Tools of Torture and Repression in South America SECTION I: USE OF FORCE RULES AND REGULATIONS OVERVIEW Under international human rights law, states must protect and preserve individuals’ rights.5 From this stems the duty of law enforcement officials to protect against certain acts, including violent crime. At times, this requires the use of force; for example, to enable the safe detention of a violent individual posing an imminent threat of death or serious injury if other means remain ineffective or without any promise of achieving the intended result. Yet the authority to use force also brings a responsibility to use it appropriately. Global international human rights instruments which place restrictions on the use of force include the legally-binding Convention Against Torture (UN CAT) and the International Covenant on Civil and Political Rights (ICCPR), and soft law instruments including the BPUFF, the UN Code of Conduct for Law Enforcement Officials (CCLEO) and the UN Standard Minimum Rules for the Treatment of Prisoners (the ‘Nelson Mandela Rules’). In the Americas, regional instruments restricting the use of force include the American Declaration of the Rights and Duties of Man, American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture and the Principles and Best Practises on the Protection of Persons Deprived of Liberty in the Americas. Although restrictions on the use of force have been widely discussed elsewhere,6 it is worth briefly recalling some of the key principles involved in order to be better able to identify good practice and protection gaps in South America. Under international human rights law (IHRL), the right to be free from torture and other cruel, inhuman and degrading treatment or punishment is considered an absolute right, meaning it cannot be limited in any way, for any reason. The right to life is nonderogable, meaning that although it can be limited in limited circumstances, it cannot be temporarily restricted or suspended in response to a serious public emergency. The Nelson Mandela Rules7 reaffirm the absolute prohibition on torture and state that ‘Discipline and order shall be maintained with no more restriction than is necessary’.8 The BPUFF states that where the use of force is unavoidable, law enforcement officials must exercise restraint and act in proportion to the seriousness of the offence and the legitimate objective to be achieved.9 The CCLEO stipulates that force may only be used by law enforcement officials when strictly necessary and to the extent required for the performance of their duty.10 Therefore, use of force rules should emphasise a human rights approach to law enforcement, emphasising the importance of using non-violent means before resorting to force. When force is used as a response to violence, law enforcement officials must distinguish between those individuals who are engaged in violence and those who are not (be they peaceful demonstrators or uninvolved bystanders) and carefully target only those engaged in violence to the minimum extent necessary in order to achieve a lawful objective. States are required to take measures to prevent the unlawful use of force by law enforcement officials. As held by the Inter5 See, for example, Inter-American Court of Human Rights, Case of Vélez Restrepo and family v Colombia, Judgment (Preliminary objection, merits, reparations and costs), 3 September 2012, para. 186. 6 See Omega Research Foundation and Amnesty International, The Human Rights Impact of Less lethal Weapons and Other Law Enforcement Equipment, 2015; Amnesty International, Use of Force: Guidelines for Implementation of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 2015 (Amnesty International, Use of Force Report). 7 The Nelson Mandela Rules, adopted by the UNGA on 17 December 2015, UN Doc. A/Res/70/175, Rule 82. 8 Ibid. Rules 1 and 36. 9 UN BPUFF, note 4, Principle 5. 10 UN Code of Conduct for Law Enforcement Officials, Adopted by General Assembly resolution 34/169 of 17 December 1979, Article 3. 7