II. LEGAL FRAMEWORK FOR THE COMMISSION’S ANALYSIS

31. A complete and accurate analysis of the international human rights commitments of states in the context of terrorist violence requires consideration of conventional and customary rules and principles of both international human rights law and international humanitarian law as well as the framework of international instruments developed specifically for the purpose of preventing, suppressing and eradicating terrorism. This section of the report provides a general overview of each of these regimes of international law, which will in turn provide a basis for the examination of specific rights in the context of terrorism in Part III.

A. The International Law Against Terrorism

32. As suggested in Part I, the longstanding campaign by states against terrorism has given rise to a body of international law specifically intended to prevent, suppress and eradicate forms of terrorist violence. This area of international regulation is significant for several reasons. It provides examples of efforts by states to protect their populations from the dangers of terrorism. As the Commission has previously emphasized, OAS member states are obliged to guarantee the safety of their populations,[74] which includes taking the measures necessary to investigate, prosecute and punish acts of terrorism.[75] These prescriptions also form part of the international framework within which member states’ human rights obligations must be interpreted and applied.

33. Much of the international law of terrorism has taken the form of multilateral treaties. Major anti-terrorism instruments include the International Convention Against the Taking of Hostages,[76] the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,[77] and the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents.[78] These and other treaties on terrorism have developed to contain several provisions that are considered particularly pertinent in combating this form of violence. These provisions include articles that define particular acts of terrorism as criminal offenses for the purposes of the treaties,[79] oblige states parties to make the offenses punishable by appropriate penalties under their domestic law, [80] and require states parties to establish their jurisdiction over offenses and suspected offenders in particular cases and to prosecute or extradite alleged offenders.[81] Also included in anti-terrorism instruments are provisions that require states parties to cooperate in preventing terrorist offenses and to provide mutual legal assistance in criminal proceedings relating to crimes of terrorism,[82] that require terrorist offenses to be included as extraditable offenses in any extradition treaties between states parties,[83] and that oblige states parties not to regard certain terrorist offenses as political offenses, as offenses connected with a political offense or as offenses inspired by political motives for the purposes of extradition.[84] It is notable in this respect that the provisions of this body of law that require states parties to investigate, prosecute and punish terrorist crimes coincide with the doctrine under international human rights law according to which states are obliged to investigate the acts and punish those responsible whenever there has been a violation of human rights.[85]

34. In addition to treaties that address particular manifestations of terrorism, the international community has endeavored to develop treaties that address terrorism on a more inclusive basis. These efforts have included negotiations at the United Nations for a comprehensive convention on international terrorism. Responsibility for elaborating this convention has been assigned to the UN General Assembly’s Ad Hoc Committee on Terrorism[86] as well as a Working Group of the General Assembly’s Sixth Committee.[87] According to the most recent draft treaty available,[88] the Convention includes articles similar to those found in the more specific treaties discussed above addressing, for example, the investigation and prosecution or extradition of alleged offenders and mutual legal assistance between states in criminal proceedings involving terrorist crimes. More controversially, the draft convention endeavors to provide a comprehensive definition of terrorism, which has not yet reached agreement among states.[89] The relationship between the comprehensive convention and more specific treaties on terrorism has also been the subject of continuing debate, with some states contending that the treaty should add to the existing conventions while others have asserted that it should be more of an umbrella convention.[90] As of this writing, the draft convention has remained under consideration by the General Assembly’s Ad Hoc Committee and by the Working Group of the Sixth Committee.[91]

35. Similar initiatives to develop comprehensive terrorism conventions have been pursued at the regional level.[92] As emphasized by member states in their responses to the Commission’s invitation to submit information on the present study, these efforts have included the Inter-American Convention Against Terrorism, which was approved and opened for signature by the OAS General Assembly on June 3, 2002 with the stated object and purpose of preventing, punishing and eliminating terrorism.[93] As of this writing, the Convention has been signed by 32 member states but has yet to be ratified by any governments.[94] Many of the provisions of the Inter-American Convention against Terrorism are similar to those under other anti-terrorism treaties. These include, for example, articles that oblige states parties to afford one another mutual legal assistance, including cooperation among law enforcement authorities, with respect to the prevention, investigation and prosecution of the offenses addressed by the treaty.[95] It also renders the political offense exception inapplicable to crimes under the treaty and requires member states to ensure that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed such a crime.[96] Unlike the UN terrorism convention, however, the OAS treaty refrains from providing a comprehensive definition of terrorism, but rather incorporates the crimes prescribed by ten existing international treaties on terrorism.[97] The Convention also contains extensive provisions addressing the prevention, combating and eradication of the financing of terrorism by, for example, requiring states parties to “institute a comprehensive regulatory and supervisory regime for banks, other financial institutions, and other entities deemed particularly susceptible to being used for the financing of terrorist activities.�?[98] It similarly addresses the seizure and confiscation of funds or other assets constituting the proceeds of, used to facilitate, or used or intended to finance, the commission of any of the offenses under the Convention.[99] And as noted previously, pursuant to Article 15 all of the measures under the treaty are subject to the requirement of respect for the rule of law, human rights and fundamental freedoms.[100]

36. Elements of the international law of terrorism described above are discussed in greater detail in the substantive analysis of rights and freedoms contained in this report. It may be noted at this stage, however, that particular regard must be paid to fundamental human rights in the interpretation and application of certain treaty provisions. This includes, for example, implications of the right to personal liberty and security, the right to due process, and the non-refoulement principle for the apprehension, detention and prosecution or extradition of suspected terrorists, as well as the impact of the rights to property and privacy upon the investigation, seizure and confiscation of property allegedly used for terrorist purposes.

B. International Human Rights Law

37. Within the inter-American system, the human rights obligations of member states of the Organization of American States flow from several sources.

38. By virtue of their ratification of the OAS Charter, all member states are bound by the human rights obligations incorporated in that instrument, which the political[101] and human rights[102] organs of the Organization have recognized are contained in and defined by the American Declaration of the Rights and Duties of Man. Significant aspects of the American Declaration may also be considered to reflect norms of customary international law.[103] On the basis of treaty and custom, therefore, the American Declaration constitutes a source of legal obligation for all OAS member states, including in particular those states that have not ratified the American Convention on Human Rights.[104]

39. Member states that have ratified the American Convention on Human Rights explicitly undertake pursuant to Articles 1(1) and 2 of that instrument to respect the rights and freedoms recognized in the Convention, and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms without discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. They also agree to adopt, in accordance with their constitutional processes and the provisions of the Convention such legislative or other measures as may be necessary to give effect to the rights or freedoms where the exercise of those rights or freedoms is not already ensured by legislative or other provisions.

40. Numerous additional treaties have supplemented and expanded upon the rights contained in these two principal instruments and constitute additional international obligations for member states that have ratified or acceded to their terms. These agreements include the Inter-American Convention to Prevent and Punish Torture,[105] the Inter-American Convention on Forced Disappearance of Persons,[106] the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (“Convention of Belém do Pará�?),[107] and the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (“Protocol of San Salvador�?).[108]

41. The Commission also observes that these instruments must be interpreted and applied in light of several well-established rules and principles governing international legal obligations generally, and human rights obligations in particular, as outlined below.

42. As with all international obligations, a state’s human rights obligations are superior to the requirements of its domestic law and must be performed in good faith. Accordingly, states cannot invoke their contrary domestic law as an excuse for non-compliance with international law.[109] It is also well recognized that the international human rights commitments of states apply at all times, whether in situations of peace or situations of war. This precept flows from the jurisprudence of this Commission[110] and other pertinent international authorities[111] as well as the terms of human rights instruments themselves.[112]

43. A state’s human rights obligations have also been recognized as distinct from its other international commitments, because states are, through their international human rights commitments, deemed to submit themselves to a legal order within which they assume various obligations, not in relation to other states parties, but toward all individuals within their jurisdiction. Accordingly, human rights instruments are to be interpreted in light of an object and purpose consistent with their fundamental nature, namely the protection of the basic rights of individual human beings irrespective of their nationality, both against the state of their nationality and against all other contracting states.[113]

44. Consistent with this approach, a state’s human rights obligations are not dependent upon a person’s nationality or presence within a particular geographic area, but rather extend to all persons subject to that state’s authority and control.[114] This basic precept in turn is based upon the fundamental premise that human rights protections are derived from the attributes of an individual’s personality and by virtue of the fact that he or she is a human being, and not because he or she is the citizen of a particular state. This principle is explicitly recognized in the preambles to both the American Declaration and the American Convention[115] and is also recognized in other provisions of these instruments, including those which guarantee all persons the rights under those instruments without any discrimination for reasons of sex, language, creed or any other factor, including national or social origin,[116] and the right to recognition as a person before the law.[117]

45. When interpreting and applying the provisions of inter-American human rights instruments, it is both appropriate and necessary to take into account member states’ obligations under other human rights and humanitarian law treaties, which together create an interrelated and mutually reinforcing regime of human rights protections. These treaties include, but are not limited to, the Universal Declaration of Human Rights,[118] the International Covenant on Civil and Political Rights,[119] the UN Convention relating to the Status of Refugees[120] and its 1967 Additional Protocol,[121] the UN Convention on the Rights of the Child,[122] the International Convention on the Elimination of all Forms of Racial Discrimination,[123] the Vienna Convention on Consular Relations,[124] the 1949 Geneva Conventions,[125] and the 1977 Additional Protocols thereto.[126] Under this interconnected regime of treaty obligations, one instrument may not be used as a basis for denying or limiting other favorable or more extensive human rights that individuals might otherwise be entitled to under international or domestic law or practice.[127] A chart stipulating OAS member states that have at present signed,[128] ratified or acceded to each of the foregoing instruments has been included as Annex “II�? to this report.

46. Moreover, these treaties, together with the instruments and jurisprudence of other international human rights systems, reflect and form part of developments in the corpus of international human rights law more broadly that are properly taken into account in evaluating states’ human rights obligations in the inter-American system. As the Inter-American Court has proclaimed, the provisions of the inter-American instruments must be interpreted in the context of developments in the field of international human rights law since those instruments were first composed and with due regard to other relevant rules of international law applicable to member states.[129] These developments may in turn be drawn from the provisions of other prevailing international and regional human rights instruments as informed by relevant principles and customary rules of international law.[130]

47. It is also pertinent to observe that the human rights framework established by member states of the OAS is one that speaks generally to the obligations and responsibilities of states,[131] which are obliged to refrain from supporting, tolerating or otherwise acquiescing in acts or omissions that fail to conform with their international human rights commitments.[132] Consistent with this premise, the Commission's mandate is to promote the observance and protection of human rights by states and their agents rather than non-state actors.[133]

48. This does not mean, however, that the conduct of non-state actors, including terrorists and terrorist groups, bears no relevance to the evaluation of states’ obligations concerning human rights protections in the Hemisphere. Throughout its history, the Commission has, for example, referenced the atrocities committed by armed dissident groups in its press releases, in communications with governments, and in its reports on the situation of human rights in the various member states of the OAS.[134] The Commission has considered violence of this nature to constitute a relevant component of the environment in which states’ general compliance with human rights standards must be evaluated, and as a justification that may potentially be invoked by states as grounds for temporarily suspending the exercise of certain rights.[135]

49. This in turn raises the issue of derogation from rights protected under the inter-American human rights instruments. As noted above, the fundamental human rights protection of persons apply at all times, in peace, during emergency situations, and in war.[136] Nevertheless, the American Convention, like other international human rights instruments,[137] permits states to take measures derogating from certain treaty protections under narrowly-prescribed situations of emergency. Article 27 of the Convention provides in this regard as follows:

Article 27

1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin. 2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights. 3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.[138]

50. While the American Declaration does not explicitly contemplate the possibility of restricting or suspending the rights prescribed thereunder, the Commission has considered that the derogation criteria derived from the American Convention on Human Rights embody the Hemisphere’s deliberations on the issue and are properly considered and applied in the context of the Declaration.[139]

51. According to the doctrine of the inter-American human rights system, the ability of states to take measures derogating from protections under the human rights instruments to which they are bound is strictly governed by several conditions, which are in turn broadly regulated by the generally recognized principles of proportionality, necessity and nondiscrimination:[140]

• In order to consider that there is an emergency justifying suspension of rights, there must be an extremely grave situation of such a nature that there is a real threat to law and order or the security of the state, including an armed conflict, public danger, or other emergency that imperils the public order or security of a member state;[141]

• Any suspension may only be for such time as is strictly required by the exigencies of the situation and may not be proclaimed for indefinite or prolonged periods;[142]

• Any suspension may only be effectuated to the extent strictly required by the exigencies of the situation, and thereby precludes the unnecessary suspension of rights, the imposition of restrictions more severe than necessary, or the unnecessary extension of suspension to regions or areas not affected by the emergency;[143]

• Any suspension of rights cannot entail discrimination of any kind on such grounds as race, color, sex, language, religion or social origin;[144]

• Any suspension must be compatible with all of a member state’s other obligations under international law;[145]

• The declaration of a state of a state of emergency must be notified to the members states of the OAS with sufficient information that others may determine the nature of the emergency, whether the measures are strictly required by the exigencies of the situation, and whether they might be discriminatory or inconsistent with the state’s other obligations under international law.[146]

52. It must also be considered, however, that certain rights can never be the subject of derogation. The implications of this restriction in the context of particular rights will be explored in further detail in Part III of this Report. It may be observed at this stage, however, that Article 27(2) of the American Convention enumerates all of the rights that may not be the subject of derogation, namely the right to juridical personality, the right to life, the right to humane treatment, the prohibition of slavery and servitude, the principle of non-retroactivity of laws, freedom of conscience and religion, protection of the family, right to a name, rights of the child, right to nationality, and the right to participate in government, as well as the “judicial guarantees essential for the protection of such rights.�? In accordance with the latter qualification and the jurisprudence of the Inter-American Court of Human Rights, non-derogable rights within the inter-American system also include the rule of law, the principle of legality, and habeas corpus and amparo remedies, which have been held to constitute judicial guarantees essential for the protection of rights that are non-derogable.[147] Derogable rights, in the other hand, include the right to privacy, the right to freedom of expression, the right of assembly, the right to freedom of association, the right to property, and the right to freedom of movement and residence. They also include derogable aspects of the right to personal liberty and the right to a fair trial, as discussed in further detail below.

53. In addition to the rules governing derogation from rights, it is apparent that certain rights protected under the inter-American human rights instruments may properly be the subject of certain restrictions that are specifically provided for in the provisions protecting these rights. These restrictions, described generally as those “prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others,�? are found in the provisions of the American Convention governing the right to freedom of conscience and religion,[148] the right to freedom of thought and expression,[149] and the right freedom of association.[150] While these restriction provisions are distinct in several fundamental respects from derogation clauses,[151] they are, like derogation provisions, governed by specific requirements that are the subject of strict and rigorous review by the supervisory bodies of the inter-American system.[152] They must also be interpreted in light of the general terms of Article 30 of the American Convention, and the corresponding stipulations under Article XXVIII of the American Declaration,[153] according to which the “restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purposes for which such restrictions have been established.�?

54. According to inter-American jurisprudence, in determining the legitimacy of restrictions of this nature and, hence, in judging whether such provisions have been violated, it is necessary to decide on a case by case basis whether the specific terms of restrictions or limitations have been respected.[154] These terms provide both procedural and substantive requirements for the proper imposition of restrictions or limitations on particular human rights.[155] The procedural requirements mandate that any action that affects rights must be prescribed by law passed by the legislature and in compliance with the internal legal order and cannot be subject to the discretion of a government or its officials.[156]

55. The substantive requirements provide that any restrictions must be necessary for the security of all and in accordance with the just demands of a democratic society, and that their application be proportionate and closely tailored to the legitimate objective necessitating them.[157] The Inter-American Court has suggested in this respect that both public order and general welfare may properly be considered in evaluating limitations upon rights of the above nature. Public order[158] in turn refers to the conditions that assure the normal and harmonious functioning of institutions based on a coherent system of values and principles, while the concept of general welfare within the framework of the American Convention refers to the conditions of social life that allow members of society to reach the highest level of personal development and the optimum achievement of democratic values.[159] When these concepts are invoked as grounds for limiting human rights, however, they must be subjected to an interpretation that is strictly limited to the just demands of a democratic society, which takes account of the need to balance the competing interests involved and the need to preserve the object and purpose of the Convention.[160]

56. As will be expanded upon in the remainder of this report, it is clear that the human rights protections of the inter-American system are pertinent to member states’ initiatives to respond to terrorism in several respects: they constitute international legal obligations that are binding on member states at all times, whether in times or war or other emergency or in times of peace; certain situations of terrorism might conceivably provide conditions under which member states may properly restrict or derogate from certain rights; and certain rights, including the right to life, the right to humane treatment and the fundamental components of the right to due process and a fair trial, may never properly be the subject of restriction or derogation under any circumstances. As specified previously, this latter restriction arises from the explicit terms of the applicable human rights instruments, as well as the mutually reinforcing interrelationship between states’ various domestic and international human rights obligations, according to which restrictions and derogations authorized under one instrument or law cannot be used to legalize or justify otherwise impermissible restrictions on or derogations from human rights under another instrument or law.[161]

C. International Humanitarian Law

57. To the extent that terrorist or counter-terrorist actions may give rise to or occur in the context of the use of armed force between states or armed violence between governmental authorities and organized armed groups or between such groups within a state, as described in further detail below, they may implicate the possible application of rules of international humanitarian law in evaluating states’ human rights obligations. This section provides for an introduction to humanitarian law, its scope of application and its basic rules as they presently exist. As observed in the introduction to this report, however, it cannot be ruled out that new manifestations of terrorist violence such as those perpetrated in the United States on September 11, 2001 may lead to future developments in international humanitarian law.

58. International humanitarian law is a branch of international law that applies in situations of armed conflict and which principally regulates and restrains the conduct of warfare or the use of violence so as to diminish its effects on the victims of the hostilities. The victims of armed conflict who are afforded this protection include civilians, prisoners of war, and any other members of armed forces placed hors de combat by sickness, wounds, detention or any other cause and who have fallen into the hands of an adverse party.[162]

59. International humanitarian law is applicable during armed conflicts, that is to say whenever there is a resort to armed force between states or low intensity and armed confrontations between State authorities and organized armed groups or between such groups within a State.[163] In this respect, armed conflicts may be of an international or non-international nature, which in turn affects the specific international rules that apply to a conflict. In particular, as will be discussed throughout this report, situations of international armed conflict trigger an extensive and specialized regime of rules and regulations under the 1949 Geneva Conventions and related instruments that impact upon the manner in which international human rights law may be considered to apply to the victims of such conflicts, including prisoners of war, unprivileged combatants and civilians. For their part, internal armed conflicts must also be distinguished from situations of internal tensions and disturbances, such as demonstrations without a concerted plan from the outset or isolated sporadic acts of violence,[164] which are not presently governed by international humanitarian law but rather are covered by universal and regional human rights instruments.[165] In all cases, the determination as to the existence and nature of an armed conflict is an objective one, based upon the nature and degree of hostilities, irrespective of the purpose or motivation underlying the conflict[166] or the qualification by Parties to the conflict.[167]

60. Temporally and geographically, international humanitarian law applies “from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.�?[168]

61. In situations of armed conflict, both international human rights law and international humanitarian law apply.[169] Nevertheless, the American Convention and other universal and regional human rights instruments were not designed specifically to regulate armed conflict situations and do not contain specific rules governing the use of force and the means and methods of warfare in that context. Accordingly, in situations of armed conflict, international humanitarian law may serve as lex specialis in interpreting and applying international human rights instruments.[170] For example, both Article 4 of the American Convention and humanitarian law applicable to armed conflicts protect the right to life and, thus, prohibit summary executions in all circumstances. However, reference to Article 4 of the Convention alone may be insufficient to assess whether, in situations of armed conflicts, the right to life has been infringed. This is in part because the Convention is devoid of rules that either define or distinguish civilians from combatants and other military targets. Nor does the Convention specify the circumstances under which it is not illegal, in the context of an armed conflict, to attack a combatant or civilian or when civilian casualties as a consequence of military operations do not imply a violation of international law. Consequently, in such circumstances, one must necessarily look to and apply definitional standards and relevant rules of international humanitarian law as sources of authoritative guidance in the assessment of the respect of the inter-American Instruments in combat situations.[171]

62. It is therefore appropriate, and indeed imperative, for the Commission to consider all relevant international norms, including those of international humanitarian law, while interpreting the international human rights law instruments for which it is responsible.[172] International humanitarian law is also pertinent to the Commission’s interpretation of and application of human rights protection to the extent that, as described previously, states’ treaty obligations in these regimes of international law prescribe interrelated and mutually reinforcing standards of protection.[173]

63. The principal sources of international humanitarian law are the four Geneva Conventions of 1949,[174] their Additional Protocols I[175] and II[176] of 1977, the Hague Conventions of 1899 and 1907 and associated regulations,[177] and the customary laws of war. Most of the provisions of the Hague Conventions,[178] the 1949 Geneva Conventions,[179] and Additional Protocol I,[180] are applicable in international armed conflicts or belligerent occupations, defined as cases of declared war or of any other armed conflict which may arise between two states, even if the state of war is not recognized by one of them, cases of partial or total occupation of the territory of a state by another, even if the said occupation meets with no armed resistance,[181] and, in the case of Additional Protocol I, armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.[182] Article 3 common to the Four Geneva Conventions, on the other hand, was developed to apply to armed conflicts which are not of an international character[183] and has subsequently been interpreted as constituting the minimum standards of international humanitarian law applicable in all armed conflicts.[184] Additional Protocol II,[185] which develops and supplements many of the protections contained in common Article 3, is specifically applicable in a more narrowly defined category of internal armed conflicts, namely those which take place in the territory of a state between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement international humanitarian law.[186] Notwithstanding the narrower application of Additional Protocol II, however, certain of its provisions, including the fundamental guarantees under Articles 4, 5 and 6, are considered to develop protections prescribed in common Article 3 and should therefore likewise be considered to apply in all non-international armed conflicts. Virtually every OAS member state has also ratified one or more of the 1949 Geneva Conventions and or other humanitarian law instruments.[187]

64. Much of the treaty law canvassed above is widely considered to constitute customary international law[188] binding on all states,[189] including in particular the 1907 Hague Convention and its annexed Regulations concerning the Laws and Customs of War on Land,[190] the Four Geneva Conventions of 1949[191] including their grave breach provisions[192] and common Article 3,[193] and the core of Additional Protocols I and II,[194] including Articles 51(1), 52(1) and 75 of Additional Protocol I[195] and Articles 4, 5, 6 and 13(2) of Additional Protocol II.[196]

65. In addition, notwithstanding the distinctive regimes of protection that apply to international and non-international armed conflicts, it has been widely recognized that certain norms apply in all armed conflicts regardless of their nature.[197] These include the protections under common Article 3 and their corresponding provisions under Additional Protocol II,[198] as well as:

• The principle of military necessity, which justifies those measures of military violence not forbidden by international law that are necessary and proportionate to securing the prompt submission of the enemy with the least possible expenditure of human and economic resources.[199]

• The principle of humanity,[200] which both complements and inherently limits the doctrine of military necessity. This principle prohibits the infliction of suffering, injury or destruction not actually necessary, i.e. proportionate, for the realization of lawful military purposes.[201] Moreover, the principle of humanity also confirms the basic immunity of civilians from being the object of attack in all armed conflicts. Accordingly, the conduct of hostilities by the parties to all armed conflicts must be carried out within the limits of the prohibitions of international law, including the restraints and protections inherent in the principles of military necessity and humanity.[202]

66. Inherent in the principles of military necessity and humanity are the principles of proportionality and distinction. The principle of proportionality prohibits an attack 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.[203] In a similar vein, the principle of distinction prohibits, inter alia, the launching of attacks against the civilian population or civilian objects and requires the parties to an armed conflict, at all times, to make a distinction between members of the civilian population and persons actively taking part in the hostilities or civilian objects and military objectives,[204] and to direct their attacks only against persons actively taking part in the hostilities and other legitimate military objectives.[205]

67. While certain norms are common to all armed conflicts regardless of their nature, others are limited to the realm of international armed conflicts as defined in the 1949 Geneva Conventions and Additional Protocol I. Among the most significant of these norms is the notion of the “combatant’s privilege�? and the related concept, discussed below, of “prisoner of war status.�? A “combatant�? is generally defined as a person who directly engages in hostilities by participating in an attack intended to cause physical harm to enemy personnel or objects. A “lawful�? or “privileged�? combatant is a person authorized by a party to an international armed conflict to engage in hostilities and, as such, is entitled to the protection encompassed in the “combatant’s privilege�? as well as the status and protections of a prisoner of war as provided for under the Third Geneva Convention when they have fallen into the power of the enemy.[206] Article 4A of the Third Geneva Convention, which reflects the requirements of the 1899 and 1907 Hague Conventions and is broadly considered to constitute customary international law, prescribes the categories of privileged combatants as encompassing the following:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.[207]

68. The combatant’s privilege in turn is in essence a license to kill or wound enemy combatants and destroy other enemy military objectives. A privileged combatant may also cause incidental civilian casualties. A lawful combatant possessing this privilege must be given prisoner of war status, as described below, upon capture and immunity from criminal prosecution under the domestic law of his captor for his hostile acts that do not violate the laws and customs of war. This immunity does not, however, extend to acts that transgress the rules of international law applicable in armed conflict.[208]

69. In converse to this is the status in international armed conflicts of the “unprivileged�? combatant, sometimes referred to as an “unlawful combatant�?, namely a person who does not have the combatant’s privilege but nevertheless directly participates in hostilities. Such unlawful belligerents include irregular or part-time combatants, such as guerrillas, partisans, and members of resistance movements, who either fail to distinguish themselves from the civilian population at all times while on active duty or otherwise do not fulfill the requirements for privileged combatant status, as well as those privileged combatants who violate the requirements regarding mode of dress, such as regular military personnel who are caught spying while out of uniform. Others falling within the category of unprivileged combatants are civilians, noncombatant personnel in the armed forces, as well as noncombatant members of the armed forces who, in violation of their protected status, actively engage in hostilities.[209] These persons temporarily forfeit their immunity from direct individualized attack during such time as they assume the role of a combatant.[210] It is possible in this connection, however, that once a person qualifies as a combatant, whether regular or irregular, privileged or unprivileged, he or she cannot on demand revert back to civilian status or otherwise alternate between combatant and civilian status.[211] Unlike privileged combatants, unlawful combatants upon capture can be tried and punished under municipal law for their unprivileged belligerency, even if their hostile acts complied with the laws of war. It should also be noted that the term “unlawful�? combatant is used only to denote the fact that the person lacks the combatant’s privilege and is not entitled to participate in hostilities. Mere combatancy by such persons is not tantamount to a violation of the laws and customs of war, although their specific hostile acts may qualify as such.

70. Since lawful combatant and prisoner of war status directly flow from the combatant’s privilege, recognition of this privilege is limited under customary and conventional international law to situations of international armed conflict as defined under the 1949 Geneva Conventions and Additional Protocol I. In contrast, a government engaged in a civil war or other kind of internal hostilities is not obliged to accord its armed opponents prisoner of war status since these dissidents do not have the combatant’s privilege. Such governments therefore are free to prosecute all captured dissidents for sedition and their other violent acts.[212] At the same time, there is no rule of international law that prohibits a government during international armed conflict from according members of dissident armed groups prisoner of war or equivalent status.

71. With regard to the issue of supervision of compliance with the law of armed conflict, international humanitarian law treaties are to a significant extent self-regulating, as states parties to the treaties undertake to respect and ensure respect for the terms of the agreements through such mechanisms as training, information dissemination, and prescription and enforcement of disciplinary and penal sanctions under domestic law.[213] The terms of the 1949 Geneva Conventions do, however, provide for two specific external supervisory mechanisms: the Protecting Powers regime, which is applicable only in international armed conflicts and to-date has never been employed;[214] and the services of the International Committee of the Red Cross, which may be offered and accepted in the context of international or non-international armed conflicts[215] as well as potentially in situations of tensions and disturbances falling short of armed conflict.[216] These mechanisms are supplemented by provisions under the Third and Fourth Geneva Convention and Additional Protocol I which provide for review procedures for the determination of the status and treatment of protected persons under certain circumstances and are discussed in Part III(F) below.[217] Article 90 of Additional Protocol I further provides for an International Fact Finding Commission, whose mandate includes, inter alia, inquiring into any facts alleged to be a grave breach as defined in the Geneva Convention or Protocol I or other serious violations of those instruments in respect of those states parties that have recognized the competence of the Commission in this regard.[218] Finally, it should be recalled that the recently-established International Criminal Court has been provided with jurisdiction to prosecute, inter alia, serious violations of international humanitarian law committed in international and non-international armed conflicts, where the conditions for the admissibility of such violations have been satisfied.[219]

72. It is also significant to recognize that international humanitarian law differs from international human rights law in terms of the actors whose conduct it regulates and in respect of whom it imposes international legal responsibility. As mentioned in the previous section, international human rights law governs directly the conduct of the state and its agents. Accordingly, certain violations of such norms by the state may imply state responsibility. International humanitarian law also governs the conduct of the state and its agents, but, in addition, that of non-state actors, as it equally applies to and expressly binds all the parties to an armed conflict.[220] In this way, international humanitarian law regulates the behavior of state security forces, dissident armed groups and all of their respective agents and proxies.[221] Moreover, certain violations of international humanitarian law may generate not only state responsibility, but also the individual criminal responsibility of the perpetrator and, under the doctrine of superior or command responsibility,[222] his or her superior.[223] Violations of international humanitarian law by states, groups or persons during a conflict do not, however, affect the continued application of humanitarian law to that conflict nor do they justify violations by opposing parties.[224]

73. Although terrorist or counter-terrorist action may give rise to or occur in the context of situations of armed conflict, it must be recalled that the concepts of terrorism and war are distinct. In certain circumstances, terrorist or counter-terrorist actions may involve organized violence of such intensity as to give rise to an armed conflict. Such would be the case, for example, where terrorist or counter-terrorist actions involve resort to armed force between States or low intensity and armed confrontations between a State and a relatively organized armed force or group or between such forces or groups within the territory of a state,[225] which in some cases may take place with the support or connivance of states. In addition to constituting the trigger for an armed conflict, terrorist or counter-terrorist actions may take place as discrete acts within an existing armed conflict. Terrorist violence committed under these circumstances is also subject to international humanitarian law,[226] even if it occurs in territory where combat is not taking place,[227] provided that the incidents are sufficiently linked to the armed conflict.[228] This would clearly be the case, for example, where the terrorist or counter-terrorist acts are committed by agents of a belligerent party against the members or objects of an adverse party.[229] In all circumstances, the specific international humanitarian law norms applicable to terrorist violence will vary depending upon whether they give rise to or take place in the context of a conflict of an international or non-international nature. It is also important to recall that the fact that terrorist acts are perpetrated within the context of an armed conflict does not otherwise affect the legal status of that conflict, although it may, as noted above, render the perpetrator and his or her superior individually criminally responsible for those acts that constitute serious violations of the law and customs of law.

74. The Commission also considers it crucial to note at this stage the importance of determining the status under international humanitarian law of individuals who take part in terrorist violence in the context of international armed conflicts, as it is from this status that the lex specialis of international humanitarian law protections for such individuals will to a significant extent be derived. Specifically, where, in the context of an international armed conflict, individuals take direct part in hostilities by perpetrating or otherwise participating in terrorist violence but do not qualify as lawful combatants, because, for example, they are not authorized by a party to the conflict to engage in hostilities as provided for under Article 4 of the Third Geneva Convention, they may properly be considered to be unlawful combatants.[230] While these individuals will, as a consequence, not qualify for the protections of the Third or Fourth Geneva Conventions, they will nevertheless be entitled to the minimum standards of protection under Article 75 of Additional Protocol I.

75. Where, in relation to a terrorist act or situation, an armed conflict cannot be said to exist, terrorist actions or anti-terrorist initiatives would be subject exclusively to international human rights law and domestic law, as described in the previous section.[231]

76. Given the broad focus of the current report, the Commission’s analysis will consider principally those fundamental human rights and humanitarian law protections that are widely considered to constitute a part of customary international law and to be applicable to all armed conflicts. These protections include the core rights common to most international human rights instruments such as the right to life, the right to humane treatment and the right to due process, as well as corresponding protections embodied in specific provisions of international humanitarian treaty law, in particular Article 3 common to the Four Geneva Conventions,[232] core provisions of Article 75 of Additional Protocol I to the 1949 Geneva Conventions,[233] and Articles 4 to 6 of Additional Protocol II to the 1949 Geneva Conventions.[234] Common Article 3 provides as follows:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

77. This provision contains fundamental guarantees applicable at all times during armed conflicts, for the benefit of persons who do not or no longer take an active part in the hostilities. Similar guarantees, which supplement and develop those under Common Article 3, are provided for by Articles 4 to 6 of Additional Protocol II in respect of persons no longer taking part in the hostilities of a non-international armed conflict, and by Article 75 of Additional Protocol I in respect of persons who are in the power of a party to the conflict to an international armed conflict and who do not benefit from more favorable treatment under the 1949 Conventions or Additional Protocol I, such as certain unprivileged combatants who do not fall within the protection of the Third or Fourth Geneva Convention or Additional Protocol I with respect to states parties to that instrument.[235]

78. Finally, it should be emphasized that the rules of international humanitarian law are non-derogable, subject to very limited exceptions.[236] As a consequence, the minimum standards prescribed under international humanitarian law cannot be suspended, even if the American Convention might otherwise permit derogation from corresponding protections. Where, for example, international humanitarian law prescribes minimum standards of due process, states cannot rely upon any permissible derogations from this right under international human rights law to avoid respect for these standards in armed conflict situations. This approach is mandated in part by Articles 27 and 29 of the American Convention, which prohibit any measures of derogation that are inconsistent with a state’s other obligations under international law and which foreclose any interpretation of the Convention that restricts the enjoyment of exercise of any right or freedom recognized by virtue of another convention to which a state is a party.

Notes_____________________________

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

[75] 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, supra note 61, Articles 1, 2.

[76] 1979 UN Hostages Convention, supra note 33.

[77] 1971 Montreal Convention, supra note 34.

[78] UN Crimes Against Internationally Protected Persons Convention, supra note 35.

[79] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 1 (“(1) Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the “hostage�?) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offense of taking hostages (“hostage-taking“) within the meaning of this Convention.�?) See similarly 1971 Montreal Convention, supra note 341, Article 1; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Article 2(1).

[80] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 2 (“Each State Party shall make the offenses set forth in article 1 punishable by appropriate penalties which take into account the grave nature of those offenses.�? See similarly 1971 Montreal Convention, supra note 34, Article 3; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Article 2(2).

[81] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 5 (“(1) Each State Party shall take such measures as may be necessary to establish its jurisdiction over any offenses set forth in Article 1 which are committed: (a) in its territory or on board a ship or aircraft registered in that State; (b) by any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual residence in its territory; (c) in order to compel that State to do or abstain from doing any act; or (d) with respect to a hostage who is a national of that State, if that State considers it appropriate. (2) Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offenses set forth in Article 1 in cases where the alleged offender is present in its territory and it does not extradite him to any of the States mentioned in paragraph 1 of this Article. (3) This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law�?); Article 6. See similarly 1971 Montreal Convention, supra note 34, Articles 5, 6, 7; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Articles 3, 6, 7.

[82] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 4 (“States Parties shall cooperate in the prevention of the offenses set forth in article 1, particularly by: (a) Taking all practicable measures to prevent preparations in their respective territories for the commission of those offenses, within or outside of their territories, including measures to prohibit in their territories illegal activities of persons, groups and organizations that encourage, instigate, organize or engage in the perpetration of acts of taking of hostages; (b) Exchanging information and co-ordinating the taking of administrative and other measures as appropriate to prevent the commission of those offenses.�?), Article 11. See similarly 1971 Montreal Convention, supra note 34, Articles 11.12; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Articles 4, 10.

[83] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 10 (“(1) The offenses set forth in article 1 shall be deemed to be included as extraditable offenses in any extradition treaty existing between States Parties. States Parties undertake to include such offenses as extraditable offenses in every extradition treaty to be concluded between them. (2) If a State Party which makes extradition conditional on the existence of a treaty received a request for extradition from another State Party with which it has no extradition treaty, the requested State may at its option consider this Convention as the legal basis for extradition in respect of the offenses set forth in article 1. Extradition shall be subject to the other conditions provided by the law of the requested State. (3) States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offenses set forth in article 1 as extraditable offenses between themselves, subject to the conditions provided by the law of the requested state. (4) The offenses set forth in Article 1 shall be treated, for the purpose of extradition between State Parties, as if they had been committed not only in the place where they occurred but also in the territories of the States required to establish their jurisdiction in accordance with paragraph 1 of Article 5.�?) See similarly 1971 Montreal Convention, supra note 34, Article 8; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Article 8.

[84] See, e.g., European Convention on the Suppression of Terrorism, supra note 20, Article 1 (providing: “For the purposes of extradition between Contracting States, none of the following offences shall be regarded as a political offence or as an offence connected with a political offence or as an offence inspired by political motives: (a) an offence within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970; (b) an offence within the scope of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971; (c) a serious offence involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents; (d) an offence involving kidnapping, the taking of a hostage or serious unlawful detention; (e) an offence involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons; (f) an attempt to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.�?; Inter-American Terrorism Convention, supra note 8, Article 11.

[85] I/A Court H.R., El Amparo Case, Reparations (Article 63(1) American Convention on Human Rights), Judgment of September 14, 1996, Series C Nº 28, paras. 53-55, 61.

[86] See UN General Assembly Res. 55/158, 12 December 2000.

[87] See, e.g., Reports of the Working Group of the Sixth Committee of the UN General Assembly, UN Doc. A/AC.752/2002.CRP.1; A/AC.252/2002/CRP.1 Add.1.

[88] The most recent accessible version of the draft treaty appears to be included in the Sixth Committee Working Group’s Report of October 29, 2001 containing articles 3 to 17 bis, 20 to 27, and 2 bis (Working Group of the Sixth Committee of the General Assembly of the United Nations, Measures to eliminate international terrorism, Sixth Committee, 56th session, UN Doc. A/C.6/56/L.9 (29 October 2001) [hereinafter Working Group 2001 Report], as well as in the Working Group’s October 2000 report, containing the preamble and Articles 1 and 18 (Working Group of the Sixth Committee of the General Assembly of the United Nations, Measures to eliminate international terrorism, Sixth Committee, 55th session, UN Doc. A/C.6/55/L.2 (19 October 2000) [hereinafter Working Group 2000 Report]). A further draft of the convention was included in the Ad Hoc Committee’s report from its January 28 to February 1, 2002 meeting but as of this writing the Ad Hoc Committee’s report was not available. See UN Press Release L/2993 of February 1, 2002 on the Ad Hoc Committee on General Assembly Resolution 51/210, 6th Session, 26th meeting, citing UN Doc. A/AC.252/2002/CRP.1 and Add.1

[89] See, e.g., Report of the Ad Hoc Committee by General Assembly Resolution 51/510 of 17 December 1996, Fifth Session (12-23 February 2001), UN Doc. A/56/37, paras. 5-22.

[90] See, e.g., Working Group of the Sixth Committee of the General Assembly of the United Nations, Measures to eliminate international terrorism, Sixth Committee, 56th session, UN Doc. A/C.6/56/L.9, paras. 4-9.

[91] See UN Press Release GA/L/3211, 57th General Assembly, Sixth Committee, 10th meeting (4 October 2002).

[92] See, e.g., European Convention for the Suppression of Terrorism, supra note 20; OAU Convention on the Prevention and Combating of Terrorism, supra note 23.

[93] Inter-American Terrorism Convention, supra note 8, Article 1 and Annex II (providing that “purposes of this Convention are to prevent, punish, and eliminate terrorism. To that end, the states parties agree to adopt the necessary measures and to strengthen cooperation among them, in accordance with the terms of this Convention�?).

[94] OAS, Secretariat for Legal Affairs, Department of Legal Cooperation and Information, Inter-American Convention against Terrorism, Signatories and Ratifications, available at <http:// www. oas. org/juridico/English/sigs/a-66.html> (listing the following signatories to the Inter-American Convention against Terrorism as of October 2, 2002: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Saint Kitts & Nevis, Saint Lucia, St. Vincent & the Grenadines, Suriname, Trinidad and Tobago, United States, Uruguay and Venezuela).

[95] Inter-American Convention Against Terrorism, supra note 8, Articles 8, 9.

[96] Inter-American Convention Against Terrorism, supra note 8, Articles 11, 12.

[97] Inter-American Convention Against Terrorism, supra note 8, Article 2(1) (“For the purposes of this Convention, “offenses�? means the offenses established in the international instruments listed below: a. Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970. b. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971. c. 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. d. International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979. e. Convention on the Physical Protection of Nuclear Material, signed at Vienna on March 3, 1980. f. Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988. g. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988. h. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988. i. International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997. j. International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999. (2) Upon depositing its instrument of ratification to this Convention, a state party that is not a party to one or more of the international instruments listed in paragraph 1 of this article may declare that, in application of this Convention to such state party, that particular instrument shall be deemed not to be included in that paragraph. The declaration shall cease to have effect as soon as that instrument enters into force for that state party, which shall notify the depositary of this fact. (3) When a state party ceases to be a party to one of the international instruments listed in paragraph 1 of this article, it may make a declaration, as provided in paragraph 2 of this article, with respect to that instrument�?).

[98] Inter-American Convention Against Terrorism, supra note 8, Article 4.

[99] Inter-American Convention Against Terrorism, supra note 8, Article 5.

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

[101] See, e.g., OAS General Assembly Res. AG/RES. 314 (VII-0/77) of June 22, 1977; OAS General Assembly Res. AG/RES. 370 (VIII-0/78) of July 1, 1978; AG/RES. 1829, (XXXI-0/01) of June 5, 2001.

[102] See Advisory Opinion OC-10/89, supra note 73, paras. 43–46; Case 9647, Res. 3/87, James Terry Roach and Jay Pinkerton (United States), Annual Report of the IACHR 1986-87, paras. 46-49; Case 12.067, Report Nº 48/01, Michael Edwards et al. (Bahamas), Annual Report of the IACHR 2000, para. 107.

[103] The Commission has considered that it is beyond question that the core rights protected under the American Declaration, including the right to life, the right to liberty and the right to due process and to a fair trial, constitute customary norms of international law. Case 12.379, Report Nº 19/02 (Inadmissibility) (27 February 2002), Alfredo Lares Reyes et al. (United States), Annual Report of the IACHR 2001 para. 46.

[104] Advisory Opinion OC-10/89, supra note 73, paras. 43–46.

[105] Inter-American Convention to Prevent and Punish Torture, signed at Cartagena de Indias, Colombia, on December 9, 1985 at the fifteenth regular session of the General Assembly, [hereinafter Inter-American Torture Convention], in Basic Documents, supra note 63, at 83. For OAS member states that are parties to this instrument, see Annex II.

[106] Inter-American Convention on the Forced Disappearance of Persons, adopted at Belem do Para, on June 9, 1994, at the twenty-fourth regular session of the General Assembly [hereinafter Inter-American Convention on Forced Disappearances], in Basic Documents, supra note 63, at 93. For OAS member states that are parties to this instrument, see Annex II.

[107] Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, adopted at Belem do Pará, Brazil on June 9, 1994, at the twenty-fourth regular session of the General Assembly, [hereinafter Inter-American Convention on Violence Against Women], in Basic Documents, supra note 63, at 101. For OAS member states that are parties to this instrument, see Annex II.

[108] Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, signed at San Salvador, El Salvador on November 17, 1988 at the eighteenth regular session of the General Assembly, in Basic Documents, supra note 63, at 65.

[109] See Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, Article 27 [hereinafter Vienna Convention on the Law of Treaties]. See also I/A. Court H.R., Advisory Opinion OC-14/94, International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Articles 1 and 2 of the American Convention on Human Rights, 9 December 1994, Ser. A Nº 14, para. 35 (recognizing that "[p]ursuant to international law, all obligations imposed by it must be fulfilled in good faith; domestic law may not be invoked to justify nonfulfillment. These rules may be deemed to be general principles of law and have been applied by the Permanent Court of International Justice and the International Court of Justice even in cases involving constitutional provisions."); Greco-Bulgarian “Communities�?, Advisory Opinion, 1930, P.C.I.J., Series B, Nº 17, p.32; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, Nº 44, p. 24; Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, Nº 46, p. 167.

[110] Abella Case, supra note 73, para. 158. See also Coard et al. Case, supra note 73; IACHR, Third Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.102 doc. 9 rev. 1, 26 February 1999 [hereinafter IACHR Report on Colombia (1999)].

[111] See, e.g., ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 73, para. 25 (confirming that “the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.�?).

[112] See, e.g., American Convention on Human Rights, supra note 61, Article 27 (specifically permitting derogations from certain rights “[i]n time of war, public danger, or other emergency that threatens the independence or security of a State Party�?). See similarly International Covenant on Civil and Political Rights, supra note 66, Article 4.

[113] See I/A Court H.R., Advisory Opinion OC-2/82, The Effect of Reservations in the Entry into Force of the American Convention on Human Rights (Articles 74 and 75), September 24, 1982, Ser. A Nº 2, para. 29 (emphasizing that modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction.

[114] See, e.g., Case 9903, Report Nº 51/01, Ferrer-Mazorra et al. (United States), Annual Report of the IACHR 2000, para. 178, citing, inter alia, Advisory Opinion OC-2/82, supra note 113, para. 29; Report No. 38/99, Saldaño Case (Argentina), Annual Report of the IACHR 1998, paras. 15-20; Coard et al. Case, supra note 73, para. 37, citing, inter alia, IACHR, Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.66, doc. 17, 1985 [hereinafter IACHR Report on Chile (1985)], Second Report on the Situation of Human Rights in Suriname, OEA/Ser.L/V/II.66, doc. 21, rev. 1, 1985. See similarly Eur. Comm. H.R., Cyprus v. Turkey, 18 Y.B. Eur. Conv. Hum. Rgts. 83 (1975) at 118; Eur. Court. H.R., Loizidou v. Turkey, Preliminary Objections, 23 March 1995, Series A Nº 310, paras. 59-64 [hereinafter Loizidou, Preliminary Objections].

[115] See American Declaration, supra note 63, Preamble (“The American States have on repeated occasions recognized that the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon the attributes of his human personality�?; American Convention on Human Rights, supra note 61, Preamble “Recognizing that the essential rights of man are not derived from one’s being a national of a certain state, but are based upon the attributes of the human personality…�?).

[116] Charter of the Organization of American States [hereinafter OAS Charter], in Basic Documents, supra note 63, at 193, Article 3(l]; American Declaration, supra note 63, Article II; American Convention on Human Rights, supra note 61, Articles 1(1), 24.

[117] American Declaration, supra note 63, Article XVII, American Convention on Human Rights, supra note 61, Article 3.

[118] Universal Declaration of Human Rights, supra note 65.

[119] International Covenant on Civil and Political Rights, supra note 66.

[120] UN Convention relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 [hereinafter UN Convention on the Status of Refugees]. For OAS member states that are parties to this instrument, see Annex II.

[121] Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267, [hereinafter UN Protocol on the Status of Refugees]. For OAS member states that are parties to this instrument, see Annex II.

[122] UN Convention on the Rights of the Child, 20 November 1989, GA Res. 44/25, Annex 44 UN GAOR Supp. (No. 49) at 167, UN Doc. A/44/49 (1989), [hereinafter UN Convention on the Rights of the Child]. For OAS member states that are parties to this instrument,
see Annex II.

[123] International Convention on the Elimination of all Forms of Racial Discrimination, 21 December 1965, 660 U.N.T.S. 195 [hereinafter International Convention on the Elimination of all Forms of Racial Discrimination]. For OAS member states that are parties to this instrument, see Annex II.

[124] Vienna Convention on Consular Relations, April 24, 1963, 596 U.N.T.S. 261 [hereinafter Vienna Convention on Consular Relations]. For OAS member states that are parties to this instrument, see Annex II.

[125] First Geneva Convention, supra note 67; Second Geneva Convention, supra note 67; Third Geneva Convention, supra note 67; Fourth Geneva Convention, supra note 36.

[126] Additional Protocol I, supra note 68; Additional Protocol II, supra note 36.

[127] See, e.g., American Convention on Human Rights, supra note 61, Article 29(b) (“No provision of this Convention shall be interpreted as restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which none of the states is a party.�?); International Covenant on Civil and Political Rights, supra note 66, Article 5(2) (“There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any state Party to the present Covenant pursuant to law, convention, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.�?); Additional Protocol I, supra note 68, Article 75(8) (“No provision of this Article may be construed as limiting or infringing any other more favorable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.�?). See generally Buergenthal, To Ensure and Respect, supra note å, at 89-90.

[128] In respect of member states that have signed but not yet ratified certain instruments, Article 18 of the Vienna Convention on the Law of Treaties, supra note 109, provides that a “State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty [. . .].�?

[129] I/A Court H.R., Advisory Opinion OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, October 1, 1999, Ser. A
Nº 16, para. 114, citing, inter alia, the decisions of the European Court of Human Rights in Tyrer v. United Kingdom, Judgment of April 25, 1978, Ser. A No. 26, pp. 15-16, para. 31; Marckx v. Belgium, Judgment of June 13, 1979, Ser. A Nº 31, p. 19, para. 41, and Loizidou, Preliminary Objections, supra note 114, para. 71.

[130] Id. See also Case 12.243, Report Nº 52/01, Juan Raul Garza (United States), Annual Report of the IACHR 2000, paras. 88-89; Advisory Opinion OC-1/82, supra note 73; Advisory Opinion OC-10/89, supra note 73, para. 37; I/A Court H.R., Villagran Morales Case, Judgment of November 19, 1999, Series C Nº 63, at paras. 178-198 (referring to the UN Convention on the Rights of the Child, supra note 122). See similarly ICJ, Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), June 21, 1971, I.C.J. Reports 1971, p. 16 at 31 stating that "an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of the interpretation").

[131] See OAS Charter, supra note 116, Article 106 ("There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters."); American Convention on Human Rights, supra note 61, Article 41 ("The main function of the Commission shall be to promote respect for and defense of human rights."); Statute of the Inter-American Commission on Human Rights, supra note 13, Articles 18-20.

[132] It is well-established that, unlike domestic criminal law, it is not necessary to determine a perpetrators’ culpability or intent in order to establish that a state’s human rights obligations have been violated, nor is it essential to identify individually the agents to whom the acts of violation are attributed. As the Inter-American Court has recognized, “[t]he sole requirement is to demonstrate that the State authorities supported or tolerated infringement of the rights recognized in the Convention. Moreover, the State’s international responsibility is also at issue when it does not take the necessary steps under its domestic law to identify and, where appropriate, punish the authors of such violations.�? See I/A Court H.R., Paniagua Morales et al. Case, Judgment of March 8, 1998, Series C, Nº 37, para. 91. See similarly Case 11.654, Report Nº 62/01, Riofrío Massacre (Colombia), Annual Report of the IACHR 2000, paras. 48-52.

[133] See OAS Charter, supra note 116, Article 106; Statute of the Inter-American Commission on Human Rights, supra note 13, Articles 18-20; IACHR Report on Colombia (1999), supra note 110, Chapter IV, paras. 2, 3.

[134] See, e.g., IACHR Report on Colombia (1999), supra note 110, Chapter 4, para. 6. See similarly IACHR, Second Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.84, Doc. 39 rev., at 247 [hereinafter IACHR Report on Colombia (1993)].

[135] Annual Report of the IACHR 1990-91, supra note 3, Ch. V, at 504 and following.

[136] Abella Case, supra note 73, para. 158. See also Coard et al. Case, supra note 73, paras. 37-42; IACHR Report on Colombia (1999), supra note 110.

[137] See, e.g., International Covenant on Civil and Political Rights, supra note 66, Article 4; Article 15 of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, (ETS No. 5), 213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11 [hereinafter European Convention on Human Rights], Article 15.

[138] American Convention on Human Rights, supra note 61, Article 27. For an accounting of the travaux préparatoire to Article 27 of the American Convention on Human Rights, see The Inter-American System (T. Buergenthal and R. Norris, eds., 1984), Vol. 1, Booklet 12, at 135, Minutes of the 14th session of the San José Conference, 17 November 1969.

[139] See, e.g., IACHR, Report on the Situation of Human Rights in Paraguay (1987), OEA/Ser.L/V/II.71 Doc. 19 rev. 1 (28 September 1987) at 15-16 [hereinafter IACHR, Report on Paraguay (1987)]; IACHR Report on Argentina (1980), supra note 27, at 26. As early as 1968, the Commission stipulated that rules of derogation equivalent to those under Article 27 of the American Convention on Human Rights applied to member states’ human rights obligations, then as embodied in the OAS Charter and the American Declaration. See Resolution adopted during the 18th session of the IACHR (April 1968), OEA/Ser.L/V/II.19 Doc. 32, reproduced in Inter-Am. Y.B. Hum. Rts. 1968, at 61 (declaring that: “the suspension of constitutional guarantees or 'state of siege' is compatible with the system of representative democratic government only if enacted under the following conditions: a. When officially decreed under the procedure established in the respective constitutions; b. When established in a measure strictly limited to the exigencies of the situation and with application limited to the duration thereof; c. When adopted in case of war or other serious public emergency threatening the life of the nation or the security of the State; d. When it does not entail any discrimination based on reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social conditions; e. When it does nor in any manner presuppose the suspension of the right to life, liberty or personal security, the right to protection against arbitrary detention, the right to due process of law, and the right to freedom of thought, conscience and religion; f. When it does nor presuppose restriction of the rule of law, or the provisions of the constitution, or alteration of the scope of the Powers of the State or of the proper exercise of the police powers.�?).

[140] See Neira Alegría Case, supra note 6, paras 74-76; Case 11.010, Report Nº 15/95, Hildegard María Feldman (Colombia), Annual Report of the IACHR 1995, at 57.

[141] Annual Report of the IACHR 1980-81, OEA/Ser.L/V/II.54, doc.9 rev.1, 16 October 1981, p. 115 [hereinafter Annual Report of the IACHR 1980-81]; IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 67. See similarly United Nations Human Rights Committee, General Comment Nº 29, “States of Emergency�? (Article 4 ICCPR), UN Doc. CCPR/C/21/Rev.1/Add.11 (31 August 2001) [hereinafter UNHRC General Comment Nº 29], para. 3.

[142] Annual Report of the IACHR 1980-81, supra note 141, p. 115; IACHR Report on Peru (2000), supra note 27; Asencios Lindo et al. Case, supra note 6, para. 68. See similarly UNHRC General Comment Nº 29, supra note 141, para. 4.

[143] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 69.

[144] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 70. See similarly UNHRC General Comment NC 29, supra note 141, para. 8.

[145] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 71.

[146] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 72. See also Buergenthal, To Respect and Ensure, supra note 69, at 85.

[147] I/A Court H.R. Advisory Opinion OC-8/87, Habeas Corpus in Emergency Situations, January 30, 1987, Ser. A Nº 8, paras. 21-27; IACHR Report on Peru (2000), supra note 27,
paras. 71-73.

[148] American Convention on Human Rights, supra note 61, Article 12(2) (“Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, morals, or the rights or freedoms of others�?).

[149] American Convention on Human Rights, supra note 61, Article 13(2) (“The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals�?).

[150] American Convention on Human Rights, supra note 61, Article 16(2) (“The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others�?).

[151] Jaime Oraá identifies three main distinctions in the operation of derogation clauses and limitation clauses: limitation clauses authorize restrictions on grounds in "normal situations�? or peacetime, where as derogation clauses operate in exceptional situations; limitation clauses only affect specific rights, whereas derogation clauses could affect all rights under a treaty except those that are considered non-derogable; and the operation of limitation clauses does not require any special declaration by the State, whereas derogation clauses require the notification to the other states parties to the treaty of the proclamation of the emergency, the derogated provisions, and the reasons therefore. Jaime Oraá, Human Rights in States of Emergency in International Law 9-10 (1992).

[152] See, e.g., I/A Court H.R., Advisory Opinion OC-5/85, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 of the American Convention on Human Rights), November 13, 1985, Ser. A Nº 5 [hereinafter Advisory Opinion OC-5/85], paras. 36, 37; Case 10.506, Report Nº 38/96, X & Y (Argentina), Annual Report of the IACHR 1996, paras. 54-71.

[153] Article XXVIII of the American Declaration provides: “The rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy.�?

[154] See, e.g., Advisory Opinion OC-5/85, supra note 152, para. 36.

[155] See American Convention on Human Rights, supra note 61, Article 30 (“The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.�?); American Declaration, supra note 63, Article XXVIII. See also Advisory Opinion OC-5/85, supra note 152, para. 37.

[156] X & Y Case, supra note 152, paras. 61, 62.

[157] X & Y Case, supra note 152, para. 71.

[158] As recognized by the drafters of the International Covenant on Civil and Political Rights and by noted publicists, the phrase “public order�? is a term of art borrowed from national legal systems that must be interpreted in light of the treatment of the term in those particular systems. This includes interpreting the phrase in conjunction with the French concept of ordre public, which in a broad sense permits limitations on particular human rights where those limitations are necessary to ensure a minimum level of public welfare and social organization. See, e.g., ICCPR, supra note 66, Article 12(3) (providing that the rights to liberty of movement and freedom to choose residence “shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with other rights recognized in the present Covenant.�?). See also M.J. Bossuyt, Guide to the “Travaux Préparatiores�? of the International Covenant on Civil and Political Rights 258 (1987), citing Report of the Third Committee of the General Assembly, 14th session (1959), UN Doc. A/4299, § 15; Alexandre Charles Kiss, Permissible Limitations on Rights, in The International Bill of Rights–The Covenant on Civil and Political Rights 290, 299-301(Louis Henkin, ed., 1981) [hereinafter Kiss, Permissible Limitations on Rights].

[159] See, e.g., Advisory Opinion OC-5/85, supra note 152, paras. 64-66.

[160] See, e.g., Advisory Opinion OC-5/85, supra note 152, para. 67.

[161] See, e.g., American Convention on Human Rights, supra note 61, Article 29(b); International Covenant on Civil and Political Rights, supra note 66, Article 5(2); Additional Protocol I, supra note 68, Article 75(8) (“No provision of this Article may be construed as limiting or infringing any other more favorable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.�?). See similarly UNHRC General Comment Nº 29, supra note 141, para. 9. See generally Buergenthal, To Respect and Ensure, supra note 69, at 90.

[162] IACHR Report on Colombia (1999), supra note 110, at 74, para. 10. See also M. Sassoli & A. Bouvier, How does law protect in war, (ICRC, 1999), at p. 67 [hereinafter Sassoli & Bouvier].

[163] Abella Case, supra note 73, para. 152. See similarly International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Dusko Tadić, IT-94-1, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70 [hereinafter Tadić AC Decision Jurisdiction].

[164] See ICRC, Protection and Assistance Activities in Situations Not Covered by International Humanitarian Law, 262 Int’l Rev. Red Cross 9, 13 (1988).

[165] See Hans-Peter Gasser, A Measures of Humanity in Internal Disturbances and Tensions: Proposal for a Code of Conduct, 262 Int’l Rev. Red Cross 38, 42 (1988). See also Declaration of Turku Abo (2 December 1990) (declaring minimum humanitarian standards applicable in all situations, including internal violence, disturbances, tensions, and public emergency, and which cannot be derogated from under any circumstances).

[166] See Abella Case, supra note 73, para. 153. One narrow exception to his rule is prescribed in Article 1(4) of Additional Protocol I, which incorporates within the classes of conflicts governed by the Protocol “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination�?. See Additional Protocol I, supra note 68, Article1(4).

[167] See Article 2 Common to the Geneva Conventions, supra notes 36, 67.

[168] Tadić AC Decision Jurisdiction, supra note 163, at para. 70. See also IACHR Report on Colombia (1999), supra note 110, at 95, Part IV, para. 83.

[169] IACHR Report on Colombia (1999), supra note 110, at 74, Part IV, para. 9. Abella Case, supra note 73, para. 158.

[170] IACHR Report on Colombia (1999), supra note 110, at 74, Chapter IV, paras. 8-11. See also Abella Case, supra note 73, paras. 158-159; Case 11.142, Report Nº 26/97, Arturo Ribón Avilan (Colombia), Annual Report of the IACHR (1997), para 171.

[171] See IACHR Report on Colombia (1999), supra note 110, at 75, Chapter IV, para. 12. See also Abella Case, supra note 73, para. 161.

[172] American Convention on Human Rights, supra note 61, Article 29. See also Advisory Opinion OC-16/99, supra note 129, para. 36 et seq.

[173] See Part II(B). para. 45 (International Human Rights Law), para. F.9. See also American Convention on Human Rights, supra note 61, Article 27 (1) and 29; Additional Protocol I, supra note 68, Article 75 (8); Advisory Opinion OC-1/82, supra note 73; Advisory Opinion OC-16/99, supra note 129, paras. 29 et seq.; Villagran Morales Case, supra note 130, paras. 178-198 (interpreting the American Convention on Human Rights in light of pertinent provisions of the UN Convention on the Rights of the Child, supra note 122).

[174] First Geneva Convention, supra note 67, Second Geneva Convention, supra note 67, Third Geneva Convention, supra note 67, Fourth Geneva Convention, supra note 36.

[175] Additional Protocol I, supra note 68.

[176] Additional Protocol II, supra note 36.

[177] In particular the Fourth Convention respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, 18 October 1907, 3 Martens Nouveau Recueil (ser. 3) 461, 187 Consol. T.S. 227 [hereinafter 1907 Hague Convention and Regulations].

[178] Hague Convention Nº I of July 29, 1899, for the Pacific Settlement of International Disputes, 32 Stat. 1803, T.S. Nº 392; Hague Convention Nº II of July 29, 1899 with Respect to the Laws and Customs of War on Land, 32 Stat. 1803, T.S. Nº 403; Hague Convention Nº III of July 29, 1899, for the Adaptation to Marine Warfare of the Principles of the Geneva Convention of August 22, 1864, 32 Stat. 1827, T.S. Nº 396; Hague Convention Nº IV of July 29, 1899, Prohibiting Launching of Projectiles and Explosives from Balloons, 32 Stat. 1839, T.S. Nº 393; Hague Convention Nº I of October 18, 1907, for the Pacific Settlement of International Disputes, 32 Stat. 2199, T.S. Nº 536; Hague Convention Nº II of October 18, 1907, Respecting the Limitations on the Employment of Force for the Recovery of Contract Debts, 36 Stat. 2241, T.S. Nº 537; Hague Convention No. III of October 18, 11907, Relative to the Opening of Hostilities, 36 Stat. 2259, T.S. Nº 538; Hague Convention Nº IV of October 18, 1907, Respecting the Laws and Customs of War on Land and the Regulation Annexed thereto, supra note 177; Hague Convention V of October 18, 1907, Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 36 Stat. 2310, T.S. Nº 540; Hague Convention Nº VIII of October 18, 1907, Relative to the Laying of Automatic Submarine Contact Mines, 36 Stat. 2332, T.S. Nº 541; Hague Convention No. IX of October 18, 1907, Concerning Bombardment by Naval Forces in Time of War, 36 Stat. 2351, T.S. Nº 542; Hague Convention Nº X of 18 October 1907, for the Adaptation to Marine Warfare of the Principles of the Geneva Convention, 36 Stat. 2371, T.S. Nº 543; Hague Convention Nº XI of October 18, 1907, Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War, 36 Stat. 2396, T.S. Nº 544; Hague Convention Nº XIII of October 18, 1907, Concerning the Rights and Duties of Neutral Powers in Naval War, 36 Stat. 2415, T.S. Nº 545; Hague Convention Nº XIV of October 18, 1907, Prohibiting the Discharge of Projectiles and Explosives From Balloons, 36 Stat. 2439, T.S. Nº 546.

[179] Supra notes 36, 67.

[180] Additional Protocol I, supra note 68.

[181] Article 2 Common to the Four Geneva Conventions, supra notes 36, 67.

[182] Additional Protocol I, supra note 68, Article 2.

[183] Article 3 Common to the Four Geneva Conventions, supra notes 36, 67.

[184] See Tadić AC Decision Jurisdiction, supra note 163, at paras. 97-134.

[185] Additional Protocol II, supra note 36.

[186] Additional Protocol II, supra note 36, Article 1.

[187] Abella Case, supra note 73, para. 162. For OAS member states that are parties to the 1949 Geneva Conventions, see Annex II.

[188] Article 38(1)(b) of the Statute of the International Court of Justice, 26 June 1945, 3 Bevans 1153; North Sea Continental Shelf Cases, 20 February 1969, ICJ Rep. 1969, 3; Nicaragua v. United States, 27 June 1984, ICJ Rep. 1986, 14, at para. 77 [hereinafter ICJ, Nicaragua Case]; Tadić AC Decision Jurisdiction, supra note 163, paras. 96 et seq.

[189] See IACHR Report on Colombia (1999), supra note 110, at 82, Ch. IV, para. 39; Case 11.519, Report Nº 61/99, José Alexis Fuentes Guerrero (Colombia), Annual Report of the IACHR 1998, at para 37; Case 10.488, Report N° 136/99, Ignacio Ellacuria, S.J. y Otros (El Salvador), Annual Report of the IACHR 1999, at para. 159; Case 10.548, Report N° 38/97, Hugo Bustios Saavedra (Peru), Annual Report of the IACHR 1997, at para. 61. See also Report of the Secretary-General pursuant to paragraph 2 of resolution Security Council 808 (1993), UN Doc. S/25704 and Add.1, 3 May 1993; UN Security Council Resolution 827, 25 May 1993 [hereinafter UN Secretary General Report (1993)]; ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 73, paras. 79, 84; ICJ, Nicaragua Case, supra note 188, para. 220; Tadić AC Decision Jurisdiction, supra note 162, paras. 98, 102, 112, 134. For a general discussion of customary norms of international humanitarian law, see Theodor Meron, The Humanization of Humanitarian Law, 94 Am. J. Int'l. L. 239 (2000), at 244, 248-250, 275 [hereinafter Meron, The Humanization of Humanitarian Law]; Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 Am. J. Int'l L. 238 (1996) at 239, 244, 247. Other potentially pertinent instruments considered to constitute part of customary international law include the Genocide Convention (Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]); Statute of the International Military Tribunal at Nuremberg (Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, Aug. 8, 1945, 82 U.N.T.S. 280).

[190] See, e.g., Trial of German Major War Criminals, 1946, Cmd. 6964, Misc. Nº 12, at 65 and United States v. Von Leeb, 11 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law Nº 10, at 462 (1950) (recognizing the Hague Regulations of 1907 as norms of customary international law).

[191] Four Geneva Conventions, supra notes 36, 67.

[192] Prosecutor v. Dusko Tadić, Case Nº IT-94-1, Trial Chamber, Opinion and Judgment, 7 May 1997, para. 577 [hereinafter Tadić TC Judgment] (referring to Tadić AC Decision Jurisdiction, supra note 163, and recognizing the customary nature of the Grave Breach provisions of the Four Geneva Conventions). The Tadić Judgment was appealed to the ICTY Appeals Chamber without challenge to this finding. See The Prosecutor v. Duško Tadić, ICTY Appeals Chamber (15 July 1999). See also U.N. GAOR, 3rd Committee, 23rd Session, UN Doc. A/C.3/SR.1534 (1968), UN GAOR, 25th Session, Supp. Nº 28 UN Doc. A/8028 (1970).

[193] See, e.g., ICJ, Nicaragua Case, supra note 188, para. 77; ICTY, Prosecutor v. Delalic, Case Nº IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, paras. 298-306 [hereinafter Celibici TC Judgment], affirmed on this point on appeal, The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, Appeals Chamber Judgment, February 20, 2001 (ICTY), paras. 143-150; ICTR, Prosecutor v. Akayesu, Case Nº ICTR-96-4-T, Trial Chamber I Judgment, 2 September 1998, paras. 604-610 [hereinafter Akayesu, TC Judgment], ICTR Appeals Chamber dismissed appeal June 1, 2001; ICTY, Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2, Trial Chamber III Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction based on the limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, paras. 25-34 [hereinafter Kordic TC Jurisdiction Decision] (recognizing that Article 3 Common to the Four Geneva Conventions constitutes a norm of customary international law).

[194] See, e.g., Tadić AC Decision Jurisdiction, supra note 163, paras. 98, 117 (recognizing that the core of Additional Protocol II constitutes customary international law); Akayesu, TC Judgment, supra note 193, paras. 604-610 (recognizing that Article 4 of Additional Protocol II constitutes customary international law); Kordic TC Jurisdiction Decision, supra note 193, para. 31 (recognizing that Articles 51(2) and 52(1) of Additional Protocol I and Article 13(2) of Additional Protocol II constitute customary international law).

[195] See generally Michael J Matheson, “The United States position on the relation of customary international law to the 1977 Protocols Additional to the 1949 Geneva Conventions�? in Martin D. Dupuis, John Q Heywood and Michèle Y.F. Sarko, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: a Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U. J. Int’l L. & Pol. 419 (1987) [hereinafter Matheson]. See also Kordic TC Jurisdiction Decision, supra note 193 (recognizing that Articles 51(2) and 52(1) of Additional Protocol I and Article 13(2) of Additional Protocol II constitute customary international law).

[196] See, e.g., Tadić AC Decision Jurisdiction, supra note 163, paras. 98, 117, 132; Kordic TC Jurisdiction Decision, supra note 193 (recognizing that Articles 51(2) and 52(1) of Additional Protocol I and Article 13(2) of Additional Protocol II constitute customary international law). ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 73,
para. 84; Matheson, supra note 195.

[197] See, e.g., Tadić AC Decision Jurisdiction, supra note 163, paras. 96-127, citing, inter alia, UN General Assembly Resolution 2444, UN GAOR 23rd Sess., Supp. Nº 18, UN Doc. A/7218 (1968), UN General Assembly Resolution 2675, UN GAOR 25th Sess., Supp. No. 28, UN Doc. A/8028 (1970); IACHR Report on Colombia (1999), supra note 110.

[198] See ICJ, Nicaragua Case, supra note 188, para. 77; Tadić AC Decision Jurisdiction, supra note 163, paras 98, 117, 132.

[199] IACHR Report on Colombia (1999), supra note 110, at 82, Ch. IV, para. 38. See, e.g., 1907 Hague Convention and Regulations, supra note 177, Article 23(g); First Geneva Convention, supra note 67, Article 50 in fine; Second Geneva Convention, supra note 67, Article 51 in fine; Fourth Geneva Convention, supra note 36, Article 147 in fine; Additional Protocol I, supra note 68, Article 51(1) in fine.

[200] See, e.g., Article 3 common to the Four Geneva Conventions; First Geneva Convention, supra note 67, Article 12; Second Geneva Convention, supra note 67, Article 12; Third Geneva Convention, supra note 67, Article 13; Fourth Geneva Convention, supra note 36, Article 14; Additional Protocol I, supra note 68, Article 11; Additional Protocol II, supra note 36, Article 4.

[201] IACHR Report on Colombia (1999), supra note 110, at 82, Ch. IV, para. 38. See, e.g., Arturo Ribón Avilan Case, supra note 170, paras. 134, 136, 140, 141 (considering attacks upon persons who have been placed “hors de combat�? to constitute violations of international humanitarian law).

[202] IACHR Report on Colombia (1999), supra note 110, at 82, Ch. IV, para. 38.

[203] IACHR Report on Colombia (1999), supra note 110, at 82, Ch. IV, paras. 40, 77-79 (referring to the standards found in Articles 51 and 52 of Additional Protocol I, supra note 68, and stating that the principle of proportionality

prohibits "[a]n attack 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". This principle imposes […] an additional limitation on the discretion of combatants in deciding whether an object is a military objective […]. Should an attack be expected to cause incidental civilian casualties or damage, the requirement of an anticipated "definite" military advantage is elevated to the more restrictive standard of a "concrete" and "direct" military advantage. Another aspect of the proportionality equation requires that foreseeable injury to civilians and damage to civilian objects not be disproportionate or "excessive" to the anticipated "concrete and direct military advantage". [footnotes omitted]

See also Abella Case, supra note 73, para. 177; Bustios Saavedra Case, supra note 189, para. 61; Fuentes Guerrero Case, supra note 189, paras. 38-39; Ignacio Ellacuria, S.J. y Otros Case, supra note 189, paras. 158-163.

[204] See Additional Protocol I, supra note 68, Article 52 (“(1) Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. (2) Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. (3) In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used�?). See also Resolution 2444 (XXIII) of the United Nations General Assembly, on Respect for Human Rights in Armed Conflicts, adopted 19 December 1968, GA Res. 2444, UN GAOR, 23rd Sess., A/RES/23/2444 (1968), in Dietrich Schindler and Jiri Toman, The Laws of Armed Conflicts, 2nd ed., 199 (1981).

[205] See, e.g., Additional Protocol I, supra note 68, Articles 51, 52; Additional Protocol II, supra note 36, Article 13.

[206] See Waldmar Solf, The Status of Combatants in Non-International Armed Conflicts Under Domestic Law and Transnational Practice, 33 Am. U. L. Rev. 53, 59 (1983) [hereinafter Solf, The Status of Combatants].

[207] Third Geneva Convention, supra note 67, Article 4A. For OAS member states that are parties to Additional Protocol I see Annex II. It should be noted that Articles 43 and 44 of that instrument endeavor to relax the requirements of the Hague and Geneva standards by eliminating the distinction found in the Hague Regulations and the Third Geneva Conventions between regular armed forces and irregular voluntary corps, militias and other organized resistance movement and thereby to provide guerrillas a possibility of attaining privileged combatant status. More particularly, Article 43 of Additional Protocol I incorporates as combatants entitled to the combatants privilege and prisoner of war status “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.�? Additional Protocol I, supra note 68, Article 43(1). Article 44(3) of Additional Protocol I further obliges combatants defined under Article 43 to “distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) During each military engagement, and (b) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate. Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c)". Additional Protocol I, supra note 68, Article 44(3).These provisions have been the subject of controversy among states and have never been applied in the context of an armed conflict, and therefore likely do not constitute a part of customary international law. They nevertheless have relevance for those OAS member states who have ratified Additional Protocol I. It should also be noted that even where the Protocol I standards apply, it is still possible for a combatant to be regarded as forfeiting his or her combatants status and hence entitlement to prisoner of war status by failing to meet the standards under Article 44(3) of the Protocol, namely by failing to carry his arms openly during each military engagement as well as during such time as he is visible to the adversary when he is engaged in a military deployment preceding the launching of an attack. See George Aldrich, Guerilla Combatants and Prisoner of War Status, 31 Am. U. L. Rev. 871, 877-878 (1982 [hereinfater Aldrich (1982)]).

[208] See, e.g., United States v. List (The Hostage Case), Trial of the War Criminals before the Nuremberg Tribunal 1228, 1238 (1950) (stating that “[i]t cannot be questioned that acts done in times of war under the military authority of an enemy cannot involve any criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war.�?); U.S. Department of War, Instructions for the Government of the Armies of the United States in the Field, General Order Nº 100 (1863) [hereinafter “Lieber Instructions�?], Articles 56-57; Third Geneva Convention, supra note 67, Article 87 (providing that “[p]risoners of war may not be sentenced […] to any penalties except those provided for in respect of members of the armed forces of the said power who have committed the same acts.�?).

[209] See generally Richard Baxter, So Called Unprivileged Belligerency: Spies, Guerrillas and Saboteurs, Brit. Y.B. Int’l L. (1952).

[210] See Additional Protocol I, supra note 68, Article 51(3) (providing that “[c]ivilians shall enjoy the protection afforded by this section unless and for such time as they take a direct part in hostilities.�?). See also ICRC, Commentary on the Additional Protocols of 8 June 1977 to the geneva conventions of 12 August 1949 (ICRC, 1987) [hereinafter ICRC Commentary on the Additional Protocols], at 619, ¶1944 (noting in respect of the qualification under Article 51(3) of Additional Protocol I that it is “only during such [direct] participation that a civilian loses his immunity and becomes a legitimate target. Once he ceases to participate, the civilian regains his right to […] protection […] and he may no longer be attacked�?). See also M. Bothe, K. Partsch & W. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982) [hereinafter New Rules], at 301-302.

[211] See ICRC Commentary on the Additional Protocols, supra note 210, at 515, ¶ 1677 (confirming in respect of the standards under Article 43 of Additional Protocol I governing combatant status that any concept of a part-time status, a semi-civilian, semi-military status, a soldier by night and peaceful citizen by day, also disappears. A civilian who is incorporated in an armed organization such as that mentioned in paragraph 1, becomes a member of the military and a combatant throughout the duration of the hostilities (or in any case, until he is permanently demobilized by the responsible command referred to in paragraph 1), whether or not he is in combat, or for the time being armed. If he is wounded, sick or shipwrecked, he is entitled to the protection of the First and Second Conventions (Article 44, paragraph 8), and, if he is captured, he is entitled to the protection of the Third Convention (Article 44, paragraph 1)).

[212] Solf, The Status of Combatants, supra note 206, at 53.

[213] See, e.g., Article 1 Common to the 1949 Geneva Conventions (requiring High Contracting Parties to “respect and ensure respect for�? the terms of the Conventions); Fourth Geneva Convention, supra note 36, Article 146 (requiring states parties to enact any legislation necessary to provide for effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches under the Convention).

[214] See, e.g., Third Geneva Convention, supra note 67, Article 8 (“The present Convention shall be applied with the co-operation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with which they are to carry out their duties. The Parties to the conflict shall facilitate to the greatest extent possible the task of the representatives or delegates of the Protecting Powers. The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the present Convention,. They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties.�?).

[215] See, e.g., Article 3 Common to the 1949 Geneva Conventions (providing, inter alia, that “[a]n impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict�?); Third Geneva Convention, supra note 67, Article 9 (“The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of prisoners of war and for their relief.�?).

[216] Internal Disturbances and Tensions: A New Humanitarian Approach?, 262 Int’l Rev. Red Cross 3, 4-5 (1988).

[217] See infra Part III(F), paras. 347, 348.

[218] Additional Protocol I, supra note 68, Article 90.

[219] Rome Statute, supra note 31, Articles 5(1)(c), 8.

[220] IACHR Report on Colombia (1999), supra note 110, at 75, Part IV, para. 13.

[221] IACHR Report on Colombia (1999), supra note 110, at 75, Part IV, para. 13.

[222] See, e.g., Additional Protocol I, supra note 68, Article 87; ICTY Statute, supra note 549, Article 7(3).

[223] See, e.g., First Geneva Convention, supra note 67, Article 49; Third Geneva Convention, supra note 67, Article 129; Fourth Geneva Convention, supra note 36, Article 146; Additional Protocol I, supra note 68, Article 85(1).

[224] For humanitarian law treaty provisions governing reprisals, see Third Geneva Convention, supra note 67, Article 13; Fourth Geneva Convention, supra note 36, Article 33; Additional Protocol I, supra note 68, Article 51(6).

[225] Abella Case, supra note 73, para. 152. See also Tadić AC Decision Jurisdiction, supra note 163, para. 70.

[226] The operations of the Kosovo Liberation Army during the 1999 Kosovo War were considered as terrorist activities by the Yugoslav government. Nevertheless, the operations of both the KLA and the Yugoslav forces where subject to international humanitarian law.

[227] As indicated above, during armed conflicts, international humanitarian law applies in the whole territory of the warring states or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there. Tadić AC Decision Jurisdiction, supra note 163, para. 70. See also IACHR Report on Colombia (1999), supra note 110, at 95, Chapter IV, para. 83.

[228] Tadić TC Judgment, supra note 192, para. 572.

[229] See inter alia, Eric David, Principes de droit des conflits armés, (Bruylant, 1999), at 178 [hereinafter David 1999]. Indeed, certain provisions of international humanitarian law treaties specifically prohibit acts of terrorism committed in the context of armed conflicts. See, e.g., Fourth Geneva Convention, supra note 36, Article 33.

[230] As noted above, for member states that are parties to Additional Protocol I (see Annex II), Articles 43 and 44 of Additional Protocol I eliminate the distinction found in the Hague Regulations and the Third Geneva Conventions between regular armed forces and irregular voluntary corps, militias and other organized resistance movement and thereby provide guerrillas a possibility of attaining privileged combatant status. Even where the Protocol I standards apply, however, it is still possible for a combatant to be regarded as forfeiting his or her combatants status and hence entitlement to prisoner of war status by failing to meet the standards under Article 44(3) of the Protocol, namely by failing to carry his arms openly during each military engagement as well as during such time as he is visible to the adversary when he is engaged in a military deployment preceding the launching of an attack. See Aldrich (1982) supra note 207, at 871, 877-878.

[231] See supra Part II(B), paragraphs 42, 49.

[232] Four Geneva Conventions, supra notes 36, 67.

[233] Additional Protocol I, supra note 68.

[234] Additional Protocol II, supra note 36.

[235] ICRC Commentary on the Additional Protocols, supra note 210, at 870, para. 3031.

[236] See ICRC Commentary on the Additional Protocols, supra note 210, at 392 et seq, 626, 649, 843-844. Under very specific circumstances, certain rules of international humanitarian law can be the subject of derogation or restriction based upon reasons of national security, military necessity or imperative military reasons. See, e.g., Additional Protocol I, supra note 68, Article 54(5) (providing that “[i]n recognition of the vital requirements of any Party to the conflict in the defense of its national territory against invasion, derogation from the prohibition contained in paragraph 2 [against the attack, destruction, removal or rendering useless objects indispensable to the survival of the civilian population] may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity.�?). See also supra Part III(D), paras 247-250