Small Wars Journal

Gray Zones and Crime Suppression: Between International Human Rights Law and International Law of Armed Conflicts

Wed, 02/05/2020 - 5:19am

Gray Zones and Crime Suppression: Between International Human Rights Law and International Law of Armed Conflicts

Carlos Frederico De Oliveira Pereira

Our country [Brazil] has not been involved in international armed conflict for a long time, but could, or can, it be experiencing a non-international armed conflict (NIAC), considering the confrontations against violent organized crime and between these same groups of criminals? That would be the only hypothesis, as there are no cases of armed political insurgency in our territory. In other words, the very common phrases seen on the news, such as: we are experiencing a real war; in Brazil, more is killed than in many wars; Rio de Janeiro is witnessing a war on drugs, among others, are these expressions merely rhetorical or would they, in fact, express a situation that fits the concept of NIACs?[1]

Territorial Gangs, Criminal Insurgency and NIAC

This situation of extreme violence occurs in the suppression of the so-called territorial gangs, third generation gangs,[2] in the expression of John P. Sullivan, a hypothesis in which a real criminal insurgency is experienced.[3] In view of the use of the Armed Forces (Forças Armadas Brasileiras – FFAA) to suppress the criminal actions of these criminal groups, in our understanding, there would be, rather, the presence of the elements that make up the concept of NIAC, considering the evolution of the normative concept, currently also materialized in the Rome Statute, in Article 8, 2, ¨f,” from the minimum threshold of Article 3 common to the 1949 Geneva Conventions: In the case of an armed conflict that does not have an international character and that occurs in the territory of one of the High Parties Contracting Parties, each Party to the conflict will be required to apply at least the following provisions and not its Protocol II of 1977.[4]

Therefore, it is essential to know if the conflict situation, that is, due to the armed confrontations of organized criminals with the security forces and between them, has exceeded the minimum limit of internal disturbances, since below this threshold the problem is limited to the application of the national criminal law, inspired by international treaties on the use of force in police actions where proportional, progressive and selective[5] use prevails, unlike lethal use, which is typical of the law of Armed Conflict (LAC), also known as International Humanitarian law (IHL). In our opinion, the answer is positive in situations where there is a need to use the FFAA in “Operations to Guarantee Law and Order” (Garantia de Lei e Ordem – GLO), as well as considering the other elements that make up the concept of NIAC, that is, intensity of the conflict and sufficient organization of the armed group. This is a true criminal insurgency. With the intervention of the Federal Government in the State of Rio de Janeiro, instituted with Decree 9,288, of February 16, 2018, the situation became even clearer, in our opinion.[6] But it cannot be denied that there are situations that touch the concept of NIAC, including within the penal suppression, that would require similar regulation to better protect society. These are the “gray zone” situations.

Gray Zone Concept

This article focuses on conflicts in the "gray zone," normally analyzed by international doctrine under the focus of conflicts of political origin,[7] whose doctrinal parameters we import for the analysis of this very serious public security problem. This happens, as we analyze the problem, in situations where confrontations alternate between staying below the minimum limit (internal disturbances) and sporadically reaching and exceeding that limit, however, then they return to the typical seriousness of the confrontations in criminal law enforcement.[8]  In other words, it is naturally a problem of application of criminal law, but one that, sporadically, evolves to the seriousness of a NIAC. This is a very common hypothesis in the suppression of violent crime in Latin America, highlighting our country [Brazil], some Central American countries and Mexico. The problem is to know whether the suppression of internal crime, outside of the cases that we already consider as NIACs, may eventually imply the application of some LAC rules, which govern NIACs.

As the suppression of crime is a problem pertaining to the sovereignty of nations, with regard to the imposition of their legal and penal order within their territory, international doctrine naturally tends to exclude the conflicts arising thereof from the concept of NIAC, a subject belonging to the field of law international, although this understanding is changing[9] Added to this is the natural resistance of States to not recognize the conflictive situation as NIAC, even if it is unequivocally presenting itself as an insurgency, under the absolutely unfounded fear of giving legitimacy to the action of non-state actors.

The very non-political nature of the confrontations with organized crime, in the sense that they do not seek the seizure of power as happens in a political insurgency, already makes it very difficult to analyze the problem in the light of the LAC norms. International doctrine, when it comes to NIAC, usually refers to the political insurgency. The picture starts to change because it is unequivocal today that there are hypothesis in which crime suppression evolves into very serious armed confrontations, which, we must agree, did not exist when the common article 3 to the Geneva Conventions came into force in 1949, as is the case, for example, of Rio de Janeiro or in some places in Mexico. It is argued that these situations could enter at least the concept of gray zone, but only a few authors admit that, in some situations, it is really a NIAC, as is the case with the author of this article. In the case of a gray zone, what would be the legal consequences to the application of criminal law? Could the LAC be applied?

Gray Zone: International View and Oscillation Between the Problem of Application of Criminal Law and Overcoming the Minimum Threshold of Article 3 Common to the Geneva Conventions

Gray zone, as we use the expression, refers to situations of armed violence in the suppression of serious cases of violent organized crime, which touch on the concept of NIAC. This is the meaning we use for the expression "gray zone," which, under international law, does not fully coincide with the meaning used here. It is observed in the international doctrine the use of the expression "gray zone" to characterize the different forms of asymmetric conflicts, within the so-called fourth generation conflicts, where the different forms of insurgency, terrorism, are included, which go beyond the binary vision of peace-war, that is, peace and international and non-international armed conflict, for example.[10]  These are situations in which armed conflict is interspersed with periods of peace, in which international politics is present alongside military actions.[11] Or else it involves coercive activity, but deliberately below the limit of military actions in internal armed conflict.[12]

As a common feature of this approach one will find situations of destabilization, methods of aggression that do not necessarily involve military action, but seek the same results of victory in war, for example, cyber-attacks.[13] Or yet, the situations of conflicts and confrontations whose characteristics do not fit the requirements of the categories that are specific to LAC, such as combatants, direct participation in hostilities, attack and etc., that is, the most varied forms of armed confrontation that cannot be framed within the strict normative parameters of the concepts of international or non-international armed conflict, of which the best example is the fight against terrorism. In other words, they are themes that, in fact, imply in verifying the existence of a gap in international law for these situations.

As stated, we do not use the term gray zone taking the binary conflict-peace view as a parameter, precisely because the gray zone that interests us is that which refers to armed confrontations with security forces in the context of criminal law enforcement, or between groups of criminals who, although the confrontations are very serious, would not fulfill the concept of NIAC, due to the lack of the necessary intensity, mainly because there is oscillation in overcoming the limit of internal disturbances. In these confrontations, there is an alternation of intensity, which varies between evolving from a problem of application of the criminal law, exceeding the limit of internal disturbance, and then returning to the normal gravity of the suppression of crime.

In short, the problem is limited to seeking the appropriate legal framework for a conflict that alternates between the problem of criminal suppression and the NIAC. Consequently, the problem posed implies the interaction between the LAC and the international protection of human rights in this type of conflict, which provides many of the principles pertaining to the use of force in the application of criminal law. In this sense, the study of "gray zone-type" conflicts involves analyzing the protection of civilians in situations that lie between the protection afforded by international human rights law (IHRL) and the law of war. The gray zone situations would involve a gap between the two protection systems, in the face of a situation in which it is doubtful whether it is a NIAC, in other words.[14]

Gray zone conflicts from any perspective face, as a first challenge, the interaction between the rules of the IHRL and LAC. What, then, would be the appropriate legal framework for these hypotheses?

A gray zone conflict, in the approach that interests us, first of all, has NIAC characteristics, for which two ingredients are needed in the light of the Tadić Standard: prolonged conflict, therefore intense and a certain level of organization of non-state actors.[15] However, the intensity of the conflict constantly fluctuates beyond internal disturbances and below that limit. Thus, it may well be another case, albeit a serious one, of criminal suppression. We have included in the gray zone serious cases of criminal insurgency, when territorial dominance is lacking, but unequivocally crime suppression must occur with the use of military combat methods, far beyond what is normally expected from confrontations in the activity of suppression of crime, so that the legal treatment of domestic law is not adequate for this hypothesis.

Interaction Between LAC and the IHRL: Which System Should be Considered Lex Specialis?

As the concept of NIAC does not need political motivation and is guided by the intensity and level of organization of non-state actors, in theory, it is perfectly possible to have some hypothesis of penal suppression fill the concept. Or else it's a gray zone. In any of these cases, by virtue of an understanding that has long been pacified, the rules governing the application of criminal law, guided by the IHRL, must still be observed.[16] International jurisprudence is guided by the application of the LAC rules as lex specialis when the armed conflict is characterized, but which would not depart from the rules regarding the application of criminal law. However, it may happen that not the LAC, but the IHRL, may be a special rule in gray zone conflicts as we will show in the end.[17]

Another important aspect must be noted. As the concept of armed conflict stems from de facto analysis, there would be no need for the conflictive situation to fall under any hypothesis of constitutional restriction of rights, such as a state of defense, emergency or siege, or even Union (Federal Government) intervention, as happened in Rio de Janeiro. Furthermore, these are often episodic conflicts, with no political will to impose the restriction of rights. But be careful, even if episodic, not being the result of prolonged conflicts, they can give rise to a NIAC situation, as happened in La Tablada.

In gray zone conflicts, when specifically referred to with regard to those involving criminal suppression, confrontations tend to worsen because non-state actors are grouped in gangs that do not interrupt their organizational evolution, on the contrary, increasingly they become sophisticated and internationalized, due to the expansion of their sources of financing, notably the international traffic in drugs. Therefore, violence and social insecurity intensify.

Gray Zone: Legal Framework Under Construction

Now, we reach the point of knowing (framing) the legal framework for these hypotheses. In these cases, we understand that it is perfectly possible to consider applying some minimum LAC rules, which limit the use of force and establish adequate means of combat to, as much as possible, avoid reflexively reaching the civilian population. The rules governing armed conflicts are much more detailed in protecting the civilian population than the rules governing police activity. The norms that govern police activity are guided by the principle of progressive and selective use of force, without any detailed rule on means and methods of combat in order to protect the civilian population as much as possible, which is typical of LAC. And the proportionality of police action refers mainly to the people who are subject to the suppression of crime. In LAC proportionality must be observed primarily in relation to those who do not participate in the conflict, that is, the civilian population.

In fact, in our opinion, even if the situation does not fall into a gray zone, that is, it is within the limits of the use of force in the suppression of crime, which is prohibited in armed conflict, it cannot be admitted in crime suppression. Putting this principle into practice, while regulating the gray zone, is a task that should be better done by domestic law itself, changing the penal and penal procedural legislation, which may be inspired by LAC. Clarifying further, the normative vacuum in the gray zone exists at the level of international law. Within the perspective of the national law of nations, it is perfectly possible to create rules for the application of criminal law (of material and procedural law) appropriate to these hypothesis, which can be inspired by the rules that regulate the use of force in LAC, but without extending all its effects, only in what it can contribute to lessen the reflexes of the confrontations on the civilian population.

Self-defense Against the Use of Weapons of War by Non-state Actors

Let's look at the hypothesis about what has happened in Rio de Janeiro, about criminals carrying rifles and other high-caliber weapons of war. Lethal shootings by police forces against these criminals is inevitable because it is impossible to give a voice of arrest in these circumstances in the face of the extreme lethality of the weapons used by them. The justification about fitting imminent aggression within self-defense, which seems plausible, easily face conceptual restrictions within the rule of this kind of defense. Within the rules that govern the situation as an armed conflict, a deadly shot would be authorized with support for the lethal use of force. But what about situations when there is no territorial interlock or when, even though within a context of suppressing a criminal group with a history of violent criminal activities, the violence happened in a specific episode and not within a chronic context, that is, did not join the concept of NIAC? Then we thought that it would be better if the situation were detailed in law so that regulation could use LAC rules. The lethal use of force in these conditions, to keep similarity with what happens in armed conflicts, demands a legal concept, expanding the concept of self-defense, although it is undeniable that there is an imminent aggression towards those, for example, that are on the street with a rifle. However serious the situation may be, not falling within the concept of armed conflict, the death of the non-state actor cannot be legitimized by strict compliance with legal duty, in our opinion. The lethal use of force is only legitimized in the law of war.[18]

Well, if the international law does not regulate the subject, domestic law must do so by giving a normative framework proportional to the type of confrontation, on the contrary, under pain of leaving the security forces without an adequate legal framework, at the same time without imposing norms on the security forces to better protect the civilian population.

The care that should be taken in this matter is how to legitimize the use of force by the police so that it does not liken to the lethal use of force proper to LAC, as its irregular use can characterize summary execution, which leads to the violation of human rights and humanitarian law. However, in order to build these legal hypotheses for dealing with situations of very serious violations practiced by these groups of criminals, the legal parameters of domestic law themselves provide elements for this. In effect, the Constitution establishes a different standard of severity for crimes that it considers more serious, such as heinous crimes, attacks by armed groups against the state, racial discrimination. As if this were not enough, the factual situation itself, as has already been said here, clearly demonstrates that repressing a group that takes a city by storm, heavily armed with rifles, for example, is a situation whose use of force by the police, strictly speaking, does not come regulated in the aforementioned treaties that govern police activity. The progressive use of force is impractical in many of these cases, as is also certain that police tactics must necessarily yield to those of the military type, under the risk of exacerbating the risks to the law enforcement officers themselves, as well as to the civilian population. In such a situation, the rules governing the use of force in the application of criminal law are insufficient to protect the civilian population, unlike what happens with LAC.

The Risk of Violating the Two Protective Systems (LAC and IHRL) in Police Operations: The Example of Helicopter Action

It is also true that the most important LAC rules, the non-observance of which can give rise to serious violations, could also act as a guide for police actions. What cannot be done in armed conflicts, with more reason, is not authorized in fighting crime. What is often observed is that police operations do not have detailed rules on means and methods of combat, not least because they were not designed for situations like the ones we are discussing here. Thus, a police operation against an armed gang in the manner of an insurgent group in Afghanistan, using the same violence, risks violating both systems, the one that regulates the use of force in police operations and the one that regulates the Armed Forces in armed conflicts.

A good example is the use of a helicopter, which we even mentioned in our book. Due to the lack of knowledge of LAC rules, the police use helicopters against criminals in police operations, but in practice, this is often a vertical attack, which can only be carried out by the Armed Forces in armed conflicts. The emblematic case was the persecution of the drug dealer known as "mathematician." During the intervention in Rio de Janeiro, regardless of whether operations were understood to be within the context of the NIAC or not, members of the Military Prosecutors’ Office in Rio de Janeiro made a recommendation to the Operations Command that the aircraft be used as support for ground operations.[19]

In that case, they could shoot in self-defense, and in defense of military on the ground during operations or other people. It is normal in a police activity and, it was enough, mainly to avoid, as much as possible, collateral damage to the civilian population. In spite of the situation of suppressing these criminal groups, in those conditions in which the intervention was developed, in our opinion, being the case of NIAC. In fact, every time we talk about "stray bullets" hitting civilians, curiously, only the police forces’ shootings are mentioned, as if a bullet coming out of the barrel of the bandits' powerful rifles engaged its target at its own free will.

The Recommendation also referred to the observance of several provisions on rules to be observed by the Armed Forces involved in the conflict, which are specific to LAC. In short, they are rules that can very well be observed in police activity at any given situation. They are not incompatible with criminal prosecution.

In an article on the gray zone in conflicts arising from the suppression of organized crime, Sven Peterke[20] suggested that the search for the proper norm be done through the functional approach that better regulates the problem, in order to escape the overlapping analysis of LAC and IHRL rules. This Recommendation is perhaps a concrete example of this approach. In order to come up with this type of solution, it was necessary to assume that maximum human rights protection must prevail. The norms that regulate the use of force in LAC are also human rights norms. It is just a matter of carefully observing the common Article 3 to conclude that the regulation that exists there is no different from the protective system of the national law of nations. Hence, it is not difficult to conclude that a method of confrontation prohibited in armed conflict cannot be permitted in a police operation. This conclusion turns out to be valid for any police confrontation.

A movement has recently followed to prevent the use of helicopters as a platform for firing on criminals who dominate the slums in Rio de Janeiro. Now, the helicopter cannot be a platform for firing in the form of an attack,[21] but how can it be prevented from firing even for the crew to defend it against criminals? On this and other topics, it is easy to jump to extremes in our country.

The Military Prosecutor’s Office (Ministério Público Militar) or MPO’s recommendation implied a functional, case-by-case solution to the problem of using the helicopter in the situation experienced in the intervention, precisely to avoid as much collateral damage to the civilian population as possible. The proportionality in the use of force in LAC aims directly at protecting the civilian population. But, in order to better regulate the problem of gray zone situations, it better come through the law. For example, within the regulation of the progressive and selective use of police forces, based on the idea that what is prohibited in armed conflict cannot be used in a police operation. In this sense, some rules that limit the use of force in LAC can be translated into domestic law, via legislative change. In our view, it is not possible to face gray zone conflicts without changing the internal criminal and criminal procedure legislation. It is a question of innovating the criminal repressive system, taking as a parameter, norms that limit the use of force which currently govern situations of armed conflict. Perhaps international law in the future will create a third system. The doctrine of international law is already beginning to address this possibility.

Another important detail is that, in our understanding, despite that situation being clearly NIAC, the MPO's recommendation on the use of helicopters by MPO Members, which is a norm, even if it does not come from a law in a formal sense, from the point of view of the gray zone, it placed limitations on the use of helicopters as a firing platform, but which can be applied to any police operation. In other words, the recommendation actually regulates a case that can be considered as a gray zone, or as a situation of NIAC, but also works even in normal confrontations of police activity.

The combination of the two systems to better address the gray zone can be done with this type of standards. It could and can be done through Ordinances and Instructions of the Ministry of Defense, for example, but the ideal is that it comes through ordinary law, because the limitations to the use of force inspired by LAC can even be transferred to the routine armed police activity, for example.

Legal Regulation of the Gray Zone Through Legal Treatment of the Use of Weapons by Police Forces

The legal regulation, establishing specific rules on means and methods of combat, inspired by LAC, is the appropriate solution to the problem of how to adequately remedy the confrontations in the gray zones, because, in addition to the matter of criminal law enforcement must always be implemented through law, the legal solution avoids casuistry.[22]  Principles such as the distinction between military and civilian objectives, prohibition of some hypothesis of means and methods of combat, prohibition of indiscriminate attacks, prevention in the attack, need for prior intelligence activity, command responsibility, among others, can be perfectly translated to police activity, providing greater legal security to its members and providing greater guarantee to the civilian population against collateral damage. The use of force, even in the gray zone, remains progressive, but keeping in mind that self-defense cannot be unreal, ignoring the fact that the possession of weapons of war is unmistakably imminence of a deadly attack.

In order to provide greater guarantees to police activity, but without equating self-defense with strict compliance with legal duty, we sent the Ministry of Justice a draft law regulating the qualified immunity of US law, which is situated on the procedural level. The adoption of the institute implies in only exceptionally admitting the prosecution of police officers who in the armed clashes will harm or kill. This only happens in the event of a conscious violation of the internal order. Experience has shown that self-defense and strict compliance with legal duty work well up to the time that injuries to people's lives and physical integrity occur.

The preliminary draft also aimed to modify Federal Law 13.060/14, which deals with the use of firearms by police forces, in order to ensure the proportional use of force for the confrontation possibilities within the gray zone, but which also conforms with police officers’ daily activities. Facing a thug with a rifle is not the same thing as a thug wielding a .38 revolver. Tactics for addressing these serious situations necessarily resemble those used in armed conflicts. It is impossible to effectively capture and arrest (known in Brazil as “voz de prisão” or “voice of prison”) a criminal with high power weapons. But it is also necessary to conclude that even in confrontations that fall below the gray zone threshold, the use of tactics and methods that are prohibited in war may be lawfully used. The Draft seeks to change the referred law by introducing concepts specific to the Law of War, not to prevent police action, but to adapt it to the type of confrontations we are dealing with here, which surpasses the levels violence that police officers commonly deal with on a daily basis. However, it goes further by materializing the principle that what is prohibited in armed conflict cannot be admitted in police activity, so that it establishes limits on confrontations that fall below the gray zone as well.

Conclusion

The combination of the two systems, idealized by us, was materialized through a proposal—currently under analysis at the Ministry of Justice—that would change Brazilian Federal Law 13.060/14, which regulates the use of firearms by agents of the security forces. Within this view, the IHRL, embodied in the rules of application of criminal law, of domestic law, becomes a special law, but using the limits on the use of force by LAC nonetheless.[23]

The law of armed conflict’s protective system towards the civilian population is much more effective, since it is more detailed about limits on the use of force, especially considering the peculiarities of conflicts in Rio de Janeiro, for example, or in any densely populated urban area. However, in urban conflicts in the gray zone, lethal use of force along the lines of LAC is not admitted, but the expansion of the concept of self-defense has similar effects, especially if accompanied by qualified immunity, giving greater guarantees to the police forces. Of course, it will never have the amplitude of the exclusion of illegality as the strict fulfillment of the legal duty, which, modernly, prevents the behavior being construed as matching the incriminating norm, since the behavior is not anti-normative. Self defense must always be assessed on a case-by-case basis, and cannot be abstracted as a directly excluding rule, as would be the case, for example, with bailiffs who were to execute an arrest warrant for breaking into the door of a residence.

We have not lost sight of the fact that giving greater legal certainty to the security forces also implies extending the limit to the use of force, as well as establishing greater control over police operations, which is why our preliminary project included criminalizing command responsibility, in case of failure to control subordinates' actions.

Moreover, the preliminary draft sought to transfer to the criminal suppression activity some hypothesis of restriction to the use of force in armed conflicts, which can be fully observed in the application of criminal law in the event of armed confrontations. These rules, when correctly observed, undoubtedly greatly reduce the possibility of collateral damage to the civilian population.

End Notes

N.B. This article is a translated and updated version of “ARTIGOS TEMÁTICOS – 70 ANOS DAS CONVENÇÕES DE GENEBRA: Zonas cinzentas e repressão penal: entre o direito internacional dos direitos humanos e o direito internacional dos conflitos armados” which was originally published in Portuguese in Revista do Ministério Público Militar (Brazil), Edição n. 31, November 2019, https://revista.mpm.mp.br/artigo/zonas-cinzentas-e-repressao-penal-entre-o-direito-internacional-dos-direitos-humanos-e-o-direito-internacional-dos-conflitos-armados/.

[1] The following preamble appeared in the original version of this article: “Firstly, I would like to applaud the initiative to open a specific volume of our magazine on the 70th anniversary of the Geneva Conventions. These international agreements, which represent the most important framework of international law on armed conflicts, or Law of Armed Conflict – LAC, erected after the bloodiest of armed conflicts in the world, for us, in the Military Public Prosecutors’ Office, have an extremely important significance, given that our institution focuses more directly than the other branches of the Brazilian Public Prosecutors’ Office on this set of rules, whose primary objective is to limit the use of force to avoid unnecessary suffering in relation to those who fight, as well as to protect as much as possible the civilian population and civilian property that are not directly related to armed conflicts.”  Law of Armed Conflict (LAC) is synonymous with International Humanitarian Law as used by the International Committee of the Red Cross (ICRC).

[2] They are gangs that exercise territorial dominance, exercising government functions de facto, excluding state power and imposing their own rules. When gangs evolve to the third generation, the challenge to state sovereignty elevates them to the category of criminal insurgency. See Carlos Frederico de Oliveira Pereira, Gangues Territoriais e Direito Internacional dos Conflitos Armados. Curtitiba: Juruá, 2016, pp. 205/7.

[3] See John P. Sullivan, “The Challenges of Territorial Gangs: Civil Strife, Criminal Insurgencies and Crime Wars.” Revista do Ministério Público Militar (Brazil), Edição n. 31, November 2019, https://revista.mpm.mp.br/artigo/the-challenges-of-territorial-gangs-civil-strife-criminal-insurgencies-and-crime-wars/.

[4] The concept of NIAC, under the terms of Protocol II to the Geneva Conventions of 1977, unlike what happens under the common article 3, is of great intensity, to the point of dissent dominating part of the country and excluding the power of the State, imposing its own rules of coexistence for the civilian population, replacing the jurisdiction of the state:

1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of applications, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 

2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

The minimum threshold of violence to be considered as reaching the concept of NIAC, for the cases we analyzed, are based on the initial concept of NIAC from article 3 common to the Geneva Conventions, taking into account that they must exceed the minimum threshold of internal disturbances. In this sense, the concept of Protocol II, although related to large-scale non-international armed conflicts, also limits the scope of the common Article 3, so that the conflict that does not go beyond the characteristics of internal disturbances and tensions remains a problem of criminal law enforcement. The concept of internal disturbances more directly involves armed confrontation. The concept given by article 8, 2, ¨f” of the Rome Statute reinforces this understanding, that one must go beyond the threshold of internal disturbances to enter into force the rules of LAC, which occurs in protracted conflicts, an index of severe intensity of conflict and even involving armed groups among themselves, not necessarily against the State. This last characteristic is new in relation to the concept given by Protocol II of 1.977. Personally, we understand that this is a third concept of NIAC, but that is not how most of the doctrine concludes. That is, in some cases of serious disturbance of the order involving territorial gangs, notably when the State makes use of the Armed Forces to assist the police forces in the suppression of crime, in our opinion, there is the intensity required by LAC, in view of the common article 3, but the territorial domain does not create an exclusion zone for the State as required by Protocol II of 1.977. The tendency of the doctrine is to either continue to see the problem exclusively within the scope of criminal law or, at most, to see this situation as a gray zone and not exactly as a NIAC.

[5] The main rules are found in the PBUFA, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, http://pfdc.pgr.mpf.mp.br/atuacao-e-conteudos-de- apoio/legislacao/segurancapublica/principios_basicos_arma_fogo_funcionarios_1990.pdf... and the Code of Conduct for Law Enforcement Officials, http://www.mpsp.mp.br/portal/page/portal/cao_criminal/CAOCri_ControleExtAtivPol/Código de Conduta para os Funcionários Responsáveis pela Aplicação da Lei_2.pdf.

[6] The Brazilian Constitution provides for three hypotheses of extraordinary measures, which seek to restore constitutional normality: intervention, state of defense and siege. The least serious is the intervention and the one with the greatest restriction of rights is the state of siege. Intervention, a circumstance in which the autonomy of the Member State is momentarily removed, has as one of its objectives the termination of a serious compromise of public order. Evidently, this can only happen when the threshold of internal disturbances is exceeded, given the need for episodic use of the Armed Forces. But remember that the concept of armed conflict arises from the analysis of the de facto situation, not requiring formal legal recognition. Even without recognizing these hypotheses of constitutional measures of exception, NIAC can be characterized. The recognition is the unequivocal proof of the existence of NIAC, in our opinion.

[7] Northern countries, which produce most of the LAC doctrine, do not experience the very serious armed confrontations resulting from the suppression of violent organized crime, so the natural tendency is to restrict the analysis of the insurgency problem only under the political insurgency bias, but there is a criminal insurgency, a reality experienced in Latin America.

[8] Law-intensity conflicts: a grey area of legal regulation:

“The dynamics of asymmetric conflict as described earlier lead to what can be described as low-intensity hostilities that represent a grey area for legal regulation. Low-intensity hostilities are recognized by the US military as being a key feature of contemporary conflicts and are defined as being protracted ¨political-military¨ confrontations between states and armed groups that persisted below and sometimes at the threshold of conventional conflict. As indicated in Figure 1.2, this grey area of military operations other than war may comprise counterinsurgency and counterterrorist operations. Van Creveld has suggested that future ¨wars¨ will be ¨overwhelmingly¨ low intensity in character. In this strategic environment, Van Creveld suggests that: Organizationally and in terms of the equipment at their disposal, the armed forces of the world will have to adjust themselves to this situation by changing their doctrine, doing away with much of their heavy equipment and becoming more like the police (p.86.)” from John Michael Hopkins, The rule of law in crisis and conflict grey zones-regulating the use of force in a global information environment, Routledge: London, 2019, pp. 39, 383.

[9] The Academy of International Humanitarian Law and Human Rights, in listing the armed conflicts in 2017, included those arising from the crackdown on drug gangs in Colombia, Mexico and El Salvador. It did not include in the list the conflicts resulting from crime suppression in Brazil, which does not mean that they do not have this characteristic, as it is a doctrinal opinion. At the same time, it made the observations below that coincide with what we are saying here about the possibility of conflicts arising from crime suppression reach the concept of NIAC: ¨…Organized armed groups are those with a command-and-control structure, who typically possess and use a variety of weapons and control a significant logistical capacity that gives them the capability to conduct regular military operations. When engaged in regular and intense armed confrontations with armed forces or other organized armed groups, such groups are ‘party’ to a NIAC. These groups are sometimes called rebels, insurgents, terrorists, criminal gangs or anti-government elements by states or other entities; such designations have no consequence for the determination of their status under international law with respect to an armed conflict. It is not, however, necessary that an armed group have a particular political or religious agenda for it to be party to a NIAC;31 therefore, an organized armed group whose aim is purely lucrative, such as a drugs cartel or an organized crime network, can be a party to an armed conflict.32” This discussion takes place in The War Report 2017 with regard specifically to the situation in Mexico.¨ The War Report: armed conflicts in 2017, Geneva Academy, https://www.geneva-academy.ch/joomlatools-files/docman-files/The%20War%20Report%202017.pdf.

[10] Rosa Brooks, “Rule of law in the gray zone.” Modern War Institute, 02 July 2018, https://mwi.usma.edu/rule-law-gray-zone/.

[11] See Joseph L. Votel, Charles T. Cleveland, Charles T. Connett, and Will Irwin, “Unconventional Warfare in the Gray Zone.” Joint Force Quarterly, 80 (1st Quarter, January 2016), https://ndupress.ndu.edu/JFQ/Joint-Force-Quarterly-80/Article/643108/unconventional-warfare-in-the-gray-zone/.

[12] Hal Brands, “Paradoxes of the gray zone,” E-Notes. Foreign Policy Research Institute, 05 February 2016, https://www.fpri.org/article/2016/02/paradoxes-gray-zone/. This includes quick military actions, employing Special Forces, with short-term military confrontation, situations that are not normally governed by LAC, See Joseph Votel, Et al. “Unconventional warfare in the gray zone,” Small Wars Journal, 17 January 2016, https://smallwarsjournal.com/blog/unconventional-warfare-in-the-gray-zone.

[13] See Miranda Grange, “Cyber Warfare And The Law Of Armed Conflict,” Laws 533: Law of Armed Conflict Research Paper, Victoria: University of Welington, 2014, pp. 1-35, https://core.ac.uk/download/pdf/41339676.pdf.

[14] We can also find the use of this expression in reference to the study of situations in certain areas in which there is a gap in the application of state sovereignty, which is in dispute with other national groups, insurgents or criminals, as in Colômbia and México.  See Antal Berkes, Henry Torres Vásquez, and Omar Díaz, “Grey zones” in international law: areas controlled by the Colombian FARC-EP.” Justitia, No. 14, pp. 65/91, http://revistas.ustabuca.edu.co/index.php/IUSTITIA/article/view/1679. Also at https://www.research.manchester.ac.uk/portal/en/publications/grey-zones-in-international-law-areas-controlled-by-the-colombian-farcep(fad53f49-f472-4be4-b1d9-34c69ead9118).html.

[15] See ICTY, The Prosecutor v. Dusko Tadić, IT-94-1-AR72, Appeals Chamber, Decision, 2 October 1995; available on http://www.un.org, footnotes omitted]; also see “Non-international armed conflict.” RULAC: Rule of Law in Armed Conflicts,” Geneva Academy, n.d., http://www.rulac.org/classification/non-international-armed-conflicts; and “How is the Term "Armed Conflict" Defined in International Humanitarian Law?” International Committee of the Red Cross (ICRC) Opinion Paper. March 2008, https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf.

[16] Marco Sassòli and Laura M. Olsen, “The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts.” International Review of Red Cross (IRRC). Volume 90, no. 871. September 2008. pp. 599/627, https://international-review.icrc.org/articles/relationship-between-international-humanitarian-and-human-rights-law-where-it-matters.

[17] It is as Lartmer emphasizes:

¨... The maxim lex specialis derogat legi generali provides that a more specialized law, specifically addressing the subject matter at hand, takes precedence over more general law. Exactly how the ICJ intended this maxim to apply was not explained in the judgments and has been the subject of some scholarly debate. It is clear from the context, however, that ICJ did not envisage IHL, as the lex specialis, displacing IHRL as a whole during armed conflict. Rather it suggests that the general rules of human rights, applicable at all times, would need to be interpreted at times of armed conflict in light of the more specialized rules of IHL, specific to that context. The prohibition on arbitrary killing under IHRL, for example, would continue to apply, but the assessment of what was meant by ¨arbitrary¨ in the context of armed conflict would be interpreted in the light of IHL principles on distinction, military necessity and proportionality.

UN human rights bodies, for their part, have noted the application of lex specialis while seeking to emphasize ¨that human rigs and humanitarian law are complementary and mutually reinforcing.22 Both IHRL and IHL practitioners have subsequently promoted a range of approaches which seek to articulate both branches on a case-by-case or rule-by-rule basis, filling perceived gaps or resolving uncertainties in one branch by recourse to a more detailed or specialized rule in the other branch. Crucially this appears to recognize that, in some cases, human rights law may constitute the lex specialis. Thus Louise Doswald-beck (giving the human right to life as an example): Where there is any kind of doubt, or where the (IHL) rules are too general to provide all the answers, then human rights law will fill the gap, provided that this law is not incompatible the overall fundamental and purpose of IHL.23 in Mark Lattimer and Phillipe Sands (Eds.). The Grey Zone, Civilian Protection Between Human Rights and the Laws of War, Oxon: Hart, 2017, pp.6/7, 448.

[18] It should be noted the oposing opinions of the Federal Public Prosecutors Cleber de Oliveira Tavares Neto and Douglas Santos Araújo, in an article that has not yet been published (“The Legitimacy of the Lethal Force by Public Security Agents”), in the sense that legitimate defense is exercised within of a legal faculty, which is not consistent with the use of force by the police, inspired by a duty to act. Thus, the police when defending a third party from a criminal attack and when repressing crime, using force, eventually killing or injuring, is not in self-defense but in strict compliance with the legal duty, as they act in the defense of society in the face of duty imposed by law and not because it exercises a right. The reasoning is well grounded in terms of domestic law. But it is hardly compatible with international law, the rules of which inspire the use of force by police worldwide. The treaties governing police activity (cf. note 4) do not give rise to this conclusion, in our opinion. Under no circumstances is the death caused by the policemen in action fully legitimized as when a soldier kills another in a war. The Law of War – LCA concept of target killings cannot be translated into the application of criminal law. As a strict fulfillment of the legal duty, which adjusts to the lethal use of force as regulated by LAC, there could be no question of even starting a preliminary investigation against the police. It happens that any police action that results in injury to life or physical integrity demands investigation on a case-by-case basis. A good method for providing greater legal protection to the police is qualified immunity under American law, but it never equates a police officer in action with a soldier at war.

[19] RECOMENDATION N° 002, of June 25, 2018:

The Military Prosecutors’ Office, based on arts. 6, XX, of Federal Law nº 75, of May 20, 1993 and art. 88, of Federal Law 7.210/84, by its undersigned members and considering that the means and methods prohibited in armed conflicts should not be used in actions to suppress crime, RECOMMENDS to the Hon. Mr. Commander of the Military Command of the East and Federal Interventor in the State of Rio de Janeiro, that in the event of the police operations counting on the participation of the Armed Forces, even if in simple logistical support, the following is observed:

1. Police forces in action should be made aware of the distinction between lethal use of force and progressive use of force. That is to say, the death resulting from confrontations in the operations to repress the crime stems exclusively from the rules that make up the self-defense or that of a third party.

2. The Security Forces must be instructed on the content of arts. 51 and 57 of Additional Protocol I of 1977, avoiding indiscriminate attacks and minimizing collateral damage, so as to never target attacks to anyone who is not the object of police action. If there is physical proximity between criminals and people not directly involved in hostilities, the attack should be suspended.

3. The purpose of the police operation is to arrest criminals, seize weapons or objects of crime.

4. The aerial operations carried out by the police aim exclusively to collect information that will be passed on to ground actions to arrest criminals and, in accordance with the aforementioned provision, collateral damage on the population should be avoided as much as possible. In this context: 4.a. Air operations, being police operations, may not have the initiative to carry out vertical attacks, except in the event that the aircraft is being attacked or in the case of legitimate defense of third parties and in what is strictly necessary for the effectiveness of that defense, without giving continuity of confrontation by air.

4.b. Automatic shooting should be avoided as much as possible.

5. Operations must be preceded by a prior intelligence survey of the locations within the areas of the community where the fighting will take place. The respective reports will be archived.

6. The population must be informed about the possibility of absorbing collateral damage in the event of confrontation in the places used by criminals. Rio de Janeiro, June 25, 2018. MARIA DE LOURDES S. GOUVEIA Military Attorney (Procuradora de Justiça Militar) JORGE AUGUSTO LIMA MELGAÇO, Military Prosecutor (Promotor de Justiça Militar).

[20] Sven Peterke, “Regulating ‘Drug Wars’and Other Gray Zone Conflicts: Formal and Functional Approaches.” Humanitarian Action in Situtions Other Than War, HASOW Discussion Paper 2. October 2012, https://igarape.org.br/wp-content/uploads/2016/04/Regulating-Drug-Wars.pdf.

[21] The concept of “attack” is specific to LAC and is provided in article 49 of Protocol 1, of 1977: Article 49 — Definition of attacks and scope of application:

1. “Attacks” means acts of violence against the adversary, whether in offence or in defence. (…) 3. The provisions of this Section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.

[22] From a material point of view, notice the changes promoted by the Criminal Organization Law, Brazilian Federal Law 12.850/13, which not only defines the concept of criminal organization, article 1, paragraph 2, but also created the criminal legal definition of participation in criminal organization, article 2nd, in addition to providing for several important instruments to face the problem and dismantle these criminal organizations, such as plea bargain, agent infiltration, controlled action and environmental signal collection, among others. The Criminal Organization Law applies to both violent and cunning crime, of which corruption is the best example. In the United States, with regard to violent crime, there are legal provisions in several states on ¨street gangs,” whose criminal treatment takes into account that these groups practice acts that spread terror to the population, that is, they are treated in a manner similar to terrorist groups.  See, for example, CHAPTER 11. Street Terrorism Enforcement and Prevention Act [California Penal Code §§186.20 - 186.36], https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PEN&division=&title=7.&part=1.&chapter=11.&article=.

[23] In situations of confrontation with territorial gangs, with the use of the Armed Forces, a situation that I consider to be characterized as NIAC, the opposite happens, that is, although there is a combination of the two systems, it is the LAC that should be considered a special rule, especially because it is to be automatically applied with the realization that the situation has, in fact, exceeded the minimum limit of internal disturbances and that there is an unequivocal organization of criminal groups in a clear criminal insurgency.

Categories: El Centro

About the Author(s)

Carlos Frederico de Oliveira Pereira, PhD, is a Senior Military Public Prosecutor in Brazil.  He is an Adjunct Professor in UnB - University of Brasilia, teaching Criminal Law. He is a researcher in International Law of Armed Conflicts and is the author of articles in Criminal Law and on the Law of War. His publications include Direito International Penal - A Responsabilidade de Comando no Estatuto de Roma e sua Implementação no Código Penal Militar (Juruá, 2010) and Gangues Territoriais e Direito Internacional dos Conflitos Armados (Juruá, 2016).