The Rules of Use of Force and the Breakdown of the Armed Forces.

La Tercera, March 21, 2024

According to current legislation, primarily Article 208 of the Military Justice Code, military personnel are — and have always been, due to the code’s validity — subject to “exemptions from criminal responsibility when performing functions as guardians of public order and security.” Furthermore, our current legislation and Chilean penal code enshrine the right to legitimate defense in any event, when certain circumstances occur: illegitimate aggression; rational necessity of the means employed to prevent or repel it; and — finally — that there is a lack of sufficient provocation by the defender. Therefore, the Armed Forces (FFAA), in fulfilling internal security missions during so-called constitutional states of exception, must have the previously stated legal powers and backing as a baseline. No “Rule of Use of Force” (RUF) can degrade or affect this legitimate and minimal legal right. This is especially true when the FFAA are deployed by presidential order and legislative ratification. In this way, responsibilities and powers are aligned, protecting the force’s basic rights.

The current proposal for RUF, which defines a large number of conditions, definitions, duties, principles, levels of resistance, and classifications of the aggressor or aggression, stages of the use of force, models for escalating or de-escalating its use, and the corresponding means for each model, significantly affect the principle on which a RUF is established. This principle penalizes behaviors and not conditions, which are often difficult to discern or identify, especially in high-complexity situations. For example, the origin, gender, or other characteristics of the person committing the aggression are not relevant; rather, it is the act and behavior of intending to cause harm to those ensuring public safety and order that matter. Furthermore, a comparative study of various rules of use of force, both in public security and peacekeeping operations, shows that none undermine — as a base or foundation — the right to legitimate defense of state representatives. Additionally, RUF should primarily be clear and objective, based on principles of general appreciation, and must not contain a set of details that, when applied, inhibit the fulfillment of the main mission. This is particularly important in extraordinary situations where political authorities and security forces are overwhelmed.

On the other hand, RUF operating in constitutional states of exception must be subject to the jurisdiction of military courts, given the nature of the decision that required their use, and should not fall under the jurisdiction of ordinary courts during peacetime and normalcy, with prosecutors establishing responsibilities while ignoring the context that necessitated their use. Thus, if the proposed Rules of Use of Force remain as they are, they will be completely useless, inhibiting those expected to apply them, and in the event of their use, will only result in criminal prosecution and imprisonment of military personnel, while criminals will expand their criminal activities to unimaginable limits due to the advantages granted.

We appeal for our law enforcement and security forces, as well as the Armed Forces, to have the vital political and legal support necessary to contribute to restoring the rule of law and addressing the serious security situation affecting all of society.

John Griffiths
Julio Leiva

Source: La Tercera