The aftermath of the September 11, 2001 terrorist attacks has
provoked a process of collective introspection during the year 2002
regarding the means employed to clarify and adjudicate responsibility
for the commission of these kinds of crimes and the intensity of the
strategies pursued in order to avert them.
The legitimacy of these adjudicative and preventive efforts is
related to the very purpose of democracy and therefore their
implementation must not disrespect the rule of law.
Notwithstanding the exceptional circumstance justifying their
adoption or their magnitude, anti-terrorist initiatives must be pursued
with full respect of international law and international law of human
rights. This is an area in
which OAS member states must carefully preserve the balance between
their duty to protect civilians and the institutions of democracy, and
their obligation to ensure the proper administration of justice pursuant
to due process guarantees.
In an effort to provide member states with guidance on these
matters, in December 2002 the Commission made public its “Report on
Terrorism and Human Rights” in which it presented a study on the
enforcement and respect of human rights vis-à-vis anti-terrorists
initiatives legitimately adopted by member States.
The Commission based the study on its four decades of relevant
experience as well as upon prevailing standards of international law.
Throughout its report, the Commission articulates several core
principles concerning the role of human rights in opposing terrorism.
The Commission indicates in no uncertain terms that governments of the
Americas are obliged to take the measures necessary to prevent terrorism
and other forms of violence and to guarantee the security of their
populations. At the same time, the Commission declares that states
remain bound by their international human rights obligations at all
times, subject only to suspensions or restrictions that are specifically
permitted under international law when the life of the nation is
threatened. The report also
acknowledges that terrorist violence may occur in times of peace, in
states of emergency, and in situations of war, and therefore considers
states’ obligations under both international human rights and the law
of armed conflict.
The report considers standards of protection under these regimes
of law in six main areas: 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, the rights to judicial
protection and non-discrimination, and the protection of migrants,
refugees, asylum seekers, and other non-nationals. The report emphasizes, for example, that detainees must never
be subjected to torture or other cruel, inhuman or degrading treatment
or punishment, through conditions of detention, methods of interrogation
or otherwise. Closely connected with this proscription is the
requirement that the treatment of detainees be subjected to appropriate
oversight mechanisms as prescribed under applicable regimes of
international law, in times of peace and in times of war.
The report stresses that persons charged with and tried for
terrorist-related offenses must, in all situations, be afforded
fundamental due process protections, including the right of a defendant
to prompt notification in detail of the charges against them, the right
to be assisted by counsel without delay, and the right to a public
trial. Moreover, the report urges member states to guarantee the right
to freedom of expression in all circumstances and subject only to
permissible restrictions and derogations, as an informed public can be
an effective tool in monitoring and preventing abuses by public
authorities during situations of terrorist threat. The situation of
migrants, refugees, asylum seekers and other non-nationals is afforded
specific attention by the Commission, as these persons are particularly
vulnerable to human rights violations in the development and execution
of counter-terrorist measures. Finally, the report emphasizes the need
for states to comply in all circumstances and situations with the
absolute prohibition of discrimination of any kind, including
discrimination based upon race, color, sex, language, religion,
political or other opinion, national or social origin, economic status,
birth or any other social condition. The report concludes with a series
of specific recommendations for OAS member states to give effect to the
In can also be observed in relation to the impact of terrorism in
our region that the anxiety generated by the threat of terrorist
violence and the expectations to counter such violence tends to divert
attention away from the endemic economic, social and cultural
shortcomings of our societies and their more vulnerable groups.
The persistence and intensification of these problems continue to
erode citizen participation in the democratic process and undercuts the
premises on which democracy itself rests, thereby weakening its efficacy
as a tool for representative governance and peaceful coexistence.
This perception of frustration on the part of the population to
feel effectively included in the democratic process appears to affect
all of the member States in various ways and with varying intensity.
In the more notorious cases, the degradation of democratic
participation and the resulting exclusion of vast numbers of citizens
aggravates the institutional precariousness affecting many States of the
Hemisphere and undermines the cohesion needed to advance democracy,
resulting in a loss of the stability necessary to achieve governability
and the enjoyment of fundamental rights.
The progressive deterioration of democratic institutions is a
matter of concern for the IACHR. Despite
the convocation of periodic elections throughout the Hemisphere, many of
the democracies of the region exhibit institutional weaknesses and have
even been the target of attempted coups and other irregular attempts to
alter the constitutional order. In
this respect, OAS member states have shown consistency in collectively
rejecting such attempts and invoking instruments such as Resolution 1080
and the Inter-American Democratic Charter.
Poverty, exclusion, and social, economic, ethnic and gender
inequalities contribute to the lack of legal certainly and corruption
and thereby result in instability.
The situation is aggravated by a lack of effective access to
justice, which not only perpetuates the kind of impunity and inefficacy
that poisons the judicial systems of the Hemisphere but also encourages
the exclusion of citizens from the administration of justice.
The failure of systems of justice to protect those who are most
vulnerable when they are the victims of discrimination
and to provide them with effective access to processes for the
determination of their rights fosters a mistrust in the institutions of
government, which in turn exacerbates the growing feeling of insecurity vis–a-vis growing violence and criminality.
As a consequence of these factors, there is a persistent call for
measures that tend to give priority to public order and security over
due process guarantees. This situation calls for urgent action to facilitate access
by vulnerable or excluded persons or group of persons to the
administration and protections of justice.
There is also a need to deepen respect for judicial guarantees
and modernize penalties with a view to reintegrating offenders into
society at large. All
of these legitimate concerns have generated serious debates in
legislative and other fora regarding efforts to toughen criminal legislation, broaden the
ambit of crimes, and impose mandatory sentences.
The spectrum of this situation reflects the constant challenges
faced by democracy as a tool to respond to the social, economic and
cultural needs of the population and the duty of the State to guarantee
the observance of fundamental human rights and progressive advancement
in a way that contributes to governability and fosters development.
This Hemispheric context, which reflects to a large extent the
situation at a global level, requires that the mechanisms for the
protection of human rights to continue to play a fundamental role.
The role of human rights defenders and officials involved in the
administration of justice in promotion, prevention, control,
denunciation and representation continues to be of vital importance to
the enforcement of human rights in our nations.
At present, the work of human rights defenders and the
organizations they represent provide access to information that is
necessary to understand the situation of vulnerable groups, groups of
persons or individuals affected by violence, poverty, exclusion and
discrimination, as well as those who are the victims of abuse during
states of emergency and respond to their complaints.
As a consequence of their work at the national, regional and
international level, these persons and organizations are in many cases
the targets of violence. Therefore
the member states, in the context of the political organs, as well as
the IACHR, have begun to explore their obligations to secure and promote
the work of human rights defenders.
During this year, the IACHR has continued to address these and
other Hemispheric challenges through the exercise of its mandate to
promote and protect human rights. The
Commission continued its activities relating to vulnerable groups
through its special rapporteurships on the rights of children, women,
indigenous peoples, and migrant workers whose work is reflected in
Chapter VI of this annual report. The
IACHR has also devoted its attention to the situation of afrodescendants
through its promotional activities, studies on the general situation of
human rights in member States, individual cases and precautionary
Rapporteurship on Freedom of Expression in the Americas has likewise
continued with its promotional and advisory work, as reflected in its
study for 2002.
In view of the challenges presented this year and the evaluation
of the situation of human rights in the Hemisphere contained in this
annual report, the Commission calls upon the member states to search for
solutions to ensure, collectively, the human rights of the inhabitants
of the Hemisphere through the mechanisms provided by the Inter-American
system, and to strengthen the principles that are the basis for peace,
security, prosperity, and the successful functioning of democracy as a
form of government
The Commission takes this opportunity to make the following
general recommendations to member states as a means of fulfilling the
objectives of the inter-American system for the protection of human
The Commission calls upon the member states to consider and
respect the standards established by international law in the
establishment of legislative and other responses to violence and the
threat of terrorism.
II. The Commission calls upon the
member states to adopt measures to ensure the observance of the social,
economic, and cultural rights of the inhabitants of the Hemisphere,
individually and collectively. In
addition, it urges those states that have yet not done so to ratify the
Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights, and thereby expand the
protection for those rights to the benefit of the inhabitants of the
The Commission reiterates its call upon the member states to derogate
those laws that permit discrimination within the meaning of the
applicable instruments and to decidedly combat these practices in light
of their international obligations.
IV. The Commission urges the member states
to fully and definitively meet the challenge to protect children and to
take positive actions to ensure their human development, security,
health, and education.
The Commission calls upon the member states to redouble their
efforts to ensure respect for the rights of women and girls to live free
of violence and gender discrimination.
In particular, the IACHR urges the five member states that have
still not done so to ratify the Inter-American Convention,
"Convention of Belém do Pará" on the Prevention, Punishment,
and Eradication of Violence Against Women.
It is imperative that member states adopt legislative or other
measures to ensure that the regional norms that guarantee equality and
nondiscrimination are reflected in their entirety in their domestic laws
and practices, including concrete measures to address the lack of
impartiality based on gender in the administration of justice.
VI. The Commission urges the member states
to recognize the rights and just aspirations of the indigenous peoples
of our Hemisphere by adopting the American Declaration on the Rights of
VII. The Commission urges the member states to
adopt the necessary measures to protect the rights of afrodescendants
without discrimination and to take into account their human and social
VIII. The Commission recommends to the member states that
they promote respect for and ensure in their domestic legislation the
fundamental rights of migrant workers and their families, in keeping
with international standards on the subject.
IX. The Commission urges the member states
to adopt the measures necessary to protect the life, personal integrity,
and freedom of expression of human rights defenders.
The Commission urges the member states to ensure that the legal
framework under which freedom of expression is exercised in their
territory is in line with the standards of the Declaration of Principles
on Freedom of Expression and the American Convention, to eliminate
indirect restraints including in particular the harassment of
journalists and other persons who exercise their right to express
themselves freely, and to ensure the protection of justice for the
dissemination of information and effectively investigate and prosecute
crimes against professionals in the area of information.
XI. The Commission urges the member states
to adopt effective measures to protect the right to life, physical
integrity, and liberty of their populations and to ensure that
violations are duly investigated and remedied.
XII. Member states must continue with efforts to
consolidate the Rule of Law in light of the standards of the regional
system and thereby avoid setbacks that can affect the legitimacy and
legality of institutions.
XIII. The Commission urges the member states to adopt the
measures necessary to ensure the independence and impartiality of
judges, to administer justice in accordance with the standards of due
process, and to strengthen their judicial systems so as to ensure the
protection of justice for all persons under their jurisdiction.
The Commission calls upon the member states to adopt the measures
necessary to improve the situation of persons deprived of liberty in
light of the minimal standards established in international human rights
law, including those under the American Convention and the American
The Commission calls upon the member States that have not yet
done so to ratify the Statute of the International Criminal Court as
approved by the Diplomatic Conference of Rome on July 17, 1998 and adopt
legislative and other measures necessary to invoke and enforce universal
jurisdiction regarding individual responsibility in the commission of
crimes against humanity and war crimes.
The integrity and effectiveness of the protection afforded by the
Inter-American human rights system to the inhabitants of the Hemisphere
depends first and foremost on the efforts of the member states to
achieve the universality of the system by ratifying the American
Convention and the other instruments and accepting the jurisdiction of
the Court. Member states must also implement the obligation to bring
their domestic legislation into line with the rights enshrined in the
instruments adopted within the framework of the system as interpreted
and applied by their organs, in particular by the courts, and must
comply with their international commitments and the decisions and orders
of the Commission and the Court.
More than a decade ago, with the return of freely elected
governments in the vast majority of the States in the Hemisphere, the
IACHR forecasted a promising phase for the rebuilding of democracy in a
manner that would contribute to the enjoyment of human rights.
Sadly, an assessment of the present state of affairs indicates
that a situation of uncertainty has afflicted our societies.
As proclaimed in the Inter-American Democratic Charter, the
effective exercise of representative democracy is the basis for the rule
of law and of the constitutional regimes of the member states of the
Organization of American States. Representative democracy is
strengthened and deepened through permanent, ethical, and responsible
participation by the citizenry, and member states must ensure that this
participation is accompanied by transparency in government activities,
probity, and respect for social rights and fundamental human rights, in
order to contribute to the consolidation and stability of democratic