A clear step backwards: New firearms regulations and police use of lethal force in Argentina

Some of the new provisions fail to meet international use of force standards. Español

Omega Research Foundation
27 December 2018

A policeman shoots during an intervention in Buenos Aires, Argentina, in 2018. Photo.- NA, via FiloMews. All rights reserved.

Off-duty police officer Luis Chocobar shot and killed18-year-old Pablo Kukoc in December 2017, several blocks from the scene of a robbery where a tourist had been stabbed in Buenos Aires. Kukoc had participated in the crime and was fleeing at the time, and he posed no imminent danger to anyone.

Argentina’s president and the security minister received Chocobar as a hero and held his actions up as exemplary – despite a judicial investigation that questioned their proportionality and that will soon go to trial.

On the 3rd of December, Argentina’s government published Resolution 956/2018, which alters regulations on the use of firearms by the federal security forces. The Resolution expands the grounds for using lethal force generally and legitimizes firing at fleeing suspects, as Chocobar did.

Through our work monitoring police use of force around the world, we have already identified a pattern of excessive use of firearms, particularly shotguns, in Argentina. Under the new rules, which go against international human rights and policing standards and good practices, police killings and extrajudicial executions could be set to rise.

The new regulations not only permit the use of firearms when there is an imminent danger of death or serious injuries; they also provide other examples of what would be considered “imminent danger”, lowering what should be a high threshold for the use of firearms.

The examples given include instances when it is “credibly presumed that the suspect could have a lethal weapon”, such as when they are part of a group and another member either has a firearm, has fired shots or has injured third parties. It also covers instances where a suspect appeared to be armed but actually was carrying a replica gun.

Firearms should only be used where there is an imminent threat of death or serious injury – not just because one member of a group had a weapon.

The provision stating that it is likely that a suspect is armed because another person is armed could feasibly provide vigilante police officers with carte blanche to carry out extrajudicial executions against certain groups, such as suspected gang members. Firearms should only be used where there is an imminent threat of death or serious injury – not just because one member of a group had a weapon.

The provision on replica firearms is similarly problematic. It is one thing to discuss in a specific case if a police officer who shoots someone in the mistaken belief that they were armed with a firearm should be absolved after an independent and rigorous investigation is carried out, because it is proven that their mistaken belief was reasonably held.

For example, a police officer may believe there is an imminent threat to life due to the replica firearm appearing indistinguishable to a real firearm and the threatening manner in which it is aimed. It is quite another to establish in advance and in general terms the lawfulness of every instance when a suspect is shot when carrying a replica firearm or when their alleged accomplice is armed, effectively preventing any judicial oversight.

Particularly relevant in light of the Chocobar case, the new regulations stipulate that security forces can use lethal force against a suspect who flees after causing or trying to cause death or serious injury, regardless of whether the suspect is armed or poses an imminent threat to the officer or others. This could allow unscrupulous officers to use the excuse that the suspect was fleeing, to open fire indiscriminately.

“Imminent danger” is also stated to include instances where the “unpredictability of the attack, the number of aggressors or the weapons they carry, materially impede the performance of law enforcement duties...” This overly broad and ambiguous clause could potentially be used to justify the use of lethal force against protesters, in a context of increasing repression and criminalization of demonstrators in Argentina.

In response to such concerns, the Security Ministry issued a press release specifying that the new regulations “do not modify the use of weapons during demonstrations or public protests, since the norm that establishes the use of non-lethal weapons in these cases remains in force”.

Additional human rights safeguards, including precautionary measures such as training in de-escalation techniques, that might reduce the need to use any force at all, are missing.

These are some of the new provisions that fail to meet international use of force standards, particularly the requirement that “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”.

Additional human rights safeguards, including precautionary measures such as training in de-escalation techniques, that might reduce the need to use any force at all, are missing completely from Argentina’s new regulations.

International standards also require police to use the minimum amount of force necessary to achieve a legitimate law enforcement objective. However, the new regulations allow firearms to be used when other “non-violent” means prove ineffective.

This fails to take into account other means of force that are less harmful than lethal firearms – so-called ‘less lethal weapons’ (e.g. batons, pepper spray, etc.) – and this omission could lead to the rapid escalation of violence.

Analysing the new regulations from a human rights perspective and in light of developing good practice in policing internationally, it is clear that they are a backward step. Underpinning them, there seems to be an attempt to avoid judicial oversight of law enforcement activities and broaden the scope for the use of firearms beyond what is acceptable under international law.

While it is essential to train law enforcement officers on a wide range of realistic scenarios, such as what to do when a dangerous suspect flees or when another member of a group of suspects is armed, the legitimacy of police action should be judged on a case-by-case basis rather than justified across the board in law.

It would be far more effective to provide police with sufficient training and appropriate equipment, base the law on established principles such as necessity, proportionality and accountability, and ensure the resources and mandate for each case to be investigated and judged according to these principles.

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