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3.
The
Right to Life and Terrorism 106.
As suggested above, the protections of the right to life provided
for by international human rights law and international humanitarian law
are particularly relevant to two types of counter-terrorism initiatives
that may occur in peacetime, states of emergency or armed conflicts,
namely the use of lethal force by state agents during anti-terrorist
operations, and the application of the death penalty to persons
convicted of terrorism related offenses. 107.
In the course of anti-terrorist operations, state agents might
resort to the use of lethal force. In fact,
the state has the
right and duty to guarantee the security of all, which may in some
circumstances require the use of lethal force.[300]
Nevertheless, as emphasized by the Inter-American
Court in the context of the use of force by law enforcement officials,
“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. The
State is subject to law and morality. Disrespect for human dignity
cannot serve as the basis for any State action.”[301]
108.
The Commission has specified , “[t]he American Convention, as
well as other universal and regional human rights instruments, and the
1949 Geneva Conventions share a common nucleus of non-derogable rights
and a common purpose of protecting human life and dignity.
These human rights treaties apply both in peacetime, and during
situations of armed conflict. […] Both Common Article 3 and Article 4
of the American Convention protect the right to life and, thus,
prohibit, inter alia, summary
executions in all circumstances.”[302]
Accordingly, both international human rights law and international
humanitarian law protect the lives of civilians, combatants placed hors
de combat and, to some extent, the lives of combatants taking part
in the hostilities. 109.
As discussed in the above sections, one of the principal
distinctions between international human rights law applicable in
peacetime and international humanitarian law applicable in armed
conflict is the fact that the latter 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 does not
constitute a violation of the right to life. Notwithstanding this
fundamental distinction, it may also be considered that both
international human rights law and international humanitarian law have
similar fundamental principles applicable to situations where the state
uses lethal force to protect its security or that of its citizens in
both peacetime and armed conflict situations.[303]
110.
Further, while there exists a rule of proportionality applicable
both in peacetime and during situations of armed conflict, it has a
different meaning and different implications in each context.
Accordingly, in peacetime, the principle of proportionality provides
that the use of force be proportionate to the needs of the situation.[304]
Under international humanitarian law, on the other hand, the principle
of proportionality prohibits “attacks which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive in
relation to the concrete and direct military advantage anticipated.”[305]
The concept of proportionality is inherent in the complementary
customary law principles of necessity and humanity which underlie the
law governing the conduct of all armed conflicts. The principle of
necessity justifies only those measures of military violence, not
forbidden by international law, which are relevant and proportionate to
securing the prompt submission of the enemy with the least possible
expenditure of human and economic resources. The principle of humanity
complements and inherently limits the principle of necessity by
forbidding those measures of violence which are not necessary (i.e.
relevant and proportionate) to the achievement of a definite military
advantage. Thus, the principle of humanity “[…] results in a
specific prohibition against unnecessary suffering, a requirement of
proportionality and [. . .] confirms the basic immunity of civilian
populations and civilians from being the objects of attack during armed
conflicts.”[306]
These customary law principles accordingly prohibit disproportionate and
other kinds of attacks by requiring that the party launching an attack
against a legitimate military objective must always seek to avoid or
minimize foreseeable civilian casualties and damage to civilian objects.[307]
While this principle seeks to minimize the damage inflicted on
civilians, it does not, however, apply to limit the damage inflicted on
combatants or military objectives.[308]
While the distinct nature of the principle of proportionality applicable
under international humanitarian law must be recognized, it can
nevertheless be said that excessive foreseeable damage or injury to
certain persons or objects is prohibited in peacetime as well as in
armed conflict. 111.
Moreover, in accordance with the principle of distinction
applicable during armed conflicts[309]
and the equivalent principle applicable in peacetime,[310]
state agents, when using force, may only target certain persons and
objects. 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.[311]
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. [312]
112.
When assessing whether the right to life protected under inter-American
human rights instruments has been violated specifically in the context
of armed conflict, it is also necessary to refer to corresponding norms
of international humanitarian law, which provide specific standards
against which to evaluate whether a deprivation of life occurring during
an armed conflict was arbitrary and therefore unlawful. Such standards
are used in distinguishing between civilians and combatants.[313]
113.
In their efforts to suppress terrorism, states have frequently
resorted to the imposition of the death penalty as a punishment for
terrorist-related offenses, which also have implications for the right
to life. Irrespective of
whether this measure is imposed during peacetime or armed conflict
situations, certain restrictions apply at all times as fundamental and
non-derogable protections under international human rights law and/or
international humanitarian law. 114.
First, certain conditions limit a state’s capacity to subject
terrorism-related offenses to capital punishment. States parties to the
American Convention that have abolished death penalty for such offenses
may not reinstate it[314]
and states that create new terrorist offenses and that have ratified the
Convention may not subject those offenses to capital punishment.[315]
115.
Secondly, in cases where a state lawfully subjects
terrorism-related offenses to capital punishment, certain conditions
also limit the manner in which the penalty can be applied. In
particular, a death sentence may only be pronounced pursuant to a final
judgment rendered in accordance with a law establishing such punishment,
enacted prior to the commission of the crime.[316]
The death penalty may be imposed only for the most serious crimes and
may not be applied through mandatory sentencing laws.[317]
It may never be applied for political offenses or related common crimes.[318]
It should be noted in this connection that certain international
anti-terrorism instruments explicitly stipulate that terrorist crimes as
defined under those instruments are not to be regarded as political or
related common offenses for the purposes of extradition or mutual legal
cooperation.[319]
116.
Other conditions also limit manner in which the death penalty can
be applied. Specifically, certain personal characteristics of an
offender, including his or her age, may preclude the application of the
penalty altogether.[320]
Persons condemned to death have the right to apply for amnesty, pardon,
or commutation of sentence.[321]
As suggested above, additional procedural requirements, such as the
notification of Protecting Powers, may apply based upon the lex
specialis of international humanitarian law governing international
armed conflicts. 117.
In addition, at all times, including during armed conflicts, the
imposition of such a penalty is subject to strict procedural
requirements and to a rigorous control of fundamental minimum judicial
guarantees. To the extent that these requirements protect the non
derogable right to life and constitute pre-conditions necessary to
ensure that the imposition of the capital punishment does not constitute
an arbitrary deprivation of life, such fundamental guarantees are
themselves non-derogable under human rights law as well as under
humanitarian law.[322]
They include in particular 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 as defined under applicable international standards[323]
and previously established by law. They
also include the following procedural guarantees for capital defendants:
B.
Right to Personal Liberty and Security
1.
International Human Rights Law
118.
The right to personal liberty and security and to be free from
arbitrary arrest or detention is provided for in both Article XXV of the
American Declaration and Article 7 of the American Convention on Human
Rights as follows: American
Declaration Article
XXV. No person may be deprived of liberty except in the cases and
according to the procedures established by pre-existing law. No person
may be deprived of liberty for nonfulfillment of obligations of a purely
civil character. Every individual who has been deprived of his liberty
has the right to have the legality of his detention ascertained without
delay by a court, and the right to be tried without undue delay or,
otherwise, to be released. He also has the right to humane treatment
during the time he is in custody. American
Convention Article
7.1. Every person has the right to personal liberty and security. 2. No
one shall be deprived of his physical liberty except for the reasons and
under the conditions established beforehand by the constitution of the
State Party concerned or by a law established pursuant thereto. 3. No
one shall be subject to arbitrary arrest or imprisonment. 4. Anyone who
is detained shall be informed of the reasons for his detention and shall
be promptly notified of the charge or charges against him. 5. Any person
detained shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to be released without prejudice to
the continuation of the proceedings. His release may be subject to
guarantees to assure his appearance for trial. 6. Anyone who is deprived
of his liberty shall be entitled to recourse to a competent court, in
order that the court may decide without delay on the lawfulness of his
arrest or detention and order his release if the arrest or detention is
unlawful. In States Parties whose laws provide that anyone who believes
himself to be threatened with deprivation of his liberty is entitled to
recourse to a competent court in order that it may decide on the
lawfulness of such threat, this remedy may not be restricted or
abolished. The interested party or another person in his behalf is
entitled to seek these remedies. 7. No one shall be detained for debt.
This principle shall not limit the orders of a competent judicial
authority issued for nonfulfillment of duties of support. 119.
Similar provisions can be found in other international human
rights instruments, including Article 9 of the Universal Declaration of
Human Rights,[325]
Article 9 of the International Covenant on Civil and Political Rights,[326]
and, specifically with respect to the arrest, detention or imprisonment
of children, Article 37 of the Convention of the Rights of the Child.[327]
120.
These provisions provide for numerous guarantees aimed at
protecting persons from unlawful or arbitrary interference with their
liberty by the state, both in connection with criminal proceedings and
in other areas where states may exercise authority. Among the
protections guaranteed are the requirements that any deprivation of
liberty be carried out in accordance with pre-established law, that a
detainee be informed of the reasons for the detention and promptly
notified of any charges against them, that any person deprived of
liberty is entitled to juridical recourse, to obtain, without delay, a
determination of the legality of the detention, and that the person be
tried within a reasonable time or released pending the continuation of
proceedings.[328]
In all circumstances, detainees must be treated humanely.[329]
121.
Both this Commission and the Inter-American Court have previously
emphasized that no one may be deprived of liberty except in cases or
circumstances expressly provided by law, and that any deprivation of
liberty must strictly adhere to the procedures defined thereunder.[330]
This includes ensuring against arbitrary arrest and detention by
strictly regulating the grounds and procedures for arrest and detention
under law.[331]
It also includes ensuring prompt and effective judicial oversight of
instances of detention, in order to protect the well-being of detainees
at a time when they are wholly within the control of the state and
therefore particularly vulnerable to abuses of authority.[332]
It has been observed in this respect that where detention is not ordered
or promptly supervised by a competent judicial authority, where the
detainee may not fully understand the reason for the detention or have
access to legal counsel, and where the detainee’s family may not have
been able to locate him or her promptly, there is clear risk, not just
to the legal rights of the detainee, but also to his or her personal
integrity.[333]
122.
To avoid risks of this nature, the Commission has suggested that
a delay of more than two or three days in bringing a detainee before a
judicial authority will generally not be considered reasonable.[334]
An effective system for registering arrests and detentions and making
that information available to family members, counsel and other persons
with legitimate interests in the information has also been widely
recognized as one of the most essential components of a properly
functioning justice system, as it provides crucial protection for the
rights of the detainee and reliable information for the accountability
of the system.[335]
123.
Where a person is subjected to preventative detention following
his or her apprehension, it must be demonstrated that state authorities
have adequate justification for that detention and that the state has
exercised the requisite diligence in ensuring that the duration of such
confinement is not unreasonable, including providing for prompt and
continued judicial oversight. Possible justifications for preventative
detention have been held by the Commission to include the existence of a
reasonable suspicion that the accused has committed an offense, the
danger of flight, the need to investigate, the possibility of collusion,
the risk of pressures on witnesses, and the preservation of public
order.[336]
The validity of any justification must be interpreted in light of a
defendant’s right to be tried within a reasonable time or to be
released, as well as the right to the presumption of innocence which
requires that the duration of preventative detention not exceed a
reasonable period of time.[337]
124.
This Commission, like other international human rights bodies,
has recognized that the deprivation of an individual’s liberty may
also be justified in connection with the administration of state
authority beyond the investigation and punishment of crimes where
measures of this nature are strictly necessary. Such circumstances have
been held to include detention in the context of controlling the entry
and residence of aliens in their territories and confinement for reasons
relating to physical or mental health.[338]
While deprivations of liberty may be permissible in situations of this
nature, the Commission has emphasized that any such detention must in
all circumstances comply with the requirements of preexisting domestic
and international law. As described above, these include the requirement
that the detention be based on the grounds and procedures clearly set
forth in the constitution or other law and that it be demonstrably
necessary, fair and non-arbitrary. Detention in such circumstances must
also be subject to supervisory judicial control without delay and, in
instances when the state has justified continuing detention, at
reasonable intervals.[339]
125.
In the case of asylum seekers in particular, the Commission notes
that detention or other restrictions on the movement of asylum seekers
are permitted only as exceptions under applicable refugee and human
rights law, and then only pursuant to law and subject to due process
protections.[340]
Measures aimed at the automatic detention of asylum seekers are
therefore impermissible under international refugee protections. They
may also be considered arbitrary and, depending upon the characteristics
of persons affected by any such restrictions, potentially discriminatory
under international human rights law. 126.
According to applicable human rights instruments and
inter-American jurisprudence, the right to liberty may be the subject of
derogation in times of emergency. At the same time, a state’s ability
to suspend this right in such circumstances has been strictly and
narrowly defined by the supervisory organs of this and other human
rights systems.[341]
In particular, the Inter-American Court has ruled that Article 7(6) of
the Convention, reproduced above, proclaims and governs the remedy of habeas
corpus which, in the Court’s view “performs a vital role in
ensuring that a person’s life and physical integrity are respected, in
preventing his disappearance or the keeping of his whereabouts secret
and in protecting him against torture or other cruel, inhumane or
degrading punishment or treatment.“[342]
In light of the fundamental nature of habeas
corpus in this regard, the Court has concluded that the judicial
guarantees essential for the protection of the human rights not subject
to derogation under Article 27(2) of the American Convention include
those expressly referred to in Article 7(6) of the Convention.[343]
Accordingly, while the right to personal liberty and security is
derogable, the right to resort to a competent court under Article 7(6),
which by its nature is necessary to protect non-derogable rights during
criminal or administrative detention, such as the right to humane
treatment, may not be the subject of derogation in the inter-American
system. 127.
The Commission has held that there are other components of the
right to liberty that can never be denied, including underlying
principles that law enforcement authorities must observe in making an
arrest even during an emergency.[344]
In this regard, the Commission, together with other international
authorities, have also endeavored to identify additional fundamental
standards for the protection of detainees that may not be suspended even
in permissible situations of derogation in emergency situations that
threaten 128.
Where the arrest, commitment to prison or custody pending trial,
or detention in any other manner of foreign nationals is concerned,
international jurisprudence, including that of the inter-American human
rights system, has recognized the importance of compliance with
international obligations aimed at protecting the particular interests
of foreign nationals in these situations. These obligations include the
requirements of Article 36 of the Vienna Convention on Consular
Relations, which provides: 1.
With a view to facilitating the exercise of consular functions
relating to nationals of the sending State: (a)
consular officers shall be free to communicate with nationals of
the sending State and to have access to them. Nationals of the sending
State shall have the same freedom with respect to communication with and
access to consular officers of the sending State; (b)
if he so requests, the competent authorities of the receiving
State shall, without delay, inform the consular post of the sending
State if, within its consular district, a national of that State is
arrested or committed to prison or to custody pending trial or is
detained in any other manner. Any communication addressed to the
consular post by the person arrested, in prison, custody or detention
shall also be forwarded by the said authorities without delay. The said
authorities shall inform the person concerned without delay of his
rights under this sub-paragraph; (c)
consular officers shall have the right to visit a national of the
sending State who is in prison, custody or detention, to converse and
correspond with him and to arrange for his legal representation. They
shall also have the right to visit any national of the sending State who
is in prison, custody or detention in their district in pursuance of a
judgment. Nevertheless, consular officers shall refrain from taking
action on behalf of a national who is in prison, custody or detention if
he expressly opposes such action. 2.
The rights referred to in paragraph 1 of this Article shall be
exercised in conformity with the laws and regulations of the receiving
State, subject to the proviso, however, that the said laws and
regulations must enable full effect to be given to the purposes for
which the rights accorded under this Article are intended.[347]
129.
These provisions have been described as establishing an
interrelated regime designed to facilitate the implementation of the
system of consular protection of foreign nationals in states party to
the treaty.[348]
A state party to this treaty is obliged to inform foreign nationals who
are detained in any manner by that state of his or her right to have the
consulate of their state notified of the detainees’ circumstances and
to communicate with his or her consulate. These requirements also
contain no provision for derogation. The right to consular notification
has also been recognized as significant to the due process and other
rights of detainees by, for example, providing potential assistance with
various defense measures such as legal representation, gathering of
evidence in the country of origin, verifying the conditions under which
the legal assistance is provided and observing the conditions under
which the accused is being held while in prison.[349]
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[300]
Neira Alegría Case, supra
note 6. See also
IACHR Report on Colombia (1999), supra
note 110, at 73, para. 8. [301]
Neira Alegría Case, supra
note 6, para. 75, (referring to Velásquez Rodríguez Case, supra
note 249, para. 154 and to Godínez Cruz Case, supra
note 249, para. 162.) [302]
Abella Case, supra note 73,
paras. 158 and 161 (footnotes omitted). See
also IACHR Report on
Colombia (1999), supra note
110, at 75, para. 12. See also
Coard et al. Case, supra
note 73, para 39. [303]
See Meron, The
Humanization of Humanitarian Law, supra
note 189, at 272, citing Eur. Ct. H.R., Ergi v. Turkey, 28 July 1998,
Reports of Judgments and Decisions 1998-IV Nº 81, paras. 79, 81, 86,
Eur. Ct. H.R. , McCann v. United Kingdom, 27 September 1995, Ser. A.
324, paras. 194, 200, 213 (1995); Hildegard María Feldman Case, supra
note 140; Neira Alegría Case, supra
note 6, paras. 74-76. [304]
See supra
Part I(A), para. 92. [305]
Additional Protocol I, supra
note 68, Article 51(5)(b). [306]
US Air Force Pamphlet Nº 110-31, International Law – The Conduct of
Armed Conflict and Air Operations 1-6, para. 1-3(a)(2) (1976). [307]
See supra,
Part II(C), para. 65. [308]
Nevertheless, it should be recalled that, in accordance with the
principles of humanity and necessity, the means and methods of war
employed during attacks on combatants may not cause unnecessary
suffering, see supra para. 65 and para. 100.
[309]
See supra,
Part II(C), para. 66. [310]
See supra,
Part III(A), para. 87. [311]
See supra,
Part II(C), para. 66. [312]
See supra,
Part III(A), para. 90. [313]
IACHR Report on Colombia (1999), supra
note 110, at 75, Ch. IV, para. 12. [314]
American Convention on Human Rights, supra
note 64, Article 4 (3). [315]
American Convention on Human Rights, supra
note 64, Article 4(2). [316]
See infra Part III(D). [317]
See Hilaire, Constantine
and Benjamin et al. Case, supra
note 272, paras. 85-118; Michael Edwards et
al. Case, supra note
102, paras 124-154,
164-165 and 175. See also
Desmond McKenzie Case, supra
note 272, paras. 194-200. [318]
American Convention on Human Rights, supra
note 64, Article 4(4). [319]
See, e.g., Inter-American
Convention Against Terrorism, supra
note 8, Article 11. [320]
See, e.g.,
American Convention on Human Rights, supra
note 64, Article 4(5) (prohibiting the execution of pregnant women or
persons who, at the time the crime was committed, were under 18 or
over 70 years of age).
See similarly
Advisory Opinion OC-3/83, supra
note 245, paras. 53 et seq.
See also
Fourth Geneva Convention, supra
note 36,
Article 68; Additional Protocol I, supra
note 68, Articles 75, 77; Additional Protocol II, supra
note 36, [321]
American Convention on Human Rights, supra
note 64, Article 4 (6); IACHR Report on Chile (1985), supra
note 114, at 50,
para. 22. The procedures to make such applications must
comply with the rule of procedural fairness; see Desmond
McKenzie Case, supra note
272, paras 228-232. See also
Fourth Geneva Convention, supra
note 36, Article 75. [322]
See infra, Part III(D),
paras. 247-248, 259. [323]
Concerning distinctions in the standards of impartiality and
independence applicable to civilians and members of the military, see infra,
Part III(D), para. 256. [324]
See
supra,
Part III(A), paras. 94 and following and paras. 104 and following. [325]
Universal Declaration of Human Rights, supra
note 65, Article 9 (“No one shall be subjected to arbitrary arrest,
detention or exile”). [326]
International Covenant on Civil and Political Rights, supra
note 66, Article 9 (“1. Everyone has the right to liberty and
security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by
law. 2. Anyone who is arrested shall be informed, at the time of
arrest, of the reasons for his arrest and shall be promptly informed
of any charges against him. 3. Anyone arrested or detained on a
criminal charge shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release. It shall not
be the general rule that persons awaiting trial shall be detained in
custody, but release may be subject to guarantees to appear for trial,
at any other stage of the judicial proceedings, and, should occasion
arise, for execution of the judgement. 4. Anyone who is deprived of
his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that court may decide without
delay on the lawfulness of his detention and order his release if the
detention is not lawful. 5. Anyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to
compensation”). [327]
UN Convention on the Rights of the Child, supra
note 122, Article 37 (“States Parties shall ensure that: […] (b)
No child shall be deprived of his or her liberty unlawfully or
arbitrarily. The arrest, detention or imprisonment of a child shall be
in conformity with the law and shall be used only as a measure of last
resort and for the shortest appropriate period of time;(c)
Every child deprived of liberty shall be treated with humanity and
respect for the inherent dignity of the human person, and in a manner
which takes into account the needs of persons of his or her age. In
particular, every child deprived of liberty shall be separated from
adults unless it is considered in the child's best interest not to do
so and shall have the right to maintain contact with his or her family
through correspondence and visits, save in exceptional circumstances; (d)
Every child deprived of his or her liberty shall have the right to
prompt access to legal and other appropriate assistance, as well as
the right to challenge the legality of the deprivation of his or her
liberty before a court or other competent, independent and impartial
authority, and to a prompt decision on any such action”). [328]
For a discussion of the requirements of trial within a reasonable
time, see infra Part III(D),
para. 234. [329]
See supra Part III(C). [330]
See, e.g., IACHR, Fifth
Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.111
doc. 21 rev., 6 April 2001, Chapter VII, para. 37 [hereinafter IACHR
Report on Guatemala (2001)], citing
Case 11.245, Report Nº 12/96, Jorge Alberto Giménez (Argentina),
Annual Report of the IACHR 1995; I/A Court H.R., Suárez
Rosero Case, Judgment of November 12, 1997, Ser. C Nº 35, para.
43. [331]
The Inter-American Court has indicated, for example, that unless it is
demonstrated that an individual was apprehended in
flagrante delicto, his or her arrest must be shown to have been
effected with a warrant issued by a competent judicial authority. Suárez
Rosero Case, supra note
330, para. 44. [332]
Case 11.205, Report Nº 2/97, Jorge Luis Bronstein and others
(Argentina), Annual Report of the IACHR 1997, para. 11. See
similarly Case 12.069, Report Nº 50/01, Damion Thomas (Jamaica),
Annual Report of the IACHR 2000, paras. 37, 38. [333]
IACHR Report on Guatemala (2001), supra
note 330, Ch. VII, para. 37. [334]
See, e.g., Desmond McKenzie
Case, supra note 272, paras.
248-251. See similarly
Human Rights Committee, General Comment 8, Article 9 (Sixteenth
session, 1982), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1
at 8 (1994) [hereinafter UNHRC General Comment Nº
8],
para. 2; Eur. Court H.R., Brogan and Other v. United Kingdom, Judgment
of November 29, 1988, Ser. A Nº
145B, [335]
Ten Years of Activities, supra note
1, at 317. See similarly UN
Standard Minimum Rules for the Treatment of Prisoners, August 30,
1955, First UN Congress on the Prevention of Crime and the Treatment
of Offenders, UN Doc. A/CONF/611, annex I, E.S.C. res. 663c, 24 UN
ESCOR Supp. (Nº 1) at 11, UN Doc. E/3048 (1957), amended E.S.C. Res.
2076, 62 UN ESCOR Supp. (Nº 1) at 35, UN Doc E/5988 (1977), Rule 7
[hereinafter UN Standard Minimum Rules for the Treatment of
Prisoners]; Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, UN GAOR Res. 43/173, 43rd
Session, 76th plenary meeting, 9 December 1988, 43 UN GAOR Supp. (Nº
49) at 298, UN Doc. A/43/49 (1988) [hereinafter UN Body of Principles
on Detention or Imprisonment], Principle 12. [336]
Bronstein Case, supra note
332, paras. 26-37. [337]
Bronstein Case, supra note
332, paras. 11, 12, 24, 25. [338]
Ferrer-Mazorra et al. Case,
supra note 114, para. 210,
citing IACHR, Report on the Situation of Human Rights of Asylum
Seekers within the Canadian Refugee Determination System, OEA/Ser.L/V/II.106,
Doc. 40 rev., February 28, 2000, paras. 134-142 [IACHR, Report on
Canada (2000)]; Eur. Court H.R., Winterwerp Case, (1979) 2 E.H.R.R.
387. See also Eur. Court H.R., Amuur v. France (1996) E.H.R.R.
553, para. 53. [339]
Ferrer-Mazorra et al. Case,
supra note 114, para. 212. See
similarly UNHRC, A. v. Australia, Communication Nº 560/1993, CCPR/C/59/D/560/1993,
30 April 1997, para. 9.4. [340]
UN Convention on the Status of Refugees, supra
note 120, Article 26 (“Each Contracting State shall accord to
refugees lawfully in its territory the right to choose their place of
residence and to move freely within its territory subject to any
regulations applicable to aliens generally in the same
circumstances”). See also
Ferrer-Mazorra et al. Case,
supra note 114, paras.
210-212. [341]
See, e.g., Ten Years of
Activities, supra note 1,
at 318 (urging all OAS member states to “limit detention carried out
under the states of emergency to a brief period of time and always
subject to judicial review). See
similarly Brogan Case, supra
note 334, paras. 61-62. [342]
Advisory Opinion OC-8/87, supra
note 147, para. 35. See also
I/A Court H.R., Advisory Opinion OC-9/87, Judicial
Guarantees in States of Emergency (Articles 27(2), 25 and 8 of the
American Convention on Human Rights), October 6, 1987, Ser. A Nº
9, para. 31. [343]
Advisory Opinion OC-8/87, supra
note 147, para. 42; Advisory Opinion OC-9/87, supra
note 342, para. 38. In the Court’s view, “in a system governed by
the rule of law it is entirely in order for an autonomous and
independent judicial order to exercise control over the lawfulness of
such measures by verifying, for example, whether a detention based on
the suspension of personal freedom complies with the legislation
authorized by the state of emergency.” Advisory Opinion OC-8/87, supra
note 147, para. 40. See
similarly UNHRC General Comment Nº 29, supra note 141,
paras. 14-16. [344]
Asencios Lindo et al. Case,
supra note 6, para. 85. [345]
For a discussion of the conclusions of the Commission and other
authorities on non-derogable protections relating to the right to
personal liberty and security, see Ten Years of Activities, supra
note 1, at 317-318, 342; Organization of American States, GA Res.
510, Nº 13, reproduced in Annual Report of the IACHR 1980-81, supra
note 141; IACHR Report on Argentina (1980), supra
note 27, at 24-27; IACHR Report on Colombia (1981),
supra note 27, at 15-18. See
similarly UNHRC General Comment Nº 29, supra
note 141, para. 16; International
Commission of Jurists, States of Emergency: Their Impact on Human
Rights (Geneva, 1983), p. 461-463, Nos. 21, 22, 23, 24, 26, 29,
34, 36 [hereinafter International
Commission of Jurists, States of Emergency]; International Law
Association, Paris, Minimum Standards of Human Rights Norms in a State
of Emergency, reproduced in R. Lillich, Current
Developments: The Paris Minimum Standards of Human Rights in a State
of Emergency, 79 Am.
J. Int’l L. 651 (1985), p. 75 [hereinafter Paris Minimum
Standards]; The Siracusa Principles on the Limitation and Derogation
Provisions of the ICCPR, Hum.
Rgts. Q., 7 (1985), pp. 3-130, Principles 70(e)–(g),
Principle 70 [hereinafter Siracusa Principles]; Nicole Questiaux, Study
of the implications for human rights of recent developments concerning
situations known as states of siege or emergency, United
Nations Commission on Human Rights, ECOSOC, Sub-Commission on
Prevention of Discrimination and Protection of Minorities,
E/CN.4/Sub.2/1982/15, 27 July 1982, p. 45 [hereinafter Questiaux
Report]. [346]
The Commission has, for example, determined to be contrary per se
to Articles 7(5) and 8(2)(f) of the American Convention on Human
Rights a law authorizing the extension of incommunicado preventative
detention in certain cases for up to 15 days. Asencios Lindo et
al. Case, supra note 6,
para. 85. See similarly Eur. Court H.R., Case of Aksoy v.
Turkey, Judgment of 18 December 1996, Report of Judgments and
Decisions 1996-VI, Nº 26, para. 78. [347]
Vienna Convention on Consular Relations, supra
note 124, Article 36. [348]
ICJ, LaGrand Case (Germany v.
United States), June 27, 2001, ICJ General [349]
See Advisory Opinion
OC-16/99, supra note 129,
paras. 56, 57. Other international authorities have similarly
recognized the importance of facilitating consular assistance for the
protection of foreign nationals under any form of arrest, detention or
imprisonment. See UN Body
of Principles on Detention or Imprisonment, supra
note 35, Principle 16(2) (providing that “[i]f a detained or
imprisoned person is a foreigner, he shall also be promptly informed
of his right to communicate by appropriate means with a consular post
or the diplomatic mission of the State of which he is a national or
which is otherwise entitled to receive such communication in
accordance with international law or with the representative of the
competent international organization, if he is a refugee or is
otherwise under the protection of an intergovernmental
organization”); ICTY, Rules governing the detention of persons
awaiting trial or appeal before the Tribunal or otherwise detained on
the authority of the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the former Yugoslavia
since 1991, 5 May 1994, as amended on 29 November 1999, IT/38/REV.,
Rule 65 [hereinafter ICTY Rules of Detention]; UN GA Res. A/RES/40/144,
annex, 40 U.N. GAOR Supp. (Nº 53) at 252, UN Doc. A/40/53
“Declaration on the human rights of individuals who are not
nationals of the country in which they live”, 13 December 1985
[hereinafter Declaration on the human rights of individuals who are
not nationals of the country in which they live], Article 10 (“Any
alien shall be free at any time to communicate with the consulate or
diplomatic mission of the State of which he or she is a national or,
in their absence, with the consulate or diplomatic mission of any
other state entrusted with the protection of the interests of the
State of which he or she is a national in the State where he or she
resides”). |
