue of another convention to which a state is a party.


III. NORMS AND PRINCIPLES OF INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW APPLICABLE IN TERRORIST SITUATIONS

79. It has long been apparent that the conduct of states in protecting their populations from terrorism and other forms of violence have potential implications for many, if not all, fundamental human rights. Consistent with the focused nature of the present study, the Commission has undertaken a detailed analysis of six core internationally-protected human rights, namely the right to life, the right to personal liberty and security, the right to humane treatment, the right to due process and to a fair trial, the right to freedom of expression, and the right to judicial protection and its correspondent obligation to respect and ensure all human rights without discrimination. It has also provided an analysis of the particular situation of migrant workers, refugees, asylum seekers and other non-nationals whose rights are especially susceptible to abuses in the face of counter-terrorism measures. These discussions are in turn informed by the overview in Part II of the substance and interrelation of international human rights and humanitarian law, as well as consideration of the variable nature of terrorist violence and its multifaceted implications for states’ international legal obligations.

80. Consistent with this approach, each right is first analyzed in terms of the pertinent rules and principles of international human rights and humanitarian law applicable in times of peace, states of emergency, and armed conflicts. This is followed by a discussion of the implications of each right for particular counter-terrorism initiatives that states might pursue.

A. Right to Life

1. International Human Rights Law

81. The most fundamental human right provided for in the instruments of the inter-American and other human rights systems is the right to life, without full respect for which no other human rights or freedoms may be effectively guaranteed or enjoyed.

82. The right to life is provided for in both Article I of the American Declaration of the Rights and Duties of Man[237] and Article 4 of the American Convention on Human Rights[238] as follows:

American Declaration

Article I. Every human being has the right to life, liberty and the security of his person.

American Convention

Article 4.1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply.

3. The death penalty shall not be reestablished in states that have abolished it.

4. In no case shall capital punishment be inflicted for political offenses or related common crimes.

5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.

6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.

83. Similar protections can be found in other international human rights instruments, including Article 3 of the Universal Declaration of Human Rights[239] and Article 6 of the International Covenant on Civil and Political Rights.[240]

84. Article 4 of the American Convention on Human Rights regulates the right to life in several respects. In particular, Article 4(1) provides that every person has the right to the legal protection of his or her life, and the right not to be arbitrarily deprived of his or her life. In countries that have not abolished the death penalty, Articles 4(2) to (6) of the Convention prescribe specific limitations and restrictions upon the manner in which the penalty can be imposed, which relate, inter alia, to the nature of crimes for which the death penalty may be imposed, characteristics of offenders that may prohibit the application of the penalty, and the manner in which the conviction and sentencing are adjudicated.

Moreover, Article 27 of the American Convention[241] provides that the right to life is a non-derogable right. Accordingly, states may not, even in time of war, public danger, or other emergency that threatens its independence or security, take measures suspending the protection of the right to life.[242] The Commission has interpreted Article I of the American Declaration as permitting the death penalty subject to conditions similar to those under the American Convention.[243] Finally, Article 1 of the Optional Protocol to Abolish the Death Penalty[244] provides that states that have ratified the protocol may not apply the death penalty in their territory to any person subject to their jurisdiction.

85. Through these provisions, therefore, the inter-American human rights instruments provide for a general protection of the right to life, which encompasses the prohibition of arbitrary deprivation of life and specific conditions for the imposition of the death penalty in countries that have not abolished it.[245] The Inter-American Court and the Inter-American Commission have discussed the application of these protections in two contexts of particular pertinence to the present study: the use of lethal force by state agents; and the imposition of the death penalty following a judicial decision.

a. Use of Lethal Force by State Agents

86. Whether in times of peace, emergency situations other than war, or armed conflict,[246] Article 4 of the American Convention and Article I of the Declaration govern the use of lethal force by states and their agents by prohibiting the arbitrary deprivation of life and summary executions.[247] The Commission has specified that the contours of the right to life may change in the context of an armed conflict, but that the prohibition on arbitrary deprivation of life remains absolute. The Convention clearly establishes that the right to life may not be suspended under any circumstances, including armed conflicts and legitimate states of emergency.[248]

87. Nevertheless, in situations where a state’s population is threatened by violence, the state has the right and obligation to protect the population against such threats[249] and in so doing may use lethal force in certain situations. This includes, for example, the use of lethal force by law enforcement officials where strictly unavoidable to protect themselves or other persons from imminent threat of death or serious injury,[250] or to otherwise maintain law and order where strictly necessary and proportionate. The Court has explained that, in such circumstances, states have the right to use force, “even if this implies depriving people of their lives […] There is an abundance of reflections in philosophy and history as to how the death of individuals in these circumstances generates no responsibility whatsoever against the State or its officials.”[251]

88. Unless such exigencies exist, however, the use of lethal force may constitute an arbitrary deprivation of life or a summary execution; that is to say, the use of lethal force must be necessary as having been justified by a state’s right to protect the security of all.[252]

89. The means that can be used by the state while protecting its security or that of its citizens are not unlimited, however. To the contrary, as specified by the Court, “regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends.”[253]

90. In such circumstances, the state may resort to the use of force only against individuals that threaten the security of all, and therefore the state may not use force against civilians who do not present such a threat. The state must distinguish between the civilians and those individuals who constitute the threat.[254] Indiscriminate uses of force may as such constitute violations of Article 4 of the Convention and Article I of the Declaration.[255]

91. Similarly, in their law enforcement initiatives, states must not use force against individuals who no longer present a threat as described above, such as individuals who have been apprehended by authorities, have surrendered, or who are wounded and abstain from hostile acts.[256] The use of lethal force in such a manner would constitute extra-judicial killings in flagrant violation of Article 4 of the Convention and Article I of the Declaration.[257]

92. Finally, as specified by the Inter-American Court and the Commission, the amount of force used must be justified by the circumstances,[258] for the purpose of, for example, self-defense or neutralizing or disarming the individuals involved in a violent confrontation.[259] Excessive force,[260] or disproportionate force by law enforcement officials [261] that result in the loss of life may therefore amount to arbitrary deprivations of life.[262] It should be emphasized that, contrary to international humanitarian law governing situations of armed conflicts, relevant applicable norms of international human rights law require that state agents not use force to target individuals involved in a violent confrontation except in the above-mentioned circumstances.

b. Imposition of the Death Penalty

93. In respect of countries that have not abolished the death penalty, the Inter-American Court and the Commission have specified that the Convention imposes several restrictions and narrowly defined conditions limiting the imposition of the capital punishment. First, the death penalty may not be imposed except pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. Moreover, the death penalty may be imposed only for the most serious crimes and its application to political offenses or related common crimes is prohibited in absolute terms. Persons condemned to death have the right to apply for amnesty, pardon, or commutation of sentence.[263] Finally, certain considerations involving the person of the defendant, which may bar the imposition or application of the death penalty, must be taken into account. These include prohibiting the imposition of the death penalty on these persons who, at the time of their crime, were under 18 or over 70 years of age, and on pregnant women.[264]

94. The Court has had occasion to consider, in particular, the procedural requirements that must be strictly observed and reviewed in applying the death penalty.[265] In particular, because of the exceptionally grave and irreparable nature of the penalty, states that still have the death penalty must, without exception, exercise the strictest and most rigorous control for observance of judicial guarantees in these cases, so that those guarantees are not violated and a human life not arbitrarily taken as a result. Accordingly, the nonobservance of an individual’s right to the guarantees of the due process of law resulting in the imposition of the death penalty constitutes a violation of the right not to be "arbitrarily" deprived of one’s life, in the terms of the American Convention on Human Rights.[266] The Commission has reached similar conclusions in the context of Article I of the American Declaration.[267] To the extent that these requirements protect the non derogable right to life and constitute pre-conditions insuring that the imposition of the capital punishment not constitute an arbitrary deprivation of life, such fundamental guarantees are themselves non-derogable.[268]

95. In this respect, the Commission has specified that several fundamental due process guarantees are necessary in capital prosecutions. These include basic substantive requirements, including the right not to be convicted of any act or omission that did not constitute a criminal offense, under national or international law, at the time it was committed, and the right not to be subjected to a heavier penalty than the one that was applicable at the time when the criminal offense was committed. They also include fundamental procedural due process protections, including the right to be presumed innocent until proven guilty according to law, the right to prior notification of charges, the right to adequate time and means for the preparation of his or her defense, the right to be tried by a competent, independent and impartial tribunal, previously established by law, the right of the accused to defend himself or herself personally or to be assisted by legal counsel of his own choosing and to communicate freely and privately with his counsel, and the right not to be compelled to be a witness against himself or herself or to plead guilty.[269] In the context of capital proceedings against foreign nationals, the Inter-American Court of Human Rights has found the consular notification requirements under Article 36 of the Vienna Convention on Consular Relations to constitute additional guarantees necessitated by the rules of due process of law.[270]

96. In addition to due process and fair trial violations, other types of state conduct in implementing the death penalty may result in arbitrary deprivation of life constituting violations of the inter-American instruments. Such conduct has been found by the Commission and the Court to include the failure on the part of a state to limit the death penalty to crimes of exceptional gravity prescribed by pre-existing law, the existence of a reasonable apprehension of bias on the part of a judge or jury trying a capital defendant,[271] the imposition of the death penalty through mandatory sentencing laws,[272] and notorious and demonstrable diversity of practice within a member state that results in inconsistent application of the death penalty for the same crimes.[273]

97. Finally, the Inter-American Court has emphasized that the Convention, without going so far as to abolish the death penalty, imposes restrictions designed to delimit strictly its application and scope, in order to reduce the application of the penalty to bring about its gradual disappearance. Accordingly, the Convention forbids not only the extension of the death penalty’s application and imposition to crimes for which it did not previously apply, but also forbids the reestablishment of the death penalty for any type of offense whatsoever. [274] For these reasons, a decision by a state party to the Convention to abolish the death penalty, whenever made, becomes, ipso jure, a final and irrevocable decision.[275] In the context of the American Declaration, the Commission specified that the re-introduction of the death penalty in states that have abolished it or its extension to additional crimes are inconsistent with the spirit and purpose of the American Declaration and numerous international human rights instruments, and are at odds with a demonstrable international trend toward more restrictive application of the death penalty.[276]

2. International Humanitarian Law

98. International humanitarian law also provides for fundamental guarantees concerning the protection of the right to life, exclusively in the context of armed conflicts.

99. As mentioned in Part II(C) above, international humanitarian law imposes a general limitation on military operations by requiring that parties to an armed conflict respect the principles of necessity, distinction, proportionality and humanity.[277] These principles seek to limit the sufferings of the victims of armed conflicts, including the unnecessary loss of lives.[278]

100. Moreover, it must be emphasized that international humanitarian law does not prohibit the targeting or killing of enemy combatants who have not laid down their arms or been placed hors de combat, and accordingly that the death of a combatant under these circumstances does not constitute a violation of the right to life. At the same time, international humanitarian law does protect to a certain extent the lives of combatants or the manner in which they may lawfully be deprived of their lives by restricting the means and methods of war that parties to an armed conflict may use to wage war.[279] This includes, for example, restrictions on the use of or the prohibition of certain weapons that cause unnecessary sufferings, such as poisonous gas[280] or bacteriological weapons.[281]

101. The rules governing the means and methods of warfare under international humanitarian law also protect the lives of civilians[282] and combatants who have surrendered or who are placed hors de combat by wounding, sickness, detention or any other cause,[283] by prohibiting attacks on these categories of persons. In this respect, the Commission has specified that “[i]n addition to Common Article 3 [Common to the four Geneva Conventions], customary law principles applicable to all armed conflicts require the contending parties to refrain from directly attacking the civilian population and individual civilians and to distinguish in their targeting between civilians and combatants and other lawful military objectives. In order to spare civilians from the effects of hostilities, other customary law principles require the attacking party to take precautions so as to avoid or minimize loss of civilian life or damage to civilian property incidental or collateral to attacks on military targets.”[284]

102. In addition to the rules governing the means and methods of warfare, the rules governing the protection of victims of armed conflicts under international humanitarian law also provide for a general protection of the lives of certain persons affected by armed conflicts, including prisoners of war[285] and civilians[286] in the context of an international armed conflict and, in a similar manner, all persons who do not or no longer take a direct part in hostilities[287] in a non-international armed conflict.[288]

103. Finally, international humanitarian law regulates the application of the death penalty imposed on victims of armed conflict in the hands of an adverse party. As discussed in Part III(D) concerning the right to due process and to a fair trial in international armed conflicts,[289] prisoners of war, civilians and persons not benefiting from a greater form of protection, are granted certain judicial guarantees when subjected to a criminal prosecution,[290] including those proceedings dealing with a possible death sentence.

104. More specifically, persons subjected to criminal proceedings during any type of armed conflict may not be sentenced to death except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality.[291] Capital defendants must also be afforded the benefit of fundamental principles and standards of due process. These include the guarantees provided by the principles of nullum crimen sine lege, nulla poena sine lege, and non-bis-in-idem, as well as the presumption of innocence, the right not to be convicted of an offense except on the basis of individual penal responsibility, and the right to be tried by a competent, independent and impartial tribunal, previously established by law.

They also include several fundamental procedural guarantees, including the right to prior notification in detail of the charges against him or her, the right to have adequate time and means to prepare his or her defense, which necessarily includes the right to be assisted by counsel of his or her choice or, in the case of an indigent defendant, the right to legal counsel free of charge where such assistance is required for a fair hearing, the right not to be compelled to be a witness against his or herself or to plead guilty, the right to examine witnesses presented against his or her, the right to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as opposing witnesses, and the right to be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal.[292] The rules governing international and non-international armed conflicts also prohibit the pronouncement of a sentence of death on persons who were under the age of eighteen years at the time of the offence and may not be carried out on pregnant women or mothers of young children.[293]

105. It is notable that in certain respects the judicial guarantees provided for in the instruments governing international armed conflicts provide for more enhanced guarantees than instruments governing non-international armed conflicts. These include the right to be informed as soon as possible of the offenses which are punishable by the death sentence under the laws of the Detaining power, which must also inform similarly the Protecting Powers[294] and the requirement that a death sentence may be pronounced by a court only if the court’s attention has been drawn to the fact that the prisoner of war has no duty of allegiance to the Detaining Power and that he is in the latter’s power as a result of circumstances independent of his own will.[295] Also according to the Third and Fourth Geneva Conventions, when a judgment involving a death sentence is pronounced against a civilian or prisoner of war, notification must be made to the Protecting powers,[296] following which the death sentence may not be executed prior to the expiration of a period of at least six months from the reception of this notification.[297] Certain other rights mentioned exclusively in the context of international armed conflict, such as the right to examine or to have examined the witnesses against him or her, may nevertheless be considered to apply in internal armed conflicts[298] as non-derogable guarantees under international human rights law.[299]

3. The Right to Life and Terrorism

106. As suggested above, the protections of the right to life provided for by international human rights law and international humanitarian law are particularly relevant to two types of counter-terrorism initiatives that may occur in peacetime, states of emergency or armed conflicts, namely the use of lethal force by state agents during anti-terrorist operations, and the application of the death penalty to persons convicted of terrorism related offenses.

107. In the course of anti-terrorist operations, state agents might resort to the use of lethal force. In fact, the state has the right and duty to guarantee the security of all, which may in some circumstances require the use of lethal force.[300] Nevertheless, as emphasized by the Inter-American Court in the context of the use of force by law enforcement officials, “regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends. The State is subject to law and morality. Disrespect for human dignity cannot serve as the basis for any State action.”[301]

108. The Commission has specified , “[t]he American Convention, as well as other universal and regional human rights instruments, and the 1949 Geneva Conventions share a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity. These human rights treaties apply both in peacetime, and during situations of armed conflict. […] Both Common Article 3 and Article 4 of the American Convention protect the right to life and, thus, prohibit, inter alia, summary executions in all circumstances.”[302] Accordingly, both international human rights law and international humanitarian law protect the lives of civilians, combatants placed hors de combat and, to some extent, the lives of combatants taking part in the hostilities.

109. As discussed in the above sections, one of the principal distinctions between international human rights law applicable in peacetime and international humanitarian law applicable in armed conflict is the fact that the latter does not prohibit the targeting or killing of enemy combatants who have not laid down their arms or been placed hors de combat, such that the death of a combatant under these circumstances does not constitute a violation of the right to life. Notwithstanding this fundamental distinction, it may also be considered that both international human rights law and international humanitarian law have similar fundamental principles applicable to situations where the state uses lethal force to protect its security or that of its citizens in both peacetime and armed conflict situations.[303]

110. Further, while there exists a rule of proportionality applicable both in peacetime and during situations of armed conflict, it has a different meaning and different implications in each context. Accordingly, in peacetime, the principle of proportionality provides that the use of force be proportionate to the needs of the situation.[304] Under international humanitarian law, on the other hand, the principle of proportionality prohibits “attacks which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”[305] The concept of proportionality is inherent in the complementary customary law principles of necessity and humanity which underlie the law governing the conduct of all armed conflicts. The principle of necessity justifies only those measures of military violence, not forbidden by international law, which are relevant and proportionate to securing the prompt submission of the enemy with the least possible expenditure of human and economic resources. The principle of humanity complements and inherently limits the principle of necessity by forbidding those measures of violence which are not necessary (i.e. relevant and proportionate) to the achievement of a definite military advantage. Thus, the principle of humanity “[…] results in a specific prohibition against unnecessary suffering, a requirement of proportionality and [. . .] confirms the basic immunity of civilian populations and civilians from being the objects of attack during armed conflicts.”[306] These customary law principles accordingly prohibit disproportionate and other kinds of attacks by requiring that the party launching an attack against a legitimate military objective must always seek to avoid or minimize foreseeable civilian casualties and damage to civilian objects.[307] While this principle seeks to minimize the damage inflicted on civilians, it does not, however, apply to limit the damage inflicted on combatants or military objectives.[308] While the distinct nature of the principle of proportionality applicable under international humanitarian law must be recognized, it can nevertheless be said that excessive foreseeable damage or injury to certain persons or objects is prohibited in peacetime as well as in armed conflict.

111. Moreover, in accordance with the principle of distinction applicable during armed conflicts[309] and the equivalent principle applicable in peacetime,[310] state agents, when using force, may only target certain persons and objects. Accordingly, in armed conflict situations, parties to the conflict must distinguish between military objectives and civilians or civilian objects, and launch attacks only against the former.[311] Similarly, in peacetime situations, state agents must distinguish between persons who, by their actions, constitute an imminent threat of death or serious injury, or a threat of committing a particularly serious crime involving a grave threat to life, and persons who do not present such a threat, and use force only against the former. [312]

112. When assessing whether the right to life protected under inter-American human rights instruments has been violated specifically in the context of armed conflict, it is also necessary to refer to corresponding norms of international humanitarian law, which provide specific standards against which to evaluate whether a deprivation of life occurring during an armed conflict was arbitrary and therefore unlawful. Such standards are used in distinguishing between civilians and combatants.[313]

113. In their efforts to suppress terrorism, states have frequently resorted to the imposition of the death penalty as a punishment for terrorist-related offenses, which also have implications for the right to life. Irrespective of whether this measure is imposed during peacetime or armed conflict situations, certain restrictions apply at all times as fundamental and non-derogable protections under international human rights law and/or international humanitarian law.

114. First, certain conditions limit a state’s capacity to subject terrorism-related offenses to capital punishment. States parties to the American Convention that have abolished death penalty for such offenses may not reinstate it[314] and states that create new terrorist offenses and that have ratified the Convention may not subject those offenses to capital punishment.[315]

115. Secondly, in cases where a state lawfully subjects terrorism-related offenses to capital punishment, certain conditions also limit the manner in which the penalty can be applied. In particular, a death sentence may only be pronounced pursuant to a final judgment rendered in accordance with a law establishing such punishment, enacted prior to the commission of the crime.[316] The death penalty may be imposed only for the most serious crimes and may not be applied through mandatory sentencing laws.[317] It may never be applied for political offenses or related common crimes.[318] It should be noted in this connection that certain international anti-terrorism instruments explicitly stipulate that terrorist crimes as defined under those instruments are not to be regarded as political or related common offenses for the purposes of extradition or mutual legal cooperation.[319]

116. Other conditions also limit manner in which the death penalty can be applied. Specifically, certain personal characteristics of an offender, including his or her age, may preclude the application of the penalty altogether.[320] Persons condemned to death have the right to apply for amnesty, pardon, or commutation of sentence.[321] As suggested above, additional procedural requirements, such as the notification of Protecting Powers, may apply based upon the lex specialis of international humanitarian law governing international armed conflicts.

117. In addition, at all times, including during armed conflicts, the imposition of such a penalty is subject to strict procedural requirements and to a rigorous control of fundamental minimum judicial guarantees. To the extent that these requirements protect the non derogable right to life and constitute pre-conditions necessary to ensure that the imposition of the capital punishment does not constitute an arbitrary deprivation of life, such fundamental guarantees are themselves non-derogable under human rights law as well as under humanitarian law.[322] They include in particular guarantees provided by the principles of nullum crimen sine lege, nulla poena sine lege, and non-bis-in-idem, as well as the presumption of innocence, the right not to be convicted of an offense except on the basis of individual penal responsibility, and the right to be tried by a competent, independent and impartial tribunal as defined under applicable international standards[323] and previously established by law. They also include the following procedural guarantees for capital defendants:

The right to prior notification in detail of the charges against him or her;

The right to have adequate time and means to prepare his or her defense, which necessarily includes the right to be assisted by counsel of his or her choice or, in the case of an indigent defendant, the right to legal counsel free of charge where such assistance is required for a fair hearing;

The right not to be compelled to be a witness against his or herself or to plead guilty;

The right to examine witnesses presented against his or her;

The right to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as opposing witnesses;

To be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal a judgment to a higher court[324]


 


B. Right to Personal Liberty and Security

1. International Human Rights Law
118. The right to personal liberty and security and to be free from arbitrary arrest or detention is provided for in both Article XXV of the American Declaration and Article 7 of the American Convention on Human Rights as follows:

American Declaration

Article XXV. No person may be deprived of liberty except in the cases and according to the procedures established by pre-existing law. No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character. Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.

American Convention

Article 7.1. Every person has the right to personal liberty and security.

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

3. No one shall be subject to arbitrary arrest or imprisonment.

4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.

119. Similar provisions can be found in other international human rights instruments, including Article 9 of the Universal Declaration of Human Rights,[325] Article 9 of the International Covenant on Civil and Political Rights,[326] and, specifically with respect to the arrest, detention or imprisonment of children, Article 37 of the Convention of the Rights of the Child.[327]

120. These provisions provide for numerous guarantees aimed at protecting persons from unlawful or arbitrary interference with their liberty by the state, both in connection with criminal proceedings and in other areas where states may exercise authority. Among the protections guaranteed are the requirements that any deprivation of liberty be carried out in accordance with pre-established law, that a detainee be informed of the reasons for the detention and promptly notified of any charges against them, that any person deprived of liberty is entitled to juridical recourse, to obtain, without delay, a determination of the legality of the detention, and that the person be tried within a reasonable time or released pending the continuation of proceedings.[328] In all circumstances, detainees must be treated humanely.[329]

121. Both this Commission and the Inter-American Court have previously emphasized that no one may be deprived of liberty except in cases or circumstances expressly provided by law, and that any deprivation of liberty must strictly adhere to the procedures defined thereunder.[330] This includes ensuring against arbitrary arrest and detention by strictly regulating the grounds and procedures for arrest and detention under law.[331] It also includes ensuring prompt and effective judicial oversight of instances of detention, in order to protect the well-being of detainees at a time when they are wholly within the control of the state and therefore particularly vulnerable to abuses of authority.[332] It has been observed in this respect that where detention is not ordered or promptly supervised by a competent judicial authority, where the detainee may not fully understand the reason for the detention or have access to legal counsel, and where the detainee’s family may not have been able to locate him or her promptly, there is clear risk, not just to the legal rights of the detainee, but also to his or her personal integrity.[333]

122. To avoid risks of this nature, the Commission has suggested that a delay of more than two or three days in bringing a detainee before a judicial authority will generally not be considered reasonable.[334] An effective system for registering arrests and detentions and making that information available to family members, counsel and other persons with legitimate interests in the information has also been widely recognized as one of the most essential components of a properly functioning justice system, as it provides crucial protection for the rights of the detainee and reliable information for the accountability of the system.[335]

123. Where a person is subjected to preventative detention following his or her apprehension, it must be demonstrated that state authorities have adequate justification for that detention and that the state has exercised the requisite diligence in ensuring that the duration of such confinement is not unreasonable, including providing for prompt and continued judicial oversight. Possible justifications for preventative detention have been held by the Commission to include the existence of a reasonable suspicion that the accused has committed an offense, the danger of flight, the need to investigate, the possibility of collusion, the risk of pressures on witnesses, and the preservation of public order.[336] The validity of any justification must be interpreted in light of a defendant’s right to be tried within a reasonable time or to be released, as well as the right to the presumption of innocence which requires that the duration of preventative detention not exceed a reasonable period of time.[337]

124. This Commission, like other international human rights bodies, has recognized that the deprivation of an individual’s liberty may also be justified in connection with the administration of state authority beyond the investigation and punishment of crimes where measures of this nature are strictly necessary. Such circumstances have been held to include detention in the context of controlling the entry and residence of aliens in their territories and confinement for reasons relating to physical or mental health.[338] While deprivations of liberty may be permissible in situations of this nature, the Commission has emphasized that any such detention must in all circumstances comply with the requirements of preexisting domestic and international law. As described above, these include the requirement that the detention be based on the grounds and procedures clearly set forth in the constitution or other law and that it be demonstrably necessary, fair and non-arbitrary. Detention in such circumstances must also be subject to supervisory judicial control without delay and, in instances when the state has justified continuing detention, at reasonable intervals.[339]

125. In the case of asylum seekers in particular, the Commission notes that detention or other restrictions on the movement of asylum seekers are permitted only as exceptions under applicable refugee and human rights law, and then only pursuant to law and subject to due process protections.[340] Measures aimed at the automatic detention of asylum seekers are therefore impermissible under international refugee protections. They may also be considered arbitrary and, depending upon the characteristics of persons affected by any such restrictions, potentially discriminatory under international human rights law.

126. According to applicable human rights instruments and inter-American jurisprudence, the right to liberty may be the subject of derogation in times of emergency. At the same time, a state’s ability to suspend this right in such circumstances has been strictly and narrowly defined by the supervisory organs of this and other human rights systems.[341] In particular, the Inter-American Court has ruled that Article 7(6) of the Convention, reproduced above, proclaims and governs the remedy of habeas corpus which, in the Court’s view “performs a vital role in ensuring that a person’s life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or other cruel, inhumane or degrading punishment or treatment.“[342] In light of the fundamental nature of habeas corpus in this regard, the Court has concluded that the judicial guarantees essential for the protection of the human rights not subject to derogation under Article 27(2) of the American Convention include those expressly referred to in Article 7(6) of the Convention.[343] Accordingly, while the right to personal liberty and security is derogable, the right to resort to a competent court under Article 7(6), which by its nature is necessary to protect non-derogable rights during criminal or administrative detention, such as the right to humane treatment, may not be the subject of derogation in the inter-American system.

127. The Commission has held that there are other components of the right to liberty that can never be denied, including underlying principles that law enforcement authorities must observe in making an arrest even during an emergency.[344] In this regard, the Commission, together with other international authorities, have also endeavored to identify additional fundamental standards for the protection of detainees that may not be suspended even in permissible situations of derogation in emergency situations that threatens the independence or security of a state.[345] These include the requirement that the grounds and procedures for the detention be prescribed by law, the right to be informed of the reasons for the detention, as well as certain guarantees against prolonged incommunicado or indefinite detention, including access to legal counsel, family and medical assistance following arrest, prescribed and reasonable limits upon the length of preventative detention,[346] and maintaining a central registry of detainees. These protections are also considered to include appropriate judicial review mechanisms to review detentions on a regular basis, when detention is prolonged or extended. As with the right to habeas corpus or amparo, the non-derogable nature of these protections arises in large measure from their integral role in protecting other non-derogable rights such as the right to humane treatment and the right to a fair trial and the need to ensure that detainees or prisoners are not left completely at the mercy of those holding them.

128. Where the arrest, commitment to prison or custody pending trial, or detention in any other manner of foreign nationals is concerned, international jurisprudence, including that of the inter-American human rights system, has recognized the importance of compliance with international obligations aimed at protecting the particular interests of foreign nationals in these situations. These obligations include the requirements of Article 36 of the Vienna Convention on Consular Relations, which provides:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.[347]

129. These provisions have been described as establishing an interrelated regime designed to facilitate the implementation of the system of consular protection of foreign nationals in states party to the treaty.[348] A state party to this treaty is obliged to inform foreign nationals who are detained in any manner by that state of his or her right to have the consulate of their state notified of the detainees’ circumstances and to communicate with his or her consulate. These requirements also contain no provision for derogation. The right to consular notification has also been recognized as significant to the due process and other rights of detainees by, for example, providing potential assistance with various defense measures such as legal representation, gathering of evidence in the country of origin, verifying the conditions under which the legal assistance is provided and observing the conditions under which the accused is being held while in prison.[349]

2. International Humanitarian Law

130. Certain provisions of international humanitarian law instruments also address the manner in which the liberty of individuals may be restricted and regulated. In the case of international armed conflicts in particular, both the Third and Fourth Geneva Conventions of 1949 contain extensive and specialized provisions addressing the circumstances under which prisoners of war and civilians may be interned or detained and the manner in which their internment or detention must be monitored.[350] With regard to prisoners of war, Articles 21, 118 and 119 of the Third Geneva Convention permit the internment of prisoners of war until their repatriation at the “cessation of active hostilities” or the completion of any criminal proceedings or punishment for an indictable offense that may be pending against a prisoner of war.[351] In addition, the detailed provisions under Articles 17 to 117 of the Third Geneva Convention regulate the conditions of internment. Prisoners of war are not by reason of that status considered to be criminals and, accordingly, their internment should not constitute a form of punishment.[352] Prisoners of war may, however, also be confined while awaiting trial for crimes for which they may properly be prosecuted if a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offense or if it is essential in the interests of national security and then only for a maximum period of three months.[353] Similarly, a prisoner of war may be confined for offenses against discipline if a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offense or if it is essential in the interests of camp order or discipline and then only for a maximum period of 14 days.[354] It should be noted in this connection that prisoner of war status applies only in situations of international armed conflict and those categories of armed conflict prescribed in Article 1(4) of Additional Protocol I, and that in cases of doubt in the course of an international armed conflict as to an individual’s classification as a prisoner of war, he or she shall enjoy the protection afforded to prisoners of war until such time as his or her status has been determined by a competent tribunal pursuant to Article 5 of the Third Geneva Convention.[355]

131. Articles 42, 43 and 78 of the Fourth Geneva Convention, which apply to enemy aliens within the territory of a party to an international armed conflict or protected persons in occupied territories, permit the internment or placing in assigned residence of such protected persons only if the security of the Detaining or Occupying Power makes it absolutely necessary. These provisions also mandate that any person so interned or placed in assigned residence shall have the right to have such action reconsidered or appealed with the least possible delay and, if it is continued, subject to periodic review, by an appropriate or competent body, court or administrative tribunal designated for that purpose.

132. With regard to persons who are in the power of a party to an international armed conflict and who do not benefit from more favorable treatment under the Conventions or under Additional Protocol I, including, for example, combatants who are not covered by Article 4 of the Third Convention and other persons who are denied prisoner-of-war status,[356] Article 75(3), (5) and (6) of Additional Protocol I provides as follows:

75(3). Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

[. . .]

(5) Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men’s quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.

(6) Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this article until their final release, repatriation or re-establishment, even after the end of the armed conflict.

133. It is also worth emphasizing that these provisions, as with all fundamental protections under international humanitarian law, cannot be the subject of derogation.[357]

134. Similar to the rules governing international human rights law, relevant provisions of humanitarian law regulating international armed conflicts provide for specific mechanisms by which detailed information concerning prisoners of war is to be gathered and provided to states concerned and next of kin, and which oblige detaining Powers to facilitate the provision of information to these mechanisms.[358] Also, as indicated in Part II(C), the detention of victims of armed conflict may be the subject of supervision by the International Committee of the Red Cross and, where established for the purposes of a specific international armed conflict, the Protecting Powers regime contemplated by the 1949 Geneva Conventions.[359]

135. International humanitarian law applicable to non-international armed conflicts similarly does not prohibit the capture and detention of persons who take an active part in hostilities, but prohibits the detention or internment of civilians except where necessary for imperative reasons of security.[360] Where circumstances justifying the detention of combatants or civilians exist, common Article 3 and Articles 4 and 5 of Additional Protocol II subject the treatment of persons deprived of their liberty for reasons related to the armed conflict to minimum standards of humane treatment and protection.

3. Right to Personal Liberty and Security and Terrorism

136. As noted previously, the conduct of states in situations of terrorism is at all times subject to the requirements of international human rights law, and may concurrently be the subject of the rules of international humanitarian law where the conditions for the application of that law may exist.


137. The right to personal liberty and security, to the extent that it is addressed by these two regimes of international law, may give rise to varying requirements as to when a person may be detained, for what duration, and subject to what supervisory mechanisms; in all circumstances, however, such requirements must conform to and be continuously evaluated in accordance with the fundamental principles of necessity, proportionality, humanity and non-discrimination.[361]

138. In circumstances not involving a state of emergency as strictly defined under applicable human rights instruments, states are fully bound by the restrictions and limitations under international human rights law governing deprivations of personal liberty. These include the rights of persons:

Not to be deprived of physical liberty except for the reasons and under conditions established by law;

To be informed, in a language they understand, of the reasons for their detention and to be promptly notified of the charge or charges against them;

To prompt contact between the detainee and his or her immediate family and to legal and medical assistance;

To be brought promptly before a competent court to determine the lawfulness of his or her arrest or detention and to order his or her release if the arrest or detention is unlawful;

To be tried within a reasonable time or to be released without prejudice to the proceedings, which release may be subject to guarantees to assure his or her appearance for trial;

To information on consular assistance in cases involving the arrest, commitment to prison or custody pending trial, or detention in any other manner of foreign nationals;[362]

To implementation of an effective system for registering arrests and detentions and providing that information to family members, attorneys and other persons with legitimate interest in the information.

139. Subject to the discussion below concerning the particular circumstances of armed conflicts, should a terrorist situation within a state’s jurisdiction be of such nature or degree as to give rise to an emergency that threatens a state’s independence or security, that state is nevertheless precluded from suspending certain fundamental aspects of the right to liberty and personal integrity which are considered necessary for the protection of non-derogable rights or which are non-derogable under the state’s other international obligations. These include the requirement that the grounds and procedures for the detention be prescribed by law, the right to be informed of the reasons for the detention, prompt access to legal counsel, family and, where necessary or applicable, medical and consular assistance, prescribed limits upon the length of prolonged detention, and maintenance of a central registry of detainees. These protections are also considered to include appropriate judicial review mechanisms to supervise detentions, promptly upon arrest or detention and at reasonable intervals when detention is extended.

140. Other aspects of the right to liberty and personal security may potentially be suspended, subject to the rules and principles governing derogation as described in Part II(B). This may include in particular the requirement that an individual be tried within a reasonable time or released. A state might, for example, be justified in subjecting individuals to periods of preventative or administrative detention for a period longer than would be permissible under ordinary circumstances, where their extended detention is demonstrated to be strictly necessary by reason of the emergency situation.[363] Any such detention must, however, continue for only such period as is necessitated by the situation and remain subject to the non-derogable protections described above, including continued judicial oversight through periodic review.

141. As indicated in Part II(C), in armed conflict situations, consideration must be given to international humanitarian law rules and principles as the applicable lex specialis in interpreting and applying the protections under international human rights instruments, including the right to personal liberty and security, with due regard to the overarching principles of necessity, proportionality, humanity and non-discrimination.[364] In this respect, there are several characteristics particular to the manner in which international humanitarian law regulates the justifications for and conditions of deprivations of liberty that must inform an analysis of the state’s compliance with its international human rights obligations in armed conflict situations. The significant implications that international humanitarian law may have for a person’s right to personal liberty and security, particularly that of a lawful or unlawful combatant, also highlights the importance of ensuring that a fair procedure exists for determining the status of individuals taken into custody by a state in order to ensure that they are afforded the international protections to which they are entitled.[365]

142. One of the principal factors to be taken into account in evaluating compliance with the right to liberty in the context of armed conflicts is the justification under international humanitarian law for detaining persons in times of war. In particular, international humanitarian law permits the internment of combatants by a party to the conflict as a fundamental component of achieving the party’s military objectives, namely to prevent the opposing party from benefiting from the continued participation of members of their forces who have laid down their arms or those placed hors de combat by sickness, wounds, detention or any other cause.[366] As discussed above, international humanitarian law also generally permits the internment of combatants to continue until their repatriation at the cessation of active hostilities. By reason of these particular and more specific international legal principles underlying the detention of combatants in armed conflict, therefore, applicable international law should not be considered to provide for any entitlement on the part of detained combatants to be informed of the reasons for their detention, to challenge the legality of their detention, or, in the absence of disciplinary or criminal proceedings, to be provided with access to legal counsel.

143. Conversely, as noted previously, international humanitarian law generally permits the administrative detention or internment of civilians and others who have not taken any active part in hostilities only under exceptional circumstances. In particular, such detention may only be undertaken pursuant to specific provisions, and may be authorized only when imperative concerns of security require it, when less restrictive measure could not accomplish the objective sought, and when the action is taken in compliance with the grounds and procedures established in pre-existing law.[367] The applicable rules of international humanitarian law relative to the detention of civilians also require that any detention be made pursuant to a "regular procedure," which shall include the right of the detainee to be heard and to appeal the decision, and any continuation of the detention must be subject to regular review.[368] The particular requirements of the review process may vary depending upon the circumstances of a particular case, including, for example the capabilities of the detainee. In all instances, however, minimum standards of human rights law require that detention review proceedings comply with the rules of procedural fairness. These rules include the requirements that the decision-maker meets prevailing standards of impartiality, that the detainee is given an opportunity to present evidence and to know and meet the claims of the opposing party, and that the detainee be given an opportunity to be represented by counsel or other representative.[369] It should be emphasized that even where armed hostilities may occur over a prolonged period, this factor alone cannot justify the extended detention or internment of civilians; their detention is only justified as long as security concerns strictly require it.[370]

144. As to the conditions under which deprivations of liberty may be effected, international humanitarian law recognizes that the apprehension of persons in armed conflict circumstances may occur in the heat of battle, in or near to the theatre of combat or in similar hazardous situations. Partly as a consequence, international humanitarian law applicable to international armed conflicts provides for a series of assumptions and decision-making mechanisms in order to determine the status and corresponding rights and obligations of individuals captured during an armed conflict, including their susceptibility to detention or internment. In respect of persons who have committed belligerent acts and have fallen into the hands of the enemy and whose status as a prisoner of war is in doubt, for example, Article 5 of the Third Geneva Convention, as further elaborated upon by Article 45 of Additional Protocol I, establishes a presumption of application of the protection of the Convention to such persons until such time as their status is determined by a “competent tribunal.” While the features of a competent tribunal in turn may necessarily be affected by such exigencies as proximity to the frontline, past practice has indicated that such tribunals may be administrative in nature, which may include military commissions, and should be composed of qualified officers.[371]

145. This in turn suggests that, in circumstances where terrorist acts may trigger or otherwise occur during an international armed conflict, a state’s compliance with the liberty rights of persons detained in the course of the conflict must be evaluated in light of the particular presumptions and mechanisms prescribed under international humanitarian law. Where the detainee is not a combatant or where there is a doubt as to his or her status, the law of armed conflict requires review of the person’s status and, accordingly, his or her susceptibility to and conditions of detention or internment.

146. Notwithstanding these specific rules and mechanisms governing the detention of persons in situations of armed conflict, there may be circumstances in which the continued existence of active hostilities becomes uncertain, or where a belligerent occupation continues over a prolonged period of time. Where this occurs, the regulations and procedures under international humanitarian law may prove inadequate to properly safeguard the minimum human rights standards of detainees.[372] The Commission recognizes that situations of this nature are not clearly addressed by existing international law. Nevertheless, in the Commission’s view the paramount consideration must at all times remain the effective protection pursuant to the rule of law of the fundamental rights of detainees, including the right to liberty and the right to humane treatment.[373] Accordingly, where detainees find themselves in uncertain or protracted situations of armed conflict or occupation, the Commission considers that the supervisory mechanisms as well as judicial guarantees under international human rights law and domestic law, including habeas corpus and amparo remedies, may necessarily supercede international humanitarian law where this is necessary to safeguard the fundamental rights of those detainees.[374]


C. Right to Humane Treatment

1. International Human Rights Law

147. Perhaps in no other area is there greater convergence between international human rights law and international humanitarian law than in the standards of humane treatment and respect for human dignity. While governed by distinct instruments, both regimes provide for many of the same minimum and non-derogable requirements dealing with the humane treatment of all persons held under the authority and control of the state.[375]

148. Moreover, violations of the prohibition of torture and other serious breaches of humane treatment norms are regarded as sufficiently grave under both bodies of law to give rise to not only to state responsibility as described below, but may also constitute international crimes entailing the individual criminal responsibility of those participating in the violations and their superiors.[376] Some of these violations may as such constitute crimes against humanity or even genocide[377] and may now fall under the jurisdiction of the International Criminal Court.[378]

149. Within the inter-American system, the right to humane treatment is prescribed principally in Articles I, XXV and XXVI of the American Declaration and Article 5 of the American Convention, which provide as follows:

American Declaration

Article I. Every human being has the right to life, liberty and the security of his person.

Article XXV. […] Every individual who has been deprived of his liberty […] has the right to humane treatment during the time he is in custody.

Article XXVI. Every person accused of an offense has the right […] not to receive cruel, infamous or unusual punishment.

American Convention

Article 5.1. Every person has the right to have his physical, mental, and moral integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

3. Punishment shall not be extended to any person other than the criminal.

4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.

5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.

6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.

Article 7.1. Every person has the right to personal liberty and security.

150. These provisions mirror similar human rights guaranteed under other regional and universal instruments,[379] and generally encompass three broad categories of prohibited treatment or punishment: (1) torture; (2) other cruel, inhumane, or degrading treatment or punishment; (3) other prerequisites for respect for physical, mental or moral integrity, including certain regulations governing the means and objectives of detention or punishment. The analysis below provides an overview of the meaning and content of these humane treatment protections, followed by a consideration of several areas of state conduct particularly pertinent to the right to humane treatment, namely methods of interrogation, conditions of detention and specific protections for children, women and non-nationals.

151. Neither the American Convention on Human Rights nor the American Declaration expressly define “torture” or “other cruel, inhuman or degrading punishment or treatment.”

152. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on the other hand, defines torture for the purposes of that treaty as

[…] any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions […].[380]

153. Article 2 of the Inter-American Convention to Prevent and Punish Torture[381] provides a similar, though not identical, definition of torture as follows:

For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish. The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this Article.

154. Under the Inter-American Torture Convention regime, torture refers to acts committed by state agents or persons acting under the orders or instigation of state agents.[382] While analyzing the concept of torture for the purposes of Article 5 of the American Convention on Human Rights, the Commission has frequently referred to the definition provided for in the Inter-American Torture Convention,[383] and has also found violations of the Inter-American Torture Convention itself as against states parties to that instrument.[384] The Commission has considered that for torture to exist three elements have to be combined: 1. it must be an intentional act through which physical and mental pain and suffering is inflicted on a person; 2. it must be committed with a purpose (inter alia personal punishment or intimidation) or intentionally (i.e. to produce a certain result in the victim); 3. it must be committed by a public official or by a private person acting at the instigation of the former.[385] As discussed below, torture and inhumane treatment are distinct types of violations.[386]

155. The American Convention prohibits the imposition of torture or cruel, inhuman or degrading treatment or punishment on persons under any circumstances.[387] While the American Declaration does not contain a general provision on the right to humane treatment, the Commission has interpreted Article I of the American Declaration as containing a prohibition similar to that under the American Convention.[388] In fact it has specified that "[a]n essential aspect of the right to personal security is the absolute prohibition of torture, a peremptory norm of international law creating obligations erga omnes."[389] It has also qualified the prohibition of torture as a norm of jus cogens.[390]

156. Neither the American Convention nor the Convention to Prevent and Punish Torture establish what should be understood by "inhuman or degrading treatment," nor how it is to be differentiated from torture. Nevertheless, certain guiding principles may be drawn from the jurisprudence of the Inter-American Court and Commission for the purpose of evaluating whether certain conduct may fall within these categories of inhumane treatment. When analyzing allegations of violations of Article 5 of the American Convention, for example, the Inter-American Commission has taken into account decisions of the European Commission on Human Rights, according to which "inhuman treatment is that which deliberately causes severe mental or psychological suffering, which, given the particular situation, is unjustifiable" and that "treatment or punishment of an individual may be degrading if he is severely humiliated in front of others or he is compelled to act against his wishes or conscience."[391]

157. The Inter-American Commission has also considered the jurisprudence of the European Court of Human Rights, according to which a treatment must attain a minimum level of severity in order to be considered "inhuman or degrading." The evaluation of this "minimum" level is relative and depends on the circumstances in each case, such as the duration of the treatment, its physical and mental effects, and, in some cases, the sex, age, and health of the victim.[392]

158. In addition, with regard to the conceptual difference between the term "torture" and "inhuman or degrading treatment", the Inter-American Commission has shared the view of the European Commission on Human Rights that the concept of "inhuman treatment" includes that of "degrading treatment", and that torture is an aggravated form of inhuman treatment perpetrated with a purpose, namely to obtain information or confessions or to inflict punishment.[393] The Inter-American Commission has also relied upon the European Court of Human Rights’ view that the essential criterion to distinguish between torture and other cruel, inhuman or degrading treatment or punishment "primarily results from the intensity of the suffering inflicted".[394]

159. The Inter-American Court has similarly relied upon the jurisprudence of the European Court of Human Rights in finding that, even in the absence of physical injuries, psychological and moral suffering, accompanied by psychic disturbance during questioning, may be deemed inhuman treatment. According to the Inter-American Court, the degrading aspect of a treatment is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical and moral resistance.[395] The Court also noted that the degrading aspect of the treatment can be exacerbated by the vulnerability of a person who is unlawfully detained.[396]

160. Finally, this Commission has considered that both the American Convention and the Inter-American Convention to Prevent and Punish Torture provide the Commission with certain latitude in assessing whether, in view of its seriousness or intensity, an act or practice constitutes torture or inhuman or degrading punishment or treatment. According to the Commission, such classification should be done on a case-by-case basis, taking into account the peculiarities thereof, the duration of the suffering, the physical and mental effects on each specific victim, and the personal circumstances of the victim.[397]

161. While it is not possible to provide an exhaustive accounting of the type of conduct that might constitute torture or other cruel, inhuman or degrading punishment or treatment, some guidance can be drawn from existing inter-American jurisprudence, which has found certain acts to amount to inhumane treatment, generally and specifically in the context of interrogation and detention.[398] Examples include:

prolonged incommunicado detention;[399]

keeping detainees hooded and naked in cells and interrogating them under the drug pentothal;[400]

imposing a restricted diet leading to malnutrition;[401]

applying electric shocks to a person;[402]

holding a person’s head in water until the point of drowning;[403]

standing or walking on top of individuals;[404]

beating,[405] cutting with pieces of broken glass,[406] putting a hood over a person’s head and burning him or her with lighted cigarettes;[407]

rape;[408]

mock burials, mock executions, beatings, deprivation of food and water;[409]

threats of a behavior that would constitute inhumane treatment;[410] threats of removal of body parts, exposure to the torture of other victims;[411]

death threats;[412]

162. Guidance in this respect can also properly be drawn from other international authorities. The United Nations Special Rapporteur on Torture has listed several acts which involve the infliction of suffering severe enough to constitute torture. These include, for example, beating, extraction of nails, teeth, etc., burns, electric shocks, suspension, suffocation, exposure to excessive light or noise, sexual aggression, administration of drugs in detention or psychiatric institutions, prolonged denial of rest or sleep, food, sufficient hygiene, or medical assistance, total isolation and sensory deprivation, being held in constant uncertainty in terms of space and time, threats to torture or kill relatives, and simulated executions.[413] The United Nations Human Rights Committee has considered similar conduct to constitute torture or other inhumane treatment, including beatings, electric shocks and mock executions, forcing prisoners to remain standing for extremely long periods of time, and holding persons incommunicado for more than three months while keeping that person blindfolded with hands tied together, resulting in limb paralysis, leg injuries, substantial weight loss and eye infection.[414]

163. The European Commission of Human Rights and the European Court of Human Rights have also had occasion to evaluate conduct alleged to constitute torture or other inhumane treatment for the purposes of the European Convention on Human Rights. In particular, in the Greek Case, the European Commission of Human Rights considered that the practice of administering severe beatings to all parts of the body, constituted torture and ill-treatment.[415] Similarly, in Aksoy v. Turkey, the Court considered that the victim had been subjected to torture when he was stripped naked and suspended by his arms which had been tied together behind his back, the treatment was deliberately inflicted, a certain amount of preparation and exertion had been required to carry it out, and it appeared to have been administered with the aim of obtaining admissions or information from the victim.[416] In Aydin v. Turkey, the European Court considered that the rape of the victim during her detention over a period of three days, together with the fact that she has been blindfolded, paraded naked in humiliating circumstances, interrogated, and kept in a constant state of physical pain and mental anguish from her circumstances, amounted to torture.[417]

164. The jurisprudence of the inter-American and other human rights systems provides insights into several aspects of the right to humane treatment that may be particularly pertinent in analyzing anti-terrorist initiatives. These include the conduct of interrogations, conditions of detention, and the treatment of persons in situations of particular vulnerability or disadvantage including children, women and non-nationals. In particular, the Inter-American Commission and the Inter-American Court have addressed the right to human treatment guaranteed under the Convention and the Declaration when considering some of the above mentioned acts applied on persons during their interrogations by state agents.[418] In so doing, the Commission[419] and the Court[420] have referred to the notable discussion by the European Court of Human Rights in the Ireland v. UK case[421] and have suggested that techniques similar to those addressed by the European Court are prohibited in any interrogations undertaken by state agents. The facts in that case dealt with the "interrogation in depth" which involved the combined application of five particular techniques, or methods, sometimes termed "disorientation" or "sensory deprivation" techniques, which included

(a) wall-standing (forcing the detainees to remain for periods of some hours in a "stress position"); (b) hooding (putting a hood over the detainees' heads and, at least initially, keeping it there all the time except during interrogation); (c) subjection to noise (pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise); (d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep; (e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the detention centre and pending interrogations.[422]

165. The European Court of Human Rights considered that these interrogation techniques constituted inhumane treatment but not torture as prohibited by Article 3 of the European Convention on Human Rights.[423] In its analysis the Court specified:

In order to constitute torture or inhumane treatment, the treatment must attain a minimum level of severity which is assessed by taking into consideration all the circumstances of the case, such as, but not exclusively, the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim;[424]

In the specific case, the acts did fall in the category of inhumane treatment because they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation; [425]

The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance;[426]

The Convention contains a distinction between "torture" and "inhuman or degrading treatment" and as such attaches to torture a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.[427]

In the specific case, the five techniques did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. [428]

166. Moreover, the Inter-American Court has specified that any use of force that is not strictly necessary to ensure proper behavior on the part of the detainee constitutes an assault on the dignity of the person in violation of Article 5 of the American Convention. According to the Court, the exigencies of the investigation and the undeniable difficulties encountered in the anti-terrorist struggle must not be allowed to restrict the protection of a person's right to physical integrity.[429]

167. The Inter-American Commission and the Court have also dealt with the right to human treatment guaranteed under the Convention and the Declaration when considering the issue of detention conditions in individual cases and in country reports. In this context, the Commission has made specific reference[430] to the United Nations Standard Minimum Rules for the Treatment of Prisoners[431] as prescribing basic benchmarks against which to evaluate whether the treatment of prisoners satisfies the standards of humanity under the inter-American instruments in such areas as accommodation,[432] hygiene,[433] clothing and bedding,[434] food,[435] recreation,[436] exercise and medical treatment,[437] discipline, punishment and use of instruments of restraint,[438] and the separation of convicted from unconvicted prisoners and minors from adults.[439]

168. The Court and the Commission have been particularly critical of circumstances in which individuals are held incommunicado for long periods of time in poor conditions,[440] and have identified other considerations that must regulate the obligations of states in this area:

the level of development of a particular state party to the Convention is irrelevant in the analysis of compliance with Article 5;[441]

once a person falls into the custody of state agents, any inhumane treatment subsequently suffered by that person is presumed to be the responsibility of the state;[442]

the state must refrain from any use of force against prisoners that is not strictly necessary for the maintenance of security and order in an institution or where personal safety is threatened;[443]

in light of the serious consequences for detainees of excessive or inappropriate uses of force by their custodians, states are subject to a particularly strict duty to conduct proper and thorough investigation of allegations that detainees have been subjected to mistreatment by state officials and, if those allegations are determined to be well-founded, to take appropriate remedial measures.[444]

169. In addition to the above-mentioned provisions, in particular Article 5(5) of the American Convention,[445] the inter-American instruments also provide for specific guarantees for children that relate in certain respects to their humane treatment:

American Declaration

Article VII. All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid.

American Convention

Article 19. Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.

170. When considering cases dealing with allegations of torture or inhumane treatment of children, both the Commission and the Court have considered as particularly grave the status of human rights victims as minors[446] and have applied or referred to the above provisions,[447] as well as other pertinent international human rights treaties. These include provisions of the UN Convention on the Rights of the Child,[448] relating to such matters as the protection of children against all forms of discrimination or discriminatory punishment,[449] and the physical and psychological recovery of children from, inter alia, any form of neglect, exploitation or abuses, and all of which are grounded by the general principal of the best interest of the child.[450]

171. Of particular relevance in this connection is Article 37 of the Children’s Convention addressing the treatment of children during detention:

Article 37. States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

172. Consistent with these provisions, the Commission has considered that imprisonment of children must only be used as a last recourse and for the shortest time, and that children must never be kept incommunicado or incarcerated with adults.[451]

173. The inter-American human rights instruments also provide for particular guarantees concerning the rights of women that are relevant to the issue of humane treatment. In addition to the general prohibition of inhumane treatment under Article 5, these provisions include:

American Declaration

Article VII. All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid.

American Convention

Article 11.1. Everyone has the right to have his honor respected and his dignity recognized.

174. In assessing cases dealing with the humane treatment of women during detention, the Commission has taken these provisions into consideration. In its May 1977 final Resolution in Case 2029, for example, the Commission found Paraguay responsible for violations of Article I and Article VII of the American Declaration in connection with the detention and mistreatment of several women, including a pregnant woman who delivered and spent three years with her child in jail, as well as a victim who lost her unborn child under torture, did not receive medical attention, and was only released when she was near death.[452]

175. Foremost among the relevant inter-American human rights instruments in this regard is the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women,[453] which defines and prohibits violence against women[454] and reaffirms the right of every woman to have her physical, mental and moral integrity respected, the right to personal liberty and security, and the right not to be subjected to torture.[455] It also places positive obligations on state parties to, inter alia, prevent, investigate and impose penalties for violence against women[456] and to promote the education and training of relevant state agents in this regard. [457] Of particular relevance in the irregular circumstances often created by terrorist violence and the responding measures by states is Article 9 of that Convention which provides that “the State parties shall take special account of the vulnerability of women to violence by reason of, among others, their race or ethnic background or their status as migrants, refugees or displaced persons. Similar consideration shall be given to women subjected to violence while pregnant or who are disabled, of minor age, elderly, socioeconomically disadvantaged, affected by armed conflict or deprived of their freedom.”

176. As with the particular provisions of the American Convention and the American Declaration, the Commission has taken these provisions of the Convention on the Prevention, Punishment, and Eradication of Violence Against Women into consideration in cases involving female victims,[458] including those raising allegations of inhumane treatment.[459] Of particular pertinence in this regard is the Commission's final report on the case of Raquel Martín de Mejía,[460] adopted in March of 1996, in which the Commission found the rape of the victim to constitute torture under the American Convention and under the Convention to Prevent and Punish Torture.[461]

177. Further, in the case of X and Y v. Argentina, the Commission had occasion to address the integrity and privacy interests of both women and children. The complaint in this case concerned a practice in Argentina of routinely requiring that female family members wishing to have personal contact visits with an inmate undergo vaginal inspections.[462] A petition had been filed with the Commission in December of 1989, alleging that the wife of an inmate and their thirteen year old daughter had been subjected to such inspections without regard for whether there were special circumstances to warrant extraordinary measures.

178. In balancing the interests of those subject to such searches against the state's interest in maintaining security within its prisons, the Commission characterized "a vaginal search [as] more than a restrictive measure as it involves the invasion of a woman's body." "Consequently, the balancing of interests involved" must hold the government "to a higher standard." In its report, the Commission set out a four part test to determine the lawfulness of a vaginal inspection or search: "1) it must be absolutely necessary to achieve the security objective in the particular case; 2) there must not exist an alternative option; 3) it should be determined by judicial order; and 4) it must be carried out by an appropriate health professional." With respect to Ms. Y, who was thirteen years old at the time in question, the Commission found "it is evident that the vaginal inspection was an absolutely inadequate and unreasonable method." The Commission determined that the facts denounced gave rise to State responsibility for violations of Articles 5 and 11, 25 and 8, and 1(1) of the American Convention.[463]

179. Another category of persons in respect of whom particular humane treatment protections apply are aliens in the territory of a state. The pertinent principles and jurisprudence in this respect are discussed in Part III(H) below concerning the situation of migrant workers, asylum seekers, refugees and other non-nationals.

180. Finally, the Commission emphasized that the right to humane treatment is a non-derogable right, regardless of the existence or gravity of an emergency, as specifically provided for in Article 27(2) of the American Convention and reinforced through Article 5 of the Inter-American Torture Convention,[464] which provides:

The existence of circumstances such as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters shall not be invoked or admitted as justification for the crime of torture. Neither the dangerous character of the detainee or prisoner, nor the lack of security of the prison establishment or penitentiary shall justify torture.

2. International Humanitarian Law

181. The right to humane treatment and the prohibition of torture are also provided for under international humanitarian law instruments and corresponding rules of customary international law.[465]


182. It must first be stated in this regard that torture and other forms of inhumane treatment are entirely incompatible with and thus precluded in all armed conflicts by the fundamental principles of international humanitarian law of necessity, proportionality and, most significantly, humanity.[466]

183. In addition to these generally applicable prescriptions, international humanitarian law treaties contain certain provisions specifically addressing the issue of humane treatment. Article 3 Common to the Four 1949 Geneva Conventions provides a general right to humane treatment, applicable in all armed conflicts:[467]

Article 3


In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;


(b) Taking of hostages;


(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;


(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.



2. The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.


184. It is well established that Common Article 3 and corresponding prohibitions of torture, cruel treatment, and outrages upon personal dignity constitute norms of customary international law.[468]

185. Instruments of international humanitarian law governing international armed conflicts likewise contain general humane treatment guarantees. Accordingly, the Third Geneva Convention[469] contains a general right to humane treatment provisions for prisoners of war:

Article 13


Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity Measures of reprisal against prisoners of war are prohibited.

Article 14

Prisoners of war are entitled in all circumstances to respect for their persons and their honour. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture. The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires.

186. The Fourth 1907 Hague Convention respecting the Laws and Customs of War on Land and its annexed Regulations concerning the Laws and Customs of War on Land[470] also guarantee the humane treatment of prisoners of war.[471]

187. The Fourth Geneva Convention[472] provides similar guarantees for the right to humane treatment of civilians and other persons protected under the treaty:[473]

Article 27


Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

Article 32


The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person but also to any other measures of brutality whether applied by civilian or military agents.

Article 37 [dealing with non-nationals in the territory of a party to the conflict]


Protected persons who are confined pending proceedings or serving a sentence involving loss of liberty shall during their confinement be humanely treated. As soon as they are released, they may ask to leave the territory in conformity with the foregoing Articles.

188. Likewise, Additional Protocol I[474] contains fundamental guarantees protecting the right to humane treatment of persons who are in the power of the adverse party in the context of an international armed conflict:

Article 11. Protection of persons

1. The physical or mental health and integrity of persons who are in the power of the adverse Party or who are interned, detained or otherwise deprived of liberty as a result of a situation referred to in Article I shall not be endangered by any unjustified act or mission. Accordingly, it is prohibited to subject the persons described in this Article to any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty.

2. It is, in particular, prohibited to carry out on such persons, even with their consent:

(a) Physical mutilations;

(b) Medical or scientific experiments;

(c) Removal of tissue or organs for transplantation, except where these acts are justified in conformity with the conditions provided for in paragraph 1.

[…]

4. Any willful act or omission which seriously endangers the physical or mental health or integrity of any person who is in the power of a Party other than the one on which he depends and which either violates any of the prohibitions in paragraphs 1 and 2 or fails to comply with the requirements of paragraph 3 shall be a grave breach of this Protocol.

[…]

189. Of particular relevance, Article 75 of Protocol I prescribes minimum standards of humane treatment for unprivileged combatants and other persons who are in the power of a party to an international armed conflict and do not benefit from more favorable treatment under the Geneva Conventions or Additional Protocol I:

Article 75

1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:

(a) Violence to the life, health, or physical or mental well-being of persons, in particular:

(i) Murder;

(ii) Torture of all kinds, whether physical or mental;

(iii) Corporal punishment ; and

(iv) Mutilation;

(b) Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;

(c) The taking of hostages;

(d) Collective punishments; and

(e) Threats to commit any of the foregoing acts.

[…]

190. There are reasonable grounds to believe that the fundamental protections provided under Article 75 of the Additional Protocol I, including Article 75(2), constitutes a norm of customary international law.[475]

191. Finally, in the context of non-international armed conflicts, the Second Additional Protocol[476] grants similar guarantees to all persons who do not take a direct part or who have ceased to take part in hostilities and/or whose liberty has been restricted:

Article 4

1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.

2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:

(a) Violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

(b) Collective punishments;

(c) Taking of hostages;

(d) Acts of terrorism;

(e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

(f) Slavery and the slave trade in all their forms;

(g) Pillage;

(h) Threats to commit any of the foregoing acts.

Article 5

[…] 2. Those who are responsible for the internment or detention of the persons [deprived of their liberty for reasons related to the armed conflict] shall also, within the limits of their capabilities, respect the following provisions relating to such persons:

[…]

(e) Their physical or mental health and integrity shall not be endangered by an unjustified act or omission. Accordingly, it is prohibited to subject the persons described in this Article to any medical procedure which is not indicated by the state of health of the person concerned, and which is not consistent with the generally accepted medical standards applied to free persons under similar medical circumstances.

192. In addition to the general provisions governing the humane treatment of protected persons in international armed conflicts, the Third[477] and Fourth[478] Geneva Conventions and Additional Protocol I prescribe specific and detailed requirements of almost every aspect of the treatment of persons protected under those conventions. These requirements address, inter alia:

The conditions of internment of prisoners of war and civilians;[479]

The hygiene, health and medical treatment of prisoners of war and civilians;[480]

The conditions of quarters, food, and clothing of prisoners of war and civilians;[481]

The deportation, evacuation or transfer of prisoners of war and civilians;[482]

The interrogation of all types of detainees;[483]

The interrogation of prisoners of war, in particular that they can only be required to give their name, rank, date of birth and army identification number, and cannot be compelled to answer any other questions;[484]

The labor of prisoners of war and civilians, in particular with respect to working conditions; [485]

Disciplinary measures against prisoners of war and civilians subject to internment;[486]

Specific conditions of detention applied as a disciplinary punishment to prisoners of war and civilians subject to internment;[487]

Measures of special surveillance of prisoners of war and civilians subject to internment;[488]

Specific conditions of detention for prisoners of war and civilians subject to internment resulting from judicial sanctions;[489]


193. Further, the Third and Fourth Geneva Conventions prescribe roles for the Protecting Powers[490] and, with the consent of the Detaining Power concerned, the International Committee of the Red Cross, in supervising the detention and treatment of prisoners of war and civilian internees.[491] This includes the right of prisoners of war and civilian internees to apply to the representatives of the Protecting Powers in order to draw their attention to any points on which they may have complaints to make regarding their conditions of captivity or internment.[492]

194. As in the case of international human rights protections, international humanitarian law provides for particular protections in the case of certain categories of vulnerable persons, including children[493] and women. For example, international humanitarian law treaties afford specific guarantees for the care, aid and protection of children subject to internment.[494] Article 77 of Additional Protocol I provides:

Article 77

1. Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.

2. The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.

3. If, in exceptional cases, despite the provisions of paragraph 2, children who have not attained the age of fifteen years take a direct part in hostilities and fall into the power of an adverse Party, they shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war.

4. If arrested, detained or interned for reasons related to the armed conflict, children shall be held in quarters separate from the quarters of adults, except where families are accommodated as family units as provided in Article 75, paragraph 5.

5. The death penalty for an offence related to armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed.

195. Article 4(3) of Additional Protocol II provides for similar specific guarantees concerning children in the context of non-international armed conflicts:

Article 4

3. Children shall be provided with the care and aid they require, and in particular:(a) They shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care; (b) All appropriate steps shall be taken to facilitate the reunion of families temporarily separated; (c) Children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities; (d) The special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured; (e) Measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being.

196. International humanitarian law also affords specific guarantees for the humane treatment of women.[495] These include the general protection of the honor of and respect for women and their protection from rape, enforced prostitution and other forms of indecent assault, as well as specific protections concerning the conditions of restrictions on their liberty. Article 14 of the Third Geneva Convention provides in particular:

Article 14

Prisoners of war are entitled in all circumstances to respect for their persons and their honour. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. […]

197. Likewise, Article 27 of the Fourth Geneva Convention provides:

Article 27


Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.

However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

198. Additional Protocol I also provides specific guarantees for women:

Article 76. Protection of women

1. Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault.

2. Pregnant women and mothers having dependent infants who are arrested, detained or interned for reasons related to the armed conflict, shall have their cases considered with the utmost priority.

3. To the maximum extent feasible, the Parties to the conflict shall endeavour to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants, for an offence related to the armed conflict. The death penalty for such offences shall not be executed on such women.

199. According to the Third Geneva Convention, women prisoners of war are to be accommodated in separate dormitories then men prisoners of war, [496] while women undergoing disciplinary punishment or subject to judicial sentences are to be confined in separate quarters from male prisoners of war and be under the immediate supervision of women.[497] The Fourth Geneva Convention and the First and Second Additional Protocols contain similar guarantees for civilians subject to internment.[498]

200. It must be emphasized that violations of some of the international humanitarian law norms relative to the right to humane treatment and the prohibition of torture not only imply the responsibility of the state,[499] but also constitute international crimes entailing the individual criminal responsibility of those participating in the violations and their superiors. Some of these violations may as such constitute grave breaches of the Geneva Conventions[500] or of the First Additional Protocol,[501] acts amounting to war crimes,[502] crimes against humanity[503] or even genocide[504] and may now fall under the jurisdiction of the International Criminal Court.[505]

3. Right to Humane Treatment and Terrorism

201. In the context of state responses to terrorist violence, the above-mentioned guarantees governing the right to humane treatment are particularly relevant in several potential situations, including the treatment and interrogation of suspected terrorists during and after their capture by state agents, and, as discussed in Part III(H), the detention and removal of aliens, including women and children.

202. As with other categories of human rights, where individuals fall under the authority and control of the state in situations outside of armed conflict, their treatment is governed exclusively by international human rights law. Where an armed conflict is underway, however, the treatment of detainees and others is also subject to international humanitarian law. Further, in the context of international armed conflicts, a preliminary issue arises concerning the status of detainees under the 1949 Geneva Conventions, which has implications for the nature of the treatment to which the individuals may be entitled, including in particular distinct treatment to be afforded to prisoners of war and civilians subject to internment.[506]

203. Accordingly, when individuals have committed belligerent acts and have fallen into the hands of the enemy in the context of an international armed conflict and a doubt arises as to their entitlements to prisoner of war status, a competent tribunal should determine the status of the detainees.[507] This is the case whether or not the individuals are suspected to have engaged in acts of terrorism. Until the status of the detainees has been determined by a competent tribunal, they should be afforded prisoner of war status[508] or a similar protection.[509]

204. On this matter, it should be recalled that a prisoner of war is immune from criminal prosecution under the domestic law of his captor for his hostile acts that do not violate the laws and customs of war. This immunity does not, however, extend to acts that transgress the rules of international law applicable in armed conflict.[510]

205. Notwithstanding the importance of ascertaining the status of persons falling into the hands of an adversary in international armed conflict situations, however, it is also significant to recognize that the regimes of human rights law and of international humanitarian law each provides for minimal and non-derogable requirements dealing with the humane treatment of all persons held under the authority and control of the state. While the humanitarian law protections governing international armed conflicts in particular provide for a specific and detailed lex specialis that must inform the right to humane treatment of victims of such conflicts, it is notable that many of the fundamental rules and principles under this regime are similar to those applicable outside of international armed conflicts, particularly with respect to the conditions under which individuals may be detained and interrogated. A discussion of these similar requirements and their corresponding sources under international human rights and humanitarian law is provided below.

206. Specifically with regard to conditions of detention, as individuals may be detained either before any criminal charges have been brought against them, untried prisoners should be kept separate from convicted prisoners.[511] In addition, men and women should be detained in separate institutions or in separate parts of a same institution,[512] and children should be detained in institutions or parts of the same institution separate from adults.[513]

207. The facilities in which detainees are kept must also respect minimum physical attributes. Under no circumstances may detainees be held in locations that would endanger their lives or physical and mental health.[514] Detainees should be kept in buildings or quarters which afford every possible safeguard as regards hygiene and health, and provide efficient protection against the climate.[515] In addition, the premises are to be protected from dampness, adequately heated and lighted, and sleeping quarters are to be sufficiently spacious and well ventilated. The detainees are to have suitable bedding and blankets considering the climate, and the personal characteristics of the detainees. They should have access to sanitary conveniences sufficiently hygienic and clean.[516] The detainees should have adequate water, food, clothing and necessary medical attention.[517] Any transfer or evacuation of detainees must be effected humanely.[518]

208. While civilian courts are charged with supervising human rights protections in times of peace and states of emergency, the Third and Fourth Geneva Conventions provide the Protecting Powers[519] and, with the consent of the Detaining Power concerned, the International Committee of the Red Cross, with roles in supervising the detention and treatment of prisoners of war and civilian internees during international armed conflict. The ICRC may also play a similar role in the context of a non-international armed conflict.[520] However, as noted in Part III(C) concerning the right to personal liberty and security,[521] there may be circumstances in which the supervisory mechanisms under international humanitarian law are not properly engaged or available, or where the detention or internment of civilians or combatants continue for a prolonged period. Where this occurs, the regulations and procedures under international humanitarian law may prove inadequate to properly safeguard the minimum standards of treatment of detainees, and the supervisory mechanisms under international human rights law, including habeas corpus and amparo remedies, may necessarily supercede international humanitarian law in order to ensure at all times effective protection of the fundamental rights of detainees.

209. Detainees who are subject to disciplinary or penal sanctions are to be afforded similar detention conditions, treated humanely at all times and never subjected to torture or inhumane treatment.[522] In particular, corporal punishments, prolonged periods of time in solitary confinement and the placing of detainees in dark cells are prohibited.[523] Instruments of restraint, such as handcuffs, chains, irons and strait-jacket, shall never be applied as a punishment, as they constitute prohibited corporal punishments.[524] Any treatment of additional surveillance or restraint on the detainees may never affect the detainees’ health and are to be used exceptionally in accordance with the principles of necessity and proportionality.[525]Treatments that could potentially endanger the detainees’ health are to be supervised by medical officers and prohibited if they actually endanger the health of the detainees.[526]

210. The interrogation of individuals suspected of having committed terrorist activities is also strictly limited by both international human rights and humanitarian law standards relative to the right to humane treatment and the absolute prohibition of torture.[527]

211. Accordingly, all methods of interrogation that may constitute torture or other cruel, inhuman or degrading treatment are strictly prohibited. This could include severe and deliberate mistreatment causing very serious and cruel suffering, such as severe beatings,[528] suspending prisoners in humiliating and painful ways,[529] rape[530] and sexual aggression,[531] electric shocks, [532] suffocation, [533] burns[534] and the extraction of fingernails or teeth.[535]

212. In addition, while each case must be evaluated on its own circumstances, torture or other cruel, inhumane or degrading treatment could include more subtle treatments that have nevertheless been considered sufficiently cruel, such as exposure to excessive light or noise, administration of drugs in detention or psychiatric institutions, prolonged denial of rest or sleep, food, sufficient hygiene, or medical assistance, total isolation and sensory deprivation.[536]

213. Acts constituting other cruel, inhuman or degrading punishment or treatment are also strictly prohibited. As discussed above, conduct of this nature could include death threats,[537] prolonged incommunicado detention,[538] and deprivation of sleep.[539]

214. Finally, it should be emphasized that although detainees may be interrogated, they may not be compelled to be a witness against themselves, to plead guilty or to confess.[540] Moreover, in situations of international armed conflict, a prisoner of war under interrogation is not only entitled to the right against self-incrimination, but is only bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information, and cannot be compelled to answer any other question, or to give information other than that listed above.[541]

215. Applicable international law norms may also have implications with respect to the detention and removal of immigrants, including those suspected of terrorist activity. Further discussion in this regard is provided in Part III(H) below concerning the situation of migrant workers, asylum seekers, refugees and other non-nationals.

216. It should be emphasized that notwithstanding the threat or gravity of a situation of terrorist violence, and regardless of whether it arises in the context of armed conflict, the right to humane treatment is a non-derogable right under Article 27(2) of the American Convention and Article 5 of the Inter-American Torture Convention.[542] More specifically, the prohibition against torture constitutes a peremptory norm of international law,[543] and therefore may not be suspended or restricted under any circumstances.


D. Rights to Due Process of Law and to a Fair Trial

1. International Human Rights Law

217. Within the inter-American human rights system, the rights to due process of law and to a fair trial are prescribed principally in Articles XVIII and XXVI of the American Declaration and Articles 8 and 9 of the American Convention on Human Rights, which provide as follows:

American Declaration

XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.

XXVI. Every accused person is presumed to be innocent until proved guilty. Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.

American Convention

8.1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:

 a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;

b. prior notification in detail to the accused of the charges against him;

c. adequate time and means for the preparation of his defense;

d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;

e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;

f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; g. the right not to be compelled to be a witness against himself or to plead guilty; and h. the right to appeal the judgment to a higher court.

3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.

4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause.

5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.

9. No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.

218. As is evident from the above texts, which mirror protections provided for in other regional and international human rights instruments,[544] these provisions guarantee fundamental substantive and procedural protections in the determination of accusations of a criminal nature. As discussed in further detail below, these protections are defined to encompass certain fundamental principles of criminal law, including the right to be presumed innocent, and the nullum crimen sine lege, nulla poena sine lege, and non-bis-in-idem principles. Also guaranteed are the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, and a non-exhaustive enumeration of due procedural guarantees that are considered essential to a fair hearing.

219. The rules and principles embodied in the above protections are relevant not only to criminal proceedings, but also, mutatis mutandis, to other proceedings through which rights and obligations of a civil, labor, fiscal or other nature are determined.[545] As will be elaborated upon in Part III(H) below, non-criminal proceedings to which certain due process protections have been found to apply in this and other human rights systems include procedures concerning the detention, status or removal of non-nationals.[546]

220. It should also be observed at this stage that certain multilateral conventions that address efforts to combat terrorism and its various manifestations specifically provide that individuals accused of crimes relating to terrorism must be afforded the legal guarantees of due process in any proceedings taken against them.[547]

221. According to the jurisprudence of the inter-American human rights system, as articulated through opinions and judgments of the Inter-American Court of Human Rights and special and individual case reports of the Commission, the components of the requirements of fair trial and to due process of law entail certain essential requirements and restrictions. Several of the most pertinent of these attributes are discussed below.

2. International Humanitarian Law

254. The provisions of international humanitarian law governing fair trial requirements in the context of international and non-international armed conflict parallel to a large extent those prescribed under applicable international human rights law, and indeed were drawn largely from human rights law.[627]

255. With regard to international armed conflicts, both the Third and Fourth Geneva Conventions contain extensive and detailed provisions governing the prosecution of prisoners of war and civilians under a variety of circumstances. These include due process protections in the adjudication of disciplinary and penal sanctions[628] including, as observed in Part III(A) of this report, criminal proceedings in which capital punishment may be imposed.[629] They also include provisions prohibiting the wilful deprivation of the rights to a fair and regular trial as grave breaches of the Conventions.[630] In situations of non-international armed conflict, common Article 3 prohibits the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all of the judicial guarantees which are recognized as indispensable by civilized peoples.”

256. As noted above, while international human rights law prohibits the trial of civilians by military tribunals, the use of military tribunals in the trial of prisoners of war is not prohibited; to the contrary, according to Article 84 of the Third Geneva Convention, a prisoner of war “shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offense alleged to have been committed by the prisoner of war.”[631] By the same article, however, a prisoner of war may under no circumstances be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized and, in particular, the procedure of which does not afford the accused the rights and means of defense provided for in Article 105 of the Third Convention.[632]

257. The fair trial protections in the 1949 Geneva Conventions have been supplemented and developed by Additional Protocols I and II. This has included the explicit articulation under Article 75(4) of Additional Protocol I of fair trial guarantees applicable to unprivileged combatants and other persons who do not benefit from more favorable treatment under the 1949 Geneva Conventions or of Additional Protocol I. Article 6 of Additional Protocol II similarly elaborates upon the specific fair trial guarantees considered to be encompassed within common Article 3. As noted in Part II(C) of this report, these provisions have been recognized as reflecting customary international law governing penal prosecutions in times of armed conflict,[633] and provide as follows:

Additional Protocol I

Article 75(4) No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following: (a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence; (b) No one shall be convicted of an offence except on the basis of individual penal responsibility; (c) No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby; (d) Anyone charged with an offence is presumed innocent until proved guilty according to law; (e) Anyone charged with an offence shall have the right to be tried in his presence; (f) No one shall be compelled to testify against himself or to confess guilt; (g) Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (h) No one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure; (i) Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and (i) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.


Additional Protocol II

Article 6(1) This Article applies to the prosecution and punishment of criminal offences related to the armed conflict. (2) No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular: (a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence; (b) No one shall be convicted of an offence except on the basis of individual penal responsibility; (c) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby; (d) Anyone charged with an offence is presumed innocent until proved guilty according to law; (e) Anyone charged with an offence shall have the right to be tried in his presence; (f) No one shall be compelled to testify against himself or to confess guilt. (3) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised. (4) The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children. (5) At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.

258. As in the case of international human rights law, therefore, international humanitarian law mandates compliance with minimum due process and fair trial protections in any criminal proceedings, including most fundamentally the right to trial by an impartial, independent and regularly constituted court and the right to be informed without delay of the particulars of the offense against him or her. They also encompass the right to all necessary rights and means of defense, which necessarily includes the right to a qualified defense counsel, the right to examine or have examined the witnesses against him or her and to obtain the presence and examination of witnesses on his behalf under the same conditions as the witnesses against him or her, and the right to be advised on conviction of his judicial and other remedies and the time limit within which they may be exercised. Also prescribed under international humanitarian law are the fundamental criminal law principles nullum crimen sine lege, nulla poena sine lege, and non-bis-in-idem, as well as the presumption of innocence and the right not to be convicted of an offense except on the basis of individual penal responsibility.[634] Finally, international humanitarian law explicitly provides for the right of an accused to be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal.[635]

259. The Commission considers it important to reiterate that the minimum guarantees of due process and a fair trial prescribed in Article 75 of Additional Protocol I and Article 6 of the Additional Protocol II and corresponding customary international law, as with the other fundamental guarantees prescribed in those provisions, are non-derogable and therefore constitute minimum standards applicable to all persons in armed conflicts from which states may not regress.[636] Further, the non-derogable status of these rights protections under international humanitarian law blocks any restrictions or derogations that might otherwise be authorized under applicable human rights instruments insofar as they relate to charges arising out of the hostilities.[637] Accordingly, in times of armed conflict, states may not invoke derogations or restrictions under the American Convention or other human rights instruments to justify any failure to afford persons the minimum due process and fair trial protections prescribed under Article 75 of Additional Protocol I or Article 6 of Additional Protocol II.

3. Rights to Due Process and to a Fair Trial and Terrorism

260. The foregoing overview of applicable law has several implications in the context of states’ efforts to respond to the threats of terrorism.

261. It first makes clear that most fundamental fair trial requirements cannot justifiably be suspended under either international human rights law or international humanitarian law. These protections therefore apply to the investigation, prosecution and punishment of crimes, including those relating to terrorism, regardless of whether such initiatives may be taken in time of peace or times of national emergency, including armed conflict, and include the following:

(a) The right to respect for fundamental principles of criminal law, including the non-bis-in-idem principle, the nullum crimen sine lege and nulla poena sine lege principles, the presumption of innocence, and the right not to be convicted of an offense except on the basis of individual penal responsibility. Of particular pertinence in the context of terrorism, these principles demand that any laws that purport to proscribe conduct relating to terrorism be classified and described in precise and unambiguous language that narrowly defines the punishable offense, and accordingly require a clear definition of the criminalized conduct establishing its elements and the factors that distinguish it from behaviors that are not punishable or involve distinct forms of punishment. Ambiguities in laws proscribing terrorism not only undermine the propriety of criminal processes that enforce those laws, but may also have serious implications beyond criminal liability and punishment, such as the denial of refugee status.[638]

As indicated above, the Commission and the Court have previously found certain domestic anti-terrorism laws to violate the principle of legality because, for example, they have attempted to prescribe a comprehensive definition of terrorism that is inexorably overbroad and imprecise, or have legislated variations on the crime of “treason” that denaturalizes the meaning of that offense and creates imprecision and ambiguities in distinguishing between these various offenses. Whether states choose to prescribe a specific crime of terrorism based upon commonly-identified characteristics of terrorist violence or vary existing and well-defined common crimes, such as murder, by adding a terrorist intent or variations in punishment that will reflect the particular heinous nature of terrorist violence, they should be guided by the basic principles articulated by the organs of the inter-American system on this issue. Member states are also encouraged to take the legislative or other measures necessary to provide judges with the authority to consider the circumstances of individual offenders and offenses when imposing sentences for terrorist crimes;

(b) The right to be tried by a competent, independent and impartial tribunal in conformity with applicable international standards. In respect of the prosecution of civilians, this requires trial by regularly constituted courts that are demonstrably independent from the other branches of government and comprised of judges with appropriate tenure and training, and generally prohibits the use of ad hoc, special, or military tribunals or commissions to try civilians. A state’s military courts may prosecute members of its own military for crimes relating the functions that the law assigns to military forces and, during international armed conflicts, may try privileged and unprivileged combatants, provided that the minimum requirements of due process are guaranteed. Military courts may not, however, prosecute human rights violations or other crimes unrelated to military functions, which must be tried by civilian tribunals. This right also prohibits the use of secret or faceless judicial procedures, subject, however, to appropriate measures that may be taken to protect judges, lawyers, witnesses and other officials involved in the administration of justice from threats to their lives or physical integrity;

(c) The right to due procedural guarantees, including the rights of an accused:

(i) To prior notification in detail of the charges against him or her;

(ii) To defend himself or herself personally and to have adequate time and means to prepare his or her defense, which necessarily includes the right to be assisted by legal counsel of his or her choosing or, in the case of indigent defendants the right to legal counsel free of charge where such assistance is necessary for a fair hearing. Giving proper effect to this right necessitates affording a detainee access to legal advice without delay after they have been made the subject of a criminal process, both to secure the immediate protection of non-derogable rights such as the right to humane treatment, and to preclude potential unfairness in any future legal processes that may be brought against the person through, for example, the interrogation of a detainee without counsel being present. Further, where the defendant does not understand or speak the language of the court or tribunal, he or she is entitled to be assisted without charge by a translator or interpreter;

(iii) Not to be compelled to be a witness against himself or herself or to plead guilty;

(iv) To examine witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as opposing witnesses;

(v) To be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal a judgment to a higher court.

262. It is also apparent that there are certain limited aspects of the right to due process of law and to a fair trial that might potentially be the subject of derogation in exceptional and bona fide emergency situations. In all instances this is subject to prevailing rules governing derogation discussed in Part II, namely that the suspension be effectuated only for such time and to the extent strictly required by the exigencies of the situation, that it not entail discrimination of any kind, that it be compatible with all of the state’s other obligations under international law, including international humanitarian law where applicable, and that the rule of law and supervision by the judiciary remains intact. Potentially derogable aspects of due process and fair trial protections include:

(a) The right to have criminal proceedings conducted in public, where restrictions on public access may be considered strictly necessary in the interests of justice and on a case by case basis. This may include measures to protect the life, physical integrity and independence of judges or other officials involved in the administration of justice where their lives or physical integrity are threatened, subject to such measures as are necessary to ensure a defendant’s non-derogable fair trial rights, including the right to challenge the competence, independence or impartiality of his or her prosecuting tribunal;

(b) The right to examine witnesses present in court where safety or other circumstances may necessarily require protecting the identity of the witness, subject to such measures as are necessary to ensure a defendant’s non-derogable fair trial rights, including the right to challenge the veracity of the witness’s evidence by alternative methods;

(c) The right to trial within a reasonable time, where a delay longer than would otherwise be applicable in non-emergency situations might be justifiable, provided that it is subject at all times to judicial review and in no case is prolonged or indefinite.

263. The protections applicable to proceedings for the determination of a person’s rights or obligations of a civil, labor, fiscal, or any other nature are discussed in further detail in Part III(H) below concerning the situation of migrant workers, asylum-seekers, refugees and other non-nationals.


E. Right to Freedom of Expression

1. International Human Rights Law

264. The right to freedom of expression is stated in broad terms in Article IV of the American Declaration of the Rights and Duties of Man[639] and Article 13 of the American Convention on Human Rights.[640] These instruments provide the following with respect to freedom of expression:

American Declaration

Article IV. Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.

American Convention

Article 13.1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.

2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

a. respect for the rights or reputations of others; or
b. the protection of national security, public order, or public health or morals.

3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.

4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.

5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

265. In order to aid the Commission in the interpretation of these two articles, the Office of the Special Rapporteur for Freedom of Expression of the IACHR developed the Declaration of Principles on Freedom of Expression.[641] The Declaration, approved by the Commission during its 108th period of sessions in October 2000, is a set of 13 principles detailing the requirements of freedom of expression according to international law and jurisprudence. Key provisions of the Declaration of Principles include:

2. Every person has the right to seek, receive and impart information and opinions freely under terms set forth in Article 13 of the American Convention on Human Rights. All people should be afforded equal opportunities to receive, seek and impart information by any means of communication without any discrimination for reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.

3. Every person has the right to access to information about himself or herself or his/her assets expeditiously and not onerously, whether it be contained in databases or public or private registries, and if necessary to update it, correct it and/or amend it.

4. Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.

5. Prior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law. Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression. [. . . ]

8. Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.

9. The murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression. It is the duty of the state to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation.

266. The right to freedom of expression is also protected in various other international human rights instruments, including Article 19 of the Universal Declaration of Human Rights,[642] Article 19 of the International Covenant on Civil and Political Rights,[643] and Article 10 of the European Convention on Human Rights.[644] A comparison of Article 13 of the American Convention with each of the foregoing provisions shows “the extremely high value that the Convention places on freedom of expression”[645] and that “the guarantees contained in the American Convention regarding freedom of expression were designed to be more generous and to reduce to a bare minimum restrictions impeding the free circulation of ideas.”[646]

267. Respect for and protection of freedom of expression plays a fundamental role in strengthening democracy and guaranteeing human rights by offering citizens an indispensable tool for informed participation. Weak public institutions, official corruption and other problems often prevent human rights violations from being brought to light and punished. In countries affected by such problems, the exercise of freedom of expression has become the main means by which illegal or abusive acts previously unnoticed, ignored or perpetrated by authorities are exposed. As the Inter-American Court of Human Rights stated:

[F]reedom of expression is a cornerstone upon which the very existence of a democratic society rests. . . . It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.[647]

268. The Inter-American Court has emphasized that there are two aspects to the right to freedom of expression: the right to express thoughts and ideas, and the right to receive them. Therefore, limitation of this right through arbitrary interference affects not only the individual right to express information and ideas, but also the right of the community as a whole to receive all types of information and opinions.[648]

269. The European Court of Human Rights, in a decision cited by the Inter-American Court and the Inter-American Commission, has declared that protection of freedom of expression must encompass not only favorable information or ideas, but also those that “offend, shock or disturb” because “[s]uch are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’”[649] Stifling unpopular or critical ideas and opinions restricts the debate that is essential to the effective functioning of democratic institutions.

270. The exercise of freedom of expression and information without discrimination by all sectors of society enables historically marginalized sectors to improve their conditions. The right to freedom of expression is also “essential for the development of knowledge and understanding among peoples, that will lead to a true tolerance and cooperation among the nations of the hemisphere[.]”[650]

271. As indicated in the introductory chapter on human rights of this report, freedom of expression is not included in the list of rights that are non-derogable in states of emergency in Article 27 of the American Convention. However, any restrictions on freedom of expression in the context of an emergency situation must conform to the requirements of proportionality, scope, and non-discrimination set forth in Article 27.[651] In imposing such restrictions on the right to freedom of expression, States should also bear in mind the importance of freedom of expression in guaranteeing other fundamental human rights.

a. Prior Censorship

272. Article 13 of the American Convention expressly prohibits prior censorship except for the regulation of access to public entertainments for the moral protection of childhood and adolescence.[652] The Inter-American Court has indicated that prior censorship constitutes an extreme violation of the right to freedom of expression because "governmental power is used for the express purpose of impeding the free circulation of information, ideas, opinions or news [. . . ] Here the violation is extreme not only in that it violates the right of each individual to express himself, but also because it impairs the right of each person to be well informed, and thus affects one of the fundamental prerequisites of a democratic society.”[653] As discussed in the section on freedom of expression and terrorism below, however, there could arise in an validly-declared state of emergency some situations in which national security or public order would permit limited censorship.

273. Notwithstanding the explicit exception regarding the protection of minors, measures designed to prevent the dissemination of expressions violate the American Convention.[654] As the Commission has stated:

The prohibition of prior censorship, with the exception present in paragraph 4 of Article 13, is absolute and is unique to the American Convention, as neither the European Convention nor the Covenant on Civil and Political Rights contains similar provisions. The fact that no other exception to this provision is provided is indicative of the importance that the authors of the Convention attached to the need to express and receive any kind of information, thoughts, opinions and ideas.[655]

b. Subsequent Liability

274. Article 13(2) of the American Convention, while explicitly prohibiting prior censorship,[656] allows for subsequent penalties to be applied under limited circumstances. Such penalties must be “expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals."[657]

275. The requirement that a subsequent penalty be “expressly established by law", also included in Article 10 of the European Convention on Human Rights, has been interpreted by the European Court of Human Rights to mean that the basis for subsequent liability must be “formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”[658] This does not mean that the subsequent penalty must specifically be provided for in legislation passed by the legislature; it may be contained in common law, administrative regulations or similar sources. It must, however, be reasonably precise and accessible to the public.[659]

276. Two of the possible justifications for subsequent liability for expressions are relevant to the context of fighting terrorism: public order and national security. “Public order" has been defined by the Inter-American Court of Human Rights “as a reference to the conditions that assure the normal and harmonious functioning of institutions based on a coherent system of values and principles.”[660] The Court has also stated that:

[T]hat same concept of public order in a democratic society requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole. Freedom of expression constitutes the primary and basic element of the public order of a democratic society, which is not conceivable without free debate and the possibility that dissenting voices be fully heard.[661]

277. Subsequent liability can be based on “national security” if "its genuine purpose or demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government."[662] The application of the concepts of public order and national security in practice will be discussed further in the section on the right to freedom of expression and terrorism.

278. With respect to the requirement of "necessity," the Inter-American Court of Human Rights has interpreted this to mean that a subsequent penalty is more than just "useful," "reasonable" or "desirable."[663] Rather, the government must show that such a penalty is the least restrictive of possible means to achieve the government's compelling interest.[664] The penalty "must be justified by reference to governmental objectives which, because of their importance, clearly outweigh the social need for the full enjoyment of the right Article 13 guarantees."[665] Moreover, the provision "must be so framed so as not to limit the right protected by Article 13 more than is necessary. . . . [T]he restriction must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it."[666] This is an extremely high standard and any provisions imposing subsequent liability for the exercise of freedom of expression must be carefully examined using this proportionality test in order to prevent undue limitations of this fundamental right.

c. Confidentiality of Sources

279. Freedom of expression is understood as encompassing the right of journalists to maintain the confidentiality of their sources. It is the social communicator’s right not to reveal information or documentation that has been received in confidence or in the course of research. Professional confidentiality allows journalists to assure sources that they will remain anonymous, reducing fears they may have of reprisals for disclosing information. As a result, journalists are able to provide the important public service of collecting and disseminating information that would not be made known without protecting the confidentiality of the sources. Confidentiality, therefore, is an essential element of the work of the journalist and of the role society has conferred upon journalists to report on matters of public interest.[667] The European Court of Human Rights has recognized the importance of the protection of journalistic sources as "one of the basic conditions for press freedom [.]"[668] The European Court stated:

Without such protection, sources may be deterred from assisting the press in informing the public in matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 (Article 10) of the Convention unless it is justified by an overriding requirement in the public interest.[669]

280. The Inter-American Commission on Human Rights has also indicated that the protection of sources is a part of the general guarantee of press freedom when it approved the Declaration of Principles on Freedom of Expression.[670] It should be emphasized that this right does not constitute a duty, as the social communicator does not have the obligation to protect the confidentiality of information sources, except for reasons of professional conduct and ethics.[671]

d. Access to Information

281. As stated earlier, the right to freedom of expression includes both the right to disseminate and the right to seek and receive ideas and information. Based on this principle, access to information held by the State is a fundamental right of individuals and States have the obligation to guarantee it.[672] In terms of the specific objective of this right, it is understood that individuals have a right to request documentation and information held in public archives or processed by the State, in other words, information considered to be from a public source or official government documentation.

282. "To guarantee freedom of expression without including freedom of information would be a formal exercise, denying both effective expression in practice and a key goal which free expression seeks to serve."[673] The right to freedom of information is closely related to the principle of transparency in the administration of government activities. In a democracy, the State is a vehicle for ensuring the common good, deriving its powers from the consent of the governed. In this context, the owner of the information about public administration is the individual who has delegated the management of public affairs to his or her representatives. The principle of transparency requires governments to play the role of service-provider, furnishing all duly requested information that has not been temporarily classified as exempt from the exercise of this right.[674]

283. Without the information that every person is entitled to, it is clearly impossible to exercise freedom of expression as an effective vehicle for civic participation or democratic oversight of government management. Lack of effective oversight “gives rise to conduct that runs counter to the essence of a democratic State and opens a door to wrongdoing and unacceptable abuses.”[675]

284. As a fundamental component of the right to freedom of expression, access to information must be governed by the "principle of maximum disclosure."[676] In other words, the presumption should be that information will be disclosed by the government. Specifically, as noted in the chapter on the right to personal liberty and security, information regarding individuals arrested or detained should be available to family members, counsel and other persons with a legitimate interest in such information.[677]

285. Limited restrictions on disclosure, based on the same criteria that allow sanctions to be applied under Article 13, may be included in the law. The burden of proof is on the State to show that limitations on access to information are compatible with the inter-American standards on freedom of expression.[678] As in the case of subsequent restrictions on expressions, the most often-invoked rationales for limiting access to information in the context of fighting terrorism will be public order and national security. The specific content of such restrictions will be discussed in the section of this chapter on freedom of expression and terrorism.

286. The restrictions must be expressly defined in the law and "necessary to ensure:

a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals."[679] This means that not only must the restriction relate to one of these aims, it must also be shown that the disclosure threatens "to cause substantial harm to that aim"[680] and that "the harm to the aim must be greater than the public interest in having the information."[681] This is essentially the proportionality test enunciated above in the section on subsequent liability for expressions. Whenever information is denied based on the foregoing analysis, an opportunity for independent review of the decision should be provided.[682]

287. An additional aspect of the right to access to information is "a presumption that all meetings of governing bodies are open to the public."[683] This presumption is applicable to any meeting in which decision-making powers are exercised, including administrative proceedings, court hearings, and legislative proceedings.[684] Any limitations on openness of meetings should be subject to the same requirements as the withholding of information.[685]

288. Finally, the Johannesburg Principles on National Security, Freedom of Expression and Access to Information,[686] which the Commission, like other international authorities, considers to provide authoritative guidance for interpreting and applying the right to freedom of expression in light of considerations of national security,[687] confirm that access to information dictates that "[a]ny restriction on the free flow of information may not be of such a nature as to thwart the purposes of human rights and humanitarian law. In particular, governments may not prevent journalists or representatives of intergovernmental or non-governmental organizations with a mandate to monitor adherence to human rights or humanitarian standards from entering areas where there are reasonable grounds to believe that violations of human rights or humanitarian law are being, or have been, committed."[688] Access to information also dictates that journalists have access to conflict areas, disaster sites and other such locations unless to give them such access would pose a "clear risk to the safety of others."[689]

e. Habeas Data

289. In addition to the general right to access to information in the hands of the government, every person has the right to access to information about himself or herself, whether this is in the possession of a government or private entity.[690] Often called the right to habeas data, this right includes the right to modify, remove, or correct such information due to its sensitive,[691] erroneous, biased, or discriminatory nature.[692] The right to access to and control over personal information is essential in many areas of life, since the lack of legal mechanisms for the correction, updating or removal of information can have a direct impact on the right to privacy, honor, personal identity, property, and accountability in information gathering.[693]

290. In recent years, recourse to the action of habeas data has become a fundamental instrument for investigation into human rights violations committed during past military dictatorships in the Hemisphere. Family members of disappeared persons have used habeas data actions to obtain information concerning government conduct, to learn the fate of disappeared persons, and to exact accountability. Thus, these actions constitute an important means to guarantee the "right to truth."[694]

291. With respect to the relationship between the right to the truth and Article 13(1) of the American Convention, the Inter-American Commission on Human Rights argued before the Inter-American Court in the Barrios Altos case that:

[T]he right to truth is founded in Articles 8 and 25 of the Convention, insofar as they are both “instrumental” in the judicial establishment of the facts and circumstances that surrounded the violation of a fundamental right. It also indicated that this right has its roots in Article 13(1) of the Convention, because that article recognizes the right to seek and receive information. With regard to that article, the Commission added that the State has the positive obligation to guarantee essential information to preserve the rights of the victims, to ensure transparency in public administration and the protection of human rights..[695]

292. In addition, the action of habeas data imposes certain obligations for entities that process information: the obligation to use the data for specific, explicitly stated objectives, and the obligation to guarantee the security of the data against accidental, unauthorized access or manipulation. In cases where entities of the state or the private sector obtain data improperly and/or illegally, the petitioner must have access to that information, even when classified, so that individuals have control over data that affects them. The action of habeas data as a mechanism for ensuring the accountability of security and intelligence agencies within this context provides a means to verify that personal data has been gathered legally. The action of habeas data entitles the injured party, or his family members, to ascertain the purpose for which the data was collected and, if collected illegally, to determine whether the responsible parties are punishable. Public disclosure of illegal practices in the collection of personal data can have the effect of preventing such practices by these agencies in the future.[696]

293. In order for the action of habeas data to be effective, the administrative hurdles that complicate or frustrate the obtention of information must be eliminated, and simple, easily accessible systems enabling individuals to request information inexpensively must be put in place. The result, otherwise, would be to establish a formal mechanism that, in practice, would not facilitate access to information.

294. As in the case of access to information generally, any restrictions preventing the exercise of the right to habeas data must meet the standards of necessity and proportionality.[697] Under most circumstances, individuals exercising the action of habeas data should not be required to indicate why the information is being requested. The mere existence of personal data in public or private records is ordinarily a sufficient reason in itself for the exercise of this right.[698]

295. The habeas data writ has acquired even greater significance with the emergence of new technologies. Widespread use of computers and the Internet has meant that the State and private sector can gain rapid access to a considerable amount of information about people. It is therefore necessary to ensure that there are specific channels for rapid access to information that can be used to correct or modify any incorrect or outdated information contained in electronic databases.

2. International Humanitarian Law

a. Protection of Journalists and Media Installations During Armed Conflict

300. The following section will discuss the rules applicable under international humanitarian law that pertain to journalists and media installations, principally in connection with the protections applicable to civilians and civilian objects. Most of these protections, in particular those dealing with the principle of distinction, are applicable to situations of both international and non-international armed conflicts.[707]

301. Under the rules and principles of international humanitarian law, applicable in both international and non-international armed conflicts, journalists are considered to be civilians and are entitled to the rights that this status implies, including those analyzed in other sections of this report.[708] Journalists retain this civilian status so long as they “take no action adversely affecting their status as civilians.”[709] Those journalists who serve as war correspondents accredited to a particular armed force in an international armed conflict are entitled to prisoner of war status if they fall under the power of the enemy.[710] Any other journalist who is captured by an enemy power may only be detained if criminal proceedings are to be instituted against him or her or if imperative reasons of security justify internment.[711] The status of journalists with respect to internal armed conflict is not explicitly defined,[712] however, journalists should be considered civilians in this type of conflict as well, so long as they do not engage in acts of hostility or participate directly in hostilities.[713] It should be emphasized that the dissemination of information or the expression of opinions in favor or in disfavor of a party involved in the conflict cannot be considered as hostile acts and cannot render the person expressing such views or opinions a legitimate military objective.[714]

302. Of course, journalists often assume risks that ordinary civilians do not, by virtue of their profession. According to Hans Peter Gasser, “[a] journalist may [...] lose, not his right to protection as a civilian, but de facto protection if he stays too close to a military unit [...] since that unit is a lawful target of enemy attack (unless the proportionality rule prohibits the attack – Article 51, par. 5 (b)). He thus acts at his own risk. The same applies to journalists who approach military targets.”[715] The important point is that although journalists do not benefit from protections over and above those granted to ordinary civilians, they must never be the direct object of an attack, so long as engaged in vocational activities, in accordance with the principle of distinction.[716]


303. Media installations, such as television and radio stations, may be entitled to protection as civilian objects under international humanitarian law.[717] Parties to a conflict are required to distinguish between civilian objects, which may not be attacked, and military objectives, which may be.[718] Civilian objects are “all objects which are not military objectives,” as defined by Article 52, paragraph 2 of Protocol I. Military objectives are those that “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”[719] Objects which are normally considered “civilian objects” may become legitimate military objectives if they are “being used to make an effective contribution to military action;”[720] however, in case of doubt about such use, it must be presumed that it is not being so used.[721] While media installations are not specifically mentioned as civilian objects, they should generally be considered as such, since their nature and location is generally not military-related, and since they are generally not used for military purposes or to make an effective contribution to the military action. However, if media installations are used as part of a command and control or other military function, they may become legitimate military targets subject to direct attacks.

b. Right to Know Fate of Relatives

304. Another aspect of international humanitarian law that relates to the right to freedom of expression in international armed conflicts, in particular the right to information, is the right of families to know the fate of their relatives.[722] Under Article 122 of the Third Geneva Convention, each Party to a conflict, as well as each neutral or non-belligerent power receiving such persons in its territory, must establish an official Information Bureau for prisoners of war in its power. This Bureau is charged with gathering information regarding "transfers, releases, repatriations, escapes, admissions to hospital, and deaths" of prisoners of war and answering inquiries concerning prisoners of war.[723] In addition, a Central Prisoners of War Information Agency must be established in a neutral country to facilitate the transfer of information about prisoners of war to their home countries.[724] In cases of death of prisoners of war, Article 120 of the Third Geneva Convention provides for specific procedures to be followed regarding preparation of the death certificate, forwarding of the information to the Prisoner of War Information Bureau, medical examination of the body, and proper burial. The Detaining Power must establish a Graves Registration Service so that graves may be found.[725] The Fourth Geneva Convention contains similar requirements with respect to maintaining information concerning the fate of civilians interned in the course of armed conflict.[726]

305. Under Article 33 of Protocol I, Parties to a conflict have the duty to “search for the persons who have been reported missing by an adverse Party” and to hand over information obtained about such persons to an agency of the International Committee of the Red Cross, a national Red Cross agency, or the Protecting Power.[727] Parties also have the responsibility of gathering information about individuals who have been held in captivity or who have died during or as a result of the hostilities, to facilitate the process of answering requests for information.[728] Additionally, the Parties to a conflict must “endeavour to agree on arrangements for teams to search for, identify and recover the dead from battlefield areas, including arrangements, if appropriate, for such teams to be accompanied by personnel of the adverse Party while carrying out these missions in areas controlled by the adverse Party.”[729] Finally, Additional Protocol I contains a provision requiring the establishment of an International Fact-Finding Commission to "enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol[.]"[730] The foregoing rights and responsibilities complement and reinforce in times of war the "right to truth" under human rights law, described earlier.

c. Right to Send and Receive Information

306. In international armed conflicts, prisoners of war have the right to write to their families immediately after capture and inform them of their "capture, address and state of health"[731] and to send and receive cards and letters.[732] These cards and letters may be limited in number if it is deemed necessary, but may not be limited to fewer than two letters and four cards monthly, not including the "capture card."[733] The detaining power may censor communications.[734] In cases in which written communication is not feasible due to distance or other problems, prisoners of war must be permitted to send telegrams.[735] Interned individuals have similar rights to communicate with family members.[736] Additionally, the Fourth Geneva Convention provides for the right of "[a]ll persons in the territory of a Party to the conflict, or in a territory occupied by it" to correspond with family members[737] and requires Parties to the conflict to facilitate communications between family members dispersed as a result of the war.[738] This is subject to limited circumstances in which protected persons detained in occupied territory may properly be regarded as forfeiting their rights of communication under the Fourth Geneva Convention.[739] These rights promote certain objectives similar to those promoted by the “right to truth" by providing relatives with means by which to receive information about the fate of family members.

307. Prisoners of war also have the right to receive "articles of a religious, educational or recreational character which may meet their needs, including books, devotional articles, scientific equipment, examination papers . . . and materials allowing prisoners of war to pursue their studies or their cultural activities."[740] This right is also protected in the case of interned persons.[741]

308. Finally, prisoners of war have the right to make known to their captors or to the Protecting Power requests and complaints about the conditions of their captivity.[742] These communications are not to be "considered to be a part of the correspondence quota referred to in Article 71."[743] Moreover, even if such requests or complaints are determined to be unfounded, "they may not give rise to any punishment."[744] Prisoners of war are also entitled to have representatives selected from among their members, who represent them "before the military authorities, the Protecting Powers, the International Committee of the Red Cross and any other organizations which may assist them."[745] These representatives may also "send periodic reports on the situation in the camps and the needs of the prisoners of war to the representatives of the Protecting Powers."[746] Interned individuals also have the right to present petitions to the detaining authorities regarding their conditions of internment, without fear of reprisal[747] and are entitled to select the members of an Internee Committee to represent their interests before the Detaining and Protecting Powers.[748] Such rights complement and reinforce the function of freedom of expression in that they serve to allow oversight of the activities of the parties to a conflict for the protection of individuals' rights.

3. The Right to Freedom of Expression and Terrorism

309. Terrorism is a serious problem affecting public order and in some cases, national security. Therefore, some subsequent limitations on freedom of expression or access to information related to fighting terrorism may be justified as measures that are necessary to protect the public order or national security. Such measures must satisfy the strict test required by Article 13(2), set forth earlier in this chapter.[749]

310. As has been reiterated throughout this report, the human rights guarantees found in the American Convention, the American Declaration and other international instruments apply fully in the context of addressing terrorism unless there is a legally declared state of emergency and the right limited is a derogable right. Again, although the right to freedom of expression is a derogable right in states of emergency, States considering suspending any aspect of this right should always bear in mind the importance of freedom of expression for the functioning of democracy and guaranteeing other fundamental rights.

311. Among the restrictions of freedom of expression that states are likely to impose in the context of fighting terrorism are prior censorship of publications related to terrorist activity or anti-terrorism strategies, subsequent liability for publication or dissemination of information or opinions related to such issues, withholding by the government of information related to such issues, restrictions on access to hearings and other governmental meetings on terrorism-related issues, and limitations on the right of journalists to protect their sources in order to assist law enforcement efforts. Such restrictions may or may not be compatible with Article 13 of the American Convention. Particularly in the case of prior censorship, compatibility with Article 13 will depend on whether or not a lawfully declared state of emergency exists.


F. The Obligation to Respect and Ensure, Non-Discrimination and the Right to Judicial Protection

1. International Human Rights Law

334. As with all international commitments, states are bound to perform their international human rights obligations in good faith.[796] This includes conducting themselves so as to respect and to ensure to all persons subject to their jurisdiction the free and full exercise of human rights without discrimination of any kind.[797] As discussed in previous sections of this report addressing the right to personal liberty and security[798] and the right to due process and to a fair trial,[799] the availability of simple and prompt access to the courts is essential to ensuring respect for rights under domestic and international law. According to the Inter-American Court of Human Rights,

the right of every person to simple and rapid remedy or to any other effective remedy before the competent judges or courts, is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society in the terms of the Convention.”[800]

335. The principle of non-discrimination is a particularly significant protection that permeates the guarantee of all other rights and freedoms under domestic and international law and is prescribed in Article II of the American Declaration and Articles 1(1) and 24 of the American Convention:

American Declaration

Article II. All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.


American Convention

Article 1.1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

Article 24. All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.

336. The Inter-American Court has stated in respect of the right to non-discrimination under the American Convention that Articles 24 and 1(1) are conceptually distinct,[801] but at the same time that the notion of equality common to these provisions

[s]prings directly from the oneness of the human family and is linked to the essential dignity of the individual. That principle cannot be reconciled with the notion that a given group has the right to privileged treatment because of its perceived superiority. It is equally irreconcilable with that notion to characterize a group as inferior and treat it with hostility or otherwise subject it to discrimination in the enjoyment of rights which are accorded to others not so classified. It is impermissible to subject human beings to differences that are inconsistent with their unique and congenerous character. [802]

337. In the same spirit, the UN Human Rights Committee has defined the term “discrimination” under the ICCPR as implying

any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.[803]

338. While the doctrine of the inter-American human rights system, like that of other human rights regimes, does not prohibit all distinctions in treatment in the enjoyment of protected rights and freedoms, it requires at base that any permissible distinctions be based upon objective and reasonable justification, that they further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and that the means are reasonable and proportionate to the end sought.[804] Distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments are subject to a particularly strict level of scrutiny whereby states must provide an especially weighty interest and compelling justification for the distinction.[805] The principle of equality may also sometimes require member states to take affirmative action as a temporary measure in order to diminish or eliminate conditions which cause or help to perpetuate discrimination, including vulnerabilities, disadvantages or threats encountered by particular groups such as minorities and women.[806]

339. The obligation to respect and ensure human rights without discrimination and the right to judicial protection are also reflected in several provisions of the American Declaration and the American Convention, including the following:

American Declaration

Article XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.

Article XXIV. Every person has the right to submit respectful petitions to any competent authority, for reasons of either general or private interest, and the right to obtain a prompt decision thereon

American Convention

Article 1.1 The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

2. For the purposes of this Convention, "person" means every human being.

Article 2. Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.

Article 3. Every person has the right to recognition as a person before the law.

Article 25.1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.

2. The States Parties undertake:

a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;

b. to develop the possibilities of judicial remedy; and

c. to ensure that the competent authorities shall enforce such remedies when granted.

340. According to these provisions, not only do states have the paramount responsibility to conduct themselves so as to ensure the free and full exercise of human rights,[807] but also an implicit duty to organize the governmental apparatus and all the structures through which public power is exercised so that they are capable of juridically ensuring the free and full enjoyment of those human rights.[808] In this sense, the availability of recourse to an effective and independent legal system to evaluate and enforce these obligations serves as a crucial fortification for the protection of human rights. These commitments also require that states use the means at their disposal to prevent human rights violations and to provide effective remedies for any violations that do occur, including undertaking thorough and effective investigations capable of identifying and punishing persons responsible for human rights infringements.[809] In this respect, the Inter-American Court has recognized an inherent interconnection between member states’ duties to respect, ensure, and give effect to human rights and to provide effective judicial protection for rights in accordance with the requirements of due process, as provided for in Article 1(1), 8 and 25 of the American Convention.[810]

341. The availability of prompt and effective access to courts in turn necessitates recognition of the right to legal personality and to be recognized as a person before the law. Moreover, the requirement of judicial protection, when taken together with the right to due process and a fair trial, may necessitate the provision of legal assistance free of charge to pursue such remedies where the interests of justice so require. Factors pertinent to this determination include the resources available to the person concerned, the complexity of the issues involved, and the significance of the rights involved.[811]

342. The obligation to respect and ensure the full and free exercise of human rights must also be discharged without discrimination of any kind, as defined above.[812]

343. It must also be emphasized that the requirement that states respect and ensure fundamental human rights through judicial protection without discrimination is non-derogable. As discussed in Part II(B) of this report, the declaration of a state of emergency, whatever its breadth, cannot entail the suppression or ineffectiveness of the judicial guarantees that states are required to establish for the protection of the rights not subject to derogation or suspension by the state of emergency.[813] Moreover, the right to juridical personality is counted among the rights from which no derogation is permitted under Article 27(2) of the American Convention, and the authority of states to suspend guarantees under Article 27(1) of the Convention is expressly limited so as to prohibit discrimination. This means that even if a state takes legitimate measures of derogation in accordance with Article 27(1) of the Convention, the measures can never discriminate on the grounds mentioned under that article. For these reasons, then, the right to judicial protection, and with it the obligation to respect and ensure fundamental human rights without discrimination, may not be suspended under any circumstances.

2. International Humanitarian Law

344. The obligation of states to respect and ensure individual rights under international law has also played a longstanding and crucial role in securing observance of the protections under international humanitarian law. Article 1 common to the four Geneva Conventions constitutes a predominant and absolute codification of this principle, providing that

[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.[814]

345. This provision clarifies that the responsibilities undertaken by states parties to the treaties amount to more than arrangements agreed upon on the basis of reciprocity, but rather constitute “a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties.”[815] The general obligation to respect and ensure respect under common Article 1 is supplemented by provisions under Articles 16 of the Third Geneva Convention and Article 13 of the Fourth Geneva Convention requiring that the protections of the treaties be afforded without any adverse distinction based upon such factors as race, nationality, religion or political opinion. It is also augmented by the grave breach provisions of the Geneva Conventions and Additional Protocol I, including Article 129 of the Third Geneva Convention, Article 146 of the Fourth Geneva Convention, and Article 85 of Additional Protocol I, which require states parties, inter alia, to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed any grave breaches as defined in the treaties, and to “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” In the case of Additional Protocol II, Article 2 of that instrument provides more generally that “[t]his Protocol shall be applied without any adverse distinction founded on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria (hereinafter referred to as “adverse distinction”) to all persons affected by an armed conflict as defined in Article 1.”

346. As with international human rights law, there are aspects of international humanitarian law that preserve the civil capacities of protected persons, and that mandate access to judicial remedies in certain circumstances. Article 14 of the Third Geneva Convention and Article 80 of the Fourth Geneva Convention provide, respectively, that prisoners of war and civilian internees shall retain their full civil capacity which, in the case of the exercise of the rights such capacity confers, may not be restricted by a Detaining Power except in so far as the captivity or internment requires. These provisions ensure that prisoners of war or internees are able to exercise their rights both in the country of detention or internment and, particularly in the case of prisoners of war, in his or her country of origin or domicile.[816]

347. With regard to recourse to competent courts or tribunals, certain provisions of the Third and Fourth Geneva Conventions and Additional Protocol I prescribe specific review mechanisms that must be made available to persons protected under these treaties under certain circumstances. These include:

a “competent tribunal” under Article 5 of the Third Geneva Convention and Article 45(1) of Additional Protocol I to determine the status of a person who has committed a belligerent act and has fallen into the hands of the enemy, when that person’s inclusion in any of the categories of prisoners of war under Article 4 of the Third Geneva Convention is in doubt

an “appropriate court or administrative board” under Article 43 of the Fourth Geneva Convention, to reconsider, as soon as possible and thereafter periodically, a decision to place persons protected under the Fourth Geneva Convention in internment or assigned residence in the territory of a party to the conflict

a “right of appeal” under Article 78 of the Fourth Geneva Convention in respect of a decision by an Occupying Power to subject protected persons to assigned residence or to internment

a “judicial tribunal” under Article 45(2) of Additional Protocol I to adjudicate the entitlement to prisoner of war status of a person who has taken part in hostilities and has fallen into the hands of the enemy, is not held as a prisoner of war, and is to be tried by that Party for an offense arising out of the hostilities

348. These mechanisms are in addition to the requirements under international humanitarian law, canvassed in Section III(D) on the right to due process and to a fair trial, of a competent, independent and impartial tribunal as defined by applicable international standards in the case of persons who are prosecuted and punished for criminal offenses in the context of armed conflict.[817]

349. As with all fundamental protections under international humanitarian law, the obligations of states to respect and ensure respect for the rights and protections under international humanitarian law in situations of armed conflict, including by way of the mechanisms outlined above, do not permit any derogation.[818]

3. The Obligation to Respect and Ensure without Discrimination, the Right to Judicial Protection, and Terrorism

350. Of paramount importance in clarifying the role and application of international human rights protection in the context of terrorist threats is recognition of the fundamental premise that states are bound to respect and ensure respect for their human rights obligations in good faith at all times, and that these obligations must inform the manner in which states respond to terrorist threats. Even in respect of rights that may be the subject of limitation or derogation, states must comply strictly with the conditions regulating the permissibility of such limitations or derogations, which in turn are based upon the fundamental principles of necessity, proportionality and non-discrimination.

351. Also non-derogable under international human rights law and international humanitarian law is the requirement that states fulfill their obligations without discrimination of any kind, including discrimination based upon religion, political or other opinion or national or social origin. This applies not only to a state’s commitment to respect and ensure respect for fundamental rights in the context of terrorist threats, but also limits the measures that states may take in derogating from rights that may properly be suspended in times of emergency by prohibiting any such measures that involve discrimination on such grounds as race, color, sex, language, religion, or social origin. The principle of non-discrimination also applies to all aspects of a state’s treatment of individuals in connection with anti-terrorist initiatives, including their treatment when in detention.

352. Intimately connected with the obligation to respect and ensure fundamental human rights is the availability of simple and prompt recourse to competent courts or tribunals to secure the protection of those rights. This obligation is particularly pertinent in the case of detainees owing to their vulnerable status as being entirely within the power and control of the State. While the nature of the courts or tribunals may vary, depending in particular upon the applicability of international humanitarian law as the lex specialis in situations of armed conflict,[819] the availability of recourse to judicial protection to persons affected by anti-terrorist initiatives cannot be suspended insofar as they are necessary for the protection of the rights not subject to derogation in times of emergency.

353. While these requirements must inform the development and execution of all anti-terrorist initiatives undertaken by member states, the Commission considers that the basic rules governing respect for fundamental human rights without discrimination may have implications for particular measures adopted by states in connection with terrorist threats that warrant further discussion. These measures include the manner in which states detain or otherwise restrict the liberty of individuals in connection with terrorist threats and certain methods of investigation employed by law enforcement authorities. In particular, law enforcement agencies might engage in practices contrary to the prohibition against discrimination in their efforts to investigate terrorism-related crimes by, for example, engaging in a pattern or practice of using prohibited bases of discrimination as the grounds for selecting targets of investigation. This particular practice is sometimes referred to as “profiling.”[820]

Past uses of profiling in the context of domestic law enforcement have been known to incorporate a variety of characteristics including race and national origin.[821] In light of the significant risk that investigative methods of this nature are on their face discriminatory or may be utilized in a discriminatory manner,[822] the Commission considers that any use of profiling or similar devices by a state must comply strictly with international principles governing necessity, proportionality and non-discrimination and must be subject to close judicial scrutiny. As mentioned previously, distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments are subject to a particularly strict level of scrutiny whereby states must provide an especially weighty interest and compelling justification for the distinction.[823]

354. As highlighted in previous sections of this report, in circumstances where states detain individuals for reasons relating to a terrorist threat, whether for administrative or preventative reasons, the laws authorizing the detention cannot be applied so as to target individuals based upon a prohibited ground of discrimination. Further, with the exception of privileged and unprivileged combatants and other victims in international armed conflict, whose detention is governed by specific rules and principles under international humanitarian law, the legality and propriety of a person’s detention must always be subject to immediate and, thereafter, periodic independent review of an appropriate court or tribunal.[824]

While the particular requirements of the review process may vary depending upon the circumstances of a particular case, in all instances minimum standards of human rights law require that detention review proceedings comply with the rules of procedural fairness. These rules include the requirements that the decision-maker meets prevailing standards of impartiality, that the detainee is given an opportunity to present evidence and to know and meet the claims of the opposing party, and that the detainee be given an opportunity to be represented by counsel or other representative. In circumstances in which an individual is the subject of criminal proceedings relating to terrorism, under all circumstances, including those involving armed conflict,[825] he or she may only be tried by a competent, independent and impartial tribunal previously established by law and respecting the generally recognized principles of regular judicial procedure.[826] Once an unfavorable decision is rendered at first instance, the right to appeal that judgment to a higher court must also be granted in compliance with fundamental fair trial protections.[827]

355. The Commission recognizes in this connection that the effective investigation of terrorist crimes may, owing to their ideological motivation and the collective means by which they are carried out, necessitate the investigation of individuals or groups who are connected with particular political, ideological or religious movements or, in the case of state-sponsored terrorism, the governments of certain states.[828] The Commission must also emphasize, however, that anti-terrorist initiatives that incorporate criteria of this nature, in order not to contravene the absolute prohibition against discrimination, must be based upon objective and reasonable justification, in that they further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and that the means are reasonable and proportionate to the end sought. Distinctions based upon grounds expressly enumerated in the pertinent provisions of international human rights instruments are subject to an enhanced level of scrutiny, as described above.

356. This would require, for example, the existence of reasonable grounds connecting a particular group to terrorist activities before an individual’s association with that group might properly provide a basis for investigating him or her for terrorist-related crimes. Even then, the extent to which and the manner in which investigative methods of this nature are undertaken and the resulting information is collected, shared and utilized must be regulated in accordance with the principles of reasonableness and proportionality, taking into account, inter alia, the significance of the objective sought and the degree to which the state’s conduct may interfere with the person or persons concerned. As discussed in further detail in Parts III(E) and (G), considerations in this respect include implications for the right to privacy pertaining to the collection and use of personal information. States must therefore remain vigilant in ensuring that their laws and policies are not developed or applied in a manner that encourages or results in discrimination, and that their officials and agents, including military forces, conduct themselves fully in conformity with these rules and principles.


G. Other Fundamental Rights

357. The Commission has endeavored through this study to provide timely and focused guidance as to the protection of fundamental human rights by states in responding to terrorist threats. While the report has provided a detailed analysis of six of the core rights especially implicated by responses to terrorism, the impact of anti-terrorist initiatives may inevitably extend to other significant areas of international human rights law. Both historical experience and the nature and reach of modern terrorist threats suggest that the rights to freedom of assembly and of association, the right to freedom of conscience and religion, the right to property, the right to privacy and the right to participate in government may be particularly vulnerable to transgressions. In order to raise the consciousness of states to these additional aspects of the human rights implications of terrorism, an abbreviated discussion of several of these rights is provided below.

1. Rights to Freedom of Assembly, Association, and Conscience and Religion

358. As noted in Part II(B) concerning terrorism in the context of international law, modern terrorism has evolved to a significant extent through the activities of non-state actors composed and coordinated on a national and, increasingly, international basis, as well as through a growing network of links between such groups.[829] As a consequence, formal and informal associations of individuals that are suspected fora for the coordination and perpetration of terrorist activities may become the targets of investigation, surveillance and other forms of intervention by the state. This reality, together with the ideological basis upon which the work of such groups and associations may often be based, have potential implications for the right to freedom of assembly,[830] the right to freedom of association,[831] and, in the case of faith-based groups or organizations, the right to freedom of conscience and religion,[832] as well as other rights that may be intimately connected with these protections.[833]

359. In particular, the rights to freedom of assembly and of association have been broadly recognized as significant individual civil as well as political rights that protect against arbitrary interference by the state when persons choose to associate with others, and are fundamental to the existence and functioning of a democratic society.[834] The protection of such rights may entail not only the obligation of a state not to interfere with the exercise of the right of assembly and of association, but in certain circumstances may require positive measures on the part of the state to secure the effective exercise of the freedom, for example by protecting participants in a demonstration from physical violence by individuals who may hold opposite views.[835]

360. These rights may, by their terms, be restricted, but only strictly in accordance with certain conditions. In the case of the rights to freedom of assembly and of association, any limitations must be established by or in conformity with laws that are enacted by democratically elected and constitutionally legitimate bodies and are tied to the general welfare.[836] Such rights cannot be restricted at the sole discretion of governmental authorities.[837] Moreover, any such restriction must be in the interest of national security, public order, or to protect public health or morals or the rights or freedoms of others, and must be enacted only for reasons of general interest and in accordance with the purpose for which such restrictions have been established.[838] The restrictions must additionally be considered necessary in a “democratic society,” of which the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law are fundamental components.[839] Similarly, while the rights to freedom of assembly and of association are not designated to be non-derogable, any measures taken by states to suspend these rights must comply strictly with the rules and principles governing derogation including the principles of necessity and proportionality, as discussed in Part II(B).

361. The Inter-American Court of Human Rights has similarly specified that the right to freedom of conscience and religion is one of the foundations of a democratic society and that “[i]n its religious dimension, it constitutes a far-reaching element in the protection of the convictions of those who profess a religion and in their way of life.”[840] This right is also intimately connected with the right not to be subjected to discrimination of any kind, which includes discrimination based upon religious affiliation.[841] Similar to the rights to freedom of assembly and of association, any permissible restrictions placed upon the right to freedom of conscience and religion must be prescribed by law and must be necessary to protect public safety, order, health or morals, or the rights or freedoms of others.

362. Also notable in this connection is the fact that the right to freedom of conscience and religion is included among the non-derogable rights listed in Article 27(2) of the American Convention and therefore may not be suspended at any time, including times of war or other emergency. In this connection, international humanitarian law applicable in situations of armed conflict likewise recognizes the fundamental nature of the right to conscience and religion to persons protected under that law, having included protections in such fundamental provisions as Article 75(1) of Additional Protocol I and Article 4(1) of the Additional Protocol II. Both of these provisions mandate that persons falling under the terms of those treaties in the context of international or non-international armed conflicts are entitled to respect for their “person, honour, convictions and religious practices.”[842]

363. In the context of these rules and principles, the Commission considers it important to emphasize that measures to prevent and punish terrorism must be carefully tailored to recognize and guarantee due respect for these rights. This would generally prohibit states from, for example, banning participation in certain groups, absent evidence that clearly raised a threat to public safety or security sufficient to justify an extreme measure of this nature. These protections similarly require states to ensure that laws or methods of investigation and prosecution are not purposefully designed or implemented in a way that distinguishes to their detriment members of a group based upon a prohibited ground of discrimination, such as religious beliefs, and to guarantee that methods of this nature are closely monitored and controlled to ensure against human rights infringements.[843]

364. States must also guard against the possibility that interference by the state and its institutions with the exercise by persons of their rights to freedom of assembly, association and conscience and religion, and its failure to protect against such interference by non-state actors, may give rise to a chilling effect by which individuals are discouraged from expressing or otherwise exercising their rights in these areas.[844]

2. Rights to Property and Privacy

365. As observed in Part I(B) of this report, among the measures initiated by states to respond to the increased globalization of terrorist threats have been enhanced measures by states to trace and freeze funds and other financial or economic resources of persons implicated in terrorism or entities owned or controlled directly or indirectly by such persons, as well as the sharing of such information among authorities within and between states. Measures of this nature in turn have potential implications for the right to property and the right to privacy as prescribed in the American Declaration,[845] the American Convention[846] and other international human rights instruments.[847]

366. While identifying and obstructing the financial and other resources of terrorist groups has been widely recognized as an important strategy in impeding their operations,[848] the fact that the use and enjoyment of property is protected under numerous international human rights instruments must inform the development of strategies of this nature. Property has been defined by the Inter-American Court for the purposes of the American Convention on Human Rights to encompass those material things which can be possessed, as well as any right which may be part of a person’s patrimony; that concept includes all movables and immovables, corporeal and incorporeal elements and any other intangible object capable of having value.[849]

367. As with other fundamental rights, effective protection of the right to property necessitates ensuring that the right to use and enjoy property is given effect through legislative and other means, and that simple and prompt recourse is available to a competent court or tribunal for protection against acts that violate this right.[850] While the use and enjoyment of property may be subordinated to the interest of society, any measures of this nature may only be taken by law, and the propriety of such measures must, as with all rights protected in the Hemisphere, be guided by the just demands of the general welfare and the advancement of democracy.[851] Similarly, while persons may be deprived of their property by the state, this can only be done for reasons of public utility or social interest, and in the cases and according to the forms established by law, and require just compensation to be paid upon such deprivation.[852]

368. In this latter connection, the taking of property for reasons of public utility or social interest that gives rise to a duty to compensate should be distinguished from controls upon the use or enjoyment of property, including those arising in connection with criminal proceedings such as sequestration or confiscation. In the latter instance, while each case must be evaluated in its own circumstances in light of the principles of proportionality and necessity, restrictions on the use or enjoyment of property may well be necessary in the general interest, to effectively investigate and deter criminal activity and to ensure that the property does not provide criminal defendants with advantages to the detriment of the community at large. By their nature, these types of controls do not entail a duty to compensate.[853]

369. In the context of an armed conflict, international humanitarian law prescribes detailed provisions governing the treatment of property in international armed conflicts, the terms of which parallel in certain respects to human rights protections in this area. Article 18 of the Third Geneva Convention, for example, governs the treatment of the personal property of prisoners of war at the beginning of their captivity, Articles 58 to 68 of the Third Geneva Convention prescribe detailed provisions concerning the financial resources of prisoners of war, and Article 119 regulates the treatment of the property of prisoners of war in the context of their release and repatriation. Articles 97, 98 and 128 of the Fourth Geneva Convention similarly govern the entitlement of civilian internees to retain articles of personal use, to receive regular allowances, and to take with them their personal effects, correspondence and parcels in the event of their transfer. These provisions are supplemented by the general rule under international humanitarian law prohibiting the attack, destruction, removal or rendering useless of objects indispensable to the survival of the civilian populations such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.[854] Certain international humanitarian law instruments and provisions also specifically prohibit the targeting of cultural objects and places of worship.[855]

370. Compliance with these basic norms in the context of anti-terrorism initiatives has particular significance where it may be difficult to establish connections between personal assets and terrorist activities. While states may have some latitude in developing and implementing strategies that target assets believed to be used for or to have resulted from terrorist-related activities, any actions taken must be prescribed by law, have an objective and reasonable basis in fact or evidence, and be executed under judicial supervision. Proper controls are particularly important in circumstances where criminal charges, extradition, or other serious consequences for the individual concerned may arise out of property-related investigations.[856]

371. There may also be occasions in which interference by the state in a person’s property interests may implicate his or her right to privacy.[857] This may arise, for example, where the tracing or freezing of financial assets involves surveillance and data collection by the state respecting a person in the course of a criminal or other investigation or proceeding, as well as the possible exchange of personal information between law enforcement agencies, governments or other authorities in possession of such information. Advances in modern technology have rendered certain forms of communication, such as cellular telephones and electronic mail, particularly susceptible to improper surveillance by state authorities. It has been recognized in this regard that individuals may have vital privacy interests in personal information gathered by the state concerning their status or activities.[858] States are therefore required to conduct their initiatives in this regard in compliance with prevailing norms and principles governing the right to privacy. This encompasses ensuring that the collection and use of personal information, including any limitations upon the right of the person concerned to access that information, is clearly authorized by law so as to protect the person concerned against arbitrary or abusive interference with privacy interests, and accordingly that judicial supervision is available to guard against abuses of these legal requirements.[859]

3. Right to Participate in Government

372. Finally, in light of the central role that democratic principles and institutions play in the inter-American system, mention must be made of the right to participate in government, prescribed in both Article XX of the American Declaration[860] and Article 23 of the American Convention.[861] As this Commission has long recognized and as historical experience in this Hemisphere has demonstrated, governments derived from the will of the people, expressed in free elections, are those that provide the soundest guarantee that the basic human rights will be observed and respected.[862] So significant have OAS member states considered the right to representative government for the foundation of human rights protections that it is counted among those rights that may not be suspended, even in states of emergency.[863]

373. Under all circumstances, therefore, including during times of armed conflict, member states must ensure for their citizens the political rights and opportunities prescribed under the inter-American human rights instruments, subject only to such regulations that may be based upon age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings. Indeed, it is only through the protection of these rights that the effective protection through the rule of law of fundamental freedoms can be guaranteed. As the Inter-American Court of Human Rights has observed, “[i]n a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad. Each component thereof defines itself, complements and depends on the others for its meaning.“[864] Of particular pertinence to full and free participation in elections and other democratic activities, states should avoid legislation that broadly criminalizes the public defense (apologia) of terrorism or of persons who might have committed terrorist acts without requiring an additional showing of incitement to lawless violence or to any other similar action should be avoided.[865]

374. The rights and freedoms canvassed above are among the additional, though by no means exhaustive, human rights protections which may have significant implications for the means and methods employed by states against terrorism. The Commission wishes to emphasize in this respect the overriding significance of the principles of necessity, proportionality, humanity and non-discrimination in all circumstances in which states purport to place limitations on the fundamental rights and freedoms of persons under their authority and control.


H. Migrant Workers, Asylum Seekers, Refugees and other Non-Nationals

375. Among those persons most vulnerable to human rights violations in the development and execution of counter-terrorist measures are persons who find themselves in the territory of a state of which they are not nationals, including migrant workers, refugees and those seeking asylum from persecution. Experience indicates that states’ domestic and international initiatives in fighting terrorism often have a direct and negative impact on the rights and interests of non-nationals. For example, as part of their anti-terrorism strategies, states frequently use their immigration laws to arrest, detain and deport non-nationals, adopt new and more restrictive immigration control measures that further limit the conditions under which non-nationals may enter or remain in the states’ territory, and gather and share private information concerning non-nationals. Some of these measures arise from states’ commitments under multinational anti-terrorism instruments, which frequently address matters such as cooperation on border control, mutual legal assistance, and conditions for denying refugee status,[866] but which should not, as noted below, be interpreted or applied in a manner inconsistent with states’ human rights obligations.

376. In this context, the Commission considered it instructive to include a separate section in this report addressing several fundamental human rights as they pertain to non-nationals in the context of anti-terrorist strategies,[867] in particular the right to personal liberty and security, the right to humane treatment, the right to due process and to a fair trial, and the obligation to respect and ensure, non-discrimination and the right to judicial protection. This analysis should be considered to supplement the generally-applicable protections canvassed in the previous chapters of this report.

377. At the outset, the Commission wishes to emphasize the fact that OAS member states have undertaken through Article 15 of the Inter-American Convention Against Terrorism the obligation to ensure that the measures carried out by the states parties under that Convention shall take place with full respect for the rule of law, human rights, and fundamental freedoms, and that nothing in the Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, including international refugee law.[868] This provision is consistent with the Commission’s previous observation that, when interpreting and applying the provisions of inter-American human rights instruments, it is both appropriate and necessary to take into account member states’ obligations under other international treaties. These include instruments of particular pertinence to non-nationals, including the Vienna Convention on Consular Relations,[869] the UN Convention relating to the Status of Refugees[870] and its Additional Protocol,[871] and the International Convention on the Elimination of all Forms of Racial Discrimination.[872] Many of the norms and principles under these treaties also reflect and form part of developments in the corpus of international human rights law more broadly that are properly taken into account in evaluating states’ human rights obligations in the inter-American system.

1. Right to Personal Liberty and Security

378. As noted in Part III(B) above, this Commission, like other international human rights bodies, has recognized that the deprivation of an individual’s liberty may be justified in connection with the administration of state authority beyond the investigation and punishment of crimes where measures of this nature are strictly necessary. Such circumstances have been held to include, for example, detention in the context of controlling the entry and residence of non-nationals in a state’s territory and confinement for reasons relating to physical or mental health.[873] While deprivations of liberty may be permissible in situations of this nature, the Commission has emphasized that any such detention must in all circumstances comply with the requirements of preexisting domestic and international law. As described above, these include the requirement that the detention be based on the grounds and procedures clearly set forth in the constitution or other law and that it be demonstrably necessary, fair and non-arbitrary. Prolonged incommunicado detention is prohibited; rather, detention for any extended period must be subject to supervisory judicial control without delay and, in instances when the state has justified continuing detention, at reasonable intervals.[874]

379. Additionally, the Commission has stated that immigration legislation must recognize the right to liberty of non-nationals, subject, however, to the qualifications discussed below concerning situations of international armed conflict. The grounds and procedures by which non-nationals may be deprived of their liberty should define with sufficient detail the basis for such action, and the State should always bear the burden of justifying a detention. Moreover, authorities should have a very narrow and limited margin of discretion, and guarantees for the revision of the detention should be available at a minimum in reasonable intervals.[875]

380. In the case of asylum seekers in particular, the Commission notes that detention or other restrictions on the movement of asylum seekers are permitted only as exceptions under applicable refugee and human rights law, and then only pursuant to law and subject to due process protections.[876] Measures aimed at the automatic detention of asylum seekers are therefore impermissible under international refugee protections. They may also be considered arbitrary and, depending upon the characteristics of persons affected by any such restrictions, potentially discriminatory under international human rights law.

381. Where the arrest, commitment to prison or custody pending trial, or detention in any other manner of foreign nationals outside of situations of armed conflict is concerned, international jurisprudence, including that of the inter-American human rights system, has recognized the importance of compliance with international obligations aimed at protecting the particular interests of foreign nationals. These obligations include the requirements of Article 36 of the Vienna Convention on Consular Relations, which provides:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.[877]

382. These provisions have been described as establishing an interrelated regime designed to facilitate the implementation of the system of consular protection of foreign nationals in states party to the treaty.[878] Under this regime, a state party is obliged to inform foreign nationals who are detained in any manner by that state, whether criminal, administrative or otherwise, of their right to have the consulate of their state notified of the detainees’ circumstances and the detainee’s right to communicate with his or her consulate. In the realm of international human rights law, the right to consular notification has been recognized as significant to the due process and other rights of detainees by, for example, providing potential assistance with various defense measures such as legal representation, gathering of evidence in the country of origin, verifying the conditions under which the legal assistance is provided and observing the conditions under which the accused is being held while in prison.[879] Accordingly, the Commission considers compliance with the consular notification requirements under the Vienna Convention on Consular Relations to constitute a fundamental aspect of guaranteeing to non-nationals the right to personal liberty and security and, as discussed below, the right to due process and to a fair trial.

383. In the particular situation of international armed conflicts, however, it must be recognized that the regime of international humanitarian law governing such conflicts includes detailed provisions governing the detention of combatants, as discussed in Parts II(C) and III(B) above. These include, for example, mechanisms by which detailed information concerning prisoners of war is to be gathered and provided to the concerned parties to the conflict and to next of kin.[880] In the Commission’s view, therefore, this specialized regime should be referred to as the applicable lex specialis in interpreting and applying the right to personal liberty and security of detained combatants in situations of international armed conflict.

2. Right to Humane Treatment

384. The impact of anti-terrorist initiatives upon respect for the right to humane treatment also has particular implications for the situation of non-nationals. This is especially pertinent in securing the rights of persons seeking asylum, whose very status under international instruments is derived from the need for protection from persecution. The inter-American human rights instruments provide certain guarantees in this regard for asylum seekers:

American Declaration

Article XXVII. Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.

American Convention

Article 22.7. Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes. (8) In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.

385. These guarantees reflect those prescribed under the Convention relating to the Status of Refugees,[881] which has been ratified by most member states of the OAS,[882] and which has been supplemented by the 1967 Protocol relating to the Status of Refugees.[883] These treaties have been considered by the Commission in interpreting and applying corresponding provisions of inter-American human rights instruments.[884] The 1951 Refugee Convention and the 1967 Protocol provide for a definition of who is and is not a refugee, or has ceased to be a refugee, the legal status of a refugee and his or her rights and duties in the country of refuge, and matters relative to the implementation of the respective instruments.[885] Under the regime of the 1951 Convention modified by the 1967 Protocol, a refugee is a person who:

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,

is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;

or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it.[886]

386. As a general matter, Article 3 specifies that the provisions of this regime must be applied without discrimination as to "race, religion or country of origin." Further, judicial protection is to be available in principle through the "free access to the courts of law on the territory of all Contracting States" set forth in Article 16(1) of the 1951 Convention.[887]

387. The Refugee Convention defines three basic groups that, while otherwise meeting the foregoing criteria, are excluded from refugee status: persons already subject to UN protection or assistance; persons not considered in need of international protection due to having been accorded treatment equivalent to that of nationals by the country of residence; and persons deemed undeserving of international protection. The latter group includes persons with respect to whom there are "serious reasons for considering" that they have committed "a crime against peace, a war crime, or a crime against humanity," a "serious non-political crime outside the country of refuge prior to admission," or "acts contrary to the purposes and principles of the United Nations." [888]

388. With respect to persons accorded refugee status, the corresponding protections must be maintained unless or until they come within the terms of one of the "cessation clauses." The paramount obligation of States Parties in respect of those qualifying for refugee status is that of non-return (non-refoulement) set forth in Article 33(1) of the 1951 Convention:

No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.[889]

389. Article 33(2) of the 1951 Convention, however, specifies that this benefit may not "be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

390. In light of the above provisions, the Commission recognizes that persons with respect to whom there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity, a serious non-political crime outside the country of refuge prior to admission, or acts contrary to the purposes and principles of the United Nations[890] may be excluded from refugee status and that terrorism-related offenses could overlap with the above mentioned crimes.[891] Further, a person may not benefit from the non-refoulement prohibition of the Refugee Convention of 1951 if there are reasonable grounds for regarding the said person as a danger to the security of the country wherein he or she may be, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."[892] This could eventually include suspected terrorists or persons suspected of having committed terrorism-related crimes.

391. Given the potentially serious consequences of exclusion from refugee status, any determination that an individual falls into one of these categories must be made by fair and proper procedures, as discussed in further detail in Part III(D) and in Part III(H)(3) below concerning the right to due process and to a fair trial.

392. Moreover, even where a person may not qualify for refugee status or may be considered a danger to the security of the country wherein he or she may be situated, that person may not be removed to another country if in that state his or her life or personal freedom is in danger of being violated because of his or her race, nationality, religion, social status, or political opinions or where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.[893]

393. Specifically, in addition to and notwithstanding the scope and application of Article 33 of the 1951 Refugee Convention, Article 3 of the UN Torture Convention[894] provides:

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

394. The obligation of non-return under this provision as well as that under Article 22(8) of the American Convention[895] is absolute and does not depend upon a claimant’s status as a refugee. This obligation also necessarily requires that persons who may face a risk of torture cannot be rejected at the border or expelled without an adequate, individualized examination of their circumstances even if they do not qualify as refugees.[896] The Commission has specifically stated in this regard that the nature of the rights potentially at issue – for example, to life and to be free from torture – requires the strictest adherence to all applicable safeguards. Those safeguards include the right to have one’s eligibility to enter the process decided by a competent, independent and impartial decision-maker, through a process which is fair and transparent. The status of refugee is one which derives from the circumstances of the person; it is recognized by the State rather than conferred by it. The purpose of the applicable procedures is to ensure that it is recognized in every case where that is justified.[897]

395. The grave implications of failing to properly afford refugee claimants the protection discussed above cannot be overstated. In the most extreme case, a state that expels, returns or extradites a person to another State where there are substantial grounds for believing that this person would be in danger of being subjected to torture, will be considered responsible for violating this person's right to personal security or humane treatment.[898] As the Commission has observed:

For persons who have been subject to certain forms of persecution, such as torture, return to their home country would place them at a risk which is impermissible under international law. As noted above, the prohibition of torture as a norm of jus cogens--as codified in the American Declaration generally, and Article 3 of the UN Convention against Torture in the context of expulsion--applies beyond the terms of the 1951 Convention. The fact that a person is suspected of or deemed to have some relation to terrorism does not modify the obligation of the State to refrain from return where substantial grounds of a real risk of inhuman treatment are at issue.[899]

396. In addition to reinforcing the proper determination and protection of the status of asylum seekers and refugees, the right to humane treatment has implications for the conditions of non-nationals under any form of detention by a state. In this respect, the Commission has considered that guaranteeing adequate detention conditions is fundamental for the protection of the right to human treatment of non-nationals, including those who may not comply with immigration law. The Commission’s Special Rapporteur on Migrant Workers and the Members of their Families has stated that “undocumented immigrants do nothing more than transgress administrative regulations. They are not criminals nor are they suspected of any crime. [Therefore t]hey should be held in detention centers and not in regular prisons.”[900]

397. In the case of administrative detention, the Special Rapporteurship has indicated that there are various specific norms setting minimum standards for the treatment of persons deprived of their liberty,[901] including, as discussed in Part III(C) above,[902] the United Nations Standard Minimum Rules for the Treatment of Prisoners[903] and the United Nations Basic Principles for the Treatment of Prisoners,[904] as subsequently reinforced in the 1988 UN General Assembly’s approval of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.[905] Certain basic standards of detention conditions are particularly pertinent with regard to non-nationals. Migrants and their families should be kept together in relatively open facilities and not in cells. They should have access to libraries, recreation and health care. They should have the right to go outside at least one hour per day. Immigration detention centers should also make available legal manuals in various languages with information concerning the legal situation facing the detainees and a list of names and telephone numbers of legal counsel and organizations that they can contact for assistance, if they so desire. They should also be allotted clothing, toiletries and bedding. Non-citizens under administrative detention should have access to health care services and be given the opportunity to exercise or partake in recreational activities. The Special Rapporteurship has also emphasized that non-citizens should be able to communicate with their families and/or legal counselors both through visits, telephone calls and correspondence.[906]

3. Rights to Due Process of Law and to a Fair Trial

398. Articles 8 and 25 of the American Convention, and Articles XVIII, XXIV and XXVI of the American Declaration, are those provisions traditionally cited in relation to the developing doctrine concerning judicial guarantees and protection. These articles cover any situation in which it becomes necessary to determine the content and scope of the rights of a person under the jurisdiction of a state party, be it in a criminal, administrative, tax, labor, family, contractual or any other kind of matter.[907] These rules establish a baseline of due process to which all non-citizens, regardless of their legal status, have a right.[908] Further, the analysis of the right to due process and to a fair trial in Part III(D) above in proceedings of a criminal or other nature should be considered fully applicable to persons who find themselves in the territory of a state of which they are not nationals, in peacetime, states of emergency or armed conflicts.

399. Also as indicated in Part III(D) above, there may be occasions in which, owing to the particular circumstances of a case, guarantees additional to those explicitly prescribed in the pertinent human rights instruments are necessary to ensure a fair hearing. This stipulation is drawn in part from the very nature and functions of procedural protections, which must in all instances be governed by the principle of fairness and which in their essence must be designed to protect, to ensure, or to assert the entitlement to a right or the exercise thereof.[909] This includes recognizing and correcting any real disadvantages that persons concerned in the proceedings might have and thereby observing the principle of equality before the law and the corollary principle prohibiting discrimination of any kind.[910]

400. The potential need for additional procedural protections is starkly illustrated in proceedings involving non-nationals. For example, in the criminal sphere, special attention should be given to the vulnerability of a person facing criminal proceedings in a foreign country. First, it is essential that a person understands the charges against him or her and the full range of procedural rights available to him or her. To this end, translation and explanation of all legal concepts in the language of the defendant is essential and should be financed by the state if necessary. Further, in the context of capital proceedings against foreign nationals, the Inter-American Court of Human Rights has found compliance with the consular notification requirements under Article 36 of the Vienna Convention on Consular Relations to constitute additional guarantees necessitated by the rules of due process of law.[911] The protections prescribed under this provision are broadly considered to be pertinent to the due process and other rights of detainees by, for example, providing potential assistance with various defense measures such as legal representation, gathering of evidence in the country of origin, verifying the conditions under which legal assistance is provided and observing the conditions under which the accused is being held while in prison.[912] Moreover, the Special Rapporteur on Migrant Workers has suggested that due process rights of this nature should apply to all immigration procedures. [913]

401. Further in this connection, as indicated in Part III(D) above, the due process protections under the American Convention and the American Declaration apply not only to criminal proceedings, but also to proceedings for the determination of rights or obligations of a civil, fiscal, labor or any other nature. This includes non-criminal proceedings against non-nationals. The full complement of due process protections applicable in a criminal proceeding may not necessarily apply in all other processes, but rather will depend upon the potential outcome and effects of the proceedings. The principle of due process, with this degree of flexibility, applies not only to court decisions, but also to decisions made by administrative bodies.[914]

402. As suggested by the foregoing, particular due process protections may be especially pertinent in certain processes involving non-nationals. Concerning proceedings for the expulsion or deportation of non-nationals lawfully within a state, for example, the Special Rapporteurship on Migrant Workers has stated that such measures may only be taken pursuant to a decision made in accordance with law.[915] Thus, the powers for deportation must be conferred by legislation, and all decisions must be made in accordance with the legislation in place so as not to be deemed arbitrary. Moreover, as the meaning of “law” in Article 22 of the American Convention is not limited to acts of the legislative branch in a formal sense, any legislation must be enacted in full accordance with the constitution and the rule of law, including conformity with all international treaty obligations.

403. In addition, the Commission has found in the context of removal proceedings against aliens that the persons concerned should be provided with a hearing and given an adequate opportunity to exercise their right of defense. While this may not require the presence of all the guarantees required for a fair trial in the criminal sphere, a minimum threshold of due process guarantees should be provided. This has been considered by the Commission to include the right to be assisted by a lawyer if they wish or by a representative in whom they have confidence, sufficient time to ascertain the charge against them, a reasonable time in which to prepare and formalize a response, and to seek and adduce responding evidence.[916] Hearings must be conducted in public to the extent required by due guarantees and fairness, which necessarily include the need to maintain public confidence and to avoid the possibility of injustice in such processes.[917]

404. Further, international instruments clearly prohibit the collective expulsion of aliens.[918] An expulsion becomes collective when the decision to expel is not based on individual cases but on group considerations, even if the group in question is not large. [919]

405. Also pertinent to the due process guarantees of non-nationals are proceedings for the determination of refugee or asylum status. In this connection, the Commission has interpreted the right to seek asylum provided for under Article XXVII of the American Declaration[920] and Article 22(7) of the American Convention[921] in light of the procedural protections underlying the 1951 UN Convention relating to the Status of Refugees[922] and its Additional Protocol.[923] In particular, the Commission has through these interpretive interrelationships required states to afford asylum-seekers a fair hearing to determine whether they satisfy the Convention refugee criteria, particularly where the non-refoulement provisions of the Refugee Convention, the American Convention, or the Inter-American Torture Convention may be implicated.[924]

406. Similar prerequisites have been held to apply to proceedings pertaining to the administrative detention of aliens, where processes through which an individual may be deprived of his or her liberty for security or other reasons must comply with minimal rules of fairness. These rules require, inter alia, that the decision-maker meets prevailing standards of independence and impartiality, that the detainee is given an opportunity to present evidence and to know and meet the claims of the opposing party, and that the detainee be given an opportunity to be represented by counsel or other representative. Such requirements will not be considered fulfilled where, for example, authorities fail to define with sufficient particularity or otherwise properly justify the grounds upon which an individual has been deprived of his or her liberty or place the onus on the detainee to justify his or her release.[925]

407. With regard to anti-terrorist initiatives in particular, it is apparent from the past practice of states, as well as from current efforts on the part of the Organization of American States and other intergovernmental organizations to address the problem of terrorism, that reactions to terrorist threats will include more rigorous and extensive implementation of methods to screen and remove aliens from the territory of states, in many cases through extradition or the denial of asylum status. [926]

408. Procedures of this nature may well be necessary and justified in protecting the populations of states from the dangers of terrorist violence, as reflected, for example, in certain provisions of international instruments governing refugees.[927] It is also beyond doubt, however, that these processes have significant implications for the lives and security of the persons concerned. This consideration, together with the legal character of such proceedings and their context within a state’s particular legal system, are factors that must be taken into account in defining the requirements of a fair trial and due process of law in processes of this nature.

409. As discussed previously, proceedings involving the detention, status or removal of aliens from a state’s territory by exclusion, expulsion or extradition have been found in this and other human rights systems to require individualized and careful assessment and to be subject to the same basic and non-derogable procedural protections applicable in proceedings of a criminal nature. And as indicated above concerning the right to humane treatment in the context of non-nationals, removal proceedings must properly take into account the principle of non-refoulement as reflected in such provisions as Article 33 the UN Convention on the Status of Refugees,[928] Article 3(1) of the UN Convention on Torture,[929] Article 13 of the Inter-American Convention to Prevent and Punish Torture,[930] and Article 22(8) of the American Convention on Human Rights.[931]

4. Obligation to Respect and Ensure, Non-Discrimination and the Right to Judicial Protection

410. As emphasized in Part III(F) above, among the most fundamental and non-derogable protections under international human rights law and international humanitarian law is the requirement that states fulfill their obligations without discrimination of any kind, including discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic situation, birth, or any other social condition. This obligation applies not only to a state’s commitment to respect and ensure respect for fundamental rights in the context of terrorist threats, but also limits the measures that states may take in derogating from rights that may properly be suspended in times of emergency by prohibiting any such measures that involve discrimination on such grounds as race, color, sex, language, religion, or social origin.[932]

411. Migrants, asylum seekers and other non-nationals are especially vulnerable to discrimination in emergency situations resulting from terrorist violence. This risk is particularly prevalent where terrorist violence is considered to emanate from foreign sources and where, as a consequence, asylum and other measures of protection for non-nationals may be perceived as providing refuge for terrorists. As the United Nations High Commissioner for Refugees has noted,

[e]quating asylum with a safe haven for terrorists is not only legally wrong and thus far unsupported by facts, but it serves to vilify refugees in the public mind and promotes the singling out of persons of particular races or religions for discrimination and hate-based harassment.[933]

412. States must therefore remain vigilant in ensuring that their laws and policies are not developed or applied in a manner that encourages or results in discrimination, and that their officials and agents conduct themselves fully in conformity with these rules and principles. This requires in particular that states refrain from applying their immigration control operations in a discriminatory manner. Accordingly, to the extent that such operations may incorporate criteria, such as national or social origin, that may potentially constitute the basis for discrimination, the content and execution of such operations must be based upon objective and reasonable justifications that further a legitimate purpose, regard being had to the principles which normally prevail in a democratic society, and they must be reasonable and proportionate to the end sought.[934]

413. As in the case of all persons protected under the inter-American human rights instruments, member states are obliged to conduct themselves so as to ensure the free and full exercise of human rights to migrant workers, asylum-seekers, refugees and other non-nationals. This obligation includes the duty to organize the governmental apparatus and all the structures through which public power is exercised so that they are capable of juridically ensuring the free and full enjoyment of those human rights and freedoms. Member states must therefore afford non-nationals a remedy for any violations of the several due process, non-discrimination and other rights and freedoms mentioned above. Where non-nationals are the subject of judicial, administrative or other proceedings, judicial review must always be provide for, either through appeal in administrative law or by recourse to amparo or habeas corpus. Judges should maintain at least baseline oversight of the legality and reasonableness of administrative law decisions in order to comply with the guarantees provided for in Articles XVIII and XXIV of the American Declaration and Articles 1(1) and 25 of the American Convention.[935]


IV. RECOMMENDATIONS

Based upon its analysis in this report, the Commission has developed the following series of recommendations, in order to facilitate efforts by member states to properly fulfill their international human rights commitments when developing and executing anti-terrorism measures.

A. Identifying and Applying Pertinent International Legal Obligations

1. Member states should take into account relevant commitments under all international human rights instruments to which they are bound in identifying and applying their international human rights obligations to anti-terrorist initiatives.

2. Member states should refer to and consider pertinent provisions of international humanitarian law as the applicable lex specialis in interpreting and applying human rights protections in situations of armed conflict.

3. Member states cannot use one human rights instrument as a basis for denying or limiting other favorable or more extensive human rights that individuals might otherwise be entitled to under other applicable international or domestic laws or practices.

B. Right to Life

4. In situations short of armed conflict, member states should ensure that law enforcement officials comply with the basic principles governing the use of force, including the requirement that lethal force may only be used where strictly unavoidable to protect themselves or other people from imminent threat of death.

5. In situations of armed conflict, member states should ensure that their armed forces comply with applicable rules and principles of international humanitarian law, in particular the requirements that armed forces distinguish between military objectives and civilians and civilian objects and launch attacks only against the former, and take precautions so as to avoid or minimize loss of civilian life or damage to civilian property incidental or collateral to attacks on legitimate military targets.

6. Member states must ensure that any measure to impose the death penalty as a punishment for terrorist-related offenses complies with specific restrictions governing the imposition of the death penalty, including those relating to the types of offenses for which capital punishment may be imposed, personal characteristics of offenders that may preclude the application of the death penalty, and the requirement that the imposition of the penalty be subject to strict procedural requirements and to a rigorous control of fundamental judicial guarantees.

C. Right to Personal Liberty and Security

7. Where member states arrest, imprison or otherwise detain individuals as part of their anti-terrorism initiatives in situations short of armed conflict, they must comply with minimum standards governing the right to personal liberty and security, from which derogation may never be justified. These include the following requirements:

(a) the grounds and procedures for the detention must be prescribed by law;

(b) the detainee must be informed of the reasons for the detention and afforded prompt access to legal counsel, family and, where necessary or applicable, medical and consular assistance;

(c) prescribed limits must be placed upon the length of detention;

(d) a central registry of detainees must be maintained;

(e) appropriate and effective judicial review mechanisms must be in place to supervise detentions, promptly upon arrest or detention and at reasonable intervals when detention is extended.

8. Where terrorist acts may trigger or otherwise take place in the context of an international armed conflict, member states must respect and ensure the right to personal liberty and security as informed by the applicable lex specialis of international humanitarian law, according to which:

(a) privileged combatants who fall into the hands of an enemy generally may be interned until their repatriation at the cessation of active hostilities;

(b) unprivileged combatants may also be interned and, moreover, may be subject to prosecution for their unprivileged belligerency;

(c) the detention of combatants remains subject to supervision by the mechanisms prescribed under international humanitarian law, including the Protecting Powers regime and access by the International Committee of the Red Cross. Where these mechanisms are not available or prove ineffective in ensuring the proper treatment of detainees, however, international human rights law and domestic law standards and procedures may supercede international humanitarian law in order to guarantee the effective protection of detainees in all circumstances;

(d) enemy aliens in the territory of a party to an international armed conflict or civilians in occupied territory may not be administratively detained or interned except where the security of the detaining or occupying power make it absolutely necessary. Where such detention or internment is imposed, it must be subject to reconsideration or appeal with the least possible delay and, if it is continued, subject to regular review by an appropriate or competent body, court or other tribunal designated for that purpose.

D. Right to Humane Treatment

9. Both within and outside of situations of armed conflict, member states must comply with minimum standards of humane treatment prescribed under the applicable regime of international human rights or international humanitarian law. While the applicable regimes of law are discrete, they similarly require that member states ensure that:

(a) the conditions of detention of detainees satisfy minimum standards of humanity and personal dignity, with due regard for the requirements of particular categories of persons, including families, women and children, and remain subject to continuous and effective supervision by regularly constituted courts through habeas corpus or equivalent relief or, in cases of armed conflict, through pertinent mechanisms under international humanitarian law;

(b) detainees who are subject to disciplinary or penal sanctions are treated humanely at all times and never subjected to torture or inhumane treatment, including, for example, corporal punishment and prolonged periods of time in solitary confinement;

(c) detainees are not be subjected to any method of interrogation that may amount to torture or other inhumane treatment, including severe treatment such as beatings, rape, or electric shocks, as well as more subtle but equally injurious treatments such as administration of drugs in detention or psychiatric institutions or prolonged denial of rest or sleep, food, sufficient hygiene or medical assistance.

E. Right to Due Process and to a Fair Trial

10. Member states must comply with certain fundamental and non-derogable due process and fair trial principles and standards when proscribing terrorist-related conduct under their criminal laws and prosecuting individuals for those crimes. In particular, member states must:

(a) ensure that crimes relating to terrorism are classified and described in precise and unambiguous language that narrowly defines the punishable offense, by providing a clear definition of the criminalized conduct, establishing its elements and the factors that distinguish it from behaviors that are either not punishable offenses or are punishable by other penalties;

(b) consider taking the legislative or other measures necessary to provide judges with authority to consider the circumstances of individual offenders and offenses when imposing sentences for crimes relating to terrorism;

(c) refrain from the use of ad hoc, special, or military tribunals or commissions to try civilians;

(d) ensure that trials of members of the military or combatants by military courts offer the essential guarantees of independence and impartiality as generally recognized in international humanitarian law instruments;

(e) refrain from the use of secret or faceless judicial procedures. While states may be obliged to take exceptional measures to protect the life, physical integrity and independence of judges, lawyers or others involved in the administration of justice when their lives or physical integrity are threatened, the nature or implementation of such measures may never compromise a defendant’s fair trial guarantees;

(f) in all circumstances, ensure strict compliance with basic and non-derogable procedural protections, including the right of an accused to prior notification in detail of the charges against him or her, the right to defend himself or herself personally and to have adequate time and means to prepare his or her defense which necessarily includes the right to be assisted by counsel of his or her choosing or, in the case of indigent defendants, the right to counsel free of charge where such assistance is necessary for a fair hearing, and the right to be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal the judgment to a higher court;

(g) in situations of international armed conflict, when an individual has committed a belligerent act and falls into the hands of an adversary and a doubt arises as to their status as a privileged or unprivileged combatant or civilian, convene a competent tribunal to determine the status of the detainee, and ensure that such persons enjoy the protections of the Third Geneva Convention and, where applicable, of Additional Protocol I until such time as their status has been determined. These obligations should be respected regardless of whether the individual is suspected to have engaged in acts of terrorism.

F. Right to Freedom of Expression

11. In situations outside of armed conflict, member states should:

(a) refrain from enacting laws that impose prior censorship on the publication or dissemination of terrorist-related information or opinions, and only do so in times of emergency when and only to the extent strictly required by the exigencies of the situation;

(b) impose subsequent penalties for the dissemination of opinions or information only through laws that have legitimate aims, that are clear and foreseeable and not overly broad or vague, and that ensure that any penalties are proportionate to the type of harm they are designed to prevent;

(c) refrain from promulgating laws that broadly criminalize, without an additional requirement of a showing of an intent to incite lawless violence or any other similar action and a likelihood of success, the public defense (apologia) of terrorism or of persons who might have committed terrorist acts;

(d) ensure that any restrictions on access to information by the public, the press and other interested persons are only imposed for legitimate reasons, for so long as the restrictions are strictly necessary, and where those restrictions are not inconsistent with the state’s other obligations under international law.

12. In situations of armed conflict: member states should:

(a) afford journalists and media installations the protection commensurate with their status under international humanitarian law, which is presumptively that of civilians and civilian objects;

(b) ensure interned or detained individuals the right to send and receive information as provided for under applicable international humanitarian law.

G. Obligation to Ensure and Respect, Non-Discrimination, and the Right to Judicial Protection

13. Member states must conduct themselves so as to ensure the free and full exercise of human rights. This includes the duty to organize the governmental apparatus and all the structures through which public power is exercised so that they are capable of juridically ensuring the free and full enjoyment of those human rights.

14. In all circumstances, member states must fully and strictly comply with the obligation to ensure all persons equal protection of the law and of the rights and freedoms protected thereunder, and the corresponding prohibition of discrimination of any kind, including by reason of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. This prohibits any distinction, exclusion, restriction or preference which is based on any prohibited ground and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms.

15. Where member states consider that certain distinctions in treatment in the enjoyment of protected rights and freedoms are necessary or advisable, they must ensure that any such distinctions are based upon objective and reasonable justification, that they further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and that the means are reasonable and proportionate to the end sought. States must provide an especially weighty interest and compelling justification for any distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments. In this connection, the principle of equality may sometimes require member states to give special protection to minority and other groups that may encounter particular vulnerabilities, disadvantages or threats of discrimination resulting from terrorist violence or anti-terrorist initiatives.

H. Situation of Migrant Workers, Asylum Seekers, Refugees and other Non-nationals

16. Member states must ensure any laws, policies and procedures developed to regulate the situation of migrant workers, asylum seekers, refugees and other non-nationals are not formulated or executed in a manner that transgresses the fundamental human rights of these persons. In particular, in situations outside of armed conflict, member states must:

(a) ensure that their immigration legislation recognizes the right to liberty of non-nationals and defines with sufficient detail the grounds and procedures by which non-nationals may be deprived of their liberty;

(b) afford non-nationals their right to consular notification when they are arrested or committed to prison or to custody pending trial or are detained in any other manner;

(c) respect and ensure the right of non-nationals to seek asylum from persecution in accordance with prevailing international standards and through fair and proper procedures, including in particular any determination that an individuals does not or no longer qualifies for refugee status by reason of the exclusion or cessation clauses under the 1951 Refugee Convention and its 1967 Protocol;

(d) refrain from deporting or removing a non-national in any case where there are substantial reasons for believing that he or she would be in danger of being subjected to torture;

(e) refrain from the collective expulsion of non-nationals;

(f) where a non-national is the subject of criminal proceedings, afford him or her the due process protections necessary to ensure a fair trial, including those protections necessary to address any disadvantages that may affect the fairness of their proceedings, such as lack of proficiency in the language of the proceedings;

(g) where non-nationals are the subject of proceedings of a non-criminal nature, including detention, deportation or removal proceedings, afford them the due process protections necessary to ensure a fair hearing, including an adequate opportunity to practice their right of defense. These may include the right to a public hearing, the right to be assisted by a lawyer or other representative, and an adequate opportunity to respond to the claims against them;

(h) ensure that their laws and policies affecting non-nationals are not developed or applied in a manner that encourages or results in discrimination, which includes refraining from applying their immigration control operations in a discriminatory manner.

17. In situations of armed conflict, member states must ensure that non-nationals are afforded the rights to which they are entitled in accordance with their status under applicable international humanitarian law, which include, inter alia, fair trial and non-discrimination protections equivalent to those applicable in situations short of armed conflict.


 

ANNEX I

INTER - AMERICAN COMMISSION ON HUMAN RIGHTS
COMISIÓN INTERAMERICANA DE DERECHOS HUMANOS
COMISSÃO INTERAMERICANA DE DIREITOS HUMANOS
COMMISSION INTERAMÉRICAINE DES DROITS DE L'HOMME

ORGANIZATION OF AMERICAN STATES
WASHINGTON,D.C. 2 0 0 0 6 U.S.A.
RESOLUTION

Terrorism and Human Rights

On numerous occasions the Inter-American Commission on Human Rights (IACHR) has condemned terrorism and stated that no cause or pretext may be invoked to justify attacks against civilians and other acts proscribed under international law.

When the terrorist attacks occurred on September 11 of this year, the IACHR conveyed its condolences to and solidarity with the people and Government of the United States and extended those sentiments to include the numerous citizens of other states in and beyond the Hemisphere, who were also victims. The attacks of September 11 were committed against all people, as the countries of the Americas pointed out at the Meeting of Consultation of Ministers of Foreign Affairs.

Terrorism must not go unpunished. States have the right and indeed the duty to defend themselves against this international crime within the framework of international instruments that require domestic laws and regulations to conform with international commitments.

The terrorist attacks have prompted vigorous debate over the adoption of anti-terrorist initiatives that include, inter alia, military commissions and other measures.

According to the doctrine of the IACHR, military courts may not try civilians, except when no civilian courts exist or where trial by such courts is materially impossible. Even under such circumstances, the IACHR has pointed out that the trial must respect the minimum guarantees established under international law, which include non-discrimination between citizens and others who find themselves under the jurisdiction of a State, an impartial judge, the right to be assisted by freely-chosen counsel, and access by defendants to evidence brought against them together with the opportunity to contest it.

Exercising the powers vested in it by Article 18 of its Statute, the IACHR will prepare a Report on Terrorism and Human Rights designed to assist States in adopting laws and regulations that accord with international law.

To that end, the IACHR will present its views on this important topic at its next regular session in February 2002.


December 12, 2001


ANNEX III
AG/RES. 1840 (XXXII-O/02)

INTER-AMERICAN CONVENTION AGAINST TERRORISM
(Resolution adopted at the first plenary session, held on June 3, 2002)

THE GENERAL ASSEMBLY,

REAFFIRMING the principles and provisions contained in the Charter of the Organization of American States and the Charter of the United Nations;

RECOGNIZING the threat that terrorism poses to democratic values and international peace and security, and that it is a source of profound concern to all member states;

CONVINCED that the Charter of the Organization of American States and international law constitute the appropriate framework for strengthening hemispheric cooperation for the prevention, combating, and elimination of terrorism in all its forms and manifestations;

BEARING IN MIND resolution RC.23/RES. 1/01 rev. 1 corr. 1, “Strengthening Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism,” of the Twenty-third Meeting of Consultation of Ministers of Foreign Affairs, held on September 21, 2001, which entrusted the Permanent Council with preparing a Draft Inter-American Convention against Terrorism;

RECALLING the Declaration of Lima to Prevent, Combat, and Eliminate Terrorism and the Plan of Action on Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism, adopted within the framework of the First Inter-American Specialized Conference on Terrorism, in Lima, Peru, in April 1996, as well as the Commitment of Mar del Plata, adopted at the Second Inter-American Specialized Conference on Terrorism, and the work of the Inter-American Committee against Terrorism (CICTE);

CONSIDERING that terrorism is a serious criminal phenomenon, that is of deep concern to all member states; attacks democracy; impedes the enjoyment of human rights and fundamental freedoms; threatens the security of states, destabilizing and undermining the foundations of all society; and seriously impacts the economic and social development of the states in the region;

BEARING IN MIND that the Inter-American Democratic Charter recognizes the commitment by member states to promote and defend representative democracy and that no democratic state can be indifferent to the clear threat that terrorism poses to democratic institutions and freedoms;

REAFFIRMING that the fight against terrorism must be undertaken with full respect for national and international law, human rights, and democratic institutions, in order to preserve the rule of law, liberties, and democratic values in the Hemisphere, which are essential components of a successful fight against terrorism;

CONVINCED that the adoption, ratification, and effective implementation of the Inter-American Convention against Terrorism contribute to the progressive development and the codification of international law;

UNDERSCORING the importance of effective action in cutting off the supply of funds for terrorism, and of coordinated action with international entities competent in the area of money laundering, especially the Inter-American Drug Abuse Control Commission (CICAD);

RECOGNIZING the urgency of strengthening and establishing new forms of regional cooperation against terrorism with a view to its eradication; and

RECOGNIZING ALSO the importance and timeliness of the existing international legal instruments on combating terrorism, including the 10 international instruments considered in the text of the Inter-American Convention against Terrorism itself, as well as the Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion That Are of International Significance, adopted by this General Assembly on February 2, 1971; the Convention on Offences and Certain Other Acts Committed on Board Aircraft, adopted in Tokyo on September 14, 1963; and the Convention on the Marking of Plastic Explosives for the Purpose of Detection, adopted in Montreal on March 1, 1991,

RESOLVES:

1. To adopt the Inter-American Convention against Terrorism, attached to this resolution, and to open it for signature by the member states on this date.

2. To urge member states to ratify the Convention as soon as possible, in accordance with their constitutional procedures.

3. To request the Secretary General to present a report to the General Assembly at its thirty-third regular session on progress made toward the Convention’s entry into force.


INTER-AMERICAN CONVENTION AGAINST TERRORISM


The States Parties to this Convention,

BEARING IN MIND the purposes and principles of the Charter of the Organization of American States and the Charter of the United Nations;

CONSIDERING that terrorism represents a serious threat to democratic values and to international peace and security and is a cause of profound concern to all member states;

REAFFIRMING the need to adopt effective steps in the inter-American system to prevent, punish, and eliminate terrorism through the broadest cooperation;

RECOGNIZING that the serious economic harm to states which may result from terrorist acts is one of the factors that underscore the need for cooperation and the urgency of efforts to eradicate terrorism;

REAFFIRMING the commitment of the states to prevent, combat, punish, and eliminate terrorism; and

BEARING IN MIND resolution RC.23/RES. 1/01 rev. 1 corr. 1, “Strengthening Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism,” adopted at the Twenty-third Meeting of Consultation of Ministers of Foreign Affairs,

Have agreed to the following:

Article 1
Object and purposes

The purposes of this Convention are to prevent, punish, and eliminate terrorism. To that end, the states parties agree to adopt the necessary measures and to strengthen cooperation among them, in accordance with the terms of this Convention.

Article 2

Applicable international instruments

1. For the purposes of this Convention, “offenses” means the offenses established in the international instruments listed below:

a. Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970.

b. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971.

c. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973.

d. International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979.

e. Convention on the Physical Protection of Nuclear Material, signed at Vienna on March 3, 1980.

f. Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988.

g. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988.

h. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988.

i. International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997.

j. International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999.

2. Upon depositing its instrument of ratification to this Convention, a state party that is not a party to one or more of the international instruments listed in paragraph 1 of this article may declare that, in application of this Convention to such state party, that particular instrument shall be deemed not to be included in that paragraph. The declaration shall cease to have effect as soon as that instrument enters into force for that state party, which shall notify the depositary of this fact.

3. When a state party ceases to be a party to one of the international instruments listed in paragraph 1 of this article, it may make a declaration, as provided in paragraph 2 of this article, with respect to that instrument.

Article 3

Domestic measures

Each state party, in accordance with the provisions of its constitution, shall endeavor to become a party to the international instruments listed in Article 2 to which it is not yet a party and to adopt the necessary measures to effectively implement such instruments, including establishing, in its domestic legislation, penalties for the offenses described therein.

Article 4

Measures to prevent, combat, and eradicate the financing of terrorism

1. Each state party, to the extent it has not already done so, shall institute a legal and regulatory regime to prevent, combat, and eradicate the financing of terrorism and for effective international cooperation with respect thereto, which shall include:

a. A comprehensive domestic regulatory and supervisory regime for banks, other financial institutions, and other entities deemed particularly susceptible to being used for the financing of terrorist activities. This regime shall emphasize requirements for customer identification, record-keeping, and the reporting of suspicious or unusual transactions.

b. Measures to detect and monitor movements across borders of cash, bearer negotiable instruments, and other appropriate movements of value. These measures shall be subject to safeguards to ensure proper use of information and should not impede legitimate capital movements.

c. Measures to ensure that the competent authorities dedicated to combating the offenses established in the international instruments listed in Article 2 have the ability to cooperate and exchange information at the national and international levels within the conditions prescribed under its domestic law. To that end, each state party shall establish and maintain a financial intelligence unit to serve as a national center for the collection, analysis, and dissemination of pertinent money laundering and terrorist financing information. Each state party shall inform the Secretary General of the Organization of American States of the authority designated to be its financial intelligence unit.

2. When implementing paragraph 1 of this article, states parties shall use as guidelines the recommendations developed by specialized international and regional entities, in particular the Financial Action Task Force and, as appropriate, the Inter-American Drug Abuse Control Commission, the Caribbean Financial Action Task Force, and the South American Financial Action Task Force.

Article 5

Seizure and confiscation of funds or other assets

1. Each state party shall, in accordance with the procedures established in its domestic law, take such measures as may be necessary to provide for the identification, freezing or seizure for the purposes of possible forfeiture, and confiscation or forfeiture, of any funds or other assets constituting the proceeds of, used to facilitate, or used or intended to finance, the commission of any of the offenses established in the international instruments listed in Article 2 of this Convention.

2. The measures referred to in paragraph 1 shall apply to offenses committed both within and outside the jurisdiction of the state party.

Article 6

Predicate offenses to money laundering

1. Each state party shall take the necessary measures to ensure that its domestic penal money laundering legislation also includes as predicate offenses those offenses established in the international instruments listed in Article 2 of this Convention.

2. The money laundering predicate offenses referred to in paragraph 1 shall include those committed both within and outside the jurisdiction of the state party.

Article 7

Cooperation on border controls

1. The states parties, consistent with their respective domestic legal and administrative regimes, shall promote cooperation and the exchange of information in order to improve border and customs control measures to detect and prevent the international movement of terrorists and trafficking in arms or other materials intended to support terrorist activities.

2. In this context, they shall promote cooperation and the exchange of information to improve their controls on the issuance of travel and identity documents and to prevent their counterfeiting, forgery, or fraudulent use.

3. Such measures shall be carried out without prejudice to applicable international commitments in relation to the free movement of people and the facilitation of commerce.

Article 8

Cooperation among law enforcement authorities

The states parties shall work closely with one another, consistent with their respective domestic legal and administrative systems, to enhance the effectiveness of law enforcement action to combat the offenses established in the international instruments listed in Article 2. In this context, they shall establish and enhance, where necessary, channels of communication between their competent authorities in order to facilitate the secure and rapid exchange of information concerning all aspects of the offenses established in the international instruments listed in Article 2 of this Convention.

Article 9

Mutual legal assistance

The states parties shall afford one another the greatest measure of expeditious mutual legal assistance with respect to the prevention, investigation, and prosecution of the offenses established in the international instruments listed in Article 2 and proceedings related thereto, in accordance with applicable international agreements in force. In the absence of such agreements, states parties shall afford one another expeditious assistance in accordance with their domestic law.

Article 10

Transfer of persons in custody

1. A person who is being detained or is serving a sentence in the territory of one state party and whose presence in another state party is requested for purposes of identification, testimony, or otherwise providing assistance in obtaining evidence for the investigation or prosecution of offenses established in the international instruments listed in Article 2 may be transferred if the following conditions are met:

a. The person freely gives his or her informed consent; and

b. Both states agree, subject to such conditions as those states may deem appropriate.

2. For the purposes of this article:

a. The state to which the person is transferred shall have the authority and obligation to keep the person transferred in custody, unless otherwise requested or authorized by the state from which the person was transferred.

b. The state to which the person is transferred shall without delay implement its obligation to return the person to the custody of the state from which the person was transferred as agreed beforehand, or as otherwise agreed, by the competent authorities of both states.

c. The state to which the person is transferred shall not require the state from which the person was transferred to initiate extradition proceedings for the return of the person.

d. The person transferred shall receive, for time spent in the custody of the state to which he or she was transferred, credit toward service of the sentence being served in the state from which he or she was transferred.

3. Unless the state party from which a person is to be transferred in accordance with the present article so agrees, that person, whatever his or her nationality, shall not be prosecuted or detained or subjected to any other restriction of his or her personal liberty in the territory of the state to which that person is transferred in respect of acts or convictions prior to his or her departure from the territory of the state from which said person was transferred.

Article 11

Inapplicability of political offense exception

For the purposes of extradition or mutual legal assistance, none of the offenses established in the international instruments listed in Article 2 shall be regarded as a political offense or an offense connected with a political offense or an offense inspired by political motives. Accordingly, a request for extradition or mutual legal assistance may not be refused on the sole ground that it concerns a political offense or an offense connected with a political offense or an offense inspired by political motives.

Article 12

Denial of refugee status

Each state party shall take appropriate measures, consistent with the relevant provisions of national and international law, for the purpose of ensuring that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed an offense established in the international instruments listed in Article 2 of this Convention.

Article 13

Denial of asylum

Each state party shall take appropriate measures, consistent with the relevant provisions of national and international law, for the purpose of ensuring that asylum is not granted to any person in respect of whom there are reasonable grounds to believe that he or she has committed an offense established in the international instruments listed in Article 2 of this Convention.

Article 14

Nondiscrimination

None of the provisions of this Convention shall be interpreted as imposing an obligation to provide mutual legal assistance if the requested state party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, or political opinion, or that compliance with the request would cause prejudice to that person’s position for any of these reasons.

Article 15

Human rights

1. The measures carried out by the states parties under this Convention shall take place with full respect for the rule of law, human rights, and fundamental freedoms.

2. Nothing in this Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, in particular the Charter of the United Nations, the Charter of the Organization of American States, international humanitarian law, international human rights law, and international refugee law.

3. Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including the enjoyment of all rights and guarantees in conformity with the law of the state in the territory of which that person is present and applicable provisions of international law.

Article 16

Training

1. The states parties shall promote technical cooperation and training programs at the national, bilateral, subregional, and regional levels and in the framework of the Organization of American States to strengthen the national institutions responsible for compliance with the obligations assumed under this Convention.

2. The states parties shall also promote, where appropriate, technical cooperation and training programs with other regional and international organizations conducting activities related to the purposes of this Convention.

Article 17

Cooperation through the Organization of American States

The states parties shall encourage the broadest cooperation within the pertinent organs of the Organization of American States, including the Inter-American Committee against Terrorism (CICTE), on matters related to the object and purposes of this Convention.

Article 18

Consultations among the parties

1. The states parties shall hold periodic meetings of consultation, as appropriate, with a view to facilitating:

a. The full implementation of this Convention, including the consideration of issues of interest relating thereto identified by the states parties; and

b. The exchange of information and experiences on effective means and methods to prevent, detect, investigate, and punish terrorism.

2. The Secretary General shall convene a meeting of consultation of the states parties after receiving the 10th instrument of ratification. Without prejudice to this, the states parties may hold consultations as they consider appropriate.

3. The states parties may request the pertinent organs of the Organization of American States, including CICTE, to facilitate the consultations referred to in the previous paragraphs and to provide other forms of assistance with respect to the implementation of this Convention.

Article 19

Exercise of jurisdiction

Nothing in this Convention entitles a state party to undertake in the territory of another state party the exercise of jurisdiction or performance of functions that are exclusively reserved to the authorities of that other state party by its domestic law.

Article 20

Depositary

The original instrument of this Convention, the English, French, Portuguese, and Spanish texts of which are equally authentic, shall be deposited with the General Secretariat of the Organization of American States.

Article 21

Signature and ratification

1. This Convention is open for signature by all member states of the Organization of American States.

2. This Convention is subject to ratification by the signatory states in accordance with their respective constitutional procedures. The instruments of ratification shall be deposited with the General Secretariat of the Organization of American States.

Article 22

Entry into force

1. This Convention shall enter into force on the 30th day following the date of deposit of the sixth instrument of ratification of the Convention with the General Secretariat of the Organization of American States.

2. For each state ratifying the Convention after deposit of the sixth instrument of ratification, the Convention shall enter into force on the 30th day following the deposit by such state of its instrument of ratification.

Article 23

Denunciation

1. Any state party may denounce this Convention by written notification to the Secretary General of the Organization of American States. Denunciation shall take effect one year following the date on which notification is received by the Secretary General of the Organization.

2. Such denunciation shall not affect any requests for information or assistance made during the time the Convention is in force for the denouncing state.


ANNEX IV


AG/RES. 1906 (XXXII-O/02) HUMAN RIGHTS AND TERRORISM
(Adopted at the fourth plenary session held on June 4, 2002)


THE GENERAL ASSEMBLY,

REAFFIRMING the principles and purposes of the Charter of the Organization of American States and the Charter of the United Nations;

NOTING that everyone is entitled to all the rights and freedoms set forth in the Universal Declaration of Human Rights, without distinction of any kind such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and that this applies in all circumstances in accordance with International Law;

REITERATING that all persons are equal before the law and have the rights and duties established in the American Declaration of the Rights and Duties of Man, without distinction as to race, sex, language, creed, or any other factor;

REAFFIRMING that States may not renounce their duty to fully respect human rights and fundamental freedoms in all cases in the fight against terrorism;

TAKING INTO ACCOUNT the resolution of the Inter-American Commission on Human Rights “Terrorism and Human Rights” of December 12, 2001; and

WELCOMING the decision of the Inter-American Commission on Human Rights to prepare a report on terrorism and human rights designed to assist OAS member states in adopting laws, regulations, and other measures against terrorism, in keeping with their international commitments in the area of human rights,

RESOLVES:

1. To reiterate that the fight against terrorism must be waged with full respect for the law, human rights, and democratic institutions, so as to preserve the rule of law, freedoms, and democratic values in the Hemisphere.

2. To reaffirm the duty of the member states to ensure that all measures taken to combat terrorism are in keeping with obligations under international law.

3. To call upon member states, in particular within their respective national frameworks and in conformity with international commitments in the field of human rights, to enhance their cooperation with a view to bringing terrorists to justice.

4. To request that the Inter-American Commission on Human Rights present its report on terrorism and human rights to the Permanent Council for its consideration, if possible, in 2002.


Footnotes

[1] See IACHR, Ten Years of Activities 1971-1981 (General Secretariat, OAS: 1982),
at p. 339 [hereinafter Ten Years of Activities].

[2] See, e.g., Walter Laqueur, Reflections on Terrorism, 65 Foreign Affairs 86, 91 (1996) [hereinafter Laqueur, Reflections on Terrorism].

[3] See, e.g., Annual Report of the IACHR 1990-91, OEA/Ser.L/V/II.79 rev. 1 Doc. 12 (February 22, 1991), Chapter V, p. 512 [hereinafter Annual Report of the IACHR 1990-91].

[4] Well-known incidents of terrorist violence in the Americas include the 1976 bombing of a Cubana de Aviación passenger flight from Caracas, the July 18, 1994 bombing of the Asociación Mutual Israelita Argentina in Buenos Aires, Argentina, the hostage-taking at the Embassy of Japan in Lima, Peru in December 1996, and the 1999 hijacking of Avianca Flight 9463 en route from Bucaramanga to Bogotá, Colombia. See IACHR Press Release N° 15/94 dated July 20, 1994; IACHR Press Release N° 21/96 dated December 18, 1996; IACHR Press Release N° 11/99 dated April 16, 1999, Press Release 15/99 dated June 2, 1999, IACHR Press Release Nº 18/99 dated June 24, 1999.

[5] See Annual Report of the IACHR 2001, OEA/Ser./L/V/II.114, doc. 5 rev., 16 April 2001 [hereinafter Annual Report of the IACHR 2001, Chapter IV, Introduction; Resolution of the OAS Permanent Council, Convocation of the 23rd Meeting of Consultation of Ministers of Foreign Affairs, OEA/Ser.G CP/RES.796 (1293/01) (19 September 2001).

[6] See Ten Years of Activities, supra note 1, at 339; Case 11.182, Report Nº 49/00, Asencios Lindo et al. (Peru), Annual Report of the IACHR 2000, para. 58. See similarly I/A Court H.R., Neira Alegría Case, Judgment of January 19, 1995, Ser. A Nº 20.

[7] See, e.g., Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance, adopted on 2 February 1971, OAS Treaty Series, Nº 37. [hereinafter 1971 OAS Terrorism Convention].

[8] Inter-American Convention Against Terrorism, OAS General Assembly Resolution AG/RES. 1840 (XXXII-O/02) 2nd plenary session, June 3rd 2002 [hereinafter Inter-American Convention Against Terrorism].

[9] See, e.g., Annual Report of the IACHR 1992-93, OEA/Ser.L/V/II.83 Doc. 14 (March 12, 1993), Chapter V “Areas in which Steps Need to be Taken Towards Full Observance of the Human Rights Set Forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights” (discussing legislative and other measures taken by states in the Americas and elsewhere in responding to terrorist and other violence).

[10] Ten Years of Activities, supra note 1, at 339.

[11] Inter-American Convention Against Terrorism, supra note 8, Article 15.

[12] Annual Report of the IACHR 1990-91, supra note 3, Chapter V, at 512.

[13] Article 18(b) and (c) of the Statute of the Inter-American Commission on Human Rights [hereinafter Statute of the Inter-American Commission on Human Rights], in Basic Documents Pertaining to Human Rights the Inter-American System, OEA/Ser.L/V/I.4 rev. 8 (May 22, 2001), at 119, [hereinafter Basic Documents].

[14] OAS General Assembly Resolution AG/RES. 1840 (XXXII-O/02) of June 3, 2002 (see Annex III).

[15] As discussed below, there is at present no accepted definition of terrorism under international law. In its broadest sense, terrorism is frequently described as the use of violence to generate fear in the public in the pursuit of political aims. See, e.g., Declaration of Lima to Prevent, Combat, and Eliminate Terrorism, adopted at the second plenary session of the ministers and heads of delegation of the member states of the OAS for the Inter-American Conference on Terrorism, 26 April 1996, para. 3 (describing terrorism as a “serious form of organized and systematic violence, which is intended to generate chaos and fear among the population”) [hereinafter Declaration of Lima to Prevent, Combat, and Eliminate Terrorism]; UN General Assembly Resolution 51/210, A/RES/51/210 (17 December 1996) “Measures to eliminate international terrorism”, para. 2 (reiterating that “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.”).

[16] Charles A. Russell et al., Out-Inventing the Terrorist, in Terrorism: Theory and Practice 3 at 5 (Yonah Alexander et al., 1979) [hereinafter Russell].

[17] League of Nations, Convention for the Prevention and Punishment of Terrorism, O.J. 19 at 23 (1938), League of Nations Doc. C.546 (I).M.383 (I). 1937, V (1938), cited in M. Cherif Bassiouni, International Terrorism, in International Criminal Law, Crimes 765 (M. Cherif Bassiouni, ed., 2d ed., 1999) [hereinafter Bassiouni, International Terrorism].

[18] See, e.g., Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature December 16, 1970, 860 U.N.T.S. 105 [hereinafter Convention for the Suppression of Unlawful Seizure of Aircraft]. For an evaluation of recent United Nations’ efforts to develop a comprehensive Convention on International Terrorism, see International Commission of Jurists, Terrorism and Human Rights 202-210 (Federico Andreu Guzmán, ed., 2000).

[19] UN bodies which have considered the problem of terrorist violence include the Security Council, the General Assembly, and the International Law Commission. See, e.g., Security Council Resolution 1269(1999) on international cooperation in the fight against terrorism, UN SCOR, 4053rd meeting, UN Doc. S/RES/1269 (1999), 19 October 1999; UN General Assembly Resolution 3034 (XXVII) on measures to prevent international terrorism, UN GAOR, 2114th plenary meeting, 19 December 1972; Yearbook of the International Law Commission, 1990, Vol. II, Part II, pp. 28-29, Draft Code of Crimes Against Peace and Security of Mankind.

[20] See, e.g., European Convention on the Suppression of Terrorism, Europ. T.S. 90 (27 January 1997); Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight against Terrorism, (11 July 2002).

[21] See, e.g., European Parliament, Recommendations on the Role of the European Union in Combating Terrorism (2001/2016 (INI)), 5 September 2001.

[22] See, e.g., Decision on Combating Terrorism and the Bucharest Plan of Action for Combating Terrorism, Bucharest Ministerial Declaration, Ninth Meeting of the Ministerial Council, Organization for Security and Co-operation in Europe (3, 4 December 2001), Decision (MC(9).DEC/1) and Annex to MC(9).DEC/1.

[23] See, e.g., Organization of African Unity, Convention on the Prevention and Combating of Terrorism, adopted at Algiers on 13 July 1999, deposited with the General Secretariat of the Organization of African Unity [hereinafter OAU Convention on the Prevention and Combative of Terrorism].

[24] 1971 OAS Terrorism Convention, supra note 7.

[25] See OAS General Assembly Resolution, OEA/Ser.P, AG/RES. 1650 (XXIX-O/99), 7 June 1999 (establishing the Inter-American Committee against Terrorism). See also Inter-American Committee against Terrorism, Report of the Chairman on the Second Regular Session of the Inter-American Committee against Terrorism, OAS Doc. OEA/Ser.L/X.2.2CICTE/doc.9/02 (26 February 2002).

[26] Inter-American Convention Against Terrorism, supra note 8.

[27] One of the Commission’s earliest efforts to develop a doctrinal approach to the protection of human rights in the context of states of emergency prompted by terrorist and other forms of violence was a report prepared by the Commission’s special rapporteur, Dr. Daniel Hugo Martinus, and adopted by the Commission during its Sixteenth Period of Sessions from April 24 to May 3, 1967 on the “Protection of Human Rights in Connection with the Suspension of Constitutional Guarantees or “States of Siege””. OEA/Ser.L/V/II.15 Doc. 12, adopted by IACHR Resolution, OEA/Ser.L/V/II.17 Doc. 24. The Commission has also addressed the problem of terrorist violence in many of its special reports on the situation of human rights in countries of the Hemispheres. See, e.g., IACHR, Report on the Situation of Human Rights in El Salvador (1978), OEA/Ser.L/V/II.46, doc. 23 rev. 1, 17 November 1978 [hereinafter IACHR, Report on El Salvador (1978)]; IACHR, Report on the Situation of Human Rights in Argentina (1980), OEA/Ser.L/V/II.49, doc. 19, 11 April 1980 [hereinafter IACHR Report on Argentina (1980)]; IACHR, Report on the Situation of Human Rights in Colombia (1981), OEA/Ser.L/V/II.53, doc. 22, 30 June 1981 [hereinafter IACHR Report on Colombia (1981)], Report on the Situation of Human Rights in Guatemala (1981), OEA/Ser.L/V/II.53, doc. 21 rev. 2, 13 October 1981; Report on the Situation of Human Rights in Peru (1993), OEA/Ser.L/V/II.83, Doc. 31, 85th Session, March 12, 1993, Report on the Situation of Human Rights in Peru (2000) OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, [hereinafter IACHR Report on Peru (2000)]. See generally Annual Report of the IACHR 1990-91, supra note 3, Ch. V, Part II “Groups of Armed Irregulars and Human Rights.”

[28] See, e.g., Report of the Ad Hoc Committee by General Assembly Resolution 51/210 of 17 December 1996, Fifth Session (12-23 February 2001), UN Doc. A/56/37, Annex V, para. 10 (indicating that in the general exchange of views on including a definition of terrorism in a comprehensive UN convention on international terrorism, “some delegations stressed that the definition of terrorism must clearly differentiate between terrorism and the legitimate struggle in the exercise of right to self-determination and independence of all peoples under foreign occupation.”).

[29] See W. Michael Reisman, In Defense of World Public Order, 95 Am J. Int’l L. 833, 834 (2001) [hereinafter Reisman 2001]; Walter Laqueur, Postmodern Terrorism, 75 Foreign Affairs 24, 34 (1996) [hereinafter Laqueur, Postmodern Terrorism] (opining that “as the century draws to a close, terrorism is becoming the substitute for the great wars of the 1800’s and early 1900’s”).

[30] See, e.g., Remarks by the President at the 2002 Graduation Exercises of the United States Military Academy, West Point, New York, June 1, 2002, White House, Office of the Press Secretary (proclaiming that “[h]omeland defence and missile defence are part of a stronger security, and they’re essential priorities for America. Yet the war on terrorism will not be won on the defensive. We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge. In the world we have entered, the only path to safety is the path of action. And this nation will act.” See also Scott Lindlaw, “Bush Pledges Pre-emptive Strikes”, Associated Press, June 1, 2002).

[31] Recent attempts to achieve international agreement on a comprehensive definition of terrorism include the negotiations for the Statute for the International Criminal Court, during which proposals were made to include terrorism within the jurisdiction ratione materiae of the Court. These efforts proved unsuccessful, with the result that any further proposals to include this or other crimes as amendments to the subject matter jurisdiction cannot be made for a period of seven years following the coming into force of the treaty. See Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Done at Rome on 17 July 1998, A/CONF.183/10, Resolution E, A/CONF.183/C.1/L.76/Add.14, at 8; Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), corrected by the procés-verbaux of 10 November 1998 and 12 July 1999, entered into force July 1, 2002, Article 121(1) [hereinafter Rome Statute]. See similarly UN Press Release L/2993 of February 1, 2002 on Ad Hoc Committee on Assembly Resolution 51/210, 6th Sess., 26th mtg. (1 February 2002) (indicating that the Ad Hoc Committee Established by General Assembly Resolution 51/201 of December 17, 1996, which is charged with preparing a comprehensive international treaty on terrorism, had not reached an agreement on, inter alia, a definition of terrorism under Article 2 of the draft treaty); Report of the Sixth Committee, UN Doc. 34/786 (December 1979) (indicating that a subject matter oriented approach to preventing, controlling and suppressing terrorism dominated the ad hoc UN committee on international terrorism in 1973, 1977 and 1979 because efforts to develop a comprehensive definition of terrorism proved politically difficult).

[32] Article 2 of the Inter-American Convention Against Terrorism defines “offenses” for the purposes of the Convention as including those crimes established in ten international instruments, including the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971, and the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973; Inter-American Convention Against Terrorism, supra note 8, Article 2.

[33] See, e.g., International Convention Against the Taking of Hostages, UN Res. 34/145 (XXXIV), 34 UN GAOR Supp. (Nº 46), at 345, UN Doc. A/34/146 (1979), 1316 U.N.T.S. 205 [hereinafter 1979 UN Hostages Convention].

[34] See, e.g., Convention on Offenses and Certain other Acts Committed on Board Aircraft, opened for signature September 14, 1963, 704 U.N.T.S. 219 [hereinafter 1963 Hijacking Convention]; Convention for the Suppression of Unlawful Seizure of Aircraft, supra note 18; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, opened for signature at Montreal, September 23, 1971, 974 U.N.T.S. 177 [hereinafter 1971 Montreal Convention].

[35] See, e.g., Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, opened for signature Dec. 14, 1973, 1035 U.N.T.S. 167 [hereinafter UN Crimes Against Internationally Protected Persons Convention]; Convention on the Safety of United Nations and Associated Personnel, UN Doc. A/RES/49/59 (1995), (17 February 1995).

[36] Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force Oct. 21, 1950, Article 33 [hereinafter Fourth Geneva Convention] (providing, inter alia, that “all measures of intimidation or of terrorism are prohibited.”). See similarly Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force Dec. 7, 1978, Article 13 [hereinafter Second Additional Protocol, or Additional Protocol II]. For OAS members states that are parties to these instruments, see Annex II.

[37] Professor W. Michael Reisman has urged a similar approach in developing international responses to terrorism, observing that

[I]n any consideration of the range of lawful responses to international terrorism, the policymaker and adviser should eschew rather narrowly bounded a priori definitions of terrorism as well as unexamined assumptions about the marginality or inherent lack of utility of terrorism. It will be useful to look, instead, at the full range of possible authors of terrorism, assessing what contemporary international law has prescribed and should prescribe with respect to responses to each of them in such a way as to address the dangers international terrorism poses to world order.

W. Michael Reisman, International Legal Responses to Terrorism, 22 Hous. J. Int’l L. 3, 12-13 (1999) [hereinafter Reisman 1999]. See similarly Jonathan Charney, The Use of Force Against Terrorism and International Law, 95 Am J. Int’l L. 835 (2001); Thomas Franck, Terrorism and the Right of Self-Defense, 95 Am. J. Int’l L. 839 (2001).

[38] See, e.g., UN Declaration on Measures to Eliminate International Terrorism, annexed to UN General Assembly Resolution 49/60, UN Doc. A/RES/49/60 (7 February 1995), Article 3.

[39] See generally Bassiouni, International Terrorism, supra note 17, at 770-1.

[40] International bodies, including this Commission and the UN Security Council, have condemned the perpetration or sponsorship of terrorism by states. See, e.g., Annual Report of the IACHR 1990-91, supra note 3, Ch. V; Security Council Resolution 1373, UN SCOR, 4385th meeting, 28 September 2001, S/RES/1373 (2001) (requiring all member states to prevent and suppress acts of international terrorism, especially denying terrorists the use of the state’s territories and access to sources of funding.) [hereinafter UNSC Resolution 1373]. Some experts on terrorism posit that truly effective concerted action against terrorism is possible only by targeting those rulers of countries that are the sponsors of international terrorism. See, e.g., Walter Laqueur, Reflections on Terrorism, supra note 2, at 98.

[41] See Annual Report of the IACHR 1990-91, supra note 3, Ch. V (condemning state terrorism in the following terms:)

The other phenomenon that caused the Inter-American Commission on Human Rights to define the legal framework for its activities in connection with the issue of terrorism was the frequent use of terrorism by governments, where the Commission has established massive and systematic human rights violations were being committed. Thus, for example, governments such as those that resulted from the coup d’etat in Chile on September 11, 1973, or in Argentina on March 26, 1976, or the government [created] by General Anastasio Somoza in Nicaragua–to mention a few–argued that their actions were in response to the need to deal with terrorist attacks […] such generalized violence, even terrorist violence, cannot ever be used to justify the violations that occur.

[42] Annual Report of the IACHR 1990-91, supra note 3, Ch. V, Part II.

[43] Russell, supra note 16, at 12-13.

[44] Laqueur, Reflections on Terrorism, supra note 2, at 91. See similarly Reisman 2001, supra note 29, at 834.

[45] Russell, supra note 16, at 4-5.

[46] For discussions of the possible use of nuclear, chemical, biological and other weapons of mass destruction by terrorists, see Laqueur, Postmodern Terrorism, supra note 29, at 28-31. See also Russell, supra note 16, at 10-13.

[47] Reisman 1999, supra note 37, at 6-7.

[48] Bassiouni, International Terrorism supra note 17, at 785. Other publicists have cautioned, however, that the propensity of terrorists to sacrifice their lives has been exaggerated and does not support the view that terrorism can only be subdued through extreme measures that themselves may contravene the values of a democratic society. Laqueur, Reflections on Terrorism, supra note 2, at 93-94.

[49] See infra Part III(C), paras. 67-70 for a discussion of the meaning of and criteria for privileged and unprivileged combatants and prisoner of war status under the 1949 Geneva Conventions and Additional Protocol I thereto.

[50] According to Professor Antonio Cassese, the rights and privileges afforded by international humanitarian law “are not subject to restrictions because of alleged terrorist activity by detainees. Terrorist acts, if they are proved, only result in the terrorists becoming responsible for war crimes or crimes against humanity.” Antonio Cassese, Terrorism and Human Rights, 31 Am U. L. Rev. 945, 951 (1982). See also Reisman 1999, supra note 37, at 11-12 .

[51] See, e.g., Fourth Geneva Convention, supra note 36, Article 33 (prohibiting “all measures of intimidation or of terrorism” in connection with protected persons), Article 147 (including “taking of hostages” among the grave breaches when committed against persons or property protected by the Fourth Geneva Convention); Additional Protocol II, supra note 36, Article 4(2)(d) (prohibiting “acts of terrorism” at any time and in any place whatsoever), Article 13 (prohibiting “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”).

[52] As Professor David Martin observed in connection with the March 11, 2002 panel of experts hearing before the Commission, “the international community is now at a difficult point of adapting, or applying by analogy, many of the established rules to the new circumstances posed by highly organized global terrorism committed by non-state actors.” For a discussion of anti-terrorism initiatives adopted by a variety of states around the globe, see Measures to Eliminate International Terrorism, Report of the UN Secretary General, fifty-sixth session of the UN General Assembly, UN Doc. A/56/160 (3 July 2001). For an analysis of the extent to which anti-terrorist measures taken by governments around the world following September 11, 2001 have potentially restricted civil liberties, see “For Whom the Liberty Bell Tolls”, The Economist, August 31-September 6, 2002, p. 18.

[53] See, e.g., OAS Permanent Council Resolution 1293 (2001), Convocation of the Twenty-Third Meeting of Consultation of Ministers of Foreign Affairs OEA/Ser.G CP/RES. 796 (1293/01) (19 September 2001), para. 4 (urging all member states to support international efforts to bring those responsible for the September 11, 2001 terrorist attacks to justice and to promote inter-American cooperation, especially through information sharing, for that purpose); UNSC Resolution 1373, supra note 40, para. 3(a), (b), (c) (calling upon states to intensify and accelerate the exchange of operational information regarding, inter alia, actions or movements of terrorist persons or networks, exchange information in administrative and judicial matters to prevent the commission of terrorist acts, and cooperate particularly through bilateral and multilateral arrangements and agreements to prevent and suppress terrorist acts and take action against perpetrators of such acts).

[54] See, e.g., UNSC Resolution 1373, supra note 40, para. 3(f), (g) (calling upon all States to take appropriate measures to ensure that asylum-seekers have not planned, facilitated or participated in the commission of terrorist acts, that refugee status is not abused by the perpetrators, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists).

[55] See, e.g., I/A Court H.R., Castillo Petruzzi et al. Case, Judgment of May 30, 1999, Series C Nº 52; Declaration of Lima to Prevent, Combat, and Eliminate Terrorism, supra note 15, para. 5 (declaring that terrorist acts are serious common crimes or felonies and, as such, should be tried by national courts in accordance with domestic law and the guarantees provided by the rule of law).

[56] See, e.g., International Convention for the Suppression of the Financing of Terrorism of 9 December 1999, UN General Assembly Resolution A/RES/54/109; UNSC Resolution 1373, supra note 40, para. 1 (deciding that all States should, inter alia, prevent and suppress the financing of terrorist acts, and “freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities.”).

[57] See, e.g., Statement to the Press, NATO Secretary General Lord Robertson, on the North Atlantic Council Decision On Implementation of Article 5 of the Washington Treaty following the 11 September Attacks Against the United States, 4 October 2001 on the internet at www.nato.int/docu/speech/2001/s011004b.htm, last visited April 23, 2002; OAS Permanent Council Resolution 797, Convocation of the Twenty-Fourth Meeting of Consultation of Ministers of Foreign Affairs to Serve as Organ of Consultation in Application of the Inter-American Treaty of Reciprocal Assistance, OEA/Ser.G CP/RES. 797 (1293/01) (19 September 2001).

[58] See, e.g., Inter-American Convention Against Terrorism, supra note 8.

[59] See, e.g., Inter-American Convention Against Terrorism, supra note 8, Article 11; European Convention on the Suppression of Terrorism, supra note 20, Article 1.

[60] Ten Years of Activities, supra note 1, at 339; Asencios Lindo et al. Case, supra note 6, para. 58; Neira Alegría Case, supra note 6.

[61] Annual Report of the IACHR 1990-91, supra note 3, Ch. V, Part II, at 513; Neira Alegría Case, supra note 6; American Convention on Human Rights, in Basic Documents, supra, note 13, Articles 1, 2.

[62] Annual Report of the IACHR 1990-91, supra note 3, Ch. V, Part II, at 512. Full respect for the rule of law and fundamental human rights has been explicitly recognized by OAS member states as a necessary requirement for efforts to combat terrorism. See, e.g., OAS General Assembly Resolution AG/RES. 1043 (XX-0/90), OAS GA twentieth regular session, 1990; Inter-American Convention Against Terrorism, supra note 8, Preamble, Article 15.

[63] American Declaration of the Rights and Duties of Man [hereinafter American Declaration], in Basic Documents, supra note 13, at 15

[64] American Convention on Human Rights [hereinafter American Convention], in Basic Documents, supra note 13, at 23.

[65] Universal Declaration of Human Rights, GA Res. 217A(III), UN Doc. A/810 at 71 (1948) [hereinafter Universal Declaration of Human Rights].

[66] International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), 21 UN GAOR (Supp. Nº 16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976 [hereinafter International Covenant on Civil and Political Rights]. For OAS member states that are parties to this instrument, see Annex II.

[67] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field , 75 U.N.T.S. 31, entered into force Oct. 21, 1950, [hereinafter First Geneva Convention], Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, entered into force Oct. 21, 1950 [hereinafter Second Geneva Convention], Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force Oct. 21, 1950 [hereinafter Third Geneva Convention], Fourth Geneva Convention, supra note 36. For OAS member states that are parties to these instruments, see Annex II.

[68] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, entered into force Dec. 7, 1978 [hereinafter First Additional Protocol or Additional Protocol I]; Additional Protocol II, supra note 36. For OAS member states that are parties to these instruments, see Annex II.

[69] See generally T Buergenthal, To Respect and Ensure: State Obligations and Permissible Derogations, in The International Bill of Rights 73, at 89 (L. Henkin, ed. 1981) [hereinafter Buergenthal, To Respect and Ensure]. The predominance of states’ human rights obligations in efforts to suppress terrorism has been recognized in Article 15 of the Inter-American Convention Against Terrorism, which provides: “1. The measures carried out by states parties under this Convention shall take place with full respect for the rule of law, human rights and fundamental freedoms. 2. Nothing in this Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, in particular the Charter of the United Nations, the Charter of the Organization of American States, international humanitarian law, international human rights law, and international refugee law. 3. Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including the enjoyment of all rights and guarantees in conformity with the law of the state on the territory of which that person is present and applicable provisions of international law.”

[70] See Annex I.

[71] Inter-American Convention Against Terrorism, supra note 8, Article 15.

[72] For further recognition by OAS member states of this requirement, see OAS General Assembly Resolution AG/RES.1906 (XXXII-O/02) (June 4, 2002), para. 1 (reiterating that “the fight against terrorism must be waged with full respect for the law, human rights, and democratic institutions, so as to preserve the rule of law, freedoms, and democratic values in the Hemisphere.”).

[73] See Case 11.137, Report Nº 5/97, Abella (Argentina), Annual Report of the IACHR 1997, para. 161; Coard et al. (United States), Case 10.951, Report Nº 109/99, Annual Report of the IACHR 1999, paras. 37-42; I/A Court H.R., Advisory Opinion OC-1/82, “Other Treaties” Subject to the Advisory Jurisdiction of the Court (Article 64 American Convention on Human Rights), September 24, 1982, Ser. A. Nº 1; I/A Court H.R., Advisory Opinion OC-10/89, Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, July 14, 1989, Ser. A Nº 10; I/A Court H.R., Bámaca Velásquez Case, Judgment of November 25, 2000, Ser. C Nº 70, p. 473 at 557, paras. 207-209. See similarly ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, July 8 1996, ICJ Reports 1996, para. 25 [hereinafter ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons].

[74] Ten Years of Activities, supra note 1, at 339; Asencios Lindo et al. Case, supra note 6, para. 58.

[75] Annual Report of the IACHR 1990-91, supra note 3, Ch. V, Part II, at 513; Neira Alegría Case, supra note 6; American Convention on Human Rights, supra note 61, Articles 1, 2.

[76] 1979 UN Hostages Convention, supra note 33.

[77] 1971 Montreal Convention, supra note 34.

[78] UN Crimes Against Internationally Protected Persons Convention, supra note 35.

[79] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 1 (“(1) Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the “hostage”) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offense of taking hostages (“hostage-taking“) within the meaning of this Convention.”) See similarly 1971 Montreal Convention, supra note 341, Article 1; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Article 2(1).

[80] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 2 (“Each State Party shall make the offenses set forth in article 1 punishable by appropriate penalties which take into account the grave nature of those offenses.” See similarly 1971 Montreal Convention, supra note 34, Article 3; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Article 2(2).

[81] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 5 (“(1) Each State Party shall take such measures as may be necessary to establish its jurisdiction over any offenses set forth in Article 1 which are committed: (a) in its territory or on board a ship or aircraft registered in that State; (b) by any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual residence in its territory; (c) in order to compel that State to do or abstain from doing any act; or (d) with respect to a hostage who is a national of that State, if that State considers it appropriate. (2) Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offenses set forth in Article 1 in cases where the alleged offender is present in its territory and it does not extradite him to any of the States mentioned in paragraph 1 of this Article. (3) This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law”); Article 6. See similarly 1971 Montreal Convention, supra note 34, Articles 5, 6, 7; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Articles 3, 6, 7.

[82] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 4 (“States Parties shall cooperate in the prevention of the offenses set forth in article 1, particularly by: (a) Taking all practicable measures to prevent preparations in their respective territories for the commission of those offenses, within or outside of their territories, including measures to prohibit in their territories illegal activities of persons, groups and organizations that encourage, instigate, organize or engage in the perpetration of acts of taking of hostages; (b) Exchanging information and co-ordinating the taking of administrative and other measures as appropriate to prevent the commission of those offenses.”), Article 11. See similarly 1971 Montreal Convention, supra note 34, Articles 11.12; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Articles 4, 10.

[83] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 10 (“(1) The offenses set forth in article 1 shall be deemed to be included as extraditable offenses in any extradition treaty existing between States Parties. States Parties undertake to include such offenses as extraditable offenses in every extradition treaty to be concluded between them. (2) If a State Party which makes extradition conditional on the existence of a treaty received a request for extradition from another State Party with which it has no extradition treaty, the requested State may at its option consider this Convention as the legal basis for extradition in respect of the offenses set forth in article 1. Extradition shall be subject to the other conditions provided by the law of the requested State. (3) States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offenses set forth in article 1 as extraditable offenses between themselves, subject to the conditions provided by the law of the requested state. (4) The offenses set forth in Article 1 shall be treated, for the purpose of extradition between State Parties, as if they had been committed not only in the place where they occurred but also in the territories of the States required to establish their jurisdiction in accordance with paragraph 1 of Article 5.”) See similarly 1971 Montreal Convention, supra note 34, Article 8; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Article 8.

[84] See, e.g., European Convention on the Suppression of Terrorism, supra note 20, Article 1 (providing: “For the purposes of extradition between Contracting States, none of the following offences shall be regarded as a political offence or as an offence connected with a political offence or as an offence inspired by political motives: (a) an offence within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970; (b) an offence within the scope of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971; (c) a serious offence involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents; (d) an offence involving kidnapping, the taking of a hostage or serious unlawful detention; (e) an offence involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons; (f) an attempt to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.”; Inter-American Terrorism Convention, supra note 8, Article 11.

[85] I/A Court H.R., El Amparo Case, Reparations (Article 63(1) American Convention on Human Rights), Judgment of September 14, 1996, Series C Nº 28, paras. 53-55, 61.

[86] See UN General Assembly Res. 55/158, 12 December 2000.

[87] See, e.g., Reports of the Working Group of the Sixth Committee of the UN General Assembly, UN Doc. A/AC.752/2002.CRP.1; A/AC.252/2002/CRP.1 Add.1.

[88] The most recent accessible version of the draft treaty appears to be included in the Sixth Committee Working Group’s Report of October 29, 2001 containing articles 3 to 17 bis, 20 to 27, and 2 bis (Working Group of the Sixth Committee of the General Assembly of the United Nations, Measures to eliminate international terrorism, Sixth Committee, 56th session, UN Doc. A/C.6/56/L.9 (29 October 2001) [hereinafter Working Group 2001 Report], as well as in the Working Group’s October 2000 report, containing the preamble and Articles 1 and 18 (Working Group of the Sixth Committee of the General Assembly of the United Nations, Measures to eliminate international terrorism, Sixth Committee, 55th session, UN Doc. A/C.6/55/L.2 (19 October 2000) [hereinafter Working Group 2000 Report]). A further draft of the convention was included in the Ad Hoc Committee’s report from its January 28 to February 1, 2002 meeting but as of this writing the Ad Hoc Committee’s report was not available. See UN Press Release L/2993 of February 1, 2002 on the Ad Hoc Committee on General Assembly Resolution 51/210, 6th Session, 26th meeting, citing UN Doc. A/AC.252/2002/CRP.1 and Add.1

[89] See, e.g., Report of the Ad Hoc Committee by General Assembly Resolution 51/510 of 17 December 1996, Fifth Session (12-23 February 2001), UN Doc. A/56/37, paras. 5-22.

[90] See, e.g., Working Group of the Sixth Committee of the General Assembly of the United Nations, Measures to eliminate international terrorism, Sixth Committee, 56th session, UN Doc. A/C.6/56/L.9, paras. 4-9.

[91] See UN Press Release GA/L/3211, 57th General Assembly, Sixth Committee, 10th meeting (4 October 2002).

[92] See, e.g., European Convention for the Suppression of Terrorism, supra note 20; OAU Convention on the Prevention and Combating of Terrorism, supra note 23.

[93] Inter-American Terrorism Convention, supra note 8, Article 1 and Annex II (providing that “purposes of this Convention are to prevent, punish, and eliminate terrorism. To that end, the states parties agree to adopt the necessary measures and to strengthen cooperation among them, in accordance with the terms of this Convention”).

[94] OAS, Secretariat for Legal Affairs, Department of Legal Cooperation and Information, Inter-American Convention against Terrorism, Signatories and Ratifications, available at <http:// www. oas. org/juridico/English/sigs/a-66.html> (listing the following signatories to the Inter-American Convention against Terrorism as of October 2, 2002: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Saint Kitts & Nevis, Saint Lucia, St. Vincent & the Grenadines, Suriname, Trinidad and Tobago, United States, Uruguay and Venezuela).

[95] Inter-American Convention Against Terrorism, supra note 8, Articles 8, 9.

[96] Inter-American Convention Against Terrorism, supra note 8, Articles 11, 12.

[97] Inter-American Convention Against Terrorism, supra note 8, Article 2(1) (“For the purposes of this Convention, “offenses” means the offenses established in the international instruments listed below: a. Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970. b. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971. c. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973. d. International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979. e. Convention on the Physical Protection of Nuclear Material, signed at Vienna on March 3, 1980. f. Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988. g. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988. h. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988. i. International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997. j. International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999. (2) Upon depositing its instrument of ratification to this Convention, a state party that is not a party to one or more of the international instruments listed in paragraph 1 of this article may declare that, in application of this Convention to such state party, that particular instrument shall be deemed not to be included in that paragraph. The declaration shall cease to have effect as soon as that instrument enters into force for that state party, which shall notify the depositary of this fact. (3) When a state party ceases to be a party to one of the international instruments listed in paragraph 1 of this article, it may make a declaration, as provided in paragraph 2 of this article, with respect to that instrument”).

[98] Inter-American Convention Against Terrorism, supra note 8, Article 4.

[99] Inter-American Convention Against Terrorism, supra note 8, Article 5.

[100] Inter-American Convention Against Terrorism, supra note 8, Article 15.

[101] See, e.g., OAS General Assembly Res. AG/RES. 314 (VII-0/77) of June 22, 1977; OAS General Assembly Res. AG/RES. 370 (VIII-0/78) of July 1, 1978; AG/RES. 1829, (XXXI-0/01) of June 5, 2001.

[102] See Advisory Opinion OC-10/89, supra note 73, paras. 43–46; Case 9647, Res. 3/87, James Terry Roach and Jay Pinkerton (United States), Annual Report of the IACHR 1986-87, paras. 46-49; Case 12.067, Report Nº 48/01, Michael Edwards et al. (Bahamas), Annual Report of the IACHR 2000, para. 107.

[103] The Commission has considered that it is beyond question that the core rights protected under the American Declaration, including the right to life, the right to liberty and the right to due process and to a fair trial, constitute customary norms of international law. Case 12.379, Report Nº 19/02 (Inadmissibility) (27 February 2002), Alfredo Lares Reyes et al. (United States), Annual Report of the IACHR 2001 para. 46.

[104] Advisory Opinion OC-10/89, supra note 73, paras. 43–46.

[105] Inter-American Convention to Prevent and Punish Torture, signed at Cartagena de Indias, Colombia, on December 9, 1985 at the fifteenth regular session of the General Assembly, [hereinafter Inter-American Torture Convention], in Basic Documents, supra note 63, at 83. For OAS member states that are parties to this instrument, see Annex II.

[106] Inter-American Convention on the Forced Disappearance of Persons, adopted at Belem do Para, on June 9, 1994, at the twenty-fourth regular session of the General Assembly [hereinafter Inter-American Convention on Forced Disappearances], in Basic Documents, supra note 63, at 93. For OAS member states that are parties to this instrument, see Annex II.

[107] Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, adopted at Belem do Pará, Brazil on June 9, 1994, at the twenty-fourth regular session of the General Assembly, [hereinafter Inter-American Convention on Violence Against Women], in Basic Documents, supra note 63, at 101. For OAS member states that are parties to this instrument, see Annex II.

[108] Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, signed at San Salvador, El Salvador on November 17, 1988 at the eighteenth regular session of the General Assembly, in Basic Documents, supra note 63, at 65.

[109] See Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, Article 27 [hereinafter Vienna Convention on the Law of Treaties]. See also I/A. Court H.R., Advisory Opinion OC-14/94, International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Articles 1 and 2 of the American Convention on Human Rights, 9 December 1994, Ser. A Nº 14, para. 35 (recognizing that "[p]ursuant to international law, all obligations imposed by it must be fulfilled in good faith; domestic law may not be invoked to justify nonfulfillment. These rules may be deemed to be general principles of law and have been applied by the Permanent Court of International Justice and the International Court of Justice even in cases involving constitutional provisions."); Greco-Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J., Series B, Nº 17, p.32; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, Nº 44, p. 24; Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, Nº 46, p. 167.

[110] Abella Case, supra note 73, para. 158. See also Coard et al. Case, supra note 73; IACHR, Third Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.102 doc. 9 rev. 1, 26 February 1999 [hereinafter IACHR Report on Colombia (1999)].

[111] See, e.g., ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 73, para. 25 (confirming that “the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.”).

[112] See, e.g., American Convention on Human Rights, supra note 61, Article 27 (specifically permitting derogations from certain rights “[i]n time of war, public danger, or other emergency that threatens the independence or security of a State Party”). See similarly International Covenant on Civil and Political Rights, supra note 66, Article 4.

[113] See I/A Court H.R., Advisory Opinion OC-2/82, The Effect of Reservations in the Entry into Force of the American Convention on Human Rights (Articles 74 and 75), September 24, 1982, Ser. A Nº 2, para. 29 (emphasizing that

modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction.

[114] See, e.g., Case 9903, Report Nº 51/01, Ferrer-Mazorra et al. (United States), Annual Report of the IACHR 2000, para. 178, citing, inter alia, Advisory Opinion OC-2/82, supra note 113, para. 29; Report No. 38/99, Saldaño Case (Argentina), Annual Report of the IACHR 1998, paras. 15-20; Coard et al. Case, supra note 73, para. 37, citing, inter alia, IACHR, Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.66, doc. 17, 1985 [hereinafter IACHR Report on Chile (1985)], Second Report on the Situation of Human Rights in Suriname, OEA/Ser.L/V/II.66, doc. 21, rev. 1, 1985. See similarly Eur. Comm. H.R., Cyprus v. Turkey, 18 Y.B. Eur. Conv. Hum. Rgts. 83 (1975) at 118; Eur. Court. H.R., Loizidou v. Turkey, Preliminary Objections, 23 March 1995, Series A Nº 310, paras. 59-64 [hereinafter Loizidou, Preliminary Objections].

[115] See American Declaration, supra note 63, Preamble (“The American States have on repeated occasions recognized that the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon the attributes of his human personality”; American Convention on Human Rights, supra note 61, Preamble “Recognizing that the essential rights of man are not derived from one’s being a national of a certain state, but are based upon the attributes of the human personality…”).

[116] Charter of the Organization of American States [hereinafter OAS Charter], in Basic Documents, supra note 63, at 193, Article 3(l]; American Declaration, supra note 63, Article II; American Convention on Human Rights, supra note 61, Articles 1(1), 24.

[117] American Declaration, supra note 63, Article XVII, American Convention on Human Rights, supra note 61, Article 3.

[118] Universal Declaration of Human Rights, supra note 65.

[119] International Covenant on Civil and Political Rights, supra note 66.

[120] UN Convention relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 [hereinafter UN Convention on the Status of Refugees]. For OAS member states that are parties to this instrument, see Annex II.

[121] Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267, [hereinafter UN Protocol on the Status of Refugees]. For OAS member states that are parties to this instrument, see Annex II.

[122] UN Convention on the Rights of the Child, 20 November 1989, GA Res. 44/25, Annex 44 UN GAOR Supp. (No. 49) at 167, UN Doc. A/44/49 (1989), [hereinafter UN Convention on the Rights of the Child]. For OAS member states that are parties to this instrument,
see Annex II.

[123] International Convention on the Elimination of all Forms of Racial Discrimination, 21 December 1965, 660 U.N.T.S. 195 [hereinafter International Convention on the Elimination of all Forms of Racial Discrimination]. For OAS member states that are parties to this instrument, see Annex II.

[124] Vienna Convention on Consular Relations, April 24, 1963, 596 U.N.T.S. 261 [hereinafter Vienna Convention on Consular Relations]. For OAS member states that are parties to this instrument, see Annex II.

[125] First Geneva Convention, supra note 67; Second Geneva Convention, supra note 67; Third Geneva Convention, supra note 67; Fourth Geneva Convention, supra note 36.

[126] Additional Protocol I, supra note 68; Additional Protocol II, supra note 36.

[127] See, e.g., American Convention on Human Rights, supra note 61, Article 29(b) (“No provision of this Convention shall be interpreted as restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which none of the states is a party.”); International Covenant on Civil and Political Rights, supra note 66, Article 5(2) (“There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any state Party to the present Covenant pursuant to law, convention, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.”); Additional Protocol I, supra note 68, Article 75(8) (“No provision of this Article may be construed as limiting or infringing any other more favorable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.”). See generally Buergenthal, To Ensure and Respect, supra note å, at 89-90.

[128] In respect of member states that have signed but not yet ratified certain instruments, Article 18 of the Vienna Convention on the Law of Treaties, supra note 109, provides that a “State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty [. . .].”

[129] I/A Court H.R., Advisory Opinion OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, October 1, 1999, Ser. A
Nº 16, para. 114, citing, inter alia, the decisions of the European Court of Human Rights in Tyrer v. United Kingdom, Judgment of April 25, 1978, Ser. A No. 26, pp. 15-16, para. 31; Marckx v. Belgium, Judgment of June 13, 1979, Ser. A Nº 31, p. 19, para. 41, and Loizidou, Preliminary Objections, supra note 114, para. 71.

[130] Id. See also Case 12.243, Report Nº 52/01, Juan Raul Garza (United States), Annual Report of the IACHR 2000, paras. 88-89; Advisory Opinion OC-1/82, supra note 73; Advisory Opinion OC-10/89, supra note 73, para. 37; I/A Court H.R., Villagran Morales Case, Judgment of November 19, 1999, Series C Nº 63, at paras. 178-198 (referring to the UN Convention on the Rights of the Child, supra note 122). See similarly ICJ, Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), June 21, 1971, I.C.J. Reports 1971, p. 16 at 31 stating that "an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of the interpretation").

[131] See OAS Charter, supra note 116, Article 106 ("There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters."); American Convention on Human Rights, supra note 61, Article 41 ("The main function of the Commission shall be to promote respect for and defense of human rights."); Statute of the Inter-American Commission on Human Rights, supra note 13, Articles 18-20.

[132] It is well-established that, unlike domestic criminal law, it is not necessary to determine a perpetrators’ culpability or intent in order to establish that a state’s human rights obligations have been violated, nor is it essential to identify individually the agents to whom the acts of violation are attributed. As the Inter-American Court has recognized, “[t]he sole requirement is to demonstrate that the State authorities supported or tolerated infringement of the rights recognized in the Convention. Moreover, the State’s international responsibility is also at issue when it does not take the necessary steps under its domestic law to identify and, where appropriate, punish the authors of such violations.” See I/A Court H.R., Paniagua Morales et al. Case, Judgment of March 8, 1998, Series C, Nº 37, para. 91. See similarly Case 11.654, Report Nº 62/01, Riofrío Massacre (Colombia), Annual Report of the IACHR 2000, paras. 48-52.

[133] See OAS Charter, supra note 116, Article 106; Statute of the Inter-American Commission on Human Rights, supra note 13, Articles 18-20; IACHR Report on Colombia (1999), supra note 110, Chapter IV, paras. 2, 3.

[134] See, e.g., IACHR Report on Colombia (1999), supra note 110, Chapter 4, para. 6. See similarly IACHR, Second Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.84, Doc. 39 rev., at 247 [hereinafter IACHR Report on Colombia (1993)].

[135] Annual Report of the IACHR 1990-91, supra note 3, Ch. V, at 504 and following.

[136] Abella Case, supra note 73, para. 158. See also Coard et al. Case, supra note 73, paras. 37-42; IACHR Report on Colombia (1999), supra note 110.

[137] See, e.g., International Covenant on Civil and Political Rights, supra note 66, Article 4; Article 15 of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, (ETS No. 5), 213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11 [hereinafter European Convention on Human Rights], Article 15.

[138] American Convention on Human Rights, supra note 61, Article 27. For an accounting of the travaux préparatoire to Article 27 of the American Convention on Human Rights, see The Inter-American System (T. Buergenthal and R. Norris, eds., 1984), Vol. 1, Booklet 12, at 135, Minutes of the 14th session of the San José Conference, 17 November 1969.

[139] See, e.g., IACHR, Report on the Situation of Human Rights in Paraguay (1987), OEA/Ser.L/V/II.71 Doc. 19 rev. 1 (28 September 1987) at 15-16 [hereinafter IACHR, Report on Paraguay (1987)]; IACHR Report on Argentina (1980), supra note 27, at 26. As early as 1968, the Commission stipulated that rules of derogation equivalent to those under Article 27 of the American Convention on Human Rights applied to member states’ human rights obligations, then as embodied in the OAS Charter and the American Declaration. See Resolution adopted during the 18th session of the IACHR (April 1968), OEA/Ser.L/V/II.19 Doc. 32, reproduced in Inter-Am. Y.B. Hum. Rts. 1968, at 61 (declaring that: “the suspension of constitutional guarantees or 'state of siege' is compatible with the system of representative democratic government only if enacted under the following conditions: a. When officially decreed under the procedure established in the respective constitutions; b. When established in a measure strictly limited to the exigencies of the situation and with application limited to the duration thereof; c. When adopted in case of war or other serious public emergency threatening the life of the nation or the security of the State; d. When it does not entail any discrimination based on reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social conditions; e. When it does nor in any manner presuppose the suspension of the right to life, liberty or personal security, the right to protection against arbitrary detention, the right to due process of law, and the right to freedom of thought, conscience and religion; f. When it does nor presuppose restriction of the rule of law, or the provisions of the constitution, or alteration of the scope of the Powers of the State or of the proper exercise of the police powers.”).

[140] See Neira Alegría Case, supra note 6, paras 74-76; Case 11.010, Report Nº 15/95, Hildegard María Feldman (Colombia), Annual Report of the IACHR 1995, at 57.

[141] Annual Report of the IACHR 1980-81, OEA/Ser.L/V/II.54, doc.9 rev.1, 16 October 1981, p. 115 [hereinafter Annual Report of the IACHR 1980-81]; IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 67. See similarly United Nations Human Rights Committee, General Comment Nº 29, “States of Emergency” (Article 4 ICCPR), UN Doc. CCPR/C/21/Rev.1/Add.11 (31 August 2001) [hereinafter UNHRC General Comment Nº 29], para. 3.

[142] Annual Report of the IACHR 1980-81, supra note 141, p. 115; IACHR Report on Peru (2000), supra note 27; Asencios Lindo et al. Case, supra note 6, para. 68. See similarly UNHRC General Comment Nº 29, supra note 141, para. 4.

[143] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 69.

[144] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 70. See similarly UNHRC General Comment NC 29, supra note 141, para. 8.

[145] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 71.

[146] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 72. See also Buergenthal, To Respect and Ensure, supra note 69, at 85.

[147] I/A Court H.R. Advisory Opinion OC-8/87, Habeas Corpus in Emergency Situations, January 30, 1987, Ser. A Nº 8, paras. 21-27; IACHR Report on Peru (2000), supra note 27,
paras. 71-73.

[148] American Convention on Human Rights, supra note 61, Article 12(2) (“Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, morals, or the rights or freedoms of others”).

[149] American Convention on Human Rights, supra note 61, Article 13(2) (“The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals”).

[150] American Convention on Human Rights, supra note 61, Article 16(2) (“The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others”).

[151] Jaime Oraá identifies three main distinctions in the operation of derogation clauses and limitation clauses: limitation clauses authorize restrictions on grounds in "normal situations” or peacetime, where as derogation clauses operate in exceptional situations; limitation clauses only affect specific rights, whereas derogation clauses could affect all rights under a treaty except those that are considered non-derogable; and the operation of limitation clauses does not require any special declaration by the State, whereas derogation clauses require the notification to the other states parties to the treaty of the proclamation of the emergency, the derogated provisions, and the reasons therefore. Jaime Oraá, Human Rights in States of Emergency in International Law 9-10 (1992).

[152] See, e.g., I/A Court H.R., Advisory Opinion OC-5/85, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 of the American Convention on Human Rights), November 13, 1985, Ser. A Nº 5 [hereinafter Advisory Opinion OC-5/85], paras. 36, 37; Case 10.506, Report Nº 38/96, X & Y (Argentina), Annual Report of the IACHR 1996, paras. 54-71.

[153] Article XXVIII of the American Declaration provides: “The rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy.”

[154] See, e.g., Advisory Opinion OC-5/85, supra note 152, para. 36.

[155] See American Convention on Human Rights, supra note 61, Article 30 (“The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.”); American Declaration, supra note 63, Article XXVIII. See also Advisory Opinion OC-5/85, supra note 152, para. 37.

[156] X & Y Case, supra note 152, paras. 61, 62.

[157] X & Y Case, supra note 152, para. 71.

[158] As recognized by the drafters of the International Covenant on Civil and Political Rights and by noted publicists, the phrase “public order” is a term of art borrowed from national legal systems that must be interpreted in light of the treatment of the term in those particular systems. This includes interpreting the phrase in conjunction with the French concept of ordre public, which in a broad sense permits limitations on particular human rights where those limitations are necessary to ensure a minimum level of public welfare and social organization. See, e.g., ICCPR, supra note 66, Article 12(3) (providing that the rights to liberty of movement and freedom to choose residence “shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with other rights recognized in the present Covenant.”). See also M.J. Bossuyt, Guide to the “Travaux Préparatiores” of the International Covenant on Civil and Political Rights 258 (1987), citing Report of the Third Committee of the General Assembly, 14th session (1959), UN Doc. A/4299, § 15; Alexandre Charles Kiss, Permissible Limitations on Rights, in The International Bill of Rights–The Covenant on Civil and Political Rights 290, 299-301(Louis Henkin, ed., 1981) [hereinafter Kiss, Permissible Limitations on Rights].

[159] See, e.g., Advisory Opinion OC-5/85, supra note 152, paras. 64-66.

[160] See, e.g., Advisory Opinion OC-5/85, supra note 152, para. 67.

[161] See, e.g., American Convention on Human Rights, supra note 61, Article 29(b); International Covenant on Civil and Political Rights, supra note 66, Article 5(2); Additional Protocol I, supra note 68, Article 75(8) (“No provision of this Article may be construed as limiting or infringing any other more favorable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.”). See similarly UNHRC General Comment Nº 29, supra note 141, para. 9. See generally Buergenthal, To Respect and Ensure, supra note 69, at 90.

[162] IACHR Report on Colombia (1999), supra note 110, at 74, para. 10. See also M. Sassoli & A. Bouvier, How does law protect in war, (ICRC, 1999), at p. 67 [hereinafter Sassoli & Bouvier].

[163] Abella Case, supra note 73, para. 152. See similarly International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Dusko Tadić, IT-94-1, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70 [hereinafter Tadić AC Decision Jurisdiction].

[164] See ICRC, Protection and Assistance Activities in Situations Not Covered by International Humanitarian Law, 262 Int’l Rev. Red Cross 9, 13 (1988).

[165] See Hans-Peter Gasser, A Measures of Humanity in Internal Disturbances and Tensions: Proposal for a Code of Conduct, 262 Int’l Rev. Red Cross 38, 42 (1988). See also Declaration of Turku Abo (2 December 1990) (declaring minimum humanitarian standards applicable in all situations, including internal violence, disturbances, tensions, and public emergency, and which cannot be derogated from under any circumstances).

[166] See Abella Case, supra note 73, para. 153. One narrow exception to his rule is prescribed in Article 1(4) of Additional Protocol I, which incorporates within the classes of conflicts governed by the Protocol “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination”. See Additional Protocol I, supra note 68, Article1(4).

[167] See Article 2 Common to the Geneva Conventions, supra notes 36, 67.

[168] Tadić AC Decision Jurisdiction, supra note 163, at para. 70. See also IACHR Report on Colombia (1999), supra note 110, at 95, Part IV, para. 83.

[169] IACHR Report on Colombia (1999), supra note 110, at 74, Part IV, para. 9. Abella Case, supra note 73, para. 158.

[170] IACHR Report on Colombia (1999), supra note 110, at 74, Chapter IV, paras. 8-11. See also Abella Case, supra note 73, paras. 158-159; Case 11.142, Report Nº 26/97, Arturo Ribón Avilan (Colombia), Annual Report of the IACHR (1997), para 171.

[171] See IACHR Report on Colombia (1999), supra note 110, at 75, Chapter IV, para. 12. See also Abella Case, supra note 73, para. 161.

[172] American Convention on Human Rights, supra note 61, Article 29. See also Advisory Opinion OC-16/99, supra note 129, para. 36 et seq.

[173] See Part II(B). para. 45 (International Human Rights Law), para. F.9. See also American Convention on Human Rights, supra note 61, Article 27 (1) and 29; Additional Protocol I, supra note 68, Article 75 (8); Advisory Opinion OC-1/82, supra note 73; Advisory Opinion OC-16/99, supra note 129, paras. 29 et seq.; Villagran Morales Case, supra note 130, paras. 178-198 (interpreting the American Convention on Human Rights in light of pertinent provisions of the UN Convention on the Rights of the Child, supra note 122).

[174] First Geneva Convention, supra note 67, Second Geneva Convention, supra note 67, Third Geneva Convention, supra note 67, Fourth Geneva Convention, supra note 36.

[175] Additional Protocol I, supra note 68.

[176] Additional Protocol II, supra note 36.

[177] In particular the Fourth Convention respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, 18 October 1907, 3 Martens Nouveau Recueil (ser. 3) 461, 187 Consol. T.S. 227 [hereinafter 1907 Hague Convention and Regulations].

[178] Hague Convention Nº I of July 29, 1899, for the Pacific Settlement of International Disputes, 32 Stat. 1803, T.S. Nº 392; Hague Convention Nº II of July 29, 1899 with Respect to the Laws and Customs of War on Land, 32 Stat. 1803, T.S. Nº 403; Hague Convention Nº III of July 29, 1899, for the Adaptation to Marine Warfare of the Principles of the Geneva Convention of August 22, 1864, 32 Stat. 1827, T.S. Nº 396; Hague Convention Nº IV of July 29, 1899, Prohibiting Launching of Projectiles and Explosives from Balloons, 32 Stat. 1839, T.S. Nº 393; Hague Convention Nº I of October 18, 1907, for the Pacific Settlement of International Disputes, 32 Stat. 2199, T.S. Nº 536; Hague Convention Nº II of October 18, 1907, Respecting the Limitations on the Employment of Force for the Recovery of Contract Debts, 36 Stat. 2241, T.S. Nº 537; Hague Convention No. III of October 18, 11907, Relative to the Opening of Hostilities, 36 Stat. 2259, T.S. Nº 538; Hague Convention Nº IV of October 18, 1907, Respecting the Laws and Customs of War on Land and the Regulation Annexed thereto, supra note 177; Hague Convention V of October 18, 1907, Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 36 Stat. 2310, T.S. Nº 540; Hague Convention Nº VIII of October 18, 1907, Relative to the Laying of Automatic Submarine Contact Mines, 36 Stat. 2332, T.S. Nº 541; Hague Convention No. IX of October 18, 1907, Concerning Bombardment by Naval Forces in Time of War, 36 Stat. 2351, T.S. Nº 542; Hague Convention Nº X of 18 October 1907, for the Adaptation to Marine Warfare of the Principles of the Geneva Convention, 36 Stat. 2371, T.S. Nº 543; Hague Convention Nº XI of October 18, 1907, Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War, 36 Stat. 2396, T.S. Nº 544; Hague Convention Nº XIII of October 18, 1907, Concerning the Rights and Duties of Neutral Powers in Naval War, 36 Stat. 2415, T.S. Nº 545; Hague Convention Nº XIV of October 18, 1907, Prohibiting the Discharge of Projectiles and Explosives From Balloons, 36 Stat. 2439, T.S. Nº 546.

[179] Supra notes 36, 67.

[180] Additional Protocol I, supra note 68.

[181] Article 2 Common to the Four Geneva Conventions, supra notes 36, 67.

[182] Additional Protocol I, supra note 68, Article 2.

[183] Article 3 Common to the Four Geneva Conventions, supra notes 36, 67.

[184] See Tadić AC Decision Jurisdiction, supra note 163, at paras. 97-134.

[185] Additional Protocol II, supra note 36.

[186] Additional Protocol II, supra note 36, Article 1.

[187] Abella Case, supra note 73, para. 162. For OAS member states that are parties to the 1949 Geneva Conventions, see Annex II.

[188] Article 38(1)(b) of the Statute of the International Court of Justice, 26 June 1945, 3 Bevans 1153; North Sea Continental Shelf Cases, 20 February 1969, ICJ Rep. 1969, 3; Nicaragua v. United States, 27 June 1984, ICJ Rep. 1986, 14, at para. 77 [hereinafter ICJ, Nicaragua Case]; Tadić AC Decision Jurisdiction, supra note 163, paras. 96 et seq.

[189] See IACHR Report on Colombia (1999), supra note 110, at 82, Ch. IV, para. 39; Case 11.519, Report Nº 61/99, José Alexis Fuentes Guerrero (Colombia), Annual Report of the IACHR 1998, at para 37; Case 10.488, Report N° 136/99, Ignacio Ellacuria, S.J. y Otros (El Salvador), Annual Report of the IACHR 1999, at para. 159; Case 10.548, Report N° 38/97, Hugo Bustios Saavedra (Peru), Annual Report of the IACHR 1997, at para. 61. See also Report of the Secretary-General pursuant to paragraph 2 of resolution Security Council 808 (1993), UN Doc. S/25704 and Add.1, 3 May 1993; UN Security Council Resolution 827, 25 May 1993 [hereinafter UN Secretary General Report (1993)]; ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 73, paras. 79, 84; ICJ, Nicaragua Case, supra note 188, para. 220; Tadić AC Decision Jurisdiction, supra note 162, paras. 98, 102, 112, 134. For a general discussion of customary norms of international humanitarian law, see Theodor Meron, The Humanization of Humanitarian Law, 94 Am. J. Int'l. L. 239 (2000), at 244, 248-250, 275 [hereinafter Meron, The Humanization of Humanitarian Law]; Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 Am. J. Int'l L. 238 (1996) at 239, 244, 247. Other potentially pertinent instruments considered to constitute part of customary international law include the Genocide Convention (Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]); Statute of the International Military Tribunal at Nuremberg (Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, Aug. 8, 1945, 82 U.N.T.S. 280).

[190] See, e.g., Trial of German Major War Criminals, 1946, Cmd. 6964, Misc. Nº 12, at 65 and United States v. Von Leeb, 11 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law Nº 10, at 462 (1950) (recognizing the Hague Regulations of 1907 as norms of customary international law).

[191] Four Geneva Conventions, supra notes 36, 67.

[192] Prosecutor v. Dusko Tadić, Case Nº IT-94-1, Trial Chamber, Opinion and Judgment, 7 May 1997, para. 577 [hereinafter Tadić TC Judgment] (referring to Tadić AC Decision Jurisdiction, supra note 163, and recognizing the customary nature of the Grave Breach provisions of the Four Geneva Conventions). The Tadić Judgment was appealed to the ICTY Appeals Chamber without challenge to this finding. See The Prosecutor v. Duško Tadić, ICTY Appeals Chamber (15 July 1999). See also U.N. GAOR, 3rd Committee, 23rd Session, UN Doc. A/C.3/SR.1534 (1968), UN GAOR, 25th Session, Supp. Nº 28 UN Doc. A/8028 (1970).

[193] See, e.g., ICJ, Nicaragua Case, supra note 188, para. 77; ICTY, Prosecutor v. Delalic, Case Nº IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, paras. 298-306 [hereinafter Celibici TC Judgment], affirmed on this point on appeal, The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, Appeals Chamber Judgment, February 20, 2001 (ICTY), paras. 143-150; ICTR, Prosecutor v. Akayesu, Case Nº ICTR-96-4-T, Trial Chamber I Judgment, 2 September 1998, paras. 604-610 [hereinafter Akayesu, TC Judgment], ICTR Appeals Chamber dismissed appeal June 1, 2001; ICTY, Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2, Trial Chamber III Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction based on the limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, paras. 25-34 [hereinafter Kordic TC Jurisdiction Decision] (recognizing that Article 3 Common to the Four Geneva Conventions constitutes a norm of customary international law).

[194] See, e.g., Tadić AC Decision Jurisdiction, supra note 163, paras. 98, 117 (recognizing that the core of Additional Protocol II constitutes customary international law); Akayesu, TC Judgment, supra note 193, paras. 604-610 (recognizing that Article 4 of Additional Protocol II constitutes customary international law); Kordic TC Jurisdiction Decision, supra note 193, para. 31 (recognizing that Articles 51(2) and 52(1) of Additional Protocol I and Article 13(2) of Additional Protocol II constitute customary international law).

[195] See generally Michael J Matheson, “The United States position on the relation of customary international law to the 1977 Protocols Additional to the 1949 Geneva Conventions” in Martin D. Dupuis, John Q Heywood and Michèle Y.F. Sarko, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: a Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U. J. Int’l L. & Pol. 419 (1987) [hereinafter Matheson]. See also Kordic TC Jurisdiction Decision, supra note 193 (recognizing that Articles 51(2) and 52(1) of Additional Protocol I and Article 13(2) of Additional Protocol II constitute customary international law).

[196] See, e.g., Tadić AC Decision Jurisdiction, supra note 163, paras. 98, 117, 132; Kordic TC Jurisdiction Decision, supra note 193 (recognizing that Articles 51(2) and 52(1) of Additional Protocol I and Article 13(2) of Additional Protocol II constitute customary international law). ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 73,
para. 84; Matheson, supra note 195.

[197] See, e.g., Tadić AC Decision Jurisdiction, supra note 163, paras. 96-127, citing, inter alia, UN General Assembly Resolution 2444, UN GAOR 23rd Sess., Supp. Nº 18, UN Doc. A/7218 (1968), UN General Assembly Resolution 2675, UN GAOR 25th Sess., Supp. No. 28, UN Doc. A/8028 (1970); IACHR Report on Colombia (1999), supra note 110.

[198] See ICJ, Nicaragua Case, supra note 188, para. 77; Tadić AC Decision Jurisdiction, supra note 163, paras 98, 117, 132.

[199] IACHR Report on Colombia (1999), supra note 110, at 82, Ch. IV, para. 38. See, e.g., 1907 Hague Convention and Regulations, supra note 177, Article 23(g); First Geneva Convention, supra note 67, Article 50 in fine; Second Geneva Convention, supra note 67, Article 51 in fine; Fourth Geneva Convention, supra note 36, Article 147 in fine; Additional Protocol I, supra note 68, Article 51(1) in fine.

[200] See, e.g., Article 3 common to the Four Geneva Conventions; First Geneva Convention, supra note 67, Article 12; Second Geneva Convention, supra note 67, Article 12; Third Geneva Convention, supra note 67, Article 13; Fourth Geneva Convention, supra note 36, Article 14; Additional Protocol I, supra note 68, Article 11; Additional Protocol II, supra note 36, Article 4.

[201] IACHR Report on Colombia (1999), supra note 110, at 82, Ch. IV, para. 38. See, e.g., Arturo Ribón Avilan Case, supra note 170, paras. 134, 136, 140, 141 (considering attacks upon persons who have been placed “hors de combat” to constitute violations of international humanitarian law).

[202] IACHR Report on Colombia (1999), supra note 110, at 82, Ch. IV, para. 38.

[203] IACHR Report on Colombia (1999), supra note 110, at 82, Ch. IV, paras. 40, 77-79 (referring to the standards found in Articles 51 and 52 of Additional Protocol I, supra note 68, and stating that the principle of proportionality

prohibits "[a]n attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated". This principle imposes […] an additional limitation on the discretion of combatants in deciding whether an object is a military objective […]. Should an attack be expected to cause incidental civilian casualties or damage, the requirement of an anticipated "definite" military advantage is elevated to the more restrictive standard of a "concrete" and "direct" military advantage. Another aspect of the proportionality equation requires that foreseeable injury to civilians and damage to civilian objects not be disproportionate or "excessive" to the anticipated "concrete and direct military advantage". [footnotes omitted]

See also Abella Case, supra note 73, para. 177; Bustios Saavedra Case, supra note 189, para. 61; Fuentes Guerrero Case, supra note 189, paras. 38-39; Ignacio Ellacuria, S.J. y Otros Case, supra note 189, paras. 158-163.

[204] See Additional Protocol I, supra note 68, Article 52 (“(1) Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. (2) Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. (3) In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used”). See also Resolution 2444 (XXIII) of the United Nations General Assembly, on Respect for Human Rights in Armed Conflicts, adopted 19 December 1968, GA Res. 2444, UN GAOR, 23rd Sess., A/RES/23/2444 (1968), in Dietrich Schindler and Jiri Toman, The Laws of Armed Conflicts, 2nd ed., 199 (1981).

[205] See, e.g., Additional Protocol I, supra note 68, Articles 51, 52; Additional Protocol II, supra note 36, Article 13.

[206] See Waldmar Solf, The Status of Combatants in Non-International Armed Conflicts Under Domestic Law and Transnational Practice, 33 Am. U. L. Rev. 53, 59 (1983) [hereinafter Solf, The Status of Combatants].

[207] Third Geneva Convention, supra note 67, Article 4A. For OAS member states that are parties to Additional Protocol I see Annex II. It should be noted that Articles 43 and 44 of that instrument endeavor to relax the requirements of the Hague and Geneva standards by eliminating the distinction found in the Hague Regulations and the Third Geneva Conventions between regular armed forces and irregular voluntary corps, militias and other organized resistance movement and thereby to provide guerrillas a possibility of attaining privileged combatant status. More particularly, Article 43 of Additional Protocol I incorporates as combatants entitled to the combatants privilege and prisoner of war status “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.” Additional Protocol I, supra note 68, Article 43(1). Article 44(3) of Additional Protocol I further obliges combatants defined under Article 43 to “distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) During each military engagement, and (b) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate. Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c)". Additional Protocol I, supra note 68, Article 44(3).These provisions have been the subject of controversy among states and have never been applied in the context of an armed conflict, and therefore likely do not constitute a part of customary international law. They nevertheless have relevance for those OAS member states who have ratified Additional Protocol I. It should also be noted that even where the Protocol I standards apply, it is still possible for a combatant to be regarded as forfeiting his or her combatants status and hence entitlement to prisoner of war status by failing to meet the standards under Article 44(3) of the Protocol, namely by failing to carry his arms openly during each military engagement as well as during such time as he is visible to the adversary when he is engaged in a military deployment preceding the launching of an attack. See George Aldrich, Guerilla Combatants and Prisoner of War Status, 31 Am. U. L. Rev. 871, 877-878 (1982 [hereinfater Aldrich (1982)]).

[208] See, e.g., United States v. List (The Hostage Case), Trial of the War Criminals before the Nuremberg Tribunal 1228, 1238 (1950) (stating that “[i]t cannot be questioned that acts done in times of war under the military authority of an enemy cannot involve any criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war.”); U.S. Department of War, Instructions for the Government of the Armies of the United States in the Field, General Order Nº 100 (1863) [hereinafter “Lieber Instructions”], Articles 56-57; Third Geneva Convention, supra note 67, Article 87 (providing that “[p]risoners of war may not be sentenced […] to any penalties except those provided for in respect of members of the armed forces of the said power who have committed the same acts.”).

[209] See generally Richard Baxter, So Called Unprivileged Belligerency: Spies, Guerrillas and Saboteurs, Brit. Y.B. Int’l L. (1952).

[210] See Additional Protocol I, supra note 68, Article 51(3) (providing that “[c]ivilians shall enjoy the protection afforded by this section unless and for such time as they take a direct part in hostilities.”). See also ICRC, Commentary on the Additional Protocols of 8 June 1977 to the geneva conventions of 12 August 1949 (ICRC, 1987) [hereinafter ICRC Commentary on the Additional Protocols], at 619, ¶1944 (noting in respect of the qualification under Article 51(3) of Additional Protocol I that it is “only during such [direct] participation that a civilian loses his immunity and becomes a legitimate target. Once he ceases to participate, the civilian regains his right to […] protection […] and he may no longer be attacked”). See also M. Bothe, K. Partsch & W. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982) [hereinafter New Rules], at 301-302.

[211] See ICRC Commentary on the Additional Protocols, supra note 210, at 515, ¶ 1677 (confirming in respect of the standards under Article 43 of Additional Protocol I governing combatant status that

any concept of a part-time status, a semi-civilian, semi-military status, a soldier by night and peaceful citizen by day, also disappears. A civilian who is incorporated in an armed organization such as that mentioned in paragraph 1, becomes a member of the military and a combatant throughout the duration of the hostilities (or in any case, until he is permanently demobilized by the responsible command referred to in paragraph 1), whether or not he is in combat, or for the time being armed. If he is wounded, sick or shipwrecked, he is entitled to the protection of the First and Second Conventions (Article 44, paragraph 8), and, if he is captured, he is entitled to the protection of the Third Convention (Article 44, paragraph 1)).

[212] Solf, The Status of Combatants, supra note 206, at 53.

[213] See, e.g., Article 1 Common to the 1949 Geneva Conventions (requiring High Contracting Parties to “respect and ensure respect for” the terms of the Conventions); Fourth Geneva Convention, supra note 36, Article 146 (requiring states parties to enact any legislation necessary to provide for effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches under the Convention).

[214] See, e.g., Third Geneva Convention, supra note 67, Article 8 (“The present Convention shall be applied with the co-operation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with which they are to carry out their duties. The Parties to the conflict shall facilitate to the greatest extent possible the task of the representatives or delegates of the Protecting Powers. The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the present Convention,. They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties.”).

[215] See, e.g., Article 3 Common to the 1949 Geneva Conventions (providing, inter alia, that “[a]n impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict”); Third Geneva Convention, supra note 67, Article 9 (“The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of prisoners of war and for their relief.”).

[216] Internal Disturbances and Tensions: A New Humanitarian Approach?, 262 Int’l Rev. Red Cross 3, 4-5 (1988).

[217] See infra Part III(F), paras. 347, 348.

[218] Additional Protocol I, supra note 68, Article 90.

[219] Rome Statute, supra note 31, Articles 5(1)(c), 8.

[220] IACHR Report on Colombia (1999), supra note 110, at 75, Part IV, para. 13.

[221] IACHR Report on Colombia (1999), supra note 110, at 75, Part IV, para. 13.

[222] See, e.g., Additional Protocol I, supra note 68, Article 87; ICTY Statute, supra note 549, Article 7(3).

[223] See, e.g., First Geneva Convention, supra note 67, Article 49; Third Geneva Convention, supra note 67, Article 129; Fourth Geneva Convention, supra note 36, Article 146; Additional Protocol I, supra note 68, Article 85(1).

[224] For humanitarian law treaty provisions governing reprisals, see Third Geneva Convention, supra note 67, Article 13; Fourth Geneva Convention, supra note 36, Article 33; Additional Protocol I, supra note 68, Article 51(6).

[225] Abella Case, supra note 73, para. 152. See also Tadić AC Decision Jurisdiction, supra note 163, para. 70.

[226] The operations of the Kosovo Liberation Army during the 1999 Kosovo War were considered as terrorist activities by the Yugoslav government. Nevertheless, the operations of both the KLA and the Yugoslav forces where subject to international humanitarian law.

[227] As indicated above, during armed conflicts, international humanitarian law applies in the whole territory of the warring states or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there. Tadić AC Decision Jurisdiction, supra note 163, para. 70. See also IACHR Report on Colombia (1999), supra note 110, at 95, Chapter IV, para. 83.

[228] Tadić TC Judgment, supra note 192, para. 572.

[229] See inter alia, Eric David, Principes de droit des conflits armés, (Bruylant, 1999), at 178 [hereinafter David 1999]. Indeed, certain provisions of international humanitarian law treaties specifically prohibit acts of terrorism committed in the context of armed conflicts. See, e.g., Fourth Geneva Convention, supra note 36, Article 33.

[230] As noted above, for member states that are parties to Additional Protocol I (see Annex II), Articles 43 and 44 of Additional Protocol I eliminate the distinction found in the Hague Regulations and the Third Geneva Conventions between regular armed forces and irregular voluntary corps, militias and other organized resistance movement and thereby provide guerrillas a possibility of attaining privileged combatant status. Even where the Protocol I standards apply, however, it is still possible for a combatant to be regarded as forfeiting his or her combatants status and hence entitlement to prisoner of war status by failing to meet the standards under Article 44(3) of the Protocol, namely by failing to carry his arms openly during each military engagement as well as during such time as he is visible to the adversary when he is engaged in a military deployment preceding the launching of an attack. See Aldrich (1982) supra note 207, at 871, 877-878.

[231] See supra Part II(B), paragraphs 42, 49.

[232] Four Geneva Conventions, supra notes 36, 67.

[233] Additional Protocol I, supra note 68.

[234] Additional Protocol II, supra note 36.

[235] ICRC Commentary on the Additional Protocols, supra note 210, at 870, para. 3031.

[236] See ICRC Commentary on the Additional Protocols, supra note 210, at 392 et seq, 626, 649, 843-844. Under very specific circumstances, certain rules of international humanitarian law can be the subject of derogation or restriction based upon reasons of national security, military necessity or imperative military reasons. See, e.g., Additional Protocol I, supra note 68, Article 54(5) (providing that “[i]n recognition of the vital requirements of any Party to the conflict in the defense of its national territory against invasion, derogation from the prohibition contained in paragraph 2 [against the attack, destruction, removal or rendering useless objects indispensable to the survival of the civilian population] may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity.”). See also supra Part III(D), paras 247-250

[237] American Declaration, supra note 63.

[238] American Convention on Human Rights, supra note 64.

[239] Universal Declaration of Human Rights, supra note 65.

[240] International Covenant on Civil and Political Rights, supra note 66.

[241] For a discussion of Article 27 and derogation, see supra paras. 49 and following.

[242] IACHR Report on Colombia (1999), supra note 110, at 74.

[243] See generally Garza Case, supra note 130, paras. 88- 96; Case 11.139, Report Nº 57/96, William Andrews (United States), Annual Report of the IACHR 1997, at paras. 175-177. See also James Terry Roach and Jay Pinkerton Case, supra note 102.

[244] OAS Treaty Series Nº 73 (1990), adopted June 8, 1990, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 80 (1992).

[245] I/A Court H.R., Advisory Opinion OC-3/83, 8 September 1983, “Restrictions to the Death Penalty (Articles 4(2) and 4(4) of the American Convention on Human Rights),” Series A, para. 53.

[246] See supra Part II(B), para. 42.

[247] Abella Case, supra note 73, para. 161. See also Case 10.559, Report Nº 1/96, Chumbivilcas (Peru), Annual Report of the IACHR 1995, at 147-148 (specifying that “t]his prohibition against arbitrary deprivation of human life is at the core of the right to life. The use of the term ‘arbitrarily’ might appear to indicate that the Convention allows exceptions to the right to life, on the mistaken assumption that life may be taken in certain circumstances provided this is not done arbitrarily. However, quite the opposite is the case, since the intent of this clause is rather to seek to ensure strengthening of the conditions governing application of the death penalty by those states which have not yet abolished it, and at the same time, to serve as a guarantee to prevent summary executions”).

[248] See IACHR Report on Colombia (1999), supra note 110, at 78, Ch. IV, para. 24; American Convention on Human Rights, supra note 64, Article 27. See also Bustios Saavedra Case, supra note 189, para. 59; Chumbivilcas Case, supra note 247, at 147-148. See also Annual Report of the IACHR 1980-81, supra note 141, p. 112.

[249] Neira Alegría Case, supra note 6, para 75; I/A Court H.R., Velásquez Rodríguez Case, Judgment of 28 July 1988, Series C Nº 4, at para. 154; I/A Court H.R., Godínez Cruz Case, Judgment of January 20, 1989, Series C No. 5, para 162. See also Case 11.291, Report Nº 34/00, Carandiru (Brazil), Annual Report of the IACHR 2000, at para 62.

[250] For example, Principle 9 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials specifies that “enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, UN Doc. A/CONF.144/28/Rev.1 at 112 (1990).

[251] Neira Alegría Case, supra note 6, para. 74.

[252] See American Convention on Human Rights, supra note 64, Article 32. See also Chumbivilcas Case, supra note 247, at 149.

[253] Neira Alegría Case, supra note 6, para 75; Velásquez Rodríguez Case, supra note 249, para. 154. See also Godínez Cruz Case, supra note 249, para 162.

[254] Ignacio Ellacuría, S.J. y Otros Case, supra note 189, at paras. 158, 169. See also Fuentes Guerrero Case, supra note 189, paras. 33-34, 43; Bustios Saavedra Case, supra note 189, paras. 58-63. See also Meron, The Humanization of Humanitarian Law, supra note 189, at 272.

[255] Arturo Ribón Avilan Case, supra note 170, para. 159, where the Commission, although not basing its conclusions on this principle, did refer to the fact that indiscriminate use of force could constitute a violation of Article 4.

[256] Abella Case, supra note 73, paras. 204, 218, 245 (considering that the killing of individuals who had been involved in attacks on military barracks but who later surrendered constituted a violation of Article 4). See also Arturo Ribón Avilan Case, supra note 170, paras. 134 et seq. and 159 et seq, (concluding that the killing of individuals who were involved in an armed confrontation with security forces but later surrendered, were arrested or wounded and no longer participated in the armed confrontation constituted violations of Article 4 of the American Convention on Human Rights). Individuals who have fallen in the power of the adverse party, have surrendered, or who are wounded and abstain from hostile acts and from escaping also constitute combatants who have been placed hors de combat under international humanitarian law, as explained further below. See also Fuentes Guerrero Case, supra note 189, paras. 33, 34, 43. See also Carandiru, supra note 249, paras. 63, 67, 91.

[257] See, e.g., Arturo Ribón Avilan Case, supra note 170, paras. 159 et seq. See also Bustios Saavedra Case, supra note 189, paras. 58-63. See also Carandiru, supra note 249, paras. 63, 67, 91.

[258] Neira Alegría Case, supra note 6, para 74 (concluding that notwithstanding the fact that in the context of a prison riot, the Peruvian security forces were fighting armed and highly dangerous opponents, the amount of force used was unjustified).

[259] See Carandiru, supra note 249, para. 63 (finding that several deaths caused by the use of force by the police during a riot in a Brazilian prison was not for purposes of self-defense or for disarming the rioters).

[260] See, e.g., Neira Alegría Case, supra note 6, para. 76.

[261] See, e.g., Carandiru, supra note 249, paras. 63, 67, 91.

[262] See also Meron, The Humanization of Humanitarian Law, supra note 189, at 272.

[263] IACHR Report on Chile (1985), supra note 114, Ch. III, p. 50, para. 22.

[264] Advisory Opinion OC-3/83, supra note 245, paras. 53 et seq.

[265] Advisory Opinion OC-3/83, supra note 245, para. 55.

[266] Advisory Opinion OC-16/99, supra note 129, paras. 135-137. See also Garza Case, supra note 130, para. 100.

[267] See generally Garza Case, supra note 130, paras 88- 96, citing Andrews Case, supra note 243, paras. 175-177, James Terry Roach and Jay Pinkerton Case, supra note 102.

[268] See infra Part III(D), paras. 246 et seq. ; Advisory Opinion OC-8/87, supra note 147, paras. 21-27.

[269] Garza Case, supra note 130, para. 101.

[270] See infra Part III(H), paras. 399 et seq.

[271] Andrews Case, supra note 243, para 177.

[272] I/A Court H.R., Hilaire, Constantine and Benjamin et al. Case, Judgment of 21 June 2002, Series C No. 94, paras. 85-118. Michael Edwards et al. Case, supra note 102, paras. 124-154, 164-165, 175, Case 12.023, Report Nº 41/00, Desmond McKenzie (Jamaica), Case 12.044, Report Nº 41/00, Andrew Downer y Alphonso Tracey (Jamaica), Case 12.107, Report Nº 41/00, Carl Baker (Jamaica), Case 12.126, Report Nº 41/00, Dwight Fletcher (Jamaica), and Case 12.146, Report Nº 41/00, Anthony Rose (Jamaica), Annual Report of the IACHR 2000, paras. 194-200.

[273] Garza Case, supra note 130, para. 91, citing Andrews Case, supra note 243, James Terry Roach and Jay Pinkerton Case, supra note 102, para 61.

[274] Advisory Opinion OC-3/83, supra note 245, paras. 56, 57. See also Annual Report of the IACHR 1993, OEA/Ser.L/V/II.85, Chapter IV Status of Human Rights in Several Countries, Peru, at 510-513.

[275] Advisory Opinion OC-3/83, supra note 245, paras. 56, 57.

[276] Garza Case, supra note 130, paras. 92 et seq.

[277] See supra Part II(C), para. 65.

[278] See generally David 1999, supra note 229, at 215 et seq.

[279] See, e.g., 1907 Hague Convention and Regulations, supra note 177, Articles 22, 23. See also Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 10 October 1980, 1342 U.N.T.S. 162.

[280] Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 17 June 1925, 94 L.N.T.S. 65.

[281] Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Opened for Signature at London, Moscow and Washington, 10 April 1972, 1015 U.N.T.S. 1976.

[282] Additional Protocol I, supra note 68, Articles 50-52; Additional Protocol II, supra note 36; Article 13; IACHR Report on Colombia (1999), supra note 110, at 82, para. 40. See also Abella Case, supra note 73, para. 177; Bustios Saavedra Case, supra note 189, para. 61; Fuentes Guerrero Case, supra note 189, paras. 38-39. Ignacio Ellacuria, S.J. et.al. Case, supra note 189, paras. 158-163.

[283] Additional Protocol I, supra note 68, Article 41. See, e.g., Arturo Ribón Avilan Case, supra note 170, paras. 134, 136, 140, 141 (considering that attacks upon persons “hors de combat” were contrary to international humanitarian law).

[284] Abella Case, supra note 73, para. 177 (footnotes omitted). See also IACHR Report on Colombia (1999), supra note 110, at 82.

[285] See, e.g., Third Geneva Convention, supra note 67, Article 13. See also Additional Protocol I, supra note 68, Article 75(2).

[286] See, e.g., Fourth Geneva Convention, supra note 36, Article 27. See also Additional Protocol I, supra note 68, Article 75(2); IACHR Report on Colombia (1999), supra note 110, at 84 et seq.

[287] Article 3 Common to the First Geneva Convention, supra note 67, to the Second Geneva Convention, supra note 67, to the Third Geneva Convention, supra note 67, and to the Fourth Geneva Convention, supra note 36. See also Additional Protocol II, supra note 36, Article 4.

[288] See, e.g., Additional Protocol II, supra note 36, Article 4.

[289] See infra Part III(D), paras. 254 and following.

[290] See, e.g., Article 3 Common to the Four Geneva Conventions, supra notes 36, 67; Third Geneva Convention, supra note 67; Arts. 99, 102; Additional Protocol I, supra note 68, Article 75, Additional Protocol II, supra note 36, Article 6.

[291] See, e.g., Third Geneva Convention, supra note 67, Article 84 (providing that “[a] prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offense alleged to have been committed by the prisoner of war. In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.”). As suggested by the provisions of Article 84 and as discussed in Part III(D) below, it should be noted that the requirement of independence and impartiality applicable to the trial of civilians differs from that applicable to members of a state’s armed forces and, in armed conflict situations, to privileged and unprivileged combatants. In particular, while international human rights law generally prohibits the use of ad hoc, special, or military tribunals or commissions to try civilians for terrorist-related or any other crimes, a state’s military courts may prosecute members of its own military for crimes relating to the functions that the law assigns to military forces and, during international armed conflicts, may try privileged and unprivileged combatants, provided that the minimum requirements of due process are guaranteed. Military courts may not, however, prosecute human rights violations or other crimes unrelated to military functions, which must be tried by civilian courts. See infra Part III(D), paras. 202 and following.

[292] Id. See, e.g., Article 3 Common to the Four Geneva Conventions supra notes 36, 67; Third Geneva Convention, supra note 67, Articles 99, 102; Additional Protocol I, supra note 68, Article 75; Additional Protocol II, supra note 36., Article 6. See also infra Part III(D),
paras. 255, 261.

[293] See, e.g., Fourth Geneva Convention, supra note 36, Article 68; Additional Protocol I, supra note 68, Articles 76, 77; Additional Protocol II, supra note 36, Article 6. See also UN Convention on the Rights of the Child, supra note 122, Article 38. More generally, with respect to the involvement of children in armed conflicts see Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, GA Res. 54/263, Annex I, U.N. GAOR, 54th Sess., 97th plenary meeting, 25 May 2000.

[294] See supra, Part II(C), para. 71.

[295] Third Geneva Convention, supra note 67, Article 100. See similarly Article Fourth Geneva Convention, supra note 36, Article 68.

[296] Third Geneva Convention, supra note 67, Articles 101, 107; Fourth Geneva Convention, supra note 36, Articles 71, 74, 75.

[297] Third Geneva Convention, supra note 67, Article 101; Fourth Geneva Convention, supra note 36.; Articles 74, 75

[298] Examples of these rights include the right of a defendant to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her, the right not to be prosecuted or punished by the same Party for an offence in respect of which a final judgment acquitting or convicting that person has been previously pronounced under the same law and judicial procedure, and the right to have his or her judgment pronounced publicly. See Additional Protocol I, supra note 68, Article 75(4).

[299] American Convention on Human Rights, supra note 64, Article 8. See infra Part III(D), paras. 246 and following.

[300] Neira Alegría Case, supra note 6. See also IACHR Report on Colombia (1999), supra note 110, at 73, para. 8.

[301] Neira Alegría Case, supra note 6, para. 75, (referring to Velásquez Rodríguez Case, supra note 249, para. 154 and to Godínez Cruz Case, supra note 249, para. 162.)

[302] Abella Case, supra note 73, paras. 158 and 161 (footnotes omitted). See also IACHR Report on Colombia (1999), supra note 110, at 75, para. 12. See also Coard et al. Case, supra note 73, para 39.

[303] See Meron, The Humanization of Humanitarian Law, supra note 189, at 272, citing Eur. Ct. H.R., Ergi v. Turkey, 28 July 1998, Reports of Judgments and Decisions 1998-IV Nº 81, paras. 79, 81, 86, Eur. Ct. H.R. , McCann v. United Kingdom, 27 September 1995, Ser. A. 324, paras. 194, 200, 213 (1995); Hildegard María Feldman Case, supra note 140; Neira Alegría Case, supra note 6, paras. 74-76.

[304] See supra Part I(A), para. 92.

[305] Additional Protocol I, supra note 68, Article 51(5)(b).

[306] US Air Force Pamphlet Nº 110-31, International Law – The Conduct of Armed Conflict and Air Operations 1-6, para. 1-3(a)(2) (1976).

[307] See supra, Part II(C), para. 65.

[308] Nevertheless, it should be recalled that, in accordance with the principles of humanity and necessity, the means and methods of war employed during attacks on combatants may not cause unnecessary suffering, see supra para. 65 and para. 100.

[309] See supra, Part II(C), para. 66.

[310] See supra, Part III(A), para. 87.

[311] See supra, Part II(C), para. 66.

[312] See supra, Part III(A), para. 90.

[313] IACHR Report on Colombia (1999), supra note 110, at 75, Ch. IV, para. 12.

[314] American Convention on Human Rights, supra note 64, Article 4 (3).

[315] American Convention on Human Rights, supra note 64, Article 4(2).

[316] See infra Part III(D).

[317] See Hilaire, Constantine and Benjamin et al. Case, supra note 272, paras. 85-118; Michael Edwards et al. Case, supra note 102, paras 124-154, 164-165 and 175. See also Desmond McKenzie Case, supra note 272, paras. 194-200.

[318] American Convention on Human Rights, supra note 64, Article 4(4).

[319] See, e.g., Inter-American Convention Against Terrorism, supra note 8, Article 11.

[320] See, e.g., American Convention on Human Rights, supra note 64, Article 4(5) (prohibiting the execution of pregnant women or persons who, at the time the crime was committed, were under 18 or over 70 years of age). See similarly Advisory Opinion OC-3/83, supra note 245, paras. 53 et seq. See also Fourth Geneva Convention, supra note 36, Article 68; Additional Protocol I, supra note 68, Articles 75, 77; Additional Protocol II, supra note 36,
Article 6.

[321] American Convention on Human Rights, supra note 64, Article 4 (6); IACHR Report on Chile (1985), supra note 114, at 50, para. 22. The procedures to make such applications must comply with the rule of procedural fairness; see Desmond McKenzie Case, supra note 272, paras 228-232. See also Fourth Geneva Convention, supra note 36, Article 75.

[322] See infra, Part III(D), paras. 247-248, 259.

[323] Concerning distinctions in the standards of impartiality and independence applicable to civilians and members of the military, see infra, Part III(D), para. 256.

[324] See supra, Part III(A), paras. 94 and following and paras. 104 and following.

[325] Universal Declaration of Human Rights, supra note 65, Article 9 (“No one shall be subjected to arbitrary arrest, detention or exile”).

[326] International Covenant on Civil and Political Rights, supra note 66, Article 9 (“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”).

[327] UN Convention on the Rights of the Child, supra note 122, Article 37 (“States Parties shall ensure that: […] (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action”).

[328] For a discussion of the requirements of trial within a reasonable time, see infra Part III(D), para. 234.

[329] See supra Part III(C).

[330] See, e.g., IACHR, Fifth Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.111 doc. 21 rev., 6 April 2001, Chapter VII, para. 37 [hereinafter IACHR Report on Guatemala (2001)], citing Case 11.245, Report Nº 12/96, Jorge Alberto Giménez (Argentina), Annual Report of the IACHR 1995; I/A Court H.R., Suárez Rosero Case, Judgment of November 12, 1997, Ser. C Nº 35, para. 43.

[331] The Inter-American Court has indicated, for example, that unless it is demonstrated that an individual was apprehended in flagrante delicto, his or her arrest must be shown to have been effected with a warrant issued by a competent judicial authority. Suárez Rosero Case, supra note 330, para. 44.

[332] Case 11.205, Report Nº 2/97, Jorge Luis Bronstein and others (Argentina), Annual Report of the IACHR 1997, para. 11. See similarly Case 12.069, Report Nº 50/01, Damion Thomas (Jamaica), Annual Report of the IACHR 2000, paras. 37, 38.

[333] IACHR Report on Guatemala (2001), supra note 330, Ch. VII, para. 37.

[334] See, e.g., Desmond McKenzie Case, supra note 272, paras. 248-251. See similarly Human Rights Committee, General Comment 8, Article 9 (Sixteenth session, 1982), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 at 8 (1994) [hereinafter UNHRC General Comment Nº 8], para. 2; Eur. Court H.R., Brogan and Other v. United Kingdom, Judgment of November 29, 1988, Ser. A Nº 145B,
p. 33, para. 62 [hereinafter Brogan Case].

[335] Ten Years of Activities, supra note 1, at 317. See similarly UN Standard Minimum Rules for the Treatment of Prisoners, August 30, 1955, First UN Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc. A/CONF/611, annex I, E.S.C. res. 663c, 24 UN ESCOR Supp. (Nº 1) at 11, UN Doc. E/3048 (1957), amended E.S.C. Res. 2076, 62 UN ESCOR Supp. (Nº 1) at 35, UN Doc E/5988 (1977), Rule 7 [hereinafter UN Standard Minimum Rules for the Treatment of Prisoners]; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN GAOR Res. 43/173, 43rd Session, 76th plenary meeting, 9 December 1988, 43 UN GAOR Supp. (Nº 49) at 298, UN Doc. A/43/49 (1988) [hereinafter UN Body of Principles on Detention or Imprisonment], Principle 12.

[336] Bronstein Case, supra note 332, paras. 26-37.

[337] Bronstein Case, supra note 332, paras. 11, 12, 24, 25.

[338] Ferrer-Mazorra et al. Case, supra note 114, para. 210, citing IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination System, OEA/Ser.L/V/II.106, Doc. 40 rev., February 28, 2000, paras. 134-142 [IACHR, Report on Canada (2000)]; Eur. Court H.R., Winterwerp Case, (1979) 2 E.H.R.R. 387. See also Eur. Court H.R., Amuur v. France (1996) E.H.R.R. 553, para. 53.

[339] Ferrer-Mazorra et al. Case, supra note 114, para. 212. See similarly UNHRC, A. v. Australia, Communication Nº 560/1993, CCPR/C/59/D/560/1993, 30 April 1997, para. 9.4.

[340] UN Convention on the Status of Refugees, supra note 120, Article 26 (“Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances”). See also Ferrer-Mazorra et al. Case, supra note 114, paras. 210-212.

[341] See, e.g., Ten Years of Activities, supra note 1, at 318 (urging all OAS member states to “limit detention carried out under the states of emergency to a brief period of time and always subject to judicial review). See similarly Brogan Case, supra note 334, paras. 61-62.

[342] Advisory Opinion OC-8/87, supra note 147, para. 35. See also I/A Court H.R., Advisory Opinion OC-9/87, Judicial Guarantees in States of Emergency (Articles 27(2), 25 and 8 of the American Convention on Human Rights), October 6, 1987, Ser. A Nº 9, para. 31.

[343] Advisory Opinion OC-8/87, supra note 147, para. 42; Advisory Opinion OC-9/87, supra note 342, para. 38. In the Court’s view, “in a system governed by the rule of law it is entirely in order for an autonomous and independent judicial order to exercise control over the lawfulness of such measures by verifying, for example, whether a detention based on the suspension of personal freedom complies with the legislation authorized by the state of emergency.” Advisory Opinion OC-8/87, supra note 147, para. 40. See similarly UNHRC General Comment Nº 29, supra note 141, paras. 14-16.

[344] Asencios Lindo et al. Case, supra note 6, para. 85.

[345] For a discussion of the conclusions of the Commission and other authorities on non-derogable protections relating to the right to personal liberty and security, see Ten Years of Activities, supra note 1, at 317-318, 342; Organization of American States, GA Res. 510, Nº 13, reproduced in Annual Report of the IACHR 1980-81, supra note 141; IACHR Report on Argentina (1980), supra note 27, at 24-27; IACHR Report on Colombia (1981), supra note 27, at 15-18. See similarly UNHRC General Comment Nº 29, supra note 141, para. 16; International Commission of Jurists, States of Emergency: Their Impact on Human Rights (Geneva, 1983), p. 461-463, Nos. 21, 22, 23, 24, 26, 29, 34, 36 [hereinafter International Commission of Jurists, States of Emergency]; International Law Association, Paris, Minimum Standards of Human Rights Norms in a State of Emergency, reproduced in R. Lillich, Current Developments: The Paris Minimum Standards of Human Rights in a State of Emergency, 79 Am. J. Int’l L. 651 (1985), p. 75 [hereinafter Paris Minimum Standards]; The Siracusa Principles on the Limitation and Derogation Provisions of the ICCPR, Hum. Rgts. Q., 7 (1985), pp. 3-130, Principles 70(e)–(g), Principle 70 [hereinafter Siracusa Principles]; Nicole Questiaux, Study of the implications for human rights of recent developments concerning situations known as states of siege or emergency, United Nations Commission on Human Rights, ECOSOC, Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/1982/15, 27 July 1982, p. 45 [hereinafter Questiaux Report].

[346] The Commission has, for example, determined to be contrary per se to Articles 7(5) and 8(2)(f) of the American Convention on Human Rights a law authorizing the extension of incommunicado preventative detention in certain cases for up to 15 days. Asencios Lindo et al. Case, supra note 6, para. 85. See similarly Eur. Court H.R., Case of Aksoy v. Turkey, Judgment of 18 December 1996, Report of Judgments and Decisions 1996-VI, Nº 26, para. 78.

[347] Vienna Convention on Consular Relations, supra note 124, Article 36.

[348] ICJ, LaGrand Case (Germany v. United States), June 27, 2001, ICJ General
List Nº 104, online at http://www.icj- cij.org/icjwww/idocket/igus/igusjudgment/ igus_ijudgment _20010625.htm , (visited 12 June 2002), para. 74.

[349] See Advisory Opinion OC-16/99, supra note 129, paras. 56, 57. Other international authorities have similarly recognized the importance of facilitating consular assistance for the protection of foreign nationals under any form of arrest, detention or imprisonment. See UN Body of Principles on Detention or Imprisonment, supra note 35, Principle 16(2) (providing that “[i]f a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization”); ICTY, Rules governing the detention of persons awaiting trial or appeal before the Tribunal or otherwise detained on the authority of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, 5 May 1994, as amended on 29 November 1999, IT/38/REV., Rule 65 [hereinafter ICTY Rules of Detention]; UN GA Res. A/RES/40/144, annex, 40 U.N. GAOR Supp. (Nº 53) at 252, UN Doc. A/40/53 “Declaration on the human rights of individuals who are not nationals of the country in which they live”, 13 December 1985 [hereinafter Declaration on the human rights of individuals who are not nationals of the country in which they live], Article 10 (“Any alien shall be free at any time to communicate with the consulate or diplomatic mission of the State of which he or she is a national or, in their absence, with the consulate or diplomatic mission of any other state entrusted with the protection of the interests of the State of which he or she is a national in the State where he or she resides”).

[350] In the regime of international humanitarian law, internment must be distinguished from detention. As explained by the International Committee of the Red Cross:

To intern a person is to put him in a certain area or place–in the case of prisoners of war, usually a camp–and to forbid him to leave its limits. The concept of internment should not be confused with that of detention. Internment involves the obligation not to leave the town, village, or piece of land, whether or not fenced in, on which the camp installations are situated, but it does not necessarily mean that a prisoner of war may be confined to a cell or a room. Such confinement may only be imposed in execution of penal or disciplinary sanctions, for which express provision is made in Section VI, Chapter III [of the Third Geneva Convention] [. . .].

ICRC, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War (ICRC, Jean S. Pictet, ed., 1960), p. 178 [hereinafter ICRC Commentary on the Third Geneva Convention].

[351] Article 119(5) of the Third Geneva Convention provides in this regard that “[p]risoners of war against whom criminal proceedings for an indictable offense are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted of an indictable offense.”

[352] See, e.g., Third Geneva Convention, supra note 67, Article 21 (“[. . .] Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary”).

[353] Third Geneva Convention, supra note 67, Article 103.

[354] Third Geneva Convention, supra note 67, Article 95.

[355] Third Geneva Convention, supra note 67, Articles 4, 5. See also Additional Protocol I, supra note 68, Article 45, with respect to States parties to that instrument.

[356] ICRC Commentary on the Additional Protocols, supra note 210, at 869-870.

[357] See, e.g., supra Part II(C), para. 78.

[358] See, e.g., Third Geneva Convention, supra note 67, Articles 122, 123 (providing for the transmission to Powers at issue through an official Information Bureau and Central Prisoners of War Information Agency information concerning prisoners of war, including their surname, first names, place and full date of birth, name and address of person to be informed and the address to which correspondence for the prisoner may be sent).

[359] See supra Part II(B), para. 71, citing Article 3 common to the 1949 Geneva Conventions; Third Geneva Convention, supra note 67, Articles 8, 9.

[360] See IACHR Report on Colombia (1999), supra note 110, Ch. IV, para. 122.

[361] For discussions of these principles under international human rights and humanitarian law, see supra Part II(A), para. 51, Part II(C), paras. 65-66.

[362] Respect for the right to personal liberty and security in the context of migrant workers, asylum-seekers, refugees and other non-nationals is discussed in further detail in Part III(H), below.

[363] See, e.g., Eur. Court H.R., Lawless v. Republic of Ireland (Nº 3), 1 July 1961 (Nº 3), 1 E.H.R.R. 15, paras. 36, 37.

[364] See supra Part II(C), paras. 61, 65.

[365] See supra Part II(C), para. 74. See also IACHR, Precautionary Measures Requested in Respect of the Detainees in Guantanamo Bay, Cuba (United States), March 12, 2002.

[366] According to the ICRC, “prisoners of war are in the power of the State which has captured them. This power is based on force, and the first concern of the captor is to maintain it by resisting any escape or attempted escape by prisoners.” ICRC Commentary on the Third Geneva Convention, supra note 350, at 178. See similarly The Handbook of Humanitarian Law in Armed Conflicts (D. Fleck, ed. 1995), at 326 (indicating that the “purpose of captivity is to exclude enemy soldiers from further military operations. Since soldiers are permitted to participate in lawful military operations, prisoners of war shall only be considered as captives detained for reasons of security, not as criminals […] Taking an enemy combatant prisoner can therefore never serve as a punishment but only to prevent further participation in military operations against the detaining power. Because of this fundamental perception of lawful operations during an armed conflict, the internment of prisoners of war must differ from that of convicts.”).

[367] Coard et al. Case, supra note 73, paras. 52, 53, 54. See also Additional Protocol I, supra note 68, Article 75(3).

[368] Coard et al. Case, supra note 73, paras. 52, 53, 54.

[369] Ferrer-Mazorra et al. Case, supra note 114, para. 213. See similarly Eur. Court H.R., Brannigan v. United Kingdom, May 26, 1993, Ser. A 258-B, para. 58.

[370] In the context of Article 42 of the Fourth Geneva Convention concerning the internment of aliens in the territory of a party to an international armed conflict, the ICRC has observed that the Convention stresses “the exceptional character of internment and assigned residence by making their application subject to strict conditions; its object in doing this is to put an end to an abuse which occurred during the Second World War. All too often the mere fact of being an enemy subject was regarded as justifying internment. Henceforward only absolute necessity, based upon the requirements of state security, can justify recourse to these two measures, and only then if security cannot be safeguarded by other, less severe means. All considerations not on this basis are strictly excluded.” ICRC, Commentary on the Fourth Geneva Convention of 12 August 1949 (ICRC, Jean S. Pictet, ed., 1960) (hereinafter ICRC Commentary on the Fourth Geneva Convention], supra note 370.

[371] See ICRC Commentary on the Additional Protocols, supra note 210, at 551-552 and N. 29, citing, inter alia, W.H. Parks, The Law of War Adviser, 31 The JAG Journal, Nº 1, Summer, 1980, p. 14 (indicating that during the conflict in Vietnam the United States delegated the task of the classification of captives to tribunals consisting of three officers, and that in general it was considered that those who pronounced judgment on the conduct of members of the armed forces should be qualified and, for example, that only officers of at least equal rank could judge the conduct of an equal commanding officer).

[372] With respect to the repatriation of prisoners of war following the Korean War, for example, the ICRC has observed that “[t]he International Committee of the Red Cross had access to the camps set up by the United Nations, but was never in a position to make similar verifications in North Korea. The Protecting Powers never took up their duties, on either side. Moreover, the prisoners of war were never able to correspond with their families or to receive parcels from them. Thus, the essential provisions of the Convention were not applied and the application of Article 118 was considerably affected thereby. The Convention constitutes a whole and if some of its essential provisions are neglected, the whole of it is jeopardized.” See, e.g., ICRC Commentary on the Third Geneva Convention, supra note 350, at 546.

[373] The need to ensure that the fundamental rights of individuals are protected in all circumstances is similarly reflected in the Turku Declaration of Minimum Humanitarian Standards of December 2, 1990, by which a group of individual experts in humanitarian and human rights law affirmed minimum humanitarian standards applicable in all situations, including internal violence, disturbances, tensions, and public emergency. These include minimum protections concerning persons in detention prescribed under Article 4 of the Declaration. See also Meron, The Humanization of Humanitarian Law, supra note 189, at 273-275.

[374] Some publicists have similarly posited that, where international humanitarian law proves inadequate to address certain situations such as prolonged military occupations, the applicable human rights protections should be invoked to fill the void. See, e.g., Meron, The Humanization of Humanitarian Law, supra note 189, at 266, citing Adam Roberts, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 Am. J. Int’l L. 70-74 (1990). In the Commission’s view, the purposes underlying this proposition would apply not only to the substantive protections under international human rights law, but also to the supervising mechanisms by which those substantive provisions are given effect.

[375] The International Criminal Tribunal for the former Yugoslavia has observed in this connection that the “essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender. The general principle of respect for human dignity is […] the very raison d’etre of international humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law.” ICTY, The Prosecutor v. Furundzija, Nº IT-95-17/1-T, Judgment of December 19, 1998 (Trial Chamber II), para. 183, appealed to the ICTY Appeals Chamber, Prosecutor v. Anto Furundžija, Case Nº IT-95-17/1-A, Judgment of July 21, 2000 (ICTY Appeals Chamber).

[376] See, e.g. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, GA Res. 39/46, annex, 39 U.N. GAOR Supp.
(Nº 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, Article 4 [hereinafter UN Torture Convention].

[377] Rome Statute, supra note 31, Articles 6, 7; Genocide Convention, supra note 189, Article 2. As described below, in situations of armed conflicts, such acts may also constitute war crimes (see, e.g., Rome Statute, supra note 31, Article 8) and in situations of international armed conflicts may also constitute grave breaches of the Geneva Conventions (see Third Geneva Convention, supra note 67, Article 130, Fourth Geneva Convention, supra note 36, Article 147) or of the Additional Protocol I(see Additional Protocol I, supra note 68, Articles 11, 85 and following).

[378] Rome Statute, supra note 31.

[379] Universal Declaration of Human Rights, supra note 65, Articles 3, 5; International Covenant on Civil and Political Rights, supra note 66, Articles 7, 9. See also European Convention on Human Rights, supra note 137, Article 3. See also UN Convention on the Rights of the Child, supra note 122, Article 37, discussed infra, para. 171.

[380] UN Torture Convention, supra note 376, Article 1. See also Rome Statute, supra
note 31, Article 7.

[381] Inter-American Torture Convention, supra note 105. For OAS member states that are parties to this instrument, see Annex II.

[382] Inter-American Torture Convention, supra note 105, Article 3 (“The following shall be held guilty of the crime of torture: a. A public servant or employee who acting in that capacity orders, instigates or induces the use of torture, or who directly commits it or who, being able to prevent it, fails to do so. b. A person who at the instigation of a public servant or employee mentioned in subparagraph (a) orders, instigates or induces the use of torture, directly commits it or is an accomplice thereto”).

[383] Concerning Article 5 of the American Convention, see for example, Case 10.970, Report Nº 5/96, Raquel Martín de Mejía (Peru), Annual Report of the IACHR (1995), at 185. See also Case 9.853, Report Nº 4/98, Ceferino Ul Musicue et al. (Colombia), Annual Report of the IACHR (1997). See also Abella Case, supra note 73, para. 233.

[384] Case 11.565, Report Nº 53/01, Ana, Beatriz and Celia Gonzalez Perez (Mexico), Annual Report of the IACHR 2001, para 94.

[385] Martín de Mejía Case, supra note 383, at 185.

[386] See infra Part III(C), paras. 158, 165. See also Eur. Court H.R., Ireland v. United Kingdom, Judgment of October 9, 1979, Series A Nº 25.

[387] American Convention on Human Rights, supra note 61, Article 5.

[388] See, e.g., Case 9437, Report Nº 5/85, Juan Antonio Aguirre Ballesteros (Chile), Annual Report of the IACHR 1984-1985.

[389] IACHR, Report on Canada (2000), supra note 338, para. 118.

[390] IACHR, Report on Canada (2000), supra note 338, para. 154.

[391] Case 10.832, Report Nº 35/96, Luis Lizardo Cabrera (Dominican Republic), Annual Report of the IACHR 1997, para. 77, citing Eur. Com.. H.R., The Greek Case, 1969, 12 Y. B. Eur. Conv. on H.R. 12 [hereinafter The Greek Case], at 186.

[392] Luis Lizardo Cabrera Case, supra note 391, para. 78, citing Ireland v. United Kingdom, supra note 386, paras. 162-163.

[393] Luis Lizardo Cabrera Case, supra note 391, para 79, citing The Greek Case, supra note 391, at 186.

[394] Luis Lizardo Cabrera Case, supra note 391, para. 80, citing Ireland v. United Kingdom, supra note 386, para. 167 For further discussion of the concept of inhumane treatment by the European Court of Human Rights, see Tyrer Case, supra note 129, paras. 28 and following.

[395] I/A Court H.R., Loayza Tamayo Case, September 19, 1997, Series C Nº 33, at
para. 57.

[396] Loayza Tamayo Case, supra note 395, citing Eur. Court HR, Ribitsch v. Austria judgment of 4 December 1995, Series A Nº 336, para. 36.

[397] Luis Lizardo Cabrera Case, supra note 391, paras. 82-83.

[398] For a general discussion of the Inter-American jurisprudence in this area, see Scott Davidson, The Civil and Political Rights Protected in the Inter-American Human Rights System, in The Inter-American Human Rights System (David Harris and Stephen Livingstone eds. 1998), at 226 and following.

[399] See, e.g., Velásquez Rodríguez Case, supra note 249, para. 156. See also Godínez Cruz Case, supra note 249, para. 164; Villagran Morales Case, supra note 130, paras. 162-164.

[400] IACHR, Report on El Salvador (1978), supra note 27, Ch. III, paras. 7, 8, in particular the case of Lil Ramírez.

[401] IACHR, Report on El Salvador (1978), supra note 27, Ch. III, paras. 7, 8, in particular the cases of Lil Ramírez, Sergio Vladimir Arriaza and Carlos A. Madrid.

[402] See, e.g., Case 10.202, Report Nº 76/90, Muñoz (Peru), Annual Report of the IACHR (1990-91); Case 10.574, Report Nº 5/94, Lovato Rivera (El Salvador), Annual Report of the IACHR (1993), at 174, 179.

[403] Case 9274, Resolution Nº 11/84, Roslik (Uruguay), Annual Report of the IACHR (1984-85), at 122, 127.

[404] See, e.g., Lovato Rivera Case, supra note 402, at 174, 179; Case 7481, Resolution Nº 30/82, Hechos ocurridos en Caracoles (Bolivia), Annual Report of the IACHR (1981/82), at 36, 39, 40.

[405] See, e.g., Caracoles Case, supra note 404, at 36, 39, 40; Lovato Rivera Case, supra note 402, at 174, 179.

[406] See, e.g., Caracoles Case, supra note 404, at 36, 39, 40.

[407] See, e.g., Lovato Rivera Case, supra note 402, at 174, 179.

[408] See, e.g., Martín de Mejía Case, supra note 383, at 182 and following. See also Case 10.772, Report Nº 6/94, Rivas (El Salvador), Annual Report of the IACHR (1994); Caracoles Case, supra note 404. See also Gonzalez Perez Case, supra note 384.

[409] See, e.g., Case 7823, Report Nº 32/82, Solano (Bolivia), Annual Report of the IACHR (1981-82), at 42, 44.

[410] Villagran Morales Case, supra note 130, para. 165.

[411] See, e.g., Case 7824, Resolution Nº 33/82, Barrera (Bolivia) Annual Report of the IACHR (1981-82), at 45, 46.

[412] See, e.g., Case 10.508, Report Nº 25/94, Lissardi & Rossi (Guatemala), Annual Report of the IACHR (1994), at 51, 54.

[413] See "Torture and other Cruel, Inhuman or Degrading Treatment or Punishment", Report of the Special Rapporteur, Mr. P. Kooijmans, appointed pursuant to Commission on Human Rights res. 1985/33 E/CN.4/1986/15, 19 Feb. 1986, [hereafter UN Special Rapporteur Report on Torture], para. 119, referred to in Celibici TC Judgment, supra note 193, para 467.

[414] Muteba v. Zaire, (124/1982) Report of the Human Rights Committee, UN Official Records of the General Assembly, 22nd Session, Supplement Nº 40, (1984), Communication Nº 124/1982, Democratic Republic of the Congo, 24/07/84. CCPR/C/22/D/124/1982, para.10.2 [hereinafter Muteba, HRC Case], Setelich v. Uruguay, (63/1979) Report of Human Rights Committee, UN Official Records of the General Assembly, 14th Session, Communication
Nº 63/1979 : Uruguay. 28/10/81 CCPR/C/14/D/63/1979, para. 16.2 [hereinafter Setelich, HRC Case]; Weinberger v. Uruguay, (28/1978) Report of Human Rights Committee, UN Official Records of the General Assembly, 31st Session, Communication Nº 28/1978, UN Doc. CCPR/C/11/D/28/1978, para. 12 [hereinafter Weinberger Case], cited in Celibici TC Judgment, supra note 193, para 461.

[415] The Greek Case, supra note 391.

[416] Aksoy Case, supra note 346, para. 64.

[417] Eur. Court. H.R., Aydin v. Turkey, 25 Sept. 1997, Reports of Judgments and Decisions-1997 VI, Nº 50, paras. 83-84.

[418] See, e.g., Solano Case, supra note 409, at 42, 44. See also Barrera Case, supra note 411, at 44, 46. See also IACHR, Report on El Salvador (1978), supra note 27. With respect to the right against self-incrimination, see 8(3) of the American Convention; see also infra Part III(D), para. 237.

[419] See, e.g., Case 11.427, Report Nº 63/99, Victor Rosario Congo (Ecuador), Annual Report of the IACHR (1999), para. 82.

[420] Loayza Tamayo Case, supra note 395, para. 57.

[421] Ireland v. United Kingdom, supra note 386.

[422] Ireland vs. United Kingdom, supra note 386, para. 96.

[423] European Convention on Human Rights, supra note 137.

[424] Ireland vs. United Kingdom, supra note 386, para. 162.

[425] Ireland vs. United Kingdom, supra note 386, para. 167.

[426] Ireland vs. United Kingdom, supra note 386, para. 167.

[427] Ireland vs. United Kingdom, supra note 386, para. 167.

[428] Ireland vs. United Kingdom, supra note 386, para. 167.

[429] Loayza Tamayo Case, supra note 395, para. 57, citing Ribitsch Case, supra note 396, para. 38.

[430] See, e.g., Desmond McKenzie Case, supra note 272, para. 289. See also Case 11.743, Report Nº 38/00, Rudolph Baptiste (Grenada), Annual Report of the IACHR (2000), paras. 136 and following; Hilaire, Constantine and Benjamin et al. Case, supra note 272, Separate Concurring Opinion of Judge Sergio García Ramírez, para. 19.

[431] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335.

[432] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335,
Rules 9, 10, 11.

[433] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335,
Rules 12-16.

[434] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335,
Rules 17-19.

[435] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 20.

[436] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 21.

[437] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335,
Rules 21-26.

[438] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335,
Rules 27-34.

[439] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 8.

[440] The case of Victor Rosario Congo, for example, involved the pre-trial detention of a person who, after showing signs of mental illness, was placed in solitary confinement for approximately 40 days, was severely beaten, wounded by a prison guard, was not given medical attention and who died of malnutrition and dehydration two hours after he was submitted to the hospital. In evaluating these circumstances under Article 5 of the Convention, the Commission noted that: “ […] isolation can in itself constitute inhumane treatment. Moreover, when the person kept in isolation in a penitentiary institution has a mental disability, this could involve an even more serious violation of the State’s obligation to protect the physical, mental and moral integrity of persons held under its custody.” The Commission went on to conclude that this type of solitary confinement constituted inhuman and degrading treatment in violation of Article 5 of the Convention, and was aggravated by the fact that the detainee was left in isolation and unable to satisfy his basic needs. See Congo Case, supra note 419, paras 58-59. See similarly Suárez Rosero Case, supra note 330, para. 91 (considering that a 36-day detention and deprivation of any communication with the outside world constituted cruel, inhuman and degrading treatment, considering in particular the fact that it had been proven that the incommunicado detention was arbitrary and carried out in violation of the State’s domestic laws. The detainee had been held in a damp poorly ventilated underground cell measuring approximately 15 square meters with 16 other prisoners, without the necessary hygiene facilities, and had been obliged to sleep on a newspaper). The Inter-American Court and Commission have likewise considered violative of Article 5 of the American Convention circumstances in which persons were held for a prolonged period of time in solitary confinement on death row, in prison conditions similar to those described above, where they were in confined conditions with inadequate hygiene, ventilation and natural light, were allowed out of their cells infrequently, were abused by police and prison staff, and in some instances were provided inadequate medical care. Hilaire, Constantine and Benjamin et al. Case, supra note 272, paras. 84(m), (o), 168-169; Desmond McKenzie Case, supra note 272, para. 288. See similarly Baptiste Case, supra note 430, paras. 133-138.

[441] Desmond McKenzie Case, supra note 272, para. 288.

[442] See Villagran Morales Case, supra note 130, paras. 169, 170, citing jurisprudence of the European Court of Human Rights.

[443] Damion Thomas Case, supra note 332, para. 38.

[444] Id.

[445] Article 5(5) of the American Convention on Human rights provides as follows: “Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.”

[446] Villagran Morales Case, supra note 130. In that case, the Inter-American Court specified that it wished “to indicate the particular gravity of the instant case since the victims were youths, three of them children, and because the conduct of the State not only violated the express provision of Article 4 of the American Convention, but also numerous international instruments, that devolve to the State the obligation to adopt special measures of protection and assistance for the children within its jurisdiction” (para. 146, see also para. 196). See also Case 10.911, Report Nº 7/94, Hernández (El Salvador), Annual Report of the IACHR (1993), at 191 and following; Cases 10.227 and 10.333, Report Nº 8/92, Julio Ernesto Fuentes Perez, William Fernandez Rivera, and Raquel Fernandez Rivera (El Salvador), Annual Report of the IACHR (1991) at 119.

[447] See, e.g. X & Y Case, supra note 152, paras. 101 et seq; Rivas Case, supra note 408, at 183, 186; Hernández Case, supra note 446, at 194; Case 2029 (Paraguay), Annual Report of the IACHR (1977), at 44; IACHR, Third Report on the Situation of Human Rights in Paraguay, 9 March 2001, OEA/Ser.L/V/II.110 Doc. 52 [hereinafter IACHR Report on Paraguay (2001), Ch. VII, para. 6; IACHR Report on Peru (2000), supra note 27, Ch. VIII, para. 4.

[448] UN Convention on the Rights of the Child, supra note 122. See, e.g., Villagran Morales Case, supra note 130, para. 146 (noting with respect to the relationship between Article 19 of the American Convention and the provisions of the UN Convention on the Rights of the Child that "[b]oth the American Convention and the Convention on the Rights of the Child form part of a very comprehensive international corpus juris for the protection of the child that should help this Court establish the content and scope of the general provision established in Article 19 of the American Convention." (para 194) […] "These provisions allow us to define the scope of the 'measures of protection' referred to in Article 19 of the American Convention, from different angles. Among them, we should emphasize those that refer to non-discrimination, special assistance for children deprived of their family environment, the guarantee of survival and development of the child, the right to an adequate standard of living, and the social rehabilitation of all children who are abandoned or exploited" (para 196). See also X & Y Case, supra note 152, para 102; Hernández Case, supra note 446, at 191; IACHR Report on Paraguay (2001), supra note 447, Ch. VII, para. 9; IACHR Report on Peru (2000), supra note 27, Ch. VIII, para. 5; Annual Report of the IACHR (1991) OEA/Ser.L/V/II.79 rev.1, doc. 12, February 22, 1991, Ch. VI, Section IV, Subsections II and III-2, at paras. 305 and following) [hereinafter IACHR Annual Report (1991)]. See generally Rome Statute, supra note 31.

[449] UN Convention on the Rights of the Child, supra note 122, Article 2.

[450] UN Convention on the Rights of the Child, supra note 122, Article 3.

[451] UN Convention on the Rights of the Child, supra note 122, Article 37. IACHR Report on Peru (2000), supra note 27, paras. 23, 24; IACHR Annual Report (1991), supra note 448, Ch. VI, Section IV, Subsection III-2, at 308; Case 2029, supra note 447; Case 11.491, Report Nº 41/99, Minors in Detention (Honduras), Annual Report of the IACHR 1998.

[452] Case 2029, supra note 447.

[453] Inter-American Convention on Violence Against Women, supra note 107. See similarly the following universal instruments: Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, GA Res. 34/180, 34 UN GAOR Supp. (Nº 46) at 193, UN Doc. A/34/46, 1249 UNTS 455; Declaration on the Protection of Women and Children in Emergency and Armed Conflict, 14 December 1974, GA Res. 3318 (XXIX), 29 U.N. GAOR Supp. (Nº 31) at 146, UN Doc. A/9631 (1974).

[454] Inter-American Convention on Violence Against Women, supra note 107, Articles 2-3.

[455] Inter-American Convention on Violence Against Women, supra note 107, Article 4.

[456] Inter-American Convention on Violence Against Women, supra note 107, Article 7.

[457] Inter-American Convention on Violence Against Women, supra note 107, Article 8.

[458] Case 12.051, Report Nº 54/01, Maria Da Penha Maia Fernandes, Annual Report of the IACHR 2000, paras. 51 and following, para. 60.

[459] See, e.g., Gonzalez Perez Case, supra note 384, paras. 46 and following. See also Martín de Mejía Case, supra note 383; Case 2029, supra note 447; X & Y Case, supra note 152, paras. 87-89. For a general discussion of the right to personal integrity and protection from violence against women in the Hemisphere see IACHR, Report of the Inter-American Commission on Human Rights on the Status of Women in the Americas, OEA/Ser.L/V/II.100 Doc. 17, October 13, 1998, Chapter III(C), at 24 and following. See also Annual Report of the IACHR (1997), 13 April 1998, OEA/Ser.L/V/II.97, doc. 7 rev., Chapter VI. Section I, at 995 and following [hereinafter IACHR, Annual Report (1997)].

[460] Martín de Mejía Case, supra note 383.

[461] Martín de Mejía Case, supra note 383, at 182 and following. In addressing the rape itself, the Commission determined that each of the three elements set forth in the Inter-American Convention to Prevent and Punish Torture had been met: (1) "an intentional act through which physical and mental pain and suffering is inflicted on a person;" (2) "committed with a purpose;" (3) “by a public official or by a private person acting at the instigation of the former." The analysis relative to the first element takes into account both the physical and psychological suffering caused by rape. The Commission also noted the short and long term consequences for the victim, as well as the reluctance of many victims to denounce this violation. (See IACHR, Annual Report (1997), supra note 459, at 1002). In addition to determining that the rapes inflicted against Raquel Mejía constituted torture, the Commission found that they violated her right to have her honor respected and her dignity recognized under Article 11 of the American Convention. Recalling the words of the UN Special Rapporteur against Torture, that rape affects women "in the most sensitive part of their personality" with the effects aggravated by the fact that "in the majority of cases the necessary psychological treatment and care will not ... be provided," the Commission characterized sexual abuse generally as "a deliberate outrage" to the dignity of women. (See Martín de Mejía Case, supra note 383, at 186-187; IACHR, Annual Report (1997), supra note 459, at 1002). The Commission reached similar conclusions in the Gonzalez Perez Case, supra note 384, paras. 28-54. See also Rivas Case, supra note 408; Rome Statute, supra note 31, Articles 7, 8; Furundzija TC Judgment, supra note 375.

[462] See X & Y Case, supra note 152. See also IACHR, Annual Report (1997), supra note 459, at 1003.

[463] See X & Y Case, supra note 152, at 71 and following. See also IACHR, Annual Report (1997), supra note 459, at 1003.

[464] American Convention on Human Rights, supra note 61, Article 27(2); Inter-American Torture Convention, supra note 105, Article 5. See also Asencios Lindo et al. Case, supra note 6, para. 75.

[465] See generally Celibici TC Judgment, supra note 193, paras. 452 and following. See also Furundzija TC Judgment, supra note 375, paras. 134-157. In considering the concepts of torture and inhumane treatment in the context of armed conflicts, the International Criminal Tribunal for the Former Yugoslavia (ICTY) has considered that, in order to constitute torture within an armed conflict–and as such, potentially constituting a grave breach of the Geneva Conventions or of the Additional Protocol I-, the act must :(i) consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority- wielding entity [see Furundzija TC Judgment, supra note 375, para 162]. See also Celibici TC Judgment, supra note 193, para. 494. The ICTY Appeals Chamber has suggested, however, that the public official requirement might not be a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention. See Prosecutor v. Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic, Case Nº IT-96-23 and IT-96-23/1, Appeals Chamber, Judgment of 12 June 2002, paras. 146-148.]. Similarly, the concept of inhumane treatment has been understood within the framework of grave breach of the Geneva Conventions or of the Additional Protocol I- as involving “acts or omissions that cause serious mental or physical suffering or injury or constitute a serious attack on human dignity. Accordingly, all acts or omissions found to constitute torture or willfully causing great suffering or serious injury to body or health would also constitute inhuman treatment. However, this third category of offence is not limited to those acts already incorporated in the foregoing two, and extends further to acts which violate the basic principle of humane treatment, particularly the respect for human dignity.” Celibici TC Judgment, supra note 193, para. 442, 543. The ICTY and ICTR have also considered that rape and other serious sexual assaults may constitute torture. See Furundzija TC Judgment, supra note 375, paras. 163 and following, 264 and following; Celibici TC Judgment, supra note 193, paras. 475 and following, 940 and following. The ad hoc tribunals have also discussed other acts which could constitute torture, including burning parts of the body [Celibici TC Judgment, supra note 193, paras. 976 and following], imprisoning a person in a manhole and depriving such person of food and water [Celibici TC Judgment, supra note 193, para. 1007], beatings, threats to the lives of persons subjected to interrogations, and forcing victims to beat each other [Akayesu, TC Judgment, supra note 193, paras. 682-683]. Similarly, the ICTY has discussed other acts which could constitute inhumane treatment, including beatings [Celibici TC Judgment, supra note 193, para. 1026] and inflicting electrical shocks that cause pain and burns [Celibici TC Judgment, supra note 193, paras 1058-59].

[466] See infra Part II(C). As noted previously, violations of these prohibitions are regarded as sufficiently serious to give rise to individual criminal responsibility as grave breaches of the 1949 Geneva Conventions and Additional Protocol I or serious violations of Article 3 common to the 1949 Geneva Convention and, when committed as part of a widespread or systematic attack on any civilian population on national, political, ethnic, racial or religious grounds, as crimes against humanity and possibly genocide.

[467] Four Geneva Conventions, supra notes 36, 67.

[468] See inter alia, UN Secretary General Report (1993), supra note 189. See also UN Security Council Resolution 827, 3217th Meeting of 25 May 1993, S/RES/827 (1993); ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 73, paras. 79, 84; ICJ, Nicaragua Case, supra note 188, paras. 218-220; Tadić AC Decision Jurisdiction, supra note 163, paras. 98, 102, 112, 134; Celibici TC Judgment, supra note 193, paras. 298-306; Akayesu, TC Judgment, supra note 193, paras. 604-610; Kordic TC Jurisdiction Decision, supra note 193, paras. 25-34 (recognizing that Article 3 Common to the Four Geneva Conventions constitutes a norm of customary international law).

[469] Third Geneva Convention, supra note 67.

[470] 1907 Hague Convention and Regulations, supra note 177.

[471] 1907 Hague Convention and Regulations, supra note 177, Article 4.

[472] Fourth Geneva Convention, supra note 36.

[473] Fourth Geneva Convention, supra note 36, Article 4 (“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. The provisions of Part II are, however, wider in application, as defined in Article 13. Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, shall not be considered as protected persons within the meaning of the present Convention”).

[474] Additional Protocol I, supra note 68.

[475] See infra, Part III(C), para. 64.

[476] Additional Protocol II, supra note 36.

[477] Third Geneva Convention, supra note 67.

[478] Fourth Geneva Convention, supra note 36.

[479] The Third Geneva Convention specifies more particularly: ” […] The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary. […]” Third Geneva Convention, supra note 67, Articles 21, 22-25. The Fourth Geneva Convention contains similar provisions dealing with the internment of protected persons. Fourth Geneva Convention, supra note 36, Articles 41-43, 68, 78-88.

[480] See Third Geneva Convention, supra note 67, Articles 15-16, 29-32, 109. The Fourth Geneva Convention contains similar provisions with respect to protected persons, in particular to interned protected persons. Fourth Geneva Convention, supra note 36, Articles 38, 56 and following, 91-92.

[481] See Third Geneva Convention, supra note 67, Articles 25-27. Prisoners of war must, generally speaking, be afforded quarter conditions as favorable as those provided for the forces of the Detaining power. Third Geneva Convention, supra note 67, Article 25. In addition, prisoners of war must be treated in accordance with their military rank. See, e.g., Third Geneva Convention, supra note 67, Articles 16-17, 43-45, 98. See also Fourth Geneva Convention, supra note 36, Articles 86-90. Article 85 of the Fourth Geneva Convention provides in particular: “The Detaining Power is bound to take all necessary and possible measures to ensure that protected persons shall, from the outset of their internment, be accommodated in buildings or quarters which afford every possible safeguard as regards hygiene and health, and provide efficient protection against the rigours of the climate and the effects of the war. In no case shall permanent places of internment be situated in unhealthy areas or in districts the climate of which is injurious to the internees. In all cases where the district, in which a protected person is temporarily interned, is in an unhealthy area or has a climate which is harmful to his health, he shall be removed to a more suitable place of internment as rapidly as circumstances permit. The premises shall be fully protected from dampness, adequately heated and lighted, in particular between dusk and lights out. The sleeping quarters shall be sufficiently spacious and well ventilated, and the internees shall have suitable bedding and sufficient blankets, account being taken of the climate, and the age, sex, and state of health of the internees. Internees shall have for their use, day and night, sanitary conveniences which conform to the rules of hygiene and are constantly maintained in a state of cleanliness. They shall be provided with sufficient water and soap for their daily personal toilet and for washing their personal laundry; installations and facilities necessary for this purpose shall be granted to them. Showers or baths shall also be available. The necessary time shall be set aside for washing and for cleaning. Whenever it is necessary, as an exceptional and temporary measure, to accommodate women internees who are not members of a family unit in the same place of internment as men, the provision of separate sleeping quarters and sanitary conveniences for the use of such women internees shall be obligatory.”

[482] See Third Geneva Convention, supra note 67, Articles 19-20, 46. With respect to protected persons in occupied territories, see Fourth Geneva Convention, supra note 36, Article 49. See also Fourth Geneva Convention, supra note 36, Article 147 (specifying that “[t]he transfer of internees shall always be effected humanely. As a general rule, it shall be carried out by rail or other means of transport, and under conditions at least equal to those obtaining for the forces of the Detaining Power in their changes of station. If, as an exceptional measure, such removals have to be effected on foot, they may not take place unless the internees are in a fit state of health, and may not in any case expose them to excessive fatigue. The Detaining Power shall supply internees during transfer with drinking water and food sufficient in quantity, quality and variety to maintain them in good health, and also with the necessary clothing, adequate shelter and the necessary medical attention. The Detaining Power shall take all suitable precautions to ensure their safety during transfer, and shall establish before their departure a complete list of all internees transferred. Sick, wounded or infirm internees and maternity cases shall not be transferred if the journey would be seriously detrimental to them, unless their safety imperatively so demands. If the combat zone draws close to a place of internment, the internees in the said place shall not be transferred unless their removal can be carried out in adequate conditions of safety, or unless they are exposed to greater risks by remaining on the spot than by being transferred“).

[483] Additional Protocol I, supra note 68, Article 75(4). See similarly Additional Protocol II, supra note 36, Article 6 regarding non-international armed conflicts.

[484] Article 17 of the Third Geneva Convention provides that “[e]very prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. […] No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. […]” Third Geneva Convention, supra note 67, Article 17.

[485] Third Geneva Convention, supra note 67, Articles 49 and following. In particular, Article 52 provides: “Unless he be a volunteer, no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature. No prisoner of war shall be assigned to labour which would be looked upon as humiliating for a member of the Detaining Power's own forces. The removal of mines or similar devices shall be considered as dangerous labour.” The Fourth Geneva Convention contains similar guarantees for protected persons. Fourth Geneva Convention, supra note 36, Articles 40, 51, 95-96 (prohibiting employment on work of a degrading or humiliating character).

[486] The Third Geneva Convention provides that “[i]n no case shall disciplinary punishments be inhuman, brutal or dangerous to the health of prisoners of war“ and that “[c]ollective punishment for individual acts, corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden.” Third Geneva Convention, supra note 67, Articles 87(3), 89. The Fourth Geneva Convention contains similar guarantees for protected persons subjected to internment. Fourth Geneva Convention, supra note 36, Articles 100, 119.

[487] For example, Article 97 of the Third Geneva Convention provides: “Prisoners of war shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein. All premises in which disciplinary punishments are undergone shall conform to the sanitary requirements set forth in Article 25. A prisoner of war undergoing punishment shall be enabled to keep himself in a state of cleanliness, in conformity with Article 29. Officers and persons of equivalent status shall not be lodged in the same quarters as non-commissioned officers or men. Women prisoners of war undergoing disciplinary punishment shall be confined in separate quarters from male prisoners of war and shall be under the immediate supervision of women.“ Third Geneva Convention, supra note 67, Article 97. The Convention also specifies fundamental guarantees dealing with the treatment of prisoners of war subject to disciplinary punishment: “A prisoner of war undergoing confinement as a disciplinary punishment, shall continue to enjoy the benefits of the provisions of this Convention except in so far as these are necessarily rendered inapplicable by the mere fact that he is confined. In no case may he be deprived of the benefits of the provisions of Articles 78 and 126. A prisoner of war awarded disciplinary punishment may not be deprived of the prerogatives attached to his rank. Prisoners of war awarded disciplinary punishment shall be allowed to exercise and to stay in the open air at least two hours daily. They shall be allowed, on their request, to be present at the daily medical inspections. They shall receive the attention which their state of health requires and, if necessary, shall be removed to the camp infirmary or to a hospital […]” Third Geneva Convention, supra note 67, Article 98. The Fourth Geneva Convention contains similar guarantees for protected persons subjected to internment. Fourth Geneva Convention, supra note 36, Arts. 124, 125.

[488] Third Geneva Convention, supra note 67, Article 92 (“Pprisoners of war punished as a result of an unsuccessful escape may be subjected to measures of special surveillance, which do not affect the state of his or her health, and which do not entail the suppression of any of the safeguards granted [by the Third Geneva Convention].” The Fourth Geneva Convention contains similar guarantees for protected persons subjected to internment. Fourth Geneva Convention, supra note 36, Article 120.

[489] See, e.g., Third Geneva Convention, supra note 67, Article 108 (providing that “[s]entences pronounced on prisoners of war after a conviction has become duly enforceable, shall be served in the same establishments and under the same conditions as in the case of members of the armed forces of the Detaining Power. These conditions shall in all cases conform to the requirements of health and humanity. A woman prisoner of war on whom such a sentence has been pronounced shall be confined in separate quarters and shall be under the supervision of women. In any case, prisoners of war sentenced to a penalty depriving them of their liberty shall retain the benefit of the provisions of Articles 78 and 126 of the present Convention. Furthermore, they shall be entitled to receive and dispatch correspondence, to receive at least one relief parcel monthly, to take regular exercise in the open air, to have the medical care required by their state of health, and the spiritual assistance they may desire. Penalties to which they may be subjected shall be in accordance with the provisions of Article 87, third paragraph”). The Fourth Geneva Convention contains similar guarantees and provides in particular that “[i]mprisonment in premises without daylight, and, in general, all forms of cruelty without exception are forbidden.” Fourth Geneva Convention, supra note 36, Article 118.

[490] See, e.g., Third Geneva Convention, supra note 67, Article 8 (providing that the Convention “shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict”). See also Fourth Geneva Convention, supra note 36, Article 9.

[491] Third Geneva Convention, supra note 67, Article 126. Fourth Geneva Convention, supra note 36, Articles 142-143.

[492] Third Geneva Convention, supra note 67, Articles 9, 78. Fourth Geneva Convention, supra note 36, Articles 10, 101.

[493] See, e.g., Fourth Geneva Convention, supra note 36, Arts. 24, 38 (5), 50, 82, 89, 94, 132; Additional Protocol I, supra note 68, Articles 70, 77, 78.

[494] Fourth Geneva Convention, supra note 36, Articles 82, 89, 94.

[495] See, e.g., Third Geneva Convention, supra note 67, Articles 14, 25, 29, 97, 108; Fourth Geneva Convention, supra note 36, Articles 14, 16, 23, 27, 38, 50, 76, 85, 89, 98, 124; Additional Protocol I, supra note 68, Articles 70, 75, 76; Additional Protocol II, supra note 36, Article 5(2)(a).

[496] Third Geneva Convention, supra note 67, Articles 25, 29.

[497] Third Geneva Convention, supra note 67, Articles 97, 108.

[498] Fourth Geneva Convention, supra note 36, Articles 76, 85, 124; Additional Protocol I, supra note 68, Article 75 (5); Additional Protocol II, supra note 36, Article 5(2)(a).

[499] Furundzija TC Judgment, supra note 375, para. 142.

[500] Third Geneva Convention, supra note 67, Article 130; Fourth Geneva Convention, supra note 36, Article 147.

[501] Additional Protocol I, supra note 68, Articles 11, 85 and following.

[502] Rome Statute, supra note 31, Article 8.

[503] Rome Statute, supra note 31, Article 7. The International Criminal Tribunal for Rwanda (ICTR) considered that the following constitute the elements of torture: (i) The perpetrator must intentionally inflict severe physical or mental pain or suffering upon the victim for one or more of the following purposes: (a) to obtain information or a confession from the victim or a third person; (b) to punish the victim or a third person for an act committed or suspected of having been committed by either of them; (c) for the purpose of intimidating or coercing the victim or the third person; (d) for any reason based on discrimination of any kind. (ii) The perpetrator was himself an official, or acted at the instigation of, or with the consent or acquiescence of, an official or person acting in an official capacity. Akayesu, TC Judgment, supra note 193, para. 594. The ICTR Chamber also found that torture could also constitute a crime against humanity if the following further elements were met: a) Torture must be perpetrated as part of a widespread or systematic attack; (b) the attack must be against the civilian population; (c) the attack must be launched on discriminatory grounds, namely: national, ethnic, racial, religious or political grounds. Akayesu, TC Judgment, supra note 193, para. 595.

[504] Genocide Convention, supra note 189, Article 2; Rome Statute, supra note 31,
Article 6.

[505] Rome Statute, supra note 31. See similarly ICTY Statute, supra note 549; ICTR Statute, supra note 549.

[506] For example, during an armed conflict, prisoners of war should be detained in prisoner of war camps and not in regular prisons. Third Geneva Convention, supra note 67, Articles 21, 97. Civilian internees should similarly be detained in civilian camps and not in regular prisons. Fourth Geneva Convention, supra note 36, Articles 41-43, 68, 78-88, 124.

[507] Third Geneva Convention, supra note 67, Article 5. Additional Protocol I, supra note 68, Article 45. The determination as to whether a combatant is entitled to prisoner of war status need not necessarily require a trial by a civilian court, but can be made by an administrative body. See, e.g., US Department of the Army, Field Manual 27-10, The Law of Land Warfare. See also Part II(B) on the right to personal liberty and security, para. 130; Part III(F) on the obligation to respect and ensure, non-discrimination and the right to judicial protection, para. 347.

[508] Additional Protocol I, supra note 68, Article 45.

[509] Third Geneva Convention, supra note 67, Article 5.

[510] See supra Parts II(B), III(B), III(D). See also United States v. List (The Hostage Case), Trial of the War Criminals before the Nuremberg Tribunal 1228, 1238 (1950) and United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Volume VIII, 1949, at 50 (stating that “[i]t cannot be questioned that acts done in times of war under the military authority of an enemy cannot involve any criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war.”); Lieber Instructions, supra note 208, Articles 56, 57; Third Geneva Convention, supra note 67, Article 87 (providing that “[p]risoners of war may not be sentenced […] to any penalties except those provided for in respect of members of the armed forces of the said power who have committed the same acts.”); David 1999, supra note 229, at 379-381; Sassoli & Bouvier, supra note 162, at 125-126.

[511] For applicable international human rights law standards, see American Convention, Article 5; UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 8. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Article 97; Fourth Geneva Convention, supra note 36, Article 124.

[512] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 8. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 25, 29, 97, 108; Fourth Geneva Convention, supra note 36, Articles 76, 85, 124; Additional Protocol I, supra note 68, Article 75(5). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36,
Article 5(2)(a).

[513] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 8. For international humanitarian law standards applicable in international armed conflicts, see Additional Protocol I, supra note 68, Article 77(4). However, with respect to protected persons subjected to internment, the Fourth Geneva Convention provides: “[…]Throughout the duration of their internment, members of the same family, and in particular parents and children, shall be lodged together in the same place of internment, except when separation of a temporary nature is necessitated for reasons of employment or health or for the purposes of enforcement of the provisions of Chapter IX of the present Section. Internees may request that their children who are left at liberty without parental care shall be interned with them. Wherever possible, interned members of the same family shall be housed in the same premises and given separate accommodation from other internees, together with facilities for leading a proper family life.” Fourth Geneva Convention, supra note 36, Article 82.

[514] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 9, 10, 11, 22-26. See also Congo Case, supra note 419, para 58. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 13, 22-25; Fourth Geneva Convention, supra note 36, Articles 32, 85; Additional Protocol I, supra note 68, Articles 11(4), 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2).

[515] For international humanitarian law standards applicable in international armed conflicts, see Fourth Geneva Convention, supra note 36, Article 85; Third Geneva Convention, supra note 67, Article 25. For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 10.

[516] For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Article 25, and Fourth Geneva Convention, supra note 36, Article 85. For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, rules 10, 12–16, 19. Desmond McKenzie Case, supra note 272, para. 288. See similarly Baptiste Case, supra note 430, paras. 133-138.

[517] For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 15-16, 25-27, 29-32, 109 and following; Fourth Geneva Convention, supra note 36, Articles 38, 56 and following, 89-90. For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 17-18, 20-26. Congo Case, supra note 419.

[518] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 33. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 19-20, 46; Fourth Geneva Convention, supra note 36, Article 49 and 127.

[519] See, e.g., Third Geneva Convention, supra note 67, Article 8 (providing that the Convention “shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict.”); Fourth Geneva Convention, supra note 36, Article 9.

[520] For international humanitarian law standards applicable in international and non-international armed conflicts, see Article 3 Common to the Four 1949 Geneva Conventions, supra notes 36, 67. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Article 126; Fourth Geneva Convention, supra note 36, Articles 142-143.

[521] See supra, Part III(C), para. 146.

[522] For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 13, 87, 89, 92, 97-98, 108; Fourth Geneva Convention, supra note 36, Articles 32, 100, 118, 119, 124-125; Additional Protocol I, supra note 68, Articles 11(4), 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2). For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 27-34.

[523] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 31, 32. See also Suárez Rosero Case, supra note 330; Desmond McKenzie Case, supra note 272, para. 288. See similarly Baptiste Case, supra note 430, paras. 133-138. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 13, 87, 89, 98, 108; Fourth Geneva Convention, supra note 36, Articles 32, 118, 119, 124-125; Additional Protocol I, supra note 68, Articles 11(4), 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2).

[524] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 33. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 13, 87, 108; Fourth Geneva Convention, supra note 36, Articles 32, 118-119; Additional Protocol I, supra note 68, Articles 11(4), 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2). Moreover, according to international human rights standards, chains and irons should never be used as restraints. See UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 33. While international humanitarian law standards do not expressly provide for such prohibition, the fact that irons and chains may inflict pain and cause physical damage suggests that even in armed conflict situations, the use of such instruments should be strictly limited to exceptional situations that require such measure, such as the transportation of detainees or the temporary protection of the detainees or their guardians, when there is no alternative restraint available, and only for the period of time requiring such measure.

[525] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 27 and following. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 87, 89, 92; Fourth Geneva Convention, supra note 36, Articles 118-119, 120.

[526] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 32. For international humanitarian law standards applicable in international armed conflicts, Third Geneva Convention, supra note 67, Articles 13, 87, 89, 98, 108; Fourth Geneva Convention, supra note 36, Articles 118, 119, 125, and see Additional Protocol I, supra note 68, Articles 11(4) and 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2).

[527] For applicable international human rights law standards, see American Convention on Human Rights, supra note 61, Article 5; American Declaration, supra note 63, Article I; Inter-American Torture Convention, supra note 105. For international humanitarian law standards applicable in international and non-international armed conflicts, see Article 3 Common to the Four Geneva Conventions, supra notes 36, 67. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 13, 14, 17; Fourth Geneva Convention, supra note 36, Articles 27, 32; Additional Protocol I, supra note 68, Articles 11(4), 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2).

[528] See, e.g., The Greek Case, supra note 391.

[529] See, e.g., Aksoy Case, supra note 346, para. 64.

[530] See, e.g., Aydin, supra note 417, para. 84.

[531] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119, referred to in Celibici TC Judgment, supra note 193, para. 467.

[532] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119, referred to in Celibici TC Judgment, supra note 193, para. 467.

[533] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119, referred to in Celibici TC Judgment, supra note 193, para. 467.

[534] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119, referred to in Celibici TC Judgment, supra note 193, para. 467.

[535] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119, referred to in Celibici TC Judgment, supra note 193, para. 467.

[536] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119. See also Muteba, HRC Case, supra note 414, para. 10.2; Setelich, HRC Case, supra note 414, para. 16.2; Weinberger, HRC Case, supra note 414, para. 4. See also Celibici TC Judgment, supra note 193, paras 461, 467.

[537] See, e.g., Lissardi & Rossi, supra note 412, at 51, 54.

[538] See, e.g., Velásquez Rodríguez Case, supra note 249, para. 156. See also Godínez Cruz Case, supra note 249, para. 164. See also Villagran Morales Case, supra note 130,
paras. 162-164.

[539] See, e.g., Ireland v. United Kingdom, supra note 386, para. 96.

[540] For applicable international human rights law standards, see American Convention on Human Rights, supra note 61, Article 8(3). For international humanitarian law standards applicable in non-international armed conflicts see Additional Protocol II, supra note 36, Article 6(2). For international humanitarian law standards applicable in international armed conflicts see Additional Protocol I, supra note 68, Article 75 (4). See Part III(D), para. 261.

[541] Third Geneva Convention, supra note 67, Article 17, See also ICRC Commentary on the Third Geneva Convention, supra note 350, at 156-159.

[542] American Convention on Human Rights, supra note 61, Article 27(2), Inter-American Torture Convention, supra note 105, Article 5. See also Asencios Lindo et al. Case, supra note 6, para. 75; IACHR, Report on Canada (2000), supra note 338, paras. 118, 154; IACHR Report on Peru (2000), supra note 27. For international humanitarian law standards, see Article 3 Common to the Four Geneva Conventions, supra notes 36, 67; Third Geneva Convention, supra note 67, Articles 13, 14; Fourth Geneva Convention, supra note 36, Articles 27, 32; Additional Protocol I, supra note 68, Article 75; Additional Protocol II, supra note 36, Articles 4, 5.

[543] IACHR, Report on Canada (2000), supra note 338, paras. 118, 154.

[544] See, e.g., Universal Declaration of Human Rights, supra note 65, Article 11; International Covenant on Civil and Political Rights, supra note 66, Arts. 14, 15; European Convention on Human Rights, supra note 137, Articles 6, 7. Article 40 of the UN Convention on the Rights of the Child prescribes similar protections relating specifically to proceedings involving children and has been the subject of consideration by the Commission, supra note 122. See e.g. Rivas Case, supra note 408.

[545] See I/A Court H.R., Constitutional Court Case, Judgment of January 31, 2001, Ser. C Nº 7, paras. 69, 70 (finding that the minimum guarantees established under Article 8(2) of the Convention are not limited to judicial proceedings in a strict sense, but also apply to proceedings involving the determination of rights and obligations of a civil, labor, fiscal or other nature.). See also I/A Court H.R, Advisory Opinion OC-11/90, Exceptions to Exhaustion of Domestic Remedies (Articles 46(1), 46(2)(a), and 46(2)(b) American Convention on Human Rights), August 10, 1990, Series A, Nº 11, par. 28. See similarly UNHRC, General Comment Nº 13, Article 14 (21st sess., 1984), Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 14 (1994), para. 2 [hereinafter UNHRC General Comment Nº 13].

[546] See, e.g., Case 11.610, Report Nº 49/99, Loren Laroye Riebe Star and others (Mexico), Annual Report of the IACHR 1998, paras. 46, 65-70 (applying Article 8(1) of the American Convention in the context of administrative proceedings leading to the expulsion of foreigners); Ferrer-Mazorra et al. Case, supra note 114, para. 213; IACHR, Report on Canada (2000), supra note 338, paras. 109, 115; Case 10.675, Report 51/96, Haitian Interdiction Case (United States), Annual Report of the IACHR (1993), para. 180. See similarly Eur. Comm. H.R., Huber v. Austria, 1975 Y.B. Eur. Conv. on H.R., paras. 69-71; Eur. Court H.R., Albert and Le Compte Case, 10 February 1983, Series A Vol. 58, para. 39 (considering the principles of due process to be applicable, mutatis mutandis, to disciplinary sanctions of an administrative nature).

[547] See, e.g., UN Crimes Against Internationally Protected Persons Convention, supra note 35, Article 9 (“Any person regarding whom proceedings are being carried out in connexion with any of the crimes set forth in article 2 shall be guaranteed fair treatment at all stages of the proceedings”); 1977 OAS Terrorism Convention, supra note 7, Article 4 (“Any person deprived of his freedom through the application of this Convention shall enjoy the legal guarantees of due process”), Article 8 (“To cooperate in preventing and punishing the crimes contemplated in Article 2 of this Convention, the contracting states accept the following obligations: [. . .] (c) To guarantee to every person deprived of his freedom through the application of this convention every right to defend himself”); Inter-American Convention Against Terrorism, supra note 8, Article 15(3) (“Any person who is taken in custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including the enjoyment of all rights and guarantees in conformity with the law of the state in the territory of which that person is present and applicable provisions of international law”).

[615] See, e.g., Advisory Opinion OC-8/87, supra note 147, paras. 21-27.

[616] See Ten Years of Activities, supra note 1, at 341; IACHR Report on Argentina (1980), supra note 27, at 26; IACHR, Report on Guatemala (1983) supra note 569, at 18; IACHR Report on Peru (2000), supra note 27, paras. 71-73. See similarly UNHRC, General Comment No. 29, supra note 141, para. 16; International Commission of Jurists, States of Emergency, supra note 345, at 427-428, Nos.1-8; Paris Minimum Standards, supra note 345, at 82-83; Siracusa Principles, supra note 345, Principles 70(e) – (g). As discussed in Part III(D), para. 258, infra, in situations of armed conflict, Article 75 of Additional Protocol I and Article 6 of Additional Protocol II do not expressly provide for the right to appeal. The right may nevertheless exist in situations to which these provisions apply, however, by reason of the principle, discussed in Part II(B) above, that precludes one human rights instrument from being construed or applied so as to limit or infringe a more favorable provision granting greater protection under any other applicable rules of international law, such as Article 8(2)(h) of the American Convention. See, e.g., Additional Protocol I, supra note 68, Article 75(8), American Convention on Human Rights, supra note 61, Article 29.

[617] See, e.g., Abella Case, supra note 73, para. 166; New Rules, supra note 210, at 619.

[618] See also supra, Part II(C), para. 78, citing the American Convention on Human Rights, supra note 61, Articles 27(1), 29; International Covenant on Civil and Political Rights, supra note 66, Article 5(2); Buergenthal, To Respect and Ensure, supra note 69, at 90.

[619] See, e.g., UN Body of Principles on Detention or Imprisonment, supra note 335, Principle 18; UNHRC General Comment Nº 13, supra note 545, para. 6; Eur. Court H.R., Campbell and Fell v. United Kingdom, June 28, 1984, Ser. A Nº 80, 7 E.H.R.R. 165, paras. 87, 88; ICTY, Rules of Procedure and Evidence, 11 February 1994, as amended on 13 December 2001, IT/32/REV.22. Article 79 [hereinafter ICTY, Rules of Procedure and Evidence].

[620] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. V, paras. 67-69.

[621] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. V, paras. 124-126 (describing dangers encountered in the use of anonymous witnesses in the regional justice system in Colombia).

[622] See, e.g., Eur. Court H.R., Doorson v. Netherlands, March 26, 1996, R.J.D. 1996-11, Nº 6, paras. 70-76. See similarly International Commission of Jurists, States of Emergency, supra note 345, at 429. The Statutes and the Rules of Procedure of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda constitute examples of contemporary efforts to fairly adjudicate serious crimes in circumstances where participants may be particularly vulnerable to threats, and include provisions for the protection of the identities of victims and witnesses. See, e.g., ICTY Statute, supra note 549, Article 22 (“The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but not be limited to, in camera proceedings and the protection of the victim’s identity.”); ICTY, Rules of Procedure and Evidence, supra note 619, Rule 75(B)(III) (permitting a Chamber to hold an in camera hearing to determine whether to order “appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television”).

[623] See, e.g., IACHR Report on Colombia 1999, supra note 110, Ch. IV, paras. 67-70.

[624] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. IV, paras. 124-126.

[625] See supra, Part III(B), para. 140.

[626] Ten Years of Activities, supra note 1, at 320. See similarly Askoy Case, supra note 346, para. 76.

[627] See, e.g., ICRC Commentary on the Additional Protocols, supra note 210, at 879 (indicating that most of the guarantees listed in subparagraphs 75(4)(a) to (j) are contained in the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the American Convention on Human Rights); 1397 (observing that Article 6 of Additional Protocol II supplements and develops Article 3(1)(d) common to the 1949 Geneva Conventions, reiterates the principles contained in the Third and Fourth Conventions, and is largely based on the International Covenant on Civil and Political Rights).

[628] See, e.g., Third Geneva Convention, supra note 67, Articles 82-108 (governing disciplinary and penal sanctions against prisoners of war); Article 130 (prescribing the willful deprivation of the rights of a fair and regular trial to be a grave breach of the Convention); Fourth Geneva Convention, supra note 36, Articles 64-75 (governing penal prosecution of civilians in occupied territory), Articles 117-126 (regulating disciplinary and penal sanctions against interned civilians), Article 147 (prescribing the willful deprivation of the rights of a fair and regular trial to be a grave breach of the Convention); Additional Protocol I, supra note 68, Article 45(2) (providing for the right of a defendant to assert his entitlement to prisoner of war status before a judicial tribunal and have that question adjudicated).

[629] See supra Part III(A), para. 104.

[630] See, e.g., Third Geneva Convention, supra note 67, Article 147.

[631] Third Geneva Convention, supra note 67, Article 84.

[632] Id.

[633] See supra Part II(C), para. 64.

[634] See, e.g., Third Geneva Convention, supra note 67, Article 87. See also ICRC Commentary on the Additional Protocols, supra note 210, at 879-880.

[635] In this regard, certain provisions of international humanitarian law expressly provide for a right of appeal. For example, Article 106 of the Third Geneva Convention provides that “[e]very prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.” In contrast, neither Article 75 of Additional Protocol I nor Article 6 of Additional Protocol II expressly include the right to appeal among their due process protections, but rather guarantee convicted defendants the right to be “advised on conviction of his judicial and other remedies and of the time limits within which they may be exercised.” See Additional Protocol I, supra note 68, Article 75(4)(j); Additional Protocol II, supra note 36, Article 6(3). The right to appeal may nevertheless apply to persons protected by these provisions, by reason of the principle, discussed in Part II(B) above, that precludes one human rights instrument from being construed or applied so as to limit or infringe a more favorable provision granting greater protection under any other applicable rules of international law, including the right to appeal reflected under Article 8(2)(h) of the American Convention and Article 14(5) of the ICCPR. See supra, Part II(B), para. 45. Article 75(8) of Additional Protocol I provides in this connection that “[n]o provision of this Article may be construed as limiting or infringing any other more favorable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.”

[636] ICRC Commentary on the Additional Protocols, supra note 210, at 879-880, para. 3092.

[637] See supra Parts II(B), (C), paras. 56, 7, citing, inter alia, American Convention on Human Rights, supra note 61, Article 29(b); International Covenant on Civil and Political Rights, supra note 66, Article 5(2); Buergenthal, To Respect and Ensure, supra note 69, at 90.

[638] See UN Convention on the Status of Refugees, supra note 120, Article 1F (“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”).

[639] American Declaration, supra note 63.

[640] American Convention on Human Rights, supra note 61.

[641] Declaration of Principles on Freedom of Expression, in Basic Documents, supra note 13, at 189.

[642] Universal Declaration of Human Rights, supra note 65.

[643] International Covenant on Civil and Political Rights, supra note 66.

[644] European Convention on Human Rights, supra note 137. Although the OAS member states are not parties to this instrument, it nevertheless constitutes a pertinent comparative reference concerning the international protection of the right to freedom of expression. The jurisprudence of the European Court of Human Rights interpreting Article 10 is also useful to inform the interpretation of Article 13 of the American Convention in areas which have not yet been addressed or fully developed in the inter-American system. However, the higher value placed on freedom of expression in the inter-American system must also be taken into account.

[645] Advisory Opinion OC-5/85, supra note 152, para. 50.

[646] Advisory Opinion OC-5/85, supra note 152, para. 50.

[647] Advisory Opinion OC-5/85, supra note 152, para. 70.

[648] Advisory Opinion OC-5/85, supra note 152, paras. 30-32.

[649] Eur. Ct. H.R., Handyside v. United Kingdom, Judgment of December 7, 1976, Ser. A Nº 24, para. 49. See also I/A Court H.R., Olmedo Bustos et. al Case ("Last Temptation of Christ"), Judgment of February 5, 2001, Series C Nº 73, para. 69; IACHR, Annual Report 1994, Report on the Compatibility of Desacato Laws with the American Convention on Human Rights, OEA/Ser.L/V/II.88., Doc. 9 rev (1995), 197, 204-205.

[650] Declaration of Principles on Freedom of Expression, supra note 641, Preamble.

[651] For a discussion of derogation under inter-American human rights instruments, see supra Part II(B), paras. 49-52.

[652] See American Convention on Human Rights, supra note 61, Article 13(4).

[653] Advisory Opinion OC-5/85, supra note 152, para. 54.

[654] Olmedo Bustos et al. Case, supra note 649, para. 70.

[655] Case 11.230, Report Nº 11/96, Francisco Martorell (Chile), Annual Report of the IACHR 1996 (regarding ban on entry into circulation and distribution of a book that was allegedly defamatory), para. 56.

[656] With the exception provided for in Article 13(4) of the American Convention.
See previous section on prior censorship.

[657] American Convention on Human Rights, supra note 61, Article 13(2).

[658] Eur. Court H.R., Sunday Times v. United Kingdom, Judgment of April 26, 1979,
Ser. A Nº 30, para. 49.

[659] See, e.g., Id., paras. 49-53 (finding that a principle formulated in common law but not previously applied to a case with similar facts was reasonably foreseeable). See also Eur. Court H.R., Rekvényi v. Hungary, Judgment of May 20, 1999, Reports of Judgments and Decisions 1999-III, p 423, para. 34 (stating that the level of precision required depends on the content of the instrument in question, its subject matter, and the number and status of those to whom it is addressed, and finding that a constitutional provision containing vague terms was sufficiently precise when read in conjunction with complementary laws and administrative regulations); Eur. Court H.R., Hashman and Harrup v. United Kingdom, Judgment of November 25, 1999, Reports of Judgments and Decisions 1999-VIII, p 1, paras. 29-43 (finding that the interference with freedom of expression was not compatible with Article 10 of the European Convention because the definition of the offense was overly vague and therefore not adequately “prescribed by law”).

[660] Advisory Opinion OC-5/85, supra note 152, para. 64. See also supra Part II(B), para. 55 (discussion on contrast of concept of public order with the civil law concept of "ordre public").

[661] Advisory Opinion OC-5/85, supra note 152, para. 69.

[662] The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (November 1996), available in http://www.article19.org/docimages/511.htm, last visited 11 August 2002 [hereinafter Johannesburg Principles], Principle 2(a). For a discussion regarding the authoritative nature of the Johannesburg Principles, see infra note 687. See also Kate Martin and Andrzej Rzeplinski, Principles of Oversight and Accountability, in the Public Interest: Security Services in a Constitutional Democracy, Project of the Helsinki Foundation for Human Rights, Warsaw, Poland, in cooperation with the Center for National Security Studies, Washington, DC, January 6, 1998.

[663] Advisory Opinion OC-5/85, supra note 152, para. 46.

[664] Advisory Opinion OC-5/85, supra note 152, para. 46.

[665] Advisory Opinion OC-5/85, supra note 152, para. 46.

[666] Advisory Opinion OC-5/85, supra note 152, para. 46.

[667] IACHR, Annual Report 2000, Vol. III, Report of the Office of the Special Rapporteur for Freedom of Expression, [hereinafter 2000 Special Rapporteur Report] OEA/Ser.L/V/II.114, Doc. 20 rev., p. 24. See also Felipe Fierro Alvídez, El derecho y la libertad de expresión en México, debates y reflexiones (The law and freedom of expression in Mexico, debates and reflections), Revista
Latina de Comunicación Social, Dec. 2000, available at http://www.ull.es/publicaciones/ latina/04fierro.htm.

[668] Eur. Court H.R., Goodwin v. United Kingdom, Judgment of March 27, 1996, Reports of Judgments and Decisions, Nº 7 1996-II, p.483, para 39.

[669] Goodwin v. United Kingdom, supra note 668, para. 39.

[670] See Declaration of Principles on Freedom of Expression, supra note 641, Principle 8.

[671] See 2000 Special Rapporteur Report, supra note 667, at 24.

[672] See Declaration of Principles on Freedom of Expression, supra note 641, Principle 4; See also Report of the Special Rapporteur on the protection and promotion of the right to freedom of opinion and expression, Mr. Abid Hussein, UN doc. E/CN.4/1999/64, 29 January, 1999. The UN Special Rapporteur on the protection and promotion of the right to freedom of expression stated that the right to seek and receive information "imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems--including film, microfiche, electronic capacities, video and photographs--subject only to such restrictions as referred to in article 19, paragraph 3, of the International Covenant on Civil and Political Rights." Id., para. 12.

[673] Toby Mendel, Freedom of Information as an Internationally Protected Right (2000), available at http://www.article19.org/docimages/627.htm.

[674] See IACHR, Annual Report 2001, Vol. II, Report of the Office of the Special Rapporteur for Freedom of Expression [hereinafter 2001 Special Rapporteur Report], OEA/Ser.L./V/II.114, Doc. 5 rev. 1, p.72; 2000 Special Rapporteur Report, supra note 667, at 18.

[675] See Alicia Pierini et al., Habeas Data: Derecho a la Intimidad (Habeas Data: The Right to Privacy), Editorial Universidad (Buenos Aires 1999), at 31.

[676] Article XIX, The Public's Right to Know: Principles on Access to Information Legislation (June 1999), available in http://www.article19.org/docimages/1113.htm [hereinafter Freedom of Information Principles], Principle 1. Article XIX is a global non-governmental organization dedicated to promoting freedom of expression and access to official information. Its Freedom of Information Principles have been used widely by international organizations and NGOs. See, e.g. IACHR, Annual Report 1999, Vol. III, Report of the Office of the Special Rapporteur for Freedom of Expression [hereinafter 1999 Special Rapporteur Report], OEA/Ser.L/V/II.111, Doc. 3 rev., Vol. III, p.88; Commission on Human Rights Resolution 2001/47, U.N. Commission on Human Rights, 57th Sess., Supp. Nº 3, at 209, E/CN.4/RES/2001/47 (2001), preamble.

[677] See discussion, supra Part III(B), para. 122.

[678] See, eg, Johannesburg Principles, supra note 662, Principle 1(d).

[679] American Convention on Human Rights, supra note 61, Article 13(2).

[680] Freedom of Information Principles, supra note 676, Principle 4.

[681] Freedom of Information Principles, supra note 676, Principle 4.

[682] Freedom of Information Principles, supra note 676, Principle 5.

[683] Freedom of Information Principles, supra note 676, Principle 7.

[684] See Freedom of Information Principles, supra note 676, Principle 7.

[685] See Freedom of Information Principles, supra note 676, Principle 7.

[686] Johannesburg Principles, supra note 662.

[687] The Johannesburg Principles constitute a set of voluntary principles drafted by a committee of international experts on human rights and media law, and are frequently invoked by the UN Commission on Human Rights (see, e.g., Commission on Human Rights Resolution 2002/48, UN Commission on Human Rights, 58th Sess., UN Doc. E/CN.4/RES/2002/48 (2002), Preamble; Resolution 2001/47, UN Commission on Human Rights, supra note 676), the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (See, e.g., Report of the Special Rapporteur, Mr. Abid Hussain, pursuant to Commission on Human Rights resolution 1993/45, UN Commission on Human Rights, 52nd Sess., E/CN.4/1996/39, 22 March 1996, para. 4.), the UN Special Rapporteur on the independence of judges and lawyers (See, e.g., Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy, Addendum, Report on the mission to Peru, UN Commission on Human Rights, 54th Sess., E/CN.4/1998/39/Add.1, 19 February 1998, introduction.) and the Special Representative of the Secretary-General on human rights defenders (See, e.g., Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on human rights defenders in accordance with Commission resolution 2000/61, UN Commission on Human Rights, 57th Sess, E/CN.4/2001/94, 26 January 2001, para. 14).

[688] Johannesburg Principles, supra note 662, Principle 19.

[689] Johannesburg Principles, supra note 662, Principle 19.

[690] Declaration of Principles on Freedom of Expression, supra note 641, Principle 3.

[691] “Sensitive information” is understood as anything having to do with the private life of the person.

[692] See Pierini et al., supra note 675, at 16.

[693] See 2001 Special Rapporteur Report, supra note 674, at 75.

[694] See, e.g., I/A Court of H.R., Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), Judgment of March 14, 2001, Series C Nº 75.

[695] Id., para. 45.

[696] See Victor Abramovich and Christian Courtis, El acceso a la información como derecho, 10 Cuadernos de Análisis Jurídico, 197, 206 (Escuela de Derecho, Universidad Diego Portales, Santiago, Chile 2000).

[697] See discussion supra para. 286.

[698] See Miguel Angel Ekmekdjian, Derecho a la Información: Reforma Constitucional y Libertad de Expresión, Nuevos Aspectos, Ediciones Depalma, Buenos Aires (1996) p.114.

[699] Advisory Opinion OC-5-85, supra note 152, para 34.

[700] Advisory Opinion OC-5-85, supra note 152, para. 34.

[701] Advisory Opinion OC-5-85, supra note 152, para. 34.

[702] I/A Court H.R., Ivcher Bronstein Case, Judgment of February 6, 2001, Series C
Nº 74, paras. 147-150. In the case of Ivcher Bronstein, the Court indicated that “the resolution that annulled Mr. Ivcher’s nationality constituted an indirect means of restricting his freedom of expression, as well as that of the journalists who worked and conducted investigations for Contrapunto of Peruvian television’s Channel 2.” Id., para. 162. Additionally, the Court concluded that “[b]y separating Mr. Ivcher from the control of Channel 2 and excluding the Contrapunto journalists, the State not only restricted their right to circulate news, ideas and opinions, but also affected the right of all Peruvians to receive information, thus limiting their freedom to exercise political options and develop fully in a democratic society.” Id., para. 163.

[703] Declaration of Principles on Freedom of Expression, supra note 641, Principle 9.

[704] See Case 11.739, Report No 50/99, Hector Felix Miranda (Mexico), Annual Report of the IACHR 1998.

[705] Velásquez Rodríguez Case, supra note 249, para. 177.

[706] See Miranda, supra note 704, para. 52.

[707] See supra, Part II(C), para. 65.

[708] See Additional Protocol I, supra note 68, Article 79; Additional Protocol II, supra note 36, Article 13. See also supra Part II(C), para. 65 dealing with the principles of distinction and proportionality; Tadić AC Decision Jurisdiction, supra note 163, paras. 117-119. See also Gasser, H.-P., "The protection of journalists engaged in dangerous professional missions: Law applicable in periods of armed conflict" in International Review of the Red Cross, Nº 232, 1983, p. 3-21, cited in Marco Sassoli and Antoine A. Bouvier, supra nota 162, at 427. "[T]he instruments of international humanitarian law make no statements on the justification or legality of journalistic activities in times of war. […] In other words, humanitarian law does not protect the journalists [sic] function but protects men engaged in this activity." Id. p. 427.

[709] Additional Protocol I, supra note 68, Article 79(2).

[710] Third Geneva Convention, supra note 67, Article 4(A)(4).

[711] See Gasser, supra note 708, at 429.

[712] Article 3 common to the Geneva Conventions, supra notes 36, 67; Additional Protocol II, supra note 36, Article 13.

[713] See Gasser, supra note 708, at 427. See also Article 4 and Article 13 Additional Protocol II, supra note 36.

[714] IACHR Report on Colombia (1999), supra note 110, at 87, Ch. IV, Section C(2)(d).

[715] See Gasser, supra note 708, at 428.

[716] See supra, Part II(C), supra para. 65 discussing the principle of distinction. See also Additional Protocol I, supra note 68, Articles 51, 52; Additional Protocol II, supra note 36, Article 13. See also Tadić AC Decision Jurisdiction, supra note 163, paras. 117-119.

[717] See Additional Protocol I, supra note 68, Articles 52-56, 85(3); Additional Protocol II, supra note 36, Article 13. See also supra Part II(C), para. 65 concerning the principles of necessity, humanity, distinction and proportionality.

[718] Additional Protocol I, supra note 68, Article 48. See also supra Part II(C), para. 65 dealing with the principles of distinction and proportionality; Tadić AC Decision Jurisdiction, supra note 163, paras. 117-119.

[719] Additional Protocol I, supra note 68, Article 52(2). See also Additional Protocol II, supra note 36, Article 13.

[720] Additional Protocol I, supra note 68, Article 52(3). See also Additional Protocol II, supra note 36, Article 13.

[721] Additional Protocol I, supra note 68, Article 52(3).

[722] Additional Protocol I, supra note 68, Article 32.

[723] Third Geneva Convention, supra note 67, Article 122.

[724] Third Geneva Convention, supra note 67, Article 123.

[725] Third Geneva Convention, supra note 67, Article 120.

[726] See Fourth Geneva Convention, supra note 36, Article 136 (requiring the establishment of an Information Bureau); Article 140 (requiring the establishment of a Central Information Agency); Articles 129-131 and 136-141 (setting forth the types of information that must be recorded, particularly in the case of the death of an internee, and the methods of transmission to the Protecting Power or home country of the internee).

[727] Additional Protocol I, supra note 68, Article 33(1), (3).

[728] Additional Protocol I, supra note 68, Article 33(2).

[729] Additional Protocol I, supra note 68, Article 33(4).

[730] Additional Protocol I, supra note 68, Article 90.

[731] Third Geneva Convention, supra note 67, Article 70.

[732] Third Geneva Convention, supra note 67, Article 71.

[733] Third Geneva Convention, supra note 67, Article 71. See also Additional Protocol II, supra note 36, Article 5(2)(b).

[734] Third Geneva Convention, supra note 67, Articles 71, 76.

[735] Third Geneva Convention, supra note 67, Article 71.

[736] Fourth Geneva Convention, supra note 36, Article 106 (providing the right to send an "internment card"); Article 107 (providing for the right to send letters or cards).

[737] Fourth Geneva Convention, supra note 36, Article 25

[738] Fourth Geneva Convention, supra note 36, Article 26.

[739] See Fourth Geneva Convention, supra note 36, Article 5 (providing that “[w]here in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activities hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.”).

[740] Third Geneva Convention, supra note 67, Article 72.

[741] Fourth Geneva Convention, supra note 36, Article 108.

[742] Third Geneva Convention, supra note 67, Article 78.

[743] Third Geneva Convention, supra note 67, Article 78.

[744] Third Geneva Convention, supra note 67, Article 78.

[745] Third Geneva Convention, supra note 67, Article 79.

[746] Third Geneva Convention, supra note 67, Article 78.

[747] Fourth Geneva Convention, supra note 36, Article 101.

[748] Fourth Geneva Convention, supra note 36, Article 102.

[749] See discussion, supra paras. 274-278, relating to the requirements imposed by Article 13(2) of the American Convention in order to impose subsequent liability for speech.

[794] Declaration of Principles on Freedom of Expression, supra note 641, Principle 2. For a discussion of the authoritative status of this Declaration, see supra para. 265.

[795] Philip B. Heymann, Civil Liberties and Human Rights in the Aftermath of September 11, 2002, Harv. J.L. & Pub. Pol'y 441, 444.

[796] Vienna Convention on the Law of Treaties, supra note 109, Article 26.

[797] Velásquez Rodríguez Case, supra note 249, para. 167.

[798] See supra Part III(B), para. 140.

[799] See supra Part III(D), para. 229.

[800] I/A Court H.R., Castillo Páez Case, Judgment of November 3, 1997, Ser. C No. 34, para. 82. See also I/A Court H.R., Mayagna (Sumo) Awas Tingni Community Case, August 31, 2001, Ser. C Nº 79, para. 112, citing Ivcher Bronstein Case, supra note 702, para. 135; Constitutional Court Case, supra note 545, para. 90, Bámaca Velásquez Case, supra note 73, para. 191.

[801] The Inter-American Court has stated that ”[a]lthough Articles 24 and 1(1) are conceptually not identical–the Court may perhaps have occasion at some future date to articulate the differences–Article 24 restates to a certain degree the principle established in Article 1(1). In recognizing equality before the law, it prohibits all discriminatory treatment originating in a legal prescription. The prohibition against discrimination so broadly proclaimed in Article 1(1) with regard to the rights and guarantees enumerated in the Convention thus extends to the domestic law of the States Parties, permitting the conclusion that in these provisions the States Parties, by acceding to the Convention, have undertaken to maintain their laws free from discriminatory regulations.” I/A Court H.R., Advisory Opinion OC-4/84, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, January 19, 1984, Series A Nº 4, para. 54.

[802] Id. See also Ferrer-Mazorra et al. Case, supra note 114, para. 238.

[803] UN Human Rights Committee, General Comment Nº 18 (Non-Discrimination), Thirty-seventh session (1989), UN Doc. HRI/GEN/1/Rev.5 [hereinafter UNHRC General Comment Nº 18], para. 7.

[804] Advisory Opinion OC-4/84, supra note 801, para. 56. See also Ferrer-Mazorra et al. Case, supra note 114, para. 238.

[805] Numerous pertinent domestic and international courts have subjected governments to an enhanced burden to justify distinctions or classifications that are based upon such grounds as nationality, race, color or gender. See, e.g., Repetto, Inés, Supreme Court of Justice (Argentina), November 8, 1988, Judges Petracchi and Bacqué, para. 6 (finding that every distinction between nationals and foreigners, with respect to the enjoyment of rights recognized in the [Argentine] Constitution, “is affected by a presumption of unconstitutionality”, and therefore whoever sustains the legitimacy of the distinction “should prove the existence of an urgent State interest in order to justify [the distinction] and it is not sufficient merely to argue that the measure is ‘reasonable.’”); Palmore v. Sidoti, 4666 US 429 (1984) (holding that racial classifications “are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be necessary […] to the accomplishment of their legitimate purposes.”); Loving v. Virginia, 388 US 1, 87 (1967) (concluding that “at the very least” the Equal Protection Clause of the US Constitution “demands that racial classifications, especially suspect in criminal statutes, be subjected to the most rigorous scrutiny.”); Eur. Court H.R., Abdulaziz v. United Kingdom, Judgment of 28 May 1985, Ser. A Nº 94, para. 79 (stating that “the advancement of the equality of the sexes is today a major goal in the Member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the [European] Convention.)". Constitutional scholars have expressed similar views. See, e.g., Constitutional Law 142 (D. Farber, W. Esckridge & P. Frickey eds., 1998).]

[806] See e.g IACHR Report on the Status of Women in the Americas 1998, OEA/Ser.L/V/II.100 Doc. 17 (13 October 1998), Part I(A)(1); Annual Report of the IACHR 1999, OEA/Ser.L/V/II.106 doc. 6 rev. (April 13, 1999), Ch. VI “Considerations Regarding the Compatibility of Affirmative Action Measures Designed to Promote the Political Participation of Women with the Principles of Equality and Non-discrimination"; UNHRC General Comment Nº 18, supra note 803, para. 10.

[807] Velásquez Rodríguez Case, supra note 249, para. 167.

[808] Id. See also Advisory Opinion OC-11/90, supra note 545, para. 23.

[809] Velásquez Rodríguez Case, supra note 249, paras. 172-174.

[810] I/A Court H.R., Velásquez Rodríguez Case, Judgment on Preliminary Objections, June 26, 1987, Ser. C Nº 1, para. 90.

[811] See, e.g., Desmond McKenzie Case, supra note 272, paras. 311-314.

[812] American Declaration, supra note 63, Article II; American Convention on Human Rights, supra note 61, Article 1(1). See similarly International Convention on the Elimination of all Forms of Racial Discrimination, supra note 123.

[813] Advisory Opinion OC-9/87, supra note 342, para. 25. See also American Convention on Human Rights, supra note 61, Article 27(2).

[814] Article 1 common to the Four Geneva Conventions of 1949, supra notes 36, 67. See similarly Additional Protocol I, supra note 68, Article 1(1).

[815] ICRC Commentary on the Third Geneva Convention, supra note 350, at 17-18.

[816] Third Geneva Convention, supra note 67, Article 14; Fourth Geneva Convention, supra note 36, Article 80.

[817] See supra Part III(D), paras. 254 and following.

[818] See, e.g., Part II(C), para. 78.

[819] See supra Part II(C), para. 61.

[820] See, e.g., Committee on the Elimination of Racial Discrimination, Reports Submitted by States Parties under Article 9 of the International Convention on the Elimination of all Forms of Racial Discrimination, Third Periodic reports of States parties due in 1999, Addendum, United States of America, UN Doc. CERD/C/351/Add.1 (10 October 2000), paras. 301-306 (on the use of “racial profiling” by law enforcement agencies in the United States).

[821] Id. See also Amnesty International, Memorandum to the US Attorney General – Amnesty International’s concerns relating to the post 11 September investigations, AI Index AMR 51/170/2001 (November 2001), at 12-13.

[822] The UN Committee on the Elimination of Racial Discrimination has demanded in this respect that “States and international organizations ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin” and has insisted that “the principle of non-discrimination must be observed in all areas, in particular in matters concerning liberty, security and dignity of the person, equality before tribunals and due process of law, as well as international cooperation in judicial and police matters in these fields”). UN Committee on the Elimination of Racial Discrimination, Sixtieth session, M4-22 March 2002, Statement, UN Doc. CERD/C/60/Misc.22/Rev.6 (8 March 2002).

[823] See supra note 366.

[824] See supra Part III(B), para. 139.

[825] As noted in Part III(D) concerning the right to due process, while the use of military tribunals to try civilians is generally prohibited due in part to their lack of independence from the Executive, military courts can in principle constitute an independent and impartial tribunal for the purposes of trying members of the military for certain crimes truly related to military service and, during armed conflicts, the trial of privileged and unprivileged combatants, provided that they do so with full respect for judicial guarantees.

[826] See supra Part III(D), para. 261.

[827] See supra Part III(D), para. 261.

[828] For a discussion of the major types of terrorist movements and their strategies and tactics, see Paul Wilkinson, Terrorist Movements, in Terrorism: Theory and Practice 99 (Yonah Alexander et al. eds., 1979).

[829] For general discussions of the nature and development of modern terrorism by sub-state groups, see Russell, supra note 16; Reisman 1999, supra note 37, at 50.

[830] American Declaration, supra note 63, Article XXI (“Every person has the right to assemble peaceably with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature”); American Convention on Human Rights, supra note 61, Article 15 (“The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others”).

[831] American Declaration, supra note 63, Article XXII (“Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, labor union or other nature”); American Convention on Human Rights, supra note 61, Article 16 (”1. Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes. 2. The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others. 3. The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association, on members of the armed forces and the police”).

[832] American Declaration, supra note 63, Article III (“Every person has the right freely to profess a religious faith, and to manifest and practice it both in public and in private”); American Convention on Human Rights, supra note 61, Article 12 (”1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private. 2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs. 3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others. 4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions”).

[833] As noted in the section of the report addressing fair trial and due process guarantees, for example, the ability of states to prosecute and punish members of a group for alleged terrorist activity is limited by the general principle of criminal law by which individuals may only be tried on the basis of individual penal responsibility and may not be the subject of collective punishment. Accordingly, a person may not be punished based solely upon his or her membership in a group alleged to be engaged in terrorist acts, absent evidence establishing his or her individual responsibility for the crime or crimes in which a particular group is implicated. See supra notes 563-565 and accompanying text (individual penal responsibility), citing, inter alia, American Convention, Article 5(3) “Punishment shall not be extended to any person other than the criminal.”; UN Secretary General Report (1993), supra note 189, para. 51.

[834] See, e.g., Eur. Comm. H.R., Rassemblement Jurassien + Unité v. Switzerland, Case Nº 8191, October 10, 1979, D.R. 17, p. 93.

[835] See, e.g., Eur. Court H.R., Plattform “Ärzte für das Leben” v. Austria, June 21, 1988, Series A Nº 139, p. 12, para. 32.

[836] I/A Court H.R., Advisory Opinion OC-6/86, The Word “Laws” in Article 30 of the American Convention in Human Rights, May 9, 1986, Series A Nº 6, paras. 35, 37.

[837] Advisory Opinion OC-6/86, supra note 836, paras. 22, 27.

[838] American Declaration, supra note 63, Article XXVIII; American Convention on Human Rights, supra note 61, Article 30. See also I/A Court H.R., Baena Ricardo et al. Case (270 Workers v. Panama), February 2, 2001, Series C, Nº 61, p. 137, paras. 169-173.

[839] Advisory Opinion OC-8/87, supra note 147, para. 26.

[840] Olmedo Bustos et al. Case, supra note 649, para. 79.

[841] American Declaration, supra note 63, Article II; American Convention on Human Rights, supra note 61, Articles 1(1), 24, 27(1).

[842] See similarly Third Geneva Convention, supra note 67, Articles 34-37 (governing the religious activities of interned prisoners of war); Fourth Geneva Convention, supra note 36, Articles 27, 38, 93 (governing respect for the religious convictions and practices of protected persons, including internees, in the territories of parties to a conflict and in occupied territories).

[843] See, e.g., IACHR, Report on Argentina (1980), supra note 27, at 251-254 (criticizing legislative, law enforcement and other measures taken by the Government of Argentina against the activities of members of the Jehovah’s Witnesses religious sect).

[844] For a similar phenomenon arising from failures to investigate in the context of the right to freedom of expression, see Hector Felix Miranda Case, supra note 704.

[845] American Declaration, supra note 63, Article XXIII (“Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home”; Article V. “Every person has the right to protection of the law against abusive attacks upon his honor, his reputation, and his private and family life”, Article IX “Every person has the right to the inviolability of his home,” Article X (“Every person has the right to the inviolability and transmission of his correspondence”).

[846] American Convention on Human Rights, supra note 61, Article 21 (“1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 3. Usury and any other form of exploitation of man by man shall be prohibited by law”); Article 11 (“1. Everyone has the right to have his honor respected and his dignity recognized. 2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home or his correspondence, or of unlawful attacks on his honor or reputation. 3. Everyone has the right to the protection of the law against such interference or attacks”).

[847] Universal Declaration of Human Rights, supra note 65, Article 17 (“1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property.”); Article 12 (“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”); International Covenant on Civil and Political Rights, supra note 66, Article 17 (”1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”); Protocol Nº 1 to the European Convention on Human Rights, Article 1 (“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”).

[848] See, e.g., UNSC Resolution 1373, supra note 40, Preamble (recognizing the “need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism").

[849] Awas Tingni Case, supra note 800, at 675, para. 144, citing Ivcher Bronstein Case, supra note 702, para. 122. See similarly Handyside Case, supra note 649, at 29-30; Marckx Case, supra note 129, at 27-28.

[850] Awas Tingni Case, supra note 800, at 675, paras. 111-115.

[851] American Declaration, supra note 63, Article XXVIII. See also Advisory Opinion OC-5/85, supra note 152, para. 44.

[852] Awas Tingni Case, supra note 800, at 675, para. 143.

[853] See, e.g., Eur. Court H.R., Case of Raimondo v. Italy, February 22, 1994, Series A
Nº 281-A, at 17, para. 30.

[854] See, e.g., Additional Protocol I, supra note 68, Article 54; Additional Protocol II, supra note 36, Article 14.

[855] See, e.g., Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954 249 U.N.T.S. 240; Additional Protocol I, supra note 68, Article 53.

[856] For examples of measures that may arise out of anti-terrorist investigations, see Inter-American Convention Against Terrorism, supra note 8.

[857] See supra Part III(E) (freedom of expression and privacy of personal information). See also American Declaration, supra note 63, Article V (“Every person has the right to protection of the law against abusive attacks upon his honor, his reputation, and his private and family life”); Article IX (“Every person has the right to the inviolability of his home”); Article X (“Every person has the right to the inviolability and transmission of his correspondence”); American Convention on Human Rights, supra note 61, Article 11 (”1. Everyone has the right to have his honor respected and his dignity recognized. 2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home or his correspondence, or of unlawful attacks on his honor or reputation. 3. Everyone has the right to the protection of the law against such interference or attacks”).

[858] See, e.g., Eur. Court H.R., Case of Gaskin v. United Kingdom, July 7, 1989, Ser. A Nº 162, p. 20, para. 49.

[859] See American Declaration, supra note 63, Article V; American Convention on Human Rights, supra note 61, Article 11. See also Eur. Court H.R., Case of Klass and Others v. Germany, September 6, 1978, Ser. A Nº 28, paras. 50-60; Eur. Court H.R., Case of Malone v. United Kingdom, August 2, 1984, Ser. A Nº 82, pp. 31-33, paras. 66-68. It should be recalled, however, that in a legitimate state of emergency the rights to property and privacy may be the subject of derogations as discussed in Part II(A).

[860] American Declaration, supra note 63, Article XX (“Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free”).

[861] American Convention on Human Rights, supra note 61, Article 23 (“1. Every citizen shall enjoy the following rights and opportunities: a. to take part in the conduct of public affairs, directly or through freely chosen representatives; b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and c. to have access, under general conditions of equality, to the public service of his country. 2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings”).

[862] See, e.g., IACHR, Report on El Salvador (1978), supra note 27, Chapter IX; IACHR, Report on Paraguay (1987), supra note 139, Chapter VII.

[863] American Convention on Human Rights, supra note 61, Article 27(2).

[864] Advisory Opinion OC-8/87, supra note 147, para. 35. See similarly Advisory Opinion OC-6/86, supra note 836, para. 24; Advisory Opinion OC-9/87, supra note 342, para. 37; Advisory Opinion OC-8/87, supra note 147, paras. 20, 40.

[865] See supra, Part III(E), para. 325.

[866] See, e.g., Inter-American Convention Against Terrorism, supra note 8.

[867] For these reasons, as noted in Part I(C) above, this Chapter has been included as a variation to the rights-based approach otherwise followed in this report. See supra, Part I(C),
para. 28.

[868] See also supra, Part II(B), paras. 45. 46.

[869] Vienna Convention on Consular Relations, supra note 124.

[870] UN Convention on the Status of Refugees, supra note 120.

[871] UN Protocol on the Status of Refugees, supra note 121.

[872] International Convention on the Elimination of all Forms of Racial Discrimination, supra note 123.

[873] Ferrer-Mazorra et al. Case, supra note 114, para. 210.

[874] Ferrer-Mazorra et al. Case, supra note 114, para. 212. See similarly UNHRC, Communication Nº 560/1993, CCPR/C/59/D/560/1993, 30 April 1997, para. 9.4.

[875] Ferrer-Mazorra et al. Case, supra note 114, paras. 212–213, 219-221, 226, 228, 230.

[876] UN Convention on the Status of Refugees, supra note 120, Article 26 (“Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances”). See also Ferrer-Mazorra et al. Case, supra note 114,
para. 212.

[877] Vienna Convention on Consular Relations, supra note 124, Article 36.

[878] LaGrand Case, supra note 348, para. 74.

[879] See Advisory Opinion OC-16/99, supra note 129, paras. 56, 57. Other international authorities have similarly recognized the importance of facilitating consular assistance for the protection of foreign nationals under any form of arrest, detention or imprisonment. See UN Body of Principles on Detention or Imprisonment, supra note 335, Principle 16(2) (providing that “[i]f a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization”); ICTY Rules of Detention, supra note 349, Rule 65; Declaration on the human rights of individuals who are not nationals of the country in which they live, supra note 349, Article 10.

[880] See, e.g., Third Geneva Convention, supra note 67, Articles 122, 123.

[881] UN Convention on the Status of Refugees, supra note 120.

[882] For OAS member states that are parties to the 1951 Refugee Convention and its 1967 Protocol, see Annex II.

[883] UN Protocol on the Status of Refugees, supra note 121.

[884] Haitian Interdiction Case, supra note 546.

[885] See IACHR, Report on Canada (2000), supra note 338, paras. 21 and following, referring to Office of the UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (reedited, Geneva, 1992), at 4-5.

[886] IACHR, Report on Canada (2000), supra note 338, para 22.

[887] IACHR, Report on Canada (2000), supra note 338, para. 24.

[888] IACHR, Report on Canada (2000), supra note 338, para. 23.

[889] IACHR, Report on Canada (2000), supra note 338, para. 24. See also Haitian Interdiction Case, supra note 546, paras. 154-155.

[890] IACHR, Report on Canada (2000), supra note 338, para. 23.

[891] As noted previously, certain international anti-terrorism instruments explicitly stipulate that terrorist crimes as defined under those instruments are not to be regarded as political or related common offenses for the purposes of extradition. See supra, para. 115.

[892] UN Convention on the Status of Refugees, supra note 120, Article 33(2).

[893] American Convention on Human Rights, supra note 61, Article 22(8); UN Torture Convention, supra note 376, Article 3.

[894] UN Torture Convention, supra note 376. See also Inter-American Torture Convention, supra note 105, Article 13 (“Extradition shall not be granted nor shall the person sought be returned when there are grounds to believe that his life is in danger, that he will be subjected to torture or to cruel, inhuman or degrading treatment, or that he will be tried by special or ad hoc courts in the requesting State”).

[895] American Convention on Human Rights, supra note 61, Article 22(8) (“In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinion”).

[896] IACHR, Report on Canada (2000), supra note 338, para. 25.

[897] IACHR, Report on Canada (2000), supra note 338, para. 70.

[898] In the Haitian Interdiction Case, the Commission found that the United States Government's act of interdicting Haitians on the high seas, placing them in vessels under their jurisdiction, returning them to Haiti, and leaving them exposed to acts of brutality by the Haitian military and its supporters constituted a breach of the right to security of some of the Haitian refugees. Haitian Interdiction Case, supra note 546, para. 171.

[899] IACHR, Report on Canada (2000), supra note 338, para. 154. In reaching these conclusions, the Inter-American Commission shared the view of the European Court of Human Rights in the case Chahal v. United Kingdom. In that case, the European Court specified that while States necessarily face "immense difficulties" in protecting the public from terrorism, even under those circumstances the prohibition against returning a person to torture remains absolute, "irrespective of the victim’s conduct." The Court also considered this prohibition to be equally applicable in expulsion cases. Eur. Court H.R, Chahal v. United Kingdom, 15 November 1996, 1996-V Nº 22 (1996), at 1831.

[900] Second Progress Report of the Special Rapporteurship on Migrant Workers and Their Families in the Hemisphere, Annual Report of the IACHR 2000, para. 110 [hereinafter Report of the Special Rapporteurhip on Migrant Workers (2000)].

[901] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 117.

[902] See Part III(C) (Right to Humane Treatment), paras. 167-168.

[903] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335.

[904] UN Basic Principles for the Treatment of Prisoners, United Nations, Economic and Social Council Resolution 663 C (XXIV) 1957; General Assembly Resolution 45/111, 1990.

[905] United Nations, General Assembly Res. 43/173, annex, UN GAOR Supp. (Nº 49) at 298, UN Doc. A/43/49 (1988).

[906] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 110.

[907] As indicated in Part III(D) above, compliance with the requirements of the right to due process and to a fair trial is not limited to criminal proceedings, but rather also applies, mutatis mutandi, to non-criminal proceedings for the determination of a person’s rights and obligations of a civil, labor, fiscal or any other nature. See Constitutional Court Case, supra note 545, paras. 69, 70.

[908] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 90.

[909] Advisory Opinion OC-16/99, supra note 129, paras. 117, 118, citing Advisory Opinion OC-8/87, supra note 147, para. 25.

[910] Advisory Opinion OC-16/99, supra note 129, paras. 119.

[911] Advisory Opinion OC-16/99, supra note 129, para. 124. See also supra para 95, Part III(A) (Right to Life).

[912] See Advisory Opinion OC-16/99, supra note 129, paras. 86, 87, 120. See also UN Body of Principles on Detention or Imprisonment, supra note 335, Principle 16(2) (providing that “[i]f a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization”); ICTY Rules of Detention, supra note 349, Rule 65; Declaration on the human rights of individuals who are not nationals of the country in which they live, supra note 349, Article 10.

[913] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 99.

[914] SReport of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 95, citing European Commission on Human Rights, Hortolemei v. Austria, April 1998, p. 38.

[915] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 97, citing, inter alia, American Convention on Human Rights, supra note 61, Article 22(6).

[916] Loren Laroye Riebe Star and others Case, supra note 546, paras. 70, 71. See also American Convention on Human Rights, supra note 61, Article 22(6) (“An alien lawfully in the territory of a State Party to this Convention may be expelled from it only pursuant to a decision reached in accordance with law.”); International Covenant on Civil and Political Rights, supra note 66, Article 13 (“An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority”).

[917] See, e.g., American Convention on Human Rights, supra note 61, Article 8(1); American Declaration, supra note 63, Article XVIII. See also supra, Part III(D), para. 228-233.

[918] American Convention on Human Rights, supra note 61, Article 22(9).

[919] See Annual Report of the IACHR 1991 supra note 448, Ch. V, Situation of Haitians in the Dominican Republic.

[920] American Declaration, supra note 63, Article XXVII (“Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements”).

[921] American Convention on Human Rights, supra note 61, Article 22(7) (“Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes”).

[922] UN Convention on the Status of Refugees, supra note 120.

[923] UN Protocol on the Status of Refugees, supra note 121.

[924] IACHR, Report on Canada (2000), supra note 338, para. 24; Haitian Interdiction Case, supra note 546, para. 155.

[925] Ferrer-Mazorra et al. Case, supra note 114, paras. 213-231.

[926] See, e.g., UNSC Resolution 1373, supra note 40; Inter-American Convention Against Terrorism, supra note 8.

[927] See, e.g., UN Convention on the Status of Refugees, supra note 120, Article 1F.

[928] UN Convention on the Status of Refugees, supra note 120, Article 33 (“1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country”).

[929] UN Torture Convention, supra note 376, Article 3(1) (“No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”).

[930] Inter-American Torture Convention, supra note 105, Article 13 (“Extradition shall not be granted nor shall the person sought be returned when there are grounds to believe that his life is in danger, that he will be subjected to torture or to cruel, inhuman or degrading treatment, or that he will be tried by special or ad hoc courts in the requesting State”).

[931] American Convention on Human Rights, supra note 61, Article 22(8) (“In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions”).

[932] American Convention on Human Rights, supra note 61, Articles 1(1), 27.

[933] Office of the United Nations High Commissioner for Refugees, Addressing Security Concerns without Undermining Refugee Protection (November 2001), para. 28 (on file with Inter-American Commission on Human Rights).

[934] It is pertinent to note in this respect that the Commission has previously granted precautionary measures to protect persons from potentially discriminatory treatment by state authorities. In accordance with Article 25 of the Commission’s Rules of Procedure, precautionary measures may be adopted by the Commission in order to prevent “irreparable harm to persons.” On August 27, 1999, for example the Commission granted precautionary measures in favor of two minors in the Dominican Republic, Dilcia Yean and Violeta Bosica. According to the information before the Commission, they had been denied Dominican nationality, despite having been born in the territory of the Dominican Republic and despite the fact that the Constitution establishes the principle of ius soli. By denying them this right, they were exposed to the imminent threat of arbitrary expulsion from their country of birth. On this basis, the Commission requested that the State adopt the measures necessary to prevent their expulsion from the territory of the Dominican Republic, and to prevent Violeta Bosica from being deprived of her right to attend school and to receive the education provided to other children of Dominican nationality. See Annual Report of the IACHR 1999 OEA/Ser./V/II.106, 13 April 2000, Ch. III, para. 27.

[935] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 99.

 

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