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

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.