“A People who are willing to sacrifice security in exchange for freedom or vice versa deserve neither, they will end up losing both.”
Benjamin Franklin
Summary
After a brief description of the concepts of internal order, public order and citizen security, a distinction was made as to their scope, limits, principles and responsible entities. To this end, an exhaustive comparative analysis was made of Legislative Decree 1095, which “establishes rules for the employment and use of force by the Armed Forces in the National Territory, and Legislative Decree 1086, which “regulates the use of force by the National Police of Peru”. The importance of their compliance in the different risk scenarios by both institutions was determined, describing the gradualness and intensity of the use of force in the face of threats in the management of internal order. In this context, gaps and opportunities for improvement were identified with respect to the definition of the support provided by the Armed Forces to the Peruvian National Police (PNP) in the aforementioned management. Finally, recommendations are proposed that include the use of military capabilities to support the process of police operations, revision of regulations, capacity building, among others.
Keywords: Internal order, public order, use of force, military capabilities, police procedures, Armed Forces, PNP. AA., PNP
Figure 1. Collaboration of the Armed Forces in Support of the PNP
Source: National Radio (2024)
Introduction
It is undeniable the importance of the participation of the Armed Forces in managing the maintenance and/or re-establishment of internal order in different risk scenarios, whether they are in their charge or under the responsibility of the PNP. This collaboration seeks to guarantee balance and order in all fields of national activity, such as social, economic, political, technological, among others, ensuring the functioning and stability of the State, in accordance with the Political Constitution of Peru and the legal system. However, according to recent events, this has not been the most adequate; on the contrary, it has been questioned because of the results obtained, measured by the number of deaths and injuries, and not necessarily by the effective fulfillment of the missions assigned to the Armed Forces and the PNP. This was especially evident in the performance of the Peruvian Army (EP) in Ayacucho in 2022 and in Puno in 2023.
The intervention of the Armed Forces in the management of public order and citizen security should be analyzed in an exceptional manner, focusing on tasks of dissuasive presence, patrols and other actions, although without achieving the purpose of reducing the actions of criminality and decreasing citizen insecurity. According to Sansó (2013), in his academic article, “La seguridad ciudadana y las FF. AA. ¿Despropósito o último recurso frente a la delincuencia organizada?”, it is concluded that the participation of the Armed Forces in new risk scenarios should be in accordance with the Constitution, cooperating permanently with the PNP[1] . Only after this institution has exhausted all its available resources and a state of emergency has been declared, the Armed Forces can use force in an adequate and proportional manner, respecting the rights of citizens. On the other hand, Gutiérrez (2021) stated that the use of the Armed Forces to assist the PNP in the management of public order generates much controversy because they are not prepared to carry out this type of mission. In his opinion, the State should focus on strengthening the capacities of the PNP to combat both common and organized crime, guaranteeing public order and internal order .[2]
Consequently, it is essential to review the regulatory and doctrinal framework, as well as to evaluate the results of the actions and lessons learned. This will allow adapting the procedures of the Armed Forces in support of the PNP to achieve greater performance, clarity and optimization of resources and positive impact on the different tasks aimed at reestablishing internal order. It is essential to avoid confusing the nature of employment between military and police actions; however, it is possible to add differentiated means to fulfill the assigned missions. The thesis is that there are military capabilities that can be used in support of the PNP, at different times, spaces and contexts, to maintain or reestablish internal order. With exceptions, this could include support to the PNP in the maintenance of public order without necessarily resorting to the use of force or lethal means, except in extreme situations.
Analyzing Concepts of Internal Order, Public Order and Citizen Security
According to Article 44 of the Political Constitution of Peru[3] , the primary duties of the State are: (1) to defend national sovereignty; (2) to guarantee the full exercise of human rights; and (3) to protect the population from threats to its security. In addition, the internal order is contemplated in Article 137, which establishes that within the states of exception is the state of emergency, which may be decreed in case of disturbance of the internal order, catastrophe or serious circumstances affecting the nation. In such situations, certain individual rights are suspended. The management of internal order is the responsibility of the PNP, while the Armed Forces may support and take control of it if so ordered by the President of the Republic.
In this Magna Carta, Article 163 states that the primary purpose of the Armed Forces is to guarantee the independence, sovereignty and territorial integrity of the Republic. These institutions may assume the control of internal order in accordance with Article 137. Article 166 indicates that the essential function of the PNP is to guarantee, maintain and reestablish said order as its fundamental task.
Peru’s police doctrine[4] states that internal order is a legal and political institution supported by the legal and constitutional framework of the State. It manifests itself as a situation of equilibrium in all areas of national life, including social, economic, political, among others. This order is established to ensure the proper functioning and stability of the State, guaranteeing the normal development of institutions and governance. In this sense, the primary responsibility falls on the PNP and the Armed Forces have the power to intervene to reestablish it by presidential decree. Historical examples include the Andahuaylazo, the Ilave case, as well as situations related to the fight against terrorism and drug trafficking.
Likewise, this doctrine defines public order as an institution of a legal and social nature, supported by law and linked to coexistence in society. Like internal order, it is of a constitutional nature and its main objective is to guarantee balance and social peace within the State. This implies maintaining a harmonious and stable coexistence in the community, characterized by four fundamental elements: tranquility, security, health and public morality, which must be preserved to maintain order and social peace. Examples include situations that alter public order, such as: strikes, work stoppages, road blockades, assassinations, kidnappings, extortion, arms trafficking, among others.
TABLE 1. Comparison of key concepts
| CONCEPTS | INTERNAL ORDER | PUBLIC ORDER | PUBLIC SAFETY |
| Character | Legal and political | Legal and social | Legal and local |
| Demonstration | Situation of balance and order in all areas of national life | Situation of harmonious and stable coexistence in the society. | Manifestation of order and peace within the communities and localities. |
| Purpose | Ensuring the functioning and stability of the State | To ensure balance and social peace within the State. | Promote peaceful coexistence and social order at the local level. |
| Scope | National | National – Regional | Regional – Local |
| Risk scenarios | Andahuaylazo, Moqueguazo, Baguazo, Ilave – Puno case, armed strike, terrorism, drug trafficking, illegal mining, etc. | Strikes, work stoppages, road blockades, contract killings, extortion, arms trafficking, etc. | Robberies, assaults, gangs, prostitution, barras bravas. |
| Fundamental elements | National stability, governability, internal security and social peace | Tranquility, safety, health and public morality | Tranquility, safety, health and public morality |
| Governing Body | Council of Ministers | Council of Ministers | National Citizen Security Council |
| Actors | Central Government, Ministry of the Interior (MININTER), Ministry of Defense (MINDEF), PNP and Armed Forces. AA. | Central Government, MININTER, PNP, regional governments | Central Government, PNP, Regional Government (GGRR), Local Government (GGLL) |
Source: Prepared by the author
Citizen security, according to this doctrine, represents an expression or manifestation of public order at a more local or community level; that is, it focuses on maintaining order and peace within communities and localities, to ensure peaceful coexistence in these areas. Its actions are framed within the framework of respect for the established constitutional and legal order. As a public policy, it is part of the State’s strategic planning to manage security issues at the community level, being its governing body the National Council for Citizen Security (CONASEC), in which the Defense sector has no participation or competence whatsoever. Examples of situations that alter citizen security include robberies, assaults, gangs, prostitution, among others.
Based on this analysis, it should be noted that the Armed Forces are only competent to participate in the reestablishment of internal order, while public order and security are entirely and exclusively the responsibility of the PNP, in accordance with the Constitution and MINDEF’s legislative regulations.
Comparative Analysis on the Use of Force by the Armed Forces (Legislative Decree 1095) and the PNP (Legislative Decree 1186)
First, an analysis was made of Legislative Decree 1095, which establishes the legal framework that regulates the use and employment of force by the Armed Forces in the national territory[5] . Its purpose is to protect society, defend the rule of law and ensure peace and internal order. This norm establishes the principles, forms, conditions and limits for the employment and use of force by the Armed Forces during the fulfillment of their constitutional function. Therefore, it applies when the Armed Forces assume control of internal order in a state of emergency or provide support to the PNP. In this context, essential terms such as military actions, lethal force, non-lethal force, hostile group and military objective are defined, establishing the principles of humanity, distinction, limitation, military necessity and proportionality for the use of force.
Likewise, the law authorizes the intervention of the Armed Forces against a hostile group to conduct military operations in a state of emergency, entrusting them with the control of internal order. The use of force proceeds against military objectives, in accordance with the principles of International Humanitarian Law (IHL). In other situations of violence, the Armed Forces are allowed to carry out military actions in support of the PNP to control internal order in a state of emergency. For this purpose, the principles of legality, necessity and proportionality in the use of force are established, in accordance with International Human Rights Law (IHRL).
TABLE 2. Scenarios of participation of the Armed Forces, according to Legislative Decree 1095
| RANGE/ RULING | TOOLS OF THE LAW | LEGAL
CONDITION |
CATEGORY | SCENARIO | OTHER CONDITIONS |
| Military Operations / Rules for the Use of Force (Rules of Engagement) | International Humanitarian Law (IHL) | State of emergency, in charge of the Armed Forces. | Threats to internal order | Terrorism (hostile groups) |
|
| Military actions in support of the PNP / Use of Force Rules | International Human Rights Law (IHRL) | State of emergency, in charge of the Armed Forces or the PNP (other situations of violence). | Illicit drug trafficking (IDT) | ||
| Social conflict | |||||
| Organized crime (illegal mining, illegal logging, smuggling) | |||||
| State of emergency, in charge of the PNP | Concern | Natural phenomena |
|
||
| Pandemics | |||||
| Migrations |
Source: Prepared by the author
In summary, Legislative Decree 1095 regulates the employment and use of force by the Armed Forces in situations of internal order, excluding public order and citizen security tasks, establishing principles, force levels, planning process for military operations and actions, as well as rules of operational conduct, according to the scenarios of action described in FIGURE 2. However, the Armed Forces have a range of military capabilities, including non-lethal means, which can be more specifically and effectively integrated in support of the PNP.
Secondly, by synthesizing Legislative Decree 1186 and its regulation through Supreme Decree 012-2016-IN, the legal framework that regulates the use of force by the PNP in the performance of their duties is defined. The rules for the use of force in defense of the person, society and the State are determined, applicable to all active police personnel.
The use of force is understood as the progressive and differentiated use of means in the performance of duty, based on the principles of legality, necessity and proportionality. Additionally, the levels of cooperation, resistance or aggressiveness of citizens are classified into passive resistance, active resistance, non-lethal aggression and lethal aggression[6] . PNP response levels include police presence, verbalization, contact control, physical control, non-lethal defensive tactics and, as a last resort, use of lethal force.
In addition, circumstances such as detention in flagrante delicto, crime prevention, protection of legal property and control of resistance are described. Rules of conduct are established that oblige agents to identify themselves, identify the crime and warn about the use of force. Failure to comply with these provisions entails administrative, criminal and civil liability; therefore, it is essential to train personnel and adapt these regulations to the procedures of police operations. It should be specified that the participation of the PNP, following the logic and coherence of the gradual use of force established in this norm when interpolated with the phases of escalation in latent social conflicts, configures a Gaussian bell.
Figure 2. PNP participation in the phases of social conflicts
Source: Prepared by the author, based on Legislative Decree 1186.
This regulation seeks to regulate the use of force by the PNP, establishing principles, levels, circumstances and rules of conduct, in order to guarantee respect for the fundamental rights of citizens during the exercise of the police function, ensuring that the use of weapons is progressive and differentiated. This implies that, in the face of the actions of threat actors, when they carry out lethal aggressions against the PNP, putting lives and their work at risk, the police response must be through lethal tactics . [7]
Once the PNP has exhausted its last resort and its capabilities have been overwhelmed, the intervention of the Armed Forces becomes imperative in extreme situations, which raises the following question: What should be the response of the Armed Forces after the PNP has used lethal tactics?
Both norms regulate the actions of the Armed Forces and the PNP, establishing procedures and institutional responsibilities of strict compliance at all levels of decision-making, planning, preparation and execution of both institutions. However, there is a lack of precision regarding the support that the Armed Forces can provide to the PNP in the different scenarios of internal order risk, which should not be interpreted exclusively as the use of lethal force, but as a range of military capabilities for the fulfillment of their constitutional role.
Likewise, it is crucial to define more precisely the situation and context through indicators that determine when the PNP has been overwhelmed or its capacities have been overwhelmed, which would justify the intervention of the Armed Forces, which should only be in extreme cases in which the PNP cannot fulfill its mission.
Review of the Military Capabilities of the Armed Forces for the Fulfillment of their Strategic Roles
After the Cold War, states began to reorganize their military structures to adapt to new security demands that went beyond territorial defense and conventional warfare (Colom 2017). This was due to the need to manage emerging threats and technological, political and economic changes that impacted national defense[8] . This adaptation process is known as transformation and was the central axis of security and defense policies in developed countries.
The capability planning tool, used by the United States (US) in 2001, allowed its Armed Forces to design multipurpose, flexible, affordable, sustainable, and full-spectrum operational capabilities, thus adapting to new risk scenarios.
Peru was no stranger to such trends. In November 2016, through Ministerial Resolution 411-DE/CCFFAA, the strategic roles of the Armed Forces were defined, established according to the purpose assigned by the State. These must be materialized in missions under a strategic conception, employing military capabilities to ensure national defense and contribute to the country’s development. The assigned responsibilities are: (1) guarantee independence, sovereignty and territorial integrity; (2) participate in internal order; (3) participate in national development; (4) participate in the National Disaster Risk Management System (SINAGERD); and (5) participate in foreign policy[9] . It is inferred that the primary role of the Armed Forces is to guarantee independence, sovereignty and territorial integrity, while the other four roles are complementary. This implies that the Armed Forces should only employ a range of military capabilities to fulfill their essential function and support their complementary roles, which does not necessarily imply the use of kinetic or lethal capabilities.
That same year, through Ministerial Resolution 1490-DE/CCFFAA, issued on December 14, the following was approved: (1) the definition of military capabilities; (2) the factors that make up a military capability; and (3) the typology of military capabilities of the Armed Forces. These factors are: (1) equipment; (2) organization; (3) personnel; (4) infrastructure; (5) education; (6) logistics; (7) doctrine; (8) instruction and training[10] . In addition, these capabilities are grouped into six military capability areas, as shown in TABLE 3.
TABLE 3. Military capabilities
| INTEGRATED COMMAND AND CONTROL | INTELLIGENCE, SURVEILLANCE AND RECONNAISSANCE | EFFECTIVE RESPONSE | PROTECTION AND SURVIVAL | INTEGRATED LOGISTIC SUPPORT | FORCE PROJECTION |
| Command and control
Strategic communication Telematics Influence operations |
Management and planning
Human Collection Technical collection Information processing Intelligence dissemination Counterintelligence surveillance and reconnaissance |
Terrestrial response
Naval response Aerial space response Special response |
Terrestrial protection
Aerial protection Naval protection Protection against explosive devices NBCR Protection Search and rescue of personnel and equipment Cyber Defense Electronic warfare Damage control Survival |
Strength support
Sustainment of military operations and actions Strength health and wellness |
Mobility of forces
Deployment and transportation of the force |
Source: Prepared by the author
It is clear that military capabilities are developed by the Armed Forces exclusively for national defense. Although there are capabilities that are used for disaster risk management, in the maintenance of internal order against hostile forces, in supporting the safeguarding of elections and in the protection of Critical National Assets (CNA), among other tasks, certain capabilities can also be used in specific situations and at specific times, within the framework of military actions in support of the PNP, whether it is in support of the PNP or not. Certain capabilities can also be used in specific situations and moments, within the framework of military actions in support of the PNP, whether or not it is in charge of internal order, such as telematics, Psychological Operations (OPSIC), and all capabilities in the areas of intelligence, surveillance and reconnaissance, protection and survival, integrated logistical support and force projection. This does not necessarily imply the use of force or effective response. It is essential to identify specific situations and moments for the support or employment of these capabilities, which should complement police operations and procedures.
Police Intervention Procedures Against Threats to Internal Order and Public Order
According to the PNP Operations Manual, this institution executes a series of police operations to fulfill its constitutional roles in the management of internal order, public order and citizen security. These operations guarantee the functioning of the State, social coexistence, peace and tranquility of society. For their full development, they follow a process that begins with: (1) planning; (2) organization; (3) execution; (4) coordination; (5) control; and (6) evaluation.
In addition, they are technically classified to facilitate their study and understanding, in order to obtain effective and diverse responses in the management of risk scenarios, which allows the PNP and its operational units to define tasks, purposes, magnitude, importance, means and other relevant aspects of a given police operation. This ensures the fulfillment of their constitutional roles within the regulatory framework of internal order, public order and citizen security.
TABLE 4. Classification of Police Operations
| BY ITS MAGNITUDE | BY ITS NATURE | FOR LIABILITY | BY SCOPE | BECAUSE OF ITS IMPORTANCE |
| Strategic operations
Tactical operations |
General operations: of a permanent nature and oriented to solve day-to-day problems
Special operations: temporary, to solve extraordinary or specific problems, unique problems, special equipment, specialized force, etc. |
Responsibility of the PNP: using its resources and means
Responsibility of the Armed Forces: in a state of national emergency, states of exception for the Internal Defense of the Territory (DIT) or in case of war. Multi-sectoral liability: disasters, casualties, earthquakes, floods, etc. |
Territorial: rural, urban, transit, motorized, riots, disasters, crime, anti-subversive, anti-drugs
Office: planning, investigations of misdemeanors, crimes, accidents, etc. |
Main: traffic patrolling, riot patrolling, anti-drug patrolling, etc.
Secondary or ancillary: raids, use of canine police, use of female police |
Source: Prepared by the author
It can be seen in this classification that there are operations in which, due to their nature, responsibility, scope or importance, the Armed Forces can support with certain military capabilities that help police management to obtain better results. This does not necessarily imply the use of force through an effective response, however, it is imperative that there be joint planning between the PNP and the Armed Forces to specifically define the support to the PNP in these procedures.
However, there are key success factors such as: (1) personnel training, (2) delegation of authority, (3) action plans, (4) communication techniques, (5) intelligence, (6) information, (7) detention and concentration sites, (8) laboratories, (9) logistical support, (10) internal services and other factors that must be considered during the planning and its stages, which will result in the operations plan for the respective police intervention.[11]
Figure 3. Police operations process
Source: Prepared by the author
When analyzing the process of police operations and associated activities, a sequence necessary to execute a mission is observed. It also requires the development of a series of tasks ranging from planning, organization, execution to coordination and control. These actions are carried out before, during and after the operation and may include military capabilities such as intelligence, surveillance, reconnaissance, equipment, logistic support, influence operations, cyber defense, force projection, among other more specific ones. All of them imperatively demand not only coordination, but also integrated planning to achieve proper synchronization.
Figure 4. Gradual use of force in support of the PNP in social conflicts
Source: Prepared by the author
Conclusions
The Armed Forces, according to their regulations, are only competent to participate in the reestablishment of internal order. According to their strategic roles, their participation in public order and citizen security, tasks that are the exclusive responsibility of the PNP according to its regulations, is not contemplated.
Legislative Decree 1095 has gaps in that it does not specify the use of other capabilities to support the PNP in its internal order, public order and citizen security tasks. In addition, it does not precisely define the condition, context, situation and moment in which the PNP’s capacities have been exceeded.
It is undeniable that there is a contrast in the nature of the roles and strategic tasks assigned to the Defense and Interior sectors; therefore, the capabilities and means they must develop, achieve and maintain are different to respond to their respective missions, therefore, this should not mean militarizing the police or subordinating the Armed Forces to police tasks.
The regulations for public order and citizen security have a governing body called the National Council for Citizen Security (CONASEC). However, within this structure, the Defense sector and the Armed Forces do not have representation that would allow them to adequately advise on the use of these forces in support of the PNP in matters of this nature.
The participation of the Armed Forces in public order and citizen security tasks, through dissuasive presence and urban patrols, has not had a significant impact on reducing crime or strengthening citizen security.
There are military capabilities such as intelligence, surveillance, reconnaissance, influence operations, logistical support, cybersecurity, transportation and evacuation that can be employed during all phases of police operations without necessarily involving the use of force or effective response capabilities.
The participation of the Armed Forces in the planning process of police operations is important because there are moments and spaces of opportunity to integrate non-lethal capabilities in support of the PNP. This is relevant when exceptions are established for their participation in these operations, in order to synchronize the use of military capabilities and achieve better results.
The participation of the Armed Forces in support of the PNP in internal and public order tasks should not be considered a nonsense. It is essential to clearly establish and define this support. The use of lethal force or effective response should be considered only after the PNP has used its lethal tactics as a last resort and its capabilities have been overwhelmed.
Endnotes:
- Sansó-Rubert, Daniel. 2013. “Citizen Security and the Armed Forces: nonsense or last resort in the face of organized crime?” Revista Criminalidad 55, no. 2 (May-August): 119-133. https://dialnet.unirioja.es/descarga/articulo/4685489.pdf. ↑
- Gutiérrez, 2021. “¿Por qué las fuerzas armadas no deben enfrentar la inseguridad ciudadana?” Diario La República, 3. ↑
- Political Constitution of Peru. 1993. TITLE IV, “On the Structure of the State, Chapter VII, Regime of Exception”, Article 163. https://www.congreso.gob.pe/Docs/files/constitucion/constitucion-noviembre2022.pdf. ↑
- Police Doctrine. 2007. “Orden interno, orden público y seguridad ciudadana.” https://extranet.mininter.gob.pe/aplicativosweb/admin/archivos/doctrina_policial.pdf ↑
- Legislative Decree N° 1095. 2010. “Que establece reglas de empleo y uso de la fuerza por parte de las Fuerzas Armadas en el territorio Naciona”. https://www2.congreso.gob.pe/sicr/cendocbib/con2_uibd.nsf/4E2FCC17050A1136052577910065602D/$FILE/DECR_LEGISLATIVO_PR_1095.pdf. ↑
- Legislative Decree No. 1186. 2015. “Que regula el uso de la fuerza por parte de la Policía Nacional del Perú”. https://leyes.congreso.gob.pe/Documentos/DecretosLegislativos/01186.pdf. ↑
- Supreme Decree N° 012-2016-IN. 2016. “Reglamento del DL 1186: Uso de la fuerza por parte de la Policía Nacional del Perú.” Published July 27, 2016. https://busquedas.elperuano.pe/dispositivo/NL/1409580-3. ↑
- Colom, Guillermo. 2017. “A review of defense planning by capabilities in Spain from 2005 to 2016.” Defense Review 30(1): 37-53. https://ideas.repec.org/a/ucm/padeur/v30y2017i1p37-53.html. ↑
- Ministerial Resolution N° 1411-DE/CCFFAA. 2016. “Definition of the Strategic Roles of the FFAA.” https://www.google.com/search?q=Resoluci%C3%B3n+Ministerial+1411-DE%2FCCFFAA%2C+(2016). ↑
- Ministerial Resolution N° 1490-DE/CCFFAA. 2016. “Definition of Military Capabilities of the FFAA.” Published December 14, 2016. https://pensamientoconjunto.com.pe/index.php/PC/article/download/138/137/610. ↑
- National Police of Peru. 2012. Peruvian National Police Operations Manual. https://www.policia.gob.pe/Contenido/doc/docuDireasjur/MANUAL%20DE%20PROCEDIMIENTOS%20OPERATIVOS%20POLICIALES-2013.pdf. ↑
