Jump to Content Jump to Main Navigation
Counter-Terrorism - International Law and Practice edited by Salinas de Frías, Ana María; Samuel, Katja; White, Nigel D

Part IV Judicial Responses, 30 The Role and Legal Framework of the Inter-American Commission on Human Rights in Securing Justice for Victims

Christina M Cerna

From: Counter-Terrorism: International Law and Practice

Edited By: Ana María Salinas de Frías, Katja Samuel, Nigel D White

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 28 February 2020

Subject(s):
Terrorism — International criminal law, victims — Freedom of expression — Right to privacy

(p. 811) 30  The Role and Legal Framework of the Inter-American Commission on Human Rights in Securing Justice for Victims

1.  Introduction

As is documented and examined in detail in the current collection, the rule of law challenges posed by terrorism and counter-terrorism are as numerous as they are diverse. In responding to them, international organizations and institutions have pivotal roles to play, not least in the interpretation and development of key legal principles, and in securing justice for the victims of rule of law violations which occur under the auspices of national security imperatives. This includes the work of the Inter-American Commission on Human Rights (IACHR), whose normative role and legal framework on such issues are the focus of this chapter, illustrated by its work with respect to guaranteeing key democratic principles within the inter-American system.

2.  An Overview of the Inter-American System

The IACHR is a principal organ of the Organization of American States (OAS) according to Article 53 OAS Charter.1 The inter-American system was founded in 1890 and renamed the OAS in 1948, following the creation of the (p. 812) United Nations (UN). The IACHR was created in 1959 by a political resolution, and was ‘re-created’ on 18 July 1978 by the entry into force of the American Convention on Human Rights (ACHR),2 which also established the Inter-American Court of Human Rights (IACtHR). The ‘Statute’ of the IACHR was adopted by the OAS General Assembly in October 1979 and sets forth the nature, purposes, functions, and powers of the IACHR.3 Of special interest to the current discussion, the IACHR’s purpose is to promote the observance of human rights and to serve as a consultative organ of the OAS (Article 1). For the purposes of the ‘Statute’, human rights are defined as the rights set forth in the ACHR, in relation to the 24 States Parties thereto; and as the rights sets forth in the American Declaration of the Rights and Duties of Man (American Declaration)4 in relation to the 11 OAS Member States that are not (yet) parties to the ACHR.5

3.  The Role of the Iachr in Securing Justice for Victims

With respect to securing justice for victims in the context of counter-terrorism, the IACHR performs three principal functions which are of special relevance: (1) to process individual communications pursuant to the ACHR or the American Declaration, with the option of submitting cases under the ACHR to the IACtHR; (2) to conduct on-site observations in an OAS Member State, following the consent or invitation of the government; (3) to prepare such studies or reports as it considers advisable for the performance of its duties; each of which is considered in turn here. Additionally, it produces reports aimed at promoting an awareness of human rights among the peoples of the Americas, one of which is in the specific context of counter-terrorism issues.6

(p. 813) 3.1.  The Preparation of Studies and Reports

The IACHR receives, analyses, and investigates individual petitions in which violations of human rights are alleged to have been committed either by a Member State of the OAS that has ratified the ACHR,7 or by one that has not, pursuant to the American Declaration.8 In doing so, the IACHR adopts admissibility or inadmissibility reports, depending on whether the petition complies with the requisites for admissibility (see below). The IACHR then attempts a friendly settlement of the matter, but if that is not possible, it issues its report on the merits. If the respondent state does not comply with the recommendations in the IACHR’s report on the merits, then the IACHR, at the request of the petitioner, and conditional upon the state having recognized the compulsory jurisdiction of the IACtHR,9 may send the case to the IACtHR for litigation and adjudication.

The IACHR also observes the general situation of human rights in the Member States and publishes, when it deems appropriate (for example, if a state requests such a report, or the IACHR is concerned about human rights violations within a particular state), reports on the situation of human rights in a given Member State. The IACHR also carries out on-site visits to Member States in order to conduct an in-depth analysis of the general situation and/or to examine a specific situation denounced. In general, these visits result in a report on the human rights situation observed, which is published and presented to the OAS General Assembly or to one of the other political bodies of the OAS. The IACHR also publishes reports on thematic issues, such as measures that must be taken to ensure greater access to justice; the effects that internal armed conflicts have on certain vulnerable groups; persons deprived of liberty; human rights defenders; freedom of expression; citizen security and terrorism and how they relate to human rights, etc.10

3.2.  The Processing of Individual Communications

3.2.1.  Exhausting National Remedies

In order for a petition to be declared admissible, Article 46 ACHR requires that ‘the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law’. Similarly, pursuant to Article 52 IACHR Rules of Procedure, the procedure applicable to petitions concerning OAS Member States that are not parties to the ACHR and are subject to the American (p. 814) Declaration, also requires the exhaustion of domestic remedies.11 This requirement reflects a long established rule of customary international law and the subsidiary nature of the Convention mechanism. Its purpose is to give the domestic authorities the opportunity to remedy and redress the alleged violations of human rights, and it presumes that the domestic legal system provides an effective remedy for human rights violations.

Article 46(2) ACHR provides that domestic remedies need not be exhausted when: (1) the domestic legislation of the state concerned does not afford due process of law for protection of the right or rights that have allegedly been violated; (2) the party alleging violation of his or her rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or (3) there has been unwarranted delay in rendering a final judgment under the aforementioned remedies. When the petitioner contends that domestic remedies cannot be exhausted, the burden of proof then shifts to the state to demonstrate that they are available and effective and have not yet been exhausted.

3.2.2.  Bringing a Case to the IACHR

The IACHR’s Secretariat determines whether a petition is prima facie admissible. A petition must comply with the admissibility requirements set forth in Article 46 ACHR: (1) domestic remedies must have been exhausted; (2) the petition has to be lodged within a period of six months from the date on which the person alleging violation of his or her rights was notified of the judgment of the highest court; (3) the subject of the petition is not pending in another international proceeding; and (4) the petition complies with a number of formalities.

Approximately 1,500 petitions were filed before the IACHR in 2010. The number has increased steadily from approximately 400 petitions filed in 1997, 600 filed in 2000, 1,300 filed in 2006, to approximately 1,600 estimated to be filed in 2011. Historically, only 15 per cent of the petitions the IACHR receives meet the requirements of prima facie admissibility set forth above. On 1 August 2008, the IACHR established a ‘Registry’, a specialized unit within the Secretariat that is responsible for summarizing the incoming petitions. A group of senior lawyers then determines which petitions are prima facie admissible for transmission to the state for its response. The Registry has dealt with the backlog of petitions and is seeking to reduce the amount of time necessary to evaluate them. In 2002 approximately 900 petitions were evaluated, which increased considerably to 2,064 by 2009, one year after the Registry’s creation.12

(p. 815) 3.2.3.  From the IACHR to the IACtHR

Article 61 ACHR provides that only the IACHR, and those States Parties which have accepted the IACtHR’s compulsory jurisdiction, pursuant to Article 62(1), shall have the right to submit a case to the IACtHR. In order for a case to be submitted to the IACtHR13 it must first have been presented to and decided by the IACHR. In 2001, the IACHR amended its Rules of Procedure to require it to refer every case in which the IACHR considers that the state has not complied with the recommendation set forth in its merits report to the IACtHR, unless four Commissioners decide otherwise in a reasoned opinion.14

Although the victim does not have direct access to the IACtHR for the submission of a case, once one has been submitted either by the IACHR or a State Party, the victim is permitted to present autonomous (from the IACHR) pleadings, evidence, and requests for reparations. The victim is not limited to alleging violation of the same rights found to have been violated by the IACHR, but may allege the violation of additional rights, even if such allegations were rejected by the IACHR. The only requirement is that the violations alleged must be derived from the same facts that were presented to the IACHR in the original complaint.15

Although there was some discussion of providing the victim with direct access to the IACtHR in the past, it was considered premature for such a step to be taken and the discussion of this issue has been shelved.16

3.3.  The Conducting of On-Site Observations

Article 16 IACHR Statute provides that the IACHR ‘may move to and meet in the territory of any American State when it so decides by an absolute majority of votes, and with the consent, or at the invitation of the government concerned’. The IACHR, by dint of initiative, early on in its history was able to convert this authorization into the competence to conduct on-site investigations with the consent of the state concerned. Since 1961, the IACHR has conducted approximately 100 on-site visits.17

(p. 816) Such visits are, however, not without their own difficulties. It is also noteworthy to point out that a number of countries have refused consent for the IACHR to carry out an on-site visit, or else granted consent, but never agreed on a date for such a visit. Other states may grant consent, but then not comply with the requisites for such a visit, set forth in Chapter IV IACHR Rules of Procedure, concerning on-site observations. For example, under Article 57(e), ‘the members of the Special Commission shall have access to the jails and all other detention and interrogation sites and shall be able to interview in private those persons imprisoned or detained’, an issue which is especially topical in current counter-terrorism and rule of law discourse. Indeed, the IACHR’s Rapporteur for Persons Deprived of Liberty requested consent from the US to visit detainees being held in a detention centre in Guantánamo Bay, Cuba. Although the United States (US) granted consent for the visit, it indicated that the Rapporteur could not meet with detainees.18 Since this condition violated the IACHR’s standards, the visit was not carried out.

Despite such hurdles, the IACHR has been permitted to conduct a number of important visits to Member States on terrorism related issues, especially in situations of armed conflict characterized by an insurgent movement fighting against the State’s security forces, with such movements often being termed as ‘terrorist’ by the State concerned.19 States agree to permit the IACHR to carry out on-sites visit for a variety of reasons, usually having to do with peer pressure and self-image.

3.4.  Principal Challenges to the Current System

The current system of protecting the rule of law, not least within the context of counter-terrorism, is not without its difficulties. In particular, four principal challenges can be identified. The first is the failure to achieve universal acceptance of the system which can only be achieved when all OAS Member States become parties to all of the inter-American human rights instruments. Another is that de jure and de facto access to judicial guarantees and protections is necessary for reducing human rights violations; many sectors of society within individual OAS Member (p. 817) States are historically and presently discriminated against, in particular, women and those in extreme poverty. A third concerns current failures to comply with the decisions and recommendations of the system. It is essential that Member States act as guarantors of the system and adopt the legislative measures necessary to establish a legal mechanism that ensures enforcement at the domestic level of the decisions of supra-national bodies such as the IACHR. Finally, there has been a failure by the OAS to fund adequately the growing number of mandates imposed upon the organs of the system. For example, in 2009, the OAS General Assembly called upon the IACHR to devote special attention to human rights defenders, inter alia, and persons deprived of liberty, yet these new mandates were not accorded additional funds.20

4.  The Applicable Rule of Law Framework to Situations of Terrorism

4.1.  International Human Rights Law (IHRL)

All OAS Member States are bound by the human rights obligations incorporated in the OAS Charter. As previously noted, the IACHR’s human rights functions relate to those rights set forth in the ACHR and the American Declaration. Although the American Declaration is not a treaty, it has been interpreted as constituting a source of legal obligation for all OAS Member States, in particular, those states that have not ratified the ACHR.21

Those OAS Member States, who are parties to the ACHR, undertake to respect and ensure the rights and freedoms set forth in the Convention without any form of discrimination.22 There are also a number of other human rights treaties dealing with particular subject matter of relevance to counter-terrorism, which impose additional obligations upon those states that have accepted them, in particular: the Inter-American Convention to Prevent and Punish Torture (1985);23 Protocol to Abolish the Death Penalty (1990);24 and the Inter-American Convention on Forced Disappearance of Persons (1994).25

Furthermore, the actions of Member States are usually further constrained by their national constitutions which enshrine human rights protections; indeed, human (p. 818) rights instruments are generally considered to be on a par with the constitution or superior to the requirements of domestic law. Nor may a state invoke domestic law as an excuse for non-compliance with its international obligations.26 It is generally accepted today that IHRL applies at all times, during peace or war. A state’s human rights obligations are not dependent upon a person’s nationality or presence within a particular geographic area, but extend to all persons subject to the state’s authority and control.27

4.2.  International Humanitarian Law (IHL)

4.2.1.  Permissible Derogation in Time of War

Although the ACHR makes no specific reference to IHL, Article 27 permits states to derogate from certain of its provisions in ‘time of war, public danger or other emergency that threatens the independence or security of a State Party’, expressly contemplating the applicability of these human rights norms to situations of war or other emergency28 (emphasis added).

To the extent that terrorist or counter-terrorist actions may give rise to the use of force between governmental authorities and irregular armed groups, these situations may implicate the application of rules of IHL. Throughout its history, military governments have repeatedly asked the IACHR why it has failed to investigate terrorist acts, concerned itself exclusively with actions attributable to governments, and to what extent the IACHR takes terrorism and subversion into account when assessing the conduct of governments as regards human rights observance.

In 1980, the IACHR provided a detailed response to the above concerns raised by military governments, explaining that the OAS Member States only granted it competence to examine human rights violations committed by states.29

By the early 1990s, however, the political tide had turned and it was no longer acceptable for military governments in the Americas to perpetuate themselves in power. This hemispheric transition towards democracy was celebrated at the 1991 OAS General Assembly in Santiago, Chile,30 which commemorated the fact that (p. 819) the government of every Member State, except Cuba, was the result of a democratic election. Despite the trend towards democratization, however, the scourge of terrorism continued in a number of countries that were engaged in internal armed conflict.

Furthermore, in 1996, the International Court of Justice, in an advisory opinion, set forth guidelines as to the relationship between IHRL and IHL in a situation of armed conflict.31 It stated that the UN Human Rights Committee can only determine whether there is an arbitrary deprivation of life a situation of armed conflict ‘by reference to the law applicable in armed conflict (ie the lex specialis, IHL) and not deduced from the terms of the Covenant itself’.32

Consequently, in 1997, the IACHR began to apply IHL in situations of armed conflict. In such situations, the IACHR explained, it should first examine whether a killing by military forces is a violation of IHL and then determine whether the legality or illegality of the killing under IHL renders it an ‘arbitrary’ deprivation of the right to life under Article 4 ACHR. Since the analysis under IHL is a prerequisite for the IACHR’s determination of a possible violation of IHRL, the IACHR is required to determine whether a violation of IHL has occurred, namely through the application of IHL to the facts of the case. The failure to permit the IACHR to apply IHL would signify that the IACHR is not competent to determine whether there are human rights violations during a situation of armed conflict, since such an analysis requires the application of the relevant law, the lex specialis, which is IHL.

IHL protects the lives of civilians and combatants who have surrendered or who are placed hors de combat by injury, sickness, detention, or other cause, by prohibiting attacks on these categories of persons. It follows that IHL does not prohibit the targeting or killing of enemy combatants who have not laid down their arms or been placed hors de combat, such that the death of a combatant under these circumstances is not a violation of the right to life under IHRL. Failure to invoke IHL standards to distinguish between civilians and combatants is also a failure to respect the rule of law obligations of the state as a party to the Geneva Conventions.

4.2.2.  IACHR’s Application of IHRL and IHL to Colombia and Argentina

The most complete description by the IACHR of how and why IHL should be applied is set forth in the IACHR’s Third Report on Colombia (1999).33 The IACHR (p. 820) insisted on its doctrinal position, noting that it has no competence to investigate complaints against non-state actors for whom the state cannot be held internationally responsible. The IACHR noted, however, that for many years it had referenced atrocities committed by irregular armed groups and had condemned such acts. It also revealed that it had applied IHL, pursuant to the guidelines set forth in the International Court of Justice’s 1996 Nuclear Weapons Advisory Opinion, for the first time, in two individual cases involving internal armed conflict.34

The IACHR further maintained that its competence to apply or consult IHL was supported by the text of the ACHR, by its own case law, and by the jurisprudence of the IACtHR. In addition, the IACHR’s ability to resolve claimed violations of the right to life arising out of an armed conflict may not be possible in many cases by reference to IHRL alone. This is because the ACHR contains no rules that either define or distinguish civilians from combatants and other military targets or, much less, specify when a civilian can be lawfully attacked or when civilian casualties are a lawful consequence of military operations. Therefore, the IACHR argued that it must look to and apply definitional standards and relevant rules of IHL as sources of authoritative guidance in its resolution of this and other kinds of claims alleging violations of the ACHR in combat situations.35 In particular, where IHL and IHRL apply concurrently, the IACHR noted that Article 29(b) ACHR requires it to take due notice of and give legal effect to applicable IHL.36

4.2.3.  The IACtHR’s Decision in Las Palmeras, Declaring the IACHR Incompetent to Apply IHL

In the Las Palmeras case, as in several that preceded it, the IACHR found violations of both the ACHR and Common Article 3 to the Geneva Conventions 1949,37 and requested the IACtHR also to declare violations of IHL.38 The facts of this case (p. 821) involved a joint police and armed forces operation that resulted in the death of seven persons. The IACHR requested the IACtHR to declare that Colombia had violated the right to life set forth in Article 4 ACHR and Common Article 3 as regards these deaths.

Colombia had argued, as it had in previous cases before the IACHR, that neither the IACHR nor the IACtHR was competent to apply IHL or any treaty other than the ACHR.39 In response, the IACHR’s delegate cited the International Court of Justice’s Nuclear Weapons Advisory Opinion as legal authority for the IACHR’s competence to apply IHL.40

The IACtHR agreed with Colombia, not with the IACHR, and held that the ACHR ‘has only given the Court [ie IACtHR] competence to determine whether (p. 822) the acts or the norms of the States are compatible with the Convention itself, and not with the 1949 Geneva Conventions’,41 essentially on the basis that there is no provision within the ACHR or any other convention for the IACHR to apply IHL. Nevertheless, the IACtHR stated that ‘[t]he ACHR is an international treaty according to which States Parties are obliged to respect the rights and freedoms embodied in it and to guarantee their exercise to all persons subject to their jurisdiction. The Convention provides for the existence of the IACtHR to hear “all cases concerning the interpretation and application” of its provisions (Article 62.3).’ As regards the IACHR’s argument that the International Court of Justice’s Nuclear Weapons Advisory Opinion provides the legal basis for a human rights body to apply IHL and IHRL, the IACtHR completely ignored the Opinion, and the IACHR cannot appeal any IACtHR judgments.

Since IHL is the law applicable to situations of armed conflict, the IACtHR should have relied on the Nuclear Weapons Advisory Opinion to find both the IACHR and IACtHR obligated to apply IHL in cases of armed conflict. Instead the IACtHR decided that neither the IACHR nor the IACtHR is competent to apply IHL, but that they are competent to apply treaties other than the ACHR when those treaties expressly confer competence on them, such as the Inter-American Convention on Forced Disappearance of Persons.42

It is submitted that the reasoning of the IACtHR in Las Palmeras is not dispositive of the issue since the provisions of the Geneva Conventions do not authorize any supervisory body to monitor compliance with IHL. Following the IACtHR’s reasoning43 that the treaty text must expressly confer competence on the IACHR for it to apply IHL, this would render IHL unenforceable. IHL is part of general international law and Article 27 ACHR specifies that ‘in time of war’ a state may take measures derogating from its obligations under the ACHR ‘provided that such measures are not inconsistent with its other obligations under international law’, clearly contemplating the consideration of situations of armed conflict and the application of IHL, the appropriate body of international law.

4.2.4.  Implications of the Las Palmeras Judgment

Significant consequences followed the IACtHR’s judgment in the Las Palmeras case, especially upon the ability of the IACHR effectively to review rule of law violations occurring during armed conflict as it ceased to apply IHL. Nevertheless, the IACHR (p. 823) has continued to refer to it, in some cases, as a means of interpretation in order to determine whether there has been a violation of IHRL.44

In general, however, the IACHR, after Las Palmeras, has limited itself to applying a criminal justice paradigm in cases involving internal armed conflict. Its inability to characterize correctly the facts presented, and to apply the appropriate law, has on occasion led to a failure to ascribe accountability where it is due, to provide appropriate reparations, and, more generally, to develop this area of international law in the inter-American system. Furthermore, the Las Palmeras decision effectively means that both the IACHR and IACtHR ignore the application of the relevant lex specialis in such situations. The point is not that IHL only applies in situations of armed conflict—as some states, such as the US, have maintained—but rather that IHL and IHRL both apply, since IHRL never ceases to apply.

This inability to apply IHL is especially crucial in the context of counter-terrorism responses, many of which occur within military paradigms which may escalate to situations of armed conflict within the meaning of IHL, as has been increasingly the case post 9/11. Central to this failure to develop the law correctly in this area is the concomitant failure to grant access to the protections of the inter-American system to a certain class of victims. For example, detainees held by military forces of an OAS Member State outside the Americas—as at Guantánamo Bay—are denied access to the protections of the inter-American human rights system because allegedly only IHL applies in situations of armed conflict and the Member States did not expressly consent to the IACHR applying IHL. The reductio ad absurdum of this argument is that these detainees are relegated to a legal black hole, protected neither by IHL nor IHRL, and Member States ostensibly are permitted to commit violations outside their borders which they are not permitted to commit at home.

It is a general principle of international law that when states agree to submit a dispute to an international tribunal, they assume the obligation to comply with the decision of that tribunal.45 In addition, Article 94(1) UN Charter obliges a State, which is party to a case, to comply with a decision of the International Court of Justice. (p. 824) Furthermore, both the IACHR46 and IACtHR,47 when recommending the payment of reparations in cases where they declare violations of human rights, rely upon the principle that ‘every violation of an international obligation which results in harm creates a duty to make adequate reparation’.48 Following this line of reasoning, the IACtHR should have considered the Nuclear Weapons Advisory Opinion as guidance for its own decisions on the relationship between IHL and IHRL and the requirement that an international human rights body apply IHL, the lex specialis, to situations of armed conflict.49

The failure of the inter-American system to continue to apply IHL following the IACtHR’s decision in the Preliminary Objections in the Las Palmeras case has significantly reduced the efficacy of the inter-American system in the counter-terrorism context. The few OAS Member States that are engaged in armed conflict have ignored the IACHR’s findings of rule of law violations in the counter-terrorism context both within and outside the Americas region.

4.2.5.  Extra-Territorial Reach of Legal Framework

The Member States of the OAS, with very few exceptions, are not engaged in armed conflict in areas outside their territorial limits. The general rule is that if the respondent state had effective control of the extra-regional territory at the time a violation was committed, then the IACHR may find that state responsible for any violations committed outside its territory.50

(p. 825) For example, on 25 February 2002, the IACHR received a request for precautionary measures, pursuant to Article 25 IACHR Rules of Procedure, on behalf of approximately 300 individuals captured by the US authorities in Afghanistan and other places, who were detained by the US at its naval base at Guantánamo Bay, Cuba. These individuals, who had not been individually identified, were known collectively as the ‘Guantánamo detainees’. The petitioners requested precautionary measures ‘to protect the detainees’ rights to be treated as prisoners of war; and to be free from arbitrary, incommunicado, and prolonged detention, unlawful interrogations, and trials by military commissions in which they could be sentenced to death’.51 The IACHR granted the request and asked the US to ‘take the urgent measures necessary to have the legal status of the detainees at Guantánamo Bay determined by a competent tribunal’.52

The US challenged the IACHR’s exercise of jurisdiction, claiming, as it had in earlier cases, that the only law applicable to this petition was IHL and that the IACHR has no competence to apply IHL. The US maintained that it never consented to the IACHR applying IHL, nor customary IHL, and further, that the IACHR has no authority to request precautionary measures of non-States Parties to the ACHR. Notably, the US did not question the IACHR’s extra-territorial application of the American Declaration.

The IACHR justified its exercise of jurisdiction stating that where persons find themselves within the authority and control of a state and in a situation of armed conflict, their rights may be determined by reference to IHL and IHRL.53 However, one significant consequence of this US challenge to its decision-making processes is that despite this IACHR decision, and its previous extra-territorial decision in the ‘Brothers to the Rescue’ case involving Cuba,54 the IACHR has declined to admit subsequent petitions from victims of human rights violations under the authority and control of an OAS Member State when those violations occur in a territory outside the Americas, for example, in Iraq or Afghanistan.

(p. 826) 4.3.  Framework for the Protection of Certain Fundamental Democratic Rights

4.3.1.  The Inter-American Democratic Charter

The inter-American region has, for decades, been dominated by military dictatorships and characterized as undemocratic, with significant implications for the promotion of and adherence to significant rule of law norms. However, encouragingly, during the last two decades especially, the region has moved towards increased democratization. Indeed, by 1991, all OAS Member States governments were the product of elections, except for the case of Cuba.55

On 11 September 2001—the same day as the attack on the twin towers in New York City—a special session of the OAS General Assembly held in Lima, Peru, adopted the Inter-American Democratic Charter, which provides in Article 1 that ‘the peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it’. This trend towards democratization was the most important development in the hemisphere, spearheaded by a new group of political leaders, some of whom had been engaged in internal armed struggle against the military governments in their countries 30 or 40 years earlier. For example, these political leaders have sought to entrench democracy in the region, creating a sanction for the ‘interruption’ of the democratic process, intended to dissuade potential golpistas (or coupists).56

The inter-American system has reiterated that any pluralistic and democratic society requires equal political rights for those critical, as well as supportive, of particular governments; as well as the protection of those political rights and opportunities guaranteed under the ACHR in times of war or other emergency, as in times of peace. It is only through the protection of these rights that the effective protection of fundamental freedoms can be guaranteed by means of the rule of law, not least due to global trends towards the indivisible relationship between democratic and rule of law values and principles.57

It has been an irony of the inter-American system that the human rights documents that govern the system—such as the OAS Charter, the American Declaration, and the ACHR—were drafted for democratic states long before democracy became (p. 827) prevalent in the region from 1991 onwards, and societies based on the rule of law could only become a reality once judiciaries started to exercise independence from the executive branch. That said, the IACHR has been engaged in democratic issues, not least the violations of related rights and freedoms and their international standards of due process, for decades.58 In particular, it was not uncommon under military governments for entire populations to be disenfranchised and unable to exercise their right to vote or to participate in government for years at a time.59

That said, the violation of fundamental democratic rights has not been consigned to the past. This is illustrated by a more recent case in Venezuela in 2009, in which the IACHR noted that irregular administrative procedures had denied 260 potential candidates the opportunity to run for political office (in November 2008), and which has been referred to the IACtHR for judgment.60 Important tensions persist within the region with respect to upholding and protecting the democratic framework, with potential consequences for counter-terrorism responses.

In terms of the form that violations of the democratic framework in the region may take under the guise of counter-terrorism, the situation in Peru during the 1980s and early 1990s is especially illustrative because it experienced sustained terrorist threats from the Shining Path guerrillas (Sendero Luminoso) and Túpac Amaru Revolutionary Movement (MRTA). During this period, when approximately 70,000 persons were killed, a number of fundamental democratic principles—such as the separation of powers—were sacrificed during the state’s attempt to combat these threats. Significantly, in 1992, President Fujimori abolished the Peruvian Congress in order to govern by decree, and sent tanks to occupy the Palace of Justice and other judicial institutions, barring the entry thereto, in order to remove the judges from the Supreme Court and other inferior courts.61 The State also resorted to a range of other measures which similarly threatened or violated fundamental rule of law principles. One of the most significant was the use of military tribunals (p. 828) to try civilians for the crimes of ‘treason against the fatherland’ and ‘terrorism’.62 As the cases of Castillo Petruzzi et al and Lori Berenson illustrate, such tribunals violated a number of due process rights, such as denying adequate time to defence lawyers to prepare their defence, and passing draconian prison sentences premised on the flimsiest of evidence. Furthermore, many of these courts also functioned with what were termed ‘provisional’ judges who could be removed at the will of the executive.63

Although the region has undergone a process of democratization since this period, nevertheless the experiences of Peru, and more recent US practices, are illustrative of the temptations which remain to erode democratic rights and freedoms under the justification of counter-terrorism security imperative agendas, perceived or otherwise.

4.3.2.  Responding to Violations of Democratic Rights

This section considers some specific democratic rights and freedoms that are especially susceptible to violations in the context of security imperatives, including those of counter-terrorism.

4.3.2.1.  The Right to Freedom of Expression in a Counter-Terrorism Context

In terms of the legal framework, the right to freedom of expression (and thought) is protected in broad terms by Article IV American Declaration, and Article 13 ACHR. The right protects information and ideas, even those that ‘offend, surprise or annoy’.64 Furthermore, the IACHR’s Special Rapporteur for Freedom of Expression has developed a declaration of 13 principles on freedom of expression.65 Principle No 4 has particular relevance in the counter-terrorism context: ‘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.’

In a situation of war or other emergency, Article 27 ACHR permits derogation from the right of freedom of expression for the time and to the extent strictly required by the exigencies of the situation. The state, however, bears the burden of demonstrating that any derogation is not excessive. In situations short of war or other emergency, prior censorship may not be used to prevent the circulation of (p. 829) ideas and information. The dissemination of opinions or information, however, may be subject to laws that provide subsequent liability, provided that such laws are clear, unambiguous, and proportional.66

Additionally, without prejudice to the principle of blanket protection for freedom of expression, some kinds of speech are not protected by Article 13 ACHR, by virtue of the prohibitions set forth in IHRL (not least in Article 19(2) and (3) International Covenant on Civil and Political Rights 1966).67 One of particular relevance here is the prohibition against propaganda for war and advocacy of hatred that constitute incitement to lawless violence.68 Furthermore, other international law instruments place valid restrictions on the right, which should be reflected within inter-American practice, not least at the national level. Notably, UN Security Council Resolution 1624 calls upon UN Member States to prohibit by law ‘incitement to commit a terrorist act or acts’.69 A state may validly criminalize any form of expression that is capable of inciting terrorism, but it must respect international law and not restrict forms of expression that are merely unpopular or critical of the government. Any subsequent penalties must be proportionate to the type of harm they are designed to prevent.

With respect to the jurisprudence of the inter-American system, preserving two aspects of the right of freedom of expression have been of special concern: the right to express thoughts and ideas; and the right to receive them.70 Part of the underlying rationale for this has been that restrictions on this right through arbitrary interference affect the individual’s right to express information and ideas, and also the right of the community as a whole to receive them. Furthermore, it may impair the exercise of other democratic rights. For example, in one Peruvian case, the IACtHR noted that by removing the media owner and his journalists from the media that he owned, ‘the State not only restricted their right to circulate news, ideas and opinions, but also affected the right of all Peruvians to receive information, thus limiting their freedom to exercise political options and develop fully in a democratic society’.71 Similarly, in the cases Rios and others v Venezuela, and Perozo and others v Venezuela, the IACtHR noted that the state is responsible for guaranteeing the rights set forth in the ACHR, and that it must refrain from taking actions which intimidate the (p. 830) media, and increase the risks involved in the practice of journalism.72 Additionally, Article 13 encompasses key rights aimed at limiting the impunity of governmental actions, not least through controlling corruption in public administration and in furthering transparency in governmental affairs.

One group that has been especially vulnerable to the violation of fundamental rights is journalists. Article 13(3) ACHR provides that the right of expression may not be restricted by indirect methods or means, such as governmental control of newsprint, broadcasting frequencies, or equipment tending to impede the communication and circulation of ideas and opinions. However, in some countries the state has accused the press of defending ‘terrorists’, inciting persons to overthrow a democratically elected government (who are often no more than opposition politicians),73 or even of being terrorists. In retaliation, the state has responded in a number of ways, which have included revoking radio or TV licences, restricting the liberty of the journalists or the media owners, filing criminal charges to harass and intimidate them, taking control from the media owners, and in some cases even killing journalists or ensuring that they ‘disappear’.

Some cases are illustrative of these human rights violations against journalists. For example, in Guatemala, the IACHR argued in its petition to the IACtHR that ‘during the time of Nicholas Blake’s [a journalist] abduction, forced disappearance constituted a practice of the Guatemalan State carried out mainly by the State security forces … against any persons suspected of involvement in subversive activities’.74 Often charges of ‘subversive activities’ refer to no more than the efforts of journalists to make governments accountable for their actions.

Certainly, more generally, some inter-American governments have resisted increased transparency and accountability by alleging terrorism or some other form of security threat posed by journalists. This is illustrated by one Colombian case in which the IACHR granted precautionary measures. The petitioners alleged that the Colombian President had erroneously charged Hollman Morris, a journalist, with being complicit in terrorism on the grounds that some terrorists pretend to be journalists. However, it was the opinion of the OAS Special Rapporteur for Freedom of Expression that there was no evidence linking this journalist to terrorist activities.75

(p. 831) Freedom of expression violations have arisen also in cases involving ‘whistle-blowing’ or revealing information about significant human rights violations. Of particular interest here, the IACHR has dealt with a number of cases involving military officials in the context of counter-terrorism. Such officials have revealed the existence of death squads or other wrongdoing within the armed forces, or have simply done no more than ‘insult’ the armed forces. Death squads, comprising retired or off-duty members of the military, have been used, and continue to be used, in some countries to facilitate the state’s elimination of ‘terrorists’ and other political undesirables.

The IACHR has noted that whilst military proceedings for ‘undermining the Armed Forces or insulting a superior are appropriate terms when applied to the crimes for which they were created … they are totally inappropriate when used to cover up allegations of crimes within the Armed Forces’.76 Therefore, they may not be used to curb freedom of speech aimed at addressing governmental impunity for significant human rights violations. The case of Tomas Eduardo Cirio exemplifies the impunity of the military for acts constituting crimes against humanity against civilians in a counter-terrorism context.77 In that case, Cirio was ostracized and censured for internally criticizing his fellow officers who preferred to stand together, maintaining their silence on the crimes committed rather than purging their forces of rogue elements. This omertá resulted in complicity within the armed forces that belied their subsequent claims that they did not know what was going on within their ranks.

Freedom of expression and the absence of censorship is essential to encourage the reporting of significant human rights violations, not least as any complicity in breaking the law in a counter-terrorism context leads to a generalized state of impunity since it is a rare member of the military who is willing to break the code of silence and incriminate a fellow member of the security forces. The potential consequences of such impunity gaps are further illustrated by the current position in Argentina where, despite the lifting of its the amnesty laws, there is no complete accounting, on the part of the military, of the whereabouts of the thousands of ‘disappeared’ during Argentina’s dirty war 1976–1983. Similarly, other countries that have not yet lifted their amnesty laws—for example, Brazil and El Salvador—continue to protect, by law, those who committed war crimes and crimes against humanity against the civilian population in the name of counter-terrorism, despite the (p. 832) fact that these crimes occurred some 30 years ago and the perpetrators are dying off.

4.3.2.2.  The Right to Freedom of Association

The right to freedom of association is recognized as a significant civil as well as political right that protects against arbitrary interference on the part of the state when individuals choose to associate with others and, as such, is fundamental to the functioning of a democratic society. Article XXII American Declaration and Article 16 ACHR protect the right to freedom of association. The IACtHR has indicated that ‘Article 16(1) of the ACHR establishes that anyone who is subject to the jurisdiction of a State Party has the right to associate freely with other persons without intervention of the public authorities that restricts or obstructs the exercise of the said right’.78 Freedom of association includes the right to form associations without restrictions other than those permitted according to Article 16, and also the freedom of all persons not to be compelled or forced to join the association.79 In addition to the said negative obligations, the IACtHR has observed that freedom of association also ‘gives rise to positive obligations to prevent attacks against it, to protect those who exercise it, and to investigate violations of this freedom’.80

Furthermore, as with freedom of expression, the IACtHR has identified two strands inherent in the right of freedom of association which must be protected, namely an individual and a social dimension:

[T]he execution of a trade union leader … not only restricts the freedom of association of an individual, but also the right and freedom of a determined group to associate freely, without fear; consequently, the right protected by Article 16 has a special scope and nature, and this illustrates the two dimensions of freedom of association which must be guaranteed simultaneously.81

Similarly, the violation of this right, for example through intimidation by state authorities, may be accentuated and made more severe where such agents enjoy impunity.82

(p. 833) The IACtHR has stated that Article 16 ACHR also protects ‘the right to associate for political purposes, which is why a violation of the right to life or to personal integrity that can be attributed to the State may, in turn, give rise to a violation of Article 16(1) of the Convention, when it results from the victim’s legitimate exercise of the right to freedom of association’.83 The IACtHR has stated that:

In this regard, it should be emphasized that opposition voices are essential in a democratic society; … Hence, in a democratic society States must guarantee the effective participation of opposition individuals, groups and political parties by means of appropriate laws, regulations and practices that enable them to have real and effective access to the different deliberative mechanisms on equal terms, but also by the adoption of the required measures to guarantee its full exercise, taking into consideration the situation of vulnerability of the members of some social groups or sectors.84

Despite the democratic significance of the right to association, it can be vulnerable to erosion in a counter-terrorism context. In particular, individuals, in formal or informal associations, may be suspected of coordinating and perpetrating ‘terrorist’ activities against the state. Certainly, the increasing activity of non-state terrorist actors who are coordinated on a national and also international scale, as well as the growing links between such groups, has potential implications for the right to freedom of assembly and association.85 Arbitrary attacks on individuals, or arbitrary interference in their communications, affect not only the freedom of association of the individual, but also the individual’s right, and the liberty of the group, to associate freely and without fear.

That said, it is recognized that a tension exists between the legitimate needs of national governments to protect their territory and those residing within it from terrorist activities, and the protection of the right to associate. This is reflected within Article 16(2) ACHR which allows the right of association to be restricted ‘in the interest of national security’. Consequently, state law enforcement and security forces may lawfully conduct a range of activities which interfere with democratic rights, not least freedom of association and privacy (which is examined in the next section). For example, approved intelligence operations to combat crime and protect the constitutional order, and also to respond to terrorist threats, are legitimate when they constitute measures that are strictly necessary to safeguard democratic institutions and when adequate guarantees exist to prevent abuse.86

(p. 834) As such, even where the limitation of such rights is legitimate, positive obligations remain on the part of the state. This is further illustrated by a recent case87 in which the IACtHR considered it proven that Brazil had intercepted and recorded the telephone conversations of two organizations that defended the rights of rural workers, without respecting the law.88 The subsequent dissemination of the information, without judicial authorization, had the effect of damaging the worker associations. The same principles would apply in a counter-terrorism context. This is important, because on occasion states engage in the systematic surveillance of journalists and opposition politicians especially, and even subject them to various acts of harassment,89 including under the guise of anti-terrorism responses. Certainly, such activities may have a chilling effect on the exercise of the right of association, especially where they occur in a climate of impunity vis-à-vis the perpetrators of the attacks.90

One other significant manner in which freedom for association may be unduly restricted in a counter-terrorism context is through the proscription of specific terrorist organizations. Whilst this activity is legitimate in itself, nevertheless there is always the risk of over inclusiveness, especially where there is the provision of any financial or material support.91 Indeed, in one Peruvian case, a female physician was convicted of the crime of association with terrorists, and sentenced to 20 years’ imprisonment, for providing medical care to ‘terrorists’.92 Whilst the IACtHR found in favour of the petitioner on the grounds that the International Code of Medical Ethics of the World Medical Association—which affirms that medical activities cannot be prosecuted or be the object of reprisals because they are designed (p. 835) to save the lives of individuals93—this case illustrates how unduly prescriptive anti-terrorism measures may interfere with otherwise legitimate rights, and even professional duties.

4.3.2.3.  The Right to Privacy

Articles V, IX, and X American Declaration, and Article 11 ACHR, protect the right to privacy. States are required to ensure 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.

Interference with privacy may take a number of forms. One is the physical search of the person. As regards initiatives to combat terrorism, and in the interest of providing greater security to the population, the IACHR has stated that:

… bodily searches are part of the basic procedure that State law enforcement must perform to fulfil its institutional obligations. The life and physical integrity of third persons, the security personnel, and even the person being searched often depend upon whether a bodily search is properly executed. Nevertheless, the IACHR notes that the procedures for bodily searches must be regulated by law, and spell out the administrative and criminal liability that those members of the security forces who violate the laws on bodily searches will incur. Law enforcement personnel must be given specific and ongoing training in how these procedures are to be performed; the member states, for their part, must constantly update the equipment and technical resources available so that this type of search can be conducted in the least invasive manner possible.94

Another form is the physical search of property. On this, the IACHR has:

… expressly underscored the fact that the practice of household raids and searches ordered by administrative authorities is utterly incompatible with IHRL, since the rule in such cases is that the order must be issued by a competent judicial authority. In exceptional cases, ‘and in keeping with the provisions of … Article 11 of the ACHR, where a crime is suspected, the authorities may intrude into a place protected by the principle of the inviolability of the home, without a court order, only when a punishable offense is in the process of being committed or about to be committed. If neither of these circumstances obtains, the extrajudicial raid constitutes an arbitrary interference or intrusion prohibited in one of those instruments.95

It is clear from both forms of physical searches that they are permissible so long as they are consistent with the relevant legal principles, do not go beyond what is (p. 836) necessary, and are subject to safeguards, especially judicial scrutiny. This would be equally true of other forms of security responses, not least surveillance which may involve the interception of telecommunications. Additionally, the IACHR has affirmed the application of other key principles, not least those of non-discrimination and personal dignity when undertaking bodily searches:

… the domestic laws of the States must establish clear and routine procedures that will avoid any type of abuse or discriminatory treatment by the agents of the institution in charge of conducting such searches. Searches of articles that one carries on one’s person should ideally be done in private, taking the utmost care not to violate the person’s dignity, honour or privacy.96

With respect to physical searches of property, the IACHR has indicated further applicable principles:

[Regarding] the measures that member states may employ under international law to prevent and, where necessary, lawfully suppress criminal acts, forcible entry without a court order is only possible under the following circumstances: (1) To arrest an individual caught in flagrante (or caught and identified at the scene) who, while being pursued by law-enforcement authorities, took refuge in a home, either his own or someone else’s; (2) To stop the commission of a crime in progress in a place not open to the public. International law is not being violated, of course, when in certain exceptional cases, clearly spelled out in police rules and regulations, forcible entries are done without a court order when dictated by extreme necessity having nothing to do with criminal law or crime (for example, to put out a fire or to rescue people from flooded homes).97

These criteria must be clear and unambiguous in Member States’ domestic laws, so that law enforcement agencies have a well-defined framework of action that averts irregular procedures that result in violations of the right to privacy, specifically the right to the inviolability of the home.98 Only in this way may the principle of privacy be effectively guaranteed, and impunity for state authorities reduced or even eliminated, in the inter-American region not least in the context of counter-terrorist responses.

5.  Concluding Remarks and Recommendations

As Tom Farer has so aptly noted, ‘[c]ollision between the executors of a self-proclaimed counter-terror “war” and the norms embodied in human rights treaties and the humanitarian laws of war is inevitable, since the norms are, above all, restraints on the exercise of power’.99

(p. 837) Acts of terrorism may be perpetrated by non-state actors or state agents and instil terror in civilians, phenomena which have occurred for decades on the American continent. In response, on numerous occasions, the IACHR has condemned terrorism and stated that no cause or pretext may be invoked to justify such attacks on civilians. Terrorism represents not only a continuing serious threat to regional peace and security, but also to a number of significant regional and international rule of law principles.

The protection and enjoyment of these key rights—including freedom of expression, association, and privacy—are pillars of a democratic society, as well as the framework within which other rule of law principles function and are enforced. Consequently, a number of recommendations are made here.

  1. (1)  Democratic rights must be more effectively protected against arbitrary interference by the state, especially during times of polarization or political crisis, not least when responding to terrorist threats.

  2. (2)  Any direct or indirect governmental interference or coercion, intended to restrict the enjoyment of these rights on inter alia politically motivated rather than genuine security grounds—for example against human rights defenders or political opponents—should be prohibited by law.

  3. (3)  OAS Member States should incorporate the rights set forth in the ACHR into their domestic legislation. The national legislation of each OAS Member State should clearly provide for the perpetrators of rule of law violations, including of democratic rights, to be brought to account, including through the imposition of criminal sanctions. This is crucial to address any existing lacunae in domestic frameworks which afford impunity to state officials.

  4. (4)  The national legislation of each OAS Member State should provide for reparations for those victims whose fundamental democratic rights have been violated.

  5. (5)  OAS Member States should be invited to review the current legal framework in which the inter-American system for the protection of human rights functions, in particular with a view to facilitating the application of IHL in states that are in a situation of armed conflict. This is important due to the increasingly transnational nature of the regional and international threats posed by non-state actors, and the related rule of law violations which occur in response to such threats by governments employing military paradigms.

Footnotes:

Principal Specialist at the General Secretariat of the OAS Secretariat for the IACHR. The opinions expressed in this chapter are in the author’s personal capacity and are not to be attributed to the IACHR, the General Secretariat of the OAS, or to the OAS.

Charter of the Organization of American States (adopted 30 April 1948, entered into force 16 January 1952) (OAS Charter).

American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR).

Statute of the Inter-American Commission on Human Rights (approved by Resolution No 447 taken by the OAS General Assembly at its ninth regular session, La Paz, Bolivia, October 1979) (IACHR Statute).

American Declaration of the Rights and Duties of Man, OAS Res. XXX (2 May 1948), adopted by the Ninth International Conference of American States.

The 24 States Parties to the ACHR are: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela. The 11 countries that are not States Parties to the ACHR and to which the IACHR applies the American Declaration are: Antigua and Barbuda, Bahamas, Belize, Canada, Guyana, Saint Kitts &Nevis, Saint Lucia, Saint Vincent & the Grenadines, and the United States. Trinidad & Tobago acceded to the ACHR on 28 May 1991. On 26 May 1998, Trinidad & Tobago became the first (and only) country to notify its intention to denounce the ACHR, pursuant to art. 78(1) thereof. The denunciation came into effect one year after the date of notification.

This chapter is informed by and owes a great debt to the IACHR’s ‘Report on Terrorism and Human Rights’ (October 2002 〈http://www.cidh.oas.org/Terrorism/Eng/toc.htm〉 accessed 12 April 2011, and the contribution thereto of my untimely deceased colleague, Brian Tittemore.

OAS, ‘Rules of Procedure of the IACHR’ (2009) 26–50 〈http://www.cidh.oas.org/Basicos/English/Basic18.RulesOfProcedureIACHR.htm〉 accessed 12 April 2011 (IACHR Rules of Procedure).

Arts 51–2 IACHR Rules of Procedure (n 7).

Art 62 ACHR.

10  See ‘Special Reports’ on the IACHR’s website 〈http://www.cidh.oas.org/pais.eng.htm〉 accessed 20 April 2011.

11  IACHR Rules of Procedure (n 7).

12  IACHR, ‘Annual Report of the Inter-American Commission of Human Rights’ (30 December 2009) Chapter III.B 〈http://www.cidh.oas.org/annualrep/2009eng/TOC.htm〉 accessed 12 April 2011.

13  For a detailed discussion of the jurisprudence of the IACtHR on rule of law and counter-terrorism issues, see S García Ramírez, ‘The Inter-American Court of Human Rights’ Perspective on Terrorism’, Chapter 29 of this volume.

14  Art 45(1) IACHR Rules of Procedure (n 7).

15  See Case of ‘Five Pensioners’ v Peru (Merits, Reparations, and Costs) IACtHR Series C No 98 (28 February 2003) paras 155–6; see also Case of Salvador-Chiriboga v Ecuador (Preliminary Objections and Merits) IACtHR Series C No 179 (6 May 2008) para 128.

16  See Address by the President of the IACtHR, Judge AA Cançado Trindade, before the XXI Regular Sessions of the General Assembly of the OAS, San José, Costa Rica (4 June 2001), Annual Report of the IACtHR 2001 app LVI.

17  See ‘On-site visits’ 〈http://www.cidh.oas.org/visitas.eng.htm〉 accessed 21 April 2011.

18  See ‘Address by the Chairman of the IACHR, Paolo Carozza: Presentation of the 2007 Annual Report of the IACHR to the Committee on Juridical and Political Affairs of the Permanent Council of the OAS’ (Washington, DC, 3 April 2008) 〈http://www.cidh.oas.org/Discursos/06.03.08eng.htm accessed 12 April 2011; IACHR, ‘Annual Report of the Inter-American Commission on Human Rights’ OEA/Ser.L/V/II.130 Doc. 22, rev. 1 (29 December 2007) 〈http://www.cidh.oas.org/annualrep/2007eng/TOC.htm〉 accessed 12 April 2011.

19  See, for example, IACHR: ‘Report on the Status of Human Rights in Chile’ (Findings of ‘on the spot’ Observations in the Republic of Chile, 22 July–2 August 1974); ‘Report on the Situation of Human Rights in Nicaragua’ (Findings of the ‘on-site’ observation in the Republic of Nicaragua, 3–12 October 1978); ‘Report on the Situation of Human Rights in Argentina’ (1980); ‘Report on the Situation of Human Rights in Colombia’ (1981); ‘Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin’ (1983); ‘The Human Rights Situation in the So-called “Communities of Peoples in Resistance” in Guatemala’ (1994); and the ‘Second Report on the Human Rights Situation in Peru’ (2000)—see ‘Special Reports’ (n 10).

20  See Chapter II, IACHR Annual Report 2009. All Annual Reports are available at 〈http://www.cidh.oas.org/annual.eng.htm〉 accessed 21 April 2011.

21  Case of Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, IACtHR Series A No 10 (14 July 1989) paras 43–6.

22  Art 1(1) ACHR.

23  Adopted 9 December 1985, entered into force 28 February 1987.

24  Adopted 8 June 1990, entered into force 28 August 1991.

25  Adopted 9 June 1994, entered into force 28 March 1996 (Convention on Forced Disappearance).

26  Vienna Convention on the Law of Treaties (adopted on 23 May 1969, entered into force 27 January 1980) art 27.

27  Armando Alejandre Jr, Carlos Costa, Mario de la Peña and Pablo Morales (Cuba) IACHR Report No 86/99, Case 11.589 (19 September 1999) para 25 (reprinted in IACHR’s Annual Report 1999).

28  Despite the fact that the post World War II legal architecture supposedly outlawed war, the possibility of ‘war’ was included in art 26, as justification for the derogation of certain rights under the ACHR.

29  IACHR, ‘Report on the Situation of Human Rights in Argentina’ OEA/Ser.L/V/II.49 Doc 19 corr 1 (11 April 1980) 〈http://www.cidh.oas.org/countryrep/Argentina80eng/toc.htm〉 accessed 12 April 2011. A more extensive treatment of the history of the IACHR’s application of IHL is forthcoming in the Journal of International Humanitarian Legal Studies (Brill, The Hague).

30  The Santiago Commitment to Democracy and the Renewal of the Inter-American System, OAS General Assembly, 3d plen sess OEA/Ser.P/XXI.O.2 (adopted 4 June 1991), and Representative Democracy, OAS General Assembly Res 1080 (XXI-0/91) (adopted 5 June 1991), Preamble and Res No 1.

31  Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 96.

32  Legality of the Threat or Use of Nuclear Weapons (n 31) 226 para 25.

33  IACHR, ‘Third Report on the Human Rights Situation in Colombia’ (26 February 1999) Chapter IV ‘Violence and Violations of IHRL and IHL’ 〈http://www.cidh.oas.org/countryrep/Colom99en/table%20of%20contents.htm〉 accessed 12 April 2011: ‘However, during such situations of internal hostilities, the IACHR has received from Colombia and other OAS member States numerous complaints alleging serious violations of the fundamental rights guaranteed in the ACHR and Declaration arising out of the conduct of military operations by State security forces and its other agents. In order to properly judge the specific claims raised in such petitions, the IACHR has found it necessary at times either to directly apply rules of IHL, i.e. the law of armed conflict, or to inform its interpretations of relevant provisions of the American Convention by reference to these rules.’ (emphasis added) (Third Colombia Report).

34  The IACHR, prior to its publication of the ‘Third Colombia Report’ (n 33), decided two cases during a situation of internal armed conflict in which it respectively applied and referenced IHL. These cases were: Arturo Ribón Avilán and 10 others ‘The Milk’) (Colombia) IACHR (30 September 1997) para 22; Juan Carlos Abella et al (Argentina) IACHR (18 November 1997) para 148—both reprinted in the IACHR’s Annual Report 1997 〈http://www.cidh.oas.org/annualrep/97eng/TOC.htm〉 accessed 12 April 2011.

35  Case of Juan Carlos Abella et al (n 34) para 161.

36  Art 29(b) ACHR states that: ‘No provision of this Convention shall be interested as: b. Restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party.’

37  Adopted 12 August 1949, entered into force 21 October 1950.

38  Case of Las Palmeras v Colombia (Preliminary Objections) IACtHR Series C No 67 (4 February 2000). Prior to the Court’s final determination, the IACHR continued to invoke or even declare violations of common art 3 (or other IHL norms) in the operative part of decisions or their dictum, including in the following cases: Lucio Parada Cea et al (El Salvador) IACHR Report No 1/99, Case 10.480 (27 January 1999) Conclusions No 2, where the IACHR found violations of common art 3 and Additional Protocol II in the operative part of the decision (reprinted in the IACHR’s Annual Report 1998); ‘Ejido Morelia’ (Mexico) IACHR Report No 48/97, Case 11.411 (18 February 1998) paras 41–3 in dictum, not in the operative part of the decision (reprinted in the IACHR’s Annual Report 1997); José Alexis Fuentes Guerrero et al (Colombia) IACHR Report No 61/99, Case 11.519 (13 April 1999) para 67 (reprinted in the IACHR’s Annual Report 1998) in the operative part of the decision; Ignacio Ellacuría, SJ et al (El Salvador) IACHR Report No 136/99, Case 10.488 (2 December 1999) para 237 in the operative part of the decision (reprinted in the IACHR’s Annual Report 1999); Monsignor Oscar Arnulfo Romero y Galdámez (El Salvador) IACHR Report No 37/00, Case 11.481 (13 April 2000) paras 66–72 in dictum (in the IACHR’s Annual Report 1999); ‘Rio Frio Massacre’ (Colombia) IACHR Report No 62/01, Case 11.654 (6 April 2001) paras 53–4 in dictum (reprinted in the IACHR’s Annual Report 2000); Carlos Manuel Prada Gonzalez et al (Colombia) IACHR Report 63/01, Case 11.710 (6 April 2001) paras 32 and 34, in dictum (reprinted in the IACHR’s Annual Report 2000); Marino Lopez et al (Operation Genesis) (Colombia) IACHR (Admissibility) Report 86/04, Petition 499-04 (21 October 2006) paras 42–3 (reprinted in the IACHR’s Annual Report 2006).

39  More specifically, Colombia argued that neither the IACHR nor the IACtHR was competent to apply IHL and other international treaties, other than the ACHR. The IACHR then stated that the existence of an armed conflict does not exempt Colombia from respecting the right to life: ‘As the starting point for its reasoning, the IACHR stated that Colombia had not objected to the IACHR’s observation that, at the time that the loss of lives set forth in the application occurred, an internal armed conflict was taking place on its territory, nor had it contested that this conflict corresponded to the definition contained in Article 3 common to all the Geneva Conventions.’ See Case of Las Palmeras v Colombia (n 38) para 29. Similarly, in the case of precautionary measures being granted to the Guantánamo detainees in order to clarify their legal status, the US argued that the IACHR had no jurisdiction over the issue, since only IHL applied, and that the US had not consented to the IACHR applying IHL. See, IACHR, ‘Annual Report 2002’ Chapter III and ‘Precautionary Measures granted by the IACHR during 2002’ para 80 (n 20).

40  In particular, ‘the IACHR considered that, in an armed conflict, there are cases in which the enemy may be killed legitimately, while, in others, this was prohibited. The IACHR stated that the American Convention did not contain any rule to distinguish one hypothesis from the other and, therefore, the Geneva Conventions should be applied.’ Case of Las Palmeras v Colombia (n 38) para 29. The IACHR also invoked a passage from the Advisory Opinion of the ICJ on The Legality of the Threat or Use of Nuclear Weapons (n 31) para 25. The IACHR stated that, in the instant case, it had first determined whether common art 3 had been violated and, once it had confirmed this, it then determined whether art 4 ACHR had been violated. The plaintiff also set out in its brief the nature of IHL and its relation to human rights.

41  Case of Las Palmeras v Colombia (n 38) para 33.

42  Art XIII Convention on Forced Disappearance provides for the presenting of petitions to the IACHR.

43  Case of Las Palmeras v Columbia (n 38).

44  For example, Case of the Serrano Cruz Sisters v El Salvador (Preliminary Objections) IACtHR Series C No 118 (23 November 2004) para 109(b) involving forced disappearances of two young sisters by the military during the situation of internal armed conflict in El Salvador. The State argued that IHL was applicable, but that the IACtHR in Case of Las Palmeras v Columbia (n 38) had been declared incompetent to apply IHL. The IACHR responded that ‘it had not requested the IACtHR to apply IHL, but to apply the American Convention in order to establish the international responsibility of El Salvador…. Consequently, the IACHR will refrain from referring to the arguments of the State on the applicability of IHL.’

45  S Rosenne, The Law and Practice of the International Court 1920–2005: Volume I The Court and United Nations (Martinus Nijhoff, Leiden 2006) 210, citing H Kelsen, Principles of International Law (rev and ed RW Tucker, 2nd edn Holt, Rinehart and Winston, New York 1966) 543.

46  See, for example, Martin Javier Roca Casas (Peru) IACHR Report No 39/97, Case 11.233 (19 February 1998) para 116 (reprinted in the IACHR’s Annual Report 1997); José Francisco Gallardo (Mexico) IACHR Report No 43/96, Case 11.430 (15 October 1996) para 89 (reprinted in the IACHR’s Annual Report 1996).

47  See, for example, Case of Cesti-Hurtado v Peru (Reparations and Costs) IACtHR Series C No 78 (31 May 2001) para 35; Case of the ‘Street Children’ (Villagran Morales et al) v Guatemala (Reparations and Costs) IACtHR Series C No 77 (26 May 2001) para 15; Case of the ’White Van’ (Paniagua v Morales et al) v Guatemala (Reparations and Costs) IACtHR Series C No 76 (25 May 2001) para 78; Case of Loayza Tamayo v Peru (Reparations and Costs) IACtHR Series C No 42 (27 November 1998) para 84; Case of Aloeboetoe et al v Suriname (Reparations and Costs) IACtHR Series C No 15 (10 September 1993) para 43.

48  Case Concerning the Factory at Chorzow (Germany v Poland) (Merits) [1928] PCIJ Rep Series A No 13.

49  Professor SJ Rubin, member of the Inter-American Juridical Committee, in the explanation of his vote on the Juridical Committee’s opinion with regard to which ‘other treaties’ art 64 ACHR refers to, noted that if the International Court of Justice issues a decision, advisory or otherwise, ‘the IACtHR should regard that decision or opinion as being decisive’. See ‘Explanation of the vote of Professor Seymour J. Rubin’, in ‘Other Treaties’ Subject to the Advisory Jurisdiction of the Court (Art. 64 ACHR), Advisory Opinion OC-1/82, IACtHR Series B No 1 (24 September 1982) para 46.

50  For a more extensive treatment of extra-territoriality in the inter-American system, see NYU Center for Human Rights and Global Justice, ‘Out of Bounds? The Approach of the Inter-American System for the Promotion and Protection of Human Rights to the Extraterritorial Application of Human Rights Law’ (Working Paper Number 4 2006) 〈http://www.chrgj.org/publications/docs/wp/WPS_NYU_CHRGJ_Cerna_Final.pdf〉 accessed 12 April 2011.

51  See, IACHR, ‘Annual Report 2002’ Chapter III C(1) and ‘Precautionary Measures granted or extended by the Commission during 2002’ para 80 (n 20).

52  IACHR Annual Report 2002 (n 51) Chapter III C(1) and para 80.

53  More specifically, the IACHR stated that: ‘Accordingly where persons find themselves within the authority and control of a state and where a circumstance of armed conflict may be involved, their fundamental rights may be determined in part by reference to IHL as well as IHRL. Where it may be considered that the protections of IHL do not apply, however, such persons remain the beneficiaries at least of the non-derogable protections under IHRL. In short, no person, under the authority and control of a state, regardless of his or her circumstances, is devoid of legal protection for his or her fundamental and non-derogable human rights.’ (emphasis added). See IACHR, ‘Precautionary Measures’ (12 March 2002) on behalf of the Guantanamo Detainees (Unpublished).

54  See Armando Alejandre Jr et al (n 27).

55  In 1962 the OAS suspended the Government of Fidel Castro from participation in the OAS due to his adherence to Marxism-Leninism, which was considered contradictory with the principles and purposes of the OAS Charter. The suspension of Cuba was not lifted until the 2009 OAS General Assembly held in Honduras, subsequent to which Cuba has taken no steps to participate in the activities of the OAS.

56  On 4 July 2009 the OAS, for the first time, suspended a Member State (Honduras) from ‘the exercise of its right to participate in the OAS’ in accordance with art 21 Inter-American Democratic Charter for the coup against the democratically elected President, which occurred on 28 June 2009.

57  See, for example, UN Secretary-General, ‘In Larger Freedom Report’ (21 March 2005) UN Doc A/59/2005 para 128; World Summit Outcome Document, UNGA Res 60/1 (16 September 2005) paras 119, 135.

58  See, for example, IACHR, ‘Report on the Situation of Human Rights in the Republic of Nicaragua’ OEA/Ser.L/V/II.53 (30 June 1981) 〈http://www.cidh.oas.org/countryrep/Nica81eng/TOC.htm〉 accessed 14 April 2011.

59  For example, IACHR, ‘Second Report on the Situation of Human Rights in Chile’ OEA/Ser.L/V/II.37 doc 19 corr 1 (28 June 1976) Chapter VIII 〈http://www.cidh.oas.org/countryrep/Chile76eng/toc.htm〉 accessed 14 April 2011; IACHR, ‘Report on the Situation of Human Rights in Argentina’, OEA/Ser.L/V/II.49 Doc. 19 corr 1 (11 April 1980) Chapter IX.A 〈http://www.cidh.oas.org/countryrep/Argentina80eng/toc.htm〉 accessed 14 April 2011.

60  Case of Leopoldo López Mendoza. To date (19 April 2011), the case has not yet been decided although the public hearing was held at the IACtHR on 1–2 March 2011. Mr Lopez, who had served as mayor of a district of Caracas, was prohibited from running for public office again although he had not been convicted of a crime.

61  See IACHR, ‘Report on the Situation of Human Rights in Peru’ OEA/Ser.L/V/II.83 Doc 31 (12 March 1993) 〈http://www.cidh.oas.org/countryrep/Peru93eng/toc.htm〉 accessed 12 April 2011. See also Case of the Constitutional Court v Peru (Merits, Reparations, and Costs) IACtHR Series C No 71 (31 January 2001) a case involving President Fujimori’s removal of three judges from the Peruvian Constitutional Court.

62  Case of Castillo Petruzzi and others v Peru (Merits, Reparations, and Costs) IACtHR Series C No 52 (30 May 1999); Case of Lori Berenson-Mejía v Peru (Merits, Reparations, and Costs) IACtHR Series C No 119 (25 November 2004).

63  The jurisprudence of the inter-American system has established that the removal of a ‘provisional’ judge may only be justified for just cause and not for political convenience. See, for example, Case of Apitz-Barbera et al (‘First Court of Administrative Disputes’) v Venezuela (Preliminary Objection, Merits, Reparations, and Costs) IACtHR Series C No 182 (5 August 2008).

64  Tomás Eduardo Cirio (Uruguay) IACHR Report No 124/06, Case 11.500 (27 October 2006) para 58 (reprinted in the IACHR’s Annual Report 2006).

65  IACHR, ‘Declaration of Principles on Freedom of Expression’, approved by the IACHR during its 108th regular period of sessions (2–20 October 2000) 〈http://www.cidh.oas.org/declaration.htm〉 accessed 14 April 2011.

66  See Case of Kimel v Argentina (Merits, Reparations, and Costs) IACtHR Series C No 177 (2 May 2008) para 77; and also Dudley Stokes (Jamaica) IACHR Report No 23/08, Case 12.468 (14 March 2008) paras 69–94 (reprinted in the IACHR’s Annual Report 2008).

67  Adopted on 16 December 1966, entered into force 23 March 1976.

68  See art 13(5) ACHR. Furthermore, under art 13(2) ACHR, restrictions may be imposed on the basis of (a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or public health or morals.

69  UNSC Res 1624 (14 September 2005) UN Doc S/RES/1624.

70  Case of Kimel v Argentina (n 66) para 53; and Case of ‘The Last Temptation of Christ (Olmedo-Bustos et al) v Chile (Merits, Reparations, and Costs) IACtHR Series C No 73 (5 February 2001) para 64.

71  Case of Ivcher-Bronstein v Peru (Merits, Reparations, and Costs) IACtHR Series C No 74 (6 February 2001) para 163.

72  Case of Rios et al v Venezuela (Preliminary Objections, Merits, Reparations, and Costs) IACtHR Series C No 194 (28 January 2009); Case of Perozo et al v Venezuela (Preliminary Objections, Merits, Reparations, and Costs) IACtHR Series C No 195 (28 January 2009).

73  Case of Rios (n 72) paras 340–1, and Case of Perozo (n 72) illustrate how journalists are often the subject of governmental threats, harassment, verbal, and even physical attacks where they are critical of the government in power. The IACtHR again called on the state to ensure the right to freely seek, receive, and impart information.

74  Case of Blake v Guatemala (Merits) IACtHR Series C No 36 (24 January 1998) para 48.

75  IACHR Press Communiqué R05/09 of the Special Rapporteur of Freedom of Expression, ‘The Rapporteurs for Freedom of Expression of the UN and of the OAS Express their Concern Regarding Comments made by High Authorities of the Colombian Government against Journalist’ (Washington, DC, 9 February 2009).

76  See Rodolfo Robles Espinoza and Sons (Peru) IACHR Report No 20/99, Case 11.317 (23 February 1999) para 151 (reprinted in the IACHR’s Annual Report 1998). See also Jose Francisco Gallardo (Mexico) IACHR Report No 43/96, Case 11.430 (15 October 1996) (reprinted in the IACHR’s Annual Report 1996); Tomás Eduardo Cirio (n 64); and Case of Uson Ramirez v Venezuela (Preliminary Objection, Merits, Reparations, and Costs) IACtHR Series C No 207 (20 November 2009).

77  Tomás Eduardo Cirio (n 64).

78  Case of Escher v Brazil (Preliminary Objections, Merits, Reparations, and Costs) IACtHR, Series C No 200 (6 July 2009) para 170.

79  Case of Baena Ricardo and others (Merits, Reparations, and Costs) IACtHR Series C No 72 (2 February 2001) para 159.

80  Case of Escher (n 78) para 171.

81  Huilca Tecse v Peru (Merits, Reparations, and Costs) IACtHR Series C No 121 (3 March 2005) paras 69 and 72; Case of Cantoral-Huamaní and García-Santa Cruz v Peru (Preliminary Objection, Merits, Reparations, and Costs) IACtHR Series C No 167 (10 July 2007) para 146. The murder of a trade union leader was not an isolated event and the IACtHR reiterated in another Peruvian case that ‘the murder of the alleged victim was motivated by his being a trade union leader who opposed and criticized the policies of the Government at that time’. See Case of Huilca Tecse (n 81) para 68.

82  Case of Cantoral-Huamaní and García-Santa Cruz (n 81) para 146: ‘Freedom of association can only be exercised in a situation in which the fundamental human rights are fully respected and guaranteed, in particular the right to life and safety. The Court underscores the State’s obligation to investigate crimes against union leaders effectively and with due diligence, bearing in mind that the failure to investigate such facts has an intimidating effect, which prevents the free exercise of trade union rights. The said due diligence is accentuated in contexts of violence against the trade union sector.’ See also Case of Huilca Tecse (n 81) para 68.

83  Case of Manuel Cepeda Vargas v Colombia (Preliminary Objections, Merits, Reparations, and Costs) IACtHR Series C No 213 (26 May 2010) para 172.

84  Case of Manuel Cepeda Vargas (n 83) para 173.

85  IACHR Report on Terrorism (n 6) 219.

86  This was the argument of the IACHR before the IACtHR in the Case of Escher (n 78).

87  Case of Escher (n 78). The IACHR submitted the Escher case to the IACtHR on 20 December 2007.

88  Case of Escher (n 78) para 265.

89  See Ana Elena Townsend Diez-Canseco et al (Wiretapping) (Peru) IACHR Admissibility Report No 1/01, Case 12.085 (19 January 2001) para 5 (reprinted in the IACHR’s Annual Report 2000); Case of Santander Tristan- Donoso v Panama (Preliminary Objection, Merits, Reparations, and Costs) IACtHR Series C No 193 (27 January 2009) para 45.

90  In the Case of Manuel Cepeda Vargas (n 83) there were persistent attacks on the members of an opposition political party in a climate of complete impunity.

91  See IACHR’s Annual Report 2010, ‘Report of the Office of the Special Rapporteur for Freedom of Expression’, para 240 regarding a US case defining ‘material support’ for terrorism. (On 21 June 2010, in the case of Holder v Humanitarian Law Project, 130 S Ct 2705 (2010), the US Supreme Court rejected a First Amendment challenge to a provision of the criminal prohibition on knowingly providing ‘material support or resources to a foreign terrorist organization’. The plaintiffs in the case challenged the prohibition on four types of material support—‘training’, ‘expert advice or assistance’, ‘service’ and ‘personnel’—claiming the statute violated their First Amendment freedom of speech and association rights by prohibiting them from supporting the lawful, non-violent activities of groups such as the Partiya Karkeran Kurdistan and the Liberation Tigers of Tamil Eelam. The Supreme Court rejected the claim, finding that the Government’s interest in combating terrorism is an ‘urgent objective of the highest order’.)

92  Case of De la Cruz Flores (Merits, Reparations, and Costs) IACtHR Series C No 115 (18 November 2004) para 90.

93  Case of De la Cruz Flores (n 92) para 57(a).

94  Case of De la Cruz Flores (n 92) para 171. Similarly, see case of Ms X and Ms Y (Argentina) IACHR Report No 38/96, Case 11.506 (15 October 1996) paras 114–19 (reprinted in the IACHR’s Annual Report 1996).

95  IACHR, ‘Report on Citizen Security and Human Rights’ OEA/Ser.L/V/II (31 December 2009) para 178 〈http://www.cidh.oas.org/countryrep/Seguridad.eng/CitizenSecurity.Toc.htm〉 accessed 14 April 2011.

96  Report on Citizen Security and Human Rights (n 95) para 173.

97  Report on Citizen Security and Human Rights (n 95) para 180.

98  Report on Citizen Security and Human Rights (n 95) para 180.

99  T Farer, Confronting Global Terrorism and American Neo-Conservatism: The Framework of a Liberal Grand Strategy (Collected Courses of the European Academy) (OUP, Oxford 2008) 5.