Law Enforcement Brutality as a Human Rights Violation

Through a poll held by NBC News and The Wall Street Journal from May 29 to June 2 of this year, voters were asked “whether they were more troubled by the actions of the police and the death of George Floyd, or by protests that have turned violent.” By more than a two-to-one ratio, voters indicated that they were more troubled by the actions of the police and the death of George Floyd.

Considering that the responsibility of the police is to uphold public safety and enforce the law when necessary, this troubled response is with good reason. With respect to international human rights standards, I share several insights on how law enforcement brutality is a human rights violation.

International Human Rights Standards

In a study by the University of Chicago Law School—International Human Rights Clinic (IHR Clinic) titled, “Deadly Discretion: The Failure of Police Use of Force Policies to Meet Fundamental Human Rights Law and Standards,” 20 city police departments were evaluated based on how well their policies met the minimum standards established by human rights law. The scoring mechanism was founded upon four principles in law: legality, necessity, proportionality, and accountability.

These principles were derived from a compendium by the United Nations (U.N.) on the standards and norms in crime prevention and criminal justice, which includes the U.N. Code of Conduct for Law Enforcement Officials (U.N. Code of Conduct) of 1979 and the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (U.N. Basic Principles) of 1990. To learn more about these documents and their importance, read until the end of this article for brief descriptions of each document.

Defining Lethal Force

Before applying the principles, it is imperative to understand what constitutes “lethal force,” which is the primary concern with law enforcement brutality. 

According to the Legal Information Institute at Cornell Law School, lethal force—or deadly force—is “force which a reasonable person would consider likely to cause death or serious bodily harm.” A law enforcement official is only authorized to use lethal force in circumstances in line with all four principles.

Application of Principles

Legality

According to the International Committee of the Red Cross’s Customary International Humanitarian Law Database, the principle of legality is as follows:

“No one may be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time it was committed.”

With respect to law enforcement brutality, the principle of legality mandates that the use of lethal force must be provided in a domestic law aligned with international standards. The IHR Clinic study evaluates the policies of police departments by applying the principle in the form of two components.

One is that the policies must be based on a state law authorizing law enforcement officials to use lethal force. The other is that the state law that the policy is based on must comply with international human rights principles.

In 2015, Amnesty International published a report called, “Deadly Force: Police Use of Lethal Force in the United States,” which found that “all 50 states and Washington, D.C. failed to comply with international human rights law and standards on the use of lethal force by law enforcement officers.” When the authors reexamined state statutes in June 2018, still none were compliant.

Necessity

According to the Weapons Law Encyclopedia of the Geneva Academy of International Humanitarian Law and Human Rights, this principle maintains that “force may only be lawfully used where it is necessary.” 

What would count as “necessary?” The authors of the IHR Clinic study point to three elements of a threat that would warrant lethal force: immediacy, particularization, and last resort. This means that if the threat is about to happen and is subjecting anyone to a “specific heightened risk,” and if all other non-lethal responses possible in the situation have been considered and do not address the threat, then the use of lethal force is necessary.

In cases like that of the protesters in Portland recently, who were unduly met with tear gas and projectiles by federal forces, the use of lethal force is not necessary. As there were mainly peaceful protesters, journalists, and legal observers on the scene, there is little to justify perceiving the situation as an immediate and particularized threat, let alone using lethal force against them. Even the U.N. human rights office called on United States security forces to limit their use of force against them.

Proportionality

The example of the security forces’ unjust treatment of the protestors and journalists also contends to the violation of the principle of proportionality. 

According to the Doha Declaration of the U.N. Office on Drugs and Crime, “Proportionality only comes into play if the principle of necessity is respected. Thus, the use of force must already be necessary in the circumstances and the force actually used must be no more than the minimum necessary to achieve a legitimate law enforcement objective.”

Under General Provision 5 of the U.N. Basic Principles, if the lawful use of force and firearms is unavoidable, law enforcement officials must “exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved.”

However, in the cases of law enforcement brutality that we know by name – the murders of Breonna Taylor, Dion Johnson, and countless others – there were no offenses to use force for in the first place. In these cases, not only is the use of (lethal) force unnecessary, but it is also unproportional to acts such as sleeping and intoxicated driving.

Accountability

International human rights standards mandate independent review and internal and external reporting for all instances of use of lethal force. Because there are no “clearly defined sub-elements” of these standards, law enforcement bodies have discretion when interpreting the law and defining standards. 

However, commentary on Article 3 of the U.N. Code of Conduct stresses that “in every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.” This speaks to the principle of accountability, which the United States Institute of Peace says “refers to the processes, norms, and structures that hold the population and public officials legally responsible for their actions and that impose sanctions if they violate the law.”

Examples of law enforcement avoiding accountability and thus violating human rights law and standards include turning off body cameras—as done by police in San Francisco, Chicago, and Miami—and arriving in unmarked vehicles to grab people off the street—as done by the federal forces in Portland.

Takeaways

What separates civilians and law enforcement officials is only the title. We are all entitled to human rights. We are all accountable to protecting and upholding human rights. While the U.N. Code of Conduct and the U.N. Basic Principles are not binding in law, and while it is up to local and state authorities to interpret the law and standards, it is essential for individuals and institutions to incorporate human rights principles into legislation and application to respect humanity. 

Please consider using this guide by Amnesty International or this one by the American Civil Liberties Union to memorize and understand at least some of your rights in advance, so that you can refer to them immediately when needed.

To learn more about police brutality and the law, read Emma’s article about qualified immunity. 

To learn more about the U.N. Code of Conduct and the U.N. Basic Principles, keep reading!

U.N. Code of Conduct

The U.N. Code of Conduct was adopted by the U.N. General Assembly to provide core standards for complying with basic human rights principles within the framework of national law enforcement legislation and practice. It also “concretized the rights guaranteed through human rights treaties, including the right to life and freedom from torture and cruel, inhumane and degrading treatment and the right to equal treatment.” 

U.N. Basic Principles

The U.N. Basic Principles serve as a comprehensive guide to clarify parts of the U.N. Code of Conduct to ultimately “ensure protection of the rights to life, liberty and security of the person.” In the context of law enforcement, the U.N. Basic Principles were made to “assist Member States in their task of ensuring and promoting the proper role of law enforcement officials.”