Introduction
Over the past decade, the idea that the city of Rio de Janeiro has been plunged into a “war against organized crime” has gained traction amongst an ever-increasing number of Brazilian officials, especially from the executive and Armed Forces. The motivation behind this emerging trend is twofold: it aims to lower international human rights standards when carrying out security operations targeting organized crime in Rio de Janeiro's so-called favelas (shanty towns), and to shield security forces from prosecution when they use excessive force against the favelas’ residents.
In Rio de Janeiro, urban violence stemming from organized crime is an integral part of daily life, and for many, it seems like an insurmountable challenge. Faced with strong, well-equipped and well-organized criminal groups, security forces have failed to stand up to the task at hand and instead have decided to fight extreme violence with extreme violence, with its obvious consequences to the population.
Those who support the concept of an ongoing “war” in Rio de Janeiro back their argumentation in a rather unstructured way, based on a number of “criteria” which can include the death toll, the calibre of the armaments used by the organized criminal groups, and the areas which they control.
Given the failure of the police to tackle organized crime in Rio de Janeiro, the federal government has deployed the Armed Forces to the city to support, and sometimes replace, the work of the police. In peacetime, the Brazilian Constitution allows for such deployment in special circumstances.Footnote 1
Fuelled by mounting militarized rhetoric from government officials and a section of the media, many cariocas (residents of Rio de Janeiro) have shown support for the use of lethal force against organized criminal groups and see it as an acceptable alternative to proper law enforcement operations. This warmongering narrative is particularly worrisome when the war expression “collateral damage” is carelessly used by security forces to try to justify extrajudicial killings.
While some decision-makers assert that the situation in Rio de Janeiro amounts to a non-international armed conflict (NIAC), others argue that international human rights standards should be lowered while combating organized crime in the favelas, which these criminal groups have elected to use as their base.
This article will argue that although violent crime in Rio de Janeiro is indeed a serious problem calling for a robust State response, the threshold required for the situation to be qualified as a NIAC is not met.
Welcome to Rio De Janeiro: The daily life of cariocas
The word “contrast” could very well define the so-called “Marvellous City”, as Rio de Janeiro is known to Brazilians and visitors alike. The city is a combination of sea, mountains, lagoons and the largest urban tropical forest in the world.Footnote 2 For the population, however, this contrast also translates to unfair income distribution and access to housing, transport, health care, sanitation, education and security, and is better defined as plain inequality.Footnote 3
The city of Rio de Janeiro has a land area of 1,200,329 square kilometres and an estimated population of 6,775,561,Footnote 4 of which 45.6% are male and 54.4% are female.Footnote 5 The vast majority of favela residents are of African descent.Footnote 6, Footnote 7
A favela is a cluster of dwellings that are disorderly, inadequately built, and lacking in access to essential public services.Footnote 8, Footnote 9 Rio de Janeiro's largest favelas are found on the hillsides and are characterized by precarious housing conditions, basic sanitation and little to no access to security, health care and education.Footnote 10
There are 1,074 favelas in Rio de Janeiro.Footnote 11 Their combined population is estimated at 1,434,975, approximately 22% of the city's population.Footnote 12 Among the largest and best-known favelas are Rocinha, with 69,356 inhabitants; Rio das Pedras, with 54,793 inhabitants; Jacarezinho, with 37,839 inhabitants; the cluster of seventeen favelas called Complexo da Maré, with 129,770 inhabitants; and another cluster of thirteen favelas called Complexo do Alemão, with 69,143 inhabitants. Although the average demographic density of the city is 5,556 inhabitants per square kilometre,Footnote 13 the region with the highest demographic density is in Rocinha, with 48,258 inhabitants per square kilometre.Footnote 14
In terms of security, the more affluent and touristic areas of the city enjoy ostensive policing, a method of employing the police force in public security activities, strategically developed to generate visual impact and provide a deterrent effect in which police are identified at a glance, either by the uniform or by the equipment, armament or vehicle.Footnote 15 In some favelas, police presence is haphazard and is often limited to patrolling the favela's main entrance.Footnote 16
Organized criminal groups are embedded in Rio de Janeiro's favelas, and there are two types of favelas: those controlled by drug traffickers and those controlled by private militia groups (akin to mafia-style criminal operations). Violent crime rates are highest in the favelas, with frequent exchanges of fire either between rival factions fighting for control or between criminal groups and security forces.Footnote 17
The feeling of insecurity is much greater among favela residents than among those living outside the favelas.Footnote 18 Exchanges of fire in such densely populated areas frequently result in casualties and serious bodily harm, including to children, and interruptions of access to already scarce public services such as schools and hospitals.Footnote 19 Criminal factions entice and arm children and adolescents to work for them, especially on drug trafficking, and may threaten businesses and residents considered to be non-compliant with the “law” they impose in the favelas they control.Footnote 20 Both drug traffickers and militia groups feed a very well-oiled corruption scheme of officials, which is single-handedly the main obstacle to confronting organized criminal factions in Rio de Janeiro.Footnote 21
The “militarization” of security: The escalation of warmongering rhetoric and the role of the Armed Forces
Public security is a duty of the State and must be provided by the police at the federal and regional levels.Footnote 22 However, the possibility for the Armed Forces to undertake law and order roles in peacetime is prescribed in the Brazilian ConstitutionFootnote 23 under exceptional circumstances and under specific legislation.Footnote 24 The decision to deploy the military domestically is the responsibility of its supreme commander, the president, on his own initiative or at the request of the Supreme Court, Senate or Lower House,Footnote 25 and should only occur when the chief of the Executive Branch (at federal or regional levels) formally recognizes that law enforcement actions carried out by the police are unavailable, non-existent, or insufficient.Footnote 26
The participation of the Brazilian Armed Forces in the United Nations Stabilization Mission in Haiti (MINUSTAH) from 2004 onwards paved the way for renewed attempts by officials, including within the Armed Forces, and politicians to justify the use of military personnel in law enforcement operations instead of the police.Footnote 27 The image presented to Brazilians of troops successfully providing a stable and safe environment in HaitiFootnote 28 made the environment favourable for the use of the military in the fight against domestic crime. The message was that the Armed Forces could do in the favelas what they were doing in Haiti; to a layperson's eye, law enforcement operations look similar to those carried out in countries such as Haiti.Footnote 29
It was in this context that, in 2004 and 2010, changes were made to Complementary Law 97/99, regarding the organization, preparation and deployment of the Armed Forces.Footnote 30 The use of troops in law enforcement operations became possible when security forces are considered unavailable, non-existent or insufficient for the regular performance of their mission.Footnote 31
In December 2010, these legislative changes, linked with the existing political alignment in the spheres of government, gave rise to an unprecedented agreement between the Federal Executive Power (the Union) and the state of Rio de Janeiro, allowing the use of the Armed Forces to fight crimes in the city's favelas.Footnote 32 The role of the military acting in a domestic environment was also reinforced by major events in Rio de Janeiro at which troops provided security.Footnote 33 Since then, the line between the distinctive roles of the police and the military in law enforcement has been blurred.
In order to contextualize the main law enforcement activities carried out by the armed forces in Rio de Janeiro, we will now track the rise of warmongering rhetoric and the government's main attempts to fight crime in Rio de Janeiro over the past fifteen years.
The police force in the state of Rio de Janeiro is divided into the Military Police, an ostensive uniformed institution that has the function of policing to preserve public order and the safety of people and property, and the Civil Police, an institution that has the function of the judiciary police and investigation of criminal infractions.Footnote 34 Both these branches of the police have militarized forcesFootnote 35 that normally carry out operations in favelas. These specialized units of the police, which are not subordinated to the Armed Forces in peacetime, have armoured vehicles, heavy weapons and helicopters.
In 2007, the then secretary of public security of the state of Rio de Janeiro declared that “police action is not violent by design. We don't go there to seek to entice violence, but every time we go there, we are repelled.” Referring to the need to use force, he stated that “we cannot make a cake without breaking some eggs”.Footnote 36 This type of reference made by decision-makers contributed to the idea of the necessity of a greater militarization of the police.
In 2008, the implementation of the so-called “Pacifying Police Units” (PPUs) began. This project of the State Government of Rio de Janeiro was aimed at taking over and occupying the favelas with police in order to disrupt the criminal factions, introduce community policing, and open the way for essential public services.Footnote 37 At that time, the debate about using military personnel to support the police in fighting crime was gaining more traction and popular support.
Given the levels of urban violence and its ensuing effects in the daily lives of favela residents, the International Committee of the Red Cross (ICRC) developed and implemented a scheme called the Rio Project in some favelas from 2009 to 2013.Footnote 38 This was a set of initiatives in partnership with municipal and State agencies, neighbourhood associations and the Brazilian Red Cross aimed at mitigating the humanitarian consequences of urban armed violence to the population. The experience resulted in combined activities in health care and education that sought to enhance the resilience of people living and/or working in favelas in Rio de Janeiro. The Safer Access to Essential Public ServicesFootnote 39 project was such a success that, at the request of local governments, this methodology was replicated in other Brazilian cities.
In November 2010, the Armed Forces effectively joined the fight against crime in Rio de Janeiro due to a series of criminal attacks that paralyzed the city. These attacks occurred in reaction to the law enforcement project that was in the process of being implemented, with buses burned, police booths machine-gunned, and exchanges of fire. The attacks served to justify a robust military operation that included combat vehicles and helicopters and led to the occupation of the Vila Cruzeiro and Complexo do Alemão favelas by the Military Police and Civil Police of Rio de Janeiro, the Federal Police and a large contingent of military troops.Footnote 40 At the time, the spokesperson for the Military Police, an institution that has the function of preserving public order and the safety of people and property, unapologetically declared that the police did not start this “war” but would emerge victorious.Footnote 41 The new idea was that military troops would occupy the favelas in a “pacification”Footnote 42 effort in order to continue the rollout of the PPUs. The Armed Forces thus delimited an area of operation to be occupied by military personnel for an extended period. In this area, the military was tasked with carrying out ostensive policing with powers to arrest and detain, in theory without prejudice to the police force. In typical UN peacekeeping mission fashion, the military started civic-social activities with the community in cooperation with non-governmental organizations and agencies.Footnote 43
The so-called “pacification” forces remained in Complexo do AlemãoFootnote 44 from 2010 to 2012, and in Complexo da MaréFootnote 45 from 2014 to 2015. Although there was some initial success, over the time the “pacification” policy started to fail because it was focused on a militarized perspective and was carried out by police and military personnel who lacked training and experience in community policing.Footnote 46 Armed confrontations with criminals multiplied, and the policy often did not result in basic sanitation and education being delivered to the communities. In addition, the systemic and rampant corruption of government and law enforcement officials contributed to turning the PPU's promise into failure.Footnote 47
An important symbol of this downfall of the pacification policy was the Amarildo case. In 2013, the bricklayer Amarildo Dias de Souza, 42 years old and a resident of Rocinha, was taken by policemen of that favela's PPU due to suspicion of involvement with drug trafficking and was never seen again. According to the charges, he was tortured to death inside the PPU.Footnote 48 Since then, the project of the PPUs has definitely lost the support of public opinion.Footnote 49
In July 2017, cashing in on the infrastructure that had been set up in the city for the security of the 2016 Olympic Games and still envisioning a militarized solution for public security, Rio de Janeiro was chosen by the Federal Government to be the test bed for yet another law enforcement experiment, in which the Armed Forces would support the implementation of the National Security Plan.Footnote 50 At that time, a reserve general who had been the military commander of UN peacekeeping missions in Haiti and the Democratic Republic of the Congo held the title of national public security secretary.Footnote 51
In August 2017, the chief of the Institutional Security Cabinet within the Office of the President (a general) declared that there was a “war” in Rio de Janeiro and that “undesirable incidents” were foreseeable.Footnote 52 The general added that the success of military participation in law enforcement operations depended on support given by society in general, as well as on the media's adherence to the narrative.
Unlike what had taken place in Complexo do Alemão and Complexo da Maré previously, the new military “law enforcement” operations were redesigned for short-term actions, with large contingents and without prior notice of deployment. The military was to provide “dynamic stabilization”, with a base far away, a base close by and, if necessary, incursions to enable police work, such as serving arrest and search and seizure warrants in favelas controlled by criminal factions. The military troops also removed barricades and performed typical police duties, like ostensive patrols and approaching civilians for body searches.Footnote 53
In October 2017, the commander of the Brazilian Army, who was a critic of the Armed Forces’ participation in law enforcement activities, concerned with the legal security of troops and using war terminology, stated that the cost of “collateral damage of innocent civilians” should be carefully considered and evaluated.Footnote 54 This general pointed out that the Army is understandably equipped with artillery capable of a high degree of lethality, range and transfixation ability, and has little experience and training with regard to deployment in urban, densely populated areas.
Even so, and increasingly marking this idea of a “war against crime”, in 2018, the then president signed an unprecedented “federal intervention” decreeFootnote 55 with the aim of ending a crisis of public order, and appointed an active-duty Army general as the “intervener”.Footnote 56 This exceptional, temporary and specific measure as provided by the Constitution,Footnote 57 which did not imply any suspension or restriction of fundamental rights, lasted from February to December 2018 and had as its main objectives (1) the restoration of the operational capacity of the local security forces, and (2) the gradual reduction of crime rates and, consequently, an improvement in the perception of security in Rio de Janeiro.Footnote 58
The general in charge appointed another active-duty general, who commanded the military occupation in Complexo da Maré, to be Rio de Janeiro's public security secretary. The military took over the command of the police forces and, during the Federal Intervention in Public Security in Rio de Janeiro, military values and governance were strengthened in the public security forces.Footnote 59 At the time, reinforcing a warmonger perspective in public security, the minister of justice compared the Federal Intervention to an asymmetrical war.Footnote 60 The minister added that there is no war that is not lethal.
In the same month that the Federal Intervention was made official, the president created the Ministry of Public Security and appointed the then defence minister to this portfolio.Footnote 61 Additionally, the president appointed a general to lead the Ministry of Defence, effectively putting an end to a twenty-year-old tradition of having civilians as the head of defence.Footnote 62 The governor of the state of Rio de Janeiro, when justifying the acceptance of military troops in law enforcement, stated that Rio de Janeiro alone could not “win the war”.Footnote 63
Vila Kennedy, a favela with 41,555 inhabitants controlled by the Comando Vermelho drug trafficking group, located in the west of the city, was chosen by the military as a kind of laboratory during the federal military intervention.Footnote 64 For about three months, the military had a continuous presence during the day in the favela, breaking down barricades, policing together with the military police, and officially supporting the Civil Police in carrying out arrest warrants. This methodology did not give the expected results and was not replicated elsewhere.Footnote 65
The general in charge of the Federal Intervention declared that the role of the Armed Forces in Rio de Janeiro's law enforcement was not a war but cited the need for police training to avoid civilian casualties that he called “collateral damage”. By employing this typical war expression used to refer to the death of civilians on the battlefield, the general strengthened the atmosphere of militarization of the police.Footnote 66
The investments made by the Federal Government during the Federal Intervention contributed to the re-equipment of the Military Police and the Civil Police but were insufficient for a full operational restoration.Footnote 67 Despite a reduction in crime rates that year, there was an increase in extrajudicial killings.Footnote 68
To guide the behavioural norms of the military in law enforcement activities, especially regarding the progressive and/or differentiated use of force and the exercise of police power with regard to civilians, a protocol was elaborated and baptized the “rules of engagement”,Footnote 69 a term borrowed from UN peacekeeping missions in which Brazilian had troops participated, especially MINUSTAH.
The need to face criminals and not enemies, to deal with protests and to be sensitive to the social problems and cultural aspects of the region challenged the Army.Footnote 70 The rules of engagement were improved over the course of law enforcement actions, moving away from more warlike terms and incorporating the terminology and principles best suited to actions of a police nature.Footnote 71 During the Federal Intervention, the Brazilian Military Prosecutor's Office, a civilian institution composed only of civilian prosecutors working in the Brazilian military justice system, recommended specific training in human rights for military troops engaged in law enforcement actions and the development of a protocol for interacting with the population, especially with regard to the most vulnerable groups.Footnote 72 However, although there are guidelines in law enforcement actionsFootnote 73 and training with non-lethal weapons in the Armed Forces, troops are not traditionally and effectively prepared to interact with the population, but rather to neutralize the enemy.
Since the end of the Federal Intervention in December 2018, there are no longer law enforcement operations against crime carried out by the military in the city. The Federal Executive Branch has called for greater legal protection for military personnel fighting crime before such operations can resume.Footnote 74
An event that marked the Executive's greatest caution in placing troops on the streets of Rio de Janeiro was the Guadalupe case. In April 2019, not acting on a law enforcement mission, but used for law enforcement purposes, eight military personnel fired eighty-two rifle shots at a civilian car they thought was being used by criminal to flee a crime scene in the Guadalupe neighbourhood. As a result, they killed the driver, injured the passenger and killed a passer-by that came to the car to offer help.Footnote 75
Turning back to the Regional Executive Branch, in January 2019, the new governor of Rio de Janeiro changed the recent integrated structure organized by the Armed Forces during the Federal Intervention and dismantled the State's Secretariat of Public Security, splitting it into one secretariat for the Civil Police and another for the Military Police.Footnote 76 This initiative produced an empowerment of the police forces to act independently, viewed by some critics as harmful to integrated public security policies.Footnote 77
While politically distancing himself from the Federal Intervention commanded by the military, the governor began his term by investing heavily in the war narrative in public security. In his inauguration speech, he said that a “war on drugs” would be declared and that drug dealers would be treated as “terrorists”.Footnote 78 He then rolled out militarized police interventions characterized by high levels of police brutality.Footnote 79 The governor even created, by decree, the rank of general for the Military Police and Fire Department,Footnote 80 but a month later he had to back out of this due to legal impediments.Footnote 81
The situation of exacerbated urban violence in Rio de Janeiro is also a concern of the highest court of the judicial power. Arguing that the security policy of the state of Rio de Janeiro was marked by “excessive and increasing lethality of police action”, at the end of 2019, a political party filed a lawsuit in the Supreme Court for breach of fundamental precept. Known as ADPF 635 but nicknamed “ADPF of the Favelas”, it was intended to recognize and remedy serious violations of fundamental constitutional rights. Civil society quickly joined the suit. In a nutshell, the Supreme Court ordered that the state of Rio de Janeiro should produce a plan to reduce police lethality and investigate and mitigate human rights violations committed by security forces including the Military Police and Civil Police. This plan was to include objective measures, specific timelines, and the necessary resources for its implementation.Footnote 82
ADPF 635 also addresses the following issues: prohibition of using helicopters as a platform for shooting “targets” on the ground; protection of schools; guarantees of civilian oversight over security policies; access to justice and full participation of civil society in investigations into cases of extrajudicial killings; and systemic prosecution in cases of crimes committed by security agents.Footnote 83
In June 2020, the Supreme Court ordered the temporary suspension of police raids in the favelas during the COVID-19 pandemic, except in exceptional cases that must be duly justified and accompanied by robust due diligence measures to prevent further danger to the population, the provision of health services, and humanitarian action, and subject to communication to the Public Prosecutor's Office.Footnote 84
Police lethality decreased by 34% in 2020,Footnote 85 but despite the Supreme Court's decision, security operations continued,Footnote 86 often motivated by pure retaliation for the killing of a police officer and/or attacks against police units.Footnote 87 Since May 2021, Rio de Janeiro has recorded three of the four most lethal police operations in the city's entire history. During this period, seventy people (sixty-nine civilians and one police officer) were killed in just three police incursions in favelas.Footnote 88
Coming back to the scope of the Regional Executive Branch, at the beginning of the 2022 election year, the current governor of Rio de Janeiro State launched the Integrated City project in the favelas of Jacarezinho and Muzema. This is a kind of re-edition of the PPUs, but without the participation of the military. The programme is officially aimed at taking back control from drug traffickers and militia and serving as a model of police occupation and joint work on social actions. However, it has been criticized for a lack of transparency and the absence of consultation with local leaders or even city government officials.Footnote 89
As we have seen, in the last fifteen years, with or without military personnel carrying out law enforcement actions, a “war approach”Footnote 90 has prevailed in the conduct of public security policies in Rio de Janeiro.
In this context, some voices defend the existence of a low-intensity NIAC in the city of Rio de Janeiro and the consequent applicability of international humanitarian law (IHL) in the police/military interventions in favelas, or at least a “grey zone conflict”Footnote 91 in which the international human rights standard on the use of forceFootnote 92 is not sufficient to fight organized crime. This war narrative is not official but can be found among some members of the armed forces, police, prosecutors and even judges.Footnote 93 The word “war” is also frequently used in the media to refer to extreme urban violence in Rio de Janeiro. In August 2017, a newspaper even created a specialized editorial section called “War in Rio”.Footnote 94
Urban violence in Rio de Janeiro and the threshold for a non-international armed conflict
Although the extreme urban violence in Rio de Janeiro has been popularly described as a “war”, it does not reach the threshold of intensity of violence and level of organization of non-State armed groups required to be considered a NIAC. Accordingly, IHL should not be used as a legal basis to justify militarized interventions, particularly by a military that has a track record of excessive use of force and extrajudicial killings.
For fear of legitimizing insurgencies, losing control of internal order and undermining sovereignty, States are reluctant to produce a comprehensive set of rules that regulate NIACs. The main norms that refer to this type of armed conflict are set out in Article 3 common to the four Geneva Conventions of 1949 (armed conflict not of an international character occurring in the territory of one of the High Contracting Parties) and Additional Protocol II of 1977 (armed conflict which takes place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups with command, territorial control, the ability to carry out sustained and concerted military operations and the capacity to respect IHL). The Rome Statute of the International Criminal Court added other elements to the notion of NIAC in 1998 (protracted armed conflict between governmental authorities and organized armed groups or between such groups). Brazil is bound by these treaties.
Those who assert that the city of Rio de Janeiro is immersed in a low-intensity NIAC argue that (1) there is a “war on crime”, a “drug war” or a “criminal insurgency” in which the death toll is greater than many situations of armed conflict, (2) the State has used the military in the fight against crime, (3) the criminals use weapons normally used in armed conflicts, (4) the armed groups are well organized, and (5) the armed groups have control over the favelas. Footnote 95
The arguments in favour of applying IHL to the situation in Rio de Janeiro are based on the need to provide more “legal certainty” to police and military personnel who fight violent crime, the need to prevent prosecutions in the event of use of lethal force against criminals, the possibility of prosecuting criminals for war crimes, and greater and more specific legal protection for the favela populations.Footnote 96
In the following sections, an analysis will be made of the situation in Rio de Janeiro from the perspective of the criteria required for the characterization of a NIAC. Some comments will then be presented on the inadequacy of the arguments in favour of the applicability of IHL.
Intensity
To evaluate the degree of intensity of armed confrontations, certain aspects can be taken into account, such as the number of casualties, the duration of individual confrontations, the extent of destruction, the type of weapons and combat methods used, the type of forces taking part in the fighting and the number of troops deployed, the number of civilians forced to leave their homes, the attention of international bodies such as the UN Security Council, and even the attempt by representatives of such organizations to broker a ceasefire agreement.Footnote 97 A “convincing combination”Footnote 98 of these indicative factors is required to qualify a situation of violence as a NIAC.
In addition, the ICRC has introduced a new approach to coalitions of non-State armed groups. An aggregated intensity for qualifying a NIAC can be assessed based on whether organized armed groups have objectively and effectively adopted a collective approach to fighting a common enemy.Footnote 99
Number of deaths
The number of deaths resulting from crime in Rio de Janeiro is alarming and may even exceed the number of victims in some armed conflicts. Some 1,338 homicides were recorded in the city in 2018, 1,134 in 2019, 957 in 2020 and 790 in 2021.Footnote 100 If we consider the metropolitan region of Rio de Janeiro, which includes the capital and twenty-one surrounding municipalities, the numbers of homicides reached 3,577 in 2018, 2,928 in 2019, 2,405 in 2020 and 2,133 in 2021.Footnote 101 This data does not include violent deaths stemming from unidentified causes.
Although Rio de Janeiro is not one of the top ten most violent states in the country,Footnote 102 the state of Rio de Janeiro has the most lethal police force in Brazil. Official deaths caused by the police in the city of Rio de Janeiro totalled an alarming 558 in 2018 and 726 in 2019.Footnote 103 During the coronavirus pandemic, and the prohibition of police operations in the favelas Footnote 104 by the Supreme Court, there were 415 deaths in 2020 and 458 deaths in 2020. In the metropolitan region, there were 1,381 deaths in 2018, 1,647 in 2019, 1,089 in 2020 and 1,214 in 2021.Footnote 105
As noted previously, the police force in Rio de Janeiro is divided into the Military Police and the Civil Police. The operations conducted by the Civil Police in the favelas against drug trafficking groups that result in killings are proportionally more lethal than those of the Military Police.Footnote 106
The Rio de Janeiro police force is also the one that suffers the most losses in the country. In the state of Rio de Janeiro there were 111 police officers killed in 2018, sixty-seven in 2019, sixty-five in 2020Footnote 107 and forty-one in 2021.Footnote 108 Most of the deaths of police officers took place in the city of Rio de Janeiro, when the officers were off duty.Footnote 109
Regarding military personnel engaged in law enforcement actions, since 2010, thirty-two civilians have been killed by troops and four military personnel have died in armed confrontations with criminals.Footnote 110
Although it is estimated that half of the murders investigated in the capital and the metropolitan region of Rio de Janeiro since 2016 have had some connection to different criminal organizations,Footnote 111 the reasons behind killings in the city are often not known.
The state of Rio de Janeiro has one of the lowest intentional homicide investigation resolution rates in Brazil. In fact, only 21.2% of homicides registered in 2018 had been solved by the end of 2020.Footnote 112 Among other problems, the low resolution rate prevents analysts from discovering the exact proportion of crimes committed by traffickers and militia. It is not even possible to know whether the majority of homicides in the state are due to organized crime or interpersonal reasons.Footnote 113
Lastly, without disregard to the gravity of the situation, in comparison to other urban areas in the world, Rio de Janeiro was not among the fifty most violent cities in 2022.Footnote 114 Since 1 January 2019, there have been no new law enforcement operations led by the Armed Forces in support of or to replace the police in the city, and, as seen above, the number of homicides committed by criminals in the metropolitan region of the city of Rio de Janeiro has been falling since 2018, notwithstanding the fact that killings attributed to the police have increased.Footnote 115
Due to the circumstances seen above, the high number of casualties resulting from violent criminality in Rio de Janeiro does not exactly fit as an indicative factor of a NIAC.
Duration of confrontations
Clashes between criminal factions, or between them and the police, are very frequent and sometimes have a considerable duration. They can range from hours to days of armed violence.Footnote 116 There are even apps to alert people about the places where shootings happen in real time in Rio de Janeiro.Footnote 117 In 2021, 2,510 shootings were recorded in the city, most of them in the favelas.Footnote 118 Taking into account that this tragic situation has remained relatively stable for years,Footnote 119 it is possible to conclude that armed confrontations are, therefore, of a permanent character in the favelas cariocas.
Although international jurisprudence has already recognized the existence of instant NIACs,Footnote 120 this permanent environment of armed confrontation could be seen as an indicative factor for qualifying as a NIAC. However, these clashes in the favelas of Rio de Janeiro involve violence between criminals or between them and specialized police forces, and the type of forces participating in the fighting is also an important element to be evaluated when considering a situation as an armed conflict. As already seen, the involvement of the Armed Forces in law enforcement actions in Rio de Janeiro is not regular, and when it happens, it is to support missions of a police nature.
Extent of material destruction
Though the situation in Rio de Janeiro is very serious and intense armed clashes occur either between criminal factions that dispute territory or between such factions and the police, the material destruction resulting from violent criminality or the State response is not comparable to what is seen in other NIACs.Footnote 121
An immense amount of ammunition can be fired in a single confrontation in the favelas,Footnote 122 and gunshot damage to walls and cars frequently occurs. In more extreme cases, there are reports of buses, trucks and even gas stations being burned down in disputes between criminal factions or in protests against police operations.Footnote 123 However, there is little reliable data available to verify the actual scale of material destruction resulting from this extreme urban violence, and such a survey would be necessary to classify this aspect as an indicative factor of a NIAC.
Weaponry
Criminal groups in Rio de Janeiro use high-calibre weapons, some of which are normally restricted to the Armed Forces. In 2019, 2,502 firearms and 974 explosives were seized from criminals in the city of Rio de Janeiro. Of these, 338 (13%) of the firearms were rifles and 525 (53%) of the explosives were grenades.Footnote 124 The lack of strict oversight of the arms trade and effective investigations into the theft, loss and trafficking of arms and ammunition contribute to this escalation of arms.Footnote 125
To tackle this destructive potential, the police have carried out some robust operations in the favelas with specialized – and militarized – units that have armoured vehicles, heavy weapons and helicopters.Footnote 126 During some periods, as seen above, military personnel have also been engaged in law enforcement actions in order to provide a “safe” environment for the police work (execution of arrest and search and seizure warrants).Footnote 127
The use of heavy weapons could be seen as an indicator of high-intensity confrontation, but when this factor is combined with others, the picture of a NIAC does not hold up clearly.
Troops deployed
As already mentioned, armed clashes in the favelas of Rio de Janeiro involve violence between groups of criminals or between such groups and specialized police forces, but the Armed Forces have carried out some police operations.
The military contingent deployed in the last law enforcement mission in Rio de Janeiro between July 2017 and December 2018 was very large, with some operations in favelas mobilizing up to 4,000 military personnel. However, the operations were not continuous and were developed to support the work of the police, in quick actions, with the purpose of providing a “safe” environment so that the security agents could carry out arrest and search and seizure warrants.Footnote 128
The use of the Armed Forces was preceded by the approval of the planning of each operation by the minister of justice and public security, the minister of defence and the head of the Institutional Security Office of the Presidency of the Republic.Footnote 129
Despite the fact that there were exchanges of fire and deaths in these operations,Footnote 130 and that there are precedents of instant NIACs,Footnote 131 the police nature of the mission carried out by the Armed Forces on the ground compromises the “number of military deployed” criteria as an indicative factor of a NIAC.
Civilian displacement
Although it is well known that many favela residents must adapt their lives around the organized criminal activities that take place there despite them, there are few recent studies that address the issue of migratory flows, and as a result we cannot specify whether there is a significant volume of internal displacement.Footnote 132 While urban violence has a strong impact on the daily lives of residents through interruptions in the delivery of specific public services, the phenomenon cannot possibly be compared to the collapse of institutions in times of armed conflict.Footnote 133
International concern
A NIAC results in a very serious security crisis that can sometimes threaten international peace and become a matter of international concern. There are no reports of international bodies perceiving the situation in Rio de Janeiro as a NIAC; the ICRC places the situation in Rio de Janeiro in the category of “armed violence in urban areas”.Footnote 134 There is no evidence of involvement on the part of the UN Security Council, nor of any attempts by representatives of international organizations to broker and enforce ceasefire agreements.
Aggregated intensity
Usually, the intensity criteria necessary for qualifying a situation as a NIAC would have to be applied to each armed confrontation between non-State armed groups or between such groups and State forces on a case-by-case basis. It is not possible to generalize between regular forces on one side and criminals on the other, unless there is a sufficient level of coordination in a coalition of non-State armed groups fighting a common enemy and the other criteria of a NIAC are present.Footnote 135
An important part of the harmful effects of urban violence in Rio de Janeiro results from armed disputes over territory between criminal factions and militarized police repression. There are reports that the Bonde do Zinho militia and the Terceiro Comando Puro criminal faction are allied to fight the Comando Vermelho criminal faction in some areas of Rio de Janeiro in an expansion plan,Footnote 136 but this criminal pact is not sufficiently coordinated to justify an assertion of aggregated intensity for the purpose of legally classifying a NIAC.
For the reason given above, the analysis of the intensity criteria indicates that, although some factors may characterize a spiral of violence, their combination does not result in the threshold required to classify the situation of Rio de Janeiro as a NIAC.
Organization
With regard to the degree of organization required by armed groups, the criteria are the existence of a command structure, disciplinary rules and mechanisms of control within the group; the existence of “headquarters”; territorial control; the ability to have access to weapons and equipment for exclusive use by military troops; military recruitment and training; the ability to plan, coordinate, and execute continuous military operations, including troop movements and logistics; the ability to define a unified military strategy and use military tactics; the ability to speak with one voice and negotiate and conclude ceasefire or peace agreements; and the ability to implement and respect basic IHL obligations.Footnote 137 In Rio de Janeiro, some of these criteria are met, some are not so evident, and others are not met in terms of the organization of criminal factions.
It is not an easy task to determine the hierarchical composition of an armed group, but it is possible to identify a command structure, disciplinary rules and mechanisms of control within the group, the existence of “headquarters”, territorial control, the ability to have access to weapons and equipment for exclusive use by military troops, and the existence of military recruitment and training.
Command structure, disciplinary rules and mechanisms of control within the group
The largest and best-known drug trafficking organized criminal groups are the Comando Vermelho (CV), the Terceiro Comando Puro (TCP) and Amigos dos Amigos (ADA), as well as cells of the São Paulo-based Primeiro Comando da Capital.
The militias, on the other hand, are mainly composed of former military personnel and police officers, and they exploit the population by levying illegal “taxes” for services, under the pretext of providing security. However, this gap between drug trafficking and militia-controlled favelas is quickly narrowing with the emergence of narcomilicias (narco-militias) – i.e., militia groups that are increasingly involved in drug trafficking in the favelas they control.Footnote 138 The largest militia in Rio de Janeiro was born in the late 1990s as the Liga da Justiça and is now called Bonde do Zinho.Footnote 139
Some might classify the narcomilicias as third-generation gangs due to their high degree of organization, international capacity and political goals.Footnote 140
The CV has been described as a network of independent actors rather than a strict hierarchical organization led by a single actor, although there are high ranking-bosses within the structure.Footnote 141 The TCP and ADA emerged from disagreements within the CV; the TCP, rather than being a vertical mafia-type organization, functions as a horizontal coalition of local crime bosses that forge alliances based on mutually beneficial interests.Footnote 142
The leader of the ADA faction was captured by police in 2011, and although it is reported that the drug trafficker continued to run the group from prison, in his absence, rival groups such as the CV and dissident ex-members have been fighting for control of the group's strongholds.Footnote 143
The militia have a more structured organizationFootnote 144 and more obvious political goals than other criminal groups;Footnote 145 they act more discreetly and try to avoid armed confrontation with security forces.Footnote 146 These organized criminal groups have their own internal codes of conduct,Footnote 147 career paths and even “trafficking tribunals”Footnote 148 for those who break their “law”.
Territorial control and existence of “headquarters”
Criminal groups also have restricted areas of operation and share control of organized criminal activity in Rio de Janeiro's favelas and other low-income neighbourhoods, and often use self-made barricades to hinder police operations in back streets and alleyways. “In some areas of Rio de Janeiro, gang control is so absolute, and legitimate state presence so absent, that police can only enter under threat of armed confrontation with traffickers.”Footnote 149
The CV is the largest and oldest drug trafficking group operating in Rio de Janeiro and controls at least 60% of the favelas in the southern, central and northern zones of the city where most of the densely populated hillside favelas are found.Footnote 150 Rocinha, Complexo do Chapadão and Complexo do Alemão are some examples; the latter is where the headquarters of the CV are located.Footnote 151
Compared to this drug trafficking group, the militias may come second in the number of favelas they control, but they are first in terms of controlling extensive areas, especially in the west of the city in flatter areas.Footnote 152
The TCP's bases are mainly concentrated in the north and west zones of Rio. The most recent movements point to the extinction of ADA, an exponential growth of the militia, and, as already noted, an alliance between the TCP and Bonde do Zinho with the aim of taking over favelas controlled by the CV.Footnote 153
Ability to have access to weapons and equipment for exclusive use by military troops, and military recruitment and training
As mentioned above, organized crime in Rio de Janeiro has access to heavy weapons. A considerable number of rifles and grenades are seized from criminals in the city each year.Footnote 154
Drug trafficking groups and militias even have international suppliers and benefit from a lack of strict oversight of the arms trade.Footnote 155 In addition, changes in legislation in recent years have allowed gun collectors to purchase large amounts of weapons and ammunition, and there are reports of alleged collectors supplying the arsenals of drug dealers and militiamen.Footnote 156
With regard to recruitment and training, the experience of former police officers who join the militia is an asset for these criminal groups.Footnote 157 There are also indications that former military personnel train new members of drug trafficking groups in urban guerrilla tactics, survival in hostile environments and handling heavy weapons.Footnote 158
Ability to plan, coordinate, and execute continuous military operations, including troop movements and logistics
Unlike the aspects of organization mentioned above, the information available does not allow us to assert that drug trafficking groups and militias have the ability to plan, coordinate and execute ongoing military operations, including troop movement and logistics. While there are some reports of members of criminal groups circulating with weapons in favelas or travelling together in vehicles to frighten the population and carry out criminal activities,Footnote 159 these do not constitute continuous military operations to qualify as a non-State armed group in a NIAC.
Ability to speak with one voice and negotiate and conclude ceasefire or peace agreements, and to implement and respect basic IHL obligations
The ability to define a unified military strategy, to speak with one voice, to negotiate and to conclude ceasefire or peace agreements and, above all, to implement and respect basic obligations under IHL is not at all evident in the criminal groups operating in Rio de Janeiro.
As already mentioned, confrontations between criminal factions are very frequent and eventual pacts between armed groups do not standardize their way of acting or reflect a general unity. Furthermore, the State has never considered initiating negotiations to conclude ceasefire or peace agreements with drugs trafficking groups or militias.
The social and territorial control exercised by such violent and criminal groups is based on criminal activities and atrocities, and it is not credible to suggest that these groups can implement even the most basic principles of IHL.Footnote 160
Some might argue that aspects of the intensity of the clashes and the organization of non-State actors meet the criteria necessary to qualify a NIAC, but as demonstrated, although the situation in Rio de Janeiro is very serious and challenging for the State response, a convincing combination of the required criteria is not reached and the very nature of the extreme urban violence remains a crime-fighting issue.
Additionally, the arguments in favour of applying IHL to the situation of Rio de Janeiro (more “legal certainty” to police and military personnel who fight violent crime, possibility of prosecuting criminals for war crimes, and greater and specific legal protection for the favela populationsFootnote 161) misrepresent the essence of IHL. The applicability of IHL cannot be based on apparent practical advantages that this legal system could offer in the fight against organized crime.
Targeting “the enemy” – in this case, criminals in densely populated communities – through incursions in a warlike manner is not the solution to fighting crime. Upholding the pattern of use of force reserved for the conduct of hostilities in wartimeFootnote 162 in order to exempt police or military personnel involved in law enforcement actions from criminal prosecution for extrajudicial killings is an alleged legal form of violation of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.Footnote 163
The possibility of prosecuting criminals for war crimes, not yet integrated into the Brazilian legal system,Footnote 164 seems to be an impact argument used to draw attention to the seriousness of the situation and not a technical argument based on the reality of the terrain. National criminal law has its own instruments for bringing criminal groups to justice, including special legislation to fight against organized crime that came into force as a result of Brazil's ratification of the UN Convention against Transnational Organized Crime.Footnote 165 In addition, in 2002 the National Council of Attorneys General established the National Group to Combat Criminal Organizations.Footnote 166
The argument that IHL would provide more protection to the favela populations as a special legal framework designed to apply in times of extreme violence is dubious to say the least.Footnote 167 In general, the principles of human rights law afford broader and more extensive levels of protection.
Civilians not involved in crime, including children and the elderly, are killed as a result of fighting between criminal factions and, mainly, as a result of militarized police operations to repress violent organized crime.Footnote 168 From an IHL perspective, if not disproportionate to the expected military advantage, these killings of favela residents would be considered collateral damageFootnote 169 and not a serious crime to be investigated and prosecuted.
Adopting a war narrative that justifies the conduct of hostilities in a favela will result in greater exposure of the population to the dangers of armed confrontation in a densely populated urban area and even in a social acceptance of extrajudicial killings.
Although the contours of the fight against violent organized crime in Rio de Janeiro do not characterize a NIAC, one may still argue that this is a “grey zone conflict”Footnote 170 situated in a space between war and peace where human rights rules are not sufficient to monitor the situation.
Situations of internal disturbance and tensionsFootnote 171 are governed by domestic law and rules of international human rights law.Footnote 172 As already seen, the non-applicability of IHL does not necessarily mean lesser protection for the persons concerned. Human rights rules and domestic law “are more restrictive, for instance, regarding the use of force and detention of enemies, while IHL gives States greater latitude on these two aspects”.Footnote 173
Attempts to lower international human rights standards during law enforcement operations in Rio de Janeiro
Given that the state of Rio de Janeiro has not been able to tackle urban violence efficiently, some members of the Executive Branch and even some prosecutors and judges advocate lowering applicable human rights standards, particularly concerning the use of force.Footnote 174 The argument is based on, again, the need to provide “legal guarantees” to security forces or military troops engaged in law enforcement operations, including reducing the accountability of officials who use excessive force and/or carry out extrajudicial killings.
Although this is not the core discussion point of this paper, in order to exemplify some attempts to lower international human rights standards during law enforcement operations in Rio de Janeiro that make the populations of the favelas even more vulnerable, some initiatives that reflect a debate on the right to the inviolability of the home and the pattern of the use of force can be mentioned: (1) claims for collective search and seizure warrants;Footnote 175 (2) the use of snipers by the police, shooting from helicopters in densely populated areas;Footnote 176 and (3) bills intended to give law enforcement officers the presumption of self-defence in the event of an armed confrontation or imminent risk of armed confrontation.Footnote 177 In some extreme cases, international human rights treaties allow restrictions or even suspensions of some rights, but the rights to life and physical integrity, for example, are fundamental rights that cannot be derogated.Footnote 178
In Brazil, as provided for in the Federal Constitution, only in exceptional cases of “state of defence” and “state of siege” can certain rights be restricted or suspended.
The “state of defence”Footnote 179 can be declared by the president in restricted and determined areas in order to promptly preserve or restore public order or social peace threatened by serious and imminent institutional instability or affected by major calamities. In this state of exception, there may be coercive measures such as restrictions on the right to assemble, secrecy of correspondence and secrecy of communications.
If a measure taken during the state of defence is ineffective or in cases of serious commotion with national repercussions, or even in case of a declaration of war or a response to foreign armed aggression, a “state of siege”Footnote 180 may be declared by the president. In this state of exception, there may be (1) an obligation to stay in a certain location; (2) detention in a building not intended for those accused or convicted of common crimes; (3) restrictions relating to the inviolability of correspondence, secrecy of communications, the provision of information and/or freedom of the press, radio and television; (4) suspension of freedom of assembly; (5) house searches and seizures; (6) intervention in public service companies; and (7) requisition of goods.Footnote 181
The “state of defence” and the “state of siege” have never been considered in the debate regarding urban violence in Rio de Janeiro. The Inter-American Court of Human Rights (IACtHR) has already decided that the suspension of human rights can hardly be justified in situations where the armed forces are used to control social protest, domestic disturbances, internal violence, public emergencies or criminality.Footnote 182
Particularly with regard to the situation of Rio de Janeiro, international human rights organs have expressed concern about the “war approach”Footnote 183 and the consequent growing militarization of the fight against crime. A report of the situation of humans rights in Brazil issued by the Inter-American Commission on Human Rights (IACHR) in 2021, calling for a citizen approach to public security, recommended the adoption of measures to revert the militarization of the police and the revision of protocols and guidelines of security forces that carry out law enforcement actions in order to ensure that the use of force respects the principles of legality, proportionality and absolute necessity.Footnote 184
Besides, in the “ADPF of the Favelas”,Footnote 185 the Supreme Court also ruled that security agents must examine the proportionality and exceptionality of the use of force in concrete situations and in accordance with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
Concluding remarks
Although urban violence in Rio de Janeiro may be seen by some as “war”, the city is not living a NIAC and the solution to criminality will not be found by resorting to the military and applying IHL.
The political use of the term “war”, including by high-ranking government officials,Footnote 186 to try to justify a militarized response while shielding law enforcement agents from criminal liability for any excessive and disproportionate use of lethal force is dangerous for society. The warmongering discourse feeds into a collective fear that can result in an uninformed social acceptance of human rights violations, such as extrajudicial killings.
The notion of solving historical failures in the fight against organized crime through alleged tactical/operational military advantage while applying the “laws of war” means disregard for the rule of law and the effective transfer of responsibility and accountability from the state of Rio de Janeiro in providing internal security to the federal Armed Forces. The military are trained to fight wars and should only act in exceptional situations for a determined period and under tight civilian oversight.
Government initiatives over the last fifteen years have already demonstrated that the “hypermilitarization”Footnote 187 of the police and the “policialization” of the Armed Forces,Footnote 188 both based on a confrontation-centred policy,Footnote 189 do not provide effective and lasting solutions to public security issues. In addition, this militarized response to violent crime has resulted in human rights violations.
The essential scope of IHL is to limit the use of violence and to protect victims of war. In the context of Rio de Janeiro, international human rights law is the prevailing legal framework and IHL can only contribute as a normative inspiration that protects people from the effects of extreme violence: a reference of humanity, put simply. If, in times of war, there are rules that protect the civilian population and restrict means and methods of combat, then a fortiori, in other situations of violence, these principles must also be respected.
The failure by the State to tackle violent crime, impunity and police brutality needs to be faced in a determined, ethical, professional, competent and integrated fashion, detached from partisan or ideological interests. The affirmation of human rights and the construction of a citizen-based security policy – away from a model essentially based on confrontation operations – calls for the real engagement of all institutions and needs to be protected from electioneering interests.
