What does the Inter-American Human Rights System say about the relationship between IHL and IHRL?

The institutional approach of the IACtHR and the IACHR towards IHL has contributed to the complementarity between IHRL and IHL, recognizing that both branches of law are applicable in contexts of armed conflict. Both regional bodies have used IHL to interpret provisions of the American Convention on several occasions, based on Article 29 of the American Convention on Human Rights and Article 31 of the 1969 Vienna Convention on the Law of Treaties (see, e.g., Case of Cruz Sánchez et al v. Peru).

This complementary approach has been incorporated in cases regarding people deprived of liberty in the context of armed conflicts. For example, in the Case of Vásquez Durand et al. vs. Ecuador, the IACtHR analyzed the detention and subsequent disappearance of a Peruvian merchant by the armed forces of Ecuador during the international armed conflict (IAC) between Peru and Ecuador. In its judgement, the IACtHR stressed that customary IHL, the Geneva Conventions of 1949 and it’s Additional Protocol I, were appropriate complementary tools to interpret the obligations under the American Convention. By contrast, in the Case of Yarce et al. vs. Colombia regarding the non-international armed conflict (NIAC) in Colombia, the IACtHR considered that the provisions of the American Convention contained guarantees that are more specific and protective of the right to personal liberty than those of the applicable IHL rules.

The IACHR has also referred to the interplay between IHL and IHRL regarding persons deprived of liberty. In its Report about Guantanamo, the Inter-American Commission affirmed the convergence between IHL and IHRL guarantees and recognized that “reasons of public security may justify restrictions on liberty or the extension of normal periods of preventive or administrative detention.”

Finding synergies: What does IHL say about detention and internment? What are the similarities with IHRL?

In an IAC, the IV Geneva Convention establishes that a person can be interned or placed in an assigned residence only if security reasons make it necessary (Article 42). The 1958 Commentary to the IV Geneva Convention affirms that no definition of the term “security of the State” was included; however, some conduct that would fall in this category is: subversive activity, direct assistance to the enemy, and actions of sabotage or espionage. Also, the mere fact that a person is a subject of the enemy State does not justify such measures.

Concerning occupied territories, the IV Geneva Convention requires “imperative reasons of security” for the Occupying Power to subject a person to internment or assigned residence (Article 78). The collective and stresses that internment is considered an even more exceptional measure in occupied territories; therefore, this measure must be based on imperative reasons of security, the measure cannot be collective, and must be applied on a case-by-case basis. The latter standard is consistent with the case law of the IACtHR about collective deprivations of liberty, discussed in Part I.

It should be noted that customary IHL prohibits arbitrary deprivation of liberty in both IAC and NIAC. To guarantee this, the party ordering the internment must verify that there is a legitimate security reason, that the restriction is necessary, and that no other measure could be applied. This is consistent with the standard of the IACtHR of legitimate purpose, appropriateness, necessity, and proportionality.

Two additional guarantees against arbitrary deprivation of liberty are the right to have the internment reconsidered as soon as possible by an appropriate court or administrative board and the right to a periodical review of the internment by a court or administrative board (IV Geneva Convention, Article 43). The 1958 Commentary points out that the initial review is not conducted automatically; it has to be requested. This contrasts with the right of detained persons to be promptly brought before a court or authorized officer under the American Convention, which operates automatically and thus establishes a more protective standard. The 1958 Commentary also states that the review body must be objective and impartial. This is also contained in the right to a fair trial in the American Convention, which is considered a non-derogable right in the Inter-American System.

Finally, the right to receive information about the reasons for internment is another point of convergence between IHL and IHRL. This right is included among the fundamental guarantees of Article 75 of Additional Protocol I, although not in the IV Geneva Convention. The Inter-American Human Rights System has important case-law on the content of this right that complements IHL provisions.

Concluding remarks

The Inter-American Human Rights System has reaffirmed the complementary application of IHL and IHRL in armed conflicts. This approach allows States to both interpret the provisions of the American Convention and the American Declaration, resorting to IHL rules, as well as to provide guidelines for increasing the protection set out in IHL using human rights standards.

In particular, the decisions and reports of the IACtHR and the IACHR provide important criteria to examine the arbitrariness of a detention or internment in armed conflict and to guarantee the rights of persons deprived of liberty to be informed of the reasons for their detention and to access judicial review.

The IHL framework for civilian detention: Scope and limitations

While IHL allows States to restrict a civilian’s liberty or to put them under internment, provided that specific grounds and procedures are verified, the scope and detail of these provisions vary depending on the type of conflict. In general, internment is considered a form of non-criminal deprivation of liberty based on security reasons.

IHL contains several provisions regulating the internment of civilians in international armed conflicts (IAC) under the IV Geneva Convention and Additional Protocol I. Non-international armed conflicts (NIAC) have fewer provisions, as seen in Common Article 3 and Additional Protocol II. This has prompted discussions about applying IHRL to complement the protection of persons deprived of liberty in NIAC (see, e.g., the Commentaries to Common Article 3).

The right to personal liberty and the notion of “deprivation of liberty” under the Inter-American Human Rights System

Article 7 of the American Convention on Human Rights enshrines the right to personal liberty and prohibits arbitrary arrests or imprisonment.  The American Declaration of the Rights and Duties of Man contains the right to liberty in Article I and protection from arbitrary arrest in Article XXV.  The Inter-American Commission on Human Rights (IACHR) has adopted the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, a soft law document that expands on the rights of persons deprived of liberty and the duties of States towards them. Deprivation of liberty is defined to include “any form of detention, imprisonment, institutionalization, or custody of a person in a public or private institution which that person is not permitted to leave at will, by order of or under de facto control of a judicial, administrative or any other authority, for reasons of humanitarian assistance, treatment, guardianship, protection, or because of crimes or legal offense”.  This broad definition means provisions regarding persons deprived of liberty can be applied to people detained or interned during an armed conflict.

The Inter-American Court of Human Rights (IACtHR) has established criteria to determine whether deprivation of liberty is arbitrary. In the Case of Yvon Neptune vs. Haiti, the IACtHR stated that such restrictions must follow four requirements: (i) a legitimate purpose, (ii) appropriateness to achieve the objective, (iii) necessity, and (iv) proportionality. The American Convention does not contain a list of legitimate motives to deprive a person of their liberty (Case of Vélez Loor vs. Panama); therefore, it is key to address the question of arbitrariness through an analysis of the aforementioned requirements. In the Case of Pacheco Teruel et al. vs. Honduras, the IACtHR remarked that the State must prove, on a case-by-case basis, that sufficient motives exist, and that mere suspicion is not sufficient. To guarantee that detention is not arbitrary, the Inter-American System establishes two obligations: informing detention reasons, and promptly bringing detainees before a judge or authorized officer (Case of Gómez-Paquiyauri Brothers vs. Peru)

Both the American Convention and the American Declaration establish rights and guarantees for detained persons. Regarding the right to be informed about the reasons for the detention, the IACtHR has specified two guarantees: (i) information about factual and legal grounds when detention takes place, using simple language; and (ii) written notification of criminal charges (Case of J vs. Peru). With respect to the right to be brought promptly before a judge or authorized officer, the IACtHR has affirmed that the detained person shall attend in person and the judge must personally listen to them (Case of Espinoza Gonzáles vs. Peru).

Regarding collective detention, the IACtHR has stated that a collective arrest is allowed only when the causes of arrest are individualized for each person (Case of Servellón-García et al. vs. Honduras)

Situations of emergency, suspension of rights, and non-derogable rights

Article 27 of the American Convention allows States to suspend their obligations “in time of war, public danger, or other emergency that threatens the independence or security of a State Party”; however, suspension must be temporary, proportional, non-discriminatory, and consistent with international law.

Additionally, the American Convention establishes rights that cannot be suspended or derogated. Although personal liberty is not listed, it refers to essential judicial guarantees, which are key when addressing the rights of people deprived of liberty.

The IACtHR in its Advisory Opinion on Judicial Guarantees in States of Emergency identified that the rights established in Article 7.6 (personal liberty), Article 8 (fair trial), and Article 25.1 (judicial protection) as non-derogable. States must guarantee access to competent courts for detention review; competent, independent, and impartial tribunals; presumption of innocence; charge notification; defense rights; and effective recourse, among others. Habeas corpus is essential for the protection of persons deprived of liberty (Advisory Opinion on Habeas Corpus in Emergency Situations). The IACtHR has affirmed that the prohibition of arbitrary deprivation of liberty cannot be suspended (Case of Rodríguez Vera et al. vs. Colombia) and has reiterated that no absolute suspension of the right to a judicial review is allowed (Case of J vs. Peru; Case of Espinoza Gonzáles vs. Peru).

The IACHR has expanded on personal liberty and non-derogable guarantees in its thematic reports. In the “Report on Terrorism and Human Rights” and “Towards the closure of Guantanamo”, the IACHR stated that, in a situation of emergency, a pretrial or administrative detention can be prolonged only for a strictly necessary period and must comply with essential guarantees, including legal grounds, information, legal counsel, and judicial review.

Having established this framework, the second part will examine how the Inter-American Human Rights System addresses both IHL and IHRL and explore the specific synergies between these frameworks regarding detention.