Social protest is a form of political expression that seeks to influence social or political change by having an impact on the ideas, actions, and views of the public or the policies of an institution. According to Luis Loya and Doug McLeod, “protests often take the form of overt public displays, demonstrations, and civil disobedience but may also include covert activities such as petitions, boycotts, and various online activities. Protest activities are motivated by both individual rewards (including a variety of personal benefits and gratifications) and collective incentives (benefits that are realized by a large class of individuals).” In this regard, social protest represents a fundamental tool for defending other rights, since many of the laws and liberties we have today are the consequence of past struggles achieved in social demonstrations. However, in Latin America, several states continue to repeat practices to restrict, stop or criminalize protests.
The year 2019 marked the beginning of widespread protests in Chile, Venezuela, Ecuador, Colombia, and Brazil. In Venezuela, several demonstrations occurred, both in favor and against the government of Nicolas Maduro, and in Ecuador, an end to fuel subsidies brought people to the streets. In Chile and Colombia, demonstrations morphed into bigger social protests caused by economic and social inequalities exacerbated by the COVID-19 pandemic, while in Brazil waves of protesters took to the streets against Bolsonaro’s regime, over his handling of the pandemic. These demonstrations have been violently repressed by law enforcement agencies exposing the excessive use of force carried out by States- through an infringement of the physical integrity of demonstrators, even going so far as to use firearms against them. Therefore, a necessity for recalling the regulation on the use of force- its limits and legitimacy in the context of human rights discourse, exist.
The excessive use of force by States in policing social demonstrations raises concerns under two key instruments within the region, namely the American Convention on Human Rights (ACHR) and the American Declaration of the Rights and Duties of Man (ADRDM). In light of the aforementioned, this article determines the position of the Inter-American Court of Human Rights (IACtHR) on the legitimacy of the use of force in the contexts of social protests in Latin America. To accomplish this aim, this paper explores the jurisprudence of the Court concerning the main rights connected with protest activities, namely, the right to freedom of expression, freedom of assembly, and political participation (in the contexts of protests).
Right to Freedom of Expression
This right is enshrined in Article 13 of the ACHR as follows: “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.” Within the in-depth analysis carried out by the IACtHR in the Ricardo Canese v. Paraguay case, the Court established the basis for determining the legitimacy of restrictions on the right to freedom of expression in social protest. The events that led to this case took place in August 1992, during a debate in the electoral contest for the 1993 presidential elections in Paraguay. Mr. Ricardo Canese, who was a presidential candidate, testified against Juan Carlos Wasmosy, also a candidate, for alleged illicit actions when he was the president of a consortium. In 1992, the directors of the consortium filed a criminal complaint against Ricardo Canese, for the crimes of defamation and libel. On 22 March 1994, he was convicted in first instance, and in 1997 he was sentenced in second instance to two months’ imprisonment and a fine of 2,909,000 guaraníes. In this case, the Inter-American Court established the international responsibility of Paraguay for the sanctions imposed on Ricardo Canese. The Court reiterated that, when dealing with rights that are not absolute, their limitation may be conventionally justified (para. 96). However, when determining whether the right is absolute or not, a test must be applied to the limitation. The first thing the Court pointed out is that any restrictions must be established by law. Once compliance with this requirement has been verified, there must be consideration as to whether the limitation or restriction has a legitimate purpose and, finally, whether it is necessary in a democratic society.
This test is to be applied to cases in which the violation of one of the basic rights associated with the right to social protest is alleged, more specifically, the right to freedom of expression. The test can also be applied in order to determine if a system of subsequent liability for the exercise of the right to freedom of expression is compatible or not with the ACHR. Under Articles 13, 15, and 16 of the ACHR, the right to freedom of expression can be legitimately restricted by a State only if the situation fulfills the mentioned test and ensures respect for the rights of others or the protection of national security and public order (IACHR Report, para. 31).
Right to Freedom of Assembly
According to Maina Kiai, assemblies, defined as any congregation of a group of people in a private or public space for a specific purpose, “play a vibrant role in mobilizing the population and in formulating grievances and aspirations, facilitating the celebration of events and, importantly, in influencing States’ public policy.” Article 15 of the ACHR notes that restrictions can be imposed in certain cases, namely, when they are in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others.
In the emblematic case Women Victims of Sexual Torture in Atenco v. Mexico the police carried out operations in the city of San Salvador de Atenco (Mexico) to repress social demonstrations. During the course of the operations, eleven women were detained and subjected to various forms of torture, including in some cases rape. In 2016, the IACtHR accepted the case and issued a judgment against the Mexican State concluding that the police officers abused the use of force in an illegitimate, unnecessary, excessive, and unacceptable manner. On 28 November 2018, the Inter-American Court of Human Rights issued its judgment declaring the responsibility of the Mexican State for the human rights violations and violence committed against the eleven women, including arbitrary detentions; physical, psychological and sexual torture; and lack of access to justice.
Within the analysis of the Court, it was determined (para. 174) that the right of assembly is not an absolute right and may be subjected to the restrictions previously mentioned in Article 15 of the ACHR, as long as the limitations are not abusive or arbitrary, therefore, they must be provided by law in order to pursue a legitimate aim and must comply with the principles of necessity and proportionality.
Right to Political Participation
According to the IACHR, due to the inequalities that have characterized the region, the right to political participation represents a fundamental tool in the struggle for the recognition of rights by groups who have been historically discriminated against. Under Article 23 of the ACHR the right to ‘participate in the conduct of public affairs’ implicitly encompasses the right to political participation.’ With this in mind, the López Lone and others v. Honduras began in the context of a peaceful protest in 2009. Judge Lopez Lone was participating in the demonstration when the police violently intervened causing a stampede in which Lopez was seriously injured. Judge Lopez was subsequently investigated and suspended by the Supreme Court of Justice for participating in a protest of a political nature and contrary to his role as a judge. Mr. Lopez submitted a petition to the IACtHR that determined the responsibility of the State and referred the case to the Interamerican Court. The IACtHR held that an individual cannot be sanctioned, even by a minor disciplinary penalty, for participating in a demonstration that has not been prohibited as long as he/she does not commit criminal acts during the protest.
The Use of Force in the Context of Protests
The use of force can be an important tool for guaranteeing the right to protest and protecting the physical integrity of demonstrators. On the other hand, it also carries the potential to violate a number of the aforementioned rights. In order to determine the legitimacy of the use of force, the IACtHR, in the case Montero Aranguren and others (Retén de Catia) v. Venezuela, addressed the international responsibility of the State for the extrajudicial execution of 37 detainees of the Catia Prison by troops of the Regional Command of the National Guard and the Metropolitan Police, as well as, for the lack of investigation and punishment of those responsible. The Court also recognized the obligation placed upon each State party within the Inter-American System of Human Rights to ensure security and maintain public order in the context of protests (para.70). To apply the use of force, the IACtHR noted (para. 67) that law enforcement agencies’ use of force must be defined by exceptionality, furthermore, it must be planned and proportionally limited by the competent authorities. In this regard, the Court has held that instruments of coercion may only be used when all other means of control have been exhausted and have failed to guarantee public order. According to the ACHR 2015 report (chapter IV, para. 7), the use of force in protests constitutes “a last resort that, qualitatively and quantitatively limited, seeks to prevent an act of greater gravity than the one that provokes the State’s reaction. Within this framework characterized by exceptionality, both the Commission and the Inter-American Court have agreed that, in order to justify the use of force, the principles of legality, absolute necessity and proportionality must be satisfied.” These principles can be found in the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (BPUFF).
The IACtHR, when referring to the principle of legality in the case of Cruz Sánchez and others v. Peru, which concerns the extrajudicial execution of three members of the Movimiento Revolucionario Túpac Amaru when they were under the custody of state agents. Despite this, Peru has not carried out a diligent and effective investigation of the facts, nor had it determined the responsibilities of the perpetrators and masterminds of these violations. In paragraph 265, the Court indicated that when force is used “it must be aimed to achieve a legitimate objective, and there must be a regulatory framework that contemplates the form of action in such a situation.”
The principle of absolute necessity refers to the possibility of resorting to offensive and defensive security measures strictly necessary to comply with legitimate orders issued by competent authority, in cases of violent or criminal acts that endanger the right to life or personal integrity, as stated in the IACHR “Protests and Human Rights” report (para. 104).
According to the report “Violence and the Use of Force” of the International Committee of the Red Cross, the principle of proportionality in social protest refers to the situations where “law enforcement officials are urged to exercise restraint when using force and firearms and to act in proportion to the seriousness of the offence and the legitimate objective to be achieved (Principles 4 and 5 of the BPUFF). They are allowed to use only as much force as is necessary to achieve a legitimate objective” (page 43). Furthermore, in the IACHR “Protests and Human Rights” report (para. 106), the Inter-American Commission on Human Rights interpreted the application of the principle of proportionality in circumstances where “the level of intensity and danger of the threat; the attitude of the individual; the conditions of the surrounding area, and the means available to the agent to deal with the specific situation are determinants when it comes to evaluating the proportionality of the interventions by the authorities, as their display of force must at all times aim to reduce to a minimum the harm or injuries caused to anyone.” The IACtHR complemented the interpretation provided above in Landaeta Mejías brothers and others v. Venezuela. The case concerns the death of Alexander Landaeta Mejías, aged 18, and the detention and death of his brother Eduardo José Landaeta Mejías, aged 17, on December 29 and 31 of 1996. These events were related to threats and harassment carried out by officials of the Security and Public Order Corps of the state of Aragua, Venezuela. The Court concluded that Venezuela was internationally responsible for the arbitrary deprivation of life of the Landaeta Mejías brothers. In this case, the IACtHR referred to the principle of proportionality (para. 136) by adding that the application of force must at all times be aimed at “minimizing damage and injury to any person.”
Regarding the employment of firearms, the use of lethal force by state security agents against demonstrators has a higher degree of exceptionality and should be prohibited as a general rule. In the case of Montero Aranguren and others (Retén de Catia) v. Venezuela the IACtHR determined that the exceptional use of firearms must be formulated by law, and be restrictively interpreted to circumstances, where their use is “absolutely necessary” in relation to the force or threat they are intended to repel. In the case of excessive force, any resulting deprivation of life must be considered arbitrary.
Conclusion
The use of force carried out by law enforcement agencies in the context of protests in Latin America is continuously restricting peaceful demonstrations, criminalizing participants and threatening the fundamental values of democratic states. The lack of respect regarding the rights to freedom of expression, freedom of assembly, and political participation, leads to an incompatibility between the use of force exercised and the basic principles that govern its implementation. Furthermore, the use of excessive force in violation of fundamental rights threatens the indispensable elements of the functioning and existence of a democratic State, essentially freedom of speech and political participation, as well as, obstructing a channel that allows people and different social actors to express their demands.
The jurisprudence of the IACtHR clearly establishes a framework that should be followed by States and implemented within their domestic legal framework in order to guarantee the protection of the rights associated with social demonstrations and to adhere to the limitations placed on the use of force. Therefore, States have the obligation to ensure the enjoyment of human rights to all persons and organizations without the need for prior authorization.
Victor Calero is a final year law student at the Universidad de las Americas in Quito, Ecuador. He serves as a Blog writer at Platform for Peace and Humanity. He interned at Ortega y Grijalva Ecuadorian law firm, Lawyers in Palestine Program and Clooney Foundation for Justice. He is an assistant at the Organization of American States. His areas of interest include International Criminal Law, Humanitarian Law and Human Rights.