120
333.
Additionally, the Principles and Best Practices on the Protection of
Persons Deprived of Liberty in the Americas establish that such persons shall be protected
“from any kind of threats and acts of torture, execution, forced disappearance, cruel,
inhuman, or degrading treatment or punishment, sexual violence, corporal punishment,
collective punishment, forced intervention or coercive treatment, from any method
intended to obliterate their personality or to diminish their physical or mental capacities.”
(Principle I) The non‐derogable nature of this provision and the duty of the State to treat
all persons deprived of liberty in keeping with the principle of humane treatment are also
376
set forth therein.
334.
These provisions reflect human rights similar to those ensured under
other international instruments, such as the Universal Declaration of Human Rights
(Articles 3 and 5); the International Covenant on Civil and Political Rights (Articles 7 and
10); the European Convention on Human Rights (Article 3); UN Convention on the Rights of
the Child (Article 37); the African Charter on Human and Peoples’ Rights (Article 4 and 5);
the Body of Principles for the Protection of all Persons under Any Form of Detention or
Imprisonment (Principle 6); and the UN Declaration on the Protection of All Persons from
Being Subjected to Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment (Article 2 and 3).
335.
Both the Court 377 and the Commission 378 have consistently held that an
international body of law, which falls today within the scope of ius cogens, has been put in
place which absolutely forbids all forms of torture. Specifically with regard to persons in
the custody of the State, the Inter‐American Convention to Prevent and Punish Torture
establishes that “neither the dangerous character of the detainee or prisoner, nor the lack
of security of the prison establishment or penitentiary shall justify torture.” (Article 5).
336.
The Commission finds that this peremptory prohibition of all forms of
torture is complementary to the duty of the State to treat every person deprived of liberty
humanely and with respect for his or her dignity. In fact, persons deprived of liberty not
only may not be subjected to torture and cruel, inhuman and degrading treatment, but
376
The IACHR, in various circumstances, has granted precautionary measures to protect detainees that
claimed that they were being subjected to torture or cruel, inhuman and degrading treatment. For example, on
March 12, 2002, the IACHR granted precautionary measures (MC‐259‐02) in favor of the approximately 254
detainees brought to Guantanamo Naval Base as of January 11, 2002. Subsequently, on March 21, 2006 and
August 20, 2008, the IACHR granted precautionary measures to protect, respectively, Mr. Omar Khadr and Mr.
Djamel Ameziane, also held at the naval base at Guantanamo Bay.
377
The Inter‐American Court established this assessment of the international prohibition of torture
from the case Cantoral Benavides, and began referring to it as part of the domain of ius cogens, in its decision of
the case Maritza Urrutia.. Véase, I/A Court H.R., Case of Cantoral Benavides V. Peru. Judgment of August 18, 2000.
Series C No. 69, paras. 102 y 103; I/A Court H. R., Case of Maritza Urrutia V. Guatemala. Judgment of November
27, 2003. Series C No. 103, para. 92. See also, I/A Court H.R., Case of Bueno‐Alves V. Argentina. Merits,
Reparations and Costs. Judgment of May 11, 2007. Series C No. 164, para. 77; in which the Court makes a
comprehensive analysis of the many international instruments that contain such a prohibition, even in the field of
international humanitarian law.
378
See for example, IACHR, Democracy and Human Rights in Venezuela, Ch. VI, para. 707; IACHR, Fifth
Fifth Report on the Situation of Human Rights in Guatemala, Ch.. VI, para. 8.
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