Use of Force

USE OF FORCE GUIDELINES FOR IMPLEMENTATION OF THE UN BASIC PRINCIPLES ON THE USE OF FORCE AND FIREARMS BY LAW ENFORCEMENT OFFICIALS August 2015 Amnesty International Dutch Section Police and Human Rights Programme Amnesty International PO Box 1968 1000 BZ Amsterdam The Netherlands T (0031) (0)20-626 44 36 F (0031) (0)20-624 08 89 E [email protected] I www.amnesty.nl All rights reserved. This publication is copyright but may be reproduced by any method without fee for advocacy, campaigning and teaching purposes, but not for resale. The copyright holders request that all such use be registered with them for impact assessment purposes. For copying in any other circumstances, or for reuse in other publications, or for translation or adaptation, prior written permission must be obtained from the publishers, and a fee may be payable. To request permission, or for any other inquiries, please contact [email protected]. Printed in the Netherlands ISBN 978-90-6463-368-3 ACKNOWLEDGEMENTS These Guidelines could not have been produced without the help of the many people who gave their time and expertisetoassistAmnestyInternationalinitspreparation. The main work was carried out by a project team of three people: Anja Bienert (drafting), Maggie Maloney and Sarah Masters (legal and equipment related input, editing and proof reading). Furthermore, Daniela Grosche carried out extensive research and established an impressive database of examples from various countries. Liana Rodrigues did an amazing amount of work in carrying out additional research, checking upon the validity of documents, and proof reading. Carline Westervelt supported the team in the most valuable manner in orga- nizationalandothermatters. The following experts shared their great expertise, and provided valuable input and feedback during several reviewphases:IanChappell,AnitaDanka,KathleenHardy,John-ErikJensen,JanSwaan,andGaryWhite. There were many other people who contributed by giving feedback, input on specific questions or by sharing examplesandreferencedocuments. From Amnesty International these were: Lawrence Amesu, Ulrike Beck, Covadonga de la Campa, Ahmed Elzobier, Rebecca Emery, Aymeric Elluin, Sofia García, Audrey Gaughran, Avner Gidron, Abdullahi Halakhe, Paul Heath, Papang Hidayat, Mariana Labastie, Cesar Marín, Marek Marczynski, Sabrina Mathani, Justin Mazzola, Maya Pastakia, Ana Piquer, Rasha Abdul Rahmin, Mary Rayner, Oliver Sprague, Rachel Ward, Jan Wetzel, Patrick Wilcken, Rosalia Vega, Katie Wood, Carlos Zazueta (and many others who contributed anony- mously). Outside Amnesty International, we are particularly grateful to Otto Adang, Martin Herrnkind, Christof Heyns, Andre Konze, Luciana Pol, Manuel da Silva, and Omega Research Foundation for their input, feedback and advice. Finally, we received excellent support by the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Cooperation in Europe (OSCE) helping us to find and translate countrylegislation,operationalproceduresandmanualsandtocheckontheirvalidity. CONTENTS INTRODUCTION 9 I. Background of these Guidelines 9 II. The purpose of these Guidelines 10 III. The structure of this document 12 IV. Scope of these Guidelines 14 INTERNATIONAL HUMAN RIGHTS PRINCIPLES GOVERNING THE USE OF FORCE AND FIREARMS 17 I. Legality (legal basis) 17 II. Necessity 18 III. Proportionality 18 IV. Accountability 19 V. Conclusion 20 DEFINITION OF TERMS 21 STANDARDS CITED AND ABBREVIATIONS USED 25 PART ONE | GUIDELINES FOR IMPLEMENTATION OF THE UN BASIC PRINCIPLES ON THE USE OF FORCE AND FIREARMS BY LAW ENFORCEMENT OFFICIALS 29 PART TWO | EXPLANATORY TEXT 41 SECTION A | REQUIREMENTS OF THE DOMESTIC LEGAL FRAMEWORK 43 | 1 | THE USE OF FORCE IN GENERAL 45 1.1 The power to use force (principle of legality) 46 1.2 The need to resort to force and minimum force (principle of necessity) 47 1.3 Prohibition of excessive harm (principle of proportionality) 49 | 2 | LETHAL FORCE 51 2.1 The “protect-life”-principle 53 2.2 Definition of firearm 54 2.3 Threshold for the use of firearms 54 2.3.1 Potentially lethal use of a firearm 55 2.3.2 Intentional lethal use of a firearm 59 2.4 Other forms of lethal force 61 2.5 Protection of third persons 61 2.6 Warning 62 | 3 | ACCOUNTABILITY 63 3.1 Introduction 65 3.2 Criminal investigation process 66 3.2.1 Criminal liability: no exemption 66 3.2.2 Unlawful orders by superior: no defence 68 3.2.3 Responsibility of commanding and superior officers 69 3.2.4 Conduct of criminal investigations 71 3.2.5 Penalties 74 3.3 Disciplinary investigation 75 3.3.1 Purpose and conduct of the investigation 75 3.3.2 Penalties and other measures 76 3.4 Independent, impartial external oversight 76 3.4.1 Purpose 76 3.4.2 Mandate and powers 77 3.5 Reporting and control 79 3.5.1 Reporting 79 3.5.2 Other control measures: Identification of law enforcement officials/body-worn cameras 80 3.6 Victims’ rights 82 3.6.1 Medical assistance and notification of family or friends 82 3.6.2 The right to complain and to be involved in the proceedings 83 3.6.3 Compensation/Reparation 84 CONCLUDING REMARKS ON SECTION A 85 SECTION B | THE OPERATIONAL FRAMEWORK 87 | 4 | THE GENERAL CONCEPT OF THE USE OF FORCE 89 4.1 General considerations 91 4.2 Overarching principle: avoid the need to resort to the use of force 93 4.3 Element of precaution and decision making 95 4.3.1 Planning and preparation 95 4.3.2 Equipment 97 4.3.3 Time and place of intervention 98 4.3.4 Protection of groups or persons at risk 100 4.3.5 Protection of third persons 101 4.3.6 Medical attention and other life saving measures 101 4.4 Differentiated response and minimize damage 102 4.5 Proportionality: retreat must be an option 105 | 5 | THE USE OF LETHAL FORCE, IN PARTICULAR THE USE OF FIREARMS 107 5.1 When to use a firearm 110 5.1.1 Definition of “use of a firearm” 110 5.1.2 Reaffirmation of the “protect-life”-principle 111 5.2 Warnings to be given 113 5.3 How to use a firearm 115 5.4 Protection of third persons 118 5.5 Types of weapons and ammunition 120 5.6 Who may use a firearm: authorization, certification, training 123 5.6.1 Authorization of firearms for different law enforcement duties 123 5.6.2 Certification and training 124 5.7 Control and reporting 126 | 6 | LESS LETHAL WEAPONS: TESTING AND DEPLOYMENT 131 6.1 Terminology and scope of this chapter 132 6.2 Decision making process 133 6.2.1 Definition of operational needs and gaps 134 6.2.2 Testing 135 6.3 Instructions 140 6.4 Training 142 6.5 Piloting, re-evaluation and reporting 144 | 7 | USE OF FORCE IN PUBLIC ASSEMBLIES 147 7.1 General concept: facilitation and dialogue 149 7.2 Unlawful assemblies 152 7.3 Dealing with violence 153 7.4 Tactical options and limits 155 7.4.1 Containment 155 7.4.2 Less lethal weapons 157 7.4.3 Firearms 159 7.4.4 Deployment of military forces 160 7.5 Reporting, accountability and lessons learned 161 | 8 | USE OF FORCE IN DETENTION 163 8.1. General concept 165 8.2 Means of restraint 167 8.3 Use of firearms 169 8.4 Dealing with large-scale violent disorder in detention facilities 170 | 9 | HUMAN RESOURCES MANAGEMENT 171 9.1 Selection 172 9.2 Training 173 9.2.1 Physical training and use of equipment 174 9.2.2 Communication skills 175 9.2.3 Risk assessment and decision making 176 9.2.4 Mental training and stress management 176 9.2.5 First aid training 176 9.2.6 Concluding remarks on training 177 9.3 Coaching and counselling 178 | 10 | SUPERIOR AND COMMAND RESPONSIBILITY 179 10.1 General considerations 180 10.2 Chain of command 181 10.3 Reporting, supervision and control 182 CONCLUDING REMARKS ON SECTION B 188 SECTION C | FINAL RECOMMENDATIONS 189 ANNEX I – BASIC PRINCIPLES (BPUFF) 191 ANNEX II – REFERENCE LIST 195 | 9 INTRODUCTION “Themeansmaybelikenedtoaseed,theendtoatree;andthereisjustthesameinviolable connectionbetweenthemeansandtheendasthereisbetweentheseedandthetree. Wereapexactlyaswesow.” [M.K.Gandhi,HindSwaraj.Chap.XVI] I. Background of these Guidelines Universal Declaration of Human Rights Article 3 “Everyonehastherighttolife,libertyandsecurityofperson.” International Covenant on Civil and Political Rights Article 6 “1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarilydeprivedofhislife.” Article 9 “1.Everyonehastherighttolibertyandsecurityofperson.” In order to be able to fulfil their responsibilities of maintaining law, safety and public order and preventing and detecting crime, law enforcement officials are granted a number of powers, including the power to use forceandfirearms. Explanatory note: The term law enforcement official includes any security forces, including military forces, i who exercise police powers, especially the power of arrest and detention. For reasons of readability, the term ‘police’ is sometimes used, however still in the broader sense to include other law enforcement personnel exer- cising police powers. See also: Commentary a) and b) to Art. 1 Code of Conduct for Law Enforcement Officials. This power is often referred to as the state’s “monopoly of force”, that is, in so far as law enforcement officials are given the power to use force and firearms, this power is granted to them for the fulfilment of their duties to enforce the law. This power therefore comes with obligations and responsibilities, in particular with regard to the human rights that may be affected by the use of these powers and which the state and its agents are obliged to respect and protect. In the end, the legitimacy of and public trust in the law enforcement authority and the state as a whole are at risk when force and firearms are used in an excessive, arbitrary, abusive or oth- erwise unlawful manner.

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