Conventions338 and customary international humanitarian law 339 specifically address this
subject, it will be useful and appropriate to consider them.
271. Nonetheless, there is no question that the provisions of the American Convention on
the right to life are fully applicable and relevant in situations of armed conflict. As was
mentioned before, this right pertains to the core set of Convention-based rights that may not
be suspended under any circumstances, even when the independence or security of a State
Party appears to be under serious challenge (supra para. 257). The Court has already found
that the presence of a domestic armed conflict at the time of the facts, as in the instant case,
rather than exonerating the State from its obligations to respect and guarantee human rights,
instead obliged it to act in accordance with such obligations.340
272. Consequently, and for the purposes of this case, the Court notes that international
humanitarian law does not displace the applicability of Convention Article 4, but instead
enhances the interpretation of the Convention clause that prohibits arbitrary deprivation of life
when facts occur in the framework and on the occasion of an armed conflict. Similarly, the
International Court of Justice has held, “[i]n principle, the right not arbitrarily to be deprived
of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life,
however, then falls to be determined by the applicable lex specialis, namely, the law applicable
in armed conflict which is designed to regulate the conduct of hostilities […]” 341. The European
Court of Human Rights has found, “Article 2 must be interpreted in so far as possible in light
of the general principles of international law, including the rules of international humanitarian
Common Article 3 of the four Geneva Conventions of August 12, 1949, ratified by Peru on February 15,
1956, states:
338
“Conflicts not of an international character: In the case of armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as
a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down
their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex,
birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any
time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in
particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon
personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying
out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the
International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the
conflict should further endeavour to bring into force, by means of special agreements, all or part of the other
provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of
the Parties to the conflict.”
Cf. International Committee of the Red Cross, Customary International Humanitarian Law, vol. I, edited by
Jean-Marie
Henckaerts
and
Louise
Doswald-Beck,
2007,
available
at:
https://www.icrc.org/en/doc/assets/files/other/customary-international-humanitarian-law-i-icrceng.pdfps://www.icrc.org/spa/assets/files/other/icrc_003_pcustom.pdf
339
Cf. Case of Bámaca Velásquez v. Guatemala. Merits. Judgment of November 25, 2000. Series C No. 70,
para. 207.
340
International Court of Justice, Legality of the use by a state of nuclear weapons in armed conflict, Advisory
opinion issued on July 8, 1996, para. 25. See also International Court of Justice, Legal consequences of the
construction of a wall in the Occupied Palestinian Territory, Advisory opinion issued on July 9, 2004, paras. 105 to
113.
341