Vous êtes sur la page 1sur 3

ADVISORY SERVICE

ON INTERNATIONAL HUMANITARIAN LAW


____________________________________

The use of force in law enforcement operations

States often face situations in which their officials have to use force to maintain or restore public security, law and order in armed
conflicts or situations of violence that do not meet the threshold of applicability of international humanitarian law (IHL). Force in law
enforcement operations can be used by persons who exercise State powers, including in particular police and military forces; such
use of force is mainly governed by international human rights law and domestic law. The use of force in law enforcement operations
has to be strictly regulated by States. Notably, States must ensure that national legislation is brought into conformity with their
international obligations and sanction their officials if they have used force in an excessive or otherwise arbitrary way.

What is the use of force? International human rights law without violating the right to life: when
absolutely necessary (a) in defence of
When conducting operations to The most relevant right as regards the any person from unlawful violence; (b)
maintain or restore public security, law use of force in law enforcement in order to effect a lawful arrest or to
and order – namely law enforcement operations is the right to life 1. This right prevent the escape of a person lawfully
operations – State officials can resort to cannot be derogated from. 2 detained; (c) in action lawfully taken for
a variety of measures, including, under the purpose of quelling a riot or
stringent conditions, the use of force. In most human rights treaties, what is insurrection (Art. 2).
The term “use of force” is often defined prohibited is a deprivation of life that is
under national law. However, it is “arbitrary”, meaning not in compliance Depending on the circumstances, other
generally understood as any physical with international rules and standards rights and prohibitions might be affected
constraint imposed on a person, pertaining to the right to life, or with as a consequence of the use of force
ranging from physical restraint by hand domestic law. This implies that there against persons, for instance, the right
or with a restraining device to use of are circumstances under which the use to freedom of expression and the right
firearms or other weapons. Force may of lethal or potentially lethal force by to peaceful assembly.
be used only if other means remain State officials is authorized. The
ineffective or without any promise of European Convention on Human Rights The UN Code of Conduct for Law
achieving the intended result. This is an is the only human rights treaty that Enforcement Officials (CCLEO) of 1979
important consideration when resorting mentions in an exhaustive way the and the UN Basic Principles on the Use
to the use of lethal or potentially lethal circumstances under which the use of of Force and Firearms by Law
force in order to respect the right to life. force can result in a deprivation of life Enforcement Officials (BPUFF) of 1990
provide further guidance on the use of
Which legal regimes govern the use force in law enforcement operations.
1
of force in law enforcement Universal Declaration of Human Rights, Art. According to BPUFF, “[e]xceptional
3; International Covenant on Civil and
operations? circumstances such as internal political
Political Rights, Art. 6; American Convention
on Human Rights, Art. 4; European instability or any other public
The use of force in law enforcement Convention on Human Rights, Art. 2; African emergency may not be invoked to
operations is mainly governed by Charter on Human and Peoples’ Rights, Art. justify any departure from these basic
4; Arab Charter on Human Rights, Art. 5.
international human rights law, which is 2 principles” (Principle 8).
The only exception is the European
applicable at all times (in peacetime as Convention on Human Rights, in which the
well as during armed conflicts), and by right to life is considered as non-derogable Even if constituting soft law standards,
domestic law, as well as, in armed “except in respect of deaths resulting from these instruments have been widely
lawful acts of war” (Art. 15(2)). So far, this
conflicts, by a few IHL provisions. used by different human rights bodies to
provision has had no real impact in practice
since no European State has ever derogated determine if the use of force was
from the right to life and the European Court arbitrary in a particular case.
of Human Rights has never resorted to this
exception proprio motu.
International humanitarian law administrative framework must Principles of (military) necessity,
regulate all circumstances proportionality and precaution also
Law enforcement operations are also surrounding the use of force (who, exist in the rules governing the conduct
carried out during armed conflict, when and how). of hostilities under IHL, but they have
outside or alongside the conduct of distinct meanings and operate
hostilities. 3 While the rules governing • Necessity (CCLEO, Art. 3). “Law differently.
the conduct of hostilities do not apply enforcement officials may use force
to such operations, IHL does contain a only when strictly necessary […]” In which situations can firearms and
few provisions on the use of force in The use of force in law enforcement other forms of lethal or potentially
law enforcement operations: operations has to be an exceptional lethal force be used in law
measure of last resort in order to enforcement operations?
• Article 43 of the Hague Convention pursue a legitimate aim. Only the
IV of 1907 provides that the lowest amount of force necessary According to Principle 9 of the BPUFF,
Occupying Power “shall take all […] may be applied. Whenever possible, resorting to firearms is authorized
measures […] to restore, and there must be a differentiated use of exclusively in the following situations,
ensure […] public order and safety force (e.g. verbal warning, show and only when less extreme means are
[…]”. force, “less-than-lethal” force, lethal insufficient to achieve these objectives:
• In the same vein, Article 42 of the force).
Geneva Convention III relative to • Self-defence or defence of others
the Treatment of Prisoners of War of • Proportionality (BPUFF, Principle against the imminent threat of death
1949 establishes that the use of 5(a)). The degree of force used and or serious injury;
weapons against those “who are the potential harm it can cause must • Prevention of the perpetration of a
escaping or attempting to escape, be strictly proportionate to the particularly serious crime involving a
shall constitute an extreme seriousness of the offence and the grave threat to life;
measure, which shall always be legitimate objective to be achieved. • Arrest of a person presenting a
preceded by warnings appropriate danger of perpetrating such a crime
to the circumstances.” • Precaution (obligations pertaining to and resisting authority, or prevention
the planning and control phase of of his or her escape.
Domestic law operations). Law enforcement
operations have to be carefully In any event, intentional lethal use of
In accordance with the principle of planned in order to avoid, as much firearms may only be made when
legality (see below), provisions on the as possible, the use of force and to strictly unavoidable in order to protect
use of force in law enforcement minimize the risk to bystanders life.
operations are also to be found in (BPUFF, Principle 3). State officials
domestic legal orders. These can take a shall endeavour, to the greatest According to the BPUFF (Principles 14
variety of forms within the domestic extent possible, to limit damage and and 16), the use of firearms while
legal and administrative framework injury, and respect and preserve policing unlawful and violent
related to security (e.g. laws, military human life (BPUFF, Principle 5(b)). assemblies and controlling persons in
and police manuals, rules of Training, weapons and equipment custody or detention is also limited to
engagement, standard operating must be given accordingly (BPUFF, the above-mentioned situations.
procedures), provided they respect Principle 2).
international obligations and standards. Although the BPUFF principles refer
• Accountability (BPUFF, Principles 7, only to use of firearms, Principle 9 is
Which principles and requirements 22-24). Use of force that causes regularly mentioned in international
govern the use of force in law death or injury must be reported case-law relating to arbitrary
enforcement operations? promptly. Any excessive or deprivation of life, and the use of
otherwise arbitrary use of force has other forms of lethal or potentially
The following principles and to be properly investigated and, lethal force should be similarly limited.
requirements govern the use of force in when required, punished as a
law enforcement operations: criminal offence and/or incur Whether a use of force constitutes
disciplinary measures depending on lethal or potentially lethal force does
• Legality (BPUFF, Principle 1). the seriousness of the case. Both not only depend on the weapon used.
States must adopt and implement superior officers and State officials The outcome of the use of any
rules and regulations on the use of under their command can be held weapon will depend on a combination
force by their officials. The legal and responsible. of factors, in particular the technical
characteristics of the weapon (its
The Inter-American and European mechanism of injury) and the context
3
For a better understanding of the interplay Courts of Human Rights and the of its use. The context includes the
between the conduct of hostilities and law
enforcement paradigms during armed United Nations (UN) Human Rights manner and circumstances in which
conflict, see the ICRC report of the 2013 Committee have notably developed an the weapon is used and the particular
expert meeting on this topic, available at: extensive jurisprudence fleshing out all vulnerabilities of the victim(s).
http://www.icrc.org/eng/assets/files/publicatio
ns/icrc-002-4171.pdf. these principles and requirements.
A weapon described as “less-than- or injury (BPUFF, Principles 22-24).
lethal” or "less lethal" can kill in a To be effective, these investigations
particular circumstance (e.g. a plastic must be conducted promptly and in
bullet at close range, or riot control an independent and impartial
agents in enclosed spaces) in the manner, and must involve the
same way that a weapon described participation of the victims and/or
as “lethal” can have a non-fatal their next of kin. They also have a
outcome. right to remedy and reparation.
• Review of training programmes and
What do States need to do at the operational procedures in the light of
national level to ensure that the use particular incidents (BPUFF,
of force in law enforcement Principle 20).
operations respects international
rules and standards?

In order to respect international rules


and standards governing law
enforcement operations, States must
take specific measures before and
after the use of force:

Preventive measures before resorting


to the use of force

• Enactment of a legal and


administrative framework on the use
of force consistent with international
rules and standards (BPUFF,
Principle 1).
• Selection, training and capacity-
building of State officials in
accordance with international rules
and standards, including teaching of
police ethics, human rights and
alternatives to the use of force
(BPUFF, Principles 19-21).
• Provision of State officials with
adequate equipment, including
weapons and ammunition, as well
as self-defensive equipment and
alternative weapons to firearms to
ensure a differentiated use of force
(BPUFF, Principle 2).

After the use of force

• Provision of medical and


psychological assistance to injured
or affected persons, including State
officials (BPUFF, Principle 5(c)).
Assistance must primarily be given
according to needs, taking into
account vulnerable groups such as
children and women, among others.
• Notification of the relatives of the
injured or affected persons (BPUFF,
Principle 5(d)).
• Provision for a system of reporting
on the use of firearms (BPUFF,
Principle 11(f)).
• Effective reporting and investigation
of any use of force resulting in death

03.09.2015