II.         LEGAL FRAMEWORK FOR THE COMMISSION’S ANALYSIS

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

A.         The International Law Against Terrorism

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

33.        Much of the international law of terrorism has taken the form of multilateral treaties. Major anti-terrorism instruments include the International Convention Against the Taking of Hostages,[76] the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,[77] and the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents.[78] These and other treaties on terrorism have developed to contain several provisions that are considered particularly pertinent in combating this form of violence. These provisions include articles that define particular acts of terrorism as criminal offenses for the purposes of the treaties,[79] oblige states parties to make the offenses punishable by appropriate penalties under their domestic law, [80] and require states parties to establish their jurisdiction over offenses and suspected offenders in particular cases and to prosecute or extradite alleged offenders.[81]  Also included in anti-terrorism instruments are provisions that require states parties to cooperate in preventing terrorist offenses and to provide mutual legal assistance in criminal proceedings relating to crimes of terrorism,[82] that require terrorist offenses to be included as extraditable offenses in any extradition treaties between states parties,[83] and that oblige states parties not to regard certain terrorist offenses as political offenses, as offenses connected with a political offense or as offenses inspired by political motives for the purposes of extradition.[84] It is notable in this respect that the provisions of this body of law that require states parties to investigate, prosecute and punish terrorist crimes coincide with the doctrine under international human rights law according to which states are obliged to investigate the acts and punish those responsible whenever there has been a violation of human rights.[85]    

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

35.        Similar initiatives to develop comprehensive terrorism conventions have been pursued at the regional level.[92] As emphasized by member states in their responses to the Commission’s invitation to submit information on the present study, these efforts have included the Inter-American Convention Against Terrorism, which was approved and opened for signature by the OAS General Assembly on June 3, 2002 with the stated object and purpose of preventing, punishing and eliminating terrorism.[93] As of this writing, the Convention has been signed by 32 member states but has yet to be ratified by any governments.[94] Many of the provisions of the Inter-American Convention against Terrorism are similar to those under other anti-terrorism treaties. These include, for example, articles that oblige states parties to afford one another mutual legal assistance, including cooperation among law enforcement authorities, with respect to the prevention, investigation and prosecution of the offenses addressed by the treaty.[95] It also renders the political offense exception inapplicable to crimes under the treaty and requires member states to ensure that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed such a crime.[96]  Unlike the UN terrorism convention, however, the OAS treaty refrains from providing a comprehensive definition of terrorism, but rather incorporates the crimes prescribed by ten existing international treaties on terrorism.[97] The Convention also contains extensive provisions addressing the prevention, combating and eradication of the financing of terrorism by, for example, requiring states parties to “institute a comprehensive regulatory and supervisory regime for banks, other financial institutions, and other entities deemed particularly susceptible to being used for the financing of terrorist activities.”[98] It similarly addresses the seizure and confiscation of funds or other assets constituting the proceeds of, used to facilitate, or used or intended to finance, the commission of any of the offenses under the Convention.[99] And as noted previously, pursuant to Article 15 all of the measures under the treaty are subject to the requirement of respect for the rule of law, human rights and fundamental freedoms.[100]

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

B.         International Human Rights Law 

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 27

1.             In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin. 2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights. 3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.[138]

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

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

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

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

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

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

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

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

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

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

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

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

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