SEDENA outlines Mexican Army use of force guidelines

By Chris Covert
Rantburg.com

The Mexican Secretaria de Defensa Nacional (SEDENA), the controlling agency for the Mexican Army and Mexican Air Force last month released guidelines governing the use of forces in its counternarcotics operations, according to data posted on the Mexican government's Diario de Federacion website.

The new guidelines are the completion of an order of Mexican President Felipe Calderon Hinjosa December, 2010 who ordered SEDENA to come up with written rules on the use of force in dealing with drug crime in Mexico.

The preamble of the entry states without equivocation, the the use of force guidelines are under the rubric of control by civilian authorities, presumably also local civilian authorities, and the Firearms and Explosives Act.

That federal law proscribes weapons of any kind outside an individual's domicile, and expressly forbids use of modern rifles such as the AR-15 and the AK-47, or weapons with a bore larger than .22 caliber, except for shotguns.

How much of a change in the relationship of the armed forces with civilian authorities the entry represents is unknown, in that the relationship is simply not talked about.  From reading press reports and official reports in the past by SEDENA and the Secretaria de Marina (SEMAR), armed contact involving the nation's armed forces are supposed to be under civilian control.  Human rights groups have publicly complained in the past that that relationship is not always in force, that military authorities have control of their forces, and of their mission as well.

The divergent view, however, probably comes from an deeply ingrained lack of understanding by human rights professionals of the general laws of war that military commanders train under, wherein a field commander is obligated to command first.  It is therefore not surprising that when Mexican Army troops are sent out on patrol, and not necessarily responding the a civilian complaint or prior intelligence, field commanders' rules are in effect and civilian authority does not enter into army patrol operations unless an incident occurs.

The guidelines defines three increasingly hostile levels of observed behavior for criminal suspects along with differing conduct expected from soldiers and airmen in the conduct of their duties.

The observed behavior includes

• Resistencia no Agresiva or Non aggressive resistance.  According to the entry, Resistencia no Agresiva means passive, or non-violent resistance to authorities and their directives, which means ignoring, disregarding or attempting to flee authorities without attempting to exchange gunfire, or any other violent act.
• Resistencia Agresiva or Aggressive resistance.  This means an individual who poses a threat of damage to persons or property either under the control of the individual or of another individuals, or the threat of serious injury and death, but which does not involve serious threat of death or injury against established authorities.
• Resistencia Agresiva Grave or Grave aggressive resistance means the same as Resistencia Agresiva, except the threat of serious injury or death is posed to authorities by a suspect.  That authority includes Mexico's armed forces.

The guidelines goes on to define use of force as "strictly unavoidable or necessary for the fulfilment of the mission is assigned, in support of civil authorities under the Federal Firearms and Explosives," according to a translation of the entry.  Use of force by military personnel, under the new guidelines, must be timely, proportional, rational and legal.

According to the entry, proportional use of force must be scaled in intensity and duration under the defined threat levels.

Under broad guidelines outlined in Article Seven, the directive defines five instances which may trigger use of force:

• Fulfil a duty to act in support of civil authorities or the application of the Federal Firearms and Explosives.
• Counteract all levels of resistance.
• Prevent imminent or actual commission of crime.
• Legally protect from aggression.
• Legitimate or self defense.

Article Nine of the directive goes on to define four levels of use of force, including

• Deterrence which means the physical, visible presence of army units.
• Persuasion which means verbal warnings to desist from criminal conduct
• Use of  non-lethal force: used to control a person or persons in cases of aggressive or not aggressive resistance.
• Lethal use of force: is used only in cases of grave or aggressive resistance in which the offender threatens military personnel with a firearm or other life threatening object.

The directive adds that deterrence and persuasion are preferred means of use of forces over the other two, also adding the life threatening circumstances for army personnel and for civilians are a legitimate means in escalating use of force.

Not surprisingly. the directive have been mischaracterized as guidelines which makes a very clear echelon of responses, which the guidelines do not.

A news report by the far left La Jornada said last month in its report on the new directive, the report ordered Mexican Army personnel that use of force is required only when all other means have failed.  The report does not say that at all.

The report itself makes very clear that the number one priority in considering the use of force is support of civilian law enforcement and the mission.

The directive itself says, "Fulfil a duty to act in support of civil authorities or the application of the Federal Firearms and Explosives."

Under those conditions when forces observe a suspect with a weapon, it is unlikely detail commanders beyond indicating their very presence will order anything other than to open fire on those individuals who are armed.

However, one specific instance in which use of lethal use of force is proscribed is firing into civilian vehicles.  Several instances of that act have resulted in the deaths of civilians.  One involved a passenger bus which had run an army checkpoint.  Another involved a road pursuit and an attempt by the army detail commander to end the pursuit by shooting out the vehicles tires, which ended tragically.

The translation reads: [Soldiers] will not trigger firearms against persons when they try to evade, flee or to escape, unless they make serious aggressive acts of resistance, or the order to stop or prevent their escape, if they resist authority and represent an imminent danger death or serious injury, and less extreme means are insufficient to achieve these objectives.

The translation goes on: Only if the driver of a vehicle or crew of a vessel does not obey the indication to stop running or navigation, and this action involves a real and imminent threat that will cause grave harm, use of force as provided in this Directive is authorized.

Under those rules, a suspect either firing a weapon, or showing a weapon would be sufficient reason to open fire on a civilian vehicle.

One example is of a bus running an army checkpoint in Guerrero state in 2009.  Versions of the shooting diverge.  Human rights activists have said the victim, Bonfilio Rubio Villegas, was shot as he slept in the back of a bus that had just left a military checkpoint following a heated exchange between the driver and the checkpoint commander.  The victim had been noted, according to human rights activists, by the site commander because he was wearing military boots, which is an indicator the suspect was involved with drug running or with radical armed groups which still operate in Guerrero.

SEDENA's version is that the bus attempted to flee the checkpoint and soldiers opened fired on the vehicle.  Although as many as 40 other individuals were aboard the bus at the time, only Rubio Villegas was killed.  Soldiers also found several packages of marijuana near where Rubio Villegas was killed.  Human rights activists say the drugs were planted there to justify the shooting, a charge which SEDENA obviously denies.

Under the new rules, a passenger bus attempting to flee would not come under fire, but would pursued and ordered to a halt.  If sufficient warning was disregarded and the detail or site commander determined the situation was for risk for further harm, soldiers would be ordered to open fire.

As matters stand, even though it was not strictly against the law at the time to open fire on the bus, the order to fire on a passenger bus was questionable.  The new rules will temper those orders for subsequent similar incidents.  The good news for soldiers in the field is that  the new rules will probably not further endanger them if their targets return fire.

The second incident took place in 2010 in Nuevo Leon. In that incident, a Mexican Army road patrol attempted pursuit of a family in a sedan which was speeding along a highway near Monterrey, refusing to halt after being signalled by the detail commander.  In that incident, the detail commander ordered to driver to maneuver his truck to an angle where the commander could get a shot of the vehicle's tires.

When the commander opened fire on the vehicle, so did three other riflemen, killing two and wounding four others.  The site commander subsequently attempted to falsify his report that the vehicle had run a military checkpoint,  a fact which this writer originally reported.

Under the new rules, the detail commander has to make the call whether attempting to disable the vehicle by gunfire is a sufficient means of ending the pursuit.  In this instance, opening fire on a vehicle in which no gunfire has originated, nor where any weapons were observed, would be a bad shoot and subject the commander and anyone else who fires on the vehicle to criminal charges.

The final part of the directive deals with what commanders are expected to do in the event of a shooting.  The orders are what commanders are under whenever they encounter violent suspects in the field. They must secure the scene and any evidence for civilian authorities as well as military prosecutors. The last item specifically says that military prosecutors in the event they determine a bad shooting must denounced the suspects to a competent authority. That final requirement fulfils a long standing demand that shootings involving civilians must be prosecuted by civilian authorities, even if they involve military personnel.

That may also change, if Mexican legislators change the Mexican Code of Military Justice, which would make murder one of the crimes against civilians solely prosecutable by military prosecutors.

Chris Covert writes Mexican Drug War and national political news for Rantburg.com

© Copyright by Chris Covert
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