USE OF FORCE IN LAW ENFORCEMENT

GENERAL PRINCIPLES

ARREST & DETENTION, SEARCH & SEIZURE

USE OF FORCE AND FIREARMS

SNAS, Nagasaki, 3 – 7 July 2017

John-Erik Jensen,
Regional Delegate for Police and Security Forces
CONTENT
1. Introduction
2. Evolution of conflicts – and victims
3. Human Rights affected by the exercise of
police powers
4. Perspective and differences in IHL / IHRL
5. Arrest & Detention / Search & Seizure
6. Use of Force and Firearms
7. Consequences of abuse of power
General aim of the ICRC police activities

To prevent or reduce humanitarian

consequences of violent situations
Primarily in the context of “Other
Situations of Violence” (OSV)
ASIA active police files
China
ROK
Mongolia
Myanmar
Thailand
Cambodia
Malaysia
Singapore
Indonesia
Timor L’este
Philippines
Fiji
Papua New Guinea Bangladesh Nepal
Australia India Sri Lanka
New Zealand Pakistan
ICRC’s diaogue with police and security forces
 EVOLUTION OF CONTEXTS

IAC OSV
NIAC
NIAC OSV IAC

1914-1918 1939-1945 1990-

CATEGORY OF VICTIMS

90% 90%
60%
40%
10% 10%
Soldiers Civilians Soldiers Civilians Soldiers Civilians
ARMED FORCES AND LAW ENFORCEMENT
Different legal frameworks:

IHL

Tensions - 4 Geneva Conventions

or
troubles - Common Article 3 to the
Geneva Conventions
- Additional Protocol 1
IHRL - Additional Protocol 2

Domestic
Law

PEACE CONFLICT
Non international International
armed conflict armed conflict
 ARMED FORCES AND LAW ENFORCEMENT
Adapted tactics and means/action
COMBAT LE
Surprise effect if possible Preventive action: dialogue and
deterrence
Distance Proximity
Large scale in terms of terrain and Smaller scale, local context and fewer
personnel personnel
Firearms as first resort to use of Firearms as last resort to use of force
force
Quick and systematic use of all Graduated use of force and exceptional
weapons use of firearms
Fire on military objectives Firearms only in self defence or
defence of others

Non expanding ammunition or use Expanding ammunition and Chemical

of chemical agents/irritants agents/irritants
“Collateral damage” NO risk to life or injury of uninvolved
persons
KEY LEGAL DOCUMENTS - Treaty law

International Covenant on Civil and Political

Rights (ICCPR)

Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or
Punishment (CAT)
KEY LEGAL DOCUMENTS - Non-treaty law

 Universal Declaration on Human Rights

 Code of Conduct for Law Enforcement Officials (CCLEO)
 Basic Principles for the Use of Force and Firearms
(BPUFF)
 UN Standard Minimum Rules for the Treatment of Prisoners
(SMR)
 Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment (BPP)
 UN rules for the protection of Juveniles deprived of their Liberty
 Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power.
DOMESTIC LEGAL FRAMEWORK FOR THE
EXERCISE OF POLICE POWERS

National Constitution
National laws
Directives
SOP's
Key police responsibilities

REUTERS/MARTINEZ REUTERS/CHUNG REUTERS/SHALASH

Maintenance of Prevention and Provision of protection

public order detection of crime and assistance
Police powers

CICR/HEGER REUTERS/ARVAY
REUTERS/X00167

Arrest and Search and Use of force

detention seizure and firearms
Human Rights & Law Enforcement

HUMAN RIGHTS POLICE POWERS

RIGHTS and FREEDOMS

Affected by the
Exercise of Police Powers
Some fundamental rights affected by law
enforcement action:

 Right to life
 Right to freedom and movement
 Prohibition of torture / cruel treatment
 Prohibition of any discrimination
 Right to a fair trial
 Right to privacy
 Right to family life
 Right to property
 Right to safety and integrity
 Right to dignity
 Right to expression
 Right to association
 Right not to self incriminate, confess ….
 Etc. ….
Law enforcement actions:

 Arrest / Detention
 Restriction of movement and freedom - extended
 Restriction of communication

 Search / Seizure
 Search of body…. and dwelling, office, computer etc
 Seizure or confiscation of belongings

 Limitation of privacy
 Surveillance, access to / monitoring of communication

 Use of force and firearms

 Forced arrest, search, seizure etc.
 Force to suppress resistance or aggression
 Force / firearms to protect life
Police responsibilities and powers,
basic judicial guarantees:

Arrest, Detention, Search & Seizure

 Grounds & procedures

established by law
 Prohibition of arbitrariness
REUTERSOKANGA

 Prohibition of torture
 Non-discrimination
 Respect of dignity of the person,
humane treatment CICR/VON TOGGENBURG

 Presumption of innocence and

respect of judicial guarantees

REUTERS/SUPRI
Police responsibilities and powers;

Use of force and firearms

 Only for objectives established

by law
 Graduate response
 (Firearms only to protect life) REUTERS/DJURICA

 LAST resort
 Minimize damage (target)
 Protect uninvolved persons
 Responsibility & accountability
CICR/HEGER
 PRINCIPLES GOVERNING THE
EXERCISE OF POLICE POWERS

P L A N

Proportionality Legality Accountability Necessity

+ PRECAUTION
LEGALITY
On grounds (allegation / suspicion)
§§
and in accordance with procedure as
established by law
Art. 9.1 ICCPR

In accordance with the law by:

Competent officials
Persons authorized for that purpose
BPP2

 Legal means and methods

PROPORTIONALITY

A balance of values:

$ Life

Objective of Consequence
the action of the action
Some differences

IHL:
Proportionality between inpact on non military
objects; civilians and objects – AND the value /
importance of the military objective

IHRL:
Proportionality between the type/effect of the
violation and the consequesces on the suspect’s
rights / freedoms
“Serious crime” = serious impact on rights /
freedoms
“Minor crime” = minor impact on rights /
freedoms
NECESSITY

Which means to use:

or THAT?
This?

Rights
Rights

“Proportionality” defines the upper limit for the

use of force
PRECAUTION….. ??
Not only legal, proportionate and necessary
action … MUST ALSO
 BE WISE…
 NOT PUT OTHERS AT RISK
 LEAD TO AN IMPROVEMENT OF THE
OVERALL SITUATION
 NOT HAVE A LONG TERM NEGATIVE IMPACT
ACCOUNTABILITY
 Three levels of responsibility:
 Acting officer
 Superior
 Witnessing LEO
 Superior order not an excuse
 No invocation of exceptional
circumstances
 Report, review & investigation,
judicial control
 Protection & compensation of
victims
 PRINCIPLES GOVERNING THE
EXERCISE OF POLICE POWERS

Law P
§§ R
E
Procedures C
A
Decision on U
the spot T
I
O
N
ACTION

Accountability
 USE OF FIREARMS
ONLY
 " in self-defence or defence of others against the
imminent threat of death or serious injury"
or
 "to prevent the perpetration of a particularly serious crime
involving grave threat to life“ (Istanbul)
or
 "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.
 Intentional lethal force of firearms only "when strictly
unavoidable in order to protect life".
USE OF FIREARMS
Procedure to be followed
LEO to identify themselves as such
and
 give a clear warning of intention
to use firearms and
 give sufficient time for the
warning to be observed
unless
 putting at risk LEO or other
persons (life or serious harm) or
 inappropriate or
 pointless.
USE OF FIREARMS
Procedures to be followed after use
 Medical assistance

 Notify relatives

 Produce full and detailed report

(includes: secured evidence)

 Allow and cooperation with

investigation; prompt, impartial,
thorough and independent

 Aiming to determine
lawfulness of the action
 Public scrutiny and
publication of result
CONSEQUENCES OF ABUSE OF POWER

Victims of unlawful
exercise of police
powers
shall have an ICRC/PIZER

enforceable right to
compensation

Art. 9.5 ICCPR

Case studies
 SUMMARY

Non violent means FIRST

Graduate response in the use of force
Use of fire arms = LAST resort
Absolute limits for the use of firearms
Responsibility & Accountability
 ANY QUESTION?

THANKS FOR YOUR ATTENTION