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).


 

OEA/Ser.L/V/II.116
Doc. 5 rev. 1 corr.
22 October 2002
Original: English

REPORT ON TERRORISM AND HUMAN RIGHTS

I. INTRODUCTION

A. Purpose and Context of the Report

1. Terrorism and the violence and fear it perpetuates have been a prevalent and distressing feature of the modern history of the Americas, and one with which the Inter-American Commission on Human Rights is all too familiar. In recounting its activities between 1971 and 1981, for example, the Commission made the following observations which echo with disturbing familiarity today:

In several countries of the Hemisphere acts of violence have been occurring with alarming frequency, representing serious attacks against the essential rights of man. The most evident form of this violence is terrorism, a massive crime that tends to create a climate of insecurity and anxiety, on the pretext of bringing about a greater degree of social justice for the less-favored classes.[1]

2. Not only have manifestations of terrorist violence in the Americas presented a grave threat to the protection of human rights, but they have most frequently affected democratic governments and institutions.[2] Further, both state and non-state actors have been broadly implicated in instigating, supporting and perpetrating terrorism against the Hemisphere’s population, through such heinous practices as kidnappings, torture and forced disappearances.[3]

3. Numerous notorious incidents of terrorism in the Hemisphere in recent years[4] have confirmed that terrorism remains an on going and serious threat to the protection of human rights and to regional and international peace and security. Moreover, the three terrorist attacks of unprecedented proportion perpetrated simultaneously in the United States on September 11, 2001[5] suggest that the nature of the terrorist threat faced by the global community has expanded both quantitatively and qualitatively, to encompass private groups having a multinational presence and the capacity to inflict armed attacks against states. The implications of these developments for the protection of human rights and democracy are extremely grave and demand immediate and thorough consideration by the international community, including the organs of the Organization of American States. As this Commission has frequently declared, international law obliges member states to take the measures necessary to prevent terrorism and other forms of violence and to guarantee the security of their populations.[6] Indeed, it cannot be ruled out that these measures may include future developments in international law that will address recent manifestations of terrorism as, for example, a new form of international warfare between private individuals or groups and states. Consistent with their obligation to eliminate terrorist violence, member states of the OAS and other intergovernmental organizations have taken numerous initiatives to respond to the threat of terrorism. States have, for example, negotiated multilateral treaties on terrorism,[7] including most recently the Inter-American Convention Against Terrorism adopted and opened for signature by the OAS General Assembly during its thirty-two regular session in June 2002.[8] States have also developed domestic laws and procedures to criminalize and prosecute terrorist activities.[9]

4. In undertaking these initiatives, however, member states are equally obliged to remain in strict compliance with their other international obligations, including those under international human rights law and international humanitarian law.[10] OAS member states have recognized this fundamental requirement in Article 15 of the Inter-American Convention against Terrorism, which provides as follows:

15.1. The measures carried out by 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 on the territory of which that person is present and applicable provisions of international law.[11]

5. The Inter-American Commission, as the organ of the OAS charged with promoting the observance and protection of human rights in the Hemisphere, has in past country reports and its reports on individual cases evaluated the human rights implications of numerous anti-terrorist initiatives undertaken by OAS member states. The Commission has consistently emphasized that unqualified respect for the full scope of human rights or rights which have not been legitimately suspended under an emergency must be a fundamental part of any anti-terrorist strategies.[12] Central to this approach is recognition of the fact that efforts to oppose terrorism and the protection of human rights and democracy are not antithetical responsibilities. To the contrary, derogation clauses in international human rights instruments specifically contemplate that exceptional measures requiring the temporary suspension of some rights may sometimes be necessary for the very purpose of protecting democratic institutions and the rule of law from terrorist and other threats, not to weaken or destroy them.

6. In order to reinforce its doctrine in this area and to assist member states in complying with their corresponding international legal obligations, the Commission decided in December 2001 to undertake a study by which it would reaffirm and elaborate upon the manner in which international human rights requirements regulate state conduct in responding to terrorist threats. The Commission pursued this project in fulfillment of its functions and powers under the OAS Charter and the Commission’s Statute, including the powers under Article 18 of its Statute:

b. to make recommendations to the governments of the states on the adoption of progressive measures in favor of human rights in the framework of their legislation, constitutional provisions and international commitments, as well as appropriate measures to further observance of those rights;

c. to prepare such studies or reports as it considers advisable for the performance of its duties.[13]

7. As described in further detail in Part II(C), the Commission has through the report and its underlying methodology endeavored to provide a timely and focused analysis of the principal human rights implications of efforts by states to respond to terrorist threats. It has done so by placing those efforts within the established framework of several core international human rights, in particular the right to life, the right to humane treatment, the right to personal liberty and security, the right to a fair trial, the right to freedom of expression and the right to judicial protection.

8. In its resolution adopting and opening for signature the Inter-American Convention Against Terrorism, the OAS General Assembly proclaimed 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.”[14] The Commission is hopeful that the results of its study will assist OAS member states and other interested actors in the inter-American system in fulfilling this crucial responsibility.

B. Terrorism in the Context of International Law

9. Before undertaking a detailed analysis of the implications of terrorist violence for the human rights obligations of states in the inter-American system, it is first necessary to articulate the Commission’s understanding of the meaning and role of terrorism within the broader regime of international law.

10. Terrorism[15] is far from a new phenomenon; indeed it may even be said to antedate recorded history.[16] Its treatment as a subject of international law is of more recent origin. Among the earliest efforts to address terrorism as a matter of legal concern to the international community was the drafting by the League of Nations of the 1937 Geneva Convention for the Prevention and Punishment of Terrorism drafted by the League of Nations, which never entered into force.[17] The United Nations subsequently took up similar anti-terrorism initiatives through the negotiation of multilateral treaties[18] and the work of bodies at various levels of the Organization.[19]

11. Member states and organs of regional international organizations have likewise endeavored to address manifestations of terrorism in their respective jurisdictions through the negotiation of multilateral conventions and other measures. These organizations have included the Council of Europe,[20] the European Union,[21] the Organization for Security and Cooperation in Europe,[22] the African Union,[23] and the Organization of American States. In the inter-American system in particular, notable anti-terrorist initiatives efforts have included the promulgation of the 1977 Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance,[24] the on going work of the Inter-American Committee against Terrorism,[25] and the recently adopted Inter-American Convention Against Terrorism.[26] Owing in part to the considerable impact of terrorism upon the protection of human rights and democracy in the Americas, the Inter-American Commission on Human Rights has for much of its history considered the problem of terrorist violence as a part of its mandate to promote the observance and protection of human rights in the Hemisphere.[27] These efforts within the inter-American system in turn have produced a considerable body of instruments and jurisprudence from which the Commission may draw for the purposes of this study.

12. In attempting to address the concept of terrorism within the framework of international law, it should first be recognized that the language of terrorism is used in a variety of contexts and with varying levels of formality to characterize:

• actions, including forms of violence such as highjacking or kidnapping

• actors, including persons or organizations

• causes or struggles, where the cause or struggle may be so marked by terrorist violence as to be indistinguishable from it, or where a movement may commit isolated terrorist acts or engage in terrorist strategies. It is largely in this respect that international disagreement on a comprehensive definition of terrorism has arisen, where certain states have considered that what are often referred to as “national liberation movements” and their methodologies should by reason of their association with the principle of self-determination of peoples be excluded from any definition of terrorism[28]

• situations, where terrorist violence is a particularly serious or widespread problem in a state or region

• armed conflicts, in the sense, for example, of the labeled post-September 11, 2001 “war on terrorism”

13. In connection with the final characterization above, terrorist attacks such as those occurring on September 11, 2001 in the United States suggest that assumptions regarding the characteristics of modern terrorism must be re-evaluated, to acknowledge that terrorist groups, apparently with the support or acquiescence of certain states, have gained access to financial and technological resources that permit them to operate multinationally and to perpetrate acts of mass destruction on an unprecedented scale. These developments have been coupled with an evolution in the objectives of these same groups to destroy particular societies at an international level.[29]

14. In this context, it cannot be ruled out that these new manifestations of terrorist violence may lead to future developments in international law. The international community may, for example, regard these forms of terrorism as giving rise to a new type of “terrorist war” and, correspondingly, develop international humanitarian law conventions to address armed conflicts waged internationally between states and non-state actors. Debates have also materialized concerning the permissibility under international law of “pre-emptive” military attacks as a defense against potential terrorist threats.[30] While the Commission will closely follow and, consistent with its mandate, may play a role in defining any future direction that international law may take in these respects, it will not speculate on such developments for the purposes of this report. Rather, the Commission will consider member states’ international legal obligations as presently constituted. As reflected in Article 15 of the Inter-American Convention against Terrorism, these include the requirements of international human rights, humanitarian, and refugee law which, as noted above, expressly contemplate the need to take exceptional measures in certain situations to protect human rights and democratic governance.

15. In defining the parameters of member states’ obligations under current international law, it must also be recognized that to-date there has been no consensus on a comprehensive international legal definition of terrorism.[31] At best, as reflected in Article 2 of the Inter-American Convention against Terrorism,[32] it may be said that the international community has identified certain acts of violence that are generally considered to constitute particular forms of terrorism. These include, for example, the taking of hostages,[33] the seizure and destruction of civilian aircraft,[34] attacks against the life, physical integrity or liberty of internationally protected persons including diplomatic agents,[35] and, in the context of armed conflicts, acts or threats of violence the primary purpose of which is to spread terror among the civilian population.[36]

16. The absence of agreement on a comprehensive definition of terrorism under international law suggests in turn that the characterization of an act or situation as one of terrorism cannot in and of itself serve as a basis for defining the international legal obligations of states. Rather, each such act or situation must be evaluated on its own facts and in its particular context to determine whether and in what manner contemporary international law may regulate the responding conduct of states.[37]

17. At the same time, the fact that terrorism per se may not have a specific meaning under international law does not mean that terrorism is an indescribable form of violence or that states are not subject to restrictions under international law when developing their responses to such violence. To the contrary, it is possible to identify several characteristics frequently associated with incidents of terrorism that provide sufficient parameters within which states’ international legal obligations in responding to terrorist violence may be identified and evaluated. The United Nations General Assembly, for example, has developed a working definition of terrorism for the purposes of its various resolutions and declarations on measures to eliminate terrorism, namely “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes [which] are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be used to justify them.”[38] These and other authorities suggest that characteristics common to incidents of terrorism may be described in terms of: (a) the nature and identity of the perpetrators of terrorism; (b) the nature and identity of the victims of terrorism; (c) the objectives of terrorism; and (d) the means employed to perpetrate terror violence.[39] More specifically:

(a) the perpetrators or instigators of terrorism may be comprised of states as well as private individuals or groups who may act independently or with the direct or indirect support of states.[40] “State terrorism” has a notable history in the Americas where many governments have engaged in kidnappings, forced disappearances and other egregious human rights violations against their own populations, often under the guise of fighting terrorism;[41]

(b) the targets of terrorist violence have also varied to include persons, institutions and property.[42] Commentators have observed, however, that the victims of terrorism have predominantly remained human ones, due in part to the strength that terrorism draws from the intrinsic value of human life and the psychological stress and fear created when human lives are jeopardized.[43] Similarly, terrorism has tended to take advantage of the sources of strength in democratic communities, such as open societies, constitutional safeguards and a science-based and technological civilization, as vulnerable targets and as a source of the very weapons used to attack those communities. “Terrorism,” as one commentator has observed, “has never had a chance in an effective dictatorship, but hardly a major democratic society has entirely escaped it.”[44]

(c) the motivations driving the perpetrators of terrorism tend to be ideological or political in nature;[45]

(d) concerning the means of perpetrating terrorism, terrorist violence may occur at a domestic or international level and has most often been perpetrated through the use of conventional weapons, although the possible use of weapons of mass destruction by terrorists is an ever-increasing matter of concern to the international community.[46] Further, terrorist incidents, whether perpetrated on a recurring or sporadic basis, are inevitably clandestine and unpredictable; the exploitation of fear and terror, the resulting intimidation and subversion of public order, and the publicity generated by these techniques, have traditionally constituted central tools of terrorist violence.[47] Distinguishing characteristics of terrorist methodology have also generally included a willingness in the part on its perpetrators to take risks and make personal sacrifices for their cause to a greater extent than common criminals.[48]

18. In light of the general characteristics of terrorist violence and their changeable nature, as described above, it is apparent that the obligations of states in responding to such violence do not exist in a void. Rather, as properly recognized in Article 15 of the Inter-American Convention against Terrorism, states’ reactions to terrorism may be regulated, independently or concurrently, by several regimes of international law, including international human rights law and international humanitarian law. As discussed in further detail in Part II, this in turn is dependent upon whether the nature and degree of terrorist violence triggers or otherwise occurs in the context of

• a situation of peace, where international human rights law is fully applicable

• an emergency that threatens the independence or security of a state, in which case international human rights law applies subject to any permissible derogations based strictly on the exigencies of the situation, or

• an armed conflict, where both international human rights law and international humanitarian law apply coextensively but where states’ human rights obligations may have to be interpreted in light of international humanitarian law as the applicable lex specialis.

19. The detailed interrelationship between these regimes of law in the context of particular rights is the subject of further discussion in the substance of this report. At this stage, however, it should be recognized that the classification of an act or situation as one of terrorism in and of itself does not affect the application of a regime of international law where, in the circumstance, the conditions for the application of that regime are satisfied. The significance of this caveat is most clearly illustrated by the manifestation of terrorist violence in the context of an international armed conflict.

20. For example, where a situation of hostilities is considered to constitute an international armed conflict and the armed forces of one of the parties to the conflict satisfy the requirements for prisoner of war status under Article 4 of the Third Geneva Convention, or Articles 43 to 45 of Additional Protocol I in the case of states parties to that instrument,[49] the fact that members of those forces may have engaged in acts of terrorism in the course of hostilities does not alter the continued application of international humanitarian law to the conflict or the entitlement of those members to the protections of the Third Geneva Convention or Additional Protocol I where applicable.[50] At the same time, those members may be prosecuted and found individually criminally responsible for terrorist acts to the extent that those acts may constitute grave breaches of the 1949 Geneva Conventions or of Additional Protocol I where applicable, or other serious violations of international humanitarian law.[51] Similarly, where combatants in an international armed conflict fail to satisfy the requirements of prisoner of war status and are therefore not entitled to the protections under Third Geneva Convention , they will remain the beneficiaries of the minimum customary standards of treatment set forth in common Article 3 and Article 75 of Additional Protocol I notwithstanding the fact that those combatants may have participated in acts of terrorism in the course of hostilities.

21. Also pertinent to the Commission’s analysis are the characteristics of initiatives frequently taken by states to respond to terrorist violence. As confirmed by the information submitted by member states in relation to this study, states have endeavored to adapt existing law enforcement mechanisms, and develop new mechanisms, to investigate, suppress and punish terrorism, on a domestic level and internationally.[52] These efforts have included enhanced implementation of extradition, mutual legal assistance, information sharing and other forms of inter-state cooperation in criminal matters,[53] more rigorous enforcement of measures to exclude, remove or extradite aliens suspected of participation in terrorist activities,[54] the criminalization of terrorist-related activities and detention, prosecution, and punishment of persons suspected of having committed those crimes,[55] the freezing of financial and other assets used in the furtherance of terrorist activity,[56] undertaking police or military operations against terrorist groups, within a state’s territory or in the territory of another state affiliated with such groups,[57] and negotiating treaties that prescribe bilateral and multilateral anti-terrorist cooperative measures.[58] Particularly significant for the effective execution of many of these methods of inter-state cooperation is the explicit stipulation in certain international anti-terrorism instruments that terrorist crimes as defined under those instruments are not to be regarded as political or related common offenses for the purposes of extradition or mutual legal cooperation.[59]

22. Efforts of the nature described above may in principle be considered to coincide with the long-recognized obligation of member states to take the measures necessary to prevent acts of terrorism and violence and to guarantee the security of their populations,[60] which includes the duty to investigate, prosecute and punish acts of violence or terrorism.[61] At the same time, the Commission cannot overemphasize the overriding requirement that any counter-terrorism initiatives by states comply with their existing obligations under international law, including those under international human rights and humanitarian law. As the Commission has previously observed, “unqualified respect for human rights must be a fundamental part of any anti-subversive strategies when such strategies have to be implemented.”[62] This in turn entails respect for the full scope of human rights or rights that have not been legitimately suspended under an emergency. Not only is a commitment to this approach dictated as a matter of principle, namely to respect the very values of democracy and the rule of law that counter-terrorism efforts are intended to preserve, it is also mandated by the international instruments to which states are legally bound, including the American Declaration of the Rights and Duties of Man,[63] the American Convention on Human Rights,[64] the Universal Declaration of Human Rights,[65] the International Covenant on Civil and Political Rights,[66] and the 1949 Geneva Conventions,[67] the 1977 Additional Protocols thereto,[68] and other pertinent international humanitarian law instruments and corresponding norms of customary law. These international legal obligations create no general exception for terrorism in their application, but rather establish an interrelated and mutually reinforcing regime of human rights protections with which states’ responses to terrorism must conform.[69] In this respect, the campaign against terrorism and the protection of human rights should not be regarded as antithetical responsibilities; to the contrary, derogation clauses in international human rights instruments clearly recognize that exceptional measures requiring the temporary suspension of some rights may sometimes be necessary in responding to threats for the very purpose of protecting democratic institutions and the rule of law, not to weaken or destroy them. This doctrinal approach has been particularly significant in the Americas, where the instigators and perpetrators of terrorism have frequently sought to undermine not only the human rights of civilian populations but the democratic systems of government upon which the protection of those rights fundamentally depend.

23. Through this report, the Commission will attempt to articulate in further detail the manner in which the human rights obligations of OAS member states should inform their responses to threats of terrorist violence.

C. Methodology

24. The Inter-American Commission announced its decision to undertake the present study on terrorism and human rights in a resolution adopted on December 12, 2001.[70] In declaring its intention to examine this topic, the Commission placed the pressing problem of terrorism in the context of OAS member states’ correlative obligations to protect the Hemisphere’s population against violence of this nature, and to ensure that their efforts in this regard conform with international law. Accordingly, the Commission’s study was conceived as an opportunity to assist states in adopting anti-terrorism measures that accord with their international human rights commitments. To this end, the Commission has in this report addressed the minimum requirements of international human rights and humanitarian law in respect of several fundamental human rights, and to evaluate the manner in which these requirements may impact upon a variety of anti-terrorism practices.

25. Following the release of its resolution on terrorism, the Commission decided to convene a panel of international experts during its 114th regular period of sessions at its Headquarters in Washington, D.C., in order to obtain timely information on the issue of terrorism and human rights from a variety of specialized perspectives. On March 11, 2002 at the Commission’s invitation, five experts, Aryeh Neier, President of the Open Society Institute, Dr. Jorge Santistevan, former Defensor del Pueblo of Peru, Yale and Johns Hopkins University Law Professor Ruth Wedgwood, University of Washington Law Professor Joan Fitzpatrick, and University of Virginia Law Professor David Martin, attended before the Commission and provided extensive and insightful oral and written presentations on various aspects of the issue. Topics of discussion included the propriety of using military commissions to try terrorism-related offenses, the conditions under which persons may be the subject of administrative detention for immigration and related reasons, and the possible role of international humanitarian law in regulating state responses to terrorist attacks.

26. To supplement the information gained through the experts hearing and to provide the Commission with the broadest input possible, the Commission, by notes transmitted in March and April 2002, invited each of the member states of the Organization of American States as well as several pertinent non-governmental organizations to submit in writing any general or specific observations that they may have on the subject matter of the Commission’s study. The Commission received a considerable number of responses to its invitations, including communications from the Governments of Venezuela, Panama, Argentina, Brazil, Colombia, Mexico, and the Commonwealth of Dominica as well as observations from various non-governmental organizations including London-based Interights, the Center for Constitutional Rights in New York, and Columbia Law School’s Human Rights Institute. The Commission also received information from other international institutions, including the International Commission of Jurists and the Office of the United Nations High Commissioner for Refugees, and drew upon pertinent material otherwise available in the public domain.

27. In the course of its study, the Commission took particular notice of the comprehensive draft conventions on terrorism prepared under the auspices of the United Nations and the Organization of American States, the negotiation of which coincided with the Commission’s initiative. These conventions, the latter of which was ultimately adopted by the OAS General Assembly and opened for signature and ratification on June 2, 2002 during its thirty-second regular session and which are discussed in further detail in Part II(A), signify the cooperative attitude among many states to confront terrorism. These instruments also illustrate several of the methods likely to be adopted by states in pursuing this objective and that may have implications for the protection of human rights. In this regard, the Commission noted with approval the prominent role that recognition of compliance with member states’ human rights and other existing international agreements played in the negotiation and final text of the OAS convention. As noted above, Article 15 of the Inter-American Convention Against Terrorism requires, inter alia, that measures carried out by states parties under the Convention must take place with full respect for the rule of law, human rights and fundamental freedoms and that “[n]othing 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.”[71] Also as observed above, ensuring compliance with existing international human rights and humanitarian law commitments in the campaign against terrorism is dictated both as a matter of principle, and in the terms of the international instruments by which states are legally bound.[72]

28. In evaluating the information received in the course of its study, the Commission considered that a rights-based methodology provided the most effective structure for its analysis. Under this approach, the implications of counter-terrorism initiatives are examined within the established framework of several core international human rights, in particular the right to life, the right to humane treatment, the right to personal liberty and security, the right to a fair trial, the right to freedom of expression and the right to judicial protection, as well as a variety of other potentially significant freedoms. In light of the fact that the circumstances surrounding instances of terrorism can, as noted above, involve a variety of perpetrators, victims, motivations and methodologies, the Commission considered it necessary to address the framework of these core rights in light of international human rights law and international humanitarian law.

29. The Commission wishes to remark briefly upon its use of international humanitarian law in the analysis of each of the rights under discussion. As explained in further detail in Part II(C), there may be occasions in which terrorist acts are perpetrated in the context of an existing armed conflict or where the nature and degree of violence generated by terrorist situations itself triggers the application of the law of armed conflict. Consistent with established international legal doctrine in this area, where situations of armed conflict may be concerned, international human rights law is in no way displaced by the law of armed conflict or any other regime of international law. Rather, human rights law continues to apply except to the extent that it may properly be made the subject of derogations. In interpreting and applying human rights protections in such circumstances, however, it may be necessary for the Commission to refer to and consider pertinent provisions of international humanitarian law as the applicable lex specialis.[73] This methodology is particularly significant where situations of international armed conflict are concerned, as the four Geneva Conventions of 1949 and other applicable instruments prescribe extensive and specific rules and standards concerning the protection of victims of armed conflict and must be considered in order to properly interpret and apply international human rights protections during these armed conflicts. Consistent with this approach, the Commission has integrated into its analysis of the various rights under discussion consideration of the manner in which applicable norms of international humanitarian law may affect state’s obligations in undertaking counter-terrorism initiatives.

30. The Commission would like to express its gratitude for the generous participation and input on the part of the experts, member states and organizations who contributed time and observations to this study.

Notes___________________________________

[1] See IACHR, Ten Years of Activities 1971-1981 (General Secretariat, OAS: 1982),
at p. 339 [hereinafter Ten Years of Activities].

[2] See, e.g., Walter Laqueur, Reflections on Terrorism, 65 Foreign Affairs 86, 91 (1996) [hereinafter Laqueur, Reflections on Terrorism].

[3] See, e.g., Annual Report of the IACHR 1990-91, OEA/Ser.L/V/II.79 rev. 1 Doc. 12 (February 22, 1991), Chapter V, p. 512 [hereinafter Annual Report of the IACHR 1990-91].

[4] Well-known incidents of terrorist violence in the Americas include the 1976 bombing of a Cubana de Aviación passenger flight from Caracas, the July 18, 1994 bombing of the Asociación Mutual Israelita Argentina in Buenos Aires, Argentina, the hostage-taking at the Embassy of Japan in Lima, Peru in December 1996, and the 1999 hijacking of Avianca Flight 9463 en route from Bucaramanga to Bogotá, Colombia. See IACHR Press Release N° 15/94 dated July 20, 1994; IACHR Press Release N° 21/96 dated December 18, 1996; IACHR Press Release N° 11/99 dated April 16, 1999, Press Release 15/99 dated June 2, 1999, IACHR Press Release Nº 18/99 dated June 24, 1999.

[5] See Annual Report of the IACHR 2001, OEA/Ser./L/V/II.114, doc. 5 rev., 16 April 2001 [hereinafter Annual Report of the IACHR 2001, Chapter IV, Introduction; Resolution of the OAS Permanent Council, Convocation of the 23rd Meeting of Consultation of Ministers of Foreign Affairs, OEA/Ser.G CP/RES.796 (1293/01) (19 September 2001).

[6] See Ten Years of Activities, supra note 1, at 339; Case 11.182, Report Nº 49/00, Asencios Lindo et al. (Peru), Annual Report of the IACHR 2000, para. 58. See similarly I/A Court H.R., Neira Alegría Case, Judgment of January 19, 1995, Ser. A Nº 20.

[7] See, e.g., 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 on 2 February 1971, OAS Treaty Series, Nº 37. [hereinafter 1971 OAS Terrorism Convention].

[8] Inter-American Convention Against Terrorism, OAS General Assembly Resolution AG/RES. 1840 (XXXII-O/02) 2nd plenary session, June 3rd 2002 [hereinafter Inter-American Convention Against Terrorism].

[9] See, e.g., Annual Report of the IACHR 1992-93, OEA/Ser.L/V/II.83 Doc. 14 (March 12, 1993), Chapter V “Areas in which Steps Need to be Taken Towards Full Observance of the Human Rights Set Forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights” (discussing legislative and other measures taken by states in the Americas and elsewhere in responding to terrorist and other violence).

[10] Ten Years of Activities, supra note 1, at 339.

[11] Inter-American Convention Against Terrorism, supra note 8, Article 15.

[12] Annual Report of the IACHR 1990-91, supra note 3, Chapter V, at 512.

[13] Article 18(b) and (c) of the Statute of the Inter-American Commission on Human Rights [hereinafter Statute of the Inter-American Commission on Human Rights], in Basic Documents Pertaining to Human Rights the Inter-American System, OEA/Ser.L/V/I.4 rev. 8 (May 22, 2001), at 119, [hereinafter Basic Documents].

[14] OAS General Assembly Resolution AG/RES. 1840 (XXXII-O/02) of June 3, 2002 (see Annex III).

[15] As discussed below, there is at present no accepted definition of terrorism under international law. In its broadest sense, terrorism is frequently described as the use of violence to generate fear in the public in the pursuit of political aims. See, e.g., Declaration of Lima to Prevent, Combat, and Eliminate Terrorism, adopted at the second plenary session of the ministers and heads of delegation of the member states of the OAS for the Inter-American Conference on Terrorism, 26 April 1996, para. 3 (describing terrorism as a “serious form of organized and systematic violence, which is intended to generate chaos and fear among the population”) [hereinafter Declaration of Lima to Prevent, Combat, and Eliminate Terrorism]; UN General Assembly Resolution 51/210, A/RES/51/210 (17 December 1996) “Measures to eliminate international terrorism”, para. 2 (reiterating that “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.”).

[16] Charles A. Russell et al., Out-Inventing the Terrorist, in Terrorism: Theory and Practice 3 at 5 (Yonah Alexander et al., 1979) [hereinafter Russell].

[17] League of Nations, Convention for the Prevention and Punishment of Terrorism, O.J. 19 at 23 (1938), League of Nations Doc. C.546 (I).M.383 (I). 1937, V (1938), cited in M. Cherif Bassiouni, International Terrorism, in International Criminal Law, Crimes 765 (M. Cherif Bassiouni, ed., 2d ed., 1999) [hereinafter Bassiouni, International Terrorism].

[18] See, e.g., Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature December 16, 1970, 860 U.N.T.S. 105 [hereinafter Convention for the Suppression of Unlawful Seizure of Aircraft]. For an evaluation of recent United Nations’ efforts to develop a comprehensive Convention on International Terrorism, see International Commission of Jurists, Terrorism and Human Rights 202-210 (Federico Andreu Guzmán, ed., 2000).

[19] UN bodies which have considered the problem of terrorist violence include the Security Council, the General Assembly, and the International Law Commission. See, e.g., Security Council Resolution 1269(1999) on international cooperation in the fight against terrorism, UN SCOR, 4053rd meeting, UN Doc. S/RES/1269 (1999), 19 October 1999; UN General Assembly Resolution 3034 (XXVII) on measures to prevent international terrorism, UN GAOR, 2114th plenary meeting, 19 December 1972; Yearbook of the International Law Commission, 1990, Vol. II, Part II, pp. 28-29, Draft Code of Crimes Against Peace and Security of Mankind.

[20] See, e.g., European Convention on the Suppression of Terrorism, Europ. T.S. 90 (27 January 1997); Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight against Terrorism, (11 July 2002).

[21] See, e.g., European Parliament, Recommendations on the Role of the European Union in Combating Terrorism (2001/2016 (INI)), 5 September 2001.

[22] See, e.g., Decision on Combating Terrorism and the Bucharest Plan of Action for Combating Terrorism, Bucharest Ministerial Declaration, Ninth Meeting of the Ministerial Council, Organization for Security and Co-operation in Europe (3, 4 December 2001), Decision (MC(9).DEC/1) and Annex to MC(9).DEC/1.

[23] See, e.g., Organization of African Unity, Convention on the Prevention and Combating of Terrorism, adopted at Algiers on 13 July 1999, deposited with the General Secretariat of the Organization of African Unity [hereinafter OAU Convention on the Prevention and Combative of Terrorism].

[24] 1971 OAS Terrorism Convention, supra note 7.

[25] See OAS General Assembly Resolution, OEA/Ser.P, AG/RES. 1650 (XXIX-O/99), 7 June 1999 (establishing the Inter-American Committee against Terrorism). See also Inter-American Committee against Terrorism, Report of the Chairman on the Second Regular Session of the Inter-American Committee against Terrorism, OAS Doc. OEA/Ser.L/X.2.2CICTE/doc.9/02 (26 February 2002).

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

[27] One of the Commission’s earliest efforts to develop a doctrinal approach to the protection of human rights in the context of states of emergency prompted by terrorist and other forms of violence was a report prepared by the Commission’s special rapporteur, Dr. Daniel Hugo Martinus, and adopted by the Commission during its Sixteenth Period of Sessions from April 24 to May 3, 1967 on the “Protection of Human Rights in Connection with the Suspension of Constitutional Guarantees or “States of Siege””. OEA/Ser.L/V/II.15 Doc. 12, adopted by IACHR Resolution, OEA/Ser.L/V/II.17 Doc. 24. The Commission has also addressed the problem of terrorist violence in many of its special reports on the situation of human rights in countries of the Hemispheres. See, e.g., IACHR, Report on the Situation of Human Rights in El Salvador (1978), OEA/Ser.L/V/II.46, doc. 23 rev. 1, 17 November 1978 [hereinafter IACHR, Report on El Salvador (1978)]; IACHR, Report on the Situation of Human Rights in Argentina (1980), OEA/Ser.L/V/II.49, doc. 19, 11 April 1980 [hereinafter IACHR Report on Argentina (1980)]; IACHR, Report on the Situation of Human Rights in Colombia (1981), OEA/Ser.L/V/II.53, doc. 22, 30 June 1981 [hereinafter IACHR Report on Colombia (1981)], Report on the Situation of Human Rights in Guatemala (1981), OEA/Ser.L/V/II.53, doc. 21 rev. 2, 13 October 1981; Report on the Situation of Human Rights in Peru (1993), OEA/Ser.L/V/II.83, Doc. 31, 85th Session, March 12, 1993, Report on the Situation of Human Rights in Peru (2000) OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, [hereinafter IACHR Report on Peru (2000)]. See generally Annual Report of the IACHR 1990-91, supra note 3, Ch. V, Part II “Groups of Armed Irregulars and Human Rights.”

[28] See, e.g., Report of the Ad Hoc Committee by General Assembly Resolution 51/210 of 17 December 1996, Fifth Session (12-23 February 2001), UN Doc. A/56/37, Annex V, para. 10 (indicating that in the general exchange of views on including a definition of terrorism in a comprehensive UN convention on international terrorism, “some delegations stressed that the definition of terrorism must clearly differentiate between terrorism and the legitimate struggle in the exercise of right to self-determination and independence of all peoples under foreign occupation.”).

[29] See W. Michael Reisman, In Defense of World Public Order, 95 Am J. Int’l L. 833, 834 (2001) [hereinafter Reisman 2001]; Walter Laqueur, Postmodern Terrorism, 75 Foreign Affairs 24, 34 (1996) [hereinafter Laqueur, Postmodern Terrorism] (opining that “as the century draws to a close, terrorism is becoming the substitute for the great wars of the 1800’s and early 1900’s”).

[30] See, e.g., Remarks by the President at the 2002 Graduation Exercises of the United States Military Academy, West Point, New York, June 1, 2002, White House, Office of the Press Secretary (proclaiming that “[h]omeland defence and missile defence are part of a stronger security, and they’re essential priorities for America. Yet the war on terrorism will not be won on the defensive. We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge. In the world we have entered, the only path to safety is the path of action. And this nation will act.” See also Scott Lindlaw, “Bush Pledges Pre-emptive Strikes”, Associated Press, June 1, 2002).

[31] Recent attempts to achieve international agreement on a comprehensive definition of terrorism include the negotiations for the Statute for the International Criminal Court, during which proposals were made to include terrorism within the jurisdiction ratione materiae of the Court. These efforts proved unsuccessful, with the result that any further proposals to include this or other crimes as amendments to the subject matter jurisdiction cannot be made for a period of seven years following the coming into force of the treaty. See Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Done at Rome on 17 July 1998, A/CONF.183/10, Resolution E, A/CONF.183/C.1/L.76/Add.14, at 8; Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), corrected by the procés-verbaux of 10 November 1998 and 12 July 1999, entered into force July 1, 2002, Article 121(1) [hereinafter Rome Statute]. See similarly UN Press Release L/2993 of February 1, 2002 on Ad Hoc Committee on Assembly Resolution 51/210, 6th Sess., 26th mtg. (1 February 2002) (indicating that the Ad Hoc Committee Established by General Assembly Resolution 51/201 of December 17, 1996, which is charged with preparing a comprehensive international treaty on terrorism, had not reached an agreement on, inter alia, a definition of terrorism under Article 2 of the draft treaty); Report of the Sixth Committee, UN Doc. 34/786 (December 1979) (indicating that a subject matter oriented approach to preventing, controlling and suppressing terrorism dominated the ad hoc UN committee on international terrorism in 1973, 1977 and 1979 because efforts to develop a comprehensive definition of terrorism proved politically difficult).

[32] Article 2 of the Inter-American Convention Against Terrorism defines “offenses” for the purposes of the Convention as including those crimes established in ten international instruments, including the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971, and the 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; Inter-American Convention Against Terrorism, supra note 8, Article 2.

[33] See, e.g., International Convention Against the Taking of Hostages, UN Res. 34/145 (XXXIV), 34 UN GAOR Supp. (Nº 46), at 345, UN Doc. A/34/146 (1979), 1316 U.N.T.S. 205 [hereinafter 1979 UN Hostages Convention].

[34] See, e.g., Convention on Offenses and Certain other Acts Committed on Board Aircraft, opened for signature September 14, 1963, 704 U.N.T.S. 219 [hereinafter 1963 Hijacking Convention]; Convention for the Suppression of Unlawful Seizure of Aircraft, supra note 18; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, opened for signature at Montreal, September 23, 1971, 974 U.N.T.S. 177 [hereinafter 1971 Montreal Convention].

[35] See, e.g., Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, opened for signature Dec. 14, 1973, 1035 U.N.T.S. 167 [hereinafter UN Crimes Against Internationally Protected Persons Convention]; Convention on the Safety of United Nations and Associated Personnel, UN Doc. A/RES/49/59 (1995), (17 February 1995).

[36] Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force Oct. 21, 1950, Article 33 [hereinafter Fourth Geneva Convention] (providing, inter alia, that “all measures of intimidation or of terrorism are prohibited.”). See similarly Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force Dec. 7, 1978, Article 13 [hereinafter Second Additional Protocol, or Additional Protocol II]. For OAS members states that are parties to these instruments, see Annex II.

[37] Professor W. Michael Reisman has urged a similar approach in developing international responses to terrorism, observing that

[I]n any consideration of the range of lawful responses to international terrorism, the policymaker and adviser should eschew rather narrowly bounded a priori definitions of terrorism as well as unexamined assumptions about the marginality or inherent lack of utility of terrorism. It will be useful to look, instead, at the full range of possible authors of terrorism, assessing what contemporary international law has prescribed and should prescribe with respect to responses to each of them in such a way as to address the dangers international terrorism poses to world order.

W. Michael Reisman, International Legal Responses to Terrorism, 22 Hous. J. Int’l L. 3, 12-13 (1999) [hereinafter Reisman 1999]. See similarly Jonathan Charney, The Use of Force Against Terrorism and International Law, 95 Am J. Int’l L. 835 (2001); Thomas Franck, Terrorism and the Right of Self-Defense, 95 Am. J. Int’l L. 839 (2001).

[38] See, e.g., UN Declaration on Measures to Eliminate International Terrorism, annexed to UN General Assembly Resolution 49/60, UN Doc. A/RES/49/60 (7 February 1995), Article 3.

[39] See generally Bassiouni, International Terrorism, supra note 17, at 770-1.

[40] International bodies, including this Commission and the UN Security Council, have condemned the perpetration or sponsorship of terrorism by states. See, e.g., Annual Report of the IACHR 1990-91, supra note 3, Ch. V; Security Council Resolution 1373, UN SCOR, 4385th meeting, 28 September 2001, S/RES/1373 (2001) (requiring all member states to prevent and suppress acts of international terrorism, especially denying terrorists the use of the state’s territories and access to sources of funding.) [hereinafter UNSC Resolution 1373]. Some experts on terrorism posit that truly effective concerted action against terrorism is possible only by targeting those rulers of countries that are the sponsors of international terrorism. See, e.g., Walter Laqueur, Reflections on Terrorism, supra note 2, at 98.

[41] See Annual Report of the IACHR 1990-91, supra note 3, Ch. V (condemning state terrorism in the following terms:)

The other phenomenon that caused the Inter-American Commission on Human Rights to define the legal framework for its activities in connection with the issue of terrorism was the frequent use of terrorism by governments, where the Commission has established massive and systematic human rights violations were being committed. Thus, for example, governments such as those that resulted from the coup d’etat in Chile on September 11, 1973, or in Argentina on March 26, 1976, or the government [created] by General Anastasio Somoza in Nicaragua–to mention a few–argued that their actions were in response to the need to deal with terrorist attacks […] such generalized violence, even terrorist violence, cannot ever be used to justify the violations that occur.

[42] Annual Report of the IACHR 1990-91, supra note 3, Ch. V, Part II.

[43] Russell, supra note 16, at 12-13.

[44] Laqueur, Reflections on Terrorism, supra note 2, at 91. See similarly Reisman 2001, supra note 29, at 834.

[45] Russell, supra note 16, at 4-5.

[46] For discussions of the possible use of nuclear, chemical, biological and other weapons of mass destruction by terrorists, see Laqueur, Postmodern Terrorism, supra note 29, at 28-31. See also Russell, supra note 16, at 10-13.

[47] Reisman 1999, supra note 37, at 6-7.

[48] Bassiouni, International Terrorism supra note 17, at 785. Other publicists have cautioned, however, that the propensity of terrorists to sacrifice their lives has been exaggerated and does not support the view that terrorism can only be subdued through extreme measures that themselves may contravene the values of a democratic society. Laqueur, Reflections on Terrorism, supra note 2, at 93-94.

[49] See infra Part III(C), paras. 67-70 for a discussion of the meaning of and criteria for privileged and unprivileged combatants and prisoner of war status under the 1949 Geneva Conventions and Additional Protocol I thereto.

[50] According to Professor Antonio Cassese, the rights and privileges afforded by international humanitarian law “are not subject to restrictions because of alleged terrorist activity by detainees. Terrorist acts, if they are proved, only result in the terrorists becoming responsible for war crimes or crimes against humanity.” Antonio Cassese, Terrorism and Human Rights, 31 Am U. L. Rev. 945, 951 (1982). See also Reisman 1999, supra note 37, at 11-12 .

[51] See, e.g., Fourth Geneva Convention, supra note 36, Article 33 (prohibiting “all measures of intimidation or of terrorism” in connection with protected persons), Article 147 (including “taking of hostages” among the grave breaches when committed against persons or property protected by the Fourth Geneva Convention); Additional Protocol II, supra note 36, Article 4(2)(d) (prohibiting “acts of terrorism” at any time and in any place whatsoever), Article 13 (prohibiting “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”).

[52] As Professor David Martin observed in connection with the March 11, 2002 panel of experts hearing before the Commission, “the international community is now at a difficult point of adapting, or applying by analogy, many of the established rules to the new circumstances posed by highly organized global terrorism committed by non-state actors.” For a discussion of anti-terrorism initiatives adopted by a variety of states around the globe, see Measures to Eliminate International Terrorism, Report of the UN Secretary General, fifty-sixth session of the UN General Assembly, UN Doc. A/56/160 (3 July 2001). For an analysis of the extent to which anti-terrorist measures taken by governments around the world following September 11, 2001 have potentially restricted civil liberties, see “For Whom the Liberty Bell Tolls”, The Economist, August 31-September 6, 2002, p. 18.

[53] See, e.g., OAS Permanent Council Resolution 1293 (2001), Convocation of the Twenty-Third Meeting of Consultation of Ministers of Foreign Affairs OEA/Ser.G CP/RES. 796 (1293/01) (19 September 2001), para. 4 (urging all member states to support international efforts to bring those responsible for the September 11, 2001 terrorist attacks to justice and to promote inter-American cooperation, especially through information sharing, for that purpose); UNSC Resolution 1373, supra note 40, para. 3(a), (b), (c) (calling upon states to intensify and accelerate the exchange of operational information regarding, inter alia, actions or movements of terrorist persons or networks, exchange information in administrative and judicial matters to prevent the commission of terrorist acts, and cooperate particularly through bilateral and multilateral arrangements and agreements to prevent and suppress terrorist acts and take action against perpetrators of such acts).

[54] See, e.g., UNSC Resolution 1373, supra note 40, para. 3(f), (g) (calling upon all States to take appropriate measures to ensure that asylum-seekers have not planned, facilitated or participated in the commission of terrorist acts, that refugee status is not abused by the perpetrators, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists).

[55] See, e.g., I/A Court H.R., Castillo Petruzzi et al. Case, Judgment of May 30, 1999, Series C Nº 52; Declaration of Lima to Prevent, Combat, and Eliminate Terrorism, supra note 15, para. 5 (declaring that terrorist acts are serious common crimes or felonies and, as such, should be tried by national courts in accordance with domestic law and the guarantees provided by the rule of law).

[56] See, e.g., International Convention for the Suppression of the Financing of Terrorism of 9 December 1999, UN General Assembly Resolution A/RES/54/109; UNSC Resolution 1373, supra note 40, para. 1 (deciding that all States should, inter alia, prevent and suppress the financing of terrorist acts, and “freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities.”).

[57] See, e.g., Statement to the Press, NATO Secretary General Lord Robertson, on the North Atlantic Council Decision On Implementation of Article 5 of the Washington Treaty following the 11 September Attacks Against the United States, 4 October 2001 on the internet at www.nato.int/docu/speech/2001/s011004b.htm, last visited April 23, 2002; OAS Permanent Council Resolution 797, Convocation of the Twenty-Fourth Meeting of Consultation of Ministers of Foreign Affairs to Serve as Organ of Consultation in Application of the Inter-American Treaty of Reciprocal Assistance, OEA/Ser.G CP/RES. 797 (1293/01) (19 September 2001).

[58] See, e.g., Inter-American Convention Against Terrorism, supra note 8.

[59] See, e.g., Inter-American Convention Against Terrorism, supra note 8, Article 11; European Convention on the Suppression of Terrorism, supra note 20, Article 1.

[60] Ten Years of Activities, supra note 1, at 339; Asencios Lindo et al. Case, supra note 6, para. 58; Neira Alegría Case, supra note 6.

[61] Annual Report of the IACHR 1990-91, supra note 3, Ch. V, Part II, at 513; Neira Alegría Case, supra note 6; American Convention on Human Rights, in Basic Documents, supra, note 13, Articles 1, 2.

[62] Annual Report of the IACHR 1990-91, supra note 3, Ch. V, Part II, at 512. Full respect for the rule of law and fundamental human rights has been explicitly recognized by OAS member states as a necessary requirement for efforts to combat terrorism. See, e.g., OAS General Assembly Resolution AG/RES. 1043 (XX-0/90), OAS GA twentieth regular session, 1990; Inter-American Convention Against Terrorism, supra note 8, Preamble, Article 15.

[63] American Declaration of the Rights and Duties of Man [hereinafter American Declaration], in Basic Documents, supra note 13, at 15

[64] American Convention on Human Rights [hereinafter American Convention], in Basic Documents, supra note 13, at 23.

[65] Universal Declaration of Human Rights, GA Res. 217A(III), UN Doc. A/810 at 71 (1948) [hereinafter Universal Declaration of Human Rights].

[66] International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), 21 UN GAOR (Supp. Nº 16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976 [hereinafter International Covenant on Civil and Political Rights]. For OAS member states that are parties to this instrument, see Annex II.

[67] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field , 75 U.N.T.S. 31, entered into force Oct. 21, 1950, [hereinafter First Geneva Convention], Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, entered into force Oct. 21, 1950 [hereinafter Second Geneva Convention], Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force Oct. 21, 1950 [hereinafter Third Geneva Convention], Fourth Geneva Convention, supra note 36. For OAS member states that are parties to these instruments, see Annex II.

[68] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, entered into force Dec. 7, 1978 [hereinafter First Additional Protocol or Additional Protocol I]; Additional Protocol II, supra note 36. For OAS member states that are parties to these instruments, see Annex II.

[69] See generally T Buergenthal, To Respect and Ensure: State Obligations and Permissible Derogations, in The International Bill of Rights 73, at 89 (L. Henkin, ed. 1981) [hereinafter Buergenthal, To Respect and Ensure]. The predominance of states’ human rights obligations in efforts to suppress terrorism has been recognized in Article 15 of the Inter-American Convention Against Terrorism, which provides: “1. The measures carried out by 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 on the territory of which that person is present and applicable provisions of international law.”

[70] See Annex I.

[71] Inter-American Convention Against Terrorism, supra note 8, Article 15.

[72] For further recognition by OAS member states of this requirement, see OAS General Assembly Resolution AG/RES.1906 (XXXII-O/02) (June 4, 2002), para. 1 (reiterating 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.”).

[73] See Case 11.137, Report Nº 5/97, Abella (Argentina), Annual Report of the IACHR 1997, para. 161; Coard et al. (United States), Case 10.951, Report Nº 109/99, Annual Report of the IACHR 1999, paras. 37-42; I/A Court H.R., Advisory Opinion OC-1/82, “Other Treaties” Subject to the Advisory Jurisdiction of the Court (Article 64 American Convention on Human Rights), September 24, 1982, Ser. A. Nº 1; I/A Court H.R., Advisory Opinion OC-10/89, Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, July 14, 1989, Ser. A Nº 10; I/A Court H.R., Bámaca Velásquez Case, Judgment of November 25, 2000, Ser. C Nº 70, p. 473 at 557, paras. 207-209. See similarly ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, July 8 1996, ICJ Reports 1996, para. 25 [hereinafter ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons].

 



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