Chapter IV. A the use of force introduction

Legislative Initiatives and Other Regulatory Provisions

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Legislative Initiatives and Other Regulatory Provisions

  1. On the previous point, the Commission already referred to the principle of legality in the use of force and how it is related to the state obligation to bring domestic provisions into line with international principles and standards, and to set aside those provisions at odds with it. In this section the different legislative initiatives and other provisions aimed at regulating the use of force by law enforcement officials and adopted during the period covered by this report will be examined, based on information that has been made available to the IACHR. The information presented in this section does not reflect the totality of legislative initiatives and other measures that could be adopted in the hemisphere in 2015 but only reflects the information received through the questionnaire, pronouncements of international organizations, publications state entities, public information circulated in the media and a source close to the Commission through its various tools for monitoring the situation of human rights in the region.

  1. In the responses from states and civil society, the Commission notes the wide-ranging consideration of the Basic Principles on the Use of Force and the Code of Conduct for Law Enforcement Officials in the various statutes, regulations, protocols, manuals, and other instruments that address the issue of the use of force by security forces in several countries of the hemisphere, although on occasion it may be merely declarative.

  1. In the time frame covered by this report the Commission notes the adoption of several initiatives related to the use of force.44 One example is in Argentina with the coming into force in September of this year (2015) of a protocol aimed at regulating the interventions of the Buenos Aires Province Prison Service (Servicio Penitenciario Bonaerense) in prison conflicts, called the Principles for the Use of Force by the Buenos Aires Province Prison Service. Those principles include important restrictions on the use of firearms, and sets forth principles such as “the duty to intervene and protect, exceptionality, legality, opportunity, moderation, proportionality, and accountability.”45 According to the information provided to the IACHR, the protocol also includes the concept of the gradual intervention of prison officials, with a variety of conflict resolution methods.46

  1. In Brazil, on December 22, 2014, Law No. 13,060-2014 was promulgated, the Federal Law on discipline and use of instruments with less offensive potential by public security agents throughout the national territory47; it regulates the use of instruments with less potential to inflict harm by public security agents. The Law provides that the use of such instruments should respect the principles of legality, necessity, reasonableness, and proportionality, and demands that contents on the instruments for making appropriate use of force must be included in the training of public security agents. The Law does not make reference to the special duties to use less lethal arms in the context of demonstrations and social protests; it only provides that the Executive branch shall issue the necessary regulations. On May 4, 2015, after serious acts of repression of teachers’ protests in Paraná, the government of that state promulgated Decree 1,238-201548 for the purpose of regulating and standardizing the use of less lethal weapons by public security agents. The Decree establishes that the handling, storage, transport, and use of such weapons requires specialized training and should be conducted “exclusively by experts,” who must know the “techniques, the risks, and the dangers stemming from their use.” The IACHR welcomes the steps taken by the State to bring the use of firearms and less lethal instruments in protests into line with the relevant international standards, and it urges that such measures be reinforced to ensure their effectiveness.

  1. The Commission received information from the Honduran government about changes that might have occurred in the regulatory framework, public policy design and creation of specialized units for protection of human rights of people deprived from their liberty49, wishing to emphasize on this occasion the approval of the new General Rules of the National Penitentiary System Act, Executive Agreement No. 322-2014, sanctioned by the Executive on December 2, 2014, and published in the Official Gazette on March 12, 201550, which would regulate the National Penitentiary System Act by establishing the organization and regulation of the National Penitentiary Institute and the penitentiary centers "[...] to achieve its primary purpose of protecting society, rehabilitation, re-education and social reintegration [...]" of people in their custody. The Commission notes that under the Rules only the Director of the penitentiary facility, or in his absence the Deputy Director or the Chief of Penitentiary Security of highest rank, may authorize the use of force, which must comply with legislation and standards of the area.

  1. For its part, Panama reported on the adoption of Draft Law No. 152, which modifies Law 18 of the National Police, as it restricts the use of pellets (whether plastic, lead, or rubber), or any type of arm whose main effect is to cause injury by fragments that cannot be located by X-ray in the human body, in peaceful demonstrations.51 If approved by the Executive, the law would represent progress in carrying out the state obligation to regulate the use of less lethal force in the context of efforts to control social mobilizations.

  1. On August 15, 2015, Peru enacted Legislative Decree No. 1186, which regulates the use of force by the National Police of Peru.52 That same month, the National Police issued a directive establishing the rules and procedures for the use of nonlethal and lethal police-issue weapons in police actions.53 Article 8.354 of Legislative Decree No. 1186 provides that “personnel of the National Police of Peru, on an exceptional basis, may make use of their firearms when strictly necessary, and only when less extreme measures would be insufficient or inadequate, when there is a real or imminent threat to the lives of police personnel or other persons, through the actions of a participant in a violent mass assembly.” Similarly, the National Police directive states that “the use of force and lethal weapons during assemblies and demonstrations demands closer examination.” It provides that “in dispersing illicit but nonviolent assemblies, police officers shall avoid the use of force or, if that is not possible, they shall restrict it to the necessary minimum. In dispersing violent assemblies, law enforcement officials may use lethal weapons when they cannot use less dangerous means and solely to the minimum extent necessary.” It also states that “nonlethal weapons shall be used in different social conflicts (workers, trade unions, students, evictions, etc.) when the demonstrators resort to violence or aggression or make use of blunt weapons, endangering the physical integrity of the public or police personnel; if the demonstrators endanger the physical integrity of the public or police personnel, lethal weapons may be used.” In its reply to the questionnaire, the civil society organization IDL described Legislative Decree No. 1186 as a broadly positive instrument. Nevertheless, it said that the rules appear to establish “differentiated treatment for the use of lethal force during social conflicts” and, to avoid that, “more than 115,000 officers must be trained in the contents of those rules, taught techniques to avoid the escalation of violence, given target training, and provided with sufficient nonlethal weapons.” 55

  1. The IACHR has received information from other regulatory measures of the use of force which could be incompatible with international obligations of States in this matter. Great concern has been expressed by the civil society after the publication in Nicaragua’s gazette, on December 18, 2015, of Law No. 919, Sovereign Security Act, by which the National Sovereign Security System is created, under the direction of the President of the Republic, who, supported by the Army of Nicaragua, will coordinate actions taken by its members in order to face "[...] any risk, threat or conflict that threatens the sovereign security."56 The Act considers as a threat to sovereign security, for example, "any illegal act that goes against the Nicaraguan state or its institutions [...] any act tending to consummate [...] sabotage, rebellion, treason against the State [...] any other act or illegal activity or natural factor that threatens the integral development of individuals, families and the community." The laxity with which some sovereign security objectives are addressed, or the definition of threat itself or other terms used in the wording, could facilitate military intervention in internal matters, particularly in the context of protests and public demonstrations.

  1. According to information that is a matter of public knowledge, Mexico adopted a Manual on the Military Use of Force Applicable to the three Armed Forces (Manual de uso militar de la fuerza, de aplicación común a las tres Fuerzas Armadas) in which reference is made to the international principles that govern the use of force by law enforcement officials.57 The Commission wishes to emphasize that the manual in question does not fill the gaps already noted by the Special Rapporteur on extrajudicial executions58, and notes with concern that it regulates the intervention of the armed forces in contexts of internal order, which, as has already been said, must be restricted to exceptional situations.

  1. In the case of Venezuela, the Commission observes with concern a new model of military control of public order that incorporates resolution 008610, Rules on the Action of the Bolivarian National Armed Forces in Functions of Public Order, Social Peace, and Citizen Co-existence in Public Assemblies and Demonstrations, of the Ministry of Defense, published in the Official Gazette of January 27, 201559, which seeks to regulate the actions of the armed forces “in functions involving controlling public order, social peace, and citizen co-existence in public assemblies and demonstrations,” which authorizes the use of chemical agents and lethal force in public assemblies and demonstrations. The Commission addressed what that resolution means in depth in chapter IV of this annual report60, in addition to having requested information from the State on February 27, 2015, pursuant to Article 18 of the Statute.61 The IACHR did not receive any response. The pronouncement of the Office of the UN High Commissioner for Human Rights (OHCHR) was along similar lines when rejecting the authorization extended to the Venezuelan Armed Forces to participate in tasks of repressing demonstrations and especially the provision allowing the use of firearms in performing those tasks.62

  1. The IACHR takes this opportunity to reiterate the states’ obligation to bring their domestic legislation into line with applicable international standards in the area of human rights, and to repeal or strike down such legislation that is at odds with such rules and standards. The Commission calls on the states, when undertaking such efforts, to adopt rules that clearly identify those occasions that would merit the participation of civilian law enforcement officials and the different degrees of intervention, governed by the above-referenced principles, and eliminating gaps that could allow for discretion. In designing the rules, special emphasis should be placed on the different scenarios in which the presence of law enforcement officers is required, and they should have clear parameters applicable, for example, to evictions, which must necessarily be different from those that apply to public demonstrations or prison riots, or confrontations with private persons or groups engaged in unlawful conduct, among other scenarios.

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