2.         Right to Humane Treatment

384.      The impact of anti-terrorist initiatives upon respect for the right to humane treatment also has particular implications for the situation of non-nationals. This is especially pertinent in securing the rights of persons seeking asylum, whose very status under international instruments is derived from the need for protection from persecution. The inter-American human rights instruments provide certain guarantees in this regard for asylum seekers:

American Declaration

Article XXVII. Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.

American Convention

Article 22.7. Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes. (8) In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.

385.      These guarantees reflect those prescribed under the Convention relating to the Status of Refugees,[881] which has been ratified by most member states of the OAS,[882] and which has been supplemented by the 1967 Protocol relating to the Status of Refugees.[883] These treaties have been considered by the Commission in interpreting and applying corresponding provisions of inter-American human rights instruments.[884] The 1951 Refugee Convention and the 1967 Protocol provide for a definition of who is and is not a refugee, or has ceased to be a refugee, the legal status of a refugee and his or her rights and duties in the country of refuge, and matters relative to the implementation of the respective instruments.[885] Under the regime of the 1951 Convention modified by the 1967 Protocol, a refugee is a person who:

•                        owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,

•                         is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;

•                        or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it.[886]

386.      As a general matter, Article 3 specifies that the provisions of this regime must be applied without discrimination as to "race, religion or country of origin." Further, judicial protection is to be available in principle through the "free access to the courts of law on the territory of all Contracting States" set forth in Article 16(1) of the 1951 Convention.[887]

387.      The Refugee Convention defines three basic groups that, while otherwise meeting the foregoing criteria, are excluded from refugee status: persons already subject to UN protection or assistance; persons not considered in need of international protection due to having been accorded treatment equivalent to that of nationals by the country of residence; and persons deemed undeserving of international protection. The latter group includes persons with respect to whom there are "serious reasons for considering" that they have committed "a crime against peace, a war crime, or a crime against humanity," a "serious non-political crime outside the country of refuge prior to admission," or "acts contrary to the purposes and principles of the United Nations." [888]

388.      With respect to persons accorded refugee status, the corresponding protections must be maintained unless or until they come within the terms of one of the "cessation clauses." The paramount obligation of States Parties in respect of those qualifying for refugee status is that of non-return (non-refoulement) set forth in Article 33(1) of the 1951 Convention:

No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.[889]

389.      Article 33(2) of the 1951 Convention, however, specifies that this benefit may not "be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

390.      In light of the above provisions, the Commission recognizes that persons with respect to whom there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity, a serious non-political crime outside the country of refuge prior to admission, or acts contrary to the purposes and principles of the United Nations[890] may be excluded from refugee status and that terrorism-related offenses could overlap with the above mentioned crimes.[891] Further, a person may not benefit from the non-refoulement prohibition of the Refugee Convention of 1951 if there are reasonable grounds for regarding the said person as a danger to the security of the country wherein he or she may be, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."[892] This could eventually include suspected terrorists or persons suspected of having committed terrorism-related crimes.

391.      Given the potentially serious consequences of exclusion from refugee status, any determination that an individual falls into one of these categories must be made by fair and proper procedures, as discussed in further detail in Part III(D) and in Part III(H)(3) below concerning the right to due process and to a fair trial.

392.      Moreover, even where a person may not qualify for refugee status or may be considered a danger to the security of the country wherein he or she may be situated, that person may not be removed to another country if in that state his or her life or personal freedom is in danger of being violated because of his or her race, nationality, religion, social status, or political opinions or where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.[893]

393.      Specifically, in addition to and notwithstanding the scope and application of Article 33 of the 1951 Refugee Convention, Article 3 of the UN Torture Convention[894] provides:

1.             No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

 

2.             For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

394.      The obligation of non-return under this provision as well as that under Article 22(8) of the American Convention[895] is absolute and does not depend upon a claimant’s status as a refugee. This obligation also necessarily requires that persons who may face a risk of torture cannot be rejected at the border or expelled without an adequate, individualized examination of their circumstances even if they do not qualify as refugees.[896] The Commission has specifically stated in this regard that

the nature of the rights potentially at issue – for example, to life and to be free from torture – requires the strictest adherence to all applicable safeguards. Those safeguards include the right to have one’s eligibility to enter the process decided by a competent, independent and impartial decision-maker, through a process which is fair and transparent. The status of refugee is one which derives from the circumstances of the person; it is recognized by the State rather than conferred by it. The purpose of the applicable procedures is to ensure that it is recognized in every case where that is justified.[897]

395.      The grave implications of failing to properly afford refugee claimants the protection discussed above cannot be overstated. In the most extreme case, a state that expels, returns or extradites a person to another State where there are substantial grounds for believing that this person would be in danger of being subjected to torture, will be considered responsible for violating this person's right to personal security or humane treatment.[898] As the Commission has observed:

For persons who have been subject to certain forms of persecution, such as torture, return to their home country would place them at a risk which is impermissible under international law. As noted above, the prohibition of torture as a norm of jus cogens--as codified in the American Declaration generally, and Article 3 of the UN Convention against Torture in the context of expulsion--applies beyond the terms of the 1951 Convention. The fact that a person is suspected of or deemed to have some relation to terrorism does not modify the obligation of the State to refrain from return where substantial grounds of a real risk of inhuman treatment are at issue.[899]

396.      In addition to reinforcing the proper determination and protection of the status of asylum seekers and refugees, the right to humane treatment has implications for the conditions of non-nationals under any form of detention by a state. In this respect, the Commission has considered that guaranteeing adequate detention conditions is fundamental for the protection of the right to human treatment of non-nationals, including those who may not comply with immigration law. The Commission’s Special Rapporteur on Migrant Workers and the Members of their Families has stated that “undocumented immigrants do nothing more than transgress administrative regulations. They are not criminals nor are they suspected of any crime. [Therefore t]hey should be held in detention centers and not in regular prisons.”[900]

397.      In the case of administrative detention, the Special Rapporteurship has indicated that there are various specific norms setting minimum standards for the treatment of persons deprived of their liberty,[901] including, as discussed in Part III(C) above,[902] the United Nations Standard Minimum Rules for the Treatment of Prisoners[903] and the United Nations Basic Principles for the Treatment of Prisoners,[904] as subsequently reinforced in the 1988 UN General Assembly’s approval of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.[905] Certain basic standards of detention conditions are particularly pertinent with regard to non-nationals. Migrants and their families should be kept together in relatively open facilities and not in cells. They should have access to libraries, recreation and health care. They should have the right to go outside at least one hour per day. Immigration detention centers should also make available legal manuals in various languages with information concerning the legal situation facing the detainees and a list of names and telephone numbers of legal counsel and organizations that they can contact for assistance, if they so desire. They should also be allotted clothing, toiletries and bedding. Non-citizens under administrative detention should have access to health care services and be given the opportunity to exercise or partake in recreational activities. The Special Rapporteurship has also emphasized that non-citizens should be able to communicate with their families and/or legal counselors both through visits, telephone calls and correspondence.[906]

3.          Rights to Due Process of Law and to a Fair Trial

398.      Articles 8 and 25 of the American Convention, and Articles XVIII, XXIV and XXVI of the American Declaration, are those provisions traditionally cited in relation to the developing doctrine concerning judicial guarantees and protection. These articles cover any situation in which it becomes necessary to determine the content and scope of the rights of a person under the jurisdiction of a state party, be it in a criminal, administrative, tax, labor, family, contractual or any other kind of matter.[907] These rules establish a baseline of due process to which all non-citizens, regardless of their legal status, have a right.[908] Further, the analysis of the right to due process and to a fair trial in Part III(D) above in proceedings of a criminal or other nature should be considered fully applicable to persons who find themselves in the territory of a state of which they are not nationals, in peacetime, states of emergency or armed conflicts.

399.      Also as indicated in Part III(D) above, there may be occasions in which, owing to the particular circumstances of a case, guarantees additional to those explicitly prescribed in the pertinent human rights instruments are necessary to ensure a fair hearing. This stipulation is drawn in part from the very nature and functions of procedural protections, which must in all instances be governed by the principle of fairness and which in their essence must be designed to protect, to ensure, or to assert the entitlement to a right or the exercise thereof.[909] This includes recognizing and correcting any real disadvantages that persons concerned in the proceedings might have and thereby observing the principle of equality before the law and the corollary principle prohibiting discrimination of any kind.[910]

400.      The potential need for additional procedural protections is starkly illustrated in proceedings involving non-nationals. For example, in the criminal sphere, special attention should be given to the vulnerability of a person facing criminal proceedings in a foreign country. First, it is essential that a person understands the charges against him or her and the full range of procedural rights available to him or her. To this end, translation and explanation of all legal concepts in the language of the defendant is essential and should be financed by the state if necessary.  Further, in the context of capital proceedings against foreign nationals, the Inter-American Court of Human Rights has found compliance with the consular notification requirements under Article 36 of the Vienna Convention on Consular Relations to constitute additional guarantees necessitated by the rules of due process of law.[911] The protections prescribed under this provision are broadly considered to be pertinent to the due process and other rights of detainees by, for example, providing potential assistance with various defense measures such as legal representation, gathering of evidence in the country of origin, verifying the conditions under which legal assistance is provided and observing the conditions under which the accused is being held while in prison.[912] Moreover, the Special Rapporteur on Migrant Workers has suggested that due process rights of this nature should apply to all immigration procedures. [913] 

401.      Further in this connection, as indicated in Part III(D) above, the due process protections under the American Convention and the American Declaration apply not only to criminal proceedings, but also to proceedings for the determination of rights or obligations of a civil, fiscal, labor or any other nature. This includes non-criminal proceedings against non-nationals. The full complement of due process protections applicable in a criminal proceeding may not necessarily apply in all other processes, but rather will depend upon the potential outcome and effects of the proceedings. The principle of due process, with this degree of flexibility, applies not only to court decisions, but also to decisions made by administrative bodies.[914]

402.      As suggested by the foregoing, particular due process protections may be especially pertinent in certain processes involving non-nationals. Concerning proceedings for the expulsion or deportation of non-nationals lawfully within a state, for example, the Special Rapporteurship on Migrant Workers has stated that such measures may only be taken pursuant to a decision made in accordance with law.[915] Thus, the powers for deportation must be conferred by legislation, and all decisions must be made in accordance with the legislation in place so as not to be deemed arbitrary. Moreover, as the meaning of “law” in Article 22 of the American Convention is not limited to acts of the legislative branch in a formal sense, any legislation must be enacted in full accordance with the constitution and the rule of law, including conformity with all international treaty obligations.

403.      In addition, the Commission has found in the context of removal proceedings against aliens that the persons concerned should be provided with a hearing and given an adequate opportunity to exercise their right of defense. While this may not require the presence of all the guarantees required for a fair trial in the criminal sphere, a minimum threshold of due process guarantees should be provided. This has been considered by the Commission to include the right to be assisted by a lawyer if they wish or by a representative in whom they have confidence, sufficient time to ascertain the charge against them, a reasonable time in which to prepare and formalize a response, and to seek and adduce responding evidence.[916] Hearings must be conducted in public to the extent required by due guarantees and fairness, which necessarily include the need to maintain public confidence and to avoid the possibility of injustice in such processes.[917]

404.      Further, international instruments clearly prohibit the collective expulsion of aliens.[918] An expulsion becomes collective when the decision to expel is not based on individual cases but on group considerations, even if the group in question is not large. [919]

405.      Also pertinent to the due process guarantees of non-nationals are proceedings for the determination of refugee or asylum status. In this connection, the Commission has interpreted the right to seek asylum provided for under Article XXVII of the American Declaration[920] and Article 22(7) of the American Convention[921] in light of the procedural protections underlying the 1951 UN Convention relating to the Status of Refugees[922] and its Additional Protocol.[923] In particular, the Commission has through these interpretive interrelationships required states to afford asylum-seekers a fair hearing to determine whether they satisfy the Convention refugee criteria, particularly where the non-refoulement provisions of the Refugee Convention, the American Convention, or the Inter-American Torture Convention may be implicated.[924]

406.      Similar prerequisites have been held to apply to proceedings pertaining to the administrative detention of aliens, where processes through which an individual may be deprived of his or her liberty for security or other reasons must comply with minimal rules of fairness. These rules require, inter alia, that the decision-maker meets prevailing standards of independence and impartiality, that the detainee is given an opportunity to present evidence and to know and meet the claims of the opposing party, and that the detainee be given an opportunity to be represented by counsel or other representative. Such requirements will not be considered fulfilled where, for example, authorities fail to define with sufficient particularity or otherwise properly justify the grounds upon which an individual has been deprived of his or her liberty or place the onus on the detainee to justify his or her release.[925]

407.      With regard to anti-terrorist initiatives in particular, it is apparent from the past practice of states, as well as from current efforts on the part of the Organization of American States and other intergovernmental organizations to address the problem of terrorism, that reactions to terrorist threats will include more rigorous and extensive implementation of methods to screen and remove aliens from the territory of states, in many cases through extradition or the denial of asylum status. [926]

408.      Procedures of this nature may well be necessary and justified in protecting the populations of states from the dangers of terrorist violence, as reflected, for example, in certain provisions of international instruments governing refugees.[927] It is also beyond doubt, however, that these processes have significant implications for the lives and security of the persons concerned. This consideration, together with the legal character of such proceedings and their context within a state’s particular legal system, are factors that must be taken into account in defining the requirements of a fair trial and due process of law in processes of this nature.

409.      As discussed previously, proceedings involving the detention, status or removal of aliens from a state’s territory by exclusion, expulsion or extradition have been found in this and other human rights systems to require individualized and careful assessment and to be subject to the same basic and non-derogable procedural protections applicable in proceedings of a criminal nature. And as indicated above concerning the right to humane treatment in the context of non-nationals, removal proceedings must properly take into account the principle of non-refoulement as reflected in such provisions as Article 33 the UN Convention on the Status of Refugees,[928] Article 3(1) of the UN Convention on Torture,[929] Article 13 of the Inter-American Convention to Prevent and Punish Torture,[930] and Article 22(8) of the American Convention on Human Rights.[931]

4.         Obligation to Respect and Ensure, Non-Discrimination and the Right to Judicial Protection

410.      As emphasized in Part III(F) above, among the most fundamental and non-derogable protections under international human rights law and international humanitarian law is the requirement that states fulfill their obligations without discrimination of any kind, including discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic situation, birth, or any other social condition. This obligation applies not only to a state’s commitment to respect and ensure respect for fundamental rights in the context of terrorist threats, but also limits the measures that states may take in derogating from rights that may properly be suspended in times of emergency by prohibiting any such measures that involve discrimination on such grounds as race, color, sex, language, religion, or social origin.[932]

411.      Migrants, asylum seekers and other non-nationals are especially vulnerable to discrimination in emergency situations resulting from terrorist violence. This risk is particularly prevalent where terrorist violence is considered to emanate from foreign sources and where, as a consequence, asylum and other measures of protection for non-nationals may be perceived as providing refuge for terrorists. As the United Nations High Commissioner for Refugees has noted,

[e]quating asylum with a safe haven for terrorists is not only legally wrong and thus far unsupported by facts, but it serves to vilify refugees in the public mind and promotes the singling out of persons of particular races or religions for discrimination and hate-based harassment.[933]

412.      States must therefore remain vigilant in ensuring that their laws and policies are not developed or applied in a manner that encourages or results in discrimination, and that their officials and agents conduct themselves fully in conformity with these rules and principles. This requires in particular that states refrain from applying their immigration control operations in a discriminatory manner. Accordingly, to the extent that such operations may incorporate criteria, such as national or social origin, that may potentially constitute the basis for discrimination, the content and execution of such operations must be based upon objective and reasonable justifications that further a legitimate purpose, regard being had to the principles which normally prevail in a democratic society, and they must be reasonable and proportionate to the end sought.[934]  

            413.      As in the case of all persons protected under the inter-American human rights instruments, member states are obliged to conduct themselves so as to ensure the free and full exercise of human rights to migrant workers, asylum-seekers, refugees and other non-nationals. This obligation includes the duty to organize the governmental apparatus and all the structures through which public power is exercised so that they are capable of juridically ensuring the free and full enjoyment of those human rights and freedoms. Member states must therefore afford non-nationals a remedy for any violations of the several due process, non-discrimination and other rights and freedoms mentioned above. Where non-nationals are the subject of judicial, administrative or other proceedings, judicial review must always be provide for, either through appeal in administrative law or by recourse to amparo or habeas corpus. Judges should maintain at least baseline oversight of the legality and reasonableness of administrative law decisions in order to comply with the guarantees provided for in Articles XVIII and XXIV of the American Declaration and Articles 1(1) and 25 of the American Convention.[935]  

[ TABLE OF CONTENTS | PREVIOUS | NEXT ]