Use of force and firearms by Law Enforcement Officials

International Human Rights Law Aspects

 

By Mervat Rishmawi[1]

Independent Human Rights Consultant

 

The extent, means and legality of use of force has been a major issue that impacted the lives of millions of Arabs and others in the Middle East and North Africa in the last few years, let alone the last months. Concerns about this have culminated in the use of lethal force in the last year during the so called “Arab Spring” which has led to the loss of thousands of lives across several countries. Such force is used against persons aspiring to live decent lives of dignity, demanding their basic rights. People have expressed such demands mainly through assemblies and gatherings, the vast majority of which being not violent. However State power is used to eliminate political opponents leading masses of protesters. Syria is still witnessing the loss of tens of lives every day, as the regime continues to repress with brutal force simple demands for democracy and protection of human rights.

Therefore, while not an armed conflict as seen in the eyes of international law, the impact of the use of lethal force and the associated grave violations of human rights is resulting in a very critical situation that is normally associated with an armed conflict situation. This is how serious the situation is and must be seen, regardless of the legal qualification of the use of force.

The use of force and the role of policing must therefore be seen in conjunction with a host of human rights. It is very dangerous that violations of such rights are regarded in isolation from each other, resulting in a situation where the compounded impact is therefore not considered in its severity.

It is true that governments have an obligation to maintain public order, and they bear the ultimate responsibility for protecting individuals under their jurisdiction, including those participating in public assemblies and exercising their right to freedom of expression. Force sometimes has to be used in such situations, but the use of force is not unlimited or unregulated under international law. Use of force, especially lethal force, must follow a very strict regime to ensure that it does not lead to human rights violations including illegal injury and loss of life.

In situations of assemblies or internal disturbances, use of force is regulated by international guidelines and principles which deal with various situations, including detention, protection of life, riots, and assemblies whether such assemblies are peaceful or violent, legal or illegal. The purpose of use of force in such situations must always be to protect the right to life, liberty and security of persons. In any event, law enforcement officials, in carrying out their duty, must as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result. (Principle 4 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials)

This article does not aim to address use of force in the context of all the above situations. It focuses primarily on the use of force and fire-arms in the context of assemblies. The article also does not aim to be a thorough analysis, but provides a general overview of selected relevant provisions in international regulations and relevant interpretation by expert bodies.

It should be noted that under international law, law enforcement officials are allowed to use force in the context of armed conflict, be it international or non-international, and in situation of assemblies and gatherings. It is often the case that use of force in the context of internal disturbance is confused with use of force in the context of non-international armed conflict. These are two different and distinct situations and international law deals with them differently.


The threshold: the difference between non-international armed conflict and internal disturbances


It is not always that internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature reach the threshold of “protracted armed violence”, which is required for the emergence of a non-international armed conflict. In . in cases of riots and disturbances which do not reach the threshold of armed conflict, only international human rights law, especially standards on use of force and firearms, role of law enforcement officers, and general human rights law and standards, apply. Humanitarian law does not apply. If disturbances and violence reach  a certain threshold to qualify as an armed conflict, international humanitarian law together with human rights law apply.

In its report on Libya, the UN Human Rights Council’s Commission of Inquiry noted that jurisprudence has developed defining non-international armed conflict as whenever there is

“protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” Therefore, armed conflict of non-international nature requires that groups are involved as parties to the conflict,  and groups are armed and organised. A situation which turns violent but which does not involve an organised armed group, therefore, is not an armed conflict. The Commission found that in determining whether a non-international armed conflict exists in Libya, it had to consider “the intensity of the conflict, the extent of relevant control of territory and the nature of the armed group in opposition to the Government. Examining the nature of the armed group involves considering such factors as whether there is a hierarchical command structure, the extent to which it is able to carry out organized operations (e.g. organises into zones of responsibility, means of communication); discipline systems, the nature of logistical arrangements and how the group presents itself (e.g. whether it is capable of involvement in negotiations).”[2] The Commission therefore concluded that a non-

international armed conflict and a “co-existing international armed conflict”, which began with the airstrikes to enforce the no-fly zone imposed by the Security Council through Resolution 1973.[3]

In the situation of Syria, on the other hand, the Commission of Inquiry stated that it “was unable to verify the level of the intensity of combat between Syrian armed forces and other armed groups. Similarly, it has been unable to confirm the level of organization of such armed groups as the Free Syrian Army.”[4] Therefore, the Commission concluded that it will not apply international humanitarian law to the events in Syria since March 2011.

Therefore, it is clear from this that the level of violence and loss of life is not in itself an adequate reason to qualify a situation as an armed conflict and therefore triggering the application of international law of armed conflict (international humanitarian law).

International humanitarian law aims to protect the victims of armed conflict and to regulate the conduct of hostilities. It requires that those involved in the fighting must make a basic distinction between combatants, who may be lawfully attacked, and civilians, who are protected against attack unless and for such time as they directly participate in hostilities. Therefore, in armed conflict, force is allowed to be used against those who are directly participating in the conflict. International humanitarian law also restricts the methods and means of warfare that are used during the hostilities in order to minimise harm.


Purpose of role of Law Enforcement Officials

In this article, the definition of law enforcement officials is that used in the Commentary on Article 1 of the UN Code of Conduct for Law Enforcement Officials, which states:

“( a ) The term "law enforcement officials", includes all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest or detention.

( b ) In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services.

The UN Code of Conduct for Law Enforcement Officials (the Code of Conduct) provides in its first two articles a clear explanation of what the purpose of role of law enforcement officials should be and how they must carry their duties. It states that “Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession.” (Article 1)

There is a corollary between the role of law enforcement officers and the respect and protection of human rights. In the delivery of their duties, law enforcement officers have the duty to ensure respect for human rights, as is stressed by Article 2 of the Code of Conduct: “In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.” The Human Rights Committee, responsible for overseeing the implementation of the International Covenant on Civil and Political Rights (ICCPR) explains that obligations under international human rights treaties are binding on every State Party as a whole. Therefore, all branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level - national, regional or local, have responsibility to respect and ensure human rights.[5] The Committee further clarifies that the executive branch of the government may not seek to relieve itself from responsibility.[6] The Committee reminds states of the principle contained in article 27 of the Vienna Convention on the Law of Treaties, according to which a State “may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. Therefore, law enforcement officers must act at all times in a way that is consistent with international law.

In its comment on Article 6 of the ICCPR on the right to life, the Human Rights Committee stresses that States must “prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.”[7]


Use of force and firearms in assemblies and demonstrations


It is clear that there are times when law enforcement officers have to resort to use of force and firearms in situations other than armed conflict. However, law enforcement officials, in carrying out their duty, must, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result. (Principle 4 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials) The Special Rapporteur on Extrajudicial Executions reminds states that it is a well-established fact that the handling of crowd situations needs to be planned well in advance. This is because once control of the situation lapses, it is difficult to turn it around.[8]

As clarified in the Code of Conduct for Law Enforcement Officials, “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” (Article 3) The Commentary on this Article states that “This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.” The commentary adds that this provision cannot be interpreted to authorize the use of force in a way that is disproportionate to the legitimate objective to be achieved. The Special Rapporteur on Extrajudicial Executions clarifies, therefore, that the use of force must be both proportionate and necessary. He stresses that “while ‘proportionality’ requires that the benefits attached to the objective pursued should outweigh the damage that would be caused through the violence, ‘necessity’ demands that the lowest possible level of force necessary to achieve a legitimate objective should be used.”[9]

The Basic Principles on the Use of Force and Firearms provides that “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” (Principle 9)

In the context of assemblies, which may be legal or illegal, peaceful or violent, planned or spontaneous, the use of force, often lethal force, is one of the main threats to right to life, freedom of assembly, in addition to violations of many other rights. As clarified by the Special Rapporteur on Extrajudicial Executions, spontaneous demonstrations sometimes occur where there is no opportunity for prior notice or to apply for a permit. If there is indeed no such opportunity, the assembly should be regarded as legal and should therefore be protected.[10] While only “peaceful assembly” is recognised by Article 21 of the ICCPR, however, “the individual does not lose the protection of the right when sporadic or isolated violence occurs in the crowd”.[11] In any case, as stressed by the Commission of Inquiry into the events in Syria, “isolated instances of violence on the part of demonstrators do not affect their right to protection as enshrined in international human rights law.”[12]

The Basic Principles on Use of Force and Firearms clarify that “In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.... In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in principle 9.” (Principles 13 and 14) The Special Rapporteur on Extrajudicial Executions helpfully clarifies that “In principle shooting indiscriminately into a crowd is not allowed and may only be targeted at the person or persons constituting the threat of death or serious injury.... The use of firearms cannot be justified merely because a particular gathering is illegal and has to be dispersed, or to protect property.”[13]

Prevention of violations

Impunity for violations committed by law enforcement officials in the course of their duty is one of the main reasons for the continued repeat of violations. Therefore, mechanisms must be put in place to report on cases where violations may have occurred, to investigate the events independently and promptly, and to provide reparation for victims and their families, including through the provision of compensation. In every instance in which a firearm is discharged, a report must be made promptly to the competent authorities.[14]

When injury or death is caused by the use of force and firearms by law enforcement officials, they must report the incident promptly to their superiors. Governments must ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law. (Principles 6 and 7 of the Basic Principles) “Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.” (Principle 23 of the Basic Principles) Not only those who directly engaged in the use of force must be held to account. Superior officers must also be held responsible “if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.” (Principle 24 of the Basic Principles)

Once it is established that a violation has occurred, it is essential that victims of the violations are given reparation, including through compensation and rehabilitation.

As was strongly argued by the Special Rapporteur on Extrajudicial Executions, “Common measures aimed at curbing police killings, such as increased police training, will be insufficient if they are not implemented in conjunction with attempts to secure accountability. Impunity can result from poorly structured and ineffective police internal affairs mechanisms, non-existent forensic capacity, inadequate witness protection programs for those reporting abuse, inept criminal justice systems, and deficient commissions of inquiry. One crucial factor contributing to impunity that stands out from the Special Rapporteur’s many investigations is the lack of any, or any effective, dedicated external civilian oversight of the police force.”[15]

It is essential therefore to ensure effective external civilian oversight of the work of the police and law enforcement; to ensure that police are not left to investigate themselves by themselves, which contributes to situations where victims are often reluctant even to report abuse directly to police, for fear of reprisals, or simply because they do not believe a serious investigation will result.[16]


The gravity of the violations: Crimes against humanity

It is important to recognise that the excessive use of force may lead to grave violations of human rights which may arise to a level of gravity that they qualify as crimes against humanity, which may occur irrespective of the existence of an armed conflict and the application of international humanitarian law. This would also apply to unlawful killings during demonstrations. According to article 7 of the Rome Statute of the International Criminal Court, “crimes against humanity” include acts such as murder, torture and unlawful imprisonment when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

The Commission of Inquiry on the events in Syria concluded that members of the Syrian military and security forces have committed crimes against humanity in 2011. The commission of inquiry found that “the scale of these attacks against civilians in cities and villages across the country, their repetitive nature, the levels of excessive force used consistently by units of the armed forces and diverse security forces, the coordinated nature of these attacks and the evidence that many attacks were conducted on the orders of high-ranking military officers all lead the commission to conclude that the attacks were apparently conducted pursuant to a policy of the State.”[17] Therefore, the Commission concluded that “The sheer scale and consistent pattern of attacks by military and security forces on civilians and civilian neighbourhoods and the widespread destruction of property could only be possible with the approval or complicity of the State.”[18] The commission expressed grave concern that crimes against humanity of murder, torture, rape or other forms of sexual violence of comparable gravity, imprisonment or other severe deprivation of liberty, enforced disappearances of persons and other inhumane acts of a similar character have occurred in different locations in the country since March 2011.[19]



[1] Mervat Rishmawi is a Palestinian human rights consultant with special interest and expertise in the Middle East and North Africa. She worked previously as the Legal Advisor to the Middle East and North Africa at the International Secretariat of Amnesty International. She currently provides advice and carries out strategic analyses and evaluation with the UN and a number of national, regional and international organisations. More information is available on www.mervatrishmawi.co.uk

[2] See Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, A/HRC/17/44, 1 June 2011, paras 63 and 64.

[3] Ibid, paras 63-66.

[4] Report of the independent international commission of inquiry on the Syrian Arab, A/HRC/S-17/2/Add.1, 23 November 2011, para. 99.

[5] Human Rights Committee, General Comment No. 31: “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant” (CCPR/C/21/Rev.1/Add. 13), 26 May 2004, para. 4.

[6] Ibid.

[7] Human Rights Committee, General Comment no. 6: the right to life, 30 April 1982, para. 3.

[8] Report of the Special Rapporteur on extrajudicial, summery or arbitrary executions, A/HRC/17/28, 23 May 2011, para. 22.

[9] Report of the Special Rapporteur on extrajudicial, summery or arbitrary executions, A/HRC/17/28, 23 May 2011, para. 49.

[10] Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/17/28, 23 May 2011, para. 40.

[11] Ibid, at para 42.

[12] Report of the independent international commission of inquiry on the Syrian Arab Republic, A/HRC/S-17/2/Add.1, 23 November 2011, para. 86.

[13] Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/17/28, 23 May 2011, para. 61.

[14] See commentary in paragraph C on Article 3  of the Code of Conduct, and Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/17/28, 23 May 2011, para. 63.

[15] Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions: Study on Police oversight mechanisms, A/HRC/14/24/Add. 8, para 2.   

[16] Ibid.

[17] Report of the independent international commission of inquiry on the Syrian Arab Republic, para. 102

[18] Ibid, para 107.

[19] Ibid, para. 108.




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