Brazil: Armed Forces Set Wide Leeway on Lethal Force

Rules for Rio Deployment Allow Unjustifiable Killings.

The members of the Brazilian Armed Forces deployed in public security operations in Rio de Janeiro operate under rules that allow unacceptably broad leeway for the use of lethal force, Human Rights Watch said today.

The rules of engagement permit soldiers to use lethal ammunition, “as a last resort,” when there is “a serious threat against their own physical integrity or that of third parties, against facilities and/or against material goods that are essential to the fulfillment of the mission.” In contrast, the UN Principles on the Use of Force and Firearms by Law Enforcement Officials only allow the deliberate use of deadly force, when strictly unavoidable, to protect life, and never to prevent property damage. The UN Principles are an authoritative statement of the restraint that should apply to any law enforcement activity in Rio, regardless of what uniform security forces wear.

“The armed forces have set up rules to use lethal force in Rio de Janeiro that might make sense if they were at deployed to combat, but that is not the case in Rio,” said Maria Laura Canineu, Brazil director at Human Rights Watch. “The armed forces have been called into Rio to act as police, and should abide by the same rules that bind the police forces.”

Under the vaguely-worded rules of engagement, issued by the Joint Chief of Staff of the Armed Forces in July 2017, the armed forces could deliberately kill a person who is causing damage to a barracks or an army vehicle, even if nobody is inside.

In July 2017, President Michel Temer ordered the deployment of the armed forces to improve security in Rio de Janeiro. On February 16, 2018, Temer went further and gave the armed forces command over all police forces in Rio de Janeiro and its prison system, after decreeing a federal intervention to restore public security in the state.

The Defense Ministry’s guidelines about the deployment of troops in public security operations clarifies those are not war operations and that the military should develop rules of engagement for each operation for the “restricted” use of force.

João Paulo Charleaux, a reporter from Nexo news site, reported on March 28, 2018, on the difference between the July 2017 rules of engagement and international standards. In response to Charleaux’s questions, the office of the Joint Chiefs of Staff said that the UN Principles provides “general guidelines” that the UN uses as the basis to establish other rules of engagement, “depending on the circumstances of the UN Mission.”

“The armed forces explanation for these rules of engagement makes no sense and military personnel should not be given such a dangerously broad license to kill,” Canineu said. “They are in Rio to tackle crime, not to fight a war.”

The armed forces rules of engagement would give much more leeway to its members to use firearms than to military police officers – the state force that patrols the streets in Brazil – who participate in the same operation.

An October 2015 ordinance issued by the general commander of the military police of Rio de Janeiro establishes that officers can only use their firearms in two circumstances: in self-defense or defense of a third party, and when a suspect resists arrest with a firearm or “a potentially-lethal instrument.”

The ordinance also forbids warning shots, stating that they are a crime under Article 15 of Law 10,826/2003, which punishes with up to four years in prison those who shoot at random in populated areas. In contrast, the armed forces rules only allow soldiers to take warning shots, but state that they should take them, “if possible.”

The rules by the military police and the armed forces also differ regarding procedures before opening fire. Military police officers must first identify themselves as police “in all cases.” Second, officers must give a clear warning before shooting, with enough time for the person to understand it, as long as giving the warning does not pose an “undue risk” to the officers or someone else. These requirements are necessary to ensure that law enforcement activity is rights-respecting, and does not result in unlawful and unjustifiable killings.

The armed forces rules do not include a requirement for soldiers to identify themselves. The action listed range from warnings and employing less lethal weapons, to the use of lethal force, but the rules state that that progression should be followed only “whenever possible,” opening the possibility that in some cases soldiers could open fire without warning.

Human Rights Watch has documented many cases in which military police opened fire in Rio de Janeiro without following their own directives. In this context, it is even more important to reinforce the rules and to apply them to all personnel, not to dangerously undermine them.

The July 2017 rules also state that “whenever possible, operations must be filmed and/or photographed to identify people who break the public order and to show the correct behavior of the troops to the justice system and public opinion, when necessary.” The rules do not state what would happen if the recordings show the behavior of troops is not “correct.”

“Under the current norms, a police officer who shoots someone in unjustifiable circumstances can and should be punished, whereas a member of the armed forces who does the same while participating in the same operation would be left untouched,” Canineu said. “The armed forces are simply trying to ensure privileged treatment for its members deployed in Rio and avoid accountability for excessive use of force.”