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3. Right to Humane Treatment and Terrorism

201. In the context of state responses to terrorist violence, the above-mentioned guarantees governing the right to humane treatment are particularly relevant in several potential situations, including the treatment and interrogation of suspected terrorists during and after their capture by state agents, and, as discussed in Part III(H), the detention and removal of aliens, including women and children.

202. As with other categories of human rights, where individuals fall under the authority and control of the state in situations outside of armed conflict, their treatment is governed exclusively by international human rights law. Where an armed conflict is underway, however, the treatment of detainees and others is also subject to international humanitarian law. Further, in the context of international armed conflicts, a preliminary issue arises concerning the status of detainees under the 1949 Geneva Conventions, which has implications for the nature of the treatment to which the individuals may be entitled, including in particular distinct treatment to be afforded to prisoners of war and civilians subject to internment.[506]

203. Accordingly, when individuals have committed belligerent acts and have fallen into the hands of the enemy in the context of an international armed conflict and a doubt arises as to their entitlements to prisoner of war status, a competent tribunal should determine the status of the detainees.[507] This is the case whether or not the individuals are suspected to have engaged in acts of terrorism. Until the status of the detainees has been determined by a competent tribunal, they should be afforded prisoner of war status[508] or a similar protection.[509]

204. On this matter, it should be recalled that a prisoner of war is immune from criminal prosecution under the domestic law of his captor for his hostile acts that do not violate the laws and customs of war. This immunity does not, however, extend to acts that transgress the rules of international law applicable in armed conflict.[510]

205. Notwithstanding the importance of ascertaining the status of persons falling into the hands of an adversary in international armed conflict situations, however, it is also significant to recognize that the regimes of human rights law and of international humanitarian law each provides for minimal and non-derogable requirements dealing with the humane treatment of all persons held under the authority and control of the state. While the humanitarian law protections governing international armed conflicts in particular provide for a specific and detailed lex specialis that must inform the right to humane treatment of victims of such conflicts, it is notable that many of the fundamental rules and principles under this regime are similar to those applicable outside of international armed conflicts, particularly with respect to the conditions under which individuals may be detained and interrogated. A discussion of these similar requirements and their corresponding sources under international human rights and humanitarian law is provided below.

206. Specifically with regard to conditions of detention, as individuals may be detained either before any criminal charges have been brought against them, untried prisoners should be kept separate from convicted prisoners.[511] In addition, men and women should be detained in separate institutions or in separate parts of a same institution,[512] and children should be detained in institutions or parts of the same institution separate from adults.[513]

207. The facilities in which detainees are kept must also respect minimum physical attributes. Under no circumstances may detainees be held in locations that would endanger their lives or physical and mental health.[514] Detainees should be kept in buildings or quarters which afford every possible safeguard as regards hygiene and health, and provide efficient protection against the climate.[515] In addition, the premises are to be protected from dampness, adequately heated and lighted, and sleeping quarters are to be sufficiently spacious and well ventilated. The detainees are to have suitable bedding and blankets considering the climate, and the personal characteristics of the detainees. They should have access to sanitary conveniences sufficiently hygienic and clean.[516] The detainees should have adequate water, food, clothing and necessary medical attention.[517] Any transfer or evacuation of detainees must be effected humanely.[518]

208. While civilian courts are charged with supervising human rights protections in times of peace and states of emergency, the Third and Fourth Geneva Conventions provide the Protecting Powers[519] and, with the consent of the Detaining Power concerned, the International Committee of the Red Cross, with roles in supervising the detention and treatment of prisoners of war and civilian internees during international armed conflict. The ICRC may also play a similar role in the context of a non-international armed conflict.[520] However, as noted in Part III(C) concerning the right to personal liberty and security,[521] 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.

209. Detainees who are subject to disciplinary or penal sanctions are to be afforded similar detention conditions, treated humanely at all times and never subjected to torture or inhumane treatment.[522] In particular, corporal punishments, prolonged periods of time in solitary confinement and the placing of detainees in dark cells are prohibited.[523] Instruments of restraint, such as handcuffs, chains, irons and strait-jacket, shall never be applied as a punishment, as they constitute prohibited corporal punishments.[524] Any treatment of additional surveillance or restraint on the detainees may never affect the detainees’ health and are to be used exceptionally in accordance with the principles of necessity and proportionality.[525]Treatments that could potentially endanger the detainees’ health are to be supervised by medical officers and prohibited if they actually endanger the health of the detainees.[526]

210. The interrogation of individuals suspected of having committed terrorist activities is also strictly limited by both international human rights and humanitarian law standards relative to the right to humane treatment and the absolute prohibition of torture.[527]

211. Accordingly, all methods of interrogation that may constitute torture or other cruel, inhuman or degrading treatment are strictly prohibited. This could include severe and deliberate mistreatment causing very serious and cruel suffering, such as severe beatings,[528] suspending prisoners in humiliating and painful ways,[529] rape[530] and sexual aggression,[531] electric shocks, [532] suffocation, [533] burns[534] and the extraction of fingernails or teeth.[535]

212. In addition, while each case must be evaluated on its own circumstances, torture or other cruel, inhumane or degrading treatment could include more subtle treatments that have nevertheless been considered sufficiently cruel, such as exposure to excessive light or noise, administration of drugs in detention or psychiatric institutions, prolonged denial of rest or sleep, food, sufficient hygiene, or medical assistance, total isolation and sensory deprivation.[536]

213. Acts constituting other cruel, inhuman or degrading punishment or treatment are also strictly prohibited. As discussed above, conduct of this nature could include death threats,[537] prolonged incommunicado detention,[538] and deprivation of sleep.[539]

214. Finally, it should be emphasized that although detainees may be interrogated, they may not be compelled to be a witness against themselves, to plead guilty or to confess.[540] Moreover, in situations of international armed conflict, a prisoner of war under interrogation is not only entitled to the right against self-incrimination, but is only bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information, and cannot be compelled to answer any other question, or to give information other than that listed above.[541]

215. Applicable international law norms may also have implications with respect to the detention and removal of immigrants, including those suspected of terrorist activity. Further discussion in this regard is provided in Part III(H) below concerning the situation of migrant workers, asylum seekers, refugees and other non-nationals.

216. It should be emphasized that notwithstanding the threat or gravity of a situation of terrorist violence, and regardless of whether it arises in the context of armed conflict, the right to humane treatment is a non-derogable right under Article 27(2) of the American Convention and Article 5 of the Inter-American Torture Convention.[542] More specifically, the prohibition against torture constitutes a peremptory norm of international law,[543] and therefore may not be suspended or restricted under any circumstances.

D. Rights to Due Process of Law and to a Fair Trial

1. International Human Rights Law

217. Within the inter-American human rights system, the rights to due process of law and to a fair trial are prescribed principally in Articles XVIII and XXVI of the American Declaration and Articles 8 and 9 of the American Convention on Human Rights, which provide as follows:

American Declaration

XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.

XXVI. Every accused person is presumed to be innocent until proved guilty. Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.

American Convention

8.1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. 2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court; b. prior notification in detail to the accused of the charges against him; c. adequate time and means for the preparation of his defense; d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; g. the right not to be compelled to be a witness against himself or to plead guilty; and h. the right to appeal the judgment to a higher court. 3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind. 4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause. 5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.

9. No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.

218. As is evident from the above texts, which mirror protections provided for in other regional and international human rights instruments,[544] these provisions guarantee fundamental substantive and procedural protections in the determination of accusations of a criminal nature. As discussed in further detail below, these protections are defined to encompass certain fundamental principles of criminal law, including the right to be presumed innocent, and the nullum crimen sine lege, nulla poena sine lege, and non-bis-in-idem principles. Also guaranteed are the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, and a non-exhaustive enumeration of due procedural guarantees that are considered essential to a fair hearing.

219. The rules and principles embodied in the above protections are relevant not only to criminal proceedings, but also, mutatis mutandis, to other proceedings through which rights and obligations of a civil, labor, fiscal or other nature are determined.[545] As will be elaborated upon in Part III(H) below, non-criminal proceedings to which certain due process protections have been found to apply in this and other human rights systems include procedures concerning the detention, status or removal of non-nationals.[546]

220. It should also be observed at this stage that certain multilateral conventions that address efforts to combat terrorism and its various manifestations specifically provide that individuals accused of crimes relating to terrorism must be afforded the legal guarantees of due process in any proceedings taken against them.[547]

221. According to the jurisprudence of the inter-American human rights system, as articulated through opinions and judgments of the Inter-American Court of Human Rights and special and individual case reports of the Commission, the components of the requirements of fair trial and to due process of law entail certain essential requirements and restrictions. Several of the most pertinent of these attributes are discussed below.

a. Fundamental Principles of Criminal Law

222. Among the most fundamental principles governing criminal prosecutions that are afforded protection under international human rights law are the presumption of innocence, the non-bis-in-idem principle, and the nullum crimen sine lege and nulla poena sine lege principles, as well as the precept that no one should be convicted of an offense except on the basis of individual penal responsibility.[548] The inclusion of these principles in international human rights and humanitarian law instruments, the statutes governing international criminal tribunals,[549] and the domestic law of states[550] suggest that they are broadly considered to constitute general principles of criminal law.

223. The Commission has long emphasized the axiomatic nature of the presumption of innocence to criminal proceedings, and has called upon states to ensure that it is expressly provided for in their domestic laws.[551] It is notable that this presumption can be considered violated where a person is held in connection with criminal charges for a prolonged period of time in preventative detention without proper justification, for the reason that such detention becomes a punitive rather than precautionary measure that is tantamount to anticipating a sentence.[552]

224. Also central to fair criminal processes is the non-bis-in-idem principle, which has been described by the Inter-American Court in the context of Article 8(4) of the American Convention as intending to protect the rights of individuals who have been tried for specific facts from being subjected to a new trial for the same cause.[553] In this connection, the Court has counted among the circumstances that will preclude a new trial proceedings in which a tribunal has taken cognizance of the facts, circumstances and evidence relating to the alleged acts, evaluated them, and ruled on acquittal.[554]

225. The nullum crimen sine lege and nulla poena sine lege principles, often referred to jointly as the principle of legality, prohibit states from prosecuting or punishing persons for acts or omissions that did not constitute criminal offenses, under applicable law, at the time they were committed. The human rights organs of the inter-American system have also interpreted the principle of legality as requiring crimes to be defined in unambiguous terms.[555] According to this requirement, crimes must be classified and described in precise and unambiguous language that narrowly defines the punishable offense. This in turn requires a clear definition of the criminalized conduct, establishing its elements and the factors that distinguish it from behaviors that are either not punishable offenses or are punishable by other penalties.[556] As the Inter-American Court has observed, “[a]mbiguity in describing crimes creates doubts and the opportunity for abuse of power, particularly when it comes to ascertaining the criminal responsibility of individuals and punishing their criminal behavior with penalties that exact their toll on the things that are most precious, such as life and liberty.”[557] Connected with these principles is a general prohibition on the imposition of a heavier penalty than the one that was applicable at the time the criminal offense was committed, as well as the right to benefit from the imposition of a lighter punishment if one is provided for by law subsequent to the commission of the offense.[558]

226. These principles are particularly significant in the context of domestic laws that prescribe crimes relating to terrorism. The Commission and the Court have previously found certain domestic anti-terrorism laws to violate the principle of legality because, for example, those laws have attempted to prescribe a comprehensive definition of terrorism that is inexorably overbroad and imprecise, or have legislated variations on the crime of “treason” that denaturalizes the meaning of that offense and creates imprecision and ambiguities in distinguishing between these various offenses.[559] The Commission also observes in this regard 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.[560] Other states 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.[561] 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.[562]

227. Finally, criminal prosecutions must comply with the fundamental requirement that no one should be convicted of an offense except on the basis of individual penal responsibility, and the corollary to this principle that there can be no collective criminal responsibility.[563] This requirement has received particular emphasis in the context of post-World War II criminal prosecutions, owing in large part to international public opposition to convicting persons based solely upon their membership in a group or organization.[564] This restriction does not, however, preclude the prosecution of persons on such established grounds of individual criminal responsibility such as complicity, incitement, or participation in a common criminal enterprise, nor does it prevent individual accountability on the basis of the well-established superior responsibility doctrine.[565]

b. Right to a Hearing by a Competent, Independent and Impartial Tribunal previously established by Law

228. The right to trial by a competent, independent and impartial tribunal previously established by law has been interpreted by the Commission and the Inter-American Court as entailing certain conditions and standards that must be satisfied by tribunals charged with judging the substantiation of any accusation of a criminal nature or with the determination of a person’s right and obligations of a civil, fiscal, labor or other nature. Much of the existing inter-American jurisprudence in this area has developed through the consideration and condemnation of certain specific practices by which member states have endeavored to respond to terrorist and other threats and which have been found to fall short of these conditions and standards.

229. Underlying this aspect of the right to a fair hearing are the fundamental concepts of judicial independence and impartiality, which, like the principles of criminal law canvassed above, are broadly considered indispensable to the proper administration of justice and the protection of fundamental human rights.[566] The requirement of independence in turn necessitates that courts be autonomous from the other branches of government, free from influence, threats or interference from any source and for any reason, and benefit from other characteristics necessary for ensuring the correct and independent performance of judicial functions, including tenure and appropriate professional training.[567] The impartiality of a tribunal must be evaluated from both a subjective and objective perspective, to ensure the absence of actual prejudice on the part of a judge or tribunal as well as sufficient assurances to exclude any legitimate doubt in this respect. These requirements in turn require that a judge or tribunal not harbor any actual bias in a particular case, and that the judge or tribunal not reasonably be perceived as being tainted with any bias.[568]

230. In the context of these fundamental requirements, the jurisprudence of the inter-American system has long denounced the creation of special courts or tribunals that displace the jurisdiction belonging to the ordinary courts or judicial tribunals and that do not use the duly established procedures of the legal process.[569] This has included in particular the use of ad hoc or special courts or military tribunals to prosecute civilians for security offenses in times of emergency, which practice has been condemned by this Commission, the Inter-American Court and other international authorities. The basis of this criticism has related in large part to the lack of independence of such tribunals from the Executive and the absence of minimal due process and fair trial guarantees in their processes.[570]

231. It has been widely concluded in this regard that military tribunals by their very nature do not satisfy the requirements of independent and impartial courts applicable to the trial of civilians, because they are not a part of the independent civilian judiciary but rather are a part of the Executive branch, and because their fundamental purpose is to maintain order and discipline by punishing military offenses committed by members of the military establishment. In such instances, military officers assume the role of judges while at the same time remaining subordinate to their superiors in keeping with the established military hierarchy.[571]

232. This is not to say that military tribunals have no place within the military justice systems of member states. The Inter-American Court and this Commission have recognized in this connection that military courts can in principle constitute an independent and impartial tribunal for the purposes of trying members of the military for certain crimes truly related to military service and discipline and that, by their nature, harm the juridical interests of the military, provided that they do so with full respect for judicial guarantees.[572] Military tribunals may not, however, be used to try violations of human rights or other crimes that are not related to the functions that the law assigns to military forces and that should therefore be heard by the regular courts.[573] Military tribunals are also precluded from prosecuting civilians, although certain human rights supervisory bodies have found that in exceptional circumstances military tribunals or special courts might be used to try civilians but only where the minimum requirements of due process are guaranteed.[574] During armed conflicts, a state’s military courts may also try privileged and unprivileged combatants, provided that the minimum protections of due process are guaranteed. Article 84 of the Third Geneva Convention, for example, expressly provides that

[a] prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offense alleged to have been committed by the prisoner of war. In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.).[575]

Although the provisions of international humanitarian law applicable to unprivileged combatants, including Article 75 of Additional Protocol I, do not specifically address the susceptibility of such combatants to trial by military courts, there appears to be no reason to consider that a different standard would apply as between privileged and unprivileged combatants. In any event, the standards of due process to which unprivileged combatants are entitled may in no case fall below those under Article 75 of Additional Protocol I.

233. Another practice denounced by the organs of the inter-American human rights system as contrary to the right to be tried by a competent, independent and impartial tribunal is the use of “faceless” justice systems, principally because the anonymity of the prosecutors, judges and witnesses deprives the defendant of the basic guarantees of justice.[576] A defendant in such circumstances does not know who is judging or accusing him or her and therefore cannot know whether that person is qualified to do so, nor may he or she know whether there exists any basis to request recusal of these authorities based upon incompetence or lack of impartiality. The defendant is also prevented from carrying out any effective examination of the opposing witnesses, as he or she does not possess any information regarding the witnesses’ background or motivations and does not know how the witness obtained information about the facts in question.[577] For these reasons, the use of systems of secret justice have been found by the Inter-American Court and the Commission to constitute a flagrant violation of the guarantee essential to due process, to be judged by an independent and impartial judge or court as well as the guarantee regarding publicity for criminal trials.[578] At the same time, as discussed in the section below concerning derogation from the right to a fair trial, it must be recognized that efforts to investigate and prosecute crimes, including terrorist crimes, may render judges and others involved in the administration of justice vulnerable to threats to their lives or integrity. Indeed, states are obliged to take all necessary measures to prevent violence against judges, lawyers and others involved in the administration of justice.[579] This may in turn require that certain exceptional measures be taken to protect the life, physical integrity and independence of judges on a case by case basis, always providing, however, that the nature or implementation of such measures does not compromise a defendant’s non-derogable fair trial guarantees, including the right to a defense and the right to be tried by a competent, independent and impartial tribunal.

c. Right to Trial within a Reasonable Time

234. The fundamental components of the right to due process and to a fair trial also include the right to a hearing within a reasonable time. While the concept of reasonable time is not easy to define, certain prerequisites have been articulated in this and other human rights systems that are considered necessary to give proper effect to this right. It has been held in particular that the concept of reasonable time encompasses the entire proceeding at issue, from the first act of the process until a final and firm judgment is delivered, including any appeals that may be filed.[580] The reasonableness of the length of proceedings is to be evaluated in light of the specific circumstances of the case, considering in particular the complexity of the matter, the conduct of the interested party, and the conduct of the authorities.[581] The fact that a judicial system is overburdened or has inadequate resources cannot in itself justify lengthy delays in criminal processes in light of the obligation of states to regulate the elements of their criminal procedural machinery to ensure that individuals are tried within a reasonable time.[582] Further, in certain cases a prolonged delay in itself can constitute a violation of the right to a fair trial, where a state has failed to provide an explanation and proof as to why it has taken more time than normally required to issue a final judgment in a particular case.[583] The Commission has observed that a pattern of unreasonable delays in the prosecution of suspected human rights violations contributes to a climate of impunity for those crimes.[584]

d. Right to Due Guarantees of a Fair Trial

235. International human rights law requires that a hearing before a competent, independent and impartial tribunal, in order to be fair, must be accompanied by certain due guarantees that afford a person a proper and effective opportunity to defend against any charges levied against him or her. While the governing principle in any proceeding must always be fairness, and while additional guarantees may be necessary in specific circumstances to ensure a fair hearing,[585] the most essential protections have been articulated as including the right of the accused to prior notification in detail of the charges against him or her, the right to defend himself or herself personally or to be assisted by legal counsel of his or her own choosing or free of charge where the requirements of fairness so require, and the right to communicate freely and privately with counsel. These protections also include the right to adequate time and means for the preparation of his or her defense, to examine witnesses present in the court, and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts. Further, a defendant must not be compelled to be a witness against himself or herself or to plead guilty, and must be afforded the right to a public trial and the right to appeal the judgment to a higher court. In cases where the defendant does not understand or speak the language of the court or tribunal he or she must be assisted without charge by a translator or interpreter.

236. Certain aspects of these protections warrant further comment. Foremost among the procedural rights of an accused is the right to be assisted by legal counsel of one’s choosing and, under appropriate circumstances, to be assisted by counsel provided free of charge where the interests of fairness so require.[586] Both the Commission and the Inter-American Court have observed in this respect that in criminal proceedings and those relating to rights and obligations of a civil, labor, fiscal or any other nature, an indigent has the right to legal counsel free of charge where such assistance is necessary for a fair hearing. Among the factors that bear on the determination of whether free legal representation is necessary for a fair hearing are the significance of a legal proceeding, its legal character, and its context in a particular legal system.[587]

237. The right to assistance of counsel is in turn intimately connected with the right of a defendant to adequate time and means for the preparation of his or her defense,[588] which requires that all arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality.[589] This right, together with the right of a defendant not to make a confession of guilt under coercion of any kind,[590] also entail a defendant’s prerogative to have a lawyer present for all important stages of the proceeding particularly when the defendant is held in detention, as well as the right of a defendant to have an attorney present when giving a statement or undergoing interrogation.[591]

238. The effective conduct of a defense additionally encompasses the right of the person concerned to examine or have examined witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf, under the same conditions as opposing witnesses. This requirement has been interpreted to prohibit the failure to provide a defendant with the right to cross-examine the witnesses whose testimony is the basis of the charges brought against him or her.[592] Similarly, a defendant must be afforded access to documents and other evidence under the possession and control of the authorities necessary to prepare his or her case.[593] Furthermore, in order to preserve public confidence in the courts and to protect litigants against the administration of justice in secret and without public scrutiny, due process standards require the trial process and the pronouncement of judgment to take place in public,[594] save in exceptional circumstances in which the interests of justice strictly require otherwise.

239. Once an unfavorable decision is rendered at first instance, the right to appeal that judgment to a higher court must also be granted in compliance with fundamental fair trial protections.[595] It must be noted in this regard that the standards of impartiality and independence prescribed for a fair hearing at the first instance are equally applicable to appellate tribunals.[596] It is on this basis, for example, that the Inter-American Court has found that the right to appeal is not satisfied merely because there is a higher court than the one that tried and convicted the accused and to which the latter has or may have recourse.[597] For a lawful and valid review of the judgment in compliance with human rights standards, the higher court must have the jurisdictional authority to take up the merits of the particular case in question and must satisfy the requirements that a court must meet to be a fair, impartial and independent tribunal previously established by law.[598] These standards have also been held to apply in respect of wartime military procedures such as prosecutions by Courts-Martial.[599]

e. Civil and other Proceedings

240. While compliance with the protections discussed above has most frequently been evaluated by the Inter-American Commission and Court in the context of criminal proceedings, the requirements of a fair trial and due process of law are not, as indicated previously, limited to such proceedings. They are also applicable, mutandis mutatis, to non-criminal proceedings for the determination of a person’s rights and obligations of a civil, labor, fiscal or any other nature.[600] Consideration by the Commission of the fair trial requirements of administrative proceedings has occurred to a significant extent in relation to the immigration laws and practices of states, which are discussed in further detail in Part III(H) below.

f. Inter-State Cooperation in Criminal Matters

241. Also subject to the due process and other requirements of international human rights protections are methods of inter-state cooperation in the investigation, prosecution and punishment of international, transnational and domestic crimes. Processes of this nature include the extradition of criminal suspects for criminal prosecution,[601] inter-state transfer of witnesses and prisoners in the context of criminal proceedings, and various modes of mutual legal assistance in criminal matters.[602] Aspects of these methods of cooperation are reflected in bilateral[603] and multilateral treaties,[604] letters rogatory and other customary practices between states,[605] and domestic legislation.[606] In this regard, the Commission wishes to commend OAS member states for their extensive efforts to collaborate in the campaign against terrorism, as reflected most recently in the provisions of the Inter-American Convention Against Terrorism.[607]

242. Also as properly recognized in the Inter-American Convention against Terrorism,[608] the manner in which states implement or otherwise participate in these methods of cooperation must comply with minimal standards of human rights law, including in particular the right to liberty and security, the rights to due process of law and to a fair trial, and the right to privacy. As with all acts and omissions attributable a state and its agents, these human rights protections oblige states to refrain from supporting or tolerating methods of inter-state cooperation that fail to conform with their international human rights commitments.[609] As noted previously, these obligations include ensuring respect for the protections under Article 22(8) of the American Convention and Article 3 of the UN Torture Convention, which prohibit the removal of a person by extradition or otherwise to a country if his or her right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political or if there are substantial grounds for believing that he or she would be subjected to torture.

243. While the Commission is unable for the purposes of this report to undertake an exhaustive analysis of the many and varied human rights concerns potentially raised by method of cooperation by states in penal and related matters, it notes with particular concern past instances in this Hemisphere in which established inter-state cooperation procedures have been circumvented by extralegal methods having serious implications for the human rights of individuals affected by such procedures. This has included in particular the expulsion of persons to jurisdictions where their lives or physical integrity may be in danger and extraterritorial abduction or kidnapping of a subject present in one state for prosecution in another state.[610] Transgressions of this nature have been proclaimed by international and domestic authorities to constitute violations of public international law[611] and as seriously implicating the fundamental rights of the person concerned to freedom or movement and residence within the borders of a state[612] and the right to liberty and security, including the right not to be subject to arbitrary detention.[613] The rendering of an individual within the jurisdiction of a state by such methods may also be considered to undermine the legitimacy and fairness under international law of any subsequent legal proceedings to which the individual may be subjected by the receiving state.[614]

g. Fair Trial, Due Process of Law and Derogation

244. In circumstances not involving a national emergency, states are obliged to respect the entirety of the above due process rights respecting persons within their authority and control.

245. Where an emergency situation is involved that threatens the independence or security of a state, the fundamental components of the right to due process and to a fair trial must nevertheless be respected. More particularly, certain aspects of these rights, namely the right under Article 9 of the American Convention concerning freedom from ex post facto laws that are not favorable to a defendant, as well as “judicial guarantees essential for the protection of [non-derogable] rights”, are among the protections enumerated in Article 27(2) of the Convention that may not be suspended. Further, although Article 8 of the Convention is not explicitly mentioned in Article 27(2), states are not free to derogate from the fundamental due process or fair trial protections referred to in Article 8 and comparable provisions of other international instruments. To the contrary, when considered in light of the strict standards governing derogation, the essential role that due process safeguards may play in the protection of non-derogable human rights, and the complementary nature of states’ international human rights obligations, international authority decidedly rejects the notion that states may properly suspend the rights to due process and to a fair trial.

246. The Commission first notes in this respect that no human rights supervisory body has yet found the exigencies of a genuine emergency situation sufficient to justify suspending even temporarily basic fair trial safeguards. Rather, the inter-American human rights organs have long emphasized the importance of maintaining due process safeguards at all times, and in times of emergency in particular in order to guard against the enhanced risk of abuse of a state’s exceptional authority and to protect other rights that are non-derogable.[615] In this sense, due process rights form an integral part of the judicial guarantees essential for the protection of non-derogable rights and may therefore be considered non-derogable under the express terms of Article 27(2) of the American Convention.

247. Consistent with these observations, the Commission and other pertinent authorities have concluded that the basic components of the right to a fair trial cannot be justifiably suspended. These protections include in particular the right to a fair trial by a competent, independent and impartial court for persons charged with criminal offenses, the presumption of innocence, the right to be informed promptly and intelligibly of any criminal charge, the right to adequate time and facilities to prepare a defense, the right to legal assistance of one’s own choice or free legal counsel where the interests of justice require, the right not to testify against oneself and protection against coerced confessions, the right to attendance of witnesses, the right of appeal, as well as respect for the principle of non-retroactive application of penal laws.[616]

248. Also pertinent to evaluating the permissibility of derogations are a state’s other international human rights obligations which, as noted in Part II of this report and as explicitly reflected in Article 27(2) and 29 of the American Convention, should be interpreted to implement and complete the rights under the inter-American instruments rather than as a basis for limitations.[617] On this basis, states may not derogate from due process protections if doing so would be inconsistent with its other obligations under international law and in particular where such a derogation would restrict the enjoyment or exercise of any right or freedom recognized by virtue of the state's domestic law or another instruments by which the state is bound. This is particularly pertinent in the context of armed conflicts, where, as discussed in the following section, the fundamental due process and fair trial protections applicable in international and non-international armed conflict correspond to a significant extent with those under international human rights, allow for no derogation, and consequently block any suspension that a state might otherwise purport to effect during an armed conflict under its human rights obligations.[618]

249. Without detracting from the above standards, prevailing norms suggest that there may be some limited aspects of the right to due process and to a fair trial from which derogation might in the most exceptional circumstances be permissible. Any such suspensions must, however, comply strictly with the principles of necessity, proportionality and non-discrimination, and must remain subject to oversight by supervisory organs under international law.

250. Due process and fair trial protections that might conceivably be subject to suspension include the right to a public trial where limitations on public access to proceedings are demonstrated to be strictly necessary in the interests of justice. Considerations in this regard might include matters of security, public order, the interests of juveniles, or where publicity might prejudice the interests of justice.[619] Any such restrictions must, however, be strictly justified by the state concerned on a case by case basis and be subject to on-going judicial supervision.

251. The right of a defendant to examine or have examined witnesses presented against him or her could also be, in principle, the subject of restrictions in some limited instances. It must be recognized in this respect that efforts to investigate and prosecute crimes, including those relating to terrorism, may in certain instances render witnesses vulnerable to threats to their lives or integrity and thereby raise difficult issues concerning the extent to which those witnesses can be safely identified during the criminal process.[620] Such considerations can never serve to compromise a defendant’s non-derogable due process protections and each situation must be carefully evaluated on its own merits within the context of a particular justice system.[621] Subject to these caveats, procedures might in principle be devised whereby witnesses’ anonymity may be protected without compromising a defendant’s fair trial rights. Factors to be taken into account in evaluating the permissibility of such procedures include the sufficiency of the grounds for maintaining a particular witness’s anonymity and the extent to which the defense is nevertheless able to challenge the evidence of the witness(es) and attempt to cast doubt of the reliability of their statements, for example through questioning by defense counsel. Other pertinent considerations include whether the court itself is apprised of the witness’s identity and is able to evaluate the reliability of the witness’s evidence, and the significance of the evidence in the case against the defendant, in particular whether a conviction may be based solely or to a decisive extent on that evidence.[622]

252. Similarly, the investigation and prosecution of terrorist crimes may render judges and other officials involved in the administration of justice vulnerable to threats. As noted above, states are obliged to take all necessary measures to prevent violence against such persons.[623] Accordingly, states may be compelled by the exigencies of a particular situation to develop mechanisms to protect a judge’s life, physical integrity and independence. As in the case of threatened witnesses, however, each situation must be carefully evaluated on its own merits within the context of a particular justice system,[624] must be subject to such measures as are necessary to ensure a defendant’s right to challenge the competence, independence or impartiality of his or her prosecuting tribunal, and may in no case serve to compromise a defendant’s right to fundamental fairness.

253. As indicated in Part III(B) of this report regarding the right to personal liberty and personal security,[625] the right to a hearing within a reasonable time constitutes a further component of the right to a fair trial from which derogations might properly be taken in appropriate circumstances. This might allow for a period of pre-trial detention longer than would otherwise be permissible under ordinary circumstances, where such measures are demonstrated to be required by the emergency situation. As with other permissible suspensions, however, delays may only be as long as the exigencies of the situation strictly require, can in no case be indefinite, and must remain subject to judicial supervision to avoid any unjust delays and to protect the detainee against abuses of authority.[626] Such measures must also not compromise a defendant’s non-derogable fair trial protections, including their right to all necessary means of defense and their right to be presumed innocent.


2. International Humanitarian Law

254. The provisions of international humanitarian law governing fair trial requirements in the context of international and non-international armed conflict parallel to a large extent those prescribed under applicable international human rights law, and indeed were drawn largely from human rights law.[627]

255. With regard to international armed conflicts, both the Third and Fourth Geneva Conventions contain extensive and detailed provisions governing the prosecution of prisoners of war and civilians under a variety of circumstances. These include due process protections in the adjudication of disciplinary and penal sanctions[628] including, as observed in Part III(A) of this report, criminal proceedings in which capital punishment may be imposed.[629] They also include provisions prohibiting the wilful deprivation of the rights to a fair and regular trial as grave breaches of the Conventions.[630] In situations of non-international armed conflict, common Article 3 prohibits the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all of the judicial guarantees which are recognized as indispensable by civilized peoples.”

256. As noted above, while international human rights law prohibits the trial of civilians by military tribunals, the use of military tribunals in the trial of prisoners of war is not prohibited; to the contrary, according to Article 84 of the Third Geneva Convention, a prisoner of war “shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offense alleged to have been committed by the prisoner of war.”[631] By the same article, however, a prisoner of war may under no circumstances be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized and, in particular, the procedure of which does not afford the accused the rights and means of defense provided for in Article 105 of the Third Convention.[632]

257. The fair trial protections in the 1949 Geneva Conventions have been supplemented and developed by Additional Protocols I and II. This has included the explicit articulation under Article 75(4) of Additional Protocol I of fair trial guarantees applicable to unprivileged combatants and other persons who do not benefit from more favorable treatment under the 1949 Geneva Conventions or of Additional Protocol I. Article 6 of Additional Protocol II similarly elaborates upon the specific fair trial guarantees considered to be encompassed within common Article 3. As noted in Part II(C) of this report, these provisions have been recognized as reflecting customary international law governing penal prosecutions in times of armed conflict,[633] and provide as follows:

Additional Protocol I

Article 75(4) No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following: (a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence; (b) No one shall be convicted of an offence except on the basis of individual penal responsibility; (c) No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby; (d) Anyone charged with an offence is presumed innocent until proved guilty according to law; (e) Anyone charged with an offence shall have the right to be tried in his presence; (f) No one shall be compelled to testify against himself or to confess guilt; (g) Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (h) No one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure; (i) Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and (i) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.

Additional Protocol II

Article 6(1) This Article applies to the prosecution and punishment of criminal offences related to the armed conflict. (2) No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular: (a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence; (b) No one shall be convicted of an offence except on the basis of individual penal responsibility; (c) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby; (d) Anyone charged with an offence is presumed innocent until proved guilty according to law; (e) Anyone charged with an offence shall have the right to be tried in his presence; (f) No one shall be compelled to testify against himself or to confess guilt. (3) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised. (4) The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children. (5) At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.

258. As in the case of international human rights law, therefore, international humanitarian law mandates compliance with minimum due process and fair trial protections in any criminal proceedings, including most fundamentally the right to trial by an impartial, independent and regularly constituted court and the right to be informed without delay of the particulars of the offense against him or her. They also encompass the right to all necessary rights and means of defense, which necessarily includes the right to a qualified defense counsel, the right to examine or have examined the witnesses against him or her and to obtain the presence and examination of witnesses on his behalf under the same conditions as the witnesses against him or her, and the right to be advised on conviction of his judicial and other remedies and the time limit within which they may be exercised. Also prescribed under international humanitarian law are the fundamental criminal law principles nullum crimen sine lege, nulla poena sine lege, and non-bis-in-idem, as well as the presumption of innocence and the right not to be convicted of an offense except on the basis of individual penal responsibility.[634] Finally, international humanitarian law explicitly provides for the right of an accused 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.[635]

259. The Commission considers it important to reiterate that the minimum guarantees of due process and a fair trial prescribed in Article 75 of Additional Protocol I and Article 6 of the Additional Protocol II and corresponding customary international law, as with the other fundamental guarantees prescribed in those provisions, are non-derogable and therefore constitute minimum standards applicable to all persons in armed conflicts from which states may not regress.[636] Further, the non-derogable status of these rights protections under international humanitarian law blocks any restrictions or derogations that might otherwise be authorized under applicable human rights instruments insofar as they relate to charges arising out of the hostilities.[637] Accordingly, in times of armed conflict, states may not invoke derogations or restrictions under the American Convention or other human rights instruments to justify any failure to afford persons the minimum due process and fair trial protections prescribed under Article 75 of Additional Protocol I or Article 6 of Additional Protocol II.


3. Rights to Due Process and to a Fair Trial and Terrorism

260. The foregoing overview of applicable law has several implications in the context of states’ efforts to respond to the threats of terrorism.

261. It first makes clear that most fundamental fair trial requirements cannot justifiably be suspended under either international human rights law or international humanitarian law. These protections therefore apply to the investigation, prosecution and punishment of crimes, including those relating to terrorism, regardless of whether such initiatives may be taken in time of peace or times of national emergency, including armed conflict, and include the following:

(a) The right to respect for fundamental principles of criminal law, including the non-bis-in-idem principle, the nullum crimen sine lege and nulla poena sine lege principles, the presumption of innocence, and the right not to be convicted of an offense except on the basis of individual penal responsibility. Of particular pertinence in the context of terrorism, these principles demand that any laws that purport to proscribe conduct relating to terrorism be classified and described in precise and unambiguous language that narrowly defines the punishable offense, and accordingly require a clear definition of the criminalized conduct establishing its elements and the factors that distinguish it from behaviors that are not punishable or involve distinct forms of punishment. Ambiguities in laws proscribing terrorism not only undermine the propriety of criminal processes that enforce those laws, but may also have serious implications beyond criminal liability and punishment, such as the denial of refugee status.[638]

As indicated above, the Commission and the Court have previously found certain domestic anti-terrorism laws to violate the principle of legality because, for example, they have attempted to prescribe a comprehensive definition of terrorism that is inexorably overbroad and imprecise, or have legislated variations on the crime of “treason” that denaturalizes the meaning of that offense and creates imprecision and ambiguities in distinguishing between these various offenses. Whether states choose to prescribe a specific crime of terrorism based upon commonly-identified characteristics of terrorist violence or vary 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, they should be guided by the basic principles articulated by the organs of the inter-American system on this issue. 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;

(b) The right to be tried by a competent, independent and impartial tribunal in conformity with applicable international standards. In respect of the prosecution of civilians, this requires trial by regularly constituted courts that are demonstrably independent from the other branches of government and comprised of judges with appropriate tenure and training, and generally prohibits the use of ad hoc, special, or military tribunals or commissions to try civilians. A state’s military courts may prosecute members of its own military for crimes relating 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 tribunals. This right also prohibits the use of secret or faceless judicial procedures, subject, however, to appropriate measures that may be taken to protect judges, lawyers, witnesses and other officials involved in the administration of justice from threats to their lives or physical integrity;

(c) The right to due procedural guarantees, including the rights of an accused:

(i) To prior notification in detail of the charges against him or her;

(ii) To defend himself or herself personally and to have adequate time and means to prepare his or her defense, which necessarily includes the right to be assisted by legal counsel of his or her choosing or, in the case of indigent defendants the right to legal counsel free of charge where such assistance is necessary for a fair hearing. Giving proper effect to this right necessitates affording a detainee access to legal advice without delay after they have been made the subject of a criminal process, both to secure the immediate protection of non-derogable rights such as the right to humane treatment, and to preclude potential unfairness in any future legal processes that may be brought against the person through, for example, the interrogation of a detainee without counsel being present. Further, where the defendant does not understand or speak the language of the court or tribunal, he or she is entitled to be assisted without charge by a translator or interpreter;

(iii) Not to be compelled to be a witness against himself or herself or to plead guilty;

(iv) To examine witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as opposing witnesses;

(v) 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.

262. It is also apparent that there are certain limited aspects of the right to due process of law and to a fair trial that might potentially be the subject of derogation in exceptional and bona fide emergency situations. In all instances this is subject to prevailing rules governing derogation discussed in Part II, namely that the suspension be effectuated only for such time and to the extent strictly required by the exigencies of the situation, that it not entail discrimination of any kind, that it be compatible with all of the state’s other obligations under international law, including international humanitarian law where applicable, and that the rule of law and supervision by the judiciary remains intact. Potentially derogable aspects of due process and fair trial protections include:

(a) The right to have criminal proceedings conducted in public, where restrictions on public access may be considered strictly necessary in the interests of justice and on a case by case basis. This may include measures to protect the life, physical integrity and independence of judges or other officials involved in the administration of justice where their lives or physical integrity are threatened, subject to such measures as are necessary to ensure a defendant’s non-derogable fair trial rights, including the right to challenge the competence, independence or impartiality of his or her prosecuting tribunal;

(b) The right to examine witnesses present in court where safety or other circumstances may necessarily require protecting the identity of the witness, subject to such measures as are necessary to ensure a defendant’s non-derogable fair trial rights, including the right to challenge the veracity of the witness’s evidence by alternative methods;

(c) The right to trial within a reasonable time, where a delay longer than would otherwise be applicable in non-emergency situations might be justifiable, provided that it is subject at all times to judicial review and in no case is prolonged or indefinite.

263. The protections applicable to proceedings for the determination of a person’s rights or obligations of a civil, labor, fiscal, or any other nature are discussed in further detail in Part III(H) below concerning the situation of migrant workers, asylum-seekers, refugees and other non-nationals,.

 

Notes_____________________________________

[506] For example, during an armed conflict, prisoners of war should be detained in prisoner of war camps and not in regular prisons. Third Geneva Convention, supra note 67, Articles 21, 97. Civilian internees should similarly be detained in civilian camps and not in regular prisons. Fourth Geneva Convention, supra note 36, Articles 41-43, 68, 78-88, 124.

[507] Third Geneva Convention, supra note 67, Article 5. Additional Protocol I, supra note 68, Article 45. The determination as to whether a combatant is entitled to prisoner of war status need not necessarily require a trial by a civilian court, but can be made by an administrative body. See, e.g., US Department of the Army, Field Manual 27-10, The Law of Land Warfare. See also Part II(B) on the right to personal liberty and security, para. 130; Part III(F) on the obligation to respect and ensure, non-discrimination and the right to judicial protection, para. 347.

[508] Additional Protocol I, supra note 68, Article 45.

[509] Third Geneva Convention, supra note 67, Article 5.

[510] See supra Parts II(B), III(B), III(D). See also United States v. List (The Hostage Case), Trial of the War Criminals before the Nuremberg Tribunal 1228, 1238 (1950) and United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Volume VIII, 1949, at 50 (stating that “[i]t cannot be questioned that acts done in times of war under the military authority of an enemy cannot involve any criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war.”); Lieber Instructions, supra note 208, Articles 56, 57; Third Geneva Convention, supra note 67, Article 87 (providing that “[p]risoners of war may not be sentenced […] to any penalties except those provided for in respect of members of the armed forces of the said power who have committed the same acts.”); David 1999, supra note 229, at 379-381; Sassoli & Bouvier, supra note 162, at 125-126.

[511] For applicable international human rights law standards, see American Convention, Article 5; UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 8. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Article 97; Fourth Geneva Convention, supra note 36, Article 124.

[512] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 8. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 25, 29, 97, 108; Fourth Geneva Convention, supra note 36, Articles 76, 85, 124; Additional Protocol I, supra note 68, Article 75(5). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36,
Article 5(2)(a).

[513] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 8. For international humanitarian law standards applicable in international armed conflicts, see Additional Protocol I, supra note 68, Article 77(4). However, with respect to protected persons subjected to internment, the Fourth Geneva Convention provides: “[…]Throughout the duration of their internment, members of the same family, and in particular parents and children, shall be lodged together in the same place of internment, except when separation of a temporary nature is necessitated for reasons of employment or health or for the purposes of enforcement of the provisions of Chapter IX of the present Section. Internees may request that their children who are left at liberty without parental care shall be interned with them. Wherever possible, interned members of the same family shall be housed in the same premises and given separate accommodation from other internees, together with facilities for leading a proper family life.” Fourth Geneva Convention, supra note 36, Article 82.

[514] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 9, 10, 11, 22-26. See also Congo Case, supra note 419, para 58. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 13, 22-25; Fourth Geneva Convention, supra note 36, Articles 32, 85; Additional Protocol I, supra note 68, Articles 11(4), 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2).

[515] For international humanitarian law standards applicable in international armed conflicts, see Fourth Geneva Convention, supra note 36, Article 85; Third Geneva Convention, supra note 67, Article 25. For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 10.

[516] For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Article 25, and Fourth Geneva Convention, supra note 36, Article 85. For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, rules 10, 12–16, 19. Desmond McKenzie Case, supra note 272, para. 288. See similarly Baptiste Case, supra note 430, paras. 133-138.

[517] For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 15-16, 25-27, 29-32, 109 and following; Fourth Geneva Convention, supra note 36, Articles 38, 56 and following, 89-90. For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 17-18, 20-26. Congo Case, supra note 419.

[518] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 33. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 19-20, 46; Fourth Geneva Convention, supra note 36, Article 49 and 127.

[519] See, e.g., Third Geneva Convention, supra note 67, Article 8 (providing that the Convention “shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict.”); Fourth Geneva Convention, supra note 36, Article 9.

[520] For international humanitarian law standards applicable in international and non-international armed conflicts, see Article 3 Common to the Four 1949 Geneva Conventions, supra notes 36, 67. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Article 126; Fourth Geneva Convention, supra note 36, Articles 142-143.

[521] See supra, Part III(C), para. 146.

[522] For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 13, 87, 89, 92, 97-98, 108; Fourth Geneva Convention, supra note 36, Articles 32, 100, 118, 119, 124-125; Additional Protocol I, supra note 68, Articles 11(4), 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2). For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 27-34.

[523] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 31, 32. See also Suárez Rosero Case, supra note 330; Desmond McKenzie Case, supra note 272, para. 288. See similarly Baptiste Case, supra note 430, paras. 133-138. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 13, 87, 89, 98, 108; Fourth Geneva Convention, supra note 36, Articles 32, 118, 119, 124-125; Additional Protocol I, supra note 68, Articles 11(4), 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2).

[524] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 33. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 13, 87, 108; Fourth Geneva Convention, supra note 36, Articles 32, 118-119; Additional Protocol I, supra note 68, Articles 11(4), 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2). Moreover, according to international human rights standards, chains and irons should never be used as restraints. See UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 33. While international humanitarian law standards do not expressly provide for such prohibition, the fact that irons and chains may inflict pain and cause physical damage suggests that even in armed conflict situations, the use of such instruments should be strictly limited to exceptional situations that require such measure, such as the transportation of detainees or the temporary protection of the detainees or their guardians, when there is no alternative restraint available, and only for the period of time requiring such measure.

[525] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 27 and following. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 87, 89, 92; Fourth Geneva Convention, supra note 36, Articles 118-119, 120.

[526] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 32. For international humanitarian law standards applicable in international armed conflicts, Third Geneva Convention, supra note 67, Articles 13, 87, 89, 98, 108; Fourth Geneva Convention, supra note 36, Articles 118, 119, 125, and see Additional Protocol I, supra note 68, Articles 11(4) and 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2).

[527] For applicable international human rights law standards, see American Convention on Human Rights, supra note 61, Article 5; American Declaration, supra note 63, Article I; Inter-American Torture Convention, supra note 105. For international humanitarian law standards applicable in international and non-international armed conflicts, see Article 3 Common to the Four Geneva Conventions, supra notes 36, 67. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 13, 14, 17; Fourth Geneva Convention, supra note 36, Articles 27, 32; Additional Protocol I, supra note 68, Articles 11(4), 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2).

[528] See, e.g., The Greek Case, supra note 391.

[529] See, e.g., Aksoy Case, supra note 346, para. 64.

[530] See, e.g., Aydin, supra note 417, para. 84.

[531] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119, referred to in Celibici TC Judgment, supra note 193, para. 467.

[532] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119, referred to in Celibici TC Judgment, supra note 193, para. 467.

[533] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119, referred to in Celibici TC Judgment, supra note 193, para. 467.

[534] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119, referred to in Celibici TC Judgment, supra note 193, para. 467.

[535] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119, referred to in Celibici TC Judgment, supra note 193, para. 467.

[536] See generally UN Special Rapporteur Report on Torture, supra note 413, para. 119. See also Muteba, HRC Case, supra note 414, para. 10.2; Setelich, HRC Case, supra note 414, para. 16.2; Weinberger, HRC Case, supra note 414, para. 4. See also Celibici TC Judgment, supra note 193, paras 461, 467.

[537] See, e.g., Lissardi & Rossi, supra note 412, at 51, 54.

[538] See, e.g., Velásquez Rodríguez Case, supra note 249, para. 156. See also Godínez Cruz Case, supra note 249, para. 164. See also Villagran Morales Case, supra note 130,
paras. 162-164.

[539] See, e.g., Ireland v. United Kingdom, supra note 386, para. 96.

[540] For applicable international human rights law standards, see American Convention on Human Rights, supra note 61, Article 8(3). For international humanitarian law standards applicable in non-international armed conflicts see Additional Protocol II, supra note 36, Article 6(2). For international humanitarian law standards applicable in international armed conflicts see Additional Protocol I, supra note 68, Article 75 (4). See Part III(D), para. 261.

[541] Third Geneva Convention, supra note 67, Article 17, See also ICRC Commentary on the Third Geneva Convention, supra note 350, at 156-159.

[542] American Convention on Human Rights, supra note 61, Article 27(2), Inter-American Torture Convention, supra note 105, Article 5. See also Asencios Lindo et al. Case, supra note 6, para. 75; IACHR, Report on Canada (2000), supra note 338, paras. 118, 154; IACHR Report on Peru (2000), supra note 27. For international humanitarian law standards, see Article 3 Common to the Four Geneva Conventions, supra notes 36, 67; Third Geneva Convention, supra note 67, Articles 13, 14; Fourth Geneva Convention, supra note 36, Articles 27, 32; Additional Protocol I, supra note 68, Article 75; Additional Protocol II, supra note 36, Articles 4, 5.

[543] IACHR, Report on Canada (2000), supra note 338, paras. 118, 154.

[544] See, e.g., Universal Declaration of Human Rights, supra note 65, Article 11; International Covenant on Civil and Political Rights, supra note 66, Arts. 14, 15; European Convention on Human Rights, supra note 137, Articles 6, 7. Article 40 of the UN Convention on the Rights of the Child prescribes similar protections relating specifically to proceedings involving children and has been the subject of consideration by the Commission, supra note 122. See e.g. Rivas Case, supra note 408.

[545] See I/A Court H.R., Constitutional Court Case, Judgment of January 31, 2001, Ser. C Nº 7, paras. 69, 70 (finding that the minimum guarantees established under Article 8(2) of the Convention are not limited to judicial proceedings in a strict sense, but also apply to proceedings involving the determination of rights and obligations of a civil, labor, fiscal or other nature.). See also I/A Court H.R, Advisory Opinion OC-11/90, Exceptions to Exhaustion of Domestic Remedies (Articles 46(1), 46(2)(a), and 46(2)(b) American Convention on Human Rights), August 10, 1990, Series A, Nº 11, par. 28. See similarly UNHRC, General Comment Nº 13, Article 14 (21st sess., 1984), Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 14 (1994), para. 2 [hereinafter UNHRC General Comment Nº 13].

[546] See, e.g., Case 11.610, Report Nº 49/99, Loren Laroye Riebe Star and others (Mexico), Annual Report of the IACHR 1998, paras. 46, 65-70 (applying Article 8(1) of the American Convention in the context of administrative proceedings leading to the expulsion of foreigners); Ferrer-Mazorra et al. Case, supra note 114, para. 213; IACHR, Report on Canada (2000), supra note 338, paras. 109, 115; Case 10.675, Report 51/96, Haitian Interdiction Case (United States), Annual Report of the IACHR (1993), para. 180. See similarly Eur. Comm. H.R., Huber v. Austria, 1975 Y.B. Eur. Conv. on H.R., paras. 69-71; Eur. Court H.R., Albert and Le Compte Case, 10 February 1983, Series A Vol. 58, para. 39 (considering the principles of due process to be applicable, mutatis mutandis, to disciplinary sanctions of an administrative nature).

[547] See, e.g., UN Crimes Against Internationally Protected Persons Convention, supra note 35, Article 9 (“Any person regarding whom proceedings are being carried out in connexion with any of the crimes set forth in article 2 shall be guaranteed fair treatment at all stages of the proceedings”); 1977 OAS Terrorism Convention, supra note 7, Article 4 (“Any person deprived of his freedom through the application of this Convention shall enjoy the legal guarantees of due process”), Article 8 (“To cooperate in preventing and punishing the crimes contemplated in Article 2 of this Convention, the contracting states accept the following obligations: [. . .] (c) To guarantee to every person deprived of his freedom through the application of this convention every right to defend himself”); Inter-American Convention Against Terrorism, supra note 8, Article 15(3) (“Any person who is taken in custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including the enjoyment of all rights and guarantees in conformity with the law of the state in the territory of which that person is present and applicable provisions of international law”).

 

[548] American Declaration, supra note 63, Article XXVI; American Convention on Human Rights, supra note 61, Articles 8(2), 8(4), 9.

[549] See Rome Statute, supra note 31, Articles 22-33; Statute 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, S.C. Res. 827, U.N. SCOR, 48th Sess., UN Doc S/Res/827, of 25 May 1993, Article 10 [hereinafter ICTY Statute]; Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, UN SCOR, 49th Sess, UN Doc. S/Res/955 (1994), Article 9 [hereinafter ICTR Statute].

[550] See generally M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235, 267-293 (1993).

[551] See, e.g., IACHR Report on Argentina (1980), supra note 27, at 224; IACHR, Report on the Situation of Human Rights in Nicaragua (1981), 30 June 1981, OEA/Ser.L/V/II.53, doc. 25, pp. 88-9, 93, 168 [hereinafter IACHR Report on Nicaragua (1981)].

[552] Suárez Rosero Case, supra note 330, para. 77.

[553] Loayza Tamayo Case, supra note 395, para. 66.

[554] Loayza Tamayo Case, supra note 395, para. 76. See also Jorge Alberto Giménez Case, supra note 330, paras. 77-80.

[555] See, e.g., IACHR Report on Peru (2000), supra note 27, paras. 80, 168; Castillo Petruzzi et al. Case, supra note 55, para. 121.

[556] See, e.g., Castillo Petruzzi et al. Case, supra note 55, para. 121.

[557] Castillo Petruzzi et al. Case, supra note 55, para. 121.

[558] See American Convention on Human Rights, supra note 61, Article 9; International Covenant on Civil and Political Rights, supra note 66, Article 15. See similarly Additional Protocol I, supra note 68, Article 75(4)(c); Additional Protocol II, supra note 36, Article 6(2)(c).

[559] See, e.g., IACHR Report on Peru (2000), supra note 27, paras. 80, 168; Castillo Petruzzi et al. Case, supra note 55, para. 121.

[560] See, e.g., Detention of Terrorist (Northern Ireland) Order of 1972 (United Kingdom), cited in Ireland v. United Kingdom, supra note 386, para. 85 (defining terrorism as “the use of violence to political ends [including] any use of violence for the purpose of putting the public or any section of the public in fear.”).

[561] See, e.g., Commission of International Jurists, Report of the Commission of International Jurists on the Administration of Justice in Peru, 30 November 1993 [hereinafter Report of the Commission of International Jurists on the Administration of Justice in Peru], at 15-22 (providing examples of European anti-terrorism laws that define terrorism in relation to well-established common crimes). The Commission of International Jurists is an international commission created by agreement between the governments of Peru and the United States of America. The 1993 report has been referred to by major human rights non-governmental organizations such as Amnesty International, Human Rights Watch and Lawyers Committee for Human Rights. See similarly, 18 U.S.C. § 2331.

[562] In this connection, Article 5(6) of the American Convention provides that “[p]unishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoner.”

[563] See American Convention on Human Rights, supra note 61, Article 5(3) (“Punishment shall not be extended to any one other than the criminal”).

[564] See generally ICRC Commentary on the Additional Protocols, supra note 210, at 880-881. See also Fourth Geneva Convention, supra note 36, Article 33 (providing in part that “[n]o protected person may be punished for an offense he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”); Additional Protocol I, supra note 68, Article 75(4)(b); Additional Protocol II, supra note 36, Article 5(2)(b); ICTY Statute, supra note 222, Article 7; ICTR Statute, supra note 505, Article 6; Rome Statute, supra note 31, Article 25; UN Secretary General Report (1993), supra note 189, para. 51 (declining to retain for the purposes of the jurisdiction of the International Criminal Tribunal for the former Yugoslavia the criminal liability of individuals by reason of their membership in an association or organization considered to be criminal.)

[565] For examples of permissible grounds of individual criminal responsibility, see, e.g., ICTY Statute, supra note 222, Article 7; ICTR Statute, supra note 505, Article 6; Rome Statute, supra note 31, Article 25.

[566] See, e.g., Report of the Special Rapporteur for Independence and Impartiality of the Judiciary, submitted in accordance with Commission on Human Rights Resolution 1994/41, Commission on Human Rights, Fifty-first session, 6 February 1995, E/CN.4/1995/39, para. 34.

[567] See, e.g., IACHR Report on Chile (1985), supra note 114, Ch. VIII, para. 139; IACHR, Report on the Situation of Human Rights in Haiti (1995), OEA/Ser./V/II.88, February 9, 1995, Ch. V, paras. 276-280; IACHR, Report on the Situation of Human Rights in Ecuador (1997), 24 April 1997, OEA/Ser.L/V/II.96, Doc. 10 rev. 1, Ch. III; IACHR, Report on the Situation of Human Rights in Mexico (1998), September 24, 1998, OEA/Ser.L/V/II.100, Doc. 7 rev. 1, Ch. V, paras. 393-398.

[568] Andrews Case, supra note 243, paras. 159-161. See similarly Eur. Court H.R., Findlay v. UK, 25 February 1997, Reports 1997-I, p. 281, para. 73.

[569] See, e.g., IACHR, Report on the Situation of Human Rights in Chile, Doc. OEA/Ser.L/V/II.34, 25 October 1974; IACHR, Report on the Situation of Human Rights in Uruguay, Doc. OEA/Ser.L/V/II.43, 31 January 1978; IACHR, Report on Nicaragua (1981), supra note 551; IACHR, Report on the Situation of Human Rights in Guatemala, Doc. OEA/Ser.L/V/II.61, 5 October 1983 [hereinafter IACHR Report on Guatemala (1983)]; IACHR Report on Chile (1985), supra note 114, para. 139; Castillo Petruzzi et al. Case, supra note 55, para. 129, citing Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Conference on the Prevention of Crime and Treatment of Offenders, held in Milan, August 26 to September 6, 1985, and confirmed by the UN General Assembly in it resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, Principle 5 [hereinafter Basic Principles on the Independence of the Judiciary]. See similarly UNHRC General Comment Nº 13, supra note 545, para. 4.

[570] See, e.g., Ten Years of Activities, supra note 1, at 331; IACHR Report on Nicaragua (1981), supra note 551, at 62 and following; IACHR Report on Chile (1985), supra note 114, at 190 and following. See similarly Eur. Comm. H.R., Zand v. Austria, Application Nº 7360/76, 12 October 1978, para. 69 (holding that it is the “object and purpose of the clause in Article 6(1) [of the European Convention on Human Rights] requiring that the court shall be ‘established by law’ that the judicial organization in a democratic society must not depend on the discretion of the Executive, but that it should be regulated by law emanating from Parliament.”); Basic Principles on the Independence of the Judiciary, supra note 569, Principle 4 (stating that “[t]here shall not be any inappropriate or unwarranted inference with the judicial process, nor shall judicial decisions by the courts by subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.”).

[571] See, e.g., IACHR Report on Chile (1985), supra note 114, Ch. VIII, para. 140; IACHR Report on Colombia (1999), supra note 110, Ch. V, para. 25.

[572] See I/A Court H.R., Las Palmeras Case, Judgment of December 6, 2001, Ser. C
Nº 90, paras. 51-53; IACHR Report on Colombia (1999), supra note 110, Ch.V, para. 27. See similarly I/A Court H.R., Durand y Ugarte Case, August 16, 2000, Series C, Nº 68, para. 117 (indicating that in a democratic state military jurisdiction “necessarily has a restrictive and special scope and is designed to protect special judicial interests linked to the functions that the law assigns to military forces.”); Eur. Court H.R., Case of Morris v. U.K., 26 February 2002, App.
Nº 38784/97, para. 59.

[573] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. V, paras. 17, 27-32; Asencios Lindo et al. Case, supra note 6, paras. 114-128.

[574] See, e.g., UNHRC, Fals Borda v. Colombia, Comm. Nº 46/1979, 27 July 1982; UNHRC General Comment Nº 13, supra note 545, para. 4; The Greek Case, supra note 391, para. 328; Eur. Court H.R., Case of Incal v. Turkey, 8 June 1998, Reports 1998-IV, para. 70.

[575] Third Geneva Convention, supra note 67, Article 84.

[576] IACHR Report on Colombia (1999), supra note 110, Ch. V, paras. 121-127; Annual Report of the IACHR 1996, at 658 (Colombia), 736 (Peru). See similarly UN Commission on Human Rights, Report of UN Special Rapporteur on the Independence of Judges and Lawyers, Mr. Param Cumaraswamy, Mission to Peru, Doc. E/CN.4/1998/39/Add.1 (1998), paras. 72-74.

[577] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. V, paras. 121-127. See also infra, Part III(D), paras. 238, 251.

[578] IACHR Report on Peru (2000), supra note 27, Ch. II, paras. 102-103; Castillo Petruzzi et al. Case, supra note 55, para. 172.

[579] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. IV, paras. 67-70.

[580] Suárez Rosero Case, supra note 330, paras. 70-72 (finding that a period of delay of 4 years and 2 months between the victim’s arrest and disposition of his final appeal to “far exceed” the reasonable time contemplated in the Convention and therefore to violate Articles 7(5) and 8(1) of the Convention.). See similarly UNHRC General Comment Nº 13, supra note 545.

[581] I/A Court H.R., Genie Lacayo Case, January 29, 1997, Series C Nº 30, para. 77, citing Eur. Court H.R., Motta v. Italy, 19 February 1991, Series A Nº 195-A, para. 30; Eur. Court H.R., Ruiz-Mateos v. Spain, 23 June 1993, Series A Nº 262, para. 30. See also Desmond McKenzie Case, supra note 272, paras. 258, 259; Michael Edwards et al. Case, supra note 102,
paras. 218, 219.

[582] Desmond McKenzie Case, supra note 272, paras. 262.

[583] Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, supra note 272, paras. 143-145. See similarly Desmond McKenzie Case, supra note 272, para. 260; Jorge Alberto Giménez Case, supra note 330, para. 101.

[584] See, e.g., IACHR Report on Colombia 1999, supra note 110, Ch. IV, para. 62.

[585] Advisory Opinion OC-11/90, supra note 545, para. 24.

[586] American Declaration, supra note 63, Articles XVIII, XXVI; American Convention on Human Rights, supra note 61, Article 8(2)(d), (e).

[587] See Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, supra note 272, paras. 148; Advisory Opinion OC-11/90, supra note 545, paras. 25-29; Desmond McKenzie Case, supra note 272, paras. 311-316; Michael Edwards et al. Case, supra note 102, paras. 201-207. See also IACHR, Report on Guatemala (1983) supra note 569, at 95; Report on the Situation of Human Rights in Suriname (1983), OEA/Ser.L/V/II.61, doc.6 rev. 1, 5 October 1983, p. 68. See similarly UNHRC, Lloyd Grant v. Jamaica, Communication Nº 353/1988, UN Doc. CCPR/C/50/D/353/1988 (1994), para. 86 (interpreting Article 14(3) of the Covenant as not entitling an accused to choose counsel who is provided free of charge); Eur. Court H.R., Quaranta v. Switzerland, May 24, 1991, Series A Nº 205.

[588] American Declaration, supra note 63, Article XXVI, American Convention on Human Rights, supra note 61, Article 8(2)(c). See generally IACHR, Report on the Situation of Human Rights in Panama (1978), OEA/Ser.L/V/II.44, doc. 38, rev. 1, 22 June 1978, Ch. IV, p. 116 [hereinafter IACHR, Report on Panama (1978)]; IACHR Report on Colombia (1981), supra note 27, Ch. IV, at 181.

[589] See Castillo Petruzzi et al. Case, supra note 55, para. 139, citing UN Basic Principles on the Role of Lawyers, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, UN Doc. A/CONF.144/28/Rev.1 at 118 (1990) [hereinafter UN Basic Principles on the Role of Lawyers], Principle 8. See also IACHR Report on Colombia (1999), supra note 110, Ch. V, para. 115; UN Body of Principles on Detention or Imprisonment, supra note 335, Principles 11, 17; UNHRC General Comment Nº 13, supra note 545.

[590] American Convention on Human Rights, supra note 61, Article 8(3).

[591] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. V, para. 97; Annual Report of the Inter-American Commission on Human Rights 1985-1986, OEA/Ser.L/V/II.68, Doc. 8 Rev. 1, September 26, 1986, at 155; IACHR, Report on Guatemala (1983) supra note 569, at 91.

[592] Castillo Petruzzi et al. Case, supra note 55, paras. 153, 154, citing Eur. Court H.R., Case of Barberà, Messegué and Jabardo, December 6, 1998, Ser. A Nº 146, para. 78 and Eur. Court H.R., Bönisch Case, May 6, 1985, Ser. A Nº 92, para. 32.

[593] See, e.g. UNHRC General Comment Nº 13, supra note 545, para. 9; UN Basic Principles on the Role of Lawyers, supra note 589, Article 21 (“It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession and control in sufficient time to enable lawyers to provide effective assistance to their clients.”).

[594] IACHR Report on Peru (2000), supra note 27, paras. 102-105; Castillo Petruzzi et al. Case, supra note 55, para. 172. See similarly Eur. Court H.R., Axen v. Germany, December 8, 1983, Series A Nº 72, para. 25.

[595] American Convention on Human Rights, supra note 61, Article 8(2)(h). See generally IACHR, Report on Panama (1978), supra note 588, at 116; Report on the Situation of Human Rights in Nicaragua (1981), supra note 551, p. 168. See similarly UN Secretary General Report (1993), supra note 189, para. 116 (stating that the right of appeal “is a fundamental element of individual civil and political rights.”); ICTY Statute, supra note 222, Article 25 et seq.; ICTR Statute, supra note 505, Article 24 et seq.

[596] According to the European Court of Human Rights, this requirement arises in part from the fact that “inherent in the very nature of an independent tribunal is the power to give binding decisions that will not be altered by a non-judicial authority.” Morris Case, supra note 572, para. 73.

[597] Castillo Petruzzi et al. Case, supra note 55, para. 161.

[598] Id.

[599] IACHR Report on Chile (1985), supra note 114, Ch. VIII, para. 173.

[600] Constitutional Court Case, supra note 545, paras. 69-70.

[601] As noted in the Part II(A) above, 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. See, e.g., Inter-American Convention Against Terrorism, supra note 8, Article 11.

[602] See generally M. Cherif Bassiouni, Policy Considerations on Inter-State Cooperation in Criminal Matters, in International Criminal Law 3 (2d ed., Vol. II, M. Cherif Bassiouni, ed., 1998).

[603] See, e.g., Model Treaty on Mutual Assistance in Criminal Matters and its Optional Protocol on the freezing and seizing of illicit proceeds, GA Res. 45/117, 68th plenary meeting, 14 December 1990, A/RES/45/117.

[604] See, e.g., UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UN Dc. E/Conf./82/15 (1988), reprinted in 28 I.L.M. 493 (1989), Article 5; Inter-American Convention Against Terrorism, supra note 8.

[605] See Gerhard O.W. Mueller, International Judicial Assistance in Criminal Matters, in International Criminal Law 41 (Gerhard O.W. Mueller & Edward M. Wise eds., 1965).

[606] See, e.g., US Extradition Act, 18 U.S.C. § 3181 et seq.

[607] Inter-American Convention Against Terrorism, supra note 8.

[608] Id., Article 15.

[609] Paniagua Morales et al. Case, supra note 132, para. 91. See similarly Riofrío Massacre Case, supra note 132, paras. 48-52.

[610] See, e.g., Celiberti v. Uruguay, Comm. Nº R13/56, Report of the Human Rights Committee, UN GAOR, 36th Sess., Supp. No. 40, at 185, UN Doc. A/36/40 (1981) [hereinafter Celiberti, HRC Case]; Humberto Alvarez-Machain v. United States, 266 F.3d 1045 (US Court of Appeals for the 9th Circuit, 2001).

[611] See, e.g., Resolution on the Regionalization of International Criminal Law and the Protection of Human Rights in International Cooperation in Criminal Proceedings, XVth Congress of International Penal Law Association (Sept. 1994); OAS Permanent Council, Resolution II.15.92, opinion of the Inter-American Juridical Committee concerning the situation on Humberto Alvarez Machain.

[612] See, e.g., Annual Report of the IACHR 1976, OEA/Ser.L/VII.40, doc. 5 corr.1, 10 March 1977, pp. 16-18; Annual Report of the IACHR 1980-81, supra note 141, at 120. See similarly Humberto Alvarez-Machain v. United States, supra note 610, at 1050-1053.

[613] See, e.g., Celiberti, HRC Case, supra note 610; Burgos v. Uruguay, Comm. No. 12/52, Report of the Human Rights Committee, UN GAOR, 36th Sess., Supp. Nº 40, at 176, U.N. Doc. A/36/40 (1981); Humberto Alvarez-Machain v. United States, supra note 610, at 1050-1053.

[614] See similarly Castillo Petruzzi et al. Case, supra note 55, paras. 218-219 (holding that if the proceedings upon which a judgment rests have serious defects that strip them of the efficacy they must have under normal circumstances, the judgment will not have the necessary underpinning, namely litigation conducted by law, and therefore cannot stand).

 

[615] See, e.g., Advisory Opinion OC-8/87, supra note 147, paras. 21-27.

[616] See Ten Years of Activities, supra note 1, at 341; IACHR Report on Argentina (1980), supra note 27, at 26; IACHR, Report on Guatemala (1983) supra note 569, at 18; IACHR Report on Peru (2000), supra note 27, paras. 71-73. See similarly UNHRC, General Comment No. 29, supra note 141, para. 16; International Commission of Jurists, States of Emergency, supra note 345, at 427-428, Nos.1-8; Paris Minimum Standards, supra note 345, at 82-83; Siracusa Principles, supra note 345, Principles 70(e) – (g). As discussed in Part III(D), para. 258, infra, in situations of armed conflict, Article 75 of Additional Protocol I and Article 6 of Additional Protocol II do not expressly provide for the right to appeal. The right may nevertheless exist in situations to which these provisions apply, however, by reason of the principle, discussed in Part II(B) above, that precludes one human rights instrument from being construed or applied so as to limit or infringe a more favorable provision granting greater protection under any other applicable rules of international law, such as Article 8(2)(h) of the American Convention. See, e.g., Additional Protocol I, supra note 68, Article 75(8), American Convention on Human Rights, supra note 61, Article 29.

[617] See, e.g., Abella Case, supra note 73, para. 166; New Rules, supra note 210, at 619.

[618] See also supra, Part II(C), para. 78, citing the American Convention on Human Rights, supra note 61, Articles 27(1), 29; International Covenant on Civil and Political Rights, supra note 66, Article 5(2); Buergenthal, To Respect and Ensure, supra note 69, at 90.

[619] See, e.g., UN Body of Principles on Detention or Imprisonment, supra note 335, Principle 18; UNHRC General Comment Nº 13, supra note 545, para. 6; Eur. Court H.R., Campbell and Fell v. United Kingdom, June 28, 1984, Ser. A Nº 80, 7 E.H.R.R. 165, paras. 87, 88; ICTY, Rules of Procedure and Evidence, 11 February 1994, as amended on 13 December 2001, IT/32/REV.22. Article 79 [hereinafter ICTY, Rules of Procedure and Evidence].

[620] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. V, paras. 67-69.

[621] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. V, paras. 124-126 (describing dangers encountered in the use of anonymous witnesses in the regional justice system in Colombia).

[622] See, e.g., Eur. Court H.R., Doorson v. Netherlands, March 26, 1996, R.J.D. 1996-11, Nº 6, paras. 70-76. See similarly International Commission of Jurists, States of Emergency, supra note 345, at 429. The Statutes and the Rules of Procedure of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda constitute examples of contemporary efforts to fairly adjudicate serious crimes in circumstances where participants may be particularly vulnerable to threats, and include provisions for the protection of the identities of victims and witnesses. See, e.g., ICTY Statute, supra note 549, Article 22 (“The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but not be limited to, in camera proceedings and the protection of the victim’s identity.”); ICTY, Rules of Procedure and Evidence, supra note 619, Rule 75(B)(III) (permitting a Chamber to hold an in camera hearing to determine whether to order “appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television”).

[623] See, e.g., IACHR Report on Colombia 1999, supra note 110, Ch. IV, paras. 67-70.

[624] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. IV, paras. 124-126.

[625] See supra, Part III(B), para. 140.

[626] Ten Years of Activities, supra note 1, at 320. See similarly Askoy Case, supra note 346, para. 76.

[627] See, e.g., ICRC Commentary on the Additional Protocols, supra note 210, at 879 (indicating that most of the guarantees listed in subparagraphs 75(4)(a) to (j) are contained in the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the American Convention on Human Rights); 1397 (observing that Article 6 of Additional Protocol II supplements and develops Article 3(1)(d) common to the 1949 Geneva Conventions, reiterates the principles contained in the Third and Fourth Conventions, and is largely based on the International Covenant on Civil and Political Rights).

[628] See, e.g., Third Geneva Convention, supra note 67, Articles 82-108 (governing disciplinary and penal sanctions against prisoners of war); Article 130 (prescribing the willful deprivation of the rights of a fair and regular trial to be a grave breach of the Convention); Fourth Geneva Convention, supra note 36, Articles 64-75 (governing penal prosecution of civilians in occupied territory), Articles 117-126 (regulating disciplinary and penal sanctions against interned civilians), Article 147 (prescribing the willful deprivation of the rights of a fair and regular trial to be a grave breach of the Convention); Additional Protocol I, supra note 68, Article 45(2) (providing for the right of a defendant to assert his entitlement to prisoner of war status before a judicial tribunal and have that question adjudicated).

[629] See supra Part III(A), para. 104.

[630] See, e.g., Third Geneva Convention, supra note 67, Article 147.

[631] Third Geneva Convention, supra note 67, Article 84.

[632] Id.

[633] See supra Part II(C), para. 64.

[634] See, e.g., Third Geneva Convention, supra note 67, Article 87. See also ICRC Commentary on the Additional Protocols, supra note 210, at 879-880.

[635] In this regard, certain provisions of international humanitarian law expressly provide for a right of appeal. For example, Article 106 of the Third Geneva Convention provides that “[e]very prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.” In contrast, neither Article 75 of Additional Protocol I nor Article 6 of Additional Protocol II expressly include the right to appeal among their due process protections, but rather guarantee convicted defendants the right to be “advised on conviction of his judicial and other remedies and of the time limits within which they may be exercised.” See Additional Protocol I, supra note 68, Article 75(4)(j); Additional Protocol II, supra note 36, Article 6(3). The right to appeal may nevertheless apply to persons protected by these provisions, by reason of the principle, discussed in Part II(B) above, that precludes one human rights instrument from being construed or applied so as to limit or infringe a more favorable provision granting greater protection under any other applicable rules of international law, including the right to appeal reflected under Article 8(2)(h) of the American Convention and Article 14(5) of the ICCPR. See supra, Part II(B), para. 45. Article 75(8) of Additional Protocol I provides in this connection that “[n]o provision of this Article may be construed as limiting or infringing any other more favorable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.”

[636] ICRC Commentary on the Additional Protocols, supra note 210, at 879-880, para. 3092.

[637] See supra Parts II(B), (C), paras. 56, 7, citing, inter alia, American Convention on Human Rights, supra note 61, Article 29(b); International Covenant on Civil and Political Rights, supra note 66, Article 5(2); Buergenthal, To Respect and Ensure, supra note 69, at 90.

[638] See UN Convention on the Status of Refugees, supra note 120, Article 1F (“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”).

 



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