N.B. As per the disclaimer, neither the ICRC nor the authors can be identified with the opinions expressed in the Cases and Documents. Some cases even come to solutions that clearly violate IHL. They are nevertheless worthy of discussion, if only to raise a challenge to display more humanity in armed conflicts. Similarly, in some of the texts used in the case studies, the facts may not always be proven; nevertheless, they have been selected because they highlight interesting IHL issues and are thus published for didactic purposes.
A. The Petition
1. The petition on behalf of the seventeen claimants was filed before the Commission on July 25, 1991, and processed in accordance with its Regulations. As a general matter, the petitioners alleged that the military action led by the armed forces of the United States of America (hereinafter “United States” or “State”) in Grenada in October of 1983 violated a series of international norms regulating the use of force by states. With regard to their specific situation, they alleged having been detained by United States forces in the first days of the military operation, held incommunicado for many days, and mistreated. They contended that the United States corrupted the Grenadian judicial system by influencing the selection of judicial personnel prior to their trial, financing the judiciary during their trial, and turning over testimonial and documentary evidence to Grenadian authorities, thereby depriving them of their right to a fair trial by an independent and impartial tribunal previously established by law. The petitioners claimed that the United States violated its obligations under the American Declaration of the Rights and Duties of Man, specifically: Article I, the right to life, liberty and personal security; Article II, the right to equality before the law; Article XXV, the right to protection from arbitrary arrest; Article XVII, the right to recognition of juridical personality and civil rights; Article XVIII, the right to a fair trial; and Article XXVI, the right to due process of law.
2. On October 19, 1983, the Prime Minister of Grenada, Maurice Bishop, and a number of associates were murdered pursuant to a power struggle within the New Jewel Movement, the ruling political party since 1979. Following the violent overthrow of the Bishop administration, the rival faction within the New Jewel Movement established a Revolutionary Military Council. On October 25, 1983, United States and Caribbean armed forces invaded Grenada, deposing the revolutionary government.
3. During the first days of the military operation, a number of individuals, including the seventeen petitioners [...] were arrested and detained by United States forces. [...]
C. Overview of Proceedings
5. The State contested the admissibility of the case before the Commission, asserting that the petitioners’ factual allegations were incorrect and/or unsupported, that it was not the proper respondent, and that the Commission lacked the competence to examine the legal validity of its military actions in Grenada as this fell beyond the scope of its mandate, particularly with regard to a non-party to the American Convention.
6. The Commission adopted admissibility Report 14/94 on February 7, 1994, finding the claims concerning the arrest and detention of the petitioners admissible, and the other claims inadmissible. [...]
III. Position of the Parties
A. The Position of the Petitioners
- In their initial complaint, the petitioners claimed that: United States forces arrested them during the period in which it consolidated control over Grenada; that they were held incommunicado for many days; and that months passed before they were taken before a magistrate, or allowed to consult with counsel. “During this period petitioners were threatened, interrogated, beaten, deprived of sleep and food and constantly harassed.”
- The petitioners alleged that their whereabouts were kept secret, and that requests by lawyers and others to meet with them were rejected. They alleged that, more than a week after the invasion, the commanding officer for United States armed forces in Grenada, Admiral Joseph Metcalf, III, denied knowledge of the whereabouts of petitioners Hudson Austin and Bernard Coard to a group of United States Congressmen, when in fact the two men were confined aboard a ship under his command.
- The petitioners alleged that United States forces subjected them to threats and physical abuse. The supplemental petition of August 4, 1991 indicated that petitioner Leon Cornwall had attested at trial, before the High Court of Grenada, that United States officials had attempted to obtain his testimony through the use of threats and physical coercion. [...] The petitioners alleged that, even after they were turned over to the custody of Grenadian and Caribbean Peacekeeping Force (hereinafter “CPF”) authorities at Richmond Hill Prison, on or about November 5, 1983, United States forces continued to play a role in their detention, interrogation and mistreatment.
- The petition alleged that the United States had no legal justification for the actions taken against the petitioners, and is thus responsible for violations of their “human rights to liberty, freedom from arbitrary arrest, notification of charges, physical and mental integrity, freedom from cruel, inhuman and degrading punishment and punishment only after conviction in violation of Articles I, II, XVII, XVIII, XXV and XXVI of the American Declaration.
B. The Position of the State
- In its initial response, the State indicated that “[t]he treatment by US armed forces of all Grenadian or other nationals who were either temporarily detained or arrested for security or other lawful reasons” accorded fully with “applicable international rules concerning the law of armed conflict, including the rules governing the treatment of civilian detainees and military prisoners.” In view of its position that the case was inadmissible, it declined at that time to address the international legal validity of claims concerning United States military actions in Grenada.
- Pursuant to the Commission’s adoption of Report 14/94, the State submitted information with respect to the arrest and detention of the petitioners. It fully acknowledged “that during the initial stage of the US military operation in Grenada, the petitioners and other Grenadian nationals were arrested, detained by US military forces for several days and interrogated while the United States suppressed further armed resistance to its military operation.” Citing contemporaneous records, the State asserted that all of the petitioners were detained in United States custody for a period of less than three weeks. The State maintained that the period of the petitioners’ detention “coincided with ... the ‘hostilities phase’ of the operation (i.e., from 25 October to 2 November) when the US military was engaged in putting down armed resistance from enemy forces.” Although the petitioners were not prisoners of war, they were “detained and accorded protection equivalent to that given prisoners of war,” and were “thus were accorded the highest protections [available] under the laws of armed conflict.” [...]
- The United States reported that by November 5, 1983, all of the petitioners had been transferred from United States custody to the CPF and Grenadian authorities. The State asserted that “in view of their relatively brief periods of detention in US military custody from on/about October 25 to November 5, at the latest, petitioners’ claim that the United States subjected them to prolonged detention is patently exaggerated and unconvincing.” [...]
- . The State denied allegations that, during their detention at the hands of its forces, the petitioners were “threatened, interrogated, beaten, deprived of sleep and food and constantly harassed.” [...] Citing another document, the State reported that “personnel were interrogated for the purpose of securing tactical information essential to the effective conduct of ongoing military operations and the security of US forces’ personnel.” The State asserted that interrogation “of POW’s for tactical and security purposes during hostilities is a right clearly recognized and provided for in Article 17” of the Geneva Convention Relative to the Treatment of Prisoners of War.
- The United States submitted that the treatment accorded to petitioners accorded fully with the standards of the American Declaration and applicable International Humanitarian Law. [...]
IV. Processing of report no. 13/95 prepared pursuant to article  of the regulations of the Commission
- On September 21, 1995, the Commission adopted Report 13/95 pursuant to Article 53 [sic, read 43] of its Regulations, setting forth its analysis of the record, findings, and recommendations to the State designed to repair violations of Articles I, XVII and XXV the American Declaration related to the deprivation of the petitioners’ liberty by United States forces. The Commission found that the detention of the petitioners had been carried out under conditions which did not ensure the full observance of the minimum safeguards required under the American Declaration. Most pertinently, the Commission found that the petitioners had no access to any form of review of the legality of their detention at the hands of United States forces. [...]
The Commission recommended that the State conduct a further investigation to attribute responsibility for the violations, and take the measures necessary to repair the consequences thereof. [...]
- By means of a note dated December 27, 1995, the United States submitted a response to Report 13/95, in which it requested that the Commission reconsider and rescind that report pursuant to the procedure [...] [which] provides that, where either party “invokes new facts or legal arguments” within the deadline established in a report, the Commission shall decide during its next session whether to maintain or modify its decision. This procedure may only be invoked once.
- [...] [T]he Commission decided to review the information presented during its next period of sessions. The Commission determined that the State had raised two issues that required additional clarification. The first issue concerned the legal status of the petitioners. In the December 27, 1995 submission, the State indicated that: “the petitioners’ detention and treatment were justified under the 1949 Geneva Convention III, Relative to the Treatment of Prisoners of War ... as in furtherance of lawful military objectives.” At the same time, the State contended that the “[p]etitioners could also be considered civilian detainees whose detention and treatment were fully in accord with governing standards under the Fourth Geneva Convention” [Relative to the Protection of Civilians in Time of War]. In its October 19, 1994 response, the State had indicated that the petitioners were accorded protections equivalent to those given to POW’s “even though they were not themselves POWs.” The second issue concerned the claim that the petitioners had been held incommunicado, the State having reported for the first time in its December 27, 1995 submission that the petitioners had enjoyed a right of access to the International Committee of the Red Cross.
- Because the classifications of civilian and prisoner of war are mutually exclusive and carry legal consequences, the Commission found it necessary to request that the State clarify its position on this issue. [...] [T]he Commission asked the State to provide information as to which of the petitioners had been accorded status as prisoners of war, and which had been deemed civilians, as well as the basis for those determinations. The Commission also requested information as to whether, and if so, on what dates, ICRC representatives had been present in the locations where the petitioners were held. [...]
- The State’s response, [...] indicated that the petitioners “were civilian detainees held briefly for reasons of military necessity,” and “were treated de facto to the highest legally available standard of protection.” The information provided as to the presence of the ICRC indicated only that, at the time of the military operation, the United States had supplied that organization with a list of names of those detained, and that ICRC representatives “had the normal rights of access to those individuals in detention.” The Government indicated that it had been unable to locate any reports of such ICRC visits, although it had confirmed by telephone that visits to detainees – whom the ICRC did not identify – had been carried out during the period in question. The Government further affirmed that the petitioners had been permitted to communicate with their next-of-kin, in writing, within seven days of their detention, as required by Article 70 of the Fourth [sic, read Third] Geneva Convention.
- Having received the request for reconsideration, and having attempted to clarify certain inconsistencies in the position of the State with respect to the status of the petitioners at the time they were detained, the Commission reviewed the findings and recommendations issued in Report 13/95 and made certain modifications. The Commission adopted final Report 82/99 on May 7, 1999.
- In its decision to admit Case 10.951, the Commission determined that a sufficient causal nexus through which to assess possible violations had been established only as to the claims concerning the petitioners’ arrest, and presumed detention incommunicado. Such claims were found, at the threshold level, to implicate Article I, the right to life, liberty and personal security; Article XVII, the right to recognition of juridical personality and civil rights; and Article XXV, the right of protection from arbitrary arrest.
- The factual predicate before the Commission, which is undisputed, is that on or about October 25, 1983, members of the armed forces of the United States arrested the 17 petitioners while participating in the military operation then being conducted in Grenada. The petitioners were detained for periods of 9 to 12 days, and were then turned over to Grenadian authorities. What is in dispute is the legal characterization of the treatment accorded to the petitioners once arrested and detained. The petitioners alleged that their arrest and detention violated, inter alia, Articles I, XVIII [sic, read XVII] and XXV of the American Declaration. The State maintained that the matter was wholly and exclusively governed by the law of international armed conflict, which the Commission has no mandate to apply, and that the conduct in question was, in any case, fully justified as a matter of law and fact.
A. Jurisdictional Considerations and Applicable Law [...]
- In terms of the law applicable to the present case, the petitioners invoked the provisions of the American Declaration as governing their claims. The United States argued that the situation denounced was governed wholly by International Humanitarian Law, a body of law which the Commission lacks the jurisdiction or specialized expertise to apply. In accordance with the normative framework of the system, when examining individual cases concerning non-parties to the American Convention, the Commission looks to the American Declaration as the primary source of international obligation and applicable law. This does not mean, as the United States argued, that the Commission may not make reference to other sources of law in effectuating its mandate, including International Humanitarian Law.
- First, while International Humanitarian Law pertains primarily in times of war and the international law of human rights applies most fully in times of peace, the potential application of one does not necessarily exclude or displace the other. There is an integral linkage between the law of human rights and humanitarian law because they share a “common nucleus of non-derogable rights and a common purpose of protecting human life and dignity,” [...] [See Inter-American Commission on Human Rights, Tablada [Para. 158]], and there may be a substantial overlap in the application of these bodies of law. Certain core guarantees apply in all circumstances, including situations of conflict, and this is reflected, inter alia, in the designation of certain protections pertaining to the person as peremptory norms (jus cogens) and obligations erga omnes, in a vast body of treaty law, in principles of customary international law, and in the doctrine and practice of international human rights bodies such as this Commission. Both normative systems may be thus be applicable to the situation under study.
- Second, it would be inconsistent with general principles of law for the Commission to construe and exercise its Charter-based mandate without taking into account other international obligations of member states which may be relevant. [...]
- Third, the State’s assertion that the application of humanitarian law would wholly displace the application of the Declaration is also inconsistent with the doctrine and practice of the system. The Commission has encountered situations requiring reference to Article XXVIII of the Declaration, which specifies that “[t]he rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy” since the inception of its case system. The Declaration was not designed to apply in absolute terms or in a vacuum, and the Commission has necessarily monitored the observance of its terms with reference to its doctrine on permissible and non-permissible limitations, and to other relevant obligations which bear on that question, including humanitarian law.
- Fourth, in a situation of armed conflict, the test for assessing the observance of a particular right, such as the right to liberty, may, under given circumstances, be distinct from that applicable in a time of peace. For that reason, the standard to be applied must be deduced by reference to the applicable lex specialis. The American Declaration is drawn in general terms, and does not include specific provisions relating to its applicability in conflict situations. As will be seen in the analysis which follows, the Commission determined that the analysis of the petitioners’ claims under the Declaration within their factual and legal context requires reference to International Humanitarian Law, which is a source of authoritative guidance and provides the specific normative standards which apply to conflict situations. In the present case, the standards of humanitarian law help to define whether the detention of the petitioners was “arbitrary” or not under the terms of Articles I and XXV of the American Declaration. As a general matter, while the Commission may find it necessary to look to the applicable rules of International Humanitarian Law when interpreting and applying the norms of the inter-American human rights system, where those bodies of law provide levels of protection which are distinct, the Commission is bound by its Charter-based mandate to give effect to the normative standard which best safeguards the rights of the individual. [...]
- The parties do not dispute that the situation under study originated in the context of an international armed conflict as defined in common Article 2 of the Geneva Conventions. The information in the case file and the public record is consistent with that conclusion.
B. The Legality of the Arrest and Detention of the Petitioners
- Article I of the American Declaration sets forth that every human being has the right to liberty. Article XXV provides that no person may be deprived of that right, except in accordance with the norms and procedures established by pre-existing law. This Article specifies, in pertinent part, that any person deprived of liberty “has the right to have the legality of his detention ascertained without delay by a court [and] the right to humane treatment during the time he is in custody.” The text of Article XXV thus specifies three fundamental requirements: first, preventive detention, for any reason of public security, must be based on the grounds and procedures set forth in law; second, it may not be arbitrary; and third, supervisory judicial control must be available without delay. Consequently, in the present case the Commission must establish the basis in law for the detentions, ascertain that they were neither illegal nor arbitrary, and assess the safeguards and verify the existence of judicial control without delay.
- The United States has invoked several legal bases for the detention of the petitioners. In its October 19, 1994 submission, the State indicated that the petitioners had been detained for security and tactical reasons, and so that they could be turned over to Grenadian authorities to stand trial for the murder of Maurice Bishop and others. Although the United States did not consider the petitioners prisoners of war, the State indicated they had been accorded the protections corresponding to that status. Pursuant to receipt of Commission Report 13/95, the State indicated that, [...] the detention of the petitioners had been justified under the Third Geneva Convention Relative to the Treatment of Prisoners of War. They could “also be considered civilian detainees” under the terms of the Fourth Geneva Convention. [...] “Whether as POWs or civilian detainees” the United States invoked the Geneva Conventions of 1949 as the legal basis for detaining the petitioners.
- The State is party to the Geneva Conventions of 1949, which are, as one of its submissions indicates, “part of the supreme law of the land.” The Geneva Conventions – which provide a wider range of justifications for the deprivation of liberty than does the American Declaration – do authorize deprivation of liberty under certain circumstances. Determining which provisions apply requires determining the status of the petitioners under that body of law.
- The parties’ submissions are equivocal with respect to whether the petitioners were civilians entitled to protection under the Third [sic, read Fourth] Geneva Convention, or prisoners of war entitled to status under the Fourth Geneva Convention. The petitioners identified some of their number as “civilians,” although without further identification or explanation. As noted, having referred to the petitioners as both civilians and POW’s, the State indicated as its final position that the petitioners “were civilian detainees held briefly for reasons of military necessity,” and were “accorded the rights and privileges of those who might have held the status of prisoners of war because that standard ensures a higher degree of protection.” The State asserted that, “as a technical matter, whether they were being held as civilian detainees or as prisoners of war does not matter for purposes of deciding this petition. They were treated de facto to the highest legally available standard of protection that can be accorded to persons in such status.”
- As a factual matter, reports issued at the time of the events under study indicate that certain petitioners were then members of an entity known as the Revolutionary Military Council (hereinafter “RMC”), and had previously been officers in the People’s Revolutionary Army. [...]
- [...] However, neither party briefed whether that armed force met the requisites to fall within the coverage of the Third Geneva Convention or not. As neither party has provided information on this point, the Commission decided to proceed with its analysis based primarily on the situation of the petitioners who were definitively not members of any armed force and fell under the terms of the Fourth Geneva Convention in any case. (While most or all of these held political positions, there is no information on record indicating that they took part in hostilities.) The analysis is based only secondarily on the extent to which the others had the status of civilians, as the United States has sustained and the petitioners have not contested. [...]
- Under exceptional circumstances, International Humanitarian Law provides for the internment of civilians as a protective measure. It may only be undertaken pursuant to specific provisions, and may be authorized when: security concerns require it; less restrictive measure could not accomplish the objective sought; and the action is taken in compliance with the grounds and procedures established in pre-existing law. [...]
- The applicable provisions of the Fourth Geneva Convention provide the authorities substantial discretion in making the initial determination, on a case by case basis, that a protected person poses a threat to its security, and the record provides no basis to controvert the security rationale asserted in this case. However, the record does not disclose to what extent the decision to detain each petitioner was made pursuant to a “regular procedure.” Government submissions have indicated that the petitioners were detained for security reasons, but have provided little information as to the specific procedures followed by the United States forces who initiated and maintained custody.
- As set forth, the applicable rules of International Humanitarian Law relative to the detention of civilians provide that the “regular procedure” by which such decisions are taken shall include the right of the detainee to be heard and to appeal the decision. [...]
- The requirement that detention not be left to the sole discretion of the state agent(s) responsible for carrying it out is so fundamental that it cannot be overlooked in any context. The terms of the American Declaration and of applicable humanitarian law are largely in accord in this regard. [...] This is an essential rationale of the right to habeas corpus, a protection which is not susceptible to abrogation.
- In the instant case, on the basis of the record before it, the Commission is unable to identify the existence of safeguards in effect to ensure that the detention of the petitioners was not left to the sole discretion of the United States forces responsible for carrying it out. [...]
- [...] The petitioners were held in United States custody for a total of nine to twelve days prior to being transferred to Grenadian and CPF custody, which means they were held for six to nine days after the cessation of hostilities without access to any review of the legality of their detention. This delay, which is not attributable to a situation of active hostilities or explained by other information on the record, was incompatible with the terms of the American Declaration of the Rights and Duties of Man as understood with reference to Article 78 of the Fourth Geneva Convention.
- The United States has argued that it would have been impracticable to present the petitioners before the Grenadian courts. Regardless of whether it was practicable or not (the United States offered no evidence to sustain its argument), the review at issue need not have required access to the Grenadian court system. Rather, pursuant to the terms of the Fourth Geneva Convention and the American Declaration, it could have been accomplished through the establishment of an expeditious judicial or board (quasi-judicial) review process carried out by United States agents with the power to order the production of the person concerned, and release in the event the detention contravened applicable norms or was otherwise unjustified. [...]
- [...] While international human rights and humanitarian law allow for some balancing between public security and individual liberty interests, this equilibrium does not permit that control over a detention rests exclusively with the agents charged with carrying it out.
- Internment of civilians for imperative reasons of security may be permissible where the required basis is established in the particular case, and the Commission has found nothing in the record to refute the security justification presented by the United States. However, the same rules which authorize this as an exceptional security measure require that it be implemented pursuant to a regular procedure which enables the detainee to be heard and to appeal the decision “with the least possible delay.” That regular procedure ensures that the decision to maintain a person in detention does not rest with the agents who effectuated the deprivation of liberty, and ensures a minimal level of oversight by an entity with the authority to order release if warranted. This is a fundamental safeguard against arbitrary or abusive detention, and the relevant provisions of the American Declaration and Fourth Geneva Convention analyzed above establish that this protection is to be afforded with the least possible delay. Taking into account that the petitioners were, according to the foregoing analysis, civilians detained for security reasons, and that they were held in the custody of United States forces for approximately nine to twelve days, including six to nine days after the effective cessation of fighting, the Commission observes that the petitioners were not afforded access to a review of the legality of their detention with the least possible delay.
- Accordingly, the Commission finds that the deprivation of the petitioners’ liberty effectuated by United States forces did not comply with the terms of Articles I, XVII and XXV of the American Declaration of the Rights and Duties of Man. [...]
I. Qualification of the conflict
- Was there an international armed conflict between the United States and Grenada? Even if the Revolutionary Military Council took power in violation of Grenada’s constitutional law? If the United States were called upon to intervene by representatives of the former government after the Revolutionary Military Council gained control of Grenada? (GC I-IV, Art. 2)
- Was Grenada a State occupied by the United States? What does the Commission think? What do you think?
- What elements are missing to be able to determine whether the petitioners were prisoners of war or protected civilians? Can a person in the hands of the enemy during an international armed conflict be neither a prisoner of war nor a protected civilian? Is there presumption in favour of the one or the other status? (GC III, Arts 4 and 5; GC IV, Art. 4)
- Were the petitioners who were part of the “People’s Revolutionary Army” prisoners of war? Even if they represented a government of Grenada that the United States did not recognize? What requirements of IHL could make the Commission doubt whether they were prisoners of war? (GC III, Art. 4)
- If the petitioners had been prisoners of war, would their detention have been in accordance with IHL? With the American Declaration on the Rights and Duties of Man (available on http://www.cidh.org)? More specifically, what about their detention in the absence of judicial control? Is IHL a sufficient legal basis to justify the detention of a prisoner of war? For how long? Without judicial review? Does IHL not provide for judicial guarantees in favour of prisoners of war? Can a prisoner of war not claim the right of habeas corpus? (GC III, Arts 13, 17, 21, 85, 99-108 and 118)
- May a prisoner of war be questioned for tactical and security purposes? (GC III, Art. 17)
- Under what circumstances may a civilian be held by the enemy during an international armed conflict? (GC IV, Arts 64, 66, 67, 76 and 78)
- Were there reasons that could justify the detention of the petitioners? Who decides if the reasons are sufficient? (GC IV, Art. 78)
- Does a civilian detained for imperative reasons of security have “the right to have the legality of his detention ascertained” without delay by a court? According to IHL? According to international human rights law? (GC IV, Art. 78)
- Must the procedure described by Article 78 of Convention IV be deferred to an independent and impartial tribunal and respect the judicial guarantees foreseen by human rights law? Following a possible appeal, may the authority to rule on the detention be set up by the United States? (GC IV, Art. 78)
- Does Convention IV constitute a sufficient legal basis that may, under international human rights law, justify the detention of an interned civilian if the procedural guarantees of Article 78 are respected? (GC IV, Art. 78)
- Which provisions of Convention IV does the Commission believe were breached with regard to the petitioners?
- What are the rights of prisoners of war and detained civilians to inform their families of their situation? Are there other provisions that allow them to communicate with their families? (GC III, Arts 70, 71, 122(2), (4) and (7) and 123; GC IV, Arts 106, 107, 136(2), 138 and 140)
- Can an individual notified to the ICRC be considered as held incommunicado? If he is visited by the ICRC? If he cannot communicate with his family? (GC III, Arts 122(4) and 123; GC IV, Arts 138 and 140)
III. IHL and Human Rights Law
- Why does the Inter-American Commission apply IHL? Does it have jurisdiction to do so? May it find and condemn a violation of IHL? [See also Inter-American Commission on Human Rights, Tablada, and Inter-American Court of Human Rights, The Las Palmeras Case]
- Is the American Declaration on the Rights and Duties of Man, and more generally human rights law, applicable in times of armed conflict? In the same way as in times of peace? Does human rights law also protect combatants? Prisoners of war?
- In times of conflict, do the right to life, the right to protection against arbitrary arrest and the judicial guarantees foreseen by human rights have to be read in the light of IHL? What are the consequences for the right to individual liberty? In what respects must IHL be read in the light of these human rights?
- In this case, which of the violations of IHL committed against the petitioners is also a breach of the American Declaration? Which right provided for by the Declaration was violated vis-à-vis each petitioner?