Repressive Approaches
by the States

Niño en prisión

Control and Repression Methods

Control and repression methods are the main approaches States take to insecurity, violence, and organized crime. These policies fail to take into account the structural causes of the problem.

These short-term hardline policies do not meet the mandate of providing comprehensive protection to children and do not take children’s best interests into account; nor are such policies able to provide effective, lasting solutions to the problem.

In the absence of a more comprehensive approach in terms of causes, policies based on control and repression have turned out to be ineffective. They have generated more violence, exacerbated other already existing problems, and in many cases entailed human rights violations and effects that are counterproductive to the rule of law and the legitimacy of institutions.

Militarization of Citizen Security in the Americas

States in the Americas, in general, have shifted toward increasingly militarized police forces and operations, and have assigned internal security tasks to the army to address the challenges posed by the lack of citizen security.

The history of the Americas shows that, broadly speaking, the intervention of the armed forces in internal security matters is accompanied by violations of human rights.

Photo credit: Felipe Dana/AP

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Human Rights Violations

The militarization of citizen security has brought an increase in abusive, indiscriminate, and illegal use of force; cases of cruel, inhuman, and degrading treatment and torture; and an increase in the number of arbitrary detentions, extrajudicial executions, forced disappearances, and other human rights violations.
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Discrimination and Abuse of Certain Groups

Using the armed forces to perform citizen security tasks has, in many cases, increased discriminatory treatment by State security agents towards children and adolescents, especially young males living in regions, neighborhoods, and communities particularly hard-hit by violence and insecurity.
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States of Emergency

Declarations of states of emergency or states of exception to confront organized crime have led to excessive and illegal use of force by State security agents. Such approaches result in numerous human rights violations and are not a sustainable and effective response to address and meet the challenge of violence and crime.
It is improper and dangerous to decree a state of exception and restrict guarantees of the exercise of human rights in order to fight crime. A state of emergency or exception must be limited to situations of extreme gravity.

States must restrict to the maximum extent the use of armed forces to control domestic disturbances, since they are trained to fight against enemies and not to protect and control civilians, a task that is typical of police forces.

I/A Court H. R., Case of Montero Aranguren et Al. (Retén de Catia) v. Venezuela. Judgment of July 5, 2006. Serie C No. 150. para. 78.

Juvenile Justice: Punitive Response and Incarceration

States continue to give priority to punitive and retributive responses through the criminal justice system and deprivation of liberty, locking up juvenile offenders in very precarious conditions and exposing them to situations of abuse and violence in prison.

Offenders rather than Victims

In these contexts, children and adolescents are not seen first as victims of a series of accumulated violations of their rights, but rather as criminal offenders.

Violations of their Rights

For adolescents, coming into contact with the juvenile justice system means being exposed to violations of their rights and undergoing various forms of violence, instead of it affording an opportunity to help restore positive and constructive ties with society.

Lowering the Age of Criminal Responsibility

Countries have tended to criminalize adolescents at increasingly younger ages—in some cases, individuals can be held criminally liable starting at age 12—usually in response to the public’s belief that adolescents’ impunity under criminal law is a factor driving crime. However, experience shows that these measures have not helped to reduce levels of violence and crime in society.

Lengthening Prison Sentences

Incarcerating young offenders for protracted periods of time without appropriate interventions for their rehabilitation is not a proper approach to achieve their social rehabilitation or reduce the likelihood of criminal recidivism in the future. In practice, this might mean that they would be locked up for their entire adolescence—a crucial phase for their personal development, growth, and education.

Overcrowding and Lack of Safety and Health

Detention centers, where conditions are generally alarming in terms of safety, health, and overcrowding, have become factors aggravating adolescents’ vulnerability and exposure to violence and crime.

Pretrial Detention

States are increasingly using pretrial detention, without a conviction having been handed down by a judge. This should be the exception not the rule, but legal reforms in recent years have gone in the other direction, lengthening the allowed periods of detention. Pretrial detention has even been made mandatory for some crimes. And when the law has established maximum periods for pretrial detention, exceptions have been created so the maximum did not apply.

Restorative, Not Retributive, Justice

Adolescents are accountable for the criminal acts they commit, even though they must be held to account differently than adults, precisely because they are going through a process of personal growth and maturation. The logic behind juvenile justice interventions should operate in such a way as to enable adolescent offenders to understand the consequences of their actions, and should facilitate their rehabilitation and reentry into society: a model of restorative, not retributive, justice.

Overextended Judicial System

The prosecution of adolescent offenders, because of their numbers and the limited human and financial resources of the region’s justice systems, has contributed to the worsening of the capacities of the criminal justice system in some countries.

Lack of Social and Educational Programs

Adolescents deprived of liberty have great difficulty accessing suitably tailored social and educational programs that promote their rehabilitation and reintegration into society.

Towards a Model of Restorative Justice

A widespread problem in the Americas is the scant availability of restorative justice measures and alternatives to incarceration for adolescent offenders, geared toward effective rehabilitation and the reintegration of adolescents into society.

Photo credit: Felipe Dana/AP

Deprivation of liberty should be a measure of last resort and for the shortest amount of time that is absolutely necessary.

However, when it comes to adolescents, this continues to be the most common and widely used measure in the Americas.

Newly Defined Offenses: The Crime of “Unlawful Assembly”

Rules governing “unlawful assembly” or “conspiracy” or “belonging to a criminal group” criminalize membership in an organization that is considered criminal in nature. However, defining what is regarded as a criminal organization sometimes poses precision problems when it comes to specifying the elements of the definition.

  • Arbitrary Detentions
  • Constant Exposure to Abuse and Arbitrary Practices
  • Stigmatization

Arbitrary Detentions

In their practical application, these kinds of regulations have created a huge margin of discretionary authority, thereby permitting arbitrary arrests without a prior warrant from a competent authority.

There has been an increase in the number of arbitrary detentions of adolescents, even mass roundups, based on their appearance or the belief that they may belong to a mara or a criminal organization, without any evidence of a crime having been committed.

Constant Exposure to Abuse and Arbitrary Practices

The practical effect is that young people who belong to certain socioeconomic segments remain under constant suspicion of belonging to maras or other criminal organizations; therefore, they allegedly remain in a permanent in flagranti situation and are at risk of being detained by the police.

Stigmatization

Many adolescents are arrested and incarcerated for the mere fact that their appearance, the way they dress, or the presence of a tattoo or a symbol may raise suspicions that they belong to a mara, irrespective of what they were doing and regardless of whether or not there were indications of criminal activity.

Drug Policies from a Children's Rights Perspective

Drug policies pursued in the Americas attempt to deal with the problem by adopting a primarily repressive approach to drugs at every stage in the chain: production, distribution and sale, and in many countries drug use as well. The main tools used to enforce these policies are the criminal justice system and government security forces.

The current approach to drug policy is characterized by:

Increased Violence

The "war on drugs" unleashed in the Americas has involved a prominent role for security forces, in some cases even the military. The large number of firearms in the hands of criminal groups and drug traffickers has led to a progressive militarization of security forces and their operations, triggering spiraling violence and complaints of grave human rights violations by agents of the State. In recent times, a growing number of adolescents have joined the ranks of drug traffickers to defend territory under the control of criminal groups, take part in clashes with State security forces and rival groups, and conduct other activities, such as the transportation and sale of drugs.

Gravity of the Crimes

Regulations governing offenses related to drugs and narcotics do not always distinguish between minor offenses, such as micro-trafficking, and the crimes associated with control over production, distribution, and drug-related money laundering by the leaders of drug-trafficking criminal groups or cartels. Penalties do not adequately reflect the varying degrees of gravity of the offenses committed.

Lack of a Health Perspective

Drug users in the Americas are still dealt with repressively as criminals, rather than being treated in accordance with a public health perspective.

Disproportionality of Penalties

In the Americas in general, there is a disproportionate criminalization of nonviolent drug-related crimes—especially drug dealing and the possession of small quantities of drugs—compared to other serious crimes that involve physical violence and harm to individuals. This has a major impact on adolescents, who are increasingly being used by criminal organizations to transport and sell drugs.

Cooptation through Drug Use and Addiction

The vast majority of children and adolescents engaged in micro-trafficking are themselves drug users. Addicting them to drugs is one of the strategies used to recruit and retain them as dealers. Part of their remuneration is in the form of drugs.

Micro-trafficking

The bulk of government security force efforts have been directed at small fry, that is to say, the micro-traffickers and drug possessors or users, who constitute the most conspicuous and exposed parts of the chain.

Adolescents Deprived of Liberty

Adolescents are deprived of their liberty for violating drug laws, usually for drug use, for possessing small amounts, or for micro-trafficking. A significant number of adolescents in the Americas come into contact with the juvenile justice system because of drug dealing and street sales of narcotics.

Increase in Incarcerations

The emphasis on criminal sanctions as a means of controlling the drug market has led to a significant increase in the number of people incarcerated for drug-related offenses, among them adolescents. Nevertheless, the constant increase in the number of individuals imprisoned on drug-related charges in recent decades has not diminished the production, trafficking, sale, and use of drugs.

Disproportionate Impact

The consequences of current drug policies, in their multiple dimensions, have had a disproportionate impact on the most vulnerable segments of society, who live in poverty and without any safeguard for their rights.

It is incompatible with international human rights law to criminalize and incarcerate children and adolescents who are being used and exploited by adults in drug micro-trafficking and other drug-related activities.

Lack of Gun Control

There are an inordinate number of firearms in circulation in the Americas.

Approximately two-thirds of all homicides committed in the region involve firearms, according to the United Nations Office on Drugs and Crime. Access to firearms is easy due to the large number of legal and illegal firearms in the hands of private individuals and deficient regulations to control and reduce both weapons and ammunition.

Policies on the manufacturing, sale, and possession of firearms and initiatives to root out illegal arms trafficking must be crafted in such a way as to take into account the governance problems and human rights violations that arise as a result of current gun laws.

In many Countries in the Americas, it is Easy to Have Access to Firearms and Ammunition

The laws are so permissive that in some countries there is no limit to the number of guns an individual can own and bear, and the same applies to ammunition. There are also a significant number of unregistered weapons.

United States is the Leading Manufacturer of Guns

The United States is the leading manufacturer of guns, and many of the region's illegal firearms originate in that country. Currently, a large number of legally acquired firearms are being diverted from the United States to illegal markets in Latin America and the Caribbean.

Drug Trafficking

The illegal firearms market in the Americas is closely tied to drug trafficking because drug traffickers generate much of the demand for weapons. There is a direct relationship between levels of violence, firearms, and the drug trade.

Militarization of Citizen Security

The large number of firearms in circulation has led to a gradual militarization of citizen security, on a scale that exacerbates the danger to people's lives and physical integrity.

Private Security

The public's fear and mistrust has triggered a boom in private security guard services. 

There are approximately 3.8 million private security agents in Latin America, compared with 2.6 million police officers.

Market-Driven Product

This privatization of citizen security leads to the separation from the notion of human rights. Citizen security becomes just a market-driven product which only well-off segments of the population can afford.

Poor Regulation

There is poor regulation and supervision of the State in several countries. In particular, in regards to the functions that can be carried out by private security companies, the types of weapons they can use, and about the use of force.

Use of Lethal Force in Self-Defense

Laws in some countries authorize people to use lethal force in self-defense outside their home, without requiring them to retreat as a first reaction.

This leads some individuals to fire at another person based on perceptions and prejudices. These types of laws must adhere to the principles of necessity and proportionality in the use of lethal force in self-defense and must prevent situations of impunity in cases of lethal force used by individuals.

The Ineffectiveness of Hardline Policies in the Americas

Hardline strategies typically have not significantly eased the climate of insecurity. On the contrary, many countries have experienced a resurgence of violence, in addition to reported abuses, arbitrary practices, and human rights violations carried out by State security forces.

Arbitrary Detentions

There are high rates of arbitrary detentions; excessive use of force and lethal force; cruel, inhuman and degrading treatment; and extrajudicial executions and forced disappearances carried out by State security forces, as well as sluggish investigations and high levels of impunity for these types of acts.

Saturation of the Justice System

Eminently repressive policies have revealed and intensified other problems such as the saturation of the justice system. The prosecution of those who have allegedly broken laws, especially micro-trafficking laws, has contributed to a worsening of the capacities of the criminal justice system in some countries because of the limited human and financial resources of the justice systems in most countries in the Americas.

Overcrowded and Precarious Prisons

Another issue that has come to the forefront is overcrowding in the region’s prisons, where conditions are extremely precarious. Nonetheless, the number of inmates continues to grow due to harsher sentencing policies, especially longer sentences for drug-related crimes; the excessive use of pretrial detention; and the characterization of new criminal offenses, such as "unlawful assembly" or “conspiracy,” which has led to an increase in the number of people coming into contact with the prison system.

Photo Credit: Daniel Cima for IACHR

Impunity in the Investigation and Punishment of Crimes against Children and Adolescents

In contexts of insecurity, many homicides and other human rights violations go unpunished. The reasons for that vary and should be addressed by States as a priority.

Lack of Due Diligence

It has been identified that there is a lack of due diligence on the part of the authorities in investigating murders of children and adolescents when the suspected perpetrators are members of organized crime groups—such killings are seen as a "settling of scores” or disputes between criminal groups—or when the victim belongs to a particular social group. The level of impunity that such behavior enjoys clearly contributes to its recurrence.

Victims, their Families, and Witnesses do not Always Report Crimes

Often this is because of a lack of confidence in law enforcement or in the judicial system; or fear of reprisal by the perpetrators of the criminal acts; or because they consider the authorities as corrupt and complicit with organized crime. The families affected are usually of limited means and poorly educated—barriers that make it difficult for them to institute judicial proceedings to seek justice.

The perpetrators of Violent Acts are in some Cases the State's own Security Forces

The levels of impunity that shroud such situations are alarming. There are cases in which public officials have tampered with and in some cases even falsified crime scenes when a State agent has been implicated in illegal or excessive use of force.
There are situations in which State security agents have reportedly assaulted or threatened victims, witnesses, or relatives to dissuade them from making a complaint.

Insufficient Victim Protection Systems

Most victim and witness protection systems have limitations or are not regarded as sufficiently secure by those whom they are supposed to protect.

States should ensure that efforts to guarantee citizen security and address organized crime are carried out within a framework of legality and the rule of law. In that sense, independent, impartial, and effective investigation and prosecution mechanisms are essential. The State's capacity to conduct quality criminal investigations with trained personnel and adequate procedural protocols should be strengthened.

Cover of the IACHR report: Violence, Children and Organized Crime