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The Inter-American Commission on Human Rights and international humanitarian law: A comment on the Tablada Case

Published online by Cambridge University Press:  23 November 2010

Liesbeth Zegveld
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Extract

On 30 October 1997, the Inter-American Commission on Human Rights (hereafter the Commission) adopted its report in the so-called Tablada case. The case concerned an attack launched by 42 armed persons on military barracks of the national armed forces in 1989 at La Tablada, Argentina. The attack precipitated a battle lasting approximately 30 hours and resulting in the deaths of 29 of the attackers and several State agents. The surviving attackers filed a complaint with the Commission alleging violations by State agents of the American Convention on Human Rights (hereafter the American Convention) and of rules of international humanitarian law. In its report the Commission examined in detail whether it was competent to apply international humanitarian law directly. It answered this question in the affirmative.

Type
50th anniversary of the Universal Declaration of Human Rights: Human rights and international humanitarian law
Information
International Review of the Red Cross (1961 - 1997) , Volume 38 , Special Issue 324: 1948—1998 Human rights and international humanitarian law , September 1998 , pp. 505 - 511
Copyright
Copyright © International Committee of the Red Cross 1998

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References

The author would like to thank Frits Kalshoven, Menno Kamminga, Sam Zia-Zarifi and Andre Nollkaemper for their helpful comments on matters discussed in this article.

1 The Inter-American Commission of Human Rights (IACHR) is established under Article 33 of the American Convention on Human Rights, 9 I.L.M. 673 (1970).

2 IACHR Report No. 55/97, Case No. 11.137, Argentina, OEA/Ser/L/V/I1.97, Doc. 38, October 30, 1997 (hereafter IACHR Report).

3 IACHR Report, p. 6, para. 16.

4 IACHR Report, p. 43, para. 157. The Commission concluded that Argentina did not violate the applicable provisions of international humanitarian law, IACHR Report, pp. 92 and 93, para. 327 and 328.

5 IACHR Report, p. 44, para. 161.

6 Along the same lines, the International Court of Justice stated: “[W]hether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant [of Civil and Political Rights], can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.” - Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996, p. 240.

7 Hampson, F., “Rules on the Conduct of Military Operations in Non-International Armed Conflicts”, Humanitäres Völkerrecht, Nr. 1, 1998, pp. 70 and 71.Google Scholar

8 Eur. Court HR, Akdivar and others v. Turkey, Judgment of 16 September 1996, Reports of Judgments and Decisions, 1996–IV.

9 The Court condemned Turkey for the deliberate burning of the applicants' homes and their contents which constituted an illegal interference with the right to respect for family lives and homes laid down in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, lot: cit., para. 88. Article 8 is derogable under Article 15 of the European Convention in time of public emergency.

10 IACHR Report, pp. 44 and 45, para. 161.

11 Article 1, Statute of the Inter-American Commission on Human Rights, Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/II.92, doc. 31 rev. 3, 3 May 1996, p. 121; The American Declaration of the Rights and Duties of Man, 2 May 1948, ibid., p. 17.

12 IACHR Report, p. 44, para. 161.

13 IACHR Report, p. 43, para. 158, note 19.

14 Bothe, M., Partsch, K. & Solf, W., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 1982, p. 619 Google Scholar , cited in the Commission's Report, p. 44, para. 160.

15 See Van Hoof, G.J.H. & de Vey Mestdagh, K., “Mechanisms of International Supervision”, in van Dijk, P. (Ed.), Supervisory Mechanisms in International Economic Organizations, Kluwer, Deventer, 1984, p. 10 Google Scholar . which emphasizes the importance of State consent with regard to the creation of rules of supervision.

16 IACHR Report, p. 46. para. 165.

17 Fitzpatrick, J. M., Human Rights in Crisis, University of Pennsylvania Press, Philadelphia, 1994, pp. 59 CrossRefGoogle Scholar and 60; Oraa, J., Hitman Rights in States of Emergency in International Law, Clarendon Press, Oxford, 1992, p. 195.Google Scholar

18 An example is provided by El Salvador, which lifted the state of emergency temporarily in 1987 despite the ongoing civil war, Annual Report of the Inter-American Commission on Human Rights 1987–1988, OEA/Ser.L/V/II.74, Doc. 10 rev. 1, 16 September 1988, p. 294.

19 Oraá, loc. cit. (note 18), pp. 190 and 191.

20 “Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 of the American Convention on Human Rights), Advisory Opinion OC-1/82 of 24 September 1982, Inter-Am.Ct.H.R. (Ser. A) No. 1. at para. 42.

21 The competence assumed in the Tablada case and the likelihood that the Commission will use this competence in the future raise intriguing questions. One question is whether the Commission will extend its new mandate to the other party to the armed conflict, the armed opposition group. In the Tablada case, while observing that Argentine military personnel and the armed opposition had the same duties under international humanitarian law, the Commission limited its application to the conduct of the Argentine State. Application to only one party to the conflict, the State, may be considered as contradicting a basic principle of humanitarian law, according to which both parties to the conflict have equal rights and duties. Future cases may show whether the Commission is willing and able to incorporate this basic principle of international humanitarian law.

22 For instance, in an inter-state complaint against Turkey, Cyprus invoked international humanitarian law before the European Commission on Human Rights (4 EHRR 482 at 552, 553 (1976) Commission Report). However, the European Commission did not examine this point. See on this subject Ch. M. Cerna, “Human Rights in Armed Conflict: Implementation of International Humanitarian Law Norms by Regional Intergovernmental Human Rights Bodies”, in: Kalshoven, F., Sandoz, Y. (Eds.), Implementation of International Humanitarian Law, Martinus Nijhoff Publishers, Dordrecht, 1989, pp. 31–67 Google Scholar ; application of humanitarian law by the United Nations, see Gasser, H. P., “Ensuring Respect for the Geneva Conventions and Protocols: the Role of Third States and the United Nations”, in Fox, H., Meyer, M.A. (Eds.), Effecting Compliance, The British Institute of International and Comparative Law, London, 1993, pp. 15–49.Google Scholar