1.2.3 Excessive or disproportionate use of force (art 6, 7 ICCPR) Condensed: Force may only be used [ON THE LEGAL GROUND] when (a) strictly necessary, (b) proportional to the seriousness of the situation and (c) the legitimate objective to be achieved. [THE PHYSICAL FOCE OR THE VIOLENT MEANS SHOULD BE USED BY LAW ENFORCMEENT OFFICIALS AS A LAST RESORT WHEN THEY HAVE EXHAUSTED ALL NON-VIOLENT MEANS.] When force is used law enforcement officials must minimize damage and injury. [USE OF PHYSICAL AND INDISCRIMINATE USE OF FORCE] to disperse unlawful peaceful assemblies should be avoided. Firearms should only be used in self-defence or defence of others against the imminent threat of death or serious injury. Intentional use of [LETHAL] firearms may only be made when strictly unavoidable in order to protect life. Comprehensive: The prohibition on excessive or disproportionate use of force flows from the right to life and the prohibition of cruel, inhuman or degrading treatment as recognised in the ICCPR and other international and regional human rights instruments.[1] The UN Code of Conduct for Law Enforcement Officials provides: ‘Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.’[2] The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states:[3] Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: (a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved; (b) Minimize damage and injury, and respect and preserve human life; (c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment; (d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment. The IACtHR has held that ‘force or coercive means can only be used once all other methods of control have been exhausted and failed.’[4] Law enforcement officials should avoid force to disperse unlawful peaceful assemblies and use minimum force if this is not practicable.[5] (See *limitation or banning of assemblies*). Even when force may be used law enforcement must respond proportionally and minimize damage and injury. In Güleç v Turkey the ECtHR held:[6] The gendarmes used a very powerful weapon because they apparently did not have truncheons, riot shields, water cannon, rubber bullets or tear gas. The lack of such equipment is all the more incomprehensible and unacceptable because the province of Şırnak, as the Government pointed out, is in a region in which a state of emergency has been declared, where at the material time disorder could have been expected. Firearms should only be used in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, 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 use of firearms may only be made when strictly unavoidable in order to protect life.[7] In a case dealing with the killing of 37 inmates in a Venezuelan prison the IACtHR held:[8] Detention centers as Catia prison, where arms and drug trafficking, the creation of gangs and violence subculture increase under the passive conduct of the State, require the permanent protection and safeguard of the safety and life of detainees and officers that work in such centers. However, the State cannot make use of force with lethal consequences for inmates only grounded on the existence of the abovementioned situation. … It is clear that the measures to be adopted by the State must prioritize a system of preventive measures intended, inter alia, to prevent arms trafficking and the increase of violence, over a repressive system. (See *extrajudicial, arbitrary or summary execution or other unlawful killing*)
[1]ICCPR art 6, 7. [2]Code of Conduct for Law Enforcement Officials art 3. [3]Basic Principles on the Use of Force and Firearms by Law Enforcement Officials principle 5. [4]Montero Aranguren and ors (Detention Center of Catia) v Venezuela (IACtHR 2006) para 67. [5]Basic Principles on the Use of Force and Firearms by Law Enforcement Officials principle 13.
[6]Güleç v Turkey application 21593/93 (ECtHR 1998) para 71.
[7]Basic Principles on the Use of Force and Firearms by Law Enforcement Officials principle 9. [8]Montero Aranguren and ors (Detention Center of Catia) v Venezuela (IACtHR 2006) para 70.
Condensed:
Force may only be used [ON THE LEGAL GROUND] when (a) strictly necessary, (b) proportional to the seriousness of the situation and (c) the legitimate objective to be achieved. [THE PHYSICAL FOCE OR THE VIOLENT MEANS SHOULD BE USED BY LAW ENFORCMEENT OFFICIALS AS A LAST RESORT WHEN THEY HAVE EXHAUSTED ALL NON-VIOLENT MEANS.] When force is used law enforcement officials must minimize damage and injury. [USE OF PHYSICAL AND INDISCRIMINATE USE OF FORCE] to disperse unlawful peaceful assemblies should be avoided. Firearms should only be used in self-defence or defence of others against the imminent threat of death or serious injury. Intentional use of [LETHAL] firearms may only be made when strictly unavoidable in order to protect life.
Comprehensive:
The prohibition on excessive or disproportionate use of force flows from the right to life and the prohibition of cruel, inhuman or degrading treatment as recognised in the ICCPR and other international and regional human rights instruments.[1] The UN Code of Conduct for Law Enforcement Officials provides: ‘Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.’[2] The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states:[3]
Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: (a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b) Minimize damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;
(d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.
The IACtHR has held that ‘force or coercive means can only be used once all other methods of control have been exhausted and failed.’[4]
Law enforcement officials should avoid force to disperse unlawful peaceful assemblies and use minimum force if this is not practicable.[5] (See *limitation or banning of assemblies*). Even when force may be used law enforcement must respond proportionally and minimize damage and injury. In Güleç v Turkey the ECtHR held:[6]
The gendarmes used a very powerful weapon because they apparently did not have truncheons, riot shields, water cannon, rubber bullets or tear gas. The lack of such equipment is all the more incomprehensible and unacceptable because the province of Şırnak, as the Government pointed out, is in a region in which a state of emergency has been declared, where at the material time disorder could have been expected.
Firearms should only be used in
self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, 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 use of firearms may only be made when strictly unavoidable in order to protect life.[7]
In a case dealing with the killing of 37 inmates in a Venezuelan prison the IACtHR held:[8]
Detention centers as Catia prison, where arms and drug trafficking, the creation of gangs and violence subculture increase under the passive conduct of the State, require the permanent protection and safeguard of the safety and life of detainees and officers that work in such centers. However, the State cannot make use of force with lethal consequences for inmates only grounded on the existence of the abovementioned situation. … It is clear that the measures to be adopted by the State must prioritize a system of preventive measures intended, inter alia, to prevent arms trafficking and the increase of violence, over a repressive system.
(See *extrajudicial, arbitrary or summary execution or other unlawful killing*)
[1]ICCPR art 6, 7.
[2]Code of Conduct for Law Enforcement Officials art 3.
[3]Basic Principles on the Use of Force and Firearms by Law Enforcement Officials principle 5.
[4] Montero Aranguren and ors (Detention Center of Catia) v Venezuela (IACtHR 2006) para 67.
[5]Basic Principles on the Use of Force and Firearms by Law Enforcement Officials principle 13.
[6] Güleç v Turkey application 21593/93 (ECtHR 1998) para 71.
[7]Basic Principles on the Use of Force and Firearms by Law Enforcement Officials principle 9.[8] Montero Aranguren and ors (Detention Center of Catia) v Venezuela (IACtHR 2006) para 70.