Miguel Castro Castro Prison case (IACtHR)

The Court noted that ‘weapons that the experts have classified as for war or characteristic of a “military incursion” were used …, such as instalazza type grenades, bombs, rockets, artillery helicopters, mortars, and tanks, similarly tear gas, vomiting, and paralyzing bombs were used against the inmates.’§216.

‘The type of weapons employed during the incursion’ led the Commission to conclude ‘that the state agent’s intention was to cause serious physical and psychological damage, as well as the elimination of the greatest number of inmates possible’.§228(g).

Among other things, by reference to ‘the intensity of the attack, which implied the use of weapons of war’ and to ‘the magnitude of the damages produced’, the Court found Peru responsible for violations of the right to life (Article 4 of the 1969 American Convention on Human Rights (ACHR)) in respect of the dead inmates.

The Court also found Peru in violation of the right not to subjected to cruel, inhuman, or degrading punishment or treatment and the prohibition on torture, inter alia, on the basis of the seriousness of the injuries and the suffering caused. In this connection the Court mentioned white phosphorus gas bombs specifically. (See below, White phosphorus munitions.)

With reference to ‘the use of white phosphorous gas bombs’, the Court referred to expert witness statements that indicated that:

In what refers to the use of white phosphorous gas bombs, the expert witness Peerwani indicated that when this chemical product comes into contact with human tissue, 'it causes very severe burns'. In his experience as a forensic expert he has observed that these burns penetrate human tissue 'until [they reach t]he bone'. Likewise, these white phosphorous bombs produce a lot of smoke, which 'is very dangerous', and their use 'is not recommended within closed environments'. The witness Gaby Bálcazar referred to the effect caused by these bombs, stating 'that they could not even breathe, you felt your body burning, as if your body wanted to leave you', and she referred to the measures they were forced to adopt due to that.… The witness Raúl Basilio Gil Orihuela indicated that when said chemical comes into contact with the human body it produces a burning sensation in uncovered areas, the nasal cavities, as well as asphyxia and chemical 'burning' of internal organs and skin….§282.

The Court then noted that the attack was carried out with ‘very harmful weapons, with explosions, gases and smoke, with indiscriminate gunshots, in complete darkness, in a closed area and in overcrowded conditions’, and that ‘the inmates suffered injuries due to bullets, explosions, gases, splinters, grenades, bombs, and the falling of debris during the four days the attack lasted.’§284. With regard to the types of injuries and the seriousness of the suffering caused by them, the wider circumstances of the attack, including lack of medical assistance, caused psychological and emotional suffering to the inmates who died as well as to injured and to uninjured survivors that ‘constituted a psychological torture’ in violation of Articles 5(1) and 5(2) of the ACHR, and Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture.§293.

Of interest in relation to the prohibition on the use of expanding bullets in situations of armed conflict is also an expert opinion considered by the Court according to which

there is evidence that suggests and backs [that] 7.62-millimeter rounds were fired against the prisoners. The weapons of great speed produce a great amount of destruction in the tissues and a great number of internal wounds in the body. Besides, these high-speed bullets with speeds that exceed 700-1,000 meters per second carry with them a great amount of kinetic energy, which tends to bounce off its objective, causing even more damage. Those attack weapons of great speed are usually used in wars, and not in a closed environment such as prisons.§187.

That ‘high speed weapons were used, and that the latter are characterized for producing greater destruction of the tissues and many internal injuries in the body, besides carrying a great amount of kinetic energy, that tends to bounce off its objective, causing even more damage’ were among the factors taken into consideration by the Court to reach the conclusion that ‘there was no justifying cause for the legitimate use of force by state agents and that it was an attack carried out to threaten the life and integrity of the inmates located in pavilions 1A and 4B’.§216.