The Law of War (on Drugs): Shooting Down Drug Smugglers in Latin America

Cocaine is a big problem in Latin America. According to the UN, 99.5% of worldwide coca cultivation is concentrated in just three countries: Colombia, Peru, and Bolivia. Under pressure from the Global North, Latin American nations have reduced the problem to a plan to contain cocaine flows through mostly violent means, to disastrous humanitarian consequences. In several states, violence has reached war-like conditions. The 2017 War Report formally called the Mexican government’s fight against the Sinaloa and Jalisco cartels a non-international armed conflict and named Brazil and Honduras “situations to watch in 2018”.

Militarization is a reinforcing loop. The army brings in bigger guns that are matched by the drug cartels, forcing the army to bring even bigger guns. This loop then creates a “culture of combat”, leading to military leaders accepting war-like solutions, even in the absence of an actual war. The end-result of this is often legislation that goes beyond accepted international human rights standards, under the excuse that the state needs some sort of law of war for the war on drugs, often forgetting that the war on drugs is not actually a war. I have noted this problem before, in the context of the military operation currently underway in Rio de Janeiro, but, in reality, this is a problem that permeates the entire region. One particular aspect of this manipulation of national security legislation that I believe deserves more attention from the human rights community is the problem of so-called “Leyes de Derribo”, or what I can only roughly translate as “Shoot-Down Laws”.

A Shoot-Down Law, as its name chillingly suggests, is a specific kind of legislation that manipulates the law on use of force to allow for a “practical”, yet illegal, solution to the problem of civilian aircraft transporting cocaine from one country to the other: shooting them down. This “solution” is already the law of the land in six of the twelve states in South America (Argentina, Bolivia, Brazil, Colombia, Perú, and Venezuela), with bills being considered in Paraguay and Ecuador. The main idea behind all of these is simple: a civilian aircraft flying without authorization, that refuses to heed an order to land, even after a warning shot, can be declared “hostile” and shot down.

The first state to pass legislation of this type was Brazil. In 1998, President Fernando Henrique Cardozo approved Lei 9.614, modifying the Brazilian Aeronautics Code, allowing for the destruction of non-complying aircraft flying without authorization, once other coercive measures were exhausted. The law, however, remained unenforceable until 2004, when then President Lula da Silva approved Decreto 5.144, formally regulating its implementation. According to the Decree, any aircraft flying without an approved flight plan from a region known to produce or distribute drugs and any aircraft that ignores air traffic controllers’ instructions would be presumed to be involved in drug trafficking. These aircraft would then be subjected to a sequence of “coercive measures”: (i) a request for information; (ii) intervention requesting landing or the adoption of a new route; (iii) persuasion, i.e. a warning shot with tracing munition; and, ultimately, (iv) declaration of “hostility” and destruction by authorization of the President or his delegated authority.

The Brazilian Decree soon became the model to be followed by all other interested states in the region. In 2012, the “Control Law for the Integral Defence of Venezuelan Air Space” authorized attacks against “hostile” aircraft, defined as “[a]ll aircraft (…) travelling through or located in [Venezuelan] airspace or territory, in breach of provisions related to aerial circulation established in this law, or when there are sufficient motives that allow to presume that said aircraft is being used with different purposes than those it was authorized for”. In late 2013, the Venezuelan air force shot down a civilian aircraft with Mexican registry, alleging it was involved in drug trafficking. Similar episodes of shooting down small planes have been recorded in Peru and Colombia, in compliance with their respective Shoot-Down Laws.

The modus operandi regulated by Shoot-Down Laws is contrary to international law. Under Article 3-bis of the Chicago Convention on International Civil Aviation, “[t]he contracting States recognize that every State must refrain from resorting to the use of force of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered”. This article was negotiated in 1984, during the 25^th Plenary Meeting of ICAO, in Montreal, following the downing of Korean Airlines Flight 007 by a Soviet fighter jet that confused it with a spy-plane. During the negotiations, the parties were clear that the prohibition on attacking civilian aircraft in flight constituted customary law. To the UK delegation, for instance, “the development of international law, particularly during this century, has made it clear beyond doubt that in time of peace, the use of force against civil aircraft is subject to very severe limitations”. At another point, the delegation added: “you cannot kill a trespasser unless he poses an imminent threat to your life”. With a few exceptions like that of Cuba, most States agreed.

The rule contained in Article 3-bis is consistent with human rights law. Under the American Convention on Human Rights, “no one shall be arbitrarily deprived of his life”. The Inter-American Court of Human Rights has interpreted this as establishing a highly restrictive legal framework for the use of force (much less lethal force). For the Court:

“The use of force by law enforcement officials must be defined by exceptionality and must be planned and proportionally limited by the authorities. As such, the Tribunal has considered that force or coercive means can only be used once all other methods of control have been exhausted and have failed. The use of lethal force and firearms against individuals by law enforcement officials – which must be forbidden as a general rule – is only justified in even more extraordinary cases. The exceptional circumstances under which firearms and lethal force may be used shall be determined by the law and restrictively construed, so that they are used to the minimum extent possible in all circumstances and never exceed the use which is ‘absolutely necessary’ in relation to the force or threat to be repealed. When excessive force is used, any resulting deprivation of life is arbitrary” (Zambrano Velez v. Ecuador, ¶¶83-84).

Under this standard, breaking the law is by no means an excuse for the use of lethal force, since there also has to be a situation of self-defence – a “force or threat” that needs to be repealed. In the words of the UN Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, this standard “demands that lethal force may not be used intentionally merely to protect law and order or to serve other similar interests (…) [a] fleeing thief who poses no immediate danger may not be killed, even if it means that the thief will escape”. The means of transportation through which this thief, or any other law-breaker (including a cocaine smuggler), chooses to mobilise, should not change this conclusion. Transportation of drugs, whether by foot or by plane, cannot trigger the kind of situation where it is absolutely necessary to use potentially lethal force against civilians flying a civilian aircraft, especially considering this is usually done in small aircraft, frequently forced to land and refuel after short distances. Lack of resources to conduct an arrest in an improvised airstrip can by no means justify use of lethal force.

To make matters worse, states regulating Shoot-Down Laws seem to be aware of the fact that they are running afoul of the absolute necessity standard, which explains the emphasis on hostility as a trigger for use of force. According to the ICRC, “the concept of ‘hostilities’ refers to the (collective) resort by the parties to the conflict to means and methods of injuring the enemy”. This is, therefore, a term that presupposes the existence of an armed conflict. Calling a particular criminal hostile is subtext for his or her loss of immunity from attack. In short, it implies the smuggler has lost his protection as a civilian by participating in the “hostilities” of the “war” on drugs.

Of the six states that have approved a Shoot-Down Law, however, only two (Colombia and Peru) officially claim to be involved in an actual non-international armed conflict. A state cannot simply decide to apply the law of war in the absence of a conflict. It first needs to comply with the requirements of the Tadic standard of intensity and organization. In Argentina, Bolivia, Brazil, and Venezuela there simply is no organized armed group attacking the state with a sufficient level of intensity to justify the application of these rules. If there are no hostilities, then there can be no hostile acts. What these states are doing is simply ignoring human rights law and conducting what could very well end up constituting veiled extrajudicial executions.

But even Colombia and Peru are not properly complying with international humanitarian law. In a non-international armed conflict, lethal force in the conduct of hostilities is used against a small subgroup of individuals – those directly participating in hostilities. According to the ICRC, there are three requirements that need to be met before one can say that an act constitutes direct participation in hostilities:

“(1) the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and
(2) there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and
(3) the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)”.

Mere transportation of narcotic substances fails to meet this standard, as it is a separate crime that doesn’t harm one party or the other (there would be no threshold of harm, no direct causation and no belligerent nexus). Moreover, even if a specific drug lord is shown to be sporadically collaborating with a party to an armed conflict, say by paying the armed group in exchange for security, such a contribution would not have a direct causal link with the harm caused by the group’s attacks on the other party to the conflict. In the words of the ICRC:

“[I]ndividual conduct that merely builds up or maintains the capacity of a party to harm its adversary, or which otherwise only indirectly causes harm, is excluded from the concept of direct participation in hostilities. For example, (…) providing [the adversary of a party to an armed conflict] with supplies and services (such as electricity, fuel, construction material, finances and financial services) would have a potentially important, but still indirect, impact on the military capacity or operations of that party”.

This means that the drug lords themselves would need to be directly participating in hostilities before they could be targeted in the way that Shoot-Down Laws provide for. That is, they should possess what the ICRC calls a “continuous combat function” within a particular organized armed group. In other words:

“For the practical purposes of the principle of distinction, therefore, membership in such groups cannot depend on abstract affiliation, family ties, or other criteria prone to error, arbitrariness or abuse. Instead, membership must depend on whether the continuous function assumed by an individual corresponds to that collectively exercised by the group as a whole, namely the conduct of hostilities on behalf of a non- State party to the conflict”.

This may very well be the case for some narco-traffickers and some cartels, but it can by no means be assumed that every single person flying a plane that refuses to follow instructions from a control tower automatically becomes a targetable member of an armed group. In fact, both Peru and Colombia would do well to invest in developing the kind of legal criteria that would allow them to draw such distinctions between those narco-traffickers indirectly participating in the conflict, and those assuming a continuous combat function in an organized armed group. This would be especially important in countries like Peru, where the relationship between Shining Path remnants (known as the MPCP) and specific narco-trafficking groups is consistently (and vaguely) described as an alliance.  

In sum, Shoot-Down Laws are contrary to human rights law, and a misuse (and abuse) of the laws of war. The so-called war on drugs is not a war, and Latin America (and the international community as a whole) would do well not to treat it as one.