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OEA/Ser.L/V/II.116
REPORT ON TERRORISM AND HUMAN RIGHTS
EXECUTIVE
SUMMARY
1.
Numerous notorious terrorist incidents in this Hemisphere in
recent years, culminating in three attacks of unprecedented proportion
perpetrated simultaneously in the United States on September 11, 2001,
have harshly illustrated that terrorism remains a significant threat to
the protection of human rights, democracy and regional and international
peace and security. This reality has prompted states and
intergovernmental organizations to undertake a variety of initiatives to
confront these serious threats. Anti-terrorist measures have included
developing domestic legislation and procedures to criminalize,
investigate and prosecute terrorist activities and negotiating
multilateral treaties on interstate cooperation against terrorism. 2.
On June 3, 2002 the OAS General Assembly adopted and opened for
signature the Inter-American Convention Against Terrorism, in which OAS
member states reaffirmed the “need to adopt effective steps in the
inter-American system to prevent, punish and eliminate terrorism through
the broadest cooperation.” Among the principles explicitly recognized
in this Convention is the requirement that anti-terrorist initiatives
must be undertaken in full compliance with member states’ existing
obligations under international law, including international human
rights law. According to Article 15 of the Convention, “[t]he
measures carried out by the states parties under this Convention shall
take place with full respect for the rule of law, human rights, and
fundamental freedoms.” This prerequisite reflects the fundamental
principle that the campaign against terrorism and the protection of
human rights and democracy are complementary responsibilities; the very
object and purpose of anti-terrorist initiatives in a democratic society
is to protect democratic institutions, human rights and the rule
of law, not to undermine them. 3.
The Inter-American Commission on Human Rights, as the OAS organ
charged with promoting the observance and protection of human rights in
the Hemisphere, has since its creation in 1959 gained extensive
experience in evaluating the human rights implications of numerous
anti-terrorist initiatives undertaken by OAS member states. In doing so,
the Commission has consistently emphasized the need for unqualified
respect for the full scope of human rights. This includes rights that
have not been legitimately suspended under a state of emergency in
strict compliance with the principles and conditions governing
derogations from certain protected rights. 4.
In order to reinforce its doctrine in this area and to assist OAS
member states in complying with their international legal obligations,
the Commission decided in December 2001 to undertake a study by which it
would reaffirm and elaborate upon the manner in which international
human rights requirements regulate state conduct in responding to
terrorist threats. To this end, the Commission convened a panel of
international experts during its regular period of sessions in March
2002 to obtain timely and specialized information on the issue of
terrorism and human rights. The Commission also invited OAS member
states and pertinent non-governmental organizations to submit written
observations on this topic. 5.
In preparing its report, the Commission adopted a rights-based
approach, by which it has examined counter-terrorism initiatives in
relation to several core international human rights, in particular the
right to life, the right to humane treatment, the right to personal
liberty and security, the right to a fair trial, the right to freedom of
expression and the obligation to respect and ensure, non-discrimination
and the right to judicial protection. The Commission has also included
an abbreviated discussion of several additional rights potentially
affected by anti-terrorist measures, as well as an analysis of the
particular vulnerabilities of migrant workers, asylum seekers, refugees
and other non-nationals. 6.
Several fundamental precepts underlie the Commission’s analysis
as a whole. First is a recognition that to date there has been no
international consensus on a comprehensive international legal
definition of terrorism. As a consequence, the characterization of an
act or situation as one of terrorism, including the labeled “war on
terrorism”, cannot in and of itself serve as a basis for defining the
international legal obligations of states. The Commission has not
disregarded in this connection that terrorist acts such as those
perpetrated on September 11, 2001 may well lead to further developments
in international law. This could include, for example, the negotiation
of international instruments that are designed to address a new form of
“terrorist war” waged by or against non-state actors engaged in
armed violence with states at an international level. Such developments
are only speculative at this stage, however, and accordingly the
Commission’s discussion in this report has focused upon member
states’ obligations under international law as presently constituted.
7.
The absence of an internationally-accepted definition of
terrorism does not mean that terrorism is an indescribable form of
violence or that states are hot
subject to restrictions under
international law in developing their responses to such violence. To the
contrary, it is possible to identify several characteristics frequently
associated with incidents of terrorism that provide sufficient
parameters within which states’ pertinent international legal
obligations in responding to this violence can be identified and
evaluated. These characteristics relate to the nature and identity of
the perpetrators of terrorism, the nature and identity of the victims of
terrorism, the objectives of terrorism, and the means employed to
perpetrate terrorist violence. In particular, the Commission has noted
that terrorism may be perpetrated, individually or collectively, by a
variety of actors, including private persons or groups as well as
governments, may employ varying means and levels of violence ranging
from mere threats devised to induce public panic to weapons of mass
destruction, and may impact detrimentally upon a variety of persons who
are afforded particular protections under international law, including
women, children and refugees. 8.
Drawing upon these factors, the Commission has observed that
several regimes of international law may potentially apply to situations
of terrorism. Terrorist violence may be perpetrated in times of peace,
when international human rights law is fully applicable, during a state
of emergency, when certain human rights protections may be the subject
of derogations, or during an armed conflict, to which international
humanitarian law applies. Further, the nature and level of violence
generated by or against perpetrators of terrorism may trigger
a state of emergency or armed conflict. Accordingly, the Commission’s
analysis is not limited to member states’ obligations under
inter-American human rights instruments. It has also taken into account
member states’ conventional and customary international legal
obligations regardless of
their bilateral or multilateral character, or whether they have been
adopted within the framework or under the auspices of the inter-American
system, including international humanitarian law and
international refugee law. These obligations constitute components of a
interrelated and mutually-reinforcing regime of human rights protections
that must be interpreted and applied as a whole so as to afford
individuals the most favorable standards of protection available under
applicable law. Certain obligations may also provide a lex specialis
for the interpretation and application of international human rights
law. In particular, international humanitarian law prescribes extensive
and detailed rules, standards and mechanisms concerning the protection
of victims of war that must be taken into account in properly
interpreting and applying international human rights protections in
armed conflict situations. 9. Closely connected with the regimes of law considered in the Commission’s analysis is the importance of properly determining the status of persons who fall within the authority or control of a state or its agents in the course of anti-terrorist initiatives. It is only when the legal status of such persons is properly determined that they can be afforded the rights to which they are entitled under domestic and international law by reason of that status. Where terrorist violence triggers or occurs in the context of an international armed conflict, it is particularly crucial for member states to determine, in accordance with the Third Geneva Convention of 1949 and Additional Protocol I with respect to States that have ratified it, whether a person falling within a state’s power constitutes a civilian or combatant and, in the case of the latter, whether the combatant is “privileged” and therefore entitled to prisoner of war status and immunity from prosecution under the domestic law of his captor for his hostile acts that do not violate the laws and customs of war. 10.
In the context of the above precepts, the Commission has reached
several conclusions, which are summarized below, concerning the rights
and freedoms most implicated by states’ anti-terrorist initiatives:
the right to life, the right to humane treatment, the right to personal
liberty and security, the right to a fair trial, the right to freedom of
expression, and the obligation to respect and ensure, non-discrimination
and the right to judicial protection, as well as the situation of
migrant workers, asylum seekers, refugees and other non-nationals. In
particular, the Commission has identified the minimum standards of
protection that are common to both international human rights law and
international humanitarian law in these areas. Where appropriate, the
Commission has also identified areas in which the lex specialis
of international humanitarian law may result in distinct standards of
treatment applicable in situations of armed conflict. 11.
Perhaps in no other area is there greater convergence between
international human rights law and international humanitarian law than
in the standards of humane treatment. While governed by distinct
instruments, both regimes provide for many of the same minimum and non-derogable
requirements dealing with the humane treatment of all persons held under
the authority and control of the state. Moreover, under both regimes the
most egregious violations of humane treatment protections give rise not
only to state responsibility, but also individual criminal
responsibility on the part of the perpetrator and his or her superiors. 12.
Foremost among these standards is the absolute prohibition of
torture or any other cruel, inhuman or degrading treatment or punishment
by the state or its agents. This proscription applies to all forms of
treatment attributable to the state including, for example, penal or
disciplinary sanctions such as corporal punishment and prolonged periods
of time in solitary confinement. Also prohibited are inhumane methods of
interrogation, including severe treatment such as beatings, rape, or
electric shocks, as well as more subtle but equally injurious treatments
such as administration of drugs in detention or psychiatric institutions
or prolonged denial of rest or sleep, food, sufficient hygiene or
medical assistance. International human rights and humanitarian law also
prescribe comparable standards concerning conditions of detention. These
requirements relate to such matters as accommodation, nutrition and
hygiene, as well as additional protections for particular categories of
persons, such as women and children. 13. According
to standards applicable in peacetime and in wartime, the treatment of
detainees must remain subject to continuous and effective supervision by
the appropriate mechanisms as prescribed by international law. In
situations other than armed conflict, this requires supervision by
regularly constituted courts through habeas corpus or equivalent relief. In times of war, oversight
mechanisms include the International Committee of the Red Cross and, in
situations of international armed conflict, the Protecting Powers regime
provided for under the 1949 Geneva Conventions. 14.
Notwithstanding the existence of these specific rules and
mechanisms governing the detention of persons in situations of armed
conflict, there may be circumstances in which the supervisory mechanisms
under international humanitarian law are not properly engaged or
available, or where the detention or internment of civilians or
combatants continue for a prolonged period. Where this occurs, the
regulations and procedures under international humanitarian law may
prove inadequate to properly safeguard the minimum standards of
treatment of detainees, and the supervisory mechanisms under
international human rights law, including habeas corpus and amparo
remedies, may necessarily supercede international humanitarian law
in order to ensure at all times effective protection of the fundamental
rights of detainees. 15.
As with the standards governing humane treatment, international
human rights and humanitarian law subject member states to essentially
the same non-derogable obligation to respect and ensure respect for
their international commitments through appropriate and effective
mechanisms. They also share the absolute and overriding prohibition
against discrimination of any kind, including impermissible distinctions
based upon race, color, sex, language, religion, political or other
opinion, national or social origin, economic status, birth, or any other
social condition. While the doctrine of the inter-American human rights
system does not prohibit all distinctions in treatment in the enjoyment
of protected rights and freedoms, any permissible distinctions must be
based upon objective and reasonable justification, must further a
legitimate objective, regard being had to the principles which normally
prevail in democratic societies, and the means must be reasonable and
proportionate to the end sought. Distinctions based on grounds
explicitly enumerated under pertinent articles of international human
rights instruments are subject to a particularly strict level of
scrutiny whereby states must provide an especially weighty interest and
compelling justification for the distinction. In the campaign
against terrorism, states must be particularly vigilant to ensure that
state agents, including military forces, conduct themselves fully in
accordance with the proscription against discrimination. 16.
The Commission’s analysis clarifies that international human
rights and humanitarian law share many of the same minimum prerequisites
governing an individual’s right to due process and to a fair trial.
Where member states endeavor to investigate, prosecute and punish
individuals for crimes relating to terrorism, the Commission stipulates
that member states remain bound by fundamental and non-derogable due
process and fair trial protections in all instances, whether in times of
peace, states of emergency or armed conflict. These protections
encompass fundamental principles of criminal law as well as entrenched
procedural and substantive safeguards. 17. Among
the protections highlighted by the Commission is the requirement that
any laws that purport to proscribe and punish conduct relating to
terrorism be classified and described in precise and unambiguous
language that narrowly defines the unlawful conduct, in accordance with
the principle of legality. The Commission observes that states in this
and other regions have taken a variety of approaches in attempting to
prescribe sufficiently clear and effective anti-terrorism laws. Some
states have endeavored to prescribe a specific crime of terrorism based
upon commonly-identified characteristics of terrorist violence. Others
have chosen not to prescribe terrorism as a crime per se, but
rather have varied existing and well-defined common crimes, such as
murder, by adding a terrorist intent or variations in punishment that
will reflect the particular heinous nature of terrorist violence.
Whichever course is chosen, OAS member states should be guided by the
basic principles articulated by the Inter-American Court and Commission
on this issue. In order to ensure that punishments imposed for crimes
relating to terrorism are rational and proportionate, member states are
also encouraged to take the legislative or other measures necessary to
provide judges with the authority to consider the circumstances of
individual offenders and offenses when imposing sentences for terrorist
crimes. 18. Fundamental
principles of due process and a fair trial applicable at all times also
entail the right to be tried by a competent, independent and impartial
tribunal as defined under applicable international human rights or
humanitarian law. This requirement generally prohibits the use of ad
hoc, special, or military tribunals or commissions to try civilians
for terrorist-related or any other crimes. A state’s military courts
may prosecute members of its own military for crimes relating to the
functions that the law assigns to military forces and, during
international armed conflicts, may try privileged and unprivileged
combatants, provided that the minimum requirements of due process are
guaranteed. Military courts may not, however, prosecute human rights
violations or other crimes unrelated to military functions, which must
be tried by civilian courts. 19.
Among the non-derogable procedural guarantees identified by the
Commission under both international human rights and humanitarian law
are the right of an accused to prior notification in detail of the
charges against him or her, the right to adequate time and means to
prepare his or her defense which necessarily includes the right to be
assisted by counsel of his or her choosing or, in the case of indigent
defendants, the right to counsel free of charge where such assistance is
necessary for a fair hearing, and the right not to testify against
oneself. Also protected is the right to be advised on conviction of his
or her judicial and other remedies and of the time limits within which
they may be exercised, which may include a right to appeal a judgment to
a higher court. 20.
In situations of emergency, there may be some limited aspects of
the right to a fair trial that may be legitimately suspended, provided
that states comply strictly with the conditions governing derogation
clauses under international human rights instruments, and provided that
they do not endeavor to deny an individual more favorable protections
that are non-derogable under other applicable international instruments.
Potentially derogable protections may include, for example, the right to
a public trial and a defendant’s right to examine or have examined
witnesses against him or her, where limitations on these rights are
necessary to ensure the safety of judges, lawyers, witnesses or others
involved in the administration of justice. Such measures can never be
justified, however, where they may compromise a defendant’s non-derogable
due process protections, including the right to prepare a defense and to
be tried by a competent, impartial and independent tribunal. 21. The
right to life is afforded both similar and distinct treatment under
international human rights and humanitarian law. Under both regimes, the
use of lethal force by state agents must comply with principles of
proportionality and distinction as defined under each area of law.
Accordingly, in armed conflict situations, parties to the conflict must
distinguish between military objectives and civilians or civilian
objects, and launch attacks only against the former. Similarly, in
peacetime situations, state agents must distinguish between persons who,
by their actions, constitute an imminent threat of death or serious
injury, or a threat of committing a particularly serious crime involving
a grave threat to life, and persons who do not present such a threat,
and use force only against the former. At the same time, privileged
combatants in situations of armed conflict are not prohibited from using
lethal force against enemy combatants who have not laid down their arms
or been placed hors de combat and the death of a combatant under
these circumstances does not constitute a violation of the right to life
when interpreted in light of the applicable laws or customs of war. 22. Also
pertinent to the right to life is the imposition of the death penalty as
a punishment for terrorist-related offenses. Irrespective of whether
this measure is imposed during peacetime or armed conflict situations,
states must ensure that their legislative provisions comply with certain
conditions that limit a state’s capacity to apply capital punishment
to certain offenses or offenders. They must also ensure that the
proceedings through which a capital sentence may be imposed comply with strict
procedural requirements and are subject to rigorous control by
fundamental minimum judicial guarantees. Without going so far as to
abolish the death penalty, the inter-American instruments impose
restrictions designed to delimit strictly its application and scope, in
order to reduce the application of the penalty to bring about its
gradual disappearance. 23.
The right to personal liberty and security similarly exhibits
both comparable and distinct requirements in peacetime, states of
emergency and armed conflict, as provided for under international human
rights and humanitarian law. All persons falling within the authority or
control of a state are entitled to the right to personal liberty and
security. However, under prevailing international human rights
standards, states may, under certain limited circumstances, deprive
individuals of their liberty, both in relation to the investigation and
punishment of crimes as well as the administration of state authority in
other areas where measures of this nature are strictly necessary. This
may include, for example, administrative detention for compelling
reasons relating to law enforcement, health or other public purposes.
These measures must, however, comply with standards as prescribed under
applicable regimes of international law. 24. Outside
of armed conflict situations, standards governing the right to personal
liberty include ensuring that the grounds and procedures for the
detention be prescribed by law, the right to be informed of the reasons
for the detention, prompt access to legal counsel, family and, where
necessary or applicable, medical and consular assistance, prescribed
limits upon the length of continued detention, and maintenance of a
central registry of detainees. The Commission also emphasizes that
appropriate judicial review mechanisms must be available to supervise
detentions, promptly upon arrest or detention and at reasonable
intervals when detention is extended. In no circumstances may states
impose prolonged incommunicado detention.
Aspects of the foregoing requirements should also be considered non-derogable,
because of their integral role in protecting the non-derogable rights of
detainees such as the right to humane treatment and the right to a fair
trial and the need to ensure that detainees or prisoner are not left
completely at the mercy of those holding them. 25. Where
emergency situations arise, states may be justified in derogating from
certain limited aspects of the right to personal liberty and security.
This may include, for example, subjecting individuals to periods of
preventative or administrative detention for periods longer than would
be permissible under ordinary circumstances. As with all derogations,
however, any extended detention must be strictly necessary in the
exigencies of the situation, must remain subject to the non-derogable
protections noted above, and may in no case be indefinite. 27.
Enemy non-nationals in the territory of a party to an
international armed conflict or civilians in occupied territory, on the
other hand, may not be administratively detained or interned except
where the security of the detaining or occupying power make it
absolutely necessary. Where such detention or internment is imposed, it
must be subject to reconsideration or appeal with the least possible
delay and, if it is continued, subject to regular review by an
appropriate or competent body, court or other tribunal designated for
that purpose. 28.
As in the case of the right to humane treatment, there may be
circumstances in which the regulations and procedures under
international humanitarian law may prove inadequate to properly
safeguard the minimum human rights standards of detainees. This may
occur, for example, where the continued existence of active hostilities
becomes uncertain, or where a belligerent occupation continues over a
prolonged period of time. As the paramount consideration must at all
times remain the effective protection of the fundamental rights of
detainees, the supervisory mechanisms under international human rights
law or domestic law may necessarily supercede international humanitarian
law in such circumstances in order to safeguard the fundamental rights
of detainees. 29.
Also included in the Commission’s analysis is the right to
freedom of expression, which exhibits a lesser degree of convergence
between international human rights and humanitarian law, but which
nevertheless prescribes fundamental controls upon states’
counter-terrorism initiatives. In this connection, the Commission has
emphasized the particular importance of respect for and protection of
the right to freedom of expression in the Americas, as it plays a
fundamental role in strengthening democracy and guaranteeing human
rights by offering citizens an indispensable tool for informed
participation. Further, the Commission highlights the fact that during
situations of terrorist threat, an informed public can be an effective
tool in monitoring and preventing abuses by public authorities. 30.
Several rules and protections governing the right to freedom of
expression warrant particular comment in the context of terrorism. In
situations short of a state of emergency, prior censorship should not be
used to prevent the circulation of ideas and information. In addition,
subsequent penalties for the dissemination of opinions or information
may only be imposed through laws that are clear and foreseeable and not
overly broad or vague. Moreover, any subsequent penalties must be
proportionate to the type of harm they are designed to prevent. States
should also refrain from promulgating laws that broadly criminalize the
public defense (apologia) of terrorism or of persons who might have
committed terrorist acts, without requiring a showing that such
expressions were intended to incite, and were likely to produce lawless
violence or other similar actions. With respect to access to information
in the hands of the government and the right of habeas
data, there should be a presumption of openness, with restrictions
on access only when releasing the information in question would or would
be likely to cause serious prejudice to national security. States bear
the burden of proof to show that such restrictions are necessary. 31.
In states of emergency, the Commission observes that the right to
freedom of expression is derogable for the time and to the extent
strictly required by the exigencies of the situation. The Commission
specifically observes in this connection that laws that impose prior
censorship on the publication or dissemination of terrorist-related
information or opinions may be permissible through derogation in times
of emergency. States may also be justified during emergency situations
in imposing additional restrictions on freedom of expression and access
to information. However, the burden of proof is again on States to
demonstrate that any derogations are not excessive in light of the
exigencies of the situation. 32.
With regard to situations of armed conflict, the Commission
emphasizes in particular the obligation of parties to a conflict to
afford journalists and media installations the protection to which their
status under international humanitarian law entitles them, which is
presumptively that of civilians and civilian objects. 33.
The Commission recognizes that persons who find themselves in the
territory of a state of which they are not nationals, including migrant
workers, refugees and those seeking asylum from persecution, are
particularly vulnerable to human rights violations in the development
and execution of counter-terrorist measures. This report therefore
addresses several fundamental human rights specifically as they pertain
to non-nationals in the context of anti-terrorism strategies, including
the right to personal liberty and security, the right to humane
treatment, the right to due process and to a fair trial, and the
absolute and non-derogable prohibition against discrimination. In order
to ensure that measures adopted concerning the situation of
non-nationals are not formulated or executed in a manner that
transgresses these fundamental human rights, states must avoid in
particular such practices as unjustified and prolonged detention,
failure to inform detainees of their right to consular assistance, mass
expulsions of non-nationals, and unavailable or ineffective review of
judicial or administrative proceedings involving non-nationals. The
Commission has also stressed that proceedings involving the removal or
deportation of such persons must properly consider and give effect to
the principle of non-refoulement as reflected in such provisions as
Article 33 of the UN Convention on the Status of Refugees, Article 3(1)
of the UN Convention on Torture, Article 13 of the Inter-American
Convention to Prevent and Punish Torture, and Article 22(8) of the
American Convention on Human Rights. 34. Finally,
the Commission’s analysis acknowledges that member states’
anti-terrorist initiatives may have detrimental implications for a broad
range of human rights beyond those discussed above, including the rights
to freedom of assembly and of association, the right to freedom of
conscience and religion, the rights to property and privacy, and the
right to participate in government. Accordingly, the report provides an
abbreviated analysis of these rights and observes in particular that any
measures taken by member states to restrict these rights must comply
strictly with the procedural and substantive requirements governing
restriction clauses under international human rights instruments. This
requires that any restrictions be necessary for the security of all and
in accordance with the just demands of a democratic society and must be
the least restrictive of possible means to achieve a compelling public
interest. In addition, any such restrictions must be prescribed by law
passed by the legislature and in compliance with the internal legal
order and cannot be subject to the discretion of a government or its
officials. 35.
The Commission’s report concludes with a series of specific
recommendations that are intended to guide member states in implementing
the rules and principles articulated in the Commission’s analysis.
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