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

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

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

A.         Right to Life

1.         International Human Rights Law

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

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

American Declaration

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

American Convention  

Article 4.1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. 2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply. 3. The death penalty shall not be reestablished in states that have abolished it. 4. In no case shall capital punishment be inflicted for political offenses or related common crimes. 5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women. 6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.

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

84.        Article 4 of the American Convention on Human Rights regulates the right to life in several respects. In particular, Article 4(1) provides that every person has the right to the legal protection of his or her life, and the right not to be arbitrarily deprived of his or her life. In countries that have not abolished the death penalty, Articles 4(2) to (6) of the Convention prescribe specific limitations and restrictions upon the manner in which the penalty can be imposed, which relate, inter alia, to the nature of crimes for which the death penalty may be imposed, characteristics of offenders that may prohibit the application of the penalty, and the manner in which the conviction and sentencing are adjudicated. Moreover, Article 27 of the American Convention[241] provides that the right to life is a non-derogable right. Accordingly, states may not, even in time of war, public danger, or other emergency that threatens its independence or security, take measures suspending the protection of the right to life.[242] The Commission has interpreted Article I of the American Declaration as permitting the death penalty subject to conditions similar to those under the American Convention.[243] Finally, Article 1 of the Optional Protocol to Abolish the Death Penalty[244] provides that states that have ratified the protocol may not apply the death penalty in their territory to any person subject to their jurisdiction.

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

            a.         Use of Lethal Force by State Agents

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

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

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

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

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

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

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

            b.         Imposition of the Death Penalty

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

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

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

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

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

2.         International Humanitarian Law

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

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

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

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

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

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

104.      More specifically, persons subjected to criminal proceedings during any type of armed conflict may not be sentenced to death except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality.[291] Capital defendants must also be afforded the benefit of fundamental principles and standards of due process. These include the guarantees provided by the principles of nullum crimen sine lege, nulla poena sine lege, and non-bis-in-idem, as well as the presumption of innocence, the right not to be convicted of an offense except on the basis of individual penal responsibility, and the right to be tried by a competent, independent and impartial tribunal, previously established by law. They also include several fundamental procedural guarantees, including the right to prior notification in detail of the charges against him or her, the right to have adequate time and means to prepare his or her defense, which necessarily includes the right to be assisted by counsel of his or her choice or, in the case of an indigent defendant, the right to legal counsel free of charge where such assistance is required for a fair hearing, the right not to be compelled to be a witness against his or herself or to plead guilty, the right to examine witnesses presented against his or her, the right to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as opposing witnesses, and the right to be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal.[292] The rules governing international and non-international armed conflicts also prohibit the pronouncement of a sentence of death on persons who were under the age of eighteen years at the time of the offence and may not be carried out on pregnant women or mothers of young children.[293]

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

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