Proportionality: the means and methods used must be consistent with the presence of
resistance and the present danger.327 Thus, agents must apply standards of differentiated and
progressive use of force, determining the degree of cooperation, resistance or aggression by
the target of the intervention so as to employ negotiating tactics and either restrain the use
of force or adopt it, as required.328
266. Indeed, while the Court has adopted these standards for the use of force in earlier
cases, it has equally held that the use of force must be examined through the lens of all the
surrounding circumstances and context of the facts. 329 The Court finds in the case at hand that
three particular circumstances must be taken into account to determine what criteria should
apply in analyzing the State’s obligations on the use of lethal force in Operation Chavín de
Huántar in light of Article 4 of the American Convention: one, the presence of a noninternational armed conflict; two, a context in which force was used against members of the
MRTA, that is, in the framework of a hostage rescue operation, and three, unlike the situation
in earlier cases, the alleged victims were not civilians, but members of the MRTA who had
taken an active part in the hostilities.
(i) Applicability of international humanitarian law
267. The parties and the Inter-American Commission have agreed that the Court should
interpret the scope of the provisions of the American Convention in the instant case in light of
the applicable provisions of international humanitarian law, considering that the facts took
place in the context of a non-international armed conflict. Based on the final report of the Truth
and Reconciliation Commission of Peru (supra para139), the Court has recognized in previous
Peruvian cases that, starting in the early 1980s and until the end of 2000, the country
experienced a conflict between armed groups and members of the police and the military
forces.330
268. One of the armed groups in the Peruvian conflict was the MRTA, which entered the
armed struggle in 1984 (supra paras. 140 and 141). The Truth and Reconciliation Commission
of Peru said specifically:
The MRTA sought to distinguish itself from the Shining Path, or PCP SL, organizing a
“guerrilla army”, the self-styled Tupacamarista People’s Army, following the conventional
Latin American model of guerrilla warfare. It organized columns of uniformed fighters
equipped with weapons of war, gathered in camps outside of population centers.
Alongside this military structure, it also had specialized detachments called “Special
Forces” that took action in urban and rural areas starting in the late 1980s. In its armed
actions and treatment of prisoners, it claimed to follow the guidelines of the Geneva
Conventions.
[…]
In the late 1980s and early 1990s, the MRTA was facing an environment unfavorable to
its aspirations. […] The MRTA was also facing its own internal crisis. The MIR VR broke
away in 1992. The chief MRTA leaders had been caught by the police, while other
327
Cf. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Principles No. 5 and 9.
328
Cf. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Principles No. 2, 4, 5
and 9.
Cf. Case of Montero Aranguren et al. (Detention Center of Catia) v. Venezuela, supra, para. 82, and Case of
Zambrano Vélez et al. v. Ecuador, supra, para. 89.
329
Cf. Truth and Reconciliation Commission, Informe Final, 2003, volume I, chapter 1.1, Periods of violence,
pp. 54 and 55, available in Spanish at www.cverdad.org.pe/ifinal/index.php. See also, Case of the Miguel Castro
Castro Prison v. Peru, supra, para. 197.1, and Case of Espinoza Gonzáles v. Peru, supra, para. 51.
330