David Smilde and Hugo Pérez Hernáiz
[Since publishing this piece I have become aware of Keymer Ávila’s (Red de Apoyo & UCV) piece published the day before. I think it provides the most comprehensive legal analysis of R8610. -DS]
A new Ministry of Defense resolution has generated significant criticism and controversyamong human rights groups for allowing the Armed Forces to police protests and for permitting the use of lethal force.
Even critics recognize that Resolution 8610 (GacetaOficial, January 27, 2015, see from page 6 to10) has a number of progressive elements. For example, itestablishes the progressive and proportional use of force, prohibits use offorce against fleeing or fallen protesters, requires officers to make sure that persons injured during manifestations receive medical assistance, and it restricts the use of chemical substances such as tear gas to non-residential areas. It also requires that those arrested during the manifestations be allowed to contact their families and receive legal assistance.
Most of these regulations were taken from the 2011 standards for policing protest passed by the General Police Council. The National Guard has heretofore been largely unregulated in its work controlling protests. As Rebecca Hanson’s research showed, the practical result of having a highly regulated National Police force and a largely unregulated National Guard, is that the latter quickly get called in when protests get violent. Unsurprisingly, they were responsible for the majority of the human rights violations in 2014. Thus regulating their work controlling protests is a positive step.
However, Resolution 8610 immediately received strong criticism from human rights organizations for a couple of serious issues. Foro por la Vida, an umbrella organization bringing together NGOs strongly critical of the government put out a press release arguing that the document violates the 1999 Constitution which states that only police, and not the armed forces are to work in the protection and control of protests. Only the Bolivarian National Guard can aid the police when they are overwhelmed.
Article 332 of the Constitution establishes with clarity that “the organs of citizen security are civil in character and will respect dignity and human rights without discrimination. In addition, Article 329 of the Constitution establishes the competencies of each of the Armed Forces, indicating that the Bolivarian National Guard is the only one that can participate in operations to maintain internal order in the country, and only in cooperation with police forces.
Venezuela’s Armed Forces have four branches. The Army, Air Force, and Armada are dedicated to defense of Venezuela’s territorial sovereignty. The National Guard is dedicated to internal order.
The use of armed forces for situations of public order is a particularly sensitive point in Venezuela since the February 1989 riots when use of the army to restore public order resulted in widespread human rights violations. Jesuit Provincial for Venezuela, Arturo Peraza, expressed his concern that the document could “open the doors for the repetition of lamentable situations such as those lived in 1989 with the Caracazo.”
And of course the backdrop of the current discussion is the 2014 cycle of protests which saw serious violations of human rights on the part of security forces (see reports from Amnesty International, Human Rights Watch, and Provea). It also saw serious violence carried out by protestors with nine security agents killed as well as a number of government supporters (see appendix of Provea report).
Red de Apoyo, a human rights group that has been central in Venezuela’s police reform and which has had a close relationship to the government in recent years, put out a press release rejecting the resolution, focusing on the issue of lethal force.
The definition of “lethal force” in Section 7, Article 22 is ambiguous since in Section 9, Article 15 of the same resolution it is established that the Armed Forces “will not carry or use firearms if public meetings and peaceful manifestations.” How are they going to use firearms if they do not carry them? Will they be hidden?
Article 22 describes the progressive use of force by describing 7 stages in the “level of resistance” presented by the protestor. The stages go from (1) psychological intimidation, to (7) mortal violence. In this last stage the official “will apply potentially lethal force, be it with a fire arm or with a another potentially lethal weapon.”
Article 15, Section 9 states that officials of the Armed Forces “will not carry or use fire arms in the control of public meetings and pacific manifestations,” except “when carrying and using [fire arms] becomes necessary.”
The press release goes on to point out that since 2011 there has been a set of norms for policing protest that “are applicable to any security force when it is fulfilling police functions, for example the National Guard.” However, looking at the 2011 norms, we see they only mention national, state and municipal police forces and set up supervision under various levels of the command of police forces. As mentioned above, in 2014 they were widely interpreted as not applying to the National Guard.
SurDH a new group of human rights activists, several of whom work in the government, also came out with a press release. They argued that R8610 represents an important extension of norms of progressive and proportional to the Armed Forces, and meets international standards.
They argued that for a manifestation or protest to be considered an exercise of democratic rights it needs to be peaceful and without weapons. As such, R8610 is consistent with international standards. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials suggests that firearms can be used in the dispersal of violent assemblies, but only when lesser means are ineffective and under the general conditions of the use of lethal force, i.e. in self-defense or in defense of others in imminent threat.
14. In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in principle 9.
9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
SurDH’s press release also suggests that there is no constitutional prohibition against the other branches of the armed forces policing protest. They argue that Article 328 of the 1999 Constitution actually states that the all of the Armed Forces have among their responsabilities the maintenance of internal order, and that Article 329 simply says this is the “basic responsability” of the National Guard, not the “exclusive reponsiblity.” Nevertheless they do suggest this issue needs to be reviewed.
The Resolution does not precisely stipulate how and when each of these different components [of the armed forces] should act. Thus we deem it necessary that this issue be the object of a posterior regulation which could establish clear norms.
Nevertheless, this week Venezuela’s new Ombudsman Tarek William Saab asked the Ministry of Defense to emit, in a maximum of thirty days, a set of norms that makes clear that the only branch of the Armed Forces that should police manifestations and protests is the National Guard. The manual “should clearly specify that the branch of the Armed Forces that will act is the GN–the manual should express that clearly—and in support of civil authorities, a governor or mayor, or the police forces that have requested it.” (See more of William Saab’s statements here.)
Foro por la Vida, however, has asked the Ministry of Defense to repeal the document arguing that the National Assembly is the proper place to discuss and regulate such issues. They are also asked the Ministry of Defense to refrain from sending the Armed Forces to control of protests and demonstrations.