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).


3. The Right to Life and Terrorism

106. As suggested above, the protections of the right to life provided for by international human rights law and international humanitarian law are particularly relevant to two types of counter-terrorism initiatives that may occur in peacetime, states of emergency or armed conflicts, namely the use of lethal force by state agents during anti-terrorist operations, and the application of the death penalty to persons convicted of terrorism related offenses.

107. In the course of anti-terrorist operations, state agents might resort to the use of lethal force. In fact, the state has the right and duty to guarantee the security of all, which may in some circumstances require the use of lethal force.[300] Nevertheless, as emphasized by the Inter-American Court in the context of the use of force by law enforcement officials, “regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends. The State is subject to law and morality. Disrespect for human dignity cannot serve as the basis for any State action.”[301]

108. The Commission has specified , “[t]he American Convention, as well as other universal and regional human rights instruments, and the 1949 Geneva Conventions share a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity. These human rights treaties apply both in peacetime, and during situations of armed conflict. […] Both Common Article 3 and Article 4 of the American Convention protect the right to life and, thus, prohibit, inter alia, summary executions in all circumstances.”[302] Accordingly, both international human rights law and international humanitarian law protect the lives of civilians, combatants placed hors de combat and, to some extent, the lives of combatants taking part in the hostilities.

109. As discussed in the above sections, one of the principal distinctions between international human rights law applicable in peacetime and international humanitarian law applicable in armed conflict is the fact that the latter does not prohibit the targeting or killing of enemy combatants who have not laid down their arms or been placed hors de combat, such that the death of a combatant under these circumstances does not constitute a violation of the right to life. Notwithstanding this fundamental distinction, it may also be considered that both international human rights law and international humanitarian law have similar fundamental principles applicable to situations where the state uses lethal force to protect its security or that of its citizens in both peacetime and armed conflict situations.[303]

110. Further, while there exists a rule of proportionality applicable both in peacetime and during situations of armed conflict, it has a different meaning and different implications in each context. Accordingly, in peacetime, the principle of proportionality provides that the use of force be proportionate to the needs of the situation.[304] Under international humanitarian law, on the other hand, the principle of proportionality prohibits “attacks which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”[305] The concept of proportionality is inherent in the complementary customary law principles of necessity and humanity which underlie the law governing the conduct of all armed conflicts. The principle of necessity justifies only those measures of military violence, not forbidden by international law, which are relevant and proportionate to securing the prompt submission of the enemy with the least possible expenditure of human and economic resources. The principle of humanity complements and inherently limits the principle of necessity by forbidding those measures of violence which are not necessary (i.e. relevant and proportionate) to the achievement of a definite military advantage. Thus, the principle of humanity “[…] results in a specific prohibition against unnecessary suffering, a requirement of proportionality and [. . .] confirms the basic immunity of civilian populations and civilians from being the objects of attack during armed conflicts.”[306] These customary law principles accordingly prohibit disproportionate and other kinds of attacks by requiring that the party launching an attack against a legitimate military objective must always seek to avoid or minimize foreseeable civilian casualties and damage to civilian objects.[307] While this principle seeks to minimize the damage inflicted on civilians, it does not, however, apply to limit the damage inflicted on combatants or military objectives.[308] While the distinct nature of the principle of proportionality applicable under international humanitarian law must be recognized, it can nevertheless be said that excessive foreseeable damage or injury to certain persons or objects is prohibited in peacetime as well as in armed conflict.

111. Moreover, in accordance with the principle of distinction applicable during armed conflicts[309] and the equivalent principle applicable in peacetime,[310] state agents, when using force, may only target certain persons and objects. Accordingly, in armed conflict situations, parties to the conflict must distinguish between military objectives and civilians or civilian objects, and launch attacks only against the former.[311] Similarly, in peacetime situations, state agents must distinguish between persons who, by their actions, constitute an imminent threat of death or serious injury, or a threat of committing a particularly serious crime involving a grave threat to life, and persons who do not present such a threat, and use force only against the former. [312]

112. When assessing whether the right to life protected under inter-American human rights instruments has been violated specifically in the context of armed conflict, it is also necessary to refer to corresponding norms of international humanitarian law, which provide specific standards against which to evaluate whether a deprivation of life occurring during an armed conflict was arbitrary and therefore unlawful. Such standards are used in distinguishing between civilians and combatants.[313]

113. In their efforts to suppress terrorism, states have frequently resorted to the imposition of the death penalty as a punishment for terrorist-related offenses, which also have implications for the right to life. Irrespective of whether this measure is imposed during peacetime or armed conflict situations, certain restrictions apply at all times as fundamental and non-derogable protections under international human rights law and/or international humanitarian law.

114. First, certain conditions limit a state’s capacity to subject terrorism-related offenses to capital punishment. States parties to the American Convention that have abolished death penalty for such offenses may not reinstate it[314] and states that create new terrorist offenses and that have ratified the Convention may not subject those offenses to capital punishment.[315]

115. Secondly, in cases where a state lawfully subjects terrorism-related offenses to capital punishment, certain conditions also limit the manner in which the penalty can be applied. In particular, a death sentence may only be pronounced pursuant to a final judgment rendered in accordance with a law establishing such punishment, enacted prior to the commission of the crime.[316] The death penalty may be imposed only for the most serious crimes and may not be applied through mandatory sentencing laws.[317] It may never be applied for political offenses or related common crimes.[318] It should be noted in this connection that certain international anti-terrorism instruments explicitly stipulate that terrorist crimes as defined under those instruments are not to be regarded as political or related common offenses for the purposes of extradition or mutual legal cooperation.[319]

116. Other conditions also limit manner in which the death penalty can be applied. Specifically, certain personal characteristics of an offender, including his or her age, may preclude the application of the penalty altogether.[320] Persons condemned to death have the right to apply for amnesty, pardon, or commutation of sentence.[321] As suggested above, additional procedural requirements, such as the notification of Protecting Powers, may apply based upon the lex specialis of international humanitarian law governing international armed conflicts.

117. In addition, at all times, including during armed conflicts, the imposition of such a penalty is subject to strict procedural requirements and to a rigorous control of fundamental minimum judicial guarantees. To the extent that these requirements protect the non derogable right to life and constitute pre-conditions necessary to ensure that the imposition of the capital punishment does not constitute an arbitrary deprivation of life, such fundamental guarantees are themselves non-derogable under human rights law as well as under humanitarian law.[322] They include in particular guarantees provided by the principles of nullum crimen sine lege, nulla poena sine lege, and non-bis-in-idem, as well as the presumption of innocence, the right not to be convicted of an offense except on the basis of individual penal responsibility, and the right to be tried by a competent, independent and impartial tribunal as defined under applicable international standards[323] and previously established by law. They also include the following procedural guarantees for capital defendants:

*

The right to prior notification in detail of the charges against him or her;
*

The right 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 choice or, in the case of an indigent defendant, the right to legal counsel free of charge where such assistance is required for a fair hearing;
*

The right not to be compelled to be a witness against his or herself or to plead guilty;
*

The right to examine witnesses presented against his or her;
*

The right to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as opposing witnesses;
*

To be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal a judgment to a higher court[324]

B. Right to Personal Liberty and Security

1. International Human Rights Law

118. The right to personal liberty and security and to be free from arbitrary arrest or detention is provided for in both Article XXV of the American Declaration and Article 7 of the American Convention on Human Rights as follows:

American Declaration

Article XXV. No person may be deprived of liberty except in the cases and according to the procedures established by pre-existing law. No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character. Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.

American Convention

Article 7.1. Every person has the right to personal liberty and security. 2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto. 3. No one shall be subject to arbitrary arrest or imprisonment. 4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him. 5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial. 6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies. 7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.

119. Similar provisions can be found in other international human rights instruments, including Article 9 of the Universal Declaration of Human Rights,[325] Article 9 of the International Covenant on Civil and Political Rights,[326] and, specifically with respect to the arrest, detention or imprisonment of children, Article 37 of the Convention of the Rights of the Child.[327]

120. These provisions provide for numerous guarantees aimed at protecting persons from unlawful or arbitrary interference with their liberty by the state, both in connection with criminal proceedings and in other areas where states may exercise authority. Among the protections guaranteed are the requirements that any deprivation of liberty be carried out in accordance with pre-established law, that a detainee be informed of the reasons for the detention and promptly notified of any charges against them, that any person deprived of liberty is entitled to juridical recourse, to obtain, without delay, a determination of the legality of the detention, and that the person be tried within a reasonable time or released pending the continuation of proceedings.[328] In all circumstances, detainees must be treated humanely.[329]

121. Both this Commission and the Inter-American Court have previously emphasized that no one may be deprived of liberty except in cases or circumstances expressly provided by law, and that any deprivation of liberty must strictly adhere to the procedures defined thereunder.[330] This includes ensuring against arbitrary arrest and detention by strictly regulating the grounds and procedures for arrest and detention under law.[331] It also includes ensuring prompt and effective judicial oversight of instances of detention, in order to protect the well-being of detainees at a time when they are wholly within the control of the state and therefore particularly vulnerable to abuses of authority.[332] It has been observed in this respect that where detention is not ordered or promptly supervised by a competent judicial authority, where the detainee may not fully understand the reason for the detention or have access to legal counsel, and where the detainee’s family may not have been able to locate him or her promptly, there is clear risk, not just to the legal rights of the detainee, but also to his or her personal integrity.[333]

122. To avoid risks of this nature, the Commission has suggested that a delay of more than two or three days in bringing a detainee before a judicial authority will generally not be considered reasonable.[334] An effective system for registering arrests and detentions and making that information available to family members, counsel and other persons with legitimate interests in the information has also been widely recognized as one of the most essential components of a properly functioning justice system, as it provides crucial protection for the rights of the detainee and reliable information for the accountability of the system.[335]

123. Where a person is subjected to preventative detention following his or her apprehension, it must be demonstrated that state authorities have adequate justification for that detention and that the state has exercised the requisite diligence in ensuring that the duration of such confinement is not unreasonable, including providing for prompt and continued judicial oversight. Possible justifications for preventative detention have been held by the Commission to include the existence of a reasonable suspicion that the accused has committed an offense, the danger of flight, the need to investigate, the possibility of collusion, the risk of pressures on witnesses, and the preservation of public order.[336] The validity of any justification must be interpreted in light of a defendant’s right to be tried within a reasonable time or to be released, as well as the right to the presumption of innocence which requires that the duration of preventative detention not exceed a reasonable period of time.[337]

124. This Commission, like other international human rights bodies, has recognized that the deprivation of an individual’s liberty may also be justified in connection with the administration of state authority beyond the investigation and punishment of crimes where measures of this nature are strictly necessary. Such circumstances have been held to include detention in the context of controlling the entry and residence of aliens in their territories and confinement for reasons relating to physical or mental health.[338] While deprivations of liberty may be permissible in situations of this nature, the Commission has emphasized that any such detention must in all circumstances comply with the requirements of preexisting domestic and international law. As described above, these include the requirement that the detention be based on the grounds and procedures clearly set forth in the constitution or other law and that it be demonstrably necessary, fair and non-arbitrary. Detention in such circumstances must also be subject to supervisory judicial control without delay and, in instances when the state has justified continuing detention, at reasonable intervals.[339]

125. In the case of asylum seekers in particular, the Commission notes that detention or other restrictions on the movement of asylum seekers are permitted only as exceptions under applicable refugee and human rights law, and then only pursuant to law and subject to due process protections.[340] Measures aimed at the automatic detention of asylum seekers are therefore impermissible under international refugee protections. They may also be considered arbitrary and, depending upon the characteristics of persons affected by any such restrictions, potentially discriminatory under international human rights law.

126. According to applicable human rights instruments and inter-American jurisprudence, the right to liberty may be the subject of derogation in times of emergency. At the same time, a state’s ability to suspend this right in such circumstances has been strictly and narrowly defined by the supervisory organs of this and other human rights systems.[341] In particular, the Inter-American Court has ruled that Article 7(6) of the Convention, reproduced above, proclaims and governs the remedy of habeas corpus which, in the Court’s view “performs a vital role in ensuring that a person’s life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or other cruel, inhumane or degrading punishment or treatment.“[342] In light of the fundamental nature of habeas corpus in this regard, the Court has concluded that the judicial guarantees essential for the protection of the human rights not subject to derogation under Article 27(2) of the American Convention include those expressly referred to in Article 7(6) of the Convention.[343] Accordingly, while the right to personal liberty and security is derogable, the right to resort to a competent court under Article 7(6), which by its nature is necessary to protect non-derogable rights during criminal or administrative detention, such as the right to humane treatment, may not be the subject of derogation in the inter-American system.

127. The Commission has held that there are other components of the right to liberty that can never be denied, including underlying principles that law enforcement authorities must observe in making an arrest even during an emergency.[344] In this regard, the Commission, together with other international authorities, have also endeavored to identify additional fundamental standards for the protection of detainees that may not be suspended even in permissible situations of derogation in emergency situations that threatens the independence or security of a state.[345] These include the requirement that the grounds and procedures for the detention be prescribed by law, the right to be informed of the reasons for the detention, as well as certain guarantees against prolonged incommunicado or indefinite detention, including access to legal counsel, family and medical assistance following arrest, prescribed and reasonable limits upon the length of preventative detention,[346] and maintaining a central registry of detainees. These protections are also considered to include appropriate judicial review mechanisms to review detentions on a regular basis, when detention is prolonged or extended. As with the right to habeas corpus or amparo, the non-derogable nature of these protections arises in large measure from their integral role in protecting other non-derogable rights such as the right to humane treatment and the right to a fair trial and the need to ensure that detainees or prisoners are not left completely at the mercy of those holding them.

128. Where the arrest, commitment to prison or custody pending trial, or detention in any other manner of foreign nationals is concerned, international jurisprudence, including that of the inter-American human rights system, has recognized the importance of compliance with international obligations aimed at protecting the particular interests of foreign nationals in these situations. These obligations include the requirements of Article 36 of the Vienna Convention on Consular Relations, which provides:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.[347]

129. These provisions have been described as establishing an interrelated regime designed to facilitate the implementation of the system of consular protection of foreign nationals in states party to the treaty.[348] A state party to this treaty is obliged to inform foreign nationals who are detained in any manner by that state of his or her right to have the consulate of their state notified of the detainees’ circumstances and to communicate with his or her consulate. These requirements also contain no provision for derogation. The right to consular notification has also been recognized as significant to the due process and other rights of detainees by, for example, providing potential assistance with various defense measures such as legal representation, gathering of evidence in the country of origin, verifying the conditions under which the legal assistance is provided and observing the conditions under which the accused is being held while in prison.[349]

 

Notes______________________________

[300] Neira Alegría Case, supra note 6. See also IACHR Report on Colombia (1999), supra note 110, at 73, para. 8.

[301] Neira Alegría Case, supra note 6, para. 75, (referring to Velásquez Rodríguez Case, supra note 249, para. 154 and to Godínez Cruz Case, supra note 249, para. 162.)

[302] Abella Case, supra note 73, paras. 158 and 161 (footnotes omitted). See also IACHR Report on Colombia (1999), supra note 110, at 75, para. 12. See also Coard et al. Case, supra note 73, para 39.

[303] See Meron, The Humanization of Humanitarian Law, supra note 189, at 272, citing Eur. Ct. H.R., Ergi v. Turkey, 28 July 1998, Reports of Judgments and Decisions 1998-IV Nº 81, paras. 79, 81, 86, Eur. Ct. H.R. , McCann v. United Kingdom, 27 September 1995, Ser. A. 324, paras. 194, 200, 213 (1995); Hildegard María Feldman Case, supra note 140; Neira Alegría Case, supra note 6, paras. 74-76.

[304] See supra Part I(A), para. 92.

[305] Additional Protocol I, supra note 68, Article 51(5)(b).

[306] US Air Force Pamphlet Nº 110-31, International Law – The Conduct of Armed Conflict and Air Operations 1-6, para. 1-3(a)(2) (1976).

[307] See supra, Part II(C), para. 65.

[308] Nevertheless, it should be recalled that, in accordance with the principles of humanity and necessity, the means and methods of war employed during attacks on combatants may not cause unnecessary suffering, see supra para. 65 and para. 100.

[309] See supra, Part II(C), para. 66.

[310] See supra, Part III(A), para. 87.

[311] See supra, Part II(C), para. 66.

[312] See supra, Part III(A), para. 90.

[313] IACHR Report on Colombia (1999), supra note 110, at 75, Ch. IV, para. 12.

[314] American Convention on Human Rights, supra note 64, Article 4 (3).

[315] American Convention on Human Rights, supra note 64, Article 4(2).

[316] See infra Part III(D).

[317] See Hilaire, Constantine and Benjamin et al. Case, supra note 272, paras. 85-118; Michael Edwards et al. Case, supra note 102, paras 124-154, 164-165 and 175. See also Desmond McKenzie Case, supra note 272, paras. 194-200.

[318] American Convention on Human Rights, supra note 64, Article 4(4).

[319] See, e.g., Inter-American Convention Against Terrorism, supra note 8, Article 11.

[320] See, e.g., American Convention on Human Rights, supra note 64, Article 4(5) (prohibiting the execution of pregnant women or persons who, at the time the crime was committed, were under 18 or over 70 years of age). See similarly Advisory Opinion OC-3/83, supra note 245, paras. 53 et seq. See also Fourth Geneva Convention, supra note 36, Article 68; Additional Protocol I, supra note 68, Articles 75, 77; Additional Protocol II, supra note 36,
Article 6.

[321] American Convention on Human Rights, supra note 64, Article 4 (6); IACHR Report on Chile (1985), supra note 114, at 50, para. 22. The procedures to make such applications must comply with the rule of procedural fairness; see Desmond McKenzie Case, supra note 272, paras 228-232. See also Fourth Geneva Convention, supra note 36, Article 75.

[322] See infra, Part III(D), paras. 247-248, 259.

[323] Concerning distinctions in the standards of impartiality and independence applicable to civilians and members of the military, see infra, Part III(D), para. 256.

[324] See supra, Part III(A), paras. 94 and following and paras. 104 and following.

[325] Universal Declaration of Human Rights, supra note 65, Article 9 (“No one shall be subjected to arbitrary arrest, detention or exile”).

[326] International Covenant on Civil and Political Rights, supra note 66, Article 9 (“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”).

[327] UN Convention on the Rights of the Child, supra note 122, Article 37 (“States Parties shall ensure that: […] (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action”).

[328] For a discussion of the requirements of trial within a reasonable time, see infra Part III(D), para. 234.

[329] See supra Part III(C).

[330] See, e.g., IACHR, Fifth Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.111 doc. 21 rev., 6 April 2001, Chapter VII, para. 37 [hereinafter IACHR Report on Guatemala (2001)], citing Case 11.245, Report Nº 12/96, Jorge Alberto Giménez (Argentina), Annual Report of the IACHR 1995; I/A Court H.R., Suárez Rosero Case, Judgment of November 12, 1997, Ser. C Nº 35, para. 43.

[331] The Inter-American Court has indicated, for example, that unless it is demonstrated that an individual was apprehended in flagrante delicto, his or her arrest must be shown to have been effected with a warrant issued by a competent judicial authority. Suárez Rosero Case, supra note 330, para. 44.

[332] Case 11.205, Report Nº 2/97, Jorge Luis Bronstein and others (Argentina), Annual Report of the IACHR 1997, para. 11. See similarly Case 12.069, Report Nº 50/01, Damion Thomas (Jamaica), Annual Report of the IACHR 2000, paras. 37, 38.

[333] IACHR Report on Guatemala (2001), supra note 330, Ch. VII, para. 37.

[334] See, e.g., Desmond McKenzie Case, supra note 272, paras. 248-251. See similarly Human Rights Committee, General Comment 8, Article 9 (Sixteenth session, 1982), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 at 8 (1994) [hereinafter UNHRC General Comment Nº 8], para. 2; Eur. Court H.R., Brogan and Other v. United Kingdom, Judgment of November 29, 1988, Ser. A Nº 145B,
p. 33, para. 62 [hereinafter Brogan Case].

[335] Ten Years of Activities, supra note 1, at 317. See similarly UN Standard Minimum Rules for the Treatment of Prisoners, August 30, 1955, First UN Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc. A/CONF/611, annex I, E.S.C. res. 663c, 24 UN ESCOR Supp. (Nº 1) at 11, UN Doc. E/3048 (1957), amended E.S.C. Res. 2076, 62 UN ESCOR Supp. (Nº 1) at 35, UN Doc E/5988 (1977), Rule 7 [hereinafter UN Standard Minimum Rules for the Treatment of Prisoners]; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN GAOR Res. 43/173, 43rd Session, 76th plenary meeting, 9 December 1988, 43 UN GAOR Supp. (Nº 49) at 298, UN Doc. A/43/49 (1988) [hereinafter UN Body of Principles on Detention or Imprisonment], Principle 12.

[336] Bronstein Case, supra note 332, paras. 26-37.

[337] Bronstein Case, supra note 332, paras. 11, 12, 24, 25.

[338] Ferrer-Mazorra et al. Case, supra note 114, para. 210, citing IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination System, OEA/Ser.L/V/II.106, Doc. 40 rev., February 28, 2000, paras. 134-142 [IACHR, Report on Canada (2000)]; Eur. Court H.R., Winterwerp Case, (1979) 2 E.H.R.R. 387. See also Eur. Court H.R., Amuur v. France (1996) E.H.R.R. 553, para. 53.

[339] Ferrer-Mazorra et al. Case, supra note 114, para. 212. See similarly UNHRC, A. v. Australia, Communication Nº 560/1993, CCPR/C/59/D/560/1993, 30 April 1997, para. 9.4.

[340] UN Convention on the Status of Refugees, supra note 120, Article 26 (“Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances”). See also Ferrer-Mazorra et al. Case, supra note 114, paras. 210-212.

[341] See, e.g., Ten Years of Activities, supra note 1, at 318 (urging all OAS member states to “limit detention carried out under the states of emergency to a brief period of time and always subject to judicial review). See similarly Brogan Case, supra note 334, paras. 61-62.

[342] Advisory Opinion OC-8/87, supra note 147, para. 35. See also I/A Court H.R., Advisory Opinion OC-9/87, Judicial Guarantees in States of Emergency (Articles 27(2), 25 and 8 of the American Convention on Human Rights), October 6, 1987, Ser. A Nº 9, para. 31.

[343] Advisory Opinion OC-8/87, supra note 147, para. 42; Advisory Opinion OC-9/87, supra note 342, para. 38. In the Court’s view, “in a system governed by the rule of law it is entirely in order for an autonomous and independent judicial order to exercise control over the lawfulness of such measures by verifying, for example, whether a detention based on the suspension of personal freedom complies with the legislation authorized by the state of emergency.” Advisory Opinion OC-8/87, supra note 147, para. 40. See similarly UNHRC General Comment Nº 29, supra note 141, paras. 14-16.

[344] Asencios Lindo et al. Case, supra note 6, para. 85.

[345] For a discussion of the conclusions of the Commission and other authorities on non-derogable protections relating to the right to personal liberty and security, see Ten Years of Activities, supra note 1, at 317-318, 342; Organization of American States, GA Res. 510, Nº 13, reproduced in Annual Report of the IACHR 1980-81, supra note 141; IACHR Report on Argentina (1980), supra note 27, at 24-27; IACHR Report on Colombia (1981), supra note 27, at 15-18. See similarly UNHRC General Comment Nº 29, supra note 141, para. 16; International Commission of Jurists, States of Emergency: Their Impact on Human Rights (Geneva, 1983), p. 461-463, Nos. 21, 22, 23, 24, 26, 29, 34, 36 [hereinafter International Commission of Jurists, States of Emergency]; International Law Association, Paris, Minimum Standards of Human Rights Norms in a State of Emergency, reproduced in R. Lillich, Current Developments: The Paris Minimum Standards of Human Rights in a State of Emergency, 79 Am. J. Int’l L. 651 (1985), p. 75 [hereinafter Paris Minimum Standards]; The Siracusa Principles on the Limitation and Derogation Provisions of the ICCPR, Hum. Rgts. Q., 7 (1985), pp. 3-130, Principles 70(e)–(g), Principle 70 [hereinafter Siracusa Principles]; Nicole Questiaux, Study of the implications for human rights of recent developments concerning situations known as states of siege or emergency, United Nations Commission on Human Rights, ECOSOC, Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/1982/15, 27 July 1982, p. 45 [hereinafter Questiaux Report].

[346] The Commission has, for example, determined to be contrary per se to Articles 7(5) and 8(2)(f) of the American Convention on Human Rights a law authorizing the extension of incommunicado preventative detention in certain cases for up to 15 days. Asencios Lindo et al. Case, supra note 6, para. 85. See similarly Eur. Court H.R., Case of Aksoy v. Turkey, Judgment of 18 December 1996, Report of Judgments and Decisions 1996-VI, Nº 26, para. 78.

[347] Vienna Convention on Consular Relations, supra note 124, Article 36.

[348] ICJ, LaGrand Case (Germany v. United States), June 27, 2001, ICJ General
List Nº 104, online at http://www.icj- cij.org/icjwww/idocket/igus/igusjudgment/ igus_ijudgment _20010625.htm , (visited 12 June 2002), para. 74.

[349] See Advisory Opinion OC-16/99, supra note 129, paras. 56, 57. Other international authorities have similarly recognized the importance of facilitating consular assistance for the protection of foreign nationals under any form of arrest, detention or imprisonment. See UN Body of Principles on Detention or Imprisonment, supra note 35, Principle 16(2) (providing that “[i]f a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization”); ICTY, Rules governing the detention of persons awaiting trial or appeal before the Tribunal or otherwise detained on the authority of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, 5 May 1994, as amended on 29 November 1999, IT/38/REV., Rule 65 [hereinafter ICTY Rules of Detention]; UN GA Res. A/RES/40/144, annex, 40 U.N. GAOR Supp. (Nº 53) at 252, UN Doc. A/40/53 “Declaration on the human rights of individuals who are not nationals of the country in which they live”, 13 December 1985 [hereinafter Declaration on the human rights of individuals who are not nationals of the country in which they live], Article 10 (“Any alien shall be free at any time to communicate with the consulate or diplomatic mission of the State of which he or she is a national or, in their absence, with the consulate or diplomatic mission of any other state entrusted with the protection of the interests of the State of which he or she is a national in the State where he or she resides”).

 



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