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Human Rights Watch sent a letter to the Pentagon urging a change to the rules of engagement in drug surveillance flights with Peru.

Despite the rhetoric of a “war on drugs," the effort to curb narcotics trafficking is not war; it is law enforcement, and should be guided by law enforcement standards. Without a probable cause showing imminent violence, suspects cannot be fired upon as if they were combatants in armed conflict. Yet that is precisely what the Peruvian air force did, to a plane that gave no reason to suspect that it represented a threat of imminent violence, on April 20, 2001. Mere suspicion that it was engaged in narcotics trafficking should not have been enough to open fire.

President George W. Bush
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500

Dear President Bush,

We understand that the Bush Administration is considering resuming joint patrols with the Peruvian air force in pursuit of aircraft that might be involved in narcotics trafficking in the Andean region. Should the U.S. resume such patrols, we strongly urge you to insist on a change in the rules of engagement that led to the tragic shooting down of an airplane transporting an American missionary family in April. We make this recommendation not simply as a matter of prudence but also to avoid U.S. complicity in conduct that is contrary to international law enforcement standards.

As you may know, international law enforcement standards strictly limit the use of lethal force against a fleeing suspect. The use of firearms is permitted only when the suspect poses an imminent threat of violence to law enforcement officials or others. The leading standard in this area is contained in the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which was adopted in 1990 by the Eighth U.N. Congress on the Prevention of Crime and the Treatment of Offenders. Principle 9 prohibits the use of firearms by law enforcement officials except "in self-defense or defense of others against the imminent threat of death or serious injury" or a "grave threat to life," and only when "less extreme means are insufficient." Mere involvement in criminal activity, or flight from apprehension, is insufficient to justify using firearms under Principle 9 unless there are facts to suggest an "imminent threat of death or serious injury." Moreover, Principle 9 proscribes the intentional use of lethal force - the only fair way to characterize shooting at an aircraft - except "when strictly unavoidable in order to protect life."

These international standards closely parallel U.S. domestic law. In Tennessee v. Garner, 471 U.S. 1 (1985), the U.S. Supreme Court ruled: "Where the suspect poses no immediate threat to the [arresting] officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so." Ibid. at 11. Although the Court suggested that this standard might be satisfied by a showing of probable cause that the suspect has already committed a crime of violence, ibid. at 11-12, it clearly is not satisfied by mere suspicion that the suspect is involved in drug trafficking.

The need for clearly stated rules of engagement is particularly important when, as in Peru, military officials have been given policing responsibilities. Despite the rhetoric of a "war on drugs," the effort to curb narcotics trafficking is not war; it is law enforcement, and should be guided by law enforcement standards. Without a probable cause showing of imminent violence, suspects cannot be fired upon as if they were combatants in armed conflict. Yet that is precisely what the Peruvian air force did, to a plane that gave no reason to suspect that it represented a threat of imminent violence. Mere suspicion that it was engaged in narcotics trafficking should not have been enough to open fire.

To avoid repetition of this tragedy, and to ensure that U.S. officials are not complicit in law enforcement activity that contravenes international standards, we urge you to insist that any aerial surveillance of suspected drug traffickers in which U.S. officials are involved refrain from using lethal force in the absence of an imminent threat of violence. We appreciate your attention to this important matter.

Sincerely,

Kenneth Roth
Executive Director

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