This article is included in the publication Ambiente Estratégico 2022: Seguridad, Desarrollo y Defensa Nacional.

Summary

Industrial and productive activities in the aquatic field, which promote the socioeconomic development of the country, require that the General Directorate of Captaincies and Coast Guard of the Peruvian Navy – National Maritime Authority, guarantee their safety. To this end, Coast Guard Operations, conducted within the exercise of the Maritime Authority, must be framed in due legal process. In this regard, it is essential that this authority has clear rules for the proper use of force, since, currently, it lacks an adequate legal framework that legally safeguards its personnel and makes its response capacity more efficient.

Keywords: Use of Force, Law Enforcement, Maritime Authority, Coast Guard Operations.

Introduction

According to the National Maritime Policy 2019-2030, aquatic activities in Peru will continue to increase due to the fluidity of international trade (90 % of which is conducted by sea) and industrial development in the maritime field (driven by globalization). In addition, the growing global demand for food has driven the increase in hydrobiological production activities, with China being the main recipient country.^[1] These activities require adequate security, which facilitates their development and minimizes the associated risks.^[2] Therefore, it is essential to adopt coercive legal measures, such as the use of force by the National Maritime Authority (NMA), for an adequate execution of Coast Guard and Maritime Police Operations, in order to provide security and protection, and better control of such productive activities.

In this regard, both the Rules of Engagement (REN) and the Rules of the Use of Force (RUF) constitute those norms that specify the circumstances and limitations by which the superior authority maintains control over the use of force and, at the same time, are used to control actions that could be interpreted as provocative or that generate an escalation by opponents.^[3] Within international doctrine, the differences between REN (used for combat or military operations on the external front) and RUF (used for missions in support of civil authorities and protection forces in domestic situations) are recognized.^[4]

This article analyzes the need for the NMA – General Directorate of Captaincies and Coast Guard (DICAPI) to have clear rules for the use of force, which allow it to prevail the rule of law during the performance of its functions. To this end, concepts related to the Armed Forces (FF. AA.) and the National Police of Peru (PNP) will be addressed, as entities with functions similar to the DICAPI. Next, the RUF in force in Peru will be analyzed and the functional, operational, and legal scope of the NMA will be described, to finally reach some conclusions.

Constitutional Purpose of the Armed Forces and the National Police

On the one hand, article 165 of the Political Constitution of Peru (CPP) states that the Armed Forces “have as their primary purpose to guarantee the independence, sovereignty and territorial integrity of the Republic.” On the other hand, article 166 of the CPP states that the PNP “has as its fundamental purpose to guarantee, maintain and restore internal order. It provides protection and assistance to individuals and the community. It guarantees compliance with the laws and the security of public and private assets. Prevent, investigate, and combat crime. It monitors and controls the borders.” Consequently, it can be said that the FF. AA. are responsible for dealing with external threats (during international armed conflicts) and internal threats (during non-international internal armed conflicts), while the PNP is responsible for the maintenance of law and order, both of which must be properly equipped, organized, and trained to effectively perform these functions.^[5]

Under normal circumstances, the PNP is the only public institution that could, if it were the case, coercively require citizens to conduct a certain conduct, by applying a wide range of force extending from mere presence to physical force, the highest level of which is lethal force.^[6] However, the CPP is also clear in establishing, in its article 137, that the Armed Forces may, under certain legal and operational parameters, take care of the control of internal order when the President of the Republic decrees the corresponding State of Emergency.

For the specific case in which the members of the FF. AA., with authorization from the highest political level, must assume control of internal order or support the PNP in internal security, there is Legislative Decree 1095 (DL 1095), “Rules of use and use of force by the Armed Forces in the national territory” and its regulations. This Legislative Decree regulates the use of force by Armed Forces personnel, only with the authorization of the President of the Republic and in three specific contexts: (1) where the State of Emergency is declared due to actions of a hostile group and the control of internal order is in charge of the Armed Forces, through military operations; (2) in areas declared in Emergency in support of the PNP, through military actions for other situations of violence, the Armed Forces or the PNP to be responsible for the control of internal order; and (3) in areas not declared in Emergency to support the PNP in the control of internal order, through military actions for specific operational situations, such as illicit drug trafficking, terrorism, protection of strategic facilities and other constitutionally justified cases.

At this point, it is necessary to differentiate the definitions of military operations and military actions. On the one hand, according to DL 1095, military operations are activities carried out by the Armed Forces to confront the armed capacity of hostile groups within the framework of international humanitarian law. On the other hand, military actions are those carried out by the Armed Forces, focused on the maintenance or restoration of internal order, within the framework of human rights. However, the following question should be asked: What happens to the members of the NMA – DICAPI, who perform law enforcement functions within their jurisdiction, without declaring a state of emergency and without the need for presidential authorization?

The National Maritime Authority and its Law Enforcement Functions

To answer this question, it is necessary to specify that the members of the DICAPI, being part of the FF. AA., fulfill security and internal control functions without having the need to operate through an express presidential authorization, nor in areas declared in emergency to support the PNP. The members of the DICAPI, at a certain moment, need to use force not like the rest of the members of the FF. AA., but as an NMA to fulfill its functions in full rule of law. According to Legislative Decree 1147 (DL 1147), “Legislative Decree that regulates the strengthening of the Armed Forces in the competences of the NMA – DICAPI,” the main functions of the NMA are: to ensure the safety and protection of human life in the aquatic environment; preventing and combating pollution and protecting the aquatic environment; and to suppress illegal activities in the aquatic environment, exercising the Maritime, River and Lake Police, among others.

If one compares the purpose of the PNP, established in article 166 of the CPP, with some of the main functions of the NMA, mentioned in the preceding paragraph, it can be said that both are related, in some way, to the internal order, as can be seen in the following table:

According to DL 1147, the scope of application of the NMA is broad and includes: (1) the aquatic environment, comprising the maritime domain and inland waters, as well as navigable rivers and lakes; (2) island areas, including islands located in the national aquatic environment; (3) river land up to 50 meters measured from the line of highest tide of the sea and shores to the line of highest ordinary flood on the banks of navigable rivers and lakes; (4) vessels and ships that are in Peruvian jurisdictional waters, those of national flag that are on the high seas or in jurisdictional waters of other countries; (5) naval devices and aquatic installations in the aquatic environment; (6) natural and legal persons whose activities are carried out or have scope in the aquatic environment without prejudice to the attributions of the competent autonomous sectors and bodies; and (7) water traffic.

However, having a specialized Marine Corps fulfilling functions as an NMA (which interacts with members of the maritime community, verifying compliance with national and international laws in such a vast and diverse scope of application) and not having adequate and clear legislation regarding the use of coercive means for its members, it is, euphemistically speaking, contradictory.

Legal Scope on the Exercise of the Maritime Authority

According to Legislative Decree 1138, “Law of the Peruvian Navy (MGP),” said Institution, through the DICAPI, exercises the Maritime, River, and Lake Authority at the national level. The DICAPI is one of the four-line bodies of the MGP, there are legal systems that have regulated its structure, operation, and tasks throughout its history, which began in 1969 with the creation of the Corps of Captaincies and Coast Guard. Likewise, DL 1147 establishes provisions for the exercise of the Maritime Authority in the entire national aquatic area (sea, rivers, and navigable lakes). Similarly, the Maritime Authority is empowered to exercise the Maritime, River, and Lake Police, as part of the Coast Guard Operations, to apply and enforce the regulations in force.

In this context, the exercise of the Maritime Authority, is conducted through the DICAPI, which, in turn, acts through the Director General of Captaincies and Coast Guards (at the national level), the Heads of the Captaincy Districts (at the regional level) and the Port Captains (at the local level). Likewise, for the exercise of its functions, the NMA has personnel and means (Coast Guard Units) duly identified, as an indispensable requirement to execute the legal acts that are empowered by law. At this point it is important to emphasize the legal separation of these two elements (personnel and means) for the exercise of the Maritime Authority.

In this regard, the exercise of authority is a public legal act that is subject to conditions, duties, functions and legal obligations on the part of the respective public officials.^[7] Likewise, legally, the exercise of Authority is exercised through people, not through the media, because these are simple objects.^[8] The media are platforms to help this exercise and cannot be subject to rights or legal obligations. In this vein, the responsibility for both the exercise of the Maritime Authority and the function of Maritime Police does not lie with the Units but, exclusively, with the personnel of the NMA.

Specifically, in the case of personnel, Decree Law No. 17824 of 1969 -by which “They create the Corps of Captaincies and Coast Guards as an Auxiliary Corps of the Navy”- considered that, due to the increase in maritime activities, the need for an adequately organized, trained, and equipped Corps is imperative. Since then, the DICAPI, in accordance with DL 1147 and its regulations, exercises the Maritime Authority. Subsequently, in the Operations Doctrine of the National Maritime Authority, such personnel are referred to as “Coast Guard personnel.”

In the case of the media, DICAPI has duly identified Coast Guard Units. Additionally, the regulation of DL 1147 establishes that the MGP, at the request of the DICAPI, may assign its own means (Non-Coast Guard Units) to fulfill the functions assigned to it by that Authority. Likewise, it is specified that any MGP Unit that detects signs of illicit activities in the aquatic environment may conduct interventions, with the prior knowledge and authorization of the DICAPI, to suppress them in accordance with the procedures established by the NMA, and in compliance with current legislation. As an example of such procedures, the Operational Control of the non-Coast Guard vessel can be changed to operate under the control of the NMA, among others. In this sense, the Non-Coast Guard Units that participate in the legal act of the exercise of the Maritime Authority must also be fully identified as such.

For both situations, whether the execution of Coast Guard Operations through Coast Guard Units or not, the exercise of the Maritime Authority is conducted through the function of Maritime Police. Likewise, the regulation of DL 1147 defines the public legal act of repression of illicit activities as actions conducted by the NMA to prevent such activities within the scope of its competence. In this regard, it is pertinent to pay special attention to the case of the suppression of unlawful acts. Such action should be framed within the legal concept of flagrante delicto, which strictly occurs when a subject is caught and arrested at the time of conducting the criminal act. Likewise, it can be framed in the quasi-flagrante delicto, which is when the individual is captured after the criminal act has been executed, if he has not been lost sight of and has been persecuted since the commission of the crime. In the same way, it could be framed in the presumed flagrancy, which is when the person is intervened by the existence of data that allow us to sense his intervention.^[9] In Peru, flagrante delicto is regulated by Legislative Decree 1194 and has an inter-institutional action protocol, approved by Supreme Decree No. 003-2016-JUS.

It should also be emphasized that legal competence in criminal matters against these unlawful acts lies with the specialized prosecutors’ offices, regulated by the new Code of Criminal Procedure, which considers a heavy burden of proof and seeks to guarantee due process of law.^[10] During Maritime Police Coast Guard Operations, failure to demonstrate due process of law could lead to criminal complaints; for example, for abuse of authority or, failing that, for omission of functional duty.^[11] Likewise, the public legal act of the exercise of the Maritime Authority -through the function of Maritime Police- must comply with the essential requirements for the execution of said acts, if it is evident that: the authority is duly legitimated; the authority operates within the scope of its competence; and the authority operates within the framework of formally established procedures and that such acts are subject to the principle of legality.^[12]

The following table integrates the two situations described above for Non-Coast Guard Units with the requirements of the legal act, it being understood that the Coast Guard Units comply with these requirements by their very nature, except for the established RUF:

Therefore, although the State assigns to the Maritime Authority functions of Maritime Police, it does not provide it with an adequate legal coercive tool for the fulfillment of its functions, particularly those related to the use of force.

International Doctrine for the Use of Force

According to the United Nations, law enforcement officials are all those officers who exercise police functions, especially with powers of arrest or detention. In countries where military authorities exercise police functions, whether uniformed or not, the definition of “law enforcement officials” is also considered to involve them. Likewise, the proper use of force is directly related to at least three components: the timing of force; the type and amount of force to be used; and the assignment of responsibilities that must exist for its use.^[13] Similarly, in all law enforcement activities, the authorities must observe the principles of legality, necessity, proportionality and precaution.^[14]

DICAPI – NMA, being a hybrid organization, not only executes military missions, but also civilian missions, such as the repression of illicit activities, search, and rescue of people in the aquatic environment, environmental protection, among others. To this end, when carrying out law enforcement missions, DICAPI – like NMA – must operate under the terms established for the RUF, while when it must fulfill military missions, as part of the Operations of the Operational Commands, the Coast Guard personnel must comply with the REN derived from the guidelines regulated by the Joint Command of the Armed Forces.

While it is true that DICAPI has internal regulations that establish general guidelines for RUF, it is essential to have a norm with the necessary legal hierarchy that covers the legal vacuum left by the lack of specific regulation. This situation will allow the legal act of the exercise of the Maritime Authority within the due process of law, keeping the personnel legally protected and endowed with the necessary legal security for the fulfillment of their functions.

Conclusions

In recent years, Peru has been experiencing favorable economic growth, impacting the well-being of a large part of its population. The boom of the national economy comes, mainly, from exports, which in more than 90% are developed by the maritime environment. Therefore, there is a need for a permanent capacity to monitor and control the activities carried out in this environment by specialized forces, such as the NMA. However, for the fulfillment of its functions, the NMA does not have adequate legislation for the use of force, diminishing -in a certain way- its capacity to respond.

While it is true that members of the NMA have a duty to enforce the law, it is also true that they have the right to have clear rules, specifically for the use of force, which safeguard them from legal responsibilities in the performance of their duties and, in turn, make your work more efficient. In this regard, it should be noted that both the members of the Armed Forces (with DL 1095), like the members of the PNP (with Legislative Decree No. 1186) have specific and clear RUF, being necessary to also provide the NMA with a regulation of equal legal hierarchy, in accordance with the principles of human rights and with the type of operations and scenarios in which it operates. This regulation, adequate and special, will legitimize the actions of Coast Guard personnel, particularly to use force during the execution of Coast Guard Operations of the Maritime Police, within due process.

Endnotes:

1. Eduardo Zamora Chung, “Análisis de la actividad extractiva de la pota en el Perú: problemas y alternativas de solución” in By the sea of Peru that we want. Essays of the Training Course in Fisheries Law 2020, Peruvian Society of Environmental Law (2021), 66-87, https://spda.org.pe/wpfb-file/ensayos-curso-pesquero-2020_spda-pdf/ ↑
2. Eduardo Zamora Chung, “La Economía Azul como impulsor de la Política Marítima Nacional y la Seguridad Marítima peruana”, Magazine of the Naval War College, year 2021, Vol. 18, N° 2 (December 18, 2021), 60-70, https://revista.esup.edu.pe/RESUP/article/view/127 ↑
3. Jonnathan Jiménez Reina, Juan F. Gil Osorio and Roger Jiménez Reina, “El derecho operacional en relación con los derechos humanos y el derecho internacional humanitario”, General Scientific Journal José María Córdova, Vol. 19, Nº 33 (January 1, 2021), 115 -131, https://revistacientificaesmic.com/index.php/esmic/article/view/655/735 ↑
4. Clamo, “ROE v. RUF”, Marine Corps – USMC Community – Leatherneck (2022), http://www.leatherneck.com/forums/showthread.php?27957-ROE-v-RUF (accessed October 4, 2022). ↑
5. ICRC, “Violencia y uso de la fuerza”, International Committee of The Red Cross (March 2012), 6, https://www.icrc.org/es/doc/assets/files/other/p0943.pdf ↑
6. Fernando Martínez Mercado, “Investigación Aplicada: Uso de la Fuerza” ”in Project: Generation of a Network of Investigations and Professionals Linked to Police Matters and Human Rights in Mexico, University of Chile (2015), 3, http://www.cesc.uchile.cl/publicaciones/dt_04_usodelafuerza.pdf ↑
7. César Manrique Zegarra, “Clasificación de los actos jurídicos públicos”, Poder Judicial del Perú (2004), https://www.pj.gob.pe/wps/wcm/connect/0b2cef8046d46e41a078a144013c2be7/clasificaci%C3%B3n_actos_juridicos_p%C3%BAblicos+C+3+.4.pdf?MOD=AJPERES&CACHEID=0b2cef8046d46e41a078a144013c2be7 ↑
8. Ibid. ↑
9. Carlos Alvizuri, “El proceso inmediato de flagrancia ¿Las detenciones por flagrancia respetan los derechos fundamentales?”, Passion for the law (2019), https://lpderecho.pe/proceso-inmediato-flagrancia-detenciones-flagrancia-derechos-fundamentales/ ↑
10. Eduardo Zamora Chung, “El Nuevo Código Procesal Penal Peruano y el debido proceso en las Operaciones de Seguridad Marítima: Alcances legales para el desarrollo de una Conciencia del Dominio Marítimo”, Marine magazine, year 104, Nº 3 (2011), 55-73, https://www.academia.edu/27950183/El_Nuevo_C%C3%B3digo_Procesal_Penal_Peruano_y_el_Debido_Proceso_en_las_Operaciones_de_Seguridad_Mar%C3%ADtima ↑
11. Eduardo Alcócer Povis, “La detención en caso de flagrante delito y el derecho penal”, Alcócer & Abogados (February 15, 2022), https://alcocerabogados.pe/la-detencion-en-caso-de-flagrante-delito-y-el-derecho-penal/ ↑
12. César Manrique Zegarra, “Clasificación de los actos jurídicos públicos.” ↑
13. Fernando Martínez Mercado, “Investigación Aplicada: Uso de la Fuerza.” ↑
14. ICRC, “Violencia y uso de la fuerza.” ↑