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
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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 expertise to assist Amnesty International in its preparation.
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- nizational and other matters.
The following experts shared their great expertise, and provided valuable input and feedback during several review phases: Ian Chappell, Anita Danka, Kathleen Hardy, John-Erik Jensen, Jan Swaan, and Gary White.
There were many other people who contributed by giving feedback, input on specific questions or by sharing examples and reference documents.
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 country legislation, operational procedures and manuals and to check on their validity.
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
“The means may be likened to a seed, the end to a tree; and there is just the same inviolable connection between the means and the end as there is between the seed and the tree. We reap exactly as we sow.” [M. K. Gandhi, Hind Swaraj. Chap. XVI]
I. Background of these Guidelines
Universal Declaration of Human Rights Article 3 “Everyone has the right to life, liberty and security of person.” 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 arbitrarily deprived of his life.” Article 9 “1. Everyone has the right to liberty and security of person.”
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 force and firearms.
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. Human rights must be upheld whenever law enforcement agents exercise their power to use force and firearms.
In this regard, it is important to keep in mind the extremely challenging nature of the law enforcement profes- sion: in their daily duties, law enforcement officials face a wide variety of situations, which sometimes require instantaneous decisions, with difficult judgements to be made about the appropriate response to the situa- tion, often in highly stressful and even dangerous circumstances. In such situations they need to be guided, instructed and supported by a legal and operational framework that enables them to make the best possible decisions. 10 | AMNESTY INTERNATIONAL | USE OF FORCE
This framework should therefore be perceived as a source of support (and not as a burden) in the difficult situ- ations law enforcement officials face, in providing: – a firm legal ground on which to operate, – operational instructions and guidance helping to make appropriate decisions, and – adequate equipment and training to enable law enforcement officials to put these instructions into practice.
The creation of such a framework is ultimately the responsibility of the government and the command leader- ship of the law enforcement agency. They must ensure effective, lawful and human rights compliant policing. Moreover, it is an essential element of the state’s obligation to guarantee the right to life and to physical integ- rity of every person.
Nadege Dorzema et al. v. Dominican Republic (Series C No. 251), Inter-American Court of Human Rights (2012) “80. This Court has previously established that the State has an obligation to adapt its domestic legisla- tion and ‘to ensure that its security forces, which are entitled to use legitimate force, respect the right to life of those who are under its jurisdiction.’ The State must be clear when defining domestic policies on the use of force and pursue strategies to implement the Principles on the Use of Force and the Code of Conduct. Thus, agents should be provided with different types of weapons, ammunition, and protective equipment that enable them to adapt the elements used in their reaction proportionately to the incidents in which they have to intervene, restricting the use of lethal weapons that can cause injury or death as much as possible. 81. The State must also train its agents to ensure that they know the legal provisions that permit the use of firearms and are properly trained so that if they have to decide on their use, they have the relevant criteria do so.”
II. The purpose of these Guidelines
The legal and operational framework to be established must ensure that due regard is given to the rule of law and human rights in the exercise of the police power to use force and firearms. These Guidelines aim to provide a comprehensive overview of the considerations national authorities should take into account when establishing such a framework – covering both the indispensable legal base to be established domestically and the broad range of operational instructions and practical measures to be taken by law enforcement agencies to ensure that daily law enforcement practice is carried out in a lawful, human rights compliant and professional manner.
They were developed on the basis of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (named: “Basic Principles” hereafter). These Basic Principles were prepared by a range of experts from the area of law enforcement, including police officials, and were discussed in a series of pre- paratory meetings and consultations between 1987 and 1990 before finally being adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders in Havana, Cuba (27 August to 7 Sep- tember 1990). The General Assembly of the United Nations welcomed the Basic Principles in its resolution 45/121 of 14 December 1990.
Since then, the Basic Principles have become a fundamental reference and guide for those aiming to ensure human rights compliant use of force and firearms by law enforcements officials, in particular with due atten- tion to the protection of the rights to life and security of person, as expressed in the preamble: INTRODUCTION | 11
Preamble “[…]Whereas a threat to the life and safety of law enforcement officials must be seen as a threat to the stability of society as a whole, […] […]Whereas the Seventh Congress, in its resolution 14, inter alia, emphasizes that the use of force and firearms by law enforcement officials should be commensurate with due respect for human rights, […] […]Whereas it is appropriate that, with due regard to their personal safety, consideration be given to the role of law enforcement officials in relation to the administration of justice, to the protection of the right to life, liberty and security of the person, to their responsibility to maintain public safety and social peace and to the importance of their qualifications, training and conduct, The basic principles set forth below, which have been formulated to assist Member States in their task of ensuring and promoting the proper role of law enforcement officials, should be taken into account and respected by Governments within the framework of their national legislation and practice, […].”
Today, the Basic Principles are an invaluable tool for guidance and assessment of police work and are widely accepted as an authoritative statement of the law.1 They are frequently used as a reference by international courts and other human rights bodies, international institutions and human rights organizations. Amnesty International regularly refers to the Basic Principles in its statements, reports and recommendations. Unfortu- nately, these reports usually have to emphasize the weaknesses in, or lack of, implementation of the Basic Principles.
These deficiencies can be found at various levels: – Inadequate domestic legislation. – Lack of an appropriate operational framework: non-existing or deficient procedures; insufficient planning and consideration for precautions; lack of training and appropriate equipment; insufficient supervision, control and corrective measures; in some (wealthier) countries, there also seems to be a tendency of over-reliance on new law enforcement tools and technical equipment, which are used without sufficient consideration for the standards and requirements established in the Basic Principles, and often their use is only reviewed when major