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43. The legal response of the Organization of American States in combating terrorism Mirko Sossai

1 INTRODUCTION

The initiatives taken by the Organization of the American States (OAS), presently comprised of 35 member states, to counter the manifestations of terrorist violence in the Americas can be divided into three main periods. The first historical phase culminated with the adoption by a Conference of foreign ministers in 1971 of the Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance (1971 OAS Convention),1 in response to the multiple episodes of kidnapping of diplomats by revolutionary groups to obtain political concessions from govern- ments.2 The paradigmatic example was the kidnapping and murder of Count Karl Von Spreti, the West German Ambassador to Guatemala, in 1970. In line with the crime-specific approach taken by the universal counter-terrorism treaties of that time, the 1971 OAS Convention accordingly sought to safeguard certain protected persons.

The adoption of that international legal instrument was characterized by polarized positions among the OAS member states. While some delegations favoured a more comprehensive treaty instead of one covering a specific issue, others feared that its provisions would infringe excessively on state sovereignty. As a result, only a narrow majority of states voted in favour of the Convention and signed it.3 Although the agreement was deemed to be ineffective due to both the ambiguities of its provisions and its lack of support, one should not underestimate its influence, as it served as the model for the subsequent 1973 United Nations Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons (1973 UN Convention).4 The criticism levelled against the 1971 Convention also reflected the complexi- ties of the political scenario in South America at that time and the delicate problem of the legal classification of violence committed by irregular armed groups opposing the military regimes in power in various countries.5

1 OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance, adopted 2 February 1971, 194 UNTS 1438 (entered into force 16 October 1973) (1971 OAS Convention’).

2 See C Baumann, The Diplomatic Kidnappings: A Revolutionary Tactic of Urban Terrorism (Martinus Nijhoff, 1973).

3 R Brach, ‘The Inter-American Convention on the kidnapping of diplomats’ (1971) 10 Columbia Journal of Transnational Law 392.

4 UN Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, adopted 14 December 1973, 167 UNTS 1035 (entered into force 20 February 1977) (‘Internationally Protected Persons Convention’).

5 See M Baker, ‘The South American legal response to terrorism’ (1985) 3 Boston University International Law Journal 67.

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The end of the Cold War inaugurated a fresh perspective, at both the universal and regional levels, on terrorist activities now condemned as criminal acts ‘in any circumstance unjusti- fiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them’.6 The Summit of the Americas in 1994 is the starting point of the second phase of the OAS response to terrorism. The heads of state and government stressed that acts of terrorism constituted ‘a systematic and deliberate violation of the rights of individuals and an assault on democracy itself’.7 Two specialized conferences on terrorism were convened in 1996 in Peru and two years later in Argentina. In particular, the Commitment of Mar del Plata recommended the creation of the Inter-American Committee on Terrorism (CICTE) ‘for the development of cooperation to prevent, combat, and eliminate terrorist acts and activities’.8

On the same day of the attacks in New York and Washington on 11 September 2001, an extraordinary meeting of the OAS General Assembly was taking place in Lima for the adop- tion of the Inter-American Democratic Charter. The OAS General Assembly issued a state- ment condemning the terrorist acts, which emphasized ‘the need to strengthen hemispheric cooperation to combat this scourge that has thrown the world and the hemispheric community into mourning’.9 A crucial step was accomplished ten days later on 21 September 2001. The OAS Foreign Affairs Ministers, acting as an organ of consultation under the Inter-American Treaty of Reciprocal Assistance (the ‘Rio Treaty’),10 classified the terrorist attacks against the US as ‘attacks against all American states’,11 in accordance with Article 3 of the Rio Treaty, which refers to the right to collective self-defence pursuant to Article 51 of the UN Charter. A further resolution on ‘strengthening hemispheric cooperation to prevent, combat and elimi- nate terrorism’ was approved, which paved the way for the negotiation of a new anti-terrorism convention and for the revitalization of the CICTE.12 As a result of intense negotiations, the Inter-American Convention Against Terrorism was adopted and opened for signature by the OAS General Assembly in June 2002 and has been ratified by 24 of 35 member states.13

The purpose of this chapter is to focus on the contribution of the OAS to the development of the international legal framework against terrorism, particularly as regards the content of the obligations to prevent and suppress terrorist acts, including in their criminal aspects. The

6 Measures to Eliminate International Terrorism, UN General Assembly Res 51/210 (17 December 1996), art I(2).

7 OAS, First Summit of the Americas: Plan of Action (9–11 December 1994); see M Scalabrino, ‘Fighting against international terrorism: The Latin American response’, in Andrea Bianchi (ed.), Enforcing International Law Norms Against Terrorism (Hart, 2004) 163.

8 OAS, Commitment of Mar del Plata, Second Inter-American Specialized Conference on Terrorism (24 November 1998).

9 General Assembly of the OAS, ‘Statement from the OAS General Assembly’ (Press Release, E-005/01, 11 September 2001).

10 The Inter-American Treaty of Reciprocal Assistance, adopted 9 February 1947, 21 UNTS 77 (entered into force 12 March 1948).

11 OAS Meeting of Consultation of Ministers Foreign Affairs, ‘Terrorist Threat to the Americas’ OEA/Ser.F/II.24, RC.24/RES.1/01 (21 September 2001).

12 OAS Meeting of Consultation of Ministers Foreign Affairs, ‘Strengthening Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism’ OEA/ Ser.F/II.23, RC.23/RES.1/01 (21 September 2001).

13 Inter-American Convention Against Terrorism, opened for signature 6 March 2002, OAS Treaty A-66 (entered into force 10 July 2003) (‘2002 Inter-American Convention’).

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legal response of the OAS to terrorism also needs to be situated within the framework of the Inter-American system for the promotion and the protection of human rights, itself a creation of the OAS, including the role played by the Inter-American Commission (IACHR) and Court (IACtHR).

2 THE OBLIGATIONS TO PREVENT ACTS OF TERRORISM

One of the most important achievements of the 1971 OAS Convention was its imposition on states of an explicit obligation to prevent the use of their territories for the preparation of terrorist acts to be carried out in the territory of another state. The content of this obligation, found in Articles 8(a) and (b) of the Convention, was substantially reproduced by the 1973 UN Convention and constituted the model for the subsequent anti-terrorism conventions.

As recognized by the International Law Commission, the obligation to prevent the specific offences defined in the 1973 Convention codified ‘the well-established principle of inter- national law that every State must ensure that its territory is not used for the preparation of crimes to be committed in other States’.14 Interestingly, the obligations of prevention under the 1971 OAS Convention were twofold: not only to take measures to suppress the preparation of the crimes in their territories, but also to exchange information and to take administrative measures for the purpose of protecting the relevant persons. By providing that contracting states must ‘take all measures within their powers, and in conformity with their own laws’, the OAS Convention seems to imply that a due diligence standard of conduct is required and is therefore equivalent to the requirement under the later universal anti-terrorism conventions to take ‘all practicable measures’ to prevent terrorism.15 Such formulations leave states free to determine the most appropriate measures to adopt on the basis of ‘their particular experience and requirements’.16

More emphasis on prevention and much more specific obligations characterize the 2002 Inter-American Convention Against Terrorism, adopted in the wake of 9/11. Articles 4, 5 and 6 are devoted to the fight against the financing of terrorism, while Article 7 provides that states parties shall cooperate ‘in order to improve border and customs control’ as well as establish ‘controls on the issuance of travel and identity documents’. It is noteworthy that such provi- sions build upon the obligations under both UN Security Council Resolution 1373 (2001),17 and pre-existing treaties such as the Terrorism Financing Convention18 and the Convention

14 ‘Report of the International Law Commission on the work of its twenty-fourth session’ (2 May 1972–7 July 1972) (1972) II Yearbook of the International Law Commission 219, 317.

15 See Internationally Protected Persons Convention, art 4(a); International Convention against the Taking of Hostages, adopted 17 December 1979, 1316 UNTS 205 (entered into force 3 June 1983), art 4(a); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, adopted 10 March 1988, 1678 UNTS 221 (entered into force 1 March 1992), art 13.

16 K Trapp, State Responsibility for International Terrorism (OUP, 2011) 64–5. 17 UN Security Council Res 1373 (28 September 2001) [2(g)] (reflected in article 7 of the 2002

Inter-American Convention). 18 International Convention for the Suppression of the Financing of Terrorism, adopted 10 January

2000, 2178 UNTS 197 (entered into force 10 April 2002), art 18 (‘Terrorism Financing Convention’) (reflected in the 2002 Inter-American Convention’s financing provisions).

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against Organized Crime,19 which both reflect the 40 Recommendations on Money Laundering adopted by the Financial Action Task Force (FATF).20 The regulatory regime to prevent, combat and eradicate the financing of terrorism under the 2002 Inter-American Convention includes: domestic regulation and supervision over banks and other financial institutions; measures to detect and monitor the movement across the borders of currency and bearer negotiable instruments; cooperation and information exchange through the creation of a finan- cial intelligence unit and provisions for the freezing and confiscation of any assets in use or intended to be used to finance terrorist acts.

From a legal perspective, one of the most important issues is the relationship between the obligations under the 2002 Inter-American Convention and the FATF Recommendations.21 Under Article 4(2) of the Convention, the recommendations are referred to as ‘guidelines’ for the implementation of its financial control measures.22 The choice of the term ‘guidelines’ suggests not only that the recommendations can change over time, but that the provision does not intend to render the soft law instrument legally binding. Political acts adopted within the framework of the OAS, including General Assembly resolutions23 and the CICTE Declaration of San Carlos of 2006, nonetheless underline ‘[t]he need for member states to implement the 40 plus nine recommendations of the FATF on money laundering and financing of terrorism’.24

The OAS, through the CICTE and the Inter-American Drug Abuse Control Commission (CICAD), has observer status in the Financial Action Task Force of Latin America (GAFILAT), a regional organization gathering 17 members, with the mandate of promot- ing capacity-building and cooperation in the implementation of the FATF standards.25 Interestingly, the ‘mutual evaluations’ – a peer-review process to assess the overall level of effectiveness and technical compliance in each country – show a mixed picture: whereas some members possess a ‘mature regime’,26 the legal framework in force in other countries continue to suffer from ‘deficiencies that limit the general system effectiveness’.27

The CICTE has also played an essential role in clarifying how to improve custom and border controls measures, by emphasizing, inter alia, the complementary function of the 1997

19 United Nations Convention against Transnational Organized Crime, adopted 15 November, 2225 UNTS 209 (entered into force 29 September 2003), art 7 (‘Convention against Organized Crime’) (reflected in the 2002 Convention’s financing provisions).

20 See Enrique Lagos and Timothy D Rudy, ‘Preventing, punishing, and eliminating terrorism in the western hemisphere: A post-9/11 Inter-American Treaty’ (2002–2003) 26 Fordham International Law Journal 401, 423.

21 For the latest version, see FATF, International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation, ‘FATF Recommendations’ (16 February 2012) www .fatf -gafi .org/ recommendations. The 2012 revision has thus incorporated the nine Special Recommendations on terrorist financing, initially adopted by the FATF on October 2001, within the Forty Recommendations on money laundering.

22 2002 Inter-American Convention, above n 13, art 4(2). 23 See, e.g., ‘Support for the Work of the Inter-American Committee Against Terrorism’ OAS

General Assembly Res AG/RES. 2459 (XXXIX-O/09), (4 June 2009). 24 See, e.g., OAS CICTE, Declaration of San Carlos, ‘Hemispheric Cooperation for Comprehensive

Action to Fight Terrorism’ (24 March 2006). 25 See ‘Memorando de Entendimiento sobre la fundación del GAFILAT’. 26 See e.g. FATF and GAFILAT, ‘Anti-Money Laundering and Counter-Terrorist Financing

Measures – Mexico, Fourth Round Mutual Evaluation Report’, January 2018, 3. 27 See e.g. GAFILAT, ‘Mutual Evaluation Report of the Republic of Nicaragua’, October 2017, 6.

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Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials,28 as well as the need,

to strengthen security and controls in ports, airports, border crossing points and, where appropriate, in the transportation, storage and containers of dangerous goods, in accordance with standards established by the International Civil Aviation Organization (ICAO), the International Maritime Organization (IMO), and the World Customs Organization (WCO).29

At the time of the adoption of the Inter-American Convention, the UN Security Council had not yet issued Resolution 1540 (2004), which imposes on states binding obligations to prevent the proliferation of weapons of mass destruction by non-state actors, including terrorist organizations. Domestic implementation of the measures contained therein in Latin America had been initially challenged by a lack of states’ capacity and the perceived legitimacy deficit of such quasi-legislative decision.30 For example, Brazil, at that time a member of the UN Security Council, while voting in favour of Resolution 1540, stated that ‘there was no need to put the whole resolution under the enforcement provisions of the [UN] Charter’.31 Since 2007, the OAS General Assembly has promoted a more proactive involvement of the OAS in sup- porting the full implementation of Resolution 1540 at the hemispheric level.32 The UN’s 1540 Committee too noted the OAS contribution through country-specific activities, in particular with Colombia and Mexico.33

The most recent practice of both the General Assembly34 and the CICTE reflects the shift in focus of the UN to the topic of violent extremism: the OAS member States have expressed their commitment to implement UN Security Council Resolution 2178 (2014) and 2396 (2017), by developing inter alia systems to collect biometric data, as well as ‘watchlists or databases of known and suspected terrorists, including foreign terrorist fighters’.35

The above overview of the legal initiatives taken by the OAS for the prevention of terrorism confirms the trend since 9/11 at both the universal and regional levels towards a decrease in the margin of discretion accorded to states in determining the most appropriate measures.36

28 Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, adopted 14 November 1997, 2029 UNTS 55 (entered into force 1 July 1998).

29 OAS CICTE, ‘Declaration on Strengthening Border Controls and International Cooperation in the Fight Against Terrorism’ CICTE/ DEC. 1/09 (6 March 2009) [7].

30 M Herz, ‘Resolution 1540 in Latin America and the role of the Organization of American States’, in Lawrence Scheinman (ed.), Implementing Resolution 1540: The Role of Regional Organizations (UNIDIR, 2008) 9, 18.

31 UN Security Council, Verbatim Record of the 4956th Meeting, UN Doc S/PV.4956 (28 April 2004).

32 OAS General Assembly Res AG/RES. 2333 (XXXVII-O/07) (5 June 2007). 33 1540 Committee, 2011 review of the implementation ofresolution1540 (2004), Annex to UN Doc

S/2012/79 (6 February 2012) [26]; Id., Report of the Security Council Committee established pursuant to resolution 1540 (2004), Annex to UN Doc S/2016/1038 (9 December 2016).

34 See ‘Advancing Hemispheric Security: A Multidimensional Approach’ OAS General Assembly Res AG/RES. 2925 (XLVIII-O/18) (5 June 2018).

35 OAS CICTE, ‘Declaration: Strengthening Hemispheric Efforts to Address and Counter Violent Extremism that is Conducive to Terrorism’, CICTE/DEC.1/18 (4 May 2018).

36 Cf Trapp, above n 16, 78.

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3 THE OBLIGATIONS TO SUPPRESS TERRORIST OFFENCES

A International Cooperation in Criminal Matters

One of the most contentious issues in the negotiation of the 1971 OAS Convention was the determination of the criminal offences to be covered. The majority of delegations rejected the original proposal of the Inter-American Juridical Committee to include a general definition of terrorism. Rather, the OAS member states favoured a more restrictive approach, which limited the scope of the Convention to the specific acts of ‘kidnaping, murder, and other assaults against the life or personal integrity of those persons to whom the state has the duty to give special protection according to international law, as well as extortion in connection with those crimes’.37 Thirty years later, the same debate on the desirability of a comprehen- sive definition of terrorism as a legal concept affected the initial stages of the drafting of the 2002 Inter-American Convention.38 But, once again, a pragmatic approach was taken to defining its scope of application. Such an approach was strongly supported by the US, which observed that ‘[e]fforts in the UN and elsewhere have indicated clearly that efforts to define the term are likely to result in deadlock’.39 Following the model of Article 2(1)(a) of the Terrorist Financing Convention, the definition of the offences under Article 2 of the 2002 Inter-American Convention is based on a list of the existing UN anti-terrorism treaties. It is open to a state which is not a party to a particular UN sector-specific treaty to declare that the obligations contained in the 2002 Inter-American Convention do not apply to the offences in that UN treaty. However, in line with the recommendations under Resolution 1373 (2001), states should ‘endeavour to become a party’ to existing UN anti-terrorism conventions and to ensure adequate national implementation, ‘including establishing, in [their] domestic legisla- tion, penalties for the offenses described therein’.

As for the exercise of criminal jurisdiction, the 1971 OAS Convention incorporates the classical principle of aut dedere aut judicare (extradite or prosecute), which has been included in all universal anti-terrorism treaties since the 1970 Hague Convention.40 It is significant that the combined effect of Articles 3 and 5 of the OAS Convention constitutes a variant of the principle as formulated in Article 7 of the 1970 Hague Convention. While the Hague model ‘requires the State concerned to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect’,41 under the 1971 OAS Convention ‘the obligation to submit for prosecution comes into play only when a request for extradition has been refused’.42 Such obligation is therefore subsidiary,

37 1971 OAS Convention, art 1; See J Murphy, ‘Protected persons and diplomatic facilities’, in A Evans and J Murphy (eds), Legal Aspects of International Terrorism (Lexington, 1978) 301.

38 See Lagos and Rudy, above n 20, 1629. 39 Member States’ Contributions and Comments on the Draft Inter-American Convention for the

Prevention and Elimination of Terrorism (United States), OAS Doc. OEA/Ser.G/CP/CAJP-1844/01 add. I (6 November 2001).

40 Convention for the Suppression of Unlawful Seizure of Aircraft, adopted 16 December 1970, 860 UNTS 106 (entered into force 14 October 1971), art 7 (‘1970 Hague Convention’).

41 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment), unreported (21 July 2012) [94].

42 M Cherif Bassiouni and Edward M Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (Martinus Nijhoff, 1995) 18.

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as it is conditional on a prior refusal to extradite in a given case.43 This was due to the greater degree of homogeneity within a regional organization, where it was expected that a decision on extradition would be easier than in the wider and more politically diverse international community.44

The 1971 OAS Convention had already deprived terrorists of the protection of the political offence exception, still included in certain extradition treaties. Article 2 of the Convention pro- vides that the specific criminal offences ‘shall be considered common crimes of international significance, regardless of motive’.45 Significantly, Article 11 of the 2002 Inter-American Convention reaffirmed the inapplicability of the political offence exception to requests for extradition or mutual legal assistance.

The subsequent two provisions of this treaty are then aimed at ensuring adequate imple- mentation of Resolution 1373 (2001), which calls upon states to ‘take appropriate measures [...] before granting refugee status, for the purpose of ensuring that the asylum seeker has not planned, facilitated or participated in the commission of terrorist acts’, as well as ‘to ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organ- izers or facilitators of terrorist acts’.46 During the negotiations much debate was devoted to the content of Article 13, which provides that states shall take appropriate measures to ensure that ‘asylum is not granted to any person in respect of whom there are reasonable grounds to believe that he or she has committed an offense established in the international instruments listed in Article 2 of this Convention’. The reference to ‘reasonable grounds’ allowed some delegations to overcome their reluctance to include limitations on the granting of asylum, since, in their view, such decisions should remain a state prerogative.47 Be that as it may, the OAS General Assembly has urged member states to deny safe haven to those who finance, plan, support or commit terrorists acts, in accordance with Resolution 1373 (2001), by way of full implementation of the principle of aut dedere aut judicare.48

B Human Rights Remedies and Prosecution

Finally, one should not overlook the emerging trend within the Inter-American human rights system towards the recognition of a duty to punish serious human rights violations.49 With regard to acts of violence committed by the irregular armed groups in Colombia, the Inter-American Commission on Human Rights (IACHR) has stated that:

the State may also incur international responsibility for the illicit acts of private individuals or groups when the State fails to adopt the necessary measures to prevent the acts and/or where it fails to

43 For a similar formulation see European Convention on the Suppression of Terrorism, adopted 27 January 1977, 1137 UNTS 93 (entered into force 4 August 1978).

44 Edward McWhinney, Aerial Piracy and International Terrorism (2nd edn, Martinus Nijhoff, 1987) 145.

45 1971 OAS Convention, above n 1, art 2. 46 UN Security Council Res 1373, above n 17, [3(f)–(g)]. 47 See Lagos and Rudy, above n 20, 1638. 48 ‘Extradition of and Denial of Safe Haven to Terrorists: Mechanisms for Cooperation in the Fight

against Terrorism’ OAS General Assembly Resolution AG/RES. 2249 (XXXVI-O/06) (6 June 2006). 49 Anja Seibert-Froh, Prosecuting Serious Human Rights Violations (OUP, 2009) 51.

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properly investigate and sanction those responsible for committing the acts and to provide adequate compensation to the victims.50

Given that terrorism ‘impairs the full enjoyment and exercise of human rights’,51 states have ‘the right and duty to guarantee [their] security’,52 which includes a duty to diligently protect individuals within their jurisdiction from terrorism. The IACHR has further specified that:

the State’s national and international obligation to confront individuals or groups who use violent methods to create terror among the populace, and to investigate, try, and punish those who commit such acts means that it must punish all the guilty, but only the guilty.53

This leads to the crucial further issue of the protection of fundamental rights while counter- ing act of terrorism, from the viewpoint of the American Convention on Human Rights.54 Twenty-three of the 35 OAS member states are currently parties to the American Convention, though it has a wider influence on standard-setting and practice.

4 THE ROLE OF THE INTER-AMERICAN SYSTEM IN THE PROTECTION OF HUMAN RIGHTS WHILE COUNTERING TERRORISM

Despite criticism levelled by some delegations against the inclusion of such a provision, Article 15 of the 2002 Inter-American Convention clearly states that ‘[t]he measures carried out by the states parties [...] shall take place with full respect for the rule of law, human rights, and fundamental freedoms’. Article 14 is also relevant in this context as it prohibits the furnishing of mutual legal assistance if the request is made on discriminatory grounds. Significantly, one of the original proposals to introduce a reference to the protection of human rights was submitted by Peru, a country that had experienced the excessive reaction of the authoritarian government of Alberto Fujimori against the Sendero Luminoso (Shining Path) guerrillas, whose armed insurgency began around 1980. The OAS General Assembly has reaffirmed in various resolutions that, ‘all member states have a duty to ensure that all measures adopted to combat terrorism are in compliance with their obligations under international law, in particu- lar international human rights law, international refugee law, and international humanitarian

50 Inter-American Commission on Human Rights, Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95, Doc. 7 (14 March 1997) 68, 80. See Liesbeth Zegveld, Accountability of Armed Opposition Groups in International Law (CUP, 2002) 169. More recently, see Case of the Pueblo Bello Massacre v Colombia (2006) IACtHR (Ser C) No. 140 [126], [140]; Case of the ‘Mapiripán Massacre’ v Colombia (2005) IACtHR (Ser C) No. 134 [123]; Valle Jaramillo v Colombia (2008) IACtHR (Ser C) No. 192 [76] et seq.

51 See, e.g., ‘Protecting Human Rights and Fundamental Freedoms while Countering Terrorism’ OAS General Assembly Res AG/RES. 2238 (XXXVI-O/06) (6 June 2006).

52 Neira Alegría v Peru (1995) IACtHR (Ser C) No. 20 [75]. 53 Odolfo Gerbert Asencios Lindo, Rodolfo Dynnik Asencios Lindo, Marco Antonio Ambrosio

Concha and Carlos Florentino Molero Coca v Peru (2000) IAComHR Case 11.182, Report No. 49/00 [58].

54 American Convention on Human Rights, adopted 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) (‘ACHR’).

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law’.55 Also, the CICTE and the IACHR have played an important role in assisting states and supervising their efforts to comply with their human rights obligations.56

Following a petition filed by a coalition of civil society groups in 2002, the IACHR has held various hearings and delivered a series of statements and decisions related to the situation of the detainees at Guantánamo Bay, Cuba. It has granted precautionary measures requesting the US, an OAS member state, not only to take the urgent measures necessary to have the detain- ees’ legal status determined by a competent tribunal, but also to investigate, prosecute and punish all allegations of torture and other ill treatment of detainees. In Resolutions 2/06 and 2/11, the IACHR affirmed that the failure to give effect to the requested measures had resulted in irreparable harm to the fundamental rights of the detainees and it urged the US ‘to close the Guantánamo Bay facility without delay and arrange for the trial or release of the detainees’.57

Moreover, the IACHR exercised a decisive standard-setting function in its 2002 Report on terrorism and human rights58 and subsequently through the 2006 OAS Recommendations for the Protection of Human Rights in the Fight Against Terrorism.59 Both documents set out the regime of permissible derogations from human rights in times of emergency. They also clarify the specific conduct that member states should take to ensure respect for particular human rights in the fight against terrorism, including: the right to life, with regard to the use of force and capital punishment; the right to personal liberty and security, with regard to administrative and other forms of detention; the right to humane treatment in relation to detention conditions; the right to a fair trial during criminal or other proceedings relating to terrorism; and the right to freedom of expression, assembly, association, conscience and religion.60

Such human rights standards were instrumental in the evaluation of the governments’ responses towards the widespread phenomenon of criminal organizations and gangs (maras) in Latin America, in which children and adolescents are used and abused. In particular, the IACHR expressed concern as regards the possible use of anti-terrorist laws against the alleged members of the maras.61

Both the 2002 terrorism report and the OAS Recommendations extensively rely on the previous case law of the IACtHR, particularly as regards the complex question of the rela-

55 OAS General Assembly Res AG/RES. 2238 (XXXVI-O/06) [2]. 56 IACHR, ‘Report on Terrorism and Human Rights’ OEA/Ser.L/V/II.116 – Doc.5 rev. 1 (22 October

2002); CICTE, ‘Declaration of Port-au-Spain on Strengthening Cooperation on Strategies to Sustain and Advance the Hemispheric Fight against Terrorism’ (17 February 2005); CICTE, ‘Declaration of San Carlos on Hemispheric Cooperation for Comprehensive Action to Fight Terrorism’ (24 March 2006).

57 See the documentation reproduced in Philip Alston and Ryan Goodman, International Human Rights (OUP, 2013) 415–30. Moreover, IACHR, ‘Towards the Closure of Guantánamo’, OEA/Ser.L/V/ II. – Doc.20/15 (3 June 2015). See also B Tittemore, ‘Guantánamo Bay and the precautionary measures of the Inter-American Commission on Human Rights: A case for international oversight in the struggle against terrorism’ (2006) 6 Human Rights Law Review 378.

58 See C Cerna, ‘The role and legal framework of the Inter-American Commission on Human Rights in securing justice for victims’, in Ana María Salinas de Frías, Katja Samuel, and Nigel White (eds), Counter-Terrorism: International Law and Practice (OUP, 2012) 811.

59 IACHR, ‘Recommendations for the Protection by OAS Member States of Human Rights in the Fight Against Terrorism’, CP/doc.4117/06 (8 May 2006).

60 See Diego Rodríguez-Pinzón and Claudia Martin, ‘The Inter-American Human Rights system: Selected examples of its supervisory work’, in Sarah Joseph and Adam McBeth (eds), Research Handbook on International Human Rights Law (Edward Elgar, 2010) 353, 361.

61 IACHR, ‘Report on Violence, Children and Organized Crime’, OEA/Ser.L/V/II Doc. 40/15 (11 November 2015) [419].

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tionship between international human rights law and international humanitarian law, and on respect for human rights in the following areas: criminalization of terrorism; judicial guar- antees during criminal proceedings; and the execution of the sanctions imposed.62 The OAS Recommendations emphasize that, ‘the struggle against terrorism and the protection of human rights are complementary, not antithetical, responsibilities of member states, and respect for fundamental human rights constitute an essential component of a successful campaign against terrorism’.63 In doing so, the OAS Recommendations recall what the IACtHR had already stated in the Velasquez-Rodriguez case, that:

[R]egardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends. The State is subject to law and morality. Disrespect for human dignity cannot serve as the basis for any State action.64

In this vein, the IACtHR further held that ‘the prohibition of torture is absolute and non-derogable even in the most difficult circumstances, such as a war, the threat of war and the fight against terrorism’.65

Various cases before the IACtHR dealt with the very tense situation in Peru, particularly at the beginning of the 1990s, when the Fujimori Government ordered states of emergency and took exceptional measures. The main question addressed by the IACtHR was to what extent suspected terrorists were entitled to full protection of human rights. The Court emphasized that, while terrorist violence was not justified, the Court’s ‘primordial function [was] to safe- guard human rights in all circumstances’.66 As regards Peru’s criminalization of terrorism, the IACtHR stressed that conduct ‘must be classified and described in precise and unambiguous language that narrowly defines the punishable offense, thus giving full meaning to the princi- ple of nullum crimen nulla poena sine lege praevia in criminal law’,67 as codified by Article 9 of the ACHR (namely, freedom from retrospective criminal punishment, incorporating the principle of legality or certainty in criminal offences). Under the Peruvian legislation, the crimes of terrorism and treason were in many respects similar and the vague distinction between the two offences was regarded by the IACtHR as ‘prejudicial to the defendants’ legal situation on several counts: ‘the applicable penalty, the court with jurisdiction, and the nature of the proceedings’.68 Persons charged with treason were tried by military courts characterized by summary proceedings before ‘faceless’ judges. Therefore, the IACtHR found that ‘the individual’s right to a hearing by a competent, independent and impartial tribunal previously established by law and, a fortiori, his right to due process are violated’.69

62 S Garcia Ramirez, ‘The Inter-American Court of Human Rights’ perspective on terrorism’, in Salinas de Friás et al., above n 58, 785; Scalabrino, above n 7, 191.

63 IACHR, OAS Recommendations, above n 59. 64 Velazquez-Rodriguez v Honduras (1988) IACtHR (Ser C) No. 4, [154]. See also, Neira Alegría v

Peru (1995) IACtHR (Ser C) No. 21 [75]. 65 Maritzia-Urrutia v Guatemala (2003) IACtHR (Ser C) No. 103 [89]. 66 Lori-Berenson-Mejía v Peru (2004) IACtHR (Ser C) No. 119 [91]. See also L Lixinski, ‘The

rights/security debate in the Inter-American system’, in Scheinin et al., Law and Security: Facing the Dilemmas, EUI Working Papers LAW 2009/11 (EUI, 2009) 97.

67 Castillo Petruzzi v Peru (1999) IACtHR (Ser C) No. 52 [121]. 68 Ibid, [119]. 69 Ibid, [128].

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636 Research handbook on international law and terrorism

The question of the judicial guarantees under Articles 8 and 25 of the ACHR arose in cases where the IACtHR found Peru responsible for extra-legal executions of alleged terrorist suspects.70 In other cases involving convictions for terrorism, the Court held that the state had ‘violated the right to presumption of innocence as enshrined in Article 8(2) [of the ACHR]’.71

Concern has been raised in recent years about the risk of misapplication of anti-terrorism legislation in various American countries because of the vague or imprecise character of the criminal offences, leaving ‘wide discretion to judicial officers who use them against [human rights] defenders in order to prosecute them and limit their activities’.72 In 2014 the IACtHR concluded that Chile violated the ACHR for having applied its Counter-terrorism Act against leaders and activists of the Mapuche indigenous people, in relation to offences committed in the context of the social protest. The Court found that use of stereotypes and prejudices on the reasoning of the judgments against the indigenous authorities, constituted a violation of the principle of equality and non-discrimination and the right to equal protection of the law, recognized in Article 24.73

It is significant that 1971 OAS Convention had already recognized the right of every person to enjoy the legal guarantees of due process and the right of every person deprived of their freedom to defend themselves.74 In its advisory opinion on the right to habeas corpus, the IACtHR affirmed that ‘writs of habeas corpus and of “amparo” are among those judicial remedies that are essential for the protection of various rights whose derogation is prohibited by Article 27(2) [of the ACHR] and that serve, moreover, to preserve legality in a democratic society’.75 As for the conditions of detention, the IACtHR has constantly held that impris- onment in overcrowded conditions, isolation in a small cell, with a lack of ventilation and natural light, without a bed to lie in or adequate hygiene conditions, and solitary confinement or unnecessary restrictions of visits, constitute a violation of the right to humane treatment.76 The Court therefore ordered the concerned state to immediately adopt the necessary measures to meet international standards.77

5 CROSS-BORDER USES OF FORCE TO COMBAT TERRORISM: THE COLOMBIAN RAID IN ECUADOR IN 2008

In the post-9/11 world, the threat of terrorism in Latin America has been mainly associated with the activities of armed groups in Colombia, some of which have been engaged in violence for many decades. When a car bomb exploded in a parking garage in Bogota on

70 Barrios Altos v Peru (2001) IACtHR (Ser C) No. 75; La Cantuta v Peru (2006) IACtHR (Ser C) No. 162.

71 García-Asto and Ramírez-Rojas v Peru (2005) IACtHR (Ser C) No. 137 [160]. 72 IACHR, ‘Criminalization of the Work of Human Rights Defenders’ OEA/Ser.L/V/II - Doc. 49/15

(31 December 2015). 73 Norín Catrimán et al v Chile (2014) IACtHR (Ser C) No. 279 [228]. 74 1971 OAS Convention, arts 4 and 8(c). 75 Habeas Corpus in Emergency Situations (Arts. 27(2) and 7(6) of the American Convention on

Human Rights) (Advisory Opinion) (1987) IACtHR (Ser A) OC-8/87 No. 8. 76 Cf e.g., Case of the Miguel Castro-Castro Prison v Peru (2006) IACtHR (Ser C) No. 160 [315]. 77 See, e.g., Lori-Berenson-Mejía v Peru, above n 66, [241]. See JM Pasqualucci, The Practice and

Procedure of the Inter-American Court of Human Rights (2nd edn, CUP, 2012) 222.

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The legal response of the OAS in combating terrorism 637

February 2003, causing the death of 35 people, the Security Council condemned the attack as an act of terrorism in Resolution 1465 (2003). The OAS Permanent Council also adopted a Resolution in which explicit reference was made to ‘the commitment of the member states to step up actions for the strict observance of the provisions of United Nations Security Council Resolution 1373 and the Inter-American Convention Against Terrorism’.78

The renewed escalation in the confrontation between the government of Colombia and a guerrilla movement, the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia or FARC), reached one of its peaks on 1 March 2008. Colombian armed forces entered the territory of Ecuador, in the province of Sucumbíos, without the express consent of the Ecuadorian Government, to carry out an operation against members of FARC who maintained camps on the Ecuadorian side of the border. The Colombian Foreign Ministry had initially declared that Colombia had acted according to the principle of self-defence.79

The UN Security Council did not condemn the raid, however the OAS Permanent Council affirmed that the operation constituted ‘a violation of the sovereignty and territorial integrity of Ecuador and of principles of international law’.80 Two days later, the heads of state or gov- ernment of the Rio Group denounced ‘a violation of the territorial integrity of Ecuador,’ but at the same time noted, with satisfaction, ‘the full apology’ offered by the Colombian President Alvaro Uribe.81 The Colombian incursion in Ecuador has been recognized as an important instance of state practice in ascertaining whether there exists a post-9/11 right of self-defence against attacks by non-state actors that are not attributable to a state.82 However, far from being conclusive, the incident has been equally invoked in support of opposing views on the scope of the right to self-defence under Article 51 of the UN Charter.83

6 CONCLUSION

In contrast to past decades, and unlike certain other regions of the world, the threat of a trans- national terrorist attack is now considered to be low for most countries in the American hemisphere.84

The OAS portrays itself, like any other regional organization, as a ‘valuable partner in the global fight against terrorism’: it has ‘a deeper understanding of the dynamics and realities of

78 Permanent Council of the OAS Resolution OEA/Ser.G CP/RES. 837 (1354/03) (12 February 2003).

79 See Comunicado No. 081 del Ministerio de Relaciones Exteriores de Colombia (2 March 2008) http:// web .presidencia .gov .co/ comunicados/ 2008/ marzo/ 81 .html.

80 Permanent Council of the OAS Resolution CP/RES. 930 (1632/08) (5 March 2008). 81 Declaration of the Heads of State and Government of the Rio Group on the Recent Events between

Ecuador and Colombia (7 March 2008). 82 See S Murphy, ‘Protean jus ad bellum’ (2009) 27 Berkeley Journal of International Law 22, 40; C

Tams, ‘The use of force against terrorists’ (2009) 20 European Journal of International Law 359. 83 Cf e.g., Tom Ruys, ‘Armed attack’ and Article 51 of the UN Charter: Evolutions in Customary

Law and Practice (CUP, 2010) 462–4; A Deeks, ‘“Unwilling or unable”: Toward a normative framework for extraterritorial self-defense’ (2012) 52 Virginia Journal of International Law 483, 537ff.

84 See M Sullivan, ‘Latin America: Terrorism issues’ CRS Report for US Congress (March 2012).

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638 Research handbook on international law and terrorism

their Member States’, and is instrumental ‘in strengthening implementation of international obligations by promoting buy in and a sense of ownership by governments’.85

After the terrorist attacks in New York and Washington DC, the drafting of the 2002 Inter-American Convention Against Terrorism reflected the pragmatic approach proposed by the US and Canada at the time of negotiations. Instead of adopting a comprehensive con- vention, OAS member states focused on the complementary function of a new treaty, as an ‘added value’ in the implementation of both the existing sector-specific international treaties and the relevant Security Council resolutions, and in augmenting the limited (but nonetheless influential) 1971 OAS Convention dealing with threats to protected persons. It is not therefore by chance that the global survey of the implementation of Resolution 1373 (2001) by member states, prepared by the UN Counter-Terrorism Committee (CTC), recognized that:

The South American States have made tangible progress in implementing a variety of counter-terrorism measures in compliance with resolution 1373 (2001). They have enacted counter-terrorism legisla- tion, and most have ratified at least 12 of the international counter-terrorism instruments. Efforts have been made to further strengthen regional coordination and cooperation.86

The importance attached to preventing the financing of terrorism by both the 2002 Inter-American Convention and, at an operational level, the CICTE has achieved practical results. All Latin American states have adopted anti-money-laundering legislation and set up financial intelligence units. In terms of future areas for improvement, the CTC has strongly recommended that Latin American states improve their monitoring of the non-profit sector and alternative remittance systems, and detection of the illegal movement of cargo, cash and other monetary instruments.

In the post-9/11 era, the Inter-American system has taken a firm position as regards the protec- tion of human rights while countering terrorism. Already in 2002, the IACHR had stressed that:

any measures taken by member states to restrict these rights must comply strictly with the procedural and substantive requirements governing restriction clauses under international human rights instru- ments. This requires that any restrictions be necessary for the security of all and in accordance with the just demands of a democratic society and must be the least restrictive of possible means to achieve a compelling public interest.87

85 ‘Opportunities and challenges in strengthening international cooperation through the sharing of information, expertise and resources’ Remarks by AA Treppel, Executive Secretary, Inter-American Committee Against Terrorism (CICTE), UN High-Level Conference on Counter-Terrorism, New York (28 June 2018) http:// www .un .org/ en/ counterterrorism/ hlc/ statements .shtml.

86 UN Counter-terrorism Committee, Global survey of the implementation of Security Council reso- lution 1373 (2001) by Member States, Annex to UN Doc S/2011/463 (1 September 2011) 54.

87 Report on Terrorism and Human Rights, above n 56, Executive Summary, [34].

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