domestic regulations of a similar nature and content to that mentioned by the State in the
process at hand.111
117. The lack of adequate regulations on the use of force 112 at the time of the facts
determines, in turn, a violation of Article 2 of the American Convention, in relation to Articles
4 and 5 of the same international instrument. Although the Commission and the
representatives did not make a specific claim to this effect, the Court considers it pertinent to
rule in application of the principle iura novit curia, as it has done on other occasions.113
118. Given the various arguments made by the parties and the Commission, the Court finds
it necessary to continue analyzing compliance, in the specific case, with the requirements
established for the use of force. Similarly, regarding the principle of legitimate purpose, the
court reiterates the disparity between the statements provided by the alleged victims and the
military personnel who participated in the operation.
119. According to the State, actions by the military personnel were taken to meet the
objectives of the “anti-crime operation,” undertaken at the request of the fishermen's
organization, which would thereby prove the legitimate purpose. The Court finds that this
requirement cannot be understood as having been fulfilled in the general context of the
operation carried out and the causes that led to its deployment; rather, it must be analyzed
in accordance with the particular circumstances of the events that occurred, since that vision,
in addition to endorsing a priori any use of force in order to "counteract the continuous assaults
and robberies" (as provided for in the order issued by the Port of Esmeraldas Harbormaster 114),
makes it possible to specifically examine (supra para 105) the situation and eventual risk or
threat faced by the agents and the response that they would have offered to it.
120. The Court recalls that, as to the legitimate purpose pursued with the use of force, not
all use of force necessarily implies the use of firearms, since State agents and security forces
may resort to the use of force in multiple situations in which the use of firearms is not
necessary. This may occur, for example, when arresting a person to comply with a judicial
order to prevent the commission of a crime or to maintain public order in acts of a public
nature where there is a congregation of people and it is necessary to guarantee their safety. 115
In the instant case, Ecuador argued that the shots were fired by the agents in an attempt to
repel the attack by the fishermen and to stop the boat. 116 Regarding the first point, it was the
Cf. Case of Valencia Hinojosa et al. v. Ecuador, supra, para. 137.
The Special Rapporteur on extrajudicial, summary or arbitrary executions has stated:
[T]he first step to safeguard the right to life consists in establishing an adequate legal framework for the
use of force by the police, in which the conditions that justify the use of force on behalf of the State are
established and foresee a system for refining responsibilities for cases in which these limits are crossed.
[…] The relevance of domestic legislation in this context lies specifically in the fact that the laws of each
State constitute the first line of defense for the protection of the right to life and, in many cases, in practice
also the last, given the irreversible nature of the violation of that right.
Cf. Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,
Mr. Christoff Heyns, A Doc. A/HRC/26/36, April 1, 2014, paras. 26 and 29. See also, ECHR, Case Makaratzis v. Greece
[GS], No. 56385/99, Judgment of December 20, 2004, paras. 57 and 58.
113
Cf. inter alia, Case of Velásquez Rodríguez v. Honduras. Merits, supra, para. 163, and Case of Cuva Lavy et
al. v. Peru Preliminary Objections, Merits, Reparations, and Costs. Judgment of September 28, 2021. Series C No.
438, para. 149.
114
Cf. Note No. RAD-DIGMER-DOP-P-222000ZNOV-99 of December 7, 1999 issued by the Port of Esmeraldas
Harbormaster (evidence file, volume I, annex 1.h to the Merits Report, folios 29 and 30).
111
112
115
Cf. Case of Roche Azaña et al. v. Nicaragua, supra, para. 60.
According to statements by the military personnel “in command [of] the operation,” the use of firearms in the
particular event that resulted in the death and injuries of the alleged victims occurred when they began pursuit of the
boat , with the aim of impacting the engine in order to “neutralize [it]” and, thereby, achieve the arrest of its
occupants. In other words, at the time the shots were fired, the intended objective of the marines was to stop the
boat and apprehend its occupants.
116
29