Image Courtesy of Ricardo Arce via Unsplash
By Meriam Holmström
Police brutality and other abuses by authorities have long been apparent in many Latin American nations. However, misuse of power has become ever more evident in recent years as widespread protests have swept the region. The apparent human rights violations occurring due to disproportionate measures taken by authorities to suppress demonstrations have also shed light on the deep-rooted issue of punishing allegedly unlawful conduct through extreme measures. These include acts such as beatings, arbitrary arrest, torture and rape. Oftentimes, victims are not able to bring cases forward due to the absence of judicial transparency and the lack of independence in the justice system. As local remedies have become increasingly difficult to attain, one should assess whether turning to international law – specifically the laws of state responsibility which govern when and how a state is to be held responsible for a breach of an international obligation – would be a viable solution for the heinous human rights violations, or if other measures might be more plausible in the search for a lasting solution.
Though the misconduct of authorities has become clearer due to the protests, they are not the sole reason for the rise in this abusive behaviour. The abuse of power by authorities is a deep-rooted issue which had been present long before the wave of protests swept the continent. In Colombia, a case of two police officers using disproportionate force to detain a man allegedly in breach of Covid-19 regulations has recently made headlines, whereas in Brazil thousands have been killed at the hands of the police in recent years. This being said, mass protests have often been the context for large-scale human rights violations. In Chile, the Office of the United Nations High Commissioner for Human Rights documented multiple cases of heavy beating and suffocation by security forces. Furthermore, victims have been subjected not only to physical torture at the hands of police and military personnel, but also psychological torture, in the form of death threats, threats of violating the victim’s bodily integrity and beatings of family members. In many cases, there was no ground whatsoever for any use of force as the demonstrations have, for the most part, been peaceful. Arbitrary arrests also threaten the rights of individuals targeted by the authorities. The threat is especially perilous due to the risk of Covid-19, as demonstrated in Nicaragua where, according to Amnesty International, testing, medical treatment and health care has practically been non-existent. All of this despite the fact that some of the detained were showing symptoms which could possibly be linked to the virus.
Furthermore, sexual and gender-based violence has been prominent in the region. In Mexico, authorities were reported to have used violent and sexualized language when speaking to women protesting gender-based violence, and sometimes even subjecting said women to physical and sexual violence. Moreover, many demonstrators were detained without justification and made to fear the possibility of enforced disappearance.
Many problems related to the misconduct of authorities emerge from a fundamental issue: an insufficient allocation of resources for the acquisition of proper security forces. Additionally, these forces lack the proper training and supervision required to hold authorities accountable for misconduct. As a result, there are often too few officers, especially in high-crime areas, and those officers that are deployed tend to behave with increased impunity. Corruption within ranks has also been an issue, with officers being linked to organized crime, or being bribed to ignore it.
Despite the wide-ranging violations, many are struggling to access proper justice. Though Chile has taken some measures to open investigations against authorities who have allegedly committed human rights violations during demonstrations, few of those investigated have been charged. Impunity is common in the region due to the lack of transparency and independence of the justice system. Victims are often afraid to come forward because of distrust in authority, making it difficult to determine the exact number and gravity of violations. This explains why calling on national authorities to prevent, protect and guarantee rights to live a life free from violence can be problematic, and why the use of international law instead should be considered for prosecuting perpetrators.
Given the multiple internationally wrongful acts found across Latin America, the law of state responsibility should be invoked. Most of these can be already found in the baseline for international human rights law, that being the 1948 Universal Declaration of Human Rights. Be that as it may, the declaration is not legally binding. Therefore, one should turn to Article 21 of the 1966 International Covenant on Civil and Political Rights – which most Latin American nations are state parties to and thus legally bound by – to find the right to demonstrate. It explicitly establishes the right to peaceful assembly without restrictions except those necessary for “the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” The threshold for imposing any restrictions whatsoever is set high, meaning that it can be argued with minimal doubt that this article has been breached multiple times by authorities exercising excessive force in dispersing peaceful protests. Arbitrary arrest is covered by the case of Tehran Hostages which establishes that wrongful deprivation of freedom and subjection to physical constraint goes against the UN Charter. As, oftentimes, those protesting peacefully and fully within their rights were subjected to arrests, a breach can comfortably be found to have existed in the behaviour of security forces. Finally, the 1984 United Nations Convention Against Torture, also signed and ratified by most Latin American states, can be considered violated as the harm was often inflicted to punish demonstrators for daring to speak out, fulfilling the motive requirement of Article 1. Furthermore, as the gruesome acts were committed by authorities, the requirement of having a public official or other person acting in an official capacity being involved is also satisfied.
The breaches are attributable to the state according to customary international law established in Article 7 of the International Law Commission’s Draft articles on Responsibility of States for Internationally Wrongful Acts which lays out that the conduct of an organ, person or entity empowered by the state is to be considered an act of the state. This continues to be the case even when the acts are ultra vires, or in other words, beyond the powers granted by the state. Moreover, there is no circumstance precluding wrongfulness in accordance with the exceptions laid out in the ILC articles. Nevertheless, as the violations happened solely in a domestic context in each nation, the issue of legal standing, meaning the legal interest another state needs to invoke the law of state responsibility, is not straightforward. Oftentimes, nations must be directly affected by the breaches to acquire legal interest unless the breach is of an erga omnes norm, as it was in the case of Gambia v Myanmar in the context of genocide. Erga omnes – Latin for “towards all” – refers to fundamental obligations owed by any person or entity, including a state, towards the whole international community. This can be invoked in regard to torture, as it is a well-established peremptory norm, with remedies ranging from cessation and non-repetition to full reparations. Nonetheless, all other violations, though against international law, do not fall under erga omnes norms, meaning that a nation with no direct link to the violation will have difficulties justifying their involvement in the situation, as states are barred from exercising their jurisdiction in other states without a permissive rule derived from international custom or convention. Furthermore, for sexual and gender-based violence, international law has no proper, codified law. The only authority to rely on are the International Committee of the Red Cross rules on customary international humanitarian law, which are applicable in international and non-international armed conflicts. According to Article 1 of the 1977 Additional Protocols to the 1949 Geneva Conventions II, protests do not fall within the definition of an armed conflict, obstructing the use of the ICRC rules. Here too, it is astoundingly easy for violators to escape justice.
Therefore, though extremely difficult due to aforementioned issues of corruption and the lack of independence of the judiciary, the only available course of conduct to ending all violations besides torture and to prosecute perpetrators is putting pressure on governments to make domestic routes for justice available. As this cannot be done through other states being involved through legal means, diplomatic pressure seems to be the most viable measure to take, seeing as sanctions will likely only hurt the general public by creating more economic turmoil. Pressure to change domestic laws concerning issues such as arbitrary arrest is desperately needed, as current laws are often broad and vague, allowing for abuses. The situation is worsened by laws which enable impunity. Officers are often tried by military courts where impartial and independent investigations are scarce. The removal or restructuring of these, as well as many other changes, are desperately needed to put an end to the grievous and widespread violations affecting the daily lives communities across Latin America.
Meriam Holmström is a third-year Law student at King’s College London with an interest in international law, particularly in regard to issues dealing with state intervention and authoritarian regimes.
