Blind Protestors: The Use of Force by the Chilean Police in the Current Social Unrest

[Catalina Fernández Carter is a Chilean lawyer and holds and LLM from the University of Cambridge.]

According to the latest report by the Chilean National Institute of Human Rights, 241 individuals have suffered eye injuries – several of them resulting in partial or total blindness – in the context of the social unrest the country has experienced since October.

Images of people with eye patches have become a symbol of the ongoing civil protests, and questions about whether Chile is complying with its international human rights obligations regarding the use of force by the police – specifically the use of rubber bullets as a crowd control method– are now part of public debate. The issue has also been addressed by Chilean tribunals. Under Chilean law, citizens can file special proceedings known as recursos de protección to safeguard constitutional rights. Several of these have been filed across the country, requesting the suspension of rubber bullets being used against peaceful protestors.

The Inter-American Court of Human Rights has determined that force by law enforcement agents should only be used in full compliance with the principles of legitimate purpose, absolute necessity, and proportionality. Although there is no specific international treaty regulating the use of force by Chilean police, there are various soft-law instruments that help us flesh out the applicable rules. Interestingly, the Chilean Police quote the two most relevant ones, the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, in their own internal regulations. The regulations refer to the instruments as part of the “international legal framework” regulating the use of force (alongside the American Convention on Human Rights and the Convention against Torture) in what seems to be an interesting example of opinio juris.

While these instruments only contain general guidelines, some provisions are worth mentioning. Article 3 of the Code of Conduct states that “law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty”. In turn, the Basic Principles establish that force may only be used “if other means remain ineffective or without any promise of achieving the intended result”. This is reflected as well in the jurisprudence of the Inter-American Court of Human Rights.

However, several reports by human rights organizations, including both Amnesty and Human Rights Watch (HRW), have highlighted the indiscriminate and excessive use of force by police officers in breach of the abovementioned standards. HRW, for example, has found “consistent evidence that [the Chilean Police] used excessive force in response to protests and injured thousands of people, regardless of whether they had participated in violent acts or not”.

Other international guidelines contain more specific regulations on the use of force – particularly concerning the use of rubber bullets – that are relevant to assess the conduct of Chilean police officials under international law. For instance, the recently published Guidance on Less-Lethal Weapons in Law Enforcement, issued by the OHCHR, contains a series of provisions concerning use of kinetic impact projectiles, including rubber bullets. The document is based on international human rights law and is aimed to supplement and complement both the Code of Conduct and the Basic Principles.

The Guideline establishes circumstances of “potentially lawful use” that require officers to strike the lower abdomen or legs of a violent individual and limit the use of force to situations in which there is “an imminent threat of injury to either a law enforcement official or a member of the public”. Similar limitations have been established by the UN Office on Drugs on Crime in its Resource book on the use of force and firearms in law enforcement.

The Chilean Police have ignored both limitations. Police protocols contain no requirement to aim at the lower parts of the body, which has resulted in a number of individuals with severe head and eye injuries. Moreover, although the specific protocol that regulates the use of rubber bullets initially restricts its use only to repel an attempted attack on a police officer, an Annex to the document containing protocols on the use of force also authorizes the use of rubber bullets for general crowd control.

In practice, the Police’s interpretation has been even more lenient toward the use of force. For instance, on November 11^th, the Director-General of the Police announced that it would “limit” the use of these weapons only to cases of a threat to life, or an imminent threat to public and private property. However, the use of rubber bullets is not authorized to protect property by international guidelines, nor even by the internal regulations adopted by the Police. In fact, HRW referred to the indiscriminate use of this weapon as a “particularly alarming issue” that can cause – and has indeed caused – serious injuries.

The dangerousness of rubber bullets is emphasized by the abovementioned OHCHR Guideline, which refers to risk of skull fracture, brain injury, permanent blindness, damage to vital organs, and even death. A Chilean media outlet recently published an article referring to a leaked study undertaken by the Police in 2012, in which the authors highlighted the severe risks involved in the use of rubber bullets when directed to upper body parts or at close proximity. However, that study does not seem to have been considered by the Police when preparing the relevant guidelines on the use of force.

This situation may engage Chile’s international responsibility. The European Court of Human Rights has already referred to the dangers associated with the use of rubber ammunition by police officials. In Kilici v Turkey, the Court stated that there was no doubt that this type of ammunition creates a great risk of injury, and established that the use of rubber bullets must be authorized by national law and be accompanied with limitations sufficient to effectively safeguard against arbitrariness, abuse of force, and avoidable accidents. The Court found that Turkey had breached Article 3 of the European Convention by not having an adequate regulatory framework on the use of rubber bullets during demonstrations.

In the Latin American context, although it has not yet examined the use of rubber bullets, the Inter-American Court of Human Rights has stressed the need for states to proportionally limit the use of force by the police (Barrios Family v. Venezuela) and has referred to the abovementioned principles of legitimate purpose, absolute necessity and proportionality for the use of force (Landaeta Mejías Brothers et al v. Venezuela). The Court has also noted that state agents “must distinguish between persons who, by their actions, constitute an imminent threat of death or serious injury, or a threat of committing a particularly serious crime involving a grave threat to life, and persons who do not present such a threat” (Perozo et al v. Venezuela).

It is unlikely that Chile’s regulations and the actions of its Police during the protests comply with these standards. The lack of clear regulation addressing the risks associated with the use of rubber bullets and the indiscriminate use by the Police are particularly troubling.

This is important considering the 2018 Conciliation Agreement (in Spanish) executed by Chile with the Inter-American Commission on Human Rights in Lemún Saavedra v. Chile, a case addressing the murder of a Mapuche man by a police agent. In the agreement, Chile agreed to approve a Presidential Decree containing general guidelines on the use of police force in accordance with international standards. However, the ensuing Decree contained a single short and extremely general substantive article on use of force, one that left out the specifics for the Police itself. Even worse, it is doubtful that the relevant provisions contained in both the decree and the subsequent regulations adopted by the Police comply with the relevant international standards on human rights.

While civil unrest is still ongoing, it is not clear whether the Government is willing to take measures to limit the action of the Police pursuant to the relevant standards of international human rights law. The immediate and complete rejection of the report issued by Amnesty International was a worrying sign, but the more positive response to the Report of HRW with a call for reform to the Police seems to put the government back in the right track. It remains to be seen if any action is actually going to be taken in the days to come.