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The Duty to Investigate Violations of the Right to Life in Armed Conflicts in the Jurisprudence of the Inter-American Court of Human Rights

  • Giovanna Maria Frisso (a1)

Abstract

This article explores how the Inter-American Court of Human Rights (the Court) has dealt with allegations of violations of the right to life during an armed conflict and, in particular, how it has dealt with allegations of violation of the obligation to investigate such allegations. The article notes that international humanitarian law (IHL) was initially used by the Court to strengthen the general obligations of states to protect the rights guaranteed by the American Convention on Human Rights (ACHR). Later IHL began informing the interpretation of specific rights. This change has been more significant in relation to the interpretation of the right to life under the ACHR than in the examination of state compliance with the right of access to justice, which encompasses the duty to investigate allegations of violations of the right to life during an armed conflict. The analysis of the Court's jurisprudence demonstrates that the different ways in which the Court has addressed the relationship between IHL and international human rights law (IHRL) have been informed by its primary effort to ensure that the interpretation of the ACHR provides the widest protection possible to individual rights.

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1 Dinstein, Yoram, ‘Terrorism as an International Crime’ (1989) 19 Israel Yearbook on Human Rights 55, 63.

2 Droege, Cordula, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2007) 40 Israel Law Review 310, 337.

3 The application of IHL during an armed conflict and of IHRL at all times is at the centre of the debates that consider their co-applicability in accordance with the lex specialis argument. As a result of the difference in focus of IHL and IHRL, IHL has been said to bind the parties to the conflicts, both state authorities and non-state actors, while IHRL has been understood to bind only states. Traditionally, the extraterritorial application of IHL and IHRL has also been conceived in different terms. An important distinction in this article concerns the fact that IHRL applies equally to all persons within the jurisdiction of a state, disregarding the IHL distinction between combatants and civilians or those hors de combat. Various articles cited in this work articulate some of the differences between IHL and IHRL. To further explore this aspect see ICRC Advisory Service on International Humanitarian Law, ‘International Humanitarian Law and International Human Rights Law: Similarities and Differences’, January 2003, https://www.icrc.org/eng/assets/files/other/ihl_and_ihrl.pdf.

4 See, eg, Cerna, Christina M, ‘The History of the Inter-American System's Jurisprudence as regards Situations of Armed Conflict’ (2011) 2 International Humanitarian Legal Studies 3, 710; Scobbie, Iain, ‘Principle or Pragmatics? The Relationship between Human Rights Law and the Law of Armed Conflict’ (2010) 14 Journal of Conflict and Security Law 449; Olson, Laura M, ‘Practical Challenges of Implementing the Complementarity between International Humanitarian and Human Rights Law – Demonstrated by the Procedural Regulation of Internment in Non-International Armed Conflict’ (2009) 40 Case Western Reserve Journal of International Law 437; Milanović, Marko, ‘Norm Conflict in International Law: Whither Human Rights?’ (2009) 20 Duke Journal of Comparative and International Law 69; Marko Milanović, ‘Norm Conflicts, International Humanitarian Law and Human Rights Law’, SSRN, 5 January 2010, https://ssrn.com/abstract=1531596; Borelli, Silvia, ‘The (Mis)-Use of General Principles of Law: Lex Specialis and the Relationship between International Human Rights Law and the Laws of Armed Conflict’ in Pineschi, Laura (ed), General Principles of Law: The Role of the Judiciary (Springer 2015) 265.

5 It is acknowledged that some states dispute the concurrent application of IHL and IHRL in an armed conflict. Sassòli and Olson point out that these states ‘have never specifically done so with regard to non-international armed conflicts on their own territory’: Sassòli, Marco and Olson, Laura M, ‘The Relationship between International Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ (2008) 90 International Review of the Red Cross 599, 603.

6 van den Herik, Larissa and Duff, Helen, ‘Human Rights Bodies and International Humanitarian Law: Common but Differentiated Approaches’ in Buckley, Carla M, Donald, Alice and Leach, Philip (eds), Towards Convergence in International Human Rights Law: Approaches of Regional and International Systems (Brill Nijhoff 2016) 366, 384.

7 American Declaration on the Rights and Duties of Man (entered into force April 1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 Rev. 9 (2003), available at: http://www.cidh.oas.org/basicos/english/basic2.american%20declaration.htm.

8 American Convention on Human Rights, Pact of San José, Costa Rica (entered into force 18 July 1978) 1144 UNTS 123; OAS Treaty Series No 36 (ACHR).

9 The Commission continues to be responsible for assessing the observance of human rights by OAS member states that did not ratify the ACHR or did not accept the jurisdiction of the Court, in accordance with arts 18 and 19 of the Statute of the Inter-American Commission of Human Rights, adopted by the General Assembly of the OAS, La Paz (Bolivia), October 1979, Resolution 448, https://www.oas.org/en/iachr/mandate/basics/statute-inter-american-court-human-rights.pdf.

10 The 20 states over which the Court may exercise its contentious jurisdiction are: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay.

11 Case of Velásquez Rodríguez v Honduras (1988) Inter-Am Ct HR, Judgment of 29 July 1988, (Ser C) No 4.

12 The Commission may, when the conditions are met, refer cases to the Court only with respect to those states that have ratified the ACHR and have previously recognised the contentious jurisdiction of the Court, unless a state accepts jurisdiction expressly for a specific case. The focus of the article indicates, therefore, that situations that might involve, for instance, Canada and the United States will not be discussed.

13 On the work of the Commission, see Cerna (n 4) 52; Moir, Lindsay, ‘Law and the Inter-American Rights System’ (2003) 25 Human Rights Quarterly 182.

14 In relation to the changes in the approach of the Commission regarding the co-applicability of IHL and IHRL, see Cerna (n 4). The changes in the approach of the Court are discussed by Alonso Gurmendi Dunkelberg, ‘There and Back Again: The Inter-American Human Rights System's Approach to International Humanitarian Law’, SSRN, 8 March 2017, https://ssrn.com/abstract=2929570.

15 In accordance with the ACHR, the Commission is responsible for the initial processing and admissibility of cases, and transmits those deemed admissible to the Court for a decision on the merits.

16 It is important to note that the duty to investigate has been related to the right to truth in the jurisprudence of the Court. Nonetheless, this relationship will not be explored in this article, as the right to truth is not provided for in the ACHR. As stated by the Court, it corresponds with ‘a concept that is being developed in doctrine and case law’: Case of Castillo-Páez v Peru (1997) Inter-Am Ct HR, Judgment of 3 November 1997, (Ser C) No 34, [86].

17 The impunity context that characterised the first cases brought before the Court is discussed in Abramovich, Victor, ‘From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter-American Human Rights System’ (2009) 11 SUR – International Journal on Human Rights 7; González, Felipe, ‘The Experience of the Inter-American Human Rights System’ (2009) 40 Victoria University of Wellington Law Review 103; Roht-Arriaza, Naomi, ‘State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law’ (1990) 78 California Law Review 451, 453–58; Neuman, Gerald L, ‘Import, Export, and Regional Consent in the Inter-American Court of Human Rights’ (2008) 19 European Journal of International Law 101, 108.

18 Antkowiak, Thomas M, ‘Truth as Right and Remedy in International Human Rights Experiences’ (2002) 23 Michigan Journal of International Law 977, 980. The consequence of the expansion of the military justice mentioned by Antkowiak relates to the characteristics of military justice in Latin America, as explained by Méndez, Juan E and Mariezcurrena, Javier, ‘Accountability for Past Human Rights Violations: Contributions of the Inter-American Organs of Protection’ (1999) 26 Social Justice 84, 86.

19 Case of Bámaca-Velásquez v Guatemala (2000) Inter-Am Ct HR, Judgment of 25 November 2000, (Ser C) No 70, [211]; Case of the Ituango Massacres v Colombia (2006) Inter-Am Ct HR, Judgment of 1 July 2006, (Ser C) No 148, [299].

20 Impunity has been defined by the Court as ‘the total lack of investigation, prosecution, capture, trial and conviction of those responsible for violations of the rights protected by the American Convention, in view of the fact that the State has the obligation to use all the legal means at its disposal to combat that situation’: Case of Paniagua Morales and Others v Guatemala (1998) Inter-Am Ct HR, Judgment of 8 March 1998, (Ser C) No 37, [173]. The permanence of this context was reiterated in subsequent judgments of the Court, such as Bámaca-Velásquez v Guatemala, ibid [211]. The Court has indicated that the investigations have to aim at the identification of suspects: Case of Juan Humberto Sánchez v Honduras (2003) Inter-Am Ct HR, Judgment of 7 June 2003 (Ser C) No 99 [83]. See also Case of Yarce and Others v Colombia (2016) Inter-Am Ct HR, Judgment of 22 November 2016, (Ser C) No 325, [280]; Case of the Las Dos Erres Massacre v Guatemala (2009) Inter-Am Ct HR, Judgment of 24 November 2009, (Ser C) No 211, [234].

21 Velásquez Rodríguez v Honduras (n 11) [165]–[166].

22 ibid [166] (emphasis added). A similar statement is found in Case of the Massacres of El Mozote and Nearby Places v El Salvador (2012) Inter-Am Ct HR, Judgment of 25 October 2012, (Ser C) No 252 (El Mozote v El Salvador), [144].

23 Velásquez Rodríguez v Honduras (n 11) [176].

24 Tomuschat believes that only where the life and personal integrity or the freedom of a victim has been injured can it be deemed to be compulsory to institute criminal proceedings: Tomuschat, Christian, ‘Reparation for Victims of Grave Human Rights Violations’ (2002) 10 Tulane Journal of International and Comparative Law 157, 167. See Orentlicher, Diane F, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal 2537, 2578; Higgins, Noelle and O'Flaherty, Michael, ‘International Human Rights Law and “Criminalization”’ (2015) 58 Japanese Yearbook of International Law 45.

25 El Mozote v El Salvador (n 22) [244].

26 ibid [242].

27 ibid [197]; Velásquez Rodríguez v Honduras (n 11) [181].

28 Antkowiak, Thomas M, ‘Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond’ (2007–08) 46 Columbia Journal of Transnational Law 352, 388–89. Exploring the relationship between the duty to investigate and the duty to punish as a reparative measure, see Basch, Fernando Felipe, ‘The Doctrine of the Inter-American Court of Human Rights regarding States’ Duty to Punish Human Rights Violations and Its Dangers’ (2007) 23 American University of International Law Review 195.

29 The signature of the 1992 Accords of Chapultepec is considered the end point of the armed conflict.

30 In relation to the Peruvian armed conflict, the time frame indicated by the Peruvian Truth and Reconciliation Commission is considered – i.e. the period between 1980 and 2000: Truth and Reconciliation Commission, ‘Final Report’, Peru, 2003, Vol 1, Ch 1, 1, 53. This period has been questioned: see, eg, Alonso Gurmendi Dunkelberg, ‘The Era of Terrorism: the Peruvian Armed Conflict and the Temporal Scope of Application of International Humanitarian Law’, SSRN, 3 March 2017, https://ssrn.com/abstract=2927155.

31 Case of Cruz Sánchez and Others v Peru (2015) Inter-Am Ct HR, Judgment of 17 April 2015, (Ser C) No 292.

32 The Court strategically refers to its previous judgments when reasserting its jurisprudence. In this article, references will mainly indicate one case and, when possible, one of the cases that will be examined in more detail.

33 El Mozote v El Salvador (n 22) [248].

34 Case of the Afro-Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v Colombia (2013) Inter-Am Ct HR, Judgment of 20 November 2013, (Ser C) No 270 (Cacarica v Colombia), [440].

35 Velásquez Rodríguez v Honduras (n 11) [177]; El Mozote v El Salvador (n 22) [248]; Cruz Sánchez v Peru (n 31) [351].

36 Ituango Massacres v Colombia (n 19) [296].

37 Cacarica v Colombia (n 34) [372].

38 ibid [376]; Ituango Massacres v Colombia (n 19) [323].

39 See Abramovich (n 17) 9, 23.

40 Since the judgment in Castillo Petruzzi v Peru in 1999, the Court's rejection of military jurisdiction has been continuously articulated in the jurisprudence of the Court: Case of Castillo Petruzzi and Others v Peru (1999) Inter-Am Ct HR, Judgment of 30 May 1999, (Ser C) No 52. See Luiz Octavio Rabelo Neto, ‘Competência da Justiça Militar da União para julgamento de civis: compatibilidade constitucional e com o Sistema interamericano de proteção de direitos humanos’ [‘The Competence of Military Courts to Judge Civilians: Compatibility with the Constitution and the Inter-American System of Human Rights’] (2016) 25(2) Revista de Doutrina e Jurisprudência do Superior Tribunal Militar 53, 120 (in Portuguese).

41 Case of Santo Domingo Massacre v Colombia (2012) Inter-Am Ct HR, Judgment of 20 November 2012, (Ser C) No 259, [158].

42 Case of Valle Jaramillo and Others v Colombia (2008) Inter-Am Ct HR, Judgment of 27 November 2008, (Ser C) No 192, [101].

43 Velásquez Rodríguez v Honduras (n 11) [173]; Santo Domingo v Colombia (n 41) [156]; Cacarica v Colombia (n 34) [370].

44 The term conflicto armado [armed conflict] was found in five cases and the term derecho internacional humanitario [international humanitarian law] was found in eleven other cases. The search had to be carried out in Spanish as no cases were found when the search was in English. The term conflicto armado was found in Case of Rochac Hernández and Others v El Salvador (2014) Inter-Am Ct HR, Judgment of 14 October 2014, (Ser C) No 285; Case of Peasant Community of Santa Barbara v Peru (2015) Inter-Am Ct HR, Judgment of 1 September 2015, (Ser C) No 299; Case of Tenorio Roca and Others v Peru (2016) Inter-Am Ct HR, Judgment of 22 June 2016, (Ser C) No 314; Yarce v Colombia (n 20); and Case of the Members of the Village of Chichupac and Neighbouring Communities of the Municipality of Rabinal v Guatemala (2016) Inter-Am Ct HR, Judgment of 30 November 2016, (Ser C) No 328. The term derecho internacional humanitario was found in Cacarica v Colombia (n 34); Santo Domingo v Colombia (n 41); Case of Contreras and Others v El Salvador (2011) Inter-Am Ct HR, Judgment of 31 August 2011, (Ser C) No 232; Las Dos Erres v Guatemala (n 20); Case of Zambrano Vélez and Others v Ecuador (2007) Inter-Am Ct HR, Judgment of 4 July 2007, (Ser C) No 166; Case of the Miguel Castro Castro Prison v Peru (2008) Inter-Am Ct HR, Judgment of 2 August 2008, (Ser C) No 181; Case of Vargas Areco v Paraguay (2006) Inter-Am Ct HR, Judgment of 26 September 2006, (Ser C) No 155; Ituango Massacres v Colombia (n 19); Case of the Mapiripán Massacre v Colombia (2005) Inter-Am Ct HR, Judgment of 15 September 2005, (Ser C) No 134; Case of Las Palmeras v Colombia (2001) Inter-Am Ct HR, Judgment of 6 December 2001, (Ser C) No 90; Bámaca-Velásquez v Guatemala (n 19). The Case of Zambrano Vélez v Ecuador does not refer to an armed conflict context and therefore will not be considered in this article.

45 The determination of the Commission has adhered to the orientation of the International Committee of the Red Cross (ICRC), in accordance with which the qualification of a situation made by the parties to a conflict does not by itself lead to the categorisation of that situation as an armed conflict. Such qualification is, at most, one of the various factual aspects to be taken into account: Burgorgue-Larsen, Laurence and de Torres, Amaya Ubeda, ‘War in the Jurisprudence of the Inter-American Court of Human Rights’ (2011) 33 Human Rights Quarterly 148, 153.

46 Reference to the Truth Commissions’ reports does not focus on the characterisation of the situation: see, eg, Las Dos Erres v Guatemala (n 20) [70]; El Mozote v El Salvador (n 22) [3].

47 In the cases against Colombia, the Court has usually made reference to the decision of the Colombian Constitutional Court as well as Colombia's own acknowledgement of the existence of an armed conflict: Ituango Massacres v Colombia (n 19) [90]; Mapiripán Massacre v Colombia (n 44) [114].

48 Salmon, Elizabeth, ‘Institutional Approach between IHL and IHRL: Current Trends in the Jurisprudence of the Inter-American Court of Human Rights’ (2014) 5 Journal of International Humanitarian Legal Studies 152.

49 Dunkelberg (n 30).

50 ibid [12].

51 Compare Cruz Sánchez v Peru (n 31) with Castillo Petruzzi v Peru (n 40).

52 Santo Domingo v Colombia (n 41) [21].

53 Las Palmeras v Colombia (n 44) [32].

54 Cruz Sánchez v Peru (n 31) [217]. The original text reads: ‘[R]esulta incuestionable que las disposiciones de la Convención Americana relativas al derecho a la vida mantienen su vigencia y aplicabilidad en situaciones de conflicto armado. … [E]ste derecho pertenece al núcleo de derechos convencionales no susceptibles de suspensión en ninguna circunstancia, ni aún en aquellas consideradas como las más apremiantes para la independencia o seguridad de un Estado parte. … La Corte ya ha afirmado que este hecho – la existencia de un conflicto armado interno al momento que sucedieron los hechos del presente caso – en vez de exonerar al Estado de sus obligaciones de respetar y garantizar los derechos de las personas, lo obligaba a actuar en manera concordante con dichas obligaciones.’

55 Case of Juan Carlos Abella v Argentina (1997) Inter-Am Comm HR, Merits, 18 November 1997, OEA/SER.L/V/II.98, Doc 6 rev, [147]–[148] (La Tablada v Argentina). For a more detailed analysis of this case see Zegveld, Liesbeth, ‘The Inter-American Commission on Human Rights and International Humanitarian Law: A Comment on the Tablada Case’ (1998) 38(324) International Review of the Red Cross 505. The Commission has also mentioned IHL in its country reports: Cerna (n 4) 11–25.

56 Despite the brief duration of the attacks, the Commission understood that the violent acts at the La Tablada military base on 23–24 January 1989 could not be properly characterised as a situation of internal disturbances. It explained: ‘What happened there was not equivalent to large scale violent demonstrations, students throwing stones at the police, bandits holding persons hostage for ransom, or the assassination of government officials for political reasons – all forms of domestic violence not qualifying as armed conflicts. What differentiates the events at the La Tablada base from these situations are the concerted nature of the hostile acts undertaken by the attackers, the direct involvement of governmental armed forces, and the nature and level of the violence attending the events in question. More particularly, the attackers involved carefully planned, coordinated and executed an armed attack, i.e., a military operation, against a quintessential military objective – a military base. The officer in charge of the La Tablada base sought, as was his duty, to repulse the attackers, and President Alfonsín, exercising his constitutional authority as Commander-in-Chief of the armed forces, ordered that military action be taken to recapture the base and subdue the attackers’. Therefore, the attack, in its view, triggered the application of the provisions of Common Article 3, as well as other rules relevant to the conduct of internal hostilities: La Tablada v Argentina (n 55) [154]–[155].

57 ibid [159]. The Commission also defended the application of international humanitarian law in the Case of Las Palmeras v Colombia (2000) Inter-Am Ct HR, Judgment of 4 February 2000 (Preliminary Objections), (Ser C) No 67, [28]–[29].

58 This case was not submitted to the Court by the Commission.

59 Case of Suárez Peralta v Ecuador (2013) Inter-Am Ct HR, Concurring Opinion of Judge Eduardo Ferrer Mac-Gregor Poisot of 21 May 2013, (Ser C) No 261, [68].

60 Las Palmeras v Colombia (n 57) [12].

61 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85; Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (Common Article 3).

62 The reasoning of the Commission is summarised in Las Palmeras v Colombia (n 57) [29].

63 Las Palmeras v Colombia (n 57) [33].

64 ibid [33].

65 ibid [32]–[34]; Bámaca-Velásquez v Guatemala (n 19) [209].

66 (n 61).

67 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II).

68 Only two of the cases identified by searching against the term conflicto armado refer to IHL: Rochac Hernández v El Salvador (n 44) and Yarce v Colombia (n 20). In none of the cases is IHL considered in the determination of a violation of the right to life. In the list of cases that resulted from searching against the term derecho internacional humanitário two cases do not refer to IHL in examining a violation of the right to life: Contreras v El Salvador (n 44); Vargas Areco v Paraguay (n 44); Ituango Massacres v Colombia (n 19).

69 They are Cacarica v Colombia (n 34); Santo Domingo v Colombia (n 41); Las Dos Erres v Guatemala (n 20); Miguel Castro Castro Prison v Peru (n 44); Mapiripán Massacre v Colombia (n 44); Las Palmeras v Colombia (n 44), Bámaca-Velásquez v Guatemala (n 19).

70 Salmon mentions the existence of an earlier phase, a phase of indifference, in which the existence of an armed conflict was not taken into account by the Court: Salmon (n 48) 161.

71 Mapiripán Massacre v Colombia (n 44) [115].

72 ibid [114].

73 Case of the Miguel Castro Castro Prison v Peru (2008) Inter-Am Ct HR, Concurring Opinion of Judge AA Cançado Trindade, 25 November 2006, (Ser C) No 160, [37].

74 ibid [36].

75 Antônio Augusto Cançado Trindade, El Derecho Internacional de los Derechos Humanos en el siglo XXI (Editorial Jurídica de Chile 2006) 185–89.

76 Dunkelberg (n 14) 17.

77 de Wet, Erika and Vidmar, Jure, ‘Conflicts between International Paradigms: Hierarchy versus Systemic Integration’ (2013) 2 Global Constitutionalism 196, 215.

78 Federico Lenzerini, ‘The Interface of Human Rights Law and International Humanitarian Law in the Regulation of Private Military and Security Companies’, EUI Working Papers, PRIV-WAR project, 2010, 14. See, eg, Case of Plan de Sánchez Massacre v Guatemala (2004) Inter-Am Ct HR, Separate Opinion of Judge Cançado Trindade, 29 April 2004, (Ser C) No 105, [18].

79 Santo Domingo v Colombia (n 41) [24]. According to Dunkelberg, this change can be perceived from 2012 onwards. In his words, ‘before 2012, the Court traditionally refrained from applying international humanitarian law as per its precedent in Las Palmeras’: Dunkelberg (n 30) 11. With regard to the interpretation of the right to life, the year 2012 can indeed be identified as a turning point in the jurisprudence of the Court.

80 Santo Domingo v Colombia (n 41) [24].

81 Cruz Sánchez v Peru (n 31) [272, 273].

82 Salmon (n 48) 175.

83 Cruz Sánchez v Peru (n 31) [277].

84 ibid [247]–[248].

85 ibid [277]. These criteria were, in the Court's opinion, in accordance with international customary humanitarian law.

86 ibid [316]; Common Article 3 (n 61)

87 Santo Domingo v Colombia (n 41) [213].

88 ibid [216], [229].

89 ibid [215].

90 ibid.

91 Salmon (n 48) 164.

92 ibid 170.

93 ibid. It is interesting to note that the first use of IHL mentioned by Salmon was acknowledged by the Court in Case of Suárez Peralta v Ecuador (n 59) [68]. See also Lenzerini (n 78) 16. The principle of proportionality was considered in relation to the machine gun attack that took place soon after the launching of the cluster bomb. Examining the pilots’ exchanges, the Court concluded that ‘the aircraft pilots expressed doubts as to whether or not the people they were observing moving on the highway were civilians’. Nonetheless, ‘they still used their weapons (in this case machine guns), in manifest lack of concern for the life and integrity of these people, and in non-compliance with the principle of distinction. In addition, even in the hypothetical case that there could be members of the guerrilla forces among the civilian population, the military advantage sought would not have been so great that it could justify eventual civilian deaths and injuries, so that, in that hypothesis, these actions would also have affected the principle of proportionality’. This ‘entailed a failure to comply with the obligation to guarantee the rights to life under the ACHR. … However, the representatives and the Commission did not individualize those who were the victims of these grave events’, so the Court decided that it should not make a separate ruling in this regard: Santo Domingo v Colombia (n 41) [235]–[237].

94 El Mozote v El Salvador (n 22) [141].

95 ibid [153]–[154]. At the time of the facts, no members of the guerrilla forces or armed persons were present in the villages. Additionally, the examination of the forensic reports did not support the allegation that the deaths occurred in the context of a combat, confrontation or an exchange of gunfire. It is important to note that the terminology ‘non-combatant’ was used by the Court even though IHL does not formally recognise the status of combatant in non-international conflicts: Doswald-Beck, Louise, ‘The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers?’ (2006) 88 International Review of the Red Cross 881, 889–91.

96 El Mozote v El Salvador (n 22) [153]. The exhumations uncovered the bodies of 131 children under the age of 12, with regard to whom the violation of the right to life was related to art 19 of the ACHR.

97 Cruz Sánchez v Peru (n 31) [350]. The original text reads: ‘En el presente caso, el hecho de que las muertes se hayan producido en el marco de un conflicto armado no internacional, no eximía al Estado de su obligación de iniciar una investigación, inicialmente sobre el uso de la fuerza que haya tenido consecuencias letales, aunque la Corte podrá tener en cuenta circunstancias o limitaciones específicas determinadas por la propia situación de conflicto al evaluar el cumplimiento por parte del Estado de sus obligaciones estatales’.

98 The duty of states to undertake the necessary measures for the suppression of all acts contrary to the provisions of the Geneva Conventions other than grave breaches have been understood to encompass Common Article 3: Schmitt, Michael N, ‘Investigating Violations of International Law in Armed Conflict’ (2011) 2 Harvard National Security Journal 31, 47.

99 The Statute of the International Criminal Tribunal for Rwanda (annexed to UNSC Res 955 (8 November 1994), UN Doc S/RES/955) establishes, in art 4, the jurisdiction of the tribunal over violations of Common Article 3 of the Geneva Conventions and of Additional Protocol II. The preamble to the Rome Statute of the International Criminal Court ((entered into force 1 July 2002) 2187 UNTS 90) (ICC Statute) recognises a customary duty of states to investigate all crimes under international law, including war crimes committed in non-international armed conflicts. The ICC Statute asserts the jurisdiction of the ICC over war crimes committed in international and non-international armed conflicts. Violations of Common Article 3 are covered by art 8(2)(b) of the ICC Statute.

100 Las Dos Erres v Guatemala (n 20) Concurring Opinion of Judge ad hoc Ramón Cadena Rámila [1].

101 General Amnesty Law for the Consolidation of Peace, Legislative Decree 486, 20 March 1993 (Republic of El Salvador). The law was adopted five days after the presentation of the Truth and Reconciliation Commission Report, granting amnesty to ‘those persons who, according to the Truth Commission, participated in grave human rights violations that have occurred since January 1, 1980’. Beneficiaries of the amnesty included not only individuals whose cases were pending, but also those who had not yet been prosecuted and those who had been found guilty. The amnesty law also extinguished civil responsibility.

102 The Court relied on rule 159 of the International Committee of the Red Cross study on international customary rules. In accordance with this rule: ‘At the end of hostilities, the authorities in power must endeavor to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes’: Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross and Cambridge University Press 2005, revised 2009) 611.

103 This view is also shared in the literature by Roht-Arriaza, Naomi and Gibson, Lauren, ‘The Developing Jurisprudence on Amnesty’ (1998) 20 Human Rights Quarterly 843, 865.

104 El Mozote v El Salvador (n 22) [286] (emphasis added).

105 ibid [288].

106 ibid [201].

107 Cacarica v Colombia (n 34) [17].

108 ibid [366].

109 ibid [375], [378]–[379], [382].

110 ibid [386]–[387].

111 Cruz Sánchez v Peru (n 31) [350].

112 ibid.

113 Among the irregularities identified, the Court emphasised that the bodies were removed a day after the events and that there was no information to indicate that the crime scene had been secured; no ballistic comparison of the weapons used in the operation was carried out; no photos of the weapons or grenades allegedly involved in the events were taken; similarly no fingerprints were taken on the weapons or grenades; the autopsies took place in a facility that was not suitable for such a procedure by staff who were not accustomed to performing such procedures; no dental tests were performed; only three of the fourteen corpses were identified, and the remains of the fourteen MRTA members were buried clandestinely: ibid [370]–[374].

114 Santo Domingo v Colombia (n 41) [159], [164].

115 In addition to El Mozote v El Salvador (n 22) see, eg, Ituango Massacres v Colombia (n 19) [399]; Las Dos Erres v Guatemala (n 20) [233].

116 El Mozote v El Salvador (n 22) [257].

117 Cacarica v Colombia (n 34) [440].

118 ibid.

119 Dunkelberg (n 30) 1, 31, 32.

The author is grateful to Carlos Gaio, the anonymous reviewers and to participants in the Minerva/ICRC Jerusalem 11th Annual Conference on Contemporary Challenges in International Humanitarian Law for their helpful comments.

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The Duty to Investigate Violations of the Right to Life in Armed Conflicts in the Jurisprudence of the Inter-American Court of Human Rights

  • Giovanna Maria Frisso (a1)

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