University of Minnesota




Report on Terrorism and Human Rights, Inter-Am. C.H.R., OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. (2002).



a. Prior Censorship

312. As previously noted, Article 13 of the American Convention contains a virtually complete ban on prior censorship, which is not found in other international human rights instruments and which indicates the high regard the drafters of the Convention had for the right to freedom of expression. While there are no exceptions in this Article for national security or public order reasons, there could arise in the context of an emergency situation, validly declared under Article 27, some situations in which national security or public order arguably would permit limited censorship. There is no jurisprudence in the inter-American system that specifically speaks to this issue, however, cases from the United States and from the European human rights system demonstrate the high level of scrutiny that any prior censorship must be given.

313. The jurisprudence of the United States is of particular relevance to the present discussion mostly because, in addition to containing an abundant quantity of cases on the issue of prior censorship, it deals with principles that are similar to those provided for in Article 13 of the American Convention. Notwithstanding the fact that the US Supreme Court has contemplated the possibility of prior restraint for national security reasons,[750] it has never upheld such an injunction on these grounds. The high level of scrutiny given to prior restraints on expression is illustrated by the important "Pentagon Papers" case, where the Court struck down an injunction to prevent the publication of portions of a classified government report during the Vietnam War.[751] In that case, one member of the Court considered that “absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result” would be acceptable.[752] Other members considered that the government had not satisfied the heavy burden of showing that the publication would surely result in direct, immediate, and irreparable damage to the nation.[753]

314. The case law of the European Human Rights system can serve as a relevant indicator of the application of the issue of prior censorship at the regional level, in particular considering its considerable number of cases dealing with freedom of expression. Notwithstanding the fact that the European Human Rights System does not recognize the same absolute ban on prior censorship as in the inter-American system, its institutions have also been reluctant to allow prior restraints on dissemination of expression, as illustrated in the "Spycatcher cases." [754] In those cases, the European Court of Human Rights rejected injunctions based on national security grounds as incompatible with freedom of expression, considering that the injunctions could not be deemed to be necessary to protect national security because the publication in question had been published in another state, destroying the confidentiality of the material.

315. Given these examples, it should be clear that even during a state of emergency, the interest of the public in having information generally outweighs the need to keep it secret. Moreover, once the information becomes in any way public, the interest of the public in having access to the information is generally deemed to outweigh the need to prevent more widespread dissemination.

b. Subsequent Penalties

316. As stated previously, the imposition of subsequent penalties for the dissemination of expressions must be “expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public heath or morals.”[755] These requirements apply in the context of addressing terrorism, unless a state of emergency has been lawfully declared. There are several problems that are typically associated with subsequent penalties aimed at anti-terrorism, or those based generally on "public order" or "national security", the main rationales used to justify subsequent penalties for speech in the context of terrorism. First, as noted earlier in this chapter, the requirement that any subsequent penalties must be established by law means that it must be foreseeable to the communicator that a particular expression may give rise to legal liability. As noted by one author, “[o]ne problem with order and security laws is that they are often very broad and/or vague. This means they can potentially be abused by governments to suppress legitimate criticism and that they exert a chilling effect as citizens steer well clear of the potential zone of application to avoid censure. To some extent this is a function of the difficulty of defining with any degree of precision in a law of general application the exact parameters of the public order or national security threat in issue."[756] An overly broad or vague provision may not fulfill the requirement of foreseeability and therefore may violate the terms of Article 13(2).

317. More frequently, the problems presented by laws imposing subsequent liability on expressions in the context of fighting terrorism relate to the issue of proportionality of the penalties. Too often, penalties are excessive in relation to the type of harm they are designed to prevent.

318. The Inter-American Commission on Human Rights addressed this issue in a terrorism-related situation in the case of Rodolfo Robles Espinoza and sons.[757] General Robles suffered numerous repercussions, including Court Martial proceedings against him for various crimes, including insubordination, insulting a superior, undermining the Nation and the Armed Forces, abusing his authority, making false statements, and dereliction of duty because he denounced abuses committed by the Peruvian army and intelligence services in the context of fighting terrorism. The Inter-American Commission found that these repercussions constituted a serious violation of General Robles' right to freedom of expression. The Commission noted that "undermining the Armed Forces or insulting a superior are appropriate terms when applied to the crimes for which they were created, in order to maintain a level of discipline suitable to the vertical command structure needed in a military environment, but that they are totally inappropriate when used to cover up allegations of crimes within the Armed Forces."[758] The Commission further noted that the right to freedom of expression, although it may be subject to reasonable subsequent penalties in accordance with the terms of the Convention, is broader when the "statements made by a person deal with alleged violations of human rights."[759] Thus, the requirement of proportionality of the penalty was not met.

319. The European Court of Human Rights addressed a similar issue in the case of Sürek v. Turkey (Nº2),[760] dealing with the subsequent sanctions imposed for the publication of a document suggesting the misconduct of officials involved in counter-terrorism policies. The Court determined that, given the terrorist threat present in a part of the country at the time, the said provision had the legitimate aim of protecting national security, territorial integrity, and the rights of others.[761] However it found that that the sanction was not proportionate to the aims of the law because of the greater importance of bringing to light wrongdoings by public officials.[762]

320. The analysis may be different in a case in which the party, who has a duty of confidentiality, reveals information for reasons other than exposing the wrongdoing of public officials. In Hadjianastassiou v. Greece, [763] for example, a case dealing with the private sale by a military officer of arms-related data, the European Court, in assessing the reasonableness or propriety of the sanction at issue, considered that the disclosure of information that may reveal a state’s interest, technological knowledge, or progress in the manufacture of a weapon could cause considerable damage to national security. It also noted that, while members of the military enjoy a right to freedom of expression, special conditions are attached to military life and specific 'duties' and 'responsibilities' are incumbent on members of the armed forces. As a result, in this case the Court determined that the sanction was not unreasonable or improper.[764]

321. Also pertinent to the issue of subsequent penalties are limitations on the dissemination of expressions that could be considered to be supportive of violence or of violent groups. The European Court's approach to such cases has been to evaluate, in light of the circumstances, the likelihood that such statements will cause violence. In Incal v. Turkey,[765] for example, the Court recognized the difficulties inherent in fighting terrorism, but nevertheless decided that a subsequent penalty based on anti-terrorism legislation violated the Convention, taking into account the sanction’s severity,[766] the fact that prior approval was sought, the importance of free speech to political parties, and the importance of greater openness to criticism with respect to the government.[767] The Court also considered that the document, although containing strongly worded criticism, did not clearly incite "to the use of violence, hostility or hatred between citizens."[768] In Zana v. Turkey,[769], in contrast, the Court found no violation of the right to freedom of expression because it considered that, in light of all of the circumstances of the case, the impugned statements could indicate support for violence and "had to be regarded as likely to exacerbate an already explosive situation[.]"[770]

322. The United States Supreme Court has developed an even stricter test in cases dealing with expression deemed to be supportive of violence or of violent groups, requiring not only a showing of incitement to violence, but also a showing of a clear intent to do so. This test resulted from several key decisions, including Schenck v. United States,[771] Abrams v. United States,[772] and Brandenburg v. Ohio.[773] In the Brandenburg case, the Court rejected the holdings of various earlier cases that had upheld convictions based on mere advocacy of violence or unlawful activity, as opposed to actual incitement.[774] It stated that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[775] Thus, in order to impose subsequent liability for speech, the current U.S. approach specifically requires intent to incite lawless activity and a likelihood of success,[776] which accords more closely to the terms under the American Convention as opposed to other international human rights instruments.

323. Article 13 of the American Convention clearly requires that "propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action" should be considered offenses punishable by law."[777] However, laws that broadly criminalize the public defense (apologia) of terrorism or of persons who might have committed terrorist acts, without considering the element of incitement “to lawless violence or to any other similar action,”[778] are incompatible with the right to freedom of expression.[779]

324. In addition to imposing subsequent sanctions on the author of a particular expression, states have in some cases imposed sanctions on journalists or others who transmit ideas and information that the state has determined are sanctionable. On this issue, the European Court of Human Rights, in the "Greenjackets" case,[780] held that a penalty of this nature was disproportionate to the objective sought, and indicated further that "[t]he punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so." [781]

325. Several important principles emerge from the foregoing discussion that are necessary for states to apply when constructing anti-terrorism legislation allowing subsequent penalties on expression. First, the basis for subsequent liability must be defined with adequate precision. Second, the states must apply a balancing test to determine the proportionality of the sanction in comparison with the harm sought to be prevented. The case summaries illustrate the ways in which the proportionality test required by international human rights law may be applied in practice. Factors that must be considered include: the dangers presented by the speech within the context of the situation (war, fighting terrorism, etc); the position of the individual making the speech (military, intelligence, official, private citizen, etc.) and the level of influence he or she may have on members of society; the severity of the sanction in relation to the type of harm caused or likely to be caused; the usefulness of the information to the public; and the type of media used. A journalist or other third party who merely transmits statements made by another party should not be subject to sanctions except in very limited circumstances. Additionally, statements that implicate the government in wrongdoing deserve a high level of protection, as public scrutiny of governmental actions is one of the most important democratic values. Even in cases in which the person disclosing the information obtained it through a confidential disclosure, the person may not be punished if the public's interest in having the information is greater than the harm done from disclosing it.[782] Finally, legislation that broadly criminalizes the public defense (apologia) of terrorism or of persons who might have committed terrorist acts without requiring an additional showing of incitement “to lawless violence or to any other similar action”[783] should be avoided.[784]

c. Protection of sources

326. In the context of fighting terrorism outside of a state of emergency, the confidentiality of sources is subject to the same level of protection that it is normally accorded.[785] In order to compel disclosure, there must be "a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim."[786] The disclosure must be "necessary" within the terms of Article 13(2) of the Convention.

d. Access to Information and Habeas Data

327. In the context of fighting terrorism, governments often attempt to restrict access to broad categories of information related to the investigation of suspected terrorists, the gathering of intelligence and the execution of police and military actions. In some of these cases, the government may have a legitimate need to keep information secret in order to protect national security or public order. At the same time, the public's need for information is greater than ever as anti-terrorism actions may be subject to abuse and the public and the press are among the most significant checks on abusive governmental behavior.

328. The Johannesburg Principles[787] provide guidance as to the balancing of these two competing interests. Principle 1(2) states:

Any restriction on expression or information that a government seeks to justify on grounds of national security must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest.

329. The Johannesburg Principles define legitimate national security interests, stating:

(a) A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose or demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government.

(b) In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.[788]

330. Most access to information laws contain exemptions that allow the State to refuse to release information on the grounds that to do so would damage the State's national security or ability to maintain public order. These exemptions should be applied only to information that clearly affects national security as defined by the foregoing. Moreover, the restriction must not only serve to protect the national security or public order, it must also require that the information should be disclosed unless the harm to one of these legitimate interests would be substantial.[789] Applying these principles, the following could be considered an appropriate restriction based on national security concerns, so long as the other guarantees required by access to information are in place[790]:

A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, cause serious prejudice to the defence or national security of [insert name of State].[791]

331. The Johannesburg Principles acknowledge that, as a result of emergency situations, States may have to impose additional restrictions on access to information, but "only to the extent strictly required by the exigencies of the situation and only when and for so long as they are not inconsistent with the government's other obligations under international law."[792] In such cases, States bear the burden of proof in showing that the restrictions are not excessive in light of the exigencies of the situation. As stated earlier, States under lawfully declared emergency situations should take into account the importance of freedom of expression for the functioning of democracy and guaranteeing other fundamental rights when considering suspending any guarantees under Article 13 of the Convention.[793]

332. Like the general right to access to information in the hands of the government, the right to habeas data may be subject to restrictions that are necessary to protect national security or public order and are proportionate to the harm intended to be prevented by maintaining the secrecy of the information. In states of emergency, the State may impose additional restrictions for the time and to the extent required by the exigencies of the situation.

e. Non-discrimination

333. Clearly all of the foregoing standards must be observed without discrimination on the basis of "race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition," as stated in the Declaration of Principles on Freedom of Expression.[794] This report has also addressed, in the section on privacy, the problems with different types of surveillance of individuals even in cases in which there is no reasonable suspicion that they are linked to terrorist activity. A lengthy discussion of such activity is not necessary here, but it should be stated that these types of activities also produce effects on the full enjoyment of the right to freedom of expression.

Unjustified investigations of political expression and dissent can have a debilitating effect upon our political system. When people see that this can happen, they become wary of associating with groups that disagree with the government and more wary of what they say and write. The impact is to undermine the effectiveness of popular self-government. If people are inhibited in expressing their views, a nation's government becomes increasingly divorced from the will of its citizens.[795]

F. The Obligation to Respect and Ensure, Non-Discrimination and the Right to Judicial Protection

1. International Human Rights Law

334. As with all international commitments, states are bound to perform their international human rights obligations in good faith.[796] This includes conducting themselves so as to respect and to ensure to all persons subject to their jurisdiction the free and full exercise of human rights without discrimination of any kind.[797] As discussed in previous sections of this report addressing the right to personal liberty and security[798] and the right to due process and to a fair trial,[799] the availability of simple and prompt access to the courts is essential to ensuring respect for rights under domestic and international law. According to the Inter-American Court of Human Rights,

the right of every person to simple and rapid remedy or to any other effective remedy before the competent judges or courts, is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society in the terms of the Convention.”[800]

335. The principle of non-discrimination is a particularly significant protection that permeates the guarantee of all other rights and freedoms under domestic and international law and is prescribed in Article II of the American Declaration and Articles 1(1) and 24 of the American Convention:

American Declaration

Article II. All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.

American Convention

Article 1.1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

Article 24. All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.

336. The Inter-American Court has stated in respect of the right to non-discrimination under the American Convention that Articles 24 and 1(1) are conceptually distinct,[801] but at the same time that the notion of equality common to these provisions

[s]prings directly from the oneness of the human family and is linked to the essential dignity of the individual. That principle cannot be reconciled with the notion that a given group has the right to privileged treatment because of its perceived superiority. It is equally irreconcilable with that notion to characterize a group as inferior and treat it with hostility or otherwise subject it to discrimination in the enjoyment of rights which are accorded to others not so classified. It is impermissible to subject human beings to differences that are inconsistent with their unique and congenerous character. [802]

337. In the same spirit, the UN Human Rights Committee has defined the term “discrimination” under the ICCPR as implying

any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.[803]

338. While the doctrine of the inter-American human rights system, like that of other human rights regimes, does not prohibit all distinctions in treatment in the enjoyment of protected rights and freedoms, it requires at base that any permissible distinctions be based upon objective and reasonable justification, that they further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and that the means are reasonable and proportionate to the end sought.[804] Distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments are subject to a particularly strict level of scrutiny whereby states must provide an especially weighty interest and compelling justification for the distinction.[805] The principle of equality may also sometimes require member states to take affirmative action as a temporary measure in order to diminish or eliminate conditions which cause or help to perpetuate discrimination, including vulnerabilities, disadvantages or threats encountered by particular groups such as minorities and women.[806]

339. The obligation to respect and ensure human rights without discrimination and the right to judicial protection are also reflected in several provisions of the American Declaration and the American Convention, including the following:

American Declaration

Article 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.

Article XXIV. Every person has the right to submit respectful petitions to any competent authority, for reasons of either general or private interest, and the right to obtain a prompt decision thereon

American Convention

Article 1.1 The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

2. For the purposes of this Convention, "person" means every human being.

Article 2. Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.

Article 3. Every person has the right to recognition as a person before the law.

Article 25.1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.

2. The States Parties undertake:

a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;

b. to develop the possibilities of judicial remedy; and

c. to ensure that the competent authorities shall enforce such remedies when granted.

340. According to these provisions, not only do states have the paramount responsibility to conduct themselves so as to ensure the free and full exercise of human rights,[807] but also an implicit duty to organize the governmental apparatus and all the structures through which public power is exercised so that they are capable of juridically ensuring the free and full enjoyment of those human rights.[808] In this sense, the availability of recourse to an effective and independent legal system to evaluate and enforce these obligations serves as a crucial fortification for the protection of human rights. These commitments also require that states use the means at their disposal to prevent human rights violations and to provide effective remedies for any violations that do occur, including undertaking thorough and effective investigations capable of identifying and punishing persons responsible for human rights infringements.[809] In this respect, the Inter-American Court has recognized an inherent interconnection between member states’ duties to respect, ensure, and give effect to human rights and to provide effective judicial protection for rights in accordance with the requirements of due process, as provided for in Article 1(1), 8 and 25 of the American Convention.[810]

341. The availability of prompt and effective access to courts in turn necessitates recognition of the right to legal personality and to be recognized as a person before the law. Moreover, the requirement of judicial protection, when taken together with the right to due process and a fair trial, may necessitate the provision of legal assistance free of charge to pursue such remedies where the interests of justice so require. Factors pertinent to this determination include the resources available to the person concerned, the complexity of the issues involved, and the significance of the rights involved.[811]

342. The obligation to respect and ensure the full and free exercise of human rights must also be discharged without discrimination of any kind, as defined above.[812]

343. It must also be emphasized that the requirement that states respect and ensure fundamental human rights through judicial protection without discrimination is non-derogable. As discussed in Part II(B) of this report, the declaration of a state of emergency, whatever its breadth, cannot entail the suppression or ineffectiveness of the judicial guarantees that states are required to establish for the protection of the rights not subject to derogation or suspension by the state of emergency.[813] Moreover, the right to juridical personality is counted among the rights from which no derogation is permitted under Article 27(2) of the American Convention, and the authority of states to suspend guarantees under Article 27(1) of the Convention is expressly limited so as to prohibit discrimination. This means that even if a state takes legitimate measures of derogation in accordance with Article 27(1) of the Convention, the measures can never discriminate on the grounds mentioned under that article. For these reasons, then, the right to judicial protection, and with it the obligation to respect and ensure fundamental human rights without discrimination, may not be suspended under any circumstances.

2. International Humanitarian Law

344. The obligation of states to respect and ensure individual rights under international law has also played a longstanding and crucial role in securing observance of the protections under international humanitarian law. Article 1 common to the four Geneva Conventions constitutes a predominant and absolute codification of this principle, providing that

[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.[814]

345. This provision clarifies that the responsibilities undertaken by states parties to the treaties amount to more than arrangements agreed upon on the basis of reciprocity, but rather constitute “a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties.”[815] The general obligation to respect and ensure respect under common Article 1 is supplemented by provisions under Articles 16 of the Third Geneva Convention and Article 13 of the Fourth Geneva Convention requiring that the protections of the treaties be afforded without any adverse distinction based upon such factors as race, nationality, religion or political opinion. It is also augmented by the grave breach provisions of the Geneva Conventions and Additional Protocol I, including Article 129 of the Third Geneva Convention, Article 146 of the Fourth Geneva Convention, and Article 85 of Additional Protocol I, which require states parties, inter alia, to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed any grave breaches as defined in the treaties, and to “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” In the case of Additional Protocol II, Article 2 of that instrument provides more generally that “[t]his Protocol shall be applied without any adverse distinction founded on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria (hereinafter referred to as “adverse distinction”) to all persons affected by an armed conflict as defined in Article 1.”

346. As with international human rights law, there are aspects of international humanitarian law that preserve the civil capacities of protected persons, and that mandate access to judicial remedies in certain circumstances. Article 14 of the Third Geneva Convention and Article 80 of the Fourth Geneva Convention provide, respectively, that prisoners of war and civilian internees shall retain their full civil capacity which, in the case of the exercise of the rights such capacity confers, may not be restricted by a Detaining Power except in so far as the captivity or internment requires. These provisions ensure that prisoners of war or internees are able to exercise their rights both in the country of detention or internment and, particularly in the case of prisoners of war, in his or her country of origin or domicile.[816]

347. With regard to recourse to competent courts or tribunals, certain provisions of the Third and Fourth Geneva Conventions and Additional Protocol I prescribe specific review mechanisms that must be made available to persons protected under these treaties under certain circumstances. These include:

*

a “competent tribunal” under Article 5 of the Third Geneva Convention and Article 45(1) of Additional Protocol I to determine the status of a person who has committed a belligerent act and has fallen into the hands of the enemy, when that person’s inclusion in any of the categories of prisoners of war under Article 4 of the Third Geneva Convention is in doubt
*

an “appropriate court or administrative board” under Article 43 of the Fourth Geneva Convention, to reconsider, as soon as possible and thereafter periodically, a decision to place persons protected under the Fourth Geneva Convention in internment or assigned residence in the territory of a party to the conflict
*

a “right of appeal” under Article 78 of the Fourth Geneva Convention in respect of a decision by an Occupying Power to subject protected persons to assigned residence or to internment
*

a “judicial tribunal” under Article 45(2) of Additional Protocol I to adjudicate the entitlement to prisoner of war status of a person who has taken part in hostilities and has fallen into the hands of the enemy, is not held as a prisoner of war, and is to be tried by that Party for an offense arising out of the hostilities

348. These mechanisms are in addition to the requirements under international humanitarian law, canvassed in Section III(D) on the right to due process and to a fair trial, of a competent, independent and impartial tribunal as defined by applicable international standards in the case of persons who are prosecuted and punished for criminal offenses in the context of armed conflict.[817]

349. As with all fundamental protections under international humanitarian law, the obligations of states to respect and ensure respect for the rights and protections under international humanitarian law in situations of armed conflict, including by way of the mechanisms outlined above, do not permit any derogation.[818]

3. The Obligation to Respect and Ensure without Discrimination, the Right to Judicial Protection, and Terrorism

350. Of paramount importance in clarifying the role and application of international human rights protection in the context of terrorist threats is recognition of the fundamental premise that states are bound to respect and ensure respect for their human rights obligations in good faith at all times, and that these obligations must inform the manner in which states respond to terrorist threats. Even in respect of rights that may be the subject of limitation or derogation, states must comply strictly with the conditions regulating the permissibility of such limitations or derogations, which in turn are based upon the fundamental principles of necessity, proportionality and non-discrimination.

351. Also non-derogable under international human rights law and international humanitarian law is the requirement that states fulfill their obligations without discrimination of any kind, including discrimination based upon religion, political or other opinion or national or social origin. This applies not only to a state’s commitment to respect and ensure respect for fundamental rights in the context of terrorist threats, but also limits the measures that states may take in derogating from rights that may properly be suspended in times of emergency by prohibiting any such measures that involve discrimination on such grounds as race, color, sex, language, religion, or social origin. The principle of non-discrimination also applies to all aspects of a state’s treatment of individuals in connection with anti-terrorist initiatives, including their treatment when in detention.

352. Intimately connected with the obligation to respect and ensure fundamental human rights is the availability of simple and prompt recourse to competent courts or tribunals to secure the protection of those rights. This obligation is particularly pertinent in the case of detainees owing to their vulnerable status as being entirely within the power and control of the State. While the nature of the courts or tribunals may vary, depending in particular upon the applicability of international humanitarian law as the lex specialis in situations of armed conflict,[819] the availability of recourse to judicial protection to persons affected by anti-terrorist initiatives cannot be suspended insofar as they are necessary for the protection of the rights not subject to derogation in times of emergency.

353. While these requirements must inform the development and execution of all anti-terrorist initiatives undertaken by member states, the Commission considers that the basic rules governing respect for fundamental human rights without discrimination may have implications for particular measures adopted by states in connection with terrorist threats that warrant further discussion. These measures include the manner in which states detain or otherwise restrict the liberty of individuals in connection with terrorist threats and certain methods of investigation employed by law enforcement authorities. In particular, law enforcement agencies might engage in practices contrary to the prohibition against discrimination in their efforts to investigate terrorism-related crimes by, for example, engaging in a pattern or practice of using prohibited bases of discrimination as the grounds for selecting targets of investigation. This particular practice is sometimes referred to as “profiling.”[820] Past uses of profiling in the context of domestic law enforcement have been known to incorporate a variety of characteristics including race and national origin.[821] In light of the significant risk that investigative methods of this nature are on their face discriminatory or may be utilized in a discriminatory manner,[822] the Commission considers that any use of profiling or similar devices by a state must comply strictly with international principles governing necessity, proportionality and non-discrimination and must be subject to close judicial scrutiny. As mentioned previously, distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments are subject to a particularly strict level of scrutiny whereby states must provide an especially weighty interest and compelling justification for the distinction.[823]

354. As highlighted in previous sections of this report, in circumstances where states detain individuals for reasons relating to a terrorist threat, whether for administrative or preventative reasons, the laws authorizing the detention cannot be applied so as to target individuals based upon a prohibited ground of discrimination. Further, with the exception of privileged and unprivileged combatants and other victims in international armed conflict, whose detention is governed by specific rules and principles under international humanitarian law, the legality and propriety of a person’s detention must always be subject to immediate and, thereafter, periodic independent review of an appropriate court or tribunal.[824] While the particular requirements of the review process may vary depending upon the circumstances of a particular case, in all instances minimum standards of human rights law require that detention review proceedings comply with the rules of procedural fairness. These rules include the requirements that the decision-maker meets prevailing standards of impartiality, that the detainee is given an opportunity to present evidence and to know and meet the claims of the opposing party, and that the detainee be given an opportunity to be represented by counsel or other representative. In circumstances in which an individual is the subject of criminal proceedings relating to terrorism, under all circumstances, including those involving armed conflict,[825] he or she may only be tried by a competent, independent and impartial tribunal previously established by law and respecting the generally recognized principles of regular judicial procedure.[826] 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.[827]

355. The Commission recognizes in this connection that the effective investigation of terrorist crimes may, owing to their ideological motivation and the collective means by which they are carried out, necessitate the investigation of individuals or groups who are connected with particular political, ideological or religious movements or, in the case of state-sponsored terrorism, the governments of certain states.[828] The Commission must also emphasize, however, that anti-terrorist initiatives that incorporate criteria of this nature, in order not to contravene the absolute prohibition against discrimination, must be based upon objective and reasonable justification, in that they further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and that the means are reasonable and proportionate to the end sought. Distinctions based upon grounds expressly enumerated in the pertinent provisions of international human rights instruments are subject to an enhanced level of scrutiny, as described above.

356. This would require, for example, the existence of reasonable grounds connecting a particular group to terrorist activities before an individual’s association with that group might properly provide a basis for investigating him or her for terrorist-related crimes. Even then, the extent to which and the manner in which investigative methods of this nature are undertaken and the resulting information is collected, shared and utilized must be regulated in accordance with the principles of reasonableness and proportionality, taking into account, inter alia, the significance of the objective sought and the degree to which the state’s conduct may interfere with the person or persons concerned. As discussed in further detail in Parts III(E) and (G), considerations in this respect include implications for the right to privacy pertaining to the collection and use of personal information. States must therefore remain vigilant in ensuring that their laws and policies are not developed or applied in a manner that encourages or results in discrimination, and that their officials and agents, including military forces, conduct themselves fully in conformity with these rules and principles.

G. Other Fundamental Rights

357. The Commission has endeavored through this study to provide timely and focused guidance as to the protection of fundamental human rights by states in responding to terrorist threats. While the report has provided a detailed analysis of six of the core rights especially implicated by responses to terrorism, the impact of anti-terrorist initiatives may inevitably extend to other significant areas of international human rights law. Both historical experience and the nature and reach of modern terrorist threats suggest that the rights to freedom of assembly and of association, the right to freedom of conscience and religion, the right to property, the right to privacy and the right to participate in government may be particularly vulnerable to transgressions. In order to raise the consciousness of states to these additional aspects of the human rights implications of terrorism, an abbreviated discussion of several of these rights is provided below.

 

Notes___________________________

[750] Near v Minnesota 283 U.S. 697 (1931). The U.S. Supreme Court noted in a hypothetical example that "[n]o one would question but that a government might prevent [. . .] the publication of the sailing dates of transports or the number and location of troops." See also Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) according to which, in the United States, the party wishing to impose a prior restraint, such as an injunction against publication, bears a "heavy burden of showing justification" for its imposition.

[751] See New York Times Co. v. United States, 403 U.S. 713 (1971) (the “Pentagon Papers” case). In the “Pentagon Papers” case, the Court struck down an injunction to prevent two major newspapers from printing portions of a classified government report entitled "History of U.S. Decision-Making Process on Vietnam Policy." The case arose at the height of the Vietnam War when domestic opposition to the war was at its peak [See Marc A. Franklin and David A. Anderson, Mass Media Law: Cases and Materials (5th ed. 1995), at 85].

[752] New York Times Co., 403 U.S., at 725-26 (Brennan, J., concurring).

[753] Justice Stewart voted for allowing disclosure, stating, "I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people." [New York Times Co., 403 U.S. at 728, 730 (Stewart, J. concurring)]. Justice White took a similar position, stating that he did not doubt that the disclosure of the documents would cause harm to the national interest, but that "the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication in these cases" [New York Times Co., 403 U.S. at 730, 731 (White, J., concurring)]. But See United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979), dismissed as moot 610 F.2d 819 (7th Cir. 1979). In that case, The Progressive, a magazine, was enjoined for six months from publishing an article entitled "The H Bomb Secret: How We Got It, Why We're Telling It." The article contained information on the design and manufacture of the H-bomb. The magazine claimed, however, that the information was gathered from a number of publicly available sources. Nevertheless, the judge in the Federal District Court (first instance) found that the government had "met the test enunciated by two Justices in the New York Times case, namely grave, direct, immediate and irreparable harm to the United States" [Progressive, Inc., 467 F. Supp. at 996]. This was due to the fact that the magazine had gathered the information related to making the bomb in a format that would make it possible for other countries to expedite their manufacturing of the bomb. The judge found that this was analogous to the hypothetical situation posed in Near v. Minnesota [supra note 750]. The case was ultimately dismissed, however, when a newspaper in Madison, Wisconsin published essentially the same information [see Franklin and Anderson, supra note 751, at 95.].

[754] Eur. Court H.R., Observer and Guardian v. the United Kingdom, Judgment of November 26, 1991, Ser. A Nº 216, and Eur. Court H.R., Sunday Times v. United Kingdom (Nº 2), Judgment of October 24, 1991, Ser. A Nº 217 [the "Spycatcher cases"]. "Spycatcher" was a book containing the memoirs of a former senior member of the British Security Service (M15). It dealt with "the operational organisation, methods and personnel of M15 and also included an account of alleged illegal activities by the Security Service" [Observer and Guardian, supra, para. 11]. The applicant newspapers complained that a temporary injunction on the publication of information obtained from the book was a restriction that was incompatible with freedom of expression. The European Court found that because the book had been published in the United States, the confidentiality of the material was essentially destroyed and the injunction could not be deemed to be necessary to protect national security. In the Observer and Guardian case, the Court found that a temporary injunction was valid up until the time of the publication abroad. Id. at para. 65.

[755] American Convention on Human Rights, supra note 61, Article 13(2).

[756] Toby Mendel, Criminal Content Restrictions, (January 1999), available at http://www.article19.org/docimages/629.htm.

[757] Case 11.317, Report No 20/99, Rodolfo Robles Espinoza and sons (Peru), Annual Report of the IACHR 1998. General Robles was the head of the Army Instruction School (COINDE) and former commander of the Third Military Region based in Arequipa, and was technically the third most senior officer in the Peruvian army in 1993. In May of 1993, he publicly revealed, by means of an open letter, the existence of a "death squad," known as the "Colina Group," set up by Peru’s National Intelligence Service (SIN) and comprising members of the SIN and the Armed Forces. The "Colina Group" was aimed at physically eliminating terrorists.

[758] Robles Espinoza Case, supra note 757, para. 151.

[759] Robles Espinoza Case, supra note 757, para. 146.

[760] Eur. Court H.R., Sürek v. Turkey (Nº 2), Judgment of July 8, 1999, Application
Nº 24122/94.

[761] Sürek Case (Nº 2), supra note 760, para. 29.

[762] Sürek Case (Nº 2), supra note 760, para. 39. While the Court recognized the importance of protecting the officials from reprisals by keeping their identities secret, it also recognized that the public has a right to know about misconduct of officials. As some of the information at issue had already been disclosed in other sources, the Court found that the likelihood of the officials receiving adequate protection as a result of the imposition of this sanction was outweighed by the public's interest in having the information. Id. at para 40.

[763] Eur. Court H.R., Hadjianastassiou v. Greece, Judgment of November 23, 1992, Ser. A Nº 252. The applicant was a captain in the air force and an officer in charge of a project for the design and production of a guided missile. He provided a technical study that he had written on the guided missile to a private company. He was convicted of disclosing military secrets and sentenced to two-and-a-half years of prison, which was reduced on appeal.

[764] Hadjianastassiou v. Greece, supra note 763, paras. 45-47. For a U.S. case dealing with subsequent liability for revealing government information in breach of fiduciary duty, see Snepp v. United States, 444 U.S. 507 (1980). Snepp was a former employee of the Central Intelligence Agency (CIA) who had signed an agreement that he would not publish any information relating to the CIA without prepublication clearance. Without receiving prior authorization from the CIA, he published a book about CIA activities in Vietnam. The government did not contend that the information contained in the book was classified or that Snepp did not have a right to publish it. Rather it claimed that "in light of the special trust reposed in him and the agreement that he signed, Snepp should have given the CIA an opportunity to determine whether the material he proposed to publish would compromise classified information or sources." Id. at 511. The Supreme Court recognized that the requirement of prepublication clearance was essential to the CIA for guaranteeing its intelligence sources that any confidential information that they provide will remain secret. In the absence of such a guarantee, the CIA's ability to obtain information from such sources would be seriously impaired, causing irreparable damage to American intelligence operations and, as a result, the U.S. Government as a whole. Thus, the Court allowed a constructive trust on the profits from the book.

[765] Incal v. Turkey, supra note 574, at 1547. In this case, the applicant was a member of the executive committee of the People's Labour Party (HEP), which printed leaflets denouncing the government's treatment of Kurds and called upon Turkish and Kurdish "democratic patriots" to take action against this situation by forming "neighbourhood committees based on the people's own strength." Id., para. 10. A sample of the leaflets was submitted to the Izmir security police, who considered that the leaflet "contained separatist propaganda capable of inciting the people to resist the government and commit criminal offenses" Id., para. 12. The leaflets were seized and criminal proceeding were instituted against the applicant and others involved in the printing for "attempting to incite hatred and hostility through racist words" in violation of provisions of the Criminal Code, the Prevention of Terrorism Act and the Press Act. Id., para. 15.

[766] Incal Case, supra note 574, para. 56. In addition to a prison sentence of 6 months, 20 days, the applicant was fined, his drivers' license was temporarily revoked and he was barred from the civil service, among other consequences.

[767] Incal Case, supra note 574, paras. 46-59.

[768] Incal Case, supra note 574, para. 50.

[769] Eur. Court H.R., Zana v. Turkey, Judgment of November 25, 1997, Reports of Judgments and Decisions Nº 57 1997-VII, p. 2533. The case dealt with the conviction and 12-month sentence of a locally-known political figure for violating a provision of the criminal code against defending "an act punishable by law as a serious crime" and "endangering public safety" [Id. at para. 26]. At the time, serious disturbances were occurring in Southeast Turkey between security forces and the Workers' Party of Kurdistan (PKK) and ten of eleven provinces in that area were under military rule. The applicant had stated in an interview that was later published, "I support the PKK national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PKK can kill women and children by mistake […]”
[Id. at para. 12].

[770] Zana Case, supra note 769, para. 60. The court also noted that the applicant had only served 1/5 of his sentence, creating a further argument for proportionality.

[771] 249 U.S. 47 (1919). This case dealt with convictions under the Espionage Act of June 15, 1917 for the distribution of leaflets that were said to attempt to cause and to cause in fact insubordination in the military and to obstruct recruiting and enlistment of troops during war against Germany. In enunciating its rule, the Supreme Court stated: “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced”. Id. at 52, footnotes omitted, emphasis added. While this case provided an important standard for protecting freedom of expression in the face of restrictions based on national security or public order, it was unclear and the courts often used it to uphold restrictions on freedom of expression on these grounds. See, e.g., Frohwerk v. United States, 249 U.S. 204 (1919) and Debs v. United States, 249 U.S. 211 (1919).

[772] 250 U.S. 616 (1919). Justice Holmes, in his famous dissent in the case of Abrams v. United States argued for a narrower interpretation of the rule that would apply equally in situations of war or emergency, taking into account the specific dangers raised by those situations. He stated that “the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times. But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.” Id. at 627-28 (Holmes, J., dissenting)] He continued, ”I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country”. Id. at 630.

[773] 395 U.S. 444 (1969). The defendant in Brandenburg was the leader of a Ku Klux Klan group who was convicted under the Ohio Criminal Syndicalism law of "'advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform' and for 'voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.'" Id. at 444-45. The defendant spoke at a Ku Klux Klan rally that was filmed and broadcast on local and national television. The film showed clips of the rally participants burning a cross and making racist and anti-Semitic statements. Some of the participants, but not the defendant, were carrying firearms. At one point, the defendant made a speech, in which he talked about the size of the Klan and planned marches on Washington, DC, St. Augustine, Florida and Mississippi. He also stated "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengence taken." Id. at 447.

[774] Brandenburg specifically overruled the decision in Whitney v. California, 274 U.S. 357 (1927). In that case, the Court considered the legitimacy of a conviction under California's Criminal Syndicalism Act, similar to the statute in Brandenburg. It was found in the lower court that the defendant organized and assisted in "'organizing, and was, is, and knowingly became a member of an organization, society, group and assemblage of persons organized to advocate, teach, aid and abet criminal syndicalism.'" Id. at 360. The charges arose from the defendant's membership in a "radical" branch of the Socialist party. She attended the Socialist Party's national convention in 1919, where the "radical" group, of which she was a member, formed the Communist Labor Party (CLP). The CLP adopted a national Platform and Program advocating "a unified revolutionary working class movement" for the "overthrow of capitalist rule." Id. at 363. It primarily advocated the use of strikes to achieve these ends. At a later convention to organize a local chapter of the CLP, the defendant was a member of the resolutions committee and in that capacity, she supported a resolution that would seek to attain the CLP's goals through traditional political means. The proposed resolution was rejected in favor of the national Platform and Program. Whitney remained a member of the Party and testified at the trial "that it was not her intention that the Communist Labor Party of California should be an instrument of terrorism or violence." Id. at 366. The Court, in upholding the conviction, did not review the facts, but held that the statute was constitutional as applied, giving great weight to the determination of the legislature that the acts prohibited posed great danger to the peace and security of the state.

[775] Brandenburg, 395 U.S. at 447.

[776] A U.S. doctrine related to the "clear and present danger" doctrine is the "fighting words" doctrine, set forth in the case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). "Fighting words" were defined by the Court as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id. at 572. In this case, Chaplinsky was confronted by a City Marshal while distributing leaflets. During the course of the argument that ensued, Chaplinsky called the Marshall a "God damned racketeer" and a "damned Fascist." Id. at 569. The "fighting words" doctrine continues to be valid, but has not been used to sustain a conviction since Chaplinsky.

[777] American Convention on Human Rights, supra note 61, Article 13(5).

[778] Id.

[779] See, e.g., Report of the Commission of International Jurists on the Administration of Justice in Peru, supra note 561, at 24.

[780] Eur. Court H.R., Jersild v. Denmark, Judgment of September 23, 1994, Ser. A
Nº 298. In that case, the applicant, a journalist, transmitted a television interview with several youths who were members of the Greenjackets, a racist and anti-immigrant group. During the course of the interview the youths made a number of abusive and derogatory statements about immigrants and ethnic groups in Denmark. The applicant was found guilty of aiding and abetting the Greenjackets to disseminate insulting or degrading speech about a racial or ethnic group, an offense under the Penal Code.

[781] Jersild Case, supra note 780, para. 35. See also, Johannesburg Principles, supra note 662, Principle 8, which states "Expression may not be prevented or punished merely because it transmits information issued by or about an organization that a government has declared threatens national security or a related interest." This case should be contrasted with an earlier group of cases declared inadmissible by the European Commission of Human Rights for failure to state a claim under the European Convention. At issue in the cases of Purcell v. Ireland [Eur. Commission H.R, Purcell et al. v. Ireland, Admissibility, Application Nº 15404/89, 70 Dec. & Rep., 262 (1991)], Brind and others v. the United Kingdom [Eur. Commission H.R., Brind and others v. United Kingdom, Admissibility, Application Nº 18714/91, 77A Dec. & Rep. 42 (1994)], and McLaughlin v. the United Kingdom [Eur. Commission H.R., McLaughlin v. United Kingdom, Admissibility, Application Nº 18759/91 (1994) (referred to in Brind Case, supra, at 262 and available at http://www.hudoc.echr.coe.int)], were restrictions on broadcasters in the United Kingdom that prevented them from airing interviews with anyone linked to a proscribed organization (i.e., terrorist organization), or with anyone linked to Sinn Fein, a legally constituted political party that supports the Irish Republican Army and a proscribed organization. In Purcell, the broadcasters were also prohibited from reporting on any such interview [Purcell, supra, p. 265]. In the other cases, the law applied only to directly transmitting such interviews, not to reporting the contents of such interviews [Brind Case, supra, p. 43-44; McLaughlin Case, supra.]. The Government claimed that these restrictions prevented the possibility of terrorists or terrorist groups using broadcast media to affirm the legitimacy of their actions, to encourage support, and to transmit coded messages. The Commission noted in the Purcell case, "In a situation where politically motivated violence poses a constant threat to the lives and security of the population and where the advocates of this violence seek access to the mass media for publicity purposes, it is particularly difficult to strike a fair balance between the requirements of protecting freedom of information and the imperatives of protecting the State and the public against armed conspiracies seeking to overthrow the democratic order which guarantees this freedom and other human rights" [Purcell Case, supra, p. 279]. It found that the restrictions were acceptable under the Convention because of the seriousness of the terrorist threat and because the limitations did not actually limit the information that was available to the public, but rather they limited the format in which the information was transmitted. It should be noted first of all that in many of the foregoing cases, the distinction between subsequent liability, which may be permissible in some circumstances under Article 13 of the American Convention, and prior censorship, which is not permissible, is not clear. The provisions challenged in the Purcell, Brind, and McLaughlin cases seem to have the same effect as a prior restraint. Additionally, it should be noted once again, that although the cases of the European Human Rights system are used here for illustrative purposes, the provisions of the inter-American human rights system with respect to freedom of expression were intended to provide a higher level protection for freedom of expression than those of the European system, as explained by the Inter-American Court of Human Rights which stated that “[a] comparison of Article 13 [of the American Convention] with the relevant provisions of the European Convention (Article 10) and the Covenant (Article 19) indicates clearly that the guarantees contained in the American Convention regarding freedom of expression were designed to be more generous and to reduce to a bare minimum restrictions impeding the free circulation of ideas.” Advisory Opinion OC-5/85, supra note 152, para. 50. Some of these cases, had they arisen in the inter-American system, might well have been decided more favorably for freedom of expression.

[782] Johannesburg Principles, supra note 662, Principle 15.

[783] American Convention on Human Rights, supra note 61, Article 13(5).

[784] See supra, para. 323.

[785] See discussion supra paras. 279, 280, discussing the protection of sources. See also, Johannesburg Principles, supra note 662, Principle 18, which states "Protection of national security may not be used to compel a journalist to reveal a confidential source."

[786] Goodwin Case, supra note 668, para. 46.

[787] Johannesburg Principles, supra note 662. For a discussion of the authoritative value of the Johannesburg Principles in interpreting the right to freedom of expression under inter-American human rights instruments, see supra, para 288.

[788] Johannesburg Principles, supra note 662, Principle 2.

[789] Freedom of Information Principles, supra note 676, Principle 4.

[790] See supra paras. 285-286 of this report for discussion of requirements for guaranteeing access to information, for example, time limitations on restrictions, independent review of decisions denying access, and severability of non-restricted information from documents containing restricted information.

[791]A Model Freedom of Information Law (July 2001), available in http://www.article19.org/docimages/1112.htm (emphasis added), Section 30. The Model Law was drafted by Article 19 in consultation with a large group of international experts and others committed to promoting freedom of information. Compare with the following provisions on national security from the domestic access to information laws of various OAS members states. For example, the Mexican Federal Transparency and Access to Public Government Information Law, signed into law on June 10, 2002, states:

Article 3. For purposes of this law the following definitions will apply:

[ . . . ]

Section VI. Classified Information: That information temporarily covered by one of the exemptions outlined in Articles 13 and 14 of this Law;

[ . . . ]

Section XII. National Security: Actions designed to protect the integrity, stability and permanence of the Mexican State, the democratic governability, external defense and internal security of the Federation, and which are aimed at promoting the general well-being of society and furthering the goals of the constitutional State;

[ . . . ]

Article 13. Information is categorized as classified if its disclosure could:

I. Compromise national security, public security or national defense;

[…]

The United States Freedom of Information Act, 5 USC § 552, states:

(b) This section does not apply to matters that are

(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;

[…]

(c) (3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

The Panamanian Law 6 of January 22, 2002, establishing norms for transparency in public administration, the action of habeas data and other dispositions (Gaceta Oficial Nº 24.476, January 23, 2002) provides:

Article 14. The information defined by this law as restricted cannot be divulged for a period of 10 years, starting from the date of its classification as such, except when the reasons that justified the restriction cease to exist before the end of this period. The following information will be considered restricted when it is declared as such by a competent official in accordance with the present law:

1. Information related to national security, in the hands of the security agencies;

[792] Johannesburg Principles, supra note 662, Principle 3.

[793] See discussion, see supra, para. 310.

[794] Declaration of Principles on Freedom of Expression, supra note 641, Principle 2. For a discussion of the authoritative status of this Declaration, see supra para. 265.

[795] Philip B. Heymann, Civil Liberties and Human Rights in the Aftermath of September 11, 2002, Harv. J.L. & Pub. Pol'y 441, 444.

[796] Vienna Convention on the Law of Treaties, supra note 109, Article 26.

[797] Velásquez Rodríguez Case, supra note 249, para. 167.

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

[799] See supra Part III(D), para. 229.

[800] I/A Court H.R., Castillo Páez Case, Judgment of November 3, 1997, Ser. C No. 34, para. 82. See also I/A Court H.R., Mayagna (Sumo) Awas Tingni Community Case, August 31, 2001, Ser. C Nº 79, para. 112, citing Ivcher Bronstein Case, supra note 702, para. 135; Constitutional Court Case, supra note 545, para. 90, Bámaca Velásquez Case, supra note 73, para. 191.

[801] The Inter-American Court has stated that ”[a]lthough Articles 24 and 1(1) are conceptually not identical–the Court may perhaps have occasion at some future date to articulate the differences–Article 24 restates to a certain degree the principle established in Article 1(1). In recognizing equality before the law, it prohibits all discriminatory treatment originating in a legal prescription. The prohibition against discrimination so broadly proclaimed in Article 1(1) with regard to the rights and guarantees enumerated in the Convention thus extends to the domestic law of the States Parties, permitting the conclusion that in these provisions the States Parties, by acceding to the Convention, have undertaken to maintain their laws free from discriminatory regulations.” I/A Court H.R., Advisory Opinion OC-4/84, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, January 19, 1984, Series A Nº 4, para. 54.

[802] Id. See also Ferrer-Mazorra et al. Case, supra note 114, para. 238.

[803] UN Human Rights Committee, General Comment Nº 18 (Non-Discrimination), Thirty-seventh session (1989), UN Doc. HRI/GEN/1/Rev.5 [hereinafter UNHRC General Comment Nº 18], para. 7.

[804] Advisory Opinion OC-4/84, supra note 801, para. 56. See also Ferrer-Mazorra et al. Case, supra note 114, para. 238.

[805] Numerous pertinent domestic and international courts have subjected governments to an enhanced burden to justify distinctions or classifications that are based upon such grounds as nationality, race, color or gender. See, e.g., Repetto, Inés, Supreme Court of Justice (Argentina), November 8, 1988, Judges Petracchi and Bacqué, para. 6 (finding that every distinction between nationals and foreigners, with respect to the enjoyment of rights recognized in the [Argentine] Constitution, “is affected by a presumption of unconstitutionality”, and therefore whoever sustains the legitimacy of the distinction “should prove the existence of an urgent State interest in order to justify [the distinction] and it is not sufficient merely to argue that the measure is ‘reasonable.’”); Palmore v. Sidoti, 4666 US 429 (1984) (holding that racial classifications “are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be necessary […] to the accomplishment of their legitimate purposes.”); Loving v. Virginia, 388 US 1, 87 (1967) (concluding that “at the very least” the Equal Protection Clause of the US Constitution “demands that racial classifications, especially suspect in criminal statutes, be subjected to the most rigorous scrutiny.”); Eur. Court H.R., Abdulaziz v. United Kingdom, Judgment of 28 May 1985, Ser. A Nº 94, para. 79 (stating that “the advancement of the equality of the sexes is today a major goal in the Member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the [European] Convention.)". Constitutional scholars have expressed similar views. See, e.g., Constitutional Law 142 (D. Farber, W. Esckridge & P. Frickey eds., 1998).]

[806] See e.g IACHR Report on the Status of Women in the Americas 1998, OEA/Ser.L/V/II.100 Doc. 17 (13 October 1998), Part I(A)(1); Annual Report of the IACHR 1999, OEA/Ser.L/V/II.106 doc. 6 rev. (April 13, 1999), Ch. VI “Considerations Regarding the Compatibility of Affirmative Action Measures Designed to Promote the Political Participation of Women with the Principles of Equality and Non-discrimination"; UNHRC General Comment Nº 18, supra note 803, para. 10.

[807] Velásquez Rodríguez Case, supra note 249, para. 167.

[808] Id. See also Advisory Opinion OC-11/90, supra note 545, para. 23.

[809] Velásquez Rodríguez Case, supra note 249, paras. 172-174.

[810] I/A Court H.R., Velásquez Rodríguez Case, Judgment on Preliminary Objections, June 26, 1987, Ser. C Nº 1, para. 90.

[811] See, e.g., Desmond McKenzie Case, supra note 272, paras. 311-314.

[812] American Declaration, supra note 63, Article II; American Convention on Human Rights, supra note 61, Article 1(1). See similarly International Convention on the Elimination of all Forms of Racial Discrimination, supra note 123.

[813] Advisory Opinion OC-9/87, supra note 342, para. 25. See also American Convention on Human Rights, supra note 61, Article 27(2).

[814] Article 1 common to the Four Geneva Conventions of 1949, supra notes 36, 67. See similarly Additional Protocol I, supra note 68, Article 1(1).

[815] ICRC Commentary on the Third Geneva Convention, supra note 350, at 17-18.

[816] Third Geneva Convention, supra note 67, Article 14; Fourth Geneva Convention, supra note 36, Article 80.

[817] See supra Part III(D), paras. 254 and following.

[818] See, e.g., Part II(C), para. 78.

[819] See supra Part II(C), para. 61.

[820] See, e.g., Committee on the Elimination of Racial Discrimination, Reports Submitted by States Parties under Article 9 of the International Convention on the Elimination of all Forms of Racial Discrimination, Third Periodic reports of States parties due in 1999, Addendum, United States of America, UN Doc. CERD/C/351/Add.1 (10 October 2000), paras. 301-306 (on the use of “racial profiling” by law enforcement agencies in the United States).

[821] Id. See also Amnesty International, Memorandum to the US Attorney General – Amnesty International’s concerns relating to the post 11 September investigations, AI Index AMR 51/170/2001 (November 2001), at 12-13.

[822] The UN Committee on the Elimination of Racial Discrimination has demanded in this respect that “States and international organizations ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin” and has insisted that “the principle of non-discrimination must be observed in all areas, in particular in matters concerning liberty, security and dignity of the person, equality before tribunals and due process of law, as well as international cooperation in judicial and police matters in these fields”). UN Committee on the Elimination of Racial Discrimination, Sixtieth session, M4-22 March 2002, Statement, UN Doc. CERD/C/60/Misc.22/Rev.6 (8 March 2002).

[823] See supra note 366.

[824] See supra Part III(B), para. 139.

[825] As noted in Part III(D) concerning the right to due process, while the use of military tribunals to try civilians is generally prohibited due in part to their lack of independence from the Executive, 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, during armed conflicts, the trial of privileged and unprivileged combatants, provided that they do so with full respect for judicial guarantees.

[826] See supra Part III(D), para. 261.

[827] See supra Part III(D), para. 261.

[828] For a discussion of the major types of terrorist movements and their strategies and tactics, see Paul Wilkinson, Terrorist Movements, in Terrorism: Theory and Practice 99 (Yonah Alexander et al. eds., 1979).



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