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Regulation of the use of force by law enforcement officials

20 de January, 2012

Law enforcement officials are required to know and apply international human rights standards. There are several international instruments governing the conduct of such officers, including particular issues such as the use of force they can legitimately exercise. These constitute minimum standards for the use of force.

The international instruments that refer to the conduct of law enforcement officials include the following: 

i. International Covenant on Civil and Political Rights (ICCPR), Article 9. “1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge (…) and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. (…)”

How can we interpret Article 9 of the ICCPR?

General Comment No. 8 of the Human Rights Committee specifies that Article 9 of the ICCPR is applicable to all types of deprivation of liberty, whether as a result of a crime or other reasons. In specific cases of criminal offense, paragraph 3 of Article 9 requires that the person detained be brought promptly before a judicial authority. These delays should not exceed a few days. Custody should be an exception and last as short as possible.

Read General Comment No. 8 of the Human Rights Committee: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f4253f9572cd4700c12563ed00483bec?Opendocument 

ii. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment obliges States Parties to prohibit torture and other cruel, inhuman or degrading treatment committed by public officials or any other person acting in an official capacity. This includes acts of instigation or those committed with the consent of that individual (see Articles 2 and 16).

Note: The Convention against Torture is an international treaty ratified by 149 countries. States that have ratified the Convention have committed themselves to fulfill the Convention, as a legally binding instrument. All countries covered by the Regional Office for South America have ratified the Convention.

Read the Convention against Torture: http://www2.ohchr.org/english/law/cat.htm

How can we interpret Article 2 of the Convention against Torture?

General Comment No. 2 of the Committee against Torture considers that the prohibition of torture (art. 2) and ill treatment (art. 16) is absolute in the Convention, and that its prevention should be effective and imperative. States Parties are obliged to remove all obstacles to the eradication of torture and ill-treatment. They must also take effective measures to prevent these behaviours and their reiteration. States Parties are also required to constantly review and improve their national legislation and action in regard to the Convention. If the measures taken by the State Party failed to eradicate torture, the Convention calls for a review or for more effective measures. The Committee absolutely condemns the justification of torture and ill-treatment as a measure to protect public security or to prevent emergencies or any other situation. The Committee considers that amnesties or other impediments to the prosecution as well as the prompt and impartial punishment of the perpetrators of torture or ill-treatment are a violation of the prohibition. Actions that demonstrate unwillingness in this respect may also constitute a violation of the treaty.

Read General Comment No. 2 of the Committee against Torture :http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/402/62/PDF/G0840262.pdf?OpenElement

iii. Other international instruments regulating the use of force by law enforcement officials:

There are equally instruments adopted by the General Assembly and the Economic and Social Council, which lack the binding force of international treaties, but which nevertheless provide universal guidelines that describe the minimum standards for the activities of law enforcement officers:

- Code of Conduct for Law Enforcement Officials: indicates that force can be used ¨ only when strictly necessary and to the extent required for the performance of their duty.¨ The use of force can take place only in exceptional cases and always respecting the principles of proportionality, legality, responsibility and necessity. Read the Code of Conduct: http://www2.ohchr.org/english/law/codeofconduct.htm

- Basic Principles on the Use of Force and Firearms by Law Enforcement Officials: specifies the conditions that must be met for the use of firearms. These principles dictate that proportionality must be assessed in relation to the seriousness of the offense and the legitimate objective to be achieved, as well as the principles of legality, responsibility and necessity.

Read the Basic Principles: http://www2.ohchr.org/english/law/firearms.htm

For its part, the United Nations Office of the High Commissioner for Human Rights has produced a Manual on human rights for the police.

Read the Manual: http://www.ohchr.org/Documents/Publications/training5en.pdf

Read the Expanded Pocketbook on Human Rights for the Police:  http://www.ohchr.org/Documents/Publications/training5Add3en.pdf

> Related links:

Information note: “Social protest: What are the State´s responsibilities according to international human rights standards?” http://acnudh.org/?p=11868


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