Commentary: ADPF 635. The interweaving of the International Human Rights Law and the International Humanitarian Law in the repression of the territorially dominant Third Generation Gangs in the city of Rio de Janeiro, Brazil

Commentary: ADPF 635. The interweaving of the International Human Rights Law and the International Humanitarian Law in the repression of the territorially dominant Third Generation Gangs in the city of Rio de Janeiro, Brazil

Notes on the Decision Provided in the Provisional Remedy in the Injunction for Infringement of a Fundamental Precept #635 Rio de Janeiro 

Carlos Frederico de Oliveira Pereira

Posing the Problem

On 12 April 2019, the PSB (Partido Socialista Brasileiro – Brazilian Socialist Party) filed a motion before the STF (Supremo Tribunal Federal – Brazil’s Federal Supreme Court) called ADPF (Arguição de Descumprimento de Preceito Fundamental – injunction for infringement of a fundamental principle)[1] No. 635. [ADPF No. 635 is also known as the ADPF Favelas Case.] The party aims with this process for the Supreme Court, STF (Federal Supreme Court), to recognize and mitigate what it regards as serious violations of the fundamental precepts of the Brazilian Constitution committed by the State of Rio de Janeiro in the execution and enforcement of its public security policy concerning the lethality of police actions, especially in the slums, aiming at various measures to reduce the number of casualties resulting from these police operations.

The Party claims that, when the Rio de Janeiro police conduct these operations, it prevents the rescue of wounded citizens, illegally invades homes, and commits property crimes, as well as extrajudicial executions, among other violations. The ADPF claims that these operations violate human dignity; therefore, there should be the right to equality and priority in the guarantee of the fundamental rights of children and adolescents, of the Black population, and of youngsters. It refers to the so-called “stray bullets,” situations in which civilians that are not participating in the hostilities end up injured, and believes that measures are to be taken, such as the prohibition of the use of helicopters as either shooting platforms or instruments of terror, police reports on such incidents, prohibition of collective search and seizure warrants, among other measures, which, once adopted, tend to achieve the goal of reducing lethality, according to them. They also refer to methods of combat with the use of armored vehicles and helicopters, which follow the logic of warfare.

In short, the injunction aims primarily to ensure greater protection of the civilian population in places where intense armed confrontations between criminals and police occur. Even though not expressly mentioned in the petition, these shootings take place in areas dominated by the organized crime, i.e., within their territorial control, such as drug dealing and militia zones, which are heavily armed with weapons of war. Areas where confrontations with the police far exceed the intensity of what is observed in other neighborhoods in Rio de Janeiro and elsewhere in the country. Another important detail that is not included in the Injunction is that the armed confrontations in these places also happen among the criminals themselves; it is not uncommon that one group tries to take over other drug dealers’ sales venues. In this case, the intensity of the confrontations is equal to or even worse than those observed between the police and the organized crime.

The PGR (Procurador-Geral da República do Brasil – Attorney General of the Republic of Brazil) opined for the rejection of almost all requests, except for the use of helicopters and the unconstitutionality of the State of Rio de Janeiro Decree n. 46.775/2019, about remuneration of police officers.

Undoubtedly, measures aiming at greater control over police activity, as well as reduction of lethality in law enforcement operations are always welcome. Strikes our attention, however, some of the measures taken on this Motion, such as the ban on the use of helicopters, the restrictions imposed on the operations during the pandemic, and the breach of secrecy of such operations.

These judicial measures were taken within the context of confrontations against dangerous territorial gangs, the so-called Third Generation Gangs. The aim here is to analyze the nature of the armed confrontations in the venues dominated by the organized crime and the possible positive and negative consequences of decisions on the regulation of the use of force by the police taken so far in the ADPF 635 process. 

What are Third-Generation Gangs.

Briefly, we can classify gangs as follows:

(1) First Generation Gangs – they are traditional street gangs, everyday crime, territorially oriented, as when crime starts its organization, it tends to dominate spatial territories;

(2) Second Generation Gangs – they are engaged in business, they are entrepreneurial and drug-centered, but they may also engage in other activities, such as arms trafficking, and;

(3) Third Generation Gangs, having deepened their level of organization; may even operate internationally. Their actions involve political objectives, as they tend to substitute the State in the dominated areas and to defend the territorial zone of influence in the same way as insurgent political groups.[2]

It is when the Third Generation Gangs are established that criminal insurgency appears, in the manner of political insurgency.[3] In essence, the repression of these groups involves urban guerrilla warfare and the use of terrorism.

In this phase, the confrontations can assume the characteristics of a non-international armed conflict, such as, in our opinion, what is happening nowadays in the city of Rio de Janeiro. Gray zone conflicts are also mentioned, which seems to be the way the Brazilian Supreme Court (STF) understands the problem, situations for which there is still no international legal framework. Even worse at our domestic level, one that is set between the rules of the progressive use of force in the enforcement of criminal law, which guided our Supreme Court's decision, and that of the International Law of Armed Conflicts [LOAC]. However, in our understanding, through legal treatment, the limits on the use of force of the Law of War can be used for police activity, whether in ordinary confrontations or in gray zone situations.[4]

Confrontation of territorial gangs demands the establishment of its own set of rules. Placing criminal law enforcement operations in Copacabana and Jacarezinho on the same level is a mistake of interpretation that can lead to serious social consequences, especially if we consider that treaties that regulate the use of force in police activities are insufficient to provide adequate protection to the civilian population in the dominated areas.

The scope and the object of the precautionary decisions made in the ADPF 635. The regulation of the progressive use of force against the territorial dominated organized crime in Rio de Janeiro.

The case was analyzed by the STF on 27 April 2020, but it was not finalized due to a request for a review examination by Justice Alexandre de Moraes. On 5 June 2020, ad referendum of the Court, Justice Edson Fachin, the judge-rapporteur of the case, maintained his vote of what would be decided on 26 April 2020, granting an injunction to determine several measures, such as: the restriction on the use of helicopters, requesting police reports on such incidents, allowing only individual dispatch of search and seizure warrants, the preservation of the venues of possible crime scenes, photographic documentation, absolute exceptionality for operations in the perimeters of schools, day-care centers, hospitals or health care centers. On this occasion, in item 9, he decided as follows:

Overruled, owing to the possible loss of the object, the request to suspend the secrecy of all the protocols of police activity, including the Operational Aircraft Manual of the fleet of the State Civil Police Secretariat.

He also decided:

1. 1. that, under penalty of civil and criminal liability, no police operations are to be carried out in the communities of Rio de Janeiro during the epidemic of COVID-19, except in absolutely exceptional cases, which must be duly justified in writing by the competent authority, with immediate communication to the Public Prosecutor's Office of the State of Rio de Janeiro (MPRJ) – responsible for the external control of police activity; and
   2. that, in the extraordinary cases of these operations during the pandemic, exceptional care be taken, duly identified in writing by the competent authority, so as not to put at an even greater risk, the population, the provision of public health services and the performance of humanitarian aid activities.

On 18 August 2020, the Plenary, by a majority, with Justices Alexandre de Moraes and Luiz Fux dissenting, upheld the injunction, whose trial had begun on 8/5/2020, to suspend police operations in the communities of the city of Rio de Janeiro during the Covid-19 epidemic, except in cases justified in writing before the MPRJ (Ministério Público do Estado do Rio de Janeiro –Public Prosecutors Office of the State of Rio de Janeiro). While the ADPF 635 was being processed, some operations were carried out, with casualties, including the death of children. These operations took place in the communities (otherwise known as slums or favelas) of Alemão, São Gonçalo and Acari.

Abstract: REFERENDUM IN AN INCIDENTAL MEASURE IN A CLAIM OF BREACH OF A FUNDAMENTAL PRINCIPLE. POLICE OPERATIONS IN THE COMMUNITIES OF RIO DE JANEIRO DURING THE WORLD PANDEMIC. DELAY BY THE STATE IN COMPLYING WITH THE DECISION OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS. LEGAL PLAUSIBILITY. FACTUAL CONTEXT IN WHICH RESIDENTS REMAIN LONGER AT HOME. REPORTS OF OPERATIONS THAT REPEAT THE PATTERN OF VIOLATIONS ALREADY IDENTIFIED BY THE INTER-AMERICAN COURT. PERICULUM IN MORA. GRANTING OF THE MEASURE.

1. The delay in complying with the determination issued by the Inter-American Court of Human Rights is the foundation that supports the thesis that the State of Rio de Janeiro fails to promote public policies to reduce police lethality.

2. The residents of communities in Rio de Janeiro staying at home, as a result of the international pandemic, as well as reports of new operations that apparently repeat patterns of previous violations, substantiate the fear that the measure, if granted only at the end of the process, will be ineffective.

3. Precautionary measure granted to determine: (i) that, under penalty of civil and criminal liability, no Police operations are to be carried out in communities of the Rio de Janeiro during the COVID-19 epidemic, except in absolutely exceptional cases, which must be duly justified in writing, by the competent authority, with immediate communication to the Public Prosecutor's Office of the State of Rio de Janeiro (Ministério Público do Estado do Rio de Janeiro – MPRJ that is responsible for external control of Police activity; and (ii) that, in the extraordinary cases of these operations during the pandemic, exceptional care is to be taken, duly identified in writing, by the competent authority, so as not to put at an even greater risk, the citizens, the provision of public health services and the execution of humanitarian aid activities.

Also, in regard to these police operations, on 26 November 2020, the Justice-Rapporteur of the case sent an official letter of communication to the State of Rio de Janeiro, where the appeal of a Motion for Clarification within the APDF 635 was analyzed, in which the continuity of the operations in other parts of the city was affirmed, despite the aforementioned decisions:

a. the compliance of the decision from the Inter-American Court of Human Rights regarding the establishment of goals and policies to reduce lethality and police violence, pursuant to paragraphs 321 and 322 of the Judgment of February 16, 2017; b. if the determination has not yet been complied with, the reasons that justify the delay, also indicating the name of the authorities that had and have the responsibility to execute the measure; c.the justification presented for maintaining any confidentiality related to the protocols of the Police action, with a copy of the classification decision (art. 28 of Law 12.527, of 2011); d. the justifications presented for the operations narrated in the petition (eDOC261), with a copy of the official letters that were forwarded to the State Public Prosecutor's Office (MPRJ), as well as a description of the precautions taken when performing the acts. That notwithstanding, considering that, when the precautionary measure was judged, the Court recognized the investigative competence of the Public Prosecutor's Office, not as a possibility, but as an imposition in cases in which state violence is used, the Public Prosecutor's Office of the State of Rio de Janeiro should be notified so that, within five days, it informs the data of the ongoing investigation records (filing number or protocol, names of the investigated and summary of the facts to be investigated) for the verification of the deaths that have occurred as a result of the actions of state agents since the granting of the precautionary measure. We also request a copy of the justifications presented by the State, as well as the reports produced at the end of each operation. Finally, the National Council of the Public Prosecutor's Office should be notified so that it may monitor compliance with the order issued by the Plenary of the Federal Supreme Court. A copy of this order shall serve as an official letter. To be published. To be notified.

On 17 December 2020, the Justice-Rapporteur determined that official letters be sent to the Civil and Military Police, to the Court of Justice, to the State of Rio de Janeiro Public Prosecutor's Office, and to the Secretariats of Justice and Public Safety, all institutions belonging to the State of Rio de Janeiro, as well as to the Federal Police and to the Ministry of Justice and Public Safety. Undoubtedly, this is an important stage to understand the overall scope of the problem.

On 4 December 2021, the Justice-Rapporteur, again in a monocratic manner, decided in the following terms:

Therefore, due to the closeness of the public hearing to be held in this Court, considering the indispensability of this information and recognizing the constructive and transparent action exercised by the Public Prosecutor's Office of the State of Rio de Janeiro, I grant the request to share the contents of all annexes placed by the Public Prosecutor's Office of the State of Rio de Janeiro when it attached its statement of information (Petition No. 102685/2020, cf. certificate and doc 276), safeguarding the confidentiality of any intelligence information that does not concern the compliance, by the government of the State of Rio de Janeiro and by the MPERJ, with the precautionary decisions issued in the scope of this ADPF. Notify, immediately, the Public Prosecutor's Office of the State of Rio de Janeiro.

On 31 May 2021, the Court reiterated the need for police operations to follow international treaties on the use of force by the police. Justice Alexandre de Moraes again asked to review the case, and a new monocratic decision followed a month later, in the following terms:

In light of the above, I grant, in part, the request made by the applicants to (i) permit access to the communications of Police operations, as well as the reports produced at the end of the operations, with the exception only of cases in which there is information provided by the intelligence services that does not concern compliance by the government of the State of Rio de Janeiro and the MPERJ with the injunctions issued in connection with this ADPF; and (ii) as a precautionary measure, order the Federal Public Prosecutor's Office to bring an investigation before the Federal Court of Rio de Janeiro to investigate possible non-compliance with the decision issued by the Federal Supreme Court in connection with this plea of breach of a fundamental precept (ADPF). To be published. To be notified. Brasília, June 30^th, 2021.

The main petition and precautionary requests show concern about the control of Police operations in urban agglomeration areas. Thus, considering the investigative powers of the Public Prosecutor's Office, there is a need to elaborate reports on operations carried out by the police, as well as a need to safeguard the distance of such operations from educational and health units, in addition to the restriction on the use of helicopters, the preservation of any traces of criminal materiality, restrictions on the issuance of collective search and seizure warrants, notably regarding generic warrants, among other measures. Undoubtedly, these are important criteria to guarantee the safety of police operations, to avoid collateral effects, and therefore, to better guarantee the right to life and human dignity, as it is the will of the constituent legislator.

International and domestic regulations on the progressive use of force in police activity.

The progressive use of force by the police is regulated internationally by three UN treaties: the Code of Conduct for Law Enforcement Officials (UN, 1979); Guidelines for the Effective Implementation of the Code of Conduct for Law Enforcement Officials (UN, 1989); and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN, 1990). Such norms were internalized in Brazil through Federal Law 13,060/2014 and Interministerial Ordinance No. 4.2226/20104.[5] These international norms are little detailed for what is intended in the ADPF 635.

In fact, these norms are barely practical in regard to the effects of police activity on the civilian population, because they are primarily aimed at the police action upon the person to be arrested. They do not provide details on combat methods for what had been stated in the ADPF 635. The internalization has taken the same path here as it has in other countries, for those statutes have been designed for situations that are much less serious than those involving armed confrontation against organized crime with territorial domination.[6] The decisions are showing a great effort to minimize collateral harm of police operations to the civilian population; and International Human Rights Law is also insufficient for that.

The ADPF 635 refers to urban conflicts in the city of Rio de Janeiro, with intensity beyond what is observed in the routine activity of criminal law enforcement. The question remains whether this type of problem can be solved within the limits set by the ADPF 635 or any other judicial inquiry.

As it is a matter of confronting chronic conflicts of much greater intensity than is observed in the routine work of the police, there could already be a body of legal norms better suited to this reality, both as general rules issued by the legislative branch of the Federal Government, as well as regulations issued by the Federal and State government executive branches responsible for implementing public security policies within the limits of their territorial jurisdiction. Given this gap, the judicial activism, in this case, is not justified but explained, but as always, it invaded the competence of the Legislative and Executive Branches, advancing on a theme for which there is no adequate solution anywhere in the world that can serve as an inspiration. The solution to this issue demands a profound debate, which should be conducted by the elected members of the Congress and not by Justices.

If we observe the norms of Peru, Colombia, and Mexico regarding the regulation of the use of force by the police, compared to what exists in the Brazilian Law, it is unequivocal that if these norms are observed, the trend is directed towards the decrease in the lethality in confrontations with the police, but within a scenario of violence that is normally expected in the application of criminal law.

In our understanding, this is a conflict that long ago ceased to be a problem exclusively related to crime repression. 

The scope of the problem that is not restricted to the police action. The interweaving of the two protective systems of Human Rights: The International Human Rights Law and the International Humanitarian Law.

Beyond the violence witnessed in police operations where it is becomes clear that such conflict has surpassed the minimum threshold of internal disturbances,[7] it should be noted that those norms regulating the progressive use of force are insufficient or unsuitable to protect the civilian population, as they were established to avoid any excesses regarding the individual to be arrested and not those around him. The problem is that the Brazilian Supreme Court (STF) went beyond and extended those restrictions on the police activity precisely to areas controlled by organized crime with territorial domination, thus selecting the norms on an extremely sensitive issue, whose regulation deserved a profound debate for this type of intensity, for which no one has yet dared to legislate, as it inevitably involves the interweaving of two systems: The International Human Rights Law (IHRL) and the International Law of Armed Conflict (LOAC), the latter with detailed rules on limits on the use of force and on possible consequences of the confrontation on those who do not participate in the conflict, mainly the civilian population.

The decisions herein mentioned reveal the concern with collateral harm on those not participating in the armed conflict, when referring to ambulances, victim assistance, prohibition of the use of civilian property, schools and hospitals, notably so that they are not used as bases of operations. This is a typical concern of the International Humanitarian Law (IHL), or of the armed conflicts. The STF is analyzing issues that go far beyond the concerns of the progressive use of force by the police. And that is inevitable, given the type of conflict that is the object of the ADPF 635.

The decisions commented here interweave, therefore, the two protective systems, albeit giving precedence to the norms of International Human Rights Law, in which the treaties regulating the progressive use of force are located. The precautionary decisions really innovate, because, generally, when we speak of the simultaneous observance of the two systems, it is to say that the International Human Rights Law remains in force even with the prevalent application of International Humanitarian Law (lex specialis), in the face of a situation characterized as an international or non-international armed conflict. We understand that it is perfectly possible to combine the two systems in the way that was done in the precautionary decisions, but this would be for situations of gray zone conflicts,[8] of enormous gravity, but without territorial domination, such as, for example, the mega-assault that occurred in the city of Araçatuba.[9] On the other hand, the element of territorial domination touches the subject of the minimum threshold for considering the conflict as governed by the International Humanitarian Law.

Nevertheless, the suitable venue to discuss this type of regulation regarding the police activity should only be our National Congress, especially because it must come in the form of a Federal Law,[10] or amending the legislation on the progressive use of force by the police, Federal Law 13.060/2014. Moreover, in the National Congress the debate would be, necessarily, much more extensive and with greater depth.

The downside of this innovation is that the regulation of the problem by the precautionary decisions in the ADPF 635, notably regarding the creation of extraordinary rules for carrying out operations in places dominated by organized crime during the pandemic, limiting the use of helicopters and breaking the secrecy of operations, restricted the problem, in our opinion, only to the point of view of the police action, forgetting the violence unleashed by non-state actors. These are decisions that may worsen the situation of those who live in these places and do not participate in the armed confrontations. The measures that have been determined to make police action more difficult benefit the heavily armed criminal organization with territorial domination much more than the civil population that lives in these dominated areas. It is perfectly possible to better regulate police action without creating constraints to their actions, nor treating as possible illicit the actions of those who are risking their own lives to enforce the law, in a scenario of confrontation that is absolutely disproportionate to the level of violence expected for police activity. On the contrary, a scenario that is directly proportional to armed conflicts, for which military personnel from the Armed Forces, and not police agents, are trained.

To create a prior control for the police activity, the consequence of which is possibly hindering the law enforcement activity itself, not to mention creating a risk that, whenever police agents engage in fighting crime, they might be in the practice of crime, especially when one remembers that their duty is not an option but a legal obligation, is absolutely incomprehensible. Under the terms of what was provisionally decided in the precautionary measures by the STF in ADPF 635, there is the risk of criminalizing the police activity itself.

Another consequence should be noted. In practice, the territorial domination of the gangs can be legitimized, even if this is not desired, and the local civilian population can be formally governed by the law of the drug traffickers and militia, without the incidence of any law from the Brazilian State.[11] It is the best of all worlds for drug traffickers and militia agents.

The judicial regulation is based on the absolutely incorrect assumption that the suffering of the civilian population living in places dominated by organized crime stems exclusively from the violence unleashed in the repression of crime by public security agents. The ADPF 635 did not refer to what criminals do against this same civilian population.

It is as if it was premised that the police would depart their units aiming to sacrifice the lives of the civilian population, on the pretext of crime repression. The misconception continues by placing regular police operations in the streets on the same level as operations in places territorially dominated by the organized crime, the latter being the stage of armed conflicts that differ little from infantry fighting in urban areas. A third misunderstanding is observed when the existence of conflicts among criminals, not only between criminals and the police, is ignored. From the description of the factual situation contained in the ADPF 635, the action of the routine shootings between criminals disputing drug selling venues, for example, would not result in any suffering upon the civilian population. The so-called “stray bullet’ never departs from criminals’ weapons, nor do they force the civilian population to give up their homes to set up base operations, for example. Not to mention other daily constraints that they do impose on the civilian population in the dominated areas, which we will refer to later.

Finally, the magnitude of the problem goes unnoticed. In every community dominated by the territorial gangs, there is practically a battalion of criminals armed with military infantry weapons.[12] Not surprisingly, the decisions in the ADPF 635 ignore this enormous difference in severity between the situations of armed confrontations in places dominated by organized crime and what happens in the routine policing in places where there is no such domination, since the injunction itself proposed in the STF does not make this distinction. In relation to places where there is no territorial domination by the organized crime, the scope of the injunction is welcome, although innocuous.

As, in fact, it causes little impact upon the daily life of people and the police itself.

Preliminary decisions in the ADPF 635 that may worsen the problem posed in the motion:

a. Restrictions of operations during the Covid-19 pandemic

The primary concern is the possible consequences of restricting police operations during the Covid-19 pandemic. The decision of 28 May 2021, handed down in a motion for clarification, recalled the need to comply with the Treaty on Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which only justifies the use of force by state agents in extreme cases when (i) after all other means have been exhausted, including non-lethal weapons, it is (ii) necessary to protect life or prevent serious harm, (iii) arising from concrete and imminent threat.

In fact, the STF's concern is fair at first, since it reinforces the need for the police activity to be subjected to the rules of the engagement that follow the principle of proportionality and the progressive use of force that must be observed, not only in the state of Rio de Janeiro, but throughout the country. Many measures adopted in the injunction granted in this case are indeed important since they aim to identify police agents in operation, providing greater control of the external police activity by the Public Prosecutor's Office, and prevent irregular home searches, for instance.

From a legal-constitutional point of view, we understand that the STF has invaded the exclusive competence of the Member-State in managing police activity exactly in areas that concentrate the most dangerous gangsters who control huge urban areas and subdue these populations under their command. Under no circumstances does the Constitution authorize the halting of police operations, even if there has been a prior analysis by the Public Prosecutor's Office, as it has been decided. Nor do the international treaties cited in the decision allow such a conclusion.

From phenomenology’s point of view, the STF disregarded the fact that, in places dominated by organized crime with territorial domination, there is a type of violence that cannot have the same treatment seen in everyday life, for which the rules cited by the Supreme Court's decisions in the ADPF 635 are of little or no efficiency if the goal is to preserve lives, given the way the confrontations happen.

Definitely, this is not a simple operation of repression against crime, for which these international treaties were designed. How will you capture and arrest (known in Brazil as “voz de prisão” or “voice of arrest”) an individual heavily armed with an automatic rifle? This is a typical situation of a non-international armed conflict—or at least of a gray zone—that goes far beyond the level of violence in armed confrontations with criminals, within the activity of criminal law enforcement. In this respect, the restriction of operations during the pandemic of the new coronavirus would be the equivalent of the STF ordering the federal government to stop military operations in an external armed conflict. The so-called Third Generation Gangs demand, on the contrary, constant criminal prosecution, considering their enormous power to destroy society, rendering entire sectors of the economy unviable, replacing the power of the State and to establish their own law in the dominated areas. The organized crime with territorial domination condemns the dominated population to misery and suffering under the command of neighborhood drug lords.

It is worth noting that, in practice, the injunction prevents police operations in crime-ridden areas, since the justification for carrying out the police operation, if not accepted, may imply that the police agents commit crimes of disobedience to a judicial order. The decision, in this aspect, brought up another, even more serious consequence, which is the possible formalization of the zone of exclusion from State sovereignty in places dominated by drug traffickers and militia members, with serious consequences for society. If the confrontations in these dominated locations, in our opinion, had the features of a non-international armed conflict, now with much more reason, since the decision of the STF, in pertinent terms, was equivalent to Colombia's decision to recognize the territorial domain of the FARC (Fuerzas Armadas Revolucionarias de Colombia –Revolutionary Armed Forces of Colombia) in its territory, when it established peace agreements with them.[13] At the very least, it reinforces the idea that the organized crime has created a zone of exclusion from national sovereignty, which is characteristic of insurgency.

b. The use of helicopters:

The prohibition to use helicopters, in fact, is justified as an impediment to their use as a shooting platform (vertical attack), which is only possible in armed conflicts, as defined by the norms of the International Law of Armed Conflicts, and even then, observing the numerous rules that limit the use of force in these situations. Besides this, the helicopter allows the individualization of targets of the police activity and, when correctly used, tends to diminish the collateral harm of confrontations between police and criminals on the civilian population it aims to protect. On top of that, the helicopter is also an important instrument to safeguard the lives of police agents in these confrontations.

Notwithstanding the fact that the helicopter cannot be used for vertical attack, it does not prevent it from being used as a defensive shooting platform.[14] Thus, the restriction on its use cannot be complete, because it is an important tool in police activity anywhere in the world, for any type of police operation, including the one referred to in the ADPF 635.

c. Breaking the secrecy of the operations:

This is another decision by the ADPF 635 that will negatively impact the repression of the organized crime. This is how Justice Fachin decided, in an injunction, on 30 June 2021:

In light of the foregoing, I grant, in part, the request made by the petitioners to (i) grant access to the communications of the Police operations, as well as to the reports produced at the end of the operations, except only in cases where there is intelligence information that does not concern compliance by the Rio de Janeiro government and the MPERJ with the precautionary decisions issued in the context of this ADPF; and (ii) as a precautionary measure, determine that the Federal Public Prosecutor's Office institute investigative proceedings before the Federal Court of Rio de Janeiro to investigate possible non-compliance with the decision delivered by the Federal Supreme Court (STF) in the context of this injunction for infringement of a fundamental precept (ADPF).

Certainly, the event on 6 May 2021, when the operation was carried out in the Jacarezinho Community, must also have motivated the ruling. In this decision, an investigation was opened to find out whether the Civil Police of Rio de Janeiro failed to comply with the Court's decision that had restricted operations during the Covid-19 pandemic.

Police operations in the controlled slums, as we have insisted, are not simple criminal law enforcement operations. They are typical operations of confrontation in armed conflict, as defined by International Humanitarian Law, or of Armed Conflicts.

In this case, the agents of organized crime, upon encountering the approach of the police, do not fire their powerful rifles to avoid arrest, but rather, do so deadly to avoid the loss of dominion over that particular territory. Breaking the secrecy of these operations means breaking the element of surprise, causing even more violence, as criminals will prepare themselves more thoroughly for the confrontation. The element of surprise facilitates the arrest of criminals, reducing the possibilities of confrontation and, consequently, the collateral harm on the civilian population, since the urban geography of these places, with narrow streets and high population concentration, is in itself a factor that increases the risk to the civilian population.

With this decision, the operations tend to be much more violent, because now the confrontation has a known, pre-set date. What happened in the Jacarezinho slum, resulting from an operation carried out on 6 May 2021, is a good example. The criminals had prior access to information that the arrest warrants would be issued and prepared for a confrontation with the police rather than fleeing. Clearly, this example sufficiently grounds this part of the decision to be revoked. The decision to make these operations public will not prevent the confrontations, on the contrary, they will be certain and of a much greater intensity.

The Attorney General’s Office of the State of Rio de Janeiro suitably filed an appeal against this decision and emphasized the following:

7. In other words, the disclosure of such data, in a generalized manner, would subtract the surprise effect from such operations, enabling criminals to anticipate such operations, and, through the analysis of operations already carried out, to understand the modus operandi of the Police, putting at risk the result of such actions and the lives of police agents and individuals in general.⁸ Note that if the aggravated decision compulsorily made public all data regarding police operations carried out in communities during the period of the COVID-19 pandemic, such as the one carried out in Jacarezinho, nothing prevents the request for the provision of data regarding the police officers who participated in such events, which implies placing such law enforcement agents at risk of summary execution.

The contemporaneity of that event in relation to the appealed decision calls our attention, once again. It is obvious that the breach of secrecy in this specific operation[15] did not yield any lethality reduction gains, on the contrary. The situation itself shows the misconception of the decision, and its devastating results shall be repeated in future situations.

In 2016, when we wrote a book on territorial gangs, we warned that even then, it had been observed that the repression of this type of crime had long ago acquired the character of a non-international armed conflict (NIAC).[16] Notwithstanding this, the International Committee of the Red Cross does not see it this way.[17] and neither does the Academy of International Humanitarian and Human Rights Law, in Geneva.[18]

Nowadays, the evidence that these confrontations have assumed characteristics of a non-international armed conflict has increased, mainly as the reinforcement of the possible recognition of the territoriality of the crime's action, in a formal aspect, through the judicial decisions in the present ADPF 635 mentioned earlier, which restricted operations in places dominated by criminals and determined the breaking of the secrecy of the operations. Restricting operations in certain locations, does not reach the effect of acknowledging the fulfillment of the requirements of International Law to characterize the situation as a non-international armed conflict. However, when we add other factors, such as the level of organization of the non-State actors, the protracted nature of the conflicts, the number of victims’ collateral to the operations, the types of weapons and the guerrilla tactics employed, this conclusion is inevitable.

Challenges posed regarding the regulation of the repression of Third-Generation Gangs with territorial domination.

Police operations are governed by the progressive use of force. The goal is the effective enforcement of Criminal Law so that it is carried out in compliance with national and international rules for the protection of Human Rights. These norms, if closely observed, are primarily aimed at the preservation of human rights directly in relation to the individual in conflict with the legal system. Only indirectly, or reflexively, do they protect the civilian population. When, in is a diligence to arrest a criminal, the police agents have to be more concerned about the world around them than about the individual who is the object of the arrest warrant, this is a good indication that it is possibly a situation of conflict, the intensity of which is not adequate to what is expected in a simple law enforcement operation.

Given this context, a question presents itself: does the situation in Rio de Janeiro, considering the police operations in communities throughout various locations in the city, correspond to routine police operations? No, not at all, and the decisions in the ADPF 635 say so, but in a subliminal way when they incorporate the rules regulating the use of force in armed conflicts, such as the non-use of civilian institutions like residences, schools, and hospitals for the base of operations, concerned with the rescue of the wounded, among others. In Rio de Janeiro, there are two types of coexisting police actions: one that occurs in the urban areas of the city that have not been dominated by the organized crime, for which the norms that regulate the progressive use of force are sufficient and for which the precautionary decisions in the ADPF 635 fit very well; and the other, one that occurs in a large part of the 1,000 slums throughout the metropolis, as well as in the West and North Zones of the city, where drug traffickers and militias dominate entire areas and apply the law of the organized crime. People are executed and their bodies are buried in clandestine cemeteries, deaths that will never be accounted for.[19] The ADPF 635 did not even address this issue, despite the serious violation of the fundamental precept of promoting human dignity.

The territorially organized crime applies a very strict alternative criminal law that is unknown to the Judiciary and to the Public Prosecution System.

That is so, even outside the context of shootings among criminals and between criminals and the police. Undoubtedly, the death of the boy João Pedro in the São Gonçalo neighborhood is a factor that shows the undesired collateral damage of these operations among the civilian population. Nevertheless, if the lawsuit had referred to the tragic death of the “bird boys,” cowardly murdered by drug lords, due to the simple suspicion of theft of a birdcage owned by a neighborhood drug lord, perhaps the precautionary decisions would not have had so much extent.[20] This alternative criminal law is little discussed, especially because in these places dominated by the organized crime the law of silence is enforced. Contrary to what the Brazilian Constitution states, for which the Capital Penalty will only exist in cases of declared war (Art. 5, XLVII, a)[21] in these territorial spaces dominated by organized crime, the Capital Penalty is, unfortunately, common indeed. The suffering of the civilian population is not limited to armed confrontations, but also to the state of subordination to criminals on a daily basis.

The regulation of police operations against the Third Generation gangs with territorial domination, based exclusively on the treaties that address the progressive use of force by the police, is more or less as if the US government ordered its soldiers to follow these treaties in the confrontations against the Islamic State. The decisions in the ADPF 635, which restricted police action in these places and ordered the breach of secrecy of operations, disregarded the extreme gravity of this type of criminality and increased exposure of the civilians, in such locations, to a larger threat to their lives, from criminals.

Before restricting police operations and ordering the breach of secrecy of such operations, the problem posed by the ADPF 635 should have been to analyzed in a more comprehensive way, since those measures may represent a death sentence for many people and further worsen the existing territorial conflict. On the other hand, when dealing with criminality with territorial domain, any decrease in the activity of criminal repression is immediately perceived as an “empowerment” of the organized crime, thus worsening the situation of the needy population that lives in these places.

In short, in the places referred to by the ADPF 635, where there is not the slightest theoretical possibility of having the police capture and arrest (“voice of prison”) heavily armed criminals who hold military infantry weapons and where these criminals are there to defend the dominated territory, the aforementioned decisions can even make life worse for those civilians in these places. Civilians who are forced to live under the law of crime, whose power of oppression over the civilian population has now increased. One thing is also certain: the decision to limit the access of the police in crime-dominated areas, to restrict helicopters, and to break the secrecy of operations increases the life threat for the police force and strengthens the organized crime that exercises territorial domination.

In this sense, the precautionary decisions ended up by deepening the asymmetry of the conflict and, consequently, the police tend to decrease its operations in those places, so the criminals can increase their profits and commit even more crimes. The more the criminal organizations profit, the more miserable the dominated place becomes and the more unviable it becomes to offer jobs and generate wealth.

Considering that the progressive use of force is not feasible within the confrontations addressed by the ADPF 635, even if it is understood that the problem is the enforcement of criminal law and not of non-international armed conflict, the asymmetry of the conflict can only be corrected through a law that broadens the definition of legitimate defense of the police agents against those who resist though the use of weapons of war, with guerrilla tactics, in the manner of insurgent groups. At the same time, this same law can be detailed according to the decisions handed down in ADPF 635, and thus more easily avoiding the collateral harm on the civilian population, gaining inspiration from the Law of War, in the limitations on the use of force in armed conflicts.

The nature of police operations in the dominated locations.

We think differently. The repression of the territorially organized crime in Rio de Janeiro, unequivocally, has the characteristics of an authentic non-international armed conflict. All the components of the concept are present, in our opinion: prolonged conflict involving organized non-state actors, with a well-defined command structure, the use of military tactics, infantry weapons, and loss of state sovereignty in the dominated areas. Confronting these criminals is not a typical police activity. Armed confrontations are no different from the territorial dispute, for which armies are trained in urban areas. It is simply unimaginable that the progressive use of force will be used against criminals armed with automatic rifles, who will use their powerful weapons not only to impede penal repression but above all to guarantee the entrenchment of organized crime domination in these locations.

Therefore, if the goal is to prevent inasmuch as possible the population from suffering the consequences of the confrontations, then the correct approach would be to resort to the rules that limit the use of force in armed conflicts. These well regulate, in detail, the use of force, as well as the proportionality, which exists not in relation to the armed aggressor, but primarily in favor of the innocent civilian population. Once these rules governing the means and methods of combat are observed, the chances of reducing the collateral damage on the civilian population improve. Moreover, many of the violations of these rules can constitute war crimes. But it is absolutely not easy to recognize the situation as being one non-international armed conflict. Nobody wants to take the risk of this decision, which is, indeed, politically uncomfortable. In other words, it is a matter of recognizing that there is, at least within the dominated locations, State’s failure to maintain its sovereignty.

Consequences of Inadequate Regulation of the Use of Force in the ADPF 635.

As it has been previously noted, the decisions established by the ADPF 635 follow the natural trend not to recognize the real nature of the conflicts in these places. This is beyond what is expected for armed confrontations arising from simple criminal law enforcement operations. Consequently, the regulation offered in the STF decision is insufficient for criminal law enforcement in these locations, abiding by international and national rules on the use of force by the police, with the potential to worsen the situation of the civilian population.

The regulation of operations against the organized crime, due to the mentioned precautionary decisions, disregards the high intensity of the conflict, above all because it is a prolonged conflict involving non-state actors with sufficient organization, combined with the fact that the territorial domain is permanent. The precautionary decisions have concluded that this is a gray zone conflict, where the intensity could vary above and below the minimum threshold for internal disturbances of Article 3 (Common) of the Geneva Conventions. As it has been said, there is no international rule in this respect that can be the source of inspiration for its regulation, but it is a reality that must be the object of discussion, internally. Undoubtedly, there are situations in which the conflict may exceed the minimum threshold of severity to be considered as reaching the concept of non-international armed conflict, but then return to what is expected from the use of force in police operations. This is not the hypothesis of the ADPF 635; of that we are positive, because the entrenchment of the organized crime has only deepened in the city of Rio de Janeiro.

But if the goal is to produce a specific regulation for the situations described in the ADPF 635, which seem to treat the problem as a gray area, the place to discuss it is not in the Judiciary, but in the National Congress.[22] It is perfectly possible to produce a set of legal rules that could limit the use of force in the so-called gray areas, if that is deemed to be the case in Rio de Janeiro and, at the same time, offer greater legal guarantees to the security forces.

Since it is a judicial decision, as such, originated from a branch of government that has not received a single electoral vote, it is natural that there is a mismatch with the complex reality requiring analysis of the use of the correct regulatory norm for the case, not to mention the sociological aspects. There is not even enough time for such a debate to take place in the records of a lawsuit. The solution will never be abstract enough, it will never be possible to analyze the problem in its overall scenario, as the judicial process itself already limits the analysis of the problem to what was put forward in the request of the proposed motion, even more so in the case of an ADPF, which aims to declare unconstitutional a certain state act that violates a fundamental precept.

In practice, the decision, therefore, resulted only in the restriction of the security forces in relation to the criminals, but, as it neglected the problem as a whole, notably the civilian population, it ended up empowering the organized crime, since police operations tend to decrease in places with territorial domination by criminals, as well as the fact that criminals can learn about them in advance.

As far as police activity is concerned, the first problem is that no public service can be interrupted. Public services are continuous.[23] The result of restricting police operations during the Covid-19 pandemic was disastrous. Firstly, not only the territorial domain of the organized crime was deepened, but, at the same time, the local civilian population in the dominated areas was submitted to the expansion of the alternative criminal law from the organized crime itself.  The Supreme Court disregarded, as mentioned, the clandestine cemeteries in the region, the extortion practiced by the organized crime on a daily basis over the population in these locations, who, with this oppression, will never be able to even dream of essential public services. Everything is in the hands of the organized crime. The failure to comply with its rules imposes severe penalties. These places are dominated by neighborhood narco-dictators. Have the numbers of deaths decreased? It is indeed true that fewer police agents and criminals are dying. But how many civilians are dying at the hands of the organized crime?

We insist that, concretely, the agents of the organized crime themselves have benefited more from the precautionary decisions of the STF (which, besides being debatable, do not have the support of other Justices, such as Alexandre de Moraes and Luiz Fux) than the civilian population, in the places they have taken over. They immediately expanded their businesses, since the police has serious restrictions to intrude upon them. Immediately after the granting of the injunction (5 June 2020) preventing police operations in the communities of Rio de Janeiro during the pandemic, except in absolutely exceptional cases, under which nobody wants to take responsibility, the advance of the organized crime in areas where there was no prior domination, such as the creation of the Complexo de Israel community,[24] was registered. The organized crime soon understood the scope of the decision as favorable to the expansion of its activities. People were murdered with the arrival of the criminals. Of course, there will never be an accounting of these deaths.

The organized crime quickly absorbs the opportunities that are made available. The restriction on police activity worsened a tendency for the organized crime to act in the dominated areas, an activity that until recently was typical of the militia: collecting taxes from community residents. It is no wonder that there has been an increase in extortion in the dominated communities over the public utility services already offered and other basic ones, such as the supply of cooking gas. It is the drug traffickers emulating the militia extortion methods over dominated areas.[25]

In fact, the extortion upon the dominated populations is becoming a more profitable business than drug trafficking itself; this extortion encompasses internet, cable TV, telephone, cooking gas and transportation services in the slums. The drug dealing business has suffered heavy defeats lately, with successive drug seizures,[26] arrests, weapons seizures, and so on. Apparently, another possible consequence of the above-mentioned restrictions derived from the precautionary decisions may have arisen. Criminals have started to act outside the limits of the dominated area. They are already imposing extortion on telecommunications and the internet companies.[27] Soon, these services and activities risk becoming unviable even for the non-dominated locations.

Establishing restrictions on the police activity does not solve the problem, but rather worsens the lives of the residents of these venues. In so deciding, the STF saw the problem only from the perspective of the police action, completely overlooking the harmful effects of crime not only upon the dominated populations but also outside the dominated areas and even in the country as a whole. After the decisions handed down in the ADPF 635, it was observed that the slums dominated by the organized crime became a safe place for criminals from other parts of the country. Criminals from all states of the country are moving to places dominated by drug traffickers in Rio de Janeiro, certain that now they have found a true safe haven, a zone of total alienation from State sovereignty.[28] In other words, it is clear that the measures taken in ADPF 635 have worsened the security situation in Rio de Janeiro, as well as threatened other states of the federation, not so much because of the measures that aim to conform to the treaties on the use of force by the police, but because of the restriction on police operations in these places had the undesirable effect of creating a true zone of exclusion from criminal law.

The expansion of territorial dominance of Third-Generation gangs can also be seen with the recent news that in 2020, between the months of February and October, large quantities of cocaine expected to be shipped from the city of Rio de Janeiro were seized. This would be happening due to the ease offered by organized crime to store drugs in the slums, where they exercise territorial dominance.[29]

The analysis of the issue that resulted in the precautionary decisions neglected other important points of the action of criminals upon the population of dominated places. In a true guerrilla counter-offensive, criminals use the private places of the civilian population to carry out their attacks. They force the population to hide weapons and ammunition in their homes, invade residences to take shelter and flee police actions, they use civilian dwellings as observation spots, coercing the residents to do so. They also make use of schools for this purpose, invade hospitals, coerce shopkeepers to hire criminals as if they were regular workers in case they fall in combat, force shopkeepers to open and close their businesses, practice extortion against local businessmen, and so forth.[30] They often expel people from their homes, use the civilian population as shields, and shoot this same civilian population at random when fleeing, blaming the policemen for the casualties.

That is, if we consider the situation under the concept of a non-international armed conflict, they would be committing war crimes, as established in article 8 of the Rome Statute. Notably, through the use of the civilian population as a shield, the use of minors in armed actions, the persecution of the civilian population, displacements, homicides, and so on. The partial analysis of the problem, focusing only on police activity, necessarily leads to the strengthening of crime also through this angle, as it takes away the severity, even at the international level, of the crimes committed by them. This is yet another consequence, obviously not desired, but which is inevitable.

We must repeat, once again, that the adequate venue for the discussion regarding these issues must be the Brazilian National Congress. It is the right venue to create a set of laws that shall broaden the concept of terrorism, as well as punish the use of civilians as shields. Laws that will punish the law of traffickers, imposed on the civilian population, and that will provide greater legal guarantees concerning the police actions. We need less judicial activism and more legislative production that addresses the problem in its entirety, and not only from the point of view of police activity control, as if stray bullets only came out of the policemen's guns.

There is no doubt about the importance of the measures, except for the breach of secrecy of the operations, the restrictions on carrying them out during the pandemic times, and the use of helicopters. However, the correct approach to the problem imposes a much deeper analysis in order to diminish the suffering of the population in the places dominated by the drug traffickers. Also, the combat methods used by such drug lords are considered war crimes, a topic which is impossible to analyze within a judicial process. Needless to say, one must also think about the safety of the police staff; for example, helicopters guarantee the efficiency of the operation and allow the police force to avoid being victim of unexpected attacks. Only a comprehensive discussion, encompassing those who have the responsibility deriving from the electors’ votes will be able to turn these decisions into laws that will serve the present and the future, in short, which will help, in a definitive manner, to solve the problem. Indeed, there is a legislative omission in providing the legal system with adequate norms for this type of confrontation.[31] This does not justify but rather unveils the misconceptions mentioned in this article.

Finally, the Brazilian jurisprudence, regarding this and other issues, should meditate on the excessive individualism in the interpretation of Criminal Law and Criminal Procedure. The interpretation of Human Rights cannot disregard the collective interest in punishment. It is necessary to interpret Human Rights from the collective interest to the individual interest and not the other way around.

Conclusion.

The concern, shown in ADPF 635, towards minimizing the unfortunate loss of human lives as a result of the confrontations in the countless slums of Rio de Janeiro is dully noted. Nonetheless, it is our understanding that the pursuit of norms to regulate police actions is not a decision that should come from the Judiciary. The problem has a much broader scope than that which had been presented in the lawsuit, which restricts death as a result of police activity, completely overlooking the actions of organized crime in the dominated areas. Many components of this conflict must be analyzed, and the correct regulation can only come from a comprehensive and profound debate that addresses the nature of this conflict. This is a task that must result in a set of laws, and the suitable venue for the debate is the National Congress.

Brazil’s Supremo Tribunal Federal (Supreme Court), Brasilia

Source: Leandro Neumann Ciuffo (CC-BY-2.0)

POSTSCRIPT: NOTES ON THE DECISION PROVIDED IN THE PROVISIONAL REMEDY IN THE INJUCTION FOR INFRINGMENT OF A FUNDAMENTAL PRECEPT # 635 RIO DE JANEIRO

After the publication of this article in the Revista do Ministério Público Militar, n. 35/2021 (https://revista.mpm.mp.br/), on 3 February 2022, the Brazilian Supreme Court (STF) reached a decision on the Motion for Clarification (Recurso de Embargos de Declaração) within the provisional remedy granted in the ADPF 635, regarding the limitations imposed on police operations during the Covid-19 Pandemic.

Most of the requests contained in the action were accepted, according to the vote of the Reporting Justice, Edson Fachin. The rapporteur's understanding did not prevail on the following points related to the object of this article: denial of the request for breach of confidentiality of the protocols of police action in the State of Rio de Janeiro; possibility of home searches without previous court order, to be carried out only during the day, and possibility of carrying out search diligences based solely on anonymous reports.

The divergence was initiated by Justice Alexandre de Moraes, who was accompanied in part by Justices André Mendonça and Nunes Marques. In short, these Supreme Court judges were concerned about the excessive limitation on the performance of the security forces, compromising not only public security in these places, but the provision of other public services, such as health and education. The barricades that already existed[32] were certainly expanded after the decision granting the provisional remedy which imposed limitations on police actions during the pandemic in dominated places. That provisional remedy was the object of analysis of the Motion for Clarification (appeal requesting clarification of the decision). The divergence of those three Justices was fundamental to avoid the total impossibility of public security in places dominated by the narco-guerrillas.

As highlighted by Justice Alexandre de Moraes, who was former Secretary of Public Security for the State of São Paulo, it is absolutely unusual for the police to make confidential information about their operations public. What does society have to gain from this unusual measure? It certainly favors organized crime. It should be noted that it was precisely the prior knowledge of the police action that was the determining factor for the police officers to be received at gunpoint in the Jacarezinho community in Rio de Janeiro, during the course of the ADPF 635 process, resulting in the death of 28 criminals and one police officer. What can we say about not accepting anonymous reports for carrying out searches, the only instrument that citizens in these dominated places can use to get rid of the law of crime, otherwise, if identified, it is obvious that they will be murdered. It did not go unnoticed by these Justices that the need for security comes from the communities themselves in the dominated places, as emphasized by Justice André Mendonça. Nobody wants to live under criminal law. In turn, Justice Nunes Marques recalled what was forgotten about the action in progress on the violence of narco-guerrillas, in an episode when the police found a clandestine cemetery in the Salgueiro Community.[33] He continued, reflecting on the sufferings the organized crime would be imposing on the civilian population in the dominated places, given the limitation of police action. He also pointed out a contradiction, questioning if, in the face of the numerous measures that limit the action of the police within the ADPF 635, there was even a real reduction in the number of crimes or just the number of weapons seized, bringing statistics in this regard. He concluded, correctly, by saying that the solution to the problem of public security cannot be just to hinder police action or increase surveillance over the police.

The decision rendered in this Motion for Clarification has put a lot of evidence on the need of police operations following The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by UN Resolution 45/166, even in the places dominated by organized crime. At this point, the STF ruled that the use of lethal force is only possible after exhausting other means, including non-lethal weapons. The decision emphasizes our understanding that this UN Protocol is fully adequate for policing in other places in Rio de Janeiro, where there is no territorial gang in action. However, in places dominated by territorial gangs of drug traffickers and militiamen, the policemen, as emphasized in the vote of the above-mentioned ministers, cannot use an electrical discharge Taser pistol against a heavily armed criminal with an automatic rifle, who does not shoot by reaction and, yes, does take the initiative of combat, as soon as it detects the presence of the police in the location, aiming to defend the dominated territory. This is how it is in any armed conflict. If a policeman follows the steps dictated by these principles that govern the progressive use of force, that is, if he tries to dissuade the narco-guerrilla first with non-lethal instruments or even attempt to, firstly, arrest him in flagrant delicto, he will obviously die. In fact, there is no time for any of that because the police are met with bullets as soon as they approach the dominated place. The analysis of the progressive use of force, as pointed out again in the divergent votes, cannot rule out the initial use of large-caliber weapons. As highlighted by Justice Nunes Marques: The excessive use of force is not directly related to the use of tools at the disposal of the police, but to the agent's conduct. All the national and international norms to which I had access, when they try to avoid the excessive use of force, refer to the conduct, and not to the tools available to the agents.

As we insist in this article, the Protocol on the progressive use of force by the police, cited in the decision as the basis for reducing the lethality of police actions, is insufficient for the objectives intended in the ADPF 635, not least because it is not compatible with the situation of conflict in these places dominated by territorial gangs. The concern with lethality as placed in the present case, in practice, ends up being favorable to criminals. In fact, when talking about the lethality of police actions, it seems that the concern is because more criminals than police die in confrontations. The decision did not deepen the asymmetry of the conflict in relation to the police forces, due to the divergence of the aforementioned Justices. Furthermore, what was decided results in very little protection to the communities in these places. It should be noted that the only object of direct concern in the decision was the ban on the use of schools and hospitals as a base of operations, a situation that is not known to have happened due to the initiative of the police, and to make ambulances available. However, it is an undisputed fact that criminals use civilian residences and facilities as a base of support, and the civilian population itself as a shield,[34] in addition to the recruitment of minors,[35] forced displacement of residents,[36] homicides, facts reported by TV stations, all of which, in situations of armed conflict, constitute international crimes, provided for in the Rome Statute, to which Brazil has adhered. The decision makes no reference to these crimes, which should be the subject of a Project of law to be sent to the National Congress, in order to create the corresponding crimes in the internal law of Brazil. And the lack of concern with these issues is even understandable, since the judicial decision must be reached considering solely the limits of the injunction’s request. This reveals that this topic demands a broad and in-depth debate, which can only happen within the National Congress, whose conclusions make the foundation of laws to address the problem.

Also, the mere indirect concern with the communities in these places is equally understandable since the protocol on the use of weapons and the progressive use of force, as said, leaves out the civilian population. It primarily aims to protect those who are the object of the police action. Treating the situation described in the lawsuit as just police intervention does not protect the civilian population, but it also exposes the police to even more risks. We emphasize that this type of problem can only be resolved in a very broad discussion, through law, never within the limits of a process before a power that has not received a single vote from the citizens. Criminals attacking with police rifles end up being placed on the same plane as civilians who are forced to live under the law of crime in these places.[37]

To get an idea about the detachment of the decision in relation to the civilian population, considering that the objective should always be to expand their protection, it was determined that the state of Rio de Janeiro hold a public hearing, in order to collect suggestions from civil society. What citizen, who is certainly terrified of living within the reach of narco-guerrillas, is going to appear before such a hearing and present suggestions that point to the arrest of these criminals as a solution? Evidently, he/she will be murdered and buried in a clandestine cemetery. Cemeteries which, by the way, have not been mentioned at all in the decision.

By ignoring that, in essence, what we have is a non-international armed conflict or a gray zone conflict, the decision places criminals on the same level of protection of the civilian population, since the decision speaks generally of lethality. This distinction is clear in the Law of War, but not in the International Human Rights Law, from which the aforementioned UN protocol originated. Although aimed at the person object of the police investigation, it does not ignore the civilian population, but does little to protect them, because its rules assume that the civilian population does not need direct protection from police operations. Those who may be the direct victims of possible police abuse, that the cited norm aims to avoid, are those against whom the police acts. In fact, it is impossible to protect the civilian population with rules regarding the use of force by the police in any situation, even worse in a conflict of extreme gravity like this one. The measures taken in this process and object of the divergence—breach of secrecy of operations, ban on anonymous reporting and limitation of police action in dominated areas—unequivocally favor criminals, to the detriment of civil society and security forces. As for the latter, it clearly means a deepening of the asymmetry in relation between criminals and police. Undoubtedly, measures that allow the identification of police officers in operations and others typical of the Law of War, such as preventing bases of operations in certain places such as hospitals and schools, are apparently important, but dangerously mix two systems, intended for totally different situations, with the prevalence of International Human Rights Law, clearly insufficient to function as a governing norm for state actors in a scenario that goes beyond the violence that is commonly seen in a conflict arising exclusively from the activity of criminal law enforcement.

In short, it is impossible, or with minimal probability, to reduce the lethality of police operations in these dominated places by following rules on the progressive use of force. As we said, criminals do not shoot at the police to avoid arrest, but they do so to maintain the territory. They only come out either dead or if they manage to escape, in this case because they were unable to contain the advance of the police. In any type of operation in these places it is impossible not to have gunfire in a densely populated area. After the cited decision, there were two police operations that confirmed what is being said here. The first on 20 March 2022, by the Brazilian Federal Highway Police and BOPE/RJ (Batalhão de Operações Policiais Especiais – Special Operations Battalion of Rio de Janeiro) in Complexo do Chapadão community,[38] with 6 dead criminals and the seizure of 6 pistols, and the other in Vila Cruzeiro community, on 25 May 2022,[39] with 23 dead, seizure of 13 rifles, 4 pistols and 12 grenades. In this operation, only one of the deceased, a woman, was suspected of not being part of the criminal organization.

The most effective legal solution to reduce the lethality in police actions, in places dominated by criminals, should not be sought in a judicial decision, but through a passed law by the National Congress, which establishes for this type of conflict rules on means and methods of combat similar to the Law of War for conflicts such as those mentioned in ADPF 635. It is urgent to criminalize the action of non-state actors who make the population a shield for their criminal activities, recruit minors, cause forced displacement of the civilian population, among other crimes. As said, considering this situation as a non-international armed conflict, they would be committing a war crime. Even if the conflict is not characterized in this way, nothing prevents the creation of internal laws criminalizing such behaviors, as well as expanding the legal guarantees of police action, since the discourse of lethality is visibly based on the fact that more criminals than cops die in those operations, as if the cops’ lives were worthless.

Finally, I repeat the following question posed by Justice Nunes Marques: So, with due respect, I formulate the following question: how many deaths could be produced in the future due to the strengthening of criminal organizations? This is a number that cannot be calculated or even estimated accurately.

Endnotes

n.b. This paper originally appeared in Portuguese as “ADPF 635. Entrelaçamento do Direito Internacional dos Direitos Humanos e do Direito Internacional Humanitário na repressão às gangues de 3ª geração com domínio territorial no Rio de Janeiro” in the Revista do Ministério Público Militar (Brazil). Edição n. 35, 2021, https://revista.mpm.mp.br/artigo/adpf-635-entrelacamento-do-direito-internacional-dos-direitos-humanos-e-do-direito-internacional-humanitario-na-repressao-as-gangues-de-3a-geracao-com-dominio-territorial-no-rio-de-janeiro/. The postscript is new content added to update the original paper.

[1] ADPF (Arguição de Descumprimento de Preceito Fundamental), roughly translated as Injunction for Infringement of a Fundamental Precept, is a concentrated constitucional review action brought by the Brazilian Federal Constitution of 1988. It is an action that aims to counter any acts that disrespect the so-called fundamental precepts/principles of our Constitution.

[2] See John P. Sullivan and Robert J. Bunker, “Third Generation Gang Studies.” Journal of Gang Research. Vol. 14, no. 4, 2007, https://scholarship.claremont.edu/cgi/viewcontent.cgi?artice=1137&context=cgu_fac_pub.

[3] See John P. Sullivan, “From Drug Wars to Criminal Insurgency: Mexican Cartels, Criminal Enclaves and Criminal Insurgency in Mexico and Central America. Implications for Global Security.” Working Paper N^o9. Paris: Fondation Maison des sciences de l’homme, April 2012, https://halshs.archives-ouvertes.fr/halshs-00694083/document.

[4] Author’s note: We personally defend that whatever is prohibited in an armed conflict cannot be employed by the police in criminal law enforcement operations. However, when it comes to the gray zone, when the conflict oscillates above and below the minimum threshold for considering the conflict as reaching the concept of a non-international armed conflict, the inevitable use of lethal force must be regulated by the law.

[5] This is a detailed study on these norms regarding daily police activity prepared by a Brazilian non-governmental organization called Instituto Sou da Paz for the São Paulo and Pernambuco Military Police, notably regarding the use of non-lethal instruments and the aggressive use of force, https://www.novo.justica.gov.br/sua-seguranca-2/seguranca-publica/analise-e-pesquisa/download/estudos/pspvolume2/4-regulacoes-sobre-o-uso-da-forca-pelas-policias-militares-do-estados-de-sp-e-pe-2.pdf.

[6] Quote, as an example, the Decree that regulates the use of force by the National Police of Peru, https://busquedas.elperuano.pe/normaslegales/aprueban-reglamento-del-decreto-legislativo-n-1186-decreto-decreto-supremo-n-012-2016-in-1409580-3/. One more example can be seen in Colombia: https://www.policia.gov.co/sites/default/files/resolucion-02903-uso-fuerza-empleo-armas.pdf. In Mexico: https://www.gob.mx/cms/uploads/attachment/file/278820/Manual_para_el_uso_de_la_fuerza_2017.pdf. To better understand the subject, see the comparison table on the regulation of the use of force by the Police in Peru, Colombia and Mexico made by the International Committee of the Red Cross: “Documento del Comité Internacional de la Cruz Roja sobre consideraciones mínimas y ejemplos de normativa comparada en el proceso de adopción de una Ley Nacional sobre Uso de la Fuerza.” International Committee of the Red Cross.” Working Paper. April 2019, https://bit.ly/3zft0f9.

[7] Protocol II to the Geneva Conventions excludes mere internal disturbances from the concept of non-international armed conflict. TITLE I:  The scope of the present protocol. Article 1st. Scope of the material application:

1-The present Protocol, which expands and supplements Article 3, common to the Conventions of 12^thAugust 1949, without modifying its present conditions of application, applies to all armed conflicts not covered by article 1 of the Protocol Additional to the Geneva Conventions of 12^th August 1949, related to the Protection of Victims of International Armed Conflicts (Protocol 1), and that are taking place on the territory of a Member State. This Protocol shall apply to all armed conflicts not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12^th August 1949, related to the Protection of Victims of International Armed Conflicts (Protocol 1) that are engaged on the territory of a High Contracting Party, between its armed forces and dissident armed forces or organized armed groups which, under the leadership of responsible command, exercise over part of its territory total control enabling them to carry out continuous and organized military operations if the present Protocol is applied.

2-The present Protocol shall not apply to situations of internal tension and disturbances such as riots, isolated and sporadic acts of violence, and other similar acts, which are not considered to be armed conflicts.

Author’s note: being brief, since it is impossible to go into detail within the limits of this paper, to determine whether this minimum threshold of internal disturbances has been exceeded, international jurisprudence analyzes the criteria of conflict intensity and organization of non-state actors. To this end, the duration of the conflict, the weapons employed, the number of casualties, the extent of the destruction, the number and type of troops employed in the conflict, and territorial dominance, among other criteria are observed. See “Noninternational Armed conflict (NIAC),” The Practical Guide to Humanitarian Law. Medecins Sans Frontires. No date, https://guide-humanitarian-law.org/content/article/3/non-international-armed-conflict-niac/.

[8] Carlos Frederico de Oliveira Pereira, “ARTIGOS TEMÁTICOS – 70 ANOS DAS CONVENÇÕES DE GENEBRA: Zonas cinzentas e repressão penal: entre o direito internacional dos direitos humanos e o direito internacional dos conflitos armados.” Revista do Ministério Público Militar (Brazil). Edição n. 31,  2019, https://revista.mpm.mp.br/artigo/zonas-cinzentas-e-repressao-penal-entre-o-direito-internacional-dos-direitos-humanos-e-o-direito-internacional-dos-conflitos-armados/.  A gray zone conflict, in the approach that interests us, foremost has NIAC features, for which two ingredients are necessary in the light of the Tadic Standard: a long-term, therefore, intense conflict and a certain level of organization of non-state actors. However, the intensity of the conflict constantly oscillates beyond internal disturbances and that which separates below this threshold. Thus, it may well be another case, albeit a serious one, of criminal repression. We include in the gray area serious cases of criminal insurgency, where territorial domination is lacking, but where criminal repression must unequivocally occur with the use of military combat methods, far beyond what is normally expected of confrontations in the activity of crime suppression, so that the legal treatment of domestic law is not appropriate to this case (p.9).

[9] “Assalto em Araçatuba: novas imagens mostram abordagem a reféns usados como escudos humanos.” G1 (Globo). 6 September 2021, https://g1.globo.com/sp/sao-jose-do-rio-preto-aracatuba/noticia/2021/09/06/assalto-em-aracatuba-novas-imagens-mostram-abordagem-a-refens-usados-como-escudos-humanos.ghtml.

[10] See, for example, my work: Carlos Frederico de Oliveira Pereira, Gangues Territoriais e Direito Internacional dos Conflitos Armados. Curitiba: Juruá Editora, 2016, pp. 168, 204.

[11] The decisions handed down in the ADPF 635 also affect the militia, which are also territorially organized criminals and act as “private security” in neighborhoods, an absolutely illicit activity. The revenue from their criminal activities comes from the extortion of the population under their control, a method of obtaining income that drug dealers have also begun to use. When operations are carried out in which many members of the militia die, curiously, the Brazilian press does not seem to be interested in reporting how the police acts in these situations. However, in essence, there is no difference between such confrontations and those between police and drug traffickers. Both confrontations are equally violent. During the course of the ADPF 635, on 16 October 2020, there was an operation in which 12 members of a militia died. See for example results from Google search, “operação contra a milicia vários mortos:” https://bit.ly/3PFcn1x.

[12] There are an estimated number of 3,500 rifles in the hands of criminals in the city of Rio de Janeiro alone. There are countless seizures of weapons of war recovered from the hands of the organized crime. “Rio é a cidade com mais fuzis no Brasil.” G1 (Globo), 23 September 2019, https://g1.globo.com/rj/rio-de-janeiro/noticia/2019/09/23/rio-e-a-cidade-com-mais-fuzis-no-brasil.ghtml.

[13] “Política Nacional de Defensa/Estratégia Nacional de Defensa [National Defense Policy / National Defense Strategy]. Ministério da Defensa [Defense Ministry], Brasília: Brazil). 2012, https://www.gov.br/defesa/pt-br/arquivos/estado_e_defesa/END-PNDa_Optimized.pdf.

[14] When the Military Prosecutor's Office intervened in the Public Safety Secretariat of Rio de Janeiro in 2008, it recommended that the Armed Forces followed the limits on the use of force set out in international law on armed conflicts. The use of helicopters was not prevented, but it was only observed that they could not be used for vertical attacks. The shots could only be fired to defend the occupants of the aircraft and the lives of third parties on the ground.

RECOMMENDATION N° 002, June 25^th, 2018.

The Military Public Prosecutor's Office, based on arts. 60, XX, of Complementary Law no. 75, of May 20th, 1993, and art. 88, of Law no. 7.210/84, by its undersigned members, and considering that means and methods prohibited in armed conflicts should not be used in actions of repression against crime, RECOMMENDS that the Honorable the Commander of the Eastern Military Command and Federal Intervenor in the State of Rio de Janeiro, that in the hypotheses in which Police operations count on the participation of the Armed Forces, even if in simple logistical support, the following be observed:1.The Police force in action should be made aware of the distinction between the lethal use of force and the progressive use of force. That is to say, death resulting from confrontations in crime repression operations exclusively derives from the rules that make up legitimate self-defense or defense of others. 2. The Security Forces should be taught about the content of articles 51 and 57 of Additional Protocol 1 of 1977, avoiding indiscriminate attacks and minimizing collateral effects, so that attacks are never directed at those who are not the object of Police action. If there is physical proximity between criminals and people not directly involved in the hostilities the attack should be suspended. 3. The objective of the Police operation is to arrest criminals and seize weapons or objects of crime. 4. The air operations carried out by the Police are exclusively aimed at gathering information that will be passed on to the actions on the ground to apprehend criminals, and, in accordance with the aforementioned device, collateral effects on the population should be avoided as much as possible. In this context: a. Air operations, being Police operations, cannot take the initiative to carry out vertical attacks, except in the hypothesis in which the aircraft is being attacked or in the hypotheses of legitimate defense of third parties and in what is strictly necessary for the execution of this defense, without continuing the confrontation by air. 4.b. Automatic shooting should be avoided as much as possible. 5. Operations must be preceded by prior intelligence gathering on the locations within the community areas where the confrontations will take place. The respective reports will be filed. 6. The population should be informed about the possibility of absorbing the side effects in case of confrontation in the places used by the criminals. 

[15] Vanessa Costa, “Ministério Público do Rio esclarece suposto vazamento de informações de operação no Jacarezinho.” Diário do Rio. 10 May 2021, https://diariodorio.com/ministerio-publico-do-rio-esclarece-suposto-vazamento-de-informacoes-de-operacao-no-jacarezinho.

[16] One year after the publication of the book Gangues Territoriais e Direito Internacional dos Conflitos Armados [Territorial Gangs and International Law of Armed Conflicts] the Academy of International Humanitarian and Human Rights Law, in 2017, considered the violence arising from the actions of the organized crime in Mexico and Colombia to have reached by the concept of non-international armed conflict, i.e., by falling beyond the minimum threshold of internal disturbances of Article 3 common to the Geneva Conventions. See Ana Balcazar Moreno, Ximena Mercedes Galvez Lima, Julie Lambin, and Lina Rodriguez, “THE WAR REPORT 2017: Gang Violence in Colombia, Mexico and El Salvador.” Geneva: Geneva Academy of International Humanitarian Law and Human Rights, https://www.geneva-academy.ch/joomlatools-files/docman-files/Gang%20violence%20in%20Colombia,%20Mexico%20and%20El%20Salvador.pdf; and Annysa Bellal, THE WAR REPORT: Armed Conflicts in 2017. Geneva: Geneva Academy of International Humanitarian Law and Human Rights, https://www.geneva-academy.ch/joomlatools-files/docman-files/The%20War%20Report%20Armed%20Conflicts%20in%202017.pdf.

[17] “Brazil: armed violence in the cities and the Safer Access methodology.” International Committee of the Red Cross. 14 August 2019, https://www.icrc.org/en/document/brazil-armed-violence-cities-and-safer-access-methodology.

[18] Op. Cit., The War Report at Note 16.

[19] Shortly before the ADPF in question was proposed, the police found clandestine cemeteries, although the existence of these clandestine cemeteries is a well-known fact and it has been reported for a long time, where many of those buried are victims of organized crime. See Tácio Lorran, “Polícia acha cemitério clandestino usado por traficantes no Rio.” Metrópoles. 19 August 2020, https://www.metropoles.com/brasil/policia-br/policia-acha-cemiterio-clandestino-usado-por-traficantes-no-rio; Hugo Marques, “O cemitério clandestino onde o ‘Escritório do Crime’ enterrava as vítimas.” Veja. 7 August 2012, https://veja.abril.com.br/brasil/o-cemiterio-clandestino-onde-o-escritorio-do-crime-enterrava-as-vitimas/#_blank; Douglas Corréa, “Polícia encontra cemitério clandestino em Queimados, no Rio.” Agência Brasil. 22 August 2019. Brasil Sem Medo, https://agenciabrasil.ebc.com.br/geral/noticia/2019-08/policia-encontra-cemiterio-clandestino-em-queimados-no-rio; “Polícia investiga ossadas encontradas em cemitério clandestine.” BAND.  No date, http://www.bandnewsfmrio.com.br/editorias-detalhes/policia-investiga-ossadas-encontradas-em-cemi; “Polícia encontra duas ossadas em cemitério clandestino no Andaraí.” G1 (Globo). 7 July 2010, https://g1.globo.com/rio-de-janeiro/noticia/2010/07/policia-encontra-duas-ossadas-em-cemiterio-clandestino-no-andarai.html; the militias, another form of territorial gang, also has their clandestine cemeteries: Sérgio Ramalho, “Com cemitérios clandestinos, milícia mascara violência em regiões do RJ.” UOL. 5 August 2019, https://noticias.uol.com.br/cotidiano/ultimas-noticias/2019/08/05/milicia-rio-de-janeiro-cemiterios-clandestinos-homicidios.htm#_blank; “Levantamento aponta 21 cemitérios clandestinos usados pelo crime organizado na Baixada Fluminense.” Noticias R7. 24 August 2021, https://noticias.r7.com/jr-na-tv/videos/levantamento-aponta-21-cemiterios-clandestinos-usados-pelo-crime-organizado-na-baixada-fluminense-06062022.

[20] Paulo Briguet, “A trágica morte dos meninos-passarinhos.” Brasil Sem Medo. 1 October 2021, https://noticias.r7.com/jr-na-tv/videos/levantamento-aponta-21-cemiterios-clandestinos-usados-pelo-crime-organizado-na-baixada-fluminense-06062022.

[21] Art. 5, XLVII - there will be no sentences: a) of capital punishment, except in case of declared war in compliance with art. 84, XIX.

[22] According to the Brazilian Constitution, it is the Federal Government's exclusive competence to legislate on Criminal Law, Police powers, and the organization and performance of the agencies responsible for public security (article 22, I and XXII, and article144, §7).

[23] Art. 22. The public sector, by itself or through government-owned organizations or government services concessionaires or under any other form of enterprise, must provide adequate, efficient and safe services; and, if the service is deemed essential, is must also be provided in a continuous manner.

[24] Leslie Leitão, Erick Rianelli, Filipe Fernandes, and  Guilherme Santos,” G1 (Globo). 24 July 2020, https://g1.globo.com/rj/rio-de-janeiro/noticia/2020/07/24/traficantes-usam-pandemia-para-criar-novo-complexo-de-favelas-no-rio-deixam-rastro-de-desaparecidos-e-tentam-impor-religiao.ghtml.

[25] “Metade do faturamento dos traficantes da Rocinha não sai mais da venda de Drogas.” O Rebate. 30 August 2021, https://orebate.com.br/cidades/metade-do-faturamento-dos-traficantes-da-rocinha-nao-sai-mais-da-venda-de-drogas#_blank .

[26] “Polícia Federal faz maior apreensão de cocaína da história do Rio de Janeiro.” Joven Pan. 6 October 2021, https://jovempan.com.br/noticias/brasil/policia-federal-faz-maior-apreensao-de-cocaina-da-historia-do-rio-de-janeiro.html.

[27] Simone Kafruni, “Operadoras de telefonia revelam crimes de extorsão ao secretário da Justiça.” Correio Braziliense. 20 July 2020,  https://www.correiobraziliense.com.br/app/noticia/economia/2020/07/20/internas_economia,873780/operadoras-de-telefonia-revelam-crimes-de-extorsao-ao-secretario-da-ju.shtml; John P. Sullivan, José de Arimatéia da Cruz, and Robert J. Bunker, “Third Generation Gangs Strategic Note No. 37: Rio de Janeiro Gang and Militia Extortion and Control of Telecommunications Towers.” Small Wars Journal. 28 May 2021, https://smallwarsjournal.com/jrnl/art/third-generation-gangs-strategic-note-no-37-rio-de-janeiro-gang-and-militia-extortion-and#_blank; and Marcos Nunes, “Tráfico e milícia ‘sequestram’ antenas de telefonia; torres de celular instaladas em 105 comunidades têm o acesso impedido.” Extra (Globo). 3 October 2021, https://extra.globo.com/casos-de-policia/trafico-milicia-sequestram-antenas-de-telefonia-torres-de-celular-instaladas-em-105-comunidades-tem-acesso-impedido-rv1-1-25222572.html.

[28] Bruna Fantti, “Líderes do tráfico de oito estados migram para o Rio, diz polícia.” O Dia. 17 June 2021, https://odia.ig.com.br/rio-de-janeiro/2021/06/6169420-lideres-do-trafico-de-oito-estados-migram-para-o-rio-diz-policia.html.

[29] Marcos Nunes, “Favelas do Rio são usadas por traficantes internacionais para armazenagem de drogas.” Extra (Globo). 10 October 2021, https://extra.globo.com/casos-de-policia/favelas-do-rio-sao-usadas-por-traficantes-internacionais-para-armazenagem-de-drogas-rv1-1-25231463.html.

[30] The following is a link to a relevant news report on the alternative criminal law of criminals: Ruhani Maia and Victor Muniz, “‘Tribunal do tráfico’ ordena expulsões e mortes.” AGazeta (Gazeta Online).2016, https://especiais.gazetaonline.com.br/trafico/;https:/veja.abril.com.br/blog/cacador-de-mitos/os-traficantes-e-o-imperio-da-lei-nas-favelas/.

[31] The author himself, since 2019, has proposed 4 bills regarding these themes; they are still under the analysis of the Brazilian Ministry of Justice.

[32] See “Ambulâncias não chegam em favelas do Rio, e famílias carregam doentes e mortos.” O Tempo. 8 May 2020,  https://www.otempo.com.br/brasil/ambulancias-nao-chegam-em-favelas-do-rio-e-familias-carregam-doentes-e-mortos-1.2335042.

[33] See “RJ: Polícia encontra cemitério clandestino no Complexo do Salgueiro, em São Gonçalo.” Balanço Geral. 19 August 2020, https://recordtv.r7.com/balanco-geral-rj/videos/rj-policia-encontra-cemiterio-clandestino-no-complexo-do-salgueiro-em-sao-goncalo-19082020. This is not the only one, also see, for example: “Polícia acha cemitério clandestino em operação na Vila Aliança que deixou quatro mortos.” G1 (Globo). 9 February 2021, https://g1.globo.com/rj/rio-de-janeiro/noticia/2021/02/09/policia-encontra-cemiterio-clandestino-em-operacao-na-vila-alianca.ghtml .

[34] See Roberto Motta, “Escudo Humano.” Instituto Millenium. 20 August 2019, https://www.institutomillenium.org.br/escudo-humano/; and Tudo Consta, “Jacarezinho: traficantes usam população como escudo humano.” YouTube. 7 May 2021, https://www.youtube.com/watch?v=HzyXlZCqsp4.

[35] See Hudson Corréa, “Traficantes cariocas recutam e armam criancas cada vez mais novas para o crime.” Ēpoca (Globo). 16 January 2021, https://epoca.oglobo.globo.com/brasil/noticia/2017/01/traficantes-cariocas-recrutam-e-armam-criancas-cada-vez-mais-novas-para-o-crime.html

.[36] See Erick Rianelli and Leslie Leitão, “Moradores de comunidade na Zona Norte do Rio são expulsos de suas casas por traficantes.” G1 (Globo). 12 August 2020, https://g1.globo.com/rj/rio-de-janeiro/noticia/2020/08/12/moradores-de-comunidade-na-zona-norte-do-rio-sao-expulsos-de-suas-casas-por-traficantes.ghtml.

[37] Op cit., Ruhani Maia and Victor Muniz at Note 30.

[38] See “Ação policial no Complexo do Chapadão deixa seis suspeitos mortos e prende outros quatro.” G1 (Globo). 20 March 2022,  https://g1.globo.com/rj/rio-de-janeiro/noticia/2022/03/20/operacao-complexo-do-chapadao.ghtml.

[39] See “Vila Cruzeiro: 12 policiais apresentam fuzis e relatam participação em 10 das 23 mortes.” G1 (Globo). 25 May 2022, https://g1.globo.com/rj/rio-de-janeiro/noticia/2022/05/27/vila-cruzeiro-12-policiais-apresentam-fuzis-e-relatam-participacao-em-10-das-23-mortes.ghtml.