This blog is in two parts. In the first part of this analysis, I examined the Inter-American framework for the protection of persons deprived of liberty, including the guarantees applicable to detained persons and the non-derogable rights during states of emergency. This second part explores how the Inter-American Human Rights System addresses the relationship between international humanitarian law (IHL) and international human rights law (IHRL) and analyzes the specific synergies between both legal frameworks in detention matters.

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.