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What is Terrorism?
Report on Terrorism & Human Rights
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| 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.
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| 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. 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. 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. 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.
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. 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. 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.
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.
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.
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. 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.
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| 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]
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.
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. 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.
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] 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:
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
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. 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. 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] 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. 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.
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| 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] 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]
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]
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. 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]
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| 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. 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:
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:
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] 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:
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.
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| 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. 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:
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
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| B. Right to Personal Liberty and Security 1. International Human Rights Law
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]
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. 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; 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]
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| 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:
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:
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:
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
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:
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:
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:
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:
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]
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
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;
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 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 Article 32 Article 37 [dealing with non-nationals in the territory of a party to the conflict] 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; (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] 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.
197. Likewise, Article 27 of the Fourth Geneva Convention provides:
Article 76. Protection of 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.
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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: 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 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. 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 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.
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| 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:
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 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]
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.
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| 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. 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] 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: 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] 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 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.
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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] 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.
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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:
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, 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]
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| 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.
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| 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.
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| ANNEX III AG/RES. 1840 (XXXII-O/02) INTER-AMERICAN CONVENTION AGAINST TERRORISM 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.
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 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 1. For the purposes of this Convention, “offenses” means the offenses established in the international instruments listed below:
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 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:
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 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. 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 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 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 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 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:
2. For the purposes of this article:
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 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 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 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 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 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. 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 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 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 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 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 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 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 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.
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| ANNEX IV
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 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.
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| Footnotes [1] See IACHR, Ten Years of Activities 1971-1981 (General Secretariat, OAS: 1982), [74] Ten Years of Activities, supra note 1, at 339; Asencios Lindo et al. Case, supra note 6, para. 58. [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]. [237] American Declaration, supra note 63. [300] Neira Alegría Case, supra note 6. See also IACHR Report on Colombia (1999), supra note 110, at 73, para. 8. [350] In the regime of international humanitarian law, internment must be distinguished from detention. As explained by the International Committee of the Red Cross: [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). [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]. [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. [615] See, e.g., Advisory Opinion OC-8/87, supra note 147, paras. 21-27. [639] American Declaration, supra note 63. [699] Advisory Opinion OC-5-85, supra note 152, para 34. [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. [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). [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. [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”). [881] UN Convention on the Status of Refugees, supra note 120.
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