“From La Tablada to Guantanamo Bay: The Challenge of New Conflict Situations in the Experience of the Inter-American System of Human Rights Protection”

BUIS, EMILIANO JERÓNIMO

Jerusalén

Congreso; Congreso Internacional “Complementing IHL: Exploring the Need for Additional Norms to Govern Contemporary Conflict Situations”; 2008

Minerva Center for Human Rights de la Universidad Hebrea de Jerusalén, el Bruce W. Wayne Chair of International Law, la Konrad-Adenauer Stiftung y el Comité Internacional de la Cruz Roja (Delegación de Tel Aviv)

I will deal here, in particular, with IHL references in the context of this regional system. By briefly examining the vocabulary used by the regional Commission and the Court, it is possible to perceive how and to which extent regional mechanisms to protect human rights are (or not) legally able in their praxis to make direct recourse to a set of rules—exclusively applicable in times of armed conflicts—that is not explicitly available in their own framework of competence. Since the relevant case law is almost always based upon the content of common article 3 of the Geneva Conventions of 1949, I assume that the application of IHL by the local HRL protection mechanism has only been possible due to the sui generis characteristics of local situations of emergency. In fact, the conclusions traditionally reached by the Commission and the IACtHR cannot be understood without a reference to the specific nature of internal conflicts such as the ones experienced by South and Central American countries during the last decades. However, it will be underlined that the recent decisions on the Guantanamo facilities have made evident that the appearance of new situations which clearly differ from those traditional contexts of civil institutionalized hostilities demands an innovative approach to the problem of the conditions of applicability of IHL by a HRL tribunal.