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).



IV. RECOMMENDATIONS

Based upon its analysis in this report, the Commission has developed the following series of recommendations, in order to facilitate efforts by member states to properly fulfill their international human rights commitments when developing and executing anti-terrorism measures.

A. Identifying and Applying Pertinent International Legal Obligations

1. Member states should take into account relevant commitments under all international human rights instruments to which they are bound in identifying and applying their international human rights obligations to anti-terrorist initiatives.

2. Member states should refer to and consider pertinent provisions of international humanitarian law as the applicable lex specialis in interpreting and applying human rights protections in situations of armed conflict.

3. Member states cannot use one human rights instrument as a basis for denying or limiting other favorable or more extensive human rights that individuals might otherwise be entitled to under other applicable international or domestic laws or practices.

B. Right to Life

4. In situations short of armed conflict, member states should ensure that law enforcement officials comply with the basic principles governing the use of force, including the requirement that lethal force may only be used where strictly unavoidable to protect themselves or other people from imminent threat of death.

5. In situations of armed conflict, member states should ensure that their armed forces comply with applicable rules and principles of international humanitarian law, in particular the requirements that armed forces distinguish between military objectives and civilians and civilian objects and launch attacks only against the former, and take precautions so as to avoid or minimize loss of civilian life or damage to civilian property incidental or collateral to attacks on legitimate military targets.

6. Member states must ensure that any measure to impose the death penalty as a punishment for terrorist-related offenses complies with specific restrictions governing the imposition of the death penalty, including those relating to the types of offenses for which capital punishment may be imposed, personal characteristics of offenders that may preclude the application of the death penalty, and the requirement that the imposition of the penalty be subject to strict procedural requirements and to a rigorous control of fundamental judicial guarantees.

C. Right to Personal Liberty and Security

7. Where member states arrest, imprison or otherwise detain individuals as part of their anti-terrorism initiatives in situations short of armed conflict, they must comply with minimum standards governing the right to personal liberty and security, from which derogation may never be justified. These include the following requirements:

(a) the grounds and procedures for the detention must be prescribed by law;

(b) the detainee must be informed of the reasons for the detention and afforded prompt access to legal counsel, family and, where necessary or applicable, medical and consular assistance;

(c) prescribed limits must be placed upon the length of detention;

(d) a central registry of detainees must be maintained;

(e) appropriate and effective judicial review mechanisms must be in place to supervise detentions, promptly upon arrest or detention and at reasonable intervals when detention is extended.

8. Where terrorist acts may trigger or otherwise take place in the context of an international armed conflict, member states must respect and ensure the right to personal liberty and security as informed by the applicable lex specialis of international humanitarian law, according to which:

(a) privileged combatants who fall into the hands of an enemy generally may be interned until their repatriation at the cessation of active hostilities;

(b) unprivileged combatants may also be interned and, moreover, may be subject to prosecution for their unprivileged belligerency;

(c) the detention of combatants remains subject to supervision by the mechanisms prescribed under international humanitarian law, including the Protecting Powers regime and access by the International Committee of the Red Cross. Where these mechanisms are not available or prove ineffective in ensuring the proper treatment of detainees, however, international human rights law and domestic law standards and procedures may supercede international humanitarian law in order to guarantee the effective protection of detainees in all circumstances;

(d) enemy aliens in the territory of a party to an international armed conflict or civilians in occupied territory may not be administratively detained or interned except where the security of the detaining or occupying power make it absolutely necessary. Where such detention or internment is imposed, it must be subject to reconsideration or appeal with the least possible delay and, if it is continued, subject to regular review by an appropriate or competent body, court or other tribunal designated for that purpose.

D. Right to Humane Treatment

9. Both within and outside of situations of armed conflict, member states must comply with minimum standards of humane treatment prescribed under the applicable regime of international human rights or international humanitarian law. While the applicable regimes of law are discrete, they similarly require that member states ensure that:

(a) the conditions of detention of detainees satisfy minimum standards of humanity and personal dignity, with due regard for the requirements of particular categories of persons, including families, women and children, and remain subject to continuous and effective supervision by regularly constituted courts through habeas corpus or equivalent relief or, in cases of armed conflict, through pertinent mechanisms under international humanitarian law;

(b) detainees who are subject to disciplinary or penal sanctions are treated humanely at all times and never subjected to torture or inhumane treatment, including, for example, corporal punishment and prolonged periods of time in solitary confinement;

(c) detainees are not be subjected to any method of interrogation that may amount to torture or other inhumane treatment, including severe treatment such as beatings, rape, or electric shocks, as well as more subtle but equally injurious treatments such as administration of drugs in detention or psychiatric institutions or prolonged denial of rest or sleep, food, sufficient hygiene or medical assistance.

E. Right to Due Process and to a Fair Trial

10. Member states must comply with certain fundamental and non-derogable due process and fair trial principles and standards when proscribing terrorist-related conduct under their criminal laws and prosecuting individuals for those crimes. In particular, member states must:

(a) ensure that crimes relating to terrorism are classified and described in precise and unambiguous language that narrowly defines the punishable offense, by providing 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;

(b) consider taking the legislative or other measures necessary to provide judges with authority to consider the circumstances of individual offenders and offenses when imposing sentences for crimes relating to terrorism;

(c) refrain from the use of ad hoc, special, or military tribunals or commissions to try civilians;

(d) ensure that trials of members of the military or combatants by military courts offer the essential guarantees of independence and impartiality as generally recognized in international humanitarian law instruments;

(e) refrain from the use of secret or faceless judicial procedures. While states may be obliged to take exceptional measures to protect the life, physical integrity and independence of judges, lawyers or others involved in the administration of justice when their lives or physical integrity are threatened, the nature or implementation of such measures may never compromise a defendant’s fair trial guarantees;

(f) in all circumstances, ensure strict compliance with basic and non-derogable procedural protections, including the right of an accused to prior notification in detail of the charges against him or her, the right 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 counsel of his or her choosing or, in the case of indigent defendants, the right to counsel free of charge where such assistance is necessary for a fair hearing, and the right to be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal the judgment to a higher court;

(g) in situations of international armed conflict, when an individual has committed a belligerent act and falls into the hands of an adversary and a doubt arises as to their status as a privileged or unprivileged combatant or civilian, convene a competent tribunal to determine the status of the detainee, and ensure that such persons enjoy the protections of the Third Geneva Convention and, where applicable, of Additional Protocol I until such time as their status has been determined. These obligations should be respected regardless of whether the individual is suspected to have engaged in acts of terrorism.

F. Right to Freedom of Expression

11. In situations outside of armed conflict, member states should:

(a) refrain from enacting laws that impose prior censorship on the publication or dissemination of terrorist-related information or opinions, and only do so in times of emergency when and only to the extent strictly required by the exigencies of the situation;

(b) impose subsequent penalties for the dissemination of opinions or information only through laws that have legitimate aims, that are clear and foreseeable and not overly broad or vague, and that ensure that any penalties are proportionate to the type of harm they are designed to prevent;

(c) refrain from promulgating laws that broadly criminalize, without an additional requirement of a showing of an intent to incite lawless violence or any other similar action and a likelihood of success, the public defense (apologia) of terrorism or of persons who might have committed terrorist acts;

(d) ensure that any restrictions on access to information by the public, the press and other interested persons are only imposed for legitimate reasons, for so long as the restrictions are strictly necessary, and where those restrictions are not inconsistent with the state’s other obligations under international law.

12. In situations of armed conflict: member states should:

(a) afford journalists and media installations the protection commensurate with their status under international humanitarian law, which is presumptively that of civilians and civilian objects;

(b) ensure interned or detained individuals the right to send and receive information as provided for under applicable international humanitarian law.

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

13. Member states must conduct themselves so as to ensure the free and full exercise of human rights. This includes the 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.

14. In all circumstances, member states must fully and strictly comply with the obligation to ensure all persons equal protection of the law and of the rights and freedoms protected thereunder, and the corresponding prohibition of discrimination of any kind, including by reason of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. This prohibits any distinction, exclusion, restriction or preference which is based on any prohibited ground and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms.

15. Where member states consider that certain distinctions in treatment in the enjoyment of protected rights and freedoms are necessary or advisable, they must ensure that any such distinctions are 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. States must provide an especially weighty interest and compelling justification for any distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments. In this connection, the principle of equality may sometimes require member states to give special protection to minority and other groups that may encounter particular vulnerabilities, disadvantages or threats of discrimination resulting from terrorist violence or anti-terrorist initiatives.

H. Situation of Migrant Workers, Asylum Seekers, Refugees and other Non-nationals

16. Member states must ensure any laws, policies and procedures developed to regulate the situation of migrant workers, asylum seekers, refugees and other non-nationals are not formulated or executed in a manner that transgresses the fundamental human rights of these persons. In particular, in situations outside of armed conflict, member states must:

(a) ensure that their immigration legislation recognizes the right to liberty of non-nationals and defines with sufficient detail the grounds and procedures by which non-nationals may be deprived of their liberty;

(b) afford non-nationals their right to consular notification when they are arrested or committed to prison or to custody pending trial or are detained in any other manner;

(c) respect and ensure the right of non-nationals to seek asylum from persecution in accordance with prevailing international standards and through fair and proper procedures, including in particular any determination that an individuals does not or no longer qualifies for refugee status by reason of the exclusion or cessation clauses under the 1951 Refugee Convention and its 1967 Protocol;

(d) refrain from deporting or removing a non-national in any case where there are substantial reasons for believing that he or she would be in danger of being subjected to torture;

(e) refrain from the collective expulsion of non-nationals;

(f) where a non-national is the subject of criminal proceedings, afford him or her the due process protections necessary to ensure a fair trial, including those protections necessary to address any disadvantages that may affect the fairness of their proceedings, such as lack of proficiency in the language of the proceedings;

(g) where non-nationals are the subject of proceedings of a non-criminal nature, including detention, deportation or removal proceedings, afford them the due process protections necessary to ensure a fair hearing, including an adequate opportunity to practice their right of defense. These may include the right to a public hearing, the right to be assisted by a lawyer or other representative, and an adequate opportunity to respond to the claims against them;

(h) ensure that their laws and policies affecting non-nationals are not developed or applied in a manner that encourages or results in discrimination, which includes refraining from applying their immigration control operations in a discriminatory manner.

17. In situations of armed conflict, member states must ensure that non-nationals are afforded the rights to which they are entitled in accordance with their status under applicable international humanitarian law, which include, inter alia, fair trial and non-discrimination protections equivalent to those applicable in situations short of armed conflict.


ANNEX I

INTER - AMERICAN COMMISSION ON HUMAN RIGHTS
COMISIÓN INTERAMERICANA DE DERECHOS HUMANOS
COMISSÃO INTERAMERICANA DE DIREITOS HUMANOS
COMMISSION INTERAMÉRICAINE DES DROITS DE L'HOMME
ORGANIZATION OF AMERICAN STATES
WASHINGTON,D.C. 2 0 0 0 6 U.S.A.

RESOLUTION

Terrorism and Human Rights

On numerous occasions the Inter-American Commission on Human Rights (IACHR) has condemned terrorism and stated that no cause or pretext may be invoked to justify attacks against civilians and other acts proscribed under international law.

When the terrorist attacks occurred on September 11 of this year, the IACHR conveyed its condolences to and solidarity with the people and Government of the United States and extended those sentiments to include the numerous citizens of other states in and beyond the Hemisphere, who were also victims. The attacks of September 11 were committed against all people, as the countries of the Americas pointed out at the Meeting of Consultation of Ministers of Foreign Affairs.

Terrorism must not go unpunished. States have the right and indeed the duty to defend themselves against this international crime within the framework of international instruments that require domestic laws and regulations to conform with international commitments.

The terrorist attacks have prompted vigorous debate over the adoption of anti-terrorist initiatives that include, inter alia, military commissions and other measures.

According to the doctrine of the IACHR, military courts may not try civilians, except when no civilian courts exist or where trial by such courts is materially impossible. Even under such circumstances, the IACHR has pointed out that the trial must respect the minimum guarantees established under international law, which include non-discrimination between citizens and others who find themselves under the jurisdiction of a State, an impartial judge, the right to be assisted by freely-chosen counsel, and access by defendants to evidence brought against them together with the opportunity to contest it.

Exercising the powers vested in it by Article 18 of its Statute, the IACHR will prepare a Report on Terrorism and Human Rights designed to assist States in adopting laws and regulations that accord with international law.

To that end, the IACHR will present its views on this important topic at its next regular session in February 2002.

December 12, 2001

___________________________________________________________________

ANNEX II

 

Table of OAS Member State Participation in
Relevant Treaties 

Dates of Deposition of Ratification, of Accession or Succession[1]

 

COUNTRY

AMERICAN  CONVENTION ON HUMAN RIGHTS

INTER-AMERICAN CONVENTION TO PREVENT AND PUNISH TORTURE

INTER-AMERICAN CONVENTION ON THE PREVENTION, PUNISHMENT AND ERADICATION OF VIOLENCE AGAINST WOMEN

INTER-AMERICAN CONVENTION ON FORCED DISAPPEARANCE OF PERSONS

PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN RIGHTS TO ABOLISH THE DEATH PENALTY

INTER-AMERICAN CONVENTION AGAINST TERRORISM (SIGNATURE ONLY)

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ICCPR

Antigua and Barbuda

 

 

11/19/98

 

 

 

 

06/03/2002

 

Argentina

09/05/84

03/31/89

07/05/96

02/28/96

 

06/03/2002

08/08/86

Bahamas

 

 

05/16/95

 

 

06/03/2002

 

Barbados

11/27/82

 

05/16/95

 

 

06/03/2002

01/05/73

Belize

 

 

11/25/96

 

 

06/03/2002

06/10/96

Bolivia

07/19/79

 

12/05/94

05/05/99

 

06/03/2002

08/12/82

Brazil

09/25/92

07/20/89

11/27/95

 

08/13/96

06/03/2002

01/24/92

Canada

 

 

 

 

 

 

05/19/76

Chile

08/21/90

09/30/88

11/15/96

 

 

06/03/2002

02/10/72

Colombia

07/31/73

01/19/99

11/15/96

 

 

06/03/2002

10/29/69

Costa Rica

04/08/70

02/08/00

07/12/95

06/02/96

05/26/98

06/03/2002

11/29/68

Cuba

 

 

 

 

 

06/03/2002

 

Dominica

06/02/93

 

06/06/95

 

 

 

06/17/93

Dominican Republic

04/19/78

01/29/87

03/07/96

 

 

06/03/2002

01/04/78

Ecuador

12/28/77

11/09/99

09/15/95

 

04/15/98

06/03/2002

03/06/69

El Salvador

06/23/78

12/05/94

01/26/96

 

 

06/03/2002

11/30/79

Grenada

07/18/78

 

02/15/01

 

 

06/03/2002

09/06/91

Guatemala

05/25/78

01/29/87

04/04/95

02/25/00

 

06/03/2002

05/05/92

Guyana

 

 

02/28/96

 

 

06/03/2002

02/15/77

Haiti

09/27/77

 

06/02/97

 

 

06/03/2002

02/06/91

Honduras

09/08/77

 

07/12/95

 

 

06/03/2002

08/25/97

Jamaica

08/07/78

 

 

 

 

06/03/2002

10/03/75

Mexico

03/02/81

06/22/87

11/12/98

04/09/02

 

06/03/2002

03/23/81

Nicaragua

09/25/79

 

12/12/95

 

11/09/99

06/03/2002

03/12/80

Panama

06/22/78

08/28/91

07/12/95

02/28/96

08/28/91

06/03/2002

03/08/77

Paraguay

08/24/89

03/09/90

10/18/95

11/26/96

12/07/00

06/03/2002

06/10/92

Peru

07/28/78

03/28/91

06/04/96

02/13/02

 

06/03/2002

04/28/78

Saint Kitts and Nevis

 

 

06/12/95

 

 

06/03/2002

 

Saint Lucia

 

 

04/04/95

 

 

06/03/2002

 

Saint Vincent

 

 

05/31/96

 

 

06/03/2002

11/09/81

Suriname

11/12/87

11/12/87

03/08/02

 

 

06/03/2002

12/28/76

Trinidad and Tobago

 05/28/91,

denunciation notified on 05/26/98

 

05/08/96

 

 

06/03/2002

12/21/78

United States

 

 

 

 

 

06/03/2002

06/08/92

Uruguay

04/19/85

11/10/92

04/02/96

04/02/96

04/04/94

06/03/2002

04/01/70

Venezuela

08/09/77

08/26/91

02/03/95

01/19/99

10/06/93

06/03/2002

05/10/78

  

COUNTRY

UN CONVENTION RELATING RELATING TO THE STATUS OF REFUGEES

UN PROTOCOL RELATING RELATING TO THE STATUS OF REFUGEES

UN CONVENTION ON THE RIGHTS OF THE CHILD

UN INTERNATIONAL CONVENTION
ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

VIENNA CONVENTION ON CONSULAR RELATIONS

FOUR GENEVA CONVENTIONS

1ST ADDITIONAL PROTOCOL

2ND ADDITIONAL PROTOCOL

Antigua and Barbuda

09/07/95

09/07/95

10/05/93

10/25/88

10/25/88

10/06/86

10/06/86

10/06/86

Argentina

11/15/61

12/06/67

12/04/90

10/02/68

03/07/67

09/18/56

11/26/86

11/26/86

Bahamas

09/15/93

09/15/93

02/20/91

08/05/75

03/17/77

07/11/75

04/10/80

04/10/80

Barbados

 

 

10/09/90

11/08/72

05/11/92

09/10/68

02/19/90

02/19/90

Belize

06/27/90

06/27/90

05/02/90

11/14/01

11/30/00

06/29/84

06/29/84

06/29/84

Bolivia

02/09/82

02/09/82

06/26/90

09/22/70

09/22/70

12/10/76

12/08/83

12/08/83

Brazil

11/16/60

04/07/72

09/24/90

03/27/68

05/11/67

06/29/57

05/05/92

05/05/92

Canada

06/04/69

06/04/69

12/13/91

10/14/70

07/18/74

05/14/65

11/20/90

11/20/90

Chile

01/28/72

04/27/72

08/13/90

10/20/71

01/09/68

10/12/50

04/24/91

04/24/91

Colombia

10/10/61

03/04/80

01/28/91

09/02/81

09/06/72

11/08/61

09/01/93

08/14/95

Costa Rica

03/28/78

03/28/78

08/21/90

01/16/67

12/29/66

10/15/69

12/15/83

12/15/83

Cuba

 

 

08/21/91

02/15/72

10/15/65

04/15/54

11/25/82

12/23/99

Dominica

02/17/94

02/17/94

03/13/91

 

11/24/87

09/28/81

04/25/96

04/25/96

Dominican Republic

01/04/78

01/04/78

06/11/91

05/25/83

03/04/64

01/22/58

05/26/94

05/26/94

Ecuador

08/17/55

03/06/69

03/23/90

09/22/66

03/11/65

08/11/54

04/10/79

04/10/79

El Salvador

04/28/83

04/28/83

07/10/90

11/30/79

01/19/73

06/17/53

11/23/78

11/23/78

Grenada

 

 

11/05/90

 

09/02/92

04/13/81

09/23/98

09/23/98

Guatemala

09/22/83

09/22/83

06/06/90

01/18/83

02/09/73

05/14/52

10/19/87

10/19/87

Guyana

 

 

01/14/91

02/15/77

09/13/73

07/22/68

01/18/88

01/18/88

Haiti

09/25/84

09/25/84

06/08/95

12/19/72

02/02/78

04/11/57

-

-

Honduras

03/23/92

03/23/92

08/10/90

10/10/02

02/13/68

12/31/65

02/16/95

02/16/95

Jamaica

07/30/64

10/30/80

05/14/91

06/04/71

02/09/76

07/20/64

07/29/86

07/29/86

Mexico

06/07/00

06/07/00

09/21/90

02/20/75

06/16/65

10/29/52

03/10/83

-

Nicaragua

03/28/80

03/28/80

10/05/90

02/15/78

10/31/65

12/17/53

07/19/99

07/19/99

Panama

08/02/78

08/02/78

12/12/90

08/16/67

08/28/67

02/10/56

09/18/95

09/18/95

Paraguay

04/01/70

04/01/70

09/25/90

 

12/23/69

10/23/61

11/30/90

11/30/90

Peru

12/21/64

09/15/83

09/04/90

09/29/71

02/17/78

02/15/56

07/14/89

07/14/89

St. Kitts and Nevis

02/01/02

 

07/24/90

 

 

02/14/86

02/14/86

02/14/86

Saint Lucia

 

 

06/16/93

02/14/90

08/27/86

09/18/81

10/07/82

10/07/82

Saint Vincent

11/03/93

 

10/26/93

11/09/81

04/27/99

04/01/81

04/08/83

04/08/83

Suriname

11/29/78

11/29/78

03/01/93

03/15/84

09/11/80

10/13/76

12/16/85

12/16/85

Trinidad and Tobago

11/10/00

11/10/00

12/05/91

10/04/73

10/19/65

09/24/63

07/20/01

07/20/01

United States

 

11/01/68

 

10/21/94

11/24/69

08/02/55

-

-

Uruguay

09/22/70

09/22/70

11/20/90

08/30/68

03/10/70

03/05/69

12/13/85

12/13/85

Venezuela

 

09/19/86

09/13/90

10/10/67

10/27/65

02/13/56

07/23/98

07/23/98

 

 

 

  [936] Some of the State Parties to the treaties mentioned in Annex II have entered reservations or declarations with the deposition of their instruments of ratification, accession or succession.

 


ANNEX III

AG/RES. 1840 (XXXII-O/02)

INTER-AMERICAN CONVENTION AGAINST TERRORISM

(Resolution adopted at the first plenary session held on June 3, 2002)

THE GENERAL ASSEMBLY,

REAFFIRMING the principles and provisions contained in the Charter of the Organization of American States and the Charter of the United Nations;

RECOGNIZING the threat that terrorism poses to democratic values and international peace and security, and that it is a source of profound concern to all member states;

CONVINCED that the Charter of the Organization of American States and international law constitute the appropriate framework for strengthening hemispheric cooperation for the prevention, combating, and elimination of terrorism in all its forms and manifestations;

BEARING IN MIND resolution RC.23/RES. 1/01 rev. 1 corr. 1, “Strengthening Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism,” of the Twenty-third Meeting of Consultation of Ministers of Foreign Affairs, held on September 21, 2001, which entrusted the Permanent Council with preparing a Draft Inter-American Convention against Terrorism;

RECALLING the Declaration of Lima to Prevent, Combat, and Eliminate Terrorism and the Plan of Action on Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism, adopted within the framework of the First Inter-American Specialized Conference on Terrorism, in Lima, Peru, in April 1996, as well as the Commitment of Mar del Plata, adopted at the Second Inter-American Specialized Conference on Terrorism, and the work of the Inter-American Committee against Terrorism (CICTE);

CONSIDERING that terrorism is a serious criminal phenomenon, that is of deep concern to all member states; attacks democracy; impedes the enjoyment of human rights and fundamental freedoms; threatens the security of states, destabilizing and undermining the foundations of all society; and seriously impacts the economic and social development of the states in the region;

BEARING IN MIND that the Inter-American Democratic Charter recognizes the commitment by member states to promote and defend representative democracy and that no democratic state can be indifferent to the clear threat that terrorism poses to democratic institutions and freedoms;

REAFFIRMING that the fight against terrorism must be undertaken with full respect for national and international law, human rights, and democratic institutions, in order to preserve the rule of law, liberties, and democratic values in the Hemisphere, which are essential components of a successful fight against terrorism;

CONVINCED that the adoption, ratification, and effective implementation of the Inter-American Convention against Terrorism contribute to the progressive development and the codification of international law;

UNDERSCORING the importance of effective action in cutting off the supply of funds for terrorism, and of coordinated action with international entities competent in the area of money laundering, especially the Inter-American Drug Abuse Control Commission (CICAD);

RECOGNIZING the urgency of strengthening and establishing new forms of regional cooperation against terrorism with a view to its eradication; and

RECOGNIZING ALSO the importance and timeliness of the existing international legal instruments on combating terrorism, including the 10 international instruments considered in the text of the Inter-American Convention against Terrorism itself, as well as the Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion That Are of International Significance, adopted by this General Assembly on February 2, 1971; the Convention on Offences and Certain Other Acts Committed on Board Aircraft, adopted in Tokyo on September 14, 1963; and the Convention on the Marking of Plastic Explosives for the Purpose of Detection, adopted in Montreal on March 1, 1991,

RESOLVES:

1. To adopt the Inter-American Convention against Terrorism, attached to this resolution, and to open it for signature by the member states on this date.

2. To urge member states to ratify the Convention as soon as possible, in accordance with their constitutional procedures.

3. To request the Secretary General to present a report to the General Assembly at its thirty-third regular session on progress made toward the Convention’s entry into force.

INTER-AMERICAN CONVENTION AGAINST TERRORISM

The States Parties to this Convention,

BEARING IN MIND the purposes and principles of the Charter of the Organization of American States and the Charter of the United Nations;

CONSIDERING that terrorism represents a serious threat to democratic values and to international peace and security and is a cause of profound concern to all member states;

REAFFIRMING the need to adopt effective steps in the inter-American system to prevent, punish, and eliminate terrorism through the broadest cooperation;

RECOGNIZING that the serious economic harm to states which may result from terrorist acts is one of the factors that underscore the need for cooperation and the urgency of efforts to eradicate terrorism;

REAFFIRMING the commitment of the states to prevent, combat, punish, and eliminate terrorism; and

BEARING IN MIND resolution RC.23/RES. 1/01 rev. 1 corr. 1, “Strengthening Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism,” adopted at the Twenty-third Meeting of Consultation of Ministers of Foreign Affairs,

Have agreed to the following:


Article 1

Object and purposes

The purposes of this Convention are to prevent, punish, and eliminate terrorism. To that end, the states parties agree to adopt the necessary measures and to strengthen cooperation among them, in accordance with the terms of this Convention.

Article 2

Applicable international instruments

1. For the purposes of this Convention, “offenses” means the offenses established in the international instruments listed below:

a. Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970.

b. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971.

c. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973.

d. International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979.

e. Convention on the Physical Protection of Nuclear Material, signed at Vienna on March 3, 1980.

f. Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988.

g. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988.

h. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988.

i. International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997.

j. International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999.

2. Upon depositing its instrument of ratification to this Convention, a state party that is not a party to one or more of the international instruments listed in paragraph 1 of this article may declare that, in application of this Convention to such state party, that particular instrument shall be deemed not to be included in that paragraph. The declaration shall cease to have effect as soon as that instrument enters into force for that state party, which shall notify the depositary of this fact.

3. When a state party ceases to be a party to one of the international instruments listed in paragraph 1 of this article, it may make a declaration, as provided in paragraph 2 of this article, with respect to that instrument.

Article 3

Domestic measures

Each state party, in accordance with the provisions of its constitution, shall endeavor to become a party to the international instruments listed in Article 2 to which it is not yet a party and to adopt the necessary measures to effectively implement such instruments, including establishing, in its domestic legislation, penalties for the offenses described therein.

Article 4

Measures to prevent, combat, and eradicate the financing of terrorism

1. Each state party, to the extent it has not already done so, shall institute a legal and regulatory regime to prevent, combat, and eradicate the financing of terrorism and for effective international cooperation with respect thereto, which shall include:

a. A comprehensive domestic regulatory and supervisory regime for banks, other financial institutions, and other entities deemed particularly susceptible to being used for the financing of terrorist activities. This regime shall emphasize requirements for customer identification, record-keeping, and the reporting of suspicious or unusual transactions.

b. Measures to detect and monitor movements across borders of cash, bearer negotiable instruments, and other appropriate movements of value. These measures shall be subject to safeguards to ensure proper use of information and should not impede legitimate capital movements.

c. Measures to ensure that the competent authorities dedicated to combating the offenses established in the international instruments listed in Article 2 have the ability to cooperate and exchange information at the national and international levels within the conditions prescribed under its domestic law. To that end, each state party shall establish and maintain a financial intelligence unit to serve as a national center for the collection, analysis, and dissemination of pertinent money laundering and terrorist financing information. Each state party shall inform the Secretary General of the Organization of American States of the authority designated to be its financial intelligence unit.

2. When implementing paragraph 1 of this article, states parties shall use as guidelines the recommendations developed by specialized international and regional entities, in particular the Financial Action Task Force and, as appropriate, the Inter-American Drug Abuse Control Commission, the Caribbean Financial Action Task Force, and the South American Financial Action Task Force.

Article 5

Seizure and confiscation of funds or other assets

1. Each state party shall, in accordance with the procedures established in its domestic law, take such measures as may be necessary to provide for the identification, freezing or seizure for the purposes of possible forfeiture, and confiscation or forfeiture, of any funds or other assets constituting the proceeds of, used to facilitate, or used or intended to finance, the commission of any of the offenses established in the international instruments listed in Article 2 of this Convention.

2. The measures referred to in paragraph 1 shall apply to offenses committed both within and outside the jurisdiction of the state party.


Article 6

Predicate offenses to money laundering

1. Each state party shall take the necessary measures to ensure that its domestic penal money laundering legislation also includes as predicate offenses those offenses established in the international instruments listed in Article 2 of this Convention.

2. The money laundering predicate offenses referred to in paragraph 1 shall include those committed both within and outside the jurisdiction of the state party.

Article 7

Cooperation on border controls

1. The states parties, consistent with their respective domestic legal and administrative regimes, shall promote cooperation and the exchange of information in order to improve border and customs control measures to detect and prevent the international movement of terrorists and trafficking in arms or other materials intended to support terrorist activities.

2. In this context, they shall promote cooperation and the exchange of information to improve their controls on the issuance of travel and identity documents and to prevent their counterfeiting, forgery, or fraudulent use.

3. Such measures shall be carried out without prejudice to applicable international commitments in relation to the free movement of people and the facilitation of commerce.


Article 8

Cooperation among law enforcement authorities

The states parties shall work closely with one another, consistent with their respective domestic legal and administrative systems, to enhance the effectiveness of law enforcement action to combat the offenses established in the international instruments listed in Article 2. In this context, they shall establish and enhance, where necessary, channels of communication between their competent authorities in order to facilitate the secure and rapid exchange of information concerning all aspects of the offenses established in the international instruments listed in Article 2 of this Convention.

Article 9

Mutual legal assistance

The states parties shall afford one another the greatest measure of expeditious mutual legal assistance with respect to the prevention, investigation, and prosecution of the offenses established in the international instruments listed in Article 2 and proceedings related thereto, in accordance with applicable international agreements in force. In the absence of such agreements, states parties shall afford one another expeditious assistance in accordance with their domestic law.

Article 10

Transfer of persons in custody

1. A person who is being detained or is serving a sentence in the territory of one state party and whose presence in another state party is requested for purposes of identification, testimony, or otherwise providing assistance in obtaining evidence for the investigation or prosecution of offenses established in the international instruments listed in Article 2 may be transferred if the following conditions are met:

a. The person freely gives his or her informed consent; and

b. Both states agree, subject to such conditions as those states may deem appropriate.

2. For the purposes of this article:

a. The state to which the person is transferred shall have the authority and obligation to keep the person transferred in custody, unless otherwise requested or authorized by the state from which the person was transferred.

b. The state to which the person is transferred shall without delay implement its obligation to return the person to the custody of the state from which the person was transferred as agreed beforehand, or as otherwise agreed, by the competent authorities of both states.

c. The state to which the person is transferred shall not require the state from which the person was transferred to initiate extradition proceedings for the return of the person.

d. The person transferred shall receive, for time spent in the custody of the state to which he or she was transferred, credit toward service of the sentence being served in the state from which he or she was transferred.

3. Unless the state party from which a person is to be transferred in accordance with the present article so agrees, that person, whatever his or her nationality, shall not be prosecuted or detained or subjected to any other restriction of his or her personal liberty in the territory of the state to which that person is transferred in respect of acts or convictions prior to his or her departure from the territory of the state from which said person was transferred.

Article 11

Inapplicability of political offense exception

For the purposes of extradition or mutual legal assistance, none of the offenses established in the international instruments listed in Article 2 shall be regarded as a political offense or an offense connected with a political offense or an offense inspired by political motives. Accordingly, a request for extradition or mutual legal assistance may not be refused on the sole ground that it concerns a political offense or an offense connected with a political offense or an offense inspired by political motives.

Article 12

Denial of refugee status

Each state party shall take appropriate measures, consistent with the relevant provisions of national and international law, for the purpose of ensuring that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed an offense established in the international instruments listed in Article 2 of this Convention.


Article 13

Denial of asylum

Each state party shall take appropriate measures, consistent with the relevant provisions of national and international law, for the purpose of ensuring that asylum is not granted to any person in respect of whom there are reasonable grounds to believe that he or she has committed an offense established in the international instruments listed in Article 2 of this Convention.

Article 14

Nondiscrimination

None of the provisions of this Convention shall be interpreted as imposing an obligation to provide mutual legal assistance if the requested state party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, or political opinion, or that compliance with the request would cause prejudice to that person’s position for any of these reasons.

Article 15

Human rights

1. The measures carried out by the states parties under this Convention shall take place with full respect for the rule of law, human rights, and fundamental freedoms.

2. Nothing in this Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, in particular the Charter of the United Nations, the Charter of the Organization of American States, international humanitarian law, international human rights law, and international refugee law.

3. Any person who is taken into 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.


Article 16

Training

1. The states parties shall promote technical cooperation and training programs at the national, bilateral, subregional, and regional levels and in the framework of the Organization of American States to strengthen the national institutions responsible for compliance with the obligations assumed under this Convention.

2. The states parties shall also promote, where appropriate, technical cooperation and training programs with other regional and international organizations conducting activities related to the purposes of this Convention.

Article 17

Cooperation through the Organization of American States

The states parties shall encourage the broadest cooperation within the pertinent organs of the Organization of American States, including the Inter-American Committee against Terrorism (CICTE), on matters related to the object and purposes of this Convention.

Article 18

Consultations among the parties

1. The states parties shall hold periodic meetings of consultation, as appropriate, with a view to facilitating:

a. The full implementation of this Convention, including the consideration of issues of interest relating thereto identified by the states parties; and

b. The exchange of information and experiences on effective means and methods to prevent, detect, investigate, and punish terrorism.

2. The Secretary General shall convene a meeting of consultation of the states parties after receiving the 10th instrument of ratification. Without prejudice to this, the states parties may hold consultations as they consider appropriate.

3. The states parties may request the pertinent organs of the Organization of American States, including CICTE, to facilitate the consultations referred to in the previous paragraphs and to provide other forms of assistance with respect to the implementation of this Convention.

Article 19

Exercise of jurisdiction

Nothing in this Convention entitles a state party to undertake in the territory of another state party the exercise of jurisdiction or performance of functions that are exclusively reserved to the authorities of that other state party by its domestic law.

Article 20

Depositary

The original instrument of this Convention, the English, French, Portuguese, and Spanish texts of which are equally authentic, shall be deposited with the General Secretariat of the Organization of American States.

Article 21

Signature and ratification

1. This Convention is open for signature by all member states of the Organization of American States.

2. This Convention is subject to ratification by the signatory states in accordance with their respective constitutional procedures. The instruments of ratification shall be deposited with the General Secretariat of the Organization of American States.

Article 22

Entry into force

1. This Convention shall enter into force on the 30th day following the date of deposit of the sixth instrument of ratification of the Convention with the General Secretariat of the Organization of American States.

2. For each state ratifying the Convention after deposit of the sixth instrument of ratification, the Convention shall enter into force on the 30th day following the deposit by such state of its instrument of ratification.

Article 23

Denunciation

1. Any state party may denounce this Convention by written notification to the Secretary General of the Organization of American States. Denunciation shall take effect one year following the date on which notification is received by the Secretary General of the Organization.


2. Such denunciation shall not affect any requests for information or assistance made during the time the Convention is in force for the denouncing state.


ANNEX IV

AG/RES. 1906 (XXXII-O/02)

HUMAN RIGHTS AND TERRORISM

(Adopted at the fourth plenary session
held on June 4, 2002)

THE GENERAL ASSEMBLY,

REAFFIRMING the principles and purposes of the Charter of the Organization of American States and the Charter of the United Nations;

NOTING that everyone is entitled to all the rights and freedoms set forth in the Universal Declaration of Human Rights, without distinction of any kind such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and that this applies in all circumstances in accordance with International Law;

REITERATING that all persons are equal before the law and have the rights and duties established in the American Declaration of the Rights and Duties of Man, without distinction as to race, sex, language, creed, or any other factor;

REAFFIRMING that States may not renounce their duty to fully respect human rights and fundamental freedoms in all cases in the fight against terrorism;

TAKING INTO ACCOUNT the resolution of the Inter-American Commission on Human Rights “Terrorism and Human Rights” of December 12, 2001; and

WELCOMING the decision of the Inter-American Commission on Human Rights to prepare a report on terrorism and human rights designed to assist OAS member states in adopting laws, regulations, and other measures against terrorism, in keeping with their international commitments in the area of human rights,

RESOLVES:

1. To reiterate that the fight against terrorism must be waged with full respect for the law, human rights, and democratic institutions, so as to preserve the rule of law, freedoms, and democratic values in the Hemisphere.

2. To reaffirm the duty of the member states to ensure that all measures taken to combat terrorism are in keeping with obligations under international law.

3. To call upon member states, in particular within their respective national frameworks and in conformity with international commitments in the field of human rights, to enhance their cooperation with a view to bringing terrorists to justice.

4. To request that the Inter-American Commission on Human Rights present its report on terrorism and human rights to the Permanent Council for its consideration, if possible, in 2002.

 

 



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