The impact on Legal Security in Chile of the changes in the Rules of the Use of Force

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Oliver Thansan
Oliver Thansan
30 March 2024 Saturday 10:39
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The impact on Legal Security in Chile of the changes in the Rules of the Use of Force

* The author is part of the community of readers of La Vanguardia

The recent update of the RUF (Rules on the Use of Force) proposed by the Chilean Government has generated an important debate around its content and scope.

The 19 indications presented to the National Congress seek to adapt these rules to the operational and contextual realities of the Armed Forces and Public Order and Security, seeking to strengthen institutions and respect for human rights.

One of the Government's instructions states that "in the protection of public order and internal public security, the military authority responsible for the command of the forces will implement the following Rules for the Use of Force." This reflects the importance of establishing clear and precise protocols that guide the actions of authorities in crisis and conflict situations, ensuring that the use of force is always proportional and justified.

The indications also seek to differentiate between the deployment of military and police forces, recognizing the particularities of each institution and its specific functions. This is essential to ensure an adequate and coordinated response to emergency situations and to prevent abuses by authorities.

The update of the Rules on the Use of Force represents a significant step towards greater institutionality and respect for human rights.

However, it is essential that this process be carried out with due care and consideration of all the actors involved, guaranteeing the protection of human rights and unrestricted compliance with the legal system in all State actions.

Coordination between the different institutions in charge of ensuring order and public safety is key to ensuring an effective and fair response to emergency situations.

The normative axis that regulates the exercise of coercion by the State, represented in the rules of the use of force (RUF), occupies a central position. These regulations, with their guiding principles and their specific scope of application, are essential to guarantee that the actions of the Armed Forces and Public Order and Security are developed within a clear legal framework that respects fundamental rights (DD.FF) .

In Chile, the RUF have been modified through Decree No. 8 of the Ministry of National Defense, published in February 2020, which has generated an important debate around its content and scope.

The principles that govern the use of force by State agents are essential to ensure that their actions are legitimate and proportional to the situation faced. The principle of legality establishes that any action must be framed within the Constitution, the laws and international treaties ratified by Chile. This guarantees that the exercise of state power is carried out in accordance with a legal system that respects human rights.

The necessity and proportionality of force are complementary principles that ensure that its use is strictly necessary and that the level of force used is appropriate to the situation faced.

Privileging non-violent means and avoiding causing excessive harm are key elements to guarantee respect for human dignity and prevent abuses by state agents—let's take something current, for example, the dismantling of an Organized Crime Network. Before launching the operation, the need to use force is evaluated and it is determined that it is essential to stop criminal activities.

The force used is planned in proportion to the severity of the crimes and the level of resistance expected from the criminals.—

The individual responsibility of officials for the inappropriate or abusive use of force is a fundamental principle in a rule of law. This responsibility implies that those who violate the guiding principles of the RUF must be subject to judicial and administrative processes that ensure accountability and reparation for the damage caused.

Gradual use of force is another key principle that seeks to guarantee that its use is progressive and proportional to the situation faced. This implies that, to the extent possible, all non-violent means should be exhausted before resorting to the use of force and firearms, reserving the latter as a last resort in extreme situations where other means are ineffective.

In order to understand all these rules, let's put a practical case in which the RUF can be applied.

In times of Public Calamity (State of Constitutional Exception) such as earthquakes or floods, the Armed Forces and Order and Security play a crucial role in protecting lives and property, as well as providing humanitarian assistance. In these scenarios, the Rules on the Use of Force (RUF) become a framework to guide the actions of state agents and ensure that the response is proportional and respectful of fundamental rights.

Let's imagine the case of an earthquake that hits the Antofagasta region. The Armed Forces and Carabineros, along with rescue teams and emergency services, mobilize quickly to provide help and maintain order in the midst of chaos. This is where the RUF guiding principles come into play.

The principle of necessity and proportionality dictates that forces must use force only to the extent that it is strictly necessary to protect life or property. In this case, it may be necessary to use force to evacuate dangerous areas or maintain order in temporary refuge centers (shelters). However, this force must be proportionate and directed only toward those who pose a real threat.

Furthermore, the duty to properly identify the people involved ensures that the safety of those affected is prioritized and the indiscriminate use of force is avoided. This means that forces must distinguish between people in need of help and those who pose a risk to public safety.

The provision of aid is also a fundamental aspect in this scenario. Security forces must be prepared to provide medical assistance, evacuation and logistical support to those affected. This duty aligns with the principle of individual responsibility, which states that officials are responsible for their actions and must be held accountable for any inappropriate or abusive use of force.

The rules on the use of force have a specific scope of application that determines the situations in which they can be invoked by the competent authorities.

In our case, the RUF are applicable to the Armed Forces when they are called to fulfill functions of safeguarding public order in situations such as states of constitutional exception, protection of critical infrastructure, protection of border areas and electoral and plebiscitary events.

In these cases, the respective regulations must be issued by the Ministry of National Defense in conjunction with the Ministry of the Interior, which ensures effective coordination between the different institutions in charge of ensuring order and public security in the country. This coordination is essential to ensure a rapid and effective response to crisis situations and to prevent abuses by agents.

The exercise of state power implies certain duties on the part of state agents when using force. These duties include adequate identification of the persons involved, warning prior to the use of force, gradual application of force, minimizing damage and injuries, and providing assistance if necessary.

Likewise, progressive stages are established in the use of force, ranging from mere deterrent presence to the use of potentially lethal force as a last resort.

These stages are designed to ensure that the use of force is proportional to the situation faced and that non-violent means are always privileged before resorting to more drastic measures.