Police Brutality and Use of Force: An International Human Rights Law Perspective
Black Lives Matter movement in Austria by Ivan Radic
Article by Akshita Tiwary,
The killing of George Floyd has sparked protests against racism and police brutality all over the world. Floyd uttered the words “I can’t breathe” in his last few minutes, words which have continued to define campaigns seeking to eradicate the well-established link between white supremacy and police brutality, which has cost the lives of Black Americans in particular. Last week, a Kentucky grand jury failed to convict any of the officers responsible for Breonna Taylor’s murder, again exemplifying a blatant lack of justice for Black Americans historically and currently suffering disproportionately severe and frequent police brutality.
These instances are not isolated; they form a chain of events indicating deliberate mistreatment and abuse of power by discriminatory law-enforcement agencies, which are deeply entrenched in American history. With the resurgence of protests against police brutality, governments are being forced to reflect on the excessive use of force by police, especially in furtherance of racial discrimination, and to formulate new rules for regulating such use of force. International human rights standards shed light on the extent to which use of force by the police should and should not be permissible, where domestic law has failed to achieve retribution and justice.
International human rights law lays down a uniform standard of rights which are equally available to every person, regardless of their race, gender, nationality, religion, or any other status. Most of these basic rights are contained in the Universal Declaration of Human Rights, the parent document for subsequent human rights treaties and conventions. International human rights standards require policing to be carried out in conformity with utmost respect for the human rights of alleged suspects or offenders. Recent instances of racist policing contravenes human rights standards by depriving Black Americans of basic rights such as right to life, dignity and non-discrimination.
'Use of Force' According to International Human Rights Standards
In 1979, the UN General Assembly adopted Resolution 34/169 relating to the Code of Conduct for Law Enforcement Officials. Article 2 of the Resolution provides for the dignified treatment of all human beings. Under Article 3, officers are required to use only ‘necessary’ force and to do so in accordance with the principle of ‘proportionality.’ Finally, Article 5 prohibits the use of torture, cruel, inhuman or degrading treatment.
The above principles are not exclusive to the UN’s Resolution. For example, the Office of the United Nations High Commissioner for Human Rights’ (OHCHR) International Human Rights Standards for Law Enforcement provides that law enforcement officials are obliged to know and apply international standards of human rights when dealing with alleged suspects. Policing authorities cannot discriminate on the basis of race, gender and colour, among other statuses, as all humans are equal before the law. The OHCHR emphasizes that “force is to be used only when strictly necessary” and that “force applied shall be proportional to the lawful law enforcement objectives.”
The General Assembly adopted The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment in its Resolution 43/173 in 1988. Principles 1, 3, 5 and 6 contained therein provide for human dignity, consideration of human rights, prohibition of discrimination, and ban on torture, respectively. Clause 4 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides that force be used as a last resort only when other means of achieving the necessary result prove to be ineffective. Clauses 5(a) and (b) specify proportional use of force to minimize damage and to preserve human life. Clause 15 explicitly recognizes that law enforcement officials shall not use force on persons in custody, except when strictly necessary.
Impacts of Racist Policing
The defining moment in which we currently reside, in the wake of the killings of George Floyd, Jacob Blake, and Breonna Taylor among others, has evinced the systemic racism permeating the police force. This problem has continued for centuries, but has now been brought to the forefront with the global culmination of the ‘Black Lives Matter’ movement.
In the United States, police ideology defines the world as a “profoundly dangerous place.” According to that worldview, officers can guarantee survival only by dominating the citizenry that they aim to protect, which leads to the use of disproportionate force, too often along racial lines. Rampant implicit bias and explicit racism by the police has taken the form of unfair treatment, increased suspicion, and increased targeting of Black Americans.
The United States' Violation of International Human Rights Law
These instances of police brutality, especially against Black Americans, are gross violations of the United States’ commitments under international human rights law. The United States has ratified three major human rights treaties, which are binding on all levels of government: federal, state, and municipal.
In 1992, the United States ratified the International Covenant on Civil and Political Rights (ICCPR). Article 6 of the ICCPR codifies the legal protection of every person’s right to life. It stipulates that no person shall be ‘arbitrarily’ deprived of his life. Since excessive use of force contravenes legally permissible limits, it can constitute an arbitrary deprivation of life in violation of Article 6. Article 10 specifies that every person denied of their liberty should be treated with humanity and dignity, while Article 26 states that “all persons are equal before the law and are entitled without any discrimination to equal protection of the law.”
In 1994, the United States ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Under this Convention, States Parties are required to prevent acts of cruelty, degrading treatment, or punishment that amount to torture. Article 10 of this treaty provides for training law enforcement personnel against the use of torture.
In the same year, the United States also ratified the International Convention on the Elimination of All Forms of Racial Discrimination. Article 5(b) of the Convention protects a person from violence or bodily harm inflicted by government officials, while Article 6 provides for effective remedies through competent national tribunals and other state institutions to prohibit any form of racial discrimination.
In its 1995 Concluding Observations on the United States, the Human Rights Committee (HRC) noted the reportedly large number of deaths and wounding caused by the police force in the discharge of their duties. It thereby urged the state to take all measures necessary to prevent any excessive use of force by the police.
Even with 25 years of notice, the United States has failed to take adequate note of the HRC’s warning and has yet to prevent the arbitrary use of force. Its withdrawal from the United Nations Human Rights Council in 2019 has only crossed the line from inaction to overt disregard. The United States’ negligence represents a manifest lack in the government’s dedication to comply with treaties incumbent upon the state. Simply making laws that nominally prohibit the excessive use of force is not enough. In order to not only maintain its commitments under international human rights conventions, but also eradicate police brutality, the United States must at least train its officers in order to prevent such blatant injustice, and strictly punish officers who resort to excessive use of force.
Effective Implementation of International Human Rights Law at the Domestic Level
Most international human rights standards are contained either in treaties or customary law. Once a treaty is ratified, the state is legally bound to align its domestic measures with the requirements of its treaty obligations in order to ensure compatibility. By becoming a party to an international treaty, states assume duties under international law to respect, protect, and fulfill human rights. The obligation to ‘protect’ requires states to protect individuals and groups against human rights abuses, including police brutality.
Thus, the onus first lies on the state’s legal mechanisms to offer proper redress to victims of police brutality. Uniform, unbiased, and proportionate punishment must be meted out to offenders in order to deter other members of the police force and prevent them from resorting to unlawful means while handling suspects. However, if a state fails to properly punish such officers, then a remedy may lie with international quasi-judicial bodies in accordance with different treaties, like the Human Rights Council (the Council) for violations pertaining to the ICCPR. Since the Council is composed of independent experts, its decisions provide an authoritative determination for remedies and reparations to be offered in case of violations under Article 2(3) of the ICCPR.
Another way in which states can uphold international human rights law is by paying heed to reporting systems in the form of Concluding Observations, General Comments and Other Recommendations. These reporting systems function as primary tools for engaging with States Parties on domestic implementation. In the case of Concluding Observations, states make authoritative statements on the compatibility of domestic measures with treaty obligations and on measures recommended to improve their domestic implementation. For example, had the United States acted in accordance with the Concluding Observations in 1995, many cruel instances of police brutality could easily have been prevented. Since international law itself is based upon the concept of sovereignty, states’ willingness to comply with their obligations will play a major role in determining the persistence of police brutality.
How to Adhere to International Human Rights Law
Today, a state’s treatment of its own nationals are often viewed in the context of international human rights regulations. When law enforcement officials, in the course of their duty, violate a state’s obligations under international human rights law, the state becomes responsible for addressing its violations at the international level. States’ duties include an obligation to provide compensation and redress. States can be held accountable for international human rights offenses through inter-state complaints or individual complaints.
There is no doubt that states and the people residing within them entrust law enforcement officials with important responsibilities. However, police brutality has a devastating effect on the relationship between the authorities and the community, as indicated by the recent frustration of protesters during ongoing demonstrations. Thus, law enforcement should carry out their duties within the restrictive scope of international human rights law by observing four main principles:
Principle of legality: all action should be based on provisions of the law;
Principle of necessity: police should not affect or restrict human rights more than is necessary;
Principle of proportionality: police should not affect human rights in a way that is disproportionate to their aim of maintaining law and order;
Principle of accountability: those carrying out the action should be fully accountable to all relevant levels (the judiciary, the public, the government and the internal chain of command).
Universal adoption of these principles would require comprehensive training of police officials regarding the use of force. Providing this training is necessary to mould the mentality of law enforcement agencies in a way that accords utmost respect to basic human rights and the dignity of individuals. Moreover, states’ strict monitoring of police and punishment of excessive force will act as a powerful reminder for the police force in general that there are consequences for their illegal actions. Thus, nations have a duty to establish the legal and administrative framework defining the circumstances in which the use of force may be allowed in accordance with international human rights standards. Such practical guidance would enable law enforcement to carry out its duties to governed persons and to the state without violating human rights, and perhaps even to the unequivocal rejection of ill-treatment by police officers themselves.
Police who take it upon themselves to enforce the law in a violent and discriminatory manner undermine the very foundation of the rule of law. Any force used must be no greater than what is ‘absolutely necessary’ to achieve a legitimate aim. Orders and procedures that clearly establish what is expected of the individual law enforcement official are paramount in ensuring that law enforcement is always carried out in full compliance with international human rights law.
In the Case of Nachova and Others v. Bulgaria, the European Court of Human Rights (ECtHR) held, “potentially deadly force cannot be considered as ‘absolutely necessary’ where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence.” The murders of George Floyd, Jacob Blake, and Breonna Taylor among others in the United States are perfect examples of who the ECtHR sought to protect in its Nachova holding. The use of unnecessary physical force diminishes human dignity, an essential aspect of human rights. In addition to states being legally bound by human rights treaties upon ratification, most other human rights standards contained in General Assembly Resolutions take the form of customary international law. Such a context mandates that appropriate measures be taken to properly educate police officers regarding the correct use of force. The sooner that states recognize and act upon that mandate, the closer they will be to reconciling the disparity between policy brutality and human rights.
Akshita Tiwary is a third-year law student at Government Law College, Mumbai.