An important element of ensuring a higher level of protection of the right to life worldwide will be to bring domestic laws on the use of force by law enforcement officials into greater conformity with international standards, says UN Special Rapporteur Christof Heyns. 

By Christof Heyns, UN Special Rapporteur on extrajudicial, summary or arbitrary executions

An important element of ensuring a higher level of protection of the right to life worldwide will be to bring domestic laws on the use of force by law enforcement officials into greater conformity with international standards. The central document in this regard is the Basic Principles on the use of force and firearms of 1990. As regards the use of lethal force, international standards require compliance with, what I call, the ‘protect life’ principle – it may be used only in response to a genuinely immediate threat to life, where there is no other alternative.

My recent Human Rights Council report makes the point that the ‘protect life’ principle is fundamental in the use of force, and urges States to ensure that their laws are in line with international standards and civil society to engage with States at all the available levels – including, regional levels – where that is not the case.

For the report, I reviewed the laws of 146 states that deal with this matter. (These laws are now available on www.use-of-force.info, as a resource for everyone with an interest in this area. The website will be kept up to date.) Many of the laws pre-date the human rights era and do not pose the requirements of the necessity and proportionality in the use of force. In some cases, they expressly pose lower standards and limit or exclude accountability for the excessive use of force by law enforcement officials.

Changing laws on its own is obviously not the only step that needs to be taken. Training, the availability of weapons that can be used to apply differentiated force, and the availability of protective gear for the police are all necessary components of a holistic picture. However, making sure that domestic laws reflect internationally agreed upon standards is an important part of the larger picture.

Domestic law is the first, and in my view most important, line of defence for the protection of life. The loss of life is irreversible and if the domestic laws are not effective in protecting life, the role of international law is largely confined to seeking accountability – an aspect that even the international order cannot address as well as the local one.

States that do not have a proper legal system in place to protect the right to life are already in violation of the right to life. One of the purposes of the website is to make it easy for everyone –states, citizens, and the international community alike – to assess whether domestic laws are in violation of the right to life.

Demonstrations are increasingly used around the world as a form of participation in public and political life, carrying the potential in some cases of escalating into violence. Any effort to prevent unlawful loss of life in such situations must have at least two components: closest to the action, the police must act in accordance with a domestic legal system that reflects the international values on the use of force; and further ‘upstream’, the demonstration must also be managed and facilitated in accordance with human rights standards as regards any restrictions that may be placed on it (e.g. on the manner and time in which people may participate).

I think the question of ‘less lethal weapons’ needs to be analyzed further and I have called on the Human Rights Council to conduct a study in this regard. There is an increasing range of such weapons on the market, subjecting people not only to teargas and batons but also to electric shocks, sounds blasts, and various forms of blunt force.  Law enforcement requires graduated force – only the force necessary under the circumstances – but it is increasingly clear that police in some states use these weapons, even if they do not result in death, in ways that apply more force than is necessary in the particular case. In a number of cases these ‘less lethal’ weapons in fact have lethal consequences.

A further issue that needs to be investigated in this context is the increasingly autonomous nature of weapons used in law enforcement. The Council needs to look at this issue – no other body has the mandate to do so.

Christof Heyns is the UN Special Rapporteur on extrajudicial, summary or arbitrary executions